Cummins v The State of Western Australia

[2006] WASCA 201

CUMMINS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 201

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 201
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:102/2006	Heard:	25 AUGUST 2006
Coram:	ROBERTS-SMITH JA	Delivered:	29/09/06
No of pages:	16	Judgment Part:	1 of 1
Result:	Application for extension of time dismissed
Category:	B
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Parties:	ROBERT KEVIN CUMMINS THE STATE OF WESTERN AUSTRALIA
Catchwords:	Appeal Criminal law and procedure Application for leave to appeal against sentence Application for extension of time Obligation of sentencing Judge to state fact of reduction of sentence for plea of guilty Totality Whether sentence "crushing" Prospect of success on appeal
Legislation:	Criminal Appeals Act 2004 (WA), s 8, s 27(2) Sentencing Act 1995 (WA), s 93, s 94
Case References:	Christensen v The Queen, unreported; SCt of WA; Library No 7721; 23 June 1989 GHS v The State of Western Australia [2006] WASCA 42 Hewitt v The Queen, unreported; SCt of WA; Library No 6187; 14 February 1986 Jarvis v The Queen (1993) 20 WAR 201 Mill v The Queen (1988) 166 CLR 59 Salihos v The Queen (1987) 27 A Crim R 319 Samuels v The State of Western Australia (2005) 30 WAR 473 Cameron v The Queen (2002) 209 CLR 339 Chivers v The State of Western Australia [2005] WASCA 97 Chua v The Queen [2001] WASCA 353 Dickens v The Queen (2004) 147 A Crim R 343 Little v The Queen [2001] WASCA 87 Martino v The State of Western Australia [2006] WASCA 78 McLean v The Queen [1999] WASCA 209 Readhead v The State of Western Australia [2005] WASCA 191 Siganto v The Queen (1998) 194 CLR 656

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CUMMINS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 201 CORAM : ROBERTS-SMITH JA HEARD : 25 AUGUST 2006 DELIVERED : 29 SEPTEMBER 2006 FILE NO/S : CACR 102 of 2006 BETWEEN : ROBERT KEVIN CUMMINS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'SULLIVAN DCJ

File No : IND 1149 of 2005

Catchwords:

Appeal - Criminal law and procedure - Application for leave to appeal against sentence - Application for extension of time - Obligation of sentencing Judge to state fact of reduction of sentence for plea of guilty - Totality - Whether sentence "crushing" - Prospect of success on appeal

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Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 27(2)

Sentencing Act 1995 (WA), s 93, s 94

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

Appellant : Mr A McIntosh
Respondent : Mr A L Troy

Solicitors:

Appellant : Thames Legal
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Christensen v The Queen, unreported; SCt of WA; Library No 7721; 23 June 1989
GHS v The State of Western Australia [2006] WASCA 42
Hewitt v The Queen, unreported; SCt of WA; Library No 6187; 14 February 1986
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Salihos v The Queen (1987) 27 A Crim R 319
Samuels v The State of Western Australia (2005) 30 WAR 473


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Case(s) also cited:

Cameron v The Queen (2002) 209 CLR 339
Chivers v The State of Western Australia [2005] WASCA 97
Chua v The Queen [2001] WASCA 353
Dickens v The Queen (2004) 147 A Crim R 343
Little v The Queen [2001] WASCA 87
Martino v The State of Western Australia [2006] WASCA 78
McLean v The Queen [1999] WASCA 209
Readhead v The State of Western Australia [2005] WASCA 191
Siganto v The Queen (1998) 194 CLR 656

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1 ROBERTS-SMITH JA: This is an application for leave to appeal against sentence.

2 The appellant was convicted before the District Court at Perth following his pleas of guilty before O'Sullivan DCJ on 12 April 2006 on one count of attempting to procure another to commit an offence of criminal damage and one count of attempting to pervert the course of justice.

