Bellas v The Queen [2006] NTCCA 8

PARTIES: BELLAS, Justin Lee

v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 15 of 2005 (20417550, 20504823)

DELIVERED: 13 APRIL 2006

HEARING DATES: 14 FEBRUARY 2006

JUDGMENT OF: ANGEL ACJ, MILDREN & RILEY JJ

APPEAL FROM: R v Bellas, Sentencing Remarks, Thomas J, 17 June 2005

CATCHWORDS:

CRIMINAL LAW

Appeal – Appeal against sentence – Two Commonwealth Indictments – Sentence in respect of each Indictment manifestly excessive in all the circumstances – Total effective sentence for all offending nevertheless proportionate to overall criminality – Individual sentences fall for consideration not just their overall effect – Court of Criminal Appeal to intervene if individual sentences beyond sentencing discretion of sentencing judge – Appeal allowed.

Crimes (Currency) Act 1981 (Cth)

Markarian (2005) 215 ALR 213
Rhode (1985) 17 A Crim R 166
Institoris (2002) 129 A Crim R 458
Pearce v The Queen (1998) 194 CLR 610
Grant (VIC CCA, 27 June 1994, unreported)
Liddy v The Queen [2005] NTCCA 4

REPRESENTATION:

Counsel:
Appellant: I. Read
Respondent: P. Usher

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Commonwealth Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Mil06373
Number of pages: 23

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Bellas v The Queen [2006] NTCCA 8
No. CA 15 of 2005 (20417550, 20504823)

BETWEEN:

JUSTIN LEE BELLAS
Appellant

AND:

THE QUEEN
Respondent

CORAM: ANGEL, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 13 April 2006)

Angel ACJ:
[1] I agree with the orders proposed by Mildren J and I do so substantially for the reasons expressed by both Mildren J and Riley J.

[2] I agree that the sentence imposed with respect to each Commonwealth indictment was manifestly excessive. I also agree that the total effective sentence in respect of all the appellant’s offending was proportionate to the overall criminality of the appellant.

[3] The restructured sentence, whilst coinciding in result with the total effective sentence of the learned sentencing judge, has been arrived at by a fresh independent exercise of sentencing discretion by the members of this Court on appeal. I emphasise this lest there be any suggestion that this Court has engaged in what McHugh J, in Markarian (2005) 215 ALR 213 at [71], [84], referred to as “junk science” or “pseudo–science”.
Mildren J:

[4] The facts and circumstances relating to this appeal are set out in the judgment of Riley J and I will not repeat them.

[5] In my opinion the sentences imposed by the learned sentencing Judge in relation to both of the Commonwealth indictments are manifestly excessive. In addition, in my opinion, her Honour erred in relation to the second Commonwealth indictment in failing to reduce the head sentence to reflect the appellant’s early plea, remorse and cooperation.

[6] As to the sentence on the first Commonwealth indictment dated 17 February 2005, I consider that the following matters are relevant to the fixing of the head sentence:

1. The maximum penalty fixed by Parliament for making counterfeit money is 14 years.

2. The maximum penalty fixed for uttering counterfeit money is 12 years.

3. The maximum penalty for possessing counterfeit money is 10 years.

4. The maximum penalty for possession of a machine used in connection with making counterfeit money is 10 years.

5. The maximum penalty for possession of material used in connection with the making of counterfeit money is also 10 years.

6. There are four counts of making counterfeit money, involving in all only eleven $100 notes.

7. There are four counts of uttering involving only four $100 notes.

8. There are five counts of possession of counterfeit money involving one hundred and twenty five $100 notes.

9. Count 17 relates to the possession of the computer which was used to make the counterfeit money. It is a necessary fact to prove that the appellant was guilty of making counterfeit money to show that he made the money using his computer.

10. Count 18 relates to cans of spray paint, cutting blades and other materials also used to make the counterfeit money and involves some duplication of counts 1-4.

11. The offence of making counterfeit money is the most serious of the offences because it has the greatest maximum penalty.

12. In deciding the objective level of seriousness, the following factors are relevant:

(a) The number of notes involved: see above. Only eleven notes were completed; one hundred and twenty five notes were partly completed.

(b) The number of individual offences and their individual seriousness.

(c) The quality of the notes, which was said to be ‘clever’ – certainly only close inspection would have raised any suspicion in respect of the completed notes.

