Morgan v The Queen

[2013] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0137

MICHAEL ROBERT MORGAN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 February 2013
DATE OF JUDGMENT	4 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 33
JUDGMENT APPEALED FROM	DPP v Morgan and Howard (Unreported, County Court of Victoria, Judge Howard, 3 October 2011)

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CRIMINAL LAW — Appeal against sentence — Totality — Appellant convicted on multiple counts of burglary, theft and drug possession committed between November 2008 and May 2009 — Appellant burgled 16 pharmacies and stole pseudoephedrine — Sentenced to five years’ imprisonment with non-parole period of three years and six months — Prior to being dealt with for these offences appellant had been extradited from South Australia after being released on parole — Previously sentenced in that State for dishonesty and driving offences committed in June-July 2009 — Sentence of four years, seven months and 17 days’ imprisonment imposed for those offences including a period of cancelled parole owing for earlier South Australian offending — Appellant’s unexpired South Australian parole not cancelled as at time sentenced for Victorian offending — Appellant in continuous custody since July 2009 — Appellant potentially to serve eight years and 11 months’ imprisonment with non-parole period of five years — Whether sentencing judge failed to take totality into account — Whether sentencing judge fell into specific error in failing to take totality into account — Whether appellant’s Victorian offending connected in time and character to South Australian offending — Whether any such connection necessary to invoke totality in the circumstances — Specific error established — Whether lesser sentence should be imposed — Lengthy and relevant criminal history — Offences committed on parole — Appeal dismissed — R v Todd [1982] 2 NSWLR 517; Mill v The Queen (1988) 166 CLR 59 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Sullivan Braham Pty Ltd
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

WEINBERG JA
PRIEST JA:

1. On 26 September 2011, the appellant, Michael Morgan, together with a co-accused, Brendan Howard, pleaded guilty in the County Court at Melbourne to a series of burglaries, thefts and drug offences. 

1. On 3 October 2011, the appellant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence imposed	Cumulation
1	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	Base
2	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
3	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
4	Theft [s 74(1) Crimes Act 1958]	10 years	9 months	15 days
5	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
6	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
7	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
8	Theft [s 74(1) Crimes Act 1958]	10 years	9 months	15 days
9	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	60 days
10	Attempted burglary [s 321P Crimes Act 1958]	5 years	12 months	20 days
11	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
12	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
13	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days

Charge. on Indictment	Offence	Maximum	Sentence imposed	Cumulation
14	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
15	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
16	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
17	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
18	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
19	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
20	Theft [s 74(1) Crimes Act 1958]	10 years	9 months	15 days
21	Theft [s 74(1) Crimes Act 1958]	10 years	9 months	15 days
22	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
23	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
24	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
25	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
26	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
27	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
28	Attempted burglary [s 321P Crimes Act 1958]	5 years	12 months	20 days
29	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
30	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days

Charge. on Indictment	Offence	Maximum	Sentence imposed	Cumulation
31	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
32	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
33	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
34	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
35	Theft [s 74(1) Crimes Act 1958]	10 years	9 months	15 days
36	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
37	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
38	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
39	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
40	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
41	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
43	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
44	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
45	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
46	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
47	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days

Charge. on Indictment	Offence	Maximum	Sentence imposed	Cumulation
48	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
49	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
50	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
51	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
52	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
53	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
54	Burglary [s 76(1) Crimes Act 1958]	10 years	2 years	30 days
55	Theft [s 74(1) Crimes Act 1958]	10 years	12 months	20 days
56	Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	10 days
Total Effective Sentence			5 years’ imprisonment
Non-Parole Period:			3 years 6 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			263 days
6AAA Statement: TES: seven years’ imprisonment NPP: five years’ imprisonment

1. The appellant now appeals, pursuant to leave, upon a single ground, namely that the sentencing judge failed to take into account, in accordance with Mill v The Queen,[1] the principle of totality. 

   [1](1988) 166 CLR 59 (’Mill’).

Circumstances of offending and relevant custodial history

1. In order to understand the way in which the appellant’s case is now put, it is necessary to set out in some detail both the circumstances surrounding his offending, and the sentences imposed for other offences, committed in South Australia, that were said, by reason of totality, to require a moderation of the sentences imposed for the Victorian offences. 

1. The specific offences that are the subject of this appeal were all committed between November 2008 and May 2009.  During that period, the appellant committed burglaries at 16 pharmacies located throughout Melbourne.  In the course of those burglaries, he stole items valued at $20,157.  The items taken were predominantly pharmaceutical items containing pseudoephedrine.  His having stolen these items gave rise to the various charges of possession. 

1. The burglaries were all committed late at night or in the early hours of the morning.  Unsurprisingly, the pharmacies were unattended at the time.  The appellant did not act alone.  He committed the majority of the burglaries with at least one unidentified person.  He committed six of the burglaries in company with the co-accused, Brendan Howard. 

1. During the relevant period, the appellant attempted to commit burglaries on a further two pharmacies.  He also stole a car, various items from another car, and the registration plates from four vehicles.  These last six thefts, when coupled with the 16 thefts of tablets from the various pharmacies, combined to make up the 22 thefts to which he pleaded guilty. 

1. Many years earlier, in September 1999, the appellant was convicted, in South Australia, of two charges of armed robbery (SA offending #1).  He was sentenced on those charges to a term of ten years and six months’ imprisonment with a non-parole period of five years and six months.  That non-parole period expired in December 2004, and the appellant was released from custody. 

1. Between March and October 2006, whilst still on parole, and whilst still in South Australia, the appellant committed a number of dishonesty and driving offences (SA offending #2).  In October 2007, he was convicted of those offences and sentenced to 14 months’ imprisonment.  However, his conviction triggered a period of three years, eight months and 16 days of cancelled parole arising from the 1999 sentence.  A non-parole period of eight months was fixed.  This meant that, in practical terms, the appellant received a total effective sentence of four years, ten months and 16 days’ imprisonment for SA offending #2. 

1. As previously noted, the offences that are the subject of this appeal were all committed between November 2008 and May 2009.  Shortly thereafter, the appellant committed a series of driving and dishonesty offences in South Australia (SA offending #3).  On 13 July 2009, he was charged in relation to those South Australian offences, and remanded in custody.  A month later, he was interviewed by Victorian police with regard to the offences that are the subject of this appeal. 

1. In September 2010, the appellant was convicted, in the Port Adelaide Magistrates’ Court, of the offences that constituted SA offending #3. The relevant dishonesty offences are recorded on a Crimtrac referral report as having been four counts of dishonestly taking property without the owner’s consent.  The Information filed with the Port Adelaide Magistrates’ Court indicates that one of these offences related to the theft of a large amount of health supplements from a commercial premises.  The driving offence is recorded as having been one of driving while disqualified. 

1. The appellant was sentenced to six months’ imprisonment for the driving offence, and was convicted and discharged without penalty on the dishonesty offences.  However, his offending triggered a further cancellation of parole relating to both SA offending #1 and SA offending #2.  In effect, this meant that, as a result of SA offending #3, he received a total effective sentence of four years, seven months and 17 days’ imprisonment.  A non-parole period of six months was fixed.  That non-

parole period meant that his minimum term had expired almost eight months before he came to be sentenced in September 2010. 

