Kamali v R

1. [1]

   SIMPSON AJA: On 4 October 2016 the applicant was arraigned in the District Court on an indictment that contained seven counts. He entered a plea of not guilty to each. A jury was accordingly empanelled and a trial proceeded. On 17 October 2016 the jury returned verdicts of guilty on all counts. On 16 March 2017 the applicant was sentenced to an aggregate term of imprisonment of 10 years commencing on 6 October 2016 with a non-parole period of 6 years which will expire on 5 October 2022.

2. [2]

   The applicant now seeks leave to appeal against both the convictions and the sentence.

The indictment

1. [3]

   The counts on the indictment were:

The Crown case

1. [4]

   The offences charged may be divided into two groups, in respect of which the Crown case was as follows.

2. [5]

   During the afternoon of 20 June 2013 the applicant, accompanied by a woman (Ms Lyndall Robson), attended a residence in Pendle Hill. The owner of the residence, Mr Yogesh Leelchand, was overseas. The premises were occupied by Mr Leelchand’s nephew, Mr Nishinth Konchady. The applicant told Mr Konchady that he (the applicant) was owed money by Mr Leelchand. The applicant threatened Mr Konchady that, if he did not hand over money to the applicant “my boys” would do harm to Mr Leelchand or his property. He demanded $2,500.

3. [6]

   Although Mr Konchady said he knew nothing of any debt, the applicant drove him in the applicant’s car to an ATM, where Mr Konchady withdrew $800 (his daily limit). This gave rise to Count 1 on the indictment. The applicant said that he would return after midnight so that Mr Konchady could withdraw another $800. Mr Konchady then offered to make the transfer electronically and did so in the amount of $1,500. This gave rise to Count 2 on the indictment. Mr Konchady subsequently cancelled the transfer.

4. [7]

   A Toyota Camry, the property of Mr Leelchand, was parked in front of the premises. As he left, the applicant took the ignition keys for the vehicle and asked Mr Konchady for the registration papers, which Mr Konchady could not locate. Mr Konchady then deflated all the tyres on the Camry.

5. [8]

   Before he left, the applicant warned Mr Konchady not to inform police. Nevertheless, after speaking to his uncle, Mr Konchady did report the incident.

6. [9]

   The following day (21 June) Mr Konchady installed locks on the gates to the premises, but these were removed during his absence on that day. The registration plates on the vehicle were also removed.

7. [10]

   Four days later (25 June) the applicant returned to the premises, with another man, in a “technician’s” (mechanic’s) vehicle and attempted, unsuccessfully, to start the Camry by installing a new battery. On 29 June the applicant returned again, this time with a tow truck. He and the truck driver began to load the Camry onto the tow truck. As they were doing so, police arrived, having been called by Mr Konchady. The applicant ran away. The attempt to remove the vehicle gave rise to Count 3 on the indictment.

8. [11]

   The applicant was arrested and identified by police. As a result, a search warrant was executed at the applicant’s home on 4 July 2013.

9. [12]

   Located in the course of the execution of the search warrant were (as recorded in the indictment) a pipe bomb, a converted butane canister, and two improvised explosive devices, each being a weapon possession of which, without a permit, is prohibited under the Weapons Prohibition Act.

The trial

1. [13]

   The following is confined to evidence given in the trial to which it is necessary to refer for the purposes of the appeal against conviction.

2. [14]

   In relation to Counts 1-3, the principal Crown witness was Mr Konchady. Mr Konchady gave an account of the events summarised above. He said that, for the purposes of the electronic transfer of funds, the applicant gave him bank account details, and the name “Benjamin Kamali”. Exhibit B was a bank record documenting the transaction. Of the events concerning the attempted theft of the motor vehicle, Mr Konchady said that, on 25 June, he was at home studying for an examination when he became aware of the presence in the front of the house of two men, one of whom he identified as the man who had come to the house four days earlier. The men appeared to be trying to charge the battery of the Camry. Using the video facility on his telephone, he recorded what the men were doing. One of the men in the video was the applicant.

