R v Miller[2022] QCA 249

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Callaghan J.

2. [2]
   BOND JA:  I have had the advantage of reading in draft the reasons for judgment of Callaghan J.
3. [3]
   I adopt his Honour’s description of the factual circumstances of the applicant’s offending; of the mitigating features attendant to that offending; of the evidence and the submissions below; of the findings made by the sentencing judge and her approach to the exercise of the sentencing discretion; and of the submissions in this Court.
4. [4]
   His Honour’s reasons paint a persuasive picture of the circumstances which called for leniency in the exercise of any sentencing discretion in the circumstances of this case.
5. [5]
   However, one must keep firmly in mind that the applicant pleaded guilty to the offending.  She accepted that she consciously embarked upon a calculated course of very deliberate dishonesty.  Her conduct involved multiple occasions in which she chose to defraud her employer.  The nexus between her mental illness and her offending did not rise so high as to deprive her of the capacities to understand what she was doing, to control her actions or to know that she ought not do what she did.  Had it done so, she might have had an excuse for her wrongdoing pursuant to s 27 of the Criminal Code (Qld).  Nor did the circumstances of intimidation and threats of harm to her brother, her grandmother and to her own property rise so to such heights as might have excused her wrongdoing on the grounds of compulsion pursuant to s 31 of the Criminal Code.
6. [6]
   The sentencing remarks of the sentencing judge reveal a careful identification and application of all relevant considerations.  The circumstances led to her Honour setting the head sentence at four and a half years, considerably less than five to six years which she concluded would have been appropriate in the absence of the mental health considerations.  Moreover, her Honour took those considerations and other mitigating features into account in heavily reducing the time which she required the applicant to serve in actual custody from one third to one sixth of the head sentence.  For this appeal against sentence to succeed, this Court would be required to infer that there must nevertheless have been some failure to exercise the discretion according to law, some misapplication of principle.
7. [7]
   The reasons of Callaghan J at [43] to [49] reflect a course of reasoning which would have been open to a sentencing judge and could justifiably have led either to an entirely suspended sentence, or to suspension after a lesser period of incarceration than was actually required.  However, to my mind at least, they do not demonstrate that the sentence imposed by the sentencing judge could not be regarded as open to her.  I am not prepared to infer that the sentencing discretion miscarried.  I would refuse the application for leave to appeal the sentence.

8. [8]
   CALLAGHAN J:

Introduction

9. [9]
   The applicant pleaded guilty to a single count of fraud contrary to s 408C(1)(e) of the Criminal Code 1899 (Qld) (‘the Criminal Code’).  Two circumstances of aggravation were engaged – the applicant was an employee,^[1]and the detriment caused was of a value more than $100,000 ($141,578).^[2]
10. [10]
    On 26 August 2022, she was sentenced to four and a half years’ imprisonment, which was ordered to be suspended after eight months for operational period of five years.
11. [11]
    The applicant seeks leave to appeal her sentence on the basis that this sentence is manifestly excessive.

The offending

12. [12]
    The applicant’s offending was summarised in a detailed statement of agreed facts,^[3]  which recorded that:

    1. (a)
       The applicant was employed by Flight Centre, where she worked as an assistant store manager.
    2. (b)
       Over a 16-month period between (29 August 2018 and 30 December 2019) she dishonestly obtained $141,578.40 from her employer.
    3. (c)
       Her offending involved five different types of dishonesty.  The applicant:

       1. (i)
          created electronic refunds, seemingly for customers, but directed them into her own account;

       1. (ii)
          registered pre-paid Flight Centre cards, in her name and the names of family members, and loaded them with money from Flight Centre accounts;

       1. (iii)
          on one occasion, processed a refund directly onto her own credit card;

       1. (iv)
          took cash from customers and kept it herself; and

       1. (v)
          used Flight Centre funds to pay for travel related items for herself or others.
13. [13]
    The applicant’s manager identified some discrepancies in her work and began an internal investigation.  The applicant cooperated with that investigation and with the subsequent investigation by police.^[4]
14. [14]
    She made some offers of repayment but the net loss to Flight Centre (of $136,646) was not repaid.^[5]
15. [15]
    Her plea of guilty was early.^[6]

