Quinn v Police - [2009] SASC 322

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
QUINN v POLICE
[2009] SASC 322
Judgment of The Honourable Chief Justice Doyle
14 October 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - CONSTITUTION OF COURT AND GENERALLY - SOUTH AUSTRALIA
Discussion of whether restriction on sentencing power of Magistrate imposed by s 19(3) Criminal Law (Sentencing) Act 1988 (SA) confines power to impose single sentence of imprisonment in respect of multiple offences conferred by s 18A of the Act.

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
Appellant pleaded guilty to one count of attempting to cause damage to property by fire, one count of being on premises for an unlawful purpose, four counts of breaching a domestic violence restraining order, and one count of possessing an offensive weapon - Magistrate sentenced appellant to single sentence of imprisonment for two years ten months - appeal against sentence imposed by Magistrate.
Held: open to the Magistrate to proceed on the factual basis that he adopted - allowance for pleas of guilty not inadequate - weight given to need for deterrence not excessive - sentence imposed not manifeslty excessive or crushing - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 19(3); Domestic Violence Act 1994 (SA) s 15(1); Summary Offences Act 1953 (SA) s 15(1)(a), s 17(1), referred to.
The Queen v Perre (1986) 41 SASR 105, applied.
Hunt v Police [2001] SASC 145; Police v Curtis (2004) 145 A Crim R 587; Police v Miller (2007) 96 SASR 240; R v Corbett (1999) 206 LSJS 125; R v Gibbs (2004) 89 SASR 30, discussed.
R v Olbrich (1999) 199 CLR 270; R v Nguyen (2009) 103 SASR 370, considered.

QUINN v POLICE
[2009] SASC 322
Magistrates Appeal: Criminal

DOYLE CJ: An Information filed in the Magistrates Court charged Mr Quinn with one count of attempting to damage property by fire, an offence against s 85(1) of the Criminal Law Consolidation Act 1935 (SA). The potential for damage to which the fire gave rise was between $2500 and $30,000, and the maximum penalty for this offence is imprisonment for three years. The Information also charged Mr Quinn with one count of being on property for an unlawful purpose, an offence against s 17(1) of the Summary Offences Act 1953 (SA). The maximum penalty for this offence is imprisonment for six months or a fine of $2500. If the unlawful purpose for which the person is on the premises is itself punishable by a sentence of imprisonment of two years or more, the maximum sentence for an offence against s 17(1) is two years’ imprisonment.
Mr Quinn was also charged on a complaint with four counts of failing to comply with a domestic violence restraining order, an offence against s 15(1) of the Domestic Violence Act 1994 (SA). This offence attracts a maximum penalty of imprisonment for two years. The complaint also charged Mr Quinn with one count of being in possession of an offensive weapon, an offence against s 15(1)(a) of the Summary Offences Act. The maximum penalty for this offence is imprisonment for six months or a fine of $2500. Two other charges on the complaint were withdrawn.
Mr Quinn pleaded guilty to the offences charged.
The Magistrate imposed a single sentence of imprisonment for two years and ten months in respect of the offences other than the offence of carrying an offensive weapon. In relation to this sentence, the Magistrate fixed a non-parole period of one year and eight months. In respect of the offence of carrying an offensive weapon, the Magistrate recorded a conviction but did not impose any further penalty.
Mr Quinn appeals against the sentence of imprisonment that the Magistrate imposed. He complains that in sentencing Mr Quinn, the Magistrate adopted a factual basis which departed from that put by defence counsel, which basis was not disputed by the police prosecutor. The grounds of appeal also complain that the sentence was manifestly excessive. He also argues that the Magistrate failed to have regard to the principle of totality. By an amended notice of appeal, a complaint is made that the Magistrate erred in failing to impose a single penalty in relation to all offences to which Mr Quinn pleaded guilty. The amended notice also asserts that the reduction in the sentence that the Magistrate allowed on account of Mr Quinn pleading guilty was insufficient. I granted the appellant permission to amend his grounds of appeal to include the proposed additional grounds.
