Kola v The King - [2025] SASCA 38

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KOLA v THE KING
[2025] SASCA 38
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice B Doyle)
10 April 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROPORTIONALITY
The applicant and a co-accused were charged on Information with conspiring to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code. Following a trial by jury, the applicant was convicted of the offence and was sentenced in respect of the federal offending.
At the time the applicant was sentenced for the conspiracy offence, he was serving a term of imprisonment for earlier offending involving the cultivation and sale of cannabis between April and October 2014 (the ‘State sentence’). The combined head sentence imposed for that offending was a term of 14 years imprisonment, commencing on 17 July 2017. As a result of a partially successful appeal, the applicant’s non-parole period was set at nine years.
In sentencing the applicant for the federal conspiracy offence, the judge imposed a term of imprisonment of 13 years and fixed a non-parole period of seven years. The judge directed that the sentence was to commence on 17 July 2026, being the date upon which the non-parole period fixed in respect of the State sentence will expire. In combination, the State sentence and the federal sentence under appeal amounts to an effective head sentence of 22 years, with a non-parole period of 16 years.
The applicant seeks permission to appeal against the federal sentence imposed, contending that:
1.the sentencing judge failed to apply the totality principle in the manner required by Mill v The Queen (1988) 166 CLR 59 in cases where the defendant to be sentenced is serving or is subject to a sentence for other offending (an alleged process error); and
2.when regard is had to the combined effect of the State and federal sentences, the head sentence imposed (and non-parole period) in respect of the federal sentence is manifestly excessive (an alleged outcome error).

Held, granting permission to appeal, allowing the appeal and setting aside the sentence imposed:
1. the sentence imposed was not manifestly excessive;
2.the sentencing judge did not consider whether the imposition of the head sentence of 13 years imprisonment commencing from the expiry of the non-parole period fixed for the State sentence was appropriate having regard to the total sentencing package that would have been imposed if the applicant had been sentenced for the State and federal offending at the same time;
3.a court may, consistently with s 19(1)(b) of the Crimes Act 1914 (Cth), direct that a sentence is to commence before the end of the non-parole period applying in respect of State or Territory sentences being served by the offender, or to which they are subject;
4.re-sentencing the applicant for the federal offences, it is appropriate to fix a head sentence and non-parole period commencing from a time that results in a total effective head sentence for the State and federal offences of 20 years and six months, with a total effective non-parole period of 14 years and six months;
5.the applicant is resentenced to a term of imprisonment of 13 years with a minimum period of imprisonment of seven years, directed to commence on 17 January 2025.

Acts Interpretation Act 1901 (Cth) s 13; Controlled Substances Act 1984 (SA); Crimes Act 1914 (Cth) ss 16A, 16B, 16E, 19, 19AD, Part 1B; Crimes Legislation Amendment Act (No 2) 1989 (Cth) ss 1, 3; Criminal Code Act 1995 (Cth) ss 11.5(1), 307.1(1); Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 2BA; Sentencing Act 2017 (SA) s 44 ; Sentencing Act 1995 (WA) s 87, referred to.
Fasciale v R (2010) 30 VR 643; Mercanti v The Queen (2011) 249 FLR 223; [2011] WASCA 120; Mill v The Queen (1988) 166 CLR 59; R v Mokbel [2023] VSCA 40, applied.
Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; Cuthbertson v The Queen [2019] VSCA 104; Dickman v The Queen (No 2) [2017] VSCA 351; Director of Public Prosecutions v Bowen (2021) 65 VR 385; Director of Public Prosecutions (Cth) v Gow (2015) 298 FLR 397; Director of Public Prosecutions (Cth) v Kola (2024) 98 ALJR 632; Director of Public Prosecutions (Vic) v Marino [2011] VSCA 133; Director of Public Prosecutions (Vic) v Swingler (2017) 269 A Crim R 526; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Hili v The Queen (2010) 242 CLR 520; Hraichie v R [2022] NSWCCA 155; Johnson v The Queen (2004) 78 ALJR 616; Kentwell v The Queen (2014) 252 CLR 601; Kidd v The Queen [1972] VR 728; Kola v The King (2023) 143 SASR 69; Lowell v The Queen [2022] VSCA 134; MacCormack v The Queen (2005) 196 FLR 13; Morgan v The Queen (2013) 40 VR 32; Nguyen v The King [2024] VSCA 3; Pearce v The Queen (1998) 194 CLR 610; Postiglione v The Queen (1997) 189 CLR 295; R v C, M [2014] SASCFC 62; R v Carroll [1991] 2 VR 509; R v Copeland (No 2) (2010) 108 SASR 398; R v Cramp (2010) 106 SASR 304; R v Cutrale [2011] NSWCCA 214; R v Dobie [2004] 2 Qd R 537; R v Garrett (1978) 18 SASR 308; R v Gilbert [1975] 1 WLR 1012; R v Jenkyns Unreported, Court of Criminal Appeal (Queensland), 11 June 1986; R v King [2011] NSWCCA 274; R v Kola [2019] SASCFC 87; R v Smoker (2016) 126 SASR 201; R v Todd [1982] 2 NSWLR 517; R v Walkuski [2010] SASC 146; R v Wright [2009] VSCA 27; R v Yavuz [2020] SASCFC 87; Scerri v R [2010] VSCA 287; Sepehrnia v The King [2024] VSCA 149; Snodgrass v R [2021] SASCFC 20; Stocks v The Queen [2021] SASCA 116; Tipping v The King (2023) 142 SASR 398; Warner v The King [2022] SASCA 142, discussed.

KOLA v THE KING
[2025] SASCA 38
Court of Appeal – Criminal: Lovell JA, Bleby JA and B Doyle AJA

THE COURT: The applicant and a co-accused, Mr Londono-Gomez, were charged on Information with conspiring to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code.[1]It was alleged that between about 2 April 2014 and 18 July 2014, they conspired with each other, Ibrahim Halil Yavuz, another identified individual[2] and unknown others, to import cocaine from Panama to Australia by boat.
[1] The Code comprises a schedule to the Criminal Code Act 1995 (Cth).
[2] That individual was referred to by the sentencing judge as P, but was described by the pseudonym ‘James’ in the High Court appeal concerning the applicant’s conviction.
Following a trial by jury, the applicant was convicted of the offence and was sentenced in respect of the federal offending.[3] He appealed against conviction and separately sought permission to appeal against sentence. His appeal against conviction to this Court succeeded.[4] The High Court granted special leave to appeal and upheld the appeal of the Commonwealth Director of Public Prosecutions, reinstating his conviction.[5] The applicant now pursues his application for permission to appeal against sentence.
[3]     Mr Yavuz pleaded guilty in the Magistrates Court before his committal. Mr Londono-Gomez pleaded guilty prior to trial and was sentenced at the same time as the applicant.
[4]     Kola v The King (2023) 143 SASR 69.
[5]     Director of Public Prosecutions (Cth) v Kola (2024) 98 ALJR 632.
At the time the applicant was sentenced for the conspiracy offence, on 21 February 2023, he was serving a term of imprisonment for offending involving the cultivation and sale of cannabis between April and October 2014 (the ‘State sentence’). The combined head sentence imposed for that offending was a term of 14 years imprisonment, commencing on 17 July 2017. As a result of a partially successful appeal,[6] the applicant’s non-parole period was reduced to nine years.
