R v Day - [2009] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAY
[2009] SASC 84
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
2 April 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE
Appellant sentenced for series of drug-related and other offences - appellant pleaded guilty to taking part in the manufacture of methylamphetamine - appellant committed further offences of possessing a controlled substance for sale - whether combined effect of sentences manifestly excessive - whether the unlawful conduct of the police when arresting the appellant justified a reduction of the sentence - whether sentencing Judge failed to give a sufficient discount in relation to plea of guilty - whether sentences for latter offences should be served concurrently - whether sentence should be reduced on the basis of totality.
Held: the unlawful and improper conduct of the police alone would rarely, if at all, justify a reduction in what would otherwise be an appropriate sentence. Whether or not the fact of fear or intimidation has played a part in the commission of offences should result in a reduction in penalty must depend on the circumstances of the particular case. Where there are two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Appeal allowed only in relation to latter offences, namely, possessing a controlled substance for sale - sentence reduced on the basis that it was manifestly excessive - sentence made cumulative upon sentence for earlier offending.

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
Controlled Substances Act 1984 (SA) s 32(1)(b), s 32(1)(e); Criminal Law (Sentencing) Act 1988 (SA) 18A; Summary Offences Act 1953 (SA) s 67, referred to.
Attorney-General v Tichy (1982) 30 SASR 84; R v Caplikas (2002) 132 A Crim R 544; R v Mangelsdorf (1995) 66 SASR 60, applied.
Cameron v The Queen (2002) 209 CLR 339, 334; R v Birtles (1969) 2 All ER 1131; R v Craciun (2006) 94 SASR 173; R v Nasogaluak (2007) CCC (3d) 52; R v Pigeon (1992) 73 CCC (3d) 337; R v Sang (1980) AC 402; R v Steinberg (1967) 3 CCC 48; R v Trocko (1988) 132 LSJS 412, discussed.

R v DAY
[2009] SASC 84
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: I agree with the orders proposed by Sulan J and with his reasons. There is nothing that I wish to add.
SULAN J: On 12 December 2008, the appellant was sentenced by a District Court Judge to a total period of imprisonment of ten years and six months’ imprisonment, with a non-parole period of seven years’ imprisonment for various drug offences. He appeals on the ground that the overall period to be served is manifestly excessive.
On 28 September 2005, the appellant was sentenced to three years’ imprisonment, with a non-parole period of one year and eight months, for offences of taking part in the manufacture of methylamphetamine and theft, committed in January and February 2004 (“the 2004 offences”).
The offences upon which he was sentenced on 12 December 2008 were, first, an offence of taking part in the manufacture of methylamphetamine, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (“the Act”), committed between 3 January 2005 and 13 April 2005 (“the 2005 offence”) for which he received a sentence of two and a half years’ imprisonment and, secondly, two counts of possessing a controlled substance for sale contrary to s 32(1)(e) of the Act, committed on 28 August 2007 (“the 2007 offences”), for which he received a total sentence of seven years’ imprisonment, to be served cumulatively upon the sentence for the 2005 offence.
When he was sentenced on 12 December 2008, the sentencing Judge was required to take into account that when he committed the 2007 offences he was on parole for the 2004 offences, and when he was taken into custody on 18 August 2008 for having breached his parole, there was an unexpired balance of one year and ten days’ imprisonment to be served for the 2004 offences. The outstanding period of parole which I have mentioned was to be served prior to the sentences for the 2005 and 2007 offences coming into effect. That resulted in a total period of imprisonment of ten years, six months and ten days’, backdated to 18 August 2008. I shall describe in more detail later in these reasons how the sentencing Judge arrived at the sentences that were imposed.
Background
The defendant is 36 years of age. On 13 April 2005, he was in a shed at premises at 57 Grey Avenue, Welland, when they were raided by police. He and another man were arrested. During the raid and arrest, the appellant received a wound to his head and lacerations to his knees and elbows. In the shed, police and forensic scientists observed chemicals, glassware and other implements commonly used in the manufacture of methylamphetamine. The police also seized firearms and ammunition.
The appellant was charged with taking part in the manufacture of methylamphetamine and various firearms offences. He was committed to the District Court and he pleaded not guilty.
Prior to the jury being empanelled, the appellant challenged the admissibility of the evidence of the raid and search and seizure of items at the premises. His counsel argued that the evidence was inadmissible as the holder of the search warrant had not participated, nor had he been in control during the raid and search of the premises. This was in contravention of s 67 of the Summary Offences Act 1953 and, therefore, amounted to an illegal entry on the premises and an illegal search and seizure. There was no challenge to the search and seizure of the items the subject of the charges based upon the conduct of the police at the time of the appellant’s subsequent arrest. That is, the appellant did not make a point of challenging the search on the grounds of the injuries he sustained during the course of it.
