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Totality Principle

1. Overview

Section 16A(2)(k) requires a sentencing court ensure that a federal offender is adequately punished for their criminal offending:

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(k) the need to ensure that the person is adequately punished for the offence

2. Operation of s 16A(2)(k)

There are similarities between the need in s 16A(2)(k) for courts to ensure that a person is ‘adequately punished’, and the requirement within s 16A(1) that courts impose a sentence of a ‘severity appropriate in all the circumstances’. In R v Salcedo [2004] NSWCCA 430, McColl JA (Levine and Hidden JJ agreeing) stated:

[T]he task of the sentencing judge is to take into account all the objective circumstances of the offence in characterising its criminality as well as such subjective circumstances as appear appropriate. The first part of the exercise is reinforced by s 16A of the Crimes Act 1914 (Cth) which required the sentencing judge to take into account “the need to ensure that the person is adequately punished for the offence” and the requirement that the sentencing judge “impose a sentence … that is of a severity appropriate in all the circumstances of the offence”: s 16A(2)(k), s 16A(1).¹

Courts have recognised that the requirement to consider adequacy of punishment under s 16A(2)(k) and the requirement that the sentence imposed is of a severity appropriate in all circumstances of the offence under s 16A(1), represents statutory recognition of the totality principle. In Hili v The Queen [2010] HCA 45, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held at [25]:

As noted in Johnson v The Queen, s 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of “totality” discussed in Mill v The Queen. Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression “of a severity appropriate in all the circumstances of the offence” used in s 16A(1), as well as some of the expressions used in s 16A(2), such as “the need to ensure that the person is adequately punished for the offence”.²

In Bui v DPP (Cth) [2012] HCA 1, the majority of the High Court held at [18]:

Section 16A applies of its own force to the sentencing of persons convicted of offences against Commonwealth laws. In Johnson v The Queen and in Hili v The Queen it was observed that, on its proper construction, s 16A accommodates the application of some common law principles of sentencing. The section has been held to accommodate principles of general deterrence, proportionality, and totality. It is able to accommodate some judicially-developed sentencing principles where such principles give relevant content to the statutory expression in s 16A(1) “of a severity appropriate in all the circumstances of the offence”, as well as expressions such as “the need to ensure that the person is adequately punished for the offence”, which appears in s 16A(2)(k) (emphasis added).³

In the federal sentencing case of R v Richard [2011] NSWSC 866, Garling J noted at [98] that s 16A(2)(k) ‘is a brief legislative reference to one of the key principles of sentencing, namely the totality principle.’

See further: Totality Principle.

2.1 Proportionality principle

Taking into account all objective circumstances to ensure an offender is ‘adequately punished’ reflects the fundamental notion of proportionality. Proportionality is considered the first limb of the totality principle.⁴

The principle of proportionality requires courts to impose sentences that are consistent with the gravity of the offence in light of relevant circumstances.⁵

In Wong v The Queen [2001] HCA 64, Gaudron, Gummow and Hayne JJ indicated that the notion of proportionality is embodied within s 16A(1).⁶

Similarly, Campbell J in Van Zwam v The Queen [2017] NSWCCA 127 indicated at [127]:

[P]roportionality for federal offences finds expression in s 16A(2)(k) by reference to “the need to ensure that the person is adequately punished for the offence”.

2.2 Relevance of penalties imposed in other jurisdictions

Penalties for the offending conduct imposed in other jurisdictions may be a relevant factor for consideration under s 16A(2)(k). Courts have recognised the need to avoid double punishment.

In the federal sentencing case of DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, the offender, a corporation, was convicted of an offence of giving effect to a cartel provision contrary to s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth).⁷

In considering the offender’s need for adequate punishment under s 16A(2)(k), the Federal Court noted at [275] that a relevant consideration was the other penalties which had been incurred in other jurisdictions:

One issue that requires consideration in that context, however, is the relevance or weight that is to be attached to the fact that NYK has been penalised in other jurisdictions in respect of conduct relating to or arising from the cartel the subject of this matter. NYK submitted that the penalties imposed overseas constituted a significant punishment in their own right, went some considerable way towards satisfying the requirements of deterrence in respect of the charged conduct, and were therefore a material consideration in determining an appropriate sentence. The Director submitted that the overseas penalties were only relevant in a “general way” and should not substantially reduce an otherwise appropriate sentence (emphasis added).

However the Court continued at [277]

The weight to be given to any extra-curial punishment depends on the particular facts and circumstances of each case. Relevant considerations include the nature and size of the administrative or other extra-curial punishment, the extent to which the penalty relates to the conduct the subject of the offence, the capacity of the offender to pay, the effect that the administrative penalty had in real terms on the offender and other questions of hardship. Each case must be considered on its own merits (emphasis added).

In considering s 16A(2)(k), the Court first took into account the possibility of double punishment as a result of the imposition of penalties in other jurisdictions. The Court held at [278]–[280]:

It is clear that some weight must be given to the overseas penalties…. There are, however, a number of reasons why the overseas penalties should not be given significant weight.

