Readhead v The State of Western Australia
[2005] WASCA 191
•5 OCTOBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: READHEAD -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 191
CORAM: STEYTLER P
ROBERTS-SMITH JA
HEARD: 1 AUGUST 2005
DELIVERED : 5 OCTOBER 2005
FILE NO/S: CACR 61 of 2005
BETWEEN: DEAN MICHAEL READHEAD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
File No :INS 25 of 2005
Catchwords:
Appeal - Criminal law and procedure - Sentence - Five counts of armed robbery and one count of attempted armed robbery - Committed while offender on parole - Owing 1048 days on previous parole sentences - Aggregate term of 9 years' imprisonment imposed, cumulative on existing sentences - Principle of totality - Whether liability to serve existing sentences taken into account in fixing 9year term
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Category: D
Representation:
Counsel:
Appellant: Mr M R Gunning
Respondent: Mr K M Tavener & Mr C J Henderson
Solicitors:
Appellant: Gunning Young
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Connolly v The Queen [2000] WASCA 74
Cranssen v The King (1936) 55 CLR 509
Gibson v The Queen, unreported; CCA SCt of WA; Library No 950610; 15 November 1995
Herbert v The Queen (2003) 27 WAR 330
House v The King (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
McLean v The Queen [1999] WASCA 209
Miles v The Queen (1997) 17 WAR 518
O'Bryan v The State of Western Australia [2005] WASCA 43
Ord v The Queen, unreported; CCA SCt of WA; Library No 950535; 19 October 1995
R v Masterson, unreported; CCA SCt of Vic; 31 August 1982
R v Tait (1979) 24 ALR 473
Slowiak v The Queen [2004] WASCA 112
Stewart v The Queen [1999] WASCA 7
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996
Ward v The Queen [2001] WASCA 42
Case(s) also cited:
AB v The Queen (1999) 198 CLR 111
Cameron v The Queen [2002] WASCA 81
Miller v The Queen [2004] WASCA 84
Postiglione v The Queen (1997) 189 CLR 295
R H McL v The Queen (2000) 203 CLR 452
R v Duffy (1996) 85 A Crim R 456
R v Everett (1994) 73 A Crim R 550
R v Gordon (1994) 71 A Crim R 459
R v Herbert [2003] WASCA 27
R v Paparone (2000) 112 A Crim R 190
R v Payne (2002) 131 A Crim R 432
Wong v The Queen (2001) 207 CLR 584
STEYTLER P: I have read the judgment of Roberts‑Smith JA. I agree with it and with the orders proposed.
ROBERTS-SMITH JA: This is an application for leave to appeal against sentence.
On 4 April 2005 the appellant pleaded guilty to five counts of armed robbery and one of attempted armed robbery. The statutory maximum penalty in respect of armed robbery is life imprisonment and that for attempted armed robbery is 14 years' imprisonment.
The offences were committed on six occasions between 20 and 27 November 2004, when the appellant went to a variety of stores such as petrol stations, a late night convenience store and a pharmacy disguised and armed on five occasions with a large kitchen knife and on the other with a syringe.
At the time of the commission of the offences the appellant was on parole. He had been sentenced on 29 May 2003 for two offences of armed robbery in respect of which two terms of 5 years' imprisonment to be served concurrently were imposed, backdated to 9 January 2003, with eligibility for parole. He was in fact released to parole five days before the first offence in the present series.
Murray J sentenced the appellant to a total of 9 years' imprisonment without eligibility for parole. As at 4 April 2005 the appellant owed approximately 1048 breach of parole days from his previous parole sentence. His Honour ordered the sentence of 9 years' imprisonment to be served cumulatively upon the unexpired parole sentence.
The effect of the sentence is that the appellant will serve the 9‑year sentence in full until 3 April 2014, at the expiration of which he will then be liable to serve the 1048 breach days - an additional period of almost three years.
The appellant's notice of application for leave to appeal against sentence is dated 20 April 2005. There are three grounds.
"1. The learned Sentencing Judge erred in that the sentence of 9 years imprisonment was manifestly excessive having regard to the applicant's pleas of guilty, co‑operation and the effects of his psychiatric illness. (schizophrenia)
2. The learned sentencing Judge erred in placing too much weight on considerations of general and specific deterrence in light of the applicant's psychiatric illness.
