Radebe v The Queen
[2001] WASCA 254
•24 AUGUST 2001
RADEBE -v- THE QUEEN [2001] WASCA 254
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 254 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:143/2000 | 17 JULY 2001 | |
| Coram: | MALCOLM CJ ANDERSON J McKECHNIE J | 24/08/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Sentence reduced from 10 years to 9 years | ||
| A | |||
| PDF Version |
| Parties: | SALAMINAH RADEBE THE QUEEN |
Catchwords: | Criminal law Importation of trafficable quantity of heroin Sentence Proper reduction for fast-track plea Principles in relation to co-operation |
Legislation: | Crimes Act 1914 (Cth), s 16 Customs Act 1901 (Cth), s 233B |
Case References: | Cottrell (1989) 42 A Crim R 31 Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997 Foster v D'Anna (1992) 59 A Crim R 14 Heryadi (1998) 98 A Crim R 578 Ilam v Dando (1999) 109 A Crim R 47 Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 Little v The Queen [2001] WASCA 87 Nguyen v The Queen [2001] WASCA 119 Nguyen v The Queen [2001] WASCA 72 Quach v The Queen [1999] WASCA 210 R v Olbrich (1999) 199 CLR 270 Serrette v The Queen [2000] WASCA 405 Wong (1999) 108 A Crim R 531 Bellissimo (1996) 84 A Crim R 465 Darwell (1997) 94 A Crim R 35 Diefenbach v The Queen [1999] WASCA 4 Duffy (1996) 85 A Crim R 456 Ferrer-Esis (1991) 55 A Crim R 231 He Kaw Teh v The Queen (1985) 157 CLR 523 Nguyen v The Queen [2001] WASCA 72 Oancea (1990) 51 A Crim R 141 Paunovic (1990) 51 A Crim R 174 R v Cartwright (1989) 17 NSWLR 243 R v Dinic (1997) 149 ALR 488 R v Gallagher (1991) 23 NSWLR 220 R v Tait (1979) 24 ALR 473 Sinclair (1990) 51 A Crim R 418 Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 "X" v The Queen [2000] WASCA 355 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : RADEBE -v- THE QUEEN [2001] WASCA 254 CORAM : MALCOLM CJ
- ANDERSON J
McKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Importation of trafficable quantity of heroin - Sentence - Proper reduction for fast-track plea - Principles in relation to co-operation
Legislation:
Crimes Act1914 (Cth), s 16
Customs Act 1901 (Cth), s 233B
Result:
Leave to appeal granted
Appeal allowed
(Page 2)
Sentence reduced from 10 years to 9 years
Category: A
Representation:
Counsel:
Applicant : Mr S J Jones
Respondent : Mr G J Allen
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cottrell (1989) 42 A Crim R 31
Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997
Foster v D'Anna (1992) 59 A Crim R 14
Heryadi (1998) 98 A Crim R 578
Ilam v Dando (1999) 109 A Crim R 47
Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997
Little v The Queen [2001] WASCA 87
Nguyen v The Queen [2001] WASCA 119
Nguyen v The Queen [2001] WASCA 72
Quach v The Queen [1999] WASCA 210
R v Olbrich (1999) 199 CLR 270
Serrette v The Queen [2000] WASCA 405
Wong (1999) 108 A Crim R 531
Case(s) also cited:
Bellissimo (1996) 84 A Crim R 465
Darwell (1997) 94 A Crim R 35
Diefenbach v The Queen [1999] WASCA 4
(Page 3)
Duffy (1996) 85 A Crim R 456
Ferrer-Esis (1991) 55 A Crim R 231
He Kaw Teh v The Queen (1985) 157 CLR 523
Nguyen v The Queen [2001] WASCA 72
Oancea (1990) 51 A Crim R 141
Paunovic (1990) 51 A Crim R 174
R v Cartwright (1989) 17 NSWLR 243
R v Dinic (1997) 149 ALR 488
R v Gallagher (1991) 23 NSWLR 220
R v Tait (1979) 24 ALR 473
Sinclair (1990) 51 A Crim R 418
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
"X" v The Queen [2000] WASCA 355
(Page 4)
1 MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be granted, the appeal allowed and the sentence of imprisonment of 10 years reduced to a term of 9 years and the minimum term varied to one of 4 years and 9 months. I have reached these conclusions for the reasons to be published by McKechnie J with which I agree.
