Murray v R

Submissions on the Appeal

1. The applicant and respondent relied on written submissions respectively filed on 25 March 2024 and 2 May 2024. Each party's written submissions were supplemented by oral submissions at hearing.

Applicant submissions

1. The applicant's complaint is confined to the commencement date of the sentence. At the core of the applicant's complaint is that the sentencing judge erred by failing to have regard to the principle of totality in only backdating the sentence for the subject offences by the number of days the applicant had spent in custody solely referable to those offences. The applicant asserts error in that approach, contending that there was a temporal connection between the subject offences and the unrelated offences, demonstrating some overlap in criminality, which warranted a degree of concurrency.
2. The applicant contends that, in failing to have regard to the principle of totality and its relevance to the issue of the commencement date of the sentence, the sentencing discretion had miscarried. In oral submissions, the applicant submitted the Court ought to backdate the applicant's sentence by six months. In support of that contention the applicant relied on "significant overlap" in the criminality involved in the offending and that the "temporal connection" between the Local Court and District Court offences "could be sufficient if it forms part of a series of offences…committed in a particular period of time" to warrant an additional degree of backdating.
3. The applicant submitted that the appeal should be allowed, the aggregate sentence quashed, and the Court proceed to resentence the applicant.

Respondent submissions

1. The respondent submitted no error has been established. The commencement date of a sentence is at the discretion of the sentencing judge, and in this case, the setting of that date does not establish an error of the kind referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40. Nor is it a breach of the overriding principle of totality to commence the sentence date when the sentencing judge did, and accordingly there was no miscarriage of the sentencing discretion.
2. The respondent relies on exchanges between the sentencing judge and legal representatives during the sentencing proceedings in support of the contention that the sentencing judge was "cognisant" of the Local Court sentence and "mindful of the principle of totality" in arriving at the commencement date of the sentence for the subject offences.
3. The sentencing judge backdated the sentences only to reflect the period of time the applicant had spent in custody solely referable to the subject offences. It was submitted that to do otherwise - that is, to backdate the commencement of the aggregate sentence any further, such that it would be served concurrently with the unrelated Local Court sentences - may have seen the Court arrive at an overall aggregate sentence that did not adequately reflect the criminality of the subject offending.
4. The respondent acknowledged that some of the Local Court offences occurred within the same year as the subject offences, so as to establish a "broad temporal connection" between the two sets of offending. However, the respondent submitted that they could not be said to form part of a "broader 'course of conduct'" that would necessitate the sentencing judge to take the Local Court offences into account when considering totality and the commencement date of the subject offences.
5. The respondent submitted that in the event error is established and the sentencing discretion had miscarried, the "outer limit" of any further backdating imposed by this Court should be three months.

Relevant Principles

1. The totality principle is a recognised principle of sentencing that requires the aggregation of multiple sentences to reflect a "just and appropriate" measure of the total criminality involved: Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]; Elmir v R [2023] NSWCCA 260 at [41] per Dhanji J (Gleeson JA and Walton J agreeing).
2. The totality principle is not limited in its application to a consideration of the total criminality involved in the offences for which an offender is to be sentenced but extends to any offences for which the offender is already serving a sentence. In Postiglione v The Queen (1997) 189 CLR 295 at 308; [1997] HCA 26, McHugh J stated: "Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence. The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon: "When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."" (Footnotes omitted.)
3. Whenever sentences are accumulated, careful consideration must be given to the principle of totality. In R v Close (1992) 31 NSWLR 743 Hunt CJ at CL observed at 748B that the principle "is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences": see also Carroll v R [2015] NSWCCA 219 at [25] per McCallum J (as her Honour then was), Hoeben CJ at CL (as his Honour then was) and Adams J agreeing; Harris v R [2023] NSWCCA 44 at [15] per Beech-Jones CJ at CL (as his Honour then was), Yehia and Weinstein JJ agreeing; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] per Howie J (Adams and Price JJ agreeing).
4. In Deakin v R [2014] NSWCCA 121, Hall J, in concluding that error had been established, summarised the relevant principles. Relevantly, his Honour said at [94] (Hoeben CJ at CL and Adams J agreeing): "…(i) It has long been established that the totality principle applies where an offender is serving an existing sentence and is sentenced by a second court for a period after the first offence: Mill v The Queen (1988) 166 CLR 59 at 66; Choi v The Queen [2007] NSWCCA 150 at [157]. In R v MMK (2006) 164 A Crim R 481 at [11] the Court observed: "It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616." (ii) Questions of concurrence and accumulation are discretionary matters for the sentencing judge: R v Hammoud, supra, at [7]; R v Scott [2005] NSWCCA 152 at [31]; LG v The Queen [2012] NSWCCA 249 at [24]. (iii) Judges at 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: Johnson v The Queen (2004) 78 ALJR 616 at [26]. (iv)That said, the discretion is generally circumscribed by a proper application of the principle of totality: R v MMK, supra, at [11]. …"
5. The principle of totality has been recognised as a fundamental principle in sentencing. In Warwick v R [2016] NSWCCA 183, Adamson J observed at [28] (Payne JA and R A Hulme J agreeing): "The principle of totality is, in my view, so fundamental that the failure to apply it will necessarily lead to error. A sentencing judge is required as a matter of law to consider the total criminality involved, not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen (1997) 189 CLR 295 at 308 (McHugh J). As Giles JA said in Wu v R [2011] NSWCCA 102; 211 A Crim R 88: "[52] Application of totality principles is not a matter of leniency. . . [53] The cases have well recognised that totality principles are applicable where there is separate and later sentencing for one of a number of offences of similar character committed in the same episode of criminality, beyond where the delay was due to an interstate element or otherwise because of the operation of the criminal justice system.""

