R v Richardson

[2010] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RICHARDSON

[2010] SASC 88

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)

7 April 2010

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

Appeal against sentence - defendant and appellant convicted for dishonesty offences against both the laws of South Australia and the laws of the Commonwealth of Australia - Judge fixed sentence of imprisonment of four years and six months with respect to State offending to be served cumulatively on a two year sentence being served by defendant leading to total term of imprisonment of six years and six months for State offending - existing non-parole period of 16 months in respect of earlier sentence extended to four years - Judge fixed sentence of imprisonment of three years and four months with respect to Commonwealth offending - non-parole period of 18 months fixed - partial concurrency of State and Commonwealth sentence pursuant to section 19 of the Crimes Act 1914 (Cth) - effective head sentence a period of seven years and four months - total non-parole period of five years and six months - whether overall sentence excessive - whether Judge erred in application of principle of totality and in declining to make any reduction to overall sentence - whether Judge's approach to application of principle of totality flawed - whether total non-parole period as against effective head sentence manifestly excessive.

Held (Nyland & Gray JJ): appeal allowed - Judge's failure to identify real or effective head sentence when applying the principle of totality and considering whether non-parole period was crushing, was flawed - total non-parole period of five years and six months as against effective head sentence of seven years and four months was manifestly excessive - that non-parole period represented 75 per cent of effective head sentence - non-parole period of 60 per cent of effective head sentence appropriate in circumstances - non-parole periods fixed by Judge set aside - non-parole period of four years and six months fixed with respect to total State sentence of six years and six months - non-parole period of two months fixed with respect to Commonwealth sentence of three years and four months - Commonwealth sentence and non-parole period to commence at expiration of State non-parole period.

(Vanstone J): appeal dismissed - no error of approach to sentencing with respect to accumulation or totality has been identified - sentence not manifestly excessive - manner in which sentencing Judge constructed sentence beneficial to defendant and merciful in circumstances.

Criminal Law Consolidation Act 1935 (SA) s 134, s 139 and s 140; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 31 and s 32; Crimes Act 1914 (Cth) s 19, s 19(3), s 19AB(1)(d), s 19AJ and s 21B; Summary Offences Act 1953 (SA) s 17 and s 41, referred to.
R v Jewell [2006] SASC 128; House v The King (2000) 202 CLR 321; Dinsdale v R (2000) 202 CLR 321; R v Nemer (2003) 87 SASR 168; R v Jackson (1998) 72 SASR 490; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Place (2002) 81 SASR 395, considered.

R v RICHARDSON
[2010] SASC 88

Court of Criminal Appeal:       Nyland, Gray and Vanstone JJ

NYLAND and GRAY JJ:

1. John Douglas Richardson, the defendant and appellant, was sentenced in the District Court following his pleas of guilty to dishonesty offences against both the laws of South Australia and the laws of the Commonwealth of Australia. 

2. In respect of the offending against the laws of South Australia, the defendant was imprisoned for a period of four years and six months.  At the time of sentencing he was serving an earlier sentence of imprisonment of two years.  The Judge ordered that the sentence of four years and six months be served cumulatively on the defendant’s existing sentence, leading to a total term of imprisonment of six years and six months for the State offending.  The Judge extended the non‑parole period of 16 months that had been fixed in regard to the earlier sentence to a new non-parole period of four years.

3. With respect to the Commonwealth offending, the Judge fixed a term of three years and four months imprisonment and a non‑parole period of 18 months. 

4. On the hearing of the appeal, counsel for the defendant contended that the overall sentence was excessive, and that in particular, the sentence imposed for the State offending was excessive.  It was argued that a proper application of the principle of totality ought to have resulted in an adjustment to the overall sentence and that the Judge erred in declining to make any reduction on that account. 

5. It was further argued that the Judge’s approach to the application of the principle of totality was flawed. In particular, it was said that because of the concurrency that was to occur pursuant to section 19 of the Crimes Act 1914 (Cth), the real or effective head sentence was a period of seven years and four months, and that in those circumstances the total non‑parole period of five years and six months represented 75 per cent of that head sentence. The defendant submitted that this total non-parole period was manifestly excessive.

