R v Knox[2017] QCA 74

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of Atkinson J and agree with those reasons and the orders her Honour proposes
2. PHILIPPIDES JA:  I agree with the orders proposed by Atkinson J for the reasons given.
3. ATKINSON J:  The applicant pleaded guilty on a multiple-count District Court indictment where he was charged with a co-offender, Blake Andrew Lowe.  He applied for leave to appeal against the sentence imposed on him.  On count 1, robbery in company with personal violence, Lowe was sentenced to three and a half years’ imprisonment and the applicant to two and a half years’ imprisonment.  On count 2, a count of armed robbery in company, each was sentenced to five years’ imprisonment.  On count 3, Lowe was sentenced to six months’ imprisonment.  On count 4, the applicant was sentenced to six months’ imprisonment.  On count 5, Lowe was sentenced to two years’ imprisonment.  In relation to count 6, robbery in company, each was sentenced to three years’ imprisonment.  Each of the sentences was to be served concurrently, so Lowe and the applicant were both sentenced effectively to five years’ imprisonment.  A declaration was made that each had spent 370 days in pre-sentence custody between 13 November 2015 and 16 November 2016 and each was set a parole eligibility date at one-third which was calculated to be on 13 September 2017.
4. The factual basis for the sentences imposed was set out in a Schedule of Facts tendered before the learned sentencing judge.

Count 1

5. The facts of count one, robbery in company with personal violence, were that on 2 November 2015 in the early afternoon, the complainant, a male passenger, caught a train from Rosewood Station to Ipswich.  The applicant and Mr Lowe were loud on the train.  A young woman got on to the train and the applicant said, “Hey baby come back here sit on my lap”.  She ignored them.  The complainant told the applicant to show some respect and the applicant replied, “Shut the fuck up little faggot” and “Just you wait when we pull out of the station”.  The complainant put his ear phones in and avoided eye contact.
6. During the journey, Lowe sat opposite the complainant and punched him twice in the face.  Lowe said to the complainant, “This will teach you not to speak shit”.  Lowe punched the complainant a third time in face.  The complainant got up and tried to swing punches to protect himself.  Lowe punched the complainant another two times in the head.  The complainant fell to the ground.
7. While the complainant was on the ground, Lowe grabbed the complainant’s wallet which contained $90, a driver’s licence, an old school identification, multiple receipts and a Bendigo Bank card.  While this was occurring, the applicant was standing back and watching.  He did not say anything to the complainant and did not hit him.  Lowe also saw the complainant’s phone under the seat and grabbed it and threw it at the complainant hitting him on the jaw.  They disembarked from the train and left.
8. The complainant sustained a small cut on the chin, three lacerations inside the right cheek and upper lip and mild bruising to the top of the right eye lid with mild swelling.

Count 2

9. The facts of count 2, armed robbery in company, were as follows.  At around 2.40 pm on 8 November 2015, the applicant and Mr Lowe were loitering outside a Subway store at Eagleby.  They entered the store about five minutes later, lingered in the store and then walked out.  The first offender re-entered the store and came behind the counter.  The second offender followed and stayed in the service area of the store.  The first offender took out a 15cm knife from his pocket and while a metre away from the complainant held it out.  He yelled for her to open the till.  The second offender stood beside the till and yelled, “Don’t call the cops”.
10. One of the offenders opened the till and the first offender then grabbed money from the till and placed it in the pocket of his jumper.  The first offender shut the till and both offenders ran out of the store.  Both offenders were yelling, “You can call the cops now but they’ll never catch us”.  They stole approximately $200.  Although the applicant’s counsel submitted that Lowe was the first offender and the applicant was the second offender, no finding was made by the sentencing judge as to the identity of each offender.

