R v Quinn

[2012] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v QUINN

[2012] SASCFC 102

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Stanley)

28 August 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY

Application by the Director of Public Prosecutions for permission to appeal against sentence - the defendant pleaded guilty to three counts of unlawful sexual intercourse with a child under 12, four counts of indecent assault and three counts of gross indecency - the defendant was sentenced to the one term of imprisonment of 14 years in respect of all offending - a non-parole period of five years was fixed - the defendant, at the time of the offending, was a principal at a rural school - whether the non-parole period was wholly inadequate.

Held per Gray J (Anderson and Stanley JJ concurring): Permission to appeal against sentence granted - appeal allowed - the non-parole period of five years was so low as to shock the public conscience - head sentence of 14 years imprisonment imposed with a non-parole period of nine years fixed.

Criminal Law (Sentencing) Act 1988 (SA) s 10 and s 18A; Criminal Law Consolidation Act 1935 (SA) s 49, s 56, s 58, s 340 and s 353; Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA) s 5, referred to.
R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v D (1997) 69 SASR 413; R v Smith (1987) 44 SASR 587; Muldrock v The Queen (2011) 244 CLR 120; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

R v QUINN
[2012] SASCFC 102

Court of Criminal Appeal         Gray, Anderson and Stanley JJ

GRAY J.

1. This is an application by the Director of Public Prosecutions for permission to appeal against sentence.[1] 

   [1]    In accordance with the practice of the Court, in the event that permission is granted, the appeal is to be heard instanter.

   Introduction

2. On 15 February 2012, the defendant and respondent, Thomas Joseph Quinn, pleaded guilty in the District Court to three counts of unlawful sexual intercourse with a child under 12,[2] four counts of indecent assault,[3] and three counts of gross indecency.[4]  The maximum penalties for these offences are, in the case of unlawful sexual intercourse with a person under 12 years of age, life imprisonment, in the case of indecent assault, eight years imprisonment and in the case of gross indecency, three years imprisonment.

   [2] Contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA).

   [3] Contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).

   [4] Contrary to section 58 of the Criminal Law Consolidation Act 1935 (SA).

3. On 15 May 2012, the defendant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of 14 years imprisonment in respect of all offending. In arriving at this sentence, the District Court Judge made a reduction of three years on account of the defendant’s pleas of guilty and contrition. A non-parole period of five years was fixed. The sentence of imprisonment took effect immediately.

4. The Director accepted that the head sentence was within the appropriate range.  However, the Director sought permission to appeal, complaining that a wholly inadequate non-parole period had been fixed.  It was the submission of the Director that the Judge failed to give adequate weight to the seriousness of the defendant’s offending, and in particular, to the need for punishment and general deterrence.  Further, it was said that the Judge placed too much weight on the defendant’s health, age and depression as well as difficulties that the defendant may face in custody.  In the Director’s submission, the non-parole period was so low as to shock the public conscience.

5. Counsel for the defendant accepted that the non-parole period was unusually short, but submitted that there were special circumstances that warranted the merciful approach adopted by the Judge.  It was contended that the Judge had proper regard to medical evidence in supporting a conclusion that the defendant’s health would be compromised while in custody.  Finally, it was said that, although the non-parole period was merciful, it represented a proper exercise of the sentencing discretion.

   Background

6. The offences to which the defendant pleaded guilty involved multiple sexual acts committed against three complainants, AHT, BTC and JPT.  All complainants were students of a rural school.

7. At the time of the offending conduct, the defendant was employed at the school as the principal.  He also worked as a classroom teacher in the grade four to grade seven class, which was one of only two classes at the school.  The defendant gained access to each complainant through his position at the school.

8. The sexual acts ranged from the defendant masturbating in the presence of a victim, to indecent touching, fellatio and anal sexual intercourse.

9. AHT was born on 3 September 1976.  He commenced his schooling at the primary school in 1982 when he was five years of age.  The charged act involved the defendant performing an act of fellatio on AHT while on a school camp.  The camp was held in 1984 or 1985 when AHT was in about grade four and was about nine years of age.  The defendant shared a cabin with AHT.  In addition to the charged act the defendant also caused AHT to touch his erect penis, thrust his erect penis against AHT’s stomach and masturbated and ejaculated in AHT’s presence.  These acts occurred over one or two days.  The defendant also behaved inappropriately towards AHT in the classroom.  The defendant had AHT sit on his lap, tickled him and unzipped his trousers.  AHT was left to walk back to his seat doing up his trousers.