   State Offences

6. The Judge first sentenced for the State offences.  He dealt with the offences in five groups. 

7. Between 15 January and 25 May 2004 the defendant committed theft of a motor vehicle, three offences of falsifying documents relevant to stamp duty and vehicle registration requirements, and two offences of deception relating to vehicle registration requirements.[1]  The maximum penalty for each count was 10 years imprisonment.  In relation to this offending, the Judge sentenced the defendant to the one term of imprisonment of 15 months, reduced from 20 months on account of his pleas of guilty.[2]

   [1] Contrary to sections 134, 139, 140 Criminal Law Consolidation Act 1935 (SA).

   [2] Pursuant to section 18A Criminal Law (Sentencing) Act1988 (SA).

8. In May 2004 the defendant also committed the three offences of permitting another to drive a vehicle uninsured, unregistered, and with unassigned number plates.  For these offences, the Judge convicted the defendant without further penalty.

9. On three occasions in August 2006, the defendant obtained motorcycles by passing fabricated bank cheques in the amounts of $7,000.00, $7,000.00 and $7,500.00.  He also obtained a motor vehicle valued at $8,000.00, and $350.00 in cash, by passing a fabricated cheque.  At that time, the defendant was found in unlawful possession of a motor vehicle.  The maximum penalty for each of the four counts of deception was 10 years imprisonment.  The maximum penalty for the charge of unlawful possession was two years imprisonment.  The defendant was sentenced to a term of imprisonment of 27 months reduced from 36 months on account of his pleas of guilty.[3] 

   [3] Section 139 Criminal Law Consolidation Act 1935 (SA); section 41 Summary Offences Act 1953 (SA); section 18A Criminal Law (Sentencing) Act 1988 (SA).

10. The Judge also recorded a conviction for a breach of bail agreement included on the Information, but imposed no further penalty.

11. During April and May 2007 the defendant was apprehended on three occasions driving a motor vehicle while disqualified from holding or obtaining a driver’s licence.  The Judge recorded convictions for all three offences but imposed no further penalty.

12. Finally, in August 2008 the defendant committed the theft of seven railway insulation joints, valued at approximately $9,800.00, the commission of which involved the offence of being on commercial premises for an unlawful purpose.  The maximum penalty for the theft offences was 10 years imprisonment, while the maximum penalty for the offence of being on premises for an unlawful purpose was six months imprisonment.  The defendant was sentenced to the one term of imprisonment of 12 months in relation to these offences, reduced from 16 months on account of his pleas of guilty.[4]

    [4] Section 134 Criminal Law Consolidation Act 1935 (SA); section 17 Summary Offences Act 1953 (SA); section 18A Criminal Law (Sentencing) Act 1988 (SA).

13. The Judge made all the terms of imprisonment cumulative upon each other.  As earlier noted, the Judge ordered that the combined sentence of four years and six months be served cumulatively on the existing sentence of two years imprisonment, leading to a total head sentence for all State offences of six years and six months.  That sentence was ordered to commence on 9 December 2008.[5]

    [5] Section 31 Criminal Law (Sentencing) Act 1988 (SA).

14. As earlier observed, having determined the total sentence of imprisonment, the Judge reviewed the defendant’s existing non-parole period and extended that period from 16 months to four years for all State offences, commencing on 9 December 2008.[6]

    [6] Section 32 Criminal Law (Sentencing) Act 1988 (SA).

    Commonwealth Offences

15. The circumstances of the Commonwealth offences are as follows.

16. The defendant committed 28 offences during the period from March 2002 to April 2004, claiming fuel rebates and energy grants credits to which he had a lesser entitlement than claimed.  On 28 separate occasions he completed a false application for a rebate, declaring an inflated amount of fuel each time.  Following his first two claims, the defendant was queried by the Australian Taxation Office and made false statements to justify his applications.  The total amount he received was in excess of $298,000.00

17. Having sentenced the defendant for the State offending as outlined above, the Judge proceeded to sentence for the 28 Commonwealth offences.  The maximum penalty for each offence was 10 years imprisonment.  The Judge imposed the one term of imprisonment of three years and four months for all 28 offences, reduced from four years on account of the defendant’s pleas of guilty.  With respect to the Commonwealth offences, the Judge fixed a non-parole period of 18 months.

