Note: For commentary on the process of setting a cumulative, partly cumulative or concurrent sentence under the Crimes Act 1914 (Cth), see Setting a cumulative, partly cumulative or concurrent sentence. Concurrent sentences will ordinarily be appropriate where: a) offences arise out of the same incident or facts. The second limb is that the court should not impose a crushing sentence. The totality principle is a common law principle which applies when a court imposes multiple sentences of imprisonment. If such an order is made, priority should be given to compensation. Necessary cookies are absolutely essential for the website to function properly. Related Links: a single incident of dangerous driving resulting in injuries to multiple victims; robbery with a weapon where the weapon offence is ancillary to the robbery and is not distinct and independent of it; separate counts of supplying different types of drugs of the same class as part of the same transaction. where an offender is to be fined for two or more offences that arose out of the same incident or where there are multiple offences of a repetitive kind, especially when committed against the same person, it will often be appropriate to impose for the most serious offence a fine which reflects the totality of the offending where this can be achieved within the maximum penalty for that offence. (2005), 197 C.C.C. Consideration of an offenders total criminality must also take into account any sentence the offender is already serving.15. The total is inevitably cumulative. These cookies do not store any personal information. As Doyle J stated in R v E, AD [2005] SASC 332 at [38]: Care must be taken in using the concept of a crushing sentence. At the end of the day if that is what is called for, that is the sentence that must be imposed (emphasis added).13. Examples include: Where concurrent sentences are to be passed the sentence should reflect the overall criminality involved. a confiscation order is not contemplated; there is no obvious victim to whom compensation can be awarded; the offender has, or will have, resources from which a fine can be paid. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v Western Australia [2006] WASCA 78 [16]. Howie J (Adams and Price JJ agreeing) summarised the principles relevant to determining whether sentences should be cumulative, partly cumulative or concurrent at [27]: The issue [whether sentences ought to be imposed concurrently or consecutively] is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? Allocation, offences taken into consideration and totality, Fraud, bribery and money laundering offences, General guideline and expanded explanations in sentencing guidelines, Health and safety offences, corporate manslaughter and food safety and hygiene offences, Imposition of community and custodial sentences, Miscellaneous amendments to sentencing guidelines, Offenders with mental disorders, developmental disorders or neurological impairments, Disposals for offenders with mental disorders, developmental disorders or neurological impairments, Types of sentences for children and young people, Definitive guidelines archive of print editions, 8. Automatic orders on conviction for sexual offences, Additional note: Availability of ancillary orders, 1. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J). Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence. 498 (N.L.C.A. where an offender is to be fined for two or more offences that arose out of different incidents, it will often be appropriate to impose a separate fine for each of the offences. *Guidance from these cases has not yet been incorporated into the commentary, The totality principle is a long-standing common law principle. This website uses cookies to improve your experience while you navigate through the website. Offences for which penalty notices are available, 5. It is only at the end of the process that the totality principle will be accommodated 19. [10][13], As well as to prevent an excessive sentence, the principle is a product of two further principles "namely proportionality and mercy. No separate penalty should be imposed for the other offences. Reference to totality when imposing non-custodial sentences is complicated as fines and pecuniary penalties cannot be made concurrent. Section 59(1) of the Sentencing Code provides that: unless the court is satisfied that it would be contrary to the interests of justice to do so.. Do not retain this copy. These cookies will be stored in your browser only with your consent. In ASIC v Healey [2011] FCA 1003, Middleton J stated at [130]: In relation to disqualification periods, when determining the disqualification period to be imposed for multiple contraventions, the court should impose a disqualification period for each individual contravention and then take into account the totality principle to arrive at a total effective disqualification period. The court should generally impose a single community order that reflects the overall criminality of the offending behaviour. However, where necessary the court can order an indeterminate sentence to run consecutively to an indeterminate sentence passed on an earlier occasion. A fine should not generally be imposed in combination with a custodial sentence because of the effect of imprisonment on the means of the defendant. It is generally undesirable to order an indeterminate sentence to be served consecutively to any other period of imprisonment on the basis that indeterminate sentences should start on their imposition. Section 718.2 applies the totality principle by stating that: c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; This is so as to "avoid sentences that cumulatively are out of proportion to the gravity of the offences. Recognition of the totality principle in s 16B does not extend to courts taking into account sentences imposed in foreign jurisdictions. [20] A sentence may violate the totality principle where: Hong Kong Basic Law is based on the principles of English common