The appellant's personal circumstances and prior convictions

1. At the time of sentence the appellant was aged 28. He is now 29. His record commences in 2002 when he was 17. In 2006 he was sentenced by a magistrate to imprisonment for a large number of summary offences including for dishonesty and violence. He was imprisoned again for assault in August 2008. Late in 2008 a magistrate made a drug treatment order under the Sentencing Act 1997, s 27B, for summary dishonesty offences. The order had a custodial part of imprisonment for ten months. The appellant quickly breached that order by non-compliance and re-offending. He committed more dishonesty offences and was sentenced to imprisonment for six months on 30 April 2009, a further ten months on 3 July 2009, and another 18 months on 29 October 2009. A further sentence of imprisonment of six months was imposed on 30 August 2010 for dangerous driving. He was released on parole on 4 April 2011 but his parole was revoked on 1 December 2011. On 5 April 2012 he was sentenced to imprisonment for six months, three months of which were suspended for three years, for dangerous driving, unlawful possession of property, evading and assaulting police, refusing to submit to the taking of blood, and driving while disqualified, all committed on 16 January 2012 after the completion of his earlier sentence. At the same time he was sentenced to imprisonment for a further three months for 20 other summary offences committed while he was on parole including burglary (two counts), stealing (three counts), trespass, dangerous driving, driving while disqualified (two counts), assaulting police, evading police (two counts), resisting police, refusing a breath analysis and breaching bail (three counts).
2. After his release he continued to offend. On 7 November 2013 he was sentenced by a magistrate to imprisonment for six months commencing on that day for five counts of stealing and one count of burglary committed between July 2012 and February 2013. Then, on 20 December 2013, the appellant was sentenced by Tennent J to a further term of imprisonment for 15 months, cumulative to the sentence imposed on 7 November 2013, for the armed robbery of a newsagent in a shopping centre at Glenorchy on 22 November 2012. Her Honour ordered that the appellant not be eligible for parole until having served seven months and two weeks of that sentence. The circumstances of that offence are particularly relevant. The appellant entered the newsagency wearing a hooded jumper and sunglasses. He jumped the counter and menaced the employees with a knife before making off with about $310 in cash. When sentencing the appellant Tennent J ordered that the three-month suspended sentence imposed by the magistrate on 5 April 2012 be activated and served cumulatively to the six-month sentence imposed on 7 November 2013.
3. The appellant has a long-standing addiction to drugs which contributes to a recurring pattern of re-offending after release. Previous sentencing comments refer to an unstable childhood and education cut short. He had a promising career as a boxer. He held employment until 2006 but lost that job because he was sent to prison and has not worked since. While in prison he completed a behavioural course aimed at overcoming abuse of alcohol and drugs. He also completed and is continuing with vocational courses directed towards obtaining employment on his release.

1. It is convenient to deal with this ground first. It asserts that the learned trial judge "erred in law in failing to have regard to the principle of concurrency by ordering that the sentence for the two armed robbery counts be served cumulatively on the term of imprisonment that the appellant is serving".
2. In her sentencing remarks the learned sentencing judge said this:

"I have had regard to the overall sentence that will be imposed by me both in terms of the head sentence and the non-parole period to ensure that it is just and appropriate to the totality of the offending behaviour. Noting the sentence I impose today will be cumulative to other sentences, I have had regard to the totality of that offending as well and the cumulative effect of such sentences. There has been a reduction in the sentence I attribute to each of the two crimes before the Court today to take account of this principle."

1. In my view the assertion that her Honour "failed to have regard to the principle of concurrency" is not made out. Just because her Honour did not specifically state that she had considered whether her sentence should be partly concurrent with other sentences does not mean she failed to have regard to the question. Her Honour specifically referred to the cumulative effect of the sentences, the converse of concurrency. Although the ground of appeal refers only to the sentences the appellant was serving, her Honour took account of the cumulative effect of her sentence in two ways. Firstly, she took account of the cumulative effect with the other sentences to which the appellant was already subject. Her Honour then took into account the total effect of the sentence she imposed for the two crimes with which she was dealing. Her remark that she reduced the sentence she attributed to "each of the two crimes before the Court today" strongly suggests that she notionally determined a sentence for each of the two crimes, although she did not specify what it was, and reduced the sentence she imposed for each, taking into account their total effect.
2. If it was intended by this ground of appeal to contend that the learned sentencing judge was in error to impose a sentence which was wholly cumulative to the sentences the appellant was already facing, there is no merit in that contention either. Whether the sentence her Honour imposed was concurrent to those sentences, and, if so, to what extent, was a matter for her Honour's discretion: Sentencing Act, s 15(1). I see no error in the exercise of the discretion. The circumstances of the appellant's offending would ordinarily require primarily cumulative, rather than concurrent, sentences. This is not a case in which the imposition of cumulative sentences involves application of an incorrect principle. In his work Principles of Sentencing (Heinemann Educational Books Ltd, 2nd ed, 1979), DA Thomas refers to the principle of concurrency of sentence as the "one-transaction rule" and states at 53:

"The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive."

