Fidelity | Service | Courage
When Three x Three ≠ Nine
(It’s a ‘totality thing’,1 and you need to know it)
Although sentencing is the province of the courts, solicitors nevertheless owe certain duties to
ensure that sentences handed down are appropriate and reflect the wrong done by the offender-and
it should not be assumed that a magistrate of tribunal member will have all relevant information
front-of-mind. Solicitors have a duty to bring to the attention of the court that which will assist it in the
administration of justice-or as Chief Justice Catherine Holmes put it:
“The judiciary, as we all appreciate, is an arm of government, but the functioning of the court in turn
depends on its officers and their observation of the obligations which they assume as legal
practitioners. Judges are in no position to make their own inquiries, to ascertain the facts except
through what is presented to them. Without our being able to rely on your integrity and honesty in
doing so, the administration of justice would become unworkable.”2
Solicitors also hold specific duties to competently represent their clients3 and-when filling the role of
prosecutor-assist the court to arrive at the truth.4In terms of sentencing this means that they must be
aware of, and bring to the attention of the court, all the factors relevant to sentencing. One of these
factors-which should be known to both defence lawyers and those engaged in bringing prosecutions
or disciplinary proceedings-is the Totality Principle.
What is it?
The totality principle is in essence a sentencing guideline which prompts the court, when sentencing
for multiple offences or breaches, to look at the totality of the criminal behaviour and ensure that the
sentence is appropriate in light of that (rather than simply multiplying a sentence by the number of
offences). The High Court has recognised the principle as follows:
“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”.5
In short, the principle ensures that the punishment fits the crime, albeit not in the ‘eye for an eye’
sense. Rather, the principle seeks to avoid an outcome whereby a simple application of arithmetic
leads to a sentence which is excessive compared to the actuality of the criminal endeavours in
which the offender engaged. It also recognises the need to avoid ‘crushing’ sentencing outcomes
resulting in the “destruction of any reasonable expectation of useful life after release”.6
1
R v Kendrick [2015] QCA 27, at 24.
The Hon. Chief Justice Catherine Holmes, ‘Opening address to the QLS Senior Counsellors’ Conference 2016’ (Speech
delivered at the QLS Senior Counsellors’ Conference 2016, Law Society House, Friday 19 August 2016).
3 Australian Solicitors Conduct Rules 2012, rule 4.1.3.
4 Australian Solicitors Conduct Rules 2012, rule 29.1.
5 Mill v R [1988] HCA 70; (1988) 166 CLR 59 (8 December 1988), quoting Thomas, Principles of Sentencing, 2nd ed.
(1979), pp 56-57.
6 R v Kendrick [2015] QCA 27, [40] (per Morrison JA).
2
Application of the Principle
It should not be assumed that the principle is in effect an automatic discount for numerous offences.
The reason for the principle in the first place is to ensure that the mind of the sentencing entity is
turned specifically to the criminality of the offender, and that arbitrary processes are avoided.
The court can apply the principle in two main ways-by imposing a high head sentence for the most
serious offence, reflecting the totality of the criminal behaviour and concurrent lesser sentences or
reducing sentences but making them cumulative.7
Duty of the practitioner
Whether prosecuting or defending, it is the duty of the practitioner to ensure that the court takes the
totality principle into account when sentencing on multiple offences. The totality principle is reflected
in the Penalties and Sentences Act (Qld) 1992 at s147 (38) and is not optional-it must be taken into
account by the court in circumstances where multiple offences or breaches are being punished.
A defence lawyer who fails to raise the principle in these circumstances is failing to act competently
and in the best interests of his client; a prosecutor is failing to assist the court, and is also failing the
instructing regulator. If the principle is not appropriately applied, a costly appeal is likely; whatever
congratulations a prosecutor may have initially been received by virtue of achieving a large fine will
soon be replaced by recriminations over an appeal which should never have been necessary.
It should be noted that the principle applies to minor as well as major offences, or in circumstances
where a defendant has received multiple infringement notices and elected to have them dealt with in
court.
Conclusion
A number of appeals over the last 12 months, both in Queensland and in other jurisdictions, indicate
that some practitioners are not raising the totality principle and solicitors cannot rely upon the court
to apply this of its own volition. This represents a failure to discharge ethical duties and leads to poor
outcomes for clients and the justice system, and prudent solicitors will ensure that the principle is
raised when appropriate and properly applied when justified.
Shane Budden
Ethics Solicitor
27 March 2017
7
8
R v Nagy [2004] 1 Qd R 63, R v Kendrick [2015] QCA 27.
Also federally by the Crimes Act 1914 (Cth), section 16B.
Queensland Law Society | QLS Ethics Centre
When Three x Three ≠ Nine - (It’s a ‘totality thing’, and you need to know it)
March 2017 | Page 2 of 2