R v Houghton[2002] QCA 159

SUPREME COURT OF QUEENSLAND  

1. McMURDO P:  The applicant, together with his co-accused, Rousetty, pleaded not guilty to murder but guilty to accessory after the fact to murder.  The prosecution did not accept that plea in discharge of the indictment.  The trial proceeded on the murder count.  At the close of the Crown case, the learned trial judge acceded to a submission that the applicant had no case to answer on the charge of murder and the jury returned a directed verdict of not guilty.  On 20 November 2001, the judge sentenced the applicant to eight years imprisonment with a declaration that the period between 5 April 2000 and 20 November 2001 (594 days) was time served under the sentence.

2. Mr Glynn SC, who appears for the applicant, contends that sentence is manifestly excessive.

3. The offence concerned events in Cairns in 1995 so that the 1997 amendments to the Penalties and Sentences Act 1992 (Qld) do not apply.  On 20 August 1995, Jason Tyler was beaten and shot in the leg at the Cairns club house of the Bandidos motorcycle club.  The beating was the likely cause of his death.  The applicant was a probationary member of the club.  He was not present when Mr Tyler was killed nor when his body was first buried by two club members in remote bushland outside Cairns.

4. On 17 October 1995, the applicant accompanied the president of the club, Klarfeldt, and the sergeant-at-arms of the club, Rousetty, to the burial site where he and Rousetty reburied the body. He only became aware of the plans to rebury the corpse during the trip. He committed the offence to improve his prospects of becoming a full club member.

5. On 20 November 1998, the applicant and others were charged with the murder of Tyler. The case against the applicant relied on Klarfeldt's evidence of the applicant's confession to him.

6. The applicant offered to plead guilty to accessory after the fact to murder after committal but before the first trial in August 1999. The prosecution rejected that offer. On 13 August 1999, the applicant was convicted of murder. That conviction was set aside by this Court and a new trial ordered on 12 May 2000.^[1]

7. The applicant was 28 years of age at the time of the offence and 34 at sentence. He has the support of his partner, who has borne him a son, now aged four. He had no prior convictions but he has significant subsequent convictions which raise concerns about his prospects of rehabilitation. In the Cairns District Court in October 1997, he pleaded guilty to breaking and entering a dwelling house with intent and assault occasioning bodily harm whilst in company and armed with an offensive weapon. These offences occurred on 2 February 1997. He was sentenced to an effective term of four years imprisonment with a recommendation for consideration for release on parole after serving 15 months. He unsuccessfully applied to this Court for leave to appeal against that sentence: see R v Houghton and Genrich.^[2]

8. The facts of those offences are as follows. The complainant, a 56 year old man who lived in a unit block next to the applicant's partner, reported to the body corporate that she was involved in prostitution. She complained to the applicant about the complainant. One Sunday night at 7 pm, the applicant and his co-accused, both dressed in bikie uniforms with skull and crossbone rings on their fingers, confronted the complainant at his home. The applicant was armed with a concealed wooden batten and threatened the complainant that if he continued to call his partner a prostitute he would hurt him. The complainant apologised but later said, "Well, she could make $5,000 on her back." The applicant lost his temper, bent the security door, struck the complainant to the back with the batten knocking him to the floor, severely punched him to the left cheekbone and followed up with more blows with both fist and batten. The complainant's injuries included lacerations and bruising above his left eye requiring stitches, bruising and swelling to the left ankle, thigh area and back and a fractured left cheekbone which required the insertion of a metal plate and screws. This last injury resulted in nerve damage and double vision which was unlikely to be permanent. One of the offenders told the complainant that if they had to return they would break his legs and if he went to the police they would shoot him.

9. The applicant was released on home detention on 7 October 1998 with a view to release on parole on 24 November 1999. That order and his prospective parole order were revoked when he was charged with murder and unlicensed possession of weapons and failing to securely store a weapon on 20 November 1998. Although the revocation notice relies only on weapons offences, it seems likely that the murder charge contributed to the decision to revoke home detention and parole. The applicant was convicted of the weapons offences in December 1999 and was fined $600 with no time to pay, in default 12 days and 6 days concurrent imprisonment.

