Wu v R [2011] NSWCCA 102 | Case summary

The ground of appeal 16The applicant's argument was founded on R v Todd (1982) 2 NSWLR 517. In that case the offender was sentenced in New South Wales some years after the commission of the offence. In the intervening period he had been serving a sentence in Queensland for an offence of the same nature committed at about the same time. Street CJ, with whose reasons the other members of the Court agreed, said at 519-20 that - " ... it would be wrong, in my opinion, to disregard the practical situation that the appellant has already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved. Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on the one occasion. But assuming that they came before separate New South Wales judges, it would be a question for the second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes. It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character. ... Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on a subsequent occasion, and to the fact that the sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between the offence and sentence, when lengthy, will often lead to consideration of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of the sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 17In addition to his agreement with Street CJ, Moffitt P said at 521-2 - "The circumstances that one offence is committed in one State and another offence is committed in a different State should not deter the courts of this State, at least so far as administratively possible, from imposing a sentence or from participating in the imposition overall of sentences, including a minimum sentence, which would be imposed, if all the offences were dealt with by one court in this State. The criminality and the other elements which go to determine sentences do not depend upon which side of the border some of the offences are committed. ... Another difficulty arises where crimes are committed at about the same time in two different States so that, as here, one offence, or group of offences, is dealt with in one State by a sentence being imposed and served (perhaps coupled with some parole provision) and then the accused person is tried and sentenced in the other State some years later. There are some unsatisfactory features in such a sequence of events due only to State boundary lines in one country. Such a delay may be unfair to an accused person by the long deferment of his trial or punishment for one part of his crime and, perhaps, more importantly, the long deferment of his awareness of what is to be the penalty for the offence which he committed years before. I think this is a factor to be taken into account where a long period of imprisonment has already been served. There were grave difficulties in the adjustment of this appellant to his prison life in the beginning in Queensland and then, according to the report, there were considerable signs of adjustment and rehabilitation, and then years afterwards he, as it were, has to face up to charges for offences which have been committed years before. Nothing I say in these remarks is intended in any way to diminish the seriousness of each of the crimes this man committed in this State and in Queensland. I think it is appropriate, however, in looking at the deferment of sentencing him to give careful consideration to what happened in Queensland and what has been the course of imprisonment there and what has been the extent of his rehabilitation." 18A number of different considerations are found in R v Todd . One is regard to totality notwithstanding that the offender is sentenced for one of a number of similar offences committed at about the same time separately from and later than his sentencing for the other offences. Others are regard to the offender's state of uncertainty while the sentencing is delayed, and regard to the progress of the offender's rehabilitation during the period of delay. 19The applicant did not rely on any state of uncertainty between his offences in September-October 2003 and June 2009 (or February 2010), no doubt in the light of R v Kay [2004] NSWCCA 130 to which I later refer. That consideration can be put aside. 20The sentencing judge made favourable findings concerning rehabilitation, including having regard to the time that had passed since the commission of the offences. Her Honour said - "In mitigation I take into account that since his release from prison in 2005 there was no re-offending behaviour. I am satisfied I can accept he has now made significant steps to address his offending behaviour and, in effect, he appears to have made a substantial rehabilitation by his own efforts. I accept that he was in employment between 2005 and 2009 and has been of assistance to his parents, particularly his mother. It seems to me that he is unlikely to re-offend. I take into account the fact that there was [a] significant period between the time of the committal of these offences and his arrest in 2009." 21Her Honour later said - "I consider it is desirable to vary the statutory ratio and extend the period of parole for the reason that there will be partial accumulation of sentences and, as well, a continuation of rehabilitation is desirable. I also take into account the delay in sentencing due to the age of the offences." 22In my opinion, the sentencing judge had appropriate regard to the applicant's rehabilitation over the period since the commission of the offences. I understand his counsel to have accepted this. 23The applicant's argument came down to the submission that totality principles applied notwithstanding that he was sentenced separately and later for the two robberies and the arson, and that there should have been regard to the totality of the sentences imposed in June 2010 and the sentence imposed in June 2004. He relied on the sentencing of Taufahema not as a parity argument, but as an illustration of the application of totality principles which he said should have been applied in his case. The argument was not well captured in the framing of the ground of appeal. 24It is convenient immediately to refer to the sentencing of Taufahema. In sentencing him for the Collectors Tavern Hotel robbery the sentencing judge, Delaney DCJ, said that "had this offence been drawn to the attention of the authorities" at the time he sentenced Taufahema for a number of other offences in April 2005 he "would have taken it into account in the determination of the sentence to be imposed on him on that occasion". The sentence was back-dated to 1 January 2005, whereby Taufahema did not serve any additional period in custody. 25This appears generous, and it is not clear whether in 2005 the "authorities" were remiss in not charging Taufahema or Taufahema was remiss in not confessing to the offence. However, the sentencing of Taufahema is a diversion. If the applicant is correct in his submission, what was done in the sentencing of Taufahema does not matter. If he is not correct, a parity argument was eschewed - his counsel said that the differences between the offenders were such that he could not propound a justified sense of grievance.