2 ANDERSON J: I have read in draft the reasons for judgment of McKechnie J. I agree with those reasons and with the orders proposed. There is nothing I wish to add.
3 McKECHNIE J: This is an application for leave to appeal against a sentence of 10 years imprisonment for the importation of heroin into Perth on 21 February 2000.
Grounds of appeal
4 The grounds of appeal assert that the sentence imposed was, in the circumstances, manifestly excessive because of a series of errors by the sentencing Judge. It will be convenient to deal with each asserted error separately.
Ground 1.1 Choosing a starting point for the sentence that was excessive for the degree of involvement of the applicant in the drug trafficking process
5 Counsel for the applicant, who was instructed by the Unrepresented Appellants Scheme and who made able submissions on her behalf, submitted that the range of sentences for this type of offence was between 9 and 13 years. That was an appropriate concession. Within this range the Judge selected, as a starting point, a sentence of 12 years. This is said to be wrong.
6 It is submitted that this starting point was too high and that the trial Judge erred when in sentencing he made a comment that the applicant was close to the top of the chain of supply.
7 To understand the trial Judge's comments, it is necessary to examine the submissions made by counsel then appearing for the applicant at the sentencing hearing.
(Page 5)
8 Counsel's aim was to persuade the Judge that the matter could be dealt with at the lowest end of the applicable range for this sort of crime. In support of that aim he gave evidence from the Bar table that the applicant had no part in manufacturing or obtaining those drugs; she had no part in wrapping them up and packaging then; she did not know where they were obtained; she was to use the phrase coined in various cases dealing with these matters "the mere courier". The use of such an expression must be viewed now with caution: R v Olbrich (1999) 199 CLR 270. While the classification of the role of various persons charged with the same offence may have some value, the attempted classification of a person acting alone is likely to lead to error. Material advanced on behalf of such a person as to their claimed minimal role is unable to be tested in adversarial proceedings by the Crown. This is especially so where the offender is a foreign national. The better approach is to make an assessment of culpability on the objective circumstances. The trial Judge dealt with the submission that the applicant was a mere courier in this way:
"Possession of the heroin must have put you near to the top of the chain of supply and therefore you must have been close to those responsible for its importation into Australia. I don't say that you were a principal so far as drugs in South Africa are concerned but by being used by those persons you are close to them, to those who are involved in the international trade in drugs.
The circumstances don't indicate you as being a principal but as a person who should nevertheless be dealt with at the higher range of penalties."
9 There was no basis in the evidence to put the applicant "near to the top of the chain of supply" and I am of opinion that this was an error.
10 The objective facts were that the appellant had flown from Johannesburg, South Africa, on a South African passport with a three month Australian tourist visa. She arrived in Perth at noon on 21 February 2000 and her return ticket was dated 4 March 2000.
11 She was selected for a baggage search. During the search she became agitated and the Customs Officer departed. She was seen to take a package out of her pants and throw it under a nearby examination table. The package contained 300.7 gms of white powder, of which the net weight of heroin was 229.7 gms or 76.4 per cent pure heroin.
(Page 6)
12 Therefore she was responsible for importing into Australia an amount of heroin well above the trafficable quantity. Those circumstances alone called for a sentence in the upper range of between 9 and 13 years. The applicant has failed to demonstrate that the selection of a starting point of 12 years was in error: Cottrell (1989) 42 A Crim R 31; Foster v D'Anna (1992) 59 A Crim R 14; Quach v The Queen [1999] WASCA 210. It was within the appropriate range and was a matter for judicial discretion.
