R v Hanley

[2001] NSWCCA 350

Reported Decision: 125 A Crim R 268

New South Wales

Court of Criminal Appeal

CITATION:	R v Hanley [2001] NSWCCA 350
FILE NUMBER(S):	CCA 60361/99
HEARING DATE(S):	10/8/2001
JUDGMENT DATE:	12 October 2001
PARTIES :	Regina James Eugene Hanley
JUDGMENT OF:	Dowd J at 1; Smart AJ at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0888
LOWER COURT JUDICIAL OFFICER :	Kirkham DCJ

COUNSEL :	Ms C Davenport- Applicant Mr M Grogan- Crown
SOLICITORS:	Hovan & Co- Applicant S.E O'Connor- Crown
CATCHWORDS:	Sentencing - Manufacturing and supply of methylamphetamine - Repeat offence - Sentences partially cumulative - Sentences not excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedures) Act 1999 Drug Misuse and Trafficking Act 1985
CASES CITED:	R v Close (1992) 65 A Crim R 55. R v Hanley (Unreported, NSWCCA, 9 October 1998). R v King (Unreported, NSWCCA, 18 August 1999). R v Moffitt (1990) 20 NSWLR 114. R v Pollock (1993) 67 A Crim R 166. R v Simpson (1992) 61 A Crim R 59.
DECISION:	1. Appeal dismissed; and 2. Leave to appeal granted.

IN THE COURT OF
CRIMINAL APPEAL

60361/99

DOWD J
SMART AJ

12 October 2001

Regina v James Eugene HANLEY
Judgment

1 DOWD J: This is an application for leave to appeal against a sentence imposed by Kirkham DCJ after a trial of the applicant, James Hanley, with two co-accused, on indictments alleging, first, that the parties took part in the manufacture of not less than a commercial quantity of methylamphetamine, and secondly, that they did supply not less than a large commercial quantity of methylamphetamine. The maximum penalty prescribed by s33(2)(a) of the Drug Misuse and Trafficking Act 1985 (‘the Act’) for each offence, is life imprisonment, and/or a fine of 5,000 penalty units.

2 The trial lasted five weeks, resulting in a verdict of guilty and conviction on both counts on 18 December 1998. The applicant was sentenced on 28 June 1999 to ten years imprisonment, with a minimum term of seven years and six months, to date from 6 April 1999, and an additional term of two years and six months.

3 All three co-accused had pleaded not guilty to both of the offences. These convictions represented the applicant’s second conviction for an offence of this type. He had been previously sentenced on 12 May 1998 by Woods QC DCJ for the offence of knowingly taking part in the supply of a large commercial quantity of methylamphetamine. The original sentence was quashed by the Court of Criminal Appeal and increased to two years and eight months, with a minimum term of two years commencing on 12 May 1998 and expiring on 11 January 2000. The additional term of eight months expired on 11 January 2001.

4 The sentence of Kirkham DCJ was therefore concurrent with the last thirteen months of the previous term and the whole of the additional term imposed on the applicant by the Court of Criminal Appeal.

5 The co-accused, Craig Hauesler, was sentenced on the same day to seven years imprisonment, with a minimum term of five years and three months, and an additional term of one year and nine months. This was after His Honour had granted a thirty percent discount to reflect assistance coming within s442B of the Crimes Act 1900.

6 Carl Christie, the other co-accused, was sentenced to six years imprisonment, with a minimum term of four years and six months, and an additional term of one year and six months.

7 The remaining co-offender, Spyridis, was separately tried before Flannery QC DCJ, and was sentenced to seven years imprisonment with a minimum term of five years and an additional term of two years.

Facts

8 The three accused and Spyridis were involved in a joint criminal enterprise in manufacturing methylamphetamine. The premises, which were owned by Spyridis, were located at Beaconsfield, and were under police observation. Listening devices were used to monitor telephone conversations between the parties.

9 On 11 November 1994, a conversation was recorded between the applicant and Christie, talking about a “litre measuring thing”. There was also other strong evidence that the co-offenders were involved in the manufacture of methylamphetamine. Hauesler’s vehicle was parked near the subject premises when Spyridis drove his vehicle into the carport, and later left.

10 The Crown case involved the presence of fingerprints and traces of methylamphetamine on the clothing of those involved. Thirty-one plastic resealable bags weighing approximately one pound each were found, all of which contained a quantity of methylamphetamine.

