Thomas v The Queen

This matter concerned an appeal against sentence brought by the appellant, Thomas, against the Crown. The appellant had been convicted of two counts of sexual assault. The dispute centred on the manner in which the sentences for each of the four counts were cumulated, resulting in a total sentence that the appellant argued was not appropriate or proportionate to his criminal conduct. The appeal was heard by Grant CJ, Southwood and Riley JJ.

The legal issues before the Court were whether the sentencing judge had erred in the cumulation of the sentences imposed, and whether the total sentence was proportionate to the gravity and totality of the appellant's criminal conduct. The Court was required to consider the principle of totality in sentencing and the appropriate application of concurrency and cumulation of sentences, particularly in light of the appellant's individual offences and his subjective circumstances.

The Court reasoned that the sentencing judge had failed to give adequate consideration to the principle of totality and had only given limited attention to the extent to which the four individual sentences should be served concurrently or consecutively. While acknowledging the sentencing judge's concern for community protection and the appellant's risk of reoffending, the Court noted that the individual crimes did not possess the attributes of the most serious sexual offending. The Court applied the principles established in *Carroll v The Queen*, which state that sentences should be proportionate to the criminality of each case and that the total sentence must reflect the totality of the criminal conduct. The Court found that the cumulation of sentences in this instance was not justified.

The appeal was allowed, and the appellant was resentenced.