R v Smith[2002] QCA 528

SUPREME COURT OF QUEENSLAND

[1]  MCMURDO P:  I agree with the orders proposed by Williams JA and with his reasons.

[2]  WILLIAMS JA:  The appellant appeals against his conviction on 22 separate offences against s 427 of the Criminal Code; the total amount involved was approximately $870,000.00.  In addition the appellant pleaded guilty to a further seven charges brought pursuant to s 408C of the Code; the amount of money involved in those offences was approximately $60,000.00.  He was sentenced to five years imprisonment on each of the false pretence charges, the sentences to be served concurrently.  On each of the other seven charges he was sentenced to imprisonment for one year, the sentences to be served concurrently, but cumulatively with the five year sentence.  In other words he was sentenced to a total of six years imprisonment.  The appellant appeals against conviction on the ground the jury verdict was unsafe and unsatisfactory and against the weight of the evidence, and he also seeks leave to appeal against the sentence on the ground that it was manifestly excessive.

[3] The appellant was aged 55 at trial and was carrying on business when the offences were committed as a financial adviser.  His business card indicated he was trading under the name “Coastal Financial Group” and offering advice on insurance, superannuation, investment, financial planning, finance, accounting and taxation, and private lending.  He was at the material time an authorised representative of Grosvenor Securities Pty Ltd.  Prior to 1996, when the offences occurred, the appellant had been in the financial planning business for some 10 years.  Over those years he had been a representative for a number of major financial institutions, including AMP and National Mutual.

[4] The false pretence and false promise involved in each of the 22 counts centred on the fact that each of the investments in question was represented by the appellant to be associated with the British Marine Bank.  The specific representations were along the line that the bank “was 100 per cent safe”, “was a bank operating in Australia in which people could invest money”, that the bank was “completely safe”, that an investment with the bank would be “a safe investment”, that the bank was “like a usual bank”, and that an investment with the bank “was as safe as any bank investment”.

[5] The appellant was responsible for the preparation of what might be described as a brochure about the British Marine Bank; his contact details were included in the material.  The brochure stated:

British Marine Bank was granted a licence by the Australian Federal Government to operate in Australia as a foreign bank.  The chief Executive Office, Mr George Balos, has over 20 years experience in off shore and world wide markets and previously traded as Commodities International.

You will appreciate that this bank is a “Wholesale Bank” and therefore deals only through advisers and intermediaries and not directly with the public.  This bank has branches in London, Israel, Delaware USA, and Sydney.  It is expanding into the Asian market as well.  The British Marine Bank also has an insurance arm and is currently looking at options in South East Asia.

Mr Balos and his expert team in Sydney, invests customers’ funds, trading in 10 and 30 year bonds, futures, commodities, and currencies, enabling a high yield.

For details of your investment, please refer to opposite page.  All cheques should be made payable to “British Marine Bank” and forwarded with the application to:-

Coastal Financial Group

PO Box 3373

AUSTRALIA FAIR  Q  4215

Or handed to your authorised adviser.

All telephone enquiries should be made to:-

Financial Services Dept

Coastal Financial Group

Telephone:  (07) 5528 0888

Facsimile:   (07) 5528 0999

[6] Most, if not all, of the lenders whose transaction was the subject of a count on the indictment were shown that brochure by the appellant or otherwise saw it. 

[7] The appellant was also the author of a letter dated 7 May 1997 to an accountant in Western Australia which was in the following terms:

“Please find enclosed information regarding our discussions last Tuesday.

I have been running my own Financial Services business for the past 19 years and most of that time held a Proper Authority with various institutions.  I now promote investment business through George Balos, (I’ve known him for 26 years) through Commodities International and he has applied to the Reserve Banks of Australia and New Zealand for a Merchant Banking Licence in both countries under the name British Marine Bank.  We believe the granting of these licences is only a few months away.

I will be a director, board member and 15% shareholder of both banks.  We will be able to offer a boutique banking service with branches in Auckland, Wellington, Christchurch and capital cities of Australia.

I am looking for a suitable person or group for Perth and I thought, on Greg Schmidt’s recommendation, I should contact you.  We currently offer investments, including off-shore, to a wide range of clients and I am responsible to George in the promotion and the distribution to our existing clients, and the preparation for the new bank.

