Rickard v Regina

LEGISLATION CITED: Crimes Act 1900 - ss 117, 562AB Crimes (Sentencing Procedure) Act 1999 - ss 10, 21A, 44(2)

CASES CITED: Neal v R (1982) 149 CLR 305 R v Simpson (2001) 53 NSWLR 704

PARTIES: Matthew James Rickard (Applicant) Regina (Respondent)

COUNSEL: H White (Appellant) W Dawe QC (Crown)

SOLICITORS: L W Williams & Associates (Appellant) S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT DATE OF DECISION: 14 December 2006 (date of sentence)

• 17 - IN THE COURT OF CRIMINAL APPEAL 2007/1268

SPIGELMAN CJ HISLOP J HARRISON J

8 August 2007 Matthew James Rickard v Regina Judgment 1 SPIGELMAN CJ: I agree with Harrison J. 2 HISLOP J: I agree with the orders proposed by Harrison J and generally with his Honour's reasons. 3 HARRISON J: On 13 October 2006 the applicant entered pleas of guilty in the District Court of New South Wales to two charges. First, that on 5 March 2006 at Alexandria he did intimidate Claire Talbot with intent to cause her to fear mental harm. This is an offence under s 562AB of the Crimes Act 1900, and carries a maximum penalty of imprisonment for 5 years or a fine of 50 penalty units or both. Secondly, that on 5 March 2006 at Alexandria he did steal a black leather jacket the property of Dean Boyd. This is an offence under s 117 of the Crimes Act 1900, and carries a maximum penalty of imprisonment for 5 years. 4 On 14 December 2006 the applicant appeared for sentence before Berman DCJ and adhered to his pleas of guilty. On the first count he was convicted and sentenced to imprisonment for a term of 2 years with a non-parole period of 18 months. That sentence was to be served by way of periodic detention. On the second count he was convicted and sentenced to imprisonment for a fixed term of 6 months to be served by way of periodic detention and concurrently with the first sentence.

5 The applicant seeks leave to appeal to this Court upon the following grounds: -

5.1 The learned sentencing Judge erred in making findings of fact that were not supported by the evidence or inconsistent with the evidence which affected the proper determination of relevant aggravating and mitigating factors for the purpose of s 21A Crimes (Sentencing Procedure) Act 1999 .

5.2 The learned sentencing Judge erred in failing to consider "special circumstances" for the purpose of s 44(2) Crimes (Sentencing Procedure) Act 1999 .

5.3 The sentences imposed were, in all the circumstances, manifestly excessive. Background 6 Tendered in the sentencing proceedings, without objection, was a statement of facts. The statement set out a brief description of the circumstances giving rise to the offences. Those facts were relevantly as follows. 7 The applicant and Claire Talbot began a relationship in about February 2003. That relationship began to experience difficulties shortly after it commenced. By August 2003 the applicant and Ms Talbot were only seeing each other on a casual basis. During the period of the relationship Ms Talbot had reported domestic violence incidents to the police. 8 On 28 October 2003 the applicant and Ms Talbot attended his premises after they had been out drinking in Redfern. As a result of the applicant's conduct on this occasion, police were called and he was arrested and charged with a number of offences. On 2 July 2004 the applicant was convicted and sentenced in relation to those offences. It will be necessary to return to these convictions in more detail below. 9 Ms Talbot subsequently formed a relationship with Mr Boyd. Just after midnight on the morning of 5 March 2006 Ms Talbot and Mr Boyd went back to her house after a night out with friends. Ms Talbot noticed that the power had been switched off to her house after she attempted to turn the inside lights on when she came through the front door. She checked the power box outside to find that the main switch had been turned off. 10 Upon re-entering the house, Mr Boyd put his leather jacket down on a lounge chair in the front room and told Ms Talbot he was going out to buy cigarettes from a local shop. As he left the premises, Ms Talbot closed the doors behind him. However, Ms Talbot did not lock the main door or the screen door so that Mr Boyd could get back in when he returned. 11 About 10 minutes later, Ms Talbot heard her dogs barking at something in the front room. She walked into the front room to find the applicant. Ms Talbot immediately said to the applicant, "Get the fuck out of my house". The applicant said, "Who's here?" Ms Talbot again said, "Get the fuck out of my house". The applicant then walked past Ms Talbot in the hallway and out to the back section of the house looking through different rooms. Ms Talbot was continually telling the applicant to leave her house during this time. 12 The applicant then walked back into the front room and said, "Whose jacket is this?" Ms Talbot replied, "None of your business". The applicant then picked up the jacket from the lounge and walked out the front door. Ms Talbot shut and locked the door behind him after he left. 13 Ms Talbot immediately telephoned the police. Mr Boyd arrived back at the house. Ms Talbot was still on the phone at that time. The police arrived shortly afterwards and took Ms Talbot and Mr Boyd to Redfern Police Station where they provided statements. Throughout the time that police were taking statements, the applicant was ringing Ms Talbot's mobile phone. 14 The police subsequently attended the applicant's premises. However, the security door to the premises was not answered and no arrest was made. On the following day, 6 March 2006, the applicant voluntarily attended Redfern Police Station. He was then arrested. He participated in an electronically recorded interview and was charged with the offences to which he subsequently pleaded guilty. 15 Although it is not specifically referred to in the statement of facts, it is uncontroversial, but important, to note that the applicant returned the leather jacket the following day. The first ground 16 In support of the first ground of appeal, the applicant contended that his Honour made a series of factual errors. 17 First, it was submitted that his Honour erred in finding that the applicant lied in asserting that when he attended Ms Talbot's premises he was concerned about her welfare. 18 In a Pre-Sentence Report dated 13 December 2006 prepared by Mara Balandenko she recorded on page 3 that the applicant explained that he had made an arrangement to meet Ms Talbot but that she had not attended the designated meeting place or otherwise contacted him. The applicant told Ms Balandenko that in addition to his annoyance that Ms Talbot had not contacted him, "he was concerned about her welfare and attended her home in order to clarify the circumstances". 19 In a forensic psychiatric report dated 7 December 2006, prepared by Dr Robert Hampshire, a consultant psychiatrist, Dr Hampshire recorded a history leading up to the events of the night in question given to him by the applicant. The history includes, for presently relevant purposes, the following material: -

"On Friday night [Ms Talbot] was nowhere to be found and was unable to be contacted by phone. By Saturday [the applicant] was very concerned and was ringing her constantly. It is alleged that these phone calls were harassing but [the applicant] denies that, saying that first of all she did not reply to any calls. He said that his phone calls were out of compassion, care and worry for her.

Eventually he went around to her house around midnight and walked in. There was no man there. He walked in and found her in the lounge room. He caught her by surprise and she was most alarmed and angry that he was here. He asked her words to the effect of 'what are you doing, what the hell is going on, why haven't you rang [sic] me, where have you been' and she replied with words to the effect of 'what the fuck are you doing here, get out now'." 20 In his remarks on sentence, his Honour dealt with submissions made to him on behalf of the applicant based on what was contained in the Pre-Sentence Report. His Honour said this: -

"The [applicant] claims to the author of the presentence report tendered in this case that he was concerned about Ms Talbot's health and that is what it was that prompted him to go to her home. I reject that in emphatic terms. It is a completely dishonest statement. What the [applicant] was concerned about was whether Ms Talbot was with another man. He was, not to put too fine a point on it, jealous. A person who is concerned for another's welfare, upon seeing that person does not say ['Who's here?'] but says ['How are you?']." 21 The applicant submitted in this Court that, in the absence of any evidence to the contrary, and having regard to the fact that the Pre-Sentence Report and Dr Hampshire's forensic psychiatric report were not challenged, his Honour fell into error in the passage last quoted in rejecting the applicant's recorded accounts of what occurred as completely dishonest. However, this submission must be considered in the light of certain other remarks made by his Honour. They include the following: -

