Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Plea of guilty to two charges of assault and a charge of rape - "double punishment" - Totality principle - Changes in sentencing practices - Sentence of two and a half years manifestly inadequate - Sentence of four and a half years' imprisonment substituted.

Baldock v Tasmania [2015] TASCCA 3; R v Kilic [2016] HCA 48; Mulholland v Tasmania [2017] TASCCA 2, considered.

CJP v State of Tasmania [2015] TASCCA 9, referred to.

Criminal Law - Appeal and new trial - Appeal against sentence - Appeals by Crown - Principles applied by appellate court to Crown appeals.

Director of Public Prosecutions v Harington [2017] TASCCA 4, referred to.

Judgment Number: [2017] TASCCA 15

1. Sentence imposed by Blow CJ on 31 May 2017 quashed.

3 In lieu, respondent to serve 4½ years' imprisonment with a non-parole period of 2 years and 3 months.

1. The first 71 days of the substituted sentence are to be served concurrently with the sentence being served by the respondent as at 31 May 2017 and the balance cumulative to it.

1. The respondent, Mr H, pleaded guilty to two charges of assault and a charge of rape. On 31 May 2017 he was sentenced by Blow CJ to imprisonment for two years and six months.
2. The Director of Public Prosecutions appeals the sentence. The sole remaining ground of appeal is that the sentence is manifestly inadequate.

1. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J concisely enumerated the principles relevant to appeals against sentence on the basis of manifest excess or inadequacy. His Honour said at [8]-[9]:

"8 As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.

9 It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476:

'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions'."

1. I recently re-stated them in Stebbins v Tasmania [2016] TASCCA 6 at [34]- [37].
2. In Director of Public Prosecutions v Harington [2017] TASCCA 4, Pearce J summarised the considerations where the appeal is brought by the State on the ground of manifest inadequacy. His Honour said at [95]-[96]:

"95 This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]- [2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]- [116]. In Everett v The Queen, McHugh J said at 306:

'Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.'

96 The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appealable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66]."

1. In sentencing the respondent the learned sentencing judge described the circumstances of the respondent's offending as follows:

"All of these charges relate to an incident last September, when he became very angry with his then partner.

In November 2014 a judge in Queensland sentenced Mr H to three years' imprisonment in relation to some burglaries. He became eligible for parole in November 2015. The complainant had been a friend of his for some time. She offered to provide him with accommodation. Arrangements were made for him to be released on parole and to live with her. She became his partner. He became close to her two children, whose father had died as a result of a drug overdose. However the relationship between Mr H and the complainant ran into difficulties. He moved out of her house, and went to live at a friend's place, but he continued to see the complainant and her children. He regarded their relationship as continuing.

On the day in question they spent some time together at a friend's residence, and then at Eastlands, without any difficulty. However an argument developed over the complainant's sexual involvement with another man. She of course was free to do whatever she liked with other men, but Mr H became jealous, angry and violent.

Mr H was driving the complainant's car. She was in the front passenger seat. He drove her around for several hours against her will. Depriving another person of his or her liberty constitutes the crime of assault. Mr H has pleaded guilty to a charge of assaulting the complainant by depriving her of her liberty in the car. He drove her as far as her father's home about 80km from Hobart, but her father was not home, and he continued driving. They stopped several times.

During the car trip Mr H assaulted the complainant by punching her to the face on several occasions. Those punches are the subject of the second assault charge.

At one point in the journey, Mr H stopped the car and repeatedly demanded that the complainant re-enact the sexual activity that she had had with the other man. Mr H filmed what happened with his mobile phone. the complainant was crying and plainly terrified. Mr H exposed his penis and compelled the complainant to suck it while he recorded the act on his phone. By compelling her to engage in an act of oral sexual intercourse against her will he committed the crime of rape.

As a result of the assault, the complainant suffered two black eyes, as well as some swelling to the back of her head. She was in physical pain for about a fortnight. The psychological impact was worse than the physical injuries. She feared for her life, though Mr H had not made any threat to her life. She found the punching and the torment of the long car trip more disturbing than the oral rape. She has suffered a range of psychological symptoms since the day of the attack. She was taking antidepressant medication before that day, but her problems have been exacerbated very significantly."