18. Pursuant to section 19(3) of the Crimes Act the Judge ordered that the head sentence and non-parole period for the Commonwealth offending commence at the expiry of the non-parole period fixed in relation to the State offences.

19. The Judge made an order for reparation pursuant to section 21B of the Crimes Act in the sum of $298,324.94, to the Commonwealth.

    Preliminary Observations

20. The circumstances in which an appellate court will interfere with the exercise of a judge’s sentencing discretion are limited.[7]  The appellate court will only interfere with the exercise of the sentencing discretion if an appellant has demonstrated that the sentencing Judge has acted on a wrong principle, taken into account irrelevant or extraneous considerations, has failed to take into account relevant considerations in arriving at the decision, or has mistaken the facts.[8]  Additionally, an appellate court will interfere if, notwithstanding that no particular error has been identified, the sentence imposed is so manifestly inadequate or excessive as to imply that the decision must have been affected by error.[9]

    [7]    R v Jewell [2006] SASC 128.

    [8]    House v The King (1935) 55 CLR 499.

    [9]    Dinsdale v R (2000) 202 CLR 321.

21. It is not sufficient that this Court considers that, if it had been in the position of the sentencing Judge, it would have exercised its discretion differently and imposed a different sentence.  This merely reflects the fact that the sentencing process is not precise.  A court of appeal will only interfere with a sentence if an error, either express or implied, can be demonstrated.[10]

    [10]   R v Nemer (2003) 87 SASR 168.

22. As a consequence of section 19 of the Crimes Act,[11] where a person is convicted of and sentenced in respect of Commonwealth offences and State offences at the same sitting, and a non-parole period applies in respect of the State offences, the first Commonwealth sentence is to commence after the end of that non-parole period.[12]  The fixing of a non-parole period for the Commonwealth offence will only arise if the sentence exceeds three years.[13]  A single non-parole period cannot be fixed when there is a combination of both State and Commonwealth offences.[14]  One penalty may be imposed for some or all of the State offences for which the defendant is to be sentenced, and one penalty may be imposed for some or all of the Commonwealth offences.[15]

    [11](1)  Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:

    (a)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

    (b)if a non parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non parole period commences immediately after the end of the period.

    (2)Where:

    (a)     a person is convicted of 2 or more federal offences at the same sitting; and

    (b)     the person is sentenced to imprisonment for more than one of the offences;

    the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.

    (3)Where:

    (a)a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and

    (b)the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each federal sentence commences but so that:

    (c)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

    (d)if a non parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non parole period commences immediately after the end of the period.

    (4)For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first mentioned sentence.

    [12] Section 19(3) Crimes Act 1914 (Cth).

    [13] Section 19AB(1)(d) Crimes Act 1914 (Cth).

    [14] Section 19AJ Crimes Act 1914 (Cth).

    [15] Section 18A Criminal Law (Sentencing) Act 1988 (SA); R v Jackson (1998) 72 SASR 490.

23. When sentencing, the Judge with respect to section 19 of the Crimes Act observed:

    Pursuant to s.19 of the Commonwealth Crimes Act, I propose to order that the head sentence and non-parole period for the Commonwealth offences are to commence immediately upon the expiration of the non-parole period for the State offences.

24. The principle of totality has been expressed by Thomas[16] as follows:

    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”.

    [16]   Thomas, Principles of Sentencing (1979, 2^nd ed) at 56-57.

25. The principle so expressed has been approved by the High Court in Mill[17] and Postiglione, where McHugh J described the principle of totality in the following terms:[18] 

    The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:

    “There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”

    The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

    [Footnotes omitted]

    Also in Postiglione, Kirby J described the principle of totality as “in the nature of checks”[19] to be applied after reaching a conclusion as to the appropriate sentence, having regard to the objective criminality and personal and other matters of mitigation.  A sentencing judge must consider whether the sentence so arrived at needs further adjustment by reason of “parity” or “totality”.[20] 

    [17]   Mill v The Queen (1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

    [18]   Postiglionev The Queen (1997) 189 CLR 295 at 307-308.

    [19]   Postiglionev The Queen (1997) 189 CLR 295 at 340.