(d) The face value of the notes: all $100 notes.

(e) Whether the notes were forged or uttered as part of a commercial transaction for profit and if so, the extent to which the defendant was planning to gain financially. That is not the case here. The evidence is that he used the notes in order to purchase food, accommodation and transport.

(f) The total period of offending in this case was only between about 16 July 2004 and 26 July 2004, i.e. 10 days.

(g) The total face value of the notes was $13,600.00.

(h) The number of counterfeit notes not recovered: not known but not believed to be many.

(i) The amount the accused gained by uttering the notes: $400.00.

(j) There is no tariff for this offending.

(k) All of the offences are serious offences for the reasons stated in Rhode (1985) 17 A Crim R 166 and Institoris (2002) 129 A Crim R 458 and generally warrant a sentence of imprisonment except in exceptional circumstances.

(l) Care needs to be taken to ensure that there is not double punishment in respect of some of the offences in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610 where elements of an offence form part of the elements of another offence.

(m) The implements used were common objects readily available in the market place and were therefore in a different category from printer’s plates.

(a) The appellant’s plea of guilty and cooperation with the authorities. The plea was early and was accepted as a sign of remorse and contrition.

(b) He had no prior convictions for currency offences. He has a large number of convictions for drug offences, one prior for stealing for which he got probation and a restitution order and one prior for possession of tainted property for which he received community service.

(c) He has a B.A. degree obtained in 2001. He is in a long-term relationship. He was addicted to amphetamines and had a gambling problem. At the time of his arrest he was ‘on the run’ from authorities in Queensland. He has good family support. The sentencing Judge concluded that he had good prospects of rehabilitation.

(d) He was arrested on 26 July 2004. The matter was not concluded until 17 June 2005. The reason for the delay was because he had also confessed to the offences now contained in the indictment dated 7 June 2005 and this required investigation by police from Queensland. The sentencing Judge took into account that the delay was not his fault and he had the matter hanging over his head for a long time.

14. Having regard to all of these factors a total sentence of 7 years is in my opinion manifestly excessive. I consider that a total sentence for this offending would not warrant more than 3 years bearing in mind a 25 per cent discount for a plea of guilty and contrition, etc.

15. It is therefore strictly unnecessary to consider the other ground. However, clearly the other ground was made out. Her Honour allowed a 25 per cent discount on the plea to the Commonwealth indictment of 7 June 2005. There was no reason why a discount of at least 25 per cent was not warranted for the indictment of 17 February 2005.

16. It is no answer to say the two sentences were made concurrent: see Pearce v The Queen (supra) at para [49].

[7] As to the indictment of 7 June 2005, I consider that the following matters are relevant to the fixing of the head sentence:

1. There were 8 counts of making counterfeit $100 notes involving a total of 784 notes. All but 64 of these notes were made in November 2003. The remainder were made between 1 November 2003 and 16 July 2004.

2. There were 26 counts of uttering a total of twenty eight $100 notes. These counts were all between 1 April 2004 and 16 July 2004, a period of three and a half months.

3. Altogether, on both indictments, there was a total of 795 notes made of which 720 were not in final form; of the 720 notes, 125 of the notes were also the subject of the “possession” count on the indictment of 17 February 2005 and there is therefore some duplication warranting care to ensure there is no double punishment.
4. He is only charged with uttering 28 notes. The facts assert 74 notes entered the system, but he is not charged in relation to those additional notes.

5. The total amount involved of all the notes the subject of this indictment is $78,400 of which he stands charged of uttering notes to the value of only $2,800. The total value of the notes which entered the system is in any event only $7,400.

6. In relation to these counts, he made full admissions and again pleaded guilty at the first opportunity. I note that it was admitted that these counts could all have been contained in the indictment of 17 February 2005. The reason why this was not done was because by the time the Queensland police had investigated these offences the NT offences had already passed the stage of committal for trial and an indictment had been presented.

7. Her Honour said there is a total of 74 charges over the period from November 2003 until 26 July 2004 when arrested in the NT. This includes the 25 counts on the NT ex officio indictment.

8. Again, only the notes that were uttered were complete, but the completed notes were of good quality.

9. Although the total period of offending was between November 2003 and mid July 2004, the majority of the offending charged occurred in November 2003 and between April and July 2004.