Background
Mr Quinn is 55 years old. He was in a long term relationship with Ms Smith, with whom he had two children. The relationship ended in 2007. A Magistrate made an order restraining Mr Quinn from being on premises in which Ms Smith or their two children live, reside or frequent, and from contacting Ms Smith or their two children.
Despite this order, at 4.00pm on 27 November 2008 Mr Quinn went to the home address of Ms Smith. She was home at the time. She saw Mr Quinn peering through a gate on her property. When she asked Mr Quinn what he was doing, he ran into some bushes on her property. Mr Quinn was abusive towards Ms Smith, but left the property and walked down the road. Shortly after, Ms Smith saw Mr Quinn looking through the front window of her house. Ms Smith did not go outside, and Mr Quinn left the property. This incident is the subject of the first charge of breaching a domestic violence restraining order, the first count charged on the complaint.
On 14 December 2008, around 11.00pm, Ms Smith heard someone banging on the front door of her house. She recognised the voice of the person to be that of Mr Quinn. She did not answer the door. Mr Quinn continued to bang at the door. Their son went to the door and asked who was there. Mr Quinn said that he was there. Ms Smith still did not answer the door, and Mr Quinn soon left. This incident is the subject of the second charge of breaching a domestic violence restraining order, the second offence charged on the complaint.
Very shortly after, at 11.30pm that day, Ms Smith’s father was in bed when he heard a noise at the gate of his home. He looked out of his bedroom window, which faced the back yard, and saw that a security light had been activated which shone over the lawn. He could see the shadow of a person near the decking to the rear of the house. Mr Smith went out of the house through the front door, and went around the side of the house, through the gate from which the noise that he had heard had come. The gate was open. When he entered the back yard, he saw a plastic bottle lying next to the edge of the decking. The bottle had liquid in it, and Mr Smith saw a piece of burning material protruding from the top of the bottle. Mr Smith could smell petrol. Mr Smith also saw Mr Quinn trying to climb over a fence into another yard. Mr Smith removed the bottle from the deck, and extinguished the material.
Mr Smith tried to push Mr Quinn over the fence. Instead, Mr Quinn fell back into the garden of Mr Smith’s house. A brief struggle ensued during which Mr Quinn said that he had a knife. Mr Smith yelled to his wife to call the police. Mr Smith retreated inside his house, taking a broom handle to fend off Mr Quinn. Mr Quinn picked up a chair, which he threw at the rear sliding door of the house. Upon being told that the police would be arriving shortly, Mr Quinn left the house. Mr Smith noticed that the decking to the rear of his house had been scorched.
This incident was the subject of the two charges on the Information.
About 5.30pm on 26 December 2008, Ms Smith left her house, which is in Morphett Vale, in her car with her partner and children. She noticed that Mr Quinn was following behind her in a vehicle. Mr Quinn followed her to Port Noarlunga, which is around three kilometres from Morphett Vale. Ms Smith circled a roundabout. Mr Quinn followed her around the roundabout. Ms Smith drove to a police station, and Mr Quinn stopped following her. This incident is the subject of the third count of failing to comply with a domestic violence order, the third offence charged on the complaint.
Ms Smith arrived home about half an hour later, at 6.00pm. She found a photograph in her letterbox. She recognised the photograph to be one of her taken when she was pregnant with a child she had with Mr Quinn. On the back of the photograph was writing, which Ms Smith recognised as that of Mr Quinn. It said:
Mel, you broke my heart then you smashed my soul then you totally destroyed me by keeping my children away from me what more do you want? If the police come any where near me because of you then there will be death on your doorstep. The blood will be on your hands. Say Merry Xmas to my children for me.
This is the conduct the subject of the fourth count of failing to comply with a domestic violence restraining order.
