PARTIES:	TREVOR ERNEST GODDARD
V

TREVOR HOWARD BELL AND:
TREVOR ERNEST GODDARD

V

JOHN HENRY CHUTE

TITLE OF COURT:		SUPREME COURT (NORTHERN TERRITORY)

JURISDICTION:		APPEAL FROM COURT OF SUMMARY JURISDICTION AT ALICE SPRINGS

FILE NO:	No. AS 10 of 1993 No. AS 11 of 1993

DELIVERED:	Darwin, 8 March 1994.

HEARING DATES:	26 July and 6 August 1993

JUDGMENT OF:	KEARNEY J

CATCHWORDS:

Appeal	-	general principles - appeal against sentence -
- Court of Summary Jurisdiction - when appellate court will interfere with exercise of Magistrate's sentencing discretion
Justices Act (NT) s163(1}(a)
Seears v McNulty (1987) 28 A Crim R 121, followed
House v The King (1936) 55 CLR 499, followed
Cranssen v The King (1936) 55 CLR 509, followed
Harris v The Queen	(1954) 90 CLR 652, followed
Uznanski v Searle (1981) 52 FLR 83, followed
R v Long·shaw (1990) 20 NSWLR 554, distinguished
Appeal -	general principles - appeal against sentence - Court of Summary Jurisdiction - nature of appeal where fresh evidence admitted
Justices Act (NT) s163(1}(a) and s176A

Seears v McNulty (1987) 28 A Crim R 121, considered VT v Winzar (unreported, Mildren J, 24 February 1992), referred to
Wayne v Boldiston (1992) 85 NTR 8, referred to
Appeal - appeal against sentence - court of summary Jurisdiction - admission of fresh evidence - how utilized
R v Smith (1987) 44 SASR 587, applied
Criminal Law and Procedure - appeal against sentence - general principles - principle of concurrency subordinate to totality principle
Lade v Mamarika (1986) 83 FLR 312, applied
Channon v The Queen (1978) 20 ALR 1, applied
Mill v The Queen (1988) 166 CLR 59, applied
REPRESENTATION:
Counsel:

Appellant: Respondent:
Solicitors:
Appellant:
Respondent:

Mrs. Geroe Mr c. Roberts

Legal Aid Commission (Alice Springs)
DPP (Alice Springs)

Judgment category classification:	CAT B Judgment ID Number:	kea94006.J
Number of pages:	2

kea94006.J
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS.

No. AS 10 of 1993
No. AS 11 of 1993

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF appeals from certain sentences imposed by the Court of Summary Jurisdiction at Alice Springs

BETWEEN:
TREVOR ERNEST GODDARD
Appellant

AND:
TREVOR HOWARD BELL
Respondent

AND:

BETWEEN:
TREVOR ERNEST GODDARD
Appellant
AND:
JOHN HENRY CHUTE
Respondent

CORAM:	KEARNEY J

REASONS FOR DECISION
(Delivered 8th day of March 1994)

By consent, these two appeals against the severity of sentences imposed by the Court of Summary Jurisdiction on 25 January 1993, were argued together before me in Alice Springs on 26 July 1993.	On 6 August I held that in their totality the 10 sentences in question were excessive; I made orders which had the effect of reducing the effective sentence of 30 months imprisonment to an effective sentence of 21 months, and the nonparole period from 15 months to 10 months. I now publish the reasons for that decision.
The proceedings in the court of Summary Jurisdiction
The charges
on 16 November 1992 the appellant appeared before the Court and consented to his Worship dealing summarily under s121A(l) of the Justices Act with a charge under Code s227(1) that on 12 November 1991 he had, by a deception, obtained
$1000 cash from the Commonwealth Bank.	That charge was contained in an Information dated 23 March 1992 laid by John Chute.	The appellant pleaded guilty, and was sentenced on 25 January 1993 to 6 months imprisonment with effect from
22 January 1993.
On the same occasion the appellant consented to the Court dealing summarily with 9 charges in Informations laid by Trevor Bell in October 1992, to which he also pleaded guilty. These charges, and the sentences imposed, were as follows:-
1 charge under Code s210(1) for stealing on
8 July 1992 (sentence 3 months imprisonment,

