Berry v the Queen

[2013] VSCA 349

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0098

BRADLEY BERRY

Applicant

v

THE QUEEN

Respondent

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JUDGES	WHELAN, PRIEST AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 November 2013
DATE OF JUDGMENT	19 November 2013
DATE OF REASONS	5 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 349
JUDGMENT APPEALED FROM	DPP v Berry (Unreported, County Court Of Victoria, Judge Pullen, 10 May 2013)

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CRIMINAL LAW – Appeal – Sentence – Theft, attempted theft, obtaining property by deception, attempted armed robbery, handling stolen goods, aggravated assault, dealing with property suspected of being proceeds of crime – 58 offences – Term of imprisonment of 4 years 3 months and 25 days – Non-parole period of 2 years 6 months fixed – Whether sentence offended the principle of totality -  Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For The Applicant	Mr D D Gurvich	Turnbull Lawyers
For The Crown	Ms D I Piekusis	Mr C Hyland, Solicitor For Public Prosecutions

WHELAN JA:

1. I agree with Coghlan JA.

PRIEST JA:

1. I also agree with Coghlan JA.

COGHLAN JA:

1. After a plea hearing on 1 and 2 May 2013, the applicant was sentenced in the County Court at Melbourne on 10 May 2013 as set out below.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1-4, 6-17, 31-34, 37-39, 42-43	Theft [s 74(1) Crimes Act1958]	10 years [s 74(1) Crimes Act 1958]	3 months on each charge	20 days on each charge
5.	Attempted Theft [ss 74(1) and 321M Crimes Act 1958]	5 years [ss 74(1) and 321P Crimes Act 1958]	2 months	10 days
18-30, 35, 36, 40-41	Obtaining Property by Deception [s 81(1) CrimesAct 1958]	10 years [s 81(1) Crimes Act 1958]	2 months on each charge	10 days on each charge
45	Attempted Armed Robbery z[ss 75A(1) and 321M CrimesAct 1958]	20 years [ss 75A(2) and 321P Crimes Act1958]	18 months	Base Sentence
44 and 46	Attempted Armed Robbery [ss 75A(1) and 321M CrimesAct 1958]	20 years [ss 75A(2) and 321P Crimes Act 1958]	15 months	4 months on each charge
47-53	Handling Stolen Goods [s 88(1) Crimes Act 1958]	15 years [s 88(2) Crimes Act 1958]	2 months on each charge	10 days on each charge
Summary charges 4, 6, 8 and 10	Aggravated Assault (Assault with weapon) [s 24(2) Summary Offences Act 1966]	2 years [s 24(2) Summary Offences Act1966]	1 month on each charge	7 days on each charge

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
Summary charge 59	Dealing with Property Suspected of being Proceeds of Crime [s 195 Crimes Act 1958]	2 years [s 195 Crimes Act 1958]	1 month	7 days
Total Effective Sentence:			4 years 3 months and 25 days
Non-Parole Period:			2 years and 6 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			287 days
6AAA Statement: The learned sentencing judge stated that the sentence she would have imposed if the applicant had been convicted of this offence after a trial would have been 7 years imprisonment, with the applicant becoming eligible for parole after serving 5 years of that sentence.
Other relevant orders: · Forensic Sample Order (Saliva Sample) pursuant to s 464ZF(2) Crimes Act 1958 · Disposal Order pursuant to s 77(1) Confiscation Act 1997 ·         All Victorian licences and permits cancelled and the applicant is disqualified from obtaining any such licence or permit for a period of 2 years and 6 months from 10 May

1. By application dated 4 June 2013 the applicant seeks leave to appeal against sentence on the following ground that the total effective sentence infringed the principle of totality.