10. Mr Glynn emphasises that apart from the six weeks in late 1998 when the applicant was released on home detention, he has continuously been in custody since October 1997 and that the sentence imposed by the learned trial judge effectively means that he has been sentenced to 12 years imprisonment for this offence, the home invasion offences and the weapons offences. Mr Glynn contends that the learned sentencing judge should have moderated the sentence consistent with the totality principle referred to in Mill v The Queen^[3] and Postiglione v R.^[4]

11. That principle requires a sentencing judge to ensure that the aggregate sentence imposed for multiple offences is just, appropriate and not crushing. The totality principle has been extended beyond sentencing for connected or contemporaneous offences to apply also when imposing sentence upon an offender who is already serving a sentence.^[5]

12. The applicant also contends his Honour gave insufficient weight to the mitigating factors, especially the plea of guilty and his lack of prior convictions, and that comparable sentences demonstrate that the sentence is manifestly excessive.

13. The offence of accessory after the fact to murder is one of the most serious offences contained in the Criminal Code and is punishable by a maximum sentence of life imprisonment.  The significant penalties imposed for this offence rightly demonstrate the grave view courts and the community take of those who knowingly assist murderers to escape punishment.

14. The most concerning aspect of the applicant's involvement, beyond the self-evident elements of the offence established by his plea of guilty, is that he voluntarily committed the offence to improve his prospects of membership of a club which would protect a murderous member. There is no suggestion that the applicant was present at the time of the killing or that he had knowledge of the details of the murder. His degree of assistance was travelling with others to a remote area outside Cairns and assisting in the re-burial.

15. The applicant's plea of guilty was a significant mitigating factor even though, as Mr Glynn concedes, the prosecution case against him was quite strong. It was offered early and its rejection by the prosecution in satisfaction of the proceedings brought against him was no fault of his: cf R v Turner; ex parte Attorney-General of Queensland^[6]and Cameron v The Queen.^[7]

16. In Turner, the applicant was 19 years old and had no relevant prior convictions.  He unsuccessfully appealed to this Court against his sentence of six years imprisonment with a recommendation for parole after two years.  He assisted the principal offender to break into a house to steal property.  The 16 year old son of the householders was home ill from school.  He recognised the principal offender who left and informed Turner that he would return and may kill the boy.  The principal offender went inside, murdered the boy and returned bloody and with blood on his knife, later boasting of his evil actions.  Turner assisted the murderer in discarding and burning bloody clothing and selling the stolen goods.  The court recognised Turner's plea of guilty, his youth, his prospects of rehabilitation, the difficulties which he might experience in prison and noted that the sentence was at the bottom end of the appropriate range.

17. Although Turner's offending was in some ways more serious than this applicant's, he had the benefit of youth and better prospects of rehabilitation as he did not have this offender's subsequent serious offending.

18. Lister v The Queen^[8] demonstrates the upper end of the sentencing range in a worse case than this.  Lister was originally sentenced to an effective sentence of nine years imprisonment with a recommendation for parole after two and a half years for being an accessory after the fact to both the murder of her eleven year old son and the manslaughter of her nine year old daughter.  The Attorney-General appealed and Lister sought leave to appeal against that sentence.  This Court increased the effective sentence to 13 years imprisonment with a recommendation for parole after five years.  Lister had no relevant criminal history.  She assisted her partner of 12 months, an extremely violent, cruel and mentally unstable man, to exhume the bodies of her children from the graves in which they were placed on Christmas morning 1994.  A few days later, they wheeled her son's decomposing body into a drum.  Her murderous partner poured petrol and distillate into the drum and she gathered firewood to feed the fire.  She fetched beer from the kitchen for them both to drink while they watched her son's body burn.  Her partner cut the legs off her daughter's decomposing body so that it would fit into the drum; that body was also consumed by fire.  Lister said she assisted the murderer because he threatened to kill her.  Lister aided in covering up her partner's conduct until after he was killed in a car accident on 8 February 1995.  She revealed her involvement in these offences to a woman who comforted her in her grief. 

