Regina v J & H

Crimes Act 1914 (Cth) LEGISLATION CITED: Customs Act 1901 (Cth)

Dinsdale v R (2000) 202 CLR 321 Griffiths v The Queen (1977) 137 CLR 293 Malvaso v The Queen (1989) 168 CLR 227 Postiglione v R (1997) 189 CLR 295 R v Bezan [2004] NSWCCA 342 R v Dang [2004] NSWCCA 269 R v Dujeu [2004] NSWCCA 237; 46 A Crim R 121 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v Hughesman (unreported) Court of Criminal Appeal, 5 April 1995 R v Kevenaar [2004] NSWCCA 210 R v Mas Rivadavia [2004] NSWCCA 284 R v Schofield [2003] NSWCCA 3 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 R v Wong and Leung [1999] 48 NSWLR 340 Wong v R [2001] 207 CLR

Regina (Appellant) PARTIES: J (1st Respondent) H (2nd Respondent)

FILE NUMBER(S): CCA 2004/1819; 2004/1810; 2001/2965

G Farmer (Crown) COUNSEL: R Hulme SC (for J) C Craigie SC (for H)

Cth DPP (Appellant) SOLICITORS: SE O'Connor (Respondent "J") Jeffries and Associates (Respondent "H")

IN THE COURT OF CRIMINAL APPEAL 2004/1819 CCAP 2004/1810 CCAP 2001/2965

SANTOW JA BELL J HOWIE J

Friday 11 February 2005 Regina v J & H Judgment

2 BELL J: These are Crown appeals against the inadequacy of sentences imposed upon the respondents by his Honour Judge Charteris (the Judge) in respect of the conviction of each for the offence of attempt to possess prohibited imports to which s 233B of the Customs Act 1901 (Cth) applies, namely, narcotic goods consisting of a quantity of MDMA (commonly known as ecstasy) in an amount not less than the commercial quantity applicable to that drug. 3 The maximum penalty for the offence is imprisonment for life. 4 On the hearing of the appeal the Court made an order that the respondents be identified for the purpose of the proceedings by the pseudonyms J and H. This was done to protect J who has provided assistance to the authorities.

5 On 10 June 2004 J was sentenced to a term seven years' and six months' imprisonment to date from 10 July 2002. A non-parole period of four years was specified. 6 The following day the Judge sentenced H to imprisonment for seven years to date from 11 August 2002. A non-parole period of three years and nine months was specified.

The facts 7 On 18 January 2000 J and H were arrested together with two co-offenders who I will refer to as X and Y. X played the principal role in Australia in the importation of the MDMA. Y was X's deputy and himself played a significant role in the enterprise. Y has since died. 8 In October 1999 the Dutch Police made contact with the Australian Federal Police (the AFP) concerning a Dutch based syndicate that was involved in international narcotic trafficking. The AFP were informed of a proposal to import into Australia a quantity of ecstasy tablets. X was identified as a member of the syndicate and nominated as the person who was to travel to Australia to facilitate the importation. As a result of this information the AFP commenced investigations into the activities of X and his associates. 9 X arrived in Australia in December 1999 and was the subject of constant police surveillance while in Australia. On 13 January 2000 X flew to Sydney from Queensland where he was observed in the company of Y. The two flew together to Melbourne.

10 In Melbourne X arranged for the delivery of a consignment of goods containing MDMA to be conveyed to Sydney by a TNT Express courier.

11 The AFP attended at the TNT depot and seized the consignment. The goods were found to contain a quantity of white and yellow coloured tablets. The total combined weight of the tablets was 50.754 kilograms. A presumptive narcotic test revealed the presence of MDMA. The majority of the tablets were replaced with a controlled delivery sample. 12 On 16 January 2000 X and Y returned to Sydney by plane.

