R v Russell[2021] QCA 35

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  The applicant pleaded guilty to 40 offences committed between 1 November 2006 and 19 August 2010.  On 16 June 2020 he was sentenced to concurrent terms of imprisonment of three years and six months for 37 counts of obtaining a financial advantage by deception and three years for three counts of attempting to obtain a financial advantage by deception, with a non-parole period of 18 months fixed under the Crimes Act 1914 (Cth).
2. [2]
   The maximum penalty for each offence is ten years’ imprisonment.^[1]  The sentence was imposed for very serious offending.  During more than three and a half years between November 2006 and August 2010 the applicant lodged 40 Business Activity Statements (“BAS”) for four companies he controlled, knowing that the BAS nominated inflated amounts for purchases.  The incorrect content of the BAS reflected incorrect details on internal reports for which the applicant was responsible.  On some occasions false invoices created by the applicant were attached to the internal reports.  As a result of the frauds the Commonwealth lost more than half a million dollars, comprising a sum exceeding $443,000 the ATO paid to the applicant together with GST the companies had received and were liable to pay to the Commonwealth.  The applicant attempted on three other occasions to obtain GST refunds in a total amount exceeding $63,000.  The attempts were unsuccessful only because the ATO withheld the payments.
3. [3]
   The sentencing judge took into account the applicant’s plea of guilty.  The plea was entered a week before the commencement of the trial.  The sentencing judge characterised the plea as “timely” because negotiations commencing some days earlier had resulted in the abandonment of some charges and the reduction of the amount fraudulently obtained by the applicant.  The sentencing judge took into account other factors.  Medical conditions suffered by the applicant could be managed in custody but it would make serving a sentence of imprisonment more difficult for the applicant.  The applicant had a good work record.  Two adult daughters supplied references that outlined the applicant’s otherwise good character.  The delay between the commission of the offences and the sentence resulted from the complexity of the investigation.  The applicant’s lack of co-operation in the investigation was not evidence of rehabilitation.  The sentencing judge observed that general deterrence was an important consideration for offences of this type, which were difficult to detect and costly to investigate.
4. [4]
   When the subject sentence was imposed and was directed to commence on 16 June 2020, the applicant was serving a sentence for a State offence committed after he had committed the Commonwealth offences.  On 1 March 2017 the applicant was sentenced to three years’ imprisonment for one count of fraud of property, subject to a direction and to the value of $30,000 or more (an amount of about $76,000), which he had committed between 27 April 2011 and 24 May 2011.  The parole release date under that previous sentence was fixed as 28 August 2018, upon the basis that by then the applicant would have served 18 months in prison.
5. [5]
   The applicant pursued an appeal against the conviction for which the previous sentence had been imposed.  On 22 December 2017 he was released on appeal bail.  He was returned to custody on 11 June 2018 after his appeal had been dismissed and his appeal bail had been revoked.  The applicant’s full time discharge date under the previous sentence was extended by the period of 171 days he had spent on appeal bail to 17 August 2020.
6. [6]
   The issue in this application arose because, no step having been taken to extend the parole release date by the same period of 171 days or at all, the applicant was released from custody on the original parole release date of 28 August 2018.  Instead of serving 18 months in prison under the previous sentence, as the judge who imposed that sentence had intended, the applicant spent about 12 months in prison and about six months at liberty on appeal bail.
7. [7]
   Taking into account that the applicant was released on parole under the previous sentence after serving in custody 12 months rather than 18 months as provided for in the previous sentence, for the totality of the applicant’s offending he will spend a total period in custody of about two and a half years under terms of imprisonment totalling six and a half years which overlap for two months (between 16 June 2020 and 17 August 2020).
8. [8]
   The applicant seeks leave to appeal against sentence.  The application for leave to appeal against sentence sets out three grounds: the sentencing judge misapplied the totality principle, failed to give sufficient weight to that principle, and for those reasons the sentence was rendered manifestly excessive.  The respondent submits that the second ground is not a viable ground of appeal.^[2]  In any event the applicant did not press that ground and it is subsumed within the argument on the first ground.  Consistently with the way in which the grounds are expressed, counsel for the applicant disclaimed any argument that the subject sentence is manifestly excessive if the first ground fails.  The issue in the application is whether the sentencing judge misapplied the totality principle.
9. [9]
   The subject sentence was imposed for offending of a kind that differed from the offending the subject of the previous sentence^[3] and was committed during a different period.  The sentencing judge’s methodology of imposing concurrent terms for the subject offences cumulatively upon the previous sentence was conventional and appropriate in the circumstances of this case.  The applicant does not contend to the contrary.  The applicant also does not seek to challenge the head sentence for the subject offences of three years and six months imprisonment.
10. [10]
    The applicant contends that the non-parole period of 18 months fixed by the sentencing judge should be set aside and instead a non-parole period of 12 months should be fixed.  The applicant submits that the sentencing judge should have applied the totality principle upon the premise that the previous sentence required the applicant to serve 18 months in prison.  The sentencing judge is submitted to have erred by taking into account that the applicant in fact served only 12 months in prison.
11. [11]
    The sentencing judge rejected the same argument on the ground that it would ignore the reality of the situation.  I agree.
12. [12]
    The totality principle is a common law sentencing principle.  In Mill v The Queen^[4] the High Court approved the following statement in Thomas, Principles of Sentencing:^[5]