1. The circumstances of the offending were set out in Exhibit A on the plea and is as follows:

Charge 1, on 11 June 2012 the victim, Gaylene Witman was shopping at Kmart at the Werribee Plaza in Hoppers Crossing.  The victim was pushing a trolley and had her hand bag sitting within the children's seat of the trolley.  The prisoner approached the victim and started a conversation about lamps with the victim, distracting her.  The co-accused approached the trolley and removed the victim's purse from her hand bag.  Contained within the purse was the victim's Victorian driver's licence, various personal cards and $75 in cash.

Charge 2 of theft.  On 17 June 2012 the victim, Kathleen Nando, was shopping at the Coles Supermarket in Altona Meadows.  The victim was pushing a trolley and had her hand bag sitting within the children's seat of the trolley.  The prisoner approached the victim and started a conversation about cat food, distracting her.  The co-accused approached the trolley and removed the victim's Prada purse from her hand bag.  Contained within the purse was the victim's Victorian driver's licence, two Commonwealth Bank cards and $20 in cash.

Charge 3, theft.  On 18 June 2012 the victim, Judy Incoll, was shopping at the Safeway Supermarket in Werribee Plaza.  The victim was pushing a trolley and had her hand bag sitting within the children's seat of the trolley.  The prisoner approached the victim and started a conversation about bananas, distracting her.  The co-accused approached the trolley and removed the victim's purse from her hand bag.  Contained within the purse was her Victorian driver's licence, various personal cards and $200 cash.

Charge 4, theft.  On 19 June 2012 the victim, Alton Shami, was working at the Greensborough Florist in the Greensborough Plaza.  The prisoner and co-accused were in the store and observed the victim's wallet and Samsung Wave 723 mobile phone behind the counter.  The co-accused distracted the shopkeeper whilst the prisoner grabbed the wallet and mobile phone.  They exited the store in the complex and entered their vehicle, a blue 2009 Toyota Camry sedan. 

Upon their arrest on 27 July 2012 the prisoner and co-accused were in possession of the abovementioned Samsung mobile phone.

Charge 5, attempted theft.  On 22 June 2012 the victim, Zhilan Liu, was working at the sock shop in the Werribee Plaza, Hopper Crossing.  The prisoner and co-accused were in the store and observed the victim's hand bag behind the counter.  The co-accused distracted the shopkeeper whilst the prisoner grabbed the hand bag.  Both ran from the store with the victim following.  The prisoner dropped the hand bag and they've exited the complex and got into a blue 2009 Toyota Camry sedan.

Charge 6, theft.  On 23 June 2012, the victim, Simran Gill, was shopping at the Coles Supermarket at the Wyndham Village Shopping Centre.  The victim was pushing a trolley and had her hand bag sitting within the children's seat of the trolley.  The prisoner approached the victim and started a conversation in the frozen section about desserts, distracting her.  The co-accused approached the trolley and removed the victim's purse from her hand bag.  Contained within the purse was various personal cards and $5 cash.

Charge 7, theft.  On 2 July 2012 the victim, Lorraine Stock, was shopping at the Safeway Supermarket at Hogan's Corner Shopping Centre in Point Cook.  The victim was pushing a trolley and had her hand bag sitting within the children's seat of the trolley.  The prisoner approached the victim and started a conversation about a magazine for his mum, distracting her.  The co-accused approached the trolley and removed the victim's purse from her hand bag.  Contained within the purse were various personal cards and $200 in cash.

Charge 8, theft.  On 4 July 2012 the victim, Kerry Butler, was working at the Little Red Wagon store in the Point Cook Town Centre.  The prisoner and co-accused entered the store and distracted the shopkeeper.  The prisoner entered the rear staff office and grabbed the victim's clutch purse.  Both exited the store with the shopkeeper not realising until some hours later that her purse was missing.  Contained within the purse was various personal cards and $240 in cash.

Charge 9, theft.  On 6 July 2012 the victim, Loretta Jensen was at the Playtime Fun Centre in the Highpoint Shopping Centre at Maribyrnong.  The victim placed her hand bag at her feet with her other shopping bags.  The prisoner approached her and started a conversation about the games.  At this stage the co-accused picked up the hand bag and walked out of the store and the complex.  Contained within the hand bag was a black wallet containing various personal cards and assorted jewellery.