1. The following chronology of the appellant’s offending and the sentences subsequently imposed may assist in understanding the appellant’s relevant history.

Date	Offences	Sentence
September 1999 (conviction)	Two armed robberies (SA offending #1)	TES: 10 years and six months’ imprisonment NPP: Five years and six months’ imprisonment
15 March 2006 to 11 October 2006 (convicted 16 October 2007)	Various dishonesty and driving offences (SA offending #2), including non-aggravated serious criminal trespass (two counts), dishonestly taking property without owner’s consent (two counts) and driving dangerously to cause police pursuit (one count).	TES: Four years, 10 months and 16 days’ imprisonment (taking into account cancelled parole in respect of SA offending #1) NPP: Eight months
3-6 November 2008, 17 February 2009-26 May 2009	The various offences (committed in Victoria) of burglary, theft and drug possession outlined above	TES: Five years’ imprisonment NPP: Three years and six months’ imprisonment
June-July 2009 (convicted 6 September 2010)	Convicted on four counts of dishonestly taking property without owner’s consent, and one count of driving while disqualified (SA offending #3)	Convicted and discharged without penalty on the four counts of dishonestly taking property without consent.  Sentenced to six months’ imprisonment on driving count. TES: Four years, seven months and 17 days’ imprisonment (taking into account cancelled parole) NPP: Six months (commencing 13 July 2009).

1. It was not until 12 January 2011 that the appellant was granted parole in South Australia.  However, he was at once extradited to Victoria.  In other words, he has been in continuous custody since 13 July 2009. 

1. As the table set out earlier in these reasons demonstrates, the appellant received a total effective sentence of five years’ imprisonment with a non-parole period of three years and six months for the various offences that are the subject of this appeal.  Presentence detention of 263 days (that being the period between the appellant’s extradition on 12 January 2011 and the date of his sentence on 3 October 2011) was declared. 

1. The Court was informed that, as matters stand, the appellant’s earliest release date in relation to the Victorian offending is 11 July 2014.  His total effective sentence will expire on 11 January 2016. 

1. However, the matter is more complex than that.  When the appellant was extradited to Victoria, he still owed some three years, one month and 16 days’ parole in South Australia.  The Parole Board of South Australia suspended his parole on 3 October 2011, that being the date on which he was sentenced for the Victorian offences.  It follows that, in theory at least, he might be required to serve a further two years, four months and 25 days in South Australia, that being the period of unexpired parole.  It should be noted, however, that there is no clear indication as to what will happen to the appellant, as far as the South Australian authorities are concerned, once he completes his Victorian sentence.[2] 

   [2]We note that the Parole Board of South Australia wrote to the appellant’s solicitors on 16 July 2012, commenting that that the appellant, upon his release from Victoria, would be expected to return to South Australia and report to his community corrections officer within two working days of release.  This letter was included in the appeal book, without objection on the part of the Crown, although strictly speaking it ought to have been the subject of an application to adduce fresh evidence on appeal: see R v Alashkar (2007) 15 VR 65. Moreover, the letter notes: ‘pursuant to the provisions of the Parole Transfer (Orders) Act 1983, if released to parole in Victoria, he will be required to either apply to transfer that order to South Australia or if he wishes to remain interstate he must apply to transfer his existing parole order to Victoria’. 

1. It was submitted on behalf of the appellant that if he were to be granted parole in Victoria immediately upon becoming eligible, and if he were also successful in being permitted to serve his South Australian parole concurrently with his Victorian parole, his total effective sentence for SA offending #3 will expire on or about 5 January 2017.  If, however, he were not to be granted parole in Victoria immediately upon becoming eligible, and/or he were not successful in applying to serve his South Australian parole concurrently with his Victorian parole, his total effective sentence for SA offending #3 would not expire until 5 June 2018.  The Crown did not challenge the accuracy of these dates. 

1. It follows, so it is said, that depending upon what happens in the future, the total amount of time that the appellant might be required to serve in relation to both SA offending #3 and the Victorian offending will be anywhere between seven years and five months, and eight years and eleven months.  The effective non-parole period in relation to these offences will be approximately five years. 

1. It was submitted that a sentence that might, in theory, run for almost nine years must reflect a failure on the part of the sentencing judge to have given proper weight to the principle of totality.  It was further submitted that any sentence of that length would have to be viewed as excessive, or at least so great as to warrant this Court concluding that a different sentence should now be imposed.

The sentencing judge’s approach to totality

1. In order to fully grasp the appellant’s submissions, it is necessary first to set out, at some length, the sentencing judge’s treatment of totality, and his discussion of the relevant authorities.  We will summarise what his Honour said both on the plea, and in his sentencing remarks. 

1. During the course of the plea, counsel initially made the submission that:

the offences for which [the appellant] was remanded on, for which [he]  breached parole, and were ultimately disposed of without penalty, was a spate of offending that occur[red] temporarily in proximity to the matters before the court… Your Honour will see [from a summary of the offences] they are like in kind, non residential burglaries, theft of motor vehicles and all that.  Not dissimilar and close in time.[3]

[3]Plea transcript, page 49.

1. At a later stage, the sentencing judge, having had the opportunity to consider a number of the relevant authorities, returned to the matter of totality.  He referred to R v Todd[4] and raised with counsel the question whether the principle would have ‘much application’ given that the appellant had ‘not served a substantial term of imprisonment in South Australia for offences … closely related in time and character to the [Victorian] offences’.[5] 

   [4][1982] 2 NSWLR 517 (‘Todd’).

   [5]Plea transcript, page 52.

1. Counsel then indicated that he was prepared to accept his Honour’s description of his client’s previous offences as not relevantly closely related in time and character, replying ‘that’s right’.[6]

   [6]Ibid.

1. However, counsel went on to say:

Yes, well, if your Honour takes the view – and I’m not indicating that it’s incorrect – that the Mill principle will only trigger where there are offences committed similar in nature and close in time, then it’s still, in my submission, relevant that the fact that offences were committed in a different jurisdiction should not stop this court from taking into account some of the time that he has served since being initially remanded in custody in July 2009.[7]

[7]Ibid 55.

1. The sentencing judge was not convinced by that submission.  His Honour said:

where the court cited Todd, which it later approved, particularly the Chief Justice where he said, “It would be wrong, in my opinion, to disregard the practical situation that the appellant has already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences".  Now, pausing there, it doesn't seem that it's open to you to say that that's what's happened here.  Clearly, he hasn't - as you say, he was discharged without penalty on the so-called offences closely related.  But he went - isn't that right?  You're conceding that, aren't you.[8]

[8]Ibid.

1. Counsel for the appellant immediately, and seemingly without any further reflection, replied ‘yes I am’. 

1. To be fair, counsel did, once again, urge his Honour to apply something akin to the totality principle.  He spoke of the fact that some of the appellant’s offences in South Australia were ‘committed at the same time’ and ‘of a similar nature’, and invited his Honour to take that into account, ‘although the application may not be strict’.[9]  The sentencing judge indicated that he would have regard to the fact that the appellant had been waiting, under stress, for a year and a half, in South Australia, to be dealt with for his Victorian offending.  However, that was as far as he was prepared to go. 

   [9]Ibid 56.

