McBeth v R

[2009] NSWCCA 235

New South Wales
Court of Criminal Appeal

CITATION:	McBETH v R [2009] NSWCCA 235
HEARING DATE(S):	2 July 2009
JUDGMENT DATE:	16 September 2009
JUDGMENT OF:	McClellan CJatCL at 1; Hidden J at 2; McCallum J at 3
DECISION:	Leave to appeal against sentence granted, but appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – sentencing – leave to appeal against sentence – supplying prohibited drug – supplying commercial quantity of prohibited drug – finding of special circumstances – whether sentencing Judge erred in finding as to objective seriousness of offence - whether sentencing Judge adequately took into account subjective circumstances of offender – whether sentence manifestly excessive - partial accumulation – sentence imposed severe having regard to statistics – limits to the use of statistics – no error by sentencing Judge
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Listening Devices Act 1984
CATEGORY:	Principal judgment
CASES CITED:	House v The King [1936] HCA 40; 55 CLR 499 Mulato [2006] NSWCCA 282 R v Bloomfield (1998) 44 NSWLR 734 R v O’Donoghue (1988) 34 A Crim R 397 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Taouk (1992) 65 A Crim R 387 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Van Cuong Nguyen v R [2008] NSWCCA 322 Weininger v R [2003] HCA 14; (2003) 196 ALR 451
PARTIES:	John McBETH (Applicant) REGINA (Respondent)
FILE NUMBER(S):	CCA 2008/4043
COUNSEL:	Mr R Bonnici (Applicant) Ms V Lydiard (Respondent)
SOLICITORS:	Colleen Donnelly (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	792/08
LOWER COURT JUDICIAL OFFICER:	Marien DCJ
LOWER COURT DATE OF DECISION:	14 August 2008

- 17 -

2008/4043

McCLELLAN CJ at CL
HIDDEN J
McCALLUM J

16 SEPTEMBER 2009

John McBETH v R

Judgment

1 McCLELLAN CJ at CL: I agree with McCallum J.

2 HIDDEN J: I agree with McCallum J.

3 McCALLUM J: This is an application for leave to appeal against the sentences imposed on John McBeth after he pleaded guilty in the District Court to two offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and one offence of supplying a commercial quantity of a prohibited drug contrary to s 25(2) of the Act. The charges arose out of transactions negotiated between the applicant and an undercover police officer. Throughout the operation, the undercover officer identified himself as Scott, which was an assumed name. He is referred to by that name in this judgment.

4 The first charge related to the supply of 99 ecstasy tablets on 9 July 2007. The weight of the tablets was 23.7g. The maximum term of imprisonment in respect of that offence is 15 years. The sentencing Judge imposed a fixed term of 18 months, to commence on 23 August 2007 (the date on which the applicant was arrested).

5 The second charge related to an agreement by the applicant to supply Scott with two ounces (56g) of cocaine. Although the applicant did not in fact complete that sale, his agreement to supply the drug amounts to supply within the meaning of the Act, having regard to the definition of that term in s 3 of the Act. In respect of that offence, the Judge imposed a fixed term of imprisonment of 3 years, accumulated by 6 months on the term imposed in respect of the first charge.

6 The third charge related to the supply of 1863 tablets of ecstasy. The weight of those tablets was 424.8g, the commercial quantity of the relevant drug being 125g (expressed in the schedule to the Act as 0.125kg). The maximum penalty for that offence is 20 years imprisonment. Pursuant to s 54A of the Crimes (Sentencing Procedure) Act 1999, there is a standard non-parole period of 10 years imprisonment for that offence (item 18 of the table).

7 The applicant had four additional charges taken into account on a Form 1 in relation to the third charge. They were two charges of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act (1.57g cocaine and 11.4g of ecstasy), one charge of having property reasonably suspected of having been unlawfully obtained (relating to an amount of cash) and one charge of possession of a restricted substance (Viagra) without a prescription.

8 There was a factual dispute in respect of the unlawfully obtained property. The applicant admitted that a small amount of the cash found by police at his apartment was unlawfully obtained but, as to $29,000 found hidden underneath the kitchen sink, contended that those were savings from his lawful employment. The Judge found against him on that issue.

9 On the third charge and taking the Form 1 matters into account, the Judge imposed a non-parole period of 6 years, accumulated by 6 months on the term imposed in respect of the second charge, with a balance of term of 4½ years.