Counts 3, 4 and 5

11. Count 3 was stealing.  It was committed by Lowe only.  Count 4 was receiving tainted property committed only by the applicant and count 5 was unlawfully using a motor vehicle committed only by Lowe.
12. The circumstances of those offences were as follows.  On 8 November 2015 at around 9.30 pm, the female complainant met Lowe and the applicant.  They requested a lift and she drove the applicant to a street in Nundah.  She drove to her house in Clayfield with Lowe.  She fell asleep at around midnight with Lowe still in her dwelling.
13. When she woke up the following items were missing: a Samsung Galaxy 3 mobile phone, a MacBook pro computer, an Ipod Nano and a handbag containing her car keys and purse.  The complainant noticed her white Suzuki Swift motor vehicle was also missing.  Lowe’s finger prints were detected in the house and when police intercepted the applicant and Lowe, some items stolen from the complainant were recovered.  Her motor vehicle was recovered.
14. Although the applicant did not participate in an interview with police, he admitted that a key found in the possession of the defendants when their motor vehicle was searched on 12 November 2015 belonged to the stolen Suzuki Swift and he told the police where the car could be located.  He also indicated that he was on the run because his parole was cancelled and considering that he was going back to jail, he might as well make it worth his while and commit further offences.

Count 6

15. Count 6, robbery in company, occurred on 10 November 2015.  At around 11.00 pm on 10 November 2015, the male complainant was walking in Kingaroy.  He observed a white motor vehicle.  The passenger of the car asked him something but the complainant could not understand what the passenger was saying.  The complainant said to the passenger, “Sorry, I don’t understand” and kept walking.  The car drove in a manner to cut the complainant off.
16. The passenger said, “Why are you being cocky?”  The complainant told the passenger that he was not.  At this point, the passenger got out of the car while the driver of the car went forward and parked on the right side of the footpath with the engine on.  The passenger punched the complainant to the left side of his face causing cuts to his leg and the inside of his cheek.
17. The complainant raised his arms, walked backwards and said he did not want to fight.  The passenger asked for money and demanded the complainant’s phone.  The passenger hit the complainant twice in the face with a closed fist causing the complainant to fall.  The passenger stole his phone and backpack and got into the motor vehicle.  Again the applicant’s counsel submitted that the applicant, as the driver, was the less serious offender.  There was no objection to that submission by the prosecution.  No finding was made by the sentencing judge as to the relative roles of Lowe and the applicant.

The sentencing remarks

18. The learned sentencing judge in his sentence remarks referred to the fact that both had pleaded guilty to a number of serious offences and that some of them had involved significant violence.  He referred to the fact that they were both undoubtedly using the illicit drug ice, were both 21 and over a 10 day period engaged in behaviour that could only be described “as the behaviour of outlaws” through various places in southern Queensland from Ipswich to Kingaroy.  As against their youth, his Honour remarked that each of them had an extensive history, predominantly a juvenile history, in which they had been convicted of offences of a similar nature particularly the offence of robbery.
19. His Honour referred to the fact that Lowe’s offending was aggravated by the fact that he was subject to a number of New South Wales court orders which he had breached.  With reference to the applicant, the judge said that he had been sentenced to control orders, which are effectively terms of imprisonment, on eight occasions whereas Lowe had been sentenced to five terms of imprisonment.  He referred to the fact that both of them were from very deprived backgrounds but that as adults the law expected them to take responsibility for their own actions.  His Honour referred to the acts of violence committed on entirely innocent people which needed to be strongly discouraged.

The grounds of appeal

20. The only ground of appeal on the application for leave to appeal against sentence was that the sentence was manifestly excessive.  Leave was granted to add the additional ground:
    1. The learned sentencing judge erred in that he proceeded on an incorrect understanding of the applicant’s criminal history, in particular the number of occasions the applicant had previously been sentenced to imprisonment.

