R v Crofts [1998] QCA 60

". . came very close to doing that. (He) probably only failed because she managed to get her knee up between your legs . . . then she got out of the car and ran."

There was assistance nearby and she got away from the appellant.

In sentencing the appellant, the judge below said:-

"I will impose one sentence for all these offences. It seems to me an appropriate sentence for this activity in which you engaged is a sentence of imprisonment for seven years."

When the application came on for argument, the Court drew attention to the final paragraph in that passage and directed that written submissions be lodged as to the sentencing judge's power to impose one sentence of imprisonment in respect of a number of offences, that issue not having been addressed in the outlines lodged. Those submissions are now to hand.

Although that course has been followed previously[1], Counsel for the appellant and for the respondent are agreed that there is no power to impose a single sentence of imprisonment for a number of different offences.

There are specific provisions for a single fine to be imposed for a number of different offences founded on the same facts or which are part of a series of events that are the same or similar pursuant to the Penalties and Sentences Act 1992, s.49. Similarly a single probation and/or community service order may be made in respect of two or more offences under ss.97 and 107 of the Penalties and Sentences Act. There is, however, no such provision in respect of imprisonment and the expression "term of imprisonment" used in Part 9 of the Penalties and Sentences Act is defined in s.4 as meaning "the duration of imprisonment imposed for a single offence".

There is an obvious additional difficulty when, as in this case, the sentence of imprisonment imposed, exceeds the maximum permissible; for example, the maximum term for assault occasioning bodily harm was three years.

Of course, sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved.[2]

When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved, other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose and cumulative sentences are imposed for one or more other offences, lower sentences than would otherwise be called for can be imposed to achieve a suitable local punishment overall.[3]

It is necessary to impose separate terms of imprisonment for each offence. The judge below imposed "one sentence (of imprisonment) for all offences". In the circumstances the sentencing discretion miscarried, and this Court should now sentence the appellant.

The appellant pleaded guilty. The pleas were late and made after the appellant had absconded on two occasions. Although the submission was made below and is repeated in the outline in support of the application (but not in oral argument) that the appellant was remorseful, there is little basis for any such conclusion. The plea did however mean the complainant was spared the need to give evidence at the trial. It was accepted by counsel for the prosecution that seven years was at the high end of the range that could have been imposed had the case gone to trial.

The appellant was a 34 year old man with a number of previous convictions for offences of violence, including armed robbery in company.

The cases to which the Court was referred suggest that six years is a more appropriate sentence for the attempted rape. Appropriate sentences for the other two offences are three years for indecent assault and 18 months for assault occasioning bodily harm. The sentences should be served concurrently because imprisonment for 6 years adequately punishes the total criminality. Having regard to the circumstances of the offences, the lack of real evidence of remorse, the appellant's previous criminal history and the fact that he absconded twice, this is not a case in which it is appropriate to make a recommendation for early eligibility for consideration of parole.

There should be leave to appeal against sentence, and the appeal should be allowed. The sentence below should be set aside. The appellant should be sentenced to:-

18 months imprisonment for assault occasioning bodily harm.

The appellant was in custody from 21 January 1997 to 12 September 1997, 234 days, for those and no other offences. The Court will declare that the period of 234 days to be imprisonment already served under the sentences.

[1] See, for example, the remarks in Kellerman v Pecko (CA No 244 of 1996, unreported, 4 October 1996); cf R v Williams (CA No 362 of 1995, unreported, 28 November 1995; R v Kay (CA No 122 of 1996, unreported, 18 June 1996).

[2]Mill [1988] HCA 70; (1988) 166 CLR 59.