[6] R v Kola [2019] SASCFC 87.
In sentencing the applicant for the conspiracy offence, the judge imposed a term of imprisonment of 13 years and fixed a non-parole period of seven years. Having regard to s 19(1)(b) of the Crimes Act 1914 (Cth) (‘Crimes Act’), the judge directed that the sentence was to commence on 17 July 2026. That is the date upon which the non-parole period fixed in respect of the State sentence will expire. In combination, the State sentence and the sentence under appeal therefore amounts to an effective head sentence of 22 years,[7] with a non-parole period of 16 years.[8]
[7] That is, the non-parole period of nine years fixed in relation to the State sentence and the head sentence of 13 years imposed by the judge in respect of the federal offence.
[8] That is, nine years in respect of the State sentence and the seven year non-parole period imposed by the judge in respect of the federal offence.
The applicant does not submit that, standing alone, and imposed with immediate effect, a sentence of 13 years with a non-parole period of seven years, would have been manifestly excessive having regard to the general sentencing considerations relevant to the conspiracy offence. However, he contends that when viewed in combination with the State sentence for offending that occurred at a similar time and shared some common features, the combined sentences are disproportionate.
More particularly, the applicant contends that:
(1)the sentencing judge failed to apply the totality principle in the manner required by Mill v The Queen[9] in cases where the defendant to be sentenced is serving, or is subject to, a sentence for other offending (an alleged process error); and
(2)when regard is had to the combined effect of the State and federal sentences, the head sentence imposed (and non-parole period) in respect of the federal sentence is manifestly excessive (an alleged outcome error).
[9] (1988) 166 CLR 59.
The respondent contends that no process error is established, and that if the Court concludes otherwise, the appeal should nevertheless be dismissed because it should be determined, in the separate and independent exercise of this Court’s discretion, that no lesser sentence is warranted.[10] As to the contention of outcome error, the respondent submits that neither the head sentence nor the non-parole period fixed in respect of it is manifestly excessive.
[10] Kentwell v The Queen (2014) 252 CLR 601 at [35], [43] (French CJ, Hayne, Bell and Keane JJ), Stocks v The Queen [2021] SASCA 116 at [59] (Livesey P, Doyle and David JJA).
For the reasons that follow, the applicant has established a process error. Whilst the resultant sentence is not shown to be manifestly excessive, we would re-sentence the applicant on the basis set out later in these reasons.
The cannabis offences and the State sentence
The circumstances of the offending the subject of the State sentence as described by the sentencing judge are reproduced in the reasons of Stanley J on the applicant’s appeal against that sentence.[11]
[11] R v Kola [2019] SASCFC 87.
In summary, the applicant was convicted by a jury of three counts of trafficking in a large commercial quantity of cannabis which was sold to a Western Australian buyer. He also pleaded guilty to two offences of trafficking in a large commercial quantity of cannabis involving two shipments to the Northern Territory, one count of cultivating a large commercial quantity of cannabis for sale and one count of cultivating cannabis for sale. In total, the offending involved 86 pounds (approximately 39 kilograms) of cannabis, as well as the cultivation of 177 cannabis plants at two separate premises. The trafficking and cultivation was for commercial gain, and the applicant was at the top of the supply chain. As has been mentioned, the offending occurred between April and October 2014.
At that time, the applicant was 48 years of age.[12] The applicant came to Australia from Albania as a refugee in 1992. He had spent two years in a refugee camp before coming to Australia.[13] Since his arrival he had been in almost continuous employment in factory work and various trades. In 2006, he commenced a construction business. He married in 1988, but that marriage was dissolved in 2007. There were two children of the marriage. The applicant was noted to have been close to his children, and to have been held in high regard by his family and community.
[12] He is presently 55 years old.
[13] In submissions on sentence made to the judge in the present matter, it was also explained that after his initial flight from Albania to Montenegro, he was arrested, held, and tortured for a period. Apparently his time in the Albanian military led to a suspicion that he was a spy. After a period of some months he was sent to Belgrade, where he spent time in a detention centre and then a refugee camp.
The applicant was diagnosed with type 2 diabetes in 2006. There are complications associated with the condition.[14] He also suffered from haemorrhoids and varicose veins.
[14] In submissions, it was explained that this requires careful monitoring and avoidance of what might be described as prison staples of bread, pasta and rice, meaning that in prison he is required to maintain an almost exclusively vegetarian diet.
The applicant’s previous convictions included possessing a controlled substance for sale in 2002, namely, 12 pounds of cannabis. For that offending he was sentenced to a term of three years imprisonment with a non-parole period of two years which was suspended on entry into a bond to be of good behaviour for two years. In 2004 he was convicted of possessing cannabis and fined $500. In 2009 he was convicted of cultivating a controlled plant. The offending involved eight plants and a hydroponic set up. The applicant was sentenced to six months imprisonment.
In structuring the State sentence, the sentencing judge first applied a discount of 10 per cent for the guilty pleas from a notional starting point of seven years imprisonment in respect of the Northern Territory offences, and a discount of 10 per cent for the guilty pleas from a starting point of five years imprisonment in respect of the cultivating offences. Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the judge then imposed:
(1)a single sentence of 10 years for the Western Australian offences;
(2)a period of six years three months and three weeks for the Northern Territory offences, with three years of that sentence to be served cumulatively upon the Western Australian offences; and
(3)in respect of the cultivation offences, a period of imprisonment of four years and six months, with two of those years to be served cumulatively upon the other terms of imprisonment.
The resultant head sentence of 15 years was then reduced on the basis of time spent in custody and on home detention, such that a 14 year effective head sentence was ultimately imposed. On the basis that the applicant was to be sentenced as a serious repeat offender,[15] the sentencing judge fixed a non-parole of 11 years and three months, representing four-fifths of the head sentence.
[15] Criminal Law (Sentencing) Act 1988 (SA), s 20BA.
On appeal to the Court of Criminal Appeal, a majority considered that the applicant was not required to be treated as a serious repeat offender. They considered that the error that had been made had only affected the non-parole period. The independent complaints respecting the head sentence on the basis of parity and manifest excess were rejected. In fixing a fresh non-parole period, the majority considered that a period of nine years was appropriate.
The circumstances of the federal offending
There is no challenge to the summary of the offending the subject of the sentence under appeal given by the judge. As the judge said, the evidence showed that in April 2014, the applicant and Mr Londono-Gomez met with Mr Yavuz and P in Adelaide. Following that, the applicant spoke with a South American man called Julio about someone coming to Panama and then transporting cocaine to Australia.
The applicant and Mr Yavuz recruited P to be the person to travel to South America and then return by boat with the cocaine. P had worked with Mr Yavuz in 2013, delivering meat. He had also helped Mr Yavuz grow cannabis at Mr Yavuz’s farm. P was to be paid $250,000.
The applicant and Mr Yavuz went with P to buy his ticket to fly to Panama City. The applicant communicated with Julio about P’s itinerary and travel arrangements. Mr Londono-Gomez, who had returned to South America, was to meet P on his arrival.
Mr Yavuz took P to the airport on 19 May 2014, traveling via the applicant’s home, where the applicant gave P a mobile phone with text messages on it to serve as a cover story if required, namely that he was meeting a girl that he had been texting. P flew from Adelaide to Sydney and then to Panama, arriving on 20 May 2014.