cumulative upon the 6 months sentence for the offence of 12 November 1991);
7 charges under Code s227(1) of obtaining property by deception on 7 occasions, between
9 July 1992 and 1 August 1992 (sentences, 3 months imprisonment for each offence, to be served cumulatively upon the sentence in (a) above, and upon each other); and
1 charge under Code s277(1) of attempting to obtain property by deception on 24 July 1992 (sentence 2 months imprisonment, cumulative).
This meant that the sentences for the 10 offences totalled 32 months imprisonment; a nonparole period of 15 months was fixed.
The admitted facts
The appellant admitted that the following facts constituting these 10 offences were correct.	It will be noted that the first offence was quite distinct from the later nine.
on 12 November 1991 he had obtained possession of a certain Commonwealth Bank passbook from an unknown person.	He went to the Bank where he signed a withdrawal slip in the sum of $1000 with the purported signature of the owner of the account.	However, it seems from what was put in mitigation (see p9) that he did not in fact accept that he had forged the signature; that is not a matter of any moment, in the circumstances.	He presented the slip to a teller and after endorsing his own name and address on the back he was given
$1000 in cash.	The passbook was reported by its owner as

having been stolen and the withdrawal of the $1000 was reported to the Police.	Seven weeks later, on 2 January 1992, the defendant took part in an interview with the Police in which he fully admitted what he had done.	He stated that the money had since been spent on	matters involving family business.	He did not have the consent of the owner of the account to obtain the $1000 which had meanwhile been re­ credited by the Bank to the credit of that person.	The Bank was accordingly out of pocket to the extent of $1000.
The other 9 charges arose when he was employed by CAAMA radio station.		On or about 8 July 1992 he stole a book of cheques relating to a Staff Association account.	On 8 occasions in the 3	week period 9 July - 1 August 1992 he forged various cheques drawn on that account, and cashed (or attempted to cash) those cheques.	He was not an authorized signatory to the account.	Apart from the charge under Code s210(1) of stealing the cheque book, the details of his 8 offences of obtaining property by deception (or attempting to do so, in the case of (e) below) are as follows.
On 9 July 1992 he went to the Piggly Wiggly Supermarket, cashed a forged cheque, and obtained the sum of
$250.

Six days later, on 15 July, he again went to the Piggly Wiggly Supermarket, cashed a forged cheque, and obtained the sum of $260.
Two days later, on 17 July, he went to the Commonwealth Bank, cashed a forged cheque, and obtained the sum of $250.

Six days later, on 23 July, he went to the Milner Road Serv-Well Supermarket, cashed a forged cheque, and obtained the sum of $250.
On the next day, 24 July, 7 days after his first visit to the Commonwealth Bank, he again went to the Bank where he presented to a teller a forged cheque made out for $500, seeking to be paid that sum of money in cash.	The teller checked the account and found that there were insufficient funds to pay that amount.	He advised the appellant to deposit the cheque into his own cheque account, and await clearance of the cheque.	He did so.	At about this time CAAMA realized that the cheque book had been taken and that cheques from it were being cashed.		It advised the Commonwealth Bank and stopped payment on the $500 cheque.
Two days later, on 26 July, and 11 days after his second visit to Piggly Wiggly, the appellant went for the third time to that Supermarket, cashed a forged cheque, signing and putting his own address on the back of it, and obtained the sum of $250.	The forged cheque was not honoured by the Bank on presentation, in light of the information it had received from CAAMA.
Two days later, on 28 July, five days after his first visit to Milner Road Serv-Well, the appellant again went to that Supermarket, cashed a forged cheque, and obtained the sum of $250.	That cheque was not honoured on presentation.
Finally, three days later on 1 August 1992 when the appellant was in Yuendumu, he went to the Yuendumu store, and asked if he could cash a pay cheque from the CAAMA Staff