On 29 November 2007, the trial Judge ruled that the entry and search of the premises by the police was illegal, on the grounds that the holder of the general search warrant under which the search was performed was not able to exert any real authority and control over the entry conducted by STAR group officers. The holder of the warrant had been about 500 metres from the premises where the police had set up the control centre to coordinate the raid. The Judge concluded that the search was, therefore, not conducted under the warrant holder’s authority. He concluded that the search warrant had not been lawfully executed.
However, in the exercise of his discretion, the Judge admitted the evidence. He concluded that the unlawfulness surrounding the search resulted from a policy, the object of which was to ensure the safety of those involved in searching clandestine laboratories. He observed that, although the STAR group officers who entered the premises may have acted with excessive force in removing and detaining the appellant and his co-offender from the shed, the police acted in good faith. He concluded that the admission of the evidence obtained as a result of the search did not prejudice the appellant.
On 18 August 2008, approximately nine months after the Judge had made his ruling, the appellant pleaded guilty to taking part in the manufacture of methylamphetamine. The DPP withdrew the firearms offences. The maximum penalty for the offence of taking part in the manufacture of methylamphetamine is a fine of $200,000 or 25 years’ imprisonment, or both.
When the appellant was sentenced for the 2004 offences, the sentencing Judge observed that the appellant had developed a drug habit in about 2002. The appellant came to South Australia that year, and was consuming about five grams of methylamphetamine per day. The sentencing Judge found that the drug which he was then manufacturing was being manufactured for his own purpose. At the time that the appellant was sentenced for the 2004 offences, he had a prior conviction of supplying a controlled substance for which he had received a six-month suspended sentence. The sentencing Judge said:
Methylamphetamine is a drug in the middle range of seriousness. Even a level of offending such as yours, where you are effectively only supporting your own drug habit, is regarded seriously and calls for a deterrent sentence of imprisonment.
The Judge imposed a sentence of three years’ imprisonment, with a non‑parole period of one year and eight months.
As to the 2005 and 2007 offences, the sentencing Judge had regard to the fact that, on 18 August 2008, the day upon which the appellant pleaded guilty, the appellant’s parole was cancelled, and he commenced to serve the balance of his sentence, being one year and ten days’ imprisonment.
The appellant was committed for sentence on 17 November 2008 in respect of the 2007 offences. The appellant had been released on parole on 27 May 2007. On 28 August 2007, he was found in possession of methylamphetamine at premises at 42 Myponga Terrace, Kilkenny. He was using the premises to store drugs. He did not reside there. When police attended the premises, they found 1.4 kilograms of a substance containing 11 grams of methylamphetamine. The sentencing Judge observed that the purity was very low. There were also electronic scales, plastic bags and other indicia for dealing in drugs, and a quantity of cash found at the premises. The Judge considered it was a relatively large-scale operation to package and sell methylamphetamine, and acknowledged that it was of low purity. The police also found 604 tablets containing 32.1 grams of MDMA, or ecstasy, for sale. The maximum penalty for each of the offences is a fine of $20,000 or 25 years’ imprisonment, or both.
The sentencing Judge regarded the offences, particularly the possession of the ecstasy tablets for sale, as extremely serious. He referred to personal and general deterrence. He correctly concluded that selling to support the appellant’s own habit was not a significant mitigatory factor.
In sentencing the appellant, the Judge had regard to his personal situation, that he was living in a de facto relationship and had a young daughter of five years of age. The Judge had regard to the appellant having undertaken drug rehabilitation programs whilst in custody. He observed that the appellant now asserted that he was drug-free. However, he concluded that there is a real risk that the appellant would relapse into this type of offending again in the future.
In respect of the 2005 offence, the Judge observed that the plea of guilty to that offence occurred after the voir dire hearing. He observed that the appellant had been caught red-handed with the equipment and chemicals in his shed, and that he had waited until the outcome of the voir dire hearing before he entered his plea. The Judge indicated that he discounted the sentence by 15 per cent, on account of the appellant’s plea of guilty. He sentenced the appellant to two and a half years’ imprisonment for that offence.
As to the two 2007 offences, the Judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). He sentenced the appellant to seven years’ imprisonment, and indicated that he had reduced the sentence by 30 per cent from ten years’ imprisonment, having regard to the early plea of guilty in the Magistrates Court. He directed that the sentences for the 2005 and 2007 offences be served cumulatively and that they commence at the expiration of the sentence that the appellant was serving for the 2004 offences.