1. The learned sentencing judge described the respondent's personal circumstances as follows:

"Mr H was 38 years old on the day in question and is now 39. He has a long criminal record, with many convictions for crimes and offences of dishonesty, and for drink-driving offences. He has no prior convictions for offences involving violence or sex. However he has been sent to prison many times.

He started using illicit drugs when he was about 15 years old. Most of his convictions appear to be drug-related. To his credit, he managed to cease using illicit drugs in about 2013 or 2014, before being sentenced to imprisonment in Queensland. After his release on parole Mr H obtained paid employment for the first time in his life. He continued to hold that employment up to the time of his arrest. He enjoyed his relationship with the complainant's children, whom he would take to the football. He made some new law-abiding friends.

He has had long-standing problems with depression, and became very depressed when he thought the complainant was sexually involved with another man. He began to drink alcohol heavily, avoided contact with his parole officer, and became uncontactable. To his credit, he did not go back to using drugs. After his arrest he volunteered to participate in a program for prisoners called the Stopping Violence Program. He attended all the required sessions over a period of about eight weeks and received a very positive report on completing the program. It counts in his favour that he took steps with the aim of not resorting to violence in the same way again."

1. His Honour then proceeded to make the following comments:

"Mr H pleaded guilty in unusual circumstances. He evidently did not have a good memory of his crimes. Arrangements were made to pre-record the complainant's evidence pursuant to the Evidence (Children and Special Witnesses) Act 2001. During that hearing, the prosecutor played to the Court the recordings that Mr H had made on his mobile phone on the day in question. He had recorded a number of events including the punching and the oral rape. He and his counsel had not seen the recordings before. His counsel obtained an adjournment, and he decided to plead guilty. That plea of guilty saved the State the cost and inconvenience of a trial, and it spared the complainant the ordeal of cross-examination, but only after she had come to Court expecting to be cross-examined.

Mr H has been in custody since 28 September. His parole was revoked on 9 December. Since then he has been serving the Queensland sentence again. I will take into account the period from 28 September to 8 December (41 days inclusive) when sentencing. I will also take into account the totality principle. That is to say, I will impose a slightly lenient sentence because Mr H is already serving another sentence. Because of the steps he has taken towards rehabilitation, I will impose the shortest possible non-parole period.

This is a very serious case of violence by a man towards his partner, motivated by jealousy and anger, and the sentence must reflect that.

Mr H, I convict you and, by way of a global penalty, sentence you to two years six months' imprisonment. The first 41 days of this sentence will be concurrent with the sentence you are currently serving, and the balance will be cumulative with it. You will not be eligible for parole until you have served one half of this sentence. I order you to pay your victims of crime compensation levies of $150 within 28 days after your release from prison."

1. Even taking into account the totality principle, the lack of any prior convictions for sexual crimes or crimes of violence and the respondent's completion of the Stopping Violence Program, I am of the view that the learned sentencing judge's sentence was wholly inadequate and I am persuaded that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence.
2. Having correctly observed that the case was a very serious one of violence by a man towards his partner, motivated by jealousy and anger, and that the sentence must reflect that, his Honour proceeded to impose a sentence that, to my mind, did not do so.
3. In Mulholland v Tasmania [2017] TASCCA 2 at [11] Pearce J made the following observations as to the crime of rape:

"The crime of rape is always serious. It involves infliction of violence and degradation on victims. It generally calls for a sentence reflecting the need for punishment, denunciation and retribution, providing the victim with appropriate vindication and protecting the public. Rape is a crime which also ordinarily requires a sentence which seeks to deter others from similar conduct. In Sentencing in Tasmania, 2nd ed, par11.409, Professor Warner noted that a single count of rape ordinarily attracts a sentence of imprisonment of three to four years, and that a sentence of five years or more is appropriate for serious cases. Her text was cited with approval by this Court, albeit in a slightly different context, in Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418, per Slicer J at 426 [14], and Evans J at 442 [37]. According to the Sentencing Advisory Council Research Paper on Sex Offence Sentencing, April 2013, between 2001 and 2011, 92% of sentences for a single count of rape were immediate custodial sentences. The minimum term for a single count of rape was 12 months' imprisonment and maximum five years' imprisonment. Nothing said by this Court in Baldock v Tasmania [2015] TASCCA 3, an appeal dealing with a sentence for a very serious single instance of rape, suggests error in the length of the sentence now under appeal. On the information available to me there are numerous examples of longer sentences for single instances of rape. The sentencing judge was not bound to any particular range, but the material to which I have just referred gives some indication about whether the sentence he imposed reveals error or misapplication of principle."

