MD v Regina

[2006] NSWCCA 142

CITATION:	MD v. Regina [2006] NSWCCA 142
HEARING DATE(S):	21 April 2006
JUDGMENT DATE:	5 May 2006
JUDGMENT OF:	Hodgson JA at 1; James J at 21; Hoeben J at 22
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - Appeals - Leave to appeal against sentence - Whether manifestly excessive - Whether s.21A of the Crimes (Sentencing Procedure) Act 1999 complied with - Whether appropriate discount given for plea of guilty
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s.21A
CASES CITED:	Kanaan v. Regina [2006] NSWCCA 109 R v. Ahmadi [1999] NSWCCA 161 R v. Ambatsidis [2000] NSWCCA 125 R v. Dib [2003] NSWCCA 117 R v. Dimovski NSWCCA 3/8/92 R v. Markarian [2003] NSWCCA 8, 137 A Crim R 497 R v. SY [2003] NSWCCA 291 R v. Tipler [2000] NSWCCA 382 Regina v. Street [2005] NSWCCA 139 Regina v. Walker [2005] NSWCCA 109
PARTIES:	MD - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2006/5 CCAP
COUNSEL:	Mr. W. Terracini SC with Mr. G.A. Newton for the applicant Mr. G. Rowling for the respondent
SOLICITORS:	S. Kavanagh, Solicitor for Public Prosecutions for respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC02/11/0118
LOWER COURT JUDICIAL OFFICER:	Taylor J
LOWER COURT DATE OF DECISION:	02/27/2004
LOWER COURT MEDIUM NEUTRAL CITATION:	Not applicable

2006/5 CCAP
DC 02/11/0118

HODGSON JA
JAMES J
HOEBEN J

Friday 5 May 2006

MD V. REGINA

Judgment

1 HODGSON JA: On 30 July 2003, the applicant pleaded guilty to two charges:

(1) That he between 1 January 2000 and 1 December 2000 at Punchbowl in the State of New South Wales did supply a prohibited drug namely heroin.

(2) That he between 1 January 2000 and 1 December 2000 at Punchbowl in the State of New South Wales did supply a prohibited drug namely cocaine.

2 Both charges were brought under s.25(1) of Drugs Misuse & Trafficking Act, and each carried a maximum penalty of a fine of 2,000 penalty units or 15 years imprisonment or both.

3 The agreed facts indicate that the offence in each case consisted not in a single transaction but in an ongoing course of conduct; but there could of course be no suggestion that there was a commercial quantity of drugs involved in either case (that is, in each case 250 grams), because that would have attracted a charge under s.25(2) of the Drugs Misuse & Trafficking Act, carrying a penalty of a fine of 3,500 penalty units or 20 years imprisonment or both.

4 On 27 February 2004, the sentencing judge sentenced the applicant on each charge to 6 years imprisonment to commence on 27 February 2004, with a non-parole period of 4 years commencing on 27 February 2004 and expiring on 26 February 2008.

5 At the time, the applicant was serving a sentence for manslaughter of 10 years commencing on 26 May 2001, with a non-parole period of 5 years expiring on 25 May 2006. Accordingly, the head sentences on the subject charges were totally concurrent with the head sentence on the manslaughter charge, while the non-parole period on the subject charges was concurrent to the extent of 2 years and 3 months with the non-parole period for the manslaughter charge.

6 The applicant seeks leave to appeal against the severity of the sentences.

CIRCUMSTANCES

7 The charges arose out of the supply of heroin and cocaine from the applicant’s family home, between 1 January 2000 and 1 December 2000. During that year, the applicant was in custody from 20 March 2000 to 23 August 2000, and again from about 23 November 2000. Accordingly, the conduct the subject of the charges did not extend beyond about five and a half months.