"The statement of facts records that the [applicant] was not in the least interested in Ms Talbot's welfare or health. A person interested in another person's health does not search that person's home before leaving with a jacket obviously belonging to a man. The author of the presentence report seems to have accepted the [applicant's] version as to what he was doing in Ms Talbot's home. I do not. There is other evidence to suggest the [applicant] is a person who will tell lies in order to advance his position depending on how he considers the listener will respond to his statements. To the author of the presentence report he says that he has ceased all contact with the victim and has accepted that the relationship cannot continue. I know that the former of those statements is not true and I have grave suspicions that the latter is also not true." 22 It is clear that his Honour formed the view from all the circumstances that the applicant went to Ms Talbot's premises predominantly, if not exclusively, for reasons unassociated with either her health or her welfare. The burden of the applicant's submission is that his Honour was bound to accept what the applicant said to Ms Balandenko and Dr Hampshire in the absence of evidence to the contrary or a challenge to his evidence in some way. The applicant did not give evidence before his Honour and it is difficult to see how any relevant challenge to this evidence could have been made. It is literally true, as the applicant submitted, that the statement of facts does not in terms record that the applicant was not in the least interested in Ms Talbot's welfare or health. However, his Honour was not bound to accept that what the applicant told Ms Balandenko or Dr Hampshire was accurate, particularly if a consideration of the other circumstances before him suggested that it was not. In my opinion, the circumstances in which the applicant was found at Ms Talbot's home on the night in question bespeaks only one probable reason for him being there, and that was the one which his Honour identified. The fact that his Honour may have misapprehended what was contained in the statement of facts does not mean that he made any relevant error if the view that he formed was otherwise available to him. 23 Moreover, his Honour was entitled to have regard to the applicant's plea of guilty. A submission to the effect that the applicant's only, or even primary, motive in attending the premises was his concern for the health or welfare of Ms Talbot amounts, in effect, to canvassing that plea. 24 Secondly, the applicant submitted that his Honour fell into error in finding that the applicant had lied to the Probation and Parole Service about whether or not he had ceased contact with Ms Talbot or in failing to accept the applicant's assertion that the relationship was over. 25 The relevant portion of the Pre-Sentence Report records that the applicant "reported that as a result of the current court matter, he [had] ceased all contact with the victim". A letter from Ms Talbot dated 13 December 2006 said:

"I have seen [the applicant] since the incident and have had absolutely no issues or harassment from him and no longer feel threatened by him. We have both accepted that our relationship is over and have moved on with our own lives separately." 26 The applicant submitted that, because the relevant portion of the Pre-Sentence Report does not indicate when the applicant "ceased all contact with [Ms Talbot]", and because Ms Talbot's letter also does not say when she saw him "since the incident", it was unreasonable for his Honour to conclude that the applicant was lying to Ms Balandenko, or even for his Honour to have "grave suspicions" that anything he may have said to her was untrue. The applicant submitted that it was reasonable to conclude that he could both continue to love Ms Talbot but at the same time accept that the relationship could not continue. 27 However, the applicant also submitted that the conclusion reached by his Honour "was not the only reasonable conclusion to draw from the evidence". Inherent in that submission is that the conclusion drawn by his Honour was itself reasonable. Even if that were not the case, it is my opinion that the conclusion, which his Honour arrived at, was more than open to him and was not relevantly infected by error. The circumstances that gave rise to the charges clearly indicated that the applicant was having difficulty coming to terms with the break-up of the relationship with Ms Talbot. The doubts that his Honour held, about whether or not the applicant only said things because he realised what should be said in order to receive a lower sentence, were not unreasonable. 28 Thirdly, the applicant submitted that his Honour fell into error to the extent that he said that he was satisfied beyond reasonable doubt that the applicant had switched off the power to Ms Talbot's home. The applicant submitted fourthly that his Honour fell into error in finding that the incident was planned and that the applicant was lying in wait for Ms Talbot to return home. It is convenient to consider these two arguments together. 29 The relevant portion of his Honour's remarks on sentence are as follows: -

"I had intended to mention, but had forgotten to do so until now, that I am also satisfied beyond reasonable doubt that the [applicant] was the one who switched off the power to Ms Talbot's home. I find, that that is the only reasonable possible explanation for the circumstance that Ms Talbot had found that her power had been switched off and shortly thereafter the [applicant] turns up in her home, unwanted and uninvited. I note in this context that the [applicant] is an electrician." 30 A little later in his remarks on sentence his Honour also made the following comment: -