Charge 10, theft.  On 6 July 2012 the victim, Feng Dheng, was working at the Best Housekeeping store in the Caroline Springs Shopping Centre.  The prisoner and co-accused were in the store and observed the victim's hand bag behind the counter.  The prisoner distracted the shopkeeper whilst the co-accused grabbed the victim's hand bag from a cupboard behind the counter.  Both exited the store and complex before getting into a blue 2009 Toyota Camry sedan.  Contained within the hand bag was a purse containing various personal cards and $1,500 in cash.

Charge 11, theft.  On 7 July 2012 the victim, Kim Bonavia, was shopping at the Safeway Supermarket at Hoppers Crossing Shopping Centre.  The victim was pushing a trolley and had her hand bag sitting within the children's seat of the trolley.  The prisoner approached the victim and started a conversation about a microwaveable container, distracting her.  The co-accused approached the trolley and removed the victim's purse from her hand bag.  Contained within the purse were various personal cards, a Coles Myer gift voucher and $90 in cash.    Upon their arrest on 27 July 2012 the Coles Myer gift voucher was located in the possession of the prisoner and the co-accused.

Charge 12, theft.  On 9 July 2012 the victim, Emma Jones was working at the Gisborne Homewares store in the Gisborne Village Shopping Centre.  The prisoner and co-accused were in the store and observed the victim's hand bag and iPhone behind the counter.  The prisoner distracted the shopkeeper asking about the price of furniture whilst the co-accused grabbed the victim's hand bag and iPhone from behind the counter.  Both have exited the store and complex.  Contained within the hand bag was a purse containing various personal cards and $50 cash. 

Charge 13, theft.  On 9 July 2012 the victim, louse Findlay, was working at the One Star Variety Store in the Manor Lakes Shopping Centre in Wyndham.  The prisoner and co-accused were in the store and observed the victim's hand bag behind the counter.  The prisoner distracted the shopkeeper whilst the co-accused grabbed the victim's hand bag from behind the counter.  Both exited the store and complex and got into a blue 2009 Toyota Camry sedan.  Contained within the hand bag was a purse containing various personal cards, a Motorola mobile phone and $100 in cash. 

On 9 July 2012 the victim's hand bag was located outside a residential address in Vincent Crescent, Werribee without the cash or mobile phone.

Charge 14, theft.  On 9 July 2012 the victim, Shan Yu was working at the Fantastic Home and Gift Shop in the Sunbury Square Shopping Centre.  The prisoner and co-accused were in the store and observed the victim's hand bag behind the counter.  The prisoner distracted the shopkeeper asking about a dog bag from Aisle 4 whilst the co-accused grabbed the victim's hand bag from behind the counter.  Both exited the store and the complex.  Contained within the hand bag was a purse containing various personal cards and $650 in cash.

Charge 15, theft.  On 10 July 2012 the victim, Sally Phung was working at the Fantastic Home and Gift Shop in the Hogan's Corner Shopping Centre.  The prisoner and co-accused were in the store and observed the victim's hand bag behind the counter.  The prisoner distracted the shopkeeper whilst the co-accused grabbed the victim's hand bag from a drawer behind the counter.  Both exited the store and complex.  Contained within the hand bag was a purse containing various personal cards and $50 in cash.

Charge 16, theft.  On 11 July 2012 the victim, Kelly O'Brien was shopping at the Point Cook Town Centre.  Whilst walking through the complex the victim stopped and spoke to a shop assistant out the front of the store.  As the victim was talking the prisoner and co-accused have walked past and grabbed the victim's purse from her hand bag.  Both have then exited the store and the complex.  Contained within the hand bag was a purse containing various personal cards and $150 in cash.

On 12 July 2012 the victim's hand bag was handed into the Werribee Police Station after being located in a creek in Werribee.