13 On the morning of 18 January the AFP delivered the consignment to the TNT Express depot at Mascot. At 8:00 am that morning H and J were observed in the vicinity of the TNT Express depot in a Toyota Hi-Ace van. The van was registered in H's name. It had a business logo and telephone number painted on its side. J was seen to walk into the TNT depot and then to return to the van. 14 At 8:25 am a male person made telephone contact with the TNT Express depot and was informed that the consignment was ready for collection. At 8:35 am Y received a telephone call apparently from J. During the course of the conversation Y told J that he was on the way to do the pickup. At 8:38 am Y arrived at the TNT Express depot and signed for acceptance of the delivery. He placed the consignment into the rear of a Thrifty rental truck. He drove the rental truck out of the depot. The Toyota Hi-Ace followed it. Both vehicles drove to a car park in Botany and parked in adjacent bays. X walked up to the two vehicles. Y and J and H got out of their respective vehicles and they had a conversation. Shortly afterwards Y, J and H transferred the consignment from the rental truck to the Toyota Hi-Ace van. Y drove the rental truck back to the rental company and was arrested by the AFP. 15 H and J left in the Toyota Hi-Ace with the consignment. H was the driver. The police followed them. It would seem that they became aware of the surveillance and H commenced a course of driving designed to avoid capture. Shortly after they were stopped and arrested. J was in possession of rubber gloves and a radio-scanning device.

16 X was arrested on the same day. 17 The 50.754 kilograms of tablets yielded 16.5 kilograms of pure MDMA. 18 The wholesale value of the importation was estimated to be $2,534,000. The estimated street value was $9,050,000.

19 The role of J and H was subordinate to that of X and Y. They did not have proprietorial control over the drugs. Their role was to transport the drugs and to store in a safe location for a period of about one week. The first occasion on which the AFP identified J as having any involvement in the enterprise was two days prior to his arrest when he was observed meeting Y. J recruited H into the venture. H only came to learn that the consignment was of prohibited drugs on the day of his arrest. The respondents' criminal histories 20 On 16 December 1986 J was convicted and sentenced for the offences of conspiracy to import heroin and conspiracy to supply heroin. He was sentenced to concurrent terms of twenty-five years' and twenty years' imprisonment respectively. The sentencing judge declined to fix a non-parole period. As a result of these sentences J was in custody between 23 March 1984 and 6 December 1998 when his sentences (as redetermined in consequence of the enactment of the Sentencing Act 1989) were completed.

21 At the date of the offence J was aged fifty-nine years. He had been released from custody (having completed the sentences that I have referred to above) thirteen months before his arrest. 22 H was sentenced on 2 December 1985 for the offence of being knowingly concerned in the importation of heroin to a term of seven years' imprisonment with a non-parole period of five years. The non-parole period was reduced to four years on appeal.

23 H was aged fifty-two at the date of the offence. He had been released on parole in 1988. 24 As the Judge noted, J and H were exposed to a maximum sentence of life imprisonment on conviction for a subsequent s 233B(1) offence even if the quantity of drug involved was less than the commercial quantity: s 235 (2)(c)(ii). The course of the proceedings and the proceedings involving the co-offender

25 J and H pleaded not guilty to the offence. They were tried before Keleman DCJ and a jury. Each was convicted. They were sentenced on 1 February 2002. On 18 December 2002 their convictions were quashed and this Court ordered a re-trial in each case. Thereafter a question arose as to J's fitness to be tried. On 28 July 2003 a jury found that J was not unfit to be tried. The trial of the two respondents was fixed to commence on 30 July 2003. On that day each entered a plea of guilty to the offence.

26 Y died before being dealt with in respect of his involvement in the offence.

27 On 5 November 2001 X pleaded guilty to an indictment charging him with attempting to possess not less than the commercial quantity of MDMA. At the time he was sentenced for this offence s 16G of the Crimes Act 1914 (Cth) was in force. He was sentenced to a term of twelve years' imprisonment with a non-parole period of eight years. On appeal X's non-parole period was reduced to seven years. Carruthers AJ (with whose judgment Spigelman CJ agreed) observed that the starting point for the sentence must have been of the order of forty-two years. From that starting point a deduction pursuant to s 16G of about one third brought the sentence down to twenty-eight years. A discount of fifteen percent had been allowed for the utilitarian value of the plea of guilty and this reduced the sentence to twenty-four years. X then received a further discount of fifty percent on account of his assistance to the authorities.

