GRECO v REGINA

Criminal Assets Recovery Act 1990 LEGISLATION CITED: Criminal Assets Recovery Regulations 2000 Drug Misuse & Trafficking Act 1985

Regina v Brough [1995] 1 NZLR 419 CASES CITED : Regina v Kalache [2000] NSWCCA 2 Regina v Mangano [2006] NSWCCA 35 Regina v Reeves [2002] NSWCCA 33

PARTIES: Antonio GRECO v REGINA

COUNSEL: C: J Pickering A: Dr B Glennon

SOLICITORS: C: S Kavanagh A: D Cohen

IN THE COURT OF CRIMINAL APPEAL 2009/3342

BEAZLEY JA JAMES J HALL J

THURSDAY 25 NOVEMBER 2010 ANTONIO GRECO v REGINA Judgment 1 BEAZLEY JA: I agree with Hall J. 2 JAMES J: I agree with Hall J. 3 HALL J: The applicant, by application for leave to appeal dated 13 April 2010, seeks leave to appeal against a sentence imposed on him on 17 September 2009 by the District Court of New South Wales at Dubbo (Tupman DCJ) in respect of a charge pursuant to s.23(2) of the Drug Misuse and Trafficking Act 1985. 4 The Crown case was that the applicant knowingly took part in the cultivation of cannabis plants (9,995 plants in all) being not less than the commercial quantity for that plant. 5 Pursuant to s.33(3)(b) of the Act, the offence carries a maximum penalty of 20 years imprisonment and/or a fine of 5,000 penalty units. 6 It was noted in the Crown submissions that a large commercial quantity of cannabis plants in accordance with Schedule 1 of the Act is prescribed as 1,000 plants. 7 The applicant was sentenced to a non-parole period of 3 years and 3 months commencing on 16 September 2009, expiring on 15 December 2012 with a parole period of 2 years and 3 months. Accordingly, the overall term of imprisonment imposed by the sentence was the period of 5 years and 6 months commencing on 16 September 2009 and expiring on 15 March 2015.

Grounds 8 In the notice of grounds of appeal, the applicant set out the following grounds:- "1. The sentencing judge erred in sentencing (the applicant) in not reducing his sentence having regard to the fact that the appellant had already suffered a heavy monetary imposition in the sum of $407,084 as a result of action commenced by the NSW Crime Commission under the Criminal Assets Recovery Act. 2. The sentencing judge erred in not having regard to the issue of parity between the appellant and his co-offender, Mr Mangano. 3. The sentencing judge erred in not giving a greater discount for the aspect of rehabilitation/delay in the sentencing of the appellant." 9 The applicant is presently aged 55 years (dated of birth 23 February 1955). He entered a plea on 4 March 2009 at Dubbo Local Court.

Facts 10 In sentencing the applicant, the sentencing judge proceeded on the basis of a Statement of Agreed Facts. The statement dated 11 March 2009 was Exhibit A in the proceedings.

(1) The cannabis plantation 11 On 13 February 2003, police executed a search warrant at a property known as Terra Bella in Days Road, Dubbo. The police executing the warrant discovered a cannabis plantation on the property on which the 9,995 cannabis plants, the subject of the charge in question, were found growing in a small timbered valley under a broken canopy of trees in an area of about five acres. The plants were arranged systematically in rows and ranged in height from 0.6 of a metres to about one metre. There was an intricate watering system in place which fed each plant. The central line of the watering system ran to a dam about 700 metres wide. There were a number of tanks at the rear of the plantation. There was also a house on the property. Police located equipment some of which, at least, was adaptable for hydroponic growth. 12 Two offenders were arrested at the scene, Mr Joseph Severino and Michael Greco, the brother of the applicant. Another offender who fled, was arrested the following day. The fourth offender, Ignazio Mangano, was arrested in November 2003. 13 The agreed facts recorded that the crop had an estimated wholesale value of approximately $18.74 million. That estimate was based on a conservative yield estimate. 14 The applicant was not arrested until a considerable time after the discovery of the plantation. The sentencing judge accepted that he "disappeared for a period of time, about two years, and was not arrested until 12 February 2008" (remarks on sentence, p.2).

