R v Stirling [2000] VSCA 8

12. The applicant's counsel submitted to the judge that there were several mitigating factors. She had been co-operative with the police, made full admissions in her record of interview and pleaded guilty at the earliest opportunity. Those matters were, it was submitted, indicative of remorse. For her undertaking to give evidence against Mardale she should receive a sentencing discount, it was submitted. There should be parity in the treatment of co-offenders. Janine Parsons, who had lived with the applicant for some six years until about one month before the applicant's arrest and whom his Honour described as someone who "on occasion stepped into the prisoner's shoes", had on 22 July 1998 been placed on a community-based order for a period of 12 months by the Magistrates' Court. The applicant's counsel conceded, however, that there was a difference in the degrees of involvement of Parsons and the applicant. He also submitted that the applicant's circumstances and her continuing problem, for which she was seeking treatment, merited consideration. Counsel conceded that a sentence of imprisonment of some sort was called for, but submitted that there were two possible alternatives to immediate imprisonment, one being a suspended sentence and the other, if the sentence was for 12 months or less, being an intensive corrections order.

15. On 24 March 1999 his Honour sentenced the applicant to be imprisoned for a term of three years on the first count and a period of one month on the second count, which he ordered to be served concurrently with the sentence on the first count. His Honour fixed a non-parole period of two years and declared that a period of nine days was to be taken as already served under the sentence. He made orders for the taking of a forensic sample from the applicant, for the disposal of drugs and related paraphernalia and for forfeiture of the sum of $780 found on her person at the time of her arrest. On discovering, before it had passed into the record, that the sentence he had pronounced in respect of the second count was not open to him, his Honour had the matter listed on 30 March 1999 and re-sentenced the applicant on count 2, imposing a fine of $250 in place of the term of imprisonment.

18. By notice filed 1 April 1999 the applicant has sought leave to appeal against sentence. It is unnecessary to refer to the grounds contained in that notice as by order of the Registrar made 31 January 2000 seven grounds were substituted for the original grounds.

21. Meanwhile, on 29 October 1999, Mardale had pleaded guilty before another judge (whom I shall call "the second judge") in the County Court at Melbourne to one count of trafficking in a drug of dependence, namely heroin, between 24 July 1997 and 23 March 1998, and on 1 November 1999 had been sentenced by that judge to be imprisoned for a term of two years and ordered to serve a minimum period of five months and 15 days before being eligible for parole. Amongst other ancillary orders, his Honour directed Mardale to pay a pecuniary penalty of $24,050 (being the estimated profit made by her over the period of offending less the sum I next mention), made an order for forfeiture of, amongst other things, $12,700 cash found at her home, and made a confiscation order in relation to heroin found there and other items. (That heroin, although referred to later, is not the subject of the count against Mardale.)

24. The first of the applicant's substituted grounds complained that the sentence imposed on her was excessive and disparate having regard to the sentence imposed on Mardale, giving rise to a justifiable sense of grievance on the applicant's part. Except to note that the sixth and substituted ground complained that the judge failed to have sufficient regard to the personal circumstances of the applicant and particularly her rehabilitation, I do not set out or summarise the other grounds as I do not find it necessary to deal with them.

27. Before substituted ground 1 can be considered, it is necessary to summarise the facts of the applicant's and Mardale's offences, so far as they are revealed in the material before this Court, and the circumstances personal to each of them. In January 1998 police, suspecting that sales of heroin were being made from the premises at 29 Crimea Street, Caulfield North, commenced an investigation into the activities of persons residing at those premises. Those persons were the applicant and Parsons. Preliminary surveillance revealed that people would attend the premises during the day or night, stay for a short time and then leave. In February, a covert police operative, going under the name "Emma Brown", was introduced to the applicant. At 9.20 a.m. on 13 February 1998, "Emma" telephoned the applicant and arranged to purchase two "caps" of heroin for $100. "Emma" came to 29 Crimea Street half an hour later and, after a brief conversation, was handed by the applicant two pieces of folded paper in exchange for $100. The conversation was recorded by a concealed tape recorder. "Emma" then met some members of the police force, who took possession of the pieces of folded paper, the contents of which were shown by subsequent examination to be .09 grams of heroin that was approximately 50 per cent pure. Substantially similar transactions occurred between "Emma" and the applicant on three other days over the next six weeks or so, save that on one occasion six "caps" were purchased for $300. Substantially similar, but by no means identical, results were revealed by analysis after each of those other transactions. In one of the recorded conversations between "Emma" and the applicant, the latter said that she could supply a half-gram for $300, but in the conversation during "Emma's" next visit "Emma" asked whether the applicant could "still" supply her with a "quarter" of a gram for $300 and the applicant said that she could. I find it unnecessary to decide whether the submission put for the applicant that the two women were in fact speaking of half a gram on the second occasion as well as the first is correct. Telephone intercept material, gathered pursuant to warrant, coupled with surveillance, showed that a short time after calls were made to the applicant people would arrive at her home, stay a short time and then leave and that the applicant was purchasing heroin from Mardale, who lived in Mulgrave.

