R v Morgan [2000] NSWCCA 296

New South Wales Court of Criminal Appeal

CITATION : R v Morgan [2000] NSWCCA 296 revised - 13/09/2000 FILE NUMBER(S) : CCA 60084/2000 HEARING DATE(S) : 07/08/2000 JUDGMENT DATE : 7 August 2000

PARTIES : Regina v Justin James Morgan JUDGMENT OF : James J at 1; Dowd J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0103 LOWER COURT JUDICIAL Shillington DCJ OFFICER :

COUNSEL : SJ Odgers - Applicant AM Blackmore - Crown SOLICITORS : Murphy's Lawyers Inc - Applicant SE O'Connor - Crown

DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL No 60084/98 JAMES J DOWD J

Monday 7 August 2000 REGINA v JUSTIN JAMES MORGAN JUDGMENT 1 JAMES J: Justin James Morgan has applied for leave to appeal against sentences imposed on him in the District Court on 18 July 1997 by his Honour Judge Shillington after he had pleaded guilty to 12 charges and had asked Judge Shillington to take into account in sentencing him a further 11 offences. 2 The offences for which the applicant was to be sentenced and which were to be taken into account had all been committed between 19 November 1996 and 9 December 1996. The charges in the indictment consisted of one charge of breaking, entering and stealing, five charges of armed robbery, four charges of kidnapping (an offence under s 90A of the Crimes Act), one charge of attempted kidnapping and one charge of stealing a motor vehicle. The offences to be taken into account consisted of six offences of larceny of a motor vehicle, two offences of breaking, entering and stealing, one offence of possessing a prohibited weapon, one offence of stealing and one offence of attempting to steal a motor vehicle. 3 On each of the charges in the indictment, subject to one exception, Judge Shillington imposed a sentence of penal servitude for 10 years, consisting of a minimum term of five years and an additional term of five years. On the one remaining charge, which was the charge of stealing a motor vehicle, his Honour imposed a fixed term of imprisonment for three years. His Honour made all of the sentences commence from 9 December 1996, which was the date on which the applicant had been taken into custody. 4 In his remarks on sentence the sentencing judge summarised the facts of the offences in a way which has not been the subject of any criticism on the hearing of this application. "You have pleaded guilty to twelve charges, the first being an aggravated breaking, entering and stealing which occurred on 19 November 1996 at Lindfield. You, at the time, were armed with a stick and your co-offender with a knife. The co-offender was the young man W whom I have already dealt with in respect of these other matters. The second and third charges relate to an armed robbery conducted at a motel in Killara and you and W went to the motel in the night when the young lady Miss Rebecca Bott was in charge of the office. She then was twenty one years of age. She was presented with a 45 pistol which was held against her forehead and as a result of that she handed over an amount of money which was in a safe. She was then abducted from the premises and dropped off at a lonely place from which she was able to obtain assistance. The fourth and fifth charges relate to an armed robbery, again with the use of pistol which, in this case, was held by you and the victim was Mr Ronald Archibald who ran a newsagency at Lindfield. He was threatened. There was some nine thousand dollars taken from a safe and from a till and he also was abducted and released, again, in a lonely place. The sixth charge related to an armed robbery at a Liquorland store at Artarmon. The young man in charge, twenty two years old Justin Malcolm, was menaced, again, with a pistol which was held by your co-offender. The pistol was held against his head and he was relieved of the money at the premises. The seventh, eighth, ninth and tenth charges relate to events which occurred initially at a restaurant run by Paul Dunford and David James at Waverton. They had finished for the night and they were simply preparing, no doubt, to leave when you and W entered. You were armed with the 45 pistol, W with a carving knife. They were threatened. They were required to hand over what money they had. Dunford was obliged to inform you and your co-offender of the pin to his automatic teller machine account and money was obtained from that account. They were both bundled into Dunford's BMW, into the boot. They were in a cramped condition in the boot. James complained of an asthma problem which received no sympathy from either of you, and it is a mercy that he survived that terrible experience. Those two men were also dumped in a remote place and the BMW was taken and used to make your escape. The eleventh and twelfth charges relate to an armed robbery which occurred at Mr Tompkins newsagency at Concord. He was relieved of some three thousand dollars in cash from a safe. He was ordered out of the shop and this is in the early hours of the morning. He managed to make his escape. He was being directed to his car which was nearby. That is the charge of kidnapping being the last charge in the indictment". 5 There were admitted into evidence in the proceedings on sentence a long statement by the applicant and a report by Dr Westmore, forensic psychiatrist, of 29 April 1997. In his statement the applicant said, inter alia, that in August 1996 he had inadvertently driven through a set of traffic lights and the vehicle he had been driving had collided with another vehicle. The driver of the other vehicle had been injured and a criminal charge had been brought against the applicant. The motor vehicle accident and its consequences assumed importance in the sentencing of the applicant. 6 In his remarks on sentence the sentencing judge, after stating the facts of the offences, said that the offences involved, if not physical, then very serious psychological harm for the victims. His Honour said, "these are the type of crimes which cry out for general deterrence". 7 His Honour noted that he had already sentenced a co-offender, W, who had been a minor aged 17 at the time the offences were committed, to sentences which were the same as the sentences ultimately imposed by his Honour on the applicant. 8 The applicant himself was born in March 1973 and was accordingly 23 years old at the time the offences were committed. His Honour said that he was satisfied that the co-offender had been a malign influence on the applicant in the commission of the offences. 9 With regard to the motor vehicle accident, his Honour noted that the applicant had been very severely affected by it, he had been on bail on a charge of culpable driving arising out of the accident at the time of committing the offences for which he was being sentenced and that in May 1997 the applicant had been sentenced to imprisonment for four months for driving in a dangerous manner inflicting grievous bodily harm. 10 Apart from this conviction, the applicant had a comparatively minor criminal history. The sentencing judge took into account in favour of the applicant his youth, his co-operation with the investigating police, his pleas of guilty at the earliest opportunity and his contrition. 11 His Honour noted that the applicant's parents had separated early in his life and that the applicant continued to have the support of both parents. His Honour also referred to the report of Dr Westmore. In his report Dr Westmore had concluded that the applicant suffered from substance abuse and dependency and had an adjustment disorder with depressed and anxious mood. 12 Although Judge Shillington sentenced the applicant on 18 July 1997, no appeal document was filed until 21 February 1998. On that day a notice of application for an extension of time in which to apply for leave to appeal and a notice of application for leave to appeal were filed. There was been a further long delay before this hearing. 13 The application for leave to appeal is based on new evidence which, it is contended, is fresh evidence and which, it is contended, shows that at the time of committing the offences the applicant was suffering, not merely from the adjustment disorder with depressed and anxious mood diagnosed by Dr Westmore but from a mental illness being a bipolar disorder. 14 The new evidence relied on by the applicant consists of (1) an affidavit of Dr Tony Mastroianni, psychiatrist, of 29 June 2000, to which is annexed a report about the applicant dated 15 November 1999 (2) an affidavit by the applicant's mother, who has re-married and is now known as Mrs Veronica Kulakovski, sworn 7 July 2000, in which Mrs Kulakovski supplies a history of bizarre behaviour by the applicant based on her observations of him (3) a further affidavit by Dr Mastroianni sworn 1 August 2000, to which are annexed a report by Dr Westmore of 21 January 1999, notes made by the applicant's general practitioner, Dr Singh, between December 1994 and December 1996, an assessment of the applicant by a drug and alcohol physician, Dr Harding Burns, dated 5 October 1994, and two letters from a Corrections psychiatrist, Dr J Parmegiani, dated 9 June 1998 and 29 September 1998. 15 The Crown tendered an affidavit by a solicitor in the office of the Director of Public Prosecutions, to which was annexed an affidavit by a solicitor in the office of the applicant's solicitors, to which in turn were annexed two further reports by Dr Westmore of 15 February 2000 and 14 June 2000. 16 In addition to this documentary evidence Dr Mastroianni gave brief oral evidence before the Court. The Court provisionally received all of this new evidence for the purposes of determining whether it should be finally admitted. Apart from brief cross-examination of Dr Mastroianni, there was no cross-examination before us of any of the deponents of the affidavits. 17 I have already referred to Dr Westmore's first report of 29 April 1997, which was before the sentencing judge. In this report Dr Westmore said: "He suffers from substance abuse and dependency and has an adjustment disorder with depressed and anxious mood. The drug and alcohol abuse appears to have become marked after the motor vehicle accident which occurred in August 1996. Mr Morgan's problem was the car crash and the disturbed mental state which followed it left him, as noted earlier, somewhat vulnerable to suggestions that he participate in a series of somewhat bizarre and obviously highly risky ventures". 18 Dr Westmore expressed the opinion from the history he was provided with that the applicant was "probably quite depressed, certainly despondent", at the time of committing the offences. 19 In his report of 5 October 1994 Dr Harding Burns gave the opinion that the history supplied to him indicated episodic harmful binge drinking by the applicant, without dependency symptoms. 20 The handwritten notes of the applicant's general practitioner, Dr Singh, for consultations between 20 September 1994 and 3 December 1996 contain entries showing that in Dr Singh's opinion the applicant was suffering from depression. 21 In Dr Parmegiani's first letter on 9 June 1998 he said for about a year before, while the applicant was in prison, the applicant had developed depression and by June 1998 he had presented as having a major depressive episode. He was taking anti-depressant medication and Dr Parmegiani suggested that he should continue taking the medication. 22 In his second letter of 29 September 1998 Dr Parmegiani said, inter alia: "Mr Morgan was re-assessed on 29 September 1998. He presented with hypomania and a review of treatment was requested. Mr Morgan had pressured speech, flight of ideas and loose associations. He felt euphoric, confident and irritable. He told me that he had not slept for four days and had finally come out of his shell." 23 Dr Parmegiani decided to discontinue the anti-depressant medication. Dr Parmegiani expressed the opinion that it was probable that the applicant's depression would re-emerge in the next few weeks. 24 In his report of 21 January 1999 Dr Westmore expressed the following opinions and conclusions: "1. Mr Morgan has a clear history of depression which extends over a number of years and more likely than not his illness is a biological or biochemical depression. He may also have a dysthymic disorder which is a chronic disturbance of mood and this disorder may have been interrupted from time to time with more serious, significant mood state disturbances of major depression. 2. In September 1998 he was diagnosed for the first time with a hypomanic episode which was more likely than not precipitated by anti-depressant medication. 3. It is likely he has had in the past other episodes of abnormal mood elevation which may or may not have reached the same level of intensity or disorder as the one identified in September 1998. His mother's letter is of relevance in this regard where she reported that she noticed a similar disturbance in him following the motor vehicle accident when he was treated with the anti-depressant Prozac and later when he was using amphetamines. Prozac and Aropax and, indeed, Zoloft, all act in similar ways at a neurochemical level. 4. Generally bipolar affective disorder is not diagnosed when a patient is consuming mood altering illicit substances. The reason for this is that some illicit drugs, particularly amphetamines are strongly associated with abnormal moods because of the nature of the action of those drugs. Mood elevation can be quite common as indeed can psychotic symptoms. Amphetamines cause an overstimulation or overproduction of neurotransmitters which cause the symptoms of altered mood. 5. When a patient takes antidepressants and develops an abnormally elevated mood, then it is thought that the drug has precipitated the abnormal mood elevation in an individual predisposed to developing this abnormal mood elevation. These patients then generally attract the diagnosis of suffering from a bipolar affective disorder. Anti-depressants work chemically in quite a different way from illicit drugs of a stimulating nature such as amphetamines. They do not generally produce an overproduction of neurotransmitter but restore the normal concentrations of neurotransmitter in the synapatic cleft. 6. The history he gives about his mood state in the past would suggest his mood has been predominantly one of depression with episodes of irritability and on occasions inappropriate behaviour such as buying a lots of shoes and having rapid thoughts. Hypomanic illness is a severe medical condition which because of the nature of its presentation, that is, it is so clearly evident to everyone, it is unlikely to be overlooked by members of the general community. Patients speak rapidly, they often do not sleep for days, they are hyperactive and disorganised in their behaviours. They often participate in bizarre, grandiose schemes, they often spend money excessively and behave in an inappropriate sexual way. 7. It is difficult to say in such a retrospective way and because of the complicating factors of illicit drug usage, that this man had a clear cut hypomanic illness at the time of the offending behaviour. It is therefore not possible in my view to indicate to you that he has a mental illness defence. Having said that however the history given by him, and supported to a large extent by his mother, does suggest that he was suffering some kind of mental state disturbance around the time of the offending behaviour. The predominant affect appears to have been one of depression but he also may have had periods of elevation around that time. The mood state disturbances of bipolar affective disorder can swing in some patients very rapidly and in extreme cases patients can swing from states of severe depression to hypomanic exuberance over a period of half and hour. In my own report of 29 April 1997 I made the observation that 'it is difficult to explain this man's criminal activity on his personality profile alone'. The view expressed in that report therefore, that there was probably another factor relevant to the offending behaviour at the time it occurred, is supported by recent developments. 8. At the time of the offending behaviour it is likely that this man had a mixed mood state, possibly being depressed on occasions and certainly initially following the motor vehicle accident. He then started using cocaine and amphetamines and it more likely than not that these adversely affected his mood state. He told me on specific inquiry that on occasions these drugs would make him feel better but not always. In response to your specific queries I would advise as follows:- It is likely that Mr Morgan was suffering some type of mental state disturbance between 19 November 1996 and 8 December 1996". 25 In his report of 15 November 1999 Dr Mastroianni said that the purpose of the report was to give an added psychiatric perspective of the applicant's probable mental state at the time of the offences. Dr Mastroianni had as sources of information, not only Dr Harding Burns' report, Dr Singh's notes, Dr Westmore's reports and Dr Parmegiani's letters of 9 June 1998 and 29 September 1998, but also the applicant's prison file, the information supplied by the applicant's mother by way of history, which would appear to have been similar to the history later included in her affidavit, and psychiatric clinical evaluations of the applicant performed by Dr Mastroianni twice weekly between 2 October 1998 and 6 December 1998 at the Long Bay Prison Hospital. 26 Parts of Dr Mastroianni's report are as follows: "These descriptions (of accelerated thoughts, poor sleep, restlessness, poor frustration tolerance and bizarre beliefs) are consistent with a hypomanic mental state and are similar to how Justin was during his manic episode in October 1998 in the prison hospital… Justin was under my psychiatric care from 2 October 1998 to 6 December 1998. During this time, my observations of his moods and behaviours allowed significant insight into how Justin may have been during the time of the Index Offences two years earlier. The lability of Justin's mood, his distorted perception of events that were happening on a day to day basis, and the inconsistencies of his accounts of events during that period are all factors which I shall discuss. Justin has a diagnosable chronic mental illness as defined in the New South Wales Mental Health Act, 1990. This mental illness is Bipolar Disorder. The history provided by Justin's mother, as well as the evidence from his general practitioner's notes, suggest that Justin has suffered undiagnosed from this mental illness from at least his mid teenage years. I agree with Dr Westmore that 'Bipolar Affective Disorder is not diagnosed when a patient is consuming mind altering illicit substances' because 'some illicit drugs, particularly amphetamines, are strongly associated with abnormal moods because of the nature and action of those drugs. Mood elevation can be quite common as indeed can psychotic symptoms'. It is also true that when a patient has abnormally elevated moods after taking antidepressant medications, then it is considered that that individual is predisposed to developing this abnormal mood elevation and is given a diagnosis of Bipolar Disorder. This is because antidepressants restore the normal concentrations of neurotransmitters in the brain rather than over-stimulating them as amphetamines do. A careful review of Justin's history confirms that he suffered a manic episode in late 1998 precipitated by antidepressant medication. He has also experienced recurrent briefer hypomanic episodes that occurred de novo without chemical stimulation since his late teenage years. Dr Bruce Westmore did not have the benefit of the clear history given by Justin's mother, Justin's general practitioner's notes, nor the benefit of regular observations of Justin during a manic episode. As a result, Dr Westmore was wisely guarded in committing himself to stating whether Justin suffered from a mental illness (i.e. a manic state) at the time of the Index Offences. However, even without such evidence, Dr Westmore'' clinical acumen and psychiatric expertise is highlighted in his 1999 opinion: 'The Court could certainly consider this man's mental illness as playing a role, perhaps not a direct role, but a role nevertheless in his offending behaviour and to that extent his mental illness could be considered by way of mitigation in my view'. It appears that Dr Westmore's main hesitation to committing himself to whether Justin's mental illness played a direct role in his Index Offences is the lack of information or evidence known to him of a hypomanic episode. The evidence Dr Westmore sought is a person's inability 'to survive for any length of period in the community while suffering from a hypomanic episode .. the illness is so disabling and the individual becomes so dysfunctional that almost anyone and everybody would identify some mental abnormality and present them to a doctor or a hospital for assessment. The fact that this did not occur does suggest that the condition was less severe than it was towards the end of 1998 and again, that the predominant symptoms were ones of depression which often does not cause the same level of urgency to take a patient to hospital .. he does not really give a history which is consistently strong in this regard, however, to make such a diagnosis'. The evidence has since been provided by Justin's mother. Justin was reportedly 'as high as a kite' from September 1996 onwards; he displayed uncharacteristic behaviours of threatening to kill family members and himself; the family repeatedly attempted to get Justin to seek medical assistance which he refused because of his lack of insight into his illness; Justin displayed an uncharacteristic chaotic and itinerant lifestyle during that time; and Justin's involvement in uncharacteristic anti-social, bizarre and reckless behaviour over a short time period (which are similar to the behaviours displayed during his manic episode in hospital in 1998). These factors suggest that Justin's judgment and moods were severely impaired at the time of the Index Offences due to a hypomanic or manic episode. It is my opinion, within reasonable medical certainty from the evidence available to me, that Justin did suffer from a mental illness characterised by a severe mood disturbance at the time of the Index Offences in 1996. These mood disturbances were possibly precipitated by the use of Prozac antidepressant medications and exacerbated by the stressors of a motor vehicle accident, its subsequent Court proceedings and Justin's illicit substance abuse. In view of Justin's severe manic episode in 1998 and his longstanding history of hypomanic episodes, it is unclear to what extent the illicit drug component was. It does not change the fact, however, that Justin's mental state met the criteria for a mental illness at that time". 27 In his report of 15 February 2000 Dr Westmore, having seen Dr Mastroianni's report, said that he remained of the opinion that at the time of committing the offences the applicant was likely to have been suffering from some type of mental state disturbance but he would not accept that at the time of committing the offences the applicant was suffering from a manic or hypomanic episode. 28 In his later report of 14 June 2000 Dr Westmore said: "My own view based on the history I have obtained is that while this man was suffering a mental state disturbance at the time of the offending behaviour I was not, on the history given to me, able to diagnose the presence of a frank mental illness." 29 As I have noted earlier, apart from brief cross-examination of Dr Mastroianni there was no cross-examination of any of the deponents of the affidavits and the Court has been left with the affidavit evidence. 30 On the question of whether the new evidence should be admitted, the Court was referred to R v Fordham (1997) 98 A Crim R 359 where Howie AJ, with whose judgment Hunt CJ at CL and Smart J agreed, discussed the principles to be applied by the Court of Criminal Appeal in determining whether new or fresh evidence will be received by the Court of Criminal Appeal in an appeal against sentence. 31 At pp 377-378 Howie AJ said: "Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed. However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence; McKenna (unreported, Court of Criminal Appeal, NSW, No 60705 of 1991, 16 October 1992). It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: Goodwin (1990) 51 A Crim R 328: compare De Marco (unreported, Court of Criminal Appeal, NSW, No 60024 of 1993, 20 November 1995). There is also a general power in the court to receive fresh or new evidence where the interests of justice require that course: Many (1990) 51 A Crim R 54". 32 In R v Bailey (1988) 35 A Crim R 458 the Court of Criminal Appeal admitted new evidence which showed that, at the time the applicant was sentenced, he was suffering from a medical condition AIDS, which had not been apparent at the time of sentencing. 33 It was submitted by the Crown that this Court should not receive the new evidence, on the grounds that it is evidence which, with reasonable diligence, could have been produced at the time of sentencing and, in any event, was merely evidence of the opinion of another psychiatrist, the evidence of the opinion of Dr Westmore having been before the sentencing judge. 34 In my opinion the Court should receive the new evidence. I consider that the evidence satisfies the conditions for evidence to qualify as fresh evidence, including the condition that it is evidence which could not with reasonable diligence have been produced in the proceedings on sentence. 35 For the proceedings on sentence the applicant prepared a long statement running to 12 pages, which was made available to Dr Westmore and which was admitted in the proceedings on sentence. However, the applicant, who was a lay person, was not to know the special significance that events not included in his statement might have for a psychiatrist. Furthermore, it would appear that, if the applicant had been suffering from a psychiatric condition at the time of committing the offences, he would be likely to have lacked insight into it. The report by Dr Westmore which was before the sentencing judge was necessarily a report based on the history which was then available to Dr Westmore. Even if I am not correct in holding that the new evidence satisfies the condition that it could not with reasonable diligence have been produced in the proceedings on sentence, that condition does not apply universally or inflexibly (see Fordham). 36 I am further of the opinion that the new evidence satisfies the condition that the new evidence should have a certain level of cogency, whether that level of cogency is expressed as it was in Goodwin or analogously to the way in which it was expressed in cases of appeals against conviction in Gallagher v The Queen (1986) 160 CLR 392 and Michelberg v The Queen (1989) 167 CLR 259. 37 Even if the new evidence is not strictly fresh evidence, I consider it is admissible in accordance with, or by way of an obvious extension of the principles in Goodwin. I consider that the new evidence has significance in the sentencing proceedings, the significance of the evidence was unknown to the applicant at the time of the proceedings on sentence and the applicant's legal representatives were unaware of the evidence at the time of the proceedings on sentence. 38 New evidence which tends to show that at the time of sentencing the applicant may have been suffering from a condition of mental ill health, which was not apparent to the psychiatrist who examined him for the purpose of the proceedings on sentence, is rather similar to the kind of new evidence which was admitted in Bailey. The new evidence is not simply the evidence of another psychiatrist based on the same materials as those available to Dr Westmore at the time of the proceedings on sentence. Dr Mastroianni received a much more extensive history than that provided to Dr Westmore and had also been the applicant's treating psychiatrist over a period of two months in 1998, during which he saw the applicant twice weekly. Dr Parmegiani, another treating psychiatrist, observed the applicant in 1998. 39 The new evidence having been admitted, the Court should grant an extension of time in which to apply for leave to appeal and should grant leave to appeal. It is necessary for this Court itself to exercise afresh the sentencing discretion originally exercised by the sentencing judge, having regard to both the evidence which was before the sentencing judge and the new or fresh evidence. 40 Having regard to the new evidence, I would accept that at least at times during the period in which the offences were committed the applicant was suffering, not merely from the adjustment disorder diagnosed by Dr Westmore, but from a bipolar mental illness. 41 However, the question arises whether this Court, having independently exercised its sentencing discretion, would arrive at any lesser sentences than the sentences imposed by his Honour. It is clear that, in arriving at the sentences he imposed, the sentencing judge gave a considerable discount for the applicant's mental disability, because the sentences were very lenient when regard is had to the very serious objective criminality in the applicant's many offences. The applicant committed several offences of armed robbery using a firearm or a knife, in most of which the victim or victims of the armed robbery were kidnapped. The Court has to take into account the principles laid down in the guideline judgment of R v Henry (1999) 46 NSWLR 346. 42 Having taken into account the numerous offences included in the indictment and the numerous other offences to be taken into account and even accepting the new evidence, including the evidence of Dr Mastroianni, I have reached the conclusion that it is not the case that some other sentences less severe than the sentences imposed by the sentencing judge are warranted. It would appear to me that the sentences imposed by the sentencing judge were extremely lenient, having regard to the order of criminality manifested in the numerous offences. 43 Accordingly, as I am of the opinion that no sentences less severe than the sentences which were imposed by the sentencing judge would be warranted, I would dismiss the appeals against sentence. 44 DOWD J: I concur with the proposed orders and the reasons therefore announced by his Honour James J. 45 JAMES J: The order of the Court is, the appeal against sentence is dismissed. **********