Mill v R [1988] HCA 70; (1988) 166 CLR 59 (8 December 1988)

HIGH COURT OF AUSTRALIA

MILL v. THE QUEEN [1988] HCA 70; (1988) 166 CLR 59

F.C. 88/066

Criminal Law

High Court of Australia

Wilson(1), Deane(1), Dawson(1), Toohey(1) and Gaudron(1) JJ.

CATCHWORDS

Criminal Law - Sentence - Totality principle - Application where offences of same nature committed in different States about same time -

Imprisonment upon conviction in first State - Trial in second State after release - Conviction - Approach to sentencing.

HEARING

1988, September 7; December 8. 8:12:1988

APPEAL from the Supreme Court of Queensland.

DECISION

WILSON, DEANE, DAWSON, TOOHEY AND GAUDRON JJ. On 10 March 1988 the applicant was convicted in the Supreme Court of Queensland on his plea of guilty to one charge of armed robbery in company committed in that State on 19 January 1980 ("the Queensland offence"). He was sentenced to imprisonment with hard labour for eight years, with a recommendation that he be considered for parole after serving three years of that sentence.

2. Prior to committing the Queensland offence, the applicant had committed two other armed robberies in Victoria, one on 8 or 9 December 1979 and the other on 5 January 1980 ("the Victorian offences"). Thus all three offences were committed within a period of six weeks.

3. The applicant was apprehended in Victoria on 5 February 1980 and remained in custody until 1 September 1980, when he was sentenced in respect of the Victorian offences to an effective head sentence of ten years with a non-parole period of eight years. The sentence and non-parole period were apparently backdated to the time when the applicant was taken into custody. On his release on parole in Victoria he was arrested and returned to Queensland to be tried for the Queensland offence.

4. The applicant is 38 years of age. He has a bad criminal record, including a conviction in 1975 for armed robbery for which he was sentenced to eight years imprisonment with a non-parole period of six years. On his arraignment on 10 March 1988, the applicant's counsel made submissions referable to his rehabilitation. Counsel informed the trial judge that whilst in prison in Victoria the applicant had undertaken courses in woodwork and upholstery and had some prospects of future employment upon his release. The applicant was anxious to finalise all outstanding matters and for that reason had co-operated with the Queensland police.

5. In sentencing the applicant, the learned trial judge (Matthews J.) acknowledged that the fact that the applicant had been in gaol in Victoria for eight years was something he should take into account. His Honour referred to the decisions of Reg. v. Todd (1982) 2 NSWLR 517 and Reg. v. Jenkyns (unreported, Court of Criminal Appeal of Queensland, 11 June 1986) as indicating the approach that he should take and then continued:

"in trying to act on the principles stated by the

judge in that case to which I have just referred

(i.e. Jenkyns) I should fix a head sentence which

reflects, along with the sentences you got in

Victoria, the seriousness of the three crimes which

you committed in December and January of 1980.

In doing that I would sentence you to a term

in respect of this particular case today of eight

years' imprisonment; and then to carry on and to

really give account to the fact that you have

already served eight years, I would make the

further recommendation that you be considered for

parole after serving three years of that sentence."

6. The applicant applied for leave to appeal to the Court of Criminal Appeal on the ground that in all the circumstances the sentence was manifestly excessive. In a short judgment, Kelly S.P.J., with whom Ryan and Moynihan JJ. agreed, expressed the view that "the learned sentencing judge adopted the correct approach and there is nothing in the principle which he applied to which any objection could be taken." The application was therefore refused.

7. Special leave to appeal is now sought by the applicant on the ground that the case raises an important question regarding the appropriate principle of sentencing when crimes closely related in time and nature are committed in more than one State or Territory of the Commonwealth. In short, the submission advanced for the applicant is that in such a case the offender, when he comes to be sentenced in a different State or Territory from that in which the original sentencing court is located, should receive a sentence which would be consistent with the totality of the sentences he would have received if he had committed all the offences in the State or Territory of the original sentencing court and had been sentenced for all those offences on the same occasion. (Hereafter in these reasons when we refer to a "State" we intend the reference to include a Territory.)

8. The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):

"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'."

See also Ruby, Sentencing, 3rd ed. (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

9. The totality principle has been recognized in Australia. In Reg. v. Knight (1981) 26 SASR 573 the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ.) said, in a joint judgment, at p 576:

"it seems to us that when regard is had to the

totality of the sentences which the applicant is

required to undergo, it cannot be said that in all

the circumstances of the case, the imposition of a

cumulative sentence was incommensurate with the

gravity of the whole of his proven criminal conduct

or with his due deserts. To use the language of

Lord Parker LC.J. in Reg. v. Faulkner (1972) 56

Cr.App.R.594, at p 596, 'at the end of the day, as

one always must, one looks at the totality and asks

whether it was too much'."

See also Reg. v. Smith (1983) 32 SASR 219; Ryan v. The Queen [1982] HCA 30; (1982) 149 CLR 1, at pp 21, 22-23.

10. The application of the principle becomes more complicated where the offender commits a number of offences within a short space of time in more than one State. Upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of the processes of the criminal law in the second State for a period of years. That is what happened in the present case.