When P arrived in Panama there was an issue with his original phone. He called Mr Yavuz who said to catch a taxi to the Milan Hotel and wait for Mr Londono-Gomez, who arrived the day after. Mr Londono-Gomez told him to wait for the captain to arrive and things would go from there. P met the captain, introduced as Marco, shortly afterwards, and spent a few days with Mr Londono-Gomez and Marco before the former left, telling P the captain would look after him from then on. He gave P and Marco $250 each and said it was from Julio. Mr Londono-Gomez told P the product, being cocaine, was going to be on the boat when they met someone in the sea. They were given codes on a piece of paper. Mr Londono-Gomez made it clear to P that his role was to make sure Marco did not take any of the cocaine because he was a heavy user.
P stayed at various places and was shown the boat by Marco, but it was in bad condition and took a few weeks to repair. Mr Yavuz sent him money through the bank to cover his living expenses. Mr Yavuz was communicating with P whilst the applicant was the main person communicating with Julio.
On 24 June 2014, Mr Londono-Gomez advised the applicant that there was a problem with P and the captain not getting along and that he was going to have to send P back. P returned to Australia on 21 July 2014. He was arrested by the police. The boat never left South America for Australia as planned.
As the judge said in sentencing:[16]
In summary, Mr Kola, you introduced Mr Londono-Gomez to P and Yavuz. You also recruited P with Mr Yavuz to travel to Panama to sail back to Australia with the cocaine. You and Mr Yavuz agreed that he would be paid $250,000. You assisted in arranging P's airline ticket to Panama, you provided him with a drop phone and provided the Colombians with P's details and itinerary. You were the primary contact for the overseas co-conspirators. You communicated with Mr Yavuz, Mr Londono-Gomez and Julio on a frequent basis. You liaised with Mr Yavuz regarding fund transfers to cover P's expenses whilst he was overseas. At minimum, you were involved either directly or indirectly with the transfer of at least $3,400 to P. You provided Mr Yavuz with instructions regarding P's return airline ticket and liaised with Mr Londono-Gomez about his return when it became apparent that the importation could not go ahead.
[16] Sentencing Remarks of Her Honour Judge Kudelka, 21 February 2023, DCCRM-19-1044.

Whilst the precise amount of cocaine the subject of the conspiracy was not known, the judge found that it was going to be substantially more than two kilograms and that the applicant, Mr Yavuz and the Colombians were to receive much more than the $250,000 that P was to receive.
The sentence imposed upon Mr Yavuz
Mr Yavuz entered a plea of guilty to conspiring to import cocaine at an early stage. At the time of Mr Yavuz’s sentencing, he was serving a term of imprisonment of six years and six months with a non-parole period of three years and six months imposed for offences of trafficking in cannabis contrary to the Controlled Substances Act 1984 (SA).
For the conspiracy offence to which he had pleaded guilty, he was sentenced to a term of imprisonment of nine years and six months, with a non-parole period of six years and six months. The sentencing judge indicated that she had allowed a discount of just over 20 per cent for the plea of guilty, suggesting that a head sentence in the order of 12 years might otherwise have been imposed. The sentence was directed to commence immediately after the expiry of the non-parole period fixed for the cannabis offences, with the result that the sentence for the conspiracy charge took effect concurrently with the head sentence in respect of the State offending for a period of three years.
The total effective head sentence for the State and federal offending was therefore 13 years, with an effective combined non-parole period of 10 years.
Mr Yavuz’s appeal against sentence, including on grounds that it failed appropriately to comply with the totality principle, was dismissed.[17]
[17] R v Yavuz [2020] SASCFC 87.
The Commonwealth Director of Public Prosecutions sought permission to cross-appeal on the basis that, when compared with what were said to be sentences for comparable offending, the sentence was manifestly inadequate.
As to the proposed cross-appeal, Kourakis CJ (with whom Peek and Livesey JJ agreed) observed that the other sentences relied upon mainly comprised sentences of single judges that had not been disturbed on appeals founded on contentions of manifest excess, and that, in contrast to some of those cases, in Mr Yavuz’s case, the quantity of cocaine actually to be procured in the conspiracy was unknown. In refusing the Director permission to cross-appeal, the Chief Justice also observed that Mr Yavuz played a secondary role to Mr Kola, that the indications were that the conspiracy was neither well planned nor executed, and that the sentence would be served cumulatively on a relatively long sentence imposed in respect of the State offence.
In dismissing Mr Yavuz’s appeal against sentence, Kourakis CJ observed that any greater degree of concurrency than was achieved by the federal sentence being directed to commence after the State non-parole period expired was not required by reason of the connection between the cannabis offences and the conspiracy. He held that no lesser sentence could properly have been imposed having regard to the serious and persistent drug offending in which Mr Yavuz had engaged.[18]
[18] R v Yavuz [2020] SASCFC 87 at [43].
The Chief Justice considered that the non-parole period was not manifestly excessive, even though he acknowledged that ‘the Judge may not have fully appreciated the mathematical effect of accumulating what were, individually, moderate non-parole periods, without allowing for the period of concurrency in the head sentences’.[19] On a combined basis, the non-parole period of 10 years equated to 76% of the effective combined head sentence of 13 years. Kourakis CJ was not persuaded that such a non-parole period was disproportionate for what he characterised as serious and persistent national and international high-value drug trafficking. The scope for Mr Yavuz to be supervised on parole for a period of three years was seen as sufficient to support his long-term rehabilitation.[20]
[19] R v Yavuz [2020] SASCFC 87 at [45].
[20] R v Yavuz [2020] SASCFC 87 at [45].
In Mr Yavuz’s case, the sentencing judge had specifically adverted in her remarks to the question of concurrency and proportionality in the context of the State and federal offending as a whole, but concluded, having regard to what was said to be the quite different and more serious nature of the federal offending, that the three years of concurrency reflected by the date upon which the sentence for the federal offending was to commence was sufficient.
The sentence imposed on the applicant
Having described the background, the circumstances of the offending and the applicant’s personal circumstances, in sentencing the applicant, the judge remarked as follows.[21]
[21] These passages have been assigned numbers to facilitate later reference.
[1] In sentencing you both for this offending, general deterrence is an important factor. It is necessary for courts to impose significant sentences for this type of offending to deter others who are motivated by the thought of very large profits to become involved in these sorts of criminal enterprises. The sentence must signal to the would-be traffickers and importers that the potential financial rewards to be gained are neutralised by the risk of severe punishment.
[2] The distribution of illicit drugs, including cocaine, into the community is destructive of the community. I am required to impose a sentence of severity appropriate in all the circumstances of the offence.
[3]Mr Kola, you are already serving a lengthy term of imprisonment for drug offending which was also committed by you in 2014.
[4]Because of your prior convictions and sentence I do not consider that the delay in your arrest gives rise to any circumstances of mitigation. As I have said I do consider that you had a greater role in this conspiracy than Mr Yavuz but not significantly so.
[5]I sentence you to 13 years imprisonment. You have not demonstrated any contrition or remorse.
[6]You are not to be punished again for your other criminal offending but as I said, leniency is reduced when sentencing you for this offending. Clearly, personal deterrence has a significant role when sentencing you.
[7] In fixing the non-parole period I have taken into account all circumstances relating to the offending and your personal circumstances, which include the fact that you have been in custody since July 2017 serving a sentence for other drug offending.
[8] I fix a non-parole period of seven years imprisonment.