(2) The applicant's role 15 A finding was made, based upon the agreed facts, that the applicant played a significant role in the cannabis cultivation plantation. Her Honour accepted that he was a "major player in the operation". However, there was no evidence that he was the organising principal or a person who was heading the operation. Nonetheless, his role was found to be that of a major player, "at least at the intermediate level, if not above" (remarks on sentence, p.3). 16 The applicant's role was undertaken both in relation to the establishment and the continuation of the plantation. It included arranging for a dam to be built in May 2002, attending the plantation on a number of occasions, meeting the builder and paying $16,000 for the building of the dam. 17 The applicant was also found to have recruited some people to work on the plantation, although he was not the only one who undertook that role. 18 From time to time, he took equipment from his home in Sydney to be used at the property. On occasions when he went to the property, he undertook various tasks as detailed in the agreed facts. He remained at the property for a period of time in the start-up phase of the crop. He also used some of his own cash funds which he had accumulated, to apply to improvements on the property and to buy materials used in connection with the establishment and maintenance of the cannabis plants. 19 The applicant also attended a generator supply business in the company of his co-offender, Mr Mangano, in August 2002. He there organised a quote for the equipment purchased and, in due course, paid the provider over $16,000 in cash. In addition, in September and November 2002, he hired a digging machine from a business in Dubbo. 20 Towards the end of 2002, he placed orders with a local business for irrigation equipment in an amount exceeding $15,000 which was used on the plantation. He made a $5,000 deposit on one such order. 21 In late January, early February 2003, in company with another, he attended a local timber yard to buy timber which was used to construct the drying racks found in the shed at the property. 22 The sentencing judge found that the only inference available was that the applicant was involved in the offence for financial gain. The evidence, however, did not establish exactly or even approximately how much he was to gain had the plantation gone to harvest and distribution. The sentencing judge observed that the estimated wholesale value of the crop at less than $19 million, however, meant that a reasonable inference could be drawn that he stood to make a significant financial gain as a result of his involvement in the offence.

(3) The applicant's arrest 23 An arrest warrant was issued for the applicant's arrest in April 2003. However, all attempts to locate him up until November 2003 were unsuccessful. 24 The sentencing judge observed that it appeared that after November 2003, there were fewer active steps taken to locate him but that the arrest warrant remained in force. 25 Her Honour accepted evidence, including that given by the applicant's step-daughter, that the applicant "disappeared" in part because of the shame he felt when he realised the property had been discovered and also by reason of the fact that his role in it was uncovered. The shame was said to have arisen from the applicant having committed so significant a criminal offence as well as the shame that that had brought to his family. 26 The sentencing judge, however, also stated that it would be naïve not to accept that part of his reason for "disappearing" for two years was due to an attempt to avoid apprehension. In the intervening period until about 2005, "he lived an itinerant lifestyle, living in his car and becoming dishevelled and the like" (remarks on sentence, p.5). 27 In 2005, the applicant returned to his family. By that time, he had lost a significant amount of weight and appeared dishevelled and he had become a much quieter person. He immediately is said to have expressed shame, remorse and contrition for the impact on his family. 28 The applicant was not arrested until 12 April 2008 and then only because he was stopped for a random breath test. 29 There was no explanation in the evidence as to why it was that no efforts were taken between November 2003 and April 2008 to execute the arrest warrant. It was a matter that the sentencing judge considered in the context of the issue of "delay".

Ground 1: Proceedings pursuant to the Criminal Assets Recovery Act 1990 30 Ground 1 requires that both the relevant provisions of the Criminal Assets Recovery Act 1990 and the judgment and order of this Court (Latham J) on 6 September 2005 made on an application by the New South Wales Crime Commission ("the Crime Commission") receive detailed consideration. I will deal with the latter first

(1) The judgment on the application by the Crime Commission 31 The Crime Commission filed a summons 14 April 2003. It sought an order pursuant to s.27 of the Criminal Assets Recovery Act that the applicant pay to the Treasury an amount assessed by the Court "… as the value of the proceeds derived from the illegal activities of Antonio Greco that took place not more than six years prior to the making of the application" (Judgment, p.1) 32 Section 27(2) of the Criminal Assets Recovery Act provides that the Court must make such an order if it finds it more probable than not that the respondent was, at any time, not more than six years before the making of the application for the order engaged in serious crime-related activity. For the purposes of the application, the Crime Commission relied on serious crime-related activity involving an indictable quantity of cannabis. 33 It is necessary, in order to understand the submissions made on behalf of the applicant in relation to Ground 1 to note the matters that were required to be satisfied by the Crime Commission on the application heard and determined by Latham J. In that respect, there are three matters to be established:-

(1) In an application for an order under s.27(2) of the Criminal Assets Recovery Act the Court must determine what is the six year period specified in the section prior to the time of making of the application for the order. In the present proceedings, the six years was the period from 14 April 1997 to 14 April 2003 (the latter being the date of filing of the application).

