"105 ... the issue is whether the question whether the total effective period of imprisonment imposed upon the offender ('the aggregate term') infringes the principle of totality is to be tested by having regard to the equivalent pre-amendment sentence, or solely by the aggregation of a fixed term actually imposed after 31 August 2003 (already reduced by the one-third the sentencing amendments requires).
106 A sentencing Judge must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as totality (Mill v The Queen (1988) 166 CLR 58; Pearce v The Queen (supra) per McHugh, Hayne and Callinan JJ (Gummow J agreeing on this) at [45])). It was emphasised in Pearce (ibid, at [47]) that it is important to apply proper principle in fixing the appropriate sentence for each offence. There are two particular reasons for that. The first is that otherwise, orders made for cumulation or concurrence would be made on an imperfect foundation. The second is that failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. It follows from this that adjustments to achieve an aggregate sentence commensurate with the offender's overall criminality in respect of multiple offences ought to be made by orders for cumulation or concurrency, rather than adjustment of sentences for individual offences.
107 That individual sentences are each reduced by one-third does not obviate the problem. That is because the period the offender will actually have to serve in prison will not depend upon the length of the individual sentences, but upon the extent to which they are concurrent or cumulative.
108 It cannot have been the intention of Parliament to require reduction of sentences by one-third to allow for statutory structural changes to the legislative regime, with the object of ensuring that offenders do not spend more time in prison after the amendments than they would have previously, yet permit courts to impose total effective periods of imprisonment longer (and probably significantly longer) than those overall periods would have been prior to 31 August 2003.
109 Miller v The State of Western Australia [2006] WASCA 163 is an example. On any single offence of the various kinds there dealt with, the sentencing Judge was required to impose a term one-third less than she would have imposed for that offence prior to 31 August 2003. The offender would therefore have had to serve one-third less, if sentenced only for that offence. That is the stated intent of the legislation. The one-third rule is not to be applied to the aggregate sentence. But prior to 31 August 2003, the notion of totality would have to have been applied to the aggregate sentence (in Miller, 161/2 years). Because of the changes to the sentencing regime, an offender who now receives an actual sentence of 11 years is liable to serve exactly the same time in prison (parole aside) as if he or she had been sentenced to 161/2 years prior to 31 August 2003. Consistency and fairness in sentencing necessarily require that comparison to be made now when a sentencing Judge (or this Court) comes to consider the application of the totality principle. I do not see Miller as saying anything different. The assessment of the possible sentencing outcomes having been made in that way, the appropriate aggregate outcome is properly arrived at by orders of cumulation or concurrency.
110 With respect, the fallacy in the approach which requires the pre-August 2003 position to be entirely disregarded, is that it assumes a sentencing process must occur in specific or definite stages at which relevant decisions must be made and cannot thereafter be revisited. That is not the process described by the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048. In Wong, Gaudron, Gummow and Hayne JJ explained the 'instinctive synthesis' approach (ibid at [75]) as meaning no more than taking account of all relevant factors to arrive at a single result which takes due account of them all. The sentencer is called on to reach a single sentence which balances many different and conflicting features. This approach was confirmed by the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian, at [37] - [39].
111 Accordingly, I do not see a difficulty with the mechanics of the process. It is clear beyond doubt that the one-third reduction must be applied to the individual sentences for the respective offences, and that must be done before orders for cumulation or concurrency can be made. But none of that precludes a sentencing Judge considering the overall effect of possible individual sentences and various combinations of cumulation or concurrency, before fixing the particular sentences and their appropriate aggregation. Indeed, it seems to me that is implicit in the sentencing approach described by the High Court in Wong and Markarian and the 'last look' required by the totality principle."