19. Whilst the facts involved in instances of this serious offence are never likely to be closely similar, the cases most resembling the facts here are R v Hawken^[9] and R v Winston.^[10]

20. Hawken was 41 years old at sentence and had a reasonably serious criminal history, although no convictions of a like nature. He was present when the murderer placed a gun against the deceased's forehead and pulled the trigger, killing him. The court noted that it was close to, if not in fact, a "gangland execution" of a drug associate who had not honoured his bargain. Hawken assisted the murderer to put a tarpaulin into the boot of a car, to carry the body to the car, to wrap a towel around the gun and to hose down blood from the driveway. Later, when contacted by police, he made admissions and cooperated with them. Hawken served ten months pre-sentence custody which at that time was the equivalent of a 20 month sentence with standard parole. This pre-sentence custody was taken into account in imposing a sentence of eight years imprisonment which was not regarded by this Court as manifestly excessive. Effectively this was a sentence of nine years and eight months although this Court treated it as one of eight years and ten months.

21. In Winston the applicant and another escaped from prison and lived in hiding in the Sunshine Coast hinterland.  Together with a third man, they went by car to steal some pipes from a factory.  A security guard seized the applicant.  His fellow escapee hit the security guard to the head and took his gun.  The applicant fled, heard four shots and later learned that his fellow escapee had shot dead two security guards.  The murderer drove the victims' vehicle and directed Winston and the driver to follow him.  The victims' vehicle was abandoned and the murderer joined the others in their vehicle and returned home.  Winston was found not guilty of two counts of murder but was convicted of accessory after the fact to murder.  He was sentenced to 11 years imprisonment.  His conviction related only to the receiving of the murderer into the vehicle after the murderer had abandoned the victims' vehicle.  Winston was 28 years of age and had a lengthy criminal history for offences of dishonesty but not violence.  This Court reduced the sentence to eight years imprisonment cumulative upon the sentence he was then serving.

22. The learned sentencing judge referred to the cases of Turner, Lister, Hawken and Winston before passing sentence.  His Honour noted that in Winston the penalty was compressed because of the totality principle and, wrongly, that Hawken was "much younger" than this applicant.   

23. His Honour took into account in mitigation the applicant's lack of prior criminal convictions and that the applicant indicated he would plead guilty at the time of the first trial, stating:

"That is a matter for which you are entitled to be given some credit, but I should add, I see your offer to plead guilty at an earlier time, against a background of a strong case being capable of being made out against you, because of the evidence of the police surveillance and the offer, of course, was made at a time when you were being charged with murder.  But nonetheless you are entitled to credit for that."

24. His Honour stated that he originally had in mind a sentence of nine years imprisonment, but because of the mitigating matters reduced the sentence to eight years imprisonment but with no recommendation for early release.

25. The facts of this offence in the context of the comparable sentences I have reviewed demonstrate that his Honour's starting sentence of nine years imprisonment, before discounting for the mitigating factors, was well within the appropriate range. However, the reduction of a nine year sentence by one year does not in my view adequately reflect the mitigating factors and the totality principle in circumstances where the judge was sentencing the applicant as a first offender for an offence committed in 1995. The applicant served his sentence for the subsequent offences involving the home invasion from October 1997 until 4 April 2000. He was additionally serving a sentence for the murder connected with this offence for part of that time, from 13 August 1999 until 12 May 2000, when that conviction was quashed by this Court. The period from 13 August 1999 until 4 April 2000 was not included in the learned sentencing judge's declaration of 594 days pre-sentence custody under s 161 Penalties and Sentences Act 1992 (Qld) as it was not custody for this offence "and for no other reason".  The applicant has received no credit in his sentence for this offence for the eight months imprisonment he served for the murder connected with this offence because it was served concurrently with the sentence for the home invasion.  Whilst the applicant does not contend that any other order under s 161 should have been made, these facts demonstrate the justice of applying the totality principle here.  If the applicant is placed in the hypothetical position of being sentenced for all his offending behaviour in October 1997, the applicant received an effective sentence of 12 years imprisonment.  Such a sentence is manifestly excessive, even for these serious offences, as it does not adequately reflect the applicant's lack of prior convictions, his offer of an early plea of guilty to this charge and his plea of guilty to the other charges: see s 13(2)(b) Penalties and Sentences Act 1992 (Qld) and Cameron v The Queen.^[11]  A sentence of seven years imprisonment should be substituted for the eight years imposed.  This equates to an effective hypothetical sentence, if imposed in October 1997, of 11 years imprisonment for his combined criminality and adequately balances the moderation required by the totality principle and mitigating factors whilst still reflecting the applicant's serious conduct in assisting a murderer to avoid detection, in committing the home invasion offences and the irresponsible behaviour which led to the cancellation of his home detention.