30. Police commenced surveillance of Mardale. On one occasion the applicant was seen by police to meet Mardale, who had been driving in the Caulfield area and had pulled over to the side of the road, and to have a brief conversation with her.

33. At 8.55 a.m. on 24 March 1998 "Emma" telephoned the applicant with a view to purchasing some heroin. She was told to call back and at 10 a.m. a meeting was arranged for late in the afternoon. The intercept material revealed that immediately after that conversation the applicant telephoned Mardale in order to purchase some heroin. The applicant and Mardale arranged to meet in a laneway near the applicant's home. At 10.30 a.m. Mardale was seen driving in the Caulfield North area. Her vehicle was intercepted a short distance from the proposed meeting place and she was arrested and her vehicle was searched. She admitted that she was on her way to meet the applicant and that she had three grams of heroin in her possession. She informed police that there might have been up to 280 grams of heroin stored at her home in Mulgrave. Mardale was escorted to her home and a search warrant executed. She was co-operative and pointed to where she stored drugs and other drug-related items. The total of cash found at her home was $12,700. In the meantime the applicant had been observed leaving her home in her car. She drove a short distance towards the proposed meeting place and was apprehended at approximately 10.30 a.m. as she approached the location. She was arrested and her vehicle was searched. The sum of $780 was found on her person and a small quantity of green vegetable matter, being cannabis, was found in the console of her car. The applicant was escorted back to her home, where a search warrant was executed and a further quantity of cannabis and other drug-related items were found. She was then interviewed at the Moorabbin police complex.

36. Two other women were present at 29 Crimea Street when the search warrant was executed. Each provided a statement to police. One said that she regularly purchased heroin from the applicant, that one "deal" was $40 to $50 and that she usually purchased two or three "deals" at a time for $90 or $130. She said that she had purchased heroin every day over the previous 12 months. The other woman said that she would ring the applicant whenever she wanted to purchase heroin, that she bought only one "deal" at a time at a cost of $50 and that she purchased heroin two or three times a week. She had spent a total of $1,000 on purchases of heroin from the applicant.

39. In her record of interview with police the applicant made several admissions. She said that she usually purchased one gram of heroin per day from Mardale (whom she referred to as "Chris") and that she would meet Chris at least twice a day. The cost of one gram of heroin was $500. She admitted to purchasing heroin from Chris for six to eight months prior to the interview and selling heroin to some nine persons, including "Emma", for all but three of whom she gave only a first name. Purchasers would come to the house at any time. Up to ten a day would come. Meetings would often be arranged under the pretext of a friendly visit. Once the heroin was purchased from "Chris" she would "cut it up and give it to the people". She would re-package the heroin with paper or foil. She did not dilute it. She claimed that there was a pooling arrangement whereby each purchaser would pay money one day in advance of receiving heroin from her. Initially she stated that "Emma" was one of the persons engaged in pooling but later conceded that she was not. She said that, although there was a pooling arrangement, she would take some drug "off the top" for herself and sell whatever was left. She admitted to using heroin a couple of times a day and stated that she engaged in selling it in order to support her own addiction.

42. On 24 March 1998, after she had been interviewed, the applicant made a written statement as to the source of the heroin in which she trafficked and the evidence about that which she would be prepared to give in court. She said in the statement that she had first used heroin as a teenager and that throughout her life on and off she had used it. After coming to Crimea Street she found that she was using more and more of it. She said that about a year earlier she had started using a regular supplier whom she knew as "Chris", a Romanian. She would ring Chris on the latter's mobile phone, the number of which she specified, and place an order, generally for one gram each day. Chris would ring her when she was close to the applicant's address in her car and the applicant would meet her in the streets near her home. She paid $500 per gram. She said that she was selling eight to ten caps of heroin a day to her customers, which meant that she needed to buy at least one gram a day. Sometimes Chris would supply heroin to her on credit. On the day of her arrest she was carrying $780 because she owed Chris some money for sales on credit. She believed that she had been supplied a gram of heroin each day by Chris for the past year. Every day she used the heroin supplied by injecting some into herself and selling the remainder to her customers. She needed to use heroin daily and therefore she had not made any money out of heroin dealing. She sometimes bought heroin for her own use in Fitzroy Street, meaning Fitzroy Street, St Kilda.

