REGINA v. BARAKAT [2004] NSWCCA 201

1 BEAZLEY, JA: I agree with Greg James, J. 2 DOWD, J: I have seen the proposed orders of the Greg James, J. and his reasons therefor. I agree with Greg James, J. 3 GREG JAMES, J: This is an application by Nadar Barakat for leave to appeal against sentences for two offences of supplying prohibited drugs in indictable quantities. The sentences were imposed in the District Court of New South Wales on 2 October 2003. 4 The amounts of drug in question were 120 grams of heroin in respect of the first count and 120 grams of cocaine in respect of the second count, each quantity being in excess of the indictable quantity for the relevant charge. 5 The maximum penalty in respect of each charge was 15 years imprisonment and a fine of $220,000 or both. 6 A seven page document comprising agreed facts signed by the applicant and the solicitor for the Director of Public Prosecutions was tendered in the sentencing proceedings as setting out the facts of the offences. His Honour was invited to and did proceed upon the basis of the content of that document incorporating that content in his remarks on sentence. 7 For the purposes of this judgment it is only necessary to summarise that content. 8 Between 3 September 2001 and 21 December 2001, the applicant, together with a number of other persons, utilised premises at Alexandria for the preparation, packaging and storage of "street deals" of heroin and cocaine which were sold on a regular daily basis to drug users in and around the Petersham, Lewisham, St. Peters, Stanmore, Marrickville and Hurlstone Park areas. Certain of the offenders supplied regular street deals. Another regularly assisted as a driver. The present applicant acted as an overseer in respect of the activities of the runners who delivered the drugs. The present applicant stayed in touch with the other offenders using a number of mobile telephones, one of which was used to receive calls and another to make outgoing calls to contact the runners. 9 A relatively sophisticated contact system using the mobile phones was utilised by the offenders and their customers. The drugs would be referred to in standard coded references. The runners used motor vehicles to distribute the drugs. Those vehicles were registered to persons who had no real links to the drug enterprise to cloak the identity of those using the car. 10 A standard operating procedure was devised for delivery of the drugs involving the passing of the money and drugs in a Tupperware container to a customer by a passenger in the car to avoid direct contact between those delivering the drugs and the customer. Water bottles were kept in the cars to enable the drugs to be swallowed if stopped by police. 11 Telephone intercept and surveillance evidence was available to support the evidence obtained in a number of controlled undercover drug purchases. The mobile phone used in communication with the runners had approximately 40,000 calls received on it in a period of 95 days. A minimum of 150 calls were detected relating to the sale of heroin and a minimum of 80 calls were detected relating to the sale of cocaine. Police were unable to say that in the balance of the 40,000 calls specific amounts of drug or money were discussed, but they did allege that a large proportion of those calls also related to the sale of prohibited drugs. 12 This present applicant regularly contacted the runner phone to check on how busy the runners were and to give general directions to the runners about the terms of their employment and obtaining the daily sales figures. 13 The agreed facts document also refers in detail to a number of controlled sales to particular runners. 14 It was in that context that the parties agreed that the amount of drugs supplied in respect of each of the counts totalled 120 grams. 15 The applicant was arrested on Friday 21 December 2001. He pleaded guilty before a magistrate and was committed for sentence under s.51A of the Justices Act 1902. He has assisted the authorities and was, and is, liable to spend the whole of the custodial portion of his sentence on protection. 16 The learned trial judge passed, in respect of each offence, a sentence of imprisonment for four years to date from 24 May 2002 together with a non-parole period of three years to date from the commencement of the sentence. His Honour took into account a total of 16 months and nine days pre-sentence custody when fixing the commencement date of the sentences. 17 His Honour adverted to the plea, the assistance and its consequences, all the matters referred to in s.21A of the Crimes (Sentence Procedure) Act 1999, the general circumstances of the offence and the aggravating and mitigating factors in reaching his conclusion that the appropriate penalty was that which he passed. 18 His Honour concluded that the sentences should be concurrent on the basis that they referred to one cohesive period of drug distribution activity comprising a single series of criminal events. He said:- "In my view, your criminal culpability in respect of these events can be appropriately dealt with by way of a penalty in respect of each of those charges which reflects your place in the enterprise and your participation in the enterprise. In my view, it is not appropriate to make any part of the sentences cumulative. They will therefore be wholly concurrent." 19 In making the sentences concurrent, as he did, his Honour had regard to the role of the offender (see Regina v. Olbrich (1999) 199 CLR 270 and applied principles of totality (Pearce v. The Queen (1998) 194 CLR 610; Johnson v. The Queen [2004] HCA 15). 