R v DBJ[2015] QCA 247

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Morrison JA and with his Honour’s reasons for it.
2. MORRISON JA:  On 24 November 2014 Mr DBJ pleaded guilty to two counts: 1. conspiracy to murder; and 2. attempted burglary by breaking in the night.
3. He was sentenced to six and a half years imprisonment on the conspiracy to murder count, and two years on the other.  The sentences were ordered to be served concurrently, and parole eligibility was set at 1 January 2016, or after having served two and a half years.  A total of 511 days pre-sentence custody was declared as time served.
4. Mr DBJ seeks leave to appeal against his sentence on the ground that it is manifestly excessive.  The reasons advanced for that contention define the issues for the Court:

1. considerations of the parity principle;
2. his cooperation was not given appropriate weight; and
3. he has particular mitigating features that warrant a lower sentence.

Nature of the offences

5. An agreed schedule of facts set out the circumstances of the offending.
6. Mr DBJ married ABC in 2005.  She already had a child, and together they had two more.  Their relationship was tumultuous and they separated in August 2012.  In September 2012 ABC applied for a Domestic Violence Order.
7. In November 2012 Family Court proceedings were commenced and custody of the three children was in issue.  Pending the determination by the Court, Mr DBJ and ABC shared custody.  That was the case until 30 May 2013 when the Court ordered that the child from ABC’s prior relationship was to have no further contact with Mr DBJ until the next Court date on 7 August 2013.
8. Mr DBJ and a friend (JS) went to the home of JS’ cousin, X.  Mr DBJ sought legal advice from X in relation to the Family Court proceedings.  Mr DBJ and X were in contact over the next few days or weeks.
9. According to Mr DBJ, X called him and said that he (X) had someone who Mr DBJ should meet, and that person may be able to “eliminate [his] problem”.
10. According to X, Mr DBJ got in touch with him through JS, as a consequence of which they met at X’s home.  There Mr DBJ sought X’s help to “scare the living shit out of [his] ex”.  X said he would not assist but, after further discussion, said he would arrange a meeting with someone capable of doing some “intimidation”.
11. A few days later, about 17 or 18 June 2013, X spoke with a man (Y) and told him about Mr DBJ.  X said he asked Y if he was interested in some “intimidation work” and suggested he enlist the help of another (Z).  Following the discussion between X and Y, X rang Mr DBJ and told him (before Mr DBJ arrived at X’s home) that he had found someone.
12. When Mr DBJ arrived he spoke separately to Y, away from X.  According to Y, Mr DBJ told him that he wanted ABC left incapable of caring for the children.  He proffered ideas of how this could be achieved, suggesting that Y push ABC in front of a moving car or bus.  Mr DBJ said that Y would be “paid with a car”, a deal confirmed by X and Z.
13. Following this conversation, Y said he contacted Z and told him about the “job” and Z attempted to discourage him from doing it.  However, on X’s evidence, X was told by Y that Z was interested in assisting and would be at the house in the next couple of days.
14. The next day X received a call from Mr DBJ asking if the “job” could be hurried up and a meeting organised.  X agreed to arrange the meeting and a short time later Y and Z arrived at X’s house.  X said that he told the others how to intimidate ABC, however there were further discussions later where Mr DBJ said he wanted ABC killed.  After this the four of them discussed the methods of carrying out the murder and X and Mr DBJ, on Y’s evidence, and Mr DBJ on the evidence of X and Z, suggested that it be made to look like a “break and enter gone wrong”.  It was at this point Z said he wanted no part in the matter.
15. During one of the conversations Mr DBJ showed Y a photograph of ABC.  There were also discussions about where she lived and Y, after getting the address or at least the location of the house from Mr DBJ, searched and located her house using ‘Google Maps’.  On one occasion X dissuaded Y from being too violent because it may lead to him leaving DNA at the scene.
16. On or about 20 June, Mr DBJ told Y that he was not to use any weapons and that he should commit the offence at 2 am when ABC was asleep.
17. On or about 22 June 2013, seemingly the day of or after a Family Court hearing in relation to the custody of ABC’s first child, Mr DBJ told Y and X that the “job” was to be done that night.  Mr DBJ said that X provided Y with a knife and $100 to pay the driver.  However, X said that while he gave Y $100 he did not know what it was for.  After this discussion, Y was driven by an unknown male to ABC’s house, arriving at approximately 1.00 am.
18. On arrival Y did not follow through with the plan as the lights were on in the house.  Following that failure Mr DBJ told Z that Y had “failed”, and that it was because Y had told the driver, a Rebels member, “too much”.  Z then witnessed a conversation between Y and Mr DBJ where Mr DBJ stated that he still wished for the “job” to be done.
19. On Friday 28 June 2013, Mr DBJ, on the evidence of Y, stated that the “job” had to be done that day.  As a result of this Y was driven by Mr DBJ to a shopping village near ABC’s house.  On Mr DBJ’s evidence that was after Y spoke to Mr DBJ about trying the job again.  Y was dropped off before Mr DBJ took custody of his two biological children.  Mr DBJ also took possession of Y’s mobile phone.
20. That evening, into the early hours of 29 June 2013, Y waited in a park near the house for ABC to go to sleep.  He periodically went to the house to see if she was asleep.  Y continued to do so until approximately 2.00 am when he noted the lights were off.  Y subsequently tore a fly screen on the lounge room window and attempted to gain entry to the house, however he was unsuccessful.  He returned to the public toilets in the park and burned a bus ticket, the remnants of which were located by police on 30 June 2013.
21. At about 5.30 pm on 29 June 2013, Y attended his mother’s address and logged on to his Facebook account where he engaged in text based conversations with X.  During these conversations Y expressed his fear of Mr DBJ as a result of not completing ‘the job’.  X said he was aware that morning that the “job” had not been completed, and for Y to return to X’s house to speak with Mr DBJ.
22. At approximately 6.10 pm, Y contacted police and disclosed some of the offending.  He was then brought to the police station and provided a “witness statement”.  Following this Y participated in two recorded phone calls with Mr DBJ on 29 and 30 June, and arranged a meeting at X’s house.  During the second call Y said that the threats by Mr DBJ towards Y’s family, if he didn’t do ‘the job’, were not right.  Mr DBJ responded “Yeah, just like we’re meant to be dealing with [my family]”.
23. On 30 June 2013 Y, with a body wire, attended X’s house and spoke with X and Mr DBJ.  During this conversation Mr DBJ threatened Y and said in discussing the events of 28/29 June, “Be very careful with what you tell me because if you’re full of shit I will deal with you immediately because you weren’t there alone”.
24. After their arrests in late June/early July, 2013, Mr DBJ, Y and X participated in interviews with police and provided statements to them about their involvement.