[9]I direct that the sentence of 13 years, with a non-parole period seven years, commence immediately after the end of the State non-parole period which is 17 July 2026.
Contention that the sentence was vitiated by process error
Having regard to this Court’s conclusion that the head sentence imposed upon Mr Yavuz (which, without the reduction for his plea of guilty, would have been in the order of 12 years) was not manifestly excessive, the applicant does not submit that, standing alone, the imposition of an immediately operative head sentence of 13 years imprisonment for his federal offending would have been manifestly excessive. As has been noted, the applicant was found to have had a slightly greater involvement in the conspiracy than Mr Yavuz.
Nor did the applicant contend that the State sentence of 14 years (with a non-parole period of nine years) was manifestly excessive. The Court of Criminal Appeal has rejected such a contention.
The applicant complained, however, that a process error occurred by reason of the judge’s failure to undertake the exercise of first considering what the appropriate sentence would have been if the applicant had been sentenced at one time for all offending, and then tailoring the sentence for the federal offending accordingly.
The totality principle
Mill v The Queen[22] did not involve the imposition of a sentence for offending contrary to federal law. It addressed the circumstance where the prosecution and sentencing of an offender for offences against the laws of one State or Territory is delayed and deferred whilst the offender is in custody serving a sentence for offences against the laws of another State or Territory but committed around the same time as the other offences.
[22] (1988) 166 CLR 59.
The defendant had committed three armed robberies over a period of six weeks, two in Victoria and one in Queensland. He was sentenced for the Victorian offences to an effective sentence of ten years imprisonment with a non-parole period of eight years. The head sentence appears to have been constructed by reference to two terms of imprisonment for eight years with the second made concurrent as to six years.
After his release on parole, he was convicted and sentenced by the Queensland Supreme Court to a further term of imprisonment of eight years, with the sentencing judge remarking that ‘to really give account of the fact that you have already served eight years, I would make the further recommendation that you be considered for parole after serving three years of that sentence’.[23]
[23] Mill v The Queen (1988) 166 CLR 59 at 60 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
The High Court commenced by identifying the ‘totality principle’ as a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. The following description given in Thomas, Principles of Sentencing,[24] was reproduced and endorsed:
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’. 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. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.
[24] (1979, 2^nd ed) at 56-57, omitting references.
The Court then observed that:[25]
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.
[25] (1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
Turning to the situation relevant to the appeal before it, their Honours said:[26]
The application of the principle becomes more complicated where the offender commits a number of offences within a short space of time in more than one State. Upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of the processes of the criminal law in the second State for a period of years. That is what happened in the present case.
[26] (1988) 166 CLR 59 at 63-64 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
The Court referred to the approach taken to that problem in New South Wales in a decision of Todd,[27] and in Queensland in Jenkyns.[28] In Todd, Street CJ, with whom the other members of the Court agreed, said:[29]
it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences ...
… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[27] R v Todd [1982] 2 NSWLR 517.
[28] R v Jenkyns Unreported, Court of Criminal Appeal (Queensland), 11 June 1986.
[29] [1982] 2 NSWLR 517 at 519-520.
The High Court referred to this passage and observed:[30]
In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. But, with respect, we think that the exposition of principle in Todd has been misunderstood by the Court of Criminal Appeal in Jenkyns and in the present case. The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.
In the present case, the learned trial judge cited the passage from the judgment of Connolly J to which we have referred and then followed it by fixing a head sentence of eight years. We should add that his Honour was encouraged to take that course by the Crown Prosecutor who submitted that a heavy head sentence should be imposed, “signifying the way that the courts and community treat these types of offences”. It was, in the prosecutor's submission, the length of the non-parole period — and, presumably, that alone — that was to reflect the fact that the applicant had been in custody for eight years and had pleaded guilty and co-operated in bringing the matter to a conclusion.
In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either twelve or thirteen years. An appropriate non-parole period may well not have been much more than the eight years actually imposed by the Victorian court. But, of course, it is not possible for a second sentencing court to impose a concurrent sentence of the kind we have contemplated in the absence of statutory provisions enabling the backdating of the new sentence: cf. Reg v Gilbert[31] and Reg v Garrett.[32] Section 20 of the Criminal Code (Q) does not allow such a course to be taken. Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.
If it be suggested that there is a degree of concurrency present in the sentence imposed on the applicant for the Queensland offence, because the sentence commenced at a time when the Victorian sentence still had two years to run, the answer is that to construe the circumstances in that way effectively denies to the applicant any remissions on the Victorian sentence.
[30] (1988) 166 CLR 59 at 65-67 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[31] [1975] 1 WLR 1012; [1975] 1 All ER 742.
[32] (1978) 18 SASR 308.
The principle of totality is not solely concerned with avoiding ‘double punishment’ for criminal conduct, such as is required where there is a degree of factual overlap between the elements or circumstances of multiple offences[33] and where the sentence for one offence may ‘comprehend the criminality of the other’,[34] or where the offending amounts to a single course of conduct. Whilst its effect may be more pronounced in such cases, the required approach applies, and may call for concurrency, or alternatively moderation of the proposed sentence, in other cases,[35] particularly where the offending is proximate in time but encompasses dissimilar offending,[36] or, though spanning a significant period of time, is of a similar nature.[37] That is because the rationale of the totality principle is broader than the avoidance of double punishment in respect of conduct which forms an element of multiple offences.
[33] In Pearce v The Queen (1998) 194 CLR 610 at [40], McHugh, Hayne and Callinan JJ observed that often the boundaries of particular offences will be drawn in a way that means that offences overlap and that ‘[t]o punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts’.
[34] That expression was used by Hidden J in R v Cutrale [2011] NSWCCA 214 at [32] (referring to Cahyadi v R [2007] NSWCCA 1 at [27] (Howie J, Adams and Price JJ agreeing) and referred to in R v King [2011] NSWCCA 274 at [20] (Adams J, McLellan CJ and Hoeben J agreeing).
[35] See, eg, R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106], R v W, PL [2017] SASCFC 119 at [38]-[49] (Doyle J, Bampton and Lovell JJ agreeing), Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [60]-[61] (Livesey P, Doyle and David JJA). That is not to say that the imposition of concurrency, or moderation of a sentence on totality grounds, is automatic. See, eg, Tipping v The King (No 2) (2023) 142 SASR 398 at [66] (Livesey P, Lovell and David JJA). In cases where there are distinct and identifiable victims, even where harm to them occurs as part of a ‘single transaction’, this may reduce, but it need not deny, a degree of concurrency. See, eg, Director of Public Prosecutions (Vic) v Marino [2011] VSCA 133 at [53] (Kyrou AJA, Buchanan and Nettle JJA agreeing.
[36] See, eg, Morgan v The Queen (2013) 40 VR 32 at [86]-[88] (Maxwell P, Weinberg and Priest JJA).
[37] See, eg, R v Wright [2009] VSCA 27.

The principle also reflects that the purposes of sentencing, including specific deterrence, rehabilitation and denunciation for a subsequent or second penalty may be achieved, at least to some extent, by an original or first penalty even for disparate offending,[38] with the result that the cumulation of otherwise appropriate individual sentences is not necessary to achieve the purposes of sentencing,[39] and is consequently disproportionate.
[38] R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106] (Kourakis J), R v Smoker (2016) 126 SASR 201 at [78] (Lovell and Hinton JJ).