20 The proportionate relationship of the head sentences and the non-parole period reflected the proportions set out in s.44(2) of the Crimes (Sentencing Procedure) Act 1999 (since replaced). His Honour said he did not find special circumstances. 21 In determining the length of the sentences, his Honour expressed the view that except for matters in respect of which he felt bound to afford a discount to the appellant, he would have imposed head sentences of 10 years. Those matters, in particular, were that the applicant's plea was entered at the earliest opportunity and that he had provided assistance to the authorities. 22 In respect of the first matter, the sentencing judge extended to the applicant a discount of 25% for the utilitarian value of his pleas, having regard to the decision of the Court of Criminal Appeal in Regina v. Thomson & Houlton (2000) 49 NSWLR 383 (see s.22, Crimes (Sentencing Procedure) Act 1999). 23 As to the second matter, his Honour accepted that the applicant was liable to spend the whole of the custodial portion of his sentence in the strictest and most onerous confinement. The sentencing judge concluded that the value of the assistance was very high, that the applicant's life was at risk both in the prison context and after release, and further, that his family was also at risk. He had particular regard to the disadvantages which the applicant will suffer when in custody. He considered that, for those reasons, a discount of 50% would be appropriate, but in that regard held that:- "I am required nevertheless to impose in all the circumstances a penalty which is appropriate." 24 Although his Honour did not expressly refer to s.23(2) of the Crimes (Sentencing Procedure) Act 1999 which qualifies the reduction of sentence for assistance taken into account under s.23(1), it would seem that it was to that provision that his Honour was referring when he declined to afford to the applicant the full discount that would have been provided by a mathematical application of the percentage deduction he had otherwise deemed to be appropriate. 25 Section 23(3) provides:- "A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 26 The subsection allows the imposition of a lesser penalty which might appear to be disproportionate to the nature and circumstances of the offence provided that it is not unreasonably so. In my view, when his Honour used the language that he did referring to the imposition of "in all the circumstances a penalty which is appropriate" his Honour was adverting to the requirement that the non-parole period not be so disproportionate (see Regina v. Huang (1995) 78 A. Crim. R. 111; Regina v. X [2004] NSWCCA 93). 27 His Honour imposed a head sentence three months longer than would have been produced by the direct application of the mathematics. 28 I have referred to his Honour specifically holding that he did not find special circumstances. In that regard, his Honour referred to his applying to the sentences he would have passed the discounts for assistance and for the pleas of guilty. He said in that context:- "It appears from the Court of Appeal decision in the case of S (NSWCCA 13) a decision handed down on 24 February 2000, that I should not go on to consider the question of special circumstances and apply further leniency in respect of the fixing of a non-parole period. The submission has been made to me that I could find special circumstances on account of the fact that you will be doing your time in custody under disadvantageous circumstances and without the usual preparation for release and also bearing in mind the need for protection after release. However, on the basis of the authority of the Court of Criminal Appeal in S , it would appear that I would be in error if I were to find special circumstances and modify the usual statutory ratio of the non-parole period to the head sentence on that account by reducing the non-parole otherwise applicable. Therefore, although it seems to me there are matters which would justify finding special circumstances, I do not make that finding, bearing in mind that it would serve no useful purpose in view of the authority I have referred to." 29 In this passage, his Honour appears to hold that he was bound by The Queen v. S [2000] 111 A. Crim. R. 225 not to take into account matters which he would otherwise have held to be special circumstances and which might have operated to reduce the non-parole period further than the reduction affected by the flow on effect of the discount to the head sentence. 30 S (supra) is not authority for the proposition that in the event a head sentence is discounted, it is not open to a trial judge to take into account the matters producing that discount on the issue of the length of the non-parole period. As the High Court's decision in Bugmy v. The Queen (1990) 169 CLR 525 makes clear, factors may bear differently upon the head sentence and the non-parole period and weigh differently on each (see also Inge v. The Queen (1999) 199 CLR 295 per Kirby, J. at 315 to 316; AB v. The Queen (1999) 198 CLR 111 at 151 to 152; Regina v. Burton (CCA, unreported 14 November 1996); Regina v. Totten [2003] NSWCCA 207 at 45). Matters which have warranted a reduction in the head sentence might still be "special circumstances" which might warrant an even shorter non-parole period than s.44 might otherwise mandate. Nonetheless, S (supra) does hold that normally, where the discounting factors are taken into account on the head sentence, the mathematical and proportionate relationship which will usually exist between the head sentence and the non-parole period which will exist when the sentence and non-parole period have the same proportions as is prescribed as minimum proportions by s.44, in the absence of special circumstances, the effect of a discount in the head sentence will flow through mathematically to the non-parole period. 