1. His Honour went on at [12] to describe some of the features of more serious examples of the crime of rape. They included violence over and above the force necessary to commit the rape, subjection to serious sexual indignity and prolonged rape.
2. The rape in the present case was the forcing of the respondent's partner to suck his penis. That was a gross violation of the complainant but was not an event that was of itself violent. However it was accompanied by violent conduct in the form of the assaults leading up to and surrounding the rape, and that conduct was prolonged and subjected the complainant to serious sexual indignity. The complainant suffered two black and swollen eyes, lumps to the back of her head and was in pain for two weeks following the assault.
3. I regard the commission of the crime of rape as a serious example of that crime, accompanied as it was by the two assaults charged, and the context of the commission of all of those crimes. Before any discount for the respondent's late capitulation and plea of guilty, the crimes, in my view, ought to have attracted a sentence of five years' imprisonment or more in order to reflect the need for punishment, denunciation and retribution, to protect individuals from violent attacks at the hands of jealous and controlling partners, and to provide the particular complainant in this case with appropriate vindication.
4. Having watched the video of his attacks on the complainant so callously filmed and narrated by the respondent on his mobile phone, I am satisfied that his conduct was vicious, repeated and protracted, and was terrifying and dehumanising for the complainant. She thought she was going to die if she did not take the respondent's penis in her mouth.

1. I would allow the appeal.
2. Taking into account the matters to which I have referred, and having regard to the observations of members of this Court (including my own) in Baldock v Tasmania [2015] TASCCA 3, and the sentences reviewed in that case, I would set aside the learned sentencing judge's sentencing order to the extent that the head sentence imposed was one of 2½ years' imprisonment. I would substitute therefor a sentence of 4½ years' imprisonment. I would not disturb the non-parole order.

1. I have had the benefit of reading, in draft, the reasons for judgment of Estcourt J. I agree with those reasons and his Honour's conclusion that the impugned sentence was manifestly inadequate. I also agree with his Honour's conclusion that before discount for the plea of guilty, a global sentence of five years' imprisonment is appropriate, and, further, that with a discount for the plea, the appropriate sentence is 4½ years' imprisonment.
2. There are a number of serious aspects to the criminal conduct in this case which, in my view, were not adequately reflected in the sentence imposed at first instance. Firstly, the sentence was a global sentence imposed for a number of separate acts of criminal behaviour. The assaults were serious examples of that crime. The complainant was deprived of her liberty for several hours. She was verbally abused and punched to the face on a number of occasions. She believed that she was going to die. Her terror lasted for an extended period. The conduct constituted a brutal and callous exercise of power in circumstances where there was a clear imbalance of power. Given the history of the relationship as outlined by defence counsel in the plea in mitigation, it was an example of family violence. It was conduct which breached the trust inherent in the relationship between the complainant and the respondent.
3. In my view, the assaults alone warranted a head sentence in the order of 2½ years. The rape constituted additional criminality which warranted further punishment. This is not a case where the imposition of further punishment for the rape amounted to the imposition of "double punishment" for the same criminal conduct. In Baldock v Tasmania [2015] TASCCA 3, Pearce J noted that the imposition of extra punishment for the aggravated burglary committed when the rape in that case took place, would amount to double punishment because the fact that the rape had taken place in the victim's home was regarded as an aggravating factor in respect of that crime. However, in this case, the violent conduct constituting count 2 had occurred at a different time to the rape and was not directly associated with the rape. Further, the deprivation of liberty which constituted count 1 had occurred over an extended period of time and ought be considered separately for the purposes of punishment, rather than as an aggravating factor in respect of the rape. The rape was an additional feature of criminal conduct and deserved separate punishment.
4. The totality principle was engaged in the sentencing process in this case for the following reasons:

(a) The sentence related to separate acts of criminality, each of which deserved separate and condign punishment.