3. [15]

   The Crown called a number of other witnesses, to whose evidence it is not necessary, for present purposes, to refer. One witness whose evidence is relevant for that purpose is Ms Tracey Bain. Ms Bain said that she had known the applicant “for a couple of years now”, and had, on occasions in the middle of 2013, stayed at his house over a period of days. She was asked about her knowledge of the explosive devices located in the house. The transcript records the following evidence in chief:

4. [16]

   In cross-examination Ms Bain agreed that, at the time she was “a heavy ice user”, and that, consequently, her memory of events was very poor. She agreed that she might have been mistaken in saying that the applicant was involved in the manufacture of one of the devices.

5. [17]

   Counsel then turned to the subject of theft by Ms Bain of money and a motor vehicle that belonged to the applicant, something she admitted having done. Counsel approached this issue in this way:

6. [18]

   The applicant did not give or call any evidence. At the commencement of his final address, counsel outlined for the benefit of the jury the issues for determination. With respect to Counts 1 and 2, he did not attempt to challenge the evidence that the applicant had been present at Mr Konchady’s house or that he had received money from him. His submission was:

7. [19]

   With respect to Count 3, he submitted that the applicant had consent from “the apparent owner of the car” and that the Crown had failed to prove that the lawful owner did not give consent. With respect to the Weapons Prohibition Act counts, his argument was that the Crown had failed to prove beyond reasonable doubt that the items were in the possession of the applicant.

8. [20]

   Obviously, by the verdicts the jury rejected all of these submissions.

The appeal against conviction

1. [21]

   By s 5(1)(a) of the Criminal Appeal Act 1912 (NSW) a person convicted on indictment may appeal (as of right) to this Court on any ground which involves a question of law alone; and, by sub-s (1)(b), with the leave of the Court, on any ground which involves a question of fact alone, a question of mixed law and fact, or “any other ground which appears to the court to be a sufficient ground of appeal”. By s 6 the court is to allow the appeal if of the opinion that the verdict of the jury should be set aside on any of a number of grounds. The grounds are:

2. [22]

   The Notice of Appeal initially identified three grounds of appeal, as follows:

3. [23]

   The reference in par 2 to “Rule 4” is a reference to r 4 of the Criminal Appeal Rules, which is in the following terms:

4. [24]

   The apparent concession made in par 2 that r 4 applies to Ground 1 is curious, and reveals a misunderstanding of r 4. How failure to take any point arising from the alleged incompetence of counsel can be a failure to take objection to any “direction, omission to direct or decision as to the admission or rejection of evidence” is not at all clear to me. In respect to the ground alleging incompetence of counsel, r 4 is irrelevant. What became clear was that the incompetence alleged lay in the failure of counsel to take certain points.

5. [25]

   By leave granted during the course of the hearing of the appeal, on behalf of the applicant a document entitled “Amended Grounds of Appeal” was filed. It is in the following terms:

6. [26]

   None of the grounds identified involves a question of law alone. The applicant does not, therefore, have a right of appeal under s 5(1)(a). Nor does any of the grounds as stated raise any question of fact or of mixed law and fact. Rather, they rely upon “any other ground whatsoever”, in s 6 of the Criminal Appeal Act, by which the court “must” allow an appeal if satisfied that there has been a miscarriage of justice. The applicant requires leave to appeal against the convictions.

7. [27]

   The fundamental proposition stated in Ground 1 of each document is that the applicant was incompetently represented at trial, and that the incompetence resulted in a miscarriage of justice. Grounds 2, 3 and 4, as reformulated in the Amended Grounds of Appeal are, essentially, particulars of Ground 1. The applicant’s contentions of incompetence were further particularised in the written submissions as:

8. [28]

   Central to the appeal against conviction was the claim that the trial had been conducted by defence counsel incompetently, such as to give rise to a miscarriage of justice.

9. [29]

   Three separate aspects of the trial were said to evidence such incompetence. They relate to:

10. [30]

    Before turning to the three specific instances of alleged incompetence, it is useful to make some general observations.