3 An appeal notice was filed on 27 July 2006. It was therefore almost three months out of time. The appellant accordingly also seeks an extension of time. The latter application is supported by an affidavit of Mr Paul Meyer, filed 27 July 2006. To that is attached a letter from the appellant's counsel, Mr Simon Watters. According to these documents, Mr Watters wrote to the appellant on 4 July 2006 concerning the issue of legal aid. He indicated that he had been contacted by counsel who appeared for the appellant on the sentencing hearing, Ms Fisher, and that although he understood that legal aid had been granted for the purpose of the appeal, when he inquired of Legal Aid about that, he was informed it was not so. Counsel said he had been told that no application had been received by Legal Aid for a grant of aid concerning an appeal. He suggested the appellant contact the Legal Aid representative visiting the prison and make an application.

4 A Legal Aid representative met the appellant on 13 July 2006 at the prison and the appellant was subsequently advised by letter dated 20 July 2006 that legal aid had been granted for an appeal against sentence.

5 Neither the affidavit nor the letter gives any explanation for the failure to apply for legal aid for the appeal earlier. The power to extend time is discretionary. Time will not be extended unless the delay is satisfactorily explained (Salihos v The Queen (1987) 27 A Crim R 319). In any event, the fact that an appellant is awaiting advice from, or a grant of legal aid, is not a reasonable excuse for failing to file an appeal notice (Hewitt v The Queen, unreported; SCt of WA; Library No 6187; 14 February 1986; Christensen v The Queen, unreported; SCt of WA; Library No 7721; 23 June 1989). Given the lack of any satisfactory explanation for the delay, time would be extended only if the appellant satisfies me the appeal is likely to succeed. That is a higher test than the test for leave to appeal in s 27(2) of the Criminal Appeals Act 2004 (WA), as explained in Samuels v The State of Western Australia (2005) 30 WAR 473, at [50] - [61]. "Likely" means "more likely than not", which connotes more than "a reasonable prospect of succeeding".

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6 The Appellant's Case was filed on 10 August 2006. That contains two grounds of appeal. They are that:

"(1) The learned sentencing Judge erred in passing sentence when he failed to give sufficient weight to the pleas of guilty entered by the appellant such that the individual sentences imposed were manifestly excessive.

(2) The learned sentencing Judge erred when he ordered the entire sentence imposed be served cumulative [sic] upon that currently being served by the appellant such that the effect of the sentence was 'crushing' and offended the totality principle."

7 In accordance with the policy of this Court where a single Judge considering an application for leave to appeal on the papers forms a preliminary view that leave to appeal is likely to be refused on one or more grounds, I directed the applications be listed for hearing on 25 August 2006. In light of the submissions in the Appellant's Case, I also directed that the respondent file and serve submissions by 23 August and be represented on the hearing.

8 On 25 August, Mr C McIntosh appeared for the appellant and Mr A Troy appeared for the respondent.

9 Very broadly, the facts were that during June 2004, the appellant was a remand prisoner at Hakea Remand Centre in Canning Vale. He made numerous telephone calls to his girlfriend in a Perth suburb using the prison telephone system. All telephone calls made by inmates from the prison are monitored and a warning precedes each call advising the caller and recipient that such is the case.

10 Between 4.17 pm on 16 June 2004 and 12.53 pm on 20 June 2004, the appellant called his girlfriend many times a day. Some 12 individual calls were identified in which he attempted to procure a juvenile to go to an address in Redcliffe and damage vehicles that would be found parked there. The occupants of those particular premises were a mother and daughter who were then witnesses in a trial involving the appellant. He said in the telephone calls that his motive for wanting the cars damaged was to cause the mother and daughter not to go to court and to get the charges against him dropped. He told his girlfriend that he wanted the cars damaged by having brake fluid poured on them and then set alight. He encouraged his girlfriend to make sure the juvenile committed the

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offences and suggested that she drive him to the location where the cars were to be set alight. He offered the juvenile drugs as payment.

11 In fact the acts were never performed and neither the girlfriend nor the juvenile entered into any agreement to commit those offences.

Ground 1 - Pleas of guilty

12 The primary submission advanced here is that in sentencing the appellant, the sentencing Judge reduced the sentence pursuant to the transitional sentencing provisions, "… but failed when passing the actual sentence to indicate any discount had been given for the pleas of guilty entered".

13 It is submitted that a sentencing Judge is required to state, in the course of his sentencing remarks, that he has reduced the sentences imposed by him as a consequence of the pleas of guilty. If a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.

14 It will be apparent that the primary submission is not reflective of the ground. The latter asserts the sentencing Judge failed to give sufficient weight to the pleas of guilty; the submission actually advanced is that his Honour failed to state in open court in accordance with s 8(4) of the Sentencing Act 1995 (WA) that he had given any discount on that account. This was made clear by Mr McIntosh, who said (t/s 10, 25 August 2006):

"… if leave is granted we would actually amend the grounds to coincide with the submissions that have been made by Mr Watters. The submissions made it quite clear what the complaint is, the complaint is that there's simply no mention in open court that any credit has been given."

15 In these circumstances, it seems to me appropriate that I exercise the power under s 40(1)(k) of the Criminal Appeals Act and r 53 of the Supreme Court (Court of Appeal) Rules 2005 (WA) to amend this ground to read, in accordance with the appellant's submission:

"The learned sentencing Judge erred in that although he reduced the sentence pursuant to the transitional sentencing provisions, he failed when passing the actual sentence to indicate any discount had been given for the pleas of guilty entered."

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16 Section 8(1) defines mitigating factors as those which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.

17 Section 8(2) provides that:

"A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation."

18 Section 8(4) provides that:

"If because of the mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."

19 It is to be noted that in contrast with s 8(5) which deals with a reduction made on account of an undertaking by an offender to assist law enforcement authorities, s 8(4) does not require the sentencing Judge to state the extent of the reduction for a plea of guilty in open court.

20 The complaint here turns on the fact that his Honour did not mention the appellant's pleas of guilty in his concluding sentencing remarks when he came to the actual point of imposing sentence. Having detailed the circumstances of the offences, having referred to the matters put to him by both counsel, and having dealt with the combination of considerations he saw as relevant to the sentencing exercise, his Honour concluded (t/s 32 - 33):

"In my view, but for the provisions of the Sentencing Act, it would have been appropriate to impose upon you terms of imprisonment in respect of each of these offences of four years or 48 months. Having regard to the transitional provisions, those terms should be reduced by one-third to 32 months. In my opinion, these sentences reflect events which can properly be described as amounting to one transaction and the sentences should be served concurrently, one with the other, but cumulatively upon any terms that you are presently serving.

You should be declared eligible for parole in respect of each and there is, because you are a serving prisoner, as I understand it no time in custody to take into account. Very well, Mr Cummins, would you stand up, please? The sentences of this court are then that you should serve terms of imprisonment

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of 32 months in respect of each of these matters, concurrently, one with the other but cumulative upon any sentences you are presently serving and you are declared eligible for parole."

21 However, s 8(4) does not require a sentencing Judge to state, at the point of imposing the actual sentence, that he or she has given a discount for a plea of guilty. All the section requires is that the sentencing Judge state the fact in open court. That is what his Honour did. At t/s 30, his Honour said:

"Nevertheless, you have pleaded guilty, you are entitled to some credit for that admission and there is also to be noted your expression of remorse recorded by the author of the pre-sentence report and some words to the effect that you were relieved that the request which you made were not acted upon."

22 He then repeated that:

"The fact is that you have pleaded guilty to these offences …"

23 There is no reasonable prospect the Court of Appeal would be persuaded that the trial Judge failed to mention in his sentencing remarks that he was giving the appellant a sentencing discount for his pleas of guilty.

24 There is no substance to this ground. I would not grant leave to appeal in respect of it.

Ground 2

25 The circumstances relevant to this ground were that at the time of sentence on 12 April 2006 the appellant was 21 years old. He had been in custody since 13 January 2004. On 2 May 2004 he was sentenced to 3 years 6 months' imprisonment for an offence of aggravated armed robbery. That sentence was backdated so as to commence from 13 January 2004, the date he was taken into custody.

26 On 25 February 2005 the appellant was further sentenced for an offence of stealing a motor vehicle and driving it recklessly. That offence had been committed on 9 July 2003. He was sentenced to 12 months' imprisonment additional to the sentence he was then serving. His aggregate sentence was accordingly increased to 4 years 6 months, with parole eligibility.

(Page 9)

27 The appellant's earliest date for release on parole at that point was 12 July 2006 and his maximum date for release was 12 July 2008.

28 When O'Sullivan DCJ imposed the sentence of 32 months' imprisonment, with parole eligibility, on 12 April 2006, he ordered that be served cumulatively upon the sentences then being served by the appellant.