1. In his sentencing remarks, his Honour had this to say regarding the South Australian offences:

The final mitigating circumstance concerns the 18 months you spent in custody in South Australia before your extradition early this year.  On the information to hand, your counsel conceded that you were not serving a period of imprisonment in South Australia for offences closely related in time and character to the present matters. However, South Australian records provided after the plea hearing suggest that, at least so far as the theft charges were concerned, that time served was taken into account in your favour. However, there was also a lengthy period when you were serving the parole and another sentence when these matters were pending. You were interviewed about these matters in August 2009, and charged in November of that year. Hence, it can confidently be said you were in a state of uncertain suspense as to what was going to happen to you when you came to be dealt with on the Victorian matters.  To that consideration must be added the fact that you are now being sentenced for crimes long after the committing of the offences.

Clearly it would have been better for you to have been dealt with at the same time for both the South Australian and Victorian matters, but that could not be achieved jurisdictionally.  Had that occurred, upon your release from custody in South Australia there would have been no further matters hanging over you. Accordingly, for those reasons, I am satisfied that there should be a reduction in your head and minimum sentence.[10]

[10]DPP v Morgan (Unreported, County Court of Victoria, Judge Howard, 3 October 2011) [24]-[25] (citations omitted) (‘Sentencing Remarks’).

The appellant’s submissions

1. Counsel for the appellant submitted that the sentencing judge had been required, when sentencing for these Victorian offences, to have regard to the principle of totality, but had not done so.  She submitted that the sentencing judge should have ‘stood back’ and considered the total effective sentence in the manner described in the joint judgment in Mill.[11] In other words, his Honour should have posed the question what would have been the likely total effective sentence if the appellant had committed both the South Australian offences and the Victorian offences in the one State, and been sentenced at the same time before the same judge.  

   [11]See generally Mill (1988) 166 CLR 59, 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); R v Aleksov [2003] VSCA 44, [11] (Callaway JA).

1. Counsel submitted[12] that, on its proper application, the principle of totality required the judge to fix a significantly lower head sentence for the Victorian offences than might otherwise have been appropriate.  In accordance with the normal operation of totality, it would not matter that this lower head sentence might fail to reflect adequately the seriousness of those offences.

   [12]Citing Mill (1988) 166 CLR 59, 67 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

1. It was submitted that the passages quoted above from the plea transcript, and from his Honour’s sentencing remarks, make it clear that his Honour had given little if any weight to totality.  Instead, it was said, his Honour had addressed only the consequences for the appellant of the delay occasioned by the service of the South Australian sentence.

1. Counsel submitted that this meant that the sentencing discretion had miscarried by reason of specific error.  She submitted that there were two reasons for that error.  The first was a mistaken belief on his Honour’s part that totality could not apply, in relation to interstate offending, unless that offending was of a similar nature to, and broadly contemporaneous with, the matters before the Court.[13] 

   [13]This conclusion is said to be reflected in his Honour’s sentencing remarks at [24]-[25]. 

1. The second was that, contrary to his Honour’s finding, SA offending #3 met both those requirements.  While the term of six months’ imprisonment imposed in respect of that offending resulted from driving offences only, the true position was more complex than that.  A significant component of the sentence actually served by the appellant involved breach of parole in respect of SA offending #2.  The offences committed under SA offending #2 included a series of burglaries and thefts.  In that sense, the appellant had served a term of imprisonment in South Australia, before being extradited to Victoria, that arose in part out of offending that was of a broadly similar character. 

The Crown’s submissions

1. In its written submissions, the Crown noted that Mill itself was a case that dealt with sentencing in respect of offences committed closely in time and nature across jurisdictions.  It submitted that, in the present case, the bulk of the appellant’s total sentence served in South Australia related to offences committed in 1999 and 2006.  Those offences could not be said to be closely related in time.  Accordingly, the sentencing judge had been entitled to give totality little, if any, weight. 

1. It was submitted, however, that his Honour had, nonetheless, given totality some weight, and that no specific error had been demonstrated.  That was said to be discernable from his Honour’s comment during the plea that Mill would not have ‘much application’.  This, counsel submitted, should not be equated with a statement that totality should have no application at all. 

The appellant’s six propositions

1. At the outset of the oral hearing of the appeal, counsel for the appellant helpfully summarised the issues in this appeal by outlining the six following submissions:

1.Totality applies both when a judge is sentencing an accused for multiple offences, and also where a judge is sentencing an accused for an offence where the accused is already serving another sentence...

2.Where multiple offences have been committed in one state, the principle of totality must be applied even where the offences are unconnected in time or nature.

3.Where offences have been committed in multiple states, the principle of totality must be applied even where the offences are unconnected in time or nature.  In other words, the Mill principle is applicable.

4.In the present case, the learned sentencing judge did not apply the totality principle.  This amounted to appealable error.

5.In the circumstances of this case, the appellant should not be penalised for any acquiescence by his counsel to that erroneous approach

6.Should this Court be satisfied that an error has been established, a lesser sentence is warranted in this case.

The nature and timing of SA offending #3

1. Before considering the correctness or otherwise of the appellant’s six submissions, it is appropriate to consider whether the sentencing judge did, in fact, err in holding that the South Australian offending was insufficiently connected in nature and time to the Victorian offending.  If his Honour did err in that way, and thereby gave no weight to the principle of totality, that might, of itself, establish specific error.  That would be so irrespective of whether any ‘nature and time’ requirement ever actually existed. 

1. In considering the meaning of the expression ‘closely related in time and character’ in this context, it may be useful first to set out both the facts and the reasoning in the two cases which the sentencing judge cited in support of the proposition that the sentence imposed in respect of SA offending #3 did not give rise to a need to take totality into account.  The first is Todd,[14] a decision of the New South Wales Court of Criminal Appeal. The second is Mill itself.

   [14][1982] 2 NSWLR 517.

1. In Todd, the applicant had been sentenced in May 1979 to a ten year term of imprisonment with a non-parole period of just over four years in respect of offences which he had committed in January 1974.  The relevant offences were armed robbery, assault with intent to rob and larceny of a motor vehicle.  Soon after committing those offences, the applicant and a co-offender travelled to Queensland where they committed two thefts while armed with a dangerous weapon.  In December 1974, the applicant received a sentence of eight years’ imprisonment with a non-parole period of three years in respect of the Queensland offences.

1. The applicant had not been released on parole on the Queensland sentence immediately after the expiry of that three year non-parole period.  It was not until 30 January 1979 that he was extradited to New South Wales.  In the course of passing sentence, the New South Wales sentencing judge had said:

I am not sentencing [the applicant] for things he did in Queensland. I am sentencing him for crimes committed in this State and I regard the fact of his having been in custody pursuant to sentences there imposed as only one of the factors to which I should have regard and only in so far as it may shed light upon his present state of rehabilitation.[15]

[15]Ibid 518.

1. The New South Wales Court of Criminal Appeal held that the sentencing judge had been in error in so dismissing the relevance of the Queensland sentence. 

1. Street CJ said:

The fact that the crimes were committed in Queensland operated, of course, to expose the appellant to the processes of the Queensland criminal law. This involved an inevitable deferment of the processes of the New South Wales criminal law being put into effect and carried through against him in this State. But 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. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved. Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on the one occasion. But assuming that they came before separate New South Wales judges, it would be a question for a second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes. It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character.[16]

[16]Ibid 519 (emphasis added).

