PARTIES:	RICHARD WANAMBI

v

ALAN WILLIAM PETER THOMPSON

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO:	No. 16 of 1994

DELIVERED:	Darwin, 12 December 1994

HEARING DATES:	29 July 1994

JUDGMENT OF:	Kearney J

CATCHWORDS:

APPEAL - whether notice of appeal can be amended to include additional grounds of appeal

Justices Act 1928 (NT), s163(1) , 166, 171, 172(1)(b) and 177

Kooba Pty Ltd v Hughes (1986) 22 A Crim R 241, followed Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) NTJ 708, referred to
Green v The Queen (1989) 95 FLR 301, distinguished
Gallo v Dawson (1990) 64 ALJR 458, referred to APPEAL - general principles - appeal against sentence
Salmon v Chute (1994) 94 NTR 1, followed
Gorey v Pryce (unreported, Thomas J, 18 August 1994), referred to

APPEAL - appeal against sentence - whether sentence manifestly excessive - whether special Groote Eylandt sentencing regime "applicable to offenders from outside Groote Eylandt" - relevant considerations

Mamarika v Svikart (unreported, Martin CJ, 23 December 1993), referred to

Joshua v Thomson (unreported, Kearney J, 27 May 1994), referred to
Raggett, Douglas and Miller v R (1990) 50 A Crim R 41, applied
Lowe v The Queen (1984) 154 CLR 606, applied
M v Waldron (1988) 56 NTR 1, referred to

CRIMINAL LAW AND PROCEDURE - appeal against sentence - Magistrate not informed whether 'first' offences were committed before or after the subject offences convictions for 'first' offences occurred after subject offences - extent to which Court may take 'first' offences and the subsequent convictions into account in sentencing

R v McInerney (1986) 42 SASR 111, followed

CRIMINAL LAW AND PROCEDURE - general principles - appeal against sentence - what the principles of natural justice require of the sentencing Court - scope of Court's duty to ensure parties are given a reasonable opportunity to be heard

Bayram v Benton (unreported, Kearney J, 2 September 1994), followed
The Nominal Insurer v Miljanovich (unreported, Kearney J,
21 October 1994), followed
Sullivan v Department of Transport (1978) 20 ALR 323, followed
Escobar v Spindaleri (1986) 7 NSWLR 51, referred to Nelson v Chute, (unreported, Martin CJ, 12 May 1994), distinguished
Munungurr v The Queen, (unreported, Court of Criminal Appeal, 11 February 1994), referred to

REPRESENTATION:

Counsel:
Appellant:	P. Burrows
Respondent:	J. Trier

Solicitors:
Appellant:	North Australian Aboriginal Legal Aid Service
Respondent:	Department of Public Prosecutions

JUDGMENT CATEGORY:	CAT A
JUDGMENT ID NUMBER:	kea94038.DIS
NUMBER OF PAGES:	38

kea94038.DIS

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN

No. 16 of 1994

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against a sentence imposed by the Court of Summary Jurisdiction at Nhulunbuy

BETWEEN: RICHARD WANAMBI
Appellant

AND:

ALAN WILLIAM PETER THOMPSON
Respondent

CORAM:	KEARNEY J

REASONS FOR DECISION

(Delivered 12 December 1994)

By Notice of Appeal of 14 April 1994 as amended on 29 July 1994, the appellant appeals pursuant to s163(1) of the Justices Act (herein "the Act") against an effective sentence of
6 months imprisonment imposed on him by the Court of Summary Jurisdiction at Nhulunbuy on 13 April 1994, after he had pleaded guilty to two counts of unlawful entry into dwelling houses contrary to s213 of the Criminal Code, and to two counts of stealing contrary to s210 of the Code.	These 4 offences were

committed at Alyangula on Groote Eylandt on 7 November 1993; the relevant facts are at p9.
He relies on 5 grounds of appeal, viz:-

The sentence was manifestly excessive.

The learned Stipendiary Magistrate erred, in that he took into account an offence committed by the appellant which was in fact a "subsequent" offence.

That the learned Magistrate erred in failing to advise the then counsel for the appellant that he was considering imposing a sentence of immediate imprisonment.

That the learned Magistrate erred in failing to consider sentencing dispositions alternative to actual imprisonment.

That the learned Magistrate erred in assuming that at the time of committing either these offences, or offences dealt with by the Court of Summary Jurisdiction at Yirrkala on 8 February 1994, one or the other of the two sets of offences was "hanging over the head" of the appellant at the time of committing the other set; and the learned Magistrate sentenced the appellant as though this was fact, and treated it as a circumstance of aggravation.

I deal first with the preliminary objection by Ms Trier of counsel for the respondent to the adding of grounds 3-5 above as grounds of appeal on 29 July 1994.
May the appellant rely on additional grounds of appeal nos.3-5?
Ms Trier submitted that the 3 additional grounds of appeal could not be relied on, for 2 reasons.
First, the additional grounds "effectively constitute a new appeal" and were lodged "extremely late", namely, the day the appeal was heard.	Pursuant to ss171 and 172 of the Act, the Court should not permit the appellant to rely on the additional grounds.

Second, the Court's discretion to extend the time within which to file the additional grounds should not be exercised, as no "substantial reasons" for doing so had been shown.	In support, Ms Trier relied on Green v The Queen (1989) 95 FLR 301 at p312.
Ms Trier further submitted that the Court should provide guidance as to the time-limit within which an appellant must file the grounds of appeal relied on, pursuant to s171 and
172 of the Act.

Ms Burrows of counsel for the appellant submitted that once the Court was satisfied that the additional grounds of appeal were valid and the Notice of Appeal of 14 April was defective in form or substance, then pursuant to s166 of the Act the appellant had "a right" to have the additional grounds included in the Notice of Appeal, and to rely on them at the hearing of the appeal.	She submitted that the Notice of Appeal of 14 April was defective in substance, and grounds 3-5 inclusive were valid. Ms Burrows conceded that if necessary there could be an adjournment of the hearing to allow the respondent to grapple with the late additional grounds of appeal.
Alternatively, Ms Burrows submitted that if substantial reasons for the delay in amending the Notice of Appeal were required, the delay was explicable on the basis that it was solely the fault of the appellant's solicitors, and not of the appellant himself; on that basis, she submitted, the amendment should be allowed, in justice to the appellant.

