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Totality Principle

Totality Principle

The content on this page was last reviewed on 18 September 2023.

Related Links:

One Transaction Rule

Multiple or Continuing Offences

Double Punishment

1. Overview

Totality is a long-standing common law principle which requires that the sentence or sentences imposed in respect of multiple instances of offending not be ‘incommensurate with the gravity of the whole of [the offender’s] proven criminal conduct or with [their] due deserts’: Mill v The Queen [1988] HCA 70, [9].1

In Johnson v The Queen [2004] HCA 15, Gummow, Callinan and Heydon JJ, citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56–57, accepted at [18] that when:2

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 to the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.

The principle has also been justified as promoting desirable sentencing outcomes. In Roffey v Western Australia [2007] WASCA 246, McLure JA stated at [26] that:

A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. So too there may be assumed to be a lesser demand for personal deterrence. [Citations omitted]

Section 16B of the Crimes Act 1914 (Cth) gives statutory effect to the common law principle of totality.3 Section 16B provides:

In sentencing a person convicted of a federal offence, a court must have regard to:

  • any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and
  • any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory.

Part IB of the Crimes Act 1914 (Cth) also requires consideration of totality through s 16A(2)(c) (course of conduct), s 19AD (persons already subject to a non-parole period), and 19AE (persons already subject to a recognizance release order).

2. Aspects of Totality

The totality principle is often described as being comprised of two primary aspects: ensuring proportionality between the offender’s overall level of criminality and the sentence imposed, and limiting the imposition of ‘crushing’ sentences. A frequently cited description of the principle is that of McLure JA in Roffey v Western Australia [2007] WASCA 246 at [24]–[26]:

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.

The second limb is that the court should not impose a ‘crushing’ sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. [Citations omitted]

McLure JA’s description has been cited in a number of federal sentencing cases: see El Rakhawy v The Queen [2011] WASCA 209, [68]–[69]; Adams v Western Australia [2014] WASCA 191, [135]; Nguyen v Comptroller-General of Customs [2017] WASC 341, [37].

In ZA v The Queen [2017] NSWCCA 132, the Court held that, although the West Australian authorities had sometimes adopted the language of separate ‘limbs’ of the totality principle, the Court of Appeal of Western Australia should not be understood as requiring a separate process of identification of the separate limbs of totality as necessary elements of every sentencing judgment: see further below 2.2 ‘Crushing’ Sentence.

Totality is also often described as encompassing the One Transaction Rule and the rule against Double Punishment: DPP (Cth) v Afiouny [2014] NSWCCA 176, [36]–[37]. However, it is better viewed as a distinct principle merely related to those rules: ACCC v Employsure Pty Ltd [2023] FCAFC 5, [52].

2.1 Proportionality

The totality principle incorporates the principle of proportionality. In El Rakhawy v The Queen [2011] WASCA 209, Hall J (McLure P and Buss JA agreeing) summarised the principle at [72]:

The totality principle will operate to reduce the total effective sentence where accumulation of sentences is otherwise appropriate but would produce a total sentence which is disproportionate to the total criminal conduct.

The centrality of the proportionality assessment to the sentencing exercise was emphasised by Gageler, Nettle and Gordon JJ in Nguyen v The Queen [2016] HCA 17 (a case concerning state offences) at [64]:

Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. [Citations omitted]

The proportionality aspect of totality is engaged regardless of whether sentence is otherwise ‘crushing’: R v Piacentino [2007] VSCA 49, [33] (Eames JA). In Johnson v The Queen [2004] HCA 15, Gummow, Callinan and Heydon JJ stated at [22] that ‘[w]e would with respect doubt that it is only in a case of an otherwise crushing burden of an aggregation of sentences that the totality principle may be applied.’

The difficulty in assessing proportionality was discussed in DPP (Cth) v Beattie [2017] NSWCCA 301 at [32]–[45] by Basten JA (dissenting as to the outcome). His Honour wrote at [45]:

The weakness of the ‘principle of totality’ is that it provides little guidance as to how that exercise is undertaken; it therefore limits transparency. What it obscures is the need to take account of different factors in different cases. For example, where there is a single episode of criminality with one victim, but a number of charges have been laid, the principle may involve going behind the prosecutorial discretion in laying multiple charges to assess the overall culpability of the offender. In cases such as the present, different issues arise depending on one’s perspective. From the offender’s perspective there was a continuing episode involving multiple offences; from the victims’ perspective, there were numerous separate episodes of abuse.