1. In 1974 in Dicker v Ashton (1974) 65 LSJS 150, Wells J stated at 151:

"I am of the opinion that, unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated, and that simply represent facets or the one course of conduct."

1. The following passage from the judgment of Wells J in Attorney General v Tichy (1982) 30 SASR 84 at 92-93 was cited with approval by Gleeson CJ in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616:

"The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration."

1. The crimes for which the appellant was sentenced were committed on 13 February 2013 and 21 August 2013. The earlier robbery was committed on 22 November 2012. The summary offences of dishonesty for which the appellant was sentenced by a magistrate on 7 November 2013 were committed on five separate occasions between 8 July 2012 and 20 February 2013. The last of those offences, a stealing to the value of $3,000 was committed after, but before he was apprehended for, the Cooley's Hotel robbery. Although the crimes were of a similar nature and have in common the contribution of abuse of illicit drugs, her Honour was entitled to conclude that the offences she was dealing with involved quite separate and distinct criminal conduct. The crimes are discrete and independent criminal acts. They are, for the most part, separated in time. The three most serious offences occurred over a period of about nine months. There was some overlap between the Cooley's Hotel robbery and one of the stealing charges dealt with by the magistrate, but the overall effect of that is inconsequential. Adequate recognition of the appellant's criminality necessitated recognition of the separate victims of each crime and the impact the crimes had on them.
2. This ground of appeal should fail. That is not to say, however, that the cumulative effect of the sentences is not to be taken into account in considering whether the sentence imposed is manifestly excessive. The appellant's submissions about ground 3 of the appeal are directed to that issue and it is to that ground I now turn.

Ground 3 - is the sentence manifestly excessive?

1. To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be "unreasonable or plainly unjust": House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.
2. The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge "should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected": Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58].
3. The principal submission made by counsel for the appellant is that the sentence is manifestly excessive when its total effect is taken into account. The totality principle "requires a sentencing judge to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted": Contin v The Queen [2012] VSCA 247 at [38]. It is the final step in the sentencing process which requires the sentencing court to consider the "overall picture", taking into account the objective criminality of the conduct and matters of mitigation: R v Creed (1985) 37 SASR 566 at 568; Postiglione (above) per Kirby J at 340-341. The effect is to reduce the sentence which an offender would otherwise receive. The principle is described by McHugh J in Postiglione at 307-308:

"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: see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. In Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536 at 541 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, Unreported, Court of Criminal Appeal of South Australia, 20 April 1988:

'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: R v Holder [1983] 3 NSWLR 245 at 260. 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: Holder at 260." [Footnotes incorporated.]

1. These principles have been approved and applied in Tasmania: see for example Rae v State of Tasmania [2010] TASCCA 8. In Director of Public Prosecutions v Farmer [2005] TASSC 15; (2005) 13 Tas R 418 Slicer J, with whom Evans J agreed, said at [5]:

"Totality is a reflection not of an artificial exercise, but of an attempt to evaluate overall criminal responsibility, achieve relativity and avoid the imposition of a 'crushing sentence', leaving the offender bereft of future change (Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Mill v R [1988] HCA 70; (1988) 166 CLR 59, Wise v R [1965] TASStRp 14; [1965] Tas SR 196)."