28 X's assistance to the authorities had resulted in the conviction in Holland of five members of the drug syndicate.

The Crown's stance at the sentence hearing 29 At the sentence hearing senior counsel, who was then briefed for the Crown, made a number of submissions that were favourable to the respondents' cases. At H's sentence hearing she submitted: "The only matter really that I wish further to address your Honour is the question of section 16G of the Crimes Act , a provision which was subject to repeal and indeed has ceased be operational (sic), as and from 16 January 2003. We ask your Honour however to give H the benefit of a notional operation of 16G." (T 21/05/04 18.13-14) 30 In the context of an exchange between counsel for the Crown and the Judge concerning the effect of the repeal of s 16G counsel for the Crown put this submission: "We submit that the principle as an overriding principle of fairness ought dictate at least this in end result, that by reason of the change in the law this man (H) ought not to do more in real time than that which the principal served, that is the principal in the enterprise, X, and not withstanding the fact that of course X's sentence was discounted because of assistance." (T 21/05/04 19.14-20) 31 The Judge rejected the submission that he might take into account in the exercise of discretion that the respondent in each case had lost the benefit of s 16G. He considered an appropriate starting point for the sentence to be imposed on J to be eleven years. In the case of H his Honour considered the appropriate starting point to be eight and a half years. From these starting points he deducted eighteen months in each case in recognition of the respondent's contrition and willingness to facilitate the course of justice by his plea of guilty. The sentences were in each case backdated to give credit for periods of pre-sentence custody. Each sentence was backdated by six and a half months in addition to the pre-sentence custody. This represented an allowance in recognition that each respondent had been the subject of onerous bail conditions for a period of thirty-seven months. J's sentence was reduced by two years in recognition of the assistance that he had provided to the authorities. J's case on sentence

32 The Judge noted that at the date of sentence J was almost sixty-three years of age. He had been in conflict with the law since his youth. He had a number of convictions for offences of dishonesty, many of which could be described as petty. In 1968 he had been sentenced to a term of seven years' imprisonment following his conviction for two counts of burglary. On appeal the sentence had been reduced to six years' imprisonment. Thereafter he had been convicted of the conspiracy to import offence and sentenced to the twenty-five year term. 33 The evidence of J's assistance to the authorities was contained in Ex "F". It disclosed that after entering his plea of guilty, J had provided valuable information to a law enforcement agency in relation to two discrete areas of interest unconnected to the present offence. In one area of significant public interest, the intelligence provided by J was described as being very valuable. 34 Reports from two psychiatrists were tendered in J's case. Both doctors assessed J as suffering from a major depressive disorder. His treating psychiatrist said that J exhibited some signs of post-traumatic stress symptoms. These were said to relate, among other things, to his lengthy incarceration in maximum security during his earlier sentence. He was said to have witnessed a great deal of violence. His treating psychiatrist considered J to be psychologically quite vulnerable in a correctional environment. 35 A psychologist, Mr Watson-Munro, expressed the opinion that J had been severely institutionalised as the result of his lengthy imprisonment. He observed that J had been released without the benefit of supervision to assist with his reintegration into the community. 36 J was diagnosed in 1997 with prostate cancer. He has suffered from high blood pressure for many years. 37 J's partner, a senior employee with a government department, gave oral evidence on his behalf. They had met while J was in custody and formed a relationship following his release. She said that J had found the adjustment to life outside prison difficult and that this had imposed strains on their relationship. He had been at ease with an old associate such as Y. After J was released on bail in December 2002 he was "a different person" to the person who had been sentenced in November 2001. She believed that he had abandoned his old contacts. He appeared to have developed greater insight than in the past and, in her view, he now wanted to be a decent citizen. The Judge was impressed by this witness.

38 There was further oral evidence to attest to the change in J's behaviour following his release on bail. The Judge sentenced J upon an acceptance that there had been a substantial change in his level of insight and conduct in the period after December 2002. H's case on sentence

39 The Judge noted that H was nearly fifty-seven years of age at the date of sentence. He had a criminal record for offences of dishonesty dating back to the 1960's and convictions for relatively petty offences throughout the 1970's. The only sentence of any length to which H had been subject was the sentence imposed on 2 December 1985 following his conviction for the serious drug offence. After H was released from custody in 1988 he had not committed further offences save for some driving matters. 40 A report from a psychologist was in evidence in H's case. The history recorded in this report included that H had begun to use amphetamines following the death of his mother around 1999. He had known J for many years. They had contact while both were serving sentences at the Long Bay complex. When J was released from custody, H, who was operating his own business, had offered him occasional work. 41 Also tendered in H's case was a report of a psychiatrist, Dr Kahn. He considered that H was suffering from a major depression, the symptoms of which had been alleviated a little by medication.

