List of subheadings:
Crimes Act
1914 (Cth)
Scope of s 16B
- Definition
- Court must have regard to any sentence
Rationale
Giving Effect to the Totality Principle
Global Sentencing and the Totality Principle
Sentences in the Form of a Fine and the Totality Principle
Further Reading
Related links:
One
Transaction Rule
Rule
against Double Punishment
Setting cumulative, partly cumulative
or concurrent sentences
The totality principle is a general sentencing principle and aspects of the principle have received legislative recognition in the Crimes Act 1914 (Cth).
The totality principle is reflected in s 16B of the Crimes Act 1914 (Cth).
Section 16B provides that it is mandatory for a court setting a federal sentence to have regard to any federal, state or territory sentence already imposed on the federal offender that has not been served (s 16B(a)) and any sentence the person is liable to serve because of the revocation of a parole order or licence (s 16B(b)): see further scope s16B.
The totality principle is recognised in a narrower context in ss 19AD and 19AE of the Crimes Act 1914 (Cth). For commentary on ss 19AD and 19AE see non-parole periods and recognizance release orders.
Matters relevant to the application of the totality principle are listed in s 16A(2): Crimes Act 1914 (Cth) s 16A(2)(a),(b), (c), (k).
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When sentencing a federal offender on multiple counts or when a federal offender is subject to an existing Australian sentence the court must consider the totality principle.
Definition of the Totality Principle
Early authority for the totality principle is found in the English case of Barton (Unreported, Court of Criminal Appeal (England), 6 October 1972). In Barton the Court said:
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 to the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.[1]
DA Thomas recognised the totality principle in his leading text Principles of Sentencing (2nd ed, 1979). Thomas' description of the principle (below) was adopted by the High Court of Australia in Mill v The Queen [1988] HCA 70, [8] (Wilson, Deane, Dawson, Toohey and Gaudron JJ) and has been endorsed in Postiglione [1997] HCA 26, Pearce v The Queen [1998] HCA 57, and Johnson v The Queen [2004] HCA 15.
DA Thomas described the totality principle 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' (emphasis added).[2]
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Court must have regard to any sentence
Section 16B explicitly provides that the totality principle applies to sentences, parole orders and licences imposed under both federal and state and territory laws: Crimes Act 1914 (Cth) s 16B; see also R v Brian James Longley (Unreported, New South Wales Criminal Court of Appeal, Priestley JA, Abadee J and Ireland J, 21 April 1994); Mickelberg v The Queen (1984) 13 A Crim R 365; R v MacCormack [2003] QCA 280; Hooton v Hales [2002] NTSC 35.
However, an overseas sentence may not be taken into account under s 16B: Postiglione [1997] HCA 26; (1997) 189 CLR 295, 422 (McHugh J). An overseas sentence imposed but not yet served by a federal offender may be taken into account as a mitigating factor under s 16A(2) of the Crimes Act 1914 (Cth).
In Postiglione [1997] HCA 26 the High Court considered the totality principle in the context of federal sentencing. McHugh J cited with approval the following statement by Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 and remarked that it was 'consistent with the recognition of the totality principle found in s 16B.'[3] Hunt CJ at CL said:
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 the total period is attributable. [4]
Therefore an application of the totality principle requires an evaluation of the overall criminality involved in all of the offences with which the federal offender is charged, '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.'[5] For example, if the sentence the offender is currently serving is a state/territory sentence imposed for an entirely separate offence it must still be taken into account in an assessment of the aggregate sentence to be faced by the offender in light of their overall criminality: Crimes Act 1914 (Cth) s 16B.
Note in the above quote Hunt CJ refers expressly to custodial sentences however, the totality principle also applies to non-custodial sentences: see further fines.
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The rationale behind the totality principle is to prevent an excessive or 'crushing sentence' or as Professors Fox and Freiberg state, 'the principle of totality is a product of two others, namely proportionality and mercy.' [6]
DA Thomas characterises the totality principle as consisting of two limbs:
A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences 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. The first limb of the principle can be seen as an extension of the central principle of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation (emphasis added). [7]
These two limbs have been reflected (although not necessarily clearly articulated) in the Australian case law.[8]
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In Johnson v The Queen [2004] HCA 15, [21] Gummow, Callinan and Heydon JJ noted that it is not only where the aggregate sentence would have a crushing effect that the totality principle is to be applied.
See also the following comment by Anderson J in Jarvis v The Queen (1993) 20 WAR 201, 216 cited with approval by members of the Western Australian Court of Appeal in Hassan v Western Australia [2006] WASCA 139, [25] and Vlek v The Queen [1999] WASCA 1038. Anderson J said:
An aggregate sentence may be inappropriately long even if it cannot be described as “crushing”.