    [20]   Postiglionev The Queen (1997) 189 CLR 295 at 340-341.

26. The proper application of the totality principle was reviewed by this Court in Place,[21] where in the course of a discussion of the authorities, the approach of the High Court in Postiglione was applied and the following observation was made:[22]

    In an earlier judgment, King CJ spoke of the requirement that “at the end of day” a sentencing judge “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencing process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.

    [21]   R v Place (2002) 81 SASR 395.

    [22]   R v Place (2002) 81 SASR 395 at 426 (Doyle CJ, Prior, Lander and Martin JJ).

    Consideration of the Appeal

27. When imposing the sentence for the State offences and extending the existing non‑parole period, the Judge fixed a non‑parole period of 48 months against a total head sentence of 78 months.  This represented a proportion of about 60 per cent.  When fixing a non‑parole period in respect of the Commonwealth offences, the Judge fixed a period of 18 months against a head sentence of 40 months.  This represents a proportion of 45 per cent.  When considering the principle of totality in its application, the Judge considered a non‑parole period of 66 months against a head sentence of 118 months.

1. The Judge expressly considered the application of the totality principle and the question of whether the proposed sentence would be crushing.  In that respect the Judge remarked:

   …I return to the question of totality.  The total term of imprisonment and the total non-parole period that I have arrived at to this point for all offences are nine years and 10 months and five years and six months respectively, commencing from 9 December 2008.

   I must review this to ensure that the sentence ultimately imposed fairly reflects the overall criminality of your course of conduct between 2002 and 2008 but is not to be unduly crushing.  Having done this, I see no reason to adjust the overall sentence I have imposed. 

2. It is apparent that in his final determination, the Judge considered that a non-parole period of about 60 per cent of the total head sentence was appropriate.  This was the proportion that the Judge fixed when determining the sentence for State offending.  It may be inferred that the Judge fixed a non-parole period for the Commonwealth offending at 18 months, that is, a proportion of 45 per cent of the Commonwealth head sentence, with the intent of fixing an overall non-parole period of 60 per cent of the total head sentence.  Having regard to the defendant’s serious offending and his antecedents, the fixing of a non-parole period at about 60 per cent of the head sentence was within an appropriate range. 

3. In undertaking his consideration of totality and arriving at the total head sentence of nine years and 10 months, the Judge treated the head sentences under State and Commonwealth law as though they were cumulative.  This was incorrect.  There was a degree of concurrency.  The head sentence for the Commonwealth offending commenced on the expiration of the non-parole period fixed in respect of the State offending.  Accordingly there was a concurrency of two years and six months.  As a consequence, the non-parole period of five years and six months was to be assessed against the effective head sentence of seven years and four months. The non‑parole period of five years and six months represented 75 per cent of this effective head sentence.  Accordingly, it is evident that as a proportion, the non-parole period was substantially increased.

4. The appropriate consideration when assessing the totality principle was whether the non-parole period of five years and six months in relation to the head sentence of seven years and four months, was crushing.

5. It is evident from the sentencing remarks, that the Judge, when considering the overall non-parole period and the principle of totality, did not bring to account the relevant statutory concurrency.  In our view, the Judge’s failure to identify the real or effective head sentence when considering whether the non‑parole period was crushing, was flawed.  Accordingly it is necessary for this Court to consider the appropriateness of the sentence. 

6. In addition to the error of failing to bring to account the relevant statutory concurrency, we consider that when having regard to the principle of totality, the fixing of a non-parole period of five years and six months against an effective head sentence of seven years and four months was, in the circumstances, crushing. 

7. It is evident from the sentencing remarks that the Judge considered that the defendant should receive a total non-parole period of 60 per cent of the total head sentence.  It can be inferred that this was the reason why, having regard to the head sentences imposed, the Judge fixed a non-parole period 60 per cent in respect of the State offending and 45 per cent in respect of the Commonwealth offending.  In a proceeding such as the present, as mentioned above, a 60 per cent non-parole period was appropriate. 