10. The other factors relevant have already been mentioned in relation to the other count, but it is to be noted that the appellant’s cooperation with the authorities and remorse warranted a discount of 25 per cent of the head sentence.

11. Clearly the most serious offending are the 8 counts of making counterfeit notes. The value of these notes is not high. In Grant (Vic CCA, 27 June 1994, unreported), Crockett ACJ said that notes to the value of $164,950 was not a large sum in relative terms. We were not provided a copy of this case, but it is referred to in Institoris at 466 per Levine J. In Institoris, there were two separate counterfeiting schemes, both of which were for commercial gain and involving other parties. Institoris manufactured 1,500 $100 notes and 2,800 $50 notes. Counterfeit notes worth $88,750 were sold or disposed of. Only $9,900 worth of counterfeit currency was recovered. Institoris got 5 years 6 months for the $100 notes and 5 years for the $50 notes with some accumulation totalling 9 years (the maximum penalties at that time were the same as now). In Rhode, the defendants printed $50 notes with a face value of nearly $5 million. Rhode pleaded guilty to forgery, possession of forged notes and making the printing plates and got a total sentence of 3 years 6 months increased on appeal to 5 years. The offences at that time were under the Reserve Bank Act 1959 and carried different maximum penalties. However, forgery still carried 14 years and the possession and making of the plates 4 years. Clearly the present case is nowhere near the class of case dealt with in Institoris or Rhode.

12. In my opinion, a head sentence of 10 years, reduced to 7 years 6 months for the utilisation value of the plea is far too high and is more appropriate for a large-scale commercial operation. In all the circumstances, I consider a sentence of 6 years reduced by 25 per cent to 4 years 6 months is appropriate.

13. However I consider there should be some cumulation of the sentences to reflect the different matters dealt with in the two indictments. I consider a total head sentence of 6 years is appropriate for the Commonwealth offences.

14. There is no appeal against her Honour’s sentence of 3 years imprisonment for the Territory offences. I do not consider that it was appropriate to make that sentence wholly concurrent with the Commonwealth offences because it involved totally different offending. In my opinion at least some portion of this sentence should be served cumulatively upon the Commonwealth sentences. In the circumstances and taking into account the totality principle, I consider that only 18 months of that sentence should be served concurrently upon the Commonwealth sentences. I would therefore restructure the sentences as follows:

(a) Sentence of 3 years imprisonment on the NT indictment to stand, back dated to 26 July 2004 with a non-parole period of 18 months similarly backdated.

(b) Sentence of 3 years imprisonment on the Commonwealth indictment of 17 February 2005, 18 months of which is to be served cumulatively on (a) above.

(c) Sentence of 4 years 6 months imprisonment on the Commonwealth indictment of 7 June 2005, 3 years of which is to be served cumulatively on (b) above.

(d) I would fix a non-parole period of 2 years 6 months on the Commonwealth offences to commence from the date the appellant commences to serve the Commonwealth sentences.

[8] In the end result, the head sentences total 7 years 6 months with a total non-parole period of 4 years which is the same result as that imposed by the learned sentencing Judge. However, in my opinion it is necessary nevertheless to allow the appeal and re-sentence the appellant accordingly: see Pearce at para [45], [49]; cf Institoris at para [99].

Riley J:

[9] On 17 June 2005 the appellant pleaded guilty to offences contained in three separate indictments. In relation to the first indictment (the Northern Territory indictment) he was sentenced to imprisonment for a period of three years with a non-parole period of 18 months. In respect of the second indictment (the Commonwealth indictment dated 7 June 2005) he was sentenced to imprisonment for a period of seven years and six months. In relation to the final indictment (the Commonwealth indictment dated 17 February 2005) he was sentenced to imprisonment for seven years. All sentences were to be served concurrently and in accordance with s 19AB (1)(d) of the Crimes Act 1914 (Cth) a single non-parole period of four years was imposed in relation to the Commonwealth offences. The appellant has appealed against the sentences imposed in relation to the Commonwealth offences. There is no challenge to the sentence imposed in relation to the Northern Territory indictment although the circumstances of that offending remain relevant to a consideration of the sentences under challenge.

[10] The Northern Territory indictment was an ex officio indictment containing 25 counts of which 15 were for offences of obtaining goods by deception contrary to s 227(1) of the Criminal Code, one was of possessing forged documents contrary to s 264 of the Criminal Code and nine were offences under the provisions of the Misuse of Drugs Act of manufacture, supply and possess methylamphetamine and of possessing implements for the production of methylamphetamine and precursors to be used in the manufacture of methylamphetamine.

