Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against conviction - Plea of guilty - Whether equivocal - Miscarriage of justice - Circumstances in which a plea of guilty will be set aside - Turns on own facts

Criminal law and procedure - Appeal against sentence - Young offender - Previous good character - Whether term of imprisonment excessive in the circumstances - Turns on own facts

Sentencing Act 1995 (WA), s 47, s 48(4), s 50, s 51, s 76(2)

Borsa v The Queen [2003] WASCA 254

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496

Miller v The Queen [2001] WASCA 426

Tihanyi v The Queen (1999) 21 WAR 377

1 MALCOLM CJ: In my opinion, this appeal against conviction should be dismissed. I have reached that conclusion for the reasons to be published by Wheeler JA. There is nothing I wish to add. As to the appellant's application for leave to appeal against sentence, I agree that leave to appeal should be granted, the appeal allowed and the sentence of imprisonment imposed by the learned trial Judge should be set aside and substituted by a Conditional Release Order ("CRO") for a term of 12 months pursuant to s 48(4) of the Sentencing Act 1995 (WA) subject to the appellant giving a written undertaking pursuant to s 51 of the Act to pay an amount of money if, during the period of the operation of the CRO, he commits an offence.

2 Finally, I agree with Wheeler JA that it would be appropriate to hear submissions by counsel on behalf of the State and counsel for the appellant before determining the amount of the undertaking.

3 WHEELER JA: This matter arises out of youthful stupidity on the part of a significant number of young men, including the complainants and the appellant, which unfortunately had very serious consequences. The appellant was convicted on his own plea of guilty of unlawfully assaulting one Mason and doing grievous bodily harm to one Boyer on 5 May 2003.

4 The background facts of the matter are as follows. The appellant was 19 at the relevant time. The two complainants, Mason and Boyer, were aged 19 and 24 respectively. A couple of weeks prior to the offence, the appellant had been at a party. At that party he became involved in an "altercation" with a person not involved in this offence, who was a friend of Mason. Mason had apparently not been at the party, but was told afterwards about what happened (whatever that was - the circumstances were never really established and are not relevant). Shortly after becoming aware of what happened, Mason obtained the appellant's telephone number, telephoned him, abused him and made threats to him. Mason did not know the appellant. He had consumed a considerable quantity of alcohol at the time.

5 On the evening of the offence, Mason had again been drinking a significant quantity of alcohol. He again telephoned the appellant. It appears he telephoned the appellant approximately 16 times, although some of the later calls may well have been simply calls made to ascertain where the appellant was and whether he was proposing to carry out the agreement which I will shortly describe. The early telephone calls, however, were again in order to abuse and threaten the appellant.

6 The appellant appears to have consulted his co-offender, one Mok (who was 17), when he received these calls. It is not clear precisely how the agreement came to be made, but either the appellant suggested to Mason, or Mok suggested to Mason with the appellant's agreement, that Mason and the appellant should meet on Hossack Reserve in Parkwood where they would have a fight.

7 For some reason, Mason arranged for four friends to attend at Hossack Reserve with him. They included Boyer, who brought a plastic beer jug (perhaps from the hotel where he had been drinking when contacted by Mason). Mason brought what was described as a "trolley pole" being apparently the handle from a supermarket trolley. Some members of the group had some girls with them, who apparently remained in a motor vehicle on the edge of the reserve throughout the relevant events. The group of five stood around for a while on the reserve.

8 In the meantime, Mok had apparently telephoned a number of people in order to obtain support for the appellant. At one point in the video record of interview conducted with the appellant, he appears to admit that he may have been aware that up to eight others would be attending. However, a very significant number of others attended, the total crowd of the appellant and his "supporters" being estimated by people in the vicinity of the reserve at between 20 and 40. The appellant denied that any of those involved were known to him, and it appears to have been asserted that one group of Aboriginal youths were not known to Mok either, having just "turned up" and joined in.

9 Although the appellant initially denied even being at Hossack Reserve on the evening in question, he ultimately admitted in his video record of interview that he was at the reserve, that he was with Mok, and that a group of people, which he asserted numbered less than 20, had appeared to support him. It was his assertion that, although some members of that group later produced weapons to assault the complainants (apparently rocks and bottles), he did not see any weapons at the time at which they all met up at the edge of the reserve.