Personal circumstances

16. [16]
    The applicant was aged between 30 and 32 at the time of offending. Her criminal history was limited.  It did contain one entry for an offence of dishonesty.  That involved presenting a false birth certificate in order to obtain a loan.  The applicant was 21 years old at the time and a measure of the offence’s seriousness can be taken from the fact that it was visited with a good behaviour bond and probation.
17. [17]
    Her employment at Flight Centre was the result of the applicant’s efforts to make a career for herself after enduring a dysfunctional family existence (discussed below) and a brief, abusive marriage.  She moved to Queensland in 2017.
18. [18]
    Following the breakdown of her marriage, the applicant formed another relationship but by the time of her sentence it too had ended.  This left her as the single mother of a 12-month-old daughter with medical issues including a brachial plexus palsy right arm which is going to require ongoing and highly specialised physiotherapeutic care.^[7]  On the applicant's incarceration the child was to live with her father, with whom she had enjoyed only “some” limited contact.^[8]  He was unable to provide the ongoing care that she needed.  He was going to move to Orange where he had family who could assist him.^[9]
19. [19]
    The applicant’s mental health history was complicated.  In addition to the matters considered below, she developed serious mental health issues subsequent to her offending, had been diagnosed with severe post-natal depression and assessed as suicidal.^[10]  Her sentence had once been adjourned to allow for specialist treatment to occur.  The prospect of losing the mother-child attachment was clearly going to be detrimental to the applicant’s mental health and (uncontested) opinion was expressed that it was “highly likely to lead to severe depression”.^[11]
20. [20]
    On the other hand, she was described as “highly motivated” to continue receiving psychological treatment.^[12]

A singular feature

21. [21]
    The circumstances discussed thus far could conceivably have permitted the sentence to have involved a shorter period in actual custody, but might not have carried an argument that the sentence imposed was manifestly excessive.  There was, however, a further and unique aspect to the case.
22. [22]
    By way of background, the applicant was one of two children to her father, who was a drinker, and her mother, who was a gambler.  Their preoccupations meant that she was neglected and often left alone with her brother, who became a malevolent force in her life.  His own father described this man as a “deviant” and a “narcissist”.^[13]  He began sexually abusing the applicant when she was seven years old; this continued over a four-year period.^[14]  The nature of the sex acts escalated over time.^[15]  His reputation for violence made it difficult for her to make friends.  She was bullied (in degrading ways), isolated, and lacking for parental support.  She was shamed into leaving school whilst in Grade 11.^[16]
23. [23]
    Like others of his kind, the applicant’s brother could also be “charming” and was sometimes “pleasant” towards the applicant.^[17]  However, the persecution continued – as an adult, he assaulted her and damaged her property.^[18]  He became a manipulative drug addict who was violent towards both the applicant and her father.  He would “fly into rages and kick and hit her”.^[19]
24. [24]
    He harassed the applicant for money.  At first, these were for small amounts,^[20] but in mid-2018 he started to contact her regularly with escalating demands.  It was said that the money was needed to pay drug debts.  He told her frightening stories about that which would happen to him – or to their grandmother – if his debts were not paid.  People came to the applicant’s house at night to tell her that her brother was going to be hurt if the money was not paid.  She was threatened that her house would be burnt down, with her and her dogs in it.^[21]
25. [25]
    This was all accepted.^[22]  The applicant therefore fell to be sentenced on the basis that she was intimidated by her brother with a view to her stealing money in order for him to repay his drug debts, and that her offending occurred in the context of this dysfunctional relationship.^[23]  Indeed, the offending began on specific instruction from the applicant’s brother – he knew how a fraud could be effected because his “former girlfriend had done something similar before”.^[24]
26. [26]
    The applicant herself gained little at all from the offence.  It was accepted expressly that the offence was “not committed for reasons of greed”.^[25]
27. [27]
    It was committed because the applicant felt trapped.  She considered that going to the police was not, in the circumstances, realistic because she would be seen as a “snitch" which would put her or her brother at risk.^[26]Instead, she committed an offence that would destroy the career she had made for herself in an effort to leave her past behind.
28. [28]
    It might once have seemed incomprehensible, but increased awareness of violence within domestic relationships has led to greater understanding about how difficult it can be for an emotional captive to break ties with their tormentor.  In the applicant’s case, it was not just difficult; it was impossible.  Her persecutor was always going to remain her brother, and there was nothing she could do to change the entrenched pattern of behaviour which had cast a shadow over her entire life.  Objectively, it may seem bizarre, but it can be (and was) accepted that notwithstanding his despicable behaviour towards her, the applicant retained an “overwhelming” desire to help her brother.^[27]