10 The total effective sentence imposed was accordingly a non-parole period of 7 years and a total term of 11½ years. The first date upon which the applicant will be eligible for release to parole is 22 August 2014.

11 The applicant was introduced to Scott by a woman he knew named Joanne. Most of their subsequent negotiations took place at two meetings at a bar in Moore Park. Their conversations were lawfully monitored and recorded by police pursuant to warrants granted under the Listening Devices Act 1984.

12 At the first meeting at Moore Park, Scott asked the applicant to supply him with 100 ecstasy tablets and a “sample” of cocaine. The applicant agreed to sell him 100 tablets at $17 per tablet and 2g of cocaine for $500. They left together and Scott drove the applicant to his apartment, where he retrieved the drugs while Scott waited in the car. Scott paid the applicant $2,200 for the drugs supplied on that occasion. The tablets formed the basis of the first charge. The sample of cocaine was one of the charges on the Form 1. The other drug charge on the Form 1 appears to have related to an earlier sample of ecstasy tablets provided to Scott by the applicant.

13 The applicant went on an overseas holiday shortly after that meeting. He returned about a month later and Scott re-established contact with him. They met again at the bar at Moore Park where Scott asked whether he could get 1000 of the tablets he had previously bought. He also sought a price per ounce for cocaine. After some discussion, the applicant agreed to supply the tablets and two ounces of cocaine for $6,700 per ounce. They agreed to meet the following Thursday.

14 On 23 August 2007, Scott sent an SMS message to the applicant to confirm the meeting that afternoon. During an exchange of SMS messages, the applicant indicated that he did not have the cocaine and “prob won’t until Saturday morning”. Scott then requested “a second yahoo site” which, according to the language of their earlier communications, was to be understood as a request for a further 1000 ecstasy tablets.

15 The two men met that afternoon near the applicant’s apartment. Following a brief conversation, the applicant went to Bondi to collect the drugs. He returned about 40 minutes later, when he provided the tablets to Scott, stating that there were 1,800 tablets (in fact there were 1,863). Scott left the car to retrieve an amount of cash stored in the boot. After he returned to the car, police approached them and arrested the applicant.

16 A search of the applicant’s apartment later that afternoon revealed items usually associated with the sale of drugs, together with the $29,000 in cash, which was hidden behind a false wall in a cupboard underneath the kitchen sink. Also found in the kitchen were a set of electronic scales, a resealable Glad bag containing a number of tablets of ecstasy, $1035 in cash in the bedroom, four mobile telephones, a box containing a Vodafone sim card and 16 packets of Viagra. Four more mobile telephones were located in the car space for the applicant’s apartment.

17 The applicant gave evidence at the sentencing proceedings. He stated that he initially became involved in acquiring the drugs because he wanted to assist Joanne (the person who introduced him to Scott). He said that Joanne was dying of cancer and needed to raise funds in order to return to Greece to see her parents before she died. She prevailed upon him to obtain 200 ecstasy tablets from the person he was buying ecstasy from for his own consumption. He obtained the drugs on the basis that he would pay the dealer after Joanne paid him, but she did not pay him and he ended up having to pay the dealer $3,000 from his own funds.

18 The applicant said that, after losing contact with Joanne for some time, he received a call from her “out of the blue”. She told him that she had a friend who would help her pay back the money she owed him. It was apparently contemplated that the money would be repaid by the friend buying large numbers of ecstasy tablets and paying an extra two or three dollars for each tablet so as to discharge Joanne’s debt. The applicant said that he refused Joanne’s request a number of times but ultimately agreed to do as she asked.

19 The sentencing Judge unequivocally rejected the applicant’s explanation. The Judge carefully analysed the applicant’s account against the objective evidence before him, which included transcript of the covertly recorded conversations between Scott and the applicant. His Honour concluded that the applicant was “deeply entrenched in the drug trade and that he was in the business of supplying substantial quantities of drugs to other persons apart from the woman Joanne and the undercover officer”.

20 The Judge was satisfied that the applicant’s role was that of “at least a middle man in the drug supply hierarchy” since he was involved in weighing, packaging and distributing substantial quantities of drugs provided to him by his principal. His Honour assessed the objective seriousness of the third charge as being just above the mid-range of objective seriousness for an offence of that kind.