10 At the relevant time, one member of the complainants' group started to walk back to his car. The four others then saw a very large group of people running towards them. Two members of the complainants' group began to run back to their car, while the two complainants began to walk, so that they became separated. The large gang of youths surrounded the complainant Mason and began to hit and kick him, and Boyer was attacked when he went to assist. Mason's trolley pole and Boyer's jug

were taken from them and they were attacked apparently with fists, rocks, bottles, the trolley pole and the jug.

11 Mason received two black eyes, lacerations to the mouth, lips and cheek, grazing and severe bruising to the head and body. He was treated for injuries which required metal staples for cuts sustained to the head and face. Boyer was left in a more serious condition, with the bones around his eye sockets being shattered, as well as his sinuses. His eye sockets and sinuses had to be completely rebuilt using titanium mesh. He also sustained fractured ribs and a laceration to the lip which required stitching and fracturing to the top of the jaw. The injuries endangered his life, and it is possible he could have suffocated, but for a tracheotomy performed when he was taken to hospital.

12 As I have mentioned, the appellant initially denied having been at Hossack Reserve at all. However, in due course he admitted that he had agreed to meet Mason at Hossack Reserve, that he was aware that Mok was telephoning others to support him, and that a significant number of others arrived at the reserve to support him. He then said that, having seen the size of the group to support him, he was concerned, but that nevertheless he joined with the group. He said that at one time he told some of the group of people who arrived that the complainants wanted to kill him. He said that he ran with the group towards the two complainants, who he could see in the middle of the reserve. He said that he was shouting "Ah, ah, ah .... " or something to that effect. He said that he personally did not have a weapon and did not strike either complainant.

13 Apart from Mok, none of the other members of the group with the appellant had been identified or charged.

14 After counsel for the appellant had indicated, in her plea of mitigation, that the situation "took on a life of its own" which the appellant had not contemplated, there was some discussion between the appellant's counsel and his Honour the learned sentencing Judge as to the basis of the plea of guilty and what criminal responsibility the appellant accepted. After some pages of discussion of that issue, his Honour said, summarising his understanding of what was put to him (at AB 37):

"Yes, all right. On that basis - and he falls to be sentenced on the basis that he had an understanding, tacit or otherwise, with other people, some of whom physically attacked the two complainants and that his action in running on to the oval, shouting as he did with Adrian Mok and the others, was in furtherance of that purpose - - the purpose being to assault these two men; a group of 15 to 20, on his reckoning, of up to 40, according to the police officer in the video record of interview, but the State says 20 to 40 today."

15 The appellant's counsel agreed with that assessment and submitted that, once that number of people had become involved, there was really no ability of the appellant to control what was going to happen, although she agreed that he could have withdrawn by walking away.

16 The co-offender Mok received a 1-year term of imprisonment, suspended for 2 years, in the Children's Court.

17 There are effectively three related grounds under this heading. As I have noted already, the appellant pleaded guilty. He says, however, that the pleas were equivocal and should not have been accepted; that the pleas were "not properly informed" ones; and that he was "induced" to plead guilty by certain advice.

18 So far as the alleged equivocal plea is concerned, the principles are not in doubt. The plea itself was not, on its face, equivocal, but it is accepted that there may be something said after the entry of the plea and during the course of mitigation which may suggest that a plea of guilty is not a true admission of guilt, or perhaps is based upon some misunderstanding of the elements of the offence.

19 In this case, as I have noted, there was some discussion between the appellant's counsel and the learned sentencing Judge as to the basis of the plea of guilty. That was because it was put on the appellant's behalf that he was not anticipating that so many people would turn up and that, on one occasion, he had indicated that he did not wish to have any part in the violence. His Honour then clarified it in the way which I have already quoted, and the appellant's counsel agreed with that clarification.

20 As clarified by his Honour, the appellant's plea of guilty was accepted on the basis either that he had encouraged the others to run to the complainants to seriously assault them, or that he had formed a common intention with the others who were present to prosecute the unlawful purpose of engaging in an assault on the two young men, and that it was a probable consequence of the prosecution of that purpose that the two complainants would be injured by way of bodily harm or grievous bodily harm. It was not necessary for the purpose to be an unlawful one that the appellant have the intention personally of assaulting the young men; it would be enough if the purpose was for one or more of the group he was with to do so. Nor was it necessary for the group intention to be formed expressly by discussion. Having regard to the number of others present, and to the fact that they had been attracted to that place in order to assist with a fight, the facts were clearly open to the drawing of a conclusion that grievous bodily harm to at least one of the two young men attacked was a probable consequence.