We promote the investment with clients through contacts, eg solicitors, accountants, friends, relatives and business acquaintances, but not through public advertisements.  The investments are done by way of a loan agreement and personally guaranteed by George Balos.  We avoid ASC problems regarding prospectuses and prescribed interest payments.

George has been operating the system for 28 years and has great personal wealth.  He places accounts through Perpetual Trustees and Macquarie Bank in their cash management trusts and trades in the futures, commodities, currencies and bond markets.  He is recognised as “one of the best”.

Brokerage and client returns are below.

There are a number of other areas I would prefer to discuss with you.

Looking forward to hearing from you.”

[8] During cross-examination (record 406) the appellant said he was “very familiar with that letter”, but he did not proffer any explanation with regards its contents.

[9] At trial the prosecution called a witness from the Australian Securities & Investments Commission who gave evidence that searches revealed that the British Marine Bank was unregistered in Australia and did not exist internationally.  Subsequent to that evidence being led counsel for the appellant made the following formal admission:

“The Bank Almanac is a listing of international banking institutions.  It does not contain a listing of the British Marine Bank.  British Marine Bank has never been registered nor operated as a bank in Australia.  British Marine Bank has never made an application or any other approach to the Reserve Bank, Treasury or the Australian Prudential Regulation Authority … in respect of obtaining an authority to operate in Australia or to undertake banking business in Australia.  The British Marine Bank was not registered as a bank in New Zealand from 1 November 1994 to date and was not authorised by the Reserve Bank of New Zealand to use the name “Bank” in its name.  There is no record for the application by British Marine Bank for the registration as a bank from 1 November 1994 to date. …  The British Marine Bank is not registered a limited liability company in England or Wales.  The British Marine Bank was not authorised to operate as a bank in the United Kingdom from 1 October 1987 to date.  … 

[10]  There were further formal admissions with respect to the non-existence of the British Marine Bank but it is not necessary to set out the admission in greater detail.

[11]  The Loan Agreement which was central to each of the 22 counts in general referred to the agreement being with “George Balos of British Marine Bank”.  None of the Loan Agreements expressly said that the money was lent to the British Marine Bank though it was clear from the evidence of each investor that the British Marine Bank was represented by the appellant as being material to the investment.  The appellant’s signature is to be found on each of the Loan Agreements as a witness to signatures.

[12]  Further formal admissions were made by counsel for the appellant with respect to the dealings with the cheques which constituted each of the loans in question.

[13]  Given that money was paid over with respect to each transaction constituting a count on the indictment and that there was no British Marine Bank, once it was established that the appellant represented to each investor that there was an institution known as the British Marine Bank which was material to the investment, the only remaining issue for the jury was whether the appellant had an intent to defraud on each material occasion.  In consequence it was the appellant’s state of mind at the time of each of the relevant transactions which was critical for the jury’s consideration.

[14]  Indeed, looked at objectively, it could be said that on the evidence outlined above convictions were inevitable unless the appellant, by his evidence, created in the collective mind of the jury at least a reasonable doubt as to his state of mind when each of the transactions was entered into.

[15]  Against that background the following passages from his evidence-in-chief are instructive:

“Do you know an individual by the name of George Balos?- Yes, I do.

Are you able to tell us when you first heard of Mr Balos?-  It was in early 1970s. …

And did you maintain a relationship with George Balos?-  No, I did not.

When was the next time or did you hear of George Balos again?-  No, I didn’t hear of George Balos until around about mid-October ’96.  … I didn’t have a lot to do with Paul Hewitson because he was marketing some multi-level marketing and I had made arrangements and used my training room of an evening to hold marketing seminars, but he came to me and said, “I want to talk to you about a bank of a mate of mine that’s got this bank that’s got some good interest rates”, and I said, “Well, sure”, and he gave me the business card of “George Balos, British Marine Bank”, and when he gave that to me I said, “Oh, I remember George.  Is that what he’s up to these days?”  He said, “Oh, yes”, and I said, “How do you know George?”, and he told me how he knew George and I said, “Well, look, if it’s what you say it is, then fine”.  Then I think a few days later, it might have been that same week, a person by the name of Hugh Morrow arrived on the Gold Coast and he wanted to talk to me but I said I didn’t have time that day but I could certainly meet with him that evening to find out more about George Balos and the British Marine Bank. …  My wife and I went down to the Marriott Hotel where he was staying and we just had, you know, a couple of drinks together in the lounge and I talked to him for several hours about what British Marine Bank was up to and what it was all about as best as he could tell me.  …  Well, I discussed with my wife and I said to her – when we were driving home I said, “Well, you know, it sounds very good”, because I was aware of many years ago of George Balos and his father still had the bookbinding business.  I thought, well, it sounds like George has done well for himself over the years and you know, I should explore it further, so the next day when I went into the office I did call a meeting with Graham Bowson, Keith Stringer, Paul Hewitson, Kay Farmer and myself.  …  The meeting went for approximately two hours.  After that meeting we all decided that we should pursue it further and we left it to Paul Hewitson to make arrangements with George Balos for a meeting in Sydney, which I did take up on 21 October ’96.