The applicant’s submissions

21. The applicant submitted that the sentence was manifestly excessive because of the imposition of the same head sentence on the applicant and his co-offender Blake Lowe whereas parity should have required different sentences to be imposed.  Additionally the applicant submitted that the learned sentencing judge’s assessment of his New South Wales juvenile criminal history was informed by error which made his criminal history appear to be more serious than it was.  His adult criminal history was also less serious than Lowe’s and Lowe was in breach of parole and probation.  The applicant played a lesser role in at least one of the robbery offences.  It was therefore submitted that the applicant should have been sentenced to a lesser head sentence than Lowe.
22. It was conceded by the applicant that having regard to R v Moss^[1] and to the aggravating features of Lowe’s offending, five years was within a sound exercise of the sentencing discretion for Lowe.  One of the aggravating features relied upon by the learned sentencing judge was the applicant’s criminal history which was infected by two errors which were not corrected at sentence.  Firstly, his Honour said that each offender had been convicted of offences of a similar nature, particularly the offence of robbery.  The applicant had a prior offence of stealing from the person.  Lowe had previously been convicted of two offences of robbery in company, but the applicant had no prior conviction for the offence of robbery.
23. The second error was that the applicant had not been sentenced to control orders, or imprisonment, on eight occasions.  There was an error in the submissions made by the prosecutor which was not corrected by defence counsel.  The true facts were that the applicant had been twice sentenced as an adult to non-custodial terms of imprisonment for disqualified driving offences.  On three occasions as a child, on 2 June 2008, 16 August 2010 and 21 November 2011, the applicant was sentenced to orders which may have included detention in an juvenile facility because of the effect of s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW) (CCP Act).  There was therefore a serious overstatement of the number of occasions when the applicant had been imprisoned and that overstatement was relied upon by the sentencing judge.
24. Lowe on the other hand had been convicted of serious offences as a child.  When he was 17 he was convicted of two counts of robbery in company, demanding property with menaces with intent to steal, armed with an intent to commit an indictable offence, and assault with intent to rob while armed with an offensive weapon.  His offences as an adult were property offences but he had been sentenced to actual imprisonment as an adult.  He was on parole and probation when he committed the offences having been sentenced to 18 months’ imprisonment on 28 November 2014 with a non-parole period of six months and having been placed on a two year supervision order on 13 December 2013.
25. The applicant submitted that his juvenile history should have attracted little weight particularly if a conviction was not recorded.  It was unclear whether convictions were recorded when the applicant was sentenced on 16 August 2010 and 21 November 2011.
26. The applicant’s counsel referred to the different roles played by each offender.  The learned sentencing judge recognised the lesser role of the applicant in count 1 and this was reflected in a lesser sentence imposed.  With regard to count 2, the most serious count, the applicant’s counsel submitted that he was the unarmed offender based on an observable size disparity between the two offenders depicted in CCTV footage.  Neither the prosecutor nor Lowe’s counsel objected to the submission.  The footage was not played.  The applicant’s counsel submitted that in the absence of objection and based as it was on viewing of the CCTV footage, the submission should have been accepted or alternatively resolved by viewing the footage.  With regard to count 6, the applicant’s counsel submitted that the applicant was the driver.  There was again no objection to that submission from either the prosecutor or Lowe’s counsel.
27. The applicant submitted that accepting that five years’ imprisonment was the appropriate sentence for Lowe on count 2, the appropriate sentence for the applicant was four years’ imprisonment.

The respondent’s submissions

28. The respondent submitted that if the error made by the learned sentencing judge as to the applicant’s criminal history was established to be a factual error of substance on which the sentence had proceeded, then, independent of any considerations of parity with the sentence imposed on Lowe, the sentencing discretion would be vitiated by error and would have miscarried, requiring this court to exercise its own sentencing discretion afresh.^[2]
29. On the prosecution’s submission on appeal, the applicant’s criminal history indicated he had appeared before the courts in New South Wales and been sentenced at first instance on 10 occasions: 2 June 2008; 24 September 2008; 16 August 2010; 26 July 2011; 21 November 2011; 17 June 2013; 5 August 2013; 19 May 2014; 15 June 2015; and 6 October 2015.  On three occasions a control order was imposed, being on 2 June 2008, 16 August 2010, and 21 November 2011.  On 19 May 2014 suspended imprisonment was imposed and on 15 June 2015 an intensive correction order was imposed.
30. While the applicant’s sentence proceeded on the basis that the offending for which he was sentenced was not committed in breach of any court orders, his criminal history suggests that he was subject to intensive correction orders for the period from 6 July 2015 to 5 July 2016.  Additionally the applicant when apprehended informed police that he understood that his parole had been cancelled.  The respondent submitted that notwithstanding the more limited role that the applicant played in count 1, a comparison of the two sentences imposed on counts 2 and 6 did not reveal a badge of unfairness which would suggest that there was impermissible disparity between the sentences.
31. So far as factual errors are concerned, the respondent accepted that the learned sentencing judge appears to have proceeded on a misapprehension as to the applicant’s antecedents in particular as concerns a number of occasions on which the applicant had previously been sentenced to a form of imprisonment.  The applicant had not been sentenced to a control order on eight occasions nor had he been sentenced to imprisonment in any form on eight occasions.  The respondent submitted that the judge’s remarks about his having a history for robbery which was only true of Lowe could be understood as referring only to Lowe.
32. Finally, the respondent conceded that unless this court could be satisfied that no other sentence would have been imposed had the sentence proceeded on the correct basis, then it was accepted that the sentencing discretion would be found to be vitiated by error.  The application for leave to appeal against sentence should then be allowed and the applicant resentenced unless this court concluded in the separate and independent exercise of its discretion that no different sentence should be imposed.