3. The learned sentencing Judge erred in not properly applying the totality principle by failing to have regard to the applicant's liability to serve additional time in custody as a result of breach of parole days from a previous sentence.
PARTICULARS
(a)At the time of sentencing, the applicant owed approximately 1040 [sic] breach of parole days, a period of almost 3 years;
(b)The learned sentencing Judge took that into account as a reason for not granting parole on the basis that after service of the finite sentence, the applicant would still be able to be released on parole from his previous sentence;
(c)When fixing an appropriate head sentence for the offences before him, the learned sentencing Judge failed to take into account the applicant's liability to serve the parole days owing from his previous sentence;
(d)Given that the outstanding parole days constitute a term of imprisonment that the applicant is obliged to serve, the head sentence should have been reduced to take into account the totality of the overall sentence he would be required to serve."
The appellant was convicted on his pleas of guilty. The case came before Murray J by way of an expedited committal for sentence.
Count 1 was an armed robbery of the Ezy Plus supermarket in Subiaco. On 20 November 2004, the appellant prepared for the events by cutting two holes in a t‑shirt. Before entering the supermarket he placed the shirt over his head to conceal his identity. He approached the front counter and produced a large kitchen knife and threatened the 22‑year‑old shop attendant with it. At one stage he lunged at the complainant, slashing at him with the knife three or four times after the complainant refused to hand over any money. The appellant demanded cash and the complainant opened the register to comply, the appellant reaching over and removing $500 in notes from the till then running from the supermarket. No money was recovered.
Approximately two hours after he committed the first offence, the appellant went to the Caltex Star Mart in Leederville. He took a soft drink from the display and approached the attendant at the counter. He produced a syringe and threatened the 25‑year‑old attendant and a customer with it, causing the customer to flee the Star Mart. He demanded the attendant give him money from the cash register. The attendant placed the cash drawer onto the counter and the appellant removed $512. He threatened the attendant with the syringe should he be followed and then left the store. Again, no money was recovered. This was the subject of count 2.
The offence the subject of count 3 occurred approximately a week later on 26 November. At 2 am the appellant went to the Gull service station in North Perth. He had again prepared by cutting two holes in a shirt and before entering the service station, placed the shirt over his head to conceal his identity. He again had a large bladed kitchen knife with him. As he walked towards the front door of the store, the 26‑year‑old shop attendant saw him and was alerted that something may have been amiss because the appellant appeared to have something wrapped around his head. The attendant was able to lock the front door of the store before the appellant could open it. The appellant then left after failing to prise open the automatic doors.
The offence the subject of count 4 occurred two hours later when the appellant went to the Caltex service station in Subiaco. He had cut two eye‑holes and a mouth‑hole in a large plastic bag which he found outside the store. He placed the bag over his head and entered the store disguised in that way. He produced a large bladed knife, swung it around and threatened the 22‑year‑old attendant. The attendant removed the cash drawer from the till and placed it on the counter where the appellant removed $320 before leaving the store. None of the money was recovered.
The offence in count 5 occurred about 3 am the following morning. The appellant went to the BP Rose Garden service station in Nedlands. He had cut two holes in a t‑shirt which he placed over his head prior to entering the store in order to conceal his identity. He went to the counter where the complainant was working and produced a large bladed kitchen knife and threatened the 23‑year‑old shop attendant. He demanded cash. The attendant gave him $70 in notes. The appellant left the store. None of that money was recovered.
The offence in count 6 on the indictment occurred about five hours later. The appellant went to the Stirling Drive‑In pharmacy in Claremont. He approached the 19‑year‑old shop attendant at the front counter and threatened her with a large knife. He demanded cash from the register. The attendant complied, handing over approximately $1000. The appellant then left the pharmacy.
The appellant was arrested on 30 November in Maylands. At the time he had $470 in cash on his person which was believed to be part of the money from the Claremont pharmacy. He was taken to the Wembley detectives' office where he took part in a video record of interview in the course of which he made admissions in respect of the offences. His admissions included that he planned the offences several hours beforehand and prepared the t‑shirt and selected the syringe or knife.