[39] The same point may perhaps be expressed another way by saying that ‘[t]wo aspects of sentencing aim to dissuade offenders from reoffending: specific deterrence and rehabilitation. Offenders who are sentenced for multiple offences are denied the advantages of such interventions in relation to each offence – had they been sentenced consecutively they may have been deterred from reoffending or rehabilitating. This sets them apart from offenders who commit offences consecutively’: Bagaric and Alexander, ‘Rehabilitating Totality in Sentencing: from Obscurity to Principle’ (2013) 36 University of New South Wales Law Journal 139 at 141.
Additionally, in a case where the imposition of multiple sentences will lead to a very lengthy term of imprisonment that will expire close to or after the reasonably expected remaining term of the offender’s life, cumulation without some moderation may take on an oppressive quality which undermines the rehabilitative objective of sentencing.[40] This is not to suggest that the totality principle is solely (or predominantly) concerned with avoiding ‘crushing’ sentences,[41] or that to show that a sentence is ‘crushing’ means that it is necessarily erroneous, either generally or on totality grounds.[42] Ultimately, the sentencing technique of directing concurrency and the approach to totality described in Mill v The Queen are concerned with achieving proportionality.[43]
[40] Thus, whilst references to mercy are frequently made in this context (see, eg, R v Walkuski [2010] SASC 146 at [6] (Doyle CJ)), the aspirational aim of avoiding crushing sentences is as much concerned with facilitating rehabilitation as it is with any sense of sympathy: R v Cramp (2010) 106 SASR 304 at [51] (Kourakis J), Snodgrass v R [2021] SASCFC 20 at [73] (Hughes J, Peek and Doyle JJ agreeing).
[41] Johnson v The Queen (2004) 78 ALJR 616 at [22] (Gummow, Callinan and Heydon JJ).
[42] R v Smoker (2016) 126 SASR 201 at [69]-[85] (Lovell and Hinton JJ), Hraichie v R [2022] NSWCCA 155 at [72]-[73] (Beech-Jones CJ at CL, R A Hulme and N Adams JJ agreeing).
[43] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [60]-[61] (Livesey P, Doyle and David JJA), Warner v The King [2022] SASCA 142 at [24]-[25] (Kourakis CJ). See also Director of Public Prosecutions v Bowen (2021) 65 VR 385 at [7] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA) and Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at [94] (Edelman J).
A failure to apply the totality principle in relation to a sentence or sentences that are imposed some time after other sentences to which regard ought to have been had may result in particular unfairness. In such cases, the delay awaiting trial or sentence in relation to the second or subsequent sentences may carry with it the additional burden of uncertainty and dread associated with facing a potential sentence which will not (in the absence of backdating or concurrency) commence for some time. In those cases, close attention may need to be given to considerations of fairness, as indicated by the observations of Street CJ in Todd, endorsed in Mill v The Queen.
Sentencing for federal offences
The respondent does not dispute that the principle of totality, and the particular application of it addressed in Mill v The Queen, applies to federal sentences.
In that regard, the respondent refers to s 16B of the Crimes Act. Whilst that section is certainly consistent with the totality principle,[44] in terms it only requires that in sentencing a person convicted of a federal offence a court must ‘have regard’, inter alia, to any unserved sentence already imposed on the person by the court or another court for a federal offence or for any State or Territory offence.
[44] Postiglione v The Queen (1997) 189 CLR 295 at 308-309 (McHugh J). See also Crimes Act, s 19AD.
In our view, the application of the totality principle described in Mill v The Queen applies to sentencing for federal offences, with such adaptations as are necessary to accommodate the other required features of the Crimes Act scheme. That is because Mill v The Queen identifies an application of the totality principle which forms part of the common law principles of sentencing. Except to the extent stated in ss 16A and 16B of the Crimes Act, general common law sentencing principles apply in sentencing for federal offences.[45] This conclusion accords with the acceptance by Kourakis CJ in R v Yavuz that the judge was ‘bound to have regard to the totality of the accumulation of Mr Yavuz’s sentences, even though [the sentencing judge] was sentencing for the cocaine importation alone’.[46]
[45] Johnson v The Queen (2004) 78 ALJR 616 at [15] (Gummow, Callinan and Heydon JJ), Hili v The Queen (2010) 242 CLR 520 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The underlying purpose of Part 1B of the Crimes Act being to achieve consistency in the application of general sentencing principles with respect to all federal offences, it has been held that ‘local’ sentencing principles which are not ‘general principles’ are not ‘picked up’: Director of Public Prosecutions (Cth) v Gow (2015) 298 FLR 397; [2015] NSWCCA 208 at [35] (Basten JA, Garling J agreeing).
[46] [2020] SASCFC 87 at [43] (Kourakis CJ, Peek and Livesey JJ agreeing).
The deferred commencement of the sentencing by the Queensland Supreme Court in Mill v The Queen, and thus the limitation upon its capacity to achieve totality by the imposition of a partially or wholly concurrent sentence, was dictated by the practical limitations which stood in the way of proceeding against the defendant whilst he was in custody in another State. Limits that may apply to the backdating of sentences may also mean that totality can only be achieved by a reduction to the term of imprisonment to be imposed.
In the context of the imposition of a federal sentence upon an offender who is charged with a State offence, or is serving or subject to a State sentence, there may be no difficulty in proceeding without delay (although there was in fact a significant delay in this case). However, save for the facility (and requirement) that exists to direct the time of commencement of a federal sentence, and thereby to achieve a degree of concurrency with other sentences, the Crimes Act does not contemplate that sentences will in terms be characterised as operating concurrently with, or cumulatively upon, State sentences.[47]
[47] Director of Public Prosecutions (Vic) v Swingler (2017) 269 A Crim R 526; [2017] VSCA 305 at [71] (Ferguson CJ, Maxwell P and Weinberg JA), R v Fulop [2009] VSCA 296.
Section 19 of the Crimes Act provides, in part, as follows.
19—Cumulative, partly cumulative or concurrent sentences
General requirements
(1)Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:
(a)     no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b)     if a non‑parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non‑parole period commences immediately after the end of the period.
(2)Where:
(a)     a person is convicted of 2 or more federal offences at the same sitting; and
(b)     the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
(3)Where:
(a)     a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
(b)     the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but so that:
(c)     no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d)     if a non‑parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non‑parole period commences immediately after the end of the period.
(4)For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first‑mentioned sentence. …
This form of s 19 was introduced by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). Subsections (1) and (3) were intended to address a problem that arose on sentencing if there were also State or Territory sentences and the person had a State or Territory non-parole period. The problem was the possibility of a hiatus arising between the release of the offender from custody and their subsequent imprisonment in respect of the federal offence. The Explanatory Memorandum stated that:[48]
If the previous sentence is a State or Territory sentence and a non-parole period applies the court is to direct that the new sentence commence not later than the end of the non-parole period in respect of the existing sentence. It is intended that this provision enable federal sentences to be served concurrently, partly cumulatively or cumulatively on earlier sentences.
[48] Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) 12.
In Mercanti v The Queen,[49] Hall J (with whom McLure P and Buss JA agreed) stated that the clear purpose of s 19(1)(b) was to ensure that where a federal sentence is imposed on a person serving a State sentence and it is intended that the federal sentence will be served following the custodial portion of the State sentence, there will be no hiatus between release on the State sentence and the commencement of the federal sentence.