Role of Mr DBJ

25. Mr DBJ’s’ role was pivotal in the murder plans:

1. up to the point when he met Y, Mr DBJ had expressed the intention of “scaring the living shit” out of ABC, or intimidating her, and had enlisted X to assist;
2. when Mr DBJ spoke to Y, the level of intended harm increased; this time it was that Mr DBJ wanted ABC rendered incapable of caring for the children; for that purpose he proffered suggested actions, such as pushing her in front of a moving car or bus; and he offered payment in the form of a car;
3. then Mr DBJ wanted the job hurried up, and a meeting was arranged with X, Y and Z; at that meeting X instructed Y and Z how to intimidate ABC; however Mr DBJ increased the level of intended harm again, saying he wanted ABC killed; the four of them then discussed ways of killing ABC;  Mr DBJ suggested that it be made to look like a break and enter gone wrong;
4. Mr DBJ showed Y a photo of ABC and gave him the address; he said not to use weapons and to do the job at 2 am, when ABC would be asleep;
5. a couple of days later he told Y that the job was to be done that night; Y tried and failed;
6. Mr DBJ then told Y to try again as he still wished the job to be done;
7. six days after the first attempt, Mr DBJ told Y that the job had to be done that night; he drove Y to a shopping village near the house, where Y was dropped off so that he could access the house when the time came;
8. Mr DBJ made threats towards Y’s family if he didn’t do the job.