[11] The Commonwealth indictment dated 17 February 2005 contained 15 counts relating to offending which occurred in the Northern Territory. The indictment included four counts of making counterfeit money, three counts of uttering counterfeit money, five counts of possessing counterfeit money, one count of possession of a machine used in connection with the making of counterfeit money and one count of possessing material used in connection with the making of counterfeit money. All offences were contrary to the provisions of the Crimes (Currency) Act 1981 (Cth).

[12] The Commonwealth indictment dated 7 June 2005 related to offending which occurred in Queensland and contained 34 counts of which eight were the making of counterfeit money and 26 the uttering of counterfeit money contrary to the provisions of Crimes (Currency) Act 1981 (Cth).

[13] The circumstances of the offending as presented to the learned sentencing judge were detailed and lengthy. For present purposes it is sufficient to record a summary of that information.

[14] The offending occurred over the period from November 2003 through to the day of the arrest of the appellant on 26 July 2004. During this period the appellant suffered from an addiction to amphetamines and the learned sentencing judge accepted that all of the offending was directly or indirectly related to that addiction.

[15] The appellant obtained a laptop computer, a printer/scanner, a guillotine and various other items of equipment necessary to enable him to counterfeit $100 Australian banknotes. In November 2003, at an apartment in Spring Hill in Queensland, he made approximately 200 A4-size documents containing two-sided images of the $100 Australian banknote. It is unnecessary to detail the procedure involved but there were a number of steps in the process. The penultimate step was to use the guillotine to cut the A4-size document down to four $100 banknote images and to insert the clear plastic window which appears in the genuine banknote. The final step was to rub candle wax on the note to replicate the feel of the polymer substrate used for the genuine Australian $100 banknote. The appellant finalised the process on an “as needs” basis shortly before attempting to pass each note. In all he made some 795 banknotes of which 720 had been printed but not finalised and 75 were uttered. Sixty-four completed counterfeit banknotes found their way into the Australian currency system and the appellant personally uttered at least 26 of those. Counterfeit notes were given by the appellant to other people who were told that the notes were counterfeit and advised as to how they should use them to obtain genuine currency. The notes were generally uttered by presenting them for purchases made in shops and obtaining change in genuine currency.

[16] Initially the counterfeit banknotes were uttered in Queensland, however at some stage the appellant travelled to the Northern Territory and he used some of the counterfeit banknotes to finance the trip. When he arrived in the Northern Territory he continued to finish making counterfeit banknotes undertaking the same process that he had adopted in Queensland. He completed 10 counterfeit notes which found their way into the Australian currency system through use in the Northern Territory.

[17] The appellant was only in the Territory for some 10 days prior to his arrest. Whilst in the Territory he committed offences of dishonesty unrelated to the uttering of counterfeit banknotes. These offences are dealt with in the Northern Territory indictment. He applied for and obtained a mobile phone service in a false name and he obtained goods and services by fraudulently using the credit card details of others. The offending included obtaining food, accommodation, a limousine and driver for a tour of Darwin, a rental car, sunglasses, a colour printer and scanner and other items.

[18] The value in monetary terms of goods and services received in relation to the offences identified in the indictments was in the order of $10,000. The appellant acknowledged that he had passed or attempted to pass a much greater amount of counterfeit currency than is identified in the indictments during the period under consideration.

[19] In sentencing the appellant the learned sentencing judge emphasised the seriousness of the offending, pointing out that the whole community needs to be able to rely upon the authenticity of money in circulation. She quoted the words of Levine J in Institoris (2002) 129 A Crim R 458 at par 38:

“The offences under the Crimes (Currency) Act, in my view, are particularly insidious in their very nature. The trick or deceit practised upon the community by the manufacture and uttering of counterfeit banknotes is immediately damaging and potentially disastrous. The achievement of the criminal objective, founded in greed, requires (as in this case) a determination from the outset to employ modern technology and experimentation. The objective is calculated to abuse every member of the community. Everyone should be free to conduct day-to-day affairs without concern about the integrity of this country’s currency.”