[49] (2011) 249 FLR 223; [2011] WASCA 120 at [14].
As Hall J observed, the potential problem of a hiatus arises because it cannot be known prior to the earliest release date on a State sentence whether an offender, who is eligible to be considered for parole, will in fact be granted parole. A hiatus is undesirable for reasons including the risk of absconding that it creates. It is also undesirable needlessly to require an offender to adjust to life in custody and to life following release from custody twice, only to defer their final expected date of liberty.[50]
[50] Cf. Dickman v The Queen (No 2) [2017] VSCA 351 at [46] (Whelan JA), [105] (Priest JA and Croucher AJA). In Kidd v The Queen [1972] VR 728 at 730, Winnecke CJ, Pape and Crockett JJ described it as ‘quite unacceptable and impracticable to contemplate the possibility of release in the midst of a State sentence and recall at the end of a successful period of parole for the purpose of commencing the Commonwealth sentence.’
Bearing in mind the mischief, it has been held that s 19(1)(b) does not apply where the non-parole period in respect of the State sentence has passed.[51] Where a federal sentence is directed to commence immediately after the end of a non-parole period in the manner contemplated by s 19(1)(b), this will always be a future date.
[51] In such a case, it is not the case that a non-parole period ‘applies’ (in the present tense) within the meaning used in s 19(1)(b): R v Dobie [2004] 2 Qd R 537 at [19]-[21] (Davies JA, de Jersey CJ and Holmes JA agreeing), MacCormack v The Queen (2005) 196 FLR 13; [2005] QSC 49 at [13]-[17] (Wilson J), Mercanti v The Queen (2011) 249 FLR 223; [2011] WASCA 120 at [17]-[19] (Hall J, McLure P and Buss JA agreeing).
An issue arose during the hearing of this appeal as to whether, if there is an extant State non-parole period, s 19(1)(b) requires that the federal sentence commence from the end of the non-parole period, or whether it only precludes the federal sentence commencing after that time.
Although the former approach may have been assumed to be correct in this State,[52] in argument before us, the respondent’s senior counsel referred to Victorian authority which adopts the latter construction. In R v Mokbel,[53] Emerton P, Beach and McLeish JJA said that:
While s 19(1)(b) and s 19(3)(d) of the Crimes Act 1914 refer to Commonwealth sentences commencing ‘immediately after’ the end of the State non-parole period, as this Court said in Fasciale,[54] those references are not a prescription that this is what must occur. The bar in those sections is only on any later commencement date being fixed – so as to avoid the creation of any ‘gap’ in incarceration or non-parole period. Thus, this Court’s order that the Federal sentence and Federal non-parole period commence two years before the expiration of the State non-parole period complies with ss 19(1)(b) and 19(3)(d) of the Crimes Act 1914.
[52] In R v Yavuz [2020] SASCFC 87 at [2], Kourakis CJ (Peek and Livesey JJ agreeing) said that the section ‘required the sentence imposed by the Judge to commence at the expiration of [the] non-parole period’.
[53] [2023] VSCA 40 at [76].
[54] (2010) 30 VR 643, 649 [37].
In Fasciale v R,[55] to which reference is made in that passage, Weinberg JA, with whom Ashley JA agreed, said that:
Of course, the reference to the Commonwealth sentence commencing ‘immediately after’ the State non-parole period is not a prescription that this is what must occur. It is only a bar to any later commencement date being fixed. Once again, Scerri[56] provides a clear illustration of the way in which the section is intended to operate.
[55] (2010) 30 VR 643 at [37].
[56] [2010] VSCA 287.
In Scerri v R,[57] the Court of Appeal found that the sentencing judge’s discretion with respect to the sentencing of the offender for a State and federal offence miscarried, making it necessary to re-exercise the sentencing discretion. The Court considered a term of imprisonment of five years with a minimum of three years was appropriate for the State count and that a term of five years with a minimum term of three years was appropriate for the Commonwealth count,[58] but directed that the sentence on the Commonwealth count was to commence upon the expiration of the first twelve months of the non-parole period of the State sentence. This resulted in a total effective sentence of six years’ imprisonment, with the offender required to serve four years imprisonment before he was to be eligible for parole.
[57] [2010] VSCA 287.
[58] Scerri v R [2010] VSCA 287 at [56].
The Court did not justify that conclusion by reference to a textual analysis of s 19(3)(d) of the Crimes Act, and nor did the decisions in Fasciale or Mokbel contain a discussion of the text of s 19(1)(b).
At first sight, the provisions appear to mandate that the first of any federal sentences to be imposed commence immediately after the end of any unexpired State or Territory non-parole period.
On closer analysis, however, the requirement that a federal sentence commence immediately after the end of the unexpired State or Territory non-parole period applies only to ‘the first federal sentence to commence after the end of that period’. The section posits but does not in terms require that there will be any federal sentence that will commence after that period. It only requires that if there is a federal sentence that will commence after that period, it does so immediately, ensuring there is no hiatus. That construction, whilst not free from some curiosity,[59] would appear both to meet the mischief at which the provision was aimed, and to allow greater flexibility to provide for a greater degree of concurrency than would be achieved by the commencement of the federal sentence at the expiry of the non-parole period. It would also appear to be consistent with the title of the section, which refers not only to partly cumulative but concurrent sentences,[60] and the proposition in the Explanatory Memorandum that the provision will enable federal sentences to be served concurrently. In any event, this Court should follow the approach adopted in the Victorian decisions because it is not plainly wrong.[61]
[59] In the case where multiple federal sentences are to be imposed, the first of which is desired to commence before the expiry of the State non-parole period, but one or more of which will commence after that time, there may be a difficulty (and an arbitrariness and lack of purpose) in ensuring that the first of the latter group of sentences commences immediately following the State non-parole period. It has been observed that ‘this entire area is fraught with unnecessary complexity, and is full of hidden traps for the unwary’: Director of Public Prosecutions (Vic) v Swingler (2017) 269 A Crim R 526; [2017] VSCA 305 (Ferguson CJ, Maxwell P and Weinberg JA). Less charitably it has been said that the Commonwealth and State sentencing regimes comprise a ‘legislative jungle in which any court sentencing a federal offender must now spend a considerable time’: R v Carroll [1991] 2 VR 509 at 514 (Young CJ, Crockett and O’Bryan JJ).
[60] The section title forms part of the Act to which regard may be had in its construction: Acts Interpretation Act 1901 (Cth), s 13.
[61] Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ), Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
Indeed, whether, in this case, the federal sentence had to commence on 17 July 2026 (the date on which the non-parole period fixed for the State sentence is to expire) or could have been directed to commence on a date on or before that date, it remained necessary, consistent with the aspect of the totality principle described in Mill v The Queen, for the judge to consider, with reference to the proposed selected commencement date, whether the head sentence imposed and non-parole period to be fixed for the federal sentence would, when considered in conjunction with the State sentence, result in an overall sentencing outcome that would have been appropriate had the offender been sentenced at one time for all the offending.
That does not require the identification of a total period of imprisonment as a first step anterior to the consideration of appropriate component sentences. Consideration of an appropriate combined sentence will necessarily have regard to the individual offences in respect of which the offender is to be sentenced.[62]
[62] In the more usual circumstance in which the totality principle applies, where a court is sentencing an offender for a number of offences (without the need to consider any extant sentences), the preferable approach to achieve proportionality will be to bring it to bear by applying the required degree of concurrency to sentences that have already been notionally identified as appropriate.