(b) The sentence was being imposed on a person who was already serving a sentence for other crimes.

1. The learned sentencing judge acknowledged the relevance of the totality principle and indicated that he would impose a "slightly" more lenient sentence because the respondent was serving another sentence. It was certainly appropriate for his Honour to review the aggregate sentence, including the sentence that the respondent was already serving, in order to determine whether that aggregate sentence was just and appropriate having regard to the overall criminality. The principle was referred to by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 when the court (per curium) approved and adopted a description of the principle contained in Thomas, Principles of Sentencing, 2nd ed, 1969, 56-57:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

1. The relationship between the aggregate sentence and the overall criminality is often referred to as the first limb of the principle. The second limb of the totality principle requires the avoidance of a "crushing" sentence. This term was referred to by Dawson and Gaudron JJ in Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295 at 304, when their Honours again endorsed an extract from Thomas, Principles of Sentencing, by noting that a purpose of the totality principle is "to ensure that an offender is not subjected to 'a crushing sentence not in keeping with his record and prospects'". The learned author indicates that this second limb "represents an extension of the practice of mitigation". The further explanation is that mitigating factors may resonate differently in the context of the overall sentence than in respect of each individual component of the sentence.
2. However, while the totality principle certainly requires the Court to have regard to these matters, it does not automatically follow that a sentence will be adjusted downwards simply because separate punishment is being applied for different aspects of criminality. In this case, the totality principle did not require any significant downward adjustment if a sentence in the order of 2½ years was imposed for the assault, and a further sentence imposed in respect of the rape. Further, the fact that the respondent was serving a sentence for separate crimes committed in Queensland in 2011, and imposed in 2014, did not require any significant downward adjustment. Each aspect of criminality deserved significant punishment, and a sentence of five years in aggregate, served cumulatively to the existing sentence was proportionate to the overall criminality for which the various sentences had been imposed. Further, such a sentence could not be said to be "crushing" having regard to the respondent's "record and prospects". Apart from the plea of guilty, there was little mitigation available to the respondent. He was a mature offender with an extensive history of convictions for serious crimes, albeit not crimes involving violence. He had been sent to prison on many prior occasions. He was on parole when he committed the crimes in question. The objective seriousness of those crimes was high and the respondent had demonstrated little, if any, remorse. The discount for the plea of guilty was based on the utilitarian benefit of the avoidance of the cross-examination of the complainant.
3. I accept the submission of counsel for the appellant, Ms Mason, that the rape had a number of aggravating features. The act of rape, in the abstract, is inherently violent. However, the rape in this case was laden with actual and threatened violence. The complainant was particularly vulnerable, having regard to her prior treatment and the intimidation exercised by the respondent to obtain her compliance with his wishes. Further, the crime can be seen to have been calculated to punish and degrade the complainant. The act of oral rape has an inherent quality of degradation and humiliation, and emphasises the imbalance of power extant at the time of commission of the crime. The presence of that quality in this case is obvious upon viewing the recording of the crime. The filming of the acts by the respondent was a further degrading and humiliating aspect of the respondent's criminality.
4. The use of the crime as an act of punishment is closely connected to the fact that this was also an act of family violence perpetrated in response to the respondent's perception that the complainant had commenced a relationship with another man. Violence of this nature involves a significant breach of trust. The complainant had agreed to go for a drive with the respondent because of their relationship. Hence, the trust inherent in the relationship had placed the complainant in a vulnerable position and the respondent in a position to be able to commit these crimes. Trust is an essential element of a domestic relationship and the breach of trust which occurs when family violence is perpetrated is abhorrent and contrary to community expectations. These sentiments are reflected in the Family Violence Act 2004 and have been expressed by the courts on many occasions. See, for example, Price v Tasmania [2016] TASCCA 22, per Estcourt J at [39].
5. In my view, the crime of rape justified separate punishment in the order of a head sentence of three to four years. Such a sentence is compatible with current sentencing standards. These were discussed in some detail in Baldock v Tasmania (above). However, as Blow CJ noted in CJP v State of Tasmania [2015] TASCCA 9 at [2]:

"It may be that the time has come for consideration to be given to the imposition of longer sentences in this State for serious sexual crimes. According to a research paper published by the Sentencing Advisory Council in April 2013, sentencing levels in Tasmanian courts for sexual offences are lower than they are in other Australian jurisdictions: 'Sex Offence Sentencing - Research Paper', at 37."

1. I respectfully agree with the sentiment expressed by his Honour. The research paper referred to by him has now been supplanted by the Final Report by the Sentencing Advisory Council, "Sex Offence Sentencing" released in August 2015. The report confirmed the significant disparity between Tasmania and other States with respect to sentencing for sexual offences generally, including rape. An indication of the comparison is reflected in the observation that the median sentence for rape in Tasmania is three years "compared to five years in Victoria, six years in New South Wales and seven years in Queensland". Although considerable caution must be exercised in relation to the use of such statistics to support broader conclusions, it does provide some support for the underlying basis of the sentiment expressed by the Chief Justice.
2. An incremental change in sentencing practices can be justified by changes in community attitudes, or simply by the more precise application of existing sentencing principles. The latter can result in sentences reflecting and responding to developments in the understanding of the impact of particular offences. This was acknowledged by the High Court in R v Kilic [2016] HCA 48 at [21]:

"Section 5(2)(b) of the Sentencing Act 1991 (Vic) required Judge Montgomery, and the Court of Appeal, to have regard to 'current sentencing practices'. The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders**]**. Consideration of 'current sentencing practices' will include, where appropriate, the proper use of information about sentencing patterns for an offence. The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations." [Footnotes omitted.]

1. See also R v M, WJ [2005] SASC 272, 155 A Crim R 175, per Sulan J at [39].
2. The devastating impact of rape on a victim has long been acknowledged by the courts. As Wright J said in Farrell v The Queen A36/1996, [1996] TASSC 58 at [14]:

"The crime of rape is a distressingly prevalent offence and deserves severe punishment. It invariably causes great trauma to the victim and such trauma often persists for many years. It can effectively shatter lives and relationships."

1. Although it is not appropriate in this case to examine in any great detail the current understanding of the general impact of sexual offending on victims, it is a reasonable observation that the experience of the courts is that there is now a better understanding of the significant long-term impact of sexual offending on victims, than existed in the past. This better appreciation of impact may warrant an increase in sentencing, as a reflection of the community's denunciation of the commission of such crimes, the need for vindication of victims and general deterrence. Because of the nature of such recognition as a sentencing factor, any general increase in sentencing is likely to occur incrementally, in accordance with the process explained in Kilic. A reduction in disparity with interstate sentencing standards would be an expected consequence of that evolution.
2. In any event, in this case, as has already been observed, the sentence imposed was so far below the level of a reasonable sentence, having regard to existing sentencing standards, that error is plainly demonstrated.
3. There is no reason in this case to otherwise dismiss the appeal in the exercise of the residual discretion of the Court having regard to the fact that this is a prosecution appeal. I have already dealt with the question of totality and issues such as delay and parity are not applicable. I would allow the appeal and substitute a global sentence of 4½ years' imprisonment. Counsel for the appellant pointed out that the proper allowance for unallocated time spent in custody before sentence was, in fact, 71 days, not 41 days as calculated by the learned sentencing judge. I agree that the full period of 71 days should be served concurrently with the existing sentence, with the balance to be served cumulatively with it. I agree also that the order that the respondent not be eligible for parole until he has served one half of the sentence should not be disturbed.

1. I have read the reasons for judgment of Estcourt and Brett JJ and agree with their reasons and their conclusion both that the appeal should be upheld and their substituted sentence on consideration of the resentencing hearing.