26. I would grant the application for leave to appeal, allow the appeal and instead of the sentence of eight years imprisonment substitute a sentence of seven years imprisonment. I would otherwise confirm the sentence imposed at first instance.

FRYBERG J:

Introduction

27. The history of this matter is set out in the judgment of the President, which I have had the benefit of reading in draft. I shall repeat as little as possible of that history. However, for convenience, I set it out in tabular form. The question marks represent dates which counsel did not know.  I record that the events occurring on 4 April 2000 accord with information expressly provided to the sentencing judge by the Crown Prosecutor.  I do so because it seems odd that a prisoner should have received full remissions despite weapons offences committed during his period of home detention.

20.08.95Tyler murdered

17.10.95Offence of being an accessory after the fact to murder committed

02.02.97Assault occasioning bodily harm committed (home invasion)

24.10.97Conviction for assault occasioning bodily harm - 4 years, parole recommendation after 15 months

30.09.98Home detention and parole approved

07.10.98Home detention began

20.11.98Weapons offences committed

Home detention cancelled because of weapons offences

Applicant charged with murder

25.11.98Parole order cancelled following revocation of home detention

24.01.99Eligibility date for parole

??.??.99Committal proceedings for murder

??.??.99Applicant offered to plead guilty to accessory after the fact

13.08.99Applicant convicted of murder

21.12.99Weapons offences convictions - fined

04.04.00Last day of sentence for assault occasioning bodily harm (full remissions despite weapons offences)

05.04.00Remand period for accessory after the fact began

Counting of time for sentence of 8 years began

22.08.00Murder conviction set aside

20.11.01Applicant convicted of accessory after the fact - 8 years; 594 days from 5.4.00 to count

04.04.08Last day of sentence for accessory after the fact

28. On behalf of the applicant it was argued that:

1. The sentencing judge misapplied the comparative sentences, gave insufficient weight to mitigatory matters and gave no weight to the fact that the applicant had spent three years in custody either charged with or convicted of a murder of which he has since been acquitted;

2. The sentencing judge gave no consideration to the totality principle.

29. I have grouped the applicant’s arguments this way because the totality principle is properly applied only after the sentence which is otherwise appropriate is determined:

“The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case.  The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example cooperation with authorities or absence of remissions).  But it still remains for the judge to look back at the product of these calculations and discounts.  It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment.”^[12] 

The appropriate sentence apart from the totality principle

30. Section 307 of the Criminal Code prescribes imprisonment for life as the maximum penalty for being an accessory after the fact to murder.  Four comparable cases were cited to us and I need not repeat the summaries of them made by the President.  From these cases one must establish what Kirby J described as “the norm”, or perhaps, in accordance with Queensland practice, the range within which the norm falls.  Although he did not use this term, the sentencing judge proposed a period of nine years for this purpose.  For the applicant it was submitted that this figure was the outcome of “ignoring entirely what was said by this Court in Turner”.  It was submitted that the starting point of nine years was excessive. With great respect to those who think differently, nine years was, in my view of the cases, outside the range of sentences which would be appropriate in the absence of mitigating circumstances not because it is too high, but because it is too low.  That view is, in my opinion, quite consistent with the decision of this Court in R v Turner.^[13]   In my judgment, the appropriate range would be 10-11 years.  That recognises that this case is not in the most serious class for the offence, but that it is nonetheless one demanding a fairly severe punishment.