   Re-sentencing

8. The defendant was born in Adelaide and is aged 40 years.  He left school in year ten.  He subsequently completed a plant operator’s course.  He has worked in the transport industry since the age of 19.  He has owned his own truck and been engaged at times in his own business and at times as a contractor.  The defendant has a close and long-term relationship with his partner.  They have a 21 year old son.  Character references testified to the defendant’s strong work ethic, loyalty and sense of responsibility to family and friends.  Insofar as the references attested to the defendant’s honesty, the Judge was not prepared to act on those statements.  The Judge concluded that the defendant was a profoundly dishonest man from 2002 until 2008.  However, the Judge accepted that there was evidence of remorse and contrition through the defendant’s pleas of guilty. 

9. The defendant had relevant criminal antecedents, including offences of dishonesty both as a young offender and as an adult.  In particular, between 2001 and 2003, the defendant committed the offences of forging an official document and theft.  These were the subject of the earlier referred to sentence of two years imprisonment that the defendant had been serving at the time of the imposition of the sentences the subject of this appeal. 

10. The defendant has at times suffered from amphetamine dependence and a serious gambling problem.  A medical report suggested that the defendant would benefit from continuing support from a mental health professional.

11. The offending conduct of the defendant was serious.  He engaged in extensive dishonesty over a period of more than six years leading to a substantial financial betterment.  He received money or property to a total value of between $300,000.00 and $400,000.00.  His offending called for a substantial term of imprisonment.  In our view, the effective head sentence of seven years and nine months, after recognising the statutory concurrency, was within the sentencing discretion of the Judge and was an appropriate head sentence.  However, the non-parole period totalling five years and six months was excessive.  We infer that the Judge intended to impose a non‑parole period of no more than 60 per cent of the head sentence – not 75 per cent.  In our view a non-parole period of about 60 per cent of the effective head sentence is appropriate.  The underlying findings, approach and reasoning of the Judge are therefore reflected in the approach taken by this Court. 

    Conclusion

12. We would allow the appeal. We would set aside the non‑parole periods fixed by the Judge.  We would fix a non-parole period of four years and six months with respect to the total State sentence of six years and six months.  We would fix a non-parole period of two months with respect to the Commonwealth sentence.  This results in a total term of imprisonment to be served of seven years and 10 months for all the offending with a total non-parole period of four years and eight months, to commence from 9 December 2008.

13. VANSTONE J:     This appeal raises questions about the application of the totality principle where sentences for both state and federal offences are imposed.

14. John Douglas Richardson, also known as John Mallon, fell to be sentenced in the District Court upon his pleas of guilty to some 48 state and federal offences.  The offending occurred over the period March 2002 to August 2008.  It included some offences which ordinarily would have been dealt with in the Magistrates Court, but which, at the prisoner’s request, were brought before the District Court.  At the time of his sentence, the appellant was already serving a sentence imposed by a different judge of the District Court on 9 December 2008.  The sentences now under appeal were ordered to be served cumulatively upon that sentence.

15. In sentencing the judge divided the offences before him into several different groups. Where terms of imprisonment were imposed, the judge utilised s 18A Criminal Law (Sentencing) Act 1988.

16. Between January and May 2004 the appellant committed theft of a motor vehicle, three offences of falsifying documents relevant to stamp duty and two offences of deception.  For this group of offences he was sentenced to 15 months imprisonment.

17. In May 2004 he committed three offences of permitting another to drive an unregistered and uninsured vehicle.  No penalty was imposed.

18. In August 2006 he committed three offences of deception, involving presenting false bank cheques in order to obtain possession of motor cycles.  The amounts involved totalled $21,500.  He committed a further offence of deception involving obtaining a motor vehicle valued at $8,000, together with $350 in cash, by passing a false cheque, and unlawful possession of a motor vehicle.  The maximum penalty for deception is 10 years imprisonment.  For these offences one penalty of 27 months imprisonment was imposed.

19. Also in August 2006, he breached a bail agreement, but no further penalty was imposed.

20. In April and May 2007 he committed three offences of driving a motor vehicle whilst disqualified.  No additional penalty was imposed.

21. In August 2008 he was unlawfully on premises and there stole insulation joints valued at about $9,800.  One penalty of 12 months imprisonment was imposed.

