Form 1 offences and totality
30In support of her submissions on the first point Ms Francis pointed to the following passage in the sentencing judgment:
"The Form 1
While I must focus on the sentence for the primary offence, a Form 1 can and, as I have indicated, does lead to an increase in the sentence that would otherwise be imposed for the principal offence. Sometimes that increase can be considerable. Here the offender asks that I take into account that he knowingly dealt with the proceeds of crime in the sum of close to two and a half million dollars.
The immense sums able to be taken from users by drug traders are clearly illustrated in this case. The trade in drugs causes immense harm to the community and to individuals. Black money in the community also undermines the community's economic well-being. To willingly participate in the process, knowing what he was doing and knowing the source of the money was illicit, makes this particular matter on a Form 1, when one considers the sum involved, a very serious crime indeed.
Some of the money involved was clearly and intimately involved with the importation, for instance the $500,000 given to Mr T and the $1AUD million changed into US dollars. Other sums involved the movement of the apparent profits of the importation.
In February 2007 the offender travelled with Ahmed Arja to Queensland. On 28 February 2007 the offender and Arja were stopped and searched driving from Queensland to Newcastle with $814,000 in cash in the car. I sentenced Mr Arja to a suspended sentence of fifteen months for his role in this crime. I took into account the utilitarian value of his plea, the delay and his strong subjective case.
The remainder of the money concerned with the Form 1 relates to luxury motor vehicles consistent with the large sorts of profits that can be made by involving oneself with the importation of illicit drugs. The Form 1 matter requires an increase in the sentence for the principal offence and militates against complete concurrence of that offence with that to be imposed for the Commonwealth matters." (emphasis added)
31Ms Francis submitted that the emphasised part of this passage reveals that the sentencing judge took into account the criminality of the applicant as revealed by the Form 1 offence in determining whether the sentence for the supply offence should be made wholly concurrent with the sentence for the import offence. She initially contended that this reasoning was inconsistent with the judgment of Spigelman CJ in Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 ("Attorney General's Application No 1"). As I have stated later, she reformulated this complaint as one involving double counting by the sentencing judge.
32In addressing this contention it is important to note both the statutory context in which this issue arises and the relevant stage of the sentencing process at which this asserted error is said to have occurred. The legislative regime is to be found in Division 3 of Part 3 of the Sentencing Act. The relevant direction to a sentencing judge is to be found in s 33, to which there has been no relevant change since the judgment in Attorney General's Application No 1. Section 33 provides:
"33 Outstanding charges may be taken into account
(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2) The court may take a further offence into account in dealing with the offender for the principal offence:
(a) if the offender:
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
..."
(emphasis added)
33Two matters should be noted about s 33(2). First, one aspect of the statutory permission conferred by s 33(2) is that, once it is engaged, the Form 1 offence(s) may be "taken into account" in sentencing for the principal offence. As noted by Hoeben CJ at CL in Abbas at [91] this "leaves open a wide range of factors, including the weight to be given to a particular matter, and how it may be taken into account in a particular case".
34Second, once the provision is engaged, it operates upon the Court in "dealing with the offender". The phrase "dealing with the offender" is not defined in the Sentencing Act. In this case the relevant "dealing" the subject of the challenge is the exercise of the power conferred by the s 47 of the Sentencing Act to fix a commencement date for the sentence and, in particular, to fix a commencement date prior to the date on which the sentence was imposed (s 47(2)). This is further addressed below.
35Nothing in the express text of any of the statutory provisions just described purports to limit, in the manner contended for by the applicant, the way in which the sentencing judge was able to "take ... into account" the Form 1 offence when fixing a start date for the supply charge.
36This conclusion is, of course, not the end of the analysis as consideration also needs to be given to established principles governing the fixing of commencement dates for different sentences. In this context it is important to note that the asserted error in this case did not arise at the point of determining the appropriate sentence for the supply offence but at what is usually the next step in the sentencing process:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality". (emphasis added) (Pearce v The Queen [1998] HCA 57; 194 CLR 610 ("Pearce") at [45] per McHugh, Hayne and Callinan JJ).
37The body of case law concerning the circumstances in which sentences will be made either fully or partly concurrent or cumulative, including the totality principle, operates upon "dealing" with an offender in accordance with s 33(1) and fixing commencement dates under s 47 (subject to any express provision to the contrary). It is the scope of the totality principle that is relevant to the resolution of the appeal.
38The High Court's judgment in Mill v The Queen (1988) 166 CLR 59 extracts a number of passages from texts and judgments concerning the operation of the totality principle. These include the following passage from DA Thomas, Principles of Sentencing, 2nd ed (1979) at 56 to 57 (Mill at 62 to 63):
"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'."
