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In October 2020, the applicant was sentenced by Lyons SJA for drug related offences that were committed in September 2017. In April 2021, the applicant was sentenced by Dalton J for drug related offences that were committed in October 2019. When sentencing the applicant for these latter charges, the sentencing judge imposed a sentence which took into account the sentence for the 2017 charges as a matter concerning totality. One of the issues raised in the application for leave to appeal was whether the sentencing judge erred in applying the totality principle. Ultimately, the Court of Appeal (Holmes CJ and McMurdo and Mullins JJA) held that it was appropriate for the sentencing to consider the 2017 offences when sentencing the applicant for the 2019 charges because the 2019 charges were outstanding at the time the applicant was sentenced for the 2017 offences. The other issues raised in the application are not the subject of this note.
Holmes CJ and McMurdo and Mullins JJA
1 October 2021
On 13 October 2020, Ms Cook was sentenced by Lyons SJA in the Supreme Court for drug related offences committed in September 2017. She was sentenced to an effective head sentence of three years’ imprisonment with an immediate parole release date (“Lyons SJA sentence”). .
On 21 October 2020, Ms Cook was sentenced in the Magistrates Court for various minor drug charges committed in 2017 and 2019. Ms Cook was placed on probation for a period of 18 months and fined $100.
Most recently, on 16 April 2021, Ms Cook pleaded guilty in the Supreme Court to a number of offences committed in October 2019. These offences were also drug related. , –. Ms Cook was sentenced on count 4 to 12 months’ imprisonment and the parole release date was fixed at the last day of the sentence which is 15 April 2022. . On all other charges, Ms Cook was convicted but not further punished. .
The application for leave to appeal related only to the parole release date fixed for count 4. The central issue was whether the sentencing judge erred in applying the totality principle. .
Approach of the sentencing court judge to totality
In sentencing Ms Cook, the sentencing judge observed, as summarised by the Court of Appeal, that:
“There were difficulties in considering what a judge dealing with both sets of offences dealt would have done. The separation in time between the two sets of offences and the fact that those committed in September 2017 were ‘predominantly on someone else’s behalf’ whereas the offences committed in or about October 2019 were on Ms Cook’s account may have resulted in cumulative sentences in the hypothetical sentencing process for all offending at the same time.” .
The sentencing judge went on to find that given: (i) the subject offences were each “probably worth two and one-half years”; and that (ii) Ms Cook had been on parole for six months under the Lyons SJA sentence, one year’s imprisonment was an appropriate sentence on count 4. This sentence was to be concurrent with the Lyons SJA sentence. .
Did the sentencing judge err in applying the totality principle?
On appeal, Ms Cook made various arguments in respect of the issue of totality. . Underpinning each of these arguments was the submission that:
“the application of the totality principle caused an unfair outcome where she was sentenced to a higher sentence (12 months’ imprisonment) than if she had been sentenced upon the 2019 offences alone and received a head sentence of two and one-half years with an immediate parole release date after one-third of the sentence which would have resulted in 10 months in custody.” .
It was submitted on behalf of Ms Cook that the totality principle as per Mill v the Queen (1988) 155 CLR 59 (“Mill”) did not apply due to a gap between the incidences of offending, 2017 and 2019, and the offences were not sufficiently similar in nature. .
Justice Mullins (with whom McMurdo and Holmes JJ agreed) held that Mill, and the cases which subsequently built upon it, “do not necessarily limit the application of the totality principle in other appropriate cases where the rationale for the totality principle may justify its application in other cases where the circumstances do not fall squarely within the facts of the earlier cases”. . Her Honour rejected the argument that the sentencing judge was in error in asking what the hypothetical sentence would have been if Ms Cook had been sentenced for the 2017 and 2019 offences at the same time. –. Further, her Honour explained that it was “beyond doubt that totality issues can be considered in relation to a sentence being served in the community”. .
The Court of Appeal held that the gap between the incidence of offending “disappeared” due to the fact that Ms Cook was sentenced for the 2017 offences in October 2020 and that the 2019 charges remained outstanding. .
In these circumstances, totality was a live issue in the sentencing exercise for the 2019 charges. . The sentencing for the 2019 charges “was constrained by the effect of the sentence imposed for the 2017 offences”. .
Ultimately, the Court of Appeal held that a custodial sentence of 12 months’ imprisonment on count 4, requiring actual custody, was fair when considered against the background of the 2017 offences. .
There was no misapplication of the totality principle by the sentencing judge. . The application for leave to appeal against sentence was refused. .
A Hughes of Counsel