So 21 October 1996 did you go to Sydney?-  Yes, I did.

Who did you meet there?-  Without looking up my diary I just can’t remember the time but it was around about 1 o’clock, 1.30, something like that.  I met at the MLC Centre in the boardroom.  There was serviced offices there.  George was running a few minutes late but the girl that answered the phone – and she answered that phone for many people – she answered the phone at least on three occasions while we were waiting and answered as British Marine Bank. …  But at that meeting there was George Balos, Paul Hewitson, Ray Strano, Hugh Morrow and myself.

 …

 So all these gentlemen – where did this take place?-  Well, this was in the boardroom, which was next door to the British Marine Bank office in MLC Centre.

What was the topic of (conversation)?-  Well, first started off by I asked George Balos about the British Marine Bank.

What did you ask him?-  Well, I asked him all the questions.  He said he had it registered.  I understood him to say it was late ’95, which gave the impression that at least had been operating a year.  He said that the only way he could operate it this way was by offering investments as deposited by way of a loan agreement and we talked about that.  He also explained that it was a non – can’t think of the term now – interest – I just can’t think of the term, but that meant that that complied with all the requirements under the ASIC Rules.

Have you heard of prescribed payments?- Yeah, that’s the one, prescribed, non-prescribed and prescribed payments.  Sorry.  That’s the one I was trying to remember.

So just to clarify, what was said to you by George Balos?-  Well, he said it all qualified under the Rules.  I was not familiar with the prescribed interest payments.  That was something that’s not – well, something I hadn’t had much to do with or even understood it myself, but when he explained it to me and I did understand what he was talking about and how it would qualify by way of a loan agreement.

…

How long did this meeting go for?-  It was a long meeting.  It would have been between two and a half to three hours. 

What did you feel about British Marine Bank and Balos at the end of the meeting?-  Well I have to say that I felt George was a very intelligent man, very impressive, immaculate in everything he did.  He was a typical person that you would expect to be of any organisation dealt with anywhere, any CEO or manager or managing director of any professional company.  He was no different to any of those people.

Now, you said before you asked the questions of Mr Balos about British Marine Bank?  What questions did you ask him?-  Well, if you know me well enough I ask a lot of questions about a lot of things and I just asked about the British Marine Bank.  I mean, I only just gave you a summary, but it was more in depth than that. It’s difficult to remember every small detail of a technical nature, but I said to him, you know, “Now, how do you do this trading?”, because I do have knowledge and substantial knowledge, I might add, with currency trading and I certainly have a general knowledge of commodities trading.  For this court, just to people understand, commodities trading is – well, Australia is very big in it because we’re one of the largest producers in the world of things like iron ore, and all the minerals that this country produces plus, you know, things like wheat, barley, oats.  All those sorts of agriculture things are all under commodities prices and they’re traded through the World Trade Centre of commodities in Chicago.  In fact, I’ve got a mate on the Gold Coast that does that.

 …

 Did Balos have anything with him in this meeting?-  No; only the – only his business card.  It was more like a get to you know meeting.  He wanted to get to know me and I guess I wanted to find out as much about him.

Other questions you asked him about the British Marine Bank at this first meeting?-  Well, of course, he – he said that he had substantial funds.  He wouldn’t tell the exact amount but we’re talking very large amounts here, multi, multi millions of dollars.  He said that the trading – because of the substantial returns the deposits were put into Macquarie Bank and Perpetual Trustees and only five per cent of that was traded but I knew that because Hugh Morrow told me that the previous week at the Marriott Hotel. I just wanted him to expand on how that was done and what risk factors were involved.

From this first meeting did you meet with Mr Balos again that day?-  I’m very certain it was that same night that he made arrangements with Paul Hewitson to have dinner and, of course, I was invited to that. …

Did Balos have computers with him on that day as well?-  He showed me the computer.  He showed me he was actually trading in Bali at that time on the Chicago exchange. 

Now, did you discuss the British Marine Bank that evening?-  Oh, sure.  Everyone was aware that, you know – we discussed – not in detailed terms, in general terms and what his plans were to expand.  He said to me that he was well aware of my marketing capabilities and he did finish up that night by saying that if I was interested to refer clients to him that I could market around Australia, but I couldn’t do public meetings or public gatherings because of the way the bank operated under the rules and the way the bank had to do it was simply through a loan agreement.

Did you believe at any time in that day that British Marine Bank was a bank?-  Oh, I’ve always believed it was a bank.

What made you believe that on the 26th – 21st – sorry – October?-  Well, I had no reason to doubt this man and the types of people who were at that meeting.  Everything was just so professionally done.  There was nothing – there was nothing at all that make – to make me believe that anything was untowards other than to believe that was the true.

Now, if I just may go from there a little bit, did George Balos ever show you any documentation in relation to British Marine Bank?-  Yes he did, because on the way home …

…

So that evening finished and you said you made arrangements to meet Mr Balos that week to view certain documentation?-  Yes.  We met again at Renaissance Hotel.  It was later in the afternoon because he generally sleeps until about lunch time, apparently.

…

All right.  Are you able to say which documents or did you view documents?-  I certainly did.

And who showed you those documents?-  George Balos himself.

…  And had you asked him specifically for any documentation prior to this?-  Yes, I did say to him that I said that Ray Strano – I spoke to Ray Strano.  He knew that.  Obviously Ray Strano spoke to him and that’s how the meeting was arranged.  Ray Strano organised that meeting, not me.  He rang me back on the mobile and said, “Well, George, can I meet you at” such and such afternoon, because I gave him a couple of days I could meet him while I was still in Sydney. 

Right?-  And he showed me several documents.

What were those documents?-  Well the first one he showed me was a – on the letterhead – I mean, it’s easily recognisable because I’ve dealt with – well, with ASIC.  He showed me an ASIC first and then it did say that it was – it did make reference to the non-interest payment – sorry.  I forgot the term – and it did, in fact, reference to that the bank was approved under, you know, the licensing requirements.  I can’t remember exact wording of it, but – and he said that he had no problems and because of the prescribed and non-prescribed payments it didn’t – that was the clarification from ASIC saying he didn’t come under their jurisdiction.

And any other documents?-  Yeah.  He had one with Reserve Bank which showed that I’m pretty certain it was October ’95 that the Reserve Bank had been approved to operate in Australia on a basis of loan agreements to accept – the words were to accept deposits by way of loan agreements.  That was the wording in the letter.  I remember reading that specifically.

Any other documents?-  There were two bank accounts.  One was Macquarie Bank which showed a credit of A$60 million and another one was Perpetual Trustee for A$30 million credit.”

[16]  The foregoing extract from the appellant’s evidence contains the background investigation that the appellant made before representing to clients that they could safely invest with British Marine Bank.  The first relevant transaction with a client occurred within about a fortnight of those Sydney meetings.

[17]  Also of significance is correspondence which passed between the appellant and Grosvenor Securities in December 1996.  Lewis, a director of Grosvenor Securities Pty Ltd wrote to the appellant on 10 December 1996 as follows:

It has come to our attention that you have been marketing an investment to prospective clients, namely investment in the “British Marine Bank”, that has not been researched or approved as a product by this office.

This matter has raised several concerns as this investment may in fact not have a prospectus registered with the ASC and by marketing this product you may be in serious breach of the ASC Regulations and the Corporations Law.

Further, a complaint has been made by one of your clients via a fund manager and has expressed concern about the investment in question which was recommended by yourself and the fund manager has also expressed concern that you may not be clearly stating whom you represent and has also expressed concern regarding manner in which the product may have been represented to the client.

These matters are of a very serious nature and although I am sure that your intentions in dealing with clients is both ethical and professional you may be unaware of your responsibilities in this regard.