11 The applicant was observed in the premises at a laundry tub. He said:

“ I can’t believe you opened the fucking door”.
There was a large quantity of chemicals and equipment in various rooms of the house, including the laundry area. His Honour found that it was a large-scale commercial manufacture of the prohibited drug for profit and for no other purpose. The Learned Sentencing Judge found that there was no evidence that any of the prisoners were methylamphetamine users.

12 The Learned Sentencing Judge found on the whole of the evidence, beyond reasonable doubt, that all three prisoners before him, namely the applicant, Christie and Hauesler, were involved in the process of manufacturing methylamphetamine.

Subjective Factors

13 His Honour found that the applicant was a persistent offender, and also found that in 1994 when the subject offence had been committed, that the applicant had been on bail for an offence that had been committed in 1992.

14 There was the additional aggravating factor that the applicant’s earlier offence was of a like kind. His Honour found that the applicant had only one prior conviction for a PCA offence.

15 The Learned Sentencing Judge found that the failure of a business enterprise caused the applicant’s previous employment to be terminated, and said that the applicant, prior to conviction by Woods QC DCJ, had never had an adverse dealing with the police, and that indeed, his father had been a Crown police Sergeant.

16 Other evidence was given of the good character and works of the applicant. Evidence was also taken into account as to the effect of imprisonment on the applicant’s wife. There was also evidence from a psychologist that the applicant was unlikely to re-offend.

Grounds of Appeal

17 The first ground of appeal was that Kirkham DCJ erred in finding that the applicant, together with Craig Heusler, were primarily responsible for bringing about the manufacture of the methylamphetamine. In support of this ground, the applicant asserted that there was no factual basis for this finding, and that when His Honour said that he was satisfied beyond reasonable doubt that:

“…given Hanley’s previous conviction for the manufacture of methylamphetamine that he had the requisite knowledge of process of manufacture, and was thus primarily responsible for the manufacture of methylamphetamine, the subject of these proceedings” (at paras 15.2.-15.4).

18 In His Honour’s Remarks on Sentence, His Honour found that the applicant and Hauesler were primarily responsible for bringing about the manufacture of the methylamphetamine, Christie having formed a guard role and Spyridis having provided the premises and little else.

19 His Honour found that the two prisoners were at the heart of the crime, and the fingerprints and other evidence associated Hauesler and the applicant with the process of manufacture.

20 His Honour then went on to find that the applicant and Hauesler were both responsible for the manufacture process, and that the starting point for both their sentences should be the same.

21 His Honour’s parenthetic remarks that “given Hanley’s previous convictions for the manufacture of methylamphetamine” is not a correct statement. The applicant had previously been convicted of the supply of methylamphetamine. In that earlier finding, it was found by Woods QC DCJ that he was not the principle organiser, but found

“…that it is inescapable that the offence could not have occurred for the fact that it could not have been created but for the activity of the accused, or the prisoner as he now is, and that is clearly the case”.

22 His Honour further found that the applicant

“…was a man with a practical background in trades, with carpentry skills and some knowledge of electricals …”,
and that he lent his skills “such as they were” to an enterprise where cannabis would be grown hydroponically and as well methylamphetamine, the prohibited drug referred to in the count of which he is convicted would be made.

23 His Honour Woods QC DCJ found that the applicant

“had knowledge of the methylamphetamine component of the exercise at all relevant times”.

24 Notwithstanding the parenthetic remarks by Kirkham DCJ concerning the applicant being convicted of the manufacture of methylamphetamine, it is clear from his Remarks on Sentence, that he made findings that the applicant was in fact involved in the manufacturing process. I not think that this is an error such that this Court should intervene.

25 The fact that Woods QC DCJ found that the applicant was not the principle organiser of the earlier scheme, does not in fact acquit him of his role in being involved in the supply of methylamphetamine. The finding by His Honour Judge Woods QC DCJ in the earlier sentencing that he had nothing to do with, in that case, the actual supply, growing or manufacture in that earlier case, does not prevent Kirkham DCJ making the finding that he did in these present proceedings. In my view, the findings of Woods QC DCJ entitled Kirkham DCJ to find that the applicant previously had knowledge of the manufacture of the methylamphetamine.

26 Any finding as to the “pecking order”, as between the co-offenders, bears no relationship to the role of the applicant. The fact that the applicant may have been subject to the power of Hauesler in some way, does not detract from His Honour’s finding as to Hanley’s role, which was based on the whole of the evidence, particularly of fingerprints and the discussion of the implements, and the fact was that the applicant was found in the laundry washing the implement and that he had amphetamine on his clothing.