Discussion

33. As conceded by the applicant, the decision in R v Moss^[3] does provide support for the sentence of five years’ imprisonment imposed on Lowe.  In that case a sentence of six years’ imprisonment was reduced to five years on appeal.  The offence of armed robbery was committed in a video store where the complainant who was working alone was threatened with a knife by a single offender.  About $450 was stolen.  The applicant wore no disguise, the robbery was recorded and his fingerprints were located on the front counter in the store.  It appeared that the robbery was unplanned.  The Applicant travelled interstate and was ultimately extradited from Western Australia and remanded in custody.
34. At the sentencing hearing, the Crown submitted that the starting range for an offence of this type should be four years.  The Crown submitted that the aggravating features of the robbery were that a knife was used, the employee was alone, the applicant persisted after customers entered the store and that the applicant was on probation at the time of the offence.
35. For the defence, reference was made to the applicant’s poor background and upbringing as partially explaining the applicant’s criminal history which began when he was a juvenile.  It was also submitted that the applicant had very little recollection of the robbery because he was under the influence of drugs and alcohol at the time of offending.  It seems the offence was not the result of financial need.  The applicant had been undertaking a substance abuse program leading up to the time of sentence.
36. The applicant was aged 19 at the time of sentence and had a considerable prior criminal history, most offences having been committed when he was a juvenile.  His criminal history included convictions for aggravated assault, unlawful use of a motor vehicle, unlawful entry, assault, stealing and doing criminal damage.  The applicant had a difficult relationship with both of his parents.
37. It was noted on appeal that the offence was a serious one and that most comparable cases to which the Court were referred suggested a range for the first offence of this kind of about three to five years imprisonment.  McPherson JA summarised the real basis of the appeal as being ‘that the sentence of six years imposed in this case is, by a substantial margin, beyond that imposed in the case of The Queen v Mather.’^[4]  In that case, a sentence of four years was imposed for a robbery in similar circumstances.
38. Further, it was noted that the sentencing judge appeared to have inappropriately “considered it necessary to initiate an increase in the appropriate sentencing range, and to do so on the assumption that the current range determined in this Court is an inadequate deterrent.”
39. The Court of Appeal reasoned that the facts of the applicant’s offending were more serious than the facts in Mather.  In that case, no weapon was used to perpetrate the offence.  Further, while Mather did make some attempt at disguise, both cases were similar in that the offender engaged in the offence in a fairly precipitate fashion.  In Mather, there was some planning while there was no evidence of the applicant planning the offending.  More importantly, in Mather, the offender had a good work record and had no criminal history involving dishonest or violent offences.  It was noted that Mather’s offending ‘seems to have been well outside the normal range of his behaviour or previous character’.  The sentencing judge in Mather imposed a higher head sentence, accompanied by a generous recommendation for parole designed to reflect the personal factors operating in favour of the applicant.
40. McPherson JA concluded that the sentencing judge’s initiation of a new range of sentences for armed robberies was not justified or appropriate in the circumstances.  Further, on appeal in Mather it was noted that the sentence of four years imprisonment was ‘quite high’ and possibly at the top of the range.  McPherson JA also noted that in cases of this kind, some allowance is always made for the fact that an applicant is a young first offender.
41. McPherson JA concluded, Davies JA and Jones J agreeing, that, although the circumstances of the applicant’s offending were more serious than the circumstances of the offending in Mather, the disparity of two years between the sentences imposed on Mather and Moss was not justified.  The appeal was allowed and the sentence was reduced to five years’ imprisonment.  The orders in respect of parole, a recommendation that he be considered eligible for parole after serving two years, was not disturbed.