Nevertheless this matter has raised a number of issues which potentially could have serious ramifications for you as a Proper Authority Holder and for Grosvenor Securities as your Dealer.

We therefore request the following action by yourself.

To immediately cease the marketing of investment in “The British Marine Bank” and the circulation of any documentation to clients or prospective clients.

Provide without delay to Grosvenor the prospectus and/or marketing material relating to this investment.

Provide a list of all persons approached in relation to this investment and a list of any persons who have already invested via yourself.

Provide details of how you are representing yourself to clients with respect to financial matters including a copy of your disclosure of capacity in representing National Mutual and information brochure used in representing “Grosvenor Securities” as a  Proper Authority Holder.

We reiterate that this is potentially a very serious matter and we require your full co-operation and urgent attention to assist Grosvenor Securities to fully investigate the issues raised.

Yours sincerely.

[18]  The appellant’s reply on 19 December was as follows:

I refer to your letter dated 10th December and subsequent telephone conversations.

In the first instance, it was a one off situation to assist a client on a personal basis.  The second instance to which you refer regarding a Fund Manager from Brisbane is totally false.

On my investigation regarding the second matter, it appears that people may have used my name to gain credibility, however, under no circumstances did I give any approval or have any knowledge of their “touting” this product.  I have reiterated to them that I do not approve, nor do I appreciate my name being linked with their activities.  They rent office space from me and we share a common reception area.

I have made my position to you very clear, and I have sought legal advice regarding these people making statements or assumptions on my behalf in relation to this product.  My solicitor has asked for the accusers to identify themselves and specify details of my actions.

This matter has caused me great distress and has significant consequences to my reputation.  I have not and never had any agreement regarding this product.

I trust this satisfies your requests.

[19]  That response was demonstrably false, and that would have seriously impacted upon the appellant’s credibility with the jury.  His signature was to be found on so many of the Loan Agreements that he could not justify saying that marketing an investment associated with British Marine Bank was “a one-off situations to assist a client on a personal basis”.   Any reasonable juror would be entitled to ask, what was the appellant seeking to hide from the organisation which he represented in south-east Queensland.  Further, about half the transactions on which a count on the indictment was based occurred after receipt of that letter.

[20]  The lengthy extract from the evidence of the appellant has been included in these reasons to demonstrate that, in the light of all the evidence, the jury was clearly entitled to conclude that the appellant did not hold an honest belief that the British Marine Bank was registered and operating in Australia in much the same way as any other merchant bank.  A reasonable jury could well conclude insufficient inquiries were made about the existence of the bank, and that the professed belief of the appellant was not reasonably founded.  Once that conclusion was reached it was a fairly easy step to take to conclude that at all material times the appellant had a fraudulent intent in making the representations which he did.

[21]  On the whole of the evidence the prosecution case against the appellant was extremely strong and it cannot be said that the verdict of the jury was against the weight of the evidence.

[22]  On appeal the appellant appeared on his own behalf.  He made a number of points (orally and in his written submissions) in support of the proposition that the verdict of the jury was unsafe and unsatisfactory.

[23]  The learned trial judge in the course of his summing-up did deal with the situation where the telling of lies could be an indication of guilt.  The direction given was in accord with Edwards v The Queen (1993) 178 CLR 193, and on at least two occasions his Honour emphasised the need for caution in this context.  There is nothing in the summing-up on this point which could render the guilty verdict unsafe and unsatisfactory.

[24]  It was then submitted that the learned trial judge should have stopped the trial when it became evident that the prosecution witness Kay Farmer committed known perjury.  On this trial her evidence was that she was told by the appellant to shred any documents which had the name Balos on them.  At the earlier trial of Balos she said that Balos had told her to destroy those documents.  It is clear from her evidence that on the day in question she spoke to both Balos and the appellant.  It is by no means clear that there was an inconsistency in her evidence; she may well have been told by each (given the prevailing circumstances) to shred such documents.  Her attention was not drawn to the alleged discrepancy, and in consequence she had no opportunity of affording an explanation.  Given the rules of admissibility it is understandable that her evidence at each trial may well have been limited to what was said to her by the accused on trial.  There is no substance in this submission.

