Area of Law – Sentencing

An Article about Many different criminal charges – totality

SENTENCING – Totality principle
Judge should consider what effective head sentence would have been likely to be imposed if the accused had committed all offences in one jurisdiction, and been sentenced at the same time.

Mill v The Queen 166 CLR 59 *

The principle applies, to require a sentencing judge to take into account a sentence presently being served for other offences.

“‘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.'”

King CJ in R v Rossi (1988) 142 LSJS 451 at 453

Many offences
In cases like these where there are so many terms of imprisonment, the solution is to impose the correct sentence for each count and then to work out, having regard to the principle of totality, the proper effective sentence, making such limited orders for cumulation as are fair in order to reach an overall sentence which is not in breach of that principle, or any other relevant sentencing principle

DPP V Grabovac [1998] 1 VR 664

The desirable approach, derived from Mill v. The Queen [8] and explained in detail in R. v. Lomax[9] and DPP v. Grabovac[10], as applied subsequently in cases such as R. v. Mantini[11], would preferably[12] look at what sentences should properly be imposed for the individual offences and then turn to the (non-statutory) total effective sentence, by orders for cumulation, concurrency and the like, and to consider what is an appropriate non-parole period.

In Victoria the law has recently be summarised as follows:
In Mill v The Queen[6] the High Court adopted the explanation of the principle as articulated by D A Thomas in “The Principles of Sentencing”,[7] namely, as requiring a sentencer who has passed multiple consecutive sentences “to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’”; and that “it is always necessary for the court to take a last look at the total, just to see whether it looks wrong”. McHugh J stated in Postiglione v The Queen,[8] that totality “requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged” but it extends to “the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence”.

33 As Callaway JA observed in R v Barnes,[9] there is a difference between the principle of totality and the avoidance of a “crushing” sentence – because a sentence of three years, for example, might offend totality principles and yet not be so long as to crush the offender – and the requirement to “stand back” and assess the overall criminality applies even where the sentence would not be described as crushing.

34 The High Court held in Mill[10] that the principle applied both to the head sentence and also to the non-parole period of other sentences that were being served consecutively, and it applied where that sentence had been imposed by a different court to that which later sentenced the offender.

35 In a passage from Principles of Sentencing[11] which was not quoted in Mill the learned author expanded on the applications of the principle, as follows:

“The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases “the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive”.[12]

36 Fox and Freiberg,[13] too, accept that the totality principle applied whenever an offender “may be subject to more than one sentence whether passed on different counts of the same presentment or information, on different presentments, or is sentenced following breach of the terms of a condition release (eg community based order) for both the original offence and the breach”. As King CJ held in R v Rossi[14] the totality principle enables a court “to mitigate what strict justice would otherwise indicate” and enable it, in circumstances which call for “merciful intervention”, to reduce the total effect of sentencing of the offender.

37 The totality principle, then, is concerned to ensure that sentencing for an offender facing multiple offences is, as McHugh J held in Postiglione,[15] a “just and appropriate measure of the total criminality involved.” As Fox and Freiberg observe,[16] the principle will generally apply, unless denied by statute. Absent legislative prescription it would seem, therefore, that the totality principle would have application to an offender who was liable to serve an additional sentence by virtue of breach of parole.

R v Piacentino, R v Ahmad [2007] VSCA 49


Date: 09/01/2009