It is convenient to set out the relevant provisions of the Act relied on by both parties.
Section 171 of the Act provides, as far as material:-

"(1)	The appeal shall be instituted by notice in accordance with section 172, - - -

(2)	Every appeal shall be instituted within one month from the time of the conviction, order, or adjudication appealed against: - - -" (emphasis mine)
Section 172 of the Act provides, as far as material:-

"(1)	The notice of appeal shall be in writing, and shall be served upon the respondent, and shall state -

- - -

(b)	the nature and grounds of the appeal. (emphasis mine)
Section 166 of the Act provides:-

"No appeal shall be defeated merely by reason of any defect, whether of substance or of form, in any notice or statement of the grounds of appeal, but if upon the hearing thereof the Supreme Court is of opinion that any objection raised to the notice or statement is valid, it may cause the notice or statement to be forthwith amended: Provided that if the notice or statement appears to have been misleading, or to have occasioned expense, or to have prejudiced the respondent, the amendment shall be allowed only upon such terms as to costs or postponement, or both, as the Supreme Court thinks just." (emphasis mine)

In my opinion ss163(1) and 177 of the Act are also relevant; they respectively provide, as far as relevant:-
163	"(1)	A party to proceedings before the Court may appeal to the Supreme Court from a conviction, order, or adjudication of the Court - - - on a ground which involves -

sentence; or

an error or mistake, on the part of the Justices whose decision is appealed against, on a matter or question of fact alone, or a matter or question of law alone, or a matter or question of both fact and law,

as hereinafter provided, in every case, - - -

- - -

177	(1)	Every appeal shall be heard and determined by the Supreme Court in a summary way, and according to the rules of practice in force with reference to the proceedings of the Court in that behalf, and the Supreme Court shall have all the powers and duties, as to amendment and otherwise, of the Justices whose decision is appealed from.

(2)	Upon the hearing of the appeal the Supreme Court may -

- - -

affirm, quash, or vary the conviction, order, or adjudication appealed from, or substitute or make any conviction, order, or adjudication which ought to have been made in the first instance; -
- -" (emphasis mine)

This preliminary point is interesting, but hardly novel although it was said that there was no "authority exactly on point".
See, however, Kooba Pty Ltd v Hughes (1986) 22 A Crim R 241, which was not cited, and the authorities therein discussed.
In Kooba Pty Ltd v Hughes (supra) Asche J (as he then was) had to consider the effect of s166 of the Justices Act (S.A.) 1921, which is very similar in form and substance to s166 of the Act, as were the South Australian equivalents to ss171,
172 and 177.	His Honour considered the authorities and said (at pp244-245):-
"In summary, therefore, the South Australian cases establish a very wide power in the court to act under s166 even to the extent of:

adding a new ground not mentioned in the notice:
Tipping v Heineman (1922) SASR 424;

curing a notice in which the original ground given is nugatory: Buss v Phillips [1965] SASR 51;

converting a notice of appeal against sentence, or a notice of appeal against conviction, into a notice of appeal against conviction and sentence: Smith v Samuels (1976) 12 SASR 573.

The rationale of these decisions may be put in various ways.	For instance, it could be pointed out that the classical definition of an appeal is "the right of entering a superior court and invoking its aid and interposition to redress the error of the court below", per Lord Westbury LC in A-G v Sillem (1864) 10 H.L.C. 704 at 724; 11 E.R. 1200 at 1209.

On this point, the condition precedent to an appeal is the exercise of the right of entry; and that having been properly achieved the appellant should be allowed to bring in all materials necessary to demonstrate that material and his case generally; and non- compliance with those rules may put him in peril; but the court should be slow to shut out matters which might establish that very error in the court below which the appeal court should redress.

It could also be urged that the Supreme Court on appeal from a court of summary jurisdiction is directed by s177 of the Justices Act to hear and determine the appeal "in a summary way", and by s177(2), upon the hearing of the appeal the Supreme Court is given very wide powers including the power to "substitute or make any conviction, error or adjudication which ought to have been made in the first instance."

The expression "which ought to have been made" indicates that if it is shown that the decision below is wrong, the Supreme Court should, if necessary on proper terms, allow all appropriate amendments and procedural steps to be taken which ensure that the order which ought to have been made is in fact made.

Further support for a broad interpretation of the section comes from Callender v Edwards (1972) 66 QJPR
102 where Demack J (now Demack J of the Supreme Court Qld) allowed a notice of appeal to the District Court to be amended by adding further grounds.	In doing so, his Honour referred to s228 of the Justice Act 1886 (Qld), which is in similar terms to s177 of the Northern Territory and South Australian Justices Act.

He traced the origin of that section to s3 of the United Kingdom Quarter Sessions Act 1849 which itself was in identical terms to s4 of the United Kingdom

Poor Removal Act 1848 (11, 12 Vict c31); and he then cited The Inhabitants of Llangenney (1863) 32 LJ (MC)
265 where a court consisting of Wightman, Crompton, and Blackburn JJ confirmed the power of a court of quarter sessions to allow an amendment under s4 of the latter Act, to add a fresh ground of appeal.	He points out that it was submitted in that case that the power of amendment was limited to amendment of formal defects in the stated grounds, but this contention was rejected and the wider power of amendment recognised.

Demack J says, at 105-106:

"In my opinion, the power of amendment given by s228 should be construed widely to include the power to amend a notice of appeal by adding a fresh ground of appeal.		This seems to me to give full weight to the words of the section.	It also accords best with the general nature of an appeal under s222 which does involve in certain cases the rehearing de novo.	It does ensure that the full merits of an appeal can be canvassed without undue restriction by technicalities: cf the preamble of the Poor Removal Act 1848."

I should add that for the reasons given by his Honour, I would, with respect, prefer to follow the reasoning of Callender v Edwards than the contrary reasoning in Bone v Steffens (1972) 66 QJPR 99.

The wide interpretation of the section given by judges in other jurisdictions was followed by Forster CJ of this Court in Jabarula (1983) 14 A Crim R 309.	In that case, his Honour followed Smith v Samuels (1976)
12 SASR 573, and allowed an amendment to a notice of appeal which was against sentence, so as to appeal also against conviction.

I am, therefore, satisfied that this Court has the power to make the amendments sought by Mr Reeves in this case.	The next question is whether in the  exercise of discretion the amendment should be allowed.	While it is important that the substantial justice of a case should be determined on appeal, there are necessarily limits if the proper procedural steps are not taken.	The respondent has a right to know the basis upon which the appeal is instituted and the community has a right to demand that there be a finis litium.

Furthermore, there should be no encouragement to inexact presentation; or to a philosophy that, provided some general basis is laid at first, particulars may follow at one's leisure.	No doubt, in many cases, such matters can be cured by imposition of costs, but there will be others where the prejudice to

the respondent or the confusion of presentation is so great that it should not be permitted to go further." (emphasis mine)
I respectfully agree with his Honour's approach and comments: see also generally Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) NTJ 708.
I consider that Green v The Queen (supra) is readily distinguishable.	Here, the Notice of Appeal was lodged on
14 April 1994, one day after the appellant was convicted and sentenced.	This meant that the respondent was on notice within the time	specified in s171(2) that the appellant intended to appeal against the sentence.	In Green v The Queen (supra) the respondent was not put on notice that the appellant wished to appeal, until more than 16 months after the time for lodging a Notice of Appeal had expired.		The Court of Criminal Appeal was concerned with the principles upon which it would exercise its discretion to extend the time within which to institute an appeal, a very different matter to adding new grounds in an appeal already instituted, involving very different considerations.	See Gallo v Dawson (1990) 64 ALJR 458.
In this appeal Ms Trier conceded that the respondent would suffer no prejudice by the inclusion of the 3 additional grounds; no adjournment was sought.	I consider that the Notice of Appeal should be amended to include the 3 additional grounds of appeal, and I so rule.	The appeal was in fact argued on the
5 grounds.
The background to the appeal

On 13 April 1994 his Worship sat as the Court of Summary Jurisdiction at Nhulunbuy in northern Arnhem Land, and

summarily dealt with the stealing charges under s120 of the Act and, by consent, with the unlawful entry charges under s121A of the Act.		The 4 charges were read out.	The appellant pleaded guilty.	The Crown Prosecutor then read out a statement of facts, as follows:-

"THE PROSECUTOR:	Your Worship, on the evening of Saturday 6 November 1993 the defendant was at Umbakumba [on Groote Eylandt] drinking his allotted ration of beer with friends.	It was decided by the defendant's friends to attend at Alyangula and steal some alcohol from houses.	The defendant was asked if he wanted to attend to which he replied "Yes".	The defendant and others went to an area of Alyangula which is serviced by bush tracks backing onto bushland.