[20] Reference was also made by her Honour to the following observations of Brooking J in Rhode (1985) 17 A Crim R 166 at 173:

“The community must protect its currency. Forgery of bank notes is by no means a prevalent offence … but this state of affairs may not continue if the crime is not severely punished when it is committed. The need to deter others overshadows other considerations. The potential rewards for the counterfeiter are great and the potential damage to the community is even greater. Put forged notes into circulation, and confidence in the currency is at once destroyed. Further, crime is spawned and public and private loss, direct and indirect, and inconvenience are suffered. Ordinary people, suspecting that they have given good money for bad, are tempted to become criminals by passing the note. If there were no receivers, there would still be some thieves stealing for their own use, but if there were no utterers, there would be no counterfeiters, for the forged note is useless, unless it can be passed. And so uttering bad notes goes hand in hand with making them. Both are very serious crimes.”

[21] There are seven grounds of appeal relating to the offences under the Crimes (Currency) Act 1981 (Cth), however counsel for the appellant focused upon ground 7 as his “central ground”. Ground 7 raises the issue whether the total sentence was, in all the circumstances, manifestly excessive. Save for ground 6, the remaining grounds were described as providing possible explanations for the asserted miscarriage of the sentencing discretion.

[22] The general principles applicable to an appeal against sentence on the ground of it being manifestly excessive are well settled. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously, and not just arguably, excessive: Liddy v The Queen [2005] NTCCA 4 at [12].

[23] In support of the submission that the sentence was manifestly excessive counsel pointed out that the whole of the offending arose out of one course of criminal conduct, albeit over an extended period of time. It started in Queensland and continued in the Northern Territory when the appellant came to the Northern Territory to avoid investigators in Queensland. When arrested in the Northern Territory the appellant made full admissions including volunteering details of his offending in Queensland. He has been frank and co-operative with the authorities since the date of his arrest. He did not have detailed recall of all events but said that he made the counterfeit notes in order to make money to buy drugs, and the ingredients to make drugs, as well as to gamble. He admitted having passed some notes to associates for use by them. He volunteered information regarding his offending and, in particular, the offending in Queensland and those admissions to a large extent constituted the evidence against him.

[24] Counsel emphasised that relative to other cases the offending in this case did not involve a large number of counterfeit notes. The face value of the notes produced was modest and the value of the counterfeit notes that made their way into the Australian community was also relatively modest. By way of comparison the Court was taken to the judgments in Institoris and Rhode.

[25] The offending occurred in circumstances where the appellant had an addiction to amphetamines and the money obtained was largely used to finance that habit. Counsel acknowledged that part of the proceeds were directed towards providing a comfortable lifestyle including hotel accommodation, the use of a hire car and benefits such as a luxury tour of Darwin. On behalf of the appellant it was accepted that the learned sentencing judge took into account the mitigating factors put on his behalf. The submission was that although no specific error could be assigned, the total sentence was manifestly excessive. Further it was submitted that the need for such offending to be met with severe punishment could be achieved with a lower sentence.

[26] It is true that the number of counterfeit notes produced was relatively modest. However, whilst the quantity of the counterfeit notes produced is a factor relevant to the seriousness of the offending there are many other factors that need to be borne in mind. As Howie J (with whom Mason P agreed) said in Institoris (at par 78):
“Secondly, the amount of currency is a relevant consideration in an assessment of the criminality involved in the particular offence before the Court, but it is only one of the considerations. For example, in my view, there would be little mitigation in the fact that the counterfeiter was apprehended before he or she had the time to produce a great quantity of counterfeit notes notwithstanding that he or she had the material, intention, expertise and equipment to do so. In other words the criminality of the offence cannot simply be determined by the amount of currency produced or its face value. Whether the amount of forged currency produced should be considered as a matter of mitigation depends upon all the facts of the particular case.” (See also per Levine J at par 45).

[27] In the present case the appellant had produced a relatively small quantity of counterfeit notes. However those notes were produced over a period of time and were continuing to be produced as required. The appellant did not cease production but rather it came to a halt when he was arrested. He had the material, the capacity and the equipment to continue to produce counterfeit notes. On the other hand he had not utilised his skill and the available equipment to undertake a mass production of counterfeit notes. His operation was small in scale and geared to meeting his immediate needs. It was not a large-scale commercial enterprise.