2.1.1 Limits to proportionality

The proportionality aspect of totality does not require that the total effective sentence be moderated in every case where an offender is sentenced for multiple offences, as long as the sentencing judge is mindful of the need for total proportionality: Zogheib v The Queen [2015] VSCA 334, [87]–[88] (Kaye JA, Maxwell P and Santamaria JA agreeing).

Similarly, totality does not prevent the consideration of multiple individual victims of a continuing episode of criminality. In DPP (Cth) v Beattie [2017] NSWCCA 301, Price J (Walton J agreeing) stated at [154]–[155]:

When applying the principle of totality, the question to be posed is not one of temporal proximity but whether the sentence for one offence can comprehend and reflect the criminality of the other offence. If it cannot, there should be at least partial accumulation otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences.

Furthermore, it does not follow that because a number of offences arise out of the same incident or course of criminal conduct, that concurrent sentences will be appropriate to meet the totality of the conduct involved. Where there are separate victims, the closeness and proximity of the offending will often not be determinative factors. [Citations omitted]

See also: One Transaction Rule.

2.1.2 Comparable cases

Comparable cases are often relied upon to assist sentencing courts in imposing a proportionate sentence. However, the absence of comparable cases does not prevent the application of the principle of totality. In Soerensen v The Queen [2020] WASCA 114, the Court stated at [77]:

If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, an intermediate appellate court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that the court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. However, previous sentencing ranges are only one pointer to the adequacy of a sentence.

2.1.3 Instinctive synthesis and proportionality

Although the totality principle is often described as requiring courts to ‘take a last look at the total to see whether it looks wrong’, it does not require a ‘two stage’ analysis departing from the instinctive synthesis approach: ZA v The Queen [2017] NSWCCA 132, [70]–[73] (Johnson and Fullerton JJ).

The contrary view has in part resulted from the statement of Kirby J in Postiglione v The Queen [1997] HCA 26, [10] concerning a ‘second task’ required by the totality principle. In ZA v The Queen [2017] NSWCCA 132at [70]–[73], Johnson and Fullerton JJ noted that no other member of the High Court adopted a two-stage approach to the totality principle, and considered such approach was inconsistent with the instinctive synthesis approach to sentencing which has been approved by the High Court.

Likewise, courts are not required to ask what would have been the sentence imposed had the offender been sentenced for previous sentences and the subject offence(s) together: R v Asaad [2017] QCA 108, [56] (Fraser JA, Philippides JA and Jackson J agreeing).

2.2 ‘Crushing’ sentence

A crushing sentence is one which would destroy ‘any reasonable expectation of useful life after custody’: FWB v Western Australia [2016] WASCA 118, [79] (Buss JA, McLure P and Newnes JA agreeing). The mitigation of a ‘crushing’ sentence is an act of mercy by the court: Postiglione v The Queen [1997] HCA 26 (McHugh J).

See further: Mercy.

However a lengthy sentence is not necessarily characterised as ‘crushing’, and the imposition of a ‘crushing’ sentence is not necessarily an error: see ZA v R [2017] NSWCCA 132, [79]–[82] (Johnson and Fullerton JJ); Geraghty v The King [2023] NSWCCA 47.4 In Azzopardi v The Queen [2011] VSCA 372, Redlich JA (Coghlan and Macauley AJJA agreeing) explained at [69]:

[A] crushing sentence may not necessarily offend the totality principle though it may provide an indicator that it has infringed the principle. The subjective effect of a total effective sentence upon the offender must be put in perspective. While relevant, it cannot be regarded as of paramount importance … [t]he overriding principle is that the sentence ‘should fairly and justly reflect the total criminality of the offender’s conduct’.