law, and hence include the totality principle, which are applied by the Department of Justice. It is generally undesirable to order an indeterminate sentence to be served consecutively to any other period of imprisonment on the basis that indeterminate sentences should start on their imposition. when sentencing for two or more offences of differing levels of seriousness the court can consider: whether some offences are of such low seriousness in the context of the most serious offence(s) that they can be recorded as no separate penalty (for example technical breaches or minor driving offences not involving mandatory disqualification); whether some of the offences are of lesser seriousness and are unrelated to the most serious offence(s), that they can be ordered to run concurrently so that the sentence for the most serious offence(s) can be clearly identified. It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. There are a number of ways in which this can be achieved. The global sentence "exceeds what is appropriate given the offender's overall culpability. It applies to all offenders, whose cases are dealt with on or after 11 June 2012. 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. In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. InAustralian Ophthalmic Supplies Pty Ltd v McAlary-Smith[2008] FCAFC 8. Criminal justice where does the Council fit? These principles have been applied in federal sentencing decisions. See, eg, Extracted in the federal sentencing decision of. [23], The totality principle applies within New Zealand law. "[14] If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. The global sentence considerably exceeds the "normal" level of the most serious of the individual offences. While relevant, it cannot be regarded as of paramount importance [t]he overriding principle is that the sentence should fairly and justly reflect the total criminality of the offenders conduct (emphasis added). R v Mallett [2015] SASCFC 49 crushing sentence was imposed thus degree of concurrency required. In sentencing a person convicted of a federal offence, a court must have regard to: (a) any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and. You also have the option to opt-out of these cookies. where the offender commits a theft on one occasion and a common assault against a different victim on a separate occasion; an attempt to pervert the course of justice in respect of another offence also charged; any offence committed within the prison context; offences that are unrelated because whilst they were committed simultaneously they are distinct and there is an aggravating element that requires separate recognition, for example: an assault on a constable committed to try to evade arrest for another offence also charged; where the defendant is convicted of drug dealing and possession of a firearm offence. The subjective effect of a total effective sentence upon the offender must be put in perspective. As orders of disqualification take effect immediately, it is generally desirable for the court to impose a single disqualification order that reflects the overall criminality of the offending behaviour. Destruction orders and contingent destruction orders for dogs, 9. The sentences should generally be passed concurrently, each one reflecting the overall seriousness; robbery with a weapon where the weapon offence is ancillary to the robbery and is not distinct and independent of it. In Johnson v The Queen [2004] HCA 15,Gummow, Callinan and Heydon JJ, citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-57, accepted at [18] that when: [C]ases 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. Forfeiture or suspension of liquor licence, 24. Prevalence and community impact statements, General guideline: overarching principles, Reduction in sentence for a guilty plea - first hearing on or after 1 June 2017, Sentencing offenders with mental disorders, developmental disorders, or neurological impairments, How to use the pronouncement-card builder. Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. Nonetheless, it is important to consider the totality of the penalties imposed to ensure that they fairly reflect the statutory criteria and do not result in unfairness (emphasis added). In Minister for the Environment & Heritage v Greentree (No 3)[2004] FCA 1317,[79], Sackville J noted in relation to the principle of totality that: [T]he reasoning in criminal sentencing cases cannot be applied precisely to civil penalty cases, since the Court cannot replicate cumulation or concurrence in sentencing. [12] It is also reflected in the Crimes Act 1914 (Cth) s16B. "[5], R. v. D.F.P. Justice McHugh made the following observations at footnote 47 regarding the relevance of sentences imposed by the Italian Court: Although her Honour was entitled to take the Italian sentence into account as a mitigating factor, whether under s 16A(2) of the Act or otherwise, she was not entitled to take it into account under the totality principle recognised by s 16B of the Act. [1][2][3] The principle was first formulated by David Thomas[4] in his 1970 study of the sentencing decisions of the Court of Appeal of England and Wales:[1], 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'. In the federal sentencing decision of Hay v The Queen[2009] NSWCCA 228,[124], the Court cited Sully Js comments in R v Wheeler [2000] NSWCCA 34,at [37]: It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment , Courts have also noted that public confidence in the administration of justice requires courts to avoid any suggestion that what is being offered is some kind of discount for multiple offending.14, The principle of totality applies where an offender is being sentenced for multiple offences. In R v XX [2009] NSWCCA 115,Hall J (Tobias JA and Kirby J agreeing), after citing the principle from Cahyadi, stated at [52]: Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. (b) any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory. If the aggregate length is not just