1. Allowance for totality can be achieved in a number of ways. The issue is closely related to the issue of concurrent and cumulative sentences. In cases where more than one sentence is imposed the court may set a sentence for each and then determine a total effective term by making one or more sentences concurrent, either wholly or in part: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623-624. The court may aggregate the sentences but lower the sentence for each offence from that which otherwise would have been imposed: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 66-67. Another method is the one which finds statutory recognition in Tasmania, which is to not specify a sentence for each offence, but to impose an aggregate or "global" sentence. In this case the learned sentencing judge imposed one sentence for both crimes she was dealing with: Sentencing Act, s 11(1)(a). Her Honour had a discretion to impose separate sentences, or to impose one sentence for both crimes. In imposing one sentence, her Honour was not to impose a sentence that exceeded the aggregate of the proper sentences for each of the crimes. As I earlier pointed out, the sentence imposed, when taken with her Honour's remarks, strongly suggests that she imposed a sentence which was the equivalent of two cumulative notional sentences with an allowance in each for totality. If that was the approach her Honour took, then it does not disclose error. Her Honour was entitled to tailor a sentence appropriate to the circumstances of this case in that way. She did not specify the sentences she would have imposed for the individual crimes. Counsel for the appellant submitted that the learned sentencing judge should have identified the individual sentences for each offence so as to consider sufficient regard to "concurrency", but conceded there was "no requirement to do so". It was not contended that her Honour was in error by not doing so[1]. Rather, the appellant contends that the result constitutes error in that it is a manifestly excessive sentence, not that an error in principle occurred in the approach taken. The approach of the learned sentencing judge is consistent with law and sentencing practice in this jurisdiction, which was examined by Evans J in Director of Public Prosecutions v Farmer (above) at [22] and following. His Honour pointed out, at [35]:

"This is not to say that if and when a sentencer chooses to impose a global sentence on a multiple offender, the sentencer would not have in mind the penalties the offender is likely to have received had he or she been sentenced separately for each offence."

1. The principle of totality has application in this case in two respects. Firstly, it applies to the two crimes for which the appellant was being sentenced and for which one sentence was imposed. Secondly, the principle applies because the appellant was sentenced at a time when he was already serving or was liable to serve other sentences of imprisonment: R v Gordon (1994) 71 A Crim R 459; Postiglione v The Queen (above) at 308; Harland-White v The Queen [1998] TASSC 1; Draper v Tasmania Police [2004] TASSC 120; Director of Public Prosecutions v Farmer (above) per Evans J at [24]; LWR v Lusted [2009] TASSC 3; (2009) 19 Tas R 233, and Rae v State of Tasmania (above) per Crawford CJ at [18]. As Hunt CJ at CL in R v Gordon (above) pointed out at 466:

"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."

1. It was first for her Honour to determine the appropriate sentence for the crimes for which she was to sentence the appellant. Sentences for armed robberies and aggravated armed robberies have been the subject of a number of recent appeals to this Court, including Braslin and Cowen v Tasmania [2010] TASCCA 1, DPP v Burns [2012] TASCCA 11, Director of Public Prosecutions v Harris [2013] TASCCA 5, and Director of Public Prosecutions v CSS [2013] TASCCA 10. Those authorities emphasise the seriousness of the crimes: Harris per Wood J at [20]; R v Everett and Phillips [1994] TASSC 39; (1994) 72 A Crim R 422 at 427. The two crimes which are the subject of the impugned sentence are, even though no firearm was involved, serious examples. Both crimes had the following features, all of which pointed to a heavy sentence:
   • there was premeditation and planning;
   • the appellant wore a disguise, which added to the terror to which the victims were exposed;
   • although no firearm was involved, both crimes involved considerable threatened violence. A knife was used in a particularly aggressive and confronting way, especially in the newsagency robbery;
   • the crimes took place when staff and customers were likely to be present, and, in the case of the hotel, customers were in fact present;
   • the crimes involved vulnerable commercial premises;
   • the crimes had a significant impact on victims. The two staff members from Cooley's Hotel, and the proprietors and staff member from the newsagency were affected. All suffered from serious and ongoing psychological trauma and emotional harm. The nature of the appellant's conduct was such that he must have realised that his victims were likely to be terrified and traumatised.
2. A review of sentences for such crimes was undertaken in Braslin and Cowen v Tasmania (above), DPP v Burns (above) and Director of Public Prosecutions v Harris (above). In Braslin and Cowen, Porter J said at [26]:

"What then, in terms of a broad range, can be made of the statistics? In Sentencing in Tasmania 2nd ed at 332, for the period 1990 - 2000, the tables of single count sentences show the maximum custodial sentence for aggravated armed robbery as five years, whilst that for armed robbery is eight years. The author notes at 333 [12.107], that for young offenders (18 - 21), no single sentence exceeded three years. In relation to aggravated armed robbery, since the time of the tables to the date of these crimes, there have been a few sentences of more than five years. At the highest end of the scale, there are two sentences of 10 years' imprisonment imposed on co-offenders, but which also related to a number of other offences of dishonesty. There is a third such term, but in that case someone was shot. There is one sentence of nine years' imprisonment - (a regular repeat offender) - two of eight years imposed on recidivist co-offenders, and one of 7½ years. For aggravated armed robbery and armed robbery there are 16 sentences of between three and six years, mostly in the lower end of that range, and almost invariably involving commercial premises, relatively large sums of money, and offenders with significant criminal histories. This is somewhat inconclusive but might suggest that a more punitive approach to this type of crime has been taken in this decade, compared to the last. I should note that at the other end of the scale, there have been four community service orders, of between 56 and 80 hours."

1. In this case I would consider that a sentence in the range of three to five years for each crime, taking into account the circumstances of the crime and the circumstances of the appellant, would not disclose error. The appellant's record and his circumstances when the crimes were committed suggest that an even harsher sentence would not necessarily have indicated error. In the past, he had not been deterred by suspended or actual sentences of imprisonment or the prospect of loss of parole. He had not taken the opportunity for reform arising from probation orders and a drug treatment order. Thus, these crimes manifest a continuing attitude of disobedience of the law, and a particular need to protect the public: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477. The aggravated armed robbery of Cooley's Hotel on 13 February 2013 was committed while the appellant was subject to a suspended sentence, and after having been admitted to bail for the robbery committed on 22 November 2012. The armed robbery of the Lenah Valley Newsagency and Post Office on 21 August 2013 was also committed while the appellant was subject to a suspended sentence, on bail for the two other armed robberies, and also subject to a probation order made by a magistrate on 22 April 2013. Such factors are aggravating. They demonstrate contempt for the law and for authority and an abuse of the freedom allowed by bail: Wisniewski v Tasmania [2007] TASSC 25 per Crawford J (as he then was) at [10]-[11], and the authorities there referred to. The appellant had demonstrated no remorse. For the Cooley's Hotel robbery, he was not entitled to mitigation arising from a plea of guilty. His plea of guilty to the Lenah Valley robbery was in the face of overwhelming evidence, and he was entitled to little reduction from the otherwise appropriate sentence. Whilst the appellant had displayed some recent positive signs while in prison, he had spurned the many opportunities for rehabilitation he had been offered, including a drug treatment order under the supervision of the Magistrates Court. The prospects of his rehabilitation were not such as to outweigh the need for deterrence, condemnation, punishment and protection of the public as the principal sentencing factors. In the result, I am wholly unsatisfied that an aggregate effective sentence of imprisonment for seven years and six months, with a non-parole period of three years and nine months, is definitely outside the range of appropriate sentences for these crimes.
2. It is necessary also to consider the aggregation of the sentence imposed by her Honour with the sentences the appellant already faced. It is to this issue that the appellant's submissions were primarily directed. The appellant submits that by not ordering the sentence her Honour imposed be served at least partly concurrently with the sentences the appellant already faced, the result was a total term of imprisonment which was manifestly excessive. The sentences of imprisonment imposed upon the appellant can be summarised as follows:
   • six months from 7 November 2012 (for summary offences);
   • three months (activated suspended sentence);
   • 15 months with a non-parole period of seven months and two weeks;
   • seven years and six months with a non-parole period of three years and nine months (because her Honour's sentence was reduced to seven years and three months to take account of time spent in custody before sentence).
3. The sentences were all ordered to be served cumulatively. The non-parole periods will also be cumulative: Corrections Act 1997, s 71(2). The total effect of the sentencing orders is that the appellant is sentenced to imprisonment for nine years and six months (nine years and three months from 7 November 2012). He will not be eligible to apply for parole until he has completed five years, one month and two weeks of the sentences. He will however be entitled to remissions granted under the Corrections Act, s 86. It is agreed by the parties that the total effect of the sentences is that the appellant will be entitled to apply for parole in late 2017, by which time he will be 32.
4. In my view, the proper question for this Court is whether the sentence imposed by the learned sentencing judge took the total of all sentences imposed on the appellant beyond a just and appropriate measure of his total criminality to the point of error. All of the circumstances of all of the offending are to be taken into account, including the circumstances of the appellant. In other words, were he to be sentenced at the same time for all offences, is a sentence of imprisonment for nine years and six months with a non-parole period of just over five years manifestly excessive for his overall criminality? In my view, it is not. The appellant's criminal conduct included three very serious armed robberies, one of which was an aggravated armed robbery because it was committed in company. The criminality involved in the last two robberies has already been referred to. The first robbery on 22 November 2012 was also a serious crime. It included many of the features to which I have already referred as pointing to a heavy sentence - aggressive use of a knife, wearing a hooded jumper and sunglasses, vulnerable commercial premises and impact on victims. Of course he is not to be re-sentenced for that crime but the level of criminality it involved is relevant to the question now before this Court. The suspended sentence and the summary offences also, in each case, arose from substantial criminality. Although, at the time of sentencing for the first armed robbery, he had not been sentenced for that crime before, his record for dishonesty and violence was considerable. His record of continued offending indicated contempt for the law, and the court orders to which he was subject cast doubt on the prospects for his rehabilitation and discounted any claim to remorse.
5. Many cases treat as integral to the concept of totality that an overall sentence is not a "crushing sentence". See, for example, the passage in Director of Public Prosecutions v Farmer (above) at [5] to which I referred earlier. Totality does not apply only in cases where the aggregation of sentences imposes an "otherwise crushing burden": Johnson v The Queen (above) at [22]. However it is commonly referred to as part of the consideration of totality. A "crushing sentence" was described by Nettle JA (as he then was) in R v Beck [2005] VSCA 11 at [22], as one in which "the total effective sentence is so long as to risk provoking within the applicant a feeling of helplessness and the destruction of any reasonable expectation of a useful life after release". In the same year his Honour, in a joint judgment with Chernov JA in R v MK [2005] VSCA 194; (2005) 155 A Crim R 367, said at [125]:

"Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released or whether it connotes the destruction of any reasonable expectation of useful life after release. But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive. In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it."

1. There is some recent judicial discussion about whether the principle of totality should incorporate the notion of a "crushing sentence" at all. Some doubt about the proposition was expressed by Fryberg J in the Court of Appeal in Queensland in R v Schmidt [2011] QCA 133; (2011) 210 A Crim R 29. The other members of the court did not express a view. Conversely, in Western Australia, the issue of a "crushing sentence" has been elevated to part of a two-stage consideration of totality. For example, in Roffey v The State of Western Australia [2007] WASCA 246 McLure JA (as she then was) observed at [24]-[25]:

"The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally ...

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release ... An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing." [Citations omitted.]

1. Whatever may be the correct position, I do not regard the sentence imposed in this case as "crushing", at least so as to indicate error. A harsh sentence was called for, and adequate provision was made for any feeling of helplessness held by the appellant, or the destruction of any hope of reform he may harbour, by allowing the opportunity for parole after close to the minimum permissible period: Sentencing Act, s 17(3). His age on release will certainly not leave him without any reasonable expectation of a useful life, and the Court should be optimistic about the prospect of the appellant's release on parole. I venture to repeat the passage from the judgment of Evans J, sitting as a member of the Court of Criminal Appeal in Devine v The Queen [2003] TASSC 52 at [30], with which I respectfully agree:

"The totality principle applies to both the head sentence and a non-parole period, Mill v R [1988] HCA 70; (1988) 166 CLR 59. Subject to the need to preserve a sentence's capacity to achieve all its intended objectives, in my view, a court should, in its approach to fixing a parole eligibility date, if any, be optimistic about a prisoner's rehabilitation prospects. If that optimism proves to be misplaced, it is reasonable to expect that the prisoner will not be paroled as the Parole Board is only empowered to grant a prisoner parole after considering the matters detailed in the Corrections Act, s72(4), which include the rehabilitation of the prisoner, the likelihood of the prisoner re-offending, and the protection of the public."

1. In my opinion each ground of appeal fails. I would dismiss the appeal.

[1] It is thus unnecessary to consider further a series of cases in South Australia which suggest that, in order to promote transparency in sentencing and not to conceal error, aggregate sentences should still be constructed by reference to the common law doctrine of concurrent and cumulative sentences. Under a strict application of that approach, a sentencing judge should first determine what sentence each separate offence should attract, and then consider whether the sentences should be concurrent or cumulative, before determining the aggregate sentence: see for example R v Place [2002] SASC 101; (2002) 81 SASR 395 at 408; R v Capalbo [2005] SASC 47; R v McNamara [2009] SASC 227; (2009) 105 SASR 38; R v Copeland (No 2) (2010) 108 SASR 398 and R v Belzacki [2012] SASCFC 4. That has not been the approach in Tasmania. To my mind, the South Australian cases are not authority for the proposition that the failure to first determine separate sentences constitutes error of law. In R v McNamara, decided in 2009, it was said at [27] that the approach is to be adopted "as a general rule" and that a "precise or arithmetical approach" is not called for.