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Last Updated:1 October 2010

List of subheadings:

Totality Principle under the Crimes Act 1914 (Cth)
The Totality Principle
- Definition of the Totality Principle
- Rationale for the Totality Principle
--First Limb: 'Proportionality'
--Second Limb: 'Crushing Sentence'
Scope of s 16B
- Overseas Sentences
- Custodial Sentences
- Non-Custodial Sentences
Applying the Totality Principle
- Structuring Custodial Sentences
- Structuring Non-Custodial Sentences

Commentary on the Totality Principle under the Crimes Act 1914 (Cth)

The totality principle is a long standing common law principle.

The totality principle is reflected in the following provisions of the Crimes Act 1914 (Cth):

• Section 16B: Court to have regard to other periods of imprisonment;

  See below for commentary regarding the scope of s 16B

  See below for commentary regarding the application of s 16B

• Section 19AD: Persons already subject to a non-parole period;
• Section 19AE: Persons already subject to a recognizance release order; and

  See non-parole periods and recognizance release orders.

• Section 16A(2)(c): Where the offence forms part of a course of conduct.

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The Totality Principle

Definition of the Totality Principle

Courts must determine an appropriate sentence based upon the totality of the offender’s criminal conduct.

In the federal sentencing decision of Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346, the High Court addressed the meaning of the totality principle. Citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-57, Gummow, Callinan and Heydon JJ accepted at [18] that 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.

This passage has been adopted in federal sentencing decisions including: 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 approach of DA Thomas had previously been endorsed by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, [8].

The totality principle requires sentencing courts to consider whether the total sentence imposed on an offender is ‘just and appropriate’. In Johnson v The Queen [2004] HCA 15, Gummow, Callinan and Heydon JJ, citing DA Thomas, noted at [18]:

The effect of the totality principle is to require a sentencer who has passed a series of sentences...to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'.

The totality principle was similarly characterised in the federal sentencing decision of Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. Justice McHugh stated:

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… 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.

This passage has been cited with approval in federal decisions including: Richardson v The Queen [2010] SASC 88, [25]; Blay v The Queen [2006] WASCA 248, [58].

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Rationale for the totality principle

The totality principle functions as a ‘limitation upon excess’ by requiring courts to ensure that an offender receives an appropriate overall sentence. [1] The rationale that underpins the principle of totality is to prevent an excessive sentence, or as Professors Fox and Freiberg indicate, ‘the principle is a product of two others, namely proportionality and mercy.’ [2]

The rationale for the totality principle is described as having two limbs: first, totality ensures proportionality between the offence and sentence, and second, totality prevents a court from imposing a crushing sentence. 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.

This passage has also been considered in the federal sentencing decision of Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40, [28].

The principle of totality should not be seen to allow criminal offenders to avoid effective punishment. In the federal sentencing decision of Hay v The Queen [2009] NSWCCA 228, [124], the Court cited the following passage from R v Wheeler [2000] NSWCCA 34, [37], in which Sully J stated:

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…

First Limb: 'Proportionality'

The totality principle incorporates the principle of proportionality. In the federal sentencing decision of Johnson v The Queen [2004] HCA 15, Gummow, Callinan and Heydon JJ stated at [22]:

We would with respect doubt that it is only in a case of an otherwise crushing burden of an aggregation of sentences that the totality principle may be applied.

This passage has also been considered in the federal sentencing decision of Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40, [28].

Second Limb: 'Crushing Sentence'

The role of the totality principle in preventing a court from imposing a crushing sentence has been noted in federal sentencing decisions. In Postiglione v The Queen [1997] HCA 26, McHugh J referred to a statement of King CJ in R v Rossi that described the totality principle as enabling 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.

This statement has been considered in federal sentencing decisions including: Richardson v The Queen [2010] SASC 88, [25]; Johnson v The Queen [2004] HCA 15, [21].

