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Vincent v The Queen [2022] NSWCCA 210

The offender was sentenced following pleas of guilty to 4 counts of using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Commonwealth Criminal Code. Original sentence imposed 3 years and 7 months imprisonment. Offender appealed on grounds that the sentencing judge erred in failing to correctly apply the principle of totality and that the sentence was manifestly excessive.

Totality: No House v The King error is demonstrated. The sentencing judge, who was cognisant of the issue of totality, adopted the entirely orthodox approach of backdating the sentence to make it partly concurrent with the sentence the offender had been serving. The extent to which the sentencing judge did that was within their discretion. Offending is more accurately characterised as a series of episodes, separated by intervals during which the offender had been arrested and punished. Recidivist offending is not apt to engage the principle of totality to any great benefit in reduction of sentence. Where an offender has served a term of imprisonment for a series of crimes of a particular kind and then comes to be sentenced for another series of similar offences, committed after sentence has been passed for the first group, the principle of totality does not dictate that they are entitled to have all matters considered as one event or a unified course of conduct.

Manifest Excess: Sentencing judge found that counts 1, 5 and 10 were respectively below the mid-range, at the mid-range and just below the mid-range. Index offending was the latest manifestation of a course of conduct that was persisted by the offender notwithstanding earlier gaol sentences and was committed while serving sentences for the same behaviour. Objective gravity of each offence was exacerbated by the factor of recurrence. It was also not inappropriate for the sentencing judge to take the view that, in the circumstances of the offending, a more severe sentence than the offender’s earlier sentence for identical offending was prima facie indicated. The notional accumulation which resulted in the aggregate sentence was well within the sentencing judge’s discretion, having regard to the indicative sentences and persistent offending. Allowing for favourable findings on the offender’s remorse and rehabilitation, the aggregate sentence was not manifestly excessive.

Leave to appeal allowed. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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