Charge 17 of theft.  On 11 July 2012 the victim, Kimberley Lane was working at the People Store in the Sunbury Shopping Centre.  The prisoner and co-accused entered the store and the prisoner distracted the shopkeeper.  The co-accused entered the rear staff office and grabbed the victim's purse out of her handbag and her Apple iPhone.  Both have exited the store with the shopkeeper not realising until some hours later that her hand bag was missing.  Contained within the purse were various personal cards, credit cards and $20 in cash.

Charges 18 to 30 are charges of obtaining property by deception.  The prisoner and co-accused left the Sunbury Shopping Centre in their blue 2009 Toyota Camry sedan and drove to a number of venues. 

The prisoner and co-accused used the stolen credit cards to conduct 13 transactions before the victim, Kimberley Lane, was able to cancel her cards.  The transactions were as follows.  At Safeway in Sunbury, $211.30, which is Charge 18.  At Safeway in Sydenham, $238.18, which is Charge 19.  At Safeway, Taylors Lakes, $240.77, which is Charge 20.  At Safeway in Taylors Lakes, $211.30, which is Charge 21.  The Tobacco Shop in Taylor's Lakes, $207.30 which is Charge 22.  At Safeway in Werribee of $260.53 which is Charge 23.  At Coles in Werribee, $340.26, which is Charge 24.  At Coles in Altona, $242.26, which is Charge 25.  At Safeway in Altona, $209.18, which is Charge 26.  At Coles in Altona North, $209, which is Charge 27.  At Coles in Braybrook, $209, which is Charge 28.  At Smokesmart in Werribee, $220.85, which is Charge 29 and at Safeway at Hoppers Crossing, $226.27, which is Charge 30.  The total amount obtained using these stolen credit cards was $3,028.20.

Charge 31, theft.  On 16 July 2012 the victim, Leanne Star, was shopping at the Safeway Supermarket at the Werribee Plaza Shopping Centre.  The victim was pushing a trolley and had her hand bag sitting with the children's seat of the trolley.  The prisoner has approached the victim and started a conversation about oranges, distracting her.  The co-accused approached the trolley and removed the victim's purse from her hand bag.  Contained within the purse were various personal cards and $490 in cash.

Charge 32, theft.  On 16 July 2012 the victim, Amanda Staines, was at the Coles Supermarket in the Central Square Shopping Centre in Altona.  The victim was pushing a trolley and had her hand bag sitting within the children's seat of the trolley.  The prisoner approached the victim and started a conversation about flowers, distracting her.  The co-accused approached the trolley and removed the victim's purse from her hand bag.  Contained within the purse were various personal cards and $100 cash.

Charge 33, theft.  On 17 July 2012 the victim, Kelly Doherty, was working at the front counter at the Altona Sports Club in Altona.  The victim left the reception desk to attend to another matter.  The prisoner entered the venue and observed the victim's hand bag behind the counter.  The prisoner jumped the counter and grabbed the victim's hand bag before jumping back over and exiting the club.  The prisoner left in a blue 2009 Toyota Camry sedan.  Contained within the hand bag was a purse containing various personal cards, $50 cash and a Samsung mobile phone.

Charge 34, theft.  On 17 July 2012 the victim, Gillian Partington, was at the Coles Supermarket in Williamstown.  The victim was pushing a pram with her grandchild walking beside the pram.  The victim was looking at some teddy bears on display with her granddaughter when the prisoner reached over her and pretended to look at the bears.  As the prisoner did this, he lifted the victim's jacket on the pram and the co-accused grabbed the victim's purse and walked off.  The prisoner and the co-accused exited the store.  Contained within the purse were various personal cards and $120 cash.

Charge 25, obtaining property by deception.  They, meaning the prisoner and the co-accused, drove to the Safeway Supermarket in Williamstown in the blue 2009 Toyota Camry where they used the victim's credit card to purchase a quantity of cigarettes which were valued at $60.