"This was planned activity. It appears that the [applicant] was laying [sic] in wait for Ms Talbot to return home. He had switched off the power and waited until he could gain entry to the home without Ms Talbot realising it." 31 It was submitted on behalf of the applicant that there was insufficient evidence to infer beyond reasonable doubt that the applicant waited for Ms Talbot to return home. The applicant submitted that if he had been "laying in wait", he would have seen Ms Talbot return to her home with Mr Boyd and would have seen Mr Boyd leave the premises. This, so it was submitted, is inconsistent with the fact that the applicant looked through rooms at the back of the house, because if he had been lying in wait he would have known, following Mr Boyd's departure, that the house was otherwise unoccupied. 32 However, this submission proceeds upon the basis that the applicant had no reason to enter these rooms other than to ascertain whether or not they were occupied. I do not agree. Again, having regard to the whole of the circumstances, it seems tolerably clear that the applicant was in effect purporting to assert a form of temporary dominion or control over Ms Talbot's home as part of his admitted intent to intimidate her. Entering these other rooms was part of that plan. 33 Whilst views may differ as to whether or not it was open to his Honour to find "beyond reasonable doubt" that the applicant turned off the power, his conclusion that it was "the only reasonable possible explanation for the circumstance that Ms Talbot had found that her power had been switched off" is beyond criticism. To the extent that his Honour relied upon the fact that the applicant was an electrician in arriving at a view on this topic, it is largely, if not entirely, irrelevant. 34 The applicant relied upon the fact that there was no evidence as to where the power switch was located and that it was not accessible to persons other than the applicant. Similarly, there was no evidence explaining the level of expertise required to turn the power off or dealing with the period of time that Ms Talbot had been away from the premises before she returned home. In my opinion, these matters are equally irrelevant. 35 Any submission criticising his Honour's finding that the incident was planned, or that the applicant had been lying in wait for Ms Talbot or that he had turned off the power, is really a submission that what happened was somehow spontaneous and benign. It is once again not possible in this context to disregard the applicant's plea of guilty. That plea amounted to an admission by the applicant that he intimidated Ms Talbot with intent to cause her to fear mental harm. Having regard to the terms of that plea and to the agreed facts, his Honour's findings are wholly unexceptionable. The details of how the applicant effected his plan are largely beside the point. 36 Fifthly, the applicant submitted that his Honour fell into error in finding, contrary to the evidence, that the applicant was not taking medication for his psychiatric condition. In his remarks on sentence, his Honour recorded, "There are suggestions in Dr Hampshire's report that be [applicant] was recovering from a period of depression, which at the time of this offence was not being treated by medication". The applicant took issue with this as an accurate version of Dr Hampshire's report. 37 The following is an extract from Dr Hampshire's report: -

"2. The question of a psychiatric illness. [The applicant] does not have a clear-cut psychiatric illness. He has paranoid and dependent (and to a lesser degree obsessional) traits to his personality structure which I shall outline further in my report. However it is interesting that he has recovered from a significant depressive illness which he developed in around October 2005 . He saw his General Practitioner in Bankstown, Dr Philpott to whom I have spoken. Dr Philpott commenced him on Zoloft 200 mg per day which even by experienced psychiatrists is a very high dose. Zoloft has the euphemism Californian Rocket Fuel since it is a potent antidepressant with stimulating side effects. It is used for people who are lethargic and retarded in their depression, and is also used for the treatment of Attention Deficit and Hyperactivity Disorder (ADHD) which gives some understanding of its stimulant effects. He had been on the medication for eight weeks when he committed his offences so one must wonder how much the depression, or Zoloft, or both were contributory to his behaviour. . . People with depression have exacerbations of their underlying personality structures so [it] would not surprise me if [the applicant] would have been more anxiously attached and paranoid than usual when he committed his offences." (emphasis added) 38 Counsel who appeared for the applicant before his Honour relied upon written submissions. Paragraph 10 of those submissions included a reference to Neal v R (1982) 149 CLR 305 at 324 per Brennan J as follows: -

"Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor... The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence . . ." 39 It was submitted on behalf of the applicant in this Court that his Honour misunderstood the evidence concerning medication that the applicant was taking for his psychiatric condition and the contributing effects that this may have had on his behaviour at the time he committed the offence. It was further submitted that his Honour could not have taken into account submissions made by counsel concerning this issue. 40 I cannot agree with this submission. His Honour clearly appreciated that the commission of these offences was closely associated with the break-up of the relationship between the applicant and Ms Talbot. As his Honour observed, "Ms Talbot was entitled to feel safe in her own home, free from the unwanted attentions of the [applicant] who simply could not accept that his relationship with Ms Talbot was over". (emphasis added). However, his Honour would not appear to my observation to have failed to have proper or sufficient regard for the possible effects upon the applicant of the medication he was taking, as described by Dr Hampshire, or the emotional stress under which the applicant was labouring in evaluating his moral culpability. His Honour would appear clearly to have appreciated that the applicant was (relatively) heavily medicated at the time he committed the offences and does not appear to have failed to take account of Dr Hampshire's opinion that, as a result, the applicant may "have been more anxiously attached and paranoid than usual" when he did so. 41 I am not satisfied that an error has been shown in the process of reasoning of the primary sentencing Court: see R v Simpson (2001) 53 NSWLR 704 at [100] per Sully J. The second ground 42 It was submitted on behalf of the applicant that his Honour failed to consider the fact that the applicant was suffering from a psychiatric condition - in this case, depression - upon the basis of which he may have found "special circumstances". It was conceded on behalf of the applicant in this Court that the reason why his Honour may not have turned his mind to this issue might have been the fact that it had not been raised in submissions before him. It was submitted on behalf of the Crown that Rule 4 applied. 43 It is uncontroversial that a failure to raise the matter in the Court below is a relevant consideration in deciding whether or not his Honour erred in a manner that justifies the intervention of this Court. Having regard to the view I have formed about the way in which his Honour dealt with the issue of the applicant's psychiatric condition, however, it seems apparent that his Honour took into account special circumstances in any event. A term of imprisonment, to be served by way of periodic detention, would appear in the particular circumstances of this case in all likelihood to have been selected by his Honour as an appropriate sentence having special regard for the applicant's medical state in the very least. I am fortified in this view by having regard to the fact that, notwithstanding a very significant concession apparently made by counsel who appeared for the applicant, that some form of custodial sentence was warranted, as well as the strong and unfavourable view that his Honour formed about the applicant in some respects, his Honour nevertheless decided not to accept that submission or to act upon it by imposing a sentence of full time custody. 44 An omission to refer in terms to "special circumstances", if that is what occurred, should not be permitted to obscure the fact that his Honour's remarks on sentence strongly suggest that he took account of the fact that the applicant was "recovering from a period of depression", and clearly had regard to it when exercising his sentencing discretion. There is no suggestion in the remarks on sentence that his Honour was of the view that the applicant had recovered or that his medical condition could, or should, be disregarded.

45 His Honour's remarks on sentence included the following: -

"One of the most important features to be considered when determining an appropriate sentence for an offender is the likelihood that that offender will commit further offences. That matter is of course relevant to the extent to which the sentence needs to reflect an element of personal deterrence. It is also relevant to things such as retribution. In turn one of the most important features in assessing the likelihood that an offender will commit further offences is the extent to which the offender accepts responsibility for what he has done and acknowledges the extent to which it is a breach of the law.

In this case the [applicant] has pleaded guilty to an offence of intimidating with intent to cause fear of physical or mental harm. To that extent he accepts his responsibility for committing a criminal offence, but in many other areas he demonstrates a remarkable lack of candour. He demonstrates a lack of insight into the wrongfulness of his conduct and he frankly has tried to pull the wool over my eyes. I will explain in more detail later why it is that I have reached that conclusion. **********

I have given anxious consideration as to the form of the punishment that I should impose in this case. It is accepted by [counsel for the applicant] that a custodial sentence of some form is required. I accept that that is the case. I have determined the appropriate sentence and then turned my mind to the way in which that sentence should be served.

This is a case where there needs to be a very significant element of personal deterrence visited upon the [applicant]. I do not consider that he, himself, recognises how wrong his conduct was. It needs to be brought home to him by a significant sentence therefore, that if he continues to act in a way that he does not really accept is wrong, he will be punished and punished severely.