8 The agreed facts were set out as follows in the reasons of the sentencing judge:

In March 2000 Strike Force Ranger commenced an investigation into drug dealing from [the street in which the applicant’s family home was situated]. Through the use of electronic surveillance it was established that heroin and cocaine were being supplied from outside [that home]. The sale of heroin and cocaine would commence at 9am and finish about 11pm each day. The street runners who were mostly juvenile males worked in two shifts, morning and afternoon. The heroin was wrapped in aluminium foil with the shiny side of the foil wrapped inwards. The heroin was sold in $25, $50 and $70 deals and was stored by the street runners in a black plastic film canister. The cocaine was sold in $50 and $100 deals and was packaged with the shiny side of the aluminium foil facing outwards. The cocaine was stored by the street runners in a clear plastic film container.

The heroin and cocaine enterprise was conducted from [the home]. The premises are owned and occupied by AD, the father of AD and MD. The drugs were prepared in the front bedroom of the premises. The street dealers, upon arrival at work, would collect the film canisters containing the drugs and drug phone and then remain on the front verandah of [the home] or in the immediate vicinity. At times street dealers would have to replenish by going into [the home] and obtaining further drugs. Customers would ring a mobile phone number used by the syndicate before placing an order and then being told to come into the street. The customer was then met by the street dealer outside [the home] and the transaction conducted. The storage of the bulk heroin and cocaine was stored at a safe house and brought to the street on a needs basis.

On 2 August 2000 police executed a search warrant on [the home]. Inside the front bedroom police located two sets of electronic scales. In the back yard police located a hole in the fence that could only be accessed from [the home]. On the ground under a ceramic tile was a clear plastic bag tied in a knot. This contained two black plastic film canisters and one clear plastic film canister. The canisters contained fourteen foils of heroin, sixteen foils of heroin and nine foils of cocaine (as said) respectively.

On 2 August (as said) 2000 police executed a number of search warrants and arrested six juvenile street runners in connection with the supply of heroin and cocaine from [the street] These persons included OR and MF. All six have been since dealt with in the Children's Court. Despite this, the syndicate continued to supply heroin and cocaine. The syndicate, however, no longer used a mobile phone to take calls from customers. It was done simply by customers stopping outside [the home] and being met by a street dealer.

Telephone intercepts . Between 31 March 2000 and 24 June 2000 telephone intercepts were placed on two drug phones used by the syndicate. The mobile phones were registered in false names. The phone would be turned on at 9am and turned off at 11pm each day. Between 50 and 70 calls a day were received by the syndicate with a total of 4000 phone calls monitored. The street dealers answering the phone would answer the name under the pseudonyms of "Sam", "Michael" or "George". The customers predominantly used codes such as "coke", "pepsi", "occy", "a quarter of c" when requesting cocaine, and "h", "hazza" and "hammer" for heroin.

Between 26 May until 5 October 2000 undercover operatives attended [the street]. On thirty-seven occasions heroin and cocaine were sold to undercover operatives. On each occasion listening devices and video footage captured members of the syndicate supplying undercover operatives. The heroin purchased had a purity of 30 to 40 per cent and the cocaine had the purity between 70 to 80 per cent.

Video surveillance . Between 12 March 2000 and 22 September 2000 police installed a camera capable of video taping the activities within [the street]. Approximately 600 hours of activity were captured. The footage shows that on a daily basis the drug supply from outside [the home] would commence at 9am. Customers would arrive predominantly in cars or some on foot. Street runners would meet them at which time they would remove a film canister from their pockets and remove something from a canister and exchange it with a customer for money.

Witnesses . The first witness known as Amber is a former drug user who attended [the street] on a daily basis. The witness and her boyfriend at the time, Grant Brettle, had bought heroin and cocaine from [the street] from November 1999. Amber and Grant were the biggest customers daily buying heroin and cocaine, up to three or four times a day. The witness's evidence is corroborated by video footage and telephone intercept calls in which orders for cocaine and heroin were discussed with members of the syndicate including the quality of the drugs supplied. She recalls the street dealers having film canisters - black for heroin, clear for cocaine.