The total period of imprisonment was ten years, six months and ten days. The sentencing Judge had regard to the totality principle and determined there was no justification for making a reduction on the basis of totality. He directed that the sentences were to commence on 18 August 2008, and he imposed a non‑parole period of seven years.
The appellant appeals on the ground that the combined effect of the sentences was manifestly excessive. The notice of appeal particularises six grounds upon which it is alleged that the sentence was manifestly excessive. They are as follows. First, in respect of the 2005 offence, the sentencing Judge failed to give any or sufficient weight to the unlawful conduct of the police in entering the appellant’s home as trespassers and assaulting him. Second, the sentencing Judge failed to give a sufficient discount in relation to the appellant’s plea of guilty to the 2005 offence. Third, that the sentencing Judge failed to give any or sufficient weight to threats made to the appellant by some of his former associates. Fourth, that he failed to give any or sufficient weight to the mitigating effect of the appellant’s addiction to drugs. Fifth, that he failed to give any weight to the principle of totality. Sixth, that he ought to have ordered that the sentences for the 2005 and 2007 offences be served concurrently.
Permission to appeal was granted in respect of the particulars relating to a discount of the sentence for the appellant’s plea of guilty to the 2005 offence, and in relation to the alleged failure of the Judge to give any weight to the principle of totality. In respect of the other particulars, permission was refused. The appellant seeks permission to appeal in respect of those grounds which were refused.
I now turn to the arguments of the appellant.
The conduct of the police in respect of the 2005 offence
Counsel for the appellant submits that the sentencing Judge failed to have sufficient regard to the actions of the police in unlawfully entering the premises and to their conduct in arresting the appellant and causing him injuries to his head and knees. Counsel for the appellant submits that if the police act unlawfully or improperly, the Court is entitled, and should, express its disapproval of the police conduct by reflecting that disapproval in a reduction of the sentence that the Court would normally have imposed.
Counsel relied on the decision of the House of Lords in Birtles.[1] Mr Birtles received a total sentence of five years’ imprisonment for offences of burglary and carrying an imitation firearm. On appeal, it was revealed that there was a real possibility that the appellant had been encouraged by an informer and a police officer to commit the offences. The Court of Appeal expressed its disapproval of that practice, and reduced the sentence. Lord Parker CJ observed that it was entirely appropriate for the police to use informers. The Court acknowledged that the police were entitled to take whatever action was necessary to protect proposed victims and, if so, encourage an informer to take part in an offence in order to catch the perpetrators. Lord Parker CJ said that there were limits beyond which the conduct of the police will become unacceptable. He observed:
But it is quite another thing and something of which this Court thoroughly disapproves, to use an informer to encourage another to commit an offence or indeed an offence of a more serious character, which he would not otherwise commit, still more so if the police themselves take part in carrying it out. In the result, this appeal is allowed and the sentence to reduced to one of three years.
[1] R v Birtles (1969) 2 All ER 1131.
In Sang,[2] the issue which arose for the decision of the Court of Appeal was whether a trial judge had a discretion to exclude evidence obtained by police who incited or acted as agent provocateur in the commission of the offence. In the course of delivering the judgment of the Court, Lord Roskill observed:[3].
A police officer who goes too far may himself be prosecuted for the crime which he has committed or for inciting another to commit a crime. Or he may be disciplined. Or if he enters premises illegally or searches a person or his property illegally he may be held liable for damages for trespass. Experience shows that expressions of judicial disapproval when justified are not without their effect as a deterrent to reprehensible or arbitrary police behaviour. Moreover, in a proper case the courts can always mitigate the penalty, as was done in Reg. v. Birtles [1969] 1 W.L.R. 1047 and Reg. v. McCann, 56 Cr.App.R. 359.
[2] R v Sang (1980) AC 402.
[3] Ibid, 422.
The English authorities are concerned with the conduct of police in participating in and encouraging the defendant to commit an offence and are, therefore, distinguishable from this case. There may be good reason to regard the conduct of a police officer who encourages an offender to commit offences which the offender might otherwise not commit as relevant to the penalty to be imposed. In such circumstances, it can be argued that, but for the police conduct, the defendant would not have offended in the manner in which he did.
In Steinberg,[4] the police had illegally installed a listening device in the defendant’s home and thereby obtained evidence of illegal bookmaking. The Ontario Court of Appeal reduced the fine. In so doing, the Court said that the appearance of justice was an important element to be considered, and that its absence in that case was a reason for reducing the fine.[5]
[4] R v Steinberg (1967) 3 CCC 48; R v Pigeon (1992) 73 C.C.C. (3d) 337; R v Nasogaluak (2007) C.C.C. (3d) 52.