22. These three periods of imprisonment were ordered to be served cumulatively as between themselves, giving a total of 54 months, and also cumulatively upon the sentence imposed in December 2008 for forgery and theft, which was two years with a non-parole period of 16 months. That gave a total head sentence of 6 and a half years for all state offences. Being required by s 32(1)(b) of the Criminal Law (Sentencing) Act 1988, to review and extend the existing non-parole period, the judge extended it by 22 months to four years.

23. The Commonwealth offences were 27 counts of dishonestly obtaining a financial advantage by deception and one count of attempting to commit a similar offence. The maximum penalty for each of the completed offences was 10 years imprisonment. Those offences were committed between March 2002 and April 2004. The offending involved claiming diesel fuel rebates from the Australian Taxation Office, to which the appellant was not entitled. The proceeds of these offences were about $298,000. Nothing of that amount was recovered. For these offences the appellant was sentenced to imprisonment for three years and four months. Because the federal sentence exceeded three years, the judge was required either to set a single non-parole period, or to make a recognizance release order: s 19AB(2) Crimes Act 1914 (Cth). The judge fixed a non-parole period of 18 months. That latter period was set at a lower level than it might otherwise have been on account of the judge’s expectation that, by the time the appellant came to serve it, he would already have served a substantial period in prison. That reduction responded to the obligation cast by s 16B Crimes Act to have regard to other sentences already imposed but not yet served.  In my view that section achieves something of the work of the totality principle.

24. The fact that the appellant was, at the time of sentence, serving a term of imprisonment for state offences and subject to further such sentences also brought into play s 19 Crimes Act.  That section provides for a degree of overlap of consecutive state and federal head sentence.  It provides, in part, as follows:

    19  Cumulative, partly cumulative or concurrent sentences

    (1)  Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:

    (a)     no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

    (b)     if a non‑parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non‑parole period commences immediately after the end of the period.

    …

    Accordingly, upon accumulating the state and federal sentences the judge was obliged to order that the sentence for the federal offences commence no later than at the end of the state non-parole period.

25. The judge indicated that, notwithstanding considerations of totality, he proposed to accumulate all the sentences. Under s 19 Crimes Act, that meant that there would be a substantial period of overlap between the state and federal head sentences, with the effect that the effective total of the head sentences would become seven years and four months, as opposed to nine years and ten months.  When he considered the totality principle, the judge contemplated its operation, not on the reduced term that would, because of the partial concurrency, be operative, but by reference to the actual total of the four head sentences to be imposed plus the existing sentence.

26. It was suggested in this court that the judge erred in so doing. In my view, if there was any error in this regard – of which I am not persuaded – it could only have operated in favour of the appellant. The higher the aggregate of the head sentences, the more likely the judge would make some reduction in recognition of the totality principle. That he did not do so is not to the point. The impact of s 19 Crimes Act was, in practical terms, to reduce the length of time during which the appellant would be on parole after he had served the combination of the two non-parole periods.  I cannot see any way in which the approach taken by the judge disadvantaged the appellant.

27. It was further argued that, having recognised that the period of partial concurrence would reduce the effective total term, the judge should have adjusted the federal non-parole period downward to preserve the original ratio of non-parole period to head sentence. I consider that this submission is erroneous. To do so would have resulted in a non-parole period for the Commonwealth offences at a lesser level than the judge considered appropriate. Moreover, as Ms P Barnett for the state Director of Public Prosecutions submitted, it would mean that any offender who fell to be sentenced for federal offences and who already had a state non-parole period, would enjoy, not only the partial concurrency specifically required by s 19, but a double benefit by means of a secondary reduction of the Commonwealth non-parole period. Under such a construction the sentencing judge would be imposing a falsely low non-parole period for the federal offences.

28. In my view no error has been demonstrated in the approach by the sentencing judge to the questions of accumulation or totality.

29. Counsel for the appellant also argued that the individual sentences and non-parole periods for the state offences were manifestly excessive.  In rejecting that submission it is unnecessary for me to descend to a discussion of the appellant’s history of dishonesty offences, his disobedience of previous court orders, or to the fact that some offending continued even when he was before the court in relation to the earlier matters.  I consider the way in which the judge constructed the sentencing for the state offences was in fact beneficial to the appellant and that the sentences were merciful.

30. I would dismiss the appeal.