R v Ryan

[1996] QCA 434

IN THE COURT OF APPEAL	[1996] QCA 434
SUPREME COURT OF QUEENSLAND

C.A. No. 367 of 1996

Brisbane

[A-G v. Ryan]

THE QUEEN

v.

MICHAEL DESMOND RYAN

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus J.A.
Derrington J.

Ambrose J.

Judgment delivered 8 November 1996

Separate reasons for judgment of each member of the Court; each concurring as to the order to be made.

APPEAL DISMISSED

CATCHWORDS:	Dangerous driving causing grievous bodily harm with blood alcohol content in excess of 0.15 - non-custodial sentence - effect of intoxication - Sheppard (C.A. No. 391 of 1994, 8 February 1995) - Vessey (C.A. No. 453 of 1995, unreported, 16 February 1996) - King (C.A. No. 516 of 1995, 20 March 1996) - Shedlock (C.A. No. 60 of 1996, 31 May 1996) - Welch (C.A. No. 64 of 1996, 31 May 1996) - delay in prosecuting - custodial sentence called for - regard to maximum penalty of 14 years prescribed by legislature.
Counsel:	Mrs L Clare for the appellant. Mr J Jerrard Q.C. for the respondent.
Solicitors:	Queensland Director of Public Prosecutions for the appellant. Robertson O’Gorman for the respondent.
Hearing Date:	21 October 1996.
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 8 November 1996

This is an Attorney’s appeal against sentence. The respondent was, after a trial, convicted of the offence of driving dangerously thereby causing grievous bodily harm, with the aggravating circumstance that at the time the concentration of alcohol in his blood exceeded 150 milligrams per hundred millilitres of blood. The judge imposed a term of 3 years imprisonment suspended immediately, together with a fine of $12,500 and ordered that the respondent perform 240 hours of community service and be disqualified from holding a driving license for 3 years. The fine has been partly paid and the community service substantially completed.

At the trial the Crown established that a taxi driver, a Mr Graham, delivered a fare to a residence in Oates Avenue, Holland Park shortly before 5 a.m. on 1 January 1994. As he backed his taxi out of the driveway of the residence, it was struck by a car driven fast by the respondent and Mr Graham suffered serious injury. The blood alcohol content of the respondent was 155 milligrams per hundred millilitres, just over the proportion mentioned in s. 328A(4)(b) of the Code.

Mr Graham’s injuries consisted mainly in a fractured femur and a ruptured liver and these were admitted to constitute grievous bodily harm. On the evidence his principal residual disability was in relation to his leg; to mend the femur break, insertion of a plate was necessary and he had some residual pain in the area.

In giving his reasons for sentence, the judge referred to the statutory maximum of 14 years imprisonment as being a "mark of the horror" which Parliament had shown. His Honour said that imprisonment, "we all know", does offenders little good and did the community little good except where a person prone to offend is safely locked away for a period and cannot offend except in prison. His Honour also expressed the view that "for the vast majority of people a prison sentence means an end to a useful life in the community". He referred to s. 9(2) of the Penalties & Sentences Act 1992 for the principle that imprisonment should be imposed as a punishment only as a last resort.

The judge referred to the fact that the respondent’s traffic history showed three speeding offences before 1 January 1994 and one subsequently, and said that the respondent was "entitled to be dealt with in the indulgent way which the Penalties & Sentences Act says is appropriate for young first offenders". His Honour referred to s. 9(4) which makes special provision for offenders under the age of 25 years; the respondent was born on 14 June 1972. The judge referred to criticism by the prosecutor of the respondent, in reliance on evidence that when the police went to interview the respondent in hospital, after the collision, and asked what happened, the respondent became agitated and "started yelling abuse about the driver of the car which was involved in the accident". The judge said that "the reference material in Exhibit 47 shows that you do feel remorse". Having read the documents in that exhibit, I feel obliged to say that they do not, to my mind, contain anything of particular significance with reference to that subject; the evidence that was given by the police officer, W R Thompson, as to the respondent’s reaction when approached at the hospital about the matter was unchallenged and uncontradicted. The judge went on to explain that he regarded the respondent as a young man from a good family who was hard working and good at sport.

