R v Arnold [1998] VSCA 34

2. I agree with the reasons for judgment of Phillips, J.A. and the orders which he proposes

7. The Court has just delivered judgment in R. v. Heazlewood, dismissing an application under s.13(1) of the Sentencing Act 1991 to have this Court fix a non-parole period in circumstances where it was said there had been a "failure", within the meaning of s.13(1), on the part of the sentencing court "to fix a non-parole period in accordance with section 11". This is another such application. In Heazlewood we held that, although the sentencing Judge did not fix a non-parole period, that was done deliberately in the exercise of the discretion conferred upon the sentencing court by s.11(1)(b) and on that footing there had been no relevant "failure" within the meaning of s.13(1). In this case too the sentencing Judge did not fix a non-parole period, but it is s.11(2) which is in issue - not s.11(1) - and that is an important difference.

10. Indeed the facts generally of this case could not be more different from those in Heazlewood. Heazlewood involved an offender charged with armed robbery, with an appalling criminal record. The applicant comes before the Court with no relevant convictions. On 12 September 1997, he pleaded guilty in the Magistrates' Court to four charges arising from the discovery at his house of a number of marijuana plants under cultivation hydroponically. The first of the four charges was trafficking in cannabis L between 4 January 1997 and 4 March 1997; the second, cultivation of cannabis on 4 March 1997; the third, using cannabis L on 3 March and the fourth, theft of electricity. Convictions were recorded in respect of each charge and the applicant was sentenced, on the first charge, to 12 months' imprisonment; on the second, to 12 months' imprisonment; on the third, he was simply convicted and discharged; and on the fourth, he was sentenced to three months' imprisonment. All sentences were concurrent and the total effective sentence was of 12 months' imprisonment. Nothing was said about any minimum term

13. By notice dated 12 September 1997, the applicant appealed to the County Court under s.83 of the Magistrates' Court Act 1989 . At the commencement of the hearing of the appeal, the second charge was withdrawn and the applicant abandoned his appeal against the orders made in respect of the third charge. Evidence was led for the Crown about the discovery of the crop of cannabis L and of the applicant's admissions to police concerning the setting up and maintenance of the hydroponic plantation, including the theft of electricity for that purpose, and about his personal use of the cannabis; he made no admissions about its sale to others. Indeed, objection was taken in the course of the hearing to questions concerning market value, because, it was said, there was no evidence that the crop was being sold, which the Crown conceded. The applicant stood charged with "trafficking" because he was found in possession of a "traffickable" amount.

16. On behalf of the Crown his Honour was advised that, while the question whether there should be an immediate custodial sentence was a matter for him, the option existed of combining an intensive correction order with a fine as provided by s.22 of the Sentencing Act 1989 . Full restitution had been made by the applicant to the electricity company. On behalf of the applicant detailed submissions were made and character and medical evidence was called; written character references and psychological and medical reports were tendered. It was submitted on his behalf that the applicant's age, background, character, antecedents, co-operation with the police, personal circumstances and potential exceptional hardship to his family in the event of actual imprisonment, all dictated that the appropriate disposition should be a wholly suspended sentence.

19. That submission was scarcely surprising. According to the evidence, the offences stemmed from the applicant's chronic addiction to cannabis L. A 37 year old builder, he had constructed a hydroponic system for cultivating cannabis L to meet his own needs. Whilst denying the charge of trafficking (and as I have said there was no evidence of sale), the applicant had been fully co-operative when interviewed by the police, as already described. The evidence was that the applicant was a reliable, hardworking family man who had a stable relationship with his wife and his young children. His wife suffered from epilepsy and had a serious heart condition which was exacerbated by anxiety. The applicant had no addiction other than for cannabis. He was remorseful and assessed by a clinical psychologist as unlikely to offend. All of this went strongly to support the submission made, that a suspended sentence should be considered.