42. The sentence of five years imposed upon Lowe is also supported by the sentence of five years imprisonment imposed upon Lanjil Pearson which was unsuccessfully appealed in R v Pearson.^[5]  In that case the applicant, Pearson, was sentenced to five years imprisonment for two armed robberies.  In the first, the applicant entered a liquor store highly intoxicated wearing a black hooded jacket, long black trousers and a bandana that covered his face.  He jumped over the front counter and approached the employee at the store with a large knife demanding he open the cash register.  The applicant took $525 and a bottle of Rum.  A victim impact statement showed that the employee was continuing to experience anxiety problems.
43. The applicant committed a second armed robbery with a co-offender at a petrol station two days later.  On that occasion they entered from the back of the petrol station at about 10.44 pm with the applicant wielding a knife and his co-offender wielding a pole.  The applicant approached the counter and placed his knife near the attendant’s neck demanding money.  Two hundred dollars in cash and 10 to 15 packets of cigarettes had been stolen.
44. In respect of each of the two armed robberies, a sentence of five years’ imprisonment was imposed.  He was also ordered to serve lesser concurrent periods of imprisonment in respect of one offence of entering a dwelling and committing an indictable offence; two offences of entering a premises and committing an indictable offence; one of entering a premises and committing an indictable offence by break; four of stealing; two of attempted fraud to dishonestly gain a benefit or advantage; three of unlawfully possessing suspected stolen property and four of breaching bail conditions.
45. The applicant was 20 years old and unemployed at the time of sentencing.  He had a substantial period of serious juvenile offending including a burglary offence at 13 years of age, armed robbery with actual violence in company at 14 years of age, and armed robbery in company at 15 years of age.  He had served 21 months in detention as a juvenile offender.  He committed the armed robberies on bail and whilst subject to both probation and a suspended sentence.
46. Of relevance to the applicant’s offending is the case of R v Gordon.^[6]  Gordon was 17 years old when he committed an offence of robbery in company with personal violence and two counts of armed robbery.  Those offences were committed between August 2010 and January 2011.  He also pleaded guilty to five summary offences being one of unlawful possession of property suspected of being stolen; two of unlawful possession of cannabis; possession of tainted property; and unlawful possession of weapons, namely a taser and a mace.  He was sentenced to five years’ imprisonment for each count of armed robbery with concurrent periods of imprisonment for the other offences.
47. The circumstances of the armed robbery offences were referred to by Gotterson JA in R v Pearson.^[7]  The first of the two armed robbery offences occurred at a supermarket where the offender, while masked with a scarf, approached two employees.  He carried a taser and mace and demanded the employees fill his bags with money and cigarettes.  The second armed robbery offence occurred in a Kentucky Fried Chicken outlet when the manager was closing for the night.  The applicant entered with his jacket covering his face except for two eye holes and activated a taser and demanded money from the register.  He also threatened the manager with mace.
48. The total property taken from both armed robberies was $5,469.90.  He was on bail in respect of the robbery in company with personal violence at the time he committed the two armed robbery offences.  He had no prior criminal history whether as an adult or a juvenile and had showed promising signs of rehabilitation.
49. Gordon’s application for leave to appeal against sentence was granted and the sentence of five years’ imprisonment with parole eligibility after serving 16 months was set aside and instead he was sentenced to concurrent terms of four years’ imprisonment with parole eligibility after serving 10 months imprisonment.
50. Additionally in this case, particularly if the applicant is to be re-sentenced, it is necessary to consider parity between the two co-offenders.  The leading High Court authority on the parity principle is Lowe v The Queen.^[8]  The basis for the principle is set out in the judgment of Mason J:^[9]

“Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.  It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”

51. The effect of this principle on sentence appeals was set out by Mason J at 613-614:

“… a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.”