The defendant and others then went to 150 Jamba Street where they broke into the residence via an unlocked front door.	Once inside the following alcohol was stolen; three by 375 ml bottles of Bundaberg rum, a 750 ml bottle of white Sambucca, a three-quarter full bottle of black Sambucca, half a bottle of Tequila, -
- - one and three-quarter 750 ml bottles of gin, 750 ml bottle of Melon liqueur, [and] three 750 ml bottles of red wine.

- - -

The defendant and others then went across the road to
151 Jamba Street where they again gained entry via an unlocked front door.	Once inside the following alcohol was taken; 12 times 750 mil bottles of assorted wine, a 1 litre bottle of Vodka, 750 ml bottle of Vodka, a 1 litre bottle of Bourbon, a 1 litre bottle of Ballantyne Scotch and 12 375 mil cans of assorted beer.	The defendant and the others then returned to Umbakumba - - - where the alcohol was consumed.

The value of the property stolen from 150 Jamba Street was $300 and the value of the property stolen from 151 Jamba Street was $200.	On Friday 12 November 1993 the defendant was arrested by police at Umbakumba and was returned to the Alyangula Police Station where he participated in a taped record of interview in which he admitted the offences.	The defendant was bailed immediately.	At no time did the defendant have permission to enter those dwellings or take the alcohol.

HIS WORSHIP:	Is that all correct?

MR SOMERVILLE:	Yes."
On the basis of those admitted facts, his Worship accepted the appellant's pleas of guilty and recorded convictions in relation to each of the charges.
Mr Somerville admitted the appellant's prior criminal history but asked his Worship to disregard certain offences because they were "subsequent offences": this was a reference to
2 offences committed at Yirrkala on 21 August 1993 (though, vitally, that date was not known at the hearing on 13 April 1994) and dealt with on 8 February 1994 by the Court (see p13).
His Worship noted that the defendant was on a good behaviour bond at the time of the hearing before him, as a result of the disposition on 8 February 1994.
Mr Somerville then made submissions in mitigation of punishment.	The thrust of those submissions was that
his Worship should only consider imposing monetary penalties and restitution, or a community service order; see p14.
Mr Somerville did not refer to any other possible sentencing dispositions - for example, custodial dispositions - which were open to his Worship.
The learned Magistrate then immediately proceeded to sentence the appellant.	He referred to the following 8 factors:
the appellant was visiting Groote Eylandt when he committed the four offences;
offences of stealing alcohol from houses were "very, very prevalent" in Alyangula;
the offences were committed in Alyangula;

the appellant was "not the ringleader, not the instigator" of the offences; not "a major participator or just a bystander", but "a party to it with the others";
the appellant had made admissions to the Police;

on 8 February 1994, the appellant had been convicted at Yirrkala for unlawful entry and stealing; he was fined, ordered to pay restitution, and placed on a good behaviour bond for 6 months, expiring in August 1994.
I interpose that due to a lack of information, neither his Worship nor counsel before him knew whether the offences dealt with on 8 February 1994 were committed before or after the offences of 7 November 1993 with which he was dealing.	They were in fact committed on 21 August 1993, at Yirrkala.	On that point his Worship went on to say (see p17) "all I can be sure of, is that you weren't dissuaded by whichever came first to desist from the second."
apart from the plea of guilty there was "nothing much" to show contrition on the part of the appellant; and
the appellant's previous criminal history. His Worship clearly had in mind the principle of parity in sentencing; he enquired as to the dispositions of the
appellant's co-offenders.	Unfortunately, neither counsel was able to assist the Court on that aspect.
The appellant's submissions

First ground: sentence manifestly excessive

Ms Burrows submitted that the effective sentence of 6 months imprisonment imposed on the appellant was manifestly excessive, for 2 reasons.
First, since the appellant lived in an area, Trial Bay on the Arnhem Land mainland ,"serviced" by the community of Groote Eylandt, he fell to be sentenced under the special Groote Eylandt sentencing regime for his offences at Alyangula.	On the basis of statistical information showing that of about 131 sentences imposed under that regime for unlawful entries between
1 January 1993 and early November 1993, about 72% were community service orders, the sentence imposed on the appellant in the circumstances for "a typical Groote Eylandt offence" was so very obviously excessive that it was plainly unjust.
Second, the disparity in sentencing between the appellant and one Daniel Bara, one of his co-accused, was "such
- - that [it gave] rise to - - - a sense of grievance for the appellant"; nevertheless, Ms Burrows did not rely on unjustified and manifest disparity as such, as a ground of appeal, but submitted that Mr Bara's sentence also showed that the appellant's sentence was manifestly excessive.	Mr Bara had received 24 hours community service orders on 15 February 1994 at Alyangula for each of 2 offences on 7 November 1993, the unlawful entry and stealing at No.151 Jamba Street.	He was 4 years older than the appellant, about 28 years of age, unmarried like the appellant, had a number of priors for different offences, and had already served time in prison unlike the appellant.

In support Ms Burrows relied on the statistical material in her affidavit of 29 July 1994 and referred to Lowe v The Queen (1984) 154 CLR 606.
Second ground: taking account of "subsequent" offences
Ms Burrows sought to argue this ground in conjunction with ground 5 (see pp15-17).	Both grounds were said to raise the same alleged error, ground 5 in effect particularizing ground 2.
Ms Burrows acknowledged that the offences (of

21 August 1993) dealt with by the Court at Yirrkala on

8 February 1994, were committed prior in time to the offences of

7 November 1993 dealt with on 13 April 1994.	That is, the Yirrkala offences were not in fact "subsequent" offences. However, she gave a "spin" to the wording of ground no.2.	She submitted, correctly, that the sentence of 8 February 1994 was a "subsequent sentence", in the sense that the prior offences (of
21 August 1993) were dealt with by the Court (on 8 February 1994) after the second offences were committed (on 6 November 1993).	In other words, the offences dealt with by his Worship on 13 April 1994 were committed before the appellant had been sentenced on 8 February 1994, but after the offences for which he was sentenced on 8 February.
Third ground: Court's failure to inform counsel that a sentence of immediate imprisonment was being considered
Ms Burrows submitted in essence that in the circumstances of this case his Worship, sitting in what she

characterized as a "bush Court" - in the sense that proceedings had to be completed expeditiously in the limited time the Court and counsel spend on circuit at Nhulunbuy once a month - was obliged by the rules of natural justice to request further submissions from the appellant's counsel Mr Somerville on the suitability of imposing an immediate custodial sentence on the appellant, before imposing such a sentence.	Ms Burrows relied on the following exchange between his Worship and Mr Somerville, to support this submission:-
"HIS WORSHIP:	What are you asking me to do with him?