21 The evidence at the sentence hearing included evidence as to the impact on the applicant of the suicide of a close friend in March 2007. The applicant’s wife gave evidence that the suicide had a devastating effect on the applicant. She formed the view during that time that he required professional assistance with what she regarded as a level of depression. She had become sufficiently concerned about his state of mind that she began researching depression on the Internet. An email she sent to herself from work to home in June 2007 was tendered at the sentencing proceedings to confirm her account of those matters.

22 The applicant also tendered the report of a psychologist, Anthony Diment, who stated that there was evidence of a chronic depressive condition especially in the period 2006 to mid 2007. He said:

“[The applicant] had been under financial pressure before the death of his close friend but after that his depression worsened and in this vulnerable emotional state he was unfortunately unable to resist requests to obtain drugs from a person he had befriended. The description of his “change” by Ms Jenkins [the applicant’s wife] is further evidence of this chronic depression, which was not treated professionally (medical/psychological) and his increased use of drugs was likely a form of escape/self medication from his perceived distress”.

23 The sentencing Judge accepted that the applicant was greatly affected by the sudden death of his friend but stated that he was unable to find that his death and its effect on the applicant in any way reduced the applicant’s moral culpability in his free and voluntary decision to become involved in the drug trade. That finding was plainly open on the evidence.

24 As to the evidence of Mr Diment, the Judge stated:

“I place little weight on Mr Diment’s assessments in his reports because it is substantially based on the self reporting of the offender, who I have found to be a man of little or no credibility. Further Mr Diment was not called to give evidence before me.”

25 The Judge accepted that the applicant had entered his pleas of guilty at the first reasonable opportunity and that he was entitled to a reduction in the sentences that would otherwise have been imposed in the order of 25% to reflect the utilitarian value of the pleas. His Honour indicated, however, that he did not accept that the applicant’s expressions of remorse were genuine, nor that the applicant had favourable prospects of rehabilitation.

26 The Judge found that there were special circumstances warranting a variation in the statutory ratio between the sentence and the non-parole period, and between the total effective sentence and the total effective non-parole period. The circumstances his Honour identified were the fact that it was to be the first custodial sentence served by the offender and the fact that his Honour proposed partially to accumulate the sentences.

27 The non-parole period imposed in respect of the third charge was less than the standard non-parole period of ten years. The Judge stated that his reason for imposing a shorter period was the plea of guilty, the applicant’s prior good character and the finding of special circumstances.

The applicant’s grounds of appeal

28 The applicant relied on two grounds of appeal “generally”:

“A. That the sentencing Judge misdirected himself on various matters in the sentencing process.
B. The overall sentence is manifestly excessive.”

29 In support of those grounds, the applicant identified thirteen specific grounds alleging errors by the sentencing Judge. Many of those, in my view, ignored the limits of the role of this Court. This Court is not entitled to interfere with the exercise of sentencing discretion by a sentencing judge unless satisfied that the judge has erred (and then, only if the Court forms the opinion that some other sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912).

30 Many of the applicant’s grounds concern the sentencing Judge’s findings of fact. It must be recalled, however, that the task of this Court is confined to determining whether there was error in the sentencing of the applicant on the principles stated in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. This Court’s power to substitute its own findings of fact for those of the trial judge arises only if the Judge “mistakes the facts” in the sense there understood. It is necessary to establish that there is no evidence to support the finding, or that the evidence is “all one way”, or that the Judge has misdirected himself: R v O’Donoghue (1988) 34 A Crim R 397 at 401 per Hunt J, Carruthers and Wood JJ agreeing.

31 Most of the applicant’s complaints can be considered under the umbrella of two main propositions:

(a) that the sentencing Judge erred in finding that the objective seriousness of charge three was just above the mid-range (this ground is specifically articulated in ground 3);

(b) that the overall sentence is manifestly excessive as a result of the erroneous disregard of the applicant’s subjective case (this ground is specifically articulated in grounds B and 12).

General ground A: objective seriousness of the commercial quantity offence (grounds 1, 3, 4, 10, and 11)

32 The Judge said (at ROS 20):

“I assess the objective seriousness of the supply of a commercial quantity of ecstasy charge as being just above the mid-range of objective seriousness for an offence of that kind. In making that assessment I take into account the role played by the offender in the distribution network and the very substantial quantity of drug involved which was almost 3 and half (sic) times the commercial quantity.”