42 Dr Kahn reported that H had consistently expressed regret and remorse for his behaviour. The Judge accepted that H was genuinely contrite. A number of testimonials were in evidence in H's case. The Judge accepted that following his release from prison in 1988 H had established himself in business and was a highly regarded individual. 43 H was married and had been a loving and supportive father to his stepdaughter. His wife gave evidence of the devastating impact of his arrest on the family. She had been unaware that he had any involvement with drugs. She had observed that H had suffered periods of depression following his arrest. The ground of appeal 44 The Crown does not identify any error of principle in the detailed statement of his Honour's reasons in either case. The Crown acknowledges that it was appropriate to discount the sentences in the amount, and for the reasons, that his Honour did.

45 The Crown's appeal depends upon the contention that the starting point was in each case too low and produced sentences that are manifestly inadequate. 46 In written submissions the Crown put that the appropriate range of sentence was that proposed in the judgment of Hulme J in R v Kevenaar [2004] NSWCCA 210 at [116]: "But for the fact of assistance, an appropriate head sentence for persons such as Messrs Kevenaar and Dedoes, i.e. on the periphery and less than couriers, but committing offences involving quantities of the magnitude here could be expected to fall within the range of 13 to 16 years."

In the Crown's submission, taking into account the fact that J and H had convictions for s 233B(1) offences in the past, the appropriate starting point was at the upper end, or slightly in excess of, this range. 47 Counsel for J and counsel for H submitted that the starting point proposed by the Crown would produce the anomalous result that their clients would be sentenced to terms of the same magnitude as X, whereas the Judge had found X's criminality to be much greater.

48 I do not consider that the imposition of sentences on J and H approaching the magnitude of that imposed on X are to be seen as anomalous. In Postiglione v R (1997) 189 CLR 295 Dawson and Gaudron JJ observed: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: see Lowe v R (1984) 154 CLR 606 at 610-11 per Mason J. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated." X was a person without relevant criminal history. His sentence was discounted by operation of s 16G. He then received a discount of 15% for his plea of guilty. The sentence was then reduced by a further 50% in recognition of assistance to the authorities that had led to the conviction of five members of the syndicate. It is to be borne in mind that circumstances personal to X produced a sentence of 12 years from a starting point of some 42 years. 49 Counsel for both J and H submitted that the range proposed by Hulme J in Kevenaar needed to be approached with caution. His Honour considered that a necessary and logical consequence of the repeal of s 16G on the length of sentences of imprisonment for offences to which the section had previously applied would be an increase by a factor of approximately fifty percent: at [48]. This is not a view that has been adopted in subsequent decisions of this Court: R v Dujeu [2004] NSWCCA 237; 146 A Crim R 121; R v Dang [2004] NSWCCA 269; R v Mas Rivadavia [2004] NSWCCA 284; and R v Bezan [2004] NSWCCA 342. Counsel submitted that the approach to be preferred is that explained by Wood CJ at CL in Bezan at [24]: "What is now required by s 16A(1) of the Crimes Act 1914 is that a sentence be imposed that 'is of a severity appropriate in all of the circumstances of the case', including those that are identified in s 16A(2) and (3). The approach required by this section does not materially differ from that held to be appropriate in R v Maclay (1990) 19 NSWLR 112, in the context of the introduction into New South Wales of the former Sentencing Act 1989."

50 The respondents' counsel pointed to the approach that the Crown prosecutor had taken before the Judge: "… although section 16G is no longer available to be applied, the Court, in determining the sentence, should have regard to what the offender has lost by the repeal of the section." (Crown's written submissions - AB 180).

What the respondents had lost was a one third reduction in sentence. In counsels' submission, although the Judge did not apply s 16G or make a discretionary allowance for the lost eligibility to a reduction under the section (if there is a difference between the two), such an allowance, had it been, made would have suggested a starting point at the top of the range now proposed. 51 The Judge correctly did not allow any discount for the loss of the benefit of s 16G. The stance taken by the Crown in the proceedings before the Judge does not bind the Crown on the hearing of this appeal. The sentencing discretion is to be exercised in the public interest and may not be fettered by the conduct of the Crown: Malvaso v The Queen (1989) 168 CLR 227 per Mason CJ, Brennan and Gaudron JJ at 233. Of course the conduct of the Crown at first instance may be a factor that causes the Court to decline to intervene despite error being established: Dinsdale v R (2000) 202 CLR 321. I will return to this consideration.