10. BTC was born on 17 July 1973.  BTC attended the primary school from reception in 1978 to 1985 when he finished grade seven.  BTC was friends with BT, the older brother of AHT.  BT was the same age as BTC.  BTC and BT would regularly sit on the defendant’s lap in class.  While sitting on the defendant’s lap, the defendant would often rub BTC’s leg.

11. When BTC was in grade six or seven and aged about 11, the defendant began driving BTC and BT to his house at lunch time to help with chores such as stacking bottles and cans.  Both boys also attended the defendant’s house after school as time went on.  On an occasion when BTC and BT were at the defendant’s house during a lunch break, the defendant undressed in front of them in the lounge room.  The defendant lay on the lounge room floor and caused BTC and BT to masturbate him until he ejaculated.  One or two months later, BTC and BT returned to the defendant’s house at lunch time.  The defendant removed his clothes and caused both boys to touch his penis and testicles until he ejaculated.

12. During another lunch break when BTC was at the defendant’s house alone, the defendant undressed, lay down on the lounge room floor and caused BTC to masturbate him.  The defendant admitted this uncharged act.  BTC slept over at the defendant’s house on an occasion with two other younger children.  During the course of the night, BTC went into the defendant’s bedroom.  The defendant touched BTC’s penis and caused BTC to touch his penis.  The conduct progressed to the defendant engaging in anal intercourse with BTC.  BTC returned to the defendant’s bedroom the following morning after the defendant called out for him a number of times.  The defendant touched BTC’s penis again.  BTC visited the defendant’s house on another occasion at night time.  BTC went to the bedroom where the defendant touched his penis and put BTC’s hand on his penis.  The defendant rubbed himself against BTC before engaging in anal intercourse.

13. JPT was born on 9 February 1972.  He was enrolled at the primary school in May 1983, when he was 11 years old and in about grade six.  In the classroom the defendant would cuddle JPT, have JPT sit on his lap and put his hand on JPT’s knee. 

14. At times JPT would be sent to the defendant’s office by another teacher and the defendant himself often demanded that JPT go to his office.  The defendant created situations which would lead to JPT being sent to the office.  The defendant touched JPT’s penis in his office at the school many times and the defendant also caused JPT to touch his penis on more than 20 occasions.  On some occasions when JPT entered the office, the defendant was sitting at his desk masturbating.

15. JPT went to the defendant’s home approximately 20 to 30 times.  On almost every occasion there was sexual contact between them.  JPT also stayed the night at the defendant’s home.  The sexual activity usually occurred in the defendant’s bedroom and involved JPT touching the defendant’s penis until he ejaculated or the defendant touching or sucking JPT’s penis.  Occasionally the sexual acts would occur in the back room of the house.  The defendant would hang upside down naked on an exercise frame and then masturbate in JPT’s presence.  On occasions while hanging from the exercise frame the defendant caused JPT to touch his penis.  On an occasion when JPT was sleeping in the defendant’s bed, the defendant put his penis in JPT’s mouth.  JPT felt as though his mouth was tearing at the corners.  On another occasion when JPT stayed the night, the defendant engaged in anal intercourse with him.  JPT cried during the act. 

16. JPT also travelled with the defendant in his sports car on numerous occasions.  The defendant touched JPT’s penis on at least 30 occasions while they were in the car together.

    The Sentencing Judge

17. The Judge, having summarised the circumstances of the offending, then remarked:

    You pleaded guilty before me on 15 February 2012 at the commencement of your trial for these offences. The lateness of pleas restricts the leniency that they attract. However, I accept that you understand that your behaviour has caused considerable pain and suffering and that you have accepted responsibility for your actions. You have no previous convictions and you have had no offending in the 26 or so years since this offending.

    I have heard and read the victim impact statements from all three complainants, all of whom express the confusion, anger and grief that your actions have caused them and their respective families. They all expressed a feeling of betrayal. They say that your actions have adversely affected their lives. That is very plain, for example, from victim C, who read out his victim impact statement.