33 The applicant submitted that his Honour should have assessed the objective criminality of the offence as being just below mid-range. Counsel for the applicant submitted: “The unbiased inference from the available evidence was that [the applicant] was an inexperienced ‘middleman’, if that.”

34 The test to be applied in considering a sentencing Judge’s assessment of the objective seriousness of an offence is the same as the test to be applied in respect of a challenge to a finding of fact. The question is whether the assessment made was open to his Honour: Mulato [2006] NSWCCA 282 at [27] per Spigelman CJ; at [46] per Simpson J. In my view, it plainly was.

35 A specific complaint in respect of the Judge’s consideration of the objective seriousness of the offence is expressed in ground 1 of the thirteen specific grounds relied upon by the applicant, which is “That the sentencing Judge wrongly interpreted and/or misapplied subjective and explanatory matters to increase the objective level of seriousness of the offences and their commission.”

36 The gist of the complaint under this ground appears to be that, when assessing the seriousness of the applicant’s role, the Judge wrongly relied on “unwarranted findings” as to the applicant’s knowledge of the drug supply business.

37 This submission was supported by reference to the Judge’s remarks on sentence at pages 7, 13, 15 and 18. At page 7, the Judge stated that the covertly recorded conversations between the applicant and Scott clearly disclosed that the offender was “deeply entrenched” in supplying and offering to supply large quantities of ecstasy and cocaine. His Honour stated that the transcripts demonstrated the applicant’s detailed knowledge of the relative quality of ecstasy tablets and the pricing of ecstasy and cocaine when supplied in substantial quantities. His Honour stated:

“[The transcripts] also demonstrate the offender’s close knowledge of the manufacturing process with respect to ecstasy. I should make it clear however that I do not suggest that the offender was in any way involved in the manufacture of ecstasy but that his knowledge of the manufacturing process is indicative of his close knowledge of the drug supply business.”

38 A close consideration of the transcripts of the covertly recorded conversations between the applicant and Scott discloses that there can be no criticism whatsoever of his Honour’s findings. The unguarded comments made by the applicant to the undercover police officer, whom he believed was a customer, betray confidence, experience and familiarity with the sale of drugs. For example, their first meeting included the following conversation:

“Applic … and after that, I’ll tell you what I do, like what I do with everyone else … pay 17.
Scott Yeah.
Applic What do you think about that?
Scott Um.
Applic That’s what I, that’s what the other boys pay 17…
Scott Yeah.
Applic … everyone’s 17”

39 Later during the same meeting, the conversation turned to the fact that some of the tablets were crumbling:

“Scott It’s a binder.
Applic Yeah they don’t round it up properly, yeah. It, the bulking agents, like they haven’t got enough binding.
Scott Yeah.
Applic If you, if you keep them in your pocket and like move around with them, they’re going to be in bits.
Scott Yeah, I know.
Applic And the, I think those one’s I gave you was just, some rubbish I had lying around.
Scott No they’re all right. Yeah I got the jist of it.
Applic Yeah, yeah, they’re the …
Scott Yeah.
Applic … they’re the, like these one’s are all proper one’s …
Scott I see.
Applic … they’re all, they’re good, they’re all good, they’re all good.”

40 In the passages of the remarks on sentence about which the applicant complains, the Judge referred to those and other parts of the conversations, and concluded (at ROS 18-19):

“I am satisfied that the offender’s role was that of at least a middleman in the drug supply hierarchy, weighing, packaging and distributing substantial quantities of drugs which were provided to him by a principal. He was clearly not a mere courier or a street level dealer nor was he at the top of the distribution chain. I am further satisfied that his only motive for committing these offences was sheer financial greed.”

41 I do not think his Honour’s findings as to the applicant’s knowledge of the drug supply business were “unwarranted”. There is no substance in ground 1.

42 Ground 4 is “That the sentencing Judge failed to take into account any aspect of entrapment in the particular circumstances of this matter.”

43 This ground is based on a theory posited by Mr Bonnici on behalf of the applicant that the woman named Joanne knew that Scott was an undercover police officer. Mr Bonnici submitted that, if that was the case, her encouragement to the applicant to trade drugs so as to enable her to repay her debt to him amounted to entrapment.