Submissions at first instance

29. [29]
    The Crown submitted that the defendant should be sentenced to five to six years’ imprisonment but allowed that “the actual time would be significantly less than one third”.^[28]  The prosecutor did not “put specific numbers on that”,^[29] but submitted the order should be one by which the applicant was “still to serve time”.^[30]
30. [30]
    In lucid and effective written submissions, the applicant’s counsel^[31] contended for a wholly suspended sentence, with a lengthy operational period.  This submission was maintained in the hearing,^[32] although after a hypothetical question from her Honour it was allowed that if actual custody was imposed then the term “should be as short as possible”.^[33]
31. [31]
    Defence counsel raised for consideration the effect that the applicant’s mental health ought to have on the sentence.  The court was referred to R v Verdins (2007) 16 VR 269 and the proposition that it could be relevant in at least five ways.  Specifically, it could:^[34]

1. “1.Reduce the offender’s moral culpability (but not their legal responsibility) for the offence. This could affect the weight given to just punishment and denunciation as purposes of sentencing the offender.

1. 2.Influence the type of sentence that could be imposed and the conditions in which the sentence could be served.

1. 3.Reduce the weight given to deterrence as a purpose of sentencing. This would depend on the nature and severity of the mental impairment and how this impairment affected the mental capacity of the offender at the time of their offending and at the time of sentencing.

1. 4.Increase the hardship experienced by an offender in prison if they suffered from mental impairment at the time of sentencing.

1. 5.Justify a less severe sentence where there was a serious risk that imprisonment could have a significant adverse effect on the offender’s mental health.”

32. [32]
    The applicant’s submissions went on:^[35]

“These principles are relevant here. Dr Yoxall provides that ‘there is a clear nexus between Ms Miller’s mental illness at the time of the offending and the offending behaviour’. She explains that:

‘The offending occurred in the context of the extremely dysfunctional, abusive, manipulative and complex relationship with her older brother who reportedly has his own significant criminal history and who has had a significant negative influence over Ms Miller from a very young age. Her decision to steal from her employer in order to give money to her drug addicted older brother who had perpetrated sexual abuse on her can be explained in the context of what is known about psychological response to trauma.

The psychological literature does address offending behaviour in the context of family violence, negative social influence and coercion by a significant person. It would appear that this is relevant to Ms Miller's situation. The motivations behind the offending were in my opinion, directly related to the chronically chaotic, dangerous and threatening environment that Ms Miller experienced in regard to her relationship with her brother whom she describes as dominant and intimidating towards her since early childhood when first perpetrated sexual abuse against her. Put simply, Ms Miller engaged in the offending to stop her brother's ongoing demands of her, and to keep herself safe. This is a cycle of behaviour that she has engaged in with her brother, in order to survive, since a very young age. The ongoing complex PTSD impacted her critical decision making, judgment, and ability to disentangle herself from her brother's life.’”

Approach of the learned sentencing judge

33. [33]
    Her Honour made some explicit findings on the materials before her, recording her acceptance of an opinion that:^[36]

“at the time of the offending, Ms Miller had a Dependent Personality Disorder with traits of insecurity, low self-esteem, and a need to please others, and with a fear they might become angry with her. these personality traits arose from her childhood. If her account is accepted, then she was particularly vulnerable to the demands of her brother; he had abused her as a child; he had remained a volatile, threatening man; he had made persistent demands on her and her father, and these had continued despite her move from Orange with her partner; and he used others in his attempts to coerce her. She felt an obligation to assist him, partly because she had credible fears for his safety. During the course of offending, she became depressed and anxious and suffered an Adjustment Disorder with depressed and anxious mood.