(2) The Crime Commission was required to establish for the purposes of the application, on the balance of probabilities, that the applicant had engaged in a "serious crime-related activity" . So far as the present proceedings are concerned, an offence under s.23 of the Drugs Misuse and Trafficking Act falls within that description. The Crime Commission, in particular, relied upon the applicant's involvement in the offence charged under s.23 in respect of the cannabis plantation to satisfy this second condition. Latham J was satisfied on the evidence that the applicant was knowingly concerned in a serious criminal offence (the offence under s.23 of the Drugs Misuse and Trafficking Act ) and that he was therefore engaged in a serious crime-related activity involving more than an indictable quantity of a prohibited drug.

(3) There is a requirement to give the notice of the application as required by clause 5(2) of the Criminal Assets Recovery Regulations 2000 and this requirement had been satisfied. 34 It is important in analysing the submissions for the applicant to observe that the charge on the indictment brought against him under s.23 of the Drugs Misuse and Trafficking Act was relevant to satisfying the second matter referred to above. The order made under the Criminal Assets Recovery Act, however, was not an order involving the forfeiture of items used in the offence under s.23 of the Drugs Misuse and Trafficking Act with which the applicant was charged or any profits received from the offence. The plantation as at the date that the warrant was executed had not been harvested.

(2) The provisions of the Criminal Assets Recovery Act 35 The submissions for the applicant raised a number of matters arising from the decision of this Court in Regina v Kalache [2000] NSWCCA 2. In that case, the Director of Public Prosecutions appealed pursuant to s.5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent. The Director's challenge to the sentences was based upon the contention that they were inadequate. 36 It is unnecessary here to set out the full details in Kalache (supra) other than to record that the respondent there had pleaded guilty to six counts one of which involved an offence of manufacture of a prohibited drug and a number of other offences involved the supply of prohibited drugs (including methylamphetamine, cocaine and cannabis leaf). 37 The evidence before the sentencing judge established that the respondent was "… the lynch-pin of a well organised, high-volume and high-profit drug trafficking network …" (at [6]). 38 An issue in Kalache (supra) was the significance or otherwise in the sentencing of the respondent of his co-operation with the Crime Commission resulting in an order for the forfeiture of substantial assets. The respondent consented to the forfeiture at an early stage of the confiscation proceedings. It was submitted for him that he was properly entitled to a discount in any sentence otherwise appropriate, as an acknowledgement of the utilitarian purposes served by his co-operation with the Crime Commission. 39 In order to test the submission in that case, Sully J (with whom Hidden J agreed) considered the provisions of and policy behind the Criminal Assets Recovery Act. In the course of his decision, Sully J referred to the decision of the Court of Appeal in New Zealand in Regina v Brough [1995] 1 NZLR 419. In that case, reference was made to comparable legislation concerning the confiscation of assets. The Court noted that the policy of the New Zealand Act was two-fold. First, a person who had engaged in criminal activity should be required to "disgorge his or her ill-gotten gains". The Court observed:- "… Requiring these to be paid cannot in any way be regarded as a penalty. Rather, it is simply a recognition that the law should not permit a person to retain the profits of criminal activity." 