In Western Australia, the principle ‘that the court should not impose a ‘crushing’ sentence’ has sometimes been described as a ‘second limb’ of the totality principle: Roffey v Western Australia [2007] WASCA 246, [25] (McLure JA, Steytler P and Miller JA agreeing), cited with approval in Labrook v Western Australia [2016] WASCA 127, [33] (Mitchell J, McLure P and Mazza JA agreeing).

However, in ZA v The Queen [2017] NSWCCA 132, Johnson and Fullerton JJ held at [83] that the Western Australian authorities should not be understood as establishing a ‘second limb’ of the totality principle, instead ‘those decisions do no more than point to two features of the totality principle (at least insofar as that principle applies to the imposition of a lengthy total sentence).’ Johnson and Fullerton JJ stated at [78]:

To attempt to erect, as the Applicant seeks to do, a second limb of the totality principle which concentrates on the offender’s subjective circumstances to determine whether the total sentence is ‘crushing’, is not supported by authority.

Similarly, Payne JA in ZA noted that although the language of separate ‘limbs’ had sometimes been adopted (mainly in Western Australia), it was clear that the Court of Appeal of Western Australia was not setting out a process of identification of the separate ‘limbs’ of totality as ‘necessary elements of every sentencing judgment’: at [6].

Rather, the weight afforded to avoiding a ‘crushing sentence’ is either an aspect of the need for proportionality or the operation of mercy in light of sentencing considerations such as Rehabilitation.

In Asplund v The Queen [2014] NSWCCA 237, Hoeben CJ at CL (Hidden and Davies JJ agreeing) rejected the appellant’s submission that the sentencing court erred in failing to consider whether the sentence was ‘crushing’ separately from the consideration of proportionality. In rejecting this submission, his Honour stated at [63]:

[The sentencing judge] expressly referred to the principle of totality in her sentence judgment and did so immediately following her description of the sentence imposed for the grooming offences. She clearly took the principle into account and it was not necessary for her to make any reference to whether for not the sentences were likely to be ‘crushing’. [Citations omitted]

Similarly, the South Australia Court of Appeal in Edmonds (a pseudonym) v The Queen [2022] SASCA 11 stated at [61] that ‘the reduction of a crushing sentence on totality grounds is ordinarily a mere manifestation of the concern to ensure proportionality in the sentence ultimately imposed’.

The Victorian Court of Appeal in Mohamed v The Queen [2022] VSCA 136 stated at [6] that:

The preponderance of authority favours the view — with which we respectfully agree — that there is no separate sentencing principle requiring that a ‘crushing’ sentence be avoided. Rather, it is a particular expression of the fundamental sentencing principle of rehabilitation, which requires that the sentence to be imposed should, so far as possible consistently with the other sentencing purposes to be served, promote the rehabilitation of the offender.

When considering whether a sentence should be mitigated to prevent or limit an otherwise ‘crushing’ sentence, courts must take care to avoid the perception that offenders are receiving a discount for multiple offending: Sivell v The Queen [2019] NSWCCA 77, [122] (Beech-Jones J, Hoeben CJ at CL and McCallum J agreeing), citing R v MAK [2006] NSWCCA 381 at [18].

3. Application of the principle

The principle of totality applies where an offender is being sentenced for multiple offences, regardless of whether a custodial sentence is ultimately imposed: Postiglione v The Queen [1997] HCA 26 (McHugh J). Additionally, any sentences which apply to the offender at the time of sentence must be considered under s 16B of the Crimes Act 1914.

3.1 Section 16B: Existing sentences

Section 16B of the Crimes Act 1914 requires that a sentencing court have regard to any sentence already imposed on the offender for any federal, state or territory offence which remains unserved, and any sentence which the offender is liable to serve because of the revocation of parole or licence granted under the Crimes Act or a law of any state or territory.

This includes any portion of a custodial sentence or good behaviour period which has not expired: Postiglione v The Queen [1997] HCA 26 (Dawson and Gaudron JJ).

Any existing sentence which has expired prior to the imposition of the new sentence may not be taken into account under s 16B, even if the new sentence is backdated to before the expiration of the existing sentence: Visser v The Queen [2015] VSCA 168, [167]–[168].

