R v Symss

This judgment concerns the application of the principle of totality and, in particular, whether a sentence ought to be reduced so as to avoid being “crushing” to the defendant.

Sofronoff P and Morrison and McMurdo JJA

14 February 2020

The applicant was sentenced before the District Court to 16 years’ imprisonment in respect of seven offences including rape, burglary and indecent assault. The appeal against sentence was argued on the basis that it was manifestly excessive because of comparable authorities and a misapplication of the principle of totality. President Sofronoff wrote the leading judgment (with whom Morrison and McMurdo JJA agreed), granted leave and allowed the appeal.  

The applicant had committed a series of offences from 1993 and was sentenced to terms of imprisonment at the age of 18 years. [1]. Subsequently, in 1996, he committed the seven offences subject of the appeal against sentence. [2]. No charge was laid in respect of these matters until 2013 when DNA evidence was unearthed by Police. [10].

During the interval the applicant was sentenced in Victoria to imprisonment and then to a 22 year term of imprisonment in New South Wales for murder. [5]–[6]. The full-time expiry of that sentence was 26 April 2021, therefore there was only a short period of overlap with the periods imposed in the District Court on 1 March 2019. The effect of the sentence at first instance was to extend the duration of the applicant’s imprisonment to 1 March 2035 and would have seen the applicant continuously incarcerated from the age of 24 to the age of 57. [38].

President Sofronoff distinguished the seminal case of Mill v The Queen (1988) 166 CLR 59 on the basis that the offending for which the applicant was to be punished was not related closely in time. [18]–[20]. His Honour, however, revisited the principle of totality and discussed its constituent parts including notions of proportionality and the prohibition on double punishment. [22].

Ultimately, his Honour opined that another aspect of the principle of totality, namely to avoid a sentence that is “crushing” was applicable and had not been employed to sufficiently ameliorate the sentence at first instance. [30]. Consequently, the sentence was varied by reducing the effective head sentence to 10 years’ imprisonment and a parole eligibility date was set after a 40 percent custodial portion. [42].

J Feely of Counsel