18. The Judge traced the chronology of the defendant’s life, noting that he came from rural South Australia and, having qualified as a teacher, obtained employment first in the Adelaide metropolitan area as a primary school teacher and then as the principal of the country school where his criminal offending occurred.  The Judge noted that when the school closed in 1986 the defendant moved interstate and ceased teaching after about nine months.  In 1995 he became entitled to receive a disability pension and has remained on that pension ever since. 

19. At the time of sentencing, the defendant was living in Queensland with his male partner of 20 years.  The defendant was 62 years of age at the time of sentencing and his partner was 60 years of age. 

20. The Judge had regard to two psychiatric reports and a report from the doctor with the specialist care of the management of the defendant for his HIV infection and other conditions.  The Judge in this respect observed:

    I have read reports prepared by two psychiatrists, Dr Trevor Lotz and Dr Georgia Ash. Dr Lotz indicated that you are relatively unstable and in a state of depression with features of anxiety. Both psychiatrists state that you have expressed suicidal ideation. Dr Lotz is of the opinion that a period of imprisonment will aggravate your psychiatric condition.

    I have also had regard to two reports from Dr John Patten, who has provided you with specialist care for the management of your HIV infection as well as other conditions. Dr Patten also expressed his concerns should a custodial sentence be imposed, due to the chronic conditions from which you suffer. Among other conditions, you suffer from hepatitis B, hypertension, and an enlarged prostate.

    I have also read a summary of your health history provided by Dr Rafiei, which sets out your current poor state of health.

21. The Judge then noted that the defendant’s offending was very serious:

    Your offending is very serious. Section 10(4) of the Sentencing Act provides that a primary policy of the criminal law is to protect children from sexual predators. It was a serious breach of trust to offend against your students. It is aggravated by occurring at a time when they were so young. The offending was against three victims over a period of about four years.

    I bear in mind your guilty pleas, your lack of prior court appearances and subsequent court appearances, and your good work record.

    …

    The Court of Criminal Appeal in this State has indicated an increased level of punishment for multiple offences of unlawful sexual intercourse with a child under 12 over a period of time. The court has indicated a starting point of 12 years imprisonment before a reduction for any mitigating factors. I appreciate that not all of the offending involved children under 12.

    …

    The offending against victim A was when he was under 12, as was some of the offending against victim B. The offending against victim C was when he was over 12, but not very much.

22. When fixing the non-parole period, the Judge remarked:

    You are 62. You are HIV positive and you have a number of chronic illnesses which will shorten your life. You suffer, and have suffered for many years, from depression. It is likely that imprisonment will exacerbate your depression and the treatment of your physical illnesses will be difficult. I am satisfied that imprisonment will be significantly more difficult for you than for someone younger and in better health. That consideration cannot outweigh the need for condign punishment, but it does I think mean that I should fix lower a non-parole period than I would otherwise do. I fix a non-parole period of five years.

23. As earlier noted, the Judge imposed the one head sentence of 14 years imprisonment and fixed a non-parole period of five years. 

    The Application for Permission

24. The Director will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or, if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.[5]  An error in the sentencing process may be inferred from a result that is manifestly unreasonable or plainly wrong, or by identifying the adoption by a sentencing Judge of an incorrect principle, the giving of weight to some extraneous or irrelevant matter, the failure to give weight to some material considerations, or the making of a mistake as to the facts.[6]

    [5]    R v Nemer (2003) 87 SASR 168, [22]-[24]; R v Osenkowski (1982) 30 SASR 212, 212-213. See further and generally Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321.

    [6]    Dinsdale v The Queen (2000) 202 CLR 321, 339-340.

25. The basis for the “rare and exceptional” test for Crown appeals lies with the principle of double jeopardy, as explained by the majority of the High Court in Everett:[7]

    … An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed …

    [Footnote omitted.]

    [7]    Everett v The Queen (1994) 181 CLR 295, 299.

26. Earlier, in Malvaso, Deane and McHugh JJ noted that the Crown appeal against sentence:[8]

    …represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy…

    [8]    Malvaso v The Queen (1989) 168 CLR 227, 234.