Recognition of the totality principle in s 16B does not extend to courts taking into account sentences imposed in foreign jurisdictions. In Postiglione v The Queen [1997] HCA 26, the appellant had previously been convicted of two drug trafficking offences by an Italian court. Custodial sentences for those offences remained outstanding. McHugh J made the following observations at n 47 regarding the relevance of sentences imposed by the Italian Court:

Although her Honour was entitled to take the Italian sentence into account as a mitigating factor, whether under s 16A(2) of the Act or otherwise, she was not entitled to take it into account under the totality principle recognised by s 16B of the Act. The totality principle to which s 16B refers is confined to sentences imposed for federal, State or Territory offences.

3.2 Application to custodial sentences

Courts have flexibility in applying the totality principle; however, a sentencing court will fall into error where regard is only had to the total effective sentence to be imposed upon on the offender (as opposed to what are appropriate sentences for each individual offence): Johnson v The Queen [2004] HCA 15, [26] (Gummow, Callinan and Heydon JJ).

While a court is not precluded from lowering each sentence and aggregating them, this is not the preferred approach. The ‘orthodox approach’ to structuring custodial sentences consists of fixing a sentence for each separate offence and aggregating them, then applying the principle of totality making orders as to cumulation and concurrency: Johnson v The Queen [2004] HCA 15, [26] (Gummow, Callinan and Heydon JJ).

The approaches available to sentencing courts were discussed by Ferguson CJ, Maxwell P and Weinberg JA in DPP & DPP (Cth) v Swingler [2017] VSCA 305, [68]–[69]:

Under State law, courts have traditionally used two different approaches in order to give effect to the requirements of totality. The first, and more orthodox, approach is to impose individually appropriate sentences, and reduce the orders for cumulation, thereby ensuring that the total effective sentence gives proper effect to the principle of totality. The alternative approach is to accommodate that principle by reducing the individual sentences imposed, but ordering a greater measure of cumulation. This is generally termed the ‘moderate and cumulate’ approach.

Although both these techniques have been recognised as legitimate, this Court in DPP v KMD confirmed that the first approach ‘should be clearly understood to be the orthodox approach [which] should be departed from only when some special feature of the case … requires such a departure.’ [Citations omitted]

3.2.1 Cumulative and concurrent sentences

Section 19(1) of the Crimes Act 1914 (Cth) permits the full or partial concurrency of sentences for federal offences on other federal, state, and territory offences by ordering when each sentence is to commence. The setting of commencement dates under s 19 is subject to a number of restrictions and limitations: see Cumulative and Concurrent Sentences.

Consistently with the ‘orthodox’ approach outlined in Johnson v The Queen [2004] HCA 15, the preferred method when making orders for cumulation and concurrency is to determine the length of each individual sentence, then make orders for concurrency to give effect to a total effective sentence which incorporates the principle of totality.

When sentencing offenders for Commonwealth and state/territory offences in the same proceeding, it is usually preferable to order that the state/territory sentences commence first and set the Commonwealth sentences by reference to those sentences. In DPP & DPP (Cth) v Swingler [2017] VSCA 305, the Court explained at [78]:

The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.

See further: Cumulative and Concurrent Sentences.

3.2.2 Aggregate custodial sentences

Where an aggregate sentence can be imposed in respect of a series of offences, this may allow a sentencing court to reflect totality without the complexity of imposing concurrent or partially concurrent sentences.

Sections 4K(3)–(4) of the Crimes Act 1914 (Cth) permits courts to impose aggregate sentences for summary offences charged on the same information, complaint, or summons where the charges are founded on the same facts or are a part of a course of conduct: Putland v The Queen [2004] HCA 8, [9] (Gleeson CJ).

Sentences issued in respect of indictable offences may be aggregated where the law of the relevant state or territory permits such sentences: Putland v The Queen [2004] HCA 8, [14] (Gleeson CJ); DPP (Cth) v Beattie [2017] NSWCCA 301, [146] (Price J).

See also: Course of Conduct.