As I have mentioned, he had been released on parole on 15 November 2004, only some five days before the commission of the offence in count 1.
Following his apprehension, his parole was suspended.
It is as well to begin by re‑stating some fundamental principles. There is a strong presumption that the sentence appealed from is correct. An appeal court cannot interfere unless the appellant demonstrates error of law or fact. That may be because the sentencing Judge acted upon a wrong principle or gave weight to extraneous or irrelevant matters, or failed to give weight, or sufficient weight, to relevant matters or made a mistake as to some relevant fact (House v The King (1936) 55 CLR 499; Cranssen v The King (1936) 55 CLR 509; R v Tait (1979) 24 ALR 473). Absent any identifiable specific error, a sentence will be set aside if it is so excessive, inadequate or inappropriate as to necessarily indicate there has been an error, otherwise undiscoverable, in the sentencing process. An appellate court may not set aside a sentence merely because it would have exercised its discretion in a different way. Error must be shown in one of the ways I have mentioned (Lowndes v The Queen (1999) 195 CLR 665, 671 ‑ 672).
Notwithstanding there are three grounds of appeal, only ground 3 was argued by the appellant. It is to that therefore that I now turn.
It is apparent from the dialogue between his Honour and counsel, in the course of their respective submissions, that his Honour was well aware of the appellant's existing parole situation.
In his sentencing remarks the Judge began by noting the appellant was a young man still of 35 years of age. He was the eldest of two children with a family history involving early separation by his parents and the loss of his mother. She left money and other assets to him in trust. In that respect at least, it could be said the appellant had support within the community. Otherwise, he was on a disability pension. In his early days he was able to engage in a variety of employment, all of a mainly casual nature, including agricultural work, employment as a laboratory assistant, delivery driver and service station attendant. His Honour noted the appellant lacked family support, noting his father's decision that while the appellant remained in the grip of abuse of unlawful drugs, he was not prepared to assist him. He referred to the appellant's drug consumption, particularly the intravenous use of amphetamines and that it was to fund that habit that he committed offences of the kind then before his Honour. He has a long‑standing illness of schizophrenia diagnosed first in 1993. That may initially have had something to do with drug‑induced illness, but since that time has become entrenched, although the psychiatric reports before his Honour indicated it was a condition amenable to control by appropriate medication. His Honour noted that from the reports before him, the appellant had marked social disconnectedness with poor interpersonal skills and no enduring relationships. He did require ongoing psychiatric treatment. His Honour concluded that the appellant's psychiatric illness was of a manageable kind such that the appellant was not incapacitated by it from ordering his life in a way which would not involve the commission of offences - yet his response had been otherwise. His Honour expressed concern that the pre‑sentence report suggested the appellant would continue to offend unless afforded assistance and being able to bring himself to a determination to deal with the issues which had direct causal relevance to the commission of offences.
The appellant had many previous convictions dating from 1988, although it was not until 2001 that the nature of the offending escalated to the substantial degree reflected by the offences then before the court. On 5 November 2001 he was sentenced for offences of armed robbery and burglary, but the intensive supervision order then imposed was not successful. He was before the Supreme Court again on 27 February 2002 to be dealt with for breaches of that order and further offences of burglary and stealing a motor vehicle. He was released on parole in July 2002, but again very shortly breached that and appeared in the Supreme Court on 29 May 2003 for sentence on two offences of armed robbery. He was sentenced to two terms of 5 years' imprisonment to be served concurrently and backdated to 9 January 2003. He was ordered to be eligible for parole. However, having been released on parole on 15 November 2004, the appellant commenced the sequence of offences which brought him before Murray J in April 2005. His Honour noted that sequence commenced only five days after the appellant had been released on parole.
At that point his Honour noted that since the appellant's return to prison in relation to the present matters, he had been serving the unexpired portion of the sentences imposed on 29 May 2003, although there was still a further period of that sentence which remained unexpired and which carried eligibility for parole.