The first and most important reason is that, with the possible exception of the “Surcharge Payment Order” imposed by the Japan Fair Trade Commission, the overseas penalties were not imposed in respect of the conduct the subject of the charge in this matter. While the agreed facts in relation to the overseas penalties are fairly sparse, it would appear, or at least can be inferred, that they were imposed in respect of NYK’s collusion or anti-competitive conduct in relation to freight rates on routes other than routes to Australia. In short, the overseas jurisdictions imposed sanctions or penalties in respect of conduct that occurred in, or in relation to, or otherwise affected, those jurisdictions.

As indicated, the Japanese order is somewhat different. That is because approximately AU$20 million of the overall order related to the Oceania route, 87% of which related to the carriage of vehicles on the route from Japan to south and east Australia. It follows that there is some overlap between the conduct that led to the imposition of that part of the Japanese order, and the conduct the subject of the charge in this matter. That is a relevant consideration, because the Court should strive to avoid any element of double punishment. That said, it may be inferred that the administrative penalty imposed by the Japanese regulator was imposed having regard to Japan’s laws and public policy considerations. The Japanese regulator’s primary concerns were unlikely to relate to the impact that the conduct had on Australian related commerce or Australian consumers (emphasis added).⁸

The Court continued that the consideration of penalties imposed in other jurisdictions went to general and specific deterrence at [281]–[282]:

The second and related reason is that the sentence imposed on NYK must be sufficient to operate as a deterrence, both specific and general, in relation to cartel conduct that relates to Australia and Australia’s laws. Large multinational corporations who engage in global cartels or other anti-competitive conduct must be sent a clear and strong message that they will be punished in Australia in respect of Australian-related conduct irrespective of what penalties may have been imposed in other jurisdictions. Whatever decisions may be made globally, Australia will not tolerate anti-competitive conduct in respect of the supply of goods and services to, or relating to, Australia or Australian consumers: cf. Visa at [114].

The third reason is that, insofar as extra-curial punishment is relevant to specific deterrence, that is not a significant consideration in this matter for the reasons already given. NYK has already demonstrated that it has been deterred and has rehabilitated (emphasis added).

The final consideration of penalties imposed in other jurisdictions went to hardship. The Court noted at [283]:

The fourth and related reason is that, while the overseas penalties are very large, so too is NYK. There is no suggestion, let alone evidence, that NYK does not have the capacity to pay the fine imposed in relation to this matter in addition to the overseas administrative penalties. There is no evidence of any particular hardship arising from the overseas penalties (emphasis added).

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3. Application of 16A(2)(k)

3.1 Relevance of professional standing

Despite authority suggesting that s 16A(2)(k) involves a consideration of objective circumstances, courts sentencing federal offenders have occasionally referred to an offender’s professional circumstances when addressing the adequacy of punishment. In Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [35], the effect of conviction on the offender’s professional status as a barrister was deemed relevant when assessing the adequacy of punishment pursuant to s 16A(2)(k). 

A similar approach was adopted in Commissioner of Taxation v Doudle [2005] SASC 442, where Debelle J noted at [17] that:

It was relevant to consider whether the conviction would have had consequences for the continued registration of the respondent as a tax agent. The professional status of an offender is…relevant to the issue of adequate punishment in s 16A(2)(k) (emphasis added).

Similarly, where the offender in R v Xiao [2016] NSWSC 240 was convicted of two insider trading offences contrary to ss 1311(1) and 1043A(1)(d) of the Corporations Act 2001 (Cth), the offender’s professional standing was taken into account under s 16A(2)(k). Hall J noted the relevance of the offender’s professional standing, and prospects of future employment when considering the impact of extracurial punishment at [165]–[173]:

Section 16A(2)(k) of the Crimes Act requires attention to be given to the need for adequate punishment. In determining punishment, in some cases it is necessary to have regard to what has been referred to as “extracurial” or additional punishment.

The Crown noted that the offender will be automatically disqualified from managing an Australian corporation for a period of 5 years. This serves the function of protecting the public from dishonest officeholders.

The loss of a career and professional reputation may, in some cases, amount to extracurial punishment. The Crown noted that the offender’s abuse in this case was of his own corporate office and that it was that which permitted him to commit his crimes and that he must have appreciated that it would impact on his career and reputation in the business community.

The Crown also observed that it is by no means clear that the offender would not be able to continue his career in some capacity, particularly overseas as a foreign national. The Crown referred to the fact that he had for a period obtained employment in Hong Kong under an assumed name.

In the submissions for the offender it was noted that cases on extracurial or additional punishment do not draw a distinction on whether the offender had been the author of his own misfortune. That, it was submitted, must be a common factor in almost every case that is being considered.

It was also submitted for the offender that it is pure speculation as to whether he might be able to continue with his career in the future.