After several attempts to arrest Mr Quinn were made, three members of the police force went to Mr Quinn’s house about 10.30pm on 27 December 2008. Mr Quinn was in the front yard of his house. He tried to run inside the house, but police restrained him. The police arrested Mr Quinn. A search of Mr Quinn revealed a fold-out knife attached to his belt. Mr Quinn’s possession of this knife is the subject of the charge of unlawful possession, the sixth offence charged on the complaint. The fifth and seventh counts on the complaint were withdrawn.
The proceedings relating to the charges on the complaint and those on the Information were joined. A report relating to Mr Quinn’s mental competence to commit the offences and his fitness to stand trial was ordered.
The psychiatrist who prepared the report, Dr Raeside, noted that Mr Quinn had described a difficult childhood. Mr Quinn described being physically abused by his father. He left home shortly after his family came to Australia, going to a boys’ home. There, he suffered physical and sexual abuse. Mr Quinn indicated to Dr Raeside that his problems began at that point. Dr Raeside considered that Mr Quinn had a history of longstanding alcohol and drug abuse.
Mr Quinn claimed to have no recollection of the events which took place on the night of 14 December 2008. He said that he had been drinking heavily in the days preceding that night, and also that he had taken four valium tablets. Dr Raeside described the effect on a person of consuming that quantity of valium as “the same as alcohol in concentrated form.” Mr Quinn was apprehended on 14 December and taken to hospital for treatment. He returned home after his discharge because he did not think he had done anything wrong. He said he had difficulty distinguishing between his limited recollection of this event, and his apprehension by the police. Despite being apprehended, he committed further offences.
Dr Raeside expressed the opinion that Mr Quinn suffered from an antisocial personality disorder with associated depression. Dr Raeside considered that the disorder had “mellowed” in recent years, but that his mental state was likely to fluctuate depending on the circumstances.
Dr Raeside concluded that Mr Quinn was mentally competent to commit the offences charged. He considered that Mr Quinn was fit to stand trial on the charges.
The matter proceeded in the Magistrates Court. At the start of the trial, Mr Quinn pleaded guilty to the offences that I have described.
The Magistrate proceeded to hear submissions on sentence. In her affidavit, the police prosecutor says that in her submissions to the Magistrate, she summarised the facts relating to each offence based on an apprehension report. The content of the report relating to the fourth count of failing to comply with a domestic violence restraining order does not differ from my summary of the facts relating to that count. However, the report does add in relation to the message on the photograph:
[Ms Smith] believes that this is a threat against her to stop her from taking police action and is fearful of her and her children’s safety.
In an affidavit sworn by Mr Quinn, he says that Ms Mansfield, who represented Mr Quinn in the Magistrates Court, submitted to the Magistrate that the message on the back of the photograph was “borne of despair and desperation”. Mr Quinn adds:
The note in question represented an expression of my intention to harm myself rather than others. This was consistent with my mental state at the time and this factual basis was not disputed by prosecution.
The prosecutor’s affidavit does not state what, if anything, the prosecutor said in relation to the submission of counsel for Mr Quinn on this point.
Counsel for Mr Quinn tendered a report from a psychologist, Mr Balfour. That report sets out a history consistent with that recorded by Dr Raeside. Mr Balfour considered that Mr Quinn exhibited evidence of conduct disorder, and anger management problems. Mr Balfour concluded that Mr Quinn’s personal history and presentation were consistent with him having a personality disorder, resulting in anti-social behaviour exacerbated by alcohol and drug abuse. Mr Balfour considered that, more recently, Mr Quinn had developed a major depressive disorder as a consequence of being denied contact with the children of his relationship with Ms Smith. At the time of the current offences, Mr Quinn was drunk and suffering from depression, but would have been able to appreciate the nature and quality of his offending, and would have appreciated the wrongfulness of his actions.