3.3 Application to non-custodial sentences

The totality principle is applicable to non-custodial sentences such as fines, pecuniary penalties and disqualifications (such as from managing a corporation).  In a manner consistent with custodial sentences, courts must assess if the total penalty is appropriate in the circumstances: see, eg, CDPP v Alkaloids of Australia Pty Ltd [2022] FCA 1424; Nguyen v Western Australia [2018] WASCA 170.

Aggregate fines may be imposed in respect of charges ‘founded on the same facts, or form or are part of, a series of offences of the same or a similar character’: Crimes Act 1914 s 4K(3)–(4). Although s 4K only applies to Commonwealth summary offences, state and territory laws permitting aggregate sentences can apply in respect of Commonwealth indictable offences: Putland v The Queen [2004] HCA 8, [14] (Gleeson CJ); DPP (Cth) v Beattie [2017] NSWCCA 301, [146] (Price J).

Wigney J in CDPP v Wallenius Wilhelmsen Ocean AS [2021] FCA 52 held at [290] that ‘overseas penalties, and the appropriate reduction in the sentence to reflect them, should not be approached having regard to the totality principle: s 16B of the Crimes Act’.

In CDPP v Alkaloids of Australia Pty Ltd [2022] FCA 1424, Abraham J stated at [224]:

I have considered whether, as a result of the principle of totality, the accumulated fine should be reduced. That is, the totality principle obliges a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. I am mindful that given the use of the Schedule, and Count 1 being a rolled up count encompassing so many offences, the penalties are already imposed in a particular context, which reflects leniency. I am not satisfied that any lesser sentence is appropriate. [Citations omitted].

3.3.1 Structuring multiple non-custodial sentences

Reference to totality when imposing non-custodial sentences is complicated as fines and pecuniary penalties cannot be made concurrent. In CEO of Customs v Jung [2007] NSWSC 1354, Howie J noted at [25] that totality must still be applied ‘even though the Court cannot impose penalties that are concurrent as might be done if the Court were imposing custodial orders.’

In circumstances where an aggregate penalty can be imposed, such as under s 4K of the Crimes Act 1914 (Cth), the aggregate can be reduced to reflect the requirements of totality: see DPP (Cth) v Vina Money Transfer Pty Ltd [2022] FCA 665, [203] (Abraham J).

Where aggregate penalties are not available, sentencing courts may need to ‘moderate and cumulate individual penalties for each contravention’ to achieve totality: Director of Consumer Affairs (Victoria) v Hocking Stuart (Richmond) Pty Ltd [2016] FCA 1184, [84] (Middleton J) (concerning state civil penalties applied under the Australian Consumer Law).

The totality principle is also applicable when determining the disqualification period, if any, to be imposed for multiple contraventions. In ASIC v Healey [2011] FCA 1003, Middleton J stated at [130] that ‘the court should impose a disqualification period for each individual contravention and then take into account the totality principle to arrive at a total effective disqualification period.’

  1. Quoting R v Knight (1981) 26 SASR 573, 576 (Walters, Zelling and Williams JJ).[]
  2. This passage has been adopted in federal sentencing decisions: see, eg, Sigalla v The Queen [2021] NSWCCA 22, [160]; Hesketh v The Queen [2021] NSWCCA 262, [35]; Richardson v The Queen [2010] SASC 88, [24]; Scrivener v Papantaniou  [2009] ACTSC 41, [84]; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2)  [2006] QSC 40, [28].[]
  3. In Postiglione v The Queen [1997] HCA 26, McHugh J extracted a series of judicial statements regarding the common law principle of totality and stated ‘[t]his line of authority is consistent with the recognition of the totality principle found in s 16B of the Act’.[]
  4. Johnson and Fullerton JJ in ZA v R [2017] NSWCCA 132 extract a number of cases in support of this: Jarvis v The Queen [1993] WASC 344, 8, 10 (Ipp JA); R v E [2005] SASC 332, [38] (Doycle CJ, Debelle and Besanko JJ); Azzopardi v The Queen [2011] VSCA 372, [69] (Redlich JA, Coghlan and Macaulay AJJA agreeing); R v Zaydan [2004] VSCA 245, [96] (Batt JA).[]
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