Association in the amount of $450.	The store owner agreed and the defendant cashed a forged cheque, obtaining the sum of
$450.	That cheque was also not honoured on presentation. some time after 1 August 1992 the defendant was
interviewed by the Police; he made full and frank admissions in relation to all of these 9 offences, stating that at the time he committed them he knew that he was doing wrong.
Those were the facts on the basis of which the Court accepted his pleas of guilty to the 10 charges.	The Court was informed that the following 5 organizations sought restitution: the Commonwealth Bank in the sum of $1000; the Yuendumu Store in the sum of $450; Piggly Wiggly supermarket in the sum of $250; the CAAMA Staff Association (whose Bank account had been debited with the amount of the cheques used in offences (a) (b) and (c) above), in the sum of $760; and the Milner Road Serv-Well Supermarket in the sum of $500.	The restitution sought amounted in all to $2960, the total amount the defendant had obtained by his 9 criminal deceptions.
The appellant's prior record
The maximum punishment following trial on indictment under the Code for each crime is 7 years imprisonment, except for the attempt charge in (e) above which carries a maximum punishment of 3	years imprisonment (by the combined operation of Code ss278(2), 227(1) and 210(1)).	As the charges were dealt with summarily under Division 2 of Part V of the Justices Act, the reaximum punishment which could have been imposed would have been 2 years imprisonment (Justices Act sl21(a)(2)) had the defendant not had prior convictions which

drew him within the ambit of s129(3) of that Act.	In the result, the maximum punishment he faced in each case was 7 years imprisonment (apart from 3½ years for the attempt in (e) on p5), as specified in the Code.
His prior criminal.record was before the Court.	The appellant was born on 6 January 1972.	It disclosed that he had appeared:-
before Juvenile Courts in 1987, aged 15; convicted on 15 charges, mainly involving unlawful entry, stealing and assault, receiving various sentences totalling an effective 6 months imprisonment, service of which was suspended on his entering into a bond to be of good behaviour for 2 years;
before the Supreme Court in Alice Springs in 1988 on 5 charges including robbery, assault and stealing, receiving an effective sentence of 12 months imprisonment, service of which was suspended on his entering into a bond to be of good behaviour for 2 years.	Account was taken of the fact that he had spent 11 weeks in custody; no action was taken in relation to his breach of his 1987 bond;
before the Court of Summary Jurisdiction in Alice Springs on one occasion in 1989, receiving a sentence of 4 months imprisonment for unlawful entry, service of which was

suspended on his entering into a bond to be of good behaviour for 12 months;
before the Supreme Court in Alice Springs in February 1990 for stealing, unlawful entry, and his breach of the bonds he had entered into in 1988 and 1989, receiving an effective sentence of 22 months imprisonment with a nonparole period of 9 months, effective from 12 February 1990;
before the Court of Summary Jurisdiction in Alice Springs on 4 occasions between April and November 1990, on 19 charges, mainly unlawful entry and stealing, receiving various sentences of imprisonment.	Some were directed to be served concurrently with his sentence of February 1990, other cumulatively upon it; in the result, it appears, the effective sentence in (d) above appears to have been extended to 30 months with effect from February 1990, the nonparole period being extended to 11 months.
before the Court of Summary Jurisdiction in Alice Springs in June 1991 on a charge of aggravated assault (assaulting a Prison officer while in prison), receiving a sentence of 3 months imprisonment with effect from 24 March 1991.
As a result the sentences he commenced to serve in February 1990 would have expired on 11 August 1992, and that date

