R v Prideaux
[2009] VSCA 193
•28 August 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 691 of 2008
| THE QUEEN |
| v |
| WILLIAM PRIDEAUX |
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| JUDGES | ASHLEY, NEAVE JJA and KING AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 August 2009 |
| DATE OF JUDGMENT | 28 August 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 193 |
| JUDGMENT APPEALED FROM | R v Prideaux (Unreported, County Court of Victoria, Judge Wodak, 10 June 2008) |
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CRIMINAL LAW – Sentence – Appellant pleaded guilty to trafficking of various drugs of dependence and possession of various drugs of dependence – New evidence – Whether appellant unable to receive medical treatment in custody – Whether double punishment – Whether sentence manifestly excessive – Whether trial judge erred in sentencing outside the scope of the presentment – Appeal allowed – Appellant re-sentenced
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr T Kassimatis | Galbally Rolfe |
ASHLEY JA:
For the reasons given by Neave JA, I would allow the appeal and would re-sentence the appellant as her Honour proposes. I wish to say something additional, however, about one aspect of the material placed before this Court.
It appears to me that in early October 2008 the appellant in substance frustrated the attempt by the authorities to have his knee condition re-assessed with a view of determining whether surgery was necessary. Further – (1) no satisfactory material was placed before this Court of the appellant’s alleged subsequent attempts to revisit the matter; (2) so far as the material before this Court disclosed the situation, the appellant’s requests for conservative treatment coincided with the imminence of his s 582 application, and thereafter his appeal; (3) the appellant’s revealed attitude to the conservative treatment which he has been offered has not always been indicative of a man in great distress.
In those circumstances, whilst accepting that the appellant’s knee condition is productive of ongoing pain, I am not persuaded that the magnitude of the pain is such as to constitute it a circumstance significantly mitigating sentence.
NEAVE JA:
Introduction
On 29 May 2008, the appellant, William Francis Prideaux, pleaded guilty to four counts of trafficking in various drugs of dependence and three counts of possessing various drugs of dependence. After hearing a plea in mitigation of sentence, the learned trial judge sentenced the appellant on 10 June 2008 as follows:
Count Offence Term Cumulation 1 Trafficking – ecstasy between 3 August and 13 September 2007 30 months 2 Trafficking – amphetamine
on 17 September 200730 months 4 months on count 1 and on all other counts 3 Trafficking – cannabis L between 3 August and 13 September 2007 30 months
4 months on count 1 and on all other counts 4 Possession – ecstasy on 13 September 2007 6 months 1 month on count 1 and on all other counts 5 Possession – amphetamine on 13 September 2007 6 months 2 months on count 1 and on all other counts 6 Possession – cannabis L on 13 September 2007 6 months 1 month on count 1 and on all other counts 7 Trafficking – cocaine on 17 September 2007 18 months 4 months on count 1 and on all other counts
The orders for cumulation made by his Honour, resulted in a total effective sentence of three years and 10 months’ imprisonment. His Honour fixed a non-parole period of two years’ imprisonment.
The appellant now appeals against his sentence.
Background to the offences and the offending
In July 2007 police in Geelong began investigating trafficking of various drugs in the Geelong, Ocean Grove and Barwon Heads areas. As part of that operation the appellant’s mobile phone was monitored and his calls intercepted between 3 August 2007 and 13 September 2007. Approximately 236 of the 1,000 phone calls monitored related to the appellant supplying customers with various quantities of amphetamine, ecstasy and cannabis L. The appellant’s car was stopped by the police on 13 September 2007. The police searched the car, took the appellant back to his home and searched those premises.
The searches of the appellant’s home revealed, among other things, two mobile phones, deal bags, testing canisters and digital scales, together with one gram of amphetamine, 27 grams of cannabis L and five ecstasy tablets. Mr Prideaux was interviewed by the police at the Geelong Police Station, where he admitted to driving to Melbourne every week to buy small quantities of drugs for friends on a non-profit basis.
After Mr Prideaux was arrested, a further search of his car conducted on 17 September 2007 revealed plastic bags containing 21.5 grams of cocaine and 22.54 grams of methylamphetamine in a hidden compartment. When re-interviewed by the police the appellant initially denied knowledge of the drugs in his car. He later pleaded guilty to the seven offences described above. At the plea hearing his counsel said that he was instructed that the drugs in the car were to be used at the appellant’s birthday party. The appellant did not dispute that the cocaine had a street value of approximately $8000 and the methamphetamine of $4000.