As to ingestion of alcohol, the judge noted that the respondent had allowed himself "after midnight to accept invitations from patrons at your place of work to join them in champagne". The judge referred to some decisions of this Court and said that the prosecuting authorities "in combination have so conducted the matter that for more than two and a half years you have been allowed to get on with your life, as well as you can with these proceedings hanging over you". He also said in effect that the complainant had, by reversing his vehicle out of a private driveway on the blind side of a crest, created a situation fraught with danger.

It is necessary to make reference to some additional matters which were discussed before this Court, but not in the reasons of the primary judge. There were two tyre marks leading in the direction of travel of the respondent to the point of collision, the longer being 29 metres. In his evidence, the police officer who took the measurements explained that the tyre mark went in fact a little beyond the point of impact. He also said that there was a distance of about 29 metres from the crest in the direction of travel of the respondent to the point of impact. Braking must have begun a very short distance past the crest. The respondent’s vehicle was travelling at a substantial speed; this may be deduced from the heavy damage to the two vehicles depicted in the exhibits and also from evidence given by a witness, a Mrs Hetherington, who estimated the speed of the respondent’s car as between 90 and 100 kph. Some submissions were made to us on behalf of the respondent to the effect that he must have braked extremely promptly after seeing the taxi, with an incredibly short reaction time; it seems evident that this is not so and that the beginning of the braking must have been a response to something other than the sight of the taxi - either its sound, or merely a sudden consciousness that coming over a blind crest at high speed was very dangerous. From the photographs of the damaged taxi in evidence, one can see that it was hit hard on the driver’s side and this is consistent with the view that it was struck as the taxi driver was reversing out across the road. It seems likely that the danger to which the taxi was exposed would have been little different had it been travelling slowly forwards, rather than reversing, out of the driveway.

The primary judge pointed out that the respondent was quite entitled to plead not guilty and to put the Crown to strict proof, as he did, of the blood alcohol level. While this is so, it would have been rather perverse of the jury to find other than that the injury to the taxi driver was caused by dangerous driving. It was dangerous to drive at high speed over the crest when it would have been obvious to anyone paying attention that this would be likely to endanger a vehicle, or a person, in the path of the respondent’s vehicle, just past the crest. It was foreseeable that a vehicle might, close to the crest, be emerging slowly from a driveway on that side of the road. Further, the respondent gave no evidence and he chose, as the undisputed evidence disclosed, to answer a police inquiry about the circumstances of the accident by merely abusing the unfortunate taxi driver.

It is however my view that, considering the range of possible infringements of the relevant provision, s. 328A(4)(b), the present is certainly in the lower rather than the top half of those possibilities. The case appears to be one in which there was no suggestion of deliberately dangerous driving, but rather a typical alcohol-induced lack of inhibition, leading to travel at such a speed that the respondent presumably had no chance of avoiding the obstruction constituted by the taxi which came into view as he travelled over the crest. The points in favour of the respondent are the absence of a prior record of offences other than speeding infringements, his apparent previous good character, and his youth.

The question, and I have found it a difficult one, is whether these circumstances sufficed to justify the course the judge took, of imposing a non-custodial sentence. It was contended that the matter should be decided on the basis that it was not established that the extent of the respondent’s intoxication had anything to do with the accident. The judge appeared to hint at this possibility in one of the remarks he made during sentencing. I see no reason to refrain from drawing the inference that the respondent would not have been inclined to travel at what was, in the circumstances, a dangerous speed, had he not had far too much to drink; apart from that, it appears to me clear that the increased penalty (14 years) which may be imposed where the concentration of alcohol exceeds 150 milligrams per 100 millilitres of blood is not made, by the statute, dependent upon proof that the dangerous driving was caused by the ingestion of alcohol.

It seems necessary to refer to a number of the recent decisions in this Court, on the relevant offence, some of which were discussed before us. A convenient starting point is Sheppard, an Attorney’s appeal heard on 8 February 1995 (C.A. No. 391 of 1994). Without setting out the circumstances in detail, it must be said that the case was a much worse one than the present, so that the outcome is not of direct assistance; the Court declined to increase a term of imprisonment of 4 years. The case is of present importance principally because the Court considered and disapproved the then current level of sentencing for such offences, in the range of 4 to 5 years for serious cases. In Vessey (C.A. No. 453 of 1995, unreported, 16 February, 1996) the increase which was, so to speak, foreshadowed in Sheppard came to pass and a sentence of 6 years and 6 months was increased to 9 years, on an Attorney’s appeal. Again, the case was markedly worse than the present, both as to the character of the driving and the respondent’s criminal history. The period after which the respondent Vessey could be considered for parole was lengthened from 26 months to 4 years. As to the previous level of sentencing in the District Court, the reasons of Fitzgerald P., Davies J.A. and Mackenzie J. included the following remarks:

"It was submitted that as the maximum was 14 years imprisonment a sentence of 10 years was appropriate. It was conceded that the applicant had manifestly cooperated with the authorities and that an early recommendation for parole was appropriate, although qualified by the circumstance that conviction was all but inevitable. The sentencing judge felt constrained by the absence of precedent for sentences beyond the range of 5 to 6 years for serious cases of dangerous driving causing death . . .

In Sheppard (C.A. No. 391 of 1994) the principle that judges should not always consider themselves entirely fettered by sentences which have been previously imposed or a range of sentences for a particular offence, but should impose sentences which are appropriate in the circumstances of the particular case, was stated in various ways by each of the judges. The need to avoid the perception that a particular offender has been treated more severely than like offenders because his case has been used to effect a substantial raising of the general level of sentences was also adverted to. However, the need to give effect to increased maximum penalties prescribed by the legislature was also recognised."

In the following month King (C.A. No. 516 of 1995, 20 March 1996) was decided. There, on an Attorney’s appeal, an intensive correction order for 12 months was replaced by a sentence of 3 years imprisonment with a recommendation for parole after 12 months. Again, the case was in my view substantially worse than the present, in that the respondent was very drunk, had for that reason been specifically warned not to drive on the evening in question, had no license and had been previously fined for unlicensed driving. On the other hand, she had what was described as an "appallingly deprived personal history", whereas in the present case it is admitted that the respondent had the advantage of a good upbringing.

The last two cases I shall mention are Shedlock (C.A. No. 60 of 1996) and Welch (C.A. No. 64 of 1996), in each of which judgment in an Attorney’s appeal was given on 31 May 1996. It is I think of interest to note that in neither set of reasons was Vessey, decided in February 1996, referred to; an expectation which might rationally have been held that Vessey signalled a much sterner approach to sentencing for offences of this kind was not fulfilled. In Welch the circumstances of the offence were somewhat similar to those with which we are presently concerned, with the important difference that there was no suggestion that the respondent was affected by alcohol; the case is of rather limited value for present purposes because the circumstance of aggravation (excess of .15% blood alcohol) was not charged, or present. But it should be noted that there an Attorney’s appeal succeeded; the respondent had been fined $4,000, placed on probation and ordered to perform 240 hours community service. The fine was reduced to $500 and the respondent was sentenced to a term of imprisonment for 1 year to be served by way of an intensive correction order. Further, I observe that in Welch, as here, there was delay in launching a prosecution. The Court remarked:

"The sentence imposed was manifestly inadequate but it would be unfair to the respondent to put him in prison now for a few months, given that some two years has elapsed since the offence was committed and he has been in regular employment throughout that period."

Shedlock was a case involving the same offence as is presently in issue: driving dangerously and thereby causing grievous bodily harm, with the same circumstances of aggravation with respect to alcohol. I do not set out the facts of the collision which put an end to the dangerous driving there in question, but it seems to me plainly to have included more reckless conduct than in the present case. The blood alcohol concentration was .165 percent. Shedlock had a bad traffic history, considerably worse than that in the present case.

By a majority the Court increased the penalty imposed below, which consisted of imprisonment for 1 year to be served by way of intensive correction order, an order for payment of compensation of over $13,000 and a fine of $4,000. The fine was increased to $10,000. Williams J., who dissented, would have imposed a term of imprisonment of 2½ years with a recommendation of eligibility for parole after having served 8 months.

In this case the primary judge particularly referred to Shedlock and to Vessey and expressed some uncertainty as to the way in which the approach in these decisions might be reconciled. His Honour pointed out that the delay in prosecuting the respondent’s case was longer here than that in Shedlock and that there was no suggestion that the respondent had been responsible for that delay.