marked the end of his period of parole.	He committed all the present 10 offences after being paroled on 4 July 1991, 9 of them effectively within the last month of his period of parole.
The plea in mitigation
The Court was told that on each of the 9 occasions when the appellant presented a cheque (and not just once, as per offence (f) above) he had signed his name and address on its back.	In mitigation it was urged that on the appellant's release from gaol in July 1991 he had obtained a part time CDEP job for 3 months.	From October 1991 to February 1992 he boxed and played rugby, sports in both of which he appears to excel; he won the silver medal in the super-heavyweight class in the Australian amateur boxing championships.	He did not have a job in this period, during which he committed the offence of 12 November 1991 (see p3).
As to that offence it was submitted that he had been given the Bank book and	a completed withdrawal slip by a relative to whom he gave most of the $1000 he obtained from the Bank.	He was prepared to pay this money back "as quickly as he can."
From February until June 1992 he did a TAFE course, receiving an Abstudy allowance of about $160 per week.
In June 1992 he started work at CAAMA, but it was put that there was a misunderstanding between himself and CAAMA as to whether, and how much, he was to be paid for this work.	He became very short of money; hence, it was put, he stole the CAAMA cheque book on or about 9 July.	This was explained as "a bit of an act of desperation", "a spur of the

moment decision", a "silly decision"; that "he was very poor and he did not have. any money".	He used the money which he obtained over the next 3	weeks, $1960, to support himself and his de facto, who was expecting a child.
Mr Lake, who had known the appellant for about 6 months, testified as to his character and that he trusted him. Mr Smith, manager of the Territory boxing team who had known him for several years, wrote that he was "a different person altogether," and thought he would "do well" if given a suspended sentence.
His counsel stated that the appellant's lifestyle had now improved, in that he was "independent financially", and had been "trying very hard".
After referring to other matters, including the appellant's full admissions to the Police and his pleas of guilty, his counsel sought a non-custodial disposition by way of home detention or, failing that, a suspended sentence.
The presentence report
His Worship then ordered a presentence report.	This resulted in an adjournment until 25 January 1993.	The report of 21 January was the usual very thoroughgoing document; it extended to 14 pages.	I will not deal with it in great detail.	It sets out the appellant's family background, his history of behavioural problems from about age 11, and his prior record of encounters with the law.	He had not been paroled on the expiration of his 11 month nonparole period (in January 1991), because of his poor behaviour while in custody; he was eventually paroled 6 months later on 4 July 1991, some

3 months before he would have been due for release in any event with remissions.	Mr McFarland correctly noted that if the appellant were now sentenced to a term of actual imprisonment, his earlier parole order would be automatically revoked and he would have to serve the residue of his earlier term which, with remissions, was some 3 months and 8 days imprisonment, cumulatively upon the new sentence; see sl2(2) of the Parole of Prisoners Act.	He noted in detail the appellant's school days and his later experiences at the TAFE college, together with his chequered employment history and his unsatisfactory behaviour while incarcerated in prison.
Mr McFarland also dealt with the appellant's health record, both physical and mental, and his current attitudes and explanation for his conduct.	Finally, Mr McFarland gave his evaluation, noting that the appellant was an "angry young man, who lacks the psychological stability to cope with the realities of life."	He considered that a further term of imprisonment would have a "detrimental effect on the appellant", but noted his previous poor record when given conditional liberty.		He was dubious as to whether the appellant could successfully undertake a home detention order, but considered he was suitable for a Community Service Order, one of which he had already successfully completed.	Finally, Mr McFarland considered that "a term of imprisonment seems inevitable."
The sentence
The appellant appeared for sentence on 25 January 1993.	His Worship referred in some detail to the presentence