The second witness known as John Le was a school friend of each of the three accused since [1988]. He knows their nicknames and visited [the home] regularly. In August 2000 he was recruited by MD to sell heroin and cocaine. The witness received $100 a day working the afternoon shift. The witness observed the preparation of the drugs within the front bedroom at [the home]. The witness has been captured on electronic surveillance supplying heroin and cocaine. He also supplied cocaine to an undercover operative in [the street] and was later arrested and charged with drug offences relating to his involvement.

Between 1 January and 10 March 2000 MD lived at [the home] with his mother and father along with his older brother, AD, and his young brother, OD.

The witness informer Amber bought heroin and cocaine from [the home] during this time by contacting a mobile phone before coming into [the street]. She had been buying heroin from [the street] since November 1999. During this period of time she met MD who introduced himself as M. M lived at [the home] with his brother A. She met M daily and when he received a new batch of heroin or cocaine he would provide a sample for her to test. M told her that he was in charge of the heroin but not in charge of the cocaine. She was told this by M after she had $80 and wanted a $50 deal of cocaine and a $50 deal of heroin. MD told her she could get credit for the heroin but not the cocaine as it was not his. Amber believed the cocaine was being sold on behalf of the person she identified as the “love myself bloke", Bashir Ibrahim.

When MD was placed in custody in March 2000 Amber recalls "R", that is OR, took over the sale of heroin and cocaine. She then bought heroin and cocaine from "R", OR; "G", that is MF; "Big R", MR; and two juveniles "Cuckoo", KK, and a male she identified in a lineup as SD. Amber recalls after MD was released an Asian male began selling heroin and cocaine in [the street]. She asked for credit for the heroin and the Asian male would ask M or if it was for the cocaine the Asian male would ask the "love myself bloke" if he was there.

The Asian male is the witness informer, John Le. The witness informer Le had been a regular visitor to the D house. Le states that although MD was in charge of the sale of heroin, MD sold the cocaine on behalf of his brother … and Bashir Ibrahim. Le stated that heroin and cocaine customers would ring a mobile phone before being told to come into [the street]. On Monday 10 January 2000 MD taunted patrolling police by yelling "Still making money in the street". The following day patrolling police observed MD with a large amount of hundred dollar bills. He waved the money and yelled "It’s hot".

On 10 March 2000 MD was arrested and placed into custody. He was released on 23 August 2000 and returned to live at [the home]. Shortly after his release he approached the informer witness Le and requested that he sell heroin and cocaine for him. Le accepted and commenced work on the afternoon shift. Each afternoon MD handed him three film canisters containing various amounts of heroin and cocaine. The heroin was in black plastic canisters and the cocaine in a clear plastic film canister. Le would do up to thirty transactions a shift. He witnessed during this time MD and Mohamad Masri making up deals of heroin and cocaine in the front room of [the home]. On a normal shift Le would sell approximately $1200 of heroin and $1500 worth of cocaine. Le's biggest customers were Amber and Grant. At the completion of the shift Le would hand all the unsold drugs and the money to MD. MD would then pay him $140. Le states that MD sourced the drugs from Gerda Kalaji and the drugs not used were taken from the street by Mohamad Masri and stored at a safe house. They were brought back into the street by Mohamad Masri when required.

On 29 September 2000 undercover operative Billy attended outside [the home].

On 29 September undercover operative Billy attended [the home]. MD approached the vehicle. The undercover operative asked for "Two 50s of charlie" - that is, two 50 deals of cocaine. MD questioned the undercover operative as to who he was and who had brought him into the street. The undercover operative then stated that it was friends. MD then called out to the street dealer informer witness John Le and asked if he knew him. Le confirmed this at which time MD said "I’ll send the bloke around here, I don' t do nothing bro, it's up to him". Whilst Le was carrying groceries in for Mrs.D, AD approached the undercover operative Billy and asked him "What are you after bro?". Billy replied "Two 50s, sorry charlie". AD then asked who had sent him. AD then yelled out to Le "Have you seen him before?". "I saw him yesterday anyway". MD had by then moved away from the vehicle but returned and yelled at the undercover operative "No nothing, go, we give him nothing". The conversation is reported by way of a listening device and is partly captured on video.