I incline to the view that the circumstances of the present case called for a custodial sentence and that the learned primary judge fell into error in determining that they did not. Although by no means an especially bad example of the offence of which the respondent was convicted, the circumstances showed criminality of a sort which, having regard to the maximum penalty of 14 years fixed by the legislature, was not adequately reflected in the penalty imposed. I think the judge’s approach was unduly lenient and that his Honour, with respect, relied upon very thin evidence of remorse and some other considerations of little weight in determining upon the course he took.

But having regard to the approach taken in Shedlock, to the respondent’s youth and the delay to which I have already referred, it appears to me that the "unfettered discretion" which this Court is given by the statute would not be properly exercised by imposing a custodial sentence at this late stage, approaching the third anniversary of the commission of the offence.

I would dismiss the appeal.

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 8 November 1996

The facts and authorities showing comparable sentences are set out in the judgment of Pincus JA. While I agree with the order he proposes there are however some features as to detail on which I have a slightly different point of view.

Full recognition should be accorded to the provisions of the Penalties &Sentences Act relating to young persons and to the undesirability of imprisonment where that can reasonably be avoided. However, there are circumstances where the conduct of such a person has such gravity in its anti-social features, particularly in the absence of remorse, that the restraints imposed by the statute no longer apply.

With respect to the learned sentencing judge, it is not generally accepted that imprisonment has no value or effect except to lock away recidivists to protect the community during their incarceration. There is still a substantial body of opinion that it also acts as a general deterrent, but it is emasculated if serious offences escape it. The incidence of grave injury and death caused by drunken drivers is so substantial that a measure of general deterrence is demanded. In the present case, the respondent caused very serious injury and damage to property when in a drunken state he drove his car at high speed over the crest of a hill that caused, as he knew, a serious limitation of his forward vision along the suburban street on which he was travelling.

In addition, he showed no remorse. He was uncooperative with the police and spoke in abusive terms about the victim. He committed a further speeding offence before the trial. And through his unwillingness to acknowledge his guilt, he contested the trial where he tried to conceal the true facts through various technical objections. While he was entitled to do this with impunity, despite the cost to the community, he cannot then make claim to any sincere remorse such as would be indicated by a full and fair acknowledgment of his wrong.

His prompt performance of his community service and payment of a significant part of his fine are irrelevant here. Having regard to the dangerously appealable nature of the sentence that was imposed, he was well advised to place himself in this position before any appeal was heard, but it has not advanced his position.

He seems to have been accorded some credit for his sporting prowess. No doubt he is entitled to suitable admiration for any extraordinary effort he may have made to achieve his success, but his goals can hardly be said to have had serious social altruism. More seriously, there is unfortunately a growing incidence of antisocial behaviour by prominent athletes, often associated with drunkenness, that suggest an arrogant disdain for the standards of ordinary people and for the law. Apart from the offence, the respondent's abuse of the victim and his post-accident speeding offence suggest that the respondent may have this tendency. If it be so, his sporting prowess would merit no consideration at all.

The next point is that there seems to have been some suggestion of mitigation in the way in which he became intoxicated by accepting New Year drinks from customers, though it was clearly voluntary. This has little relevance. He was entitled to become intoxicated if he wished. The essence of the offence lies in his driving his car dangerously while in that condition and causing serious injury. However he became so drunk, he should not have driven his car as he did - or at all.

Again with respect, it is not difficult to see that his drunkenness "played such a direct part in the accident", which was a matter that caused the learned sentencing judge some concern. The respondent's disinhibition in driving at such a high speed in circumstances where he knew it was clearly dangerous to do so can well be attributed to the effects of his intoxication. That was the essence of his crime. That very dangerous speed in that dangerous place was very consistent with a drunken inadvertence of or disregard for the safety of others. His other speeding offences were not suggested to have been committed in such dangerous circumstances, and probably would have attracted charges of dangerous driving if they had been.

His early application of the brakes after coming over the crest of the hill have been suggested to indicate a rapid reaction unaffected by his intoxication; but this is not so. He could not possibly have reacted in the way suggested within the time available. It is probable that when he saw the danger he had already commenced to apply the brakes, possibly to prevent the car from picking up downhill speed as he approached his home, which was further along the same street. Further, his intoxication may have disabled him from taking better avoiding action.