Application of principle to the ground of appeal

1. Pursuant to s 24 of the CSPA, in sentencing an offender, the Court must take into account any time for which the offender has been held in custody in relation to the offence. Section 47(2) of the CSPA provides that: 47 Commencement of sentence … (2) A court may direct that a sentence of imprisonment - (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. …
2. In exercising the discretion under s 47(2), the Court must take into account any time to which the offender has been held in custody in relation to the offence, or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates: s 47(3) of the CSPA.
3. As indicated above, at the time of sentence, the total period that the applicant had spent in custody solely referable to the subject offences was 292 days. However, the applicant had been in continuous custody since 30 December 2020, bail refused in relation to at least some of the subject offences and at least some of the unrelated offences for which he was sentenced in the Local Court.
4. The principle of totality applied to the applicant's sentence in two ways. Firstly, the sentencing judge was required to consider the total criminality of the subject offences in the context of setting an aggregate sentence. The sentencing judge did apply the principle of totality in determining the proportionate aggregate sentence to be imposed for the subject offences.
5. Secondly, the sentencing judge was required to consider totality not only in reference to the offences for which the applicant was being sentenced, but also in reference to the criminality involved in the unrelated offences. It is only by applying the principle of totality in this way that the sentencing judge could have determined whether the total period to be spent in custody "adequately and fairly" represented the totality of the criminality involved in all of the offences to which the total period of imprisonment is attributable.
6. The sentencing judge failed to have regard to the principle of totality in the second way identified above. Regrettably, the sentencing judge was not provided with sufficient assistance in relation to how totality applied, having regard to the total criminality and the total period of imprisonment.
7. I have concluded that the sentencing judge failed to have regard to the principle of totality for the following reasons.
8. Firstly, the sentencing judge did not refer in the remarks on sentence to the sentence imposed upon the applicant in the Local Court, nor was there explicit reference to the principle of totality in that regard. The written submissions relied upon in the sentencing proceedings contained a fleeting reference to the Court's discretion to "give further credit" out of the total period of continuous custody. The reference to totality during the oral submissions in the sentencing proceedings was even more fleeting.
9. The Crown, at sentence, submitted that it would be appropriate to take into account only the time solely referable to the subject offending, when determining the commencement date. However, the Crown acknowledged that the sentencing judge would have to have regard to the "principles of totality."
10. The sentencing proceedings were conducted on 16 September 2022. The sentencing judge reserved judgment until 14 October 2022, at which time the applicant was sentenced and the remarks on sentence delivered.
11. Notwithstanding the cursory attention given to the principle of totality in the sentencing submissions on behalf of the applicant, it was a matter raised at first instance and should have been explicitly addressed in the remarks on sentence.
12. Secondly, the reference in the remarks on sentence (and after the imposition of the aggregate sentence) to the period of 292 days in custody referable solely to the subject offences, does not mean that the sentencing judge implicitly considered the question of totality in relation to the total period of custody served by the applicant. The simple assertion that the commencement date takes into account only the period of custody solely referable to the subject offences, says nothing about the reasons for declining to structure the aggregate sentence in such a way as to provide a measure of concurrency with the existing sentence. The absence of any reasons in this regard supports the contention that the sentencing judge failed to consider totality in connection with the overall sentence of imprisonment to be served by the applicant.
13. Thirdly, had the sentencing judge applied the principle of totality in connection with the overall sentence of imprisonment, it may be expected that his Honour would have referred to the wholly accumulated aggregate sentence as a factor relevant to a finding of special circumstances. His Honour did not do so. The finding of special circumstances was made only on two bases: that this was the applicant's first time in custody and the hardship in custody resulting from the COVID-19 pandemic.
14. It follows that I am satisfied that the sentencing judge erred in his approach to the commencement date of the aggregate sentence imposed on the applicant by failing to consider the principle of totality. The ground of appeal is made out.