The remarks that the Magistrate made when sentencing Mr Quinn are before me. The Magistrate accepted that during his childhood and adolescence, Mr Quinn was “abused and treated in an appalling way”. The Magistrate considered that in an attempt to deal with that trauma, Mr Quinn had turned to using alcohol and drugs. That led to “a long history of violent and very anti-social behaviour”. Having regard to Mr Quinn’s offender history, this statement is accurate. Many of his previous offences are traffic related. He has been twice convicted of armed robbery. The more recent of his two convictions for that offence was in 1994, when he received a lengthy sentence of imprisonment.
The Magistrate noted that Mr Quinn had been convicted on seven counts of failing to comply with the same domestic violence restraining order as that the subject of the breaches for which the Magistrate was sentencing Mr Quinn. In fact, it appears that he had been convicted on five counts, but nothing turns on that. For those offences, Mr Quinn had been sentenced to six weeks’ imprisonment, suspended on condition that he enter into a bond to be of good behaviour. The period of the bond expired shortly before Mr Quinn committed the first of the offences for which he was sentenced.
The Magistrate described the offences. He came to the offence involving the photograph of Ms Smith. He described what was written on the back as a “frightening message”. He continued:
Your solicitor told me that the note you wrote was an expression of despair. I accept that the note was written when you were depressed, but it wasn’t an expression of despair. The note was an expression of your violence and you were trying to frighten your former defacto.
The Magistrate noted that Ms Smith was aware of Mr Quinn’s violent past. That knowledge, the Magistrate considered, would have made the breaches of the restraining order all the more frightening. The Magistrate said:
Whatever you may or may not have intended in your head, you must have known that behaving as you did was intimidating to your ex-partner. Your behaviour was designed to force your de facto to capitulate and to get her to allow you to see your children. It was a deliberate and flagrant breach of the court order.
The Magistrate first considered the four counts of failure to comply with a domestic violence restraining order. He considered that the offences were very serious instances of offending of that type. The Magistrate considered that the previous convictions for this offence were relevant because they indicated the need for a deterrent sentence to be imposed. Although, as I have noted, the Magistrate imposed a single sentence of imprisonment in respect of the offences, other than the offence of carrying an offensive weapon, the Magistrate indicated the sentences that he would have imposed in respect of each count.
In respect of the offence the subject of the first count on the complaint, the Magistrate indicated that but for Mr Quinn’s plea of guilt, which the Magistrate regarded as late, he would have sentenced Mr Quinn to seven months’ imprisonment. Taking into account the guilty plea, he would have sentenced Mr Quinn to six months’ imprisonment. He would have imposed the same sentence in respect of the second offence. In relation to the third offence charged on the complaint, the Magistrate would have imposed a sentence of four months’ imprisonment, after a one month reduction on account of Mr Quinn’s plea. The Magistrate would have imposed a sentence of nine months’ imprisonment in respect of the fourth offence. Taking account of the plea, the Magistrate would have imposed a sentence of imprisonment for eight months.
In all, that amounts to imprisonment for two years.
The Magistrate turned to the offences charged on the Information. He considered first the offence of attempted arson, the second offence charged on the Information. He noted that Mr Quinn entered his plea on the basis that the offending was reckless rather than intentional. He continued:
[E]ven accepting that you were carrying a bottle of petrol with a wick attached to it so as to see your way, there was absolutely no need to leave the bottle on the timber decking but I will accept your plea upon the basis put to me.
The Magistrate said that he would have imposed a sentence of imprisonment for 12 months, but after reducing the sentence to reflect the guilty plea, he would have imposed a sentence of ten months’ imprisonment.
The Magistrate imposed a single sentence of imprisonment for two years and ten months. He fixed a non-parole period of one year and eight months. He recorded a conviction without imposing any further penalty in relation to the offence of unlawful possession. He did not refer expressly to the offence the subject of the first charge on the Information, that of being on premises for an unlawful purpose. Whilst the endorsement entered on the Magistrates Court Certificate of Record indicates that the single sentence of imprisonment that the Magistrate imposed related to this offence, in his sentencing remarks, the Magistrate did not nominate a notional sentence of imprisonment relating to this offence as he did with the other offences for which Mr Quinn was sentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).
