Avery v R

1. [1]

   R A HULME J: I agree with Bellew J.

2. [2]

   DAVIES J: I agree with Bellew J.

3. [3]

   BELLEW J: On 3 June 2013 Daniel Avery (“the applicant”) appeared before the Grafton Local Court and pleaded guilty to the following offences:

4. [4]

   The maximum penalty for each of counts 1 and 3 is imprisonment for 20 years. A standard non-parole period of 5 years is prescribed.

5. [5]

   The maximum penalty for count 2 is imprisonment for 5 years. There is no standard non-parole period for that offence.

6. [6]

   On 17 December 2013 in the District Court her Honour Judge Wells imposed the following sentences:

7. [7]

   The total effective sentence was one of imprisonment for 4 years and 4 months with a non-parole period of 2 years and 6 months, to date from 6 May 2013. The applicant now seeks leave to appeal on 8 grounds which are discussed below.

THE FACTS

1. [8]

   A separate statement of facts in respect of each instance of offending was tendered before the sentencing judge.

Count 1

1. [9]

   The agreed facts in respect of count 1 were in the following terms:

Count 2

1. [10]

   The agreed facts in respect of count 2 were in the following terms:

Count 3

1. [11]

   The agreed facts in respect of count 3 were in the following terms:

2. [12]

   The facts were summarised by her Honour (at ROS 1-3), following which her Honour made reference to the contents of an interview in which the applicant had participated with police. In particular her Honour said:

3. [13]

   “A month late (sic) in January 2013 this offender was arrested in relation to another matter. He made admissions to the Yamba offence. He said that he had been drinking with others and they went to a house around daybreak to get some cannabis. He says that one of the offenders hit MK in the head hard. He was knocked out when the offender entered.

4. [14]

   The offender searched around the lounge-room and took a pack of cigarettes. He saw TL hit MA. He did not see or participate in offences with her in the bedroom. He did see that once she came out of the bedroom her face was badly injured and black from bruising. At that stage, believing that TL had gone too far, he encouraged them to leave. Apparently they all later took part in burning her car, though he is not subject of a charge in relation to that.

5. [15]

   He told the police that he believed that they were going there to buy cannabis and admits that he fully participated in taking some property that was taken, namely $1500 cash, an iPhone and a car from the house. He received, he says, $50 and a packet of cigarettes.”

Her Honour’s findings

1. [16]

   The assault on MK was committed in the course of carrying out the joint criminal enterprise which was the subject of count 3. Having summarised the facts along with aspects of the applicant’s interview with police, her Honour said (at ROS 3):

2. [17]

   In the context of considering the objective seriousness of the offending her Honour then said (at ROS 4):

3. [18]

   Finally, her Honour said (at ROS 5):

Submissions of the applicant

1. [19]

   Counsel for the applicant submitted that the extracts of the remarks on sentence set out at [13]-[15] above, and particularly the italicised parts within those extracts, supported a conclusion that her Honour erroneously found that the applicant was involved in assaulting MK. It was submitted that there was nothing in either the agreed facts or in the applicant’s record of interview which provided a proper basis for such a finding.

2. [20]

   Particular reliance was placed on the fact that in the passage of her Honour’s remarks set out in [13] above, her Honour expressly stated that the applicant was not responsible for the assault on MA but made no similar statement in the following sentence when making reference to the assault on MK. It was submitted that this, combined with her Honour’s references to the applicant being involved in a “a flurry of extreme violence” (at [14] above) and to the applicant having “joined in this serious offence with a great deal of enthusiasm” (at [15] above) supported the conclusion that her Honour had erroneously found that the applicant had taken part in the assault upon MK. It was submitted that this finding was significant in her Honour’s determination of the objective seriousness of the offending and caused the sentencing discretion to miscarry.

Submissions of the Crown

1. [21]

   The Crown accepted that on the facts before the sentencing judge the applicant did not inflict any violence upon either MA or MK. However it was submitted that on a fair reading of the entirety of the material before the sentencing judge there was no doubt that the applicant was in the midst of the violence which was taking place, and that he played a pivotal role in what had occurred. It was submitted that the presence of the applicant in the premises generally, and at the front door and the lounge room in particular, provided encouragement to the co-offenders and necessarily engendered additional fear in the victims.