The sentencing judge’s approach

26. The learned sentencing judge referred to a number of factors which were taken into account when the sentence was imposed:

1. the plea of guilty was early signifying cooperation with the administration of justice;
2. Mr DBJ had a limited criminal history, and had spent 17 months in custody;
3. ABC was left frightened and anxious for her safety; the family had relocated on short notice (and at significant cost); there were huge ongoing adjustment issues, involving counselling for the children, who had lost relationships with their grandparents, close family and friends; ABC had to forego a career in nursing, and struggled to support her family;
4. Mr DBJ was the instigator, and had the ideas about how to carry out the plan, X was the facilitator and Y was the person to carry them out; Mr DBJ’s role was described this way:^[1]
5. “You were the instigator.  It was premeditated.  Your conduct escalated.  When it failed you wanted it to go on.  You insisted there be another attempt.  This was in the face of Family Court proceedings.  You took matters into your own hands, flaunting appropriate due process and flaunting the welfare and safety of your wife and children and they are serious matters.  Factors of personal and general deterrence loom large.”
6. both Y and X provided significant cooperation and were sentenced under s 13A of the Penalties and Sentences Act 1992 (Qld);
7. X was about 43 at sentence, and had a significant criminal history; he was sentenced to two years and nine months, to be suspended after serving ten months, with an operational period of five years;^[2]
8. Y was 22 at sentence, with no prior convictions; he was sentenced to four years, wholly suspended, with an operational period of five years;^[3]
9. it was a very serious offence involving a plan to murder in the context of Family Court proceedings; it was Y who abandoned the plan;
10. Mr DBJ used information from his marriage to ABC, such as to ABC’s sleeping habits and other information about her, to arrange her death; that attracted the description “treacherous”;
11. comparable cases: R v Pandelis,^[4] R v Noffke^[5] and R v Parks; ex parte Attorney-General (Qld);^[6] in Pandelis and Noffke the courts referred to terms of six to eight years as the applicable range;
12. Mr DBJ’s age (35), and upbringing, including having ADHD as a child; the fact that he had been the primary carer for the children when ABC was studying; that he now had no contact with his children; a good reference from a Minister of religion; Mr DBJ’s expression of remorse; all these were factors in favour of Mr DBJ;
13. her Honour declined to impose an SVO declaration, given that “there was no actual violence involved and the fact that you do not have a history of violence in your background and only a minor criminal history”.^[7]

The parity principle contention

27. The relevant principles have been laid down by the High Court in Postiglione v The Queen:^[8]

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice.  Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.  In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances.  If so, the notion of equal justice is not violated.  On some occasions, different sentences may indicate that one or other of them is infected with error.  Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice.  However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”.  If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence.  Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”

28. Mr DBJ contended that the sentence imposed on X was of such a marked disparity to his own that it gave rise to “a justifiable sense of grievance”.  The main reason advanced was that X’s criminality was not significantly different from that of Mr DBJ, despite X’s being characterised as a facilitator.
29. I am unable to accept that contention for a number of reasons.
30. First, Mr DBJ was, as his counsel on appeal accepted, the instigator of the plan and therefore had to bear a higher responsibility than X.^[9]
31. Secondly, the target of the intended murder was Mr DBJ’s ex-wife, and mother of two of his children.  Whilst X was the facilitator of that treacherous activity, the personal connection did not apply to him as it did to Mr DBJ.
32. Thirdly, the conspiracy to murder occurred in the context that this was Mr DBJ’s way of resolving the conflict between ABC and himself in the Family Court.  In that way he was abusing the due administration of justice, and attempting to avoid the court process.  That cannot be said of X even though he was an assistant in what Mr DBJ did.
33. Fourthly, it was Mr DBJ who escalated the desired outcome from merely intimidation to rendering ABC incapable of caring for her children, to killing.  While X remained part of that planning, he introduced Y to the plan for the purpose of carrying out intimidation, and even when Mr DBJ announced that he wanted ABC left incapable of looking after the children, what X told Y and Z was “how to intimidate” ABC.^[10]  It was only after Mr DBJ had said he wanted ABC killed that X participated in discussions about how to achieve that.  Therefore even in the escalation of the proposed violence and the ultimate proposal to kill, Mr DBJ was the instigator and X the facilitator.
34. Fifthly, whatever participation there was from X, it was only Mr DBJ who had the knowledge of ABC’s address and habits, and only he used them to plan the death with Y.
35. Sixthly, it was Mr DBJ, not X, who decided when the attempts should be made, and nominated a time of night.  When the first attempt failed it was Mr DBJ who insisted on a second attempt.  Then on the second attempt it was Mr DBJ who drove Y out to the vicinity of the house, and took Y’s phone (presumably as some measure of preventing detection).
36. Seventhly, it was Mr DBJ, and not X, who twice threatened Y or his family when the second attempt failed.
37. In my view there are other factors that mean the different sentences do not give rise to a justifiable sense of grievance.
38. X had the benefit of his sentence being influenced by considerations under the s 13A of the Penalties and Sentences Act 1992 (Qld) whereas Mr DBJ did not.  The learned sentencing judge referred to the fact that Mr DBJ had cooperated with police but both X and Y had already made statements under s 13A and agreed to give evidence against Mr DBJ.
39. That dichotomy was recognised in the submissions made on Mr DBJ’s behalf to the learned sentencing judge:^[11]