(references omitted, emphasis added)
39Mill also cited the following passage from R v Knight (1981) 26 SASR 573 at 576 (Mill at 63):
"[I]t seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker L.C.J. in Reg. v. Faulkner, 'at the end of the day, as one always must, one looks at the totality and asks whether it was too much'."
(references omitted, emphasis added)
40To similar effect in R v Holder (1983) 3 NSWLR 245 at 260 Street CJ described the totality principle as follows:
"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
(emphasis added)
41Further in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [4] Gleeson CJ cited with approval a passage from the judgment of Wells J in The Attorney-General v Tichy (1982) 30 SASR 84 at 92 to 93, which I extract in part:
"When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterised, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not."
(emphasis added)
42It is clear that the totality principle is a mitigating principle that operates to ameliorate what would otherwise be the harsh effect of simply accumulating the appropriate sentences for each offence for which an offender is convicted (see also R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [11] per Spigelman CJ, Whealy and Howie JJ). Further, all of the above formulations require that when applying the totality principle the sentencing judge address the "overall criminality involved". In this case the question of principle is whether the assessment of the "overall criminality involved" for the purpose of the application of the totality principle extends to the criminality disclosed in the Form 1 offence. While the above passages were written in a different context and thus do not dictate an answer to the present question they certainly do not provide support for the limitation on s 33(2) contended for by Ms Francis. In my view, they suggest the opposite in that they reinforce the artificiality of excluding the admitted criminality disclosed in a Form 1 offence from the determination of the offender's overall criminality for the purpose of applying the mitigating principle of totality.
43To this point nothing in the text of the relevant statutory provision or the formulation of the totality principle that governs its exercise supports Ms Francis' first submission. This leads to a consideration of the judgment of Spigelman CJ in Attorney General's Application No 1 (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) and the judgments in Abbas.
44In Attorney General's Application No 1, the Attorney General applied for a guideline judgment (see Division 4 of Part 3 of the Sentencing Act) concerning the approach to be adopted towards sentencing for offences in respect of which a list of additional charges under s 32(1) of the Sentencing Act has been prepared. Spigelman CJ rejected the Attorney General's contention that a "top down" approach involving the notional formulation of a separate sentence for Form 1 offences should be adopted (see Attorney General's Application No 1 at [25] and [39]). Instead his Honour stated the approach to be adopted in the following passages to which Ms Francis referred the Court:
"[39] The sentencing court is sentencing only for the "principal offence". It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence.
[40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, that is, the primary offence.
...
[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.
[43] I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence."
45I have set out these passages in their entirety because there was debate during the appeal as to their meaning and scope. In my view these passages were only directed towards the specific matter that the Court was asked to address, namely the determination of the appropriate sentence to be imposed for the principal offence referred to in s 33(1). Thus these passages are directed to the first step of the sentencing process identified in the passage from Pearce cited above. They are not addressed to the next step identified in the above passage from Pearce, namely, where there are two or more sentences, should the sentences be wholly or partly concurrent or accumulated?
46Further, the reference to the "principle of totality" in [42] of Attorney General's Application No 1 needs also to be placed in context. Consistent with the above analysis, Spigelman CJ identified that principle as limiting the amount that a sentence for the principal offence could be increased by reference to the offences listed on a Form 1. Spigelman CJ held that such a sentence could not exceed either the maximum for that offence nor that which would be appropriate having regard to the totality of the criminality disclosed by that offence and the offences listed on the Form 1. The reference to "totality" must embrace the conduct listed in the Form 1 as the phrase "totality" has no sensible meaning if only one offence is being considered. In my view this is confirmed by or at least not inconsistent with the judgments in Abbas.
47Again there is nothing in these passages from Spigelman CJ's judgment in Attorney General's Application No 1 which suggests that the criminality disclosed by Form 1 offences cannot be considered when determining whether the sentence for the principal offence will be made concurrent, in part or in whole, with the sentence for some other offence. To the contrary, given that on my reading of [42] of Attorney General's Application No 1 Spigelman CJ accepted that the criminality disclosed by the Form 1 offences could be considered in applying the mitigating principle of totality to the determination of the sentence for the principal offence, it would seem incongruous if the same approach did not operate at the next stage of the sentencing process.