Ground 1.2 Failing to give sufficient discount to the applicant for her early plea of guilty
13 From the starting point of 12 years, his Honour deducted a total of 2 years as follows:
"Acknowledging your plea of guilty at the earliest opportunity, I will discount that starting point for sentence of 12 years. I also take into account the fact that you have been in custody since 21 February 2000. I would scale that up generously to a period of 6 months, and that is included in a reduction of 2 years from the starting point of 12 years. I come to the conclusion that the appropriate term of imprisonment is 10 years."
14 The Judge allowed an 18 month reduction for the plea of guilty and other matters of mitigation. Eighteen months is 12.5 per cent of the total sentence.
15 The Judge gave the reason why he allowed a modest reduction for the plea of guilty:
"The only other matter is the early plea of guilty. However, having been caught red-handed at the airport it's hardly a matter to which any weight should be attached in mitigation. On the other hand it was an offence of a planned and a deliberate matter. Weight must be given to the fact that it was heroin and not an importation of a more benign nature. You are not a drug user yourself. You participated in this venture for reward, and what I would take to be substantial reward, having regard to your living circumstances in South Africa."
16 The introduction of amendments to the Justices Act and Criminal Code in 1992 has had a profound effect on the administration of criminal justice in Western Australia. This bundle of amendments is widely
(Page 7)
- known as the "fast-track system". In brief, it allows defendants to acknowledge their guilt at a very early stage in proceedings and to be committed to superior courts for sentence expeditiously without the formalities of a preliminary hearing or a full prosecution brief. Part of the bundle of amendments, now replicated in the Sentencing Act (1995) s 8(2), requires the Judge to take into account the plea of guilty and the time at which it was made. The Crimes Act (Cth) s 16(g) requires the court to take into account the fact of a plea of guilty. Courts in Western Australia generally apply a fast-track discount to Commonwealth offences where the offender pleads guilty at an early stage and utilise the provisions of the Justices Act allowing for expedited committals for sentence.
17 For some years, committals to the superior courts of Western Australia by way of the fast-track system have been approximately 40 per cent of total committals. The savings to the administration of justice are enormous. There are considerable savings for police who do not have to compile compendious briefs where no issue of guilt will arise. There are savings of court time and the allocation of resources.
18 There are reasons of high policy why it is appropriate for courts to give a discount of sentence or, in some cases, an alternative to a sentence of imprisonment for an early plea of guilty. Of course a late plea of guilty should not lead to an increase in sentence. However, an early plea of guilty should always be rewarded, not because of any virtue in the individual, but as an acknowledgment that the early plea of guilty has a beneficial effect in an overcrowded criminal justice system.
19 In the days before fast-track pleas of guilty courts did allow a reduction in sentence for a plea of guilty. There was no defined reduction and many Judges would require the plea of guilty to be an expression of remorse before acknowledging its mitigatory effect.
20 The issue of a quantified amount for a fast-track plea of guilty has been discussed many times by the Court of Criminal Appeal.
21 In Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997, Franklyn J, with whom Malcolm CJ and Steytler J agreed, reviewed some of the authorities. At 3 he said:
"It was the applicant's submission through counsel that, regardless of any other relevant circumstance, a plea of guilty pursuant to the fast-track system demanded a known 'tariff' discount of the sentence which the criminality of the offence,
(Page 8)
- having regard to all relevant circumstances, would otherwise demand. He argued that the tariff discount should be 20 to 25 per cent and that in the applicant's case, having regard to his antecedents, the discount should have been increased beyond the tariff to between 30 and 33 and a half per cent. That submission had its genesis in the statement of Anderson J in R v Greenwood, unreported; CCA SCt of WA; Library No 9602093; 21 May 1996 that, for the fast-track system to work, accused persons must be certain that the immediate plea of guilty will carry a definite reward in sentencing, His Honour adding that 'Deductions up to 30 per cent are not uncommon;' and in that of Malcolm CJ in Stretton v R, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 that the discount 'is often of the order of somewhere between 20 to 25 per cent and 30 to 35 per cent.' What the submission overlooks is that neither statement suggests that that range contains the minimum discount. As Malcolm CJ said in Hellings v R, unreported; CCA SCt of WA; Library No 940440; 24 August 1997, speaking of the desirability of encouraging guilty pleas, 'That objective can be achieved by giving credit to the early plea by way of mitigation of sentence imposed in discounting it to the extent considered appropriate'." (underlining added).