1. Street CJ’s reasoning (with which Moffitt P and Nagle CJ at CL agreed) was subsequently approved by the High Court in Mill.

1. In that case, the applicant had been convicted in the Supreme Court of Queensland on one charge of armed robbery in company.  That offence had been committed on 19 January 1980.  He was sentenced in March 1988 to eight years’ imprisonment, with a recommendation that he be considered for parole after serving three years’ imprisonment.

1. Prior to committing the Queensland armed robbery, the applicant had committed another two armed robberies in Victoria, one on 8 or 9 December 1979, and the other on 5 January 1980.  He was sentenced in respect of these offences on 1 September 1980 to ten years’ imprisonment with a non-parole period of eight years.  He was extradited to Queensland upon his release on parole. 

1. The High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) noted that Todd had been approved of and applied by other intermediate courts of appeal.[17]

   [17]See, eg, R v Suckling (1983) 33 SASR 133.

1. Their Honours held:

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.[18]

[18]Mill (1988) 166 CLR 59, 66 (emphasis added).

1. Returning to the circumstances of the present case, a component of SA offending #3 involved theft at a commercial premises.  That offence was committed some time between 2 July 2009 and 5 July 2009.[19]  It appears that SA offending #3 also encompassed several thefts of motor vehicles committed between 25 June 2009 and 7 July 2009.

   [19]Information filed 14 July 2009 in the Port Adelaide Magistrates’ Court.

1. As noted earlier in these reasons for judgment, the Victorian offences all took place between November 2008 and May 2009.  The last of those offences — relating to the burglary of a pharmacy in Keilor — occurred on 26 May 2009.  Therefore, SA offending #3 began less than a month after the last of the Victorian offences.  This, no doubt, prompted defence counsel’s initial submission on the plea that SA offending #3 was ‘not dissimilar and close in time’ to the Victorian offending.

1. While the appellant was discharged without penalty on all matters arising from SA offending #3 (save for a driving offence for which he received six months’ imprisonment), a conviction was recorded on the four counts involving dishonesty.  Those counts were clearly closely related in nature (as well as time) to those the subject of the Victorian offending, involving as they did theft from commercial premises, as well as thefts of motor vehicles. 

1. In our opinion, the fact that no actual penalty had been imposed in relation to those dishonesty counts was no basis for discounting the relevance of SA offending #3 for totality purposes.  Although the appellant received only six months’ imprisonment directly arising out of the charges comprising SA offending #3, the net effect of his having committed those offences was to bring about a requirement that he serve some four years, seven months and 17 days.  This was because SA offending #3 triggered a term of that duration to be served as a result of cancelled parole in relation to SA offending #2.  It should be noted that the sentence imposed in respect of that offending had, in turn, included cancelled parole resulting from SA offending #1.  In other words, SA offending #3 produced a ‘cascading’ effect, linked back to the two previous series of South Australian offences.  Indeed, the sentencing magistrate appears to have noted, in deciding not to impose an additional term of imprisonment for the dishonesty offences, ‘time [already] spent in custody’.[20]

   [20]Notation on Crimtrac referral report.

1. For these reasons, in assessing the ‘nature’ of SA offending #3, regard must also be had to the ‘nature’ of SA offending #2.  Any failure to take that offending into account would distort the true reason why the appellant might, theoretically, be required to serve just over four and a half years’ imprisonment as a result of being sentenced for SA offending #3.  In our view, that is so regardless of the time that had elapsed since the commission of the offences that made up SA offending #2.  In effect, the cancelled parole in respect of those offences was ‘picked up’ by the sentence imposed in relation to SA offending #3.  It is that sentence in its entirety which the appellant now faces, and not just the six month component that relates solely to his driving offences in 2009.   

1. As previously noted, SA offending #1 involved two counts of armed robbery, for which the appellant received a head sentence of ten years and six months’ imprisonment with a non-parole period of five years and six months.  The offences comprising SA offending #2 included two counts of ‘non-aggravated serious criminal trespass’, two counts of ‘dishonestly take property without owner’s consent’ and various driving offences.  The material before this Court sheds little light on the precise circumstances of SA offending #2.  It is sufficient to note, however, that many of these offences involved dishonesty or burglary.

1. Contrary to the conclusion reached by the sentencing judge, and with respect, we consider that SA offending #3 was ‘closely related in time and character’ to the Victorian offences.[21] It follows that his Honour was bound, as a matter of law, to have regard to any sentence served in South Australia arising out of SA offending #3.  This would include the components of that sentence that resulted from breach of parole.

   [21]Mill (1988) 166 CLR 59, 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

1. There is, however, a difficulty not addressed in argument during the course of the appeal with the broader submission that his Honour was also required, in accordance with totality, to have regard to the various periods still ‘owing’ to the South Australian Parole Board.  That is because the parole in question was never revoked prior to the date upon which the appellant was sentenced in Victoria, and indeed has still not been revoked.  The position appears to be that the parole has merely been ‘suspended’, an event that occurred on the day of sentence in this State.   

1. Section 5(2AA)(a) of the Sentencing Act 1991 provides that a court, in sentencing an offender, must not have regard to ‘any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind’.  In R v Piacentino,[22] it was held that the effect of that section was that the principle of totality had no application in respect of an earlier sentence where what was at issue was parole that might, at some point, be revoked. 

   [22](2007) 15 VR 501 (‘Piacentino’).

1. In effect, the position discussed in Piacentino was analogous to the situation that the sentencing judge was confronted with in the present case.[23]  There was no evidence before his Honour as to what course, if any, the South Australian Parole Board might be likely to adopt in relation to the appellant’s parole.

   [23]One point of distinction, however, being that the appellant in Piacentino had re-offended while on parole, and it was that fact that meant there was a possibility of the Parole Board taking action.  In this case, the appellant’s Victorian offending, although committed while on earlier parole, occurred well before his most recent South Australian parole was granted on 12 January 2011. 

1. Accordingly, the sentencing judge was obliged, pursuant to s 5(2AA)(a) of the Sentencing Act 1991, to disregard the possibility that parole might be cancelled or revoked.  That possibility remained wholly speculative, and as far as this Court is concerned, continues to be so. 

1. Nonetheless, the appellant had actually served a period of some 18 months’ imprisonment in South Australia.  The sentencing judge was obliged to take that fact into account when sentencing him.  There was no element of speculation or conjecture regarding that term of imprisonment — it had been served.

1. As will become apparent, we consider that his Honour did not take that period of 18 months into account as part of totality.  For that reason, we are satisfied that the appellant has established specific error, and that the sentencing discretion is therefore re-opened.  Of course, it does not necessarily follow that a different and lesser sentence should be imposed, a matter to which we shall shortly return. 

The appellant’s first two submissions

1. We have concluded that SA offending #3 was relevantly of ‘the same nature and committed at about the same time’ as the Victorian offending and that totality was therefore to be taken into account.  Accordingly, it is not strictly necessary to consider the appellant’s broader submission that these conditions need not, as a matter of law, be met.  Nevertheless, out of deference to the arguments that were put, we consider that it is appropriate to say something further about the state of the law in this area.  