27 It should be further noted that in the Court of Criminal Appeal in the Crown Appeal against the sentence imposed by Wood QC DCJ, the Court found that the applicant’s “role was a significant role in that production process”: R v Hanley (Unreported, NSWCCA, 9 October 1998, p4). In my view, this ground has not been made out.

28 The second ground of appeal is that His Honour erred in not finding special circumstances. The applicant contended that he had been in custody since 12 May 1998, the minimum term of which was to expire on 11 May 2000. In sentencing for this subject offence, the Learned Sentencing Judge made the sentence partly concurrent with the sentence the applicant was serving, and partly cumulative. It was submitted that His Honour failed to take the existing period of eleven months imprisonment, which the applicant had served, into account in determining whether special circumstances should be found.

29 Section 44 of the Crimes (Sentencing Procedures) Act 1999 requires the setting of a term of the sentence, and the setting of a non-parole period. The requirement that the non-parole period must be not less than three-quarters of the term of the sentence is a restriction on the sentencing power of the court, unless the Court finds that there are special circumstances for the sentence being less. Subsection 44(4) of the Act does not invalidate the sentence if the Court fails to comply with the requirement of the finding of special circumstances.

30 His Honour in fact did not need to find special circumstances, since the sentence that he imposed created an additional term, which was two-and-a-half years, which meant that the non-parole period was not less than three-quarters of the sentence.

31 There is no restriction on a judge imposing a non-parole period that was greater than three-quarters of the full sentence. In fact what His Honour did, was to partly reduce the non-parole period by making it partly cumulative and effectively gave the actual additional sentence imposed a lesser non-parole period than three-quarters of the full additional sentence imposed.

32 I do not consider that this ground has been made out.

33 As there is nothing in the evidence to suggest that a longer period of supervision is necessary, I would therefore propose the following orders:

1. That leave be granted to appeal; and

2. That the appeal be dismissed.

34 SMART AJ: James Eugene Hanley seeks leave to appeal against the asserted severity of concurrent sentences, each comprising a minimum term of 7 years 6 months and an additional term of 2 years 6 months in respect of the offences of knowingly take part in the manufacture of an amount of a prohibited drug, namely, methylamphetamine which was not less than the commercial quantity applicable to that prohibited drug, namely, a large commercial quantity, and of supplying an amount of a prohibited drug, namely methylamphetamine, which was not less than the commercial quantity applicable to that prohibited drug, namely a large commercial quantity. Each minimum term dated from 6 April 1999, the sentences being imposed under the Sentencing Act 1989 on 28 June 1999. The maximum penalty prescribed by 33(2)(a) of the Act for each offence is life imprisonment and/or a fine of 5000 penalty units.

35 The trial of the applicant and his co-accused Carl Maxwell Christie and Craig Haeusler before Kirkham DCJ extended over many weeks. The jury convicted each of them of the same offences. The remaining co-accused, Nicholas Spyridis, was tried separately before Flannery DCJ. On 15 December 1997, he was sentenced to 7 years imprisonment from 26 August 1997 with a minimum term of 5 years.

36 During at least part of the period from 6 September 1994 to 13 November 1994, the applicant and his co-offenders engaged in various aspects of the process of manufacturing amphetamine from premises at Botany Road, Beaconsfield, including preparatory and ancillary steps. These premises were owned and occupied by Spyridis.

37 The Crown case consisted of observations by police officers from time to time, conversations recorded by listening devices and conversations recorded over the telephone. Conversations recorded on 11 November 1994 included Christie in the presence of the applicant saying to Haeusler

"You haven't got a litre measuring thing have you?"

38 Kirkham DCJ (the judge) found that this and other conversations recorded at the same time were powerful evidence that at that moment the applicant, Christie and Haeusler were doing something in furtherance of the manufacture of methylamphetamine.

39 On 13 November 1994, Haeusler's vehicle was parked close to the premises but in a neighbouring street from at least 1.10pm onwards. In the late afternoon, Spyridis drove his vehicle into the carport of his premises, remained there for about 45 minutes and left. The police stopped his vehicle and had him accompany them back to his premises. On the police knocking at the door, it was opened by Christie. Hanley was seen at a laundry tub. He was heard to say

"I can't believe you opened the f---ing door".

Haeusler was in the lounge room. All three were placed under arrest.

40 There was a large amount of equipment and chemicals in various rooms in the house including the kitchen, the loungeroom and the laundry. The ingredients and the paraphernalia to manufacture methylamphetamine were there. The method of manufacture used was the "red phosphorus" method. On the clothes of the three offenders were traces of methylamphetamine. Their fingerprints were at various places and on various items throughout the premises. In particular, traces of methylamphetamine were found on the applicant's clothing and in his car. His fingerprints were found on a Corning Ware dish and on a 20 litre glass reaction vessel. This could be used for heating the product during the manufacturing process.

41 An analytical chemist testified as to a mass of powerful circumstantial evidence found at the premises. Also found were some 31 plastic, resealable bags, each weighing about one pound and containing a percentage of methylamphetamine. In total over 13 kilograms of methylamphetamine were found at the premises. This is a large quantity.

42 The applicant gave evidence at the trial that he was only present in the house at the time of the police raid because he was employed to perform a stocktake for Spyridis. He claimed that none of the equipment and chemicals (other than some drugs and buckets in the lounge room) were present and that they must have been placed there by police after his arrest. The jury rejected the applicant's evidence.

43 The judge found beyond reasonable doubt that the applicant between 6 September and 13 November 1994 knowingly took part in the manufacture of a large commercial quantity of methylamphetamine and that that activity was taking place on 11 November 1994. The judge further found that the applicant and his two co-offenders were in possession of the 31 bags containing methylamphetamine and by virtue of s29 of the Act did on 13 November 1994 supply it.

44 The judge further found:

"As far as Hanley and Haeusler are concerned I am satisfied beyond reasonable doubt that they were primarily responsible for bringing about the manufacture of this amphetamine. The tape recordings established that these two prisoners were at the heart of this crime, and the fingerprint evidence associated Haeusler and Hanley convincingly with the process of manufacture. I am satisfied beyond reasonable doubt, given Hanley's previous conviction for the manufacture of methylamphetamine that he had the requisite knowledge of the processes of manufacture, and was thus primarily responsible for the manufacture of methylamphetamine, the subject of these proceedings. However, as I have said I regard Haeusler's contribution as being equal to that of Hanley. The pecking order underlying their association was readily discernible from the tenor of the recordings, where Hanley showed deference to Haeusler in many subtle ways".

45 The judge stated:

"The absence of any evidence that any of the prisoners was a user of methylamphetamine precludes a finding that the production of methylamphetamine in this case was for their own use. Indeed the evidence is to the contrary. This was a large scale commercial manufacture of a prohibited drug for profit and for profit alone".

The judge correctly regarded the offences as very serious and the applicant's conduct as involving very significant criminality.

46 Between 16 September 1992 and 31 October 1992, the applicant committed the offence of knowingly take part in the supply of methylamphetamine being not less than the large commercial quantity. He was on bail for that serious offence when he committed the offences the subject of this application. The applicant was convicted by a jury of the 1992 offence in May 1998 and sentenced by Woods DCJ. That offence arose out of the applicant's involvement in a methylamphetamine factory at Rosebery. Consequent upon an appeal by the Crown to the Court of Criminal Appeal the applicant was sentenced to a minimum term of 2 years to date from 12 May 1998 with an additional term of 8 months. Thus, at the time of his trial for the 1994 offences and at his sentencing the applicant was serving a term of imprisonment for a similar offence.

47 Apart from the 1992 offence the applicant had only one prior offence, namely, a high range PCA in early 1992. This is of no consequence when assessing the sentences for the 1994 offences.

48 The applicant 's older brother gave evidence that the applicant was a leading hand with Telecom until, after 19 years service, he was retrenched in the 1980's. The applicant then worked for his brother as a labourer in his carpeting business. Due to unexpected factors that business failed and the brother was unable to employ the applicant any longer. The applicant became quite depressed because again he had no work. It was after this that the 1992 offence was committed. The brother restarted his business about 1991-1992 but he was not able to re-employ the applicant. However, in 1994 the applicant worked in that business on a voluntary basis to keep himself occupied. Money was very short. He was not able to support himself and his family adequately. His older brother said that if he could he would re-employ the applicant on his release from prison.

49 There was significant evidence that the applicant was a good father and had assisted both his mother and his mother-in-law quite extensively when they were ill, infirm and ageing. He also assisted in raising the four children of his sister after her husband died.

50 The judge also took into account the other evidence favourable to the applicant. The judge noted the adverse effects which the offences and the applicant's imprisonment had had on his family. The judge observed:

"Given his proven repeated criminal behaviour Hanley emerges as somewhat of a Jekyll and Hyde character. It is clear that he has done much good in his life but sadly had it not been for police intervention, the methylamphetamine which he knowingly took part in manufacturing would have polluted untold numbers of young people".

51 The judge also took into account the report of Mr W J Taylor, Psychologist. The applicant told him that at the time of the 1994 offences he had a number of bills to pay as well as a strong need to support his family. The applicant was mainly concerned about the effect of his actions upon his family and was more concerned about them and sorry for them than he was for himself. The judge was sceptical about the applicant's prospects of rehabilitation and opinions that he was not likely to re-offend. Those opinions were based, in part, on his age. He was born on 14 November 1947. The judge was troubled by the applicant's demonstrated recidivism.

52 Appeal Ground 1 reads:

"…his Honour erred in finding beyond reasonable doubt that the appellant together with Craig Haeusler was primarily responsible for bringing about the manufacture of the methylamphetamine".
In support of this ground the applicant submitted that the judge had erred when he had referred to the applicant's previous conviction for the manufacture of the methylamphetamine. This was a mistake, the conviction being for knowingly take part in the supply of not less than a large commercial quantity of methylamphetamine. The applicant contended that this slip was of consequence because it destroyed the basis of the judge's finding that the applicant had the requisite knowledge of the processes of manufacture and was thus primarily responsible for the manufacture of methylamphetamine.

53 The applicant submitted that there was no factual basis for the judge's finding. The applicant contended that the judge had misunderstood the remarks of Woods DCJ in the earlier proceedings. The applicant pointed to the remark of Woods DCJ that the jury's finding

"acquits him of the allegation that he was the organiser or principal of this scheme",
and the finding that the applicant was a man with a practical background in trades, with carpentry skills and some amateur knowledge of electricals. The applicant relied on this statement about him by Woods DCJ:

"He was paid $10,000 for his skills and involvement and I finds it was expected that he would have nothing to do with the actual supply, growing or manufacture of drugs. I find that he, in fact, did not have anything to do with the actual supply, growing or manufacture of drugs".

54 Reliance was also placed by the applicant on the findings of Woods DCJ that while the applicant's role was necessary in the carrying out of the scheme, his role was relatively minor.

55 The applicant pointed out that at the trial the Crown relied upon the presence of the three men at the Beaconsfield premises at the time when they were raided as well as a number of telephone calls. It was also explained that despite the premises being under surveillance for a considerable period before the arrests, the only time the applicant was seen at the premises was on the day of his arrest.

56 The applicant submitted that there was no factual basis for the judge's findings as to the applicant's involvement in the manufacturing process, and that the judge's findings in this respect flew in the face of his findings that:

"'The pecking order underlying their association was readily discernible from the tenor of the recordings, where Hanley showed deference to Haeusler in many subtle ways'."

57 Some of the applicant's submissions overlooked that the jury had found him guilty of manufacturing not less than a large commercial quantity of methylamphetamine. It is necessary to take into account the findings of Woods DCJ that the applicant was involved in setting up an amphetamine factory and had knowledge of the methylamphetamine component of the exercise at all relevant times. Woods DCJ recorded that the jury had rejected the applicant's claim that he had no knowledge of the methylamphetamine part of the exercise. The findings of Woods DCJ demonstrate that the applicant had at least the opportunity to acquire knowledge of the process of manufacture of methylamphetamine.

58 When the findings of Woods DCJ are taken as a whole, it is not clear whether they mean that the applicant had knowledge of the process of manufacture or that he knew that methylamphetamine was being manufactured. The findings of Woods DCJ preclude any finding that the applicant had anything to do with the actual manufacture of methylamphetamine at the Rosebery premises. The remarks of Kirkham DCJ do not suggest that he adverted to the distinctions I have noted.

59 However, when the applicant's previous involvement in setting up a methylamphetamine factory and the knowledge it could be inferred he must have obtained from such setting up and the operation of the factory are coupled with his proven activities in and connected with the Beaconsfield premises the conclusion that he had the requisite knowledge of the process of manufacture is both open on the evidence and correct. Similarly, the conclusion of Kirkham DCJ that the applicant was primarily responsible for the manufacture of methylamphetamine was both open on the evidence and correct. While some of the reasoning of Kirkham DCJ is flawed, the conclusions are correct. The slip of Kirkham DCJ has not led to an excessive sentence nor a miscarriage of justice.