34. [34]
    As noted above,^[37] the applicant’s mental health issues became even more complicated after her offending was detected.  Her Honour also expressly accepted evidence that:^[38]

“Following her arrest, and her complicated pregnancy, and in part in response to the separation from her partner, she developed a moderately-severe Major Depressive Episode that was complicated by co-morbid anxious distress, panic and agoraphobia. There has been some response to treatment but she has persisting anxious and depressive symptoms that continue to make her psychologically and emotionally vulnerable.

[…]

I agree with the opinion of the treating psychiatrist, Dr Roberts. Ms Miller would be a vulnerable prisoner. There would be a personal psychological vulnerability from incarceration. It would be aggravated by the separation from her daughter with whom she has an anxious attachment. There is a significant risk that her mood would deteriorate and she would become suicidal.”

35. [35]
    It followed, as explained by her Honour, that there was a specific basis on which the sentence should proceed:^[39]

“After discussion, it was accepted by the Crown that you were suffering from a mental health diagnosis at the time of the offence and that it was not contested that it had a nexus to your offending. Nor do they contest how your counsel encapsulated the submission that this offending occurred in the context of a dysfunctional relationship with your brother and that he intimidated you in order to take money to repay the drug debt, and I so find. I accept the opinion of Dr Beech that at the time of the offence, you were suffering from a dependent personality disorder. I also accept the opinion of Dr Beech that there is a nexus between your mental health at the time of the offending and the offending itself.

[…]

As to your risk of reoffending, Dr Yoxall opines that you are a low risk. Dr Beech does not express opinion as to the level of risk, rather, he opines, as I have already detailed, in paragraph 2 of his most recent report. As your counsel concedes, this court should accept the opinion of the forensic psychiatrist Dr Beech. I also make reference to line 580 of his first report that you remain vulnerable to coercion and also lines 599 through to 600, his opinion is that you require substantial psychotherapy. He accepts that you have willingly engaged in therapy to date.

I accept, also, that you have willingly engaged in therapy to date and there is no reason to consider that this will not continue, given your insight and remorse. I accept that there is a nexus between your mental illness at the time of the offending and the offending behaviour. I also accept that you continue to suffer from mental illness. In relation to the factors set out in R v Verdins, I accept that, firstly, moral culpability is reduced. Secondly, it also has a bearing on the sentence imposed and the conditions in which it would be served. That a sentence should be structured that allows for certainty of release, and I intend to refer the report to Corrective Services.

Thirdly, I accept that general deterrence is moderated as a sentencing consideration, as is specific deterrence. Fourthly, I accept that a sentence of actual imprisonment will weigh more heavily on you than it would on a person in normal health. And, lastly, I am satisfied that would have a significant adverse effect on your mental health.”

36. [36]
    The applicant’s early plea of guilty, cooperation with the administration of justice and cooperation with the investigation, genuine remorse and efforts to enter into a payment plan to repay the money were all acknowledged.  So too was the likely impact of the sentence on the applicant’s daughter,^[40] and the prospect of separation from her daughter was noted to be another reason why a sentence of imprisonment would weigh more heavily on the applicant than it would on a person of normal health.^[41]

The ground of appeal

37. [37]
    It was written in House v The King that:^[42]

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. [...] It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

38. [38]
    The applicant relies, in particular, on the emphasised portion of this extract, and argues that in the circumstances, the actual incarceration amounted to a “substantial wrong”.
39. [39]
    In order to make good that argument, the applicant must engage with the manner in which the applicable principle has been translated specifically for the purposes of an argument as to whether a sentence is manifestly excessive.  This has been expressed in many cases, including R v Jackson^[43] and in R v Clarke^[44] in which it was written:^[45]

“To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.”

