The Totality Principle When Sentencing Offenders in New South Wales

 

29-year-old Samuel Davidson killed four children after he lost control of his ute in 2020 after he hit a kerb at 111 km/h, colliding into a group of seven kids in Sydney’s west in Oatlands. Four of them were killed, leaving the other three injured.

The age of the children killed ranged from 9 through to 13.

Samuel was intoxicated with cocaine, MDMA and alcohol after consuming the substances earlier at home.

Samuel was initially sentenced for manslaughter by criminal negligence in April 2021 to 28-years imprisonment, which included a non-parole period of 21-years representing the minimum period of time he must spend behind bars before being eligible for release back in the community on parole.

Following his sentencing, he lodged an appeal to the Supreme Court of Criminal Appeal. His ground of appeal was that the sentence received was ‘manifestly excessive’.

The Court of criminal appeal accepted Samuels argument which resulted in the court reducing his sentence by eight years. The appeal court then imposed a sentence of 20-years, with a 15-years non-parole period meaning that he will be eligible for release earlier.

The basis of the appeal court’s reasoning for reducing the sentence here was “to produce an aggregate sentence of 28-years was grossly discordant with prevailing sentencing practices…. A sentence for an offence of criminal negligence which leaves a 29-year-old man of prior good character with good prospects of rehabilitation no prospects of release until he is 50 is indeed crushing, and not proportionate to the totality of his criminality.”

The result was an aggregate sentence that was manifestly excessive and inappropriately ‘crushing’ in the circumstances of the case.”

The court was faced with the difficult task of sentencing the offender for the largest number of manslaughter charges arising from one criminal negligent act in NSW thus far.

Samuel is eligible for release on parole back into the community in January 2035.

What is the Totality Principal In Sentencing Offenders?

When a court imposes a sentence involving a number of offences, whether the same, similar or different, the law allows the court to impose an aggregate sentence to include more than one offence in the one sentence, instead of having to impose separate individual sentences for each offence. section 53A Crimes (Sentencing Procedure) Act allows for this. When doing so, the court must outline the indicative sentences for each offence.

The law in New South Wales says that when sentencing an offender for more than one offence, or sentencing an offender serving an existing sentence, the aggregate or overall sentence must be ‘just and appropriate’ to the total criminality of offending conduct to avoid a crushing sentence.

The aggregate sentence must reflect the totality of the offending. This is when the totality principle applies when imposing an aggregate sentence for multiple offences. In addition, the sentences imposed can be concurrent or accumulative or partially concurrent with each other at the discretion of the sentencing court.

The level of concurrency for each such sentence is discretionary and must comprehend and reflect the criminality of the other offence(s). This may vary from case to case.

The level of concurrency and accumulation between sentences is also based and dependent upon the totality principle.

For example, if the sentence for one offence can comprehend and reflect the criminality of the other, then the sentence should be concurrent to avoid the risk for the combined sentences to exceed that which is warranted to reflect the totality of the two. Otherwise, the sentence should at least be partially cumulative to avoid the risk that the total sentence fails to reflect the total criminality of all the offences.

Factors to consider in determining the totality principle include, whether the sentence for one offence comprehends and reflects the criminality of the other, closeness in time and proximity of the two or more offences, whether the victims are separate or same, where two or more offences committed during the course of a single episode are of a completely different nature and each individually significant or extreme gravity (then some accumulation will be warranted to address the criminality of the two).

In summary, the case in Mill v The Queen (1988) said, that “the effect of the totality principle is to require a sentence 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’…. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.

Here is more on the four angels laws.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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