40 The Court then referred to a second policy reason in the following terms:- "… it empowers the Court to forfeit property used to facilitate the Commission of the offences. That too is not for reasons of penalty or punishment, but rather in recognition of the principle that persons who use property to commit crimes should be liable to have that property forfeited …" 41 The New Zealand Court of Appeal also observed:- "… The Court is not directed to have regard to any sentence that may be imposed in respect of offences to which the forfeiture relates. Nor is there any provision in the Criminal Justice Act 1985 requiring a sentencing court to have regard to confiscation orders made under the Act." 42 Sully J considered that it would accord with the manifest policy of the New South Wales legislation to adopt the approach of the New Zealand Court of Appeal in Brough (supra), observing (at [77]):- "… Applying the principles thus established to the particular facts of the present case it would be, in my opinion, and to borrow respectfully from King CJ, farcical to give the present respondent the consideration that he claims by reason of his co-operation with the Crime Commission in the matter of disgorging his ill-gotten gains from criminal activity of the enormity previously described and discussed. In such a case as the present one, the sanction of condign punishment by way of substantial imprisonment, and the sanction of disgorgement of ill-gotten gains, are intended by the legislature to be; should be seen by all concerned to be in fact; and should be enforced resolutely by the Courts as, complementary sanctions intended to strengthen each other, rather than as alternative sanctions which a resourceful offender can juggle in a way that effectively causes one to weaken, rather than to strengthen, the other." 43 It was submitted on behalf of the applicant in the present proceedings that the sentencing judge erred in not having regard to the fact that, unlike the other accused, the appellant had already suffered a serious imposition in the forfeiture of $407,084 as a result of the order made by Latham J under s.27 of the Criminal Assets Recovery Act. 44 Counsel for the applicant referred to the decision of this Court in Kalache (supra) and contended in this respect:- "… That Kalache does not deal with the situation where, in fact, no 'ill-gotten gains' have been made as a result of criminal activity." 45 It was also submitted that the decision in Kalache (supra) ought not apply to this case because the cases there reviewed dealt with situations where the offenders had made "ill-gotten" gains from criminal enterprises, whereas the appellant did not receive any such gains from his involvement in the cannabis plantation. It was said that Kalache offered no guidance outside of those cases. 46 Alternatively, it was submitted that situations of "exceptional circumstances" had not been the subject of consideration in Kalache (supra). It was submitted that the making of the s.27 order in the amount of $407,084 was an exceptional circumstance having regard to the facts of this case. 47 Further, it was said that the decision in Kalache did not consider the relationship between confiscation orders, proportionality and/or parity. It was argued that the decision in Kalache should be distinguished and ought not to have operation on the facts of the present case. 48 The two exceptions relied upon for the applicant were those referred to in the following passage from the judgment of the Court of Appeal of New Zealand in Brough (supra) as follows at 424, [25] to [40]:- "It is conclusion, having regard to the scheme of the Act, that as a general proposition, confiscation orders under the Act should not be taken into account when assessing sentencing, subject to two qualifications. First, there may be exceptional or unusual circumstances where orders made, particularly orders to forfeit valuable property used in the commission of an offence, may have a disproportionate or exceptional effect on the offender, sufficient for some regard to be had to it when imposing the sentence. Secondly, recognising that one of the purposes of the sentence to be imposed is to deter others who may be minded to commit like offences, if forfeiture orders of property used in the commission of offences are particularly severe, some adjustment to the sentence may be appropriate because the deterrent effect of the forfeiture orders may lessen the need for the deterrent element in the sentence. But it is difficult to conceive of circumstances where orders to forfeit the proceeds of the offence or for a pecuniary penalty order reflecting the benefit derived from the commission of the offence, should have any relevance to an appropriate sentence. These reflect the offender's ill-gotten gains which, in accordance with the policy of the act, and irrespective of sentencing for offences, the offender should be required to disgorge." 49 In the present proceedings, the following matters are, I consider of importance:-

(1) The applicant did not receive any proceeds or financial benefit from the cannabis plantation simply by reason of the fact that it had not reached the stage of harvesting