31 But such circumstances may require a still shorter non-parole period if, in the particular case, the circumstances apply so heavily to the non-parole period that they bear the character of special circumstances (as to the potential nature of which see Regina v. Simpson (2001) 53 NSWLR 704). 32 In S (supra), Hulme, J. at 231 referred to the entitlement of the trial judge to have regard to the matters to which he referred and the combination of them as justifying a greater than usual proportion of the respondent's sentence "being served on conditional liberty … rather than actual custody", but concluded that, as a general proposition, leniency for assistance is best recognised by way of discount from the total sentence. He held that it was necessary to avoid a double discounting where a discount flowed through to a proportionate non-parole period from having been applied to the head sentence and a further discount for the same matter was expressly allowed on the non-parole period. Such would result in an inappropriate non-parole period. 33 In the present case, so far as the trial judge held that the application of any perceived principle from S (supra) his language suggests he applied precluded him from considering matters to which he had had regard when applying a discount to the head sentence as having the capacity to be special circumstances such as might have warranted a further reduction in the non-parole period, in my view, his Honour fell into error. 34 In S (supra), Hulme, J. stated that it is acceptable for a sentencing judge to reduce the non-parole period as a result of having taken account of matters that constitute special circumstances where consideration of such circumstances is already reflected in a discount on the head sentence. His Honour merely stipulated that where a discount on the head sentence is given, a simultaneous reduction of the non-parole period must be accompanied by reasons as to why the trial judge adopted this course of action. At [33], Hulme, J. said:- "Although it seems to me that the leniency which assistance to the authorities commonly attracts may properly find expression in an increase in an additional term (presumably at the expense of a minimum term) it is at the least necessary for a judge adopting this course to provide some explanation why this has occurred rather than the leniency being reflected in the more usual reduction in the total term - a fortiori when such a reduction has already been given." 35 This statement effectively reinforces the requirement for reasons set out in s.44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 36 Subsequently, Hulme, J. explained that the need to take account of special circumstances must not outweigh the need for the non-parole period to reflect the objective gravity of the offence. In relation to this, Hulme, J. cites Simpson, J. in Regina v. Henry & Barber (1999) NSWCCA 107 where her Honour said at [76]:- "A sentencing judge, having found special circumstances has a good deal of room to move in the structure of the sentence to be imposed. However, the discretion conferred by s.5(2) should always be exercised with one eye to the relevant minimum term which must be such as to reflect the objective gravity of the crime for which it is imposed, taking into account the subjective features … A sentencing judge who varies the statutory proportions in favour of a lengthier additional term needs to take care to ensure that the minimum term is no lower than that which is commensurate with the objective gravity of the crime." 37 When S is read correctly in this fashion it becomes clear that the trial judge misinterpreted its implications, thereby falling into error. 38 Despite this flaw in the trial judge's reasoning, when one has regard to the extremely serious nature and circumstances of these offences, even having regard to the applicant's personal circumstances, it is clear his Honour fell into no error in the result. 39 The trial judge held:- "In summary, the matters set out in that document establish that you were part of a sophisticated and extensive network of supply of drugs in which you played a significant and leading role. I accept the submissions made by the Crown that in terms of the hierarchy of this extensive enterprise you were, although perhaps with others, at its top and directed and controlled its operations." 40 His Honour had regard to the seriousness with which offences of this kind are regarded by the legislature and the community and concluded:- "Your criminal culpability in respect of these offences falls towards the upper end of the scale for such offences." 41 It is open to the Court of Appeal to adopt the sentence imposed by the trial judge notwithstanding identification of error in the remarks on sentence. In Regina v. Elie Gittani [2002] NSWCCA 139, Sully, J. said at [6]:- "Error once demonstrated, it does not follow automatically that this court will, without more, intervene in fact and re-sentence. Before that can happen properly in law, the condition specified in s.6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied: that is to say, this court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing court, that some other sentence is 'warranted in law'." 42 See also Regina v. O'Connor (2002) 129 A Crim R 505; Regina v. Burke [2002] NSWCCA 353; Regina v. Cocking [1999] NSWCCA 311; Regina v. Astill (No 2) [1992] 64 A. Crim. R. 289. 43 Accordingly, in my view those findings and conclusions of the sentencing judge were not only open to him but plainly correct. 44 I turn to the matters personal to the applicant. I have referred to his Honour as having had regard to the matters prescribed by s.21A of the Crimes (Sentencing Procedure) Act 1999. His Honour had regard to the whole of the applicant's subjective circumstances. In particular, he noted the applicant's prior criminal history had included a conviction for manslaughter and a control order being imposed upon him as a juvenile. His Honour concluded that thus his prior record was of no assistance to the applicant in terms of the extension to him of any leniency. 45 His Honour also referred to a psychiatric report concerning the applicant which had been tendered in evidence. It disclosed no sign of psychotic disturbance in the applicant. His Honour had regard to it as providing background material including as to the murders of his two cousins and the attack on him in gaol to which I will return but placed no particular weight on matters set out in the report canvassing the offences and the applicant's reasons for committing them. His Honour took this course, firstly, because of the agreed facts and, secondly, because, although the applicant went into the witness box, he did not give evidence about those matters and was not cross-examined about those matters. 46 His Honour made specific reference to the report diagnosing the applicant as suffering form a chronic post-traumatic stress disorder in consequence of the murder in prison of his cousin and he himself being at risk throughout his sentence. His Honour noted that the report indicated that the applicant had described pervasive depression, anxiety and that the applicant might be vulnerable to distress in court proceedings. His Honour was prepared to accept that the incident was traumatic for the applicant and left him with some elements of depressive thoughts, anxiety and intrusive recollections, but did not conclude that there was any such psychiatric disorder in the nature of post-traumatic stress disorder. 47 His Honour concluded that the applicant's reactions were entirely normal and appropriate but he took the matter into account. He also took into account that the applicant's immediate and extended family had been under severe strain in relation to those matters and in relation to the applicant's arrest, impending conviction and time in custody. 48 He had regard to the applicant's parents having immigrated to Australia and having separated in Australia when the applicant, who had been born in Australia, was but two or three years old. His parents had re-married and as a consequence the applicant had a large extended family which offered him support and were available to assist his immediate family. 49 The applicant was a married man with a six year old daughter and twin sons aged two. 50 The trial judge accepted that the family was at risk and that the realisation of that fact rendered imprisonment even more stressful for the applicant. 51 It is submitted on behalf of the applicant that the effective sentence imposed upon the applicant was manifestly excessive. However, specific grounds were also advanced:- "(1) The learned trial judge erred in determining that an appropriate starting point for the calculation of the sentences in the applicant's case before allowing for specific 'discounts' for the plea of guilty and assistance to authorities was 10 years imprisonment. (2) The learned judge erred in concluding that he was not able to have regard to the fact of the applicant's co-operation with the authorities in determining whether there were special circumstances for the purposes of s.44(2) of the Crimes (Sentencing Procedure) Act 1999. (3) His Honour erred in not finding that the horrific experiences which the applicant had endured through the period of almost 18 months that he had been in custody at the time of sentence were not a relevant factor to be taken into account in reducing the level of sentence. (4) His Honour erred in not finding special circumstances for the purposes of s.44(2) of the Crimes (Sentencing Procedure) Act 1999." 52 In the light of the matters discussed earlier in this judgment, I turn firstly to grounds two and four. I have already described the trial judge's reasoning process and discussion concerning special circumstances. There were plainly matters in this case which would have warranted the finding of special circumstances and which one might well have expected ordinarily to have attracted such a finding. Such matters included the particularly onerous circumstances in which the applicant would have to serve the custodial portion of his sentence, the early plea of guilty, assistance to authorities, the effects on the applicant in respect of the strain and apprehension felt by his family, the continuing anxiety under which he will be required to serve his sentence, as well as a number of other matters including those to which the psychiatrist adverted and the disabilities suffered by the applicant whilst in custody preventing him from participating in courses and in the usual steps that might be taken towards rehabilitation and relief. In addition, it appears highly likely that he will require continuing protection on release and when released will only be released to a most restricted liberty. 53 These are all matters that might have been considered to be special circumstances. However, the trial judge took all of these matters into account when fixing the head sentence and concluded, as I have shown, that no non-parole period less than that he imposed would have been appropriate, that is, that a lesser non-parole period would have been unreasonably disproportionate to the nature and circumstances of the case. It appears to me that his Honour declined to hold that those matters amounted to special circumstances since there was no point in doing so since the only purpose for categorising matters as special circumstances in the application of s.44 is for the purpose of considering some further reduction of the non-parole period below that proportion of the head sentence referred to in s.44(2). 54 Having regard to the seriousness of the applicant's criminality, notwithstanding all those matters, I do not consider that his Honour erred, in that I share, what I understand to be his Honour's view that having regard to the nature and circumstances of the offence, no lesser non-parole period could have been imposed without it being unreasonably disproportionate. 55 I turn to ground three. That ground requires that I return to the background material in the psychologist's report. The matters are summarised in the applicant's written submissions as follows:- "During the time that this applicant and his cousin Assad were in custody pending the determination of the charges brought against them, they were both aware of the existence of an organised group within the jail (sic) system who were hostile towards them. When the applicant and his cousin Assad were transferred to the prison at Parklea, they were attacked by an organised group. Assad was murdered in the attack which occurred in the applicant's presence. The applicant feared he would be similarly dealt with and remains unaware of the events which enabled him to escape to safety. As a result of this incident, nine prisoners have been charged in relation to the murder of Assad Barakat and the accompanying assault upon the applicant. The applicant has made statements to the police in relation to these attacks. The applicant agreed in sworn evidence before the learned sentencing judge that he would continue to co-operate with the authorities and he has since given evidence in committal proceedings." 56 Of the nine persons charged, five were defendants in the committal proceedings at which the applicant gave evidence. Each has been committed for trial on charges relating to the murder. The applicant is the chief witness for the Crown against them. 57 In the report of Mr. Machlin, psychologist, further circumstances and detail are disclosed. In 1999, the applicant's cousin Omran Ahmed was murdered as a result of a feud with another family. That death, it was asserted, had a profound effect upon the applicant in consequence of which he turned to drugs and incurred heavy debts. His suppliers threatened to kill him, so it was asserted, if he did not pay them back. 58 The psychologist notes that the applicant made certain assertions as to his reasons for becoming involved in these crimes which, as I have said, the trial judge did not accept. However, there is nothing in the remarks on sentence to indicate that the trial judge did not accept what appears in the psychologists report concerning what had happened whilst the applicant was in custody. It was as follows:- " Murder of Assad and attempted murder of Nader (sic) Nader (sic) and his cousin Assad were imprisoned, and soon discovered that the family feud that had resulted in Omran's murder was still raging. Nader (sic) has given a detailed written statement of how they requested not to be transferred to Parklea, where they believed themselves to be in danger, and how upon their transfer their fears were realised. His statement describes the group attack in which his cousin was murdered, while Nader (sic) scrambled to safety. In our interview, Nader (sic) indicated he found it very hard to talk about the incident. This immediately became apparent in his anxious, trembling reaction. He said he thought he would be killed in the incident, and did not know what saved him. He said he often thinks about it, and memories of witnessing his cousin's murder recur in the form of flashbacks and nightmares. He described a range of other trauma symptoms including anxiety about further attacks, panic, fearing 'someone's behind me', depression, poor concentration and fearing being alone with his thoughts. Nader (sic) has been transferred to the Special Purpose Centre for protective containment, in recognition of the continued threat he faces. He has been allowed to associate with only one or two other inmates at a time, and has endured long periods of time spent on his own. The isolation has contributed to his distress. Earlier on he received no support in relation to the traumatic incident in which his cousin was murdered, but in recent times he has had weekly counselling sessions with the prison psychologist. Impact on family Nader's (sic) immediate and extended family have been under severe strain since the feud erupted with another family, resulting in the deaths of this two cousins and the shooting of his brother during the past four years. The prospect of further retribution continues, and they have reportedly received a number of threats. Nader (sic) is in constant fear for their safety, as well as his own. His wife and children have moved in with family members for security. Nader (sic) conveyed that his father has undergone counselling in relation to earlier incidents, and his fears have been reignited by the continuing threats. He is aware that. this mother has also suffered stress-related symptoms. Nader (sic) foresees that he and his wife and children will need to relocate under the Witness Protection Programme. … When Nader (sic) and his cousin Assad were imprisoned, they were defenceless against the vendetta that persisted as a result of a longstanding family feud . Assad was murdered, and Nader (sic) narrowly escaped. Nader (sic) has expressed his indignation that that (sic) prison officers took insufficient action to prevent the attack when Nader (sic) alerted them to the danger. Nader (sic) has since been in the protection of the Special Purpose Centre at Long Bay, but he is preoccupied with fear that he and his family remain at serious risk of further reprisals." 