Charge 36, obtaining property by deception.  They drove to Coles in Laverton where they used the victim's credit card to purchase items which included a quantity of cigarettes valued at $60.

Charge 37, theft.  On 20 July 2012 the victim, Siton Wang, was working at Cut Rate Essentials store which was within the Westfield Shopping Centre.  The prisoner and co-accused were in the store and observed the victim's hand bag behind the counter.  The prisoner distracted the shopkeeper whilst the co-accused first attempted to open the cash register, unsuccessfully, then grabbed the victim's hand bag from behind the counter.  Both have exited the store and the complex.  Contained within the hand bag was a purse containing various personal cards and $70 in cash.

Charge 38, theft.  On 23 July 2012 the victim, Xixion He, was working at the Super Bargains Store in the Gisborne Village Shopping Centre.  The prisoner and co-accused were in the store and observed the victim's bag behind the counter.  The prisoner distracted the shopkeeper whilst the co-accused grabbed the hand bag from behind the counter.  The prisoner and co-accused exited the store and the complex.  Contained within the bag was a wallet with personal cards, an Apple iPhone 4S and $380 in cash.

Charge 39, theft.  On 24 July 2012 the victim, Catherine Harder, was working at the Eighty Eight Store in the Sunbury Shopping Centre.  The co-accused distracted the shopkeeper whilst the prisoner entered the rear staff room.  The prisoner grabbed a hand bag from the table within the room and exited.  They exited the store and the complex and entered their blue 2009 Toyota Camry sedan.  Contained within the bag was a wallet with personal cards, $100 in cash and an Apple iPhone 4S.

Charge 40, obtaining property by deception.  They drove to the Woolworths Supermarket in Sunbury and used the victim's credit card to purchase items which included a quantity of cigarettes to the value of $234.78.

Charge 41, obtaining property by deception.  They drove to Coles in Hoppers Crossing and used the victim's credit card to purchase items which included a quantity of cigarettes to the value of $234.78.

Charge 42, theft.  On 27 July 2012 the victim, Lynette Barclay, was shopping at the Foodworks Supermarket in Gisborne.  The victim was pushing a trolley and had her hand bag sitting within the children's seat of the trolley.  The prisoner approached the victim and started a conversation about varieties of bread, distracting her.  The co-accused approached the trolley and removed the victim's purse from her hand bag.  Contained within the purse was a wallet containing various personal cards and $100 in cash. 

Charge 43, at approximately 3.50 pm on 27 July 2012 the victim, Bo Soo Park was working at the Socks and Locks store at the Westfield Plaza Shopping Centre.  The prisoner and co-accused were at the store and observed the victim's mobile phone under the counter.  The prisoner distracted the shopkeeper whilst the co-accused grabbed the phone from behind the counter.  The prisoner and co-accused then walked away.  The security staff from Westfield Plaza recognised both of them in relation to previous offending and began to follow them. 

Security staff continued to follow the prisoner and the co-accused out of the complex and towards the beachfront, being Western Beach Road.  Security Officer Andrew Frame approached the co-accused who was sitting on a bench.  She agreed to remain with the security officer.  The prisoner was about 20 metres away and was approached by Security Officer Jade Hayes and Joe Moore.  The prisoner started to become aggressive and abusive towards security.  Moore took hold of the prisoner's arms.  The prisoner produced a large hunting knife from the front of his tracksuit pants.  Moore and Hayes immediately moved back to avoid the knife.  Frame and Harrower were also in the vicinity and the prisoner swung the knife towards them.  That was the basis for the four assault with weapon charges, the summary matters, Your Honour. 

Charge 44, attempted armed robbery.  The prisoner ran off up Western Beach armed with a knife and approached a Toyota Corolla sedan, which was blue, registration TGC 471 containing two occupants.  The victim, Coral Nicholson, who was aged 67, and her 70 year old husband who suffers from frontal temporal lobe dementia.  They were driving slowly.  Having witnesses what looked like a commotion ahead they came to a stop behind the car in front of her.  The prisoner opened the read passenger side door and entered the rear passenger seat armed with a knife. 

