Converse backdating


14-Sep-2016 06:50

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It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.” The passage from Thomas was also quoted in R H Mc L v The Queen (2000) 203 CLR 452 at [15] and R v Harris (2007) 171 A Crim R 267 at [44].

Street CJ’s description of the principle in R v Holder [1983] 3 NSWLR 245 is also commonly quoted, for example, in R v MMK (2006) 164 A Crim R 481 at [12].

Street CJ said at 260: 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.

The Court of Criminal Appeal in R v MMK (2006) 164 A Crim R 481 at [11] said the principle of totality was “not-unrelated” to the principle of proportionality.

The task of the court is to ensure that the overall sentence is neither too harsh nor too lenient.

Just as totality is applied to avoid a crushing sentence “…

it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient …”: R v KM [2004] NSWCCA 65 at [55] cited with approval in Vaovasa v R (2007) 167 A Crim R 159 at [18].

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Part 4 Div 2 Crimes (Sentencing Procedure) Act 1999 (ss 55–60) contains provisions relating to the imposition of concurrent and consecutive sentences of imprisonment.It is convenient to explain here what DA Thomas first coined in his Principles of Sentencing, 2nd ed, 1979, Heinemann, London at p 56 as “the totality principle” (see A Ashworth, Sentencing and Criminal Justice, 4th ed, 2005, Cambridge University Press, New York at p 248).