The reduction to the overall sentence that occurs as a result of application of the totality principle ensures that the aggregate sentence is not out of proportion with the gravity of the offending.
In R v Patison (2003) 143 A Crim R 118, Giles JA (Bell J agreeing) of the Supreme Court of New South Wales (Court of Criminal Appeal) described the totality principle as 'a limitation upon excess'. Giles JA stated that the totality principle does not ensure that the aggregate sentence is sufficient, but rather, that the totality of the offender's criminality reflects a maximum aggregate sentence. [9]
In Jarvis v The Queen (1993) 20 WAR 201, Ipp J remarked that a reduction was often required because a term of imprisonment increased exponentially as it increased in length: see also Vaitos (1981) 4 A Crim R 238; Clinch (1994) 72 A Crim R 301, 306. The following passage by Ipp J in Jarvis was cited by Malcom CJ in Herbert v The Queen [2003] WASCA 61, [10]:
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison (emphasis added).
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In Postiglione [1997] HCA 26 Dawson and Gaudron JJ adopted Thomas' formulation of a 'crushing sentence' being one that is not in keeping with an offenders record and prospects. [10]
In determining when a sentence is regarded to be 'crushing', Ipp J said in Jarvis v the Queen (1993) 20 WAR 201:
[i]t is sometimes said that a sentence falls into this category when it leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the defendant if and when he is released; or where it destroys a reasonable expectation of useful life after release. [11]
Chief Justice King in R v Rossi described the application of the totality principle as an exercise of ‘merciful intervention’. The following remarks by King CJ were applied in Re Kelly v The Queen [1992] FCA 7, [26] and cited by McHugh J in Postiglione (1997) 189 CLR 295, 308. King CJ said:
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 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.
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Where the totality of the sentence is too high so as to call for intervention by a court, the High Court in Mill v The Queen [1988] HCA 70 favoured the approach of reducing the overall sentence by structuring the sentences so that they run concurrently (see below). However, courts sentencing federal offenders have adopted different approaches in giving effect to the totality principle.
The Crimes Act 1914 (Cth) does not set out how to give effect to the totality principle. The operation of the totality principle as part of the common law is unaffected by the Act. In his report on the sentencing of multiple offenders in Victoria, Austin Lovegrove remarks that the totality principle as a common law principle is described in general terms 'accordingly it is left to sentencers to work out a strategy - working rules - in order to facilitate its application in individual cases.' [12] The flexibility in the application of the totality principle is widely recognised:
In Postiglione [1997] HCA 26 Kirby J remarked:
Obviously, the adjustments for the parity and totality principles… involve subtle considerations which defy precision either of description or implementation. [13]
See also R v Brian James Longley where on the application of the totality principle Priestley JA said (Abadee and Ireland JJ agreeing):
This totality idea is a somewhat difficult one. It is one which is well accepted, and, in my view, very sensible, but has elements of vagueness which leave courts with problems in its application. [14]
The question of whether there was a single structured approach to give effect to the totality principle was considered by the High Court in Johnson v The Queen [2004] HCA 15. Gummow, Callinan and Heydon JJ remarked:
Judges of first instance 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. [15]
The basis of the appellant's submission was that there was an inconsistency between the High Court's statements on the totality principle in Mill v The Queen and Pearce v The Queen.[16] Accordingly, the appellant argued that since the High Court decision in Pearce v The Queen a court sentencing for multiple offences could not reduce the overall sentence in accordance with the totality principle by lowering an individual sentence.
The court held, in Johnson v The Queen, that there was no inconsistency between its decisions in Mill and Pearce. Gummow, Callinan and Heydon JJ said:
The joint judgment in Pearce recognises the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands (emphasis added). [17]
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The approach set out by the High Court in Mill v The Queen [1988] HCA 70, [8] favours reducing the overall sentence by structuring the sentences so that they run concurrently. The court said:
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
As mentioned above, the High Court relied on the work of commentator DA Thomas in Mill v The Queen. In his leading text, Principles of Sentencing, DA Thomas further describes the operation of the principle:
Where the totality of sentences does appear to be excessive and some adjustment is necessary, it is usually preferable to make the adjustment by ordering sentences to run concurrently, rather than by reducing the length of individual sentences and allowing them to remain consecutive.