For these reasons, his drunken state would seem to have had a significant role in causing the harm, but I would agree with Pincus JA that overall his offence in this respect was in the lower half of the range of possible crimes of this kind. However, where there is intoxication to the aggravating level , the court should not punctiliously require of the prosecution the clear proof of manifest links between the intoxication and the harm before reflecting the purpose of the legislation in an appropriate sentence. There are certainly cases where it is manifest that the intoxication would have had little or no part in the result, and the legislative purpose would then permit of a more moderate response; but the definition of the offence is so framed that the prosecution is certainly not required to discharge the difficult and sometimes impossible task of establishing the causal link.

I have no difficulty in agreeing with Pincus JA that apart from the factor of delay the offence here deserved imprisonment. On the issue of delay, at the time of sentence its effect was not necessarily such as to justify the abandonment of a sentence of imprisonment, though it may have had a modifying effect as to its length. Undoubtedly the stress and disruption to the respondent's life during the moderately lengthy period of delay must be taken seriously into account, but its influence is also limited.

While I am not moved by this factor to give it the same weight and effect as that adopted by the learned sentencing judge, and, if I had been in that position, may very well have imposed a term of imprisonment, the assessment of these matters will vary. As discretionary factors are involved and the view of the learned trial judge on this is certainly at least tenable, there is no demonstrated error of principle on this very significant issue. Accordingly, but with some reluctance, I agree with the view of Pincus JA that a term of imprisonment should not now be imposed, particularly having regard to the further delay since the date of sentence.

In the result I agree that the Attorney's appeal should be dismissed.

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 8th of November 1996

I have had the opportunity of reading the draft reasons for judgment of Pincus JA which sufficiently set forth the facts relevant to the appeal.

I agree that having regard to the period of time which has elapsed since the commission of the offence and the fact that nearly all the community service work which the applicant was ordered to perform upon sentence has been performed, on balance this Court ought not now allow the appeal and order that the applicant serve part of the suspended sentence of imprisonment imposed.

It is my view however that on the facts in this case the sentence of imprisonment imposed if suspended ought to have been only partly suspended and the applicant required to serve part of it in custody. In my view this was not a case in which it was appropriate to wholly suspend the term of imprisonment imposed.

Having regard principally to the time which passed between the commission of the offence and the imposition of the penalty I agree that the appeal ought be dismissed.

I wish only to make comment upon one matter advanced on behalf of the respondent in this case.

Views were expressed by the learned sentencing Judge and advanced upon appeal that it was not demonstrated that the significant intoxication of the respondent contributed to his dangerous driving which resulted in the grievous bodily harm to the driver of the taxicab.

For the reasons canvassed by Pincus JA and Derrington J, I take the view that if it were necessary to link the respondent's intoxication at the time of driving with the manner of his driving in respect of which he was convicted, there is ample evidence to support an inference that the manner of driving was linked with that intoxication.

However in my view it is quite unnecessary when imposing a sentence for an offence of dangerous driving under s.328A of the Criminal Code to look for any causal connection between the manner of driving which has been determined to be dangerous and the circumstance of aggravation established under s.328A(4)(b) of that Code.

The offence under s.328A(1) must be construed in the light of the definition of driving dangerously in s.328A(5) keeping in mind the observations in R v. Douglas; ex parte Attorney-General [1991] 1 Qd R 386, where at p. 389 Shepherdson J pointed out that the two essential matters of fact in a case of dangerous driving are the manner of driving and the speed of driving.

Section 328A(2), (3) and (4) specify circumstances of aggravation in the event that the manner of the driving charged be determined to be dangerous. Under s.328A(2), if an offender at the time of driving dangerously be adversely affected by an intoxicating substance or has previously been convicted of dangerous driving, the maximum penalty is increased from 3 years to 5 years.

Under s.328A(3) if an offender has previously been convicted of an offence of dangerous driving while adversely affected by an intoxicating substance or has previously been convicted of dangerous driving, the Court in imposing sentence is required to impose imprisonment as the whole or part of the punishment.

Under s.328A(4) if an offender causes death or grievous bodily harm to another person while driving dangerously the maximum penalty is increased to imprisonment for 7 years unless at the time of committing the offence he is adversely affected by an intoxicating substance in which case the maximum penalty is further increased to imprisonment for 10 years; if the intoxicating substance is alcohol, the concentration of which in the offender's blood is equal to or exceeds 150 mg of alcohol per 100 ml of blood the maximum penalty is yet further increased to imprisonment for 14 years.