A preliminary matter
Section 19 of the Act imposes a limit on the length of a period of imprisonment that a Magistrate can impose. That section provides relevantly as follows:
19    Limitations on sentencing powers of Magistrates Court
…
(3)     The Magistrates Court does not have the power to impose -
(a)     a sentence of imprisonment that exceeds 2 years; or
       (b)     a fine that exceeds $150 000.
…
In imposing the single sentence of imprisonment to which I have referred, the Magistrate exercised the power conferred by s 18A of the Act. That section reads:
18A Sentencing for multiple offences
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

The sentence that the Magistrate imposed pursuant to s 18A of the Act is greater than two years. The notional periods of imprisonment that the Magistrate would have imposed in respect of each offence were, in each case, less than two years. The balance of authority favours the view that s 19(3) of the Act does not have the effect that in exercising the power conferred by s 18A, a Magistrate cannot impose a single sentence of imprisonment of more than two years: Police v Curtis [2004] SASC 184; (2004) 145 A Crim R 587 Gray J at [29]-[36]; Police v Miller [2007] SASC 8; (2007) 96 SASR 240, in which the earlier decisions are considered. The Judges in those cases declined to follow the contrary view expressed by Lander J in Hunt v Police [2001] SASC 145 at [47].
The view expressed by Lander J in Hunt was referred to without any comment by Perry J in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30 at [28]. The other members of the Court of Criminal Appeal in Gibbs did not need to decide the point: Doyle CJ at [4]-[6]; Mullighan J at [135]. The issue has not been authoritatively ruled upon by the Full Court or Court of Criminal Appeal.
The appellant does not challenge the power of the Magistrate to act as he did, and accordingly I will proceed on the basis that he had the necessary power.
Ground 4 - Factual foundation for sentence
It was submitted that the Magistrate erred in sentencing Mr Quinn on a factual basis that differed from that put to the Magistrate by defence counsel and accepted by the prosecutor. I have summarised the aspects of the affidavits of Mr Quinn and the police prosecutor which relate to the submissions that were made before the Magistrate in respect of the significance of the message on the back of the photograph the subject of the fourth offence charged on the complaint. As I have noted, the Magistrate rejected Ms Mansfield’s submissions, and characterised the message on the photograph as one which was intended to frighten Ms Smith.
The primary facts relevant to this issue were not in dispute. The issue for the Magistrate was the inference to be drawn from those facts as to Mr Quinn’s purpose or motivation. Ms Mansfield urged the Magistrate to draw an inference that was favourable to Mr Quinn. King CJ made the following pertinent remarks in The Queen v Perre (1986) 41 SASR 105 at 105-106:
The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant's role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. I reject completely the suggestion which surfaced faintly on this appeal and has been made to the Court of Criminal Appeal in other cases, that the judge is bound to act upon the interpretation or version put forward by the defence unless it is disputed by the prosecution. It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence. Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.
There seems to be a misunderstanding abroad as to the respective roles of the judge and counsel in relation to the basis upon which sentence is imposed. It is for counsel to decide whether or not to call evidence. If counsel relies upon submissions from the bar table, it is not part of the ordinary role of the judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence. A judge may do so, but he is not bound to do so. He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence. There will, of course, be exceptions. If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence. There may be other circumstances in which the defence can validly claim to have been misled. In general, however, neither the silence, or even concurrence, of counsel for the prosecution, nor the silence of the judge, will entitle counsel for the defence to assume that the judge will sentence upon the basis of his submissions.