21 On that basis, there was consistency between the appellant's plea, the statement of material facts, and his Honour's clarification of the basis of the plea. What was put to his Honour thereafter in mitigation by the appellant's counsel did not detract from the essential elements of the plea, but was directed rather to establishing that the appellant had not organised the attack on the complainants, and had made his decision to participate at the last moment, and at a time when he was under considerable stress by reason of the earlier telephone calls, and the unexpected appearance of so many persons unknown to him. It is therefore my view that his Honour was entirely justified in accepting the plea and in being satisfied, as he was, that what was put to him in mitigation did not contradict it.

22 The second and third of the grounds of appeal tend to run together, and seek to persuade the Court that the pleas should be set aside. It is no easy matter for an appellant to persuade a Court to set aside a conviction based on a plea of guilty. The appellant, in such a case, must show that there has been a miscarriage of justice: Borsa v The Queen [2003] WASCA 254 at [20] per Steytler J. The three well recognised circumstances (albeit not exhaustive) that will amount to a miscarriage of justice and result in the plea of guilty being set aside are: where the appellant did not understand the nature of the charge, or did not intend to admit guilt; where upon the admitted facts, the appellant could not in law have been guilty of the offence; and where the guilty plea has been obtained by improper inducement, fraud or intimidation, and the like: Borsa v The Queen at [20], Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157 per Dawson J, and cases there cited. The appellant appears to rely upon the latter two circumstances.

23 The appellant's affidavit deposes that he was represented by Ms Amsden from Legal Aid. She is, of course, counsel experienced in criminal law. He deposes that at no stage did she advise him that he had a defence, or an arguable defence. Rather, he deposes that she told him that he was guilty and "can't argue it". It is the appellant's case that Ms Amsden told him that a trial would cost the government about $75,000, that he would be found guilty at the end of it and would get a 5-year prison sentence as a result, so that he would be better off pleading guilty. She is also said to have advised him that the DPP would not seek a sentence of imprisonment, and that he would not receive a harsher sentence than the co-offender Mok, because Mok was the principal offender.

24 On the basis of all this material, the appellant submits that he had an arguable defence of which he was not properly advised, and that the representation as to sentence induced him to make a plea which he would not otherwise have made.

25 Aspects of that affidavit are disputed in an affidavit sworn by Ms Amsden, at the Court's request, setting out her recollection of her discussions with the appellant. Before I turn to it, it is, I think, desirable to consider what the strength of the case against the appellant may have been and whether there was, indeed, any arguable defence, since it was contended, perhaps somewhat faintly, by the appellant's counsel that the appellant "could not in law have been found guilty of the offence" on the basis of the statement of material facts. That submission, in my view, cannot be sustained. Although the statement of material facts touches very lightly on the video record of interview, relevantly saying only that the appellant "subsequently admitted to being involved in the group - of being part of [the] attack, however denied personally striking the complainant", there was, nevertheless, sufficient in that statement of material facts to sustain the appellant's conviction.

26 As I have already said, it was clear from the statement of material facts that in the middle of the night, having arranged a fight, the appellant ran with a large group of others towards the two complainants. The obvious purpose, one would infer to be the purpose shared by those in the group running towards the complainants, was that the complainants would either be seriously assaulted or at the very least threatened. Having regard to the surrounding circumstances, there was also material to ground a conclusion that it was a probable consequence of that common purpose in the circumstances that grievous bodily harm would be done to at least one of the complainants.

27 Not only was there sufficient material in the statement of material facts to justify the conviction, but, in my view, there was also, in any event, a very strong State case, involving the following elements. The injuries to the complainants were undeniable. There were clear admissions on the videotape from the appellant that he knew that the other youths were there, and were there to assist him, and that there were, on his reckoning, at least eight others. There were on the videotape clear admissions from him that he had run towards the complainants shouting, with that group. Given the surrounding circumstances, a reasonable jury could well have inferred that the only available inference was that the purpose of the members of the group, including the appellant, was to seriously assault, or at the least to threaten, the complainants.