29 Accordingly, the commencement date for the sentence imposed by O'Sullivan DCJ will be 12 July 2008, that being when the other aggregate sentence finishes.

30 Following the imposition of the 32 month cumulative sentence on 12 April 2006, the appellant now has a current maximum release date of 12 March 2011 and a parole eligibility date of 12 March 2009.

31 It is submitted that the effect of the sentence imposed by his Honour has been to increase the appellant's head sentence by 32 months and to move his earliest date of eligibility for parole out by 32 months from 12 July 2006 to 12 March 2009. That submission is correct.

32 Section 93 of the Sentencing Act 1995 (WA) provides that a prisoner serving a parole term is eligible to be released on parole:

(a) if the term served is 4 years or less - when he or she has served one-half of the term; or

(b) if the term served is more than 4 years - when he or she has served 2 years less than the term.

33 This provision is expressly subject to s 94, which provides as follows:

"94. Aggregation of parole terms for certain purposes

(1) In the case of a prisoner serving 2 or more parole terms -

(a) the time when he or she is eligible to be released on parole; and

(b) the parole period for such a prisoner,

are to be calculated by reference to the aggregate of those terms, but only if under subsection (3) or (4) those terms are to be aggregated.

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(2) If under this section the matters referred to in subsection (1) are not to be calculated by reference to the aggregate of 2 or more parole terms, the matters are to be calculated in respect of each of the 2 or more parole terms separately.

(3) A parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of subsection (1) unless it is to be served partly concurrently with that other term.

(4) A parole term imposed at a different time to another parole term is to be aggregated with that other term for the purposes of subsection (1) unless -


(a) it is to be served concurrently with that other term or partly concurrently with it; or

(b) the other term was imposed before the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003.


(5) Subject to this section, a parole term, or an aggregate of parole terms, may be aggregated with the aggregate of 2 or more other parole terms, but a parole term, or an aggregate of parole terms, imposed before the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003 is not to be aggregated with a parole term, or aggregate of parole terms, imposed after that commencement.

(6) For the purposes of applying this section a reference in this Part or in the Sentence Administration Act 2003 to a prisoner serving a parole term is, where necessary, to be taken as including a reference to a prisoner serving more than one parole term and in such a case, if under this section the terms can be aggregated, the

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reference to the term is to be taken as being a reference to the aggregate of the terms.

Table showing some examples of the operation of this section and sections 88 and 93, and section 7 of the Sentence Administration Act 2003

Parole term 1	Parole term 2	Whether Concurrent etc	Effect
4 years	6 years	Concurrent	Aggregation of terms permitted for parole calculations. Aggregate = 6 years. Non-parole period = 3 years. (Calculated on aggregate). If not paroled, serve 6 years.
4 years	6 years	Cumulative	Aggregation of terms not permitted for parole calculations. Aggregate = 10 years. Non-parole period = 5 years. (Calculated on aggregate). If not paroled, serve 10 years.
4 years	6 years	Partly concurrent: 1 year of term 1 to be served before term 2 begins (See s. 88(4))	Aggregation of terms not permitted for parole calculates. Serve 1 year of term 1. Then begin serving term 2 concurrently with rest of term 1. Non-parole period on term 2 = 3 years. Result: serve 4 years before eligible for parole. If not paroled, serve 7 years.

[Section 94 inserted by No. 50 of 2003 s. 20.]"

34 The examples in the table give non-parole periods as one-half of terms or aggregate terms of more than 4 years. This is inconsistent with s 93(1)(b), which states that parole eligibility for terms of more than 4 years arises when the prisoner has served 2 years less than the term. This inconsistency is a result of a late-stage amendment to cl 20 of the Sentencing Legislation Amendment and Repeal Bill during its progress through the Legislative Council. Section 93 as originally contained in cl 20 of the Bill provided for parole eligibility where a prisoner had served one-half of their sentence, regardless of the length of the sentence. The Legislative Council saw fit to modify s 93 to its current form, to ensure that the length of time prisoners spent on parole would not exceed 2 years: see the comments of the Attorney General in "Hansard", Legislative Assembly, Thursday 26 June 2003, at 9460; referred to in GHS v The

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State of Western Australia [2006] WASCA 42 per Pullin JA at [98] - [100].