45. Despite the applicant's admission that she had been involved in the heroin trade for a year, the first count on the presentment was, after negotiation, limited to a period from eight months on the ground of the answer given by the applicant in her record of interview that she had been buying heroin from Chris for a period of six to eight months.

48. There was no evidence that the applicant diluted the heroin in any way.

51. The applicant is a single woman with no dependants. She was placed in an orphanage from the age of two until she was five, when she was placed in the care of grandparents. She lived with an uncle and aunt from the age of seven until she was about 17. Her personal illicit drug use has already been mentioned, as has the fact that she has effectively always worked as a cook.

54. The plea on behalf of Mardale was conducted on agreed facts, which the second judge said he would accept. Further facts were, however, stated by counsel. The statement of agreed facts is desiccated in the extreme. In setting out the facts of the applicant's offence I have stated many facts relating to Mardale, but they are not, I think, inconsistent with the facts on which the second judge proceeded except that he was told that Mardale's selling price to the applicant was $400 a gram. The amounts sold were stated by Mardale in her record of interview to have varied between half a gram and two grams, and it was agreed that sales did not take place every day; but those two facts do not in essence differ from the material before the judge who sentenced the applicant.

57. The statement of agreed facts dealt with two additional points. First, as to the heroin found in Mardale's house (amounting to 335.9 grams), Mardale received it about one week before her arrest from a man called Zoran Bacalja (in the statement spelt Becalea), a violent man with whom she had formed a relationship in 1996 or 1997 which seems to have ended upon her arrest. Secondly, she was prepared to make a statement and give evidence against Bacalja if required. Members of the Police Drug Squad, who were investigating Bacalja, requested her to speak to him while wearing a device (apparently a transmitter). She was too frightened of him to do this and the drug squad took the view that he was unlikely to be convicted on her evidence alone. So no proceedings were taken against him. It appears that his Honour did have the depositions and record of interview of Mardale. We do not, but we were informed that the statements in Mardale's record of interview concerning her dealings with the applicant accorded closely with those in the applicant's record of interview. We were also told that in her record of interview Mardale said that she had been selling to the applicant for a year. From what the second judge was told, Mardale's record of interview disclosed that Bacalja was her sole supplier and that she was charged by him $6,000 for 280 grams of heroin.

60. Because the matter was not listed on 1 November 1999 the second judge's sentencing remarks were not recorded. His Honour has no notes of his remarks and has been unable to locate a video-recording of the proceedings that day. He has, however, set out in a letter dated 31 January 2000 to the Registrar his recollection of the substance of his remarks, which I shall cite later. But, having regard to the ground under consideration, I think it necessary first to attempt to glean from the transcript of the plea hearing the facts presented to his Honour concerning Mardale, together with a few more facts about her offending.

63. I begin with the latter. His Honour was told by the prosecutor without objection that Mardale was not a user of heroin but trafficked in it purely for profit to support her and her family. She made a profit of about $1,000 per week.

66. Counsel for Mardale painted a picture of what he called her horrific personal background. This was not contested by the Crown. Counsel said that the prisoner had been born in Romania. She was 39 at the time of the plea. She had no prior convictions. She had two boys, one aged 19 who was in Romania and the other aged eight who lived with her. She was three months pregnant to a man with whom she had been in a relationship for some nine months. He alone of the males to be mentioned was not physically violent to her. Her father had been an alcoholic. She married at 18. Her husband was violent to her but nevertheless expected her to do his bidding and to look after him. Because of Romanian culture at the time she accepted that and did so even when they came to Australia. They first did that when she was 26, that is, in about 1986. They returned to Romania in 1991. Her husband was made a quadriplegic by injuries received in a car accident in that country in 1994 when he was a passenger in a car driven by a girlfriend. Mardale looked after him. He decided to come to Australia for treatment. She and the children came too. He decided to return to Romania in 1995, but she refused. She was left to look after herself. Though he had visited Australia with assistants to see the children several times since, their marriage was ended, probably by divorce but in any event in reality.