52. The parity principle was further explained by the High Court in Postiglione v The Queen^[10] where Dawson and Gaudron JJ held:^[11]

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice.  Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowances should be made for them.  In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances.  If so, the notion of equal justice is not violated.  On some occasions, different sentences may indicate that one or other of them is infected with error.  Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice.  However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’.  If there is, the sentence in issue shall be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence.  Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.” (citations omitted)^[12]

53. There are a number of factors which suggest that the applicant’s offending, while serious, was not quite as serious as that of Lowe.  In none of the offences which they committed together could the applicant’s actions have been said to have been more violent or serious than that of Lowe and indeed, if the unchallenged submission as to their respective roles made to the sentencing judge were to be accepted, the contrary is the case.  In these circumstances the imposition of the same effective sentence on each would be likely to give rise to a justifiable sense of grievance.
54. It is true that both were young and had deprived backgrounds and both had prior contact with the criminal justice system.  But there were a number of differences in their prior criminal history which were not correctly referred to by the learned sentencing judge.  Lowe had previously been convicted of robbery offences and the applicant had not.  The juvenile and adult criminal history of Lowe was more serious than that of the applicant.  When he committed the offences, Lowe was in breach of both parole (18 months imprisonment commencing on 28 November 2014 with parole after nine months for an offence of “police pursuit – not stop – drive recklessly”) and probation (two years supervision imposed on 13 December 2013 for offences of two counts of taking and driving a conveyance without the consent of the owner, one count of being carried in a conveyance without the consent of the owner, and one count of having goods in personal custody suspected of being stolen); whereas the applicant was in breach of an intensive correction order imposed for a second offence of disqualified driving.
55. The applicant had not been sentenced to control orders, being effectively terms of imprisonment, on eight occasions.  Whilst his New South Wales juvenile history is very difficult to understand it appears that the true position is that prior to 16 August 2010, no conviction could have been recorded for any of the applicant’s juvenile offending.  That is because s 14(1)(a) of the CCP Act provides that the court should not record a conviction in relation to a child under the age of 16 years.  On 2 June 2008, the applicant had been ordered to be subject to a good behaviour bond pursuant to s 33(1)(b) of the CCP Act for 12 months with a non-parole period of six months.
56. Convictions were able to be recorded for his offending after 16 August 2010, however it is not clear from the records before this court whether or not convictions were in fact recorded.  It appears that the applicant was sentenced to detention as a juvenile under s 33(1)(g) of the CCP Act.  On 16 August 2010, he was sentenced in relation to an offence of stealing from the person to a control order for seven months able to be released on parole on 15 October 2010.  This control order may however not have been spent in actual custody as it was also said to be suspended under s 33(1B) of the CCP Act with the condition that he be subject to supervised juvenile justice and guidance for as long as deemed necessary.  On 21 November 2011, he was sentenced to control orders of 12 months commencing on 21 September 2011 with a non-parole period of three months from that date for an offence of aggravated break and enter in company and a non-parole period of four months from that date for an offence of steal property in a dwelling house; and for another offence of aggravated break and enter in company to a control order of 16 months from 21 September 2011 with a non-parole period of five months from that date.  It appears likely that the non-parole period of five months was served in juvenile detention.
57. The errors identified in the sentence imposed means that it is appropriate for this court to exercise the sentencing discretion afresh.
58. In all of the circumstances, taking into account the five years’ imprisonment imposed upon Lowe, which was conceded to be an appropriate sentence, and taking into account all the offending committed by the applicant and his youth and criminal history, the appropriate sentence to be imposed on the applicant is four years’ imprisonment.
59. The orders are:
    1. That leave to appeal is granted;
    2. That the appeal is allowed;
    3. That the sentence imposed on count 2 on the indictment is set aside only to the extent that he be sentenced on count 2 to four years imprisonment to be eligible for parole immediately, that is after having served one-third of his sentence, 16 months.