On 26 November 2000 police executed a search warrant on [the home]. Le was arrested by po li ce i n the front yard of [the home]. In the front bedroom police located a set of electronic scales. In a drain at the front of the house police located a Remington zip bag. There is a dispute about who owns that bag. Inside the bag was located one plastic bag containing heroin 8.5 grams; two bags of cocaine 10.5 grams; and fifty-six deals of heroin wrapped in foil.

9 The sentencing judge gave the following additional reasons for the sentences:

The circumstances of the plea are that the offender pleaded not guilty and a voir dire was conducted concerning the admissibility of audio tape evidence and video tapes of a search conducted at premises in Telopea Street, Punchbowl - some 4000 hours of audio tapes and 600 hours of video tapes. A trial was estimated to last about six weeks. The Crown concedes that the plea was made at the earliest opportunity to an appropriate charge. There was a considerable utilitarian value in the plea.

…

The Department of Juvenile Justice prepared a report and it was compiled from an interview with the offender and notes that, whilst admitted to Goulburn Correctional Centre, the offender has spent some two and a half years in the segregation unit. He reported that he is involved in counselling programs run at the Centre and indicated that he was prepared to participate in programs when released into the community. He stated that he would like to complete his basic age to the School Certificate level on his release. He receives weekly visits from family whilst his extended family visits him on a monthly basis. He also receives spiritual guidance and support from an Imam who visits the gaol once a month from the Auburn Mosque.

I have found special circumstances in this case being the offender's age and, as fragile as they are at this stage, prospects of rehabilitation. A psychologist's report from Mr Terry Smith was prepared. He sets out the background and in his opinions and conclusions states that after the offender was released from custody in August 2000, a well-known drug boss made requests of him to act in a managerial role in the running of drugs from his home in [the street]. He was paid a wage proportional to the number of hours he worked. The influence of the organiser was enhanced because of his reputation not only within the Bankstown area but elsewhere.

In coming to sentence I have borne in mind the age of the offender at that time. He was born in December 1983 so he was a little under seventeen when some of these offences were committed and was no doubt vulnerable to pressure from the person who was dealing in drugs.

Mr Smith notes that the offender has developed a range of symptoms bordering on anxiety and depression during his incarceration. He said his prognosis is somewhat difficult to judge because he has been in prison since he was a young adult. Smith said it is understandable that the influence to participate in the group's activities to a 17 year old must have been daunting. He made a choice based on identifying with his siblings and friends rather than being able to choose with insight. Mr Smith continues he has been incarcerated for two years in segregation and did not express resentment or hostility about his lot. He argues to possess all of the criteria to live a positive and adaptive lifestyle. Mr Smith continues he has the support of his family and promise of employment.

His counsel in submissions noted that he was in custody from 10 March 2000 to August 2000, that he was re-arrested on 26 November 2000 and he has been in custody since then. His counsel also submitted that the offender's role was not as significant as it appears on the face of it because when he entered custody the operation continued in his absence. He submitted that he was a prisoner involved in dealing at the street level.

In my view the context which I have outlined in this very considerable operation identifies the offender as, as young as he was, not simply being caught up at the street level in the extensive trafficking that was taking place. It is very important in coming to sentence to bear in mind the charges that have been brought against the offender and not to sentence him for matters for which he has not been charged, otherwise we would be in conflict with the [De] Simoni principle.

Mr O'Brien submitted that in the facts as tendered by the Crown over protest there was material as to how much cocaine and how much heroin was sold by Mr Le and others every day of the week. That was in dispute. In coming to sentence I have not taken into account that statement. Mr O'Brien also referred to the [De] Simoni principle in his submission that:
"My submission is that any such evidence which is capable of establishing a commercial quantity or beyond is totally inadmissible and must be rejected by your Honour on the basis that it would offend the principle of the High Court in [De] Simoni. It is my submission that the prisoner cannot be invited to plead to one level of offence and then have the Crown invite sentence for an aggravated level of that offence."