31. As to matters of mitigation, two factors were important. The first was the applicant’s plea of guilty. A sentencing judge must take this into account and may thereby reduce the sentence which would otherwise have been imposed.^[14]  Normally the sentence will be reduced by 10 per cent to 30 per cent for such a plea.  In the context of Western Australian sentencing legislation, the High Court has said, “The rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, [is] willingness to facilitate the course of justice.”^[15]  In the present case, the plea was offered after the committal proceedings for murder and before the first trial.  It was, therefore, not a late plea.  Moreover, the committal proceedings would not have been avoided even if the plea had been offered before those proceedings, since the Crown was pressing the charge of murder.  It is, therefore, appropriate to regard it as an early plea. 

32. On the other hand, the Crown case was a strong one. The applicant might well have regarded conviction as inevitable and have decided to plead guilty after taking legal advice, simply to gain the benefit of s 13.^[16]  Moreover, he offered no cooperation to the authorities in respect of the prosecution of his co-accused Rousetty, whose trial for murder is still pending, or of any others involved, despite the fact that he later rose through the ranks to become president of the motorcycle club.  These matters do not suggest a willingness to facilitate the course of justice.  It was open to him to go into the witness box on sentence and explain them if he could; but he chose not to do so.

33. The applicant was entitled to substantial, but not the maximum available credit for his plea.

34. The second factor relied upon on behalf of the applicant was the fact that at the time of the offence, he had no convictions. Convictions for other offences are taken into account because of s 9(2)(f) of the Penalties and Sentences Act 1992.  They shed light on the offender’s character.  If they are antecedent convictions, they may show “whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.”^[17]  Similarly, subsequent offences may indicate whether the instant offence was an aberration or was truly reflective of the offender’s character, although in practice they may have less impact than prior offences.

35. With some hesitation, I have concluded that the applicant was entitled to some credit by reason of the absence of any prior convictions as at the date of the offence. He was at that date, 28 years old. His subsequent offences, two in number, were unrelated to the offence and were of a somewhat (although not completely) different type. They do not necessarily indicate that as at the date of the offence, he was a person of poor character.

36. It was also submitted on behalf of the applicant that weight should be given to the fact that the applicant had spent three years in custody either charged with or convicted of murder, with the burden of a life sentence hanging over him. Given that for sixteen months of that period the applicant was serving a sentence for assault occasioning bodily harm in company, whilst armed with an offensive weapon (a home invasion), and that throughout this time the applicant must have known that he deserved to be imprisoned as an accessory after the fact to murder, any weight to be attributed to this factor is very small.

37. Taking all of these mitigating factors into account (but ignoring for the moment the totality principle), it is my view that the sentence of imprisonment for eight years imposed by the judge was not manifestly excessive.

The totality principle

38. On behalf of the applicant, Mr Glynn SC submitted that this was a case to which the totality principle applied. He identified the rationale for that principle as “the avoidance of the crushing effect of multiple sentences if not mitigated by merciful reduction”. In support of that proposition he referred to a statement by King CJ, which was cited with approval by McHugh J in Postiglione v The Queen:

“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”^[18]

39. Introducing that passage, McHugh J said:

“The totality principle of sentencing requires 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 (see Mill v The Queen (1988) 166 CLR 59 at p 63).”^[19]

His Honour went on to observe that the ambit of the principle had been extended (from cases where a judge is sentencing for a number of offences) to cases where a judge is sentencing an offender who is currently serving a sentence.  It has been held in Queensland that the principle is to be applied even if there is a substantial gap in time between the offences giving rise to the sentences or groups of sentences being considered in totality: R v Clements.^[20]  As that case shows, the principle will often have particular relevance where a cumulative sentence is being imposed. 

40. The principle finds expression in three of the guidelines set out in s 9 of the Penalties and Sentences Act 1992:

“(2)In sentencing an offender, a court must have regard to -

...

(k)sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and

(l)sentences already imposed on the offender that have not been served; and

(m)sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender.”