“He made admissions in the formal interview, which was clearly sufficient to see him convicted of the present offences but, in addition to that, he signed a witness statement for the police implicating not just himself, but the others who were involved.  Now, this, in my submission, is a matter of some significance.  My client is not in a position where he is able to give evidence against anyone else, because those deals have already been done and there’s no one else left on the indictment, but it is a matter of significance, in my submission.  It’s not that your Honour can proceed under section 13A and give him the extent of the benefit that that might avail someone such as a co-accused who does offer to undertake to give evidence, but he was a witness who was compellable and could have been called as a witness against the others and so he, at the time of his dealings with the police, signed a statement which could have been used against the other offenders and he could well have been called as a witness.  My submission is that that should be reflected by a real reduction in the penalty to be imposed.”

40. X’s sentencing took into account mitigating factors that are absent in Mr DBJ’s case.  Medical evidence was tendered revealing X had medical conditions which included chronic leg pain, type 2 diabetes, and post-traumatic stress disorder arising from about 10 years of childhood abuse.  The medical conditions required X to take daily medication.
41. The learned sentencing judge on X’s hearing accepted that six years was an appropriate sentence for this offence in these circumstances, but that a lesser term was warranted because X was not the person to commit the offence, and because of the mitigating circumstances.
42. In my view there can be no justifiable sense of grievance stemming from the fact that X received a lesser sentence.

The parole eligibility date

43. Mr DBJ contended that the fact that he was to serve more than one third before parole eligibility, when X was to serve only 10 months of a 33 month term, makes the sentence manifestly excessive, on an application of the parity principle alone.  Mr DBJ’s parole eligibility date was set at two and a half years, or 30 months, when one third of the head sentence would have been 26 months.
44. The learned sentencing judge referred to the reasons why she imposed two and a half years as the parole eligibility period:^[12]

“In my view the appropriate penalty in relation to count 1, which is conspiracy to murder, is six and a half years imprisonment.  … I will set a parole eligibility date at two and a half years.  In my view such a sentence reflects the seriousness of your conduct.  …

The sentence I have imposed, however, of six and a half years, with a parole eligibility at two and a half years, does reflect the seriousness of your conduct and the denunciation of this court and the community in the behaviour that you were involved with.”