2. [22]

   Viewed in this way, it was submitted by the Crown that her Honour’s observations were supported by the evidence before her.

Consideration

1. [23]

   In considering this ground a number of matters must be emphasised at the outset.

2. [24]

   Firstly, the sentencing judge did not make any finding that the applicant had actually played any direct part in the assault upon MK. Her Honour’s observations must be viewed in the context of the Crown case against the applicant in respect of count 3 being based upon a joint criminal enterprise.

3. [25]

   Secondly, there was a lengthy statement of facts tendered on sentence in respect of count 3. Her Honour can be assumed to have been familiar with those facts which she summarised in her sentencing remarks. Those facts made it clear that it was no part of the Crown case against the applicant that he participated in any direct way in the assault upon MK.

4. [26]

   Thirdly, her Honour summarised aspects of the applicant’s interview with police (at [12] above). In doing so, her Honour made express reference to the fact that the applicant had told police that “one of the offenders” (in other words, someone other than the applicant himself) had assaulted MK.

5. [27]

   In my view, there is no room for the suggestion that her Honour was under some misapprehension about the precise role played by the applicant in the joint criminal enterprise which formed the basis of count 3. In particular, her Honour could not possibly have been under the misapprehension that the applicant was directly involved in the assault upon MK.

6. [28]

   The various extracts from the sentencing remarks upon which the applicant relied in support of this ground can only be sensibly construed as references to the applicant’s participation in the broader joint criminal enterprise in which he had admitted, by his plea of guilty, to having taken part. There is no basis upon which to conclude that her Honour was either not aware of the facts, or that she had somehow misconstrued them.

7. [29]

   Ground 1 is not made out.

GROUND 2 – The applicant was denied procedural fairness because the sentencing judge found a fact which was adverse to the applicant, contrary to the agreed facts and which had not been the subject of any cross-examination or submissions, namely that the applicant took part in the violent assault upon MK on 22 December 2012 without giving the applicant the opportunity to adduce further evidence or make further submissions.

1. [30]

   Ground 2 is inextricably linked to Ground 1.

2. [31]

   In light of the conclusion I have reached in respect of Ground 1, Ground 2 is not made out.

The findings of the sentencing judge

1. [32]

   The agreed facts which were before the sentencing judge made reference to the sexual assault on MA. That assault fell outside the ambit of the joint criminal enterprise alleged by the Crown. There was no suggestion at all that the applicant participated in it. It is not clear why there was a reference to it in the statement of facts tendered in respect of count 3 but there was no ambiguity in the Crown’s position as evidenced by the following statement made to her Honour by the Crown during the sentence proceedings (at T16 L16):

2. [33]

   Against that background her Honour said, in reference to the sexual assault (at ROS 2):

3. [34]

   “That aspect of the offence is not a matter for which this offender faces a charge, nor is he to be held responsible because it falls outside the plan that was embarked upon. Nevertheless it is a significant matter in the circumstances of these young men entering someone's house as they did that night.”

4. [35]

   Subsequently, when referring to the applicant’s interview (at ROS 3) her Honour said:

5. [36]

   “He saw TL hit MA. He did not see or participate in offences with her in the bedroom”.

Submissions of the applicant

1. [37]

   It was submitted that notwithstanding her Honour’s express statement that the applicant was not to be held responsible for the sexual assault, an error arose as a consequence of her Honour’s reference (in the passage set out in [30] above) to the fact that it was “nevertheless…a significant matter.” Counsel for the applicant submitted that the sexual assault of MA was not a matter which her Honour was entitled to even consider, let alone a matter to which she was entitled to attach significance.

Submissions of the Crown

1. [38]

   The Crown submitted that it was clear from her Honour’s remarks that the sexual assault was not taken into account on the applicant’s sentence. It was submitted that her Honour had clearly indicated that the applicant was not to be held responsible for that offence, and had also indicated the reasons why that was so.

Consideration

1. [39]

   The reference to the “significance” of the matter was preceded by the sentencing judge expressly acknowledging that the sexual assault:

2. [40]

   Such statements make it clear that her Honour was obviously well aware of the fact that the sexual assault was not something which could be taken into account in sentencing the applicant. In the face of such statements, I am not able to accept the proposition that her Honour somehow took the sexual assault into account in assessing the objective seriousness of the applicant’s offending in count 3.