report of 21 January, and then imposed the sentences now under appeal; he made no order for restitution, noting that the appellant could not "do anything at this point in time".
His Worship ordered that the appellant serve the unexpired part of his previous sentence, noting, correctly, that the effective sentence of 30 months he had just imposed was to be served first.	This accorded with sl2(2) of the Parole of Prisoners Act, which provides that that part of the previous sentence which had not been served at the time of release on parole, and now ordered to be served:-
"- - - shall commence at the expiration of the term of imprisonment to which he is sentenced - - for the later offence" (emphasis mine)
I mention this because I was informed that following the sentencing on 25 January 1993 the appellant was imprisoned and, although his appeals were instituted 2 weeks later on
8 February 1993, he was not bailed to pursue those appeals until 1 May 1993, en the basis that he had by then served the unexpired part of his previous sentences (3 months and 8 days).	Of course, that period should not have commenced to be served until his new sentences had all expired.	Bail should have been sought on 8 February 1993.	In the result, however, no injustice has been done to the appellant.
The appeal
The principles applicable
The appellant relied on 3 grounds of appeal pursuant to sl63(1)(a) of the Justices Act, which contemplates an appeal "on a ground which involves sentence".	The proper approach to an appeal under sl63(1}(a) against severity of

sentence is discussed by O'Leary CJ in Seears v McNulty (1987)
28 A Crim R 121 at ppl25-130.	His Honour concluded that since the appeal against sentence under s163(1)(a) was an appeal against the exercise of a discretionary power this Court would not intervene (absent fresh evidence) unless there was some reason for regarding the Magistrate's  discretion as having been improperly exercised; I respectfully agree.	See also House v The King (1936) 55 CLR 499 at pp504-5, Cranssen v The
King (1936) 55 CLR 509 at pp519-520, Harris v The Queen
(1954) 90 CLR 652 and Uznanski v Searle (1981) 52 FLR 83 at pp89, 93-4; and compare the different nature of the appeal (a hearing de novo) in New South Wales from a Magistrate to the District Court, discussed in R v Longshaw (1990) 20 NSWLR 554.
In O'Leary CJ's opinion, obiter, in Seears v McNulty
(supra) at pp127-9, where fresh evidence is received under s176A of the Justices Act on an appeal against sentence this Court is exercising original and not appellate jurisdiction in hearing the appeal, and so it is not necessary to show that  the Magistrate's discretion had been improperly exercised.
This approach may merit detailed consideration at some time; see, for example, VT v Winzar (unreported, Mildren J,
24 February 1992) at pp4-8.	The point was not sought to be argued before me, and O'Leary CJ's distinction has been consistently applied; see for, example, Wayne v Boldiston
{1992) 85  NTR 8 at pl0.	The other possible approach is that
the jurisdiction of this Court under s163(1)(a), whether fresh evidence is received or not, is always an exercise of its appellate jurisdiction, and the discretionary sentencing

judgment of the Magistrate should not be reviewed except for disclosed or implicit error.	That is to say, on an appeal against sentence, whether or not fresh evidence is received, there is a strong presumption.that the sentence was correct, and it should therefore be affirmed unless this Court is satisfied, taking into account any fresh evidence received, that it is clearly wrong; that satisfaction exists when any of the matters referred to in House v The King (supra) at p505 are established.
In this appeal fresh evidence was received (ppl5- 17), but all 3 grounds of appeal (ppl4-15) alleged error by the sentencing Magistrate of a House v The King type.
Accordingly, the question of the nature of the appeal does not arise since the issue here is whether any of the errors relied on have been established.	In determining that question I bear in mind that it is for this Court to evaluate for itself the relevance, credibility and cogency of the fresh evidence, in the light of the evidence before the Magistrate.	I approach the fresh evidence of Mr Joblin (pp16-17) on the basis and for the purpose set out in R v smith (1987) 44 SASR 587 at pp588- 9.

were:-

The grounds of appeal
The 3 grounds of appeal, which all allege error,

that his Worship had erred in that he had not considered, or had given insufficient weight to, the totality of the sentences imposed;