This Court has often said that each case must be considered on its own merits and that consequently there is and can be no tariff setting the penalty appropriate to any particular offence or the deduction for any particular mitigatory matter. What might be appropriate by way of sentence or deduction for a mitigatory matter such as an early plea of guilty in one case might well be inappropriate in another. Indeed it may result in an injustice, either to the offender, the complainant, the criminal justice system, society or some or all of them. (See R v Cameron and Simounds, unreported; CCA SCt of SA; Judgment No S4051; 19 July 1993 per King CJ).
It is trite to say that mitigatory matters must be taken into account in sentencing, the weight to be given them varying as required by the overall relevant circumstances. It is accepted, however, that, save in rare cases, an early plea of guilty should result in a recognisable discount. The extent of that discount, however, will vary according to the circumstances of the particular case. Nevertheless, in my opinion, it must be
(Page 9)
- recognisable in the sense that the penalty imposed must be objectively seen to be below that which its criminal gravity would otherwise demand. Such recognition has specific benefits to the complainant and the community, even when the evidence against the applicant is overwhelming in that, at the very least, it relieves the complainant of the necessity to give evidence, the prosecution to collate its evidence and prepare for trial and the State the cost of a trial."
22 In Foster v D'Anna (supra) the court held that no significant discount was merited on the basis of the guilty pleas because the case against them was very strong indeed. In Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997, Kennedy J held:
"So far as the early plea of guilty is concerned, whilst some credit should be given for it, as indeed his Honour did, a person caught red-handed while endeavouring to avoid detection cannot expect a substantial discount."
23 In Heryadi (1998) 98 A Crim R 578 Ipp J said at 584:
"The applicant's plea of guilty, however, has little mitigatory effect. He was, after all, caught red-handed."
24 The most recent occasion on which the Court of Criminal Appeal has considered reductions for early pleas of guilty is Little v The Queen [2001] WASCA 87 where the Court said:
"It is well-established that, for reasons which are so well-known as not to require restatement, offenders must be rewarded, and really rewarded, for fast track pleas of guilty. The discounts usually fall between 25 per cent and 35 per cent, depending on the circumstances. The discount may be somewhat lower or somewhat higher in particular cases."
25 In Little the Crown's case was said to be strong in respect of one offence when the appellant was apprehended after running away from a car crash. He frankly admitted his involvement in other offences in a video record of interview and pleaded guilty to them at the earliest available opportunity.
26 The learned Judge deducted 2 years from a term of 12 years for a plea of guilty. The Court upheld the appeal, effectively imposing a
(Page 10)
- reduction of 25 per cent on the total indicative sentence of 12 years by reason of the early plea of guilty.
27 Where an offender is caught red-handed, it is tempting to make little reduction for a subsequent plea of guilty even if made at the first available opportunity. Nevertheless, the matters of high policy essential for the effective operation of the criminal justice system demand a substantial reduction.
28 Following Little, it is likely to be an unusual case where a sentence for a fast-track plea of guilty will not be reduced by at least 25 per cent following the plea of guilty. The facts of this case are not unusual. Consequently, I consider this ground of appeal is made out.
Ground 1.3 Failing to give any discount to the applicant for her co-operation with the Federal Police
29 The trial Judge dealt with the question of assistance as follows:
"There is the question of your assistance to police upon your arrival. There was tendered to the court on the last occasion a letter from Federal Police dated 12 May 2000. Your counsel in his submissions addressed me and suggested that you had assisted to the fullest extent that you had been able to assist. I might observe that such assistance as was provided was too little too late. The information which a person gives must be such as could significantly assist the authorities in the investigation of this type of offence and bringing others to justice.
Certainly there was nothing of significance which assisted in this case and it's worth noting that in the advice from the Australian Federal Police it is said, and I quote, 'It is the opinion of the Australian Federal Police the information provided by Radebe to be negligible and that the latest information provided by her differs from what she told investigating officers at the time of her arrest,' so there is no credit to be given so far as assistance to the authorities is concerned."