There is no contest about that submission and it is accepted.

I will now deal with the offender's pre-sentence custody. On 26 November he was charged and arrested for three offences. He was bail refused for those matters on 26 November and remains so. The trial for those matters is listed in the Sydney Supreme Court on 5 July 2004.

On 26 December 2000 the offender was charged with common assault, affray, armed with intent to commit an indictable offence and maliciously destroy property in excess of $2000 and under $5000. He was sentenced on 6 June 2001 at Gosford Local Court to six months fixed term. That was backdated commencing 22 December 2000 and concluding 21 June 2001.

On 5 February 2001 he was charged with murder. He pleaded guilty to manslaughter and was sentenced on 12 February 2003 to ten years imprisonment with a five year non-parole period. The head sentence commenced on 26 May 2001 and concludes on 25 May [2011]. The non-parole period granted was five years and as such the earliest date for parole is 25 May 2006.

…

The offender was arrested for the drug offence of supply cocaine and heroin on 19 May 2001. At the time he was charged with the offences and was bail refused and of course he was in custody on other matters. Sentence was imposed from 6 June 2001 and 12 February 2003 and was backdated to take any pre-sentence custody in relation to those offences into account. As a result, the prisoner has not spent any time in custody on these charges prior to the sentencing date and no pre-sentence custody is available to take into account.

The offender was the organiser of the supply organisation for a period of about five and a half months. As it was said in submissions, the offender was "punching over his weight". At the age of seventeen he was running a well-organised street supply organisation. I have given careful consideration to comparison with his criminality with MR and because of the offender's intimate involvement in the organisation, albeit for a short period of time, I am of the opinion that the prisoner's criminality was more extensive.

The offender's age at the time of the offence is such that I find special circumstances and [Pearce's] case requires me to fix an appropriate sentence for the two charges and then consider questions of concurrence and accumulation. As the offence occurred over the same period, the only distinction being the difference in drugs, I will make the sentences concurrent.

I have had regard to the totality of the criminality involved and the prisoner's age of seventeen at the time of the offences and it leads me to conclude that the sentence should be partially concurrent with the sentence that he is presently serving.

…

Apart from the period when the offender was admitted to bail and unfortunately returned to his offending behaviour and was re-arrested in November 2000, he has been in custody now for a long period of time. To make the sentence appropriate in the circumstances I could well deliver a wholly cumulative - could well deliver a crushing blow to someone who has just passed his twentieth birthday.

GROUNDS OF APPEAL

10 The applicant seeks leave to appeal on the following grounds:

(1) That the sentence was manifestly excessive.

(2) That the sentencing judge erred in failing to take into account s.21A of the Crimes (Sentencing Procedure) Act.

(3) That the sentencing judge erred in failing to specify the reduction given by virtue of plea of guilty and the utilitarian value of the plea.

SUBMISSIONS

11 Mr. Terracini SC for the applicant submitted that, given the age and other subjective features of the applicant, particularly his custodial history, the sentences were manifestly excessive: see R v. Dimovski NSWCCA 3/8/92; R v. Ahmadi [1999] NSWCCA 161; R v. Tipler [2000] NSWCCA 382. Mr. Terracini placed particular emphasis on the harshness of the applicant’s custody in the High Risk Management Unit (HRMU) at Goulburn Correctional Centre between 18 December 2001 and the date of sentencing, that is 27 February 2004, and thereafter up to about July 2005. Mr. Terracini pointed out that, although the primary judge did advert to the circumstance that the applicant had been held in this unit prior to his sentencing, he did not advert to the circumstance that he was still being held there and would be so held for an indefinite period into the future. In fact, he was held there for a further period of about 17 months. Mr. Terracini referred to Kanaan v. Regina [2006] NSWCCA 109 at [265].

12 Mr. Terracini submitted that the sentences actually imposed were appropriate for a charge of commercial supply rather than indictable supply: R v. Markarian [2003] NSWCCA 8, 137 A Crim R 497; R v. Ambatsidis [2000] NSWCCA 125. Particularly was this so having regard to the age of the applicant, his susceptibility to the influence of others, and the circumstance that he was paid a wage rather than being a beneficiary of the profits of the operation.

13 On the second ground, Mr. Terracini submitted that the sentencing judge erred in failing to explicitly take into account matters set out in s.21A of the Crimes (Sentencing Procedure) Act: see Regina v. Walker [2005] NSWCCA 109; Regina v. Street [2005] NSWCCA 139 at [32]-[34]. In particular, Mr. Terracini submitted that the sentencing judge gave no adequate consideration of the fact that the applicant had no record for similar offences (s.21A(3)(e)); gave no adequate consideration of whether the applicant was likely to re-offend (s.21A(3)(g)); gave no adequate consideration of whether the applicant was not fully aware of the consequences of his actions because of his age (s.21A(3)(j)); and did not adequately consider the applicant’s guilty plea (s.21A(3)(k)).

14 Mr. Terracini submitted that, whilst the sentencing judge referred to the fact that the plea was made at the first available opportunity and that there was considerable utilitarian value in the plea, he erred in failing to indicate the extent of the reduction given. In this case, the plea was entered at the first available opportunity after the Crown brought the appropriate charge: R v. Dib [2003] NSWCCA 117; R v. SY [2003] NSWCCA 291.

15 Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides as follows:

21A Aggravating, mitigating and other factors in sentencing
(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(d) the offender has a record of previous convictions,
(e) the offence was committed in company,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

16 In my opinion, it is desirable to explicitly advert to applicable factors identified in s.21A(2) and (3), and to indicate how they are being taken into account, if this is not obvious: cf. R v. Walker [2005] NSWCCA 109 at [32]. However, in my opinion, the absence of such explicit advertence is not of itself a breach of s.21A. Such absence may, in combination with other factors, indicate that s.21A has not been complied with; but the question of whether s.21A has or has not been complied with must be considered in the light of both what is said and what is not said in the reasons.

17 In the present case, it is not shown that s.21A(3) has not been complied with. As regards par.(e), the applicant’s record was adverted to, and in my opinion there was no need to comment explicitly on the nature of the offences in that record. As regards par.(g), the sentencing judge referred to the prospects and prognosis of the applicant. As regards par.(j), the sentencing judge adverted to the applicant’s choice to offend as being based on identifying with his siblings and friends. As regards par.(k), the plea of guilty was plainly taken into account.

18 The sentencing judge adverted to the plea of guilty at the earliest opportunity to an appropriate charge, and stated there was a considerable utilitarian value in the plea. In my opinion, this reference, and the level of the sentences, indicates that the sentencing judge did give an appropriate discount. The failure to quantify this discount in the reasons is not in my opinion an error warranting appellate intervention.

19 In my opinion, the question of excessiveness of the sentences should be considered, at least when what is in issue is whether there should be appellate intervention, having particular regard to the practical impact of the sentences on the applicant. When one takes into account the sentence which the applicant was already serving for manslaughter, it can be seen that the only practical impact of the sentences on the applicant is a delay of the time at which the applicant would become eligible for parole from 25 May 2006 to 26 February 2008, a period of about 1 year and 9 months. Even when one takes into account the early plea of guilty, the age of applicant, the circumstance that he was not shown to be participating in the profits of the enterprise and the circumstance that he was under the influence of siblings and friends and others, it cannot be said that this is manifestly excessive, having regard to the nature and extent of the criminal enterprise and the applicant’s organisational role in it. Further, I do not think the harshness of the applicant’s custody in the HRMU at Goulburn Correctional Centre is a powerful consideration in his favour: the only period for which the sentences under appeal have effect, namely 25 May 2006 to 26 February 2008, is a period beginning almost a year after that harsh custody had ceased.

20 For those reasons, in my opinion the following orders should be made:

1. Leave to appeal granted.

2. Appeal dismissed.

21 JAMES J: I agree with Hodgson JA

22 HOEBEN J: I agree with Hodgson JA.

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