that his Worship had erred in that he had not considered ordering that any part of the sentence imposed should be made concurrent with any other part; and
that there had been some unidentified error in that the effective sentence of 32 months was in all the circumstances manifestly excessive.
It can be seen that grounds (i) and (iii) focus upon the sum total of the 10 individual sentences and the criminal wrongdoing, the term of 32 months imprisonment; and ground
(ii) focuses upon alleged linkages between certain offences which required as a matter of sentencing principle that there be a measure of concurrency in the resulting individual sentences.
The fresh evidence on appeal
Mr Geroe of counsel for the appellant informed me that the appellant had not yet been able to make any restitution; he had been at liberty for less than 3 months, at that time.	However, he planned to make restitution from earnings from employment he hoped to obtain with the Yuendumu Cattle Company.
Mr Geroe tendered fresh evidence in the form of
Mr Brown's affidavit of 12 May 1993 and its annexed report by  a forensic psychologist Mr Joblin dated 1 March 1993. The tender was not objected to by the respondent.	I admitted this evidence on the basis that it met the conditions set out in sl76A of the Justices Act.	I now turn to that report.

Mr Brown arranged for Mr Joblin to examine the appellant after he had slashed his left arm while in prison after being sentenced on 25 January 1993.	Mr Joblin's report flowed from his interview with the appellant on 23 February 1993.	In it he referred to the appellant's background.	He described his then situation in the "particularly onerous" maximum security protection unit in the Alice Springs gaol.
He described what he had been told by the appellant as his reasons for his crimes - "basically attempts to obtain money for survival" - and the demands made on him for money from people with whom he then lived.	He referred to the appellant's "considerable contrition" and his desire to make restitution, and to the events which had occurred which had prevented him from doing so.	He described the appellant as being in an "obviously seriously disturbed psychological state".	He assessed the appellant as having, without doubt, "a fairly profound disturbed personality", though not "a psychopathic or anti-social personality disorder."	The appellant had "gross immaturity", "high dependency needs", an "extremely low self esteem", and was "prone to depression", having in the past "made a number of other attempts at self- mutilation.11	Mr Joblin proceeded to make a detailed assessment of the appellant's feelings and attitudes, and stated his history of a disturbed personality.	His diagnosis was that the appellant had a "borderline personality disorder"; that is, he was on the borderline between normality and being seriously disturbed, "with at times possibility of psychotic behaviour."	He noted the manifestations of that

disorder, and the difficulties in treating the basic cause. He did not accept that "supervision will not work", and considered that he "must have supervision in the community", and that it should not be "considered that because supervision is not working he must be incarcerated".	He considered that the appellant was "intelligent", with "obvious potential",
"fully aware and contrite", wishing "to make restitution".	He did not consider that the appellant was a "continued, intractable, incorrigible recidivist".	There could not be an "optimistic prognosis" while the appellant remained incarcerated.
I take this fresh evidence into account, in the appeal; see R v Smith (supra).
The submissions on appeal
a}	Ground (ii) - lack of concurrency in sentences
Mr Geroe dealt first with ground (ii}, the allegation that his Worship had erred in law in not directing that any of the 10 sentences be served concurrently.		He submitted that the 9 offences stemming from (and including)  the stealing of the CAAMA cheque book should have been treated as a single criminal transaction, as they involved a  repetition within a relatively short space of time	of the same behaviour towards the same victim.	He relied on Lade v Mamarika (1986) 83 FLR 312.	In that case Nader J treated concurrency of sentences as a principle of sentencing subordinate to that of totality; at p316 his Honour said:-

1-1	-	-	the overriding requirement [is] that the
aggregate sentence made up of the individual sentences should not lack proportion to the total criminality of the offender's conduct.	This last can fairly be regarded as a true principle of law. To fail in this respect is to impose an unjust sentence: either too lenient or too severe.	From the point of view of the prisoner and the community, the aggregate sentence is of paramount importance.