22. At the conclusion of submissions on sentence, the Judge simply stated that the orders of the Magistrates' Court were set aside and that in respect of the charges relating to trafficking and theft (i.e., the first and fourth charges) the sentences imposed by the Magistrates' Court were re-imposed; that the charge of cultivation (the second charge) was dismissed (although that charge had earlier been withdrawn); and that in respect of the only other charge (that of use) the applicant was convicted and discharged. It is difficult to see how his Honour made this last order as, according to the material before us, the appeal in respect of that charge had already been abandoned. Nevertheless the result of what was announced is plain: despite the applicant's appeal, the total effective sentence imposed below of 12 months' imprisonment was confirmed, and again no reference was made to the fixing of a non-parole period. What is remarkable is that the Judge, we are told, gave no reasons at all for so disposing of the appeal.

25. One would hope that such a failure on the part of an appellate Judge to give any reasons whatever when announcing his determination is an occurrence which, if not unique, is very uncommon. It has frequently been emphasised how important is the giving of reasons to the process of judicial decision-making: see, for example, De Iacovo v. Lacanale [1957] VicRp 78; [1957] V.R. 553 at 557-559 (where the earlier cases are recounted), Pettitt v. Dunkley [1971] 1 N.S.W.L.R. 376 at 380-382 (where again earlier authorities are recounted), Palmer v. Clarke (1989) 19 N.S.W.L.R. 158 (where the nature of "the common law duty" imposed upon a judge was emphasised), Soulemezis v. Dudley (Holdings) Pty. Ltd. (1987) 10 N.S.W.L.R. 247, especially at 278-281 per McHugh, J.A., Sun Alliance Ins. Ltd. v. Massoud [1989] VicRp 2; [1989] V.R. 8 at 19-20 per Gray, J.). In stating the relevant principles, it is always accepted that there is no universal obligation on the decision-maker, even though it be a court, to give reasons (for which proposition Brittingham v. Williams [1932] VicLawRp 35; [1932] V.L.R. 237 at 239 is commonly cited) and what is sufficient by way of reasons in a given case will always depend upon the circumstances (of which Wightman v. Johnston [1995] VicRp 81; [1995] 2 V.R. 637 is a recent example). In Soulemezis at 280, McHugh, J.A. (as he then was) said that "the extent of the duty to give reasons is related `to the function to be served by the giving of reasons'" (quoting Mahoney, J.A. in Housing Commission of N.S.W. v. Tatmar Pastoral Co. Pty. Ltd. [1983] 3 N.S.W.L.R. 378 at 386). McHugh, J.A. also pointed out (as did Gray, J. in Massoud) that the obligation to give reasons could no longer be seen as dependent upon the existence of a right of appeal: as to which see Tatmar Pastoral at 386 and Public Service Board (N.S.W.) v. Osmond (1986) 159 C.L.R. 656 at 666-667 per Gibbs, C.J.(although of course the hearing of an appeal has often provided the occasion for pointing out the difficulties created by the absence of reasons below). The duty to give reasons, qualified though it is, can be recognised now as "an incident of the judicial process".

28. On an appeal like the present, to the County Court from the Magistrates' Court, there is no further right of appeal to the Supreme Court unless the County Court imposes a prison sentence when the Magistrates' Court did not: Magistrates' Court Act s.91(2). So the applicant could have no further right of appeal in this case, and I should have thought that that made it more, not less, important that he should be told by the Judge why he was being gaoled for 12 months. The affidavit material in support of the present application that this Court fix a non-parole period does not canvass the original proceedings in the Magistrates' Court, though it may be supposed that the reasons given then for the sentences imposed would not have been elaborate; and, importantly, the appeal to the County Court was by way of hearing de novo. On both counts the applicant was entitled, I think, to hear from the Judge why his sentence of imprisonment was being re-imposed, especially in the light of the significant character and medical evidence tendered. Yet he was told nothing. The absence of any reasons, however briefly expressed at the conclusion of the hearing, must have left the applicant with a justifiable sense of grievance. Perhaps the Judge did take a more lively interest in the appeal than his determination, so briefly announced, would appear to indicate, but the applicant could be forgiven for thinking otherwise. (On this application the Judge sent to us by way of "report" his handwritten notes - apparently of evidence - but they were very difficult to read and as there was no proper basis for our treating these notes as a "report", we had no choice but to ignore them.)

31. Granted that the duty to give reasons is never one to be expressed in absolute terms, none the less I find it difficult to conceive of a case in which a County Court judge, after hearing evidence on an appeal from the Magistrates' Court, would not be required to give reasons, although perhaps there is a danger in being too dogmatic. To quote McHugh, J.A. in Soulemezis at 279:-

"But when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons."

In Ex parte Powter, re Powter (1945) 46 S.R.(N.S.W.) 1 at 4, Jordan, C.J. said:-

"There is another matter which cannot be allowed to pass without notice. As already mentioned, the magistrate has neglected to give any reasons for his order. This was wrong. It has been pointed out time and again that orders by magistrates made under legislation such as this 'are of the gravest moment, and involve life long consequences. They are not like the ordinary kind of orders in other petty cases that come before them every day. ... Magistrates should realise, even more than they seem to do, that this class of business is not mere ordinary trivia work, and they should deal with these cases with a due sense of the responsibility which administration of the Summary Jurisdiction Act and the far reaching consequences of the orders that they make thereunder entail': Barker v. Barker (1906) 95 L.T. 549."

Jordan, C.J. was speaking here of the duty of magistrates when making maintenance orders; what his Honour said can only apply a fortiori to a County Court judge hearing an appeal in a criminal matter. It is regrettable that this Court should have to say so.

38. In this case, I have no doubt but that reasons were required for the determination that was announced by the County Court Judge so briefly at the conclusion of the hearing. Indeed, it may be that the failure of the judge to do anything but pronounce orders might have attracted other remedies in the circumstance that no appeal lay otherwise, but that is not a matter which falls for a determination, and I pass it by. All that matters now is the Judge's failure to fix a non-parole period; for it is that which grounds the present application under s.13(1) of the Sentencing Act.

41. As adjusted by s.30 of Act No. 109 of 1994, s.13 (1) is in these terms:-

"(1) The failure of the sentencing court to fix a non-parole period in accordance with section 11 does not invalidate the sentence but- (a) the [Court of Appeal] in respect of a sentence imposed by the Supreme Court or the County Court; or (b) the County Court in respect of a sentence imposed by the Magistrates' Court - may, on the application of the offender or of the Secretary to the Department of Justice fix a non-parole period in accordance with that section in any manner in which the sentencing court might have done so."

The first question for us is whether in this instance there was a failure on the part of the County Court Judge "to fix a non-parole period in accordance with section 11". Obviously no non-parole period was fixed, for no mention was made of it at all. But is that a relevant "failure" within the meaning of s.13(1)?

46. In Heazlewood the duty of the Judge to fix a non-parole period was governed by s.11(1)(b); here it is s.11(2) which is relevant. It is convenient, however, to set out s.11 in full.

"(1) If a court sentences an offender to be imprisoned in respect of an offence for - (a) the term of his or her natural life; or (b) a term of 2 years or more - the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate. (2) If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole. (3) A non-parole period fixed under sub-section (1) or (2) must be at least 6 months less than the term of the sentence. (4) If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under sub-section (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed."

Section 11 thus speaks three times in mandatory terms: in subs.(1) whereby the court "must" fix a non-parole period unless it is of a certain view; in subs.(3) whereby the non-parole period "must" be at least 6 months less than the head term; and in subs.(4) whereby the non-parole period "must" relate to the aggregate period of imprisonment. In contrast, s.11(2) confers a discretion upon the sentencing court in a case like the present, 12 months' imprisonment having been ordered.

51. The Crown submitted that we should take the Judge to have exercised the discretion conferred by s.11(2) and to have decided in the exercise of that discretion to fix no non-parole period, an option which was open to him. But I think not. Ordinarily, a failure by a sentencing judge to advert expressly in his sentencing remarks to the question whether to fix a non-parole period will not sustain the inference that he gave the matter no consideration; for it may be supposed that a sentencing judge, who embarks upon a proper determination of the matters put before him for decision, will have in mind his obligations under s.11 and, if then he fixes no non-parole period, even if he gives no reasons therefor, it may be inferred that he has determined against fixing one. In R. v. Watts (unreported, Court of Appeal, 18 February 1998) Charles, J.A., drawing upon the earlier judgment of Batt, J.A. in R. v. Sener (unreported, Court of Appeal, 22 May 1997), said at pp.4-5:-

