The totality principle is a key concept in Queensland criminal law. It’s a rule that says when a person is sentenced for multiple offences, the sentences should be combined into an aggregate sentence so the total punishment is just and proper in the circumstances.
Statute
The totality principle is recognised by:
- Section 9(2)(k) of the Penalties and Sentences Act 1992 (Qld)
- Common law
- Sentencing guidelines across Australia
Purpose and Function
The totality principle is based on the idea that a person should not be punished more than necessary for the crimes they’ve committed. It’s a safety net against excessive punishment by requiring the court to consider the total effect of multiple sentences on the defendant. This ensures that the overall punishment is an appropriate sentence that reflects the cumulative behaviour of the offender. It is recommended to contact a criminal lawyer if you are facing multiple offences.
Components of Totality
The principle operates through two parts:
- First limb: Individual sentences are proper
- Second limb: Total effect of sentences. The second limb requires the court to consider the total effect of sentences for all the offences to ensure the overall punishment is fair.
Sentence Structure
Concurrent and Consecutive Sentences
- Multiple sentences served at the same time
- Default position for related offences
- Common in cases of overlapping criminal behaviour
Cumulative Sentences
Cumulative sentences, also known as consecutive sentences, are served one after the other.
Applied for separate or distinct criminal episodes
Used when concurrent sentences would be inadequate
Practical Application
In Queensland courts the principle is applied in two ways:
- Limiting the total length of sentences for multiple offences
- Preventing the cumulative effect of multiple sentences from being too harsh
The sentencing judge must ensure that the total sentence is not excessive and reflects the cumulative impact of the offences.
Factors
- Nature and gravity of the offences
- Defendant’s criminal record
- Specifics of the case
- Total criminality
- Previous sentence and overall culpability
- Rehabilitation prospects
How the Totality Principle Works
The process is structured:
- Individual sentences
- Offences in relation to each other
- Total criminality
- Concurrent or cumulative sentences
- The principles governing consecutive sentences require the court to review the aggregate of multiple sentences to ensure the overall punishment is just.
- Total effective sentence
- Final adjustments if needed
Maximum Penalties
The principle affects maximums by:
- Limiting total combined sentences
- Requiring aggregate maximums to be considered
- Influencing concurrent or cumulative sentences
Rehabilitation
Courts must consider:
- Age of the offender
- Rehabilitation prospects
- Effect of sentence length on rehabilitation
- Support systems available
- Previous response to supervision
Leading Cases
Key cases on the principle are:
- Mill v The Queen (1988) 166 CLR 59
- Johnson v The Queen (2004) 78 ALJR 616
- Postiglione v The Queen (1997) 189 CLR 295
- R v R (2000) 1 Qd R 623
Exceptions to Totality
The principle doesn’t apply in cases of:
- Mandatory sentencing provisions
- Specific legislative requirements
- Serious offences
- Public safety
- Statutory minimums
Common Mistakes
Courts must not:
- Forget to consider the total effect
- Use concurrent sentences incorrectly
- Apply mechanically without individual consideration
- Overlook rehabilitation prospects
International
The principle is applied:
- Across common law jurisdictions
- In international criminal courts
- In various global sentencing frameworks
Final Check
Before finalising sentences courts must:
- Step back and review the total sentence
- Consider the “crushing” effect
- Rehabilitation prospects
- Final adjustments if needed
Conclusion
The totality principle is an important protection against excessive punishment in Queensland criminal law. It ensures sentences are fair and proper in the circumstances and that the punishment fits the crime. By applying this principle carefully courts can balance punishment and rehabilitation. This approach to sentencing shows the justice system is fair and consequences for criminal behaviour are appropriate. Understanding and getting the totality principle right is critical for legal practitioners and courts in multiple offence cases.