11. The problem was considered in 1979 by the Court of Criminal Appeal of New South Wales (Street C.J., Moffitt P. and Nagle C.J. at C.L.) in Todd (a decision not reported until 1982). In that case, the appellant was sentenced in Queensland in December 1974 to imprisonment for eight years, with a non-parole period of three years, for offences of armed robbery committed in January 1974. At the time he was sentenced he had already been in custody for some ten or eleven months. In May 1979 the appellant was sentenced in the District Court in New South Wales to imprisonment for ten years for armed robbery and concurrent sentences in respect of other charges. These offences were also committed in January 1974. The sentences were expressed to commence on 30 January 1979 and a non-parole period was specified, expiring on 18 May 1983. Street C.J., with whose reasons the other members of the Court agreed, said, at pp 519-520:

"it would be wrong, in my opinion, to disregard the

practical situation that the appellant had already

served a substantial period of imprisonment in

Queensland for offences so closely related in time

and character to the Sydney offences. ...

... where there has been a lengthy postponement,

whether due to an interstate sentence or otherwise,

fairness to the prisoner requires weight to be

given to the progress of his rehabilitation during

the term of his earlier sentence, to the

circumstance that he has been left in a state of

uncertain suspense as to what will happen to him

when in due course he comes up for sentence on the

subsequent occasion, and to the fact that

sentencing for a stale crime, long after the

committing of the offences, calls for a

considerable measure of understanding and

flexibility of approach - passage of time between

offence and sentence, when lengthy, will often lead

to considerations of fairness to the prisoner in

his present situation playing a dominant role in

the determination of what should be done in the

matter of sentence; at times this can require what

might otherwise be a quite undue degree of leniency

being extended to the prisoner."

The Chief Justice proceeded to make it plain that the pre-existing sentence, and the aggregate term which would result from the sentence passed by the second judge, were relevant matters necessary to be taken into account by him in determining the head sentence. See also the additional comments of Moffitt P., at pp.521-522. In Todd there was no challenge to the head sentence.

12. Todd was followed by the Full Court of the Supreme Court of South Australia in Reg. v. Suckling (1983) 33 SASR 133. Likewise, as was done by the trial judge in the present case, Todd has been cited with approval in Queensland. In Reg. v. Stringfellow (unreported, Court of Criminal Appeal of Queensland, 8 November 1984) Andrews S.PJ., with whom Macrossan and Ryan JJ. agreed, said 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. (See,

for example, The Queen v. Todd ...)."

13. In Jenkyns Connolly J., with whose judgment Williams and Ambrose JJ. agreed, referred with approval to Todd and proceeded to make a statement the correctness of which is critical to the outcome of the present application. His Honour said:

"It seems to me, however, that a good working

approach to this problem is to consider what this

string of offences ranging from 13 September 1979

to January 1980 would have attracted by way of a

totally effective sentence had he been dealt with

in Queensland in 1980 and then endeavour to mould a

decision, the head sentence of which reflects the

seriousness of the offences to which he has pleaded

guilty, and the recommendation for parole would

reflect a desire to ensure that he does not serve

more than a period which would accord with the

principles laid down in Todd and which would have

regard in particular to his subsequent

rehabilitation and to the responsibilities which he

has taken on since this serious criminal escapade

in 1979-1980."

It would seem that in Jenkyns, as in Todd, the appellant did not attack the head sentence but sought only a reduction in the non-parole period. Williams J. added the following comment:

"In my view the sentencing judge approached

the problem before him by imposing a head sentence

which reflected the tariff applicable to offences

of the type in question, but then, in accordance

with the reasoning illustrated in The Queen v.

Todd ..., and in this Court in The Queen v.

Stringfellow ..., made a recommendation for early

release on parole.

In determining that particular issue it is

appropriate for the sentencing judge to have regard

to the extent to which the appellant has

rehabilitated himself in consequence of the period

of imprisonment served interstate. In my view that

factor is not adequately reflected in the sentence

below."

14. This, then, is the background against which the applicant's submission falls to be evaluated. In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. But, with respect, we think that the exposition of principle in Todd has been misunderstood by the Court of Criminal Appeal in Jenkyns and in the present case. The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.

15. In the present case, the learned trial judge cited the passage from the judgment of Connolly J. to which we have referred and then followed it by fixing a head sentence of eight years. We should add that his Honour was encouraged to take that course by the Crown Prosecutor who submitted that a heavy head sentence should be imposed, "signifying the way that the Courts and community treat these types of offences". It was, in the prosecutor's submission, the length of the non-parole period - and, presumably, that alone - that was to reflect the fact that the applicant had been in custody for eight years and had pleaded guilty and co-operated in bringing the matter to a conclusion.

16. In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either twelve or thirteen years. An appropriate non-parole period may well not have been much more than the eight years actually imposed by the Victorian court. But, of course, it is not possible for a second sentencing court to impose a concurrent sentence of the kind we have contemplated in the absence of statutory provisions enabling the backdating of the new sentence (cf. Reg. v. Gilbert (1975) 1 WLR 1012; (1975) 1 All ER 742 and Reg. v. Garrett (1978) 18 SASR 308). Section 20 of The Criminal Code (Q.) does not allow such a course to be taken. Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.

17. If it be suggested that there is a degree of concurrency present in the sentence imposed on the applicant for the Queensland offence, because the sentence commenced at a time when the Victorian sentence still had two years to run, the answer is that to construe the circumstances in that way effectively denies to the applicant any remissions on the Victorian sentence.

18. In our opinion, therefore, the applicant has made out his case that a significant error of principle is reflected in the punishment that has been imposed upon him. We would grant special leave to appeal, allow the appeal, set aside the order of the Court of Criminal Appeal refusing leave to appeal and remit the matter to that Court to be dealt with in accordance with the above reasons.

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of the Supreme Court of Queensland refusing leave to appeal.

Remit the matter to the Court of Criminal Appeal for the application to that Court to be dealt with according to law.