Those remarks have been approved by the Court of Criminal Appeal: R v Corbett [1999] SASC 558; (1999) 206 LSJS 125 Doyle CJ at 125; Perry J at 125; Mullighan J at 132-133. I refer also to the observations of the plurality of the High Court in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [24].
I do not consider that the exceptions identified by King CJ are applicable to this case. There is nothing in the affidavit of Mr Quinn to suggest that Ms Mansfield indicated to the Magistrate that she refrained from having Mr Quinn give evidence on the basis of an arrangement that had been reached with the prosecutor. Ms Mansfield did not file an affidavit on the point. The fact that Ms Mansfield made submissions on the point demonstrates that she was aware of the significance of the issue: cf R v Nguyen [2009] SASC 63; (2009) 103 SASR 370 at [51]. Ms Smith’s belief about the meaning of the message was before the Magistrate, and it was open to him to find that her belief was well founded. Accordingly, I do not consider that this ground of appeal has been made out.
In any event, even on the basis of Mr Quinn’s claim, the message was a frightening one, and open to the interpretation that Ms Smith put on it. This offence is undoubtedly more serious than the others.
Ground 6 – Reduction for pleas of guilty
The Magistrate made allowance for the pleas of guilty to the various offences. The reduction that he made in the head sentence ranged from one-ninth of the starting point to one-fifth of the starting point.
In the circumstances, that is a reduction that was well within an appropriate range. The prosecution case was overwhelming, except perhaps in relation to the message on the back of the photograph. There was a real question as to the extent to which Mr Quinn is genuinely remorseful. In all the circumstances it cannot be said that the allowance is inadequate.
Ground 3 – Impact of deterrence
Ms Mansfield, counsel for Mr Quinn, complains that the Magistrate gave too much weight to the need to deter Mr Quinn from further offending. There is no indication in the Magistrate’s reasons that he placed too much weight on this factor. The Magistrate was entitled to give considerable weight to deterrence, in my opinion. The expert reports before the Magistrate supported the view that there was a real risk of Mr Quinn reoffending in a like manner, either as a result of an impulsive act or when affected by alcohol. While Mr Quinn claims to have decided not to involve himself with Ms Smith any further, at this stage one could not be confident that that claim is reliable. I reject this ground of appeal.
Ground 5 – A single sentence?
It is argued that the Magistrate should have imposed a single sentence of imprisonment in respect of all of the offences.
The Magistrate was under no obligation to do this. In fact, judging by the endorsement on the file in the Magistrates Court, this is what the Magistrate did. But in any event, he was under no obligation to impose a single sentence of imprisonment.
If this ground is intended to raise a complaint that the sentence is excessive, then the answer is that I do not agree. The sentence is a heavy one, but the offending is serious offending of its kind. I will return to this issue under the next heading.
Ground 1 and Ground 2 – Excessive penalty and considerations of totality
I do not agree that the sentence is manifestly excessive. Nor do I agree that it is a sentence which, although justifiable in its components, in the end results in a punishment that is unduly crushing or burdensome, or out of proportion to the overall criminality.
I agree that the sentence is a heavy one. But the offending is serious. There are four separate breaches of the restraining order. Mr Quinn has breached the restraining order in the past. All offences were committed in circumstances in which the different victims must have felt fearful for their safety. The offending has had adverse effects on the well-being of the victims. The offending conduct cannot be treated as a minor nuisance or an annoyance. It would have caused real apprehension. There are clear indications that the offences call for a sentence that will have a significant deterrent effect on Mr Quinn, and that will provide a measure of protection for Ms Smith and her family.
I reject these grounds.
Conclusion
Although the Magistrate’s sentencing remarks do not refer to the charge of being unlawfully on premises, the endorsement on the court file indicates that the single penalty imposed by the Magistrate relates to that offence as well. Even if the Magistrate failed to consider this offence, that could not have led to a better outcome for Mr Quinn. There is no need to pursue that point any further.
For these reasons I dismiss the appeal against sentence.