and proportionate the court should consider how to reach a just and proportionate sentence. In these situations, the courts should apply the principle of totality. In Postiglione v The Queen [1997] HCA 26,Kirby J extracted a passage from Clayton Ruby, Sentencing (4th ed, 1994) 44-45 that identifies both limbs: A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects (emphasis added).9. Aggravation related to disability, sexual orientation or transgender identity statutory provisions, 1. The court should not fix a global compensation figure unless the offences were committed against the same victim. Approach to the assessment of fines - introduction, 6. The court may combine a compensation order with any other form of order. The principle of totality should not be seen to allow criminal offenders to avoid effective punishment. Imposition of fines with custodial sentences, 2. For example, in R v Abboud[2005] NSWCCA 251,Rothman J (Grove and Howie JJ agreeing) described the orthodox approach at [36]: [T]he orthodox approach to sentencing provides that a separate sentence will be imposed in relation to each separate offence, taking into account the matters that affect that sentence. This guideline applies when sentencing an offender for multiple offences or when sentencing an offender who is already serving an existing sentence. Priority is given to the imposition of a compensation order over a fine. A compensation order can be combined with a suspended sentence order. Disqualification in the offenders absence, 9. JavaScript appears to be disabled, Updates to Principles and Practice Commentary, The Impact of COVID-19 on Federal Sentencing, Failure to Comply with Order or Obligation, Conditional Release Orders After Conviction, Breach of Conditional Release Bonds After Conviction, Diversionary Orders for Offenders With Mental Illness, Non Parole Period and Recognizance Release Orders, Particular Categories of Federal Offenders, Offenders with Mental Illness or Intellectual Disability, Sentencing for Importation Offences other than Drug Importation Offences, Imposing Travel Restrictions on Offenders. In Cahyadi v The Queen [2007] NSWCCA 1, [27] the Court considered an appeal against sentences imposed for both state and Commonwealth offences. The totality principle functions as a limitation upon excess by requiring courts to ensure that an offender receives an appropriate overall sentence.3The principle is a product of both proportionality and mercy.4. Under the orthodox approach to sentencing, application of the totality principle will generally determine the extent to which sentences are to be served concurrently.20The structuring of sentences will also be affected by whether the offences form part of a course of conduct. first assess the notional determinate term for all offences (specified or otherwise), adjusting for totality in the usual way; ascertain whether any relevant sentence condition is met; and. The court must have regard to the totality of the offenders criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. If the offences being dealt with are all imprisonable, then the community threshold can be crossed by reason of multiple offending, when it would not be crossed for a single offence. Separate fines should then be passed. Section 16B of the Crimes Act 1914 (Cth) is regarded as giving statutory effect to the common law totality principle.5Section 16B provides: Section16B This page was last edited on 12 May 2022, at 00:40. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole. In R v Piacentino[2007] VSCA 49,Eames JA noted at [33]: [T]here 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 (emphasis added). In Postiglione v The Queen [1997] HCA 26,the appellant had previously been convicted of two drug trafficking offences by an Italian court. A crushing sentence is commonly defined as one which will induce a feeling of helplessness in the offender and destroy any reasonable expectation of a useful life after release.8. The alternative option is to impose no separate penalty for the offence of lesser seriousness. Courts should be allowed flexibility in applying the totality principle.16However, a sentencing court will fall into error where regard is only had to the total effective sentence to be imposed upon on the offender.17, While a court is not precluded from lowering each sentence and aggregating them, this is not the preferred approach.17The orthodox approach when structuring custodial sentences consists of fixing a sentence for each separate offence and aggregating them, before applying the totality principle to determine issues of concurrency.18. If the aggregate amount is not just and proportionate the court should consider whether all of the fines can be proportionately reduced. Instead the court should generally impose one custodial sentence that is aggravated appropriately by the presence of the associated offence(s). The court should determine the fine for each individual offence based on the seriousness of the offence. It is mandatory to procure user consent prior to running these cookies on your website. The court should add up the fines for each offence and consider if they are just and proportionate. [19] If the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper". [5] Aware of public concerns re perceived sentence discounting by the judiciary for multiple offences, the courts state that this assumes that offenders are "rational and well-informed calculators of the cost/benefit of committing offences", and hence see the correct application of the totality principle as "recognising a need to balance totality with deterrence and adequate denunciation of the conduct involved. Forfeiture and destruction of goods bearing unauthorised trade mark, 17. Examples include: b) there is a series of offences of the same or similar kind, especially when committed against the same person. The content on this page was last reviewed on 16 April 2015. Only the online version of a guideline is guaranteed to be up to date. The