Notwithstanding the matters relied upon by the Crown, I consider that there is a very real prospect that the offender will suffer the consequences of his criminal offending to future employment in what is today a global society with digital communications in which the background reputation of persons can be readily ascertained. It is not to be assumed that reputation within the business community is confined necessarily to this country. Having said that, however, I accept the point made by the Crown in submissions having regard to the offender’s ability to obtain post-offending employment.

I consider, accordingly, that some weight should be given to the fact as to his likely disqualification from managing an Australian corporation and the real prospect that he will suffer from the loss of his career and professional reputation. Accordingly, these matters are to be taken into account. I do so and make allowance for those factors in determining the sentences to be imposed (emphasis added).

3.2 Adequacy of punishment and deterrence

Some courts have considered that the adequacy of the punishment imposed on the offender encompasses considerations of general deterrence. In R v Comber [2012] NSWSC 1502, the offender was sentenced for federal proceeds of crime offences and murder. Bellew J considered at [96]:

I accept the submission on behalf of the Crown that the offender’s conduct in the present case constitutes a serious breach of the law, and that regard must be had to the need for general deterrence.

Similarly in R v O’Brien [2011] NSWSC 1553, the Court noted that in considering the application of s 16A(2)(k) in insider trading offences, due regard must be had to the principle of general deterrence.⁹

In the insider trading offence case of R v Curtis (No 3) [2016] NSWSC 866, the Court considered the issues of general deterrence and adequacy of punishment together at [49]:

I accept, as submitted by the Crown, that the primary considerations in the present case are general deterrence and the need to impose adequate punishment. The High Court has recognised that, in the case of serious tax fraud offences, the necessary deterrent and punitive effects of the sentence must be reflected in both the head sentence and in any provision for earlier release from custody. Those remarks are of equal application to the present offence. In considering any appropriate release order, the task is to determine the period of imprisonment that justice requires the offender must serve in custody (footnotes omitted; emphasis added).

In DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, the offender, a corporation, was sentenced for cartel offences. In consideration of s 16A(2)(k), the offender submitted that the penalties imposed overseas ‘constituted a significant punishment of deterrence in respect of the charged conduct, and were therefore a material consideration in determining an appropriate sentence.’¹⁰

In the sentencing court’s consideration of the application of s 16A(2)(k), the Federal Court held at [281]:

The second and related reason is that the sentence imposed on NYK must be sufficient to operate as a deterrence, both specific and general, in relation to cartel conduct that relates to Australia and Australia’s laws. Large multinational corporations who engage in global cartels or other anti-competitive conduct must be sent a clear and strong message that they will be punished in Australia in respect of Australian-related conduct irrespective of what penalties may have been imposed in other jurisdictions. Whatever decisions may be made globally, Australia will not tolerate anti-competitive conduct in respect of the supply of goods and services to, or relating to, Australia or Australian consumers: cf. Visa at [114] (emphasis added).

The Court further considered the factor of specific deterrence at [282]:

The third reason is that, insofar as extra-curial punishment is relevant to specific deterrence, that is not a significant consideration in this matter for the reasons already given. NYK has already demonstrated that it has been deterred and has rehabilitated (emphasis added).

See further: Deterrence.

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1. See also R v Hildebrandt [2014] VSC 321, [5]; R v Emini [2011] VSC 336, [47]; R v Petroulias (No 36) [2008] NSWSC 626, [206]; R v Lam [2005] VSC 98, [50].[↩]
2. Affirmed in R v Leask [2013] WASCA 243, [78]; R v Lee [2013] WASCA 216, [24]; DPP (Cth) v Gregory [2011] VSCA 145, [49]; Antanackovic v The Queen [2015] VSCA 136, [40], [44]; DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42, [37] and Cavill v The Queen [2014] WASCA 77, [87].[↩]
3. Affirmed in ACCC v Davies (No 2) [2015] FCA 1290, [18] and R v Leask [2013] WASCA 243, [78]. See also R v Zerafa [2013] NSWCCA 222 where Beech-Jones J held at [122] that ‘the accommodation by s 16A of judge-made sentencing principles has its limits…’.[↩]
4. For commentary on proportionality, see Totality Principle 2.1 First Limb: ‘Proportionality’.[↩]
5. Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348. See also Australian Law Reform Commission Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [5.3] and Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) where Professor Freiberg notes at 239, that ‘at the federal level, the main statutory directive regarding proportionality is found in the Crimes Act 1914 (Cth) s 16A(1). There is also a reference to the need for “adequate” punishment in s 16A(2)(k).’ See further Totality Principle 2.1 First Limb: ‘Proportionality’.[↩]
6. Wong v The Queen [2001] HCA 64, [71]. See also R v Fodera [2007] NSWSC 1194, [55].[↩]
7. The Competition and Consumer Act 2010 (Cth) was amended by the Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth) and the provision renumbered, see now s 45AG(1) of the Competition and Consumer Act 2010 (Cth).[↩]
8. For further commentary on double punishment, see: Double Punishment.[↩]
9. R v O’Brien [2011] NSWSC 1553, [57].[↩]
10. DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, [275].[↩]