11. [31]

    At least since the decision of this Court in R v Birks (1990) 19 NSWLR 677 it has been clear law that “flagrant incompetence” in the manner in which a trial has been conducted by counsel might give rise to a miscarriage of justice within the meaning of s 6 of the Criminal Appeal Act. The circumstances in which that principle has been invoked are many and various. But the cases in which it has been successfully invoked are few in number. That is because, as the following review will demonstrate, the proper subject for examination is not the conduct of counsel, but its consequence. The available ground of appeal is not that counsel was incompetent, but that a miscarriage of justice occurred. That reflects the language of s 6 of the Criminal Appeal Act. A miscarriage of justice might be explained by the incompetence of counsel, if that is established. But incompetence of counsel in the conduct of a trial does not, of itself, establish a miscarriage of justice.

12. [32]

    In considering a ground of appeal based on the asserted incompetence of counsel, it is necessary to bear in mind some underlying features of the system of justice under which courts operate.

13. [33]

    In Birks, Gleeson CJ (with whom McInerney J agreed) began his consideration of the circumstances in which counsel incompetence might be found to warrant setting aside a verdict of guilty by emphasising the role of counsel in the adversarial system under which litigation, both criminal and civil, is conducted in NSW. Counsel have a wide discretion as to the manner in which the litigation is conducted, the discretion extending to matters such as the witnesses to be called, the questions to be asked either in chief or in cross-examination, the evidence to be adduced, and the lines of argument to be pursued or abandoned. The client is bound by the decisions made in the exercise of these discretions.

14. [34]

    Gleeson CJ extracted from decided cases the following three principles.

15. [35]

    In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, McHugh J described the role of counsel as “in effect the party’s agent” (at [74]). For that reason, an appellant seeking to establish miscarriage of justice by reason of counsel incompetence “carries a heavy burden”. The burden is to establish that what is characterised as incompetence caused a miscarriage of justice.

16. [36]

    What was alleged to be incompetence in TKWJ was the failure of trial counsel to seek an advance ruling as to the admissibility of certain evidence that the Crown proposed to call in rebuttal in the event that, as he proposed, counsel called character evidence relating to TKWJ.

17. [37]

    Gleeson CJ restated the approach he had taken in Birks (see, for example [8]). He then said:

18. [38]

    Gaudron J might be seen to have taken a different approach. Her Honour said:

19. [39]

    Hayne J agreed with Gleeson CJ that the relevant question was whether there could be a reasonable explanation for the decision (at [112]).

20. [40]

    McHugh J posed two questions for consideration:

21. [41]

    All members of the Court agreed that the critical question is whether miscarriage of justice has been shown.

22. [42]

    These principles have been restated by the High Court in two decisions since TKWJ: Ali v The Queen [2005] HCA 8, (2005) 79 ALJR 662 and Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301. Nudd is, perhaps, on its facts, the most extreme example of the application of the principles. That was a case in which the incompetence of counsel, to a significant degree, was accepted. Mr Nudd was charged with being knowingly concerned in the importation by ship into Australia of a substantial quantity of cocaine. At trial he was represented by counsel who had no experience of conducting a major criminal trial, and whose instructing solicitor was similarly inexperienced. Counsel proceeded under a fundamental misapprehension of the elements of the offence (see [143]); neither counsel nor the solicitor took a statement from Mr Nudd (at [144]); counsel made concessions concerning Mr Nudd’s knowledge of the cargo of the ship; and, in his address to the jury, he accepted (without instructions) that it was Mr Nudd’s voice on tape recordings that were in evidence. Callinan and Heydon JJ considered that counsel’s conduct of the case:

23. [43]

    Notwithstanding the manifest inadequacies of representation the Queensland Court of Appeal and the High Court unanimously dismissed the appeal, holding that no miscarriage of justice had been demonstrated. Reading the judgments in the High Court demonstrates that the strength of the Crown case was seen as a significant factor in limiting the adverse impact of the inadequacies of representation.