[28] The offending was not an isolated incident. It took place over a period of months. The appellant had time and opportunity to reconsider his position and desist. In April 2004 he became aware of police interest in his activities and yet he continued to offend. At the time of his arrest the appellant was in possession of forged materials including a false Queensland driver’s licence, forged birth certificates, forged health cards and a false New South Wales learner’s driver’s licence. He had 31 A4-sized documents each containing a two-sided image of each of four $100 banknotes. These were the remnants of the documents produced in Queensland. He was still in possession of the computer and some other equipment used to manufacture the counterfeit notes.

[29] As has been observed, counterfeiting is an insidious and dangerous offence to the community. The offence becomes more serious as the level of sophistication increases. The quality of the counterfeit money is a relevant factor. In the present case the quality of the notes was sufficient to enable them to be passed on numerous occasions. The process created by the appellant was capable of being utilised by one person acting alone; it was, in that sense, simple yet effective. It had the capacity to cause much greater harm than had been realised at the time of the arrest of the appellant. As counsel acknowledged: “The counterfeiting was clever and did take place over a period of nine months”.

[30] There is no tariff in relation to offences of this kind: Institoris (supra at par 44). Whilst both uttering and counterfeiting are serious crimes it is clear that the offence of making the counterfeit notes will generally be regarded as more serious than uttering. The criminality involved in manufacturing the notes will, generally speaking, be greater than merely receiving and disposing of them: Institoris (supra at par 77). Indeed, the legislation under which the offences are set out provides for a higher maximum penalty for counterfeiting (imprisonment for 14 years) than for the offence of uttering (imprisonment for 12 years).

[31] In the present case the appellant operated alone. He was not a cog in a greater machine. He was not a mere functionary. He was the person who devised and implemented the scheme for creating the counterfeit notes and he, either alone or through others, introduced them into the Australian community. He involved others in his criminal conduct. He was responsible for the offending at all levels. Notwithstanding that he maintained a limited operation his criminality was of a relatively high order.

[32] The offending was a planned activity which involved numerous victims. It was a calculated act of criminality. It continued over a period of time and was ongoing. The appellant had exercised skill and effort in the manufacture of the notes. This was serious offending which called for condign punishment.

[33] However the issue is whether the sentences imposed in respect of one or both of the Commonwealth indictments was manifestly excessive. In my opinion each was manifestly excessive although the total effective sentence for all of the offending was not disproportionate to the overall criminality of the appellant. As was pointed out in Pearce v The Queen (1998) 194 CLR 610 at par 49, it is the individual sentences that fall for consideration not just their overall effect. Whilst the impact of the individual sentences has been modified by the direction that they are to be served concurrently it is necessary for this Court to intervene if the individual sentences are beyond the sentencing discretion of the learned sentencing judge.

[34] Bearing in mind that the maximum penalty for the offence of making counterfeit money is imprisonment for fourteen years I regard the starting point of imprisonment for ten years adopted for the offences covered by the indictment of 7 June 2005 as being clearly too high. I agree with the observation of Mildren J that the sentence imposed is reflective of a larger scale commercial operation. Similarly the starting point adopted in relation to the sentence imposed in respect of the offences disclosed in the other Commonwealth indictment was too high. Whilst the direction for concurrency meant that the overall sentence was appropriate the individual sentences which were the subject of challenge were, in my opinion, manifestly excessive.

[35] The sentences in respect of the first and second Commonwealth indictments should be set aside. I agree with the restructure of sentences as proposed by Mildren J.

Ground 6

[36] The appellant presented separate argument in relation to this ground. It was submitted that the learned sentencing judge erred in failing to reduce the sentence imposed on the Commonwealth indictment dated 17 February 2005 to reflect the appellant’s early plea, remorse and co-operation. In imposing sentence on that indictment her Honour sentenced the appellant to imprisonment for seven years. On the other Commonwealth indictment she sentenced him to imprisonment for 10 years. She then ordered that the sentences be served concurrently and said:
“This is a total of 10 years imprisonment with respect to the Commonwealth offences. In recognition of his early indication of a plea of guilty and his co-operation with the authorities, I reduce this sentence to seven years and six months. I fix a non-parole period of four years.”

[37] The effect of that approach was that the head sentence on the second Commonwealth indictment was reduced to reflect the plea of guilty and the other matters referred to but the penalty on the first indictment was unaffected. The appellant is correct in his assertion that this disclosed error. However, he was also correct in his acknowledgment that the point was “academic” in the circumstances.
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