As a matter of process, there could be no complaint in a case such as the present about the judge: (i) provisionally identifying an appropriate head sentence for the federal sentence; (ii) provisionally adopting a commencement date aligning with the expiry of the extant State non-parole period; and then (iii) considering whether the extent of the concurrency produced by the adoption of that date results in a total effective head sentence (and facilitates the fixing of a total effective non-parole period) that would be consistent with the sentence and non-parole period that would have been appropriate if all offences had been the subject of a single sentencing exercise. If it does not, it will be necessary to consider an earlier commencement date, or a reduction in the length of the proposed federal sentence.
The primary question arising on this appeal is whether the appellant has demonstrated that the judge failed to undertake this exercise, or at least something akin to the final step described and therefore failed to ensure proportionality both in respect of the head sentence and the non-parole period having regard to the context provided by the State sentence.
Was the required approach applied?
It is for the applicant to establish that an error has been made by the judge failing to consider and correctly apply the principle of totality, and whilst such an error may be apparent where the judge makes no reference to totality, that conclusion will not be automatic; sentencing remarks should not be read in an unduly critical way,[63] nor with an ‘overly zealous eye for error’.[64] Certainly, a failure to expressly mention a factor that was so obviously a part of the sentencing synthesis that the parties themselves barely alluded to it would not demonstrate error.[65]
[63] Sepehrnia v The King [2024] VSCA 149 at [54] (Priest and Niall JJA).
[64] Cuthbertson v The Queen [2019] VSCA 104 at [58] (Emerton JA, Priest JA agreeing).
[65] Cuthbertson v The Queen [2019] VSCA 104 at [58] (Emerton JA, Priest JA agreeing), referred to in the context of totality in Nguyen v The King [2024] VSCA 3 at [54] (Walker JA).
The applicant submits that beyond fixing the commencement of the sentence on the date prescribed by s 19(1)(b) of the Crimes Act, the judge did not expressly advert to the total length of the head sentence or the total length of the non-parole period that would result from the imposition of the federal sentence. He also emphasises that in circumstances where neither counsel specifically directed the judge’s attention to the approach in Mill v The Queen, and reading the relevant sentencing remarks as a whole, it should be concluded that the exercise described in that decision was not undertaken here and that whilst the remarks show that the judge was plainly alive to the fact of the State sentence and that the sentence to be imposed would take effect in a way that was partly cumulative upon it, that did not suffice to comply with the totality principle.
With reference to the passages in the relevant part of the sentencing remarks extracted earlier, the applicant submits that:
(1)there is no indication in the first two passages that the principle of totality is being applied. The focus of those remarks is on the need for deterrence and the need for the sentences the severity of which reflects the destructive nature of the offending in question;
(2)although the judge referred in the third passage to the State sentence, this does not disclose that the exercise described in Mill v The Queen has been undertaken. Rather, it appears to provide the background for the point made in the fourth numbered passage;
(3)the fourth passage reflects that the judge considered that the fact that the applicant had been in custody meant that the delay between the offending and the imposition of the sentence was not as mitigatory as it might have been if, during the intervening period, he had moved on with his life in a way that was consistent with rehabilitation;
(4)the applicant’s head sentence is announced in the fifth passage, with no reference to the approach in Mill v The Queen;
(5)in the sixth passage, the prior criminal offending is mentioned but as a reason not to afford leniency, presumably on the footing that it means that no submission can be made that the offending was isolated;
(6)in the seventh passage, the judge expressly took into account the fact that the applicant had been in custody since July 2017 for other drug offending but in the context of fixing the non-parole period. The applicant submitted that merely to take that fact into account was not to undertake the exercise described in Mill v The Queen, and even if it was, the reference to this in the context of the non-parole period tended to confirm that no such exercise had been undertaken in respect of the head sentence.
The respondent submitted that the judge’s remarks should be understood in light of references made during written and oral sentencing submissions to the need to have regard to the State sentence, albeit not to the particular approach described in Mill v The Queen. The respondent points to oral submissions made below which observed that if the head sentence were to commence on 17 July 2026, this would result in the first five years of any federal sentence being served concurrently with the State sentence. Emphasising that the federal offending was separate and unrelated to the State offending apart from having occurred at around the same time as the other offending, it was contended before the sentencing judge that if five years concurrency was seen as ‘too much’, the judge could impose a head sentence that was longer than would otherwise have been considered appropriate in isolation.
A complication in considering the approach taken by the judge is that some of the submissions made to the judge may have conveyed that s 19(1)(b) of the Crimes Act required the sentence to commence at the expiry of the State non-parole period.[66]
[66] In the ‘Written Submissions of the Crown for Hearing before Judge Kudelka on 2 November 2022’ (DCCRM-19-1044, FDN 124) at [74](b), s 19(1)(b) was paraphrased in terms that suggested it was mandatory for the federal sentence to commence at the expiry of the State non-parole period. That may be contrasted with an earlier submission concerning backdating for time spent in custody which, whilst arguing against doing so, may be said to have implicitly acknowledged that the sentence could have been directed to commence at an earlier time. In oral submissions, a submission was in one place made that also appeared to suggest that that commencement date was mandatory, but in another place it was submitted only that the selection of that commencement date was the ‘usual practice and the one I suggest would be adopted here’: Transcript, 21 September 2022, p 28.
It may be accepted that by virtue of the respondent’s submissions below, the judge was invited to have regard to the State sentence. Further, an issue raised for the judge’s consideration was whether, if the federal sentence were to be imposed to commence at the expiry of the State non-parole period, the concurrency that would result was appropriate, or too great, having regard to the extent to which the offending could be characterised as similar.
In our view, however, those submissions invited a subtly different focus to that which was required. They invited the judge to consider whether the degree of concurrency that could not be avoided (by virtue of s 19(1)(b) of the Crimes Act) required some adjustment so that the federal sentence would reflect the punishment proportionate to the severity of the conspiracy offence, both denying to the applicant any leniency that he might be afforded if it was a ‘first offence’, but with little need to avoid double punishment because of the factually separate foundation for the offending. The submissions made were legitimate, but the judge was also required to give separate and distinct attention to the total sentencing package that would have been appropriate if the applicant had been sentenced for the State and federal offending together. That exercise should have been undertaken with a recognition that it might warrant directing that the sentence commence prior to 17 July 2026 or, alternatively, might call for a moderation of the sentence to be imposed from that date.
Whilst there is a stronger basis to conclude that the judge had regard to the practical effect of the State non-parole period in fixing the minimum term of imprisonment for the federal offence, and the matter is not free from doubt, we would accept, essentially for the reasons submitted by the applicant in his analysis of the relevant passages of the sentencing remarks, that the exercise described in Mill v The Queen was not undertaken in connection with the head sentence. In other words, the sentencing remarks understood in the context of the submissions made do not show that in fixing the appropriate head sentence the judge had regard to the context provided by the State sentence in ensuring overall proportionality.
To be clear, that conclusion does not follow simply for the reason that the judge did not in terms describe having undertaken such an approach.[67] In this case it has been reached in part due to the lack of a submission by either party which identified the necessity to undertake the approach in Mill v The Queen, and the fact that the specific references that were made by the judge to the State sentence suggest that regard was had to it for more limited purposes. The failure by the parties expressly to draw to the judge’s attention that the scheme of the Crimes Act did not require (or presumptively ordain as appropriate) the date of the expiry of the State non-parole period as the appropriate commencement date may also have narrowed the focus of the judge’s consideration of questions relating to totality and concurrency.