(2) The order of Latham J under s.27 was made upon the basis that, on the civil standard of proof, between 1997 and 2003, the applicant had in fact obtained the amount of $407,084 from illegal activities in the six year period. That money and those activities were clearly unrelated to the establishment and maintenance of the cannabis plantation. 50 Accordingly, the submission for the Crown must be accepted, namely, that the finding made and the basis for the order by Latham J on the application by the Crime Commission, "… reflects the offender's ill-gotten gains which, in accordance with the policy of the Act, and irrespective of the sentence for this offence, the offender should be required to disgorge" (Crown's written submissions at [28]). 51 The Crown's further submission is plainly correct (at [30]):- "The mere fact that the applicant had yet to make further ill-gotten gains from this particular criminal venture through an intervention of the NSW Police force does not take away from the fact that he had obtained from other illegal activities $407,084." 52 In relation to the two qualifications referred to in Brough (supra), it is important to note that the evidence at the sentencing hearing did not focus upon factual matters that would be required for a determination as to whether there existed "exceptional or unusual circumstances" or whether the sentence may have "a disproportionate or exceptional effect" on the applicant. 53 There was, in particular, little by way of evidence before the sentencing judge directed to establishing that the recovery of $407,084 had created exceptional or unusual circumstances or would give rise to a disproportionate or exceptional effect on the applicant. 54 There was a paragraph in the Agreed Statement of Facts, Exhibit A, recording the fact and terms of the order made by Latham J on 6 September 2005. 55 There was relatively brief evidence called from Ms Natolo, the applicant's step-daughter: transcript, 17 September 2009 at pp.12 to 17. However, her evidence was directed to other issues. There was no evidence as to the applicant's financial position before or after the making of the order under the Criminal Assets Recovery Act. 56 The scope of the submissions made at the sentencing hearing was quite narrow. They are recorded at transcript, p.20, line 35 to p.21, line 45 and p.24, lines 20 to 26. There was no submission made on the issue of exceptional or unusual circumstances. Indeed, no reference was made to the judgment in Brough (supra) or Kalache (supra). 57 Hence, the Crown's observation in its written submissions (at [35]) that an examination of the submissions made before the sentencing judge revealed that not only was this Court's decision in Kalache (supra) not referred to but no attempt was made to argue that the applicant fitted within the first of the two exceptions referred to in the passage from Brough (supra) set out above. 58 It was contended for the applicant on this application for leave to appeal that an order under s.27 of the Criminal Assets Recovery Act meant that there was "a disproportionate or exceptional effect" for three reasons (Appellant's Written Submissions, p.8):- "1. No real parity was achieved between the appellant and the co-offender, Mr Mangano. 2. Given the appellant had demonstrated rehabilitation and had the burden of a significant delay in his arrest by police … this ought to bring the matter into the exceptional category so that a reduction in his sentence would be proper. 3. The confiscation order meant that the appellant's sentence was totally disproportionate and more so, when considered that none of the other co-offenders suffered such an impact." 59 The issue raised as to the absence of any "real parity" between the appellant and his co-offender, Mr Mangano, is, with respect, without any foundation and, in my opinion, cannot establish exceptional or unusual circumstances as discussed in Brough (supra). 60 The fact that the co-offenders were not made subject to an application or an order made pursuant to the Criminal Assets Recovery Act is entirely irrelevant. That fact could not on any basis constitute exceptional or unusual circumstances such as to justify a different approach to sentencing the applicant. 61 A matter of importance on this issue is that the applicant was to be sentenced on the evidence that was before the sentencing court. In that respect, it is to be noted that there was no evidence adduced at the sentencing hearing that any of the applicant's co-offenders had the benefit of illegal or "ill-gotten" gains during the relevant six year period and there was no evidence that any application under the Criminal Assets Recovery Act had been made concerning them. Accordingly, there was no basis upon which leniency ought to have been extended to the applicant because of the confiscation order. 62 I accept the Crown submission that the question of parity in relation to criminal asset recovery simply does not arise on the facts of this case. I accept, in particular, the submission made on behalf of the Crown (written submissions at [37]):- "… To suggest that this applicant should be dealt with more leniently because he had gained $407,084 in illegal gains over six years, whilst his co-offenders had not, and his illegal gains had been lawfully obtained by the State pursuant to the relevant legislation is perverse" 63 It was further argued on behalf of the applicant that rehabilitation and delay should have been taken into account. Quite apart from the fact that the sentencing judge did consider those matters and take them into account, it was, in my opinion, simply not appropriate for her Honour to have additionally been required to take those matters as also establishing "exceptional circumstances" as referred to in Brough (supra). 64 In relation to the deterrent effect in sentencing, the order that the applicant pay to the Treasury the amount of $407,084, being the amount assessed under s.27 of the Criminal Assets Recovery Act was, as already noted, on the findings of Latham J, related to other illegal activities that generated unlawful income. 65 The criminality for which the applicant was sentenced by the District Court was one for which the applicant stood to gain a very significant financial benefit from the commercial cultivation of cannabis. In determining the criminality of the applicant, the sentencing judge was required to take into account the applicant's prospective gain from the plantation. The fact that he had been required to disgorge ill-gotten gains from other illegal activities could have no relevance to or bearing on sentencing in respect of the specific offence under s.23 of the Drugs Misuse and Trafficking Act.