69. She met Bacalja and became infatuated before she discovered that he was a drug dealer. She was under his domination and he persuaded her that she could make some money by selling heroin in the way she eventually did. She sold only to the applicant. In 1997 her Romanian family provided $112,000 to assist her to purchase a house in Mulgrave. A mortgage loan was still needed to complete payment. About that time she tried to persuade Bacalja to let her cease trafficking but he refused and threatened her and her family. Bacalja made himself scarce after her arrest. Her current de facto had shortly before the plea purchased the house from her and was proposing to reside in it with his son and her younger son while she was in prison.

72. Her counsel called three witnesses, Dr Jagoda, one of her treating doctors, Dr Levy, a psychiatrist, and Mr Cummins, a psychologist. They concurred in the view that Mardale was chronically and severely depressed. The following statements were made by one or more or all of them. She was not street-wise, was submissive, suffered from self-loathing and was fearful for her younger child once her consideration was directed to the consequences of imprisonment. She feared that her former husband would obtain custody of him.

75. Because Mr Gyorffy relied on it for the respondent before us, I set out one passage from the evidence of Mr Cummins in cross-examination:

"You are not suggesting she didn't have the insight to understand the effects of heroin on the people who use it, or that Stirling, who she was selling to, was on-selling to others?---I actually think this woman knows even now very little about heroin. She is emphatic she has never used heroin. ... I really think that she would have been quite naïve about the heroin-using scene, apart from what she had been told at the direction of Mr Bacalja. That is certainly my view. She said she was doing this at his direction, at his request."

79. As to that, the prosecutor in reply said without objection from Mardale's very experienced counsel:

"It's not even just to Stirling as an ultimate user. It's knowing it's to be on-sold."

83. The second judge was told of the charges against the applicant, of her plea of guilty and of the sentence imposed upon her and that an appeal was pending. He was told too of her prior convictions and of some of the contents of her record of interview. He was aware of the need to consider the applicability of the principle of parity. He said:

"I would propose initially, in any event, to simply read His Honour's reasons for sentence, and obtain - if it's necessary - to go back and check anything in the course of the plea that I would propose to do so. But obviously whatever was said was said in the absence of (indistinct). And it's really a question of my looking at - only from the point of view of applying or determining the extent, if any, to which I need to apply considerations of parity."

87. Counsel for Mardale, in an approach which the prosecutor called realistic and I would call skilful, conceded that some actual imprisonment was inevitable, but, asking the judge to be merciful, sought a short non-parole period to give his client something to look forward to and the opportunity to get away from the difficulties that she would experience in custody.

90. His Honour's recollection of his remarks in sentencing Mardale, as stated in his letter to the Registrar, is as follows:

"I recall that in imposing sentence I indicated that general deterrence was the major sentencing purpose to be considered by me, and that having regard to the protracted period of time over which the offending occurred and the level of the offending, there could be no question but that a sentence of imprisonment be imposed. I noted that such a sentence had been very properly conceded by Mr Gullaci, who appeared on behalf of Mardale. I accepted the various opinions expressed by the three witnesses to whom I have made reference, and I accepted that the prisoner was then three months' pregnant. Mardale was concerned that a period of imprisonment may result in her former husband obtaining custody of their eight-year-old son. The possibility of such a consequence was a factor which I weighed in assessing the effect of the sentence on Mardale. As to the rehabilitation of Mardale, I noted that she was thirty-nine years of age and had no prior convictions. I further noted that her then-current relationship as described to me during the course of the plea augured well for her rehabilitation. A further factor which I took into account was the extent to which the matter had been delayed in resolution. Last but not least, I took into account the plea of guilty by Mardale and the very early stage at which she indicated that plea. It was in those circumstances that I determined that a sentence of two years' imprisonment was appropriate. I determined that it was appropriate to direct that a minimum of five months and fifteen days be served before being eligible for parole. I made a declaration as to ten days of pre-sentence detention. I pointed out to Mardale that the sentence so imposed would have the effect, subject to the decision of the Parole Board, of having her released shortly prior to the anticipated birth of her third child."