Application to this case

35 At the time of sentencing, the appellant was already serving two terms of imprisonment. These two terms were:

(1) a term of 3 years 6 months' imprisonment, imposed on 2 May 2004 and backdated to 13 January 2004, for an offence of aggravated armed robbery committed against a taxi driver; and

(2) a term of 12 months' imprisonment, imposed on 25 February 2005 and made cumulative on the earlier sentence, for an offence of stealing a motor vehicle and driving recklessly, committed on 9 January 2003.

36 As set out above, on 12 April 2006 the trial Judge sentenced the appellant to a term of 32 months' imprisonment, cumulative upon any terms he was currently serving.

37 The appellant's sentences are cumulative upon each other. Section 94(4) therefore requires that those terms be aggregated for the purposes of calculating the time of parole eligibility and the parole period under subs (1). Aggregation of the three sentences results in an aggregate of 7 years 2 months. It follows from s 93(1)(b) that the non-parole period that the appellant must serve is 2 years less than this aggregate, namely 5 years 2 months. the appellant has been in custody since 31 January 2004. therefore, pursuant to s 93 and s 94, the appellant will not be eligible for parole until 12 March 2009. This calculation accords with the appellant's submission that, by virtue of the instant sentence being made cumulative on his current sentences, he will effectively serve the whole of the 32 months (see also GHS v The State of Western Australia (supra)).

38 The submission then is:

"If the intention of the learned sentencing Judge was to impose a sentence that added a further 16 month term of immediate imprisonment to that being served, he erred as the effect was a total sentence of an additional 32 months' immediate imprisonment."

39 The error asserted in this way is one which is simply assumed. It is an error which would only be made out "if" it was the Judge's intention to
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impose a sentence that added only a further 16 month term of immediate imprisonment to that then being served by the appellant.

40 That assumption is not borne out by the transcript.

41 The sentencing Judge was very much alive to these considerations and the effect of them. Ms Fisher addressed him on them at some length from the outset. She began thus (t/s 16):

"FISHER, MS: … Mr Cummins is sentenced such that his earliest eligible release date would be 12 July this year. His maximum term would take him through to 12 July 2008. The sentences he is currently service are such that he effectively is serving in excess of a four year head sentence which means he has the maximum parole time available to him, that has been factored into those calculations.

The reason why I raise this, sir, is that any additional time imposed by this court, whether or not eligibility for parole is ordered, is somewhat academic because it will mean he will have to effectively serve the major period of the term imposed. I will take your Honour through the history for Mr Cummins because is only - - -

O'SULLIVAN DCJ: Is that a matter that's of relevance of me in the sentencing exercise?

FISHER, MS: I would say that it is in terms of totality I raise this because he is a 21-year-old man who has now been in - these are serious matters so I don't seek to detract from that and I will address you in terms of the facts in due course because there is significant mitigation but it is accepted they are objectively serious. From a totality perspective my respectful submission, sir, is that it does have a significant impact - - -

O'SULLIVAN DCJ: It just jars the thought that I should have regard to whether or not parole is granted. That sort of flies in the face of the legislation, doesn't' it?

FISHER, MS: My interpretation of the legislation could be incorrect but my understanding is any term of imprisonment imposed, whether the cumulative effect of the term is such or not, of four years - four years or more - means that two years

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comes off for parole and the remainder of the term must be served.

O'SULLIVAN DCJ: That might well be right but the point I make is that it's not for the sentencing court to ponder about whether or not parole will or can be granted. Isn't that how it goes?

FISHER, MS: My submission in that regard is that Mr Cummins ought to be ordered eligible for parole but the fact that the net effect for him is that he will not receive the benefit of any parole release order in my view is a submission that can probably be taken into account in terms of the totality for whether or not a sentence is unduly crushing perhaps in terms of its net effect upon the prisoner.

O'SULLIVAN DCJ: I don't mean this unkindly but I have never heard that submission and it must be the sort of submission which is available in many cases. When you are dealing with an offender for a range of offences and perhaps he is before you as a sentenced prisoner already, I have never heard it argued that because he has in effect used up all the possible credit he could get for parole your Honour ought to impose lesser nominal terms."