His Honour then turned to the circumstances of the individual offences. He noted the only available mitigation was the pleas of guilty entered by the fast‑track process, although in his Honour's opinion that was no more than a series of pleas of guilty made in the conscious decision to cooperate in the justice process. He did not think it necessarily involved true remorse for the commission of the offences. He noted the appellant appeared to lack empathy for his victims. He said the offences required an element of deterrence of some substance to try to make clear to the appellant that if he wished to have any element of his life which in the future would not be spent in an institution, he would have to deal with the factors which caused him to commit these offences. His Honour also noted that offences of this kind, as serious as they are, required attention to general deterrence. His Honour said that if there were a more direct link than that demonstrated on the materials before him, between the appellant's mental illness and the commission of the offences, he might have thought it possible to respond differently and the question of general deterrence might assume less weight, but to his mind the link went no further than that. He said the appellant's circumstances are such that when he is released into the community he immediately feels himself to be without any support, stops taking his medication and commits offences for the purpose of funding a resumption of drug use. His Honour then concluded (AB 35 ‑ 36):
"One of the important factors, now that there are six offences before the court which need to be dealt with, is the total term of imprisonment which is to be imposed. I place on record so that you will understand it that I have had regard to that and have endeavoured to keep the total term within a length which is appropriate to the total criminality involved in the commission of the offences.
I have had regard to the fact that there are such a number of offences and I have reduced the length of the individual terms which I would have otherwise imposed and sacrificed to a considerable extent the accumulation of penalties which I would otherwise have ordered.
The question of parole eligibility has come to be a considerable matter of concern for me. I address that issue in relation to the offences before mindful, and against the background, that there remains a parole capacity in the sentences which were imposed on 29 May 2003 and which remains in part unserved. You remain eligible for parole in relation to those matters and the parole period which might be derived from those sentences would be of a significant length and one which could well be utilised to assist upon your release into the community but I repeat just finally the observation that unless you brought yourself at that point to the position where you would be able to take advantage of the less intensive supervision necessarily in the community by the parole services than that available to you in prison, then it won't work.
Having said that I have looked to the factors particularly described in section 89 subsection (4) of the Sentencing Act which are concerned with the circumstances in which I may decide not to make a parole eligibility order. It directs me that I may decide not to do that - it's still a discretionary matter - if I consider that you should not be eligible for parole because of at least two of four factors which are set out in the Act: in the first place the seriousness of the offence or offences before the court. I have spoken sufficiently already to the serious nature of these offences, as I regard them to be.
Secondly, I'm directed to look at the question of a significant criminal record and that certainly exists in your case - significant not only in relation to the repetition of the offences but the nature of the offences and the circumstances of the repetition. What they suggest is an ongoing incapacity to address the cause of the offending and prevent them happening again when ultimately you are released.
Thirdly, I am asked to address the question of when you were previously released from custody under a release order, such as a parole order or in one case an intensive supervision order, what your compliance was and in each case there has not been effective compliance with those orders. The circumstances now in my opinion are no different and suggest no more confidence could be placed in you in complying with a parole order.
My attention is drawn to any other reasons which I may consider to be relevant and I have spoken also of that. In my opinion it's important in this regard to note that there are clear causes for your offending and large among them is the substance abuse in which you habitually engage in the community and important in respect of that is your apparent present unwillingness to deal effectively with that so that you bring that under control when released into the community. For all those reasons in my opinion parole eligibility should be refused in this case.
The sentences I impose are these: they will all be ordered to be served cumulatively on the unexpired portion of the previous terms. For each of the five offences of armed robbery, I impose a sentence of three years' imprisonment. For the offence of attempted armed robbery, I impose a sentence of two years' imprisonment.
The three armed robberies which were counts 1, 2 and 4 - all serious examples of such an offence - are ordered to be served cumulatively upon each other and, as I have said, upon the unexpired portion of previous terms. The other sentences, although some should have been ordered to be served cumulatively, I impose concurrently; although concurrently with each other, also cumulatively on the previously imposed terms. The aggregate period of imprisonment is one of nine years. As I say, eligibility for parole is refused." (My emphasis)
Counsel for the appellant submitted that the effect of his Honour's sentence is that the appellant will serve the 9‑year sentence in full until 3 April 2014. On the expiration of that sentence, he will then be liable to serve the 1048 breach days, a period of almost 3 years. The appellant may be released on parole any time after 3 April 2014, but if not released, his sentences will not expire until February 2017.