24. [44]

    Birks was one of small number of cases in which the application of the principles resulted in the jury verdict being set aside and a new trial ordered. In that case, inexperienced counsel omitted (in a trial of multiple charges of sexual offences) to cross-examine the complainant on factual matters critical to the defence, resulting in adverse comment being made by both the Crown prosecutor and the trial judge when Mr Birks gave evidence on those matters. It was held (by all members of the Bench) that Mr Birks had not received a fair trial – that is, that a miscarriage of justice had occurred.

25. [45]

    Another case that resulted in a jury verdict being set aside was Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576. Mr Seymour was charged with an offence of kidnapping, and one of being armed with an instrument with intent to commit an indictable offence (assault); the victim of each was alleged to have been a woman who had accused him of child molestation. Counsel did not object to evidence of the complainant in which she said that Mr Seymour had told her that he had just got out of gaol five days earlier. Counsel quite deliberately introduced into evidence details of Mr Seymour’s criminal record. He elicited from a police witness evidence that Mr Seymour had a lengthy record, which was confined to “property related offences” and assault (although there was an unspecified record in another state).

26. [46]

    The decision by counsel to adduce this evidence was a deliberate and considered one. The point he sought to make by the disclosure of the evidence was that Mr Seymour had no record of “violent behaviour against women”. In cross-examination of a police witness, and in final address, counsel placed “extraordinary emphasis” on Mr Seymour’s record and character.

27. [47]

    Hunt AJA (with whom Rothman J and I agreed) said:

28. [48]

    A miscarriage of justice was, accordingly, established.

29. [49]

    In Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 Macfarlan JA reviewed the decisions in cases in which incompetence of counsel had been raised as a ground of appeal. From that review, he drew four principles:

30. [50]

    What indisputably underlies all these decisions is that the determinative factor is that a miscarriage of justice be demonstrated.

31. [51]

    As indicated above, reliance is placed on three separate features of the trial: failure to apply for separate trials of the two categories of offences; failure to object to certain questions asked of a Crown witness or alternatively, to seek discharge of the jury or specific directions as to the use to be made of the evidence; and asking a question premised upon, and eliciting, the fact that the applicant had been in custody. It is necessary to deal with each in turn.

32. [52]

    Section 29 of the Criminal Procedure Act 1986 (NSW) relevantly provides:

33. [53]

    For the purposes of the appeal, the Crown relied on affidavit evidence of the applicant’s legal representatives at trial. Defence counsel deposed that the legal representatives had advised the applicant that an application for separate trials of the two groups of offences ought to be made, but that the applicant was strongly resistant to that course and wished all matters to be finalised without delay. That evidence was not disputed. However, it was argued that the legal representatives were not bound, with respect to the conduct of the trial, by the instructions of the applicant, but were both entitled and obliged to make independent decisions with respect to such matters. That counsel had a wide independent discretion in the conduct of the trial is established by the authorities referred to above. Whether that discretion extended to applying, contrary to firm and clear instructions by the applicant, for separate trials is another question.

34. [54]

    It is plain, from the undisputed affidavit evidence of trial counsel, that the applicant consented to the joint trial of the offences and that s 29(1)(a) is satisfied. Nevertheless, on appeal, counsel submitted that the failure of counsel to seek an order for separate trials constituted incompetence such as to have caused a miscarriage of justice. Reliance was placed on the judgment of Brennan J (as he then was) in Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5.

35. [55]

    Mr Sutton was charged in South Australia with the rape or attempted rape of three different victims. An application for separate trials was refused on the basis that the evidence in support of the charges in respect of each victim was admissible in the trial of the charges in respect of each other victim, on the then applicable principles relating to what was known as “similar fact” evidence, stated in Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75.

36. [56]

    The relevant procedural legislation (s 278 of the Criminal Law Consolidation Act 1935 (SA)) provided for joint trials of multiple charges if the charges were “founded on the same facts, or form or a part of a series of offences of the same or a similar character”. Sub-section (2) reserved to the court the power to direct separate trials if of the opinion that the person accused may be prejudiced or embarrassed in his defence by reason being charged with more than one offence in the same information, or that, for any other reason, it was desirable to direct separate trials.