Ground 2: The sentencing judge erred in not having regard to the issue of parity between the applicant and the co-offender, Mr Mangano 66 The sentencing judge specifically considered the issues of parity between the applicant and co-offenders, Michael Greco, Joseph Severino and Ignazio Mangano. 67 Mr Mangano was re-sentenced by the Court of Criminal Appeal on 24 February 2006: Regina v Mangano [2006] NSWCCA 35. 68 He was charged under s.23(2)(a) of the Drug Misuse and Trafficking Act. He was also charged with knowingly taking part in the cultivation of a separate plantation on a property near Fifield. The latter was included on a Form 1. 69 Mr Mangano was re-sentenced to a non-parole period of two years and five months with a balance of sentence of two years. The sentencing judge expressly stated that she had regard to the judgment of the Court of Criminal Appeal in Mangano (supra) and stated (remarks on sentence, p.10):- "… No strict parity arises, however, there is a degree of similarity between this offender and Mangano and Skorin." 70 Her Honour noted that the Court of Criminal Appeal found that an appropriate starting point for each case was an overall term of imprisonment of 8 years. Both of those offenders had a larger discount on sentence than was available to the applicant because each of them provided assistance. 71 The sentencing judge also noted that, in Mr Mangano's case, there was no evidence that he recruited people to work on the plantation and that there was more work of an agricultural nature performed by him than the applicant:- "… In other words, each of them played slightly different roles, but it seems to me that each of them was more or less at about the same intermediate or slightly above intermediate level in this cultivation." 72 The sentencing judge also had regard to the subjective circumstances, in each case, finding them to be about the same. Tupman DCJ considered that 8 years was an appropriate starting point from which there was to be reduction of 25%, namely, a period of 2 years. The overall sentence was reduced by a further 6 months to take into account delay, giving rise to an overall term of imprisonment of 5½ years. 73 Her Honour then made a finding of special circumstances. 74 The submission for the applicant was (Appellant's Written Submissions, p.9):- "It is submitted that the appellant has an understandable sense of grievance that, despite a finding that his culpability was similar to that of his co-offender, Mr Mangano, he, in reality, received the heaviest sentence in relation to his non-parole period of all the co-offenders involved in the matter. And specially so, when the confiscation order amount of $407,080 is taken into account." 75 It was also noted that Mr Mangano, as well as having a similar level of culpability, was also had the Fifield plantation charge on a Form 1 and that this should have ensured that the applicant's sentence was "significantly reduced" (Appellant's Written Submissions, p.11). 76 I do not consider that there is any validity to Ground 2. Her Honour made appropriate findings in relation to the respective roles of the applicant and Mr Mangano and adopted a starting point of eight years which was an appropriate starting point having regard, in particular, to the decision of the Court of Appeal in Mangano (supra). Her Honour was also mindful of the fact that the sentencing in that case had taken into account the Form 1 matter. 77 The only significant difference which effected the sentence imposed was that Mr Mangano received a combined 50% discount for his plea and for assistance. The applicant was not given and nor was he entitled to any discount for assistance. When that matter is borne in mind, there can be no legitimate grievance that the applicant did not effectively receive the same non-parole period as Mr Mangano. 78 The issue concerning the order made under the Criminal Assets Recovery Act is of no relevance to that issue. For reasons earlier stated, it was not a matter relevant to be taken into account in the sentencing of the applicant.

Ground 3: The sentencing judge erred in not giving a greater discount for the aspect of rehabilitation/delay in the sentencing of the applicant 79 As noted above, the sentencing judge discounted the sentence to be imposed by six months for the delay in the proceedings and her Honour articulated the reasons for the discount. 80 The delay was, of course, not wholly occasioned by any inaction on behalf of investigating police. The applicant, by his own actions, "disappeared". As earlier stated, it was not contested that the evidence permitted the inference that he sought to evade arrest. 81 The sentencing judge, at some length, referred to the issue of delay including the fact that there appeared to have been circumstances that ought to have triggered further action by police. Her Honour also noted the offence was "somewhat stale now" but also noted that (remarks on sentence, p.10):- "... Whilst it has not been hanging over his head in quite the same way that some of the authorities suggest is relevant to take into account, he is now older, he will be undertaking his prison term quite some years after the offence to which it relates occurred." 82 The sentencing judge also expressly adverted to the fact that the delay had resulted in the applicant being able to demonstrate real prospects of rehabilitation. 83 The Court in Regina v Reeves [2002] NSWCCA 33 at [12] noted that a distinction is to be drawn in cases where delay occurs because of circumstances entirely outside an offender's control and where it is the offender's decision to abscond that causes or occasions delay. 84 I consider that her Honour did address all of relevant aspects on the question of delay and that no error has been demonstrated in the assessment made in this respect. 85 In accordance with the reasons I have set out above, I propose the following orders:-

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