27. Furthermore, the discretion of a sentencing Judge in fixing a sentence is not to be interfered with lightly. As King CJ noted in Osenkowski:[9]

    It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform…

    [9]    R v Osenkowski (1982) 30 SASR 212, 212-213.

28. Finally, an error must be identified before a sentence may be interfered with.  As Kirby J explained in Dinsdale:[10]

    … As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.

    [Footnote omitted.]

    Such error may be inferred from a result that is manifestly unreasonable or plainly wrong.  However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[11]

    [10]   Dinsdale v The Queen (2000) 202 CLR 321, 339-340.

    [11]   Dinsdale v The Queen (2000) 202 CLR 321, 339-340. See further the authorities on Crown appeals against sentence as set out in R v Marikar [2010] SASCFC 36.

    Deterrence and Punishment

29. For sexual offences committed against children, paramount consideration should be given to the need for deterrence and punishment.  In cases involving this kind of offending, where there has been a course of conduct by a person in a position of trust and authority, the starting point should be a substantial head sentence of imprisonment.[12]  Penalties should reflect community feelings of outrage and revulsion about offences of this type and the Court is to do what it can to protect children from such offending.

    [12]   R v D (1997) 69 SASR 413.

30. The gravity of the offending and the need for deterrence and punishment are to be considered along with the defendant’s circumstances, including his prospects for rehabilitation. It is to be accepted that a non-parole period may give greater emphasis to matters related to rehabilitation. However, personal circumstances are to be given less weight in the sentencing process for offences involving sexual exploitation of a child by virtue of section 10(4) of the Sentencing Act. 

1. The head sentence and the non-parole period were to be set having regard, inter alia, to the following: the defendant’s breach of his position of trust; the offences having been committed over a period of approximately two years; the offences not having been aberrations or momentary lapses of judgement; the defendant having had opportunities to reflect on his actions and desist from further offending; and the offending having been both predatory and premeditated.  The defendant used his position of authority and trust to create opportunities to be with each of the complainants and to sexually abuse them.

2. It is to be accepted that the defendant has no criminal antecedents prior to first engaging in the acts of abuse the subject of the within proceedings.  However, the defendant used his apparent good character, including his position as principal of the school, to enable him to be in a position to gain access to each of his victims.  Further, the offending involved an ongoing course of conduct extending for more than two years.  A number of victims were involved.  In these circumstances his prior good record is of little significance.

3. The non-parole period is to reflect the gravity of the crime, deterrence, punishment and community condemnation of the offending.  The non-parole period must bear a proper relationship to the head sentence as the process of setting a head sentence and non-parole period are integrally linked.  The non-parole period need not be a specific proportion of the head sentence.  The non-parole period is, however, to be proportionate to the seriousness of the crime.  Given the aggravating features of the present offending and the fact that the defendant offended against three children over a period of years, the head sentence of 14 years may be described as being at the lower end of the range of sentences for offending of this type. 

4. The non-parole period fixed by the Judge of five years, in my view, falls well short of reflecting the gravity of the defendant’s criminal conduct and the need to deter others from similar offending.  I consider the non-parole period to be so low as to shock the public conscience.  For this reason alone, the Director should be granted permission to appeal.

   Age and Ill-Health

5. There is a further matter to be considered.  The Director submitted that the sentencing Judge erred by giving too much weight to the defendant’s age and ill-health.  The remarks of the sentencing Judge make it clear that he fixed a “lower … non-parole parole period than [he] would otherwise do” because imprisonment would be significantly more difficult for the defendant than someone younger and in better health. 

6. The defendant’s advanced age at sentence was a consequence of the delay in the defendant’s offending coming to light.  The defendant, during the period of delay, has been able to enjoy more than two decades of his life without the blight of these convictions on his character and the consequences associated with that.  The delay would appear to be a result of the age of the victims at the time and the position of authority of the defendant.  In these circumstances, general deterrence may assume greater importance over mercy than might otherwise be appropriate.

7. The defendant’s health was a relevant consideration in sentence.  It is to be accepted that the defendant suffers from several serious chronic medical conditions including HIV and hepatitis B infections.  These particular conditions, as well as other medical conditions, give rise to a continuing risk of complications.  It is clear that the defendant requires ongoing medical treatment and management.  If he does not receive appropriate medical treatment, then his poor health might be expected to worsen.  The defendant also suffers from depression, but no diagnosis of psychiatric illness has been made. 

