Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Wu v R [2011] NSWCCA 102
• Hearing dates: 8 February 2011
• Decision date: 04 May 2011
• Before: Giles JA at [1], RS Hulme J at [61], Adams J at [62]

Decision

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Set aside the sentence imposed for the Collectors Tavern robbery and in lieu thereof sentence the applicant to imprisonment for a non-parole period of 3 years commencing on 25 June 2009 with a balance of term of 1 year and 6 months.

(4) Set aside the sentence imposed for the Buckland Hotel robbery and in lieu thereof sentence the applicant to imprisonment for a non-parole period of 6 months commencing on 25 December 2011 with a balance of term of 2 years and 6 months.

• Catchwords: CRIMINAL LAW - Sentence appeal - sentencing for multiple offences in 2010 - had been sentenced in 2004 for offence part of same course of criminal conduct - no prosecutorial delay - effect of totality principles on 2010 sentencing - failure to volunteer commission of offences does not deprive offender of totality considerations - totality principles applicable although delay not caused by interstate element or conduct of criminal justice system - were not applied - error in sentencing principle - offender re-sentenced
• Legislation Cited: Crimes Act 1900
• Cases Cited: Clements v R (1993) 68 A Crim R 167; Dair v Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385; Dyer v R [2006] NSWCCA 274; Jackson v R (1988) 104 A Crim R 196; Mill v The Queen (1988) 166 CLR 59; R v Abookahled (CCA, 9 May 1991, unreported); R v Kay [2004] NSWCCA 130; R v Knott [2007] SASC 74; (2007) 169 A Crim R 291; R v Bruce (1998) 71 SASR 536; R v Nahle [2007] NSWCCA 40; R v Shore (1992) 66 A Crim R 37; R v Shorten [2005] NSWCCA 106; R v Todd (1982) 2 NSWLR 517; R v Virgona [2004] NSWCCA 415; R v Webster [2005] NSWCCA 110; Thorpe v R [2010] NSWCCA 261.
• Category: Principal judgment
• Parties: Matthew Wu - Applicant; Crown - Respondent
• Representation: Counsel: K H Averre - Applicant; J Dwyer - Respondent Crown; Solicitors: Australian Criminal Law Specialists Pty Ltd - Appellant; S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
• File Number(s): CCA 2009/48490

Decision under appeal

• Before: Ashford DCJ
• File Number(s): 2009/48490

Judgment

1 GILES JA: On 19 February 2010 the applicant was found guilty after trial of the offences of aggravated armed robbery ( Crimes Act 1900, s 97(2)) and arson ( Crimes Act , s 195(1)(b)). On 22 February 2010, the day fixed for commencement of a further trial, he pleaded guilty to a third offence of armed robbery ( Crimes Act , s 97(1)). I will call the offences counts 1, 2 and 3 respectively.

2 The maximum penalty for count 1 was 25 years imprisonment, for count 2 was 10 years imprisonment, and for count 3 was 20 years imprisonment.

3 On 9 June 2010 the applicant was sentenced by Ashford DCJ to imprisonment -

• on count 2, for a fixed term of 1 year commencing on 25 June 2009;
• on count 1, for a non-parole period of 3 years commencing on 25 December 2009 with a balance of term of 1 year and 6 months; and
• on count 3, for a non-parole period of 6 months commencing on 25 December 2012 with a balance of term of 2 years and 6 months.

4 The effective sentence was imprisonment for 6 years and 6 months expiring on 24 December 2015, with a non-parole period of 4 years expiring on 24 June 2013.

5 The applicant seeks leave to appeal against the sentences on the sole ground -

"The sentencing judge erred in failing to properly and adequately take into account the effect of the age of the offences in the light of the sentence of imprisonment served by the applicant for a like offence committed at the time of the offences, a period on parole and out of gaol and the approach taken in the sentencing of the co-offender Taufahema."

The offences

6 The offence the subject of count 1 was committed on 21 September 2003. The applicant and three others, including Viliami Taufahema, entered the Collectors Tavern Hotel at Parramatta. Taufahema was armed with a pistol. They told the patrons and the manager, Mr Nathan Pepper, to get down on the floor, and then told Mr Pepper to open the safe in the manager's office. The pistol held by Taufahema was used for "crowd control". Coins and notes were removed and placed in a bag. Mr Pepper was told to take out the video tape of the security system, which he did. On leaving, the applicant punched Mr Pepper in the face. About $30,000 was taken.

7 Taufahema gave evidence at the applicant's trial. The facts found by the sentencing judge included that the applicant had telephoned Taufahema asking him if he "wanted to go to work", which the sentencing judge described as apparently a euphemism for the performance of an armed robbery, and that the applicant had provided the pistol to him.

8 The offence the subject of count 2 was also committed on 21 September 2003. It involved the motor vehicle used in the robbery. The applicant picked up the other offenders and they drove around looking for a place to rob. They left in the vehicle after the robbery. The applicant then destroyed it by setting it on fire.

9 The offence the subject of count 3 was committed on 28 October 2003. The applicant and a co-offender, Norman Fisher, went to the Buckland Hotel at Alexandria. They played the poker machines for a short time. Fisher then held a knife to the manager, Mr Croft, and robbed him of $8,000. At the time the applicant was at the bar area, speaking on a mobile phone, and was captured on CCTV. The applicant and Fisher left the hotel and ran away.

History

10 On 12 November 2003 the applicant and Fisher robbed the National Australia Bank at Windsor. On 3 June 2004 the applicant was sentenced for robbery in company to imprisonment for 3 years with a non-parole period of 1 year and 6 months. Since the sentence was backdated to 13 November 2003, I infer that the applicant was arrested and charged with the offence on that day, and was in custody until he was sentenced.