The desirability that each component sentence should reflect the gravity of the conduct constituting the offence for which it was imposed and the desirability of complying with the practice of making sentences concurrent or cumulative according to the criterion referred to above must be subordinated to the principle that the aggregate sentence be a just one.	In general, I think it is preferable, in order to achieve an aggregate sentence of just severity, to overlap or make concurrent appropriate individual sentences rather than to shorten them and make them cumulative.	The latter course is more misleading, appearing on a criminal record, than the former.	Indeed, these desirable goals are often not reconcilable and have to be departed from in particular cases." (emphasis mine)
His Honour had earlier said at p316, apropos the point as to when sentences should be ordered to run concurrently:-
"It is also desirable that offences that are not in a real way connected should in general, be the subject of cumulative sentences.	It is impossible to lay down in advance what criteria should be applied to determine whether there is sufficient integration between offences to warrant concurrent sentences.	Extreme cases are obvious; others are more difficult and allow for a wide exercise of discretion.		Mere temporal proximity is not conclusive.		Some courses of criminal activity extend over weeks or even months, yet individual offences committed in the course thereof may be truly regarded as one transaction for the purpose of sentencing.		On the other hand, distinct and unrelated offences committed during a single night may be unrelated.

A wide discretion is allowed in the matter of sentencing and the occasional utterances of judges concerned with resolving particular problems should not be readily seen as or elevated to the status of statements of principle: a status never intended by

the judges themselves.	For example, that a judge has said in a particular case that two offences committed twelve days apart should be treated as having sufficient unity to attract concurrency of sentences should not be thereafter regarded by subordinate courts as meaning that whenever offences are committed twelve days apart or less they should attract concurrent sentences.	Even where a judgment may use the word "principle", it is necessary to ascertain whether the judge really intended to state a principle or merely a rule which it is desirable to follow if it can be followed without infringing a more important one.11
See also Attorney-General v Tichy (1982) 30 SASR 84 at pp92-3 per Wells J to the same effect, stressing that a prisoner is to be sentenced for what "broadly and reasonably can be
characterized as his criminal conduct"; and that "what must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty."
In support, Mr Geroe submitted that although there
were applications from 5    different victims for restitution, for sentencing purposes the appellant should be treated as if there had been only one victim, a single loser, CAAMA.	I consider that this submission cannot be accepted; it  postulates  a fictional single victim when in reality there were five; the appellant's intention and design, was to obtain immediate cash from several victims.
Mr Geroe also submitted that there was a degree of "connectedness" about these transactions, in that they all arose from much the same motive.	There is a case for treating the three offences of 9, 15 and 26 July against Piggly Wiggly, the two offences of 17 and 28 July against the Commonwealth Bank, and the two offences of 23 and 28 July against the

Milner Road Serv-Well Supermarket as respectively attracting a measure of concurrency, for this reason.	However, for the reasons stated by Nader Jin	Lade v Mamarika (supra), the question whether any or some of the individual sentences should be concurrent or cumulative is subordinated to the question whether, in their totality, those individual sentences result in an effective sentence which is just.	In practical terms, this means that ground (i) should have been argued first; accordingly, I defer dealing with the submissions on ground (ii) until ground (i) has been considered.
Ground (i) - totality principle
Mr Geroe submitted that in their totality (32
months) the sentences were disproportionate to the appellant's overall criminal conduct as reflected in his 10 offences.	The cardinal principle is that the sentence must be proportionate to the gravity of the offence; see Veen v The Queen (1987-88)
164 CLR 465 at pp472, 474, 486 and 491.	As Deane J put it in
Channon v The Queen (1978) 20 ALR 1 at p18:-
"In every case, there is but one ultimate question involved in the determination of sentence.	That question is what is the appropriate punishment for the particular offence in the relevant circumstances."
This principle also applies when the question is the gravity of the overall criminal conduct comprising several offences. Mr Geroe relied on Mill v The Queen (1988) 166 CLR
59. In that case the appellant in a criminal escapade over 6 weeks committed 2 aggravated robberies in Victoria and one in Queensland. He served sentences of 10 years imprisonment (8

years nonparole) for the Victorian offences; on release on parole he was returned to Queensland and there sentenced to 8 years imprisonment (3 years nonparole) for the Queensland robbery.	It can be seen that for the 3 offences he had received an effective sentence of 18 years imprisonment.	On the general question of totality their Honours said at pp62- 63:-
"The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences.	It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp.56-57, as follows (omitting references):

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is  imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'.	The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces.	It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
[emphasis mine]
See also Ruby, Sentencing, 3rd ed. (1987), pp.38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentence below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.	Where practicable, the former is to be preferred.

