Ground 2: Did his Honour err in failing to partially accumulate this sentence on an earlier sentence imposed by the District Court?
49 It will be recalled that Mr Lu was on bail at the time he committed this offence in respect of an offence of supply prohibited drug (the drug offence). He was sentenced for that offence on 26 May 2006 to a total term of imprisonment of 4 years 8 months, with a non-parole period of 3 years 7 months. He was serving that sentence at the time his Honour imposed sentence in this matter.
50 In determining the sentence which should be imposed, including the commencement date of sentence for the offence of manslaughter, his Honour had regard to the sentence imposed for the drug offence and to the principles of totality. In doing so, his Honour referred to Mill v R [1988] HCA 70; (1988) 166 CLR 59.
51 As already indicated above, his Honour rejected the submission that the manslaughter offence should be considered as being due to Mr Lu's heroin addiction, so that it should be imposed partially concurrently with the drug offence.
52 His Honour recognised that although he considered both offences to be discrete and independent criminal acts, that was not determinative of whether the sentence ought to be imposed partially, concurrently, or consecutively: see Cahyadi per Howie J at [27]. His Honour held that partial accumulation would not adequately reflect the criminality for the offence of manslaughter: see Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at [18].
53 Mr Lu contends that his Honour's failure to allow any period of partial concurrence involved an erroneous exercise of his Honour's sentencing discretion. It was submitted that it carried an element of double punishment and resulted in a potentially crushing sentence, involving an effective total non-parole period of 9 years 9 months. It was submitted that this was "simply too long in relationship to the combined criminality" of Mr Lu's crimes.
54 In support of this submission, Mr Lu said that the sentence imposed for the drug offence was a heavy one, as recognised by this Court in Lu v R [2007] NSWCCA 74, at [16]. That submission has to be considered with care. Mr Lu had pleaded guilty to an offence of supply contrary to the provisions of ss 25, 29 and Sch 1 of the Drug Misuse and Trafficking Act 1985. The maximum penalty for such offences involving less than 250 g was 15 years imprisonment: ss 32(1)(c) and 32(1)(g). The quantity involved in Mr Lu's case was comparatively small, being slightly more than 24 g. Hulme J (McClellan CJ at CL and Hislop J agreeing) observed, at [11], that the sentence of 4 years 8 months fell within the top 14 per cent of sentences for a plea of guilty imposed for such an offence. Mr Lu's non-parole period fell within the top 4 per cent. His Honour considered that a quantity of 24 g argued for a lower, rather than a higher sentence, although quantity was not the only relevant factor.
55 Hulme J considered, at [6], that Mr Lu's subjective circumstances "were not such as to inspire leniency". His Honour referred to Mr Lu's long record of offending, his prior periods of imprisonment and the fact he had committed the supply offence whilst on conditional liberty. His Honour noted there was no evidence of contrition and there were poor prospects of rehabilitation. His Honour also noted it was apparent that Mr Lu was a drug dealer. His Honour concluded, at [16], that:
"Personal and general deterrence, retribution and the protection of the community all argued for a heavy sentence."
56 Mr Lu argues that the factors which disentitled him to leniency in the sentencing for the drug offence, were precisely the same factors as taken into account by Price J in disentitling leniency and justifying the imposition of a heavy sentence for the present matter. He said that having regard to those considerations, it was impossible to isolate a relevant sentencing factor as applying solely to one of the respective offences, or as having only one effect upon the individual sentence. There was, therefore, a real danger that as the factors disentitling him to leniency in each case were the same, that he was disadvantaged by the failure to make the sentences partially concurrent.
57 It was submitted that similar considerations arise when the purposes of sentencing, as now set out in s 3A of the Crimes (Sentencing Procedure) Act, are considered. This submission acknowledged that a sentence for each particular crime had, as a critical component, personal and general deterrence. However, whilst there were strong arguments for saying that general deterrence impacts separately for each discrete offence, the same cannot be said for personal deterrence. It followed that partial concurrence would not have resulted in a less severe effective sentence for the manslaughter. Further, the harm done to the victim would still have been recognised. It was submitted that partial concurrence would have seen Mr Lu adequately punished for each offence, protected the community by removing him from it for a substantial time, denounced his conduct and made him accountable for his actions.