"As Batt, J.A. said in Sener at 5, it is desirable that the sentencing judge give reasons where no non-parole period is fixed; a view with which I agree, with respect. See also R. v. Krasnov & Shlakht (1995) 82 A.Crim.R. 92 at 99. But a sentencing judge is not obliged to give reasons for not fixing a non-parole period; Sener, at 5-6; R. v. Dung (1991) 55 A.Crim.R. 475, at 477; R. v. Yates, unreported, Court of Appeal, 17 February 1998, at 11-12. As Batt, J.A. said in Sener, at 5, it has been the practice of this Court to proceed on the presumption of regularity, that is on the assumption that consideration has been given to the question, even though there is no express mention of it in the judge's sentencing remarks, in the absence of an indication that the question was not in fact considered. Such an indication might appear in various ways. It may, for example, be apparent on the face of the judge's reasons that no consideration was given to whether a non-parole period should be fixed; or the course of argument may lead to the drawing of the necessary inference; or the sentence of imprisonment actually imposed may, in the circumstances of the case, be in important respects unusual, so that one would expect reasons to be given if no non-parole period was fixed (see Krasnov & Shlakht, at p.99)."

55. The reasons for presuming regularity though the sentencing court gives no reasons for failing to fix a non-parole period are obvious enough: the obligations under s.11 are well known and it may be supposed that any judge with experience in sentencing will be alive to the option conferred by s.11(2) where the sentence imposed is of imprisonment for less than two years but not less than one. In this instance however, when no reasons at all were given for any of the decisions announced, any assumption that consideration was given to the fixing of a non-parole period must give way to inference. First, the affidavit material before this Court, showing the complete absence of any reasons for the determination announced, opens the way for an inference on this occasion that the sentencing judge did not advert to the possibility of fixing a non-parole period. That inference is made the more compelling in that there was nothing, so far as I can tell, in the nature of the offending or in the circumstances of the offender that would justify the court's declining to fix a non-parole period; quite the contrary. And during the course of the proceeding, we are told, no reference was made by anyone - counsel or Judge - to the fixing of a non-parole period. In all the circumstances (and I do not rest simply on the absence of reasons in relation to a non-parole period) I think the inference is inescapable (as Batt, J.A. thought it was in Sener) that the sentencing judge simply failed to advert to that possibility.

58. What follows from that? Is that a "failure" on the part of the County Court judge "to fix a non-parole period in accordance with s.11"? The Crown submitted that s.13(1) has no application because, s.11(2) being discretionary, there is no requirement to fix such a period and therefore no relevant "failure" within s.13(1). Applicant's counsel made the bold submission that s.13(1) was either concerned only with a failure to observe the express requirements of s.11 (such as s.11(3)) or it extended to every case in which a non-parole period had not been fixed. He then contended that the latter must be the correct interpretation of s.13(1) if Callaway, J.A. was right in R. v. Gibb [1997] 2 V.R. 576 at 577 when his Honour expressed the view that relevant failure could lie either in a purported fixing of a non-parole period that did not comply with the strictures of s.11 or in a simple failing to fix such a period at all. In my view neither of the two extremes suggested by applicant's counsel represents the correct view of s.13(1). Our decision in Heazlewood shows that not every failure on the part of the sentencing court to fix a non-parole period attracts the jurisdiction conferred by s.13(1), but because in contrast to s.11(1), s.11(2) is permissive rather than mandatory in terms, I must say something more about s.13(1).

61. The legislative precursor to s.13(1) was s.537A of the Crimes Act 1958 , a section introduced by Act No.6572, the Crimes (Sentences and Parole) Act 1959 . The parole system was first established in Victoria by the Penal Reform Act 1956 (Act No.5961) which set up the parole board and provided by s.26 that when a person was convicted and sentenced to a term of imprisonment, if the term imposed was not less than 12 months the Court "shall", and if the term imposed was less than 12 months the Court "may", fix a lesser term (called "the minimum term") during which the offender should not be eligible to be released on parole. Section 26 ended with this proviso:-

"Provided that the court shall not be required to fix a minimum term if the Court considers that the nature of the offence and [sic] the antecedents of the offender render the fixing of a minimum term inappropriate."