3. [41]

   Ground 3 is not made out.

The findings of the sentencing judge

1. [42]

   This ground was limited to the sentence imposed in respect of count 1.

2. [43]

   Having dealt with the applicant’s subjective circumstances, her Honour said (at ROS 8):

Submissions of the applicant

1. [44]

   The applicant submitted that the sentence imposed in respect of count 1 reflected a variation of only 3 weeks from the statutory ratio and failed to reflect her Honour’s finding of special circumstances. It was submitted that such a variation was not sufficient to give any real effect to that finding.

Submissions of the Crown

1. [45]

   The Crown submitted that the sentence imposed in respect of count 1 was a modest one and that in all of the circumstances the variation at which her Honour arrived was appropriate. The Crown also relied upon the overall sentence which, it was submitted, properly reflected her Honour’s findings.

Consideration

1. [46]

   Her Honour imposed a total effective sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years and 6 months. That non-parole period represented 57 per cent of the total sentence. That, on any view, was a substantial variation of the statutory ratio.

2. [47]

   The submissions advanced on behalf of the applicant in support of this ground fail to have regard to the total effective sentence which was imposed. That sentence clearly gave effect to her Honour’s finding of special circumstances.

3. [48]

   Ground 4 is not made out.

Her Honour’s findings

1. [49]

   Immediately prior to pronouncing sentence, her Honour said the following:

Submissions of the applicant

1. [50]

   Counsel for the applicant submitted that there was no indication in the remarks on sentence that her Honour had considered the significance of the total effective sentence which she imposed.

2. [51]

   It was further submitted that her Honour should have considered such sentence in the light of the extent of the discount for the applicant’s assistance to the authorities so as to ensure that the discount was not eroded by any accumulation.

Submissions of the Crown

1. [52]

   The Crown submitted that it was essential that any sentence have appropriate regard to the totality of the applicant’s offending behaviour, and that such a requirement had been met in the present case. The Crown also emphasised that considerations of totality and accumulation were matters within the discretion of the sentencing judge who should be allowed as much flexibility in sentencing as is consonant with consistency of approach.

2. [53]

   The Crown further submitted that her Honour’s express reference to principles of totality made it clear that those principles were in fact applied when determining sentence.

Consideration

1. [54]

   Considerations of concurrence, accumulation and totality are matters within the discretion of a sentencing judge: R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 per Hall J at [52] citing R v Cahyadi [2007] NSWCCA 1; (2007] 168 A Crim R 41 at [27] and following per Howie J. Nothing said by her Honour suggests that her discretion in this regard miscarried. On the contrary, the proposition that her Honour failed to apply principles of totality ignores her Honour’s express reference to those principles in the italicised portion of those parts of her remarks set out at [44] above.

2. [55]

   The submissions of the applicant also ignore the substantial adjustment to the statutory ratio which is reflected in the overall sentence, and which resulted from her Honour’s finding of special circumstances. In light of that adjustment her Honour must necessarily have been aware of the effect of the accumulation which she had determined was appropriate.

3. [56]

   Ground 5 is not made out.

The evidence

1. [57]

   When interviewed on 22 January 2013, the applicant was asked to identify those in whose company he committed the offending in count 3. He said, in answer to question 289:

2. [58]

   Following the interview, the applicant signed an undertaking to give evidence at any proceedings against the co-offender TL for offences arising out of the offending in count 3.

3. [59]

   When giving evidence on sentence, the applicant said in cross-examination (commencing at T10 L13):

The findings of the sentencing judge

1. [60]

   At ROS 6 her Honour said:

Submissions of the applicant

1. [61]

   Counsel for the applicant submitted that there were three errors arising out of the manner in which her Honour dealt with the issue of assistance. It was submitted that her Honour had:

2. [62]

   As to the first of those matters, it was submitted that the applicant had in fact identified his three co-offenders in respect of the offence in count 3, both in his interview with police and when giving evidence. It was also pointed out that when giving evidence the applicant had expressly undertaken to give evidence against the co-offenders Walker and Williams in the event that either of them was apprehended in the future. It was submitted that her Honour’s error in this regard was significant and that a proper understanding of the level of the applicant’s past and future assistance may have led her Honour to allow a greater discount than she did.

3. [63]

   As to the second matter, it was submitted that it had been incumbent upon the sentencing judge to quantify the amount by which the sentences had been reduced for each of past and future assistance in accordance with s. 23(4) of the Crimes (Sentencing Procedure) Act 1999 NSW (“the Sentencing Act”). It was submitted that her Honour had erred in failing to do so and that although, in light of s.23(6) of the Sentencing Act, that error did not invalidate the sentence, it was indicative of the fact that her Honour may not have given proper consideration to the value of the applicant’s past assistance.

4. [64]

   Finally, counsel for the applicant pointed out that the sentencing judge had imposed a fixed term of 6 months imprisonment in respect of the offending in count 2 but had given no reason for doing so. It was submitted that in view of her Honour’s failure to comply with s. 23(4)(b) of the Sentencing Act, this Court was left to speculate as to her Honour’s intentions in setting a fixed term.

5. [65]

   In oral argument before this Court, counsel for the applicant conceded that the discount which was applied was “not ungenerous” but stressed the importance of correctly identifying the level of assistance. Counsel then submitted that the considerations discussed in R v Ellis (1986) 6 NSWLR 603 should operate in the applicant’s favour to increase the discount to one of 50 per cent. No such submission was put to the sentencing judge.

Submissions of the Crown

1. [66]

   The Crown submitted that although the applicant nominated the persons Walker and Williams as his other co-offenders in respect of the offending in count 3, there was no independent corroboration of their involvement and they had not been arrested. The Crown also pointed out that the offending in counts 1 and 2 involved others who were not named or otherwise identified by the applicant. It was submitted that in these circumstances there was in fact no error in her Honour’s findings.

2. [67]

   The Crown appeared to accept that the sentencing judge had failed to comply with s. 23(4) of the Sentencing Act. However, it was submitted that her Honour’s failure to do so was not a ground upon which the present appeal ought be allowed.

Consideration

1. [68]

   This Court has previously emphasised that where a discount is to be applied to reflect a plea of guilty along with past and future assistance, the relevant apportionment should be indicated: Hutchinson v R [2014] NSWCCA 317 per Fullerton J at [31] citing LB v R [2013] NSWCCA 70 and R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415. Her Honour did not approach the matter in accordance with those authorities and in doing so failed to comply with s. 23(4) of the Sentencing Act. However, given the provisions of s. 23(6), her Honour’s failure in that regard does not invalidate the sentence she imposed.

2. [69]

   The terms of the applicant’s signed undertaking to give evidence were limited to giving evidence against the co-offender TL in respect of the offending in count 3. Although the applicant identified the other two co-offenders by name, there was no evidence before her Honour that such identification was in fact correct. Neither person, it seems, has ever been arrested. In these circumstances, her Honour’s observation (in the passage set out in [55] above) that the applicant had identified only one of his co-offenders in respect of count 3 was, strictly speaking, correct. Moreover, there was no assistance rendered by the applicant in terms of identifying, or agreeing to give evidence against, any of those involved with him in the offending which was the subject of count 1 or count 2.

3. [70]

   The real issue which arises in respect of this ground is whether the discount applied by her Honour was appropriate in all of the circumstances. This Court has previously observed that it would be exceptional for a discount of more than 40 per cent to be given in respect of a plea of guilty and assistance absent evidence that the offender will serve the sentence in more difficult conditions than other prisoners because of the assistance given: R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151. It has also been observed by this Court that a combined discount for plea and assistance should not normally exceed 50 per cent and that a discount exceeding that amount should normally be reserved for cases which are regarded as exceptional: SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249. In SL v R [2015] NSWCCA 30 Davies J, having cited the decisions in Sukkar and SZ observed (at [44]) that it is not exceptional for an applicant simply to provide information on the identity of a co-accused or even to give evidence against a co-accused. His Honour observed that such assistance often results in an offender requiring protective custody but that such hardship is inherent in the offer and the discount that results. In any event, as I have observed, there was no evidence in the present case that the applicant’s conditions of custody were rendered more harsh as a consequence of his assistance. These authorities recognise that the discount for plea and assistance must not be such as to result in the imposition of a sentence which is unreasonably disproportionate to the nature and circumstances of the offence: Hutchinson (supra).

4. [71]

   In the present case her Honour found that there was no evidence that the applicant’s conditions of custody would be rendered harsher as a consequence of his assistance. Notwithstanding that, the discount applied by her Honour was in excess of the 40% referred to in Sukkar. Viewed in that light, the discount is a generous one. So much was conceded by counsel for the applicant in oral argument.

5. [72]

   To the extent that the applicant’s submissions relied upon the application of the principles in Ellis, no such submission was ever put to the sentencing judge. It is not open for a party to come to this Court and assert error on the part of a sentencing judge based upon a failure to take a particular course which the judge was never asked to take. Generally speaking, a party is bound by the manner in which the case is conducted at first instance: Zreika v R [2012] NSWCCA 44 at [80] and [82] per Johnson J.

6. [73]

   The applicant’s assistance, whilst obviously valuable, was limited. There was, as I have indicated, no evidence which suggested that his conditions of custody were rendered more onerous as a result. In my view, given these circumstances, the discount applied by her Honour was, to say the least, generous.

7. [74]

   Ground 6 is not made out.

The evidence

1. [75]

   When interviewed by police on 22 January 2013, the applicant was asked:

2. [76]

   In a second interview conducted on the same day the applicant was asked the following questions about what he did in the period leading up to the offending:

The findings of the sentencing judge

1. [77]

   In the course of the sentence proceedings, the applicant’s solicitor submitted that the principles in R v Fernando (1992) 76 A Crim R 58 were directly applicable. In the course of doing so, and in the context of the applicant’s upbringing, her Honour noted (at T19 L 15) that “there was alcohol”. The applicant’s solicitor then continued:

2. [78]

   The applicant’s solicitor then addressed further matters in the course of which her Honour said (T19 L27):

3. [79]

   It was not put to her Honour that the applicant’s intoxication at the time of his offending was of any significance on sentence. It was also not put to her Honour that she should take such intoxication into account on sentence, or make a particular finding about it. As outlined above, the submissions made to her Honour were restricted to pointing out that the applicant was brought up in an environment where alcohol was regularly (and excessively) consumed by members of his family.

4. [80]

   Having outlined the circumstances of the offending in count 3, and having made reference to the fact that the applicant had made admissions in relation to that offending, her Honour said (at ROS 3):

5. [81]

   Further, at ROS 6, her Honour said:

Submissions of the applicant

1. [82]

   It was submitted that the statements made by the applicant when he was interviewed constituted evidence that at the time of his offending he was intoxicated to a degree which was far greater than that for which her Honour allowed. It was submitted that the sentencing judge did not, at any stage, make any finding about the applicant’s intoxication, nor did she state that she had considered whether or not it was a factor that ought be taken into account. It was submitted by failing to take that factor into account, the sentencing judge had failed to properly consider the principles in Fernando and that as a consequence, her sentencing discretion had miscarried.

Submissions of the Crown

1. [83]

   The Crown submitted that even when the evidence was taken at its highest, the references to the applicant’s intoxication were “passing at best” and were equivocal as to his actual state of intoxication at the time of the offending. It was submitted that the applicant’s level of intoxication could be properly gauged by the fact that he was able to sufficiently recall them when interviewed some weeks later. It was submitted that this, along with his apparent capacity to be able to drive the vehicle away from the scene of the offending in count 3, tended against the conclusion that he was intoxicated to any significant degree.

2. [84]

   Counsel for the Crown also pointed out that the issue of intoxication was not the subject of any submission on sentence, other than in the context of the judgment in Fernando to which her Honour referred. In these circumstances, it was submitted that there was no error in the way in which her Honour dealt with the matter.

Consideration

1. [85]

   The submissions advanced in support of this ground complained that her Honour failed to make a finding about the applicant’s intoxication at the time of the offending, and failed to find that such intoxication was relevant on sentence. The sentencing judge was not asked to make either finding. The observations of Johnson J in Zreika are again applicable.

2. [86]

   What was put to her Honour on sentence was that the principles in Fernando applied. Her Honour accepted that submission and expressly stated that such principles applied. There is no reason to conclude that her Honour did not approach sentence in accordance with these statements.

3. [87]

   Ground 7 is not made out.