58 Mr Lu also advanced an argument that the unnecessarily lengthy combined sentence which has resulted from the refusal of his Honour to partially accumulate, will not assist in promoting his rehabilitation. Reference was made to the statement of McHugh J in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 307-308 that a sentencing judge must ensure the aggregation of sentences is a "just and appropriate measure of the total criminality involved".
59 In R v MAK; R v MSK the Court (Spigelman CJ, Whealy and Howie JJ), after referring to this statement of principle in Postiglione, noted that the need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed arose for at least two reasons. First, the severity of the sentence was not simply the product of a linear relationship. In this regard, the Court, at [16], adopted the comments of Malcolm CJ in R v Clinch (1994) 72 A Crim R 301 at 306, that:
"… the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation, where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.
60 Secondly, an extremely long total sentence may be "crushing" to the offender, which in turn increases the severity of the sentence. It also "destroys such prospects as there may be of rehabilitation and reform": see at [17].
61 The Court in MAK warned, at [18], that the sentencing court must take care in applying the totality principle. Questions of public confidence in the administration of justice meant that it was necessary to avoid any suggestion that the effect of the totality principle was to provide some kind of discount for multiple offending. Further, it must be apparent that when an offender who is already serving a sentence comes to be sentenced for additional offences, the impression must not be given that little or no penalty is imposed for the additional offences.
62 In this case, Mr Lu does not contend that the sentence should be substantially accumulated on the existing sentence. However, he does submit that some modest accumulation was required to avoid a crushing sentence and the risk of double counting. In advancing this submission, he acknowledged the flexibility which must be given to judges at first instance when imposing sentence: see Johnson per Gummow, Callinan and Hayne JJ at [26].
63 The Crown submits that no appellable error has been shown in his Honour's failure to partially accumulate the sentence on the drug offence. It submitted that there was effectively an accumulation when regard was had to the total sentence. This submission, however, does not address the issue raised by Mr Lu, who seeks partial accumulation on the non-parole period.
64 Focussing on that question, the Crown particularly emphasises the seriousness of Mr Lu's conduct in committing the offence whilst on bail: see R v WHS (NSWCCA, Hunt CJ, Smart and McInerney JJ, 27 March 1995, unreported); R v Richards [1981] 2 NSWLR 464 at 465 per Street CJ. See also R v Tran [1999] NSWCCA 109, where Wood CJ at CL, with whom Spigelman CJ, Newman, Hulme and Simpson JJ agreed, said, at [15]:
"Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent."
65 The Crown also points out that in this case, the offence was further aggravated by the fact that it was committed at a time when Mr Lu was serving a suspended sentence imposed by Barrett J in the Drug Court (for an offence different from that imposed by Maguire DCJ for the drug offence).
66 This aspect of the appeal has not been easy to resolve. The matters advanced by Mr Lu invoke important principles which he is entitled to have taken into account in the exercise of the sentencing discretion. Likewise, the principle, repeatedly stated by this Court in cases such as WHS, Richards and Tran is of fundamental importance to the protection of the community. The question for consideration by this Court is where the proper balance lies. Mr Lu has, for a period spanning 15 years, shown a disregard of the law. His prior offending has not been trivial. It has included an offence of assault, drug related offences and break enter and steal offences. His conduct in this case demonstrated that he was prepared to carry out a personal act of revenge intending to occasion actual bodily harm to the deceased. Mr Lu has had several periods of imprisonment, none of which has deterred his criminal activity. He has committed offences whilst on bail and whilst on a suspended sentence. In all of the circumstances, the principles stated in WHS, Richards and Tran have particular application in this case. There was no error in the trial judge, after a considered decision, refusing to partially accumulate the sentence he imposed in this matter on the sentence imposed in respect of the drug offence.
67 In the circumstances, we would grant leave to appeal against sentence, but dismiss the appeal.
68 Accordingly, the orders of the Court are: