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Court of Criminal Appeal 21 June 2024

Murray v R

[2024] NSWCCA 107

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST S ENTENCE TOTALITY ERROR ESTABLISHED SENTENCE D

Citation: Murray v R [2024] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 21 June 2024
Judges: Bell CJ, Hamill J, Yehia J

Background

The applicant was sentenced in the District Court at Tamworth on 14 October 2022 for 10 offences (with a further three taken into account on a Form 1), receiving an aggregate term of 6 years imprisonment with a non-parole period of 3 years and 6 months. The aggregate sentence was backdated by 292 days to account for time already spent in custody solely referable to those offences, commencing on 26 December 2021.

Separately, and prior to that sentencing, the applicant had been sentenced in the Local Court on 17 February 2022 for unrelated offences. Those Local Court sentences were three accumulated fixed terms totalling 11 months and 29 days, commencing 15 January 2021 and expiring 12 January 2022. The applicant had in fact been in continuous custody since 30 December 2020.

The appeal centred on a narrow point: whether the District Court judge had failed to apply the totality principle when fixing the commencement date of the aggregate sentence, given the existence of the earlier, unrelated Local Court sentences.

  • Whether the sentencing judge erred by failing to consider the totality principle when determining the commencement date of the aggregate sentence, in circumstances where the applicant was already serving (or had served) sentences for unrelated offences

Decision

The Court of Criminal Appeal found that the sentencing judge had erred. The judge's remarks on sentence contained no reference to the Local Court sentence, no explicit engagement with the totality principle in that context, and no treatment of the accumulated aggregate sentence as a factor relevant to a finding of special circumstances. The Court held that this silence was telling: had totality been properly applied, a sentencing judge would ordinarily be expected to address these matters expressly.

The Court confirmed that the totality principle is not confined to connected or contemporaneous offending. A sentencing judge is required by law to consider the total criminality involved across all sentences the offender is serving, including those imposed for entirely unrelated matters. The principle requires the judge to assess whether the overall period of imprisonment is just and appropriate when viewed as a whole.

Yehia J (with Bell CJ and Hamill J agreeing) conducted the re-sentencing. Her Honour found that while the original aggregate term and non-parole period were appropriate in themselves, the commencement date required adjustment. Three factors supported a further backdating of three months: a loose temporal connection between the two sets of offending; the applicant's uninterrupted custody since 30 December 2020 (his first time in custody), during which COVID-19 restrictions applied; and the inference that at least some of the subject offences had contributed to the call-up proceedings that generated part of the Local Court sentence.

Orders Made

  • Leave to appeal granted and time for filing extended
  • Appeal against sentence allowed
  • Original sentence quashed and replaced with an aggregate term of 6 years commencing 26 September 2021 and expiring 25 September 2027, with a non-parole period of 3 years and 6 months expiring 25 March 2025

Key Takeaways

  • The totality principle is not limited to connected or roughly contemporaneous offences. A sentencing court must consider the total criminality across all sentences an offender is serving, including for unrelated matters.
  • A failure to mention an existing sentence (or the totality principle in relation to it) in remarks on sentence may, in context, constitute a legal error rather than merely an unexpressed implicit consideration.
  • Where an aggregate sentence is wholly accumulated on a prior sentence, the sentencing court's failure to address that accumulation as a factor relevant to special circumstances may be further evidence that totality was not applied.
  • Sufficient grounds for re-sentencing existed even though the applicant did not challenge the aggregate term, non-parole period, or findings on objective seriousness; the error went solely to the commencement date.
  • On re-sentencing, factors such as first-time custody, onerous custodial conditions, continuous remand, and a temporal (if loose) connection between the two sets of offending can all bear on the extent to which an aggregate sentence should be backdated to reflect totality.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 24, 32, 47(2), 47(3)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(b)

Cases:
- Postiglione v The Queen (1997) 189 CLR 295
- Mill v The Queen (1988) 166 CLR 59
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- R v Close (1992) 31 NSWLR 743
- Cahyadi v R [2007] NSWCCA 1
- Deakin v R [2014] NSWCCA 121
- Carroll v R [2015] NSWCCA 219
- Lehn v R (2016) 93 NSWLR 205
- Warwick v R [2016] NSWCCA 183
- R v MAK; R v MSK [2006] NSWCCA 381
- Christian v R [2021] NSWCCA 300
- Harris v R [2023] NSWCCA 44
- Elmir v R [2023] NSWCCA 260
- Sausa v R [2023] NSWCCA 95
- DB v R [2024] NSWCCA 18