28 If one looks at s 8 of the Criminal Code (WA), perhaps the more difficult question was whether it was a probable consequence of that purpose that injuries of the severity of those which occurred would be caused. In that context, much might turn on the view which the jury took as to the number of persons who had, in fact, attended at the reserve and been seen by the appellant before he began to run towards the complainants. An issue might also arise as to whether they accepted that he did not see any of the weapons which some of the group undoubtedly carried, before they were produced to attack the complainants. This Court, of course, has no way of judging how a jury would have assessed that issue. However, whether the appellant gave evidence, or whether he relied upon a variety of partly exculpatory statements which he made during the course of his video record of interview, a difficulty which he would face in having a jury accept that his was a possible version of events would be that his credibility might be considered to be significantly diminished by the various untrue accounts which he gave during the early part of the videotape.

29 Alternatively, rather than having a doubt as to what the agreement between the appellant and the others present had been, the jury may have been prepared to infer that, in all of the circumstances, the only possible agreement, tacit or otherwise, was that some, or all, of the group members would assault the complainants, making the appellant a party to that assault pursuant to s 7 of the Code. In that case, the issue of probable consequence would not arise.

30 The appellant does not suggest that he had a "defence" in the positive sense of there being any material, additional to that in the State's case, or contradicting that in the State's case, which he would wish to advance. Rather, as I understand it, it was submitted that the "defence" arose in the sense that I have already discussed; that is, that it could be submitted to the jury that they should have a reasonable doubt in the respects which I have mentioned.

31 Against that background, it is not surprising that, as the appellant deposes, Ms Amsden did not advise him that he had a "defence". Nor would it be surprising if he was advised that he was better off pleading guilty. That seems to me to be the advice which an experienced criminal lawyer would appropriately give a person in the position of the appellant.

32 If it had been the case that Ms Amsden had advised the appellant that his case was unarguable, I would accept the submission made on behalf of the appellant that that advice was incorrect. However, in Ms Amsden's affidavit sworn 7 April 2005, she takes issue with that point. She deposes that she did advise the appellant to plead guilty, on the basis that it appeared to her that the video record of interview was voluntary and contained admissions. She deposes that she told the appellant that it was probable that a jury would find him guilty and that the punishment by the Court after trial would be greater than that which would be imposed after a plea of guilty, explaining that that was because of the experience of having the complainants give evidence and the cost to the community of the trial process. She also explained to the appellant that a plea of guilty demonstrated genuine remorse and contrition.

33 It is her evidence that she advised the appellant, however, of the appropriate procedure for both a plea of guilty and a plea of not guilty. She explains that a Legal Aid client is "always" advised that they may have a trial and put the prosecution to proof in relation to an indictable offence. Although she does not say so in this paragraph, it seems to me that Ms Amsden at that point is deposing that it was her invariable practice in Legal Aid cases, such as this, to give that advice. Ms Amsden annexes to her affidavit a copy of the notes she made of her interview with the appellant, and of the statement of material facts annotated during her discussions with him. It is apparent that there are certain discrepancies between his initial instructions and the admissions which he made on the videotape, which Ms Amsden viewed after her first appointment with him.

34 In a further affidavit of the appellant, in reply to Ms Amsden's affidavit, he agrees that she did read ss 7, 8 and 9 of the Criminal Code to him. He agrees that he had viewed the video record of interview after collecting it from Ms Amsden's office. However, he deposes that he had "no recollection" of Ms Amsden saying that he could have a trial and put the prosecution to proof and reiterates his belief that she advised him that he had no choice but to plead guilty. Although that further affidavit was filed on behalf of the appellant, there was no suggestion from the appellant's counsel that either the appellant or Ms Amsden should attend the Court to be cross-examined in relation to their affidavits. Rather, the Court was simply left in the position of having before it affidavits which conflicted in certain respects. This is unsatisfactory.