94. The principle of parity in sentencing reflects the notion of equal justice. The question raised by the first ground is whether the difference between the two sentences for trafficking is manifestly excessive and such as to engender a justifiable sense of grievance in the applicant, that is, to give the appearance in the mind of an objective observer that justice has not been done. All components of the sentences are to be brought into the comparison. The comparison is, then, between the applicant's sentence of 3 years' imprisonment with a non-parole period of 2 years and Mardale's sentence of 2 years' imprisonment with a non-parole period of a little less than 6 months. In my view, the sentence imposed on Mardale was very lenient, but it was not suggested that it was so lenient as to be manifestly inadequate and not proper to be brought into comparison.

97. For reasons that follow, I have concluded that the question posed a moment ago should be answered affirmatively, that is, in favour of the applicant. Although the second judge clearly set out to comply with the principle of parity so far as applicable, in my respectful view the sentence imposed on Mardale has the result, retroactively, on an objective consideration of the respective degrees of criminality of the two offenders and their different circumstances, that the sentence imposed on the applicant offends the parity principle. Certainly the difference in figures on their face is stark, but naturally that is only the start, not the end, of the enquiry.

100. So far as the offences themselves are concerned, the applicant's criminality was, I consider, to put it at its lowest, no less than Mardale's. The offending was of the same duration and the quantities of heroin trafficked in were about the same. Mardale was higher up the chain of distribution. She trafficked solely for profit, even though to support herself and her family, whereas, even if his Honour is to be treated as sentencing the applicant as having a profit-making purpose, that was not her primary purpose and the profit was not quantified. (Whether his Honour did so treat the applicant and whether he was entitled to do so were questions much debated before us, but it is unnecessary to decide them.)

103. Mr Gyorffy contended that for two reasons Mardale's criminality was lower in degree than the applicant's. First, she was only a go-between or conduit between Bacalja and the applicant. Linked to that was the fact that she sold to one person, whereas the applicant had a "broadly based clientele" and was entrepreneurial. Secondly, she did not know, as I noted it, "the consequences of heroin". For that, he relied upon the evidence of Mr Cummins set out earlier. Neither contention should be accepted. As to the first, Mardale was more than Bacalja's instrument or conduit. She paid him some, indeed most, of the proceeds of her sales but she retained some, thereby making a profit. The amount retained is not, on the available material, to be characterised merely as an agent's commission. The fact that Mardale sold to one person only is of no significance: many a company sells its product to one distributor only, which sells on to dealers or the public. As to the second contention, the cross-examiner's question related to two matters - Mardale's knowledge of the "on-selling" of the applicant and her knowledge of the effects of heroin upon users of it. It is far from clear that Mr Cummins's answer denied the first matter. His reference to "what she had been told at the direction of Mr Bacalja" suggests that Bacalja told her something about the heroin's ultimate consumption and in turn that necessarily implies distribution by the applicant, even if Bacalja did not expressly tell her of such distribution, which may be thought unlikely. In any event Mr Cummins' qualification upon her naïvete introduced by the words "apart from" makes the main statement vague and unreliable because Mr Cummins did not vouchsafe to state what Bacalja told her. Although the second judge's recollection is that he accepted "the various opinions" expressed by the witnesses, including Mr Cummins, it may be thought very doubtful that he intended that statement to extend to a view expressed only incidentally in cross-examination. But, even if he did, I respectfully consider that it was not open to find on the balance of probabilities, as was required, from indirect opinion evidence, in the absence of direct evidence from Mardale and in the face of the obvious inferences arising from her almost daily sales to the applicant over 35 weeks or so of about one gram of 50-60 per cent pure heroin, that Mardale was ignorant of either matter.

106. So far as the personal circumstances of the two women are concerned, I acknowledge the considerable mitigatory force of Mardale's fearful background, to which may be added her pregnancy and, perhaps, though I doubt it on principle, the age of and concerns for her younger son. One could understand if, with a substantial head term, a somewhat lenient non-parole period had been fixed. The facts I have just mentioned, of course, bear on both the head sentence and the non-parole period, but they may be expected usually to be given more weight in the latter more than the former. By "a somewhat lenient non-parole period" I do not mean a non-parole period of the length in fact fixed. Be that as it may, very powerful evidence of rehabilitation, achieved and inferentially prospective, on the part of the applicant was given, and in rough terms - for precise admeasurement cannot be made - these two strong pieces of evidence for Mardale and the applicant respectively are of about equal weight. With regard to the pleas of guilty, remorse and offers of co-operation, my assessment is that the case of the applicant was stronger on each matter. Mr Gyorffy criticised some of the applicant's answers in her record of interview, particularly those asserting a pooling arrangement, as lying or prevaricating and the record of interview as a whole as uncandid. If that criticism is accepted and brought into the calculation, there is, to my mind, still no preponderance in favour of Mardale on these matters.