The victim did not observe the knife but the prisoner said, "Drive lady".  The victim opened the door and got out whilst the car was still moving.  Her elderly husband pulled on the hand brake to stop the vehicle.  The prisoner observed security coming towards the vehicle and exited running off, again, up Western Beach Road.

Charge 45, Your Honour, attempted armed robbery.  The prisoner ran off armed with a knife and approached a Mazda 3 sedan, registration TXQ 810 being driven by 42 year old female victim, Theresa Stewart, on Western Beach Road.  The prisoner ran into the front driver's side fender of the car scaring the victim and causing her to stop the vehicle.

He opened the driver's door and grabbed hold of the victim's arm trying to pull her out of the vehicle.  The victim yelled at him that he was not taking her car and the prisoner kept looking behind him.  As he did this, the female slammed the door jamming his arm in the door frame.  As she did this she - I shouldn't say would, Your Honour - she saw the knife in his hand in the car at her face level.  I'll just read that again, as she did this she saw the knife in his hand in the car at her face level.  The prisoner pulled his arm free and ran to the other side of Western Beach Road. 

Charge 46, the charge of attempted armed robbery.  The prisoner ran toward a set of stationary vehicles at a set of lights.  The prisoner approached a Mitsubishi Magna sedan, white, registration NIR 419 containing an elderly female, Helen Thomas, with her six year old granddaughter and four year old grandson in the rear passenger seats.  The prisoner was still armed with the knife and attempted to get into the front passenger side of the vehicle but it was locked. 

The prisoner became aggressive banging on the window for her to open the door.  The children were screaming and the female remained calm and did not open the door.  The prisoner ran off into Cavanagh Street whilst attempting to stop other vehicles.  He continued to run whilst being followed by security who had already contacted police. 

The prisoner tried several other vehicles in Brougham Street and Mercer Street.  Police approached the prisoner in Brougham Street and ordered him to drop the hunting knife and lay on the ground.  He complied and was arrested and conveyed to the Geelong Police Station. 

The prisoner's 2009 Toyota Camry sedan was located in the car park of the Westfield Plaza in Geelong bearing stolen number plates.  The vehicle was towed to the Geelong Police Station.

Charge 47, handling stolen goods.  Attached to the rear of the vehicle was number plate, T88 761 which police identified as having been stolen from a 2000 Jayco caravan at 24 Melview Drive, Wyndhamvale on 26 July 2012 belong to Darren Court.  Attached to the front of the vehicle was number plate, P20145 which police identified as having been stolen from a 2001 Coromal caravan at 24 Melview Drive, Wyndhamvale on 26 July 2012 belonging to Darren Court. 

Charge 48, handling stolen goods.  Located in the vehicle was number plate, RMJ 294 which police identified as having been stolen from a 2001 Ford Falcon sedan in High Street, Belmont on 27 July 2012 belonging to Mella Wenyika. 

Charge 49, handling stolen goods.  Also located in the vehicle was a Nokia 6200 series mobile phone which police identified as having been stolen from a 2006 Toyota Prado four wheel drive in Lollipop Drive, Wyndhamvale on 3 June 2012 belonging to Nicky Dimarto.

Charge 50, handling stolen goods.  Also located in the vehicle was a Sony digital voice recorder which police identified as having been stolen from a 2006 Ford Falcon parked outside premises at Grassland Drive, Point Cook belonging to Nathan Tavendale. 

Charge 51, handling stolen goods.  Also located in the vehicle was a BMW car key with tag registration, TTC 680 which police identified as belonging to Yatong Wang having been stolen from a hand bag at Westfield Shopping Centre, Airport West on 22 July 2012.

Charge 52, handling stolen goods.  Also located in the vehicle was a Samsung mobile phone identified by police as having been stolen from a 2006 Toyota Camry sedan parked at premises at Yellow Gum Way in Wyndhamvale belonging to Gurpeet Singh.