52 In J's submission the sentence was not manifestly inadequate when regard was had to his assistance to the authorities. The discount for his plea of guilty and his assistance in the aggregate amounted to some 32%. In counsel's submission this was an insufficient allowance: Had the Judge commenced with a higher starting point but given an aggregate discount of say 45%, thereby arriving at the same sentence, the Crown could not complain. 53 The question is whether the sentence in each case falls so far below the appropriate sentence for the offence as to disclose error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293 per Barwick CJ at 310. The determination of the range appropriate for a given offence (and a given offender) is a matter about which reasonable minds may differ. It is only when the sentence falls clearly outside the range that an appeal will be allowed in a case in which there is no patent error.

54 It is difficult to identify a range with respect to offences involving a quantity of drugs of this amount committed by persons who have previously been convicted of offences contrary to s 233B(1). In R v Schofield [2003] NSWCCA 3 and Kevenaar, Hulme J reviewed a number of cases in which offenders had been dealt with for offences associated with the importation of MDMA. His Honour noted that only two of the cases involved offences in which more than 2 kilograms of the drug was involved: Soonius (unreported) Court of Criminal Appeal, 29 May 1998) (3.34 kilograms) and Lim and Yeung ([2002] NSWCCA 293) (6.15 kilograms); Kevenaar at [92]. The quantity of drug involved in Kevenaar was approximately 6 kilograms. His Honour observed that in R v Wong and Leung [1999] 48 NSWLR 340, Spigelman CJ declined to nominate a guideline with respect to the sentences to be imposed on persons involved in the importation of quantities in excess of 3.5 kilograms because no discernable pattern existed with respect to higher quantities. As the decision of the High Court in Wong v R [2001] 207 CLR at 584 makes clear, the weight of the drug is only one factor to be taken into account in the assessment of the objective seriousness of the offence. Nonetheless, this offence involving the attempt to obtain possession of 16.5 kilograms of MDMA which had been imported into Australia must be seen as an objectively most serious instance of a s 233B(1) offence involving not less than a commercial quantity of narcotic goods.

55 It is also relevant to note that many cases that go to make up the range for offences contrary to s 233B(1) committed by non-principals involve offenders with little or no criminal history. 56 In Hughesman (unreported) Court of Criminal Appeal, 5 April 1995, Gleeson CJ (in a judgment with which Cole JA and Sperling J concurred) said at p 4: "Statements of the High Court and of this Court concerning Crown appeals against sentence emphasise that they should be relatively rare and should be confined to cases where there is such a degree of difference between the sentence that was imposed and the sentence that ought to have been imposed as to amount to an affront to community standards."

57 The mandate of s 16A(1) of the Crimes Act 1914 is that the Court impose a sentence that is of a severity appropriate in all the circumstances of the offence taking into account, among other things, the matters to which s 16A(2) directs attention. 58 Each of these respondents was a person of mature years. Each had served a lengthy sentence for an offence involving the importation of prohibited drugs. Each pleaded guilty to attempting to possess not less than the commercial quantity of MDMA. The commercial quantity is 500 grams. The offence involved 16.5 kilograms of the drug. The offence carries a maximum penalty of life imprisonment. Accepting that the role of each of these respondents was subordinate to that of X and Y and involved warehousing the drugs for a limited period of time, I have concluded that the sentences imposed fall so short of those that should have been imposed as to disclose error of principle.

59 I consider that the Crown has made good its challenge in each of the two appeals. Exercise of discretion 60 The Court retains a residual discretion to decline to intervene notwithstanding the inadequacy of the sentence. Although the Crown at first instance wrongly invited the Judge to give the respondents allowance for the loss s 16G, I do not consider that this should lead the Court to dismiss the appeal in the exercise of discretion. No range with respect to the starting point was proposed by the Crown at the sentence hearing.

61 Two affidavits were relied on by J in the event the Court came to consider the exercise of the residual discretion or to re-sentence. In his affidavit affirmed on 16 November 2004, J says he has been subject to a deal of anxiety arising out of his assistance to the authorities. This has been increased by the appeal with the attendant risk of publicity. He is presently housed in a facility in which he feels relatively secure. In the event that his sentence is increased he states that he will not remain in that facility. J currently has a job within the prison. His medical problems are being adequately addressed. He recognises that he is fortunate in having the continued support of his partner and he is highly motivated to preserve the relationship.