109. Mr Gyorffy relied on Mardale's lack of prior convictions as warranting a more lenient sentence in her case, but, in my view, the applicant's prior convictions are scarcely of any relevant significance. Of the ancillary orders made by the second judge the substantial ones were the pecuniary penalty order and the forfeiture order. Since regard could not be had to them in sentencing Mardale (Sentencing Act 1991, s.5(2A)(b) and (d)), contrary to Mr Gyorffy's submission regard cannot be had to them on the issue of the parity of the applicant's sentence with hers.

112. Because the sentence imposed on the applicant offends the principle of parity, it must be reduced. This is so even though it might otherwise be devoid of specific error and might be within the permissible range of sentences, questions, of course, on which I have not found it necessary to express any opinion. In determining the sentence now to be passed on the applicant, the guiding consideration must necessarily be the sentence passed upon Mardale. I have, however, naturally considered the relevant sentencing purposes of just punishment, general deterrence, denunciation and rehabilitation, and the various factors, whether aggravating or mitigatory, referred to in my statement of the facts about the applicant's offence and the facts personal to her and in my discussion of the question of parity. I see no reason why the head sentence upon the applicant should differ from that imposed upon Mardale. Clearly some of the head term must be actually served, and, indeed, there has been service of imprisonment. In view of the very lenient non-parole period fixed in the case of Mardale, I would fix a non-parole period lower than that which might ordinarily have been fixed. But, as suggested earlier in these reasons, I think that Mardale's pregnancy at the time, and possibly the fact that she had an eight-year-old boy, justified in mercy a lower non-parole period in her case. I would fix a non-parole period of one year.

115. For the reasons I have given, I consider that this application should be allowed and that the applicant should be re-sentenced as outlined.

122. An appeal ground which alleges disparity of sentence between co-accused or persons involved in the same criminal enterprise is one which should be closely analysed by an appellate court before being allowed. It frequently occurs that, for reasons beyond the Crown's control, such accused are presented and stand for sentence before different judges at different times. It is almost inevitable that facts bearing upon the same set of circumstances will be presented in a different light and have a different impact upon the several judges who hear them. That is why it is desirable, although not necessarily feasible, that persons who commit crimes arising out of the same circumstances should, if possible, be tried and stand for sentence before the same judge.

125. Nevertheless it remains true that consistency in punishment is a fundamental element in any rational and fair system of criminal justice, and that inconsistency is calculated to erode public confidence in the integrity of the administration of justice. By the same token, unwarranted interference by appellate courts on the ground of perceived disparity of sentence imposed upon co-offenders or persons involved in the same criminal enterprise may have a similar tendency to erode public confidence because the sentence otherwise appropriate on the facts will be reduced to accommodate the perceived disparity. Where, therefore, disparity is raised as a ground of appeal, appellate courts should be on their guard to ensure that interference is warranted. Although sentences passed on different offenders charged with offences arising out of the same circumstances might at first blush appear unacceptable, close attention to the facts will oftentimes provide reasons for the difference. Those reasons might appear in the respective roles played by the offenders, or their prior histories, or other aspects of their personal circumstances. Thus, before an appellate court can interfere on the ground of disparity, the disparity should be manifest and such as to engender a justifiable sense of grievance in the offender and an appearance of injustice to the objective bystander.

128. In this case I agree with Batt, J.A. that this is one of the few examples which warrant interference by the Court on the ground of marked disparity. For the reasons given by his Honour, I also agree with the orders which his Honour proposes.

132. I also agree with the proposed orders and the reasons and the remarks made by the other members of the Court.

136. The formal order of the Court will be that the application for leave to appeal against the sentence imposed upon count 1 on the presentment is allowed. The appeal is treated as having been instituted and heard instanter; it too is allowed. The sentence imposed on count 1 is quashed and in lieu thereof this Court imposes a sentence on that count of two years imprisonment. We fix a period of one year as the period to be served before the applicant becomes eligible for parole.

139. We declare that a period of 325 days be reckoned as a period already served pursuant to the sentence we have imposed and pursuant to s.18(4) of the Sentencing Act we direct that the fact of that declaration and its details be noted in the records of the Court.