In particular, Thomas noted that:
...a series of short consecutive sentences adding up to a substantial total is generally inappropriate; 'it is better to pass... an appropriate sentence on each count and make those sentences run concurrently.' [18]
The Pearce Approach is a broad approach to sentencing an offender for multiple offences rather than a discrete formulation for the application of the totality principle. As illustrated in the following passage from the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57 totality is an important consideration which is part of an overall sentencing process. Citing Mill v The Queen, McHugh, Hayne and Callinan JJ state:
To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. [19]
The Supreme Court of New South Wales Court of Criminal Appeal have described the Pearce approach (above quote) to sentencing as a fundamental principle of sentencing: R v Aem Snr [2002] NSWCCA 58, [65] cited in R v Carr [2002] NSWCCA 434, [3] (Levine J) and [35] (Howie J, Hidden J agreeing).
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Failure to adopt the Mill and Pearce approach has not necessarily led to a finding by appellant courts of a miscarriage of justice: Heryadi v The Queen [1998] WASCA 54 cited in Johnson v The Queen [2002] WASCA 102, [25] and extracted in the judgment of Gummow, Callinan and Heydon JJ in Johnson v The Queen [2004] HCA 15, [12].
The approach of giving effect to the totality principle by first determining an appropriate overall sentence was considered by the Western Australian Court of Criminal Appeal in Heryadi v The Queen [1998] WASCA 54 (12 March 1998). In his judgment Ipp J (Malcolm CJ and Kennedy J agreeing) set out the approach to federal sentencing that was taken by his Honour at first instance. Ipp J said:
It is plain from his Honour's remarks that he did not approach the sentencing exercise by first fixing an appropriate sentence for each offence and then, by application of the totality principle, reducing those sentences to arrive at an appropriate aggregate sentence. His Honour rather had regard to the overall criminality involved in all the offences, fixed on an appropriate aggregate sentence for those offences, and proceeded to structure the separate sentences so as to achieve the aggregate sentence he had so determined (emphasis added). [20]
Ipp J (Malcolm CJ and Kennedy J agreeing) recognised that the approach of first fixing an appropriate aggregate sentence was not in accordance with the Mill approach. However, Ipp J held that it did satisfy the broader requirements of the totality principle. Ipp J said:
... the approach adopted by his Honour was nevertheless designed "to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved" per McHugh J in Postiglione (1997) 189 CLR 295 at 307; 94 A Crim R 397 at 406. McHugh J emphasised (at 308; 406) that "the application of the totality principal [sic]... requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged" (see also the remarks of Kirby J at 339-341; 432-435, and Jarvis (unreported, Court of Criminal Appeal, WA, No 13 of 1993, 14 June 1993). Such an evaluation is precisely what the learned sentencing judge carried out. He attempted to ensure that the aggregate sentence passed should fairly and justly reflect the total criminality of the offender's conduct. In my opinion, he thereby fulfilled the requirements of the totality principle: Mill, Postiglione, Jarvis" (emphasis added). [21]
Nonetheless, in Johnson v The Queen [2004] HCA 15, [26], Gummow, Callinan and Heydon JJ remarked that having regard only to the total effective sentence (therefore by not first considering an appropriate sentence for each offence) would be to do what the joint judgment in Pearce held to be undesirable.
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A court must consider the totality principle when imposing a global sentence.
Global Sentencing
The federal law on global sentencing is further discussed at multiple or continuing offences.
Under federal sentencing, s 4K(4) of the Crimes Act 1914 (Cth) permits global sentencing in courts of summary jurisdiction for offences arising under the same commonwealth provision for some continuing or multiple offences which have been joined in the same information, complaint or summons (s 4K(3)). Specific penalty provisions in federal legislation may also allow a sentencing court to impose a global federal sentence.
Section 4K has been deemed not to cover the field therefore state and territory legislation providing for global sentences may be picked up and applied by superior courts in sentencing federal offenders: Putland v R [2004] HCA 8. See comments by Justice Kirby (in dissent) in Putland regarding the implications of this in federal sentencing (ie. uniform sentences p 205-6, transparency p 213-4).
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Application of the Totality Principle to Global sentences
There is limited case law on the application of the totality principle to global sentencing for federal offences. Where global sentencing is permitted a sentencer is more likely to arrive at an aggregate sentence first, rather than, consider an appropriate sentence for each offence (as per the orthodox approach set out in Mill).