41. To demonstrate the applicability of the principle in the present case, Mr Glynn SC cited another passage from the judgment of McHugh J:

“The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon ((1994) 71 A Crim R 459 at 466.):

‘When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.’”^[21]

42. Before considering the application of the principle to the present case, some features of the history tabulated above should be noted. First, the sentence of four years imprisonment imposed in October 1997 for a home invasion was reduced to less than two and half years by the operation of the now discredited remissions system.^[22]  That system operated effectively and in law to advance (i.e. make earlier) the full time discharge date of the sentence: it shortened the sentence imposed by the court.  It has now been terminated, with limited exceptions in respect of offences committed before the commencement of s 75 of the Corrective Services Act 2000. 

43. Second, because the applicant was, during his period of imprisonment, released under s 86 of the Corrective Services Act 1988 to serve a period of home detention, he is not eligible to apply for remission of the term of imprisonment now under appeal.^[23]

44. It follows that, ignoring as one must the sentence for murder which was reversed in August 2000, but taking into account the declaration made by the sentencing judge in relation to time already served, the total period to be considered for the purposes of the totality principle comprises two years, five and half months for the sentence on the home invasion and eight years for the sentence the subject of this appeal. The total duration of the imprisonment will be ten years, five and half months including six weeks of home detention already served. At no time was the applicant liable to imprisonment for 12 years.

45. Third, at the time of sentencing, the shorter of the two terms had long since finished. No question of imposing a cumulative or overlapping sentence arose.

46. These facts are important because they show that in the events which happened, the totality principle as set out in the cases and the statute had no application to the case. The judge was sentencing for one offence only; the offender was not currently serving a sentence - all his other imprisonment had finished about 17 months earlier; and no question of cumulative sentences arose. But for the effects of delay (to which attention will be given shortly), the position was no different from that which would have prevailed had the applicant been released at the end of the shorter sentence, committed an offence on the day of his release and been arrested for it, and been on remand until the day of sentence. Such a case would not call for a “merciful intervention”, any more than one where the subsequent offence was committed a day, a week or a month after the offender’s release.

47. Unfortunately, the relevance of these matters was somewhat obscured during the argument by the approach taken on behalf of the applicant. Mr Glynn SC submitted that, “taking it back to October 97”, the applicant had been sentenced to 12 years imprisonment without any discount. That meant, he submitted, that although the sentencing judge referred to the totality principle, he in fact gave no consideration to it. He cited no authority for the proposition that when applying the totality principle, the sentencing judge should consider the matter as at the date of the first sentence though with the benefit of foresight as to the later sentence. That is not surprising; I doubt if there is any such authority. The approach is wrong in principle. It is the second sentence which is to be mitigated to avoid the outcome of imposing a crushing burden on the offender (or, as Thomas JA, waxing metaphorical, once said, “a crushing burden which would have the effect of blocking the light at the end of the tunnel”^[24]).  The question must be considered as at the time that sentence is imposed.^[25]  Consideration should be given to the total criminality of the offending conduct and the total period of imprisonment actually served and to be served.  Transposing the process to the earlier date introduces uncertainties (the law may have changed between times); it requires or permits fictitious assumptions to be made about the events which might have but have not happened^[26]; and it complicates the process for no counterbalancing benefit.  In the present case it is inaccurate to say without more that the applicant was sentenced to 12 years imprisonment without any discount; and worse, it is irrelevant.  The submission should be rejected.

Delay in sentencing

48. The applicant offered to plead guilty to being an accessory after the fact prior to his first trial, which ended on 13 August 1999. He was not dealt with on that plea until 20 November 2001. That delay occurred because the Crown was pursuing a count of murder, upon which it was ultimately unsuccessful. Had the Crown accepted his plea when it was offered, he could have been sentenced in August 1999. In my judgment, the delay is such as to make it imperative to examine whether his position has been prejudiced by it. Justice requires that he be in no worse position than he would have been in had that delay not occurred.