44 The Crown acknowledged that, if entrapment had in fact occurred, it would have to have been taken into account as a mitigating factor: R v Taouk (1992) 65 A Crim R 387 at 403. The Crown noted, however, that in the present case, there was no finding that the applicant was induced to commit the crime by police conduct and nor did his counsel at the sentence hearing suggest that this was the case.

45 Mr Bonnici relied on the fact that the applicant was introduced to Scott by Joanne. That is confirmed by the transcripts of the covertly recorded conversations. However, there is nothing in the material relied upon to suggest that Joanne knew Scott was an undercover police officer. Since the matter was not even raised for consideration by the sentencing Judge, in my view, no error is established. In any event, the evidence establishes no basis for this Court to revisit that issue.

46 Ground 10 is “That his Honour erred in making adverse findings of fact against the applicant on the balance of probabilities instead of beyond reasonable doubt.”

47 The premise of this ground appears to be that the Judge relied on his view as to the applicant’s credibility as a matter of aggravation. It is well established that the sentencing Court must not take into account matters adverse to an accused unless they are proved beyond reasonable doubt, while matters in favour of an accused need only be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. However, not all matters to be taken into account can be fitted into the category of either mitigation or aggravation and regard must be had to the fact that sentencing is a synthesis of competing factors: Weininger v R [2003] HCA 14; (2003) 196 ALR 451.

48 As already noted, the sentencing Judge unequivocally rejected the evidence given by the applicant on sentence. There is, however, nothing in the remarks on sentence to suggest that his Honour misconceived the fundamental principles applicable to the fact-finding exercise. His Honour’s ultimate finding as to the applicant’s role in the offences was based not on his rejection of the applicant’s evidence, but on the statements made by the applicant during the negotiation of the drug transactions, when he did not know that he was being recorded and did not know that he was speaking to a police officer.

49 In making a finding on the basis of that material, his Honour expressly stated that he was satisfied beyond reasonable doubt (at ROS 17.9). No error is disclosed.

50 Ground 11 is “That his Honour misdirected himself in not making the charge in relation to the intent to supply cocaine totally concurrent with the ecstasy matter”.

51 As already noted, charge 2 related to an agreement to supply 2 ounces of cocaine. When the applicant sent an SMS message to Scott indicating, in effect, that he was unable to provide the cocaine that day, Scott asked him to supply additional ecstasy tablets. The applicant contends that, in those circumstances, the partial accumulation of the sentences imposed in respect of the agreement to supply cocaine and the actual supply of ecstasy tablets exposed him to “double jeopardy”.

52 As noted in the Crown’s submissions, the sentencing Judge specifically dealt with that issue and found that the contents of the text messages clearly disclosed that the offender had a continuing intention to supply the 2 ounces of cocaine when it became available the following week.

53 I accept, as submitted by the Crown, that having made that finding, it was open to the Judge to partially accumulate the individual sentences.

Application of the standard non-parole period (ground 2)

54 Separate consideration must be given to ground 2, which is “That the sentencing Judge placed too much emphasis on and/or misused the standard non-parole period in the particular circumstances of this case.”

55 Counsel for the applicant submitted that the Judge used the standard non-parole period as more than a guide and in fact took it as the starting point of his assessment. He submitted that this was reflected in the remarks on sentence when the Judge made “emphatic reference to the standard non-parole period, even though this was not a conviction after trial.”

56 This ground is without substance. The so-called “emphatic reference” to the standard non-parole period was in the following terms “That offence also attracts a standard non-parole period of 10 years imprisonment” (at ROS 1). The Judge repeated that information when he came to consider the standard non-parole period, as his Honour was required to do. His Honour correctly recorded (at ROS 19) that the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness. His Honour referred to the principles in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. His Honour also referred to the fact that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Crimes (Sentencing Procedure) Act contemplates that a plea will attract a discount. I see no error whatsoever in his Honour’s approach.

57 Further, as observed in the Crown’s submissions, the sentence ultimately imposed included a non-parole period on charge 3 of 6 years, notwithstanding the fact that the Judge in fact assessed the objective criminality of the offence as being above the middle of the range. In my view, there is no substance in ground 2.

General ground B: whether the sentence was manifestly excessive (grounds 5, 6, 7, 9 and 12)

58 Leaving aside grounds 8 and 13, the remaining grounds of appeal relate to the second broad proposition put by the applicant (in grounds B and 12), that the overall sentence is manifestly excessive as a result of the erroneous disregard of the applicant’s subjective case.

