Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Murray v R [2024] NSWCCA 107 Hearing dates: 8 May 2024 Date of orders: 21 June 2024 Decision date: 21 June 2024 Before: Bell CJ at [1]; Hamill J at [2]; Yehia J at [3] Decision: (1) Grant leave to appeal and extend the time within which to appeal. (2) The appeal against sentence is allowed. (3) The sentence imposed by Judge Coleman SC is quashed and in lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 6 years commencing on 26 September 2021 and expiring on 25 September 2027 with a non-parole period of 3 years and 6 months expiring on 25 March 2025. Catchwords: CRIME – appeals – appeal against sentence – totality – whether the principle of totality was applied to overall terms of imprisonment – concurrency and accumulation where the applicant is serving a sentence for unrelated matters – error established – re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 24, 32, 47(2), 47(3) Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(b) Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Carroll v R [2015] NSWCCA 219 Christian v R [2021] NSWCCA 300 DB v R [2024] NSWCCA 18 Deakin v R [2014] NSWCCA 121 Elmir v R [2023] NSWCCA 260 Harris v R [2023] NSWCCA 44 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Close (1992) 31 NSWLR 743 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 Sausa v R [2023] NSWCCA 95 Warwick v R [2016] NSWCCA 183 Category: Principal judgment Parties: Jamie Bruce Murray (Applicant) Rex (Respondent) Representation: Counsel: K Averre with H Thomas-Dubler (Applicant) V Garrity (Respondent) Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2020/00342329; 2020/00369276; 2021/00244279; 2021/00244283 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 14 October 2022 Before: Coleman SC DCJ File Number(s): 2020/00342329; 2020/00369276; 2021/00244279; 2021/00244283 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Jamie Bruce Murray, was sentenced in the District Court for a set of 10 offences ("the subject offences") on 14 October 2022 by Coleman SC DCJ. He received a sentence of an aggregate term of 6 years imprisonment with a non-parole period of 3 years and 6 months ("the aggregate sentence"). The aggregate sentence was backdated by 292 days to take into account the time that the applicant had spent in custody that was solely referable to the subject offences. The aggregate sentence commenced on 26 December 2021 and expires on 25 December 2027. The applicant had been in continuous custody since 30 December 2020, during which he was bail refused for some of the subject offences and some offences for which he had been sentenced in the Local Court. Prior to the imposition of the aggregate sentence, the applicant was sentenced for a series of unrelated offences in the Local Court on 17 February 2022. The applicant was sentenced to three accumulated terms of imprisonment. One of those terms resulted from call up proceedings for the breach of a Community Corrections Order and a Conditional Release Order. As result of the call up proceedings the applicant received two sentences of imprisonment of 3 months and 1 month, to be served concurrently. The total sentence imposed in the Local Court commenced on 15 January 2021 and expired on 12 January 2022. The sentencing judge failed to apply the principle of totality in setting the commencement date of the aggregate sentence; that is, by failing to have regard to the totality of the criminality of all the offences to which the total period of the applicant's imprisonment is attributable. The Court concluded that the sentencing judge failed to have regard to totality for three reasons. Firstly, the sentencing judge did not refer in his remarks on sentence to the sentence imposed upon the applicant in the Local Court, nor was there explicit reference to the principle of totality in that regard. Secondly, the reference in the remarks on sentence (and after the imposition of the aggregate sentence) to the period of 292 days in custody referable solely to the subject offences, does not mean that the sentencing judge implicitly considered the question of totality in relation to the total period of custody served by the applicant. Thirdly, had the sentencing judge applied the principle of totality in connection with the overall sentence of imprisonment, it may be expected that his Honour would have referred to the wholly accumulated aggregate sentence as a factor relevant to a finding of special circumstances. His Honour did not do so. The applicant sought leave to appeal against his sentence on one ground. 1. Ground 1: The sentencing judge erred in his approach to the commencement date of the aggregate sentence imposed on the applicant by failing to consider principles of totality. The Court held (per Bell CJ, Hamill and Yehia JJ) extending time within which to appeal, granting leave to appeal against the sentence, allowing the appeal and re-sentencing the applicant: As to ground (i), per Yehia J at [58]-[60] (Bell CJ at [1] and Hamill J at [2] agreeing): 1. The principle of totality is not restricted to sentences that are imposed for offences as part of a connected and roughly contemporaneous series of offences. R v Close (1992) 31 NSWLR 743; Carroll v R [2015] NSWCCA 219; Harris v R [2023] NSWCCA 44 at [15]; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 1. A sentencing judge is required as a matter of law to consider the total criminality involved, not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced. Deakin v R [2014] NSWCCA 121; Warwick v R [2016] NSWCCA 183 (citing Postiglione v The Queen (1997) 189 CLR 295) JUDGMENT 1. BELL CJ: I agree with the orders proposed by Yehia J and with her Honour's reasons. 