1. The Crown did not, on the hearing of this appeal, dispute the correctness of the appellant’s first two submissions. 

1. The submission that totality applies both when a judge is sentencing an accused for multiple offences, and also where a judge is sentencing an accused for an offence where the accused is already serving another sentence, is undoubtedly correct.  That much is clear from a reading of McHugh J’s comments in Postiglione v The Queen[24] when, summarising the effect of New South Wales authority, his Honour said:

[i]n order to comply with the totality principle, 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.[25]

[24](1997) 189 CLR 295 (‘Postiglione’).

[25]Ibid 308.

1. As regards the second submission,[26] counsel for the appellant argued that there is nothing in Postiglione which requires that the offences for which the offender is being sentenced, and any offences for which he has previously been sentenced, be of a similar character, and connected in time.  That submission, too, is undoubtedly correct, at least in relation to offences committed within the one jurisdiction. 

   [26]Namely, that where multiple offences have been committed in one state, totality must be applied even where the offences are unconnected in time and nature.

1. In McCartney v The Queen,[27] Maxwell P, Neave JA and Coghlan AJA observed that, while the totality principle originally required a sentencing judge to take into account sentences for ‘other offences committed at or about the same time’[28] as those for which the prisoner fell to be sentenced, the principle was no longer ‘confined’ in that way, following Postiglione.[29]

   [27][2012] VSCA 268 (‘McCartney’).

   [28]Ibid [92]-[94].

   [29]See also the discussion of the relevant authorities in Contin v The Queen [2012] VSCA 247.

1. The same can be said about the requirement, stipulated in some of the older cases, that the relevant offences be connected in nature.  There is nothing in Postiglione to support any such limitation, and no reason in principle which could justify it. 

1. Indeed, there is direct support for counsel’s second submission in the judgment of Hunt CJ at CL in R v Close.[30]  There, his Honour said:  

[The] principle [of totality] is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences.[31]

[30](1992) 31 NSWLR 743.

[31]Ibid 748 (emphasis added). See also R v Harrison (1990) 48 A Crim R 197, 198-9 (Hunt CJ at CL).

1. To similar effect, the Western Australian Court of Criminal Appeal in Vlek v The Queen[32] observed that:

[T]here is now a long line of authority to the effect that the totality principle must be applied, as best the court can, not only to sentences imposed in the one court for offences committed as part of a connected and roughly contemporaneous series of offences (about which the Court will know all that needs to be known), but also wherever a prisoner is being sentenced for an offence whilst he is still serving a sentence for some other offence about which the Court might not know very much.[33]

[32][1999] WASCA 1038.

[33](Anderson J, with whom Pidgeon and Ipp JJ agreed).  This passage was quoted and seemingly endorsed in Regina v The Queen (2004) 149 A Crim R 583, 589-90 (Martin CJ).

1. The appellant’s first two submissions may therefore be accepted as correct for the purposes of this appeal.

The appellant’s third submission

1. Counsel for the appellant’s third submission is perhaps more problematic.  She submitted that, contrary to the sentencing judge’s view, there was no requirement, as a matter of law, that SA offending #3 had to be ‘closely related in time and character’ if regard were to be had to that offending by way of totality.  That is to say that the intercession of state boundaries did not materially alter the legal position from that which applied where the earlier sentence had been imposed for offences that were committed in the same jurisdiction. 

1. It should be noted that in neither Todd nor Mill were the earlier offences that were said to be relevant on the basis of totality in any way disconnected in time and nature from the offences that were the subject of the later sentence.  On one view of Todd, the fact that the offences there under consideration were so related was merely an additional reason for giving weight to totality, rather than a prerequisite for the application of the principle itself.[34] The same is true of Mill. 

   [34]See generally Contin v The Queen [2012] VSCA 247.

1. There is, however, a body of authority, at least in this Court, that holds that totality has no application, in the context of interstate or overseas offending, unless the earlier sentence was imposed for offences that were of the same nature and committed at about the same time. 

1. In R v Frugtniet,[35] the applicant had been convicted in the County Court on one count of conspiring to make false documents and one count of conspiring to use false documents, and sentenced to five and a half years’ imprisonment with a non-parole period of three and a half years.  He had also been convicted in New South Wales on five counts each of making and using a false instrument, and sentenced to two years’ imprisonment with a non-parole period of 18 months.  Those New South Wales offences were committed immediately before the first overt act of the Victorian offences.

   [35][1999] 2 VR 297 (‘Frugtniet’).

1. One ground on the application for leave to appeal asserted that the sentencing judge had failed properly to apply the Mill principle in relation to the New South Wales sentence. 

1. In dismissing the application for leave to appeal, Brooking, Phillips and Buchanan JJA said:

In our opinion the principle of totality exemplified by Mill v R. is satisfied if the head sentence properly reflects the fact that the applicant has been previously sentenced in another State in respect of an offence of the same nature and committed at about the same time, and a minimum term is set which in all the circumstances is appropriate to that head sentence.[36]

[36]Ibid 326 (emphasis added).

1. To the same effect is the judgment of this Court in R v Mann.[37]  There, Byrne AJA (with whom Buchanan and Vincent JJA agreed), after citing Mill, observed that:

The totality principle requires a judge imposing sentences upon an offender for a number of offences to review the aggregate sentence to determine whether this is just and appropriate. Where the sentences in respect of which this principle is said to apply are imposed by courts in different States, the principle has application only where the offences are closely related in time and character.[38]

[37][2005] VSCA 141 (‘Mann’).

[38]Ibid [7].

1. Another case which supports this approach (although dealing with sentences imposed with respect to international offending, rather than interstate offending) is Tsang v DPP (Cth).[39]  There, Nettle and Neave JJA and Sifris AJA said that:

In our view, Mill is distinguishable from the circumstances of this case. Unlike the situation in Mill, the offences for which the applicant was sentenced in Canada were not drug offences. Nor did they occur at the same time as the importation and attempted drug trafficking offences which occurred in Australia. For that reason, we do not consider that her Honour was required to take account of the period served in relation to the Canadian offences.[40]

[39](2011) 255 FLR 41 (‘Tsang’).

[40]Ibid 79.

1. It might be said, with respect, that the matter was not explored at length in Mann, and was not significant in the end result in Frugtniet (the matters there being connected in nature and contemporaneous in any event).  Further, of those three cases, only Mann dealt with the application of totality in respect of time owed to an interstate parole board.  However, be that as it may, Tsang at least stands as authority for the proposition which the sentencing judge in this case embraced, though his Honour did not refer to it, or indeed to Frugtniet or Mann.

1. There is a line of authority that goes directly against these three cases. 

1. For example, in Regina v The Queen,[41] the Northern Territory Court of Criminal Appeal held that the Mill principle applied to multi-jurisdictional offences disconnected in time.  In that case, the appellant had been sentenced to five years’ imprisonment for cultivating a commercial quantity of cannabis in the Northern Territory.  He had a long history of prior offending, and had been extradited to the Northern Territory from New South Wales.  The appellant’s relevant criminal and custodial history commenced in New South Wales in 1991 when he began serving a total term of five years’ imprisonment for offences including cultivating and supplying a dangerous drug.  At the end of 1993, the appellant escaped from custody after having served only two years and eight months of his sentence.

   [41](2004) 149 A Crim R 583 (‘Regina’).