37. [57]

    In the course of considering that appeal, Brennan J made some general observations concerning joint trials. Since these were heavily relied upon on behalf of the applicant, I set them out in full:

38. [58]

    Here, there is no reason to suppose that, had separate trials been held, evidence in relation to the weapons charges would have been admissible in proof of Counts 1-3, or vice versa. I would therefore accept that there was at least a reasonable prospect that, had an application for separate trials been made, it would have met with success.

39. [59]

    I would also accept that the applicant suffered, or potentially suffered, some prejudice as a result of the charges being tried jointly. If the jury were in any doubt about the applicant’s guilt on the first group of charges, it may be inferred that they would, at the least, draw comfort from the evidence on the prohibited weapons charges. And if they were in doubt about the applicant’s possession of the weapons, it may be inferred that they would have drawn comfort from the evidence of his dealings with Mr Konchady.

40. [60]

    I accept, of course, as explicitly stated by Gleeson CJ in Birks and by McHugh J in TKWJ, that counsel’s discretion as to the conduct of a trial is broad. Whether, in this case, counsel would have been within his rights to override the applicant’s plainly expressed wish for a joint trial could be a difficult question, but is not presently to the point. In my opinion counsel, having given appropriate advice, was entitled to act on those plainly expressed wishes to proceed with a joint trial. It is not for the applicant now to complain that counsel did not override his firm instructions. Counsel was entitled to respect the autonomy of the applicant in decision making, providing that he had received appropriate advice.

41. [61]

    I do not, therefore, consider that for counsel to proceed with the trial as he did was indicative of incompetence. The applicant having not only consented, but urged, that all charges proceed in a joint trial, it cannot then be said that a miscarriage of justice occurred.

42. [62]

    I have set out above (at [15]) the evidence in chief led from Ms Bain on this topic. Counsel did, unsuccessfully, object to the first question, citing its vagueness as the reason. The objection was overruled. He did not further object to the subsequent questions.

43. [63]

    The complaint now made is that, having failed in his initial objection, he ought to have sought a discharge of the jury or, as a last resort, ought to have sought specific directions in relation to the use that could be made of it.

44. [64]

    In my opinion, the questions were objectionable, and the ruling was wrong. The objection that appears in the transcript was to the “vagueness” of the evidence, but counsel was cut off before he could complete what he was saying. The issue in relation to Counts 4-7 was the applicant’s possession of the items. His purpose in possessing the items (if possession were proved) was not relevant to the charge. Far less was Ms Bain’s purpose in possessing, or being party to the possession, of the items. The answers given by Ms Bain, indicating a preparedness, if not an intention, to use the weapons in criminal activity, were no doubt damaging. There was, however, no ground of appeal that asserted the wrongful admission of evidence, or the wrongful rejection of counsel’s objection.

45. [65]

    Counsel had taken objection which failed. There would have been no point in seeking discharge of the jury on the basis of the evidence given; such an application would certainly have met with the same result as the objection.

46. [66]

    On behalf of the Crown it was submitted that there was “clearly a rational explanation available for” the failure of counsel to object further than he did. The “rational explanation” proposed appears to be (as was conceded by counsel for the applicant) that the evidence was relevant to establish the applicant’s possession of the devices.

47. [67]

    I do not accept that. I do not accept that evidence of Ms Bain’s speculation about the proposed use of the devices went any way to establish possession by the applicant.

48. [68]

    A more substantial point made on behalf of the Crown, and one which also answers the third proposition in the written submissions (asserted failure to seek specific directions) is to be found in the directions actually given.

49. [69]

    In the course of the summing up the trial judge referred to the evidence of Ms Bain, and also evidence given by Ms Robson (who had accompanied the applicant to Mr Konchady’s home). Of those two witnesses his Honour said:

50. [70]

    The reference to the Crown position was drawn from the final address of the Crown prosecutor who explicitly described both Ms Bain and Ms Robson as unreliable witnesses. She reminded the jury of Ms Bain’s evidence of drug use.

51. [71]

    Although, in my opinion, that the evidence was allowed to be given was unfortunate, I do not think that it could, in the circumstances, have resulted in a miscarriage of justice.