In DPP (Tas) v Farmer [2005] TASSC 15, a case concerning the Tasmanian sentencing scheme, the Supreme Court of Tasmania (Court of Criminal Appeal) approved the approach of commencing with an aggregate or global sentence. Evan J of the Supreme Court of Tasmania (Court of Criminal Appeal) said:
Implicit in the Director's contention is the proposition that, notwithstanding the power to impose a global sentence in this State, consistent with the High Court's decisions in Pearce and Johnson, a Tasmanian sentencer of an offender for multiple offences should adopt the process outlined in those decisions. The above passage from R v P [(2003) 87 SASR 287] shows that the Court of Criminal Appeal in South Australia takes the view that a sentencer in that State is not so confined. I take the same view in relation to the situation of a sentencer in this jurisdiction. 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. I reject any suggestion that the sentencer of a multiple offender must expressly or implicitly adopt the process outlined in Pearce and Johnson before sentencing. [22]
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A court must consider the totality principle when setting a federal sentence in the form of a fine: Stevenson v Dix (Unreported, Full Court of the Supreme Court of Tasmania, Green CJ, Zeeman and Slicer JJ, 13 March 1995); ACCC v Chubb Security [2004] FCA 1750, [142].
However the totality principle may have less force when applied to a sentence imposed in the form of a fine: ACCC v Chubb Security [2004] FCA 1750, [142]. See the following passage from Kirby J in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, 704 cited by Bennett J in the federal sentencing case of ACCC v Chubb Security [2004] FCA 1750, [142]:
The principle of totality is applicable where the penalty imposed is by way of fine: see Sgroi v The Queen (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407.
In EPA v Barnes the New South Wales Court of Criminal Appeal in relation to the state sentencing scheme considered the application of the totality principle, as expressed in Pearce and Johnson, to penalties imposed as fines. Kirby J held (Mason P and Hoeben J agreeing) that when a sentence is imposed by way of a fine, the amount of each fine may be reduced so that the sentence satisfies the principle of totality. Kirby J said:
Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346. [23]
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Last Updated:8 February 2008
[1] Cited in DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-7.
[2] DA Thomas, Principles of Sentencing (2nd ed, 1979), 56 endorsed in Mill v The Queen [1988] HCA 70, 63.
[3] Postiglione [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J).
[4] R v Gordon (1994) 71 A Crim R 459, 466 cited in Postiglione [1997] HCA 26; (1997) 189 CLR 295, 308.
[5] Postiglione [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J).
[6] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 725. See also A Lovegrove, Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Research and Public Policy Series No 59, Australian Institute of Criminology, 2004) 129 - 134.
[7] DA Thomas, Principles of Sentencing (2nd ed, 1979) 57-8.
[8] For an overview of the case law on the concepts of proportionality and 'crushing sentence' see A Lovegrove, Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Research and Public Policy Series No 59, Australian Institute of Criminology, 2004) 129 - 134.
[9] R v Patison (2003) 143 A Crim R 118, 133.
[10] Postiglione [1997] HCA 26; (1997) 189 CLR 295, 304 (Dawson and Gaudron JJ).
[11] Jarvis v the Queen (1993) 20 WAR 201, 205-207 cited in Herbert v The Queen [2003] WASCA 61, [19] (Malcolm CJ).
[12] Austin Lovegrove, 'Towards Consistency of Approach in Sentencing the Multiple Offender' (1997) 21(3) Criminal Law Journal 134, 134.
[13] Postiglione [1997] HCA 26; (1997) 189 CLR 295, 341. For commentary on the interaction of the totality and parity principles see Parity.
[14] R v Brian James Longley (Unreported, New South Wales Criminal Court of Appeal, Priestley JA, Abadee J and Ireland J, 21 April 1994). The appellant, Brian James Longley, had been sentenced for five federal offences and four State offences.
[15] Johnson v The Queen [2004] HCA 15, [26].
[16] In Johnson v The Queen, the appellant, Chad Johnson, had been convicted on two counts under s 233B of the Customs Act 1901 (Cth) for attempting to obtain possession of a commercial quantity of ecstasy and a trafficable quantity of cocaine. Scott J in the Supreme Court of Western Australia found the appropriate sentence on count one - 10 years imprisonment and count two - 5 years imprisonment to be served cumulatively (see Johnson v The Queen [2002] WASCA 102, [8]) . To accommodate the totality principle the sentence imposed upon count two had been reduced (Johnson v The Queen [2004] HCA 15, [11]). One of the grounds of appeal was that his honour had erred in the application of the totality principle by adopting the approach of lowering the sentence imposed on count two.
[17] Johnson v The Queen [2004] HCA 15, [26].
[18] DA Thomas, Principles of Sentencing (2nd ed, 1979), 57.
[19] Pearce v The Queen [1998] HCA 57, [45].
[20] Heryadi v The Queen [1998] WASCA 54; 98 A Crim R 578, 582-3.
[21] Heryadi v The Queen [1998] WASCA 54; 98 A Crim R 578, 582-3.
[22] DPP (Tas) v Farmer [2005] TASSC 15, [35].
[23] EPA v Barnes [2006] NSWCCA 246, [50].
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