35 In the end, however, it is for the appellant to persuade the Court that there is a reason to set aside the apparently voluntary plea which he made. That question cannot be determined in his favour on the basis of conflicting affidavits. It is not appropriate for the Court to attempt to resolve the conflict in the absence of cross-examination. If it were appropriate to do so, I should indicate that Ms Amsden's account appears to me to be more probable. One can understand how a lay client, inexperienced in the legal system, might well interpret very strong advice to enter a plea of guilty as advice that no other course was possible. One can also understand how, in a novel and stressful situation such as that which faced the appellant, some aspects of the advice which he was given might have been misunderstood or forgotten. The difference between his account and Ms Amsden's is not very great; it turns on the question of whether he was given very strong advice that it would be desirable to plead guilty, or whether he was advised that he had no alternative but to plead guilty. In those circumstances, it seems to me very likely that Ms Amsden, quite properly, strongly advised the appellant that entering a plea of guilty was the preferable course and that the appellant understood that as meaning that he was not in a position to plead not guilty.

36 So far as the appeal against conviction turns on the advice given in relation to whether there was a defence, and whether the appellant had the option of pleading not guilty, it is my view that it must fail.

37 There is then a strand to this aspect of the appeal which relates to advice which is said to have been given by Ms Amsden that the State would not be seeking a term of imprisonment. Ms Amsden confirms that the investigating police officer advised her that Mok had received a suspended sentence, and, to the best of her recollection, he advised her also that he would recommend to the DPP that the appellant should not get any greater sentence than Mok. She also deposes that she understood from an officer of the DPP who had been dealing with the file at an earlier stage that a sentence of imprisonment would not be sought, although she does not set out in her affidavit the basis of that belief.

38 In the event, the DPP prosecutor did submit that a sentence of imprisonment should be imposed, and his Honour agreed with that submission. Although there is no affidavit evidence to this effect, we were advised that the relevant DPP officer did not recall giving any undertaking of the sort which appears to be suggested by Ms Amsden's affidavit. It is not necessary to resolve this question, for the reasons which appear below.

39 The question of sentence is, of course, one which falls within the province of the sentencing Judge, and although submissions made by both the offender and the State will be taken into account, the Judge is not, and cannot be, bound by any agreement which might be reached between counsel. Nothing in the affidavit of the appellant, or in any of the other materials before us, suggests that the appellant was advised that his Honour would be bound by any view which the State might, or might not, choose to put. He did understand that a plea of guilty was likely to result in a more lenient sentence, for the reasons mentioned in Ms Amsden's affidavit, and that understanding was correct. I am unable to see anything in the advice relating to the likely attitude of the State which would justify quashing the conviction and setting aside the appellant's plea.

41 I have already set out the circumstances of the offence. The appellant's personal circumstances were very much in his favour, and I turn to those in a moment. Notwithstanding those personal circumstances, however, his Honour reached the view that only a sentence of imprisonment could be justified and it must be served immediately. He put it in this way (at AB 45):

" ... in my view the seriousness of the grievous bodily harm offence and your part in it is such that ... only a sentence of imprisonment to be immediately served can be justified." (Emphasis supplied)

42 It can be seen that his Honour's view was apparently, and properly, based upon not only the seriousness of the grievous bodily harm, which was objectively serious in the sense that the relatively young complainant suffered grave injury, but also upon his Honour's evaluation of the appellant's part in that offence. However, his Honour's analysis of the appellant's part in that offence amounts to this. The appellant had arranged to meet the complainant Mason for a fight. The appellant then arranged for support. A large number of people appeared and the appellant did not depart the scene. The appellant ran with the mob, at the forefront of it, yelling as he went. His Honour expressed the view to the appellant that, "[y]ou were instrumental in a very real sense in the mob being there; you were part of the mob, and extreme violence was perpetrated on the victims by members of that mob" (at AB 45).

43 There are, in my view, some difficulties with this analysis. One is that the "support" which the appellant arranged appears to have been limited to arranging for Mok to attend. The State did not suggest, as I understand it, that the appellant personally had organised for all the others to attend, and the appellant, in his video record of interview, had denied doing so. It is true that when the "mob" appeared, the appellant ran with it, yelling as he went. However, he denied that he personally had attacked either complainant, and there was no reason to question that denial. Further, in his analysis, his Honour accepted that "[t]hings plainly got out of hand" (at AB 45).

