By Jessica Incledon, Criminal Lawyer at Gnech and Associates
What is the Totality Principle?
The ‘totality principle’ in criminal sentencing is a common law principle which applies when a court is called upon to impose multiple sentences upon an individual. This principle is not new or controversial. It is however one of those principles that is often criticised and misunderstood by members of the public who don’t have a complete understanding of the principle, its purpose and how it is applied.
The principle was first formulated by Dr David Thomas in his 1970 study of the sentencing decisions of the Court of Appeal of England and Wales[1] where he stated:
‘The effect of the totality principle is to require a sentencer 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’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’
The totality principle exists to prevent an excessive sentence being imposed and is the product of two further sentencing principles, namely ‘proportionality’ and ‘mercy’.
Recently, the courts have started talking about the need to ensure a ‘crushing’ sentence is not imposed.
In 1988 the High Court of Australia quoted Thomas’s formulation of the ‘totality principle in Mill v R[2].
In recent times the legislative introduction of mandatory and minimum sentencing schemes has attempted to erode the ‘totality principle’; however, to ensure unjust sentencing it must remain a mainstay of the Australian criminal justice systems.
In Criminal Sentencing – Part Two (to be published next week), we will look at a recent example where the Court of Appeal intervened in a sentence for serious drug offences, applying the totality principle, setting aside the original sentence and resentencing the offender.
[1] Dr David A. Thomas (1970). Principles of sentencing: The sentencing policy of the Court of Appeal Criminal Division. Heinemann.
[2] [1988] HCA 70 at 8; (1988) 166 CLR 59.