The appellant was 53 years old during the period in which he committed the offences and has been a disability pensioner since 1998. He suffers from chronic pain in his left knee, which was injured in an accident. He also has a number of other health problems. I describe his knee condition and other health difficulties in more detail below.[1]
[1]See [33]-[47] below and R v Prideaux (Unreported, Judge Wodak, 10 June 2008) (‘Reasons’), [28]-[33].
The appellant has four prior convictions for possession of a drug of dependence, one conviction for possession of a restricted substance and one conviction for cultivation of a drug of dependence. He also has a lengthy history of convictions for offences including larceny, assault, handling stolen goods, robbery, burglary, and theft.
Grounds of appeal
The first and second grounds of appeal were as follows:
1. The learned sentencing Judge’s discretion ought to be re-exercised by this Court as a consequence of:
a)evidence of events occurring subsequent to sentence but which are relevant to an appreciation of the true significance of facts in existence at the time of sentence; and
b)its being necessary to avoid a miscarriage of justice.
…
2. The learned sentencing Judge erred by proceeding, on the offence the subject of Count 5 to:
a)convict the applicant;
b)impose an individual term of six months’ imprisonment; and
c)cumulate two months of the sentence imposed;
and, by so doing, subjected the applicant to double punishment.
The third ground of appeal was that the individual sentences, the total effective sentence and the non parole period were manifestly excessive.
Counsel for Mr Prideaux sought and was granted leave to add a fourth ground of appeal at the hearing. This ground was as follows:
The learned sentencing judge erred by sentencing the appellant
a)on the basis that he was supplying various amounts of amphetamines regularly and daily; and
b) outside the scope of count 2 on the presentment.
Grounds of appeal two and four.
Count five of the presentment related to the appellant’s possession of one gram of amphetamine, which was found when his home was searched on 13 September 2007. Under s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981, where a person is convicted of possession of a drug of dependence[2] and the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in that drug, the maximum term of imprisonment is one year. In any other case it is five years.
[2]Possession of not more than a small quantity of cannabis or tetrahydrocannibol is dealt with in s 73(1)(a).
The learned judge was satisfied that the appellant was in possession of the ecstasy and cannabis L for his own use, but took a different view of the appellant’s possession of amphetamine. His Honour said that:
The quantity of amphetamine is more than a small quantity[3], and your trafficking in that substance satisfies me that you were in possession of it within s73(1)(c) Drugs, Poisons and Controlled Substances Act, and thereby liable to be sentenced taking account of the higher maximum penalty for possession, set out earlier.[4]
[3]See Drugs, Poisons and Controlled Substances Act1981 Schedule 11, Part 3.
[4]Reasons, [48].
Count two related to trafficking in amphetamine on 17 September 2007. A person who trafficks in a drug of dependence is liable to a maximum term of imprisonment of 15 years.[5]
[5]Drugs, Poisons & Controlled Substances Act 1981 s 71AC.
As I have said count 2 was based on the discovery of more than 22 grams of methylamphetamine in a hidden compartment in the appellant’s car. At the plea hearing the judge asked counsel for the Director whether count 2 should be amended to refer to methylamphetamine. Counsel for the Director agreed that this should be done but said that it was clear that the count related to the drug found in the car.
Counsel for Mr Prideaux said that he had pleaded guilty to that count before any tests were done on the drugs found in the car. He said that ‘It was news to [Mr Prideaux] if it was speed [i.e. amphetamine]’ and that Mr Prideaux had thought he was buying ecstasy, but that ‘Whatever it is, he’s pleading guilty.’ On appeal there was no reliance on the fact that the drug found in the car was in fact methylamphetamine, (a component of ecstasy) rather than amphetamine. Thus nothing turns on the matter.
The second ground of appeal alleges that the appellant should not have been convicted and sentenced for possession of amphetamine (count 5), as well as for trafficking in that drug (count 2). Counsel for the appellant submitted that his Honour had held that the appellant was in possession of one gram of amphetamine found in his home for the purpose of trafficking, so that the factual basis for that offence was ‘part and parcel’ of the offence of trafficking in count 5. Since both counts rested on the same factual basis it was said that the learned sentencing Judge had doubly punished the appellant by imposing separate sentences for these offences and by ordering that two months of the sentence imposed on count 5 should be cumulated on the base sentence.