62 In her affidavit affirmed on 19 November 2004, J's partner expresses her concern should J be returned to a high security institution as the result of a successful appeal. She speaks of the progress J has made towards rehabilitation while being housed in a minimum-security facility. He has enrolled in a TAFE course in real estate, which will commence in early 2005. She expresses optimism about their future life together.

63 The discount allowed for assistance to the authorities reflects the increased security concerns and the likelihood that conditions of custody will be more restricted. I do not consider that these considerations make it appropriate for the Court to decline to intervene notwithstanding the manifest inadequacy of the sentence that was imposed upon J.

64 The Court recognises that the strain to which the respondent to a successful Crown appeal is exposed and for this reason upon re-sentencing fixes a sentence towards the lower end of the range that it considers should have been imposed in the first instance.

65 I do not consider that in either case the Court should decline in the exercise of discretion to intervene. I turn now to the considerations to which s 16A of the Crimes Act directs attention with respect to the re-sentencing of J.

66 J is entitled to recognition of his plea of guilty. It was entered on the day fixed for his re-trial. It is appropriate to discount the sentence that would otherwise have been imposed to reflect his willingness to facilitate the course of justice at that stage of the proceedings. In this case the plea also evidences J's contrition. Associated with this is the evidence of his assistance to the authorities, which is a matter of significance. I do not consider it appropriate to separately quantify discounts for the respondent's plea of guilty and his assistance: R v Gallagher (1991) 23 NSWLR 220 per Gleeson CJ at 227-228; R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 per Spigelman CJ at 160(ii). In the aggregate I propose to discount the sentence by forty percent to reflect both the plea and the assistance. The plea was entered late in the course of these proceedings on the date fixed for the re-trial. The assistance was of considerable significance but to my mind does not justify an aggregate discount of the order of that proposed by J's counsel.

67 Taking into account the considerations to which s 16A of the Crimes Act 1914 directs attention (and to which I have referred in setting out the evidence that was before the Judge together with the additional evidence that was admitted on the appeal) I propose that J be re-sentenced to a term of imprisonment of nine years and six months to date from 10 July 2002. Generally in the sentencing of offenders for Commonwealth offences the non-parole period is fixed within the range sixty percent to sixty-six percent of the sentence. The Judge referred to this range and then determined, in light of the evidence of J's rehabilitation, to fix a non-parole period that was fifty-three percent of the sentence. I do not consider that there are circumstances that make it appropriate to depart from the conventional range. I propose a non-parole period of five years and nine months. The sentence will expire on 9 January 2012. The first date on which J will be eligible for consideration of release on parole is 9 April 2008. 68 The role played by H was somewhat less than that played by J. H had been at liberty in the community for a lengthy period during which he had not re-offended. H is entitled to a discount in recognition of his willingness to facilitate the course of justice by his plea of guilty on the day fixed for his trial. The Judge allowed a discount of approximately eighteen percent on this account. Given the timing of the plea this was a generous discount. The evidence disclosed that H entered his plea first on the date fixed for trial and that J entered his plea thereafter. I propose to allow the same discount as that allowed by the Judge. Again, taking into account the considerations to which s 16A of the Crimes Act directs attention I propose that H be sentenced to a term of imprisonment of nine years to date from 11 August 2002. The Judge specified a non-parole period of the order of fifty-three percent of the sentence. I do not consider that the circumstances of H's case justify a departure from the usual range. I propose a non-parole period of five years and three months. The sentence will expire on 10 August 2011. The first date on which H will be eligible for consideration of release on parole is 10 November 2007. ORDERS

In the appeal of J:

1. Allow the appeal;
2. Quash the sentence imposed in the District Court, in lieu thereof J is sentenced to nine years' and six months' imprisonment to date from 10 July 2002. That sentence will expire on 9 January 2012. Specify a non-parole period of five years and nine months. The non-parole period will expire on 9 April 2008.

In the appeal of H

1. Allow the appeal;
2. Quash the sentence imposed in the District Court, in lieu thereof H is sentenced to nine years imprisonment to date from 11 August 2002. That sentence will expire on 10 August 2011. Specify a non-parole period of five years and three months. The non-parole period will expire on 10 November 2007. 69 HOWIE J: I agree with Bell J.

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