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Scope of s16B

Section 16B is regarded as giving statutory effect to the totality principle. In Postiglione v The Queen [1997] HCA 26, McHugh J extracted a series of judicial statements regarding the common law principle of totality and stated:

This line of authority is consistent with the recognition of the totality principle found in s 16B of the Act. [3]

In sentencing federal offenders, the totality principle applies in relation to custodial and non-custodial sentences, but not to sentences imposed by foreign courts.

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overseas sentences

Recognition of the totality principle in s 16B does not extend to courts taking into account custodial sentences imposed in foreign jurisdictions.

In Postiglione v The Queen [1997] HCA 26, the appellant had previously been convicted of two drug trafficking offences by an Italian court. Custodial sentences for those offences remained outstanding. 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. The totality principle to which s 16B refers is confined to sentences imposed for federal, State or Territory offences.

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custodial sentences

The principle of totality is considered to apply where an offender is being sentenced for multiple offences. Consideration of an offender’s total criminality must also take into account any sentence the offender is already serving.

In the federal sentencing decision of Postiglione v The Queen [1997] HCA 26, McHugh J stated:

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…

…a sentencing judge must consider 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.

Justice McHugh considered this line of authority to be consistent with the recognition of the totality principle within the Crimes Act 1914 (Cth) s 16B.

Note: See below for commentary regarding the process of structuring custodial sentences.

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Non-custodial sentences

The totality principle is applicable to non-custodial sentences such as fines and pecuniary penalties. In a manner consistent with custodial sentences, courts must assess if the total penalty is appropriate in the circumstances.

In Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCFCA 8, civil penalties were imposed on the appellant pursuant to the Workplace Relations Act 1996 (Cth) for contraventions of Awards. 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.

Reference to totality when imposing non-custodial sentences is further complicated as fines and pecuniary penalties cannot be made concurrent. In Minister for the Environment & Heritage v Greetree (No 3) [2004] FCA 1317, [79], Sackville J noted in relation to the principle of totality that

…the reasoning in criminal sentencing cases cannot be applied precisely to civil penalty cases, since the Court cannot replicate cumulation or concurrence in sentencing. 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.

Similarly, in CEO of Customs v Jing [2007] NSWSC 1354, Howie J stated at [25]:

Some courts have indicated that the totality principle may have less force in relation to non-custodial sentences. In ACCC v Chubb Security [2004] FCA 1750, [142], Bennett J cited the following passage from Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683, 704, as indicating that the totality principle ‘is applicable where the penalty is imposed by way of fine, although of less force than in cases of imprisonment’:

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.

Note: See below for commentary regarding the process of structuring non-custodial sentences.

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Applying the Totality Principle

The application of the totality principle has proven problematic for courts. Difficulties concerning the totality principle have stemmed from confusion regarding two decisions of the High Court: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. At first glance, these cases appear to put forward conflicting approaches for courts to adopt when structuring sentences to account for the principle of totality.

However, in the federal sentencing decision of Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346, the High Court expressly clarified that there is no inconsistency between Mill v The Queen and Pearce v The Queen. In Johnson v The Queen [2004] HCA 15, Gleeson CJ stated at [2]:

...the submission that there is inconsistency between the principles stated in Mill v The Queen and Pearce v The Queen, and that Pearce effectively eliminated one of the two alternative courses said in Mill to be available to sentencing judges, should be rejected. (citations omitted)

The following principles in Johnson v The Queen [2004] HCA 15 are addressed below:

1. Courts should be allowed flexibility in applying the totality principle that is consonant with a consistent approach toward sentencing;
   
   
2. Sentencing courts will fall into error where regard is had only to the total effective sentence to be imposed upon an offender;
   
   
3. Courts are not precluded from lowering each sentence and then aggregating them. This is simply not the preferred approach; and
   
   
4. The ‘orthodox approach’ when structuring custodial sentences consists of fixing a sentence for each separate offence and aggregating them before determining concurrency.

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structuring custodial sentences

The perceived conflict between Mill v The Queen [1988] HCA 70 and Pearce v The Queen [1998] HCA 57 concerned the manner in which courts should structure sentences when taking into account the principle of totality.