Totality principles upon separate and later sentencing 26In R v Todd the offender was sentenced separately and later because of an interstate sentence. That was the case also in Mill v The Queen (1988) 166 CLR 59, where Queensland and Victorian armed robberies were committed in a period of six weeks and the offender was tried and sentenced in Queensland after his release on parole in Victoria. The Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) referred at 63 to complication in applying totality principles "where the offender commits a number of offences within a short space of time in more than one State", whereby the criminal process is deferred in one State for a period of years. Their Honours cited from the judgement of Street CJ in R v Todd , and observed at 64 that the Chief Justice "[made] it plain that the pre-existing sentence, and the aggregate term which would result from the sentence passed by the second judge, were relevant matters necessary to be taken into account by him in determining the head sentence ... ". They said at 65-6 that - " ... the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time." 27In the present case the applicant was not sentenced separately and later because, in the due working of the criminal justice system, he was serving a sentence imposed in another State. He had denied commission of the Buckland Hotel robbery, and it appears that the police were not in a position to charge him with that offence or with the Collectors Tavern Hotel robbery and the arson until Taufahema provided his assistance. 28At least initially, the Crown submitted that the principles in R v Todd did not apply because the delay in sentencing the applicant for those offences was "due to his decision to plead not guilty and to make the Crown prove the charges against him", and that "the comments of McColl JA in R v Kay [2004] NSWCCA 130, are apt". The reference to the judgment of McColl JA took the submission beyond delay from a decision to plead not guilty following arrest on 24 June 2009, which was not the delay on which the applicant relied and was not suggested to have been untoward. The thrust of the submission was that the principles in R v Todd , including as to regard to totality, did not apply because the applicant's separate and later sentencing was not because of an interstate element or otherwise because of the operation of the criminal justice system, but because he had not volunteered his commission of the Collectors Tavern Hotel and Buckland Hotel robberies and the arson. 29The Crown's position was later modified, and was rather variable. However, at least as to totality principles the reliance on R v Kay was misplaced. 30In R v Kay the offence had been committed in October 2001, but the offender was not charged until April 2003 after a DNA sample obtained while he was in custody on another matter was matched to blood at the scene. In the interim he had served a sentence for other offences committed over a period spanning October 2001. The offender submitted, relying on R v Todd , that the sentencing judge had failed to take into account the effect of the delay and his rehabilitation. 31The Court did not accept the submission. R v Todd , Mill v The Queen and the further case of R v Abookahled (CCA, 9 May 1991, unreported) in which they had been applied were distinguished as cases in which the delay in sentencing the offender on the second occasion was due to the operation of the criminal justice system . McColl JA (with whom Levine and Hidden JJ agreed) said that the offender had not been in any uncertainty as to what might happen to him, other than as to whether he would be caught and charged in relation to the October 2001 offence, and continued - "32. This is not, therefore, a case where, to paraphrase Wood J in Abookahled , there is reason to suppose that the October 2001 offence should have been dealt with earlier and that during the period of delay the applicant suffered a period of uncertainty as to his fate. It is not a case where the operation of the criminal justice system prevented the October 2001 offence from being dealt with in connection with the January 2002 proceedings. At that stage the applicant's DNA sample had not been obtained. It is true that there was a delay in analysing that sample, but there was no evidence that the applicant was in a state of suspense pending the analysis. 33. Rather, the applicant was content to remain silent, hoping, presumably, that his association with the October 2001 offence would not be detected. Having remained silent, he now argues that he ought, in effect, be rewarded for his successful concealment of his commission of the offence by a substantially reduced, or even deferred sentence. The authorities make plain that the significance of the delay will turn on the circumstances of each case. In my view the circumstances of this case do not attract the Todd principle." 