It is not contended by the appellant that the sentence of 9 years' imprisonment is beyond an appropriate discretionary range, nor that his Honour's discretion in refusing eligibility for parole miscarried. The appellant's essential submission is that his Honour erred by not taking into account the appellant's liability to serve the breach of parole days when fixing an appropriate head sentence. The head sentence, although otherwise within an appropriate range, should, it is submitted, have been reduced to take into account his liability to serve that additional period.
There is no question as a matter of law that the proposition upon which this submission is founded is correct.
In McLean v The Queen [1999] WASCA 209 the applicant had been sentenced for two offences of aggravated burglary committed whilst on parole for previous offences. His parole was cancelled with 1773 parole days outstanding. His overall effective sentence was 6 years' imprisonment. Ipp J (with whom Wallwork and Parker JJ agreed) dismissed the appeals against the individual sentences on the grounds they were manifestly excessive, but allowed the appeal on the basis that the sentencing Judge had not taken into account the effect of the applicant's outstanding parole days.
His Honour held that although the possibility that the Parole Board might release an offender on parole is irrelevant in the sentencing process (Jarvis v The Queen (1993) 20 WAR 201) as the outstanding parole days constitute a term of imprisonment that the applicant is obliged by statute to serve, that term should be taken into account when assessing the totality of the overall term of imprisonment to be imposed for the offences the subject of the application for leave to appeal.
His Honour referred with approval to R v Masterson, unreported; CCA SCt of Vic; 31 August 1982, in which the Victorian Court of Criminal Appeal (Young CJ, McInerney and Southwell JJ) said apropos of this:
"… the Judge must take into account the liability of the prisoner to serve the unexpired portion of the parole period. That liability may be reduced or even obliterated by the Parole Board but it is not relevant for the sentencing Judge to take into account the policy of the Board in such cases: see R v Bruce [1971] VR 656. The policy likely to be followed by the Board is irrelevant and speculation as to what it will do must be excluded at the time of imposing sentence. But the fact of an applicant's liability to serve out the balance of a term is not an irrelevant consideration."
His Honour concluded that as the sentencing Judge had not had regard to the 1773 outstanding parole days, he had erred in the exercise of his discretion.
After dealing with other grounds of appeal, Ipp J returned to the parole issue. At [28] he said:
"I have previously concluded that there was an error in the sentencing process resulting from the omission to take into account the 1773 outstanding parole days. The totality principle requires this to be borne in mind when considering the overall effective sentence. The sentence should be proportionate to the degree of criminality involved and regard must be had to the exponential effect of the increased term of imprisonment resulting from sentences imposed from multiple offences: Jarvis v The Queen. Even though the individual sentences imposed by the learned sentencing Judge were not in themselves excessive, and it was appropriate in principle for the sentences in respect of the first and the second counts to be cumulative, nevertheless, when regard is had to the 1773 days yet to be served by the applicant, the totality principle requires some further amelioration of the sentences."
In the present case, if the outstanding parole days are added to the overall sentence of 9 years' imprisonment imposed by his Honour, the appellant is liable to serve a total of 12 years.
Although his Honour turned his mind to the question of parole and correctly appreciated that the desirability of the appellant being supervised upon release could be catered for by the ability of the Parole Board to release him on parole following completion of the 9‑year finite sentence, his Honour had no regard to the effect that the liability to serve the outstanding parole days had on the proportionality of the sentences overall.
The Judge's reference to keeping the total term within a length appropriate to "the total criminality involved in the commission of the offences" is clearly in context a reference to the six offences then before the Court. Likewise, his explanation that he had reduced the length of the individual terms which he would otherwise have imposed to accommodate the principle of totality was clearly related to the offences then before his Honour.
In the circumstances, I am satisfied that had his Honour turned his mind specifically to the question of totality in the context of not only the sentences to be imposed in respect of the offences before him, but the overall effect of those in combination with the outstanding sentence still to be served, he would have explained that.
