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1 The applicant, who is now aged 39, pleaded guilty in the County Court to one count of burglary in the form of entering as a trespasser with intent to steal (count 1), one count of theft (count 2) and one count of cultivating cannabis (count 3). He admitted 14 previous convictions from six court appearances in the Magistrates' Court between September 1983 and January 2002. They included convictions for theft and handling in 1983 and 1984, but on both occasions a small fine was imposed and there were no subsequent offences of dishonesty. The subsequent convictions were mainly for possession and use of methylamphetamine and driving offences.

2 After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on 9th June 2004 to four years' imprisonment on each of counts 1 and 2 and a fine of $100 on count 3. The maximum custodial penalty for both burglary and theft is ten years' imprisonment. His Honour directed that twelve months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of five years' imprisonment. A non-parole period of three years was fixed and a declaration made regarding 64 days' pre-sentence detention. The applicant gave notice of application for leave to appeal against the sentences imposed on counts 1 and 2. His application was heard by a single judge of appeal pursuant to s.582 of the Crimes Act 1958 and was refused. He has elected to have the application heard by the Court of Appeal.

3 The sole ground of appeal in the notice of application for leave to appeal was that the sentence was manifestly excessive. That was argued before the single judge on 5th November 2004, together with a proposed ground that the judge "erred in imposing a sentence in respect of count 2 (theft) that was excessive". We permitted Mr Boyce to argue that proposed ground as an aspect of manifest excess. The single judge recorded that, having regard to the fact that it was accepted that the applicant was the ringleader, no argument on the basis of parity had been put to the Court, but last Thursday the applicant gave notice of intention to apply to add a further ground, namely, that the learned sentencing judge "erred in imposing penalties that failed to accord with the principles of parity in sentencing". The applicant was very much the ringleader. It was conceded on the plea that he planned the operation, introduced the co-offenders and was in a position of power and influence in relation to them. Their personal circumstances were significantly different. We are told that the applicant had foreshadowed the proposed parity ground earlier than the date of the notice. He is not to be penalised for deficiencies in paperwork, but in my view the ground has insufficient prospects of success to warrant our granting the application to amend. In my opinion that application should be refused.

4 Before turning to counsel's submissions on manifest excess, I shall say something briefly about the circumstances of the offences the subject of the application for leave to appeal. The applicant's four co-offenders were his younger brother, Alex Solomon, their cousin, Showkat Sleiman, Christos Kapiniaris and Hafez Assaad. The target of the operation was a secure warehouse in Port Melbourne that is used by, among others, the Australian Taxation Office and the Australian Customs Service for the storage and auctioning of goods that have been seized or otherwise forfeited. The five men assembled at the applicant's home in Reservoir at about 10.30 p.m. on 2nd June 2003. It appears from the depositions that at that stage the only person fully aware of what was going to happen was the applicant. Shortly after midnight they set off in convoy to the warehouse. Three vehicles were involved, including a truck that Alex Solomon had hired on his brother's instructions. They waited in the vicinity of the warehouse until approximately 4 a.m. Using bolt cutters and other equipment, they broke into the Australian Taxation Office secure compound and loaded four bales of tobacco on to the truck. The tobacco was bundled in 100-kilogram hessian bags. Whilst that was being done the applicant cut the wire fencing into the Customs compound and the group then loaded 66 shippers of cigarettes. A shipper is a freight box containing packed cartons of cigarettes. Each shipper contained 10,000 cigarettes. The loaded truck returned to the applicant's residence at about 4.50 a.m. Within a few hours he had arranged the sale of the stolen goods for $65,000, paid in cash in various denominations. The applicant retained $55,000 of the proceeds, distributing the balance among his co-offenders, other than Kapiniaris. None of the cash and only a few packets of cigarettes have been recovered.

5 Mr Boyce put at the forefront of his submissions that the applicant made full admissions upon his arrest, including a statement to police implicating his co-offenders. There was no committal. The applicant indicated an early plea of guilty and he did plead guilty. He had run a successful glazier's business before he became addicted to heroin at the age of 31. He struggled with his addiction, but suffered a significant decline. Nevertheless, after the commission of the present offences, he successfully completed a drug rehabilitation programme and, counsel submitted, his prognosis appeared to be very good. The offences were committed effectively to service the applicant's heroin habit and the debts that he had incurred as a result. In the light of those matters, counsel contended, the sentences imposed on counts 1 and 2 and the total effective sentence were manifestly excessive.

6 The Court did not call upon Mr Ryan.

7 Drug addiction and the need to pay debts incurred as a result of purchasing drugs may explain the motivation for criminal offences, but they have little mitigatory effect, particularly in the case of offences as serious as these. The burglary was a well planned raid on premises that were thought to be secure. The theft was the subject of a rolled-up count encompassing valuable goods for which there was a ready market. The applicant's endeavours to free himself from his addiction are reflected in the non-parole period. There is no reason to think that they were ignored in fixing the head sentence. The individual sentences were stern, following an early plea of guilty and co-operation with the authorities, but they were within the range available to the judge. The measure of cumulation was clearly within that range.

8 I would dismiss the application.