40. [40]
    A sentence is not established to be manifestly excessive merely if the sentence is markedly different from sentences in other cases.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle or that the sentence is “unreasonable or plainly unjust”.^[46]
41. [41]
    In contrast to many applications of this nature, the applicant does not seek to establish that the sentence is manifestly excessive by reference to any “marked difference” between the sentence imposed on her and the results achieved in other cases.  This was inevitable, since any attempt to appeal to a need for “consistency of approach” would have depended, in the first instance, upon a need for consistency of circumstances.  The applicant’s case, however, is comparable to others that were said to be “yardsticks” only by reason of the fact that they involved an offence bearing the same title and involving a six-figure fraud.  No other offender described in any of those cases presented with anything like the cluster of circumstances that were involved in the applicant’s case.  By reference solely to the issue of quantum, the applicant could not have demonstrated manifest excess.  Such an exercise would not have involved a comparison of “like with like”, and it would be fatuous to embark upon it.  The applicant did not attempt to do so.
42. [42]
    Rather, the applicant’s argument depends for its success on a conclusion that there “must have been a misapplication of principle”.
43. [43]
    Her Honour did read aloud from and say that she had considered s 9 of the Penalties and Sentences Act 1992 (Qld) (‘the Act’), which reads, relevantly:

“9 Sentencing guidelines

3. (1)
   The only purposes for which sentences may be imposed on an offender are—

1. (a)
   to punish the offender to an extent or in a way that is just in all the circumstances; or

2. (b)
   to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

3. (c)
   to deter the offender or other persons from committing the same or a similar offence; or

4. (d)
   to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

5. (e)
   to protect the Queensland community from the offender; or

6. (f)
   a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).

3. (2)
   In sentencing an offender, a court must have regard to—

1. (a)
   principles that—

1. (i)
   a sentence of imprisonment should only be imposed as a last resort; and

2. (ii)
   a sentence that allows the offender to stay in the community is preferable […]”

44. [44]
    In order to determine whether the principles recited were misapplied, it is necessary to identify the ways in which the purposes of sentencing – exhaustively listed in that section – might have been served by the sentence that was imposed.

An overarching preference (s 9(2)(a) of the Act)

45. [45]
    Before doing so, it is necessary to recall that any sentence imposed had to withstand scrutiny in light of the statutory injunction that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allowed the applicant to stay in the community was preferable.^[47]  The importance of this principle has been underscored by Parliament on each occasion that it excluded its operation from involvement in sentencing for specific kinds of offending.^[48]
46. [46]
    In this context, it is also relevant to note that Parliament has left open the prospect that a sentence of five years’ imprisonment (or less) might, in an appropriate case, not include a requirement for immediate actual incarceration.  It was accepted (as it was in this case, by the Court and the Crown) that the appropriate sentence may have been one of five years’ imprisonment.  The applicable “statutory regime” was one within which a wholly suspended sentence was available.  Such a sentence would have allowed the applicant to “stay in the community” and therefore, within the range of options available, was deemed as a matter of principle to be the one that was “preferable”.  It was mandatory for the Court to have regard to that principle.

An exhaustive list of sentencing purposes

47. [47]
    A sentence involving actual custody could therefore be imposed only if that preference was excluded by demands created on application of another principle or combination of these principles:

    1. (a)
       Rehabilitation and community protection (ss 9(1)(b) and 9(1)(e) of the Act)

       1. (i)
          In the particular circumstances of this case, actual incarceration was not a condition that was going to assist in the applicant’s rehabilitation.  It was not, for example, a case in which imprisonment might act as a “circuit breaker” in a cycle of offending that was motivated by an addiction.  The applicant’s true rehabilitation was always going to be dependent upon a restoration of her mental health.  The uncontradicted evidence established that incarceration would have a damaging effect on that.

       1. (ii)
          A sentence that promotes rehabilitation is also one that serves the purpose of securing community protection.  In truth, the applicant posed little threat to the community – she is unlikely ever to secure employment of a kind that would permit her to reoffend in a similar way.  The recording of a conviction consequent upon a sentence of imprisonment will ensure that.  Time in actual custody was not required in order to serve either of these purposes.
    2. (b)
       Punishment in a way that is just in all the circumstances (s 9(1)(a) of the Act)

       1. (i)
          The sentence was required to punish the applicant, but only to an extent and in a way that was just in all the circumstances.  Any consideration of that which was “just” in this case had to recognise the relevance of the intimidation and the improbability of the applicant having committed any offence in its absence.