30 There is a difference between the offer of assistance and actual assistance.
(Page 11)
31 An offer of assistance may, in appropriate cases, indicate remorse, contrition, and a desire to put right, in some way, the wrong which has been perpetrated by the crime.
32 As such, it is to be regarded in normal sentencing terms as a matter which may lead to a mitigation of sentence.
33 Actual cooperation and substantial assistance should be rewarded by a significant deduction in the sentence in appropriate cases. In order to combat criminal activity, the authorities will often require information and assistance from those who have been within a criminal organisation or have had dealings with them. A reward in terms of sentence for such assistance sends a general message to others in a similar position and encourages them to inform on their colleagues.
34 In some cases a person assisting authorities may put themselves in real danger and this deserves recognition.
35 Actual assistance is perhaps the best demonstration of remorse.
36 However, it is important to recognise that a person is effectively buying their way out of a portion of an otherwise just sentence through cooperation and assistance. This currency should not be devalued by rewarding unnecessarily persons who do not provide actual assistance. The objective facts are all important. To win a substantial discount, an intention to assist is not enough; actual assistance is necessary. In most cases the provision of assistance will have to be verified by the appropriate authorities before a Judge can give weight to it. If, as in this case, the authorities do not verify the assistance, little weight can be placed on it.
37 In the present case it was open for the trial Judge to conclude that there was no actual assistance provided. The applicant's dealings with the police were hardly forthcoming.
Ground 1.4 Failing to give any or any sufficient consideration to the effect of a lengthy period of incarceration on her family and in particular on her son residing in South Africa
38 Leaving aside the question of the discount for an early plea of guilty, which correctly should not be regarded as a circumstance of mitigation at all, mitigating effects in relation to crimes of importation of narcotics are usually of little consequence.
(Page 12)
39 In Quach v The Queen [1999] WASCA 210, Ipp J, with whom Wallwork and White JJ agreed, said:
"In my view, his Honour did not err in finding that mitigating factors were of little consequence. The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force. See, for example Darwell v The Queen(1997) 94 A Crim R 35, Heryadi v The Queen (1998) 98 A Crim R 578, and Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998."
40 This reflects the sentiments expressed earlier by Ipp J, with whom Malcolm CJ and Kennedy J agreed, in Heryadi (supra) at 584:
"The applicant made a deliberate choice to participate in the criminal distribution of drugs, a trade known universally as being the cause of great harm and misery. He was unwilling to distribute drugs in his own country. He chose to do so in Australia, a country in which he had no ties, in which he was a stranger, in which he assumed no civic responsibility. He was content to drop off his parcel of drugs here, in the belief that the citizens of this country would suffer the consequences of his criminal acts while he had returned to Indonesia. In the circumstances, I do not regard his imprisonment in Australia as having any material mitigatory weight."
41 The Crimes Act 1914 (Cth) s 16A(2)(p) requires the court sentencing an offender to take into account:
"the probable effect of the sentence or order under consideration would have on any of the person's family or dependents."
42 In this case the applicant has come from an impoverished background in South Africa, she has a 63 year old mother in poor health and a 10 year old son. Her father has died and the father of her son is dead.
(Page 13)
43 The trial Judge made reference to her background in the course of his sentencing remarks. He did not specifically refer to s 16 in terms.
44 Counsel relied on Nguyen v The Queen [2001] WASCA 119. In that case an offender was sentenced to 8 years imprisonment. She was the sole carer of young children. A majority of the Court released her on recognisance.
45 There are however significant differences between that case and the present.
46 In the case of Nguyen v The Queen [2001] WASCA 72, the applicant had minimal involvement in importation. Counsel for Nguyen did not obtain the necessary information so the court could be properly informed. In the words of Malcolm CJ:
"… the learned Judge should have taken steps to obtain the necessary information by calling for a pre-sentence report. The failure to do so meant that the sentence was imposed without compliance with s 16A(2)(p) of the Crimes Act. That in itself is a sufficient reason to allow the appeal."