11 On 28 November 2003 the applicant was interviewed by the police in relation to the Buckland Hotel robbery. At the time of the National Australia Bank robbery he was wearing a blue baseball cap, which was identified as that worn by him as shown on the CCTV footage. He denied the offence. The applicant was then placed in the same cell as Fisher, and through a lawful listening device their conversations were recorded. The conversations implicated the applicant in the Buckland Hotel robbery, perhaps rather equivocally.

12 The applicant was not then charged with the Buckland Hotel robbery; the evidence was only that on 25 June 2009 he was arrested for that offence, the arson offence and Collectors Tavern Hotel robbery. There was no exploration of why he was not immediately charged or what changed to bring his arrest in June 2009. The applicant did not contend that there had been prosecutorial delay.

13 The applicant served the sentence for the National Australia Bank robbery. He was released on parole on 21 November 2005, having remained in custody after 12 May 2005 on remand for a further offence, and was on parole until 12 November 2006 and at liberty until his arrest on 25 June 2009.

14 In circumstances not revealed in the evidence, on 24 March 2009 Taufahema was arrested and charged with the Collectors Tavern Hotel robbery. He pleaded guilty, and was sentenced on 24 September 2009. He received a discount for assistance to the authorities. According to the applicant's submissions, Taufahema "first spoke to police in relation to this matter in March 2009", it seems meaning in relation to the applicant's role in the Collectors Tavern Hotel robbery. The applicant's arrest on 24 June 2009, at least his arrest for the Collectors Tavern Hotel robbery and the arson, was apparently a result of Taufahema's assistance.

15 As earlier noted, the applicant stood trial on counts 1 and 2 in February 2010, and following his conviction for those offences pleaded guilty to count 3.

The ground of appeal

16 The 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."

17 In 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."

18 A 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.

19 The 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.

20 The 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."

21 Her 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."

22 In 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.

23 The 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.

24 It 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.

25 This 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

26 In 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."

27 In 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.

28 At 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.

29 The 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.

30 In 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.

31 The 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."

32 Her 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.

33 A 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.

34 The 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."

35 It 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.

36 R 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.

37 R 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 ]."

38 In 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.

39 More 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.

40 Kirby 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."

41 Schmidt 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.

42 I turn to cases in other States.

43 In 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."

44 In 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.

45 In 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).

46 It was held that making the sentence cumulative on the existing sentence "had an excessive effect in the circumstances of this case".

47 R 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.

48 The 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)

49 The 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."

50 The 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]).

51 Delay 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.

52 Application 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.

53 The 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.

54 The 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.

Application of totality principles in this case

55 The sentencing judge made but passing reference to the applicant's sentence for the National Australia Bank robbery. Her Honour said that the applicant "was in custody between 2003 and 2005", and elsewhere referred to his release from prison and his employment and other circumstances thereafter. She said (see [20]-[21]] above) that she took into account "the fact that there was a significant period between the time of the committal of these offences and his arrest in 2009" and that she took into account "the delay in sentencing due to the age of the offences". There was no mention of totality having regard to the earlier sentence. On the contrary, when her Honour addressed "cumulation, concurrency or totality" it was in relation to the sentences she was imposing.

56 The Crown submitted that it was only if the sentences were "so great as to suggest that the issue of totality in respect of the earlier offence and the sentences imposed on them had been ignored" that the intervention of this Court would be "triggered". It is clear, in my opinion, that the sentencing judge did not have regard to the totality of the sentences imposed in June 2010 and the sentence imposed in June 2004. The submissions to her Honour adverted to this application of totality principles rather obliquely, by reference to the sentencing for the National Australia Bank robbery but also by inviting backdating prior to 25 June 2009 "because that's what Judge Delaney did with Mr Taufahema". Her Honour did not receive appropriate assistance. Be that as it may, there was error in sentencing principle which can not be overlooked.

Resentencing

57 The effective non-parole period for the sentences imposed in 2010 was 4 years. Notionally adding the sentence for the National Australia Bank robbery would bring an additional non-parole period of 1 year and 6 months, a total non-parole period of 5 years and 6 months for all offences.

58 The appeal papers disclosed no more than that the applicant and Fisher robbed the National Australia Bank. Notwithstanding the dearth of information, it was accepted that the robbery was part of a course of criminality over the few months.

59 It was not suggested that the individual sentences, for any of the robberies or the arson, were inappropriate. Had the applicant been sentenced for all offences at the one time, in my opinion the application of totality principles would have brought some concurrency of the non-parole periods of the sentence for the National Australia Bank robbery with the other sentences. Taking account also of the applicant's rehabilitation since the commission of the offences, on totality principles the effective non-parole period should be 3 years with a balance of term of 2 years and 6 months. A conventional structuring of the sentence for the National Australia Bank robbery and the other sentences is not possible. This can be done by making the sentencing on count 2 wholly concurrent with the sentence on count 1 and making the sentence on count 3 commence on 25 December 2011.

Orders

60 I propose the orders -

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Set aside the sentence imposed for the Collectors Tavern robbery and in lieu thereof sentence the applicant to imprisonment for a non-parole period of 3 years commencing on 25 June 2009 with a balance of term of 1 year and 6 months.

(4) Set aside the sentence imposed for the Buckland Hotel robbery and in lieu thereof sentence the applicant to imprisonment for a non-parole period of 6 months commencing on 25 December 2011 with a balance of term of 2 years and 6 months.

The applicant will be eligible for release to parole on 24 June 2012.

61 R S HULME J: I agree with the orders proposed by Giles JA and generally with his Honour's reasons.

62 ADAMS J: I agree with Giles JA.

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Decision last updated: 18 October 2013