48Ms Francis also relied on the statement in [39] of Attorney General's Application No 1, which emphasises that an offender is only to be sentenced for the principal offence, when considered with the following other parts of that judgment:
"[24] The 'top down' approach which, notionally, identifies an appropriate penalty for the full gamut of offences, appears to me to be inconsistent with this principle. No doubt it can be said that even the 'bottom up' approach involves, in a sense, punishment 'for' the Form 1 offences, because the penalty for the primary offence is increased. (See, eg, R v Anderson [1978] AC 964 at 977-978, per Lord Diplock.) But that is not necessarily the case, as I sought to show in R v Barton (2001) 121 A Crim R 185 at 195 [64]. (Lord Diplock's observations were appropriately qualified by Neasey J in R v Jones [1978] Tas SR 126 at 131.)
...
[29] I do not understand Wood CJ at CL's reference in R v Bavadra to the 'totality of criminality' to suggest that a sentencing judge should determine sentences for all the offences before the judge, whether on the indictment or on the Form 1. I understand his Honour to have intended no more than the proposition for which Simpson J referred to R v Bavadra as authority in R v Harris (2001) 125 A Crim R 27 at 31 [23] that a sentencing judge '... should give due recognition to the gravity of those offences'. If, contrary to my understanding, the reference in R v Bavadra was intended to suggest that a sentencing judge was imposing punishment for the Form 1 offences, I would respectfully disagree that this is permissible under the statute. The focus, as I will show below, must be on 'the principal offence' alone."
49Ms Francis contended that, by considering the gravity of the criminal conduct disclosed by the offence listed in the Form 1 at the point of determining whether the sentence for the supply offence should be wholly or only partly concurrent with the sentence for the import offence, the sentencing judge was not sentencing the applicant "only" for the supply offence. Instead, she submitted, the sentencing judge was in substance punishing him for an offence for which he had not been convicted (cf Attorney General Application No 1 at [24] and [39]).
50This overstates the effect of these passages from Attorney General's Application No 1. In my view the relevant limitation on the operation of s 33(2) of the Sentencing Act that emerges from all of the above passages from Attorney General's Application No 1 is that no part of the sentencing exercise is to involve the assessment or imposition of any separate sentence for the Form 1 offence(s). This was accepted by all the judgments in Abbas (at [14] per Bathurst CJ, at [64] per Basten JA, at [104] to [105] per Hoeben CJ at CL, at [154] to [155] per Garling J and at [256] per Campbell J). Subject to that limitation, all of these judgments confirm that the reference in s 33(2) of the Sentencing Act to taking into account offences on a Form 1 warrants a consideration of the criminality involved in those offences and can justify the imposition of a longer sentence for the "principal offence". Thus Bathurst CJ stated (at [22] to [23]):
"[22] In my respectful opinion, the approach suggested by Adams J [in R v Dionys [2011] NSWCCA 272 at [10] and R v Calcutt [2012] NSWCCA 40 at [42]] is incorrect if it is interpreted as meaning that a sentence cannot be increased to take into account an additional need for deterrence and retribution in respect of the offences charged by virtue of the Form 1 offences being taken into account. Such an interpretation is contrary, in my opinion, to the meaning of s 33 properly construed and to what was said by Spigelman CJ in Attorney General's Reference. Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.
[23] That approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185. That does not mean that the principle of proportionality referred to by the High Court in cases such as Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; Veen v The Queen (No 2) supra at 472 and 477; Markarian supra at [83], is offended. Rather, the fact that the sentence is to be determined by reference to the additional need for personal deterrence and retribution for the offence for which the offender is being sentenced as a result of the Form 1 charges means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors. That does not involve any injustice to the offender who has chosen to avail him or herself of the s 33 procedure. Nor does it mean that the offender is being sentenced for offences for which he or she has not been convicted. This is because the sentence is imposed by reference to the offence for which the offender has been convicted, by contrast to the "top down" approach rejected in Attorney General's Reference."
51Further at [64] Basten JA stated:
"[Attorney General's Reference No 1] did not reject an effective increase in the sentence for the principal offence on account of the additional criminality revealed in the admitted further offences."
52Hoeben CJ at CL stated at [104]:
"As Spigelman CJ noted in the guideline judgment at [24], as a matter of semantics it can be said that any increase in the sentence imposed for the principal offence by reference to Form 1 offences, could be characterised as punishment 'for' the Form 1 offences. Such an approach, however, gives too broad a meaning to the concept of 'punish' and would apply to any increase in the sentence for the principal offence based on the Form 1 offences. To follow such an approach, would defeat 'the entire point of the [Form 1] process'."