I am reinforced in this conclusion by the fact that a 9‑year sentence imposed after 31 August 2003 equates to a sentence of 13 years 6 months' imprisonment imposed prior to that date. Thus, in order to impose the 9‑year sentence, his Honour must have considered one of 13 years 6 months to be served cumulatively upon the appellant's outstanding 3‑year term, was appropriate. An overall term of imprisonment of 16 years 6 months could, I think, properly be described as "crushing" in the circumstances of this case. It would not give due deference to the exponential effect of such a long sentence (see Herbert v The Queen (2003) 27 WAR 330; Jarvis v The Queen (1993) 20 WAR 201; O'Bryan v The State of Western Australia [2005] WASCA 43).
Furthermore, such a sentence is outside the range of sentences which have customarily been imposed in other cases involving multiple armed robberies. That is illustrated in a general way by the following cases:
•Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998: four counts of armed robbery – total of 8 years' imprisonment.
•Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996: eight armed robberies, one stealing motor vehicle, one attempted armed robbery – aggregate sentence of 10 years' imprisonment reduced to 8 years on appeal.
•Connolly v The Queen [2000] WASCA 74: two counts of armed robbery in company, one of armed robbery – aggregate of 8 years' imprisonment with no parole eligibility upheld.
•Ward v The Queen [2001] WASCA 42: six counts of armed robbery in company, one of armed robbery; two of stealing motor vehicles - aggregate sentence of 8½ years' imprisonment imposed 28 April 2000 cumulatively on sentence of 3½ years' imprisonment imposed on 18 August 1999 upheld.
•Gibson v The Queen, unreported; CCA SCt of WA; Library No 950610; 15 November 1995: seven counts of armed robbery, one of attempted armed robbery, one of burglary, other offences taken into account – aggregate sentence of 12 years' imprisonment upheld.
•Ord v The Queen, unreported; CCA SCt of WA; Library No 950535; 19 October 1995: two counts of stealing motor vehicle, one of armed robbery, two of attempted armed robbery, one of burglary, one of deprivation of liberty - aggregate of 9 years 19 weeks' imprisonment upheld.
•Stewart v The Queen [1999] WASCA 7: 22 counts of aggravated burglary, one of aggravated armed robbery, one of deprivation of liberty, one of criminal damage, seven of stealing motor vehicle – aggregate of 14 years imprisonment upheld.
Prior to 31 August 2003 the range of sentences for a single offence of armed robbery was from 6 to 9 years' imprisonment (Miles v The Queen (1997) 17 WAR 518; Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998; Slowiak v The Queen [2004] WASCA 112, [27]. For multiple offences, the highest sentence of which I am aware is that of 14 years' imprisonment in Stewart v The Queen, referred to above.
In my view, this ground has been made out and it follows that a different sentence should have been imposed (s 31(4)(a) Criminal Appeals Act 2004 (WA)).
The difficulty which this court immediately confronts is to make an assessment of culpability with respect to the offences for which the appellant was sentenced on 29 May 2003, so as to have regard to that in combination with his culpability for those before his Honour, in fixing an overall sentence which, with the unexpired term, would be proportionate to that overall culpability. All that appears about those earlier offences is that they were armed robberies of a kind similar to those before his Honour and committed in similar circumstances. Of course the fact they each attracted a sentence of 5 years' imprisonment is significant. In this particular case perhaps not much more need be known.
In re‑sentencing the appellant, I would impose the same terms of imprisonment as did his Honour in respect of each offence, but to accommodate the principle of totality additionally with regard to the combined effect of those sentences and that already outstanding against the appellant, I would reduce the aggregate by 2 years, so that he serves an overall sentence in respect of these offences of 7 years' imprisonment. I would accommodate that by ordering the sentence on count 2 to be served cumulatively on that in respect of count 1; the sentence on count 4 to commence after the appellant has served 12 months of the sentence in respect of count 2; the other sentences to be served concurrently with that in respect of count 1.
I would accordingly grant leave to appeal, allow the appeal, set aside the sentence imposed by his Honour and in lieu thereof, substitute the sentences I have indicated above.
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