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.  The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … 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 at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

13. [13]
    In the kind of case described in that passage the totality principle “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”.^[6]  The sentencing judge must adjust the aggregate length of the sentence downwards if that is necessary to achieve the required relationship between the totality of the criminality and the aggregate sentence.
14. [14]
    The issue in this application concerns application of the totality principle in the different kind of case described by Hunt CJ at CL in R v Gordon:^[7]

“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.”

15. [15]
    That way of expressing the principle might be thought to support the sentencing judge’s approach.  In other cases the totality principle has been described in terms which might be thought to support the applicant’s argument.  For example, in Mill v The Queen^[8] the High Court endorsed the reasoning of Street CJ in R v Todd^[9] and described the proper approach in a case in which a sentence is imposed in one jurisdiction after the defendant has completed a sentence imposed in a different jurisdiction as being to ask “what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences … in one jurisdiction and had been sentenced at one time”.  On the other hand, the High Court also quoted with apparent approval a statement by Andrews SPJ (with whom Macrossan and Ryan JJ agreed) in Reg v Stringfellow,^[10] in which Todd was cited for the proposition that “it was proper to take into account the term of imprisonment imposed in Western Australia and the period actually served and to regard the cumulative effect of the head sentences as well, ultimately, as the period of imprisonment to be served”.^[11]  However, the issue in this application did not arise for consideration in those cases.
16. [16]
    The totality principle is designed to ensure that an offender is not unjustly burdened by being required to serve an aggregate term of imprisonment that is more severe than may fairly be considered to be merited by the totality of the offender’s criminality in all of the offences for which the component sentences are imposed.  The purpose of the principle is inconsistent with the applicant’s argument, under which a sentencing court may be required to reduce what otherwise would be found to be the appropriate severity of a sentence by applying the totality principle in disregard of a known fact that a defendant has not served and will not be required to serve part of a period of imprisonment under a previous sentence.  Such a requirement would be incoherent with the statutory obligation of a court sentencing a person convicted of a federal offence to impose a sentence “of a severity appropriate” to all the circumstances of the offence: Crimes Act, s 16A(1).^[12]
17. [17]
    The applicant argues that a judge applying the totality principle does not sit on appeal from the previous sentence and is not entitled to consider whether it was adequate or inadequate.^[13]  The sentencing judge did not do so by taking into account the known length of the period the applicant was in custody in consequence of the imposition of the previous sentence.  As the applicant also argues, it was not his fault that he did not serve the full custodial component of the previous sentence, he was never unlawfully at large, and he spent the entire period of custody ordered under the previous sentence either in custody or in the community.  The same submission was made to the sentencing judge.  There is no reason to think, and the grounds of the application do not contend, that the sentencing judge did not take those matters into account.  Those matters do not support a conclusion that the sentencing judge was obliged to moderate the sentence upon the false premise that the applicant had served 18 rather than 12 months in custody under the previous sentence.
18. [18]
    I would add that even if, contrary to my opinion, the totality principle should have been applied in the way advocated by the applicant, the sentencing decisions cited at the sentence hearing and in this application are consistent with my view that the sentence is not manifestly excessive: see R v Anderson,^[14] R v Host^[15] and R v Massey^[16] (cited by the respondent) and R v Buckman^[17] and Wheeler v The Queen [No 2]^[18] (cited by the applicant).
19. [19]
    I would dismiss the application.
20. [20]
    McMURDO JA:  I agree with Fraser JA.
21. [21]
    BODDICE J:  I agree with Fraser JA.