MR SOMERVILLE:	I'd be asking for monetary penalties and restitution.		I'm not sure if he can do community service at Trial Bay.	It appears that community service is not available.	He wants to get back to the outstation because as soon as he got into trouble he went straight back there where he doesn't get into any trouble.	It may be possible, Your Worship, to tailor something to fit in with the sentence in the subsequent matter.

HIS WORSHIP:	Yes. Yes, maybe.

MR SOMERVILLE:	I'm just informed, Your Worship, community service is a possibility.

HIS WORSHIP:	Why?

MR SOMERVILLE:	Because apparently there's an outstation where he can do it.	Perhaps the officer from Correctional Services can assist.

HIS WORSHIP:	Where could he do community work?

CORRECTIONAL SERVICES OFFICER:	Your Worship, he can do it at Bamyili.

HIS WORSHIP:	At Bamyili.	What's his connection at Bamyili?	They mightn't want him at Bamyili.

MR SOMERVILLE:	I'm informed that he can go there. I'm also informed that he's done CSO before as a fine option and completed that.

HIS WORSHIP:	Yes.	No, I'm not going to have him assessed."	(emphasis mine)

His Worship then proceeded to recite the relevant facts and circumstances.	There was an adjournment, his Worship continued as set out on p16, and imposed the custodial sentence on the appellant.
Ms Burrows also relied on Nelson v Chute, (unreported, Martin CJ, 12 May 1994).
Ground 4: failure to consider sentencing dispositions other than actual imprisonment
Ms Burrows submitted that his Worship had failed to consider the non-custodial sentencing options Mr Somerville had put to him above, as alternatives to the custodial sentence actually imposed.	Rather, his Worship had immediately imposed the custodial sentence, without expressly considering those alternatives; she submitted that he was obliged first to consider them.
Ms Burrows conceded that his Worship was not required to list these alternative non-custodial sentencing options and expressly deal with them one by one; nevertheless, she submitted, he was obliged to state that he considered the non- custodial sentencing options inappropriate, and state his reasons therefor.	She stressed that a custodial sentence is the punishment of "last resort", and submitted that the circumstances of the accused did not warrant such a sentence, particularly when the statistics set out in her affidavit were considered.
In support Ms Burrows relied on Munungurr v The Queen, (unreported, Court of Criminal Appeal, 11 February 1994) and the portion of the transcript set out at p14.

Ground 5 (p2): see also Ground 2 at pp12-13 Ms Burrows submitted that his Worship had erred in
that he had sentenced on the basis that either at the time the appellant committed the offences at Yirrkala on a date then unknown to the Court (in fact 21 August 1993), or at the time he committed the offences at Alyangula on 6 November 1993, the other offences (Yirrkala or Alyangula, as the case may be) were in fact "hanging over the head of the appellant at the time of committing the other".	In fact, she submitted, this was clearly not the case (see p13); there was nothing "hanging over the head" of the appellant on 7 November 1993, in the sense that it is common ground that he had not on that date been spoken to or charged by the Police for his offences of 21 August 1993.
Ms Burrows submitted that his Worship erred in taking into account that 'fact' - that is, that the appellant had been charged before 7 November with the offences of 21 August - as "a circumstance of aggravation"; she submitted it must have been a "critical factor" in his Worship's decision to impose a sentence of immediate imprisonment.
In support, Ms Burrows referred to the transcript of

13 April 1994, which records as far as material on this point:-

"HIS WORSHIP:	It was a summons matter, yes.	So you've been at liberty ever since on these matters. It's obvious from your prior record though that you came to the court at Yirrkala on 8 February for stealing and unlawful entry and you've had a fine and restitution to pay on that and you're on a good behaviour bond for 6 months expiring in August.	I don't know whether those matters [dealt with on 
8 February] were [committed] before these offences or after them.

- - -

As I was saying, Mr Wanambi, I can't be sure whether you stole and unlawfully entered in - - - Yirrkala - -
before or after you took part in these [offences of
7 November 1993] at Alyangula.	I therefore can't be sure whether the thought that you had these matters on the mainland [that is, the Yirrkala offences] hanging over your head should've dissuaded you from taking part in [the] Alyangula [offences of 7 November 1993]
or whether the thought that you had the matters at Alyangula hanging over your head should've dissuaded you not to take part in the matter [the offences in fact committed on 21 August 1993, a date not then known to his Worship] for which you got the bond at Yirrkala.

All I can be sure of is that you weren't dissuaded by whichever came first to desist from the second.	All I can be sure of is that apart from your pleas of guilty there's nothing much by way of contrition before me.
All I can be sure of it that you'd rather like your liberty and you'd be prepared to do some community work, but you're not suggesting any change of heart and that doesn't leave me very cheerfully disposed towards you, Mr Wanambi." (emphasis mine)
Ms Burrows submitted that if any of the 5 grounds of appeal were established, the sentence should be quashed and the case either remitted to the Court of Summary Jurisdiction for re-sentencing, or the appellant re-sentenced by this Court.
The respondent's submissions

Ground one: sentence manifestly excessive

Ms Trier submitted that this Court cannot interfere with the sentence imposed by his Worship on this ground, unless it was so very obviously excessive that it is unreasonable or plainly unjust: see Raggett, Douglas and Miller v R (1990) 50 A Crim R 41, Cranssen (1936) 55 CLR 509 and	R v Morse (1979) 23
SASR 98 at 99.

She submitted that the sentence was not manifestly excessive, for 3 reasons.
First, his Worship knew the accused came from a geographical area outside Groote Eylandt, namely Trial Bay, and

took this fact into account in sentencing the accused; that is, his Worship did not apply the special Groote Eylandt sentencing regime to the appellant, and was correct in taking that course.

She submitted that it was too late in the day for the appellant now to contend for the first time that the appellant was in fact subject to the special Groote Eylandt sentencing regime.	The onus had been on the appellant's counsel
Mr Somerville to bring the personal circumstances of the appellant to the attention of his Worship.	As the contention that he should be dealt with under the special Groote Eylandt sentencing regime was not raised before his Worship, it could not now be raised for the first time.	In support, she relied on Flanigan v Barrett (1988) 7 MVR 31; that authority does not seem to bear upon the point.
Second, "the [effective] sentence is nowhere near the upper range for the offences".	The maximum penalty for each unlawful entry is 10 years imprisonment, and for stealing 7 years, subject to the jurisdictional limits respectively set out in ss121A(2) and 129 of the Justices Act: see Cooper v O'Brien (1992) NTJ 1900 and Sultan v Svikart (1989) 96 FLR 457.
Further, his Worship took into account the prevalence of the offences in Alyangula, as he was quite entitled to; see Peterson (1983) 11 A Crim R 164.
Third, Ms Trier submitted that as to the punishment imposed on the appellant's co-accused Mr Bara, it had to be borne in mind that the appellant's criminality was "somewhat greater than Mr Bara's".	Mr Bara had been charged only with one

count of unlawful entry and one count of stealing; on this basis, the sentence on the appellant could not be said to be manifestly excessive, by way of comparison.
Ms Trier also submitted that the appellant had incorrectly relied on the point of unjustifiable sentencing disparity with Mr Bara, by using it to submit that the appellant's sentence was thereby shown to be manifestly excessive.	The disparity point should have been a separate ground of appeal; see Lowe v The Queen (supra) at p611, per Mason J.
Grounds two and five