[5] Ibid, 51.
I am not aware of any Australian authority to the effect that improper conduct by the police can be a ground for reducing what would otherwise be an appropriate sentence. There are situations in which it is appropriate for the court to express its disapproval of police conduct. Nevertheless, the conduct of the police alone would rarely, if at all, justify a reduction in what would otherwise be the appropriate sentence. As Roskill LJ observed in Sang, if the police act illegally or improperly, there are other appropriate remedies available, such as disciplinary action, or even criminal prosecution of those involved.
In this case, although the search of the defendant’s premises was illegal, the illegality arose because the officer holding the general search warrant was not in the proximity of the premises when they were raided. The police acted properly in all other respects. The injuries sustained by the defendant in the course of his arrest did not go beyond what might be expected to occur in the circumstances of such an arrest. There was no complaint before the Judge or before this court of unnecessary or unjustified violence by police. There was nothing in the conduct of the police or in the circumstances of the arrest which would justify reducing an appropriate sentence. It is unnecessary for us to determine in what circumstances, if any, a reduction of the sentence might be justified.
The reduction of the sentence for the plea of guilty
The appellant complains that the discount of 15 per cent for the plea of guilty was too low and ought to have been higher. It is submitted on behalf of the appellant that the case against him was not a strong case, and that he pleaded not guilty on the basis of legal advice. Further, that, ultimately, the firearms charges were withdrawn and, therefore, he should be treated as having pleaded at the first opportunity.
There is little substance in the appellant’s submission. The reduction of a sentence on account of a plea of guilty, and the amount of reduction, is a matter for the discretion of the sentencing Judge. An early plea of guilty reflects a defendant’s acknowledgement of his offending, an acceptance of responsibility and a willingness to facilitate the course of justice.[6] The appellant was caught red-handed. He is not to be penalised for pleading not guilty, nor is he to be penalised for challenging the admissibility of the evidence. On the other hand, having taken that course, it can hardly be said that he was truly contrite, or that he admitted his guilt at the earliest opportunity. If the evidence had been excluded, the appellant would have taken the advantage of his plea of not guilty and the case against him would have collapsed. The reduction which the appellant received was generous, and this ground of appeal fails.
[6] Cameron v The Queen (2002) 209 CLR 339, 343.
The influence of past associates

The appellant submits that the sentencing Judge failed to give sufficient weight to the fact that he committed the offences in 2007 after he discontinued his employment as a sales representative, due to past associates trying to make contact with him at work. Counsel submits that, as a consequence, the appellant became unemployed, was under pressure and committed the offences in 2007.
I observe that the appellant relies on a paragraph in the pre-sentence report in which the Community Corrections Officer reported as follows:
Since the defendant’s release on home detention in August 2006 he had been employed with Profix Auto Service Centre 379 Torrens Road Kilkenny working as a sales representative for automotive parts to wholesalers. The defendant stated that he discontinued employment due to ongoing past associates trying to make contact with him at work and his employer implied this was not good for his business.
There may be instances in which a person acts under fear or from threats as a result of which he may be considered to be less culpable than an offender who is not under pressure to offend.[7] The rationale for regarding such circumstances as a mitigating factor were discussed by King CJ in Trocko. He said:[8]
I think that as a matter of principle threats made to an offender which fall short of supporting a defence of duress may nevertheless be taken into account by way of mitigation of penalty. I think that that must be so for two reasons. The fact that a person acts out of fear in consequence of intimidation may well in certain circumstances affect the degree of his subjective or moral culpability with respect to the conduct for which he is before the court. Moreover, the same consideration may affect his prospects of rehabilitation. The fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequence that if the cause of the fear is removed, the offender will be unlikely to offend again. But whether in a particular case the fact that fear of intimidation has played a part in the commission of offences, should result in a reduction in penalty must depend on the circumstances of the particular case.
[7] R v Trocko (1988) 142 LSJS 412.
[8] Ibid, 415.
This not such a case. There is no evidence that the defendant was threatened. He may have chosen to leave his employment because prior associates had been attempting to contact him, but that is a far cry from a person offending because they are under some form of pressure. This ground of complaint must fail.
Rehabilitation
The appellant claims that the sentencing Judge failed to have sufficient regard to the appellant’s claim that he desired to and had overcome his drug addiction. There is no merit in this submission. The sentencing Judge concluded:
Although you now assert that you are drug free and are looking forward to release and to live interstate when given permission, there is a real risk that you will relapse into this type of offending again. You need to be deterred from re-offending.