49. Had the judge considered the position as at 13 August 1999, what factors might have led to a different sentence? There are two or possibly three ways in which the applicant’s position might have been prejudiced. First, a sentence imposed on that date might have been ordered to have been served concurrently with the balance of the imprisonment for which the applicant was then liable. Second, the date on which the applicant would have become eligible for a post-imprisonment community based release order might have been earlier than in fact it is. Third, a sentence imposed on that date might have been shorter by reason of the operation of the totality principle. These issues are interrelated.

50. How did things stand on 13 August 1999?

1. The applicant was 22 months into his sentence for assault occasioning bodily harm.  Two years and two months of that sentence remained to be served, but it was liable to be reduced by remissions.  Under the then long-standing practice of the Corrective Services Commission, remissions were credited in full to the applicant at the beginning of his sentence (subject to later removal in whole or in part if cause be shown), and the fact that he could expect the sentence to terminate in early April 2000 (i.e. in eight months) would have been known to all involved.

2. The weapons charges remained to be dealt with and any imprisonment resulting from them, either directly or in default of payment of a fine, would probably be cumulative,^[27] but would be trivial by comparison with the sentence about to be imposed.^[28]  (The sentence to be imposed for being an accessory after the fact would obviously involve a substantial period of imprisonment.)

3. The applicant had not been released on parole in accordance with the sentencing judge’s recommendation because of the weapons charges.  Plainly (even if the accessory offence had not been committed) it was unlikely he would again be considered for parole until those charges were disposed of.  By then (the Magistrates Court hearing was not imminent), only a few months would remain until the existing sentence came to an end,  and parole would be an unattractive and unlikely option.^[29]

51. Had the applicant been sentenced in August 1999, the sentencing judge would have been obliged to consider whether the (provisional) eight years sentence should be ordered to be served cumulatively; and, whatever the decision on that point, would have been obliged to consider the totality principle. As to the former question, there was a good deal in favour of imposing a cumulative sentence. The two offences were separate in time (there were two years between them); they were not of the same type (although they were not of a completely different nature either); they did not involve the same people or events; and they were factually quite unconnected with each other. A cumulative sentence would “ensure that the [offender] received, and is seen to have received, an additional sentence [for the subsequent offence].”^[30]  Mr Glynn SC conceded that a cumulative sentence would not have been inappropriate.  Under the law as it stood at that time, such a sentence would have meant that the full time discharge date of the applicant’s period of imprisonment would have been April 2008, his total period of imprisonment would have been about 10 years, 5 months (the same as it is under the sentence actually imposed) and he would have become eligible to apply for parole (now a post-prison community based release order) at about the end of 2003.^[31]  On the other hand, a concurrent sentence would have meant that the full time discharge date would have been August 2007, his total period of imprisonment would have been about 9 years, 9 months and he would have become eligible to apply for a post-imprisonment community based release order in about August 2003.

52. In either case, would the provisional sentence of eight years have required mitigation by the application of the totality principle? In one sense, of course, the prospect of imprisonment for eight years is one which many people would always find “crushing”. That, however, is not the sense in which the expression is used in this context. What has to be assessed is whether “the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable”.^[32]  Applying that test in the present case to a cumulative sentence, it seems to me that imprisonment for 10 years and 5 months adequately and fairly represents the totality of the criminality involved.  Indeed, on that point, I would not dissent from what I understand to be the President’s opinion that imprisonment for 11 years would reflect the combined criminality of the applicant.  A fortiori a concurrent sentence with a total period of imprisonment of 9 years and 9 months would not be excessive.  It follows that even if there had been no delay in sentencing the applicant, there would have been no occasion for the reduction of his sentence by the operation of the totality principle.

53. The only other possible prejudice arising from the delay is the possible deferral of a parole date. Had the hypothetical sentence been a concurrent one, the applicant would have become entitled to apply for a post-prison community-based release order commencing in about August 2003. Under the sentence as it stands, that cannot happen until the end of 2003. The sentencing judge considered the question of early release and decided to make no recommendation about it. There is no reason to suppose that, even if he had considered the position from the standpoint of August 1999, he would have reached any other conclusion. It was not argued, nor could it have successfully been argued, that on the question of early release his discretion miscarried.