1. Approximately six months after his escape, the appellant committed an offence of cultivating a commercial quantity of a dangerous drug in the Northern Territory, for which he received a sentence of two years’ imprisonment.  Notwithstanding a New South Wales warrant for his arrest, he was not extradited to New South Wales immediately upon the expiry of that sentence.  Instead, he commenced the cultivation offence which was the subject of the Northern Territory appeal.  After then being arrested and sentenced to 30 days’ imprisonment in Queensland for property offences, he was extradited to New South Wales where he was liable to serve the balance of his initial sentence, namely two years and four months.  He was also committed for trial on the escape charge, for which he was sentenced to two years’ imprisonment (to be served cumulatively upon the unserved balance of his initial sentence).  He was extradited to the Northern Territory after serving a total of four years and three months’ imprisonment in New South Wales.

1. Martin CJ acknowledged that the facts of the case differed from those in Todd and Mill as the appellant’s criminal conduct was committed over a comparatively lengthy period of time.  His Honour cited the passages in Postiglione and Vlek to which we have already referred in support of the conclusion that totality was a relevant factor notwithstanding the lack of temporal proximity.  He added:

The applicability of the totality principle can be tested by assuming that all the offending and the escape occurred in New South Wales or the Northern Territory. In either locality, when imposing sentence for the offending under consideration the totality principle would apply. First, the court would be required to have regard to the total criminality of the offender’s criminal conduct. Secondly, if the court was sentencing both for the escape and the crime under consideration, the court would be obliged to take into account the total period to be served by also having regard to the balance of two years and four months remaining to be served of the sentences interrupted by the escape. Alternatively, if the appellant was already serving or had completed serving the balance of two years and four months and the sentence for the escape, the court would be required to have regard to the total period to be served and to view that period against the total criminal conduct for which sentences had been and were being imposed.

The application of the totality principle is made more difficult by the appellant’s escape from lawful custody. As a consequence of that escape, the continuous period of custody to which regard must be had includes approximately half of the sentences for the New South Wales drug and breaking and entering offences. The fact that the period relates only to approximately half of those sentences severs the direct relationship between the criminality of the conduct for which the sentences were imposed and the balance being served which is part of the total period of custody to which the court must have regard. Notwithstanding that difficulty, however, the court must do its best to apply the principle in a practical and effective manner.[42]

[42]Ibid 590.

1. There is also at least one decision of this Court which is difficult to reconcile with Frugtniet, Mann and Tsang.  In Morgan v The Queen,[43] the appellant had received a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and six months on one count of aggravated burglary, one count of robbery (whilst knowing that his co-offender had an offensive weapon) and one count of recklessly causing injury.  These offences were committed on 19 August 2006.  At the time of sentence, the appellant was subject to an outstanding New South Wales sentence.  He had 28 months’ imprisonment owing in respect of offences committed in 1997.  He had been sentenced to six years’ imprisonment with an additional three years to be served on parole for armed robbery and escaping from custody.  He had been released on parole in 2002, but that parole had been revoked for failure to meet conditions of parole.  His extradition to New South Wales had been approved by the time of the hearing of the appeal.  No further information as to the appellant’s New South Wales offending had been provided to the sentencing judge. 

   [43][2010] VSCA 248 (‘Morgan’).

1. It was conceded by the prosecutor on the plea, and accepted by the sentencing judge, that totality had to be applied ‘generally’.  T Forrest AJA (with whom Nettle and Harper JJA agreed) held that the trial judge had clearly moderated the sentence having regard to totality, and that no error was disclosed by her Honour having done so.[44]  Although the case did not deal with Mill at length, it appears that totality was regarded as a relevant sentencing consideration despite the lengthy period between the New South Wales offending and the Victorian offending.

[44]Ibid [10].

1. Accordingly, at least where jurisdictional boundaries have interceded, there appears to be conflicting authority as to whether totality is applicable if the offences are not ‘of the same nature and committed at about the same time’.[45]

   [45]Frugtniet [1999] 2 VR 297, 326 (Brooking, Phillips and Buchanan JJA).

1. For our part, it seems difficult to see why the fact that a series of prior offences were committed in some other jurisdiction should have any bearing upon whether totality should be taken into account. If, as the authorities make clear, the older requirements of nature and time no longer apply in relation to offences committed within the one jurisdiction, why should a different rule apply when sentencing in relation to offences committed in two separate jurisdictions? We are continually told by the High Court that there is but one common law of Australia,[46] and that there should be a harmonious application of that law. The principle of totality is but an aspect of the common law. It is odd that the limitation upon totality to which the sentencing judge referred in this case seems to have been adopted primarily in this State, and not elsewhere.[47]

   [46]See, eg, Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

   [47]Cf Regina (2004) 149 A Crim R 583.

1. As Moffitt P said in Todd:

The criminality and the other elements which go to determine sentences do not depend upon which side of the border some of the offences are committed.[48]

[48][1982] 2 NSWLR 517, 521.

1. In our respectful opinion, there is no justification for imposing any such limitation upon the application of this principle.  We regard the reasoning in Regina as compelling, and the result reached in Morgan as correct.  Left to our own devices, we would follow those cases in preference to the narrower approach seemingly taken in Frugtniet, Mann and Tsang. 

1. In our opinion, there is nothing in Mill to the contrary.  On a close reading of that case, it is apparent that the reference to the earlier sentence being one ‘imposed … in respect of an offence of the same nature and committed at about the same time’ was, in fact, nothing more than a reason for giving extra weight to totality in the particular circumstances.  It was not expressed as a limiting factor on the invocation of totality.  It was not a sine qua non for the application of the principle.[49]  Plainly, where there is a significant disjunct in time or nature, totality may be given less weight, but it always remains relevant. 

   [49]The passage from D A Thomas’ Principles of Sentencing (2^nd ed, Heinemann, 1979) quoted and relied upon by the High Court in Mill notably does not include any reference to a ‘contemporaneity’ or ‘nature’ requirement.

1. To illustrate the correctness of this view, it is worth considering the recent decision of the Queensland Court of Appeal in R v Pollock.[50] There, the applicant had killed his father in 2004.  He was charged with murder, and convicted of that offence.  He was sentenced to life imprisonment.  He was also sentenced to two years’ imprisonment in respect of an armed robbery committed, when he was only 17, in 1999.  That sentence of two years’ imprisonment was to be served, of course, concurrently with the sentence of life imprisonment imposed for the murder. 

   [50][2012] QCA 231. Special leave to appeal was recently refused by the High Court, stating that the appellant had not ‘demonstrated any error of principle’ which would warrant the grant of leave: Pollock v The Queen [2013] HCA Trans 21 (15 February 2013).

1. On appeal, the conviction for murder was quashed and a new trial ordered.  In 2012 he was acquitted of murder and was convicted (on his plea) of manslaughter.  He was sentenced to ten years’ imprisonment for that offence. Under the relevant Queensland legislation, he was obliged to serve 80% of that term of imprisonment before being eligible for parole. 

1. Counsel submitted that the two year term imposed for the armed robbery was understood to be of little practical effect.  It would necessarily have had to be served concurrently with the life sentence for murder.  However, by the time the applicant came to be sentenced for manslaughter,  he had already served the whole of the term imposed for the robbery.  This meant that he was effectively being required to serve a sentence of the order of 12 years’ imprisonment for the two offences combined. 

That was said to be manifestly excessive as it failed to give effect to the principle of totality. 

1. Muir JA (with whom White JA and Philippides J agreed) referred to the following passage from D A Thomas’ Principles of Sentencing[51] which had been cited with approval by the High Court in Mill.[52]  That passage is in the following terms:

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.

[51](2^nd ed, Heinemann, 1979) 56-7.

[52]Mill (1988) 166 CLR 59, 63.

1. In refusing leave to appeal, Muir JA went on to say that the principle of totality did not:

… suggest … that there was any inflexible rule which required the sentencing judge to adjust the sentence to be imposed having regard to the time served for an entirely different offence, as if the applicant had been sentenced for both offences at the same time.  Nevertheless, the sentencing judge, as was appropriate, recognised the relevance of the totality principle and took it into account.  He observed that the sentence of 10 years’ imprisonment he was proposing ‘makes sufficient allowance for the totality principle in the circumstances of this case’.[53]

[53]R v Pollock [2012] QCA 231, [19].

1. In effect, the Court held that, given the particular circumstances of this case, the sentencing judge had not been required, in applying Mill, to make any greater adjustment for totality than he had.  That was because of the lengthy period that had passed from the commission of the armed robbery, until the killing of his father, as well as the difference in nature between these offences.  Nevertheless, it is important to note that the Court considered that the sentencing judge had been correct to take totality into account, even in these circumstances.  It follows that, at least so far as Queensland is concerned, there is no rule to the effect that totality is to be ignored in the absence of contemporaneity and similarity of offending.  Basically, these are just matters of weight.

1. It may also be useful to refer to an example of additional weight having been given to totality where there was contemporaneity and a connection in nature between sets of offending (albeit a rejection of any suggestion that these factors were preconditions to the operation of totality). 

1. In R v Harrison,[54] the appellant had pleaded guilty to two armed robberies, one committed in 1985 and the other in 1987.  He was sentenced on 6 September 1989 to six years’ imprisonment on each charge, to be served concurrently.  On 8 July 1988, he had been sentenced in Queensland on multiple charges including six of armed robbery.  He received a total effective sentence of approximately 12 years’ imprisonment in respect of that offending.  No detail of those offences was before the judge who imposed the New South Wales sentences, although it was agreed between the parties, erroneously, that all Queensland armed robberies occurred at or around the time of the second New South Wales armed robbery.

   [54](1990) 48 A Crim R 197 (‘Harrison’).

1. In setting out the relevant principles, Hunt CJ at CL said:

It [totality] must be applied wherever a prisoner is being sentenced for an offence whilst he is still serving a sentence for some other offence – whether committed roughly contemporaneously or at widely different times.[55]

[55]Ibid 198-99.

1. In that case, the sentencing judge had held that little, if anything, should be added to the 12 years the appellant was obliged to serve owing to the Queensland sentence on account of the second New South Wales armed robbery.  The first armed

robbery, however, was said to warrant a head sentence of six years because ‘it was not part of the same sequence of offences as had occurred in Queensland’.[56] 

[56]Ibid 200.

1. In actuality, however, the agreed factual basis before the New South Wales sentencing judge, namely that the Queensland armed robberies had occurred in a cluster around the time of the second New South Wales armed robbery, was incorrect.  The Queensland armed robberies had in fact occurred over the period 1984 to 1987.  Hunt CJ at CL said:

Applying the judge’s own reasoning in relation to the second … armed robbery, to the total situation where all of the bank robberies were part and parcel of the one connected and roughly contemporaneous series of offences, I would have thought that an appropriate head sentence was 16 years rather than 18 years’.[57]

[57]Ibid 201.

1. On this analysis, it appears that his Honour’s reference to a ‘connected and roughly contemporaneous series of offences’, having been discounted as a prerequisite for the application of the totality principle earlier in his Honour’s judgment, functioned as a reason to accord greater weight to the principle of totality, rather than as a precondition of its application.

1. Harrison was one of the cases McHugh J cited, with apparent approval, in Postiglione.  His Honour said: 

Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, 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.[58]

[58](1997) 189 CLR 295, 308 (citations omitted).

1. Before leaving the matter, it may be useful to distinguish between two categories of case in which totality may need to be taken into account.  The first category involves those cases which call for the application of Mill in its purest sense.  In such cases, the sentencing judge is required to pose the hypothetical question: what sentence would have been imposed had the offender been dealt with at the one time for two or more sets of offending? In such cases, it must at least have been notionally possible for the two or more sets of offending to have been dealt with at once.  In other words, it must be meaningful, and appropriate, to ask the hypothetical question.  That, as we have suggested, does not depend upon the two or more sets of offending being closely connected in time and character.  There is no reason why the fact that offences are disconnected in time and nature would necessarily prevent them from being dealt with, notionally, at the same sentencing hearing.

1. The second category involves the application of the principles set out by this Court in McCartney, which had been worked out, at an earlier stage, through a series of decisions including Piacentino, R v Hunter[59] and DPP v Dickson.[60]  In cases of this kind, the offender has, by engaging in the offending for which he is to be sentenced, breached parole imposed in respect of earlier offending.  The offender is serving (or may be required to serve) cancelled parole.  In such cases, it is hardly meaningful to ask the hypothetical question posed in the first category.  Although regard must still be had to the fact that the offender has been in continuous custody for some period, prior to being sentenced, the principle of totality cannot operate in precisely the same way as it does under Mill.  That is because there has been intervening conduct on the part of the offender which disconnects the present offending from the past, and which itself constitutes an aggravating factor in assessing the gravity of that later offending.  For that reason alone, the hypothetical question posed in Mill may be thought to be inappropriate in such a case. 

   [59](2006) 14 VR 336.

   [60][2011] VSCA 222.

1. Therefore, and with the qualification that factors of nature and time may bear significantly upon the weight to be given to totality, we would accept counsel’s third submission that they do not operate inflexibly, as preconditions to the operation of that principle.  To the extent that several earlier decisions of this Court might be thought to have treated Mill as authority for a somewhat narrower, and more rigid, view, these decisions should be regarded with caution. 

1. We recognise, of course, that our observations regarding this matter are nothing more than dicta.  An authoritative determination of the point will have to await another day. 

The appellant’s fourth submission[61]

[61]Namely, that the sentencing judge failed to apply totality, and that this amounted to specific error.

1. It appears, on our reading of the plea transcript, and his Honour’s sentencing remarks, that the appellant was sentenced without regard to the principle of totality.  It is true that the sentencing judge stated expressly that there would be a reduction in the head sentence and non-parole period by reason of the appellant having had the Victorian matters hanging over his head while imprisoned in South Australia, and plainly his Honour acted correctly in treating that as a mitigating factor.  It is equally true, however, that a reduction in sentence based solely upon the strain of having a matter hanging over one’s head is not, in itself, an application of totality.

1. The sentencing judge did not, in his sentencing remarks, ignore the question of totality.  However, on a fair reading of those remarks, we are satisfied that he considered that, on the authorities upon which he relied, totality had no role to play.   While his Honour did include a citation to Mill in his sentencing remarks,[62] he did so in the context of stating that had the appellant been dealt with at the same time for the Victorian offences and SA offending #3, there would have been ‘no further matters hanging over [him]’ upon his release from custody.  In our opinion, that citation, when considered in its immediate context, and together with the discussion on the plea, does not suggest that the sentencing judge properly took totality into account. 