32Her Honour's remarks were directed particularly to suffering uncertainty. So far as they were also directed to rehabilitation, I respectfully doubt that rehabilitation during a delay, if demonstrated, is of less significance because the delay is due to the offender remaining silent (although that could be material to the nature or extent of the rehabilitation). There is no indication that the application of totality principles, as one of the considerations found in R v Todd , was within her Honour's remarks. I do not understand her Honour to have meant that where an offender is sentenced separately and later, totality principles which would have applied had the sentencing been at the same time as the earlier sentencing are inapplicable because the offender remained silent. 33A number of cases have concerned regard to totality principles where the delay in sentencing the offender on the second occasion was not because of an interstate element or otherwise because of the conduct of the criminal justice system. I refer first to cases in this State, then to cases in other States. 34The applicant initially placed considerable reliance on R v Virgona [2004] NSWCCA 415. In that case the offender had been sentenced in May 1998 for sexual offences committed against a young relative. In August 2003 he pleaded guilty to a number of sexual offences committed over the same period against another young relative. The reason for the delay is not clear, but from the experience of this Court may have been because the second complainant did not come forward for some time. The offender had been sentenced on the basis that, had all offences been dealt with at the same time, totality principles would have brought partial accumulation to a particular overall effective sentence, and it was said at [17] that it appeared that the sentencing judge had had the principles in R v Todd and Mills v The Queen in mind. However, the non-parole period was reduced because (per Hislop J, with whom Wood CJ at CL and Smart AJ agreed) - "19 ... I have come to the view that insufficient weight was given by [the sentencing judge] to the passage of time between the offences and the sentence, to the late return to custody and to the progress of the applicant's rehabilitation and that such matters constitute special circumstances which should be reflected in a shorter non-parole period." 35It does not appear that the Court was referred to R v Kay , decided some six months earlier. The decision of this Court was not with regard to totality principles, although that of the sentencing judge was. There was no adverse comment on the sentencing judge's apparent regard to totality principles, but the matter was not considered. 36R v Todd , Mill v The Queen and R v Kay were considered in R v Shorten [2005] NSWCCA 106, but without reference to McColl JA's "keeping silent" remarks. No totality issue was raised, and the sentencing judge had made the sentence partly cumulative on a sentence earlier imposed for a similar offence. 37R v Kay was again referred to in R v Webster [2005] NSWCCA 110, where the offender claimed that delay in sentencing while he was in custody for other offences had caused him to lose the benefit of totality principles. It was held that the sentencing judge had "had specific regard to the principle of totality and was well aware of the earlier periods of incarceration" and had for that reason taken a particular starting date for some of the sentences, and that "[n]o error in her Honour's treatment of the question of delay has been made out" (at [34]). However, the reasons of Hoeben J (with whom I and Johnson J agreed) included - " [32] Her Honour specifically referred to the delay and the reasons for it. It was only after DNA analyses had taken place that the applicant was identified as the perpetrator of the earlier offences. In that regard the delay was brought about by the applicant's own conduct in remaining silent in respect of those offences. In circumstances where an offender remains silent hoping that the offences will not be discovered, he or she cannot expect a reduced sentence in the absence of demonstrated prejudice. [33] A similar circumstance was considered by McColl JA in R v Kay ... [his Honour set out paras [29]-[33] of R v Kay ]." 38In Dyer v R [2006] NSWCCA 274 there was reference to Mill v The Queen for the relevance of totality principles when the offender had served other sentences since the date of the offence and was currently serving another sentence. It was said that the earlier periods in custody had been intermittent and not continuous, and that there had not been failure to recognise the totality principle. 39More direct attention is found in Thorpe v R [2010] NSWCCA 261. The offender was sentenced in January 2008 for offences committed in May 2007, and in August 2009 for a similar offence committed in April 2007. There was no explanation for the delay in charging the April 2007 offence. The later sentence was made partly cumulative upon the earlier sentences, but in such a way that the effective non-parole period for all sentences extended the statutory ratio, despite a finding of special circumstances. This was the ground of appeal. 