53Garling J agreed with Bathurst CJ (at [154]) and "agreed generally" with the additional observations of Hoeben CJ at CL (at [155]). Campbell J stated at [258]:
"In my view, if at the request of an offender the Court is take further offences into account "in dealing with the offender for the principal offence" it is inevitable that regard must be had to the criminality involved in those further offences. By dint of s 33 Sentencing Procedure Act the admitted further offences on the Form 1 are matters which necessarily bear upon the judgment to be reached about the appropriate sentence for the principal offence. No sensible bearing can be taken from them unless some assessment is made of the criminality involved in the further offences."
54These passages are emphatic in confirming that the criminality disclosed by offences on a Form 1 can and should be considered in determining the appropriate sentence for the principal offence. Of course they are all directed to the first stage of the sentencing process discussed in the extract from Pearce set out above whereas this appeal concerns the second stage. While the judgments in Abbas do not directly deny Ms Francis' contention, they do not provide any support for it either. Further the above extracts confirm that there is a question raised by Ms Francis' proposition which, in my view, has not been answered, namely why should the criminality disclosed by a Form 1 offence be considered at the first stage of the sentencing process but be excluded at the next stage?
55Put another way, what is the source of the alleged prohibition on the sentencing judge considering the offence disclosed in a form 1 when fixing a commencing date for the principal offence? This is fundamentally a question of statutory construction. On their face the phrases "dealing with the offender" and "take ...into account" in ss 33(1) and 33(2) are more than sufficient to enable a sentencing judge to consider a Form 1 offence when addressing questions of cumulation and concurrency that arise with respect to the principal offence and another offence. With respect to the view expressed by Fullerton J (at [5]), I cannot discern anything in the judgment of Bathurst CJ in Abbas that suggests that the phrase "dealing with an offender" is only a reference to the fixing of the length of a sentence and is not a reference to the exercise of the power conferred by s 47(2) of the Sentencing Act to fix a commencing date for the sentence on a date prior to the date the sentence was imposed. The discussion in Abbas concerning the need to consider the criminality disclosed by the Form 1 offence when addressing the need for greater weight to be given to personal deterrence and retribution all took place in the context of considering the first stage of the sentencing process. I cannot discern anything in that discussion that warrants a reading down of ss 33(1) and 33(2) in their application at the next stage of the sentencing process.
56An acceptance of the appellant's proposition would require a sentencing judge to approach the first stage of the sentencing process on a basis that includes a consideration of the offence disclosed on a Form 1 and then adopt a different and narrower basis at another stage by excluding the offence disclosed on the Form 1. In my view there would need to be a compelling reason for construing the phrases "dealing with" and "take ... into account" in s 33(1) and (2) so that they had that result. In my respectful opinion none has been demonstrated.
57Finally I do not consider that the appellant gains any assistance by characterising the sentencing judge's approach in this case as involving a form of "double counting". As I have explained the totality principle operates to mitigate the harsh result that would otherwise ensue if separate sentences were fully accumulated upon one another. The principle is conditioned upon an assessment of the offender's overall criminality. If that assessment is informed by a consideration of the criminality of offences disclosed on a Form 1 that does not amount to the imposition of a separate punishment for those offences without a conviction and nor does it involve "double counting". It is simply another example of how the Form 1 offences operate to reduce the leniency that might otherwise be afforded to an offender. If it were otherwise all consideration of questions of concurrency and accumulation would involve "double counting" in that the criminality of an offence informs both the sentence for that offence and whether that sentence will be made wholly or partly concurrent or wholly cumulative upon the sentence for another offence.
58In my view it follows that in this case the question for the sentencing judge was whether to make the sentence for the supply charge wholly concurrent with the sentence for the import charge. The governing principle in such a circumstance was stated by Howie J in Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27] (with whom Adams and Price JJ agreed):
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
59It follows from the above that I consider that it is open to a sentencing judge to consider the criminality disclosed by offences listed in a Form 1 for the purpose of determining whether the sentence for the principal offence to which they relate should be made wholly concurrent, partly concurrent or wholly cumulative upon any sentence to be imposed for other offences. The offences disclosed in a Form 1 may inform the assessment of the totality of the criminal conduct involved. In this case that meant that, if the sentence for the importation offence was such that it comprehended and reflected the criminality of the supply offence and the Form 1 offence, then full concurrency was warranted. If it could not, then at least some partial accumulation was warranted.
60In this case the sentencing judge analysed the criminal conduct disclosed by the Form 1 offence and concluded that some of it was "clearly and intimately involved with the importation" but that "[o]ther sums involved the movement of the apparent profits of the importation". Thus his Honour concluded that this latter aspect of the dealing in the profits of the importation was an additional matter that meant that partial, albeit limited, concurrency of the sentence for the supply offence with that of the import offence was warranted when considered with the facts of the supply offence. I do not discern any error in that assessment.