52. [72]

    The final instance of alleged incompetence lay in the cross-examination of Ms Bain in which counsel specifically disclosed that the applicant had been “in custody”. It is impossible to attribute any rational forensic purpose to that question, and counsel acknowledged, in his affidavit, that the subject of Ms Bain’s defalcations could have been introduced without reference to the applicant’s incarceration.

53. [73]

    In my opinion that question displayed a level of ineptitude that cannot be explained by any rational decision making. I am unable, however, to take the further step and conclude that the ineptitude resulted in a miscarriage of justice. To reach that conclusion it would be necessary further to conclude that the applicant was deprived of a chance of acquittal that was fairly open to him: Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59. In TKWJ (at [26]) Gaudron J emphasised the word “fairly”.

54. [74]

    That calls for examination of the whole of the evidence in the trial.

55. [75]

    The applicant’s participation in obtaining money from Mr Konchady was beyond doubt. He gave his name and bank account details to Mr Konchady. It was never suggested that he had not obtained money from Mr Konchady. His response to the Crown case appears to have been that Mr Konchady provided him with the money willingly and without demur. As counsel indicated in the opening of his final address, the issue was whether the applicant had obtained the money by “menaces” or by threat. In cross-examination it was more than once put to Mr Konchady that the applicant had at no time threatened him, a suggestion that Mr Konchady repeatedly and firmly rejected. He said:

56. [76]

    At no time was any reason that Mr Konchady might voluntarily have handed to the applicant the sums of money that he did postulated. It was merely put that, without any threat or menace, Mr Konchady agreed to go with the applicant and Ms Robson to the ATM to withdraw money. The prospect of the jury accepting that, even as a reasonable possibility, is so remote as to be fanciful. That would have been the position whether or not counsel had disclosed that the applicant had a custodial history.

57. [77]

    Similarly, the count of attempted theft of the motor vehicle was virtually unanswerable. Police arrived as the applicant and the tow truck driver were attempting to load the vehicle onto the tow truck. The applicant attempted to flee.

58. [78]

    The same must be said of the four counts of possession of prohibited weapons. Those weapons were located in the execution of a search warrant on the applicant’s home. There was no evidence that any other person occupied the home.

59. [79]

    In these circumstances, following the approach of the High Court in Nudd, I am satisfied that no miscarriage of justice has been identified. I would therefore dismiss the appeal against conviction.

The application for leave to appeal against sentence

1. [80]

   As indicated above, the sentencing judge imposed an aggregate sentence of imprisonment for 10 years with a non-parole period of 6 years. In doing so, in accordance with s 53A of the Sentencing Procedure Act, he specified the sentences he would have imposed in relation to each individual offence were he to sentence separately. Only one ground of appeal against sentence is proposed – that the sentence is manifestly excessive.

2. [81]

   His Honour set out, in some detail, the facts he found based on the evidence in the trial. No complaint is made about the manner in which he did that.

3. [82]

   His Honour also recounted, again in some detail, the evidence of the applicant’s personal circumstances. No issue is taken with the manner in which he dealt with those circumstances. The relevant facts can therefore be outlined briefly.

4. [83]

   The applicant did not give evidence on sentence. He relied on three reports of a psychiatrist, Dr Allnutt. Dr Allnutt painted a powerful picture of a dysfunctional childhood and adolescence. The applicant was born in Iraq in 1984, of Kurdish ethnicity. Kurds were persecuted in Iraq. By the age of four the applicant was living in Iran. At that age, he witnessed his father kill his mother by stabbing her and slitting her throat. His father subsequently remarried. In 1994, when the applicant was 10, the family came to Australia as refugees. His father was abusive and controlling. From the age of 13 the applicant suffered from anxiety. He eventually turned to drugs. He used methamphetamine. Indisputably, the applicant’s personal history has influenced, adversely, his adaptation to life in Australia.

5. [84]

   He was 29 years of age at the time of this offending. By then, he had a significant criminal record to which the sentencing judge referred in detail.