Given the appellant’s prior offending, the Judge was entitled to conclude that there was a risk that the appellant would relapse. The Judge had regard to the claim that the appellant was drug free. He considered the question of rehabilitation. In my view, he was justified in his conclusions. No error has been demonstrated.
Should the sentences have been made concurrent?
Counsel for the appellant submits that the sentencing Judge should have directed that the sentences for the 2005 offending and the 2007 offending be served concurrently. Generally, if offences are unconnected, then the sentences should be cumulative. In Tichy,[9] Wells J considered the correct approach to imposing concurrent or cumulative sentences. He observed:[10]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[9] Attorney-General v Tichy (1982) 30 SASR 84.
[10] Ibid, 92-3.
The sentencing Judge was correct in regarding the offending as quite independent. Even when the Court imposes one sentence pursuant to s 18A of the Sentencing Act, in considering the final sentence the Court should have regard to the cumulative result if individual sentences were imposed.[11]
[11] R v Caplikas (2002) 132 A Crim R 544.
The offences were committed two and a half years apart. The offending in 2005 related to the manufacture of methylamphetamine. The offending in 2007 related to the possession of controlled substances for sale. The offending was of a different nature, although both sets of offences related to the misuse of drugs.
As to the two offences in 2007, the Judge correctly applied s 18A of the Sentencing Act and passed one sentence. The Judge was correct to order that the sentences in respect of that offending and the earlier offending in 2005 be served cumulatively.
Manifestly excessive
Counsel for the appellant submits that the starting point of ten years’ imprisonment for the 2007 offences is manifestly excessive. The Court was referred to Mangelsdorf,[12] in which the Chief Justice observed that, ordinarily, trading in large quantities of LSD or drugs he described as in the middle range of seriousness would ordinarily attract from four to five years’ imprisonment. In Craciun,[13] the Chief Justice referred to Mangelsdorf and observed that the standard he spoke of in that case was not to be applied inflexibly. Each case will depend on factors relating to both the circumstances of the offending and the offender’s background.
[12] R v Mangelsdorf (1995) 66 SASR 60, 72.
[13] R v Craciun (2006) 94 SASR 173.
The quantities of methylamphetamine and ecstasy tablets in this case indicate that the appellant was dealing in substantial quantities of drugs. Counsel submits that the quality of the methylamphetamine was low. That may be so but it was a significant quantity which supports the conclusion that the defendant was a mid-level dealer in drugs.
In considering the sentence for this type of offending, both general and personal deterrence are important factors to which the Court must have regard. If those who have a drug addiction deal in drugs to finance their own need for drugs, they must expect to receive severe sentences. The drug trade would be far less effective if middle-range dealers were eliminated from the supply chain.
The sentence must reflect the seriousness of the offending. Although comparisons with other cases are of limited assistance, I consider a starting point of ten years’ imprisonment exceeds the correct range of sentences for this offending. The starting point of ten years’ imprisonment for the offences of possession of a prohibited drug for sale is manifestly excessive in the circumstances of this case.
As to the 2005 offending, I consider the sentence was entirely appropriate, and I would not interfere with the Judge’s determination.
Totality
The appellant complains that the sentencing Judge failed to reduce the overall effect of the sentence, which his counsel submits was crushing. In sentencing the appellant, I have had regard to totality. I do not consider the sentences for the 2005 and 2007 offending to be crushing, and I would not further reduce the sentences from those I propose.
Conclusion
As the appeal unfolded, it became apparent that it should be allowed on the ground that the 2007 sentence is manifestly excessive, although the grounds particularised did not precisely identify that part of the sentence. In relation to those grounds upon which permission to appeal was refused by the single Judge, I would refuse permission to appeal.
I would allow the appeal in relation to the 2007 offences. I would reduce the starting point for the 2007 offences to seven years’ imprisonment, and reduce the sentence to five years’ imprisonment, having regard to the pleas of guilty. I would direct that that sentence be cumulative upon the sentence of two and a half years’ imprisonment for the 2005 offending, making a total of seven years and six months’ imprisonment, to be served cumulatively upon the unexpired period of one year and ten days’ imprisonment that the appellant is required to serve, having breached his parole. The result is a total of eight years, six months and ten days’ imprisonment, commencing on 18 August 2008. I would fix a non-parole of five years’ imprisonment, commencing on 18 August 2008.
WHITE J: I agree with the orders proposed by Sulan J and with his reasons.