45. The plea of guilty was timely and can be said to have saved the cost of a trial, but given the s 13A statements by the co-conspirators, and the fact that Mr DBJ gave his own statement (albeit self-serving) the day after he was arrested, admitting participation, a trial was never likely.
46. As explained below, the statement he gave was not only self-serving but downplayed his own role in the events.  The cooperation was therefore limited, and there was no occasion to treat Mr DBJ in the same way as X, who was sentenced under s 13A of the Penalties and Sentences Act 1992 (Qld).
47. The setting of a parole eligibility date at one third is typically done to reflect mitigating circumstances, including an early plea of guilty and cooperation with authorities.  However, that is not a fixed formula,^[13] especially if the head sentence has been reduced to take those factors into account.  The features that I have set out in paragraphs [30] to [36] above provide ample support for the learned sentencing judge’s imposition of a sentence of six and a half years, which is towards the bottom end of the appropriate range for this sort of offence.  In that way the benefit of the plea and cooperation have already been reflected in the head sentence.
48. Further, the other aspect that makes Mr DBJ’s position quite distinct from that of X is the threats to harm Y and his family, which, on one view, amounted to a threat to kill Y’s family.^[14]  Those threats were made after the second attempt failed, and were clearly intended to make Y renew his efforts in a third attempt.
49. In the circumstances, I do not consider that the setting of the parole eligibility date at two years and six months, instead of two years and two months (one third of the head sentence), can be said to be manifestly excessive or create a justifiable sense of grievance.

Cooperation – insufficient weight?

50. The learned sentencing judge took into account the issue of Mr DBJ’s cooperation.  Her Honour said that it was an early plea and “there has been cooperation with the administration of justice”.^[15]  Her Honour obviously thought the level of cooperation was less than that provided by X and Y: “They both provided significant cooperation and were sentenced in accordance with the provisions of section 13A of the Penalties and Sentences Act 1992 (Qld)”.^[16]
51. In paragraph [39] above I have set out part of the submission, made by Mr DBJ’s counsel at the sentencing hearing, in respect of cooperation (aside from saying that the plea of guilty demonstrated cooperation in the administration of justice).^[17]  The submission continued shortly after with counsel referring to X’s sentence:^[18]

“That’s not factoring in the fact that my client provided a witness statement to the police because a document, exhibit 4 and exhibit 7, doesn’t take account of any cooperation.

HER HONOUR: But did they need his cooperation given what [Y] had advised?

MR LYNCH: And I don’t say that my client should get the full extent of whatever might’ve been made available to anyone else.  I don’t say that.  But it is a significant factor, in my submission.  Say, for example, [X] had said, “I’m going to have a trial”, my client was in a position where he would’ve likely been called as a witness, and he obviously signed that document understanding that he was signing a witness statement.  So there’s no one left for him to give an undertaking to give evidence against, but he certainly put himself in a position where that was an option that was on the table at the start.  So your Honour can only deal with things as they’ve panned out.  And there is no opportunity for him to do that, but that, in my respectful submission, is a powerful mitigating feature which doesn’t appear to have been present in [Pandelis], at least, and it’s one of the reasons why my submission is your Honour would consider a sentence of five years imprisonment as the head sentence in my client’s case.”

52. The learned sentencing judge then demurred to the proposition that five years might be appropriate, prompting this response:^[19]

“My submission really is that the sentence – or the information concerning [X] contained in exhibit 4 and exhibit 7 might be the starting point and that my client’s cooperation by providing the witness statement is what might bring the sentence down to one closer to five years.”

53. Those submissions were evidently taken into account by the learned sentencing judge when she said: “…your counsel has referred to a number of factors which I will take into account, particularly your cooperation…”.  I can see no basis on which to conclude that her Honour did not give adequate weight to the submission.
54. In so far as error was urged on the basis that Mr DBJ should have been given significant discount because of the provision of a statement, albeit that it did not attract s 13A, I do not consider that the submission can be accepted.  Its force is seriously diminished when one considers that:^[20]

1. Mr DBJ was remanded on 1 July 2013;
2. on 2 July 2013 Mr DBJ gave his statement but it was self-serving, and portrayed the plan as a joke (at least in part of the statement), and downplayed his role;^[21]
3. there was a full hand-up committal on 31 October 2013;
4. X and Y were sentenced on 10 June 2014;
5. a sentence date for Mr DBJ was sought on 11 July 2014;
6. the sentence hearing was listed for 24 November 2014; and
7. no trial date was ever requested or offered.^[22]

55. In other words, the matter was not listed for sentence until after X and Y had provided statements against Mr DBJ, and had been sentenced on the basis of their s 13A cooperation.
56. In my view, there was no error in rejecting the submission that the cooperation warranted greater leniency.