       1. (ii)
          The punitive nature of a wholly suspended sentence should also be acknowledged.  Its Damoclean effect is such that the punishment is felt for its duration, and continues thereafter by reason of all the consequences “such a sentence involves on the defendant’s record and [their] future”.^[49]

       1. (iii)
          On the other hand, uncontradicted evidence established that actual incarceration was going to place an additional burden on the vulnerable applicant.  The fact that such punishment would be felt so keenly challenges a conclusion that it would be just in all the circumstances – those circumstances including the background discussed above.
    3. (c)
       Denunciation (s 9(1)(d) of the Act)

       1. (i)
          A “head term” of four and a half years’ imprisonment broadcasts the fact that the community does not approve of an offender’s conduct.  It provides an objective measure of condemnation.  In that way it has a freestanding significance, irrespective of the amount of time actually served.  Indeed, it might be thought that a head term (expressed in years) can be a more effective form of denunciation than any term (expressed in months) of actual custody, particularly when that lower figure will so often depend to a large extent on an offender’s personal circumstances.
    4. (d)
       Deterrence (s 9(1)(c) of the Act)

       1. (i)
          This leaves for consideration the question of deterrence, both general and specific.  It was allowed by the respondent that the need for both specific and general deterrence was met, in part at least, by a head term of four and a half years’ imprisonment.^[50]

       1. (ii)
          Given that separation from her daughter is a dire prospect for the applicant, it should be accepted that the shadow that would be cast over her life throughout a five-year operational period would act as a significant personal deterrent.

       1. (iii)
          In the context of offences of this nature, the prospect of actual incarceration does serve a purpose of general deterrence and the need to serve that purpose remains an important part of the sentencing process.

       1. (iv)
          In this case, the need was qualified by her Honour’s findings about the applicant’s mental health, both at the time of the offending and at the time of sentencing.  These mandated the conclusion that the need for the sentence to act as a general deterrent was “moderated”.  It is reasonable to query how the need for general deterrence could be “moderated” if not by addressing directly the question as to whether actual custody was required.  And that question could only be answered in favour of incarceration if there was an identifiable reason for that option to be preferred.  In my view, given the findings made on so much uncontested evidence, no such reason can be discovered.

Conclusion

48. [48]
    Section 9(1)(f) of the Act provides that the sentence may be imposed for any one of the purposes identified or for a combination of two or more of them.  Regard to these purposes was part of the process of “instinctive synthesis” by which the applicant had to be sentenced.  When each of the purposes is examined against the evidence available, most either point away from or are neutral on the question of whether the applicant was required to serve time in actual custody.
49. [49]
    The one consideration which did point to that requirement was the concept of general deterrence.  However, it was a consideration which was acknowledged to have been addressed by the imposition of the head sentence and had to be “moderated” in the result.  In my view, it cannot have been “moderated” if the result was one which overrode the statutorily expressed “preference” that the applicant should remain in the community.  Especially is this so when it can be demonstrated that this “preferable” form of order is one that does serve all ends of the sentencing process.  A sentence that required the applicant to serve eight months in custody was one in which, given the applicant’s mental health issues, the concept of general deterrence was discounted insufficiently.  It must have had a disproportionate effect on the result.  It can be concluded, in this way, that there must have been a misapplication of principle, with the result that the sentence imposed was manifestly excessive.
50. [50]
    The order of the sentencing judge should be varied such that the sentence of four and a half years’ imprisonment should be suspended forthwith for an operational period of five years.
51. [51]
    This case was unique and, as a guide to the sorts of penalties that should be imposed in others of this nature, is unlikely ever to be of much assistance unless there is an uncontested and remarkable coincidence of circumstances.

Orders

1. Application for leave to appeal against sentence granted.
2. Appeal allowed.
3. Vary the term imposed below such that the term of imprisonment be suspended forthwith, and the defendant must not commit another offence punishable by imprisonment within a period of five years if the defendant is to avoid being dealt with for the suspended term of imprisonment.