Ms Trier submitted that grounds 2 and 5 appeared to be two separate and distinct grounds of appeal; the former was directed to his Worship wrongly taking into account a "subsequent offence", while the latter involved an interpretation of the transcript of the proceedings before
his Worship (see pp16-17), as to what he had in fact taken into account when sentencing the appellant.	However, for convenience, she dealt with them both together.	She made two submissions.
First, she submitted that as the Yirrkala offences were in fact committed on 21 August 1993 and the four offences the subject of this appeal were committed later on 7 November 1993 his Worship when sentencing for the offences of 7 November was entitled to, and did, take into account the earlier Yirrkala offences.	She conceded that there was in fact no charge for the earlier offences of 21 August "hanging over the head" of the

appellant on 7 November, when he committed the Alyangula offences.
In support, Ms Trier relied on R v McInerney (1986) 42 SASR 111 at pp111 and 123, Driver v The Queen (1989) 97 FLR 23
and R v Mulholland [1991] 1 NTLR 1.

Second, Ms Trier submitted that what his Worship meant in the portion of transcript set out at pp16-17, in essence
was:-

'I don't know whether charges for these present offences of 7 November 1993 were hanging over your head when the other offences at Yirrkala were committed, or whether it was the other way round.  What I do know is that you then knew you had committed the Yirrkala offences, and your knowledge of that criminal behaviour did not dissuade you from committing the offences of 7 November.'

I observe that this interpretation does not square with the admitted fact that his Worship did not know whether the Yirrkala offences were committed before or after the Alyangula offences; he could not have been saying that "you then [on 7 November 1993] knew you had committed the Yirrkala offences."	Ms Trier submitted that this was the only weight his Worship gave to the Yirrkala offences; he did not give them the weight Ms Burrows contends he gave, at p16.
Ms Trier further submitted that based on the appellant's "continued - - - criminal propensity and criminality," as reflected by his commission of the offences of
7 November 1993, his Worship was entitled to bear the Yirrkala offences in mind in ascertaining the appellant's "mens rea" in respect of the offences of 7 November; to do so in sentencing was not to re-punish the appellant for the Yirrkala offences.

In support Ms Trier relied on the authorities cited at p19, particularly R v Mulholland (supra) at pp13-14.
Ground 3: Court's failure to inform counsel Ms Trier submitted in essence that his Worship,
whether sitting as a "bush Court" or otherwise, was not under a duty to inform counsel he was considering a custodial disposition.	It was not without significance, in her submission, that Ms Burrows could not cite any authorities to support her submission to that effect at p13.
Ms Trier submitted that the appellant's then counsel Mr Somerville had a duty to canvass all the sentencing dispositions open to his Worship.	His Worship had clearly invited Mr Somerville to make submissions at large as to the appropriate sentencing dispositions, when enquiring "what are you asking me to do with him?".	In response, Mr Somerville had chosen to confine his submission to non-custodial dispositions; see p14.
Further, Ms Trier submitted that once his Worship had indicated immediately after the transcript at p17 what he considered to be the appropriate disposition	- "I think this is  a proper case for a prison sentence, Mr Wanambi, not a long one, but a prison sentence nonetheless" - Mr Somerville should then have sought leave to address on that disposition, if he had earlier contemplated that it was not open.	He had not done so.
Ms Trier submitted that if the appellant were correct - that the sentence imposed, in terms of the statistics provided, was applicable only to a 'worst category' case - this would have

been a further reason for Mr Somerville to have sought to do so, following his Worship's sentencing indication above.
Ground 4

Ms Trier submitted in essence that his Worship had considered alternative non-custodial dispositions.	In particular, she sought to distinguish Nelson v Chute (supra), on the basis that that case involved the sentencing of a juvenile, and thus involved sentencing considerations quite different to those applicable to the appellant, an adult aged 24 years.
Ms Trier submitted that the appellant had failed to show that the effective sentence of 6 months imprisonment was manifestly excessive, or that the Magistrate had erred, and accordingly the appeal should be dismissed.
The appellant's submissions, in reply

Ms Burrows submitted first that his Worship, a very experienced Magistrate who had a general knowledge of Groote Eylandt and its outstations, had treated the appellant as being subject to the special Groote Eylandt sentencing regime.	She submitted that this was clearly apparent from his sentencing remarks.
Second, she submitted that R v Mulholland [1991] 1 NTLR 1 was very different to this case, and distinguishable on its facts.
Third, Ms Burrows submitted that a fair reading of the transcript of 13 April 1994 (pp16-17) showed that his Worship had in mind that clearly one of the two sets of offences (now known to have been committed on 21 August and 7 November 1993 respectively) was "hanging over the head" of the appellant at

the time the other was committed.	"Hanging over the head" meant that at the time he had been spoken to or charged by the Police, but not tried; this was not correct.		His Worship must have treated it as fact and taken it into account as an aggravating factor, to have imposed a custodial sentence.	The appellant was dealt with in February 1994 for offences of 21 August 1993 unrelated to the Alyangula offences.	For those, he was placed on a good behaviour bond, which had not been breached as at
13 April 1994.	The offences of 7 November 1993 the subject of this appeal occurred "long before" the bond of 8 February 1994 was imposed.	Therefore, it was more appropriate that a non- custodial disposition be imposed on the appellant.
Fourth, she submitted that the point on which Ms Trier sought to distinguish Nelson v Chute (supra) was not relevant to the fourth ground of appeal; that authority applied squarely to this case.
Conclusions

The general principles applicable to dealing with appeals against sentence under s163(1) of the Act are set out in
Salmon v Chute (1994) 94 NTR 1 at 24:-

"It is fundamental that a trial judge's [or magistrate's] exercise of his sentencing discretion is not to be disturbed on appeal, unless error in that exercise is shown:	Griffiths v R (1977) 15 ALR 1; 137 CLR 293 at 308-9, per Barwick CJ.	The presumption is that there is no error.

See also R v Anzac (1987) 50 NTR 6 at 11-12.

In	R v Tait (1979) 24 ALR 473 at 476; 46 FLR 386 at
388, the Full Court of the Federal Court, citing from Cranssen v R (1936) 55 CLR 509 at 519, set out the fundamental rule on appeals against sentence as follows:

"The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles.	It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe - - -.

- - -

An appellate court does not interfere with the sentence imposed merely because it is of the view that that 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 - - - ."