40Kirby J said at [37] that the delay in charging was "capable of producing a serious injustice". Referring to R v Todd and Mill v The Queen , his Honour said as to the latter that the same principle as that expressed in that case at 65-6 (see [26**] above) "should be applied where the reason for deferment is delay in prosecution, rather than an interstate crime" (at [43]). His Honour said that if all offences had been dealt with at the same time a different sentence would probably have been imposed for the April 2007 offence, and held that - "46 There can be no doubt that, had Ms Thorpe been sentenced for all offences at the one time, she could have expected, at the very least, that the statutory relationship (3:1) would be maintained. Asking the question identified by the High Court in Mill v The Queen (supra [40]) [ie, what is the appropriate sentence for all the offences], the approach by Sorby DCJ should have been no different. Accordingly, there was, in my view, a need to adjust the sentence." 41Schmidt J differed in the result from Kirby J, not in the relevance of totality principles as discussed in Mill v The Queen but in the consequences of their application. Simpson J disagreed with one aspect of the reasoning of Schmidt J and agreed with the orders proposed by Kirby J; her Honour implicitly concurred in their Honours' acceptance that totality principles should be applied. 42I turn to cases in other States. 43In Jackson v R (1988) 104 A Crim R 196 (Supreme Court of South Australia, Court of Criminal Appeal) the offender had been sentenced in May 1997 for a related and overlapping series of offences (the Westan offences). It was held, referring to R v Todd and Mill v The Queen , that totality principles should have been applied in his sentencing for the Edge offences in April 1998. The Edge offences only came to light in March 1997. Millhouse J observed at 202 that "[w]hile this case does not deal with crossing state lines or with state offences, the principles of totality are the same". Perry J, with whose reasons Nyland J agreed, said at 212 that to apply the "proper approach" noted in Mill v The Queen at 66 (again see [26**] above) - " ... involves a consideration of the question whether, having regard to the totality of the offending involved with respect to both the Westan and Edge offences, it was a fair overall punishment that the appellant serve three months in custody with respect to a head sentence of eight months imposed on the Westan offences, together with a further head sentence of three years and nine calendar months imprisonment with a non-parole period of one year and 10 calendar months on the Edge offences." 44In Dair v Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385 the offender had been sentenced for other offences in August 2003, and it was held that totality principles required consideration of the sentence he would have been given had he then been dealt with for all offences. There was no mention of the reason for the separate and later sentencing for the offence in question; it appears not to have been regarded as affecting the application of totality principles. 45In Clements v R (1993) 68 A Crim R 167 (Supreme Court of Queensland, Court of Appeal) there had been a delay of four years in the sentencing "largely due to [the offender's] own actions principally his escape from custody" (at 171). The offender was presently serving a sentence for another offence. It was said, referring to Mill v The Queen , that - " ... any sentence which a court imposes should take into account the circumstances of the particular case and if a person who has to be sentenced is already serving a lengthy term, then the imposition of a further term imposed cumulatively needs careful consideration" (at 172). 46It was held that making the sentence cumulative on the existing sentence "had an excessive effect in the circumstances of this case". 47R v Knott [2007] SASC 74; (2007) 169 A Crim R 291 was a Crown appeal. The offender was sentenced in November 2006 for offences of armed robbery, unlawful imprisonment and causing grievous bodily harm arising from a home invasion in November 1998. After the home invasion he had committed other offences (armed robbery, larceny and break and enter), for which he had been sentenced in September 1999. The sentencing judge regarded the home invasion offences as the commencement in a course of criminal conduct which ended with the offender's arrest in April 1999. There was no mention of the reason for the separate and later sentencing. 