42 Ms Fisher submitted it was relevant to "the whole issue of totality". She recounted the history of the appellant's offending and incarceration to that point, noting that the 12 month sentence imposed in February 2005, took his aggregate term out past 4 years. At that point his Honour said that on reflection, he supposed that she was right to make a submission that totality was a relevant consideration in the context that the earliest release date and the earliest eligibility date of the appellant were relevant matters to which he should have regard.

43 Ms Fisher said that any term of imprisonment imposed by his Honour would effectively be running onto the end of the then current sentences.

44 In her submissions, the State prosecutor said that the State's position was that the term should be made cumulative upon that which the appellant was then serving, so as adequately to reflect the seriousness of the offences and their particular factual circumstances. She said the State further opposed a grant of parole.

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45 In his sentencing remarks, his Honour noted that the appellant's earliest eligibility date for parole in respect of the sentences he was then serving, was 12 July 2006 and his earliest release date was July 2008. Later, having referred to the circumstances of the offences themselves, he noted that the appellant was a serving prisoner and said that there were therefore considerations of totality which he was required to take into account, and did. He then imposed the sentences I have mentioned.

46 The contention that the order for cumulation produced the result of pushing the aggregate non-parole period out, such that the appellant will have to serve the whole of the 32 months, is correct, but having regard to what transpired between counsel and his Honour, it cannot be said that his Honour was not aware of that. His Honour made no mention of the appellant having to serve only 16 months of that sentence before becoming eligible for parole. The assumption upon which the submission is based is unfounded. As no specific submissions were otherwise directed to this ground, that conclusion would be enough to dispose of it. However, here too, the submissions are not reflective of the ground as framed, so I will deal with it as it stands.

47 The ground asserts the order that the sentence of 32 months' imprisonment be served wholly cumulatively on the sentences then being served by the appellant manifested error in two ways. The first is said to be because the result was a "crushing" sentence; the second is said to be because it offended the totality principle. As I have mentioned, no submissions are advanced to show how or why that is so in either respect.

48 A "crushing" sentence is one which leaves the offender with no hope for the future; or would provoke a feeling of hopelessness in the offender if and when they are released; or destroys a reasonable expectation of useful life after release; or is not in keeping with the offender's record and prospects (per Ipp J in Jarvis v The Queen (1993) 20 WAR 201 at 205).

49 Here the sentence imposed by O'Sullivan DCJ increased the appellant's aggregate term (of sentences imposed since 2 May 2004) to 7 years 8 months. The appellant had another 4 years 11 months to serve on the aggregate of his finite sentences and just short of another 3 years from 12 April 2006 before eligibility for parole. He was 21 years old at the date of sentence on 12 April 2006 and so would be 24 years old if released to parole on his earliest eligibility date. Looked at in this way, I see no prospect that the Court of Appeal would hold the order for cumulation resulted in a "crushing" sentence. I note that in Jarvis a sentence of 15 years' imprisonment for a multiplicity of sexual offences

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against children was upheld as not being "crushing" because it was not disproportionate to the overall offending.

50 As to the principle of totality generally, this requires the sentencing Judge just to review the aggregate effect of the sentences proposed to be imposed (in combination with those the offender is already serving) and take a "last look" to see that the aggregate effect is an appropriate reflection of the criminality of the offending (Mill v The Queen (1988) 166 CLR 59, 62 - 63; Jarvis (supra)).

51 Here his Honour expressly adverted to the need to accommodate the principle of totality.

52 The most serious prior offence for which the appellant was already serving a sentence was aggravated armed robbery of a taxi driver. He and a co-offender were passengers in the taxi and robbed the driver at knife-point. The appellant had previously been convicted of driving a motor vehicle recklessly, well knowing it to have been stolen.

53 He had other previous convictions.

54 The instant offences were serious. He deliberately sought out someone to burn the cars of prosecution witnesses in order to frighten them out of giving evidence against him. He persisted in that effort by numerous phone calls over several days.

55 I do not consider there is a reasonable prospect that this ground would succeed before the Court of Appeal and I would refuse leave to appeal.

Conclusion

56 As I would refuse leave to appeal on both grounds, it follows that the application for extension of time must be dismissed.