47 In the present case the trial Judge had the benefit of a comprehensive address by counsel. Additionally, the trial Judge had an oral pre-sentence report by a Community Corrections officer.
48 The other point of difference is the exceptionality of the factual circumstances. In the judgment of the Chief Justice in Nguyen v The Queen [2001] WASCA 119:
"The facts and circumstances of this particular case are very unusual, if not exceptional. The role which the appellant played in the commission of the offence was minimal. She was very much under the influence of her husband, but she was opposed to his activities with heroin and his use of heroin. These were the very things that caused the breakdown of the marriage immediately after the importation took place."
49 Those factors do not exist here. I do not regard the applicant's personal circumstances as sufficiently exceptional to justify intervention. Necessarily, persons who chose to travel to another country in order to commit a crime against the laws of that country will suffer the additional punishment of being separated in distance from family, relations and dependants. That is the essence of a conviction for smuggling.
(Page 14)
50 There is an additional reason why the court should not quickly intervene in respect of the circumstances of the applicant. She is no doubt typical of vulnerable people who are easy prey for drug cartels to act as couriers and the like. In Ilam v Dando (1999) 109 A Crim R 47 at 49 the court was dealing with people smuggling. Those comments are equally applicable to narcotic smugglers:
"The criminality of the conduct
These offences are part of a growing number of incursions into Australian sovereignty. No doubt the major criminals are those who stand in the shadows, taking large amounts of cash from hapless travellers who wish to enter Australia illegally. They employ persons, such as the appellants, to whom the prospect of owning their own boat, even a leaky antiquated boat, or the payment of $200, represents riches far beyond their reach in legitimate pursuits.
The introduction of illegal immigrants into Australia threatens this country's national security in many ways. It is a growing problem which requires Australia to take the necessary steps to protect itself. It is the nature of this nefarious trade in human cargo that persons such as the appellants, will often be recruited from among the poorer peoples of the region to supply the necessary transport and to take all the risks.
Notwithstanding their comparatively low level in the criminal hierarchy, nevertheless the appellants performed a pivotal role in the scheme and were vital to its success. It is necessary for courts to deal strongly with the appellants and those like them for the purpose of deterrence to others."
51 If it becomes generally known that impoverished persons with dependants will receive more lenient treatment if caught, they will become the very people who will be even more targeted by drug cartels as couriers.
Ground 1.5 Failing to have any or any sufficient regard for the need for consistency in sentencing in Commonwealth matters
52 This ground was not pursued. Counsel for the applicant abandoned an argument that the case of Wong (1999) 108 A Crim R 531 should become the guideline authority in Western Australia.
(Page 15)
53 In my opinion he was right to do so.
54 For the reasons expressed by Pidgeon J (with whom Kennedy and Murray JJ agreed) in Serrette v The Queen [2000] WASCA 405 at par 10:
"The submission in support of the ground claiming that the starting point of 15 years was excessive is that it is essential that parity be maintained in sentencing across the States for Commonwealth offences. The submission then referred to sentencing guidelines formulated by the Court of Appeal in New South Wales in R v Wong(1999) 108 A Crim R 531 in which was set out guidelines to apply to couriers and persons low in the hierarchy of the importing organisation. The figure assigned to an amount of between 1kg and 2 kg of cocaine was 7-10 years. This range of sentence is in a jurisdiction where there are no remissions. The effect of the submission is that in Western Australia, where there are remissions, the range of sentence would be between 9 to 13-1/2 years.
Conclusion
55 In my opinion the appeal has been made out on the ground that the learned Judge failed to give sufficient discount for her early plea of guilty.
56 I would encompass all matters of mitigation within that discount.
57 In my opinion the discount which the trial Judge ought to have applied was in the order of 25 per cent.
58 Accordingly, I would set aside the term of imprisonment of 10 years and substitute in its place a term of imprisonment of 9 years.
59 That necessarily requires an adjustment to the minimum term. I would set aside the minimum term set by the Judge of 5 years and 6 months and substitute in its place a minimum term of 4 years 9 months.
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