Charge 53, handling stolen goods.  Located in the vehicle was a Nokia mobile phone which police identified as having been stolen from a pencil case at Bunnings in Hopper Crossing on 8 June 2012 belonging to Kaluarachige Perera. 

Also located were items suspected to be the proceeds of crime including three gift cards.  That is the basis for the summary charge, Your Honour, knowingly dealing with the proceeds of crime. 

The prisoner exercised his rights to make a "no comment" record of interview.

1. In written submissions the applicant argued that the order for accumulation on the theft charges and the obtaining property by deception charges did not properly recognise the principle of totality as set out in Mill v The Queen.[1]

   [1]1998 166 CLR 59.

1. In oral argument no real emphasis was placed on the order for accumulation for the theft charges but challenge was made, in the name of totality, to both the individual head sentences and orders for accumulation made on the obtaining property by deception and handling stolen goods charges.

1. Of the 17 obtaining property by deception charges (18-30, 35, 36, 40 and 41), 13 of the charges occurred on the same day and the other remaining charges were committed within the two weeks.  The charges were all very similar and involved relatively small amounts about $200.  It was argued that consistent with the principles set out in DPP v Grabovac[2] where offences are committed close together in time and by the use of the same or similar method, a high degree of concurrency is warranted.  It followed that there should have been a higher degree of concurrency in this case.  It was argued that the individual sentences of two months on each of the charges was too high having regard to the relatively small amounts of money and did not recognise an appropriate degree of moderation of sentence.[3]

   [2][1998] VR 664.

   [3]Ibid, 684.

1. In the result it was said that 170 days accumulation for obtaining these relatively small amounts in the circumstances offended the principle of totality.

1. The same argument was made in relation to charges of handling stolen goods (charges 47-53).  Those charges involved a number of stolen number plates, three mobile phones, a car key and a digital voice recorder.  It is submitted that the accumulation of 10 days on each of the head sentences of 2 months involved the same error as the earlier charges involving obtaining property by deception.  The total accumulation was 70 days for this aspect of the offending.

1. It should also be noted that in relation to two of the charges of attempted armed robbery the accumulation was only 4 months on each charge.  That accumulation was accepted by Mr Gurvich, who appeared for the applicant, as moderate.

1. The 20 days accumulation on each of the theft charges was not pressed on the oral hearing.  That offending was particularly mean.

1. In examining the two sets of sentences for obtaining property by deception and handling stolen goods which were in effect 170 days and 70 days, regard must be had to the significant criminal history of the applicant.  He was sentenced to an aggregate sentence of 12 months imprisonment on 19 April 2011 for offending, which in a large part, was similar to the charges in this case.  The applicant had been released not all that long before this offending.  On 22 October 2009 he had been sentenced to an aggregate sentence of nine months for similar offending.

1. As Priest JA observed during argument the question of accumulation when dealing with large numbers of offences is a matter of impression.

1. This was a case where the learned sentencing judge took some care to structure the sentence by fixing appropriate head sentences and making allowance for moderate accumulation.  She did not fall into error.  Even if there was some possibility of error, there is no basis to say that a different sentence should have been imposed.

1. The ground of appeal is not reasonably arguable and leave to appeal should be refused.  On 19 November 2013 the order of the court dismissing the application for leave was announced and it was indicated that reasons would be published.  These are those reasons.

1. It had become clear to counsel when preparing the application that there was a clerical error in the Record of Orders signed by her Honour.  In relation to charge 45, the record showed a sentence of 15 months.  Her Honour had pronounced a sentence of 18 months and the other orders, in particular the total effective sentence, indicated that her Honour intended to impose a sentence of 18 months on that charge.

1. The Court was encouraged by both parties to amend the record by virtue of the inherent jurisdiction of the court and we agreed to do so.  When the orders of the court were announced leave was granted for the limited purpose of amending the record of the court.

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