Because I consider that ground 4 is made out is unnecessary to decide whether ground 2 also succeeds. However in my view the conviction and sentencing of the appellant on both counts did not subject him to double punishment. The elements of counts 2 and 5 were not the same and nor were the elements of one offence included in the other. Thus the appellant could not have relied on his conviction on count 2 as a plea in bar to count 5. [6]
[6]See Pearce v R (1998) 194 CLR 610, 620; R v Langdon and Langdon (2004) 11 VR 18.
Nor was the appellant punished more than once for the same act, contrary to s 51 of the Interpretation of Legislation Act 1984. The count of possession of amphetamine related to the drug found in his home on 13 September 2007, whilst the count of trafficking in amphetamine related to an offence committed on 17 September 2007.
Further, it is not the case that his Honour made a positive finding that the appellant possessed the amphetamine found in his house on 13 September 2007 for the purpose of trafficking. His Honour held that s 73(1))(b) did not apply, because he was not satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking. Although this was relevant to the maximum sentence which could be imposed for the offence, it did not amount to a finding beyond reasonable doubt that the amphetamine was in the appellant’s possession for the purpose of trafficking.
Although ground 2 would therefore fail, in the course of argument it became apparent that Crown submissions at the plea hearing may have led his Honour into error in another respect. It was in these circumstances that we granted leave to the applicant to add ground 4.
As I have said, count 2 on the presentment alleged that Mr Prideaux trafficked in amphetamine on 17 September 2007. The Drugs, Poisons & Controlled Substances Act 1981 s 70 defines ‘traffick’ in relation to a drug of dependence as including:
(a)prepare a drug of dependence for trafficking;
(b)manufacture a drug of dependence; or
(c)sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence;
In his opening address at the plea hearing counsel for the Crown said that:
Investigators identified the prisoner was supplying various amounts of methylamphetamine, ecstasy and cannabis …
Calls intercepted by investigators indicated that Prideaux was providing people with various amounts of amphetamines. Most of this occurred on a regular and daily basis.
In his sentencing reasons his Honour initially referred to counsel’s opening statement as follows:
After a warrant was obtained, police intercepted and monitored your use of two mobile phones between 3 August 2007 and 13 September 2007. About 236 out of 1,000 phone calls monitored were considered to be drug related. You were supplying methylamphetamine, ecstasy and cannabis L, and using the mobile phones for the purposes of these transactions.
Monitoring of the phone calls revealed that you used code words in these transactions, including ‘white flippers’, to mean ecstasy; ‘paper’ or ‘fold’, meaning cash money; and ‘G’s’, to refer to grams.
You were supplying varying amounts of amphetamines regularly, and daily.[7]
[7]Reasons [11]-[13].
His Honour noted that the product of the search of the appellant’s home was the discovery of one gram of amphetamine, 27 grams of cannabis and five ecstasy tablets.[8] He related these drugs to counts 5, 6 and 4 respectively. His Honour then referred to the finding of the drugs in the appellant’s car on 17 September 2007 and continued as follows:
On 17 September 2007 your car was searched again. That search produced a plastic bag containing 21.5 grams of a white powder substance which tested positive to cocaine, and a plastic bag containing 22.54 grams of a white powder substance which tested positive to methamphetamine…
Following the discovery of these items, you were again interviewed by police. Although you admitted owning and using the vehicle in which these items were found, you denied knowledge of the drugs found in your car. By your plea of guilty on 29 May 2008, you admit trafficking in amphetamine,[9] and cocaine[10] on 17 September 2007. The Crown cannot accurately determine the amounts of amphetamine and other drugs you trafficked.[11] (Emphasis added.)
[8]Ibid [15].
[9]Count 2.
[10]Count 7.
[11]Reasons [17]-[18].