See also Gorey v Pryce (unreported, Thomas J, 18 August 1994), at pp5-6.
The first ground of appeal: sentence manifestly excessive
Ms Burrows' submissions (at pp11-12) on the first ground of appeal assumed that the appellant was subject to the special Groote Eylandt sentencing regime, notwithstanding that he resided in Trial Bay, a locality on the Arnhem Land mainland.
Ms Trier challenged that assumption; see pp17-18. If correct, the statistics on the Groote Eylandt sentencing regime, relied on by Ms Burrows to found her submission that the sentence was manifestly excessive, are simply not relevant to the sentence imposed on the appellant.
I consider Ms Burrows' proposition that the special Groote Eylandt sentencing regime, with its emphasis on community service orders, applies to persons who reside at Trial Bay, is not established.	That regime, the existence of which has been recognized judicially in this jurisdiction (see, for example

Mamarika v Svikart, unreported, Martin CJ, 23 December 1993) at pp8-9, and Lloyd Joshua v Thomson & Svikart, unreported,  Kearney J, 27 May 1994) is a scheme primarily directed to the Aboriginal inhabitants of Groote Eylandt.	It extends to certain mainland areas on the east coast of Arnhem Land, the traditional inhabitants of which have strong familial ties with Groote Eylandters.
The Magistrate responsible for instituting and conducting the sentencing scheme, Mr Bruce McCormack SM, delivered a detailed paper in 1993 entitled 'The Criminal Justice System on Groote Eylandt in 1993' (June 1993).
His Worship said at pp19-20:-

"The Court of Summary Jurisdiction is conducted in various Aboriginal communities in the Northern Territory.	The program of monthly visits by a magistrate to these communities, called the "Aboriginal Community Justice Program", has been introduced not only for obvious pragmatic reasons (finance, travel etc.) but also to take our system of justice to Aboriginal communities and to enable magistrates to administer this system in local circumstances.	The program, as the name implies (the name owes more to locality and identity of offenders than anything else) is designed to meet the needs of the community in which it operates.

It is important that the concept of "community" in the Criminal Justice System is understood to mean firstly the entire Northern Territory community, secondly the Aboriginal section of the entire Northern Territory community, and thirdly a small community in which the court sits.	The system of community justice can only be meaningful to the extent that it complies with the moral and social expectations of the local community. 
 The system in effect should "belong" to the community in which it operates.

It surely follows that justice in the community therefore can only be effectively delivered by a system which incorporates a thorough knowledge of the community, its history, clans and moieties, encourages community participation and involvement when and if necessary, and continuously monitors the effectiveness or otherwise of court dispositions.	These basic 

requirements properly reflect "the fundamental truth that the administration of the criminal law is for any jurisdiction an intensely local experience".

To achieve the aims of the Community Justice Program on Groote Eylandt, the same magistrate [Mr McCormack] since November 1990 (with few exceptions) has conducted the Court of Summary Jurisdiction and dealt with all Groote Eylandt offenders when remanded to the Court of Summary Jurisdiction in Darwin for offences committed on Groote Eylandt and where possible for offences committed by Groote Eylandters in the Darwin area." (emphasis mine)

As to the special sentencing regime itself, his Worship said (at p16):-
"A policy of self imposed ceiling for sentences has been adopted on Groote Eylandt.	The ceiling for sentences imposed for property offences is usually 3 months and for offenders convicted of multiple offences 6 months.	For violent offenders there is no ceiling but attempts are made to ascertain the views of the victim's family and the community generally in relation to a violent offender.

Community Service Orders on Groote Eylandt are usually limited to 120 hours even for those convicted of multiple offences as lengthy CSOs, it is suggested, are counterproductive.	A CSO requiring, say, 120 hours (15 days at 8 hours) could be expected to take at least 30 working days often, because of the limited hours worked each day.	Furthermore as allowances are made for ceremonial commitments, holidays, absenteeism and so on, a 120 hour CSO order may take a young offender several months to complete.	Penalties of this type for say a simple unlawful use or break, enter and steal are seen to be burdensome, too long and it is suggested serve no useful rehabilitative purpose."

It is against this background that Ms Burrows' submission in the following exchange in Court must be understood, viz:-
"HIS HONOUR:	- - - I appreciate now why you opened up by laying some stress on the fact that you say Groote Eylandt was servicing the place where this offender came from.	I mean, one can understand why a particular regime of punishment might be imposed for a particular community, to deal with that community's particular problems; a regime of punishment [on Groote Eylandt] which is very much less, it seems to me, than elsewhere in the Territory.	But it would be terrible if that encouraged people to come in from elsewhere

and commit with relative impunity, quite serious crimes such as this.	I regard unlawful entry of dwelling houses as a very serious crime, not only for what happens to be done there, but for the potential for what can be done.

MS BURROWS:	Your Honour, I agree, and indeed - - -

HIS HONOUR:	So that's a factor.	You say that, really, I should treat this man, for all practical purposes, as being a Groote Eylandt man?

MS BURROWS:	That's correct, Your Honour, and if I just might clarify one or two things in what Your Honour's said.	Firstly, that in preparing this appeal it occurred to me that [there is] the opportunity for people to go to Groote Eylandt and do such things, but this regime has been set up for, and particularly for, Aboriginal people who live in remote communities, who still lead a highly traditional lifestyle.	That is, they still work their way through ceremony and deal very much with the traditions of their communities.

As Your Honour may or may not be aware, if for example a man living at Alyangula [a non-native of Groote Eylandt] who - - - and you can only really live at Alyangula if you're employed by GEMCO - committed like offences, - - - he'd be sacked and told to leave the island.		So it's not the case that someone living there who's not a traditional owner of that land or has a nexus to that	land by way of clan groups - which indeed the Wanambi clan has - would be treated in this way, and I don't think the court that sits at Alyangula has ever indicated that that would be the case.	It's a particular regime, - - - for people with that particular background.

HIS HONOUR:	- - - you have an island community, it's no problem, it's bounded by the sea.	But you say it's not quite the case here.	The regime is not bounded by the sea.	It extends to some part of the mainland of the Territory, but a fairly defined area, I suppose?

MS BURROWS:	It is defined, and it's also the case that the only people who would be on Groote Eylandt who don't, for example, live there permanently, are people who have ties to the family there, and indeed, marriages often take place between people from Roper River down to Numbulwar to Groote Eylandt, and there are family traits, and they're the only people who are actually going to be on the island for the purpose.

Groote Eylandt men go to Baniyala for ceremony, for example.	That's on the mainland and very close to where this fellow is from.	The fact that this matter

wasn't dealt with by Alyangula court, it's only the case that he appears to be in Nhulunbuy in April for a funeral, and his matter is dealt with by the court there.

HIS HONOUR:	Yes.	Now, he'd committed an offence in Yirrkala?

MS BURROWS:	Well, I think that offence was actually in Nhulunbuy but it was dealt with by the Yirrkala court in August [sic, February 1994].

HIS HONOUR:	Well, in Nhulunbuy, yes.	So he didn't get the same sort of [sentencing] regime there that he would've got if he'd committed it on Groote, I suppose?

MS BURROWS:	That's correct.	Indeed, that's what happened. [He was given a bond].	The court imposes [as a sentence] what perhaps would normally be the case for someone coming before the court for unlawful entry, stealing, some months after, and he gets a bond, with conviction of course, but for six months and, indeed, I think those six months are very near up and it certainly hasn't been breached.	That sentence of course has never been appealed against and there would be no plan to appeal against that sentence.