I gave serious consideration to imposing a sentence of full-time custody upon the [applicant]. However, I will not do so. The [applicant's] good work history and his lack of serious earlier offending are the two features which have persuaded me not to impose a sentence of full-time custody. But the [applicant] should consider himself very lucky at the sentence I will shortly impose. I have got no doubt that some would regard the sentence I am about to announce as being lenient in light of the [applicant's] attitude towards the offence itself." 46 The applicant's criminal record, to which his Honour adverted in the passage just quoted, includes two charges of assault occasioning actual bodily harm on 29 October 2003. Ms Talbot was the victim of these offences. The applicant was fined $1400 and $1200 respectively, and was placed upon bonds for periods of 2 years and 18 months, subject in each case to the supervision of the New South Wales Probation Service for as long as considered necessary. He was directed to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation. In addition, the applicant was charged with a third offence of malicious destruction or damage to property of a value greater than $2000 but less than $5000 for which he was placed upon a bond for 18 months, subject to the same conditions. His Honour noted in his remarks on sentence that the circumstances of the offences for which he was being sentenced were aggravated by the fact that the applicant was on a bond at the time, although he observed that supervision under that bond had been terminated only a relatively short time before the applicant reoffended. 47 His Honour appears to have regarded the applicant's criminal record, which included, but was not limited to, these earlier offences, as amounting to a "lack of serious earlier offending". Although this Court was not provided with details of the earlier offences, it can be assumed with some confidence that they involved not insignificant assaults. They are in any event particularly significant for present purposes given that Ms Talbot was the victim of these offences. His Honour's remarks offer some clear insight, however, into the view that he formed about the seriousness of the principal offence committed by the applicant in the present case. He was undoubtedly influenced by the applicant's lack of candour, and his Honour's impression that the applicant would lie when it suited him. 48 With one exception, however, I do not think that this led his Honour to have insufficient regard to other matters favourable to the applicant, such as his emotional state or the effect of his medication. That exception, it seems to me, is the imposition of a sentence of 6 months imprisonment for stealing a leather jacket. Whether viewed in isolation or in combination with the principal offence, I consider that, with respect to his Honour, he may erroneously have permitted his unfavourable view of the applicant unduly to guide his sentencing discretion. 49 In my opinion, the sentence imposed by his Honour in respect of the principal offence was not manifestly excessive. It is not a sentence that should attract the intervention of this Court. I have a different view of the larceny offence. Some other sentence for that offence was warranted in law and should have been passed. 50 The applicant is presently 36 years of age. He was 34 years of age at the time of the offences. It is submitted on his behalf that he has a close and supportive relationship with his immediate family, is in full time employment as an electrician and has been involved in community volunteer work. At the time of the commission of the offences the applicant was subject to a two-year good behaviour bond that was due to expire on 1 July 2006. Probation and Parole supervision was a condition of the bond although such supervision had been terminated in December 2005 due to the applicant's satisfactory performance. The applicant had never served any form of custodial sentence. 51 As the applicant's relevant criminal history (including the present offences) reveals, all of his convictions have arisen out of or are related to circumstances involving Ms Talbot. The applicant suffers from a psychiatric condition that was being treated by medication at the time he committed the present offences. (Notwithstanding these matters, Ms Talbot was prepared to give evidence on behalf of the applicant when he was sentenced in the Court below). Whereas his Honour properly emphasised punishment, retribution and deterrence when dealing with the principal offence, these factors do not apply with equal force when considering the larceny offence. In my opinion, that offence was in truth little more than an unfortunate, spontaneous, impetuous and immature act. As already mentioned, his Honour accurately observed that the applicant was, "not to put too fine a point on it, jealous". It is not without significance to note that the leather jacket belonged to a man that would appear to have replaced the applicant in Ms Talbot's affections. 52 Finally, in the course of his remarks on sentence his Honour agreed with counsel appearing for the applicant that the s 562AB offence was one which could have been dealt with summarily, and that his Honour foreshadowed in that circumstance that he would not impose a sentence which extended beyond the jurisdictional limit of the Local Court. Later in his remarks on sentence his Honour noted that the applicant had pleaded guilty to this offence at an early stage and that he proposed to discount the sentence he would otherwise have imposed by 25% to reflect that fact. In the events that occurred, however, the 2 year head sentence imposed by his Honour, with a 25% discount applied, represents an undiscounted term of 2 years and 8 months. That exceeded the jurisdictional limit of the Local Court by 8 months. 53 Counsel for the applicant submitted that this amounted to an error. The Crown conceded that his Honour made an error but that it was not such as would provoke this Court to interfere with the sentence that was imposed. I am uncertain that that concession is accurate, but in any event I agree that it is not something that would warrant any interference by this Court. In the absence of a suggestion that somehow the course taken by counsel for the applicant below was altered or was otherwise adversely influenced by a disappointed reliance upon his Honour's remarks - and no such submission is made - the statement by his Honour achieves no importance in this case. Orders 54 I would make the following orders: - (1) Leave to appeal is granted. (2) Appeal allowed in part. (3) Confirm the sentence imposed for the offence under s 562AB of the Crimes Act 1900 . (4) Quash the sentence imposed for the offence under s 117 of the Crimes Act 1900 and in lieu thereof dismiss the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999 .

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