Ground 7: Her Honour erred by failing to have sufficient regard to the principle of totality.
23It is further argued the judge had insufficient regard to the principle of totality, particularly since all the offences were part of an extended course of conduct. The principle relating to totality was explained in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 where at [18] the Court considered Mill v The Queen [1988] HCA 70; (1988) 106 CLR 59 and said:
"In Mill (supra), Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing, 2nd ed (1979) at 56-57:
"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".'"
24The Court went on to say at [26]:
"The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates (1998) 194 CLR 610 at 624 [45] per McHugh, Hayne and Callinan JJ. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce. His only error may have been to fail to state starting and ending dates, but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error. What his Honour intended was obvious enough and did not fail in substance to give effect to the Act."
25The sentencing judge gave careful consideration to each of the sentences and she was conscious of the need to fix the last sentence in such a way as to achieve a balance in respect of the whole sentence. For the reasons given there is a need to review the sentences on Counts 1 and 6 and in that sense to review the total sentence but apart from that I do not believe her Honour departed from the sentencing principles as expressed in Johnson v The Queen (supra). I would reject this ground of appeal.