54. It follows that, although in my opinion a relevant consideration (viz the effect of delay in sentencing) was omitted from consideration during the sentencing process,^[33] the applicant has in no way been prejudiced.  Even if the sentencing judge had taken delay into account, the outcome would have been no different.  If it matters, if exercising the sentencing discretion for myself, I would impose no different sentence.

55. The application should be refused.

56. MULLINS J:  I have had the advantage of reading the reasons of each of the President and Fryberg J. 

57. I rely on the recitation of facts in the reasons of the President as supplemented in the reasons of Fryberg J.

58. I agree with the conclusion of Fryberg J that the sentence of imprisonment for 8 years imposed by the learned sentencing judge was not manifestly excessive, taking the mitigating factors into account, apart from the totality principle and, also, apart from any effect favourable to the applicant due to the sentencing for this offence being delayed from about August 1999 until November 2001.

59. No submissions were made to the learned sentencing judge in terms of the totality principle and there is no reference in his sentencing remarks to the effect of the totality principle in relation to the sentencing of the applicant.

60. The passages from and the references to the judgment of McHugh J in Postiglione v The Queen^[34] which are set out in the reasons of Fryberg J illustrate the increasing application of the totality principle in the sentencing process.  This is also reflected by comments made in R v Clements^[35], R v Coss^[36], R v Williams^[37] and R v F^[38].

61. The applicant’s history of imprisonment has unusual aspects. Between 24 October 1997 and 4 April 2000 (a period of 2 years 5 months 11 days), the applicant served in full (with remissions and including home detention of 6 weeks) the sentence imposed for the assault occasioning bodily harm in company whilst armed with an offensive weapon which had been committed after the events giving rise to the offence of accessory after the fact to murder. The applicant remained in custody after completing that sentence, as he was technically serving the life sentence for murder for which he was convicted on 13 August 1999 and which conviction was not set aside until 22 August 2000.

62. The learned sentencing judge made a declaration under s 161 of the Penalties and Sentences Act 1992 in respect of the applicant’s pre-sentence custody of 594 days between 5 April 2000 and 20 November 2001.  The applicant’s sentence for being an accessory after the fact to murder took effect, in practical terms, immediately following the completion of the sentence for assault. 

63. Even though the sentence which is the subject of this application was not imposed until 594 days after the sentence for assault had been completed, the applicant’s imprisonment in respect of both offences was continuous.

64. The subject sentence can be characterised, in general terms, as being cumulative upon the sentence for the assault. Even if that characterisation were not able to be given, so as to invoke the dictum of Hunt CJ at CL in R v Gordon^[39], the juxtaposition of the sentences should attract the consideration of the totality principle on the basis of the rationale of the totality principle.  

65. The learned sentencing judge should, as a matter of principle, have given consideration to the application of the totality principle when sentencing the applicant.

66. I agree with Fryberg J’s conclusion that the learned sentencing judge erred in failing to take into account the relevant consideration of what was the effect of the delay in sentencing the applicant due to the fact that the applicant was prepared, prior to his trial for murder in August 1999, to plead guilty to being an accessory after the fact to that murder. There was the possibility of a concurrent sentence for that offence taking effect from about August 1999. No submissions were made to the learned sentencing judge in terms of whether the sentence that he was imposing should be discounted to take account of what the applicant’s position may have been if the sentencing had taken place around August 1999. All that the learned sentencing judge was asked to do, and did, was to give credit for the fact that there was an offer to plead guilty to the accessory charge by the applicant prior to the first trial for murder.

67. In the circumstances of the applicant, a consideration of both the totality principle and the effect of the delay in sentencing from August 1999 must have made some difference to what was the appropriate sentence to impose on the applicant for being an accessory after the fact to murder.    

68. A sentence of 7 years following the completion of the remitted sentence of 2 years 5 months 11 days for the assault reflects the overall criminality of the two offences, takes account of the possibility of the benefits which could have accrued to the applicant from the applicant’s being sentenced in August 1999 instead of November 2001 and otherwise balances all the mitigating and aggravating factors relating to the offence and the applicant which are set out in detail in the reasons of the President.

69. I therefore agree with the orders proposed by the President.