Resentence

1. As indicated above, the applicant does not challenge the various findings made by the sentencing judge. There is no complaint about the aggregate sentence or the non-parole period. Although the appeal was conducted on the limited basis that if error was established a further backdate (of either three months or six months) should be applied, the parties proceeded upon the basis that the Court would proceed to resentencing.
2. Given the very limited scope of the ground of appeal, I have given some consideration as to whether the error requires the Court to undertake an independent exercise of the sentencing discretion consistent with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 or whether it could confine itself to correcting the discrete component of the sentence which was the subject of error by adjusting the commencement date of the sentence.
3. The issue as to whether established or conceded error is purely arithmetical or is "entirely discrete" from the discretionary aspects of sentencing, so that the Court can appropriately resentence without undertaking the entire sentencing exercise again, was discussed by a five-judge bench in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 and considered in a number of decisions of this Court: see also Christian v R [2021] NSWCCA 300 at [29]-[37] per Beech-Jones CJ at CL (as his Honour then was) (R A Hulme and Dhanji JJ agreeing); Sausa v R [2023] NSWCCA 95 at [31]-[35] per N Adams J (Wilson and Cavanagh JJ agreeing); DB v R [2024] NSWCCA 18 at [7]-[18] per Hamill J.
4. Having considered these authorities, I have concluded that the error is more than a mere arithmetical error or an error "entirely discrete" from the discretionary aspects of the sentencing, such that it can be rectified by a simple adjustment to the commencement date.
5. It is not possible to know how the sentencing judge would have structured the aggregate sentence had he applied the principle of totality to the overall term of imprisonment. Furthermore, there was no common ground between the parties as to the period of backdate to be applied in the event error was established. It follows that the Court should proceed to resentence the applicant. In doing so, I proceed to consider the material afresh.
6. At the hearing of the appeal, the affidavit of the applicant affirmed 17 April 2024 and the affidavit of Bryan Dowe affirmed 16 April 2024 were read on the usual basis. Shortly after the applicant was sentenced on 14 October 2022, he was transferred to Cessnock Correctional Centre where he remained until 11 May 2023. He was then moved to Goulburn Correctional Centre and remained there until 13 December 2023. The applicant was again transferred to the South Coast Correctional Centre where he is currently detained. The applicant worked as a painter when he was detained at Goulburn, Parklea and Cessnock Correctional Centres. There are not yet any employment positions that have become available for the applicant at the South Coast Correctional Centre, although the applicant hopes to be allocated ground maintenance or sewing work. In 2023 the applicant completed TAFE courses in Drawing, Painting Skills and Developing Understanding of Aboriginal Identity, for which he received a TAFE NSW Statement of Attainment (annexed to the affidavit of Bryan Dowe affirmed 16 April 2024). At present, there are no education courses available at the South Coast Correctional Centre in which the applicant can participate.
7. I adopt the findings of the sentencing judge with respect to the objective seriousness of the subject offences. Although some planning was involved, I am not of the view that the offending constituted planned or organised criminal activity, as comprehended by s 21A(2)(n) of the CSPA. Some of the offences were committed in company and in the home of the victim, both of which are aggravating factors pursuant to s 21A(2)(e) and s 21A(2)(eb) of the CSPA. Furthermore, the offender was subject to conditional liberty at the time he committed the offences.
8. Subjectively, the applicant has demonstrated genuine remorse and has acknowledged the hardship to the victims caused by his offending. The applicant has received some treatment and has availed himself of a number of courses whilst in custody. I accept that he has good prospects of rehabilitation.
9. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s 3A of the CSPA. I agree with the indicative sentences as set out by the sentencing judge. I also agree that the aggregate sentence and the non-parole period imposed by the sentencing judge were appropriate, having regard to the objective seriousness of the offences, the subjective case of the applicant and the purposes of sentencing.
10. I make a finding of special circumstances warranting a variation of the statutory ratio. The period the applicant has spent in continuous custody from 30 December 2020 is his first time in custody. Part of that period in custody was served under onerous conditions, resulting from COVID-19 related restrictions. In addition, I have had regard to the fact that there will be accumulation of the aggregate sentence on the Local Court sentence.
11. In determining the extent of accumulation on the Local Court sentence I have had regard to the principle of totality. Like the sentencing judge, I am satisfied that the period of 292 days in custody solely referable to the subject offences must be taken into account. However, in applying totality, I am satisfied that the non-parole period should be further backdated by a period of three months. I have come to that conclusion for the following reasons.
12. Firstly, there is a loose temporal connection between the subject offences and the unrelated offences for which the applicant was sentenced in the Local Court.
13. Secondly, the applicant has been in continuous custody since 30 December 2020. Although the period between 15 January 2021 and 13 January 2022 relates to the Local Court sentence, the applicant was also bail refused for at least some of the subject offences between 30 October 2020 and 16 September 2022.
14. Thirdly, while the reason or reasons for the call up of the CCO and CRO is unclear on the material, it is open to infer that at least one of the reasons for the call up was the commission of some of the subject offences whilst the applicant was subject to the CCO and CRO. The call up proceedings resulted in the imposition of concurrent terms of imprisonment of three months and one month.
15. Accordingly, I propose the following orders: 1. Grant leave to appeal and extend the time within which to appeal. 2. The appeal against sentence is allowed. 3. The sentence imposed by Judge Coleman SC is quashed and in lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 6 years commencing on 26 September 2021 and expiring on 25 September 2027 with a non-parole period of 3 years and 6 months expiring on 25 March 2025.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2024