Counsel for the appellant submitted that the reference to the appellant supplying amphetamines regularly and daily, combined with the comment that the amounts of amphetamine trafficked could not be accurately determined, showed that his Honour had treated count 2 as covering trafficking in amphetamine between 3 August 2007 and 17 September 2007, although count 2 in fact related only to trafficking in amphetamine on 17 September 2007. Thus it was said that his Honour had sentenced the appellant on an incorrect basis. Counsel for the appellant sought leave to add a fourth ground of appeal in the terms set out above.
Counsel for the Crown did not strenuously resist the grant of leave to add ground 4. However he submitted that the sentencing remarks read as a whole showed that his Honour had not mistakenly sentenced the appellant for trafficking in amphetamine between 3 August 2007 and 13 September 2007. Counsel said this was apparent from the fact that his Honour had clearly differentiated between counts 1 (trafficking in ecstasy between 3 August 2007and 13 September 2007), and 3 (trafficking in cannabis L between 3 August 2007and 13 September 2007) and count 2, which referred only to trafficking on 17 September 2007.
In my opinion the judge’s reference to the appellant’s trafficking in amphetamine on a regular and daily basis, and his comment that the amount of amphetamine trafficked could not be ascertained, supports the submission of counsel for the appellant. His Honour’s later comment is at odds with the Crown submission that his Honour sentenced the appellant only for trafficking in the 22.5 grams of amphetamine found in the appellant’s car on 17 September 2007.
I consider that ground 4 is made out and the appellant must be re-sentenced. My conclusion on that matter makes it unnecessary to consider ground 3, which alleges manifest excess.
Re-sentencing the appellant
The appellant’s knee condition
The first ground of appeal sought the admission of new evidence relating to Mr Prideaux’s chronic knee pain. Counsel for the applicant contended that his client was not able to have surgery on his knee while in prison, although this had been anticipated when he was sentenced.[12] While it is unnecessary to consider ground 1, evidence about the current condition of the appellant’s knee and his other health problems is relevant in re-sentencing him, because these conditions make imprisonment more burdensome for him than for a healthy offender.[13]
[12]The principles relating to the admission of new evidence are summarised in R v Duy Duc Nguyen [2006] VSCA 184, [36] ( Redlich JA).
[13]R v Eliasen (1991) 53 A Crim R 391.
At the plea hearing Mr Prideaux’s counsel relied on two medical reports from his general practitioner Dr David Shap, dated 26 May and 3 October 2007 and a report from an orthopaedic surgeon, Mr David Young dated 23 May 2008.
Both Dr Shap’s reports are in similar terms. In his second report, Dr Shap said:
This man has been a patient of mine for several years.
He suffers from numerous physical as well as psychological ailments, all which could be aggravated by incarceration.
He has a long history of Anxiety and Depression and requires regular medication with Murelax, an anti anxiety medication.
He has chronic L knee pain and is awaiting a second knee operation under the care of Mr David Young, Orthopaedic surgeon.
Bill is now having to use a stick to get around due to chronic L knee pain and weakness.
He is also awaiting a Colonoscopy at Monash Hospital, as advised by his Bowel Surgeon, Mr Paul Sitzler. This is to investigate undiagnosed Rectal bleeding.
He suffers from Chronic Hepatitis C infection, which causes extreme lethargy, nausea and weight loss.
It would be far preferable if Mr Prideaux could be managed in the community, in order to sort out and manage his numerous health problems.
In his sentencing reasons His Honour summarised Mr Young’s report as follows:
Mr Young reports that you had bilateral knee arthroscopies in November 2006 in which extensive damage was found in the articular cartilage at the rear of your left patella, for which a chondroplasty was performed. You informed Mr Young that since that procedure, the pain in your left knee has worsened. Mr Young performed an arthroscopic procedure on your left knee in November 2007, and found minor degenerative change to the posterior horn medial meniscus, and extensive chondral loss over the central ridge of the rear of the patella. Mr Young describes the lateral compartment and tibio-femoral compartment as being healthy.
Mr Young administered injections to stimulate articular cartilage regeneration at the rear of the patella, but without success. He reports that you have not obtained relief in your symptoms, and remain dependent on a single crutch, and knee support. You walk with what Mr Young describes as a considerable limp. He considers that you have a very significant disability. He recommends a patello-femoral resurfacing arthroplasty, which should alleviate most of your pain and restore good function to your left knee.[14]
[14]Reasons [28]-[29].
His Honour found that Mr Prideaux has a painful and physically limiting condition in his left knee. However he said:
This must be placed in perspective. [You] have admitted that for the purpose of committing the offences for which you are now to be sentenced, and to visit your brother, sister and former wife, you have travelled to and from the Bellarine Peninsula to Melbourne weekly by car. Despite your physical limitations and ailments, you have some capacity for activity, although you are not engaged in gainful employment.[15]
[15]Ibid [32].
His Honour accepted Mr Young’s opinion that Mr Prideaux should have the operation and that he was willing to have it performed. His Honour said that:
Mr Young’s report does not suggest that the operation is required urgently, although I accept that if the operation takes place, and is successful, you will be better off as Mr Young explains. The submission that your condition will probably deteriorate, if you receive a sentence of immediate imprisonment, - does not appear supported by Mr Young or by Dr Shap.
There is no evidence whether you could undergo such a surgical procedure, and perform the post operative rehabilitation whilst serving a custodial sentence. I proceed on the basis that if it was determined that you needed the operation and post operative rehabilitation, it would be provided. I accept that recovery from the operation would most likely be more difficult for you in prison than it would in the community.[16]
[16]Ibid [39]-[40].
On 28 April 2009 Mr Young wrote to the appellant’s solicitor as follows:
Thank you for making contact with my office seeking an updated medical report on Mr Prideaux. Unfortunately I have not reviewed him since 23/5/2008 but on the basis of my intimate knowledge of his left knee condition where he has advanced patellofemoral arthritis I would imagine this condition to be continuing to deteriorate. Thus, this is no surprise that I hear he is struggling with pain in his left knee and is still reliant on a walking stick in his right hand and therefore I remain of the view that he still requires a left patellofemoral resurfacing arthroplasty. I was anticipating have proceedings with this surgical intervention 12 months ago but circumstances have prevented this. Thus, I would be strongly recommending that he undertake this surgical procedure even though he is indisposed for the sake of enabling his left leg to recover to improve the function and therefore hopefully his general well being and employability upon discharge from prison. He is in an ideal situation at the present time to be able to do the necessary rehabilitation.
Thank you for considering a request to be able to proceed with surgery while an inmate.
Before he was sentenced, Mr Prideaux was considering having the resurfacing arthroplasty recommended by Mr Young. There is no affidavit from the appellant about the current state of his knee, and the medical evidence on this issue is scant. Mr Prideaux relies on affidavits sworn by his solicitor Leon Fluxman, on 30 April 2009 and 18 August 2009, to which records of his consultations with prison medical staff are exhibited.
In his first affidavit Mr Fluxman deposed that on 18 July 2008 Mr Prideaux was seen by Mr Dooley, an orthopaedic surgeon who advised that he would not recommend the procedure recommended by Mr Young and referred Mr Prideaux to the Orthopaedic Specialist Outpatients Department at St Vincent’s Hospital Melbourne, for a second opinion. On 27 or 28 July 2008 Mr Prideaux was transferred to Dhurringile prison.
Mr Fluxman deposed that on 25 September 2008 Dr Foti Blaher, the Medical Director of St Vincent’s Correctional Health Service, wrote to the appellant advising him that he had reviewed his medical file. He referred to Mr Dooley’s recommendation that the appellant should have a second opinion and that if surgery was recommended he would be put on a public hospital waiting list. He said that ‘as I do not know what category of urgency would be allocated to your surgery by the specialist, I cannot comment on how long you would have to wait. However I think it is unlikely to occur in the next three to six months.’
On 8 October 2008 Mr Prideaux replied to Dr Blaher and said that as it was most unlikely that he would receive the procedure, he would appreciate it if he were not transferred back to Port Philip prison for a second opinion, as at that stage he would find the process too stressful and of no use. After receiving that letter, Dr Blaher wrote to Mr Prideaux on 23 October 2008 advising that he had cancelled the appointment that had been made for Mr Prideaux to receive a second opinion.
Mr Prideaux is now being held in Port Philip Prison. He has not yet been given an appointment for a second opinion as to whether the further surgery would assist him. After he was incarcerated, he was initially prescribed Tramal to alleviate the pain in his knee but suffered side effects from that drug. According to prison medical record Mr Prideaux continues to complain of severe knee pain. He was prescribed Panadeine Forte on 18 March 2009.
Mr Fluxman also deposes that Mr Prideaux has seen a physiotherapist whilst in prison. He has been offered a tight tape bandage for his knee which he says provides only limited and temporary relief. He has asked to be provided with tape so that he can strap his knee himself but this request has been denied and he is required to see the physiotherapist if he wishes to have his knee taped.
Mr Fluxman deposes that the respondent has also seen a psychiatric nurse and complained that the chronic and severe pain in his knee makes him irritable and frustrated and that he is unable to sleep. He has requested medication to assist him to sleep but this was not permitted. As at 6 August 2009 he was awaiting a consultation with a psychiatric registrar.
Like the learned sentencing judge, I accept that the appellant’s chronic knee pain is a mitigating factor, though the absence of recent medical evidence makes it difficult to determine its precise significance. The appellant’s chronic Hepatitis C infection must also be taken into account.
Dr Shap’s report of 3 October 2007 indicates that Mr Prideaux also suffers from anxiety and depression. This calls for application of the principles in R v Verdins,[17] to the extent that they are applicable. Though evidence as to the appellant’s current mental state is based largely on instructions to his solicitor, I accept that because of his anxiety and depression the sentence will weigh more heavily upon him than it would on a person not suffering from these conditions.[18]
[17][2007] VSCA 102.
[18]See Ibid [32].
In his sentencing reasons his Honour noted that the fact that Mr Prideaux had been able to manage with comparatively little treatment apart from medication for anxiety was consistent with ‘mild to moderate anxiety and depression’. In these circumstances I see no reason for departing from his Honour’s view that the appellant’s depression and anxiety should result in relatively modest moderation of the principles of general and specific deterrence.
His Honour accepted that Mr Prideaux used cannabis L and ecstasy to ameliorate his knee pain. This reduces his culpability in relation to counts 4 and 6, but not in relation to the other counts The appellant must also be given credit for his guilty plea.
The appellant was convicted of trafficking ecstasy and cannabis L over approximately six weeks. Count 2 relates to trafficking on a single day. The 15 year maximum term of imprisonment for trafficking indicates the seriousness of the offences covered by counts 1, 2 and 3, and 7. However his Honour accepted that the appellant’s trafficking was at street level, that large quantities of drugs were not involved and that the appellant committed these offences largely to fund his own drug consumption. In R v Koumis it was accepted that the sentence imposed on a person who trafficked in drugs to feed an addiction will normally be lower than the sentence imposed on a person motivated solely by greed.[19]
[19][2008] VSCA [49]-[50].
The appellant has an extensive criminal history, including convictions for drug offences. Though this is the first time that he has been convicted of trafficking, he has previously been convicted of cultivation of a drug of dependence
Having regard to these sentencing considerations and to the other matters to which his Honour referred in his comprehensive sentencing reasons, I would re-sentence the appellant on the trafficking counts as follows:
Count Offence Term Cumulation 1 Trafficking – ecstasy between 3 August and 13 September 2007 30 months Base sentence 2 Trafficking – amphetamine
on 17 September 200718 months 4 months on count 1 and on all other counts 3 Trafficking – cannabis L between 3 August and 13 September 2007 30 months
4 months on count 1 and on all other counts 7 Trafficking – cocaine on 17 September 2007 18 months 4 months on count 1 and on all other counts
The lower sentences imposed on counts 2 and 7 reflect the fact that the appellant was presented for trafficking in the relevant drugs on a single day.
I would re-sentence the appellant on the possession counts as follows.
Count Offence Term Cumulation 4 Possession – ecstasy on 13 September 2007 4 months 1 month on count 1 and on all other counts 5 Possession – amphetamine on 13 September 2007 6 months 2 months on count 1 and on all other counts 6 Possession – cannabis L on 13 September 2007 4 months 1 month on count 1 and on all other counts
The orders for cumulation tabulated above result in a total effective sentence of imprisonment for three years and ten months. The appellant should be required to serve a minimum term of two years before becoming eligible for parole. The period of pre-sentence detention is declared at 466 days.[20]
[20]This period has been calculated as being the 22 days declared by the judge on 10 June 2008 and the 444 days between that date and today.
KING AJA:
I agree.
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