48The offender was sentenced "on the basis that if you had been sentenced by [the prior sentencing judge] for the later offences, some overlap of this sentence would have been appropriate." The judge said - "If sentencing you at the time that you were sentenced by His Honour Judge Muecke, I would have taken the view that this offending warranted a sentence of imprisonment of 11 years. I would have reduced that sentence on account of your pleas of guilty, your willingness to assist the administration of justice and your remorse, to eight years, six months imprisonment. As I have said, if sentencing at that time, I would have considered that partial accumulation with Judge Muecke's sentence, would have enabled regard to be had to this offending occurring at the beginning of a period of offending in respect of which the later offences were dealt with by Judge Muecke and to the totality principle." (at [30]; 299) 49The Crown appeal was upheld. Gray J, with whom Doyle CJ and David J agreed, said - "[31] It was submitted by the Crown that the sentencing Judge was in error to have determined a notional sentence of eleven years by reference to the sentence the respondent would have received, if he had been sentenced in 1999 - that is at the same time as Judge Muecke sentenced - and then to make adjustments to that notional sentence. It was said that this introduced a "two-tier" approach to the sentencing process. Attention was drawn to the observations of the High Court in Markarian [Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357]. ... [33] The sentencing Judge referred to the High Court decision of Mill . That was a case where it was not possible for a defendant to be sentenced in respect of three offences of a like kind that were committed within a short time because they were committed in different States. It was only on extradition from one of the States after the serving of eight years that the defendant could be sentenced in the other State in respect of the remaining offence. That is a different circumstance from the present case. [34] In my view the correct approach to be taken in the present case was identified by Doyle CJ in R v Bruce [(1998) 71 SASR 536 at 541] : [I]t is proper to make some allowance, in a manner in which one cannot be precise, for the fact that a term of imprisonment has already been served for offences that are part of the same pattern of conduct. On the other hand, one has to be careful not to simply take a "bulk discount" approach. People who commit multiple offences cannot assume that the sentences imposed will be less than each offence warrants in isolation. It is only when the combined effect of the sentences is more than is warranted that any question of reduction can arise. [35] The sentencing Judge erred in the application of sentencing principle. The respondent was to be sentenced as at November 2006 with respect to the present offending. It was relevant for the Judge to have regard to events that had occurred since the offending. Those events included the sentence imposed for the 1999 offending. In particular rehabilitation following release on parole was a relevant matter. The approach taken by the Judge involved the fixing of a notional sentence as though the respondent was being sentenced in 1999 and then making adjustments to that notional sentence. As earlier observed that approach was in error." 50The Crown submitted that R v Knott was "almost on 'all fours'" with the present case. I do not agree. The Crown appeal was not upheld because of misapplication of totality principles, but because it was thought that the sentencing judge had engaged in "two tier" sentencing by fixing a notional 1999 sentence and then adjusting it. While Mill v The Queen was a differently circumstanced case, the application of totality principles was accepted by the propriety of an allowance for the earlier term of imprisonment and a question of reduction "when the combined effect of the sentences is more than is warranted" (from R v Bruce , at [34]). 51Delay due to the offender's conduct, such as flight or absconding while on bail, will not be a basis for leniency, although matters such as increased maturity and rehabilitation during the period of delay may be taken into account: see for example R v Shore (1992) 66 A Crim R 37; R v Nahle [2007] NSWCCA 40. 52Application of totality principles is not a matter of leniency. While failure to volunteer commission of the offence may mean that the offender is not entitled to some favourable or fully favourable considerations in the sentencing, it does not deprive the offender of the recognised sentencing principle that, after arriving at appropriate individual sentences, the court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. If it did, there could be conflict with the fundamental right to remain silent. 53The 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. This appears most clearly from Thorpe v R , Jackson v R and Dair v Western Australia , and is implicit in other cases. Consistently with the cases, and correctly as a matter of principle, in my opinion totality principles are applicable although the separate and later sentencing is because the offender remained silent, and was charged and then came to be sentenced when the police subsequently were in a position to bring the charge. 54The reference to R v Kay in R v Webster should not be understood to the contrary. Hoeben J did not rely on R v Kay as to remaining silent in rejecting a complaint that totality principles had not been applied. The rejection was because regard had been had to them. Recognising that I agreed with Hoeben J, to the extent that the reasons should be read otherwise I do not adhere to them.

Wu v R

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