Comparable cases

57. In R v Tout^[23] this Court stated the relevant principle to be applied where the issue is whether a sentence is manifestly excessive:

“.... a contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”

58. Mr DBJ’s approach before this Court was to accept that Pandelis and Noffke were comparable cases put before the learned sentencing judge, but to urge four points of distinction: the lack of significant criminal history; the timely plea; the manner in which the offending escalated; and the extent of his cooperation.  It was contended that those “distinguishing factors would equally support the sentence contended for”, namely five and a half years.^[24]
59. Pandelis involved a plea of guilty to conspiracy to kill, for which the offender was sentenced to six years’ imprisonment, with a recommendation for parole after serving two and a half years.  The plea was on the morning of the trial.  The sentence was challenged on parity grounds.  Pandelis, aged about 40 at the time of the offence, had a substantial criminal history.  He was the instigator and prime mover.  The other conspirators were much younger and pleaded much earlier than Pandelis.  It started as a plan to threaten the victim but escalated when Pandelis suspected the victim of attempting to seduce another conspirator with whom Pandelis was having a relationship.  It was an elaborate, premeditated and detailed plan, involving four others.  When apprehended the conspirators were in a car, armed with a sawn off rifle, two concrete blocks and a set of chains.
60. The Court said that six years “cannot for a moment be regarded as excessive” and it was “at the lower end of the appropriate range”, which was identified as six to eight years.  The Court also refused to interfere with the order that Pandelis serve more than one third before parole, saying the sentence was “at the low end of the range”.
61. Noffke involved a six year sentence for conspiracy to murder, imposed on a 31 year old offender with no history of violence (though some dishonesty offences).  There was a recommendation for parole after two years.  There was a late plea on the morning of the trial, though after a charge of attempted murder was dropped.  There was no remorse.  The main challenge was on parity grounds.
62. The offence arose out of a series of relationships: Noffke married and divorced husband 1, then married and divorced husband 2, then married husband 3, with whom she had triplets.  Then she resumed a relationship with husband 1 again, leaving the triplets behind.  Husband 3 took the triplets, prompting Noffke to return to cohabitation with him.  That seems to have prompted the offender to start planning his demise.  The plan was elaborate and detailed, involving drugging husband 3, wearing gloves and using a knife, and utilising her knowledge of the family arrangements.  It came unstuck because the drugs did not have the desired effect and husband 3 intercepted the attacker.
63. The Court referred to Pandelis as well as R v Jegodtka^[25] as cases supporting a six year sentence.  The Court identified the sort of factors that would influence the severity of the sentence, such as the extent to which the plan was carried into effect, and why it was frustrated or abandoned.  The Court said that “[t]o use … opportunities and information gained from the relationship as a means of arranging the death of a spouse or partner fairly attracts the description treacherous”.
64. The Court refused to interfere with the sentence, saying it was appropriate for the offence committed, and that factors “which argue forcefully for a sentence of at least the duration of that imposed” included the treachery because of the use of information derived from the relationship, and the fact that it was not because of any change of mind that the plan did not proceed.
65. In my view, the contended points of distinction do not avail Mr DBJ.  Whilst it is true to say that Pandelis involved an offender with a worse criminal history and there was a lack of remorse in each of Pandelis and Noffke, and each of those cases involved detailed planning, there are differences:

1. Pandelis and Noffke involved only one attempt to put the plan in action, whereas Mr DBJ insisted the attempts continue;
2. neither Pandelis nor Noffke involved an offender who threatened the person enlisted to carry out the actual act;
3. Pandelis did not involve the abuse of spousal information;
4. neither Pandelis nor Noffke involved the aspect of the due process and administration of the law being subverted; and
5. neither Pandelis nor Noffke involved the fact that the enlisted person was to be paid substantially (in this case, a car) for their effort.

66. I do not consider that it can be demonstrated that the sentence imposed here was manifestly excessive.

Conclusion

67. For the reasons expressed above I would refuse the application.
68. PHILIPPIDES JA:  As Morrison JA has succinctly explained in his reasons for judgment, there can be no reason for complaint that the sentence imposed was manifestly excessive.  I agree for the reasons stated by his Honour that the application for leave to appeal against sentence should be refused.