sentences should generally be passed concurrently, but each sentence should be aggravated to take into account the harm caused; repetitive fraud or theft, where charged as a series of small frauds/thefts, would be properly considered in relation to the total amount of money obtained and the period of time over which the offending took place. In Postiglione v The Queen [1997] HCA 26,McHugh J referred to a statement of King CJ in R v Rossi10that described the totality principle as enabling a court: [T]o mitigate what strict justice would otherwise indicate, where the total effect of the sentence 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. [3] On 11 June 2012,[6] the latest guidelines from the Sentencing Council came into force, which cover the three overarching aspects of sentencing:[7] allocation; TICs; totality. The totality principle is also applicable when determining the disqualification period to be imposed for multiple contraventions. If it is not, an adjustment should be made to the sentence imposed for the latest offence. See, eg, Richardson v The Queen [2010] SASC 88,[24]; Scrivener v Papantaniou [2009] ACTSC 41,[84]; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40,[28]. The first limb applies even where the sentence could not be described as crushing. Generally the sentence will be consecutive as it will have arisen out of an unrelated incident. The court can order a determinate sentence to run consecutively to an indeterminate sentence. The approach of DA Thomas had previously been endorsed by the High Court in, This passage was cited in the federal sentencing decision of. These will include the nature and seriousness of each offence (emphasis added). It 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.1. National Judicial College of Australia, 2017, National Judicial College of Australia, 2022, 3. The fact that a sentence will be crushing is not of itself a reason for mitigation. Sentencing guidelines are contained within the Coroners and Justice Act 2009, which states that the application of the principle are within the management of the Sentencing Council, applied along with the Offences Taken into Consideration (TICs). DPP (Cth) v Beattie [2017] NSWCCA 301 concurrent sentences imposed by sentencing judge based on temporal proximity of offences failed to adequately acknowledge separate harm done to each victim. Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. The court must avoid double-counting and may deem it preferable for the possession of the weapons offence to run concurrently to avoid the appearance of under-sentencing in respect of the robbery. The sentence should be appropriately aggravated by the presence of the associated offences. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings. Custodial sentences for those offences remained outstanding. must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function. Justice Buchanan observed at [94]: It is widely accepted as a conventional sentencing principle that in the event of multiple penalties the totality principle should be applied to ensure that the final result is not unjust. The power to deal with the offender depends on his being convicted whilst the order is still in force; The court must impose an order of disqualification for each offence unless for special reasons it does not disqualify the offender. 11. a) offences arise out of unrelated facts or incidents. The firearm offence is not the essence or the intrinsic part of the drugs offence and requires separate recognition; where the defendant is convicted of threats to kill in the context of an indecent assault on the same occasion, the threats to kill could be distinguished as a separate element. A compensation order can be combined with a confiscation order where the amount that may be realised is sufficient. The principle of totality comprises two elements: There is no inflexible rule governing whether sentences should be structured as concurrent or consecutive components. Disqualification from ownership of animals, 11. 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: Woods v The Queen (1994) 14 WAR 341. Multiple or Continuing OffencesDouble Punishment, Recent cases alert Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. R v BAE [2015] NSWCCA 133 mere temporal relationship between offences does not mean that the criminality of one offence can encompass the criminality of the other offences. Keep up to date on sentencing guidelines, consultations, our research and news about the Council and our work. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole. In Adams v Western Australia [2014] WASCA 191,the Court cited McLure JAs description of the totality principle in Roffey v Western Australia [2007] WASCA 246,at [24][26]: The appellant relies on the totality principle which comprises two limbs. A community order is a composite package rather than an accumulation of sentences attached to individual counts. This category only includes cookies that ensures basic functionalities and security features of the website. The principal sentence for the robbery should properly reflect the presence of the weapon. If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. Where a prisoner commits acts of violence in prison custody, any reduction for totality is likely to be minimal. Forfeiture and destruction of weapons orders, 18. when sentencing for similar offence types or offences of a similar level of severity the court can consider: whether all of the offences can be proportionately reduced (with particular reference to the category ranges within sentencing guidelines) and passed consecutively; whether, despite their similarity, a most serious principal offence can be identified and the other sentences can all be proportionately reduced (with particular reference to the category ranges within sentencing guidelines) and passed consecutively in order that the sentence for the lead offence can be clearly identified. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ) (emphasis added).6.