[25]  Complaint is then made by the appellant that counsel for the prosecution in the course of his address to the jury said that the “Crown’s witnesses were independent of each other”.  That submission was made in the context of a number of witnesses giving evidence that the appellant said much the same to each of them on separate occasions.  It may well be that some of the witnesses in question had attended the same meeting at which investment opportunities were discussed but that did not mean that the prosecutor’s submission in address was entirely incorrect.  Particularly given that the real issue at trial was whether or not the appellant had fraudulent intent, there is nothing in the submission which could render the verdict unsafe and unsatisfactory.

[26]  Next the appellant submitted that the trial should have been stopped because the prosecution witness Kennedy committed perjury.  This witness told the court that on 2 September 1996 the appellant gave her investment advice concerning the British Marine Bank.  On all of the evidence that date was incorrect; the incident must have occurred in late October at the earliest.  It is not unusual for a witness giving evidence some years after an event to err in providing a date for a particular event.  At most this was an issue for the jury to resolve.  The submission of the appellant is without foundation.

[27]  The appellant then made a number of submissions about the state of his health during the trial and suggested that in consequence he did not have a fair trial.  Some adjournments were granted because of his health considerations.  He was represented at trial by counsel and there is nothing in the record, or in the written submissions, which establishes any unfairness to the accused during the trial.  A reading of his evidence suggests that he was more than capable of handling cross-examination.  The appellant’s material also refers to some assaults whilst in custody, but he has not demonstrated that these had any effect on the conduct of his trial.  There is no substance in the submissions on this point.

[28]  Though he conceded there was nothing in the transcript to support his contention, the appellant submitted that the learned trial judge instructed the jury “that it was not the responsibility of the Crown to prove the case against the accused”.  Certainly the learned trial judge did tell the jury that where there were formal admissions of fact “it becomes unnecessary for evidence to be called to establish the facts that have been admitted”.  But on the occasion that was said the learned trial judge prudently pointed out to the jury that the making of admissions of fact did “not extend to an admission of guilt”.  Those directions were of course correct.  It may well be that it was those statements that the appellant had in mind in making the submission.  As there is nothing to support the contention that such a statement was made on a wider basis the submission must be rejected.

[29]  Finally, it was submitted that the verdict should be set aside because counsel for the appellant at trial acted contrary to written instructions.  The appellant was not able to indicate any specific instance where that occurred on an issue which was material before the jury.  As already indicated many admissions were made on behalf of the appellant, and much of the evidence of the investors was clearly supported by documentary evidence.  Most of the admissions related to the matters of fact consistent with documents already before the court.  The admissions only had the consequence that formal evidence was not necessary to confirm what was obvious from the face of the documents.  Also, given the contents of documents (for example, the brochure and loan agreements) there was little basis for challenging the oral evidence of the investors.  Much of the appellant’s complaint with regard to the conduct of trial by his counsel appears to relate to such matters.  However, irrelevant cross-examination of witnesses would only have damaged the appellant’s case.  As already noted, the appellant’s case rested essentially on his own evidence as to his belief at material times with respect to the British Marine Bank.  As the extracts from examination-in-chief quoted above clearly show, counsel gave him every opportunity of placing evidence before the jury in support of his contention that at all times he believed on reasonable grounds that the bank existed and was registered.

[30]  In all the circumstances there is no substance in the contention that the verdict is unsafe and unsatisfactory because counsel acted contrary to the instructions of the appellant, particularly with regard to cross-examining the investors.

[31]  I turn now to the question of sentence.

[32]  Given the monetary amount involved in the fraud with respect to the 22 counts, a sentence of five years imprisonment was well within range.

[33]  The 22 offences to which the appellant pleaded not guilty occurred between 30 October 1996 and 3 June 1997, with most occurring in the latter part of 1996.  The remaining seven charges related to conduct between January and March 1998.  In those cases it was represented to the investors that their investment would be in the form of an “international bank debenture”.  The prosecution case was that there was no such thing, and the plea of guilty must be taken as an admission of that.  In other words the relevant dishonesty involved conduct much later than that involved in the 22 counts, and was of a serious nature. 

[34]  Overall these were instances of a financial adviser preying on susceptible investors, many of whom were retirees, with a view to profit.

[35]  In the circumstances a cumulative sentence was justified with respect to the seven count indictment, and it cannot be said that either looked at in isolation or overall the sentences imposed were manifestly excessive.

[36]  The orders of the court should therefore be:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

[37]  HELMAN J:  I agree with the orders proposed by Williams JA and with his reasons.