In my view it is clear from the way in which s.328A is drafted that the legislative intent is that the maximum penalty which may be imposed will depend upon the circumstance or circumstances of aggravation proved to have attended the offence of driving dangerously. On the facts of the present case the respondent clearly came within s.328A(4) of the Code. He did cause grievous bodily harm to another person by his dangerous driving and at the time of that dangerous driving the concentration of alcohol in his blood exceeded 150 mg per 100 ml of blood.

The offence of which he was convicted then came within the most serious category of dangerous driving contemplated by s.328A.

In my view while there is a clear requirement under s.328A(4) to establish a causal connection between the dangerous driving and the grievous bodily harm caused to another person thereby, there is nothing in that subsection requiring a causal connection to be established between the dangerous driving and the offender at the time being adversely affected by alcohol to the extent specified.

Indeed for that matter there is nothing to suggest that any causal connection between the manner of driving and the offender being adversely affected by liquor need be shown under s.328A(2) or (3).

In my view the subsections which specify the offender being affected by alcohol as a circumstance of aggravation expressly increase the maximum penalty for dangerous driving without placing upon the Crown any obligation to show upon the evidence that the dangerous driving was in any way attributable to the effect of alcohol. On the plain wording of the legislation there is a presumption under s.328A(4)(b) that the concentration of alcohol in the offender's blood to the extent there specified is connected with the dangerous driving which has been established.

The gravamen of the offence under s.328A(1) is the manner of driving. The circumstance of aggravation under sub.(2) is the offender being affected by an intoxicating substance when driving dangerously or the fact that he has previously been convicted of dangerous driving. The circumstance of aggravation under sub.(3) is that the offender has previously been convicted of dangerous driving while affected by an intoxicating substance or has twice previously been convicted of dangerous driving.

The aggravating circumstances of driving dangerously under sub.(4) are three - (i) the causing of death or grievous bodily harm to another person (ii) while driving at a time when adversely affected by an intoxicating substance and (iii) if that intoxicating substance be alcohol its concentration equals or exceeds 150 mg of alcohol per 100 ml of blood.

In the present case the respondent was convicted of an offence under s.328A with the most serious combination of circumstances of aggravation specified in that section and was for that reason liable to the maximum penalty of 14 years' imprisonment specified.

In my view it was both unnecessary and unhelpful in arriving at a proper sentence for the offence of which the respondent was convicted, to devote any time on speculation as to whether and to what extent it could be demonstrated on the evidence that the dangerous driving was attributable to the respondent's intoxication.

In the present case reference was made to the fact that before and after the commission of this particular offence the respondent had been convicted of driving in excess of the speed limit and that there is no suggestion that on those occasions he was driving under the influence of liquor. It was contended that it was open to the sentencing judge to conclude that the respondent's dangerous driving in this case simply involved driving at an excessive speed in an area in which to his knowledge, visibility was significantly impaired and that he might well have been doing that even had he not been affected by liquor. In my view it was quite unnecessary and indeed irrelevant to give consideration to such a matter in arriving at a proper sentence in this case.

Having regard to all the matters of extenuation canvassed before the sentencing judge and before this Court, it may well have been within the exercise of a sound sentencing discretion to make a recommendation for parole after the offender had served perhaps 9 months of the sentence of 3 years imposed or perhaps to have suspended the sentence of 3 years imposed after 9 months had been served. In my view the imposition of a fully suspended sentence did not sufficiently reflect the serious nature of the offence having regard to the maximum penalty prescribed by s.328A(4) considered in the context of the gradation of maximum penalties specified for the various circumstances of aggravation in respect of dangerous driving under s.328A.

However, for the reasons given by Pincus JA and Derrington J, I am persuaded in all the circumstances, and principally having regard to the time that has passed since the commission of the offence that in the exercise of its discretion upon an appeal by the Attorney-General this Court ought refrain from interfering to now require that the respondent serve part of the sentence of imprisonment imposed upon him before its operation is suspended or before becoming eligible for parole. In my view the sentence imposed in this case with which for the reasons given this Court ought decline to interfere, should certainly not be regarded generally as a comparable sentence for an offence under s.328A where all circumstances of aggravation under s.328A(4) have been established.

I agree that the appeal ought be dismissed.