44 The appellant's "part" in the violence, then, was limited to failing to depart, and running with the mob, at a time when things plainly had begun to get out of hand and the fight which he contemplated had turned into a much larger enterprise. It was a decision made late at night, within a very short time-frame. Once the others had appeared, it appears that the appellant had very little time within which to decide what he was going to do. His decision was made in a stressful situation: the appellant appears to have been uncertain as to what the reaction of the others would have been had he tried to withdraw from the enterprise, and he had, during the course of the preceding evening, been the subject of a very large number of threatening and abusive phone calls from the complainant Mason, which had plainly made him somewhat anxious. It is my view that his Honour has unfortunately confused the seriousness of the result - that is, the violence perpetrated on the two complainants by those members of the group who did personally attack them - with the role which the appellant played in bringing about that result, that role being a fairly limited one. It is true that the appellant was, in one sense, the cause of that violence, since it was his arranging to meet Mason in the first place which had led to the subsequent events, but he was not the organiser of those subsequent events.

45 As I have mentioned, the appellant's personal circumstances were very much in his favour. He was 191/2 years of age at the time of the offence, and therefore relatively young. He had no prior convictions. Further, he had very good antecedents. He had a number of very positive character references from his then employer, and from a variety of work colleagues and family friends. It was said that he did not drink alcohol or take drugs, and he generally avoided physical confrontation. He had given up his own time to participate in charity work at Princess Margaret Hospital on several occasions, and was said to be a volunteer in a community-based high school. He was currently studying youth work and hoped to pursue further studies in due course, perhaps to obtain a social work degree. His aim at that time was to be a youth worker and there was a real prospect that he would face some difficulties in obtaining future employment in that field because of his conviction. It was accepted that he was genuinely remorseful.

46 In my view, all of the material before his Honour pointed in one direction. The appellant was a young man of previously very good character, he was both willing and able to make a positive contribution to the community. He had found himself in a difficult and threatening situation, and had reacted to it in an immature and impulsive way. That reaction had led him to become caught up in a violent episode which was entirely foreign to his normal way of life. He had failed to withdraw from that situation when he should have done so, but the part he had played in it was very limited. Notwithstanding that those events led to very serious consequences, the appellant should not have been sentenced to a term of imprisonment to be served immediately.

47 In my view, the very unusual mitigating circumstances - that is, the appellant's youth and very good character, and the bizarre nature of the situation in which, as a result of the complainant Mason's threats, he found himself - are such as not to call for a term of imprisonment. In my view, it would have been appropriate to impose a community based order, together with a community service requirement.

48 The problem with doing that now, in resentencing the appellant, is that it appears to me that the effect upon the appellant would be unduly onerous, if he were required to undertake community work and be the subject of supervision under a community based order of appropriate length, having already served approximately half of the non-parole period of the sentence of imprisonment imposed. I have considered whether, as the appellant's counsel suggests, I might simply suspend the term of imprisonment imposed by his Honour. However, s 76(2) of the Sentencing Act 1995 (WA) provides that suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. For the reasons I have already given, I am not of the view that imprisonment for a term would be appropriate, in all the circumstances.

49 It therefore seems to me that the only appropriate sentence to substitute in the unusual circumstances of this case is a conditional release order. I do consider that there are reasonable grounds for expecting that the appellant will not reoffend during the term of the Conditional Release Order ("CRO"), and that he does not need supervising by a Community Corrections Officer (s 47 of the Sentencing Act) by reason of his prior lack of convictions and his good character. I would therefore make a conditional release order, for a term of 12 months, in respect of the appellant. That order, pursuant to s 48(4), will begin on the day the order is imposed. I do not propose to make any order that the appellant reappear before this Court pursuant to s 50, but I am of the view that it is appropriate, given the seriousness of the offences, that the appellant give a written undertaking to pay an amount of money if, during the period of the CRO, he commits an offence (s 51). It appears from the materials in the appeal book that, prior to his imprisonment, the appellant was in employment. However, the Court has no information about his means, and it is, in my view, appropriate to hear from the State and from the appellant's counsel before setting the amount of the undertaking.

50 LE MIERE AJA: I have read in draft the reasons for judgment to be delivered by Wheeler JA. I agree with the disposition of this appeal proposed by her Honour and her Honour's reasons.

• The appeal against conviction
• The appeal against sentence