This proviso is plainly reflected in the concluding words of s.11(1) of the present Sentencing Act 1957 . The word "and" was changed to "or" in 1991.

66. The provisions of the Penal Reform Act concerning parole were replaced first by ss.521-537 of the Crimes Act (Act No.6103), s.530 replicating the earlier s.26, and then in the following year by ss.521-541 of the Crimes Act 1958 , s.534 reflecting s.530. But provision having thus been made for the sentencing court to fix a non-parole period, in part in mandatory terms, no provision existed for neglect or default by the sentencing court in this respect until s.537A was inserted into the 1958 Act as already mentioned. Section 537A commenced thus:-

"(1) Any term of imprisonment imposed (whether before or after the commencement of the Crimes (Sentences and Parole) Act 1959 ) by any court shall not be invalidated by reason only of the failure of the court to fix a minimum term as required by this Act or by the purported fixation by the court of a minimum term not in accordance with this Act."

In such cases, the Full Court or the County Court (as the case required) was authorised "on the application of the Director General of Penal Services" (later the Director General of Social Welfare) to "fix a minimum term in accordance with this Act" in any manner in which the sentencing court might have fixed such term.

71. Section 537A in terms operated only where the sentencing court failed "to fix a minimum term as required by this Act" or where if the sentencing court purported to fix a minimum term it was "a minimum term not in accordance with this Act". In Governor of H.M. Gaol at Pentridge, ex parte Cusmano [1966] VicRp 78; [1966] V.R. 583 the Full Court rejected that argument that s.537(1) did not encompass a case in which there was no power in the Act to fix any minimum term at all, saying:-

"But in any event the language of s.537A is wide enough to cover all situations where there is a purported minimum sentence 'not in accordance with the Act', whether that arises from the fact that the Act does not authorize any minimum term at all in the circumstances, or only authorizes some particular minimum term."

Section 537A became s.193 of the Social Welfare Act 1970 (an Act first known as the Community Welfare Services Act 1970 and then as the Community Services Act 1970 ) and then s.18 of the Penalties and Sentences Act 1985 , before becoming s.13(1) in the Sentencing Act 1991 . I agree with Callaway, J.A. in Gibb at 577-8 that there is no reason to suppose that s.13(1) of the 1991 Act was intended to apply in circumstances discernibly different from those in which s.537A came into operation, and, as the Full Court said in Cusmano at 586, s.537A was "obviously designed to meet irregular applications of s.534" (which is now s.11). The expression "the failure of the sentencing court to fix a non-parole period in accordance with s.11" extends therefore, not only to a purported fixation which is not in accordance with s.11 (in the sense of authorised by s.11), but also to a failure of the Court to fix a minimum term "in accordance with s.11" (again in the sense of authorised by s.11).

76. That is why s.13(1) is concerned not with every failure to fix a non-parole period but only with a failure to act in accordance with the authority to fix non-parole periods as specifically conferred upon the sentencing court by s.11, or, to put it more shortly non-compliance with s.11 Section 537A authorised only the Director General of Penal Services (or of Social Welfare) to make application in cases to which the section applied. It was only in the 1991 Act that the right to make application was extended also to the offender, and that in itself suggests that s.537A and its successors were concerned only with a certain type of error or mistake (non-compliance with what is now s.11) and not otherwise with the particular manner in which a discretion conferred by s.11 may have been exercised in a given instance. The manner in which the discretion has been exercised is of course called in question generally on an appeal against sentence. Commonly the offender has such a right to appeal (if sometimes only by leave) and there seems no reason to suppose that s.13(1) was intended to provide an alternative remedy in every such case (although, as the Court observed in Joseph Charles Zarb (1996) A.Crim.R. 55 at 62, nor should s.13(1) be taken to limit the otherwise ample jurisdiction to review error on an appeal). The view that s.13(1) is concerned only with non-compliance with s.11 is supported too, I think, by the provision made by s.13(1) - as indeed the original s.537A - that relevant "failure" should not "invalidate" the sentence otherwise imposed, something which may perhaps hark back to the days when sentencing was the province largely of courts of petty and general sessions with their strictly limited jurisdiction: see the discussion of invalidity in Cusmano at 585-6 and R. v. Flint [1967] VicRp 48; [1967] V.R. 446 at 448. The term "invalidity" may not be so easily applied in that way to the judgments and orders of a superior court of record, but s.13(1) is framed to have general application to all courts and anyway its provision in this respect may be directed not to ultra vires but to the extent to which error in the fixing of the non-parole period may be taken to infect with appealable error (or "vitiate") the rest of the sentencing process: for example Iddon and Crocker (1987) 32 A.Crim.R. 315 at 328 and see the discussion of this in Zarb at 61-62.