59 The applicant's solicitor provided a statement of 23 September 2003 referring to the circumstances of the applicant's incarceration. That statement reads as follows:- "I Ross Hill Solicitor for Nadar Barakat state as follows:- 1. From the date of the clients re-arrest in July 2002, he has been incarcerated at the Special Purpose Centre at Long Bay. The Special Purpose centre is a place for holding incarcerated Crown witnesses who require special protection. 2. To my knowledge prisoner contact with other inmates is kept to a minimum in the Special Purpose Centre. 3. Due to non-association orders imposed on the client by Corrective Services and other authorities the client is housed in the C wing section of that prison. The non-association orders are placed to ensure the protection of the prisoner. 4. The C wing prison is a more isolated section of the Special Purpose Centre. The client currently lives with one other prisoner. The client has been without any other inmate contact for period of up to one month at a time throughout his incarceration. He cannot freely associate with that person. 5. Due to staff shortages the prison is regularly locked down wherein the client remains in his cell for the duration of the lockdown. Lockdowns have to my knowledge lasted for up to two to three days at a time. To my knowledge lockdowns occur at least three to four times a month or more frequently for at least a few hours duration. 6. Due to staff shortages prisoners are usually locked in their cells if another inmate is to attend court which requires three officers to attend along with them as per regulations. The prisoners in these circumstances are locked in until the inmate returns to the prison. 7. The client does not have access to many types of programmes and courses due to the nature of the Special Purpose Centre. 8. The client is restricted in the number of approved visitors who can attend on him due to security and good order of the prison." 60 I have also had regard to all of the material to which we were referred at the hearing concerning the content of the applicant's assistance. That material adds further colour and dimension to these matters such as to put beyond any possible shadow of doubt the applicant's precarious position and further, of course, these matters give a real complexion to the context of the applicant's furnishing the most valuable assistance to the authorities. 61 However, all this being said, nonetheless, it is clear that all of these matters were before the trial judge and that the trial judge had regard to all of them. It may be that the trial judge did not describe them in terms others might use. It may be that he may have given less weight to them than others might have given. But, nonetheless, it was for the trial judge to determine what appropriate weight should be given to them and how they should be described. I do not conclude from what the trial judge said nor from my own evaluation of these matters that he has fallen into any error of law with which would empower an appellate court to interfere. This ground was really put forward in the oral argument before us as an aspect of the argument advanced in support of grounds two and four, that is to say, that the trial judge had failed to reduce the head sentence and the non-parole period sufficiently by reason of these matters and I have taken it into account when considering those grounds. Even considering this ground separately, I do not consider the challenge made good. 62 I have had regard to these matters and the detail of them as expressed in counsels', submissions, the evidence and the psychologist's report, but I am unable to conclude from them that the trial judge failed adequately to appreciate those matters and reflect them in the sentences and non-parole period that he passed or erred in his treatment of them such as would permit the court to conclude that another sentence was warranted in law and should have been passed: Criminal Appeal Act 1912, s.6(3); Simpson (supra). 63 Even having regard to those matters and to the applicant's subjective circumstances, the objective circumstances of the offences and the role played in them by the applicant were such that I could not conclude that the trial judge's starting point of 10 years, notwithstanding that for these offences the applicant was liable to a maximum sentence of 15 years in each case, was inappropriate. 64 Stepping back from the specific grounds of appeal to consider the applicant's more general contention that the sentences were manifestly inadequate, I see no such manifest error as would allow me to conclude that the sentences should not stand. 65 Since the matter has been fully argued, leave to appeal should be granted, but the appeal should be dismissed. I propose orders accordingly.

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