By Jessica Incledon, Criminal Lawyer at Gnech and Associates
16 August 2022
The decision of R v Campbell, delivered by the Court of Appeal on 2 August 2022, involves a consideration of sentencing principles, in particular the principle of totality.
What is the totality principle?
The totality principle is a common law principle that is often required to be applied alongside legislative considerations by a Magistrate or Judge during a sentence. The principle requires a court dealing with an offender either:
- being sentenced for multiple offences at once; or
- already serving an existing sentence,
to have regard to the totality of all criminal behaviour to avoid a ‘crushing’ sentence. The end sentence must be ‘just and appropriate’ for all the ‘totality’ of the offending behaviour, rather than a linear calculation of sentences for each offence.
The Facts
In R v Campbell, the applicant pleaded guilty to various offences, the two most serious being trafficking in methylamphetamine and attempting to pervert the course of justice.
At the time of the offending the applicant was on parole for an earlier conviction for trafficking. The sentence imposed for the earlier trafficking conviction was 5 years imprisonment, cumulative with a further earlier sentence of 3 years imprisonment.
Sentence at first instance
The original sentence imposed for the present offending included 10 years imprisonment on the trafficking charge, which automatically attracted a serious violent offence declaration (SVO), and two years’ imprisonment on the charge of attempting to pervert the course of justice, to be served cumulatively.
All sentences were ordered to be served cumulatively upon the existing sentence for which the applicant was on parole.
The effect of the SVO was that the applicant must serve 80% of the 10-year sentence before being eligible for parole. The parole eligibility date was set at 6 January 2031.
The applicant sought leave to appeal to the Court of Appeal against the sentence on the basis that it was manifestly excessive in all of the circumstances.
The Appeal
The Court of Appeal identified various errors in the approach taken by the sentencing Judge which required the Court to resentence the applicant, including an incorrect finding that there was no declarable pre-sentence custody, a failure to consider the effect of parole cancellation on the applicant’s current custodial period and a failure to specifically order the sentence imposed for the trafficking offence to be served cumulatively upon the existing sentence.
In resentencing the applicant, the court calculated the overall effect of the combined previous sentences and the present sentence was a total period of over 18 years imprisonment. The court commented that such period is greater than is often served on a sentence for murder, and when one understands the totality considerations become prominent in assessing the appropriate sentence. The court found that the crushing effect of the combined sentences calls for appropriate amelioration.
Resentencing
To remedy the issue, the court set aside the 10-year sentence imposed for the trafficking charge and resentenced the applicant to 9 years and 6 months for this offence. The court declined to make an SVO. This allowed the court to have discretion in setting the parole eligibility date, which was set at 27 December 2028.
Complex Sentencing
This case highlights the complexity of sentencing offenders in matters involving breach of parole, cumulative sentences and SVO declarations. It also demonstrates the importance of having due regard to the totality principle to prevent crushing sentences. The purpose of sentencing legislation in Queensland is provide for sentences which are appropriate punishment and the rehabilitation of offenders.