[67] Lowell v The Queen [2022] VSCA 134 provides an example of a case in which that conclusion was not reached (see at [35] (Priest and T Forrest JJA)). In that matter, however, express reference was made by the judge to totality and the appeal court considered there to be no reasonable prospect of demonstrating on appeal that a lesser sentence would have been warranted.
The importance of totality to the sentencing exercise is such that we do not regard the failure by the applicant’s counsel to invite the judge’s attention to the approach described in Mill v The Queen as precluding his success on this point on appeal, and the respondent to the appeal did not suggest that it should. Plainly, there was no tactical or forensic advantage to the applicant in omitting to address that issue.
Re-sentencing the applicant
There is no doubt that the nature of the federal offending was such that a substantial head sentence was appropriate and that, viewing the State and federal offending as a whole, the overall term of imprisonment was required substantially to exceed the 14 years to which the applicant had already been sentenced. Put another way, if a head sentence of 13 years were to be utilised in sentencing the applicant for the conspiracy charge, a substantial proportion of such a sentence should operate cumulatively upon the State sentence.
The applicant did not submit otherwise, although he emphasised that: the conspiracy had not progressed to the point of a shipment leaving South America and could be characterised as ‘amateurish’ or even ‘pathetic’; and, further, that although it could be inferred the quantity of cocaine involved was substantially more than two kilograms, it was not known how much was to be involved.
The applicant frankly conceded that if one were to focus upon the factors that may call for a high degree of concurrency, apart from the fact that the two episodes of offending occurred at the same time and involved drugs, there was not a great deal that could be said in that regard. Reliance was placed generally on the matters that will often militate in favour of concurrency or moderation on account of totality, as outlined earlier in these reasons. That is to say, whilst there may not have been a substantial overlap in the underlying conduct there was an overlap in criminogenic factors such that the sentencing objectives relevant to the conspiracy charge will be partially achieved by the imposition of the extant State sentence.
The approach taken in respect of the State sentence, as earlier summarised, had involved the identification of a base sentence for the most serious bracket of offending (the Western Australian offences, to which the applicant had not pleaded guilty). The terms of imprisonment then identified as appropriate for the Northern Territory offending and the cultivation offences each attracted a degree of concurrency that, in percentage terms, was more than half of the sentences in question.
By contrast, the commencement date directed by the judge in relation to the federal sentence had the result that only five years of the 13 year sentence (substantially less than half of it) was to be served concurrently with the State sentence.
Sentencing is not a mathematical exercise, and the precise approach adopted by the sentencing judge in constructing the ultimate effective State sentence does not bind this Court. Further, there is a weaker case for concurrency as between the State offending (as a whole) and the conspiracy offence, than there is as between the individual State offences, having regard to their more closely connected nature.
That said, we consider that if all the offending had been the subject of a single sentencing exercise, a greater degree of concurrency in respect of the federal sentence would have been warranted, such that a total head sentence of less than the effective head sentence of 22 years imposed by the judge would have been appropriate.
We also consider that in fixing an appropriate sentence now, the Court is not required to ignore and should, if appropriate, make an appropriate allowance for, the impact of the fragmented process by which the applicant has been charged and sentenced.
The Commonwealth Director of Public Prosecutions did not give approval for the conspiracy charge to be laid until 2018. The applicant was not charged in relation to the conspiracy offence until January 2019. He had commenced serving the State sentence in July 2017, and had spent nearly one year in custody or on home detention prior to trial.
Because the applicant was in custody or on home detention bail conditions for a good proportion of the period between his offending and the institution of the proceeding against him, he cannot point to having reorganised his life, or engaged in conduct indicative of rehabilitation, whilst at large in the community. In a case of that kind undue or significant delay can be mitigatory.[68] The remarks of the sentencing judge in the fourth passage set out earlier indicate that the judge was not satisfied that this was such a case.
[68] See the discussion by Gray J in R v C, M [2014] SASCFC 62 at [13]-[20].
In our view, consistently with the discussion by Street CJ in Todd, an offender who is in custody whilst there is a delay in the decision to proceed against him or her for separate offending may also suffer in a way that calls for some consideration in fixing the sentence later to be imposed. In the present case, the applicant instituted but decided not to pursue a conviction appeal in relation to the Western Australian offending before he was proceeded against in relation to the conspiracy charge. Even without direct evidence, it can be safely inferred that the disappointment and set back occasioned by the later proceedings will have been dispiriting. We make clear that in view of the plea of not guilty we do not consider the passage of time after the commencement of the conspiracy proceeding to weigh in the applicant’s favour.
Undertaking the exercise described in Mill v The Queen, in considering an appropriate sentence for all the offending (but having regard also to the effect on the applicant of subsequent events), and accepting that a notional sentence of 13 years imprisonment was appropriate for the conspiracy offence ‘standing alone’, we consider it appropriate that it be served concurrently with the head sentence imposed in respect of the State sentence to the extent of six years and six months, and cumulatively upon the State sentence to the extent of six years and six months. This would achieve a total effective head sentence of 20 years and six months when combined with the 14 year State head sentence.
We consider that an appropriate effective combined non-parole period would have been 14 years and six months. In relative terms, that equates to a little over 70% of the total effective head sentence.
In our view a total effective head sentence and non-parole period of this length recognises the seriousness of the underlying conduct and the need for general and specific deterrence, whilst also facilitating the rehabilitation of the applicant. It gives some, albeit quite limited, recognition to the hardship caused to the applicant by the uncertainty occasioned by the delay in the commencement of the prosecution of the conspiracy charge, bearing in mind his age and health condition.
In order to achieve an overall sentence with that effect, we will re-sentence the applicant in respect of the conspiracy charge to a term of 13 years imprisonment with a non-parole period of seven years, but direct that it be taken to have commenced on 17 January 2025.
Whilst that is a date prior to the disposition of the appeal by this Court, it post-dates the date upon which the judge determined the applicant’s sentence. Even if, in those circumstances, it is appropriate to view the sentence now to be imposed as involving ‘backdating’, the applicant was in fact remanded in custody for the conspiracy charge on 22 March 2019. In those circumstances, s 16E of the Crimes Act, in combination with s 44 of the Sentencing Act 2017 (SA), permits such a course.[69]
[69] Cf. Mercanti v The Queen (2011) 249 FLR 223; [2011] WASCA 120 at [22]-[25] (Hall J, McLure P and Buss JA agreeing). In that case the judge imposing the federal sentence directed that it commence at an earlier date and s 87 of the Sentencing Act 1995 (WA) only contemplated that this would be done where the offender had previously spent time in custody in respect of that offence ‘and for no other reason’. The offender had not in fact spent any previous time in custody in respect of the federal offences as at the sentence date.
Manifest excess
Whilst we would re-sentence the applicant on the basis just described, it cannot be said that the sentence imposed by the judge was manifestly excessive. It was not outside the range of sentences for the offending and the offender, and nor was it unreasonable or unjust in the requisite sense.
Disposition
We grant permission to appeal, allow the appeal and set aside the sentence. In its place the applicant is sentenced to a term of imprisonment of 13 years with a minimum period of imprisonment of seven years, directed to commence on 17 January 2025.