79. Accordingly, I would conclude that s.13(1) is indeed concerned only with irregularity, and in particular a failure on the part of the sentencing court to fix a non-parole period in accordance with the provisions of s.11. It was common ground before us that if the sentencing court fixed a non-parole period contrary to the provision made by s.11(3) that would attract the jurisdiction conferred by s.13(1) - and so it would; it is a clear case of failing to act in accordance with the dictates of s.11. So too, I should have thought, a failure to abide the statutory injunction in s.11(4) and, it may be supposed after Cusmano, the fixing of a non-parole period in circumstances where s.11 did not authorise one; to that extent s.11 should be taken as prohibiting by implication where it does not expressly authorise. As for cases where imprisonment is ordered for a fixed term of two years or more, s.13(1) would apply to a failure by the sentencing court to fix a non-parole period, subject only to this: that the sentencing court was not of the view mentioned in the proviso commencing "unless". In Heazlewood we held that when s.11(1)(b) applies s.13(1) is not called into operation if the sentencing court is of opinion "that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate"; for that is not a failure on the part of the sentencing court to act in accordance with the dictates of s.11(1), but a following of them. As we said in Heazlewood, where s.11 authorises the sentencing court, in the proper exercise of its discretion, to take the very course it does in not fixing a non-parole period, that failure to fix a non-parole period does not call s.13(1) into operation.

82. On this occasion, s.11(2) permitted the sentencing court not to fix a non-parole period, because the head sentence was for only 12 months. On one view, then, it might be thought to follow from Heazlewood that s.13(1) could not apply, but that is not so. Section 13(1) would not apply in a case where the sentencing court, exercising the discretion conferred upon it by s.11(2), decided not to fix a non-parole period. That would be akin to the position in Heazlewood under s.11(1). But in a case like the present, where the sentencing court failed altogether to consider fixing a non-parole period under s.11(2) - and for all we can tell remained unaware of the existence of its discretion under s.11(2) - s.13(1) is, I think, called into operation. Section 11 (2) is properly understood as importing, by necessary implication, a requirement that the sentencing court consider whether to fix a non-parole period or not; that is of the very essence of s.11(2): Watts at pp.4-5 per Charles, J.A. Here, the sentencing court disregarded that implied requirement to consider the fixing of a non-parole period and so failed to act according to s.11. That constituted a "failure" within the meaning of s.13(1) "to fix a non-parole period in accordance with s.11" and so s.13(1) is called into play.

85. For these reasons I reject the submission of the Crown that this is not case to enliven the jurisdiction conferred on this Court by s.13(1). The application is well-

founded and we must now decide for ourselves what non-parole period if any should be fixed, exercising that discretion which was available to the sentencing court but which was ignored by it. The task is described by the President in R. v. Mulvale (unreported, Court of Appeal, 20 February 1996) at p.11 where his Honour said that the fixing of a non-parole period

"... requires discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision."

This was reiterated in R. v. Bernath [1997] 1 V.R. 271 at 278-9 per Callaway, J.A. and Sener at p.5 per Batt, J.A.

91. As earlier indicated I think it plain in this case that a non-parole period should have been fixed; everything points that way. I have already described the circumstances of the offending and of the offender. Doing the best I can on the written material before us, I would fix five months as the non-parole period. That recognises the interests of the community in seeing that drug offences are properly punished while at the same time acknowledging that a significant period of supervision will probably assist in the rehabilitation of the applicant who appears to have such good prospects in that regard, if he can but conquer his cannabis addiction. I would order accordingly.

96. I have had the advantage of reading in draft the reasons for judgment prepared by Phillips, J.A. I concur with his Honour's reasons for judgment. I agree that the application should be granted and a non-parole period of five months should be fixed.