In Mill v The Queen [1988] HCA 70, the Court indicated that the totality principle may be applied by either making sentences wholly or partially concurrent, or by lowering individual sentences. In its view, the first approach is preferable. The Court stated:

…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.

In Pearce v The Queen [1998] HCA 57, it appeared that McHugh, Hayne and Callinan JJ precluded the second approach identified in Mill v The Queen. Justices McHugh, Hayne and Callinan stated at [45]:

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.

In Johnson v The Queen [2004] HCA 15, the High Court indicated that the second approach identified in Mill v The Queen is not precluded by the reasoning in Pearce The Queen. The Court offered a series of statements to clarify the process by which courts should apply the totality principle when passing sentence.

1. Sentencing judges should be afforded sufficient flexibility when applying the totality principle. Justices Gummow, Callinan and Heydon stated at [26]:

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.

2. The approach considered to be erroneous by the Court in Pearce v The Queen involves arriving at a total sentence without considering the appropriate sentence for each offence. Justices Gummow, Callinan and Heydon stated at [26]:

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.

3. The joint judgment in Pearce v The Queen does not preclude the alternate approach in Mill v The Queen of lowering individual sentences to reflect the totality principle. Justices Gummow, Callinan and Heydon stated at [26]:

…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. (citations omitted)

4. The orthodox approach when structuring an overall sentence that reflects the totality principle is stated in both Mill v The Queen and Pearce v The Queen. It is preferable to fix a sentence for each offence before considering concurrency. As Gummow, Callinan and Heydon JJ stated at [26]:

The preferable course will usually be the one which both cases commend but neither absolutely commands.

Clarification provided by the High Court in Johnson v The Queen in relation to structuring sentences was further explained in R v Abboud [2005] NSWCCA 251. In R v Abboud, which concerned offences committed under the Crimes Act 1900 (NSW), Rothman J (with whom Grove and Howie JJ agreed) stated at [36]:

The High Court makes clear that there is no inconsistency between Mill and Pearce and that each reflects the level of flexibility that must be retained by a sentencing judge in applying the principles of sentencing. Nevertheless, the approach in Mill is recognised as the orthodox approach to sentencing. It provides that a separate sentence will be imposed in relation to each separate offence, taking into account the matters that affect that sentence. It is only at the end of the process that the totality principle will be accommodated…

This passage has been cited with approval in the following state sentencing decisions: KC v Western Australia [2008] WASCA 216, [31]; Thorn v Western Australia [2008] WASCA 36, [35]; R v TWP [2006] NSWCCA 141, [24]. It was also extracted in the federal decision of Blay v The Queen [2006] WASCA 248, [59].

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structuring non-custodial sentences

Applying the totality principle when structuring non-custodial sentences is further complicated by the inability to make financial penalties concurrent: Minister for the Environment & Heritage v Greetree (No 3) [2004] FCA 1317, [79].

Courts should adopt the preferred approach clarified in Johnson v The Queen when imposing multiple non-custodial penalties. In Kelly v Fitzpatrick [2007] FCA 1080, which concerned award contraventions, Tracey J observed at [30] that

…the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches…

This passage was cited with approval in Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170, [57].

The process of determining an appropriate penalty for each offence before considering the appropriateness of the overall penalty was affirmed in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8. At [23], Grey J indicated that the preferred approach is to

…determine an appropriate level of penalty for each contravention, as if it were a separate offence, and then to look at the aggregate of those penalties in the light of the overall conduct of the appellant, to form a view as to whether that aggregate was out of proportion to that overall conduct.

In Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, [96], Buchanan J also extracted the following passage from Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450:

a sentencer or penalty fixer must, as an initial step, impose a penalty appropriate for each contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct…

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Footnotes

[1] R v Patison [2003] NSWCCA 171; (2003) 143 A Crim R 118, [58]. See also Australian Law Reform Commission Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [5.12].

[2] 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.

[3] See also Kate Warner, Sentencing in Tasmania (2nd ed, 2002) [9.142]; Australian Law Reform Commission Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [5.15].

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