[62]At [25].

1. We reject the Crown’s submission advanced during the course of the appeal that we should find that his Honour had regard to the principle of totality, and gave it appropriate weight.  To that extent, we accept the appellant’s fourth submission.

The appellant’s fifth submission[63]

[63]Namely, that the appellant should not be penalised for counsel’s acquiescence in the approach taken by the sentencing judge as regards totality.

1. We would not, in the particular circumstances of this case, treat counsel’s failure to correct his Honour, or to press strongly the argument in favour of totality, as fatal to this appeal.  Our impression from reading the transcript is that counsel was somewhat taken by surprise by his Honour’s reference to Todd, with which, unsurprisingly, he seemed not to be familiar.  In any event, Todd is itself a difficult case in an area that is replete with complexity, and requires the most careful consideration. 

1. Further, the Crown did not suggest that defence counsel’s acquiescence in the trial judge’s remarks on the plea should now disentitle the appellant from asserting that the trial judge wrongly failed to take totality into account. 

The appellant’s sixth submission[64]

[64]Namely, that specific error having been established, a different (and lesser) sentence should now be imposed.

1. It is no part of the appellant’s case that either the head sentence of five years, or the non-parole period of three years and six months, was manifestly excessive.  Rather, the appellant contends that, specific error having been established, this Court should now conclude that a different sentence should be imposed.[65]  

   [65]Criminal Procedure Act 2009 s 281(1).

1. As previously noted, the appellant has been in custody since 13 July 2009.  It is theoretically possible, though unlikely,[66] that he may be required to serve a total period of almost nine years’ imprisonment when one combines the sentences imposed in this State, and the time theoretically owed to the South Australian Parole Board. 

   [66]Particularly having regard to the fact that the Victorian offences were, of course, committed before the appellant’s release on South Australian parole on 12 January 2011. It is interesting to note that the letter from the South Australia Parole Board to the appellant’s solicitors, referred to above n 2, does not suggest that the appellant will actually have to serve any period of parole in custody. Section 74A of the Correctional Services Act 1982 (SA), under which the appellant’s parole was suspended, states that ‘where a person who has been released on parole is sentenced to imprisonment for an offence committed before release on parole… the parole is suspended for the duration of the imprisonment actually served … in pursuance of the subsequent sentence’. That section also provides that on release from prison ‘the person will continue on parole in respect of the sentence that was first imposed for the balance of the period of parole remaining as at the date of the commencement of the subsequent sentence’.

1. In Piacentino, Eames JA held that the effect of s 5(2AA)(a) of the Sentencing Act 1991, to which we have already referred, was to

prevent … the operation of the totality principle where the Parole Board has not revoked parole at the time of sentencing for the breach offences. … [H]owever, the totality principle can be applied in cases where the offender is serving his parole sentence at the time of his later sentence.[67]

[67](2007) 15 VR 510, 515.

1. His Honour added that

[Section] 5(2AA) speaks prospectively as to executive action and should be so confined.  The sentencing judge in taking the period being served as the whole of the balance of the sentence would not be speculating on the possibility of that sentence being affected by future executive action.  The judge would have no regard at all to the possibility that the period of imprisonment for the parole breach would be affected by future executive action.[68] 

[68]Ibid 520 (emphasis added).

1. We can see no reason why that statement of principle should be confined to the possibility of executive action within one jurisdiction, rather than applying as well to the possibility of executive action within a different jurisdiction.

1. For that reason, we do not speculate as to whether any further action will be taken by the South Australian authorities.  Absent any such speculation, what is certain is that the appellant did serve a period of approximately 18 months’ imprisonment in South Australia arising out of SA offending #3.  As explained earlier, that was comprised of the six months’ imprisonment imposed in respect of SA offending #3, together with approximately 12 months of reclaimed parole in respect of SA offending #2. 

1. We accept that the total effective sentence of five years’ imprisonment imposed by his Honour, if coupled with the 18 months previously served in South Australia,[69] might be viewed by some as ‘stern’.  However, to approach the matter in that way may be somewhat misleading.  Certainly, none of the offences that comprised SA offending #3 were of any great seriousness.  It must be remembered, however, that the commission of those offences triggered the cancellation of parole for a series of earlier offences, some of which were of considerable gravity.  It would be artificial, and quite wrong in our view, to ignore the seriousness of those earlier offences when assessing what weight, if any, should be accorded to totality. 

   [69]With the result that the appellant’s effective non-parole period is one of approximately five years (i.e. from 13 July 2009 until 11 July 2014).

1. A sentence of five years’ imprisonment for these offences, even when coupled with the 18 months previously served, seems to us to have been entirely merited.  The appellant has a bad criminal record.  His convictions go back a number of years and include some very serious offences.  We note that he has also breached parole on a number of occasions.[70] 

   [70]In Howard v The Queen [2012] VSCA 83, [9] (concerning an appeal by the appellant’s co-offender), Maxwell P noted, in considering a parity point, that the fact that the present appellant committed the Victorian offences in breach of parole aggravated the seriousness of his offending.

1. In the appellant’s favour, the sentencing judge found that there were a number of mitigating circumstances present.  He noted, for example, that the appellant had a dysfunctional family history, and referred to the evidence of a psychologist whose opinion was that the appellant presented with symptoms

   
   

   suggestive of a dysthymic mood disorder.[71]  Moreover, he had pleaded guilty at the earliest opportunity, and displayed regret (and perhaps even remorse). He had also demonstrated ‘promising rehabilitative tendencies’[72] while in custody. 

   [71]In plain English, this means that the appellant was considered to suffer from a form of chronic depression, but falling short of a major depressive disorder.  See, eg, the explanation of the condition in R v Sok [2012] VSC 229, [12] (Beach J).

   [72]Sentencing Remarks [23].

1. In addition, the sentencing judge found that, at the time of his offending, the appellant was suffering from a ‘serious addiction’ to heroin that was costing him close to $2,000 a day.  He said that while this was not a mitigating circumstance, it offered some explanation for the appellant’s crimes.

1. In the end, a judgment must be made as to whether, having regard to totality, a different and lesser sentence should now be imposed.  As we have indicated, the sentence of five years with a non-parole period of three years and six months was appropriate.  That is so even if, as we have concluded, the sentencing judge ought to have had specific regard to the principle of totality. 

1. The appellant committed a series of burglaries, over a lengthy period, breaking into pharmacies in order to steal pseudoephedrine.  It cannot be ignored that his purpose in doing so was to procure precursor drugs which must have been understood to be intended to be used by someone, even if not the appellant himself, in the manufacture of illicit drugs.  Conduct of that kind must be discouraged in the strongest of terms.  Both general and specific deterrence were and are important sentencing considerations for offences of this kind.  A substantial term of imprisonment was warranted.  When one has regard to the additional criminality associated with SA offending #3 (as well as SA offending #2), it cannot be said that the principle of totality requires any lesser sentence than that imposed by his Honour. 

1. For these reasons, we would dismiss the appeal.

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