6. [85]

   In assessing the objective seriousness of Counts 1-2, the sentencing judge took into account that the offences were committed in the victim’s home, for financial gain, and were planned and organised. He declined to take into account as an aggravating factor that the offences were accompanied by threats of violence, holding that that was “part of the overall factual matrix”. He concluded that the offences were in the middle of the range of objective seriousness.

7. [86]

   The argument presented in support of the appeal was that, in arriving at the indicative sentences the sentencing judge overstated the objective seriousness of the offences. It was submitted that the offences the subject of Counts 1-2, carrying a maximum penalty of imprisonment for 10 years, should be seen in the light of offences of armed robbery, which, by s 97 of the Crimes Act carry a maximum penalty of imprisonment for 20 years. Reliance was placed on the decision of this Court in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, in which this Court promulgated, as a guideline, that sentences for offences against s 97 should normally fall into the range of 4 to 5 years fulltime (at [165]).

8. [87]

   On behalf of the applicant it was therefore argued that an indicative sentence of 6 years for Counts 1-2, was manifestly excessive, and that this infected the aggregate sentence imposed.

9. [88]

   One difficulty with the proposition is that it overlooks the circumstances to which the Henry guideline was directed. Spigelman CJ set out seven features of the category of case to which the guideline of 4 to 5 years was intended to apply. The features are:

10. [89]

    As can be seen, the applicant does not readily fit that profile. He could not be called a “young offender”, and certainly he could not be said to have had little or no criminal history. There was more than a limited degree of planning involved in the offences constituting Counts 1-3. The amount taken, particularly in relation to the first offence, and that sought to be taken in relation to the second, could not be said, in the circumstances, to be “small”. He did not plead guilty.

11. [90]

    I do not accept that the sentences indicated in relation to Counts 1-2 were manifestly excessive.

12. [91]

    It was then argued that the offence constituting Count 3 (attempting to steal the motor vehicle) was “persistent but not sophisticated” and was “unremarkable” and that a sentence of 5 years would be outside the legitimate range available (the maximum being 10 years). Again, I cannot agree. The applicant made significant preparations for the theft of the vehicle, over a number of days, attempting to take registration papers and returning to the premises, first with a mechanic, and then with a tow truck, in order to take the vehicle away. It was a serious offence of its kind.

13. [92]

    The sentencing judge found that the weapons offences were within the middle of the range of objective seriousness; it was submitted that “the appropriate finding” was that they were at the lower end of that range, and that a sentence of 5 years would be outside a legitimate range.

14. [93]

    Once again, I do not agree. In this case the sentencing judge was required to have regard, not only to the maximum prescribed sentence, but also to the standard non-parole period of 3 years.

15. [94]

    Of course, the sentence in question is the aggregate sentence imposed. Reference was made to the indicating sentences in an effort to isolate some error of discretion. No such error has been established. Moreover, the aggregate sentence has to be seen in the light of the whole of the criminal conduct of the applicant. By reason of his lengthy criminal history he was not entitled to any leniency.

16. [95]

    It is true that the applicant made out a significant case on his personal circumstances. However, it was not suggested that inadequate attention was paid to those circumstances.

17. [96]

    I would grant leave to appeal against sentence but dismiss the appeal.

18. [97]

    The orders I propose are:

    1. (1)

       Appeal against conviction dismissed;

    2. (2)

       Leave granted to appeal against sentence;

    3. (3)

       Appeal against sentence dismissed.

19. [98]

    BELLEW J: I have had the advantage of reading in draft the judgment of Simpson AJA. I agree with her Honour’s conclusions, and the orders she proposes.

20. [99]

    CAMPBELL J: I have had the considerable advantage of reading the judgment of Simpson AJA in draft, with which I agree. Having reviewed the authorities to which her Honour refers and reviewed the matter in the light of them I too am of the view that no miscarriage of justice occurred notwithstanding the irregularities her Honour identifies in relation to grounds 3 and 4 of the amended grounds of appeal. I agree with her Honour for the reasons she gives that the exercise of the sentencing discretion by the learned primary judge did not miscarry. I agree with the orders proposed by Simpson AJA.