The totality principle has been recognized in Australia.	In Reg. V Knight (1981) 26 S.A.S.R. 573, at p576 the Full court of the supreme court of South Australia (Walters, Zelling and Williams JJ.) said, in a joint judgment:
"it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with ·the gravity of the whole of his proven criminal conduct or with his due deserts.	To use the language of Lord Parker
L.C.J. in Reg. v Faulkner (1972) 56 er. App.
R. 594,at p596, 'at the end of the day. as one always must. one looks at the totality and asks whether it was too much'."
See also Reg. V Smith (1983) 32 S.A.S.R. 219; Ryan V
The Queen (1982) 149 c.L.R. 1, at pp21, 22-23."
[emphasis mine]
Mr Geroe referred to the factors relevant to the appellant's overall criminality, amplifying in effect the submission in mitigation made to the Court below, and also relying on Mr Joblin's analysis.
I accept this submission.	I consider that in their totality the 10 sentences, none of which taken individually are exceptionable, are by their combined impact disproportionate to the seriousness of the whole of the appellant's criminal conduct in July 1992, in all the circumstances.
I note in passing that there is nothing in his Worship's reasons to show that he took the totality principle into account, after selecting the individual sentences.
His Worship simply totalled the sentences and did not appear to take the extra step of standing back and looking at the overall effect of them.	It is desirable for a sentencer to state that this has been done; it is the final duty when

imposing consecutive sentences to ensure that they are not, in their totality, excessive; see R v Mill (supra) at p63 and R v Bocskei (1970) 54 er. App. R. 519 at 521.
Ground (iii) - sentence manifestly excessive It is implicit in the foregoing that I also consider
that the effective sentence of 32 months imprisonment is manifestly excessive, bearing in mind all of the relevant circumstances including the fact that the appellant's prior record is such that he could not hope for leniency.
c.	Conclusions
As there has been error in the sentencing process, it is necessary that the appeals be allowed, and this Court sentence afresh.	In my opinion, the totality of the sentences should be reduced to 21 months imprisonment and the nonparole period reduced to 10 months.	This can best be achieved by making certain of the sentences concurrent, in the manner indicated below.	I note that this approach accords with that taken by Asche CJ in R v Lewis (unreported,
2 December 1988).	To this extent, I uphold to a degree the appellant's submissions on Ground (ii); see the measure of possible concurrency suggested at pl9.
In the result, the appeals are allowed to the extent that while the individual sentences are confirmed, the direction that they all be served cumulatively  is set aside; in lieu, the following orders made:-
The sentence of 6 months imprisonment for the offence of 12 November 1991 is confirmed.

(a)	The sentence of 3 months imprisonment for the offence of 8 July 1992 is confirmed; it is directed to be served cumulatively upon the sentence for the offence of 12 November 1991.
The respective sentences of 3 months imprisonment for the offences of 9 July 1992, 15 July 1992 and 26 July 1992 are confirmed, directed to be served concurrently, but cumulatively upon the sentence in (a) above.
The respective sentences of 3 months imprisonment for the offences of 17 July 1992 and 24 July 1992 are confirmed, directed to be served concurrently, but cumulatively upon the sentences set out in
(b) above.
The respective sentences of 3 months imprisonment for the offences of 23 July 1992 and 28 July 1992 are confirmed, directed to be served concurrently, but cumulatively upon the sentences in (c) above.
The sentence of 3 months imprisonment for the offence of 1 August 1992 is directed to be served cumulatively upon the sentences in (d) above.

This yields an effective sentence of 21 months imprisonment.	The nonparole period of 15 months is set aside and a nonparole period of 10 months is fixed.
These are the reasons for the decision of 6 August

1993.