The findings of the sentencing judge

1. [88]

   Having dealt with the facts of the matter, her Honour turned to consider the issue of objective seriousness (commencing at ROS 4):

2. [89]

   Her Honour then proceeded to deal with the applicant’s subjective case. At the time of the offending in counts 1 and 2 the applicant had just turned 18 years and by the time of the offending in count 3 he had just turned 20. Her Honour noted his criminal history and the fact that it contained a number of offences of a similar kind before stating (at ROS 5):

3. [90]

   Tendered to the court on sentence was a report of Allan Anderson, a Psychologist who had assessed the applicant. He reported that the applicant had provided a history of his mother having left his family when he was a baby and that he remained along with “about nine siblings” with his father. The applicant did not report being subjected to “much” physical abuse whilst growing up. He left school in Year 9 and had not worked since that time. Thus, the applicant had been unemployed from about the age of 15 to the age of 21. The applicant reported that he had started to drink alcohol at about the age of 15, and also stated that he started using cannabis at that time. Those matters were described as “usual in that family and in that local area”.

4. [91]

   Testing administered by Mr Anderson indicated that the applicant showed no inclination on the part of the applicant towards violent behaviour, and no evidence of anxiety or stress. Mr Anderson said (at p. 3 of his report):

5. [92]

   It must be noted that nowhere in Mr Anderson’s report is there a reference to any history provided by the applicant as to his use of alcohol or drugs at the time of any of the offending. Moreover, Mr Anderson did not diagnose depression. His references to the applicant having been under the influence and in a “deep depression” at the time of his offending were apparently based solely upon the history provided by the applicant. They are deserving of little weight in the circumstances.

6. [93]

   Having summarised Mr Anderson’s report, her Honour concluded (as previously noted) that the principles enunciated in Fernando clearly applied in light of the applicant’s Aboriginal heritage and the deprived circumstances in which he was brought up, both within his immediate family and within the broader community group.

7. [94]

   Her Honour concluded that the offending, and particularly the offending in count 3, attracted application of principles of general and specific deterrence. She concluded (at ROS 7):

Submissions of the applicant

1. [95]

   In submitting that the sentences, both individually and overall, were manifestly excessive, counsel for the applicant turned firstly to the objective seriousness of the offending. He submitted that such objective seriousness was properly summarised as follows:

2. [96]

   Counsel for the applicant also relied on the following additional matters in support of the conclusion that the sentences were manifestly excessive:

Submissions of the Crown

1. [97]

   The Crown submitted that in order to establish this ground it was incumbent upon the applicant to establish the sentences were unreasonable or plainly unjust. It was submitted that the unreasonableness or the unjustness of the sentence must be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Kendall v R [2015] NSWCCA 13 at [47].

2. [98]

   The Crown submitted that the sentences imposed on the applicant were not manifestly excessive having regard to the following factors:

Consideration

1. [99]

   In my view, the submissions of counsel for the applicant tend to understate the seriousness of the applicant’s offending.

2. [100]

   The offending in count 1 reflected steps having been taken by the applicant and his co-offenders to hide their identity. That was a clear indication of some degree of planning. The applicant was responsible for breaking into the premises by engaging in the violent act of throwing a brick through the rear entrance. Thankfully, because of the time at which the offending took place, no member of the public was placed in any danger. Once inside, the applicant proceeded to engage in further violence by smashing the front refrigerator door for the purposes of stealing quantities of alcohol.

3. [101]

   The gravamen of the offending in count 2 was that that the applicant allowed himself to be carried in a stolen conveyance, knowing that it had been stolen. The fact that the use of the stolen conveyance may have been limited to use within the confines of an Aboriginal mission does not, in my view, significantly mitigate the offending.

4. [102]

   The offending in count 3 was in the nature of what is generally described a home invasion. Its seriousness is self-evident, as is the fear which would have been engendered in the two occupants of the home.

5. [103]

   Quite apart from the objective seriousness of the offending, the complaint of manifest excess also tends to overlook the fact that the applicant’s offending was committed against a background of a substantial criminal history for offending of this nature. Notwithstanding the applicant’s relative youth and his background, both of which her Honour took into account, considerations of general and personal deterrence were of obvious significance in determining an appropriate sentence.

6. [104]

   The applicant was the beneficiary of a generous discount for his plea and assistance. He was also the beneficiary of a finding of special circumstances which resulted in a substantial variation being made to the length of the non-parole period.

7. [105]

   In all of these circumstances I am unpersuaded that the sentences are manifestly excessive, in the sense of being unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.

ORDERS

1. [106]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.