60 In the Court of Criminal Appeal, Dowd J (with whom McInerney and Greg James JJ agreed), in commenting upon the sentence imposed by Woods DCJ said:

"His Honour found that … his role was minor … on the evidence, it is clear that he had a lesser role than the principal, but … his role was a significant role in that production process". ( R v Hanley (Unreported, NSWCCA, 9 October 1998) at p4).

61 One further point should be mentioned. The applicant claimed that Kirkham DCJ erred when he refused to take into account certain evidence given by Sgt. Ramsey, the officer in charge of the police investigation, during the sentence proceedings. Sgt. Ramsey expressed the view that the role of Haeusler was more significant than that of Christie and the applicant. The judge took the view that it was for him to make findings based on the evidence at the trial, not an opinion about that evidence offered by a witness during the sentence proceedings. This was the correct approach. This complaint is unsound.

62 Appeal Ground 1 is rejected.

63 Appeal Ground 2 reads:

"That his Honour erred in not finding special circumstances"

The judge considered the question of special circumstances on the basis of hardship to members of the applicant's family, this being the basis advanced by the applicant's counsel. The judge held:

"… it has not been established … that exceptional circumstances as understood by the authorities do exist in this case. Indeed, the objective seriousness of Hanley's recidivism, of itself mitigates against the success of such a plea".

64 In this Court, it was contended that special circumstances should have been found because of the accumulation of the sentences. To explain this submission further, the dates of the sentences need to be revisited. The sentence for the 1992 offence comprised a minimum term of 2 years starting on 12 May 1998 and an additional term of 8 months starting on 12 May 2000 and ending on 11 January 2001. The concurrent sentences for the 1994 offences comprised a minimum term of 7 years 6 months to start on 6 April 1999 and to end on 5 October 2006 with an additional term of 2 years 6 months to commence on 6 October 2006. The judge started the sentences for the 1994 offences not from the date of sentencing (20 June 1999), but from 6 April 1999, substantially because the applicant had spent from 14 November 1994 until 27 January 1995 in custody. The sentences for the 1994 offences overlapped the minimum term of the sentence for the 1992 offence by 13 months 6 days and the whole of the additional term of 8 months.

65 The judge did not refer to whether the partial accumulation of the sentences for the 1992 and 1994 offences constituted special circumstances. Neither counsel nor the judge appears to have mentioned this prior to sentence. Perhaps at that stage no attention had been directed to the sentences being partially cumulative.

66 The Crown conceded that the fact that cumulative sentences have been imposed will normally constitute a special circumstance. That concession was correctly made: R v Moffitt (1990) 20 NSWLR 114, R v Simpson (1992) 61 A Crim R 59 at 61, R v Close (1992) 65 A Crim R 55 at 60, R v Pollock (1993) 67 A Crim R 166 at 169, and R v King (Unreported, NSWCCA, 18 August 1999) at para 11. There is a difference between the effect of s5 of the Sentencing Act 1989 which applies in this case and s44 of the Crimes (Sentencing Procedure) Act 1999 which did not apply at the time of sentencing but would apply on any re-sentencing.

67 Allowing for the overlap, the effective minimum term or non-parole period arising from the sentences for the 1992 and 1994 offences is 8 years 4 months and 24 days (12 May 1998-5 October 2006). The effective total sentence is 10 years 10 months and 24 days (12 May 1998-5 April 2009). Three-quarters of 10 years 10 months and 24 days is approximately 8 years 2 months and 21 days. Thus, the effective difference between the effective minimum term of the sentences and that calculated in accordance with the usual three to one ratio is about 2 months 3 days (8 years 4 months 24 days to 8 years 2 months 21 days). Depending on the method of calculation used there can be a variation of a few days. For the Court to intervene in such circumstances would be tinkering. Further, the sentences imposed by Kirkham DCJ are correct having regard to the gravity of the offence. His decision to backdate the sentences for the 1994 offences to April 1999 was, in the circumstances lenient and more than compensates for the slight departure from the usual three to one ratio. Overlapping sentences is a conventional way of giving effect to the principle of totality. Although this was not stated it was probably in the judge's mind.

68 I would reject Appeal Ground 2.

69 Leave to appeal should be granted but the appeal should be dismissed.

70 DOWD J: The order of the Court therefore is that leave to appeal be granted and the appeal is dismissed.

oOo