59 The appeal against sentence focussed on the sentence imposed on the third charge. The sentences imposed on the first and second charges were plainly within the permissible range and the applicant did not contend otherwise. The effective total sentence of 11½ years with a total non-parole period of 7 years included accumulation of 12 months between the sentences and in my view, the degree of accumulation was appropriate.

60 As to the sentence imposed in respect of the third charge, it is appropriate to consider grounds 5, 6, 7 and 9 together. By those grounds, the applicant contends that the sentencing Judge erred in finding that the applicant had no remorse, erred in finding that the applicant had no prospects of rehabilitation, erred in rejecting the evidence in the report of the forensic psychologist and failed to give full and adequate weight to the subjective factors in favour of the applicant.

61 As to remorse and prospects of rehabilitation, the Judge accepted that the applicant had pleaded guilty to all charges at the first reasonable opportunity and was entitled to a reduction of 25% on that account. His Honour continued (at ROS 23):

“However because I have found that the offender gave an untruthful account in evidence before me as to how he came to commit these offences, I am unable to find that his expressions of remorse are genuine, nor am I able to find that he has favourable prospects of rehabilitation. One would expect an offender who is genuinely contrite and remorseful and on the road to rehabilitation, at the very least to acknowledge the full extent of his or her offending behaviour and take full responsibility for it.”

62 The question to be determined is not whether this Court would have reached the same conclusions, but whether those findings were open to the sentencing Judge on the evidence before him. It is clear that the Judge’s findings rested heavily on the unfavourable view his Honour formed of the applicant’s credibility. His Honour had the advantage, as this Court has not, of hearing and seeing the applicant in the witness box. It cannot be said that it was not open to his Honour to make the findings that he did. The same reasoning applies in respect of the Judge’s rejection of the report of the psychologist.

63 As to whether his Honour gave adequate weight to subjective factors, for my own part, I think that the sentence imposed was severe having regard to the generally favourable subjective case presented on behalf of the applicant. That view is reinforced by the sentence statistics maintained by the Judicial Commission, which disclose that the sentence imposed on the third charge in the present case was more severe than any of the cases recorded in the period from February 2003 to June 2008 (51 cases).

64 However, the limits on the use of such statistics are well settled. The relevant principles are stated in the judgment of Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 at 739. In particular, I accept that the upper limit of the sentencing discretion in any case is the maximum penalty, not the highest penalty revealed in the statistics kept by the Judicial Commission: VanCuongNguyen v R [2008] NSWCCA 322 at [24]. In the absence of specific error, it is not the role of this Court to impose its own view.

Ground 8 – DPP submissions

65 Ground 8 is “That the sentencing Judge misdirected himself by placing too much emphasis and/or allowing questions and/or commentary by the solicitor/advocate for the DPP in this matter, inappropriately adverse to the applicant.”

66 This ground is manifestly untenable. In my view, it amounts to no more that a complaint that the Judge accepted the submissions put on behalf of the Crown and rejected the submissions put on behalf of the applicant. The assessment of the credibility of the applicant was quintessentially a matter for the sentencing Judge, and it would be inappropriate for this Court to intervene in that assessment.

Ground 13 – claim for reversal of the forfeiture of $29,000

67 The final ground of appeal is ground 13, which is “That in relation to the actual amount of moneys in dispute in the goods in custody charge on the Form 1, his Honour erred in deciding against the applicant in that it was contrary to the weight of the evidence before him.”

68 The applicant contends that the forfeiture of the $29,000 was in error and should be reversed. It is doubtful whether this aspect of the applicant’s case is properly to be regarded as an appeal “against the sentence passed on [the applicant’s] conviction” within the meaning of s 5 of the Criminal Appeal Act.

69 In any event, as submitted by the Crown, the issue of the $29,000 was dealt with comprehensively by the sentencing Judge. His Honour’s reasons for rejecting the applicant’s explanation for keeping $29,000 in cash secreted behind a false wall in the cupboard underneath his kitchen sink are cogent and are based on the evidence that was before his Honour. The finding was plainly open. This ground should be dismissed.

70 The order I propose is that leave to appeal against sentence be granted but that the appeal be dismissed.

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