HIS HONOUR:	No.

MS BURROWS:		But in this case where we have a typical Groote Eylandt offence, with typical Groote Eylandt men who come before the court, this young man should be afforded the same regime that they would suffer had the matter been dealt with by the Alyangula court or indeed the Darwin court, which is often the case for Groote Eylandt people when they are dealt with in the Darwin court for offences that happen at Groote Eylandt."	(emphasis mine)

I consider that Ms Burrows' submission that the special Groote Eylandt sentencing regime should have been applied, fails for 2 reasons.	First, it is clear that that regime is intended to apply to the traditional Aboriginal inhabitants of Groote Eylandt, and persons in certain mainland locations proximate to Groote Eylandt, with strong familial ties to Groote Eylandters.	The regime was never intended to apply generally to Aboriginal persons on the mainland "who live in

remote communities, who still lead a highly traditional lifestyle".	The reliance on community service orders pre- supposed the existence of certain local structures.
Second, Ms Burrows merely asserted that the regime applies to the appellant.	She never sought to adduce evidence to establish that:
the regime did in fact apply to the traditional Aboriginal inhabitants at Trial Bay; and/or
that persons (and in particular the appellant) at Trial Bay have strong familial ties with the Groote Eylandters.
I consider the special Groote Eylandt sentencing regime has not been shown to extend to the Aboriginal community of Trial Bay.	I consider that his Worship, a most knowledgeable and experienced sentencer, may well have borne that in mind when sentencing the appellant; it was never suggested to him that the appellant should be dealt with under that regime.
As I reject Ms Burrows' basic proposition that the special sentencing regime has been shown to apply to the appellant, the statistical edifice of her submissions (at p12) on this ground of appeal lacks a foundation.
Since it has not been shown that the special regime applies, it is clear that Ms Trier's submission (p18) must be upheld, since "the sentence [imposed on the appellant] is nowhere near the upper range [of sentencing] for the [offences]" committed, particularly in light of the prevalence of the offence at Alyangula.	It follows that the sentence imposed

cannot be said to be manifestly excessive: see Raggett, Douglas and Miller v The Queen (supra) at p43.
As to the submission based in a restricted way on the parity principle (see p12), it is important to have regard to the scope of that principle.	In Lowe v The Queen (supra) at 610-611, Mason J (as he then was) said:-
"The authorities do not speak with one voice on the question whether marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence or whether such marked disparity is merely indicative of the presence of an undisclosed error in the process of sentencing.	As a matter of general principle it is important that this Court should declare unequivocally that marked disparity is itself the ground." (emphasis mine)

I consider that as between the co-accused Mr Bara and the appellant the "circumstances [of their respective cases] are [not] comparable".
Unlike the appellant Mr Bara clearly fell to be dealt with under the Groote Eylandt sentencing regime.	To take an analogous situation, if A an adult, and B a juvenile, join in committing an offence, sentencing leniency shown to B cannot be a ground for unjustified disparity on which A can rely, since the applicable sentencing principles are not the same for both of them.	B is subject to a recognized separate regime for sentencing juveniles, to which A is not subject; see M v Waldron (1988) 56 NTR 1 at 6-7 and ss53(1) and 39(1)(B) of the Juvenile Justices Act.	And so it is here.	I observe that unjustified disparity in sentencing does not go to show the sentence under attack is manifestly excessive; nor, since Lowe v The Queen (supra), is it to be treated as "merely indicative - - - of an undisclosed error".	Ms Trier's observation at pp18-19 is

correct.	Accordingly, I reject Ms Burrows' submission on disparity at p12.
For the above reasons, ground 1 of the appeal fails. Grounds 2 and 5
I have noted Ms Burrows submissions at pp13 and 15-17, and Ms Trier's submissions at p18-20.
In The Queen v McInerney (supra) King C.J. said (at pp112-113):-
"In my opinion the true rule is that a sentencing court may take into account in an appropriate way and for appropriate purposes, offences committed by an offender whether such offences were committed before or after the commission of the offence for which sentence is being passed and whether the convictions for such offences occurred before or after the commission of the offence for which sentence is being passed." (emphasis mine)

In the present case, the learned Magistrate was not informed whether the offences dealt with at Yirrkala on 8 February 1994 "were committed before or after" the offences of 7 November 1993.	He did know, of course, that the convictions for those offences occurred after the commission of the offences of
7 November 1993 with which he was dealing.	He could therefore take the Yirrkala offences into account "in an appropriate way".
King C.J. continued:-

"- - -

I conclude with some observations as to the way in which and the purposes for which subsequent offences may be taken into account.	The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it.	A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed.	Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways.		They may diminish or abrogate any leniency by reason of good character.	They may, moreover, lead

to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime.	Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases.	The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending.	He must be sentenced against the background of his record: Director of Public Prosecutions v Ottewell (1968) 52 Cr. App. R. 679, at 681.	The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence.	In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies. (emphasis mine)
I interpose that the passage last emphasized was not applicable in the circumstances of this case, where his Worship was not informed whether the offences dealt with in February were "prior offences".	King C.J. continued:-
"Where the other offences have been committed after the immediate offence, they are relevant only in special circumstances.	The offender has not committed the immediate offence with his character already affected by the offences nor after the experience of conviction.	In circumstances, however, in which the offender might otherwise have been given credit for having lived a law abiding life in the period between crime and sentence, it is relevant that he has not so lived but has committed an offence or offences in that period.	In some circumstances, the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required.	It seems to me that the circumstances in which offences subsequent to the commission of the offence for which sentence is being passed, are relevant to the sentence, are more restricted than those in which prior offences are relevant.	No doubt that is what Wells J meant by his reference to "special circumstances" in McAllisters case (1982) 30 S.A.S.R. 493."	(emphasis mine)

This last passage again is not applicable here, where there was no subsequent offence to be taken into account.	The proposition as to the significance of subsequent convictions was re-stated by Cox J (at pp123-124):-
"As I have said, there can be no question of paying regard to subsequent convictions if they are not relevant.	However, it is not uncommon for a defendant to be tried and convicted a considerable time, sometimes years, after the offence.	If it is relevant
- as it is - that the defendant has led an exemplary life in the meantime, it must also be relevant to show that he has continued in the interval to live in a lawless way.	In other words, the sentencing judge may have regard, within the limits of practicability, to all of the defendant's behaviour, favourable or unfavourable, prior to sentence.	Archbold states the principle thus: "The court may consider the acts of the defendant subsequent to the trial and up to the date of sentence" (42nd ed.par.4-472), and cites Withers (1789) 3 T.R. 428 (100 E.R. 657) as the
authority.	This accords with the common sense of the matter, as it seems to me, and also, I suspect, with the practice of many judges, particularly with respect to subsequent convictions for prior offences.	To ignore relevant subsequent convictions would be, as the Victorian Judges said, artificial and unmeritorious, and in some cases it could lead to quite absurd results.	There is no reason why the courts should voluntarily accept an arbitrary restraint of this kind, which really relates to a matter of practice, and we were not referred to any South Australian statute on the subject.	I think that Rainbird v Samuels (1972) 4 S.A.S.R. 187 should be regarded as having been overruled on this point.