8. The weight that should be accorded in sentencing to any circumstances of the defendant that will make a period of imprisonment particularly burdensome has been considered on a number of occasions.  To this effect, in Smith King CJ noted:[13]

   …The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

   [13]   R v Smith (1987) 44 SASR 587, 589 approved in Muldrock v The Queen (2011) 244 CLR 120.

9. In the circumstances discussed above, it may be accepted that the defendant may face some difficulties in custody because of his health concerns.  It was not disputed that it was appropriate for the defendant to be subjected to an immediate custodial order of imprisonment and that he would spend a number of years in custody before being eligible for parole.  Further, there was no evidence that the defendant’s health concerns cannot be adequately addressed while he is in custody.  It is to be accepted that material before the Court does suggest that his “mental state” may suffer.  However, in my view, this material does not justify the conclusion that there is a serious risk of imprisonment having a gravely adverse effect on the defendant’s health.  The medical referees do not appear to have addressed the experience and resources available for the treatment of prisoners in custody.  It would appear that the sentencing Judge gave undue weight to this factor when fixing a non-parole period of only five years.

   The Court’s Powers on Appeals Against Sentence

10. The Court’s powers and duties on an appeal against sentence are set out in sections 353 and 340 of the Criminal Law Consolidation Act 1935 (SA).

11. Section 353 relevantly provides:

    (4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—

    (a)     if it thinks that a different sentence should have been passed—

    (i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or

    (ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or

    (b)     in any other case—dismiss the appeal.

    (5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.

12. Section 340, operative as from 3 August 2008 and introduced by section 5 of the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), provides:

    Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—

    (a)     impose the sentence that should have been imposed in the first instance; and

    (b)     order that the sentence—

    (i)will be taken to have come into effect on a date before the date of the order; or

    (ii)     will take effect on a date on or after the date of the order.

13. Section 340 precludes the Court from having regard to the “rule of law” known as double jeopardy when resentencing. The words “[d]espite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect.[14] The effect of section 340 is to remove from consideration any rule of law enabling a Court to impose, when resentencing, a sentence other than the sentence which the Court thinks ought to have been imposed at first instance. To put it another way, section 340 has removed the Court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.

    [14]   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [71].

14. The defendant’s sexual offending involved grave criminal conduct towards young children.  The defendant faced a maximum penalty of life imprisonment.  As noted by the sentencing Judge, the legislature has provided that a primary policy of the criminal law is the protection of children from sexual predators.[15] 

    [15] See section 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) which provides:

    A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

15. There were serious matters of aggravation surrounding the defendant’s offending.  The defendant’s conduct took place within a small rural community, the type of community in which a school principal is considered to be a leader, a person of authority and a person to be trusted.  The defendant engaged in an ongoing course of criminal conduct involving a gross breach of trust arising from his position as a school principal.  The children were entrusted to his care.  That trust was reposed by both the children and their families. 

16. To my mind, the gravity of the offending, as earlier discussed, called for a substantial sentence.  The head sentence of 14 years was within the sentencing discretion of the Judge.  However, the defendant’s criminal conduct required that he spend a substantial period in custody.  Further, general deterrence required a lengthy period be served in custody. 

17. Having regard to the gravity of the defendant’s offending, to the need for general deterrence, to the need to give primacy to the protection of children and to the defendant’s personal antecedents as earlier set out, including his health concerns, a non-parole period of nine years should be fixed.

    Conclusion

18. I would grant the Director permission to appeal.  I would allow the appeal.  I would confirm the head sentence imposed by the sentencing Judge of 14 years imprisonment.  I would set aside the non-parole period fixed by the sentencing Judge.  I would set a non-parole period of nine years.  I would direct that the sentence, including the non-parole period, be taken to commence on 15 May 2012.

19. ANDERSON J.     I agree that the appeal should be allowed in this matter and I agree that the non-parole period should be increased to 9 years. I agree with the reasons of Gray J.

20. STANLEY J:        I have had the advantage of reading the reasons of Gray J.  I agree with the orders proposed by his Honour and his reasons.