That is not to say, of course, that subsequent convictions will necessarily be taken into account in the same way as previous convictions.		Whether the offences were committed before or after the offence for which the defendant is being sentenced may make a difference in some cases.	The fact that it was not a first or isolated offence, that the defendant's recent history shows a procession from one offence to another, may well be important, but the conviction itself adds a significant dimension.	A conviction is a formal and solemn act marking the court's, and society's disapproval of a defendant's wrongdoing, so that a prior offence may not assume quite the same significance as a prior offence coupled (by the time the instance offence is committed) with a prior conviction.	So far as subsequent offences are concerned, they cannot justify the court in imposing a

higher sentence than the instant offence intrinsically merits, but they might well lead the court to conclude that any leniency to the defendant would be misplaced.
As always, of course, it will depend upon the circumstances of the particular case."	(emphasis mine)
I respectfully agree with the observations emphasized.

In my opinion, his Worship in the circumstances of the case was entitled to take into account the convictions of
8 February 1994, notwithstanding that those convictions were not recorded until after the Alyangula offences of 7 November 1993 were committed.
His Worship said in his sentencing remarks that he was unsure which offences were "hanging over" the head of the appellant at the relevant times (see p16); however, he went on to conclude that "all I can be sure of is that you weren't dissuaded by whichever came first to desist from the second." This may be a reference to the offences themselves, and not to charges for those offences; if so, it is unexceptionable.	But it may be a reference to charges for those offences; if so, it is now seen to be factually incorrect. I incline to treat it as a reference to charges; that is the normal usage of "hanging over".	It follows that his Worship proceeded to sentence under a factual misapprehension; it is common ground that as at
7 November 1993 there were no charges for the offences of

21 August 1993.	I accept Ms Burrows' submission (p16) that the factual misapprehension appears to have been a "critical factor" in the sentencing.
Ms Trier's submission on "mens rea" at p19 fails since his Worship did not know whether the Yirrkala offences were committed before or after the Alyangula offences; it is

unnecessary to consider in this case the application of the analysis by Angel J in R v Mulholland (supra) at pp13-14.
I consider that ground 5 of the appeal succeeds. Ground 3
I have set out Ms Burrows' submissions at pp13-14, and

22 and Ms Trier's submissions at pp20-21.

In Bayram v Benton (unreported, Kearney J, 2 September 1994) at pp8-10 and The Nominal Insurer v Miljanovich (unreported, Kearney J, 21 October 1994) at pp19-22 I set out the broad requirements of the principle of natural justice.	I emphasized, adopting the words of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at p343, that the common law does not impose on the Court the "impossible task of ensuring that a party takes the best advantage of the opportunity to which he [or she] is entitled".
The proceedings in the Court of Summary Jurisdiction were of an adversarial nature.	It was not the duty of that Court to perform the "impossible task" (see above).	Before his Worship the very experienced defence counsel was unquestionably well aware of all the sentencing alternatives open to the Court.	I consider in the circumstances that
his Worship afforded counsel a reasonable opportunity to address the Court on all the available sentencing dispositions, for the reasons stated by Ms Trier at pp20-21.
I reject Ms Burrows' submission (p14) that a duty in terms of Ground 3 was cast on the magistrate stemming from Nelson v Chute (supra).	That case is clearly distinguishable.

These the appellant appealed against his sentence on several grounds, including:
"4.	That the learned Magistrate erred in failing to request counsel to make submission regarding the imposition of the specific additional penalty of disqualifying the appellant from holding a licence to drive a motor vehicle". (emphasis mine)

There the appellant had been convicted before the Juvenile Court in Darwin for the unlawful use of a motor vehicle contrary to s118(2)(b) of the Criminal Code.	He was sentenced to a period of home detention, and in addition it was ordered that he be disqualified "from driving or obtaining or holding a driver's licence for a period of three years."	That penalty is provided for by s53A of the Juvenile Justice Act.
Martin CJ allowed the appeal on ground 4, inter alia, for the following reasons:-
"The appeal against the order disqualifying the appellant from driving or obtaining a driver's license must succeed, if for no other reason than that it was imposed without giving the appellant any opportunity to be heard on the point.	It is necessary that the Juvenile Court pay regard to all the facts and circumstances before it, and be satisfied that the juvenile is not a fit and proper person to hold such a license, before making such an order (s53A(1)).
Counsel for the respondent quite properly conceded [the point]." (emphasis mine)
Section 53A of the Juvenile Justices Act provides a specific penalty additional to those under the Criminal Code under which the appellant had been charged.	In the present case, a sentence of immediate imprisonment was a disposition expressly contemplated by the Code.	Defence counsel is expected to be familiar with all the sentencing alternatives open for the offences in question.	Here defence counsel knew or ought to have known that a custodial disposition was open to the Court;

it was a matter for counsel as to whether he should address his Worship on the reasons why no such disposition should be made.
The observations by Martin CJ in Nelson v Chute (supra), above, are not applicable to the facts and circumstances of this case.	Failure to allow counsel an opportunity to be heard on sentence constitutes a reviewable denial of natural justice; see Escobar v Spindaleri (1986) 7 NSWLR 51.	But that was not the case here.
I should say that I reject Ms Trier's submission that Nelson v Chute (supra) should be distinguished solely on the basis that a juvenile was there involved.
Ground 4

I have set out Ms Burrows' submissions at p15	and Ms Trier's submissions at pp21-22.	In my opinion, Ms Burrows'
submission is contrary to the common law and cannot be accepted; contrast specific statutory provisions such as the Crimes Act (C'th), ss17A(2)-(3).	There is nothing in Munungurr v The Queen (supra) which supports the submission.
In the Court of Summary Jurisdiction, Mr Somerville clearly directed his submissions in mitigation to a	disposition solely by way of monetary penalties, restitution and community service orders (see p14).	That was understandable, and good advocacy; he was concerned to stress the best attainable result
the least punitive measure - he could fairly hope to achieve.

His Worship, for various reasons, considered that a short term of imprisonment was warranted in the circumstances of the case, and sentenced the appellant accordingly.	It is not the duty of a sentencing Court to set out in detail, or in general terms,

each and every disposition available in a given case, and then to explain why and on what basis that disposition is or is not made.	It is presumed that a Court in exercising its sentencing discretion will keep the alternative dispositions in mind in assessing what is the appropriate disposition for the case and offender under consideration, and approach sentencing in the way set out in s17A(1) of the Crimes Act (C'th).
In this case, his Worship had the assistance of

Mr Somerville who presented for consideration a variety of non- custodial dispositions available to his Worship.	Clearly, his Worship considered those submissions.	Equally clearly,
his Worship considered that the circumstances of the case and the appellant did not warrant the adoption of any of those options.	Rather, he considered a short custodial sentence was warranted and sentenced the appellant accordingly.
Ground 4 of the appeal must fail.

None of the grounds of appeal are upheld, other than ground 5.	The appeal against sentence is allowed on ground 5; the sentence of 6 month's imprisonment is quashed and set aside, and the case is remitted to the Court of Summary Jurisdiction for re-sentencing.
Orders accordingly.