2. HAMILL J: I agree with the orders proposed by Yehia J and with her Honour's reasons. 3. YEHIA J: The applicant, Jamie Bruce Murray, seeks leave, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Coleman SC DCJ ("the sentencing judge"), in the District Court of New South Wales at Tamworth on 14 October 2022. 4. The appeal is made out of time. The applicant lodged a Notice of Intention to Appeal on 3 November 2022. The period for filing the Notice of Appeal expired on 3 November 2023. The Notice of Appeal was filed on 25 March 2024. The applicant seeks an extension of time to file the application for leave to appeal pursuant to s 10(b) of the Criminal Appeal Act. The affidavit of Bryan Dowe affirmed 21 March 2024 and the affidavit of Jamie Bruce Murray ("the applicant") affirmed 25 March 2024 were read in support of the application for an extension of time. 5. The respondent does not object to an extension of time being granted. There is a satisfactory explanation for the delay and merit is demonstrated in the ground of appeal (which is set out below). An extension of time should therefore be granted. 6. On 14 October 2022, the applicant was sentenced in the District Court at Tamworth for 10 offences with a further 3 offences taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"). Together, these are "the subject offences". The offending for which the applicant was sentenced in the District Court took place between March 2020 and April 2021. The applicant entered pleas of guilty to all 10 subject offences in the Local Court at Tamworth on 29 June 2022. 7. The applicant was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years and 6 months ("the aggregate sentence"). The aggregate sentence was backdated to commence on 26 December 2021, expiring on 25 December 2027. The first day upon which the applicant is eligible for release on parole is 25 June 2025. The aggregate sentence was backdated to take into account the applicant's time in custody solely referable to the subject offences, a period of 292 days. 8. The sentencing judge erroneously observed in the remarks on sentence that the applicant was granted bail on 15 January 2021, and re-arrested on 12 January 2022. The correct position is that the applicant has been in continuous custody since 30 December 2020. 9. Prior to the imposition of the aggregate sentence, the applicant had been sentenced for unrelated offences in the Local Court at Tamworth on 17 February 2022, to three accumulated terms of imprisonment that were wholly accumulated upon each other. The fixed terms of imprisonment were imposed for three sets of offences. The total sentence imposed in the Local Court was 11 months and 29 days, commencing on 15 January 2021 and expiring on 12 January 2022. The period of time the applicant spent in custody between 30 December 2020 and 15 January 2021 was not taken into account by the Magistrate but formed part of the sentencing judge's calculation of the 292 days in custody solely referable to the subject offences. 10. At the time of sentence (on 14 October 2022) the applicant's time in custody, from arrest to sentence, was referable to the subject offences and to the unrelated offences for which the individual fixed terms of imprisonment were imposed in the Local Court. 11. It is unclear as to whether the applicant was bail refused for all, or only some, of the subject offences from 30 December 2020. The applicant's submissions on the appeal do not specifically refer to the applicant's bail status with respect to each subject offence in the period from 30 December 2020. What is clear from the applicant's written submissions, relied upon in the sentencing proceedings, is that he was arrested on 30 December 2020 and bail refused with respect to at least seven of the subject offences (H…940 and H…840). The applicant was bail refused on all subject offences at the time of the sentencing proceedings on 16 September 2022. Ground of Appeal 1. The applicant does not challenge any of the findings made by the sentencing judge with respect to either the objective seriousness of the subject offences or the applicant's subjective case. No complaint is made about the indicative sentences, the aggregate sentence, or the non-parole period. 2. The sole ground of appeal involves a narrow issue relating to whether the sentencing judge failed to turn his mind to totality in fixing the commencement date of the aggregate sentence. Essentially, the applicant contends that the sentencing judge erred by failing to turn his mind to whether, and to what extent, the aggregate sentence should be served concurrently with the sentence imposed in the Local Court for the unrelated offences. 3. The ground of appeal is in the following terms: 1. Ground 1: The sentencing judge erred in his approach to the commencement date of the aggregate sentence imposed on the applicant by failing to consider principles of totality. 1. Given the limited scope of the ground of appeal, I will only briefly set out the facts relating to the subject offences and the various findings made by the sentencing judge in the remarks on sentence. The Sentencing Proceedings 1. At the sentencing proceedings on 16 September 2022, the Crown relied on a bundle of material (Exhibit 1) and written submissions (MFI 1). The applicant tendered a bundle of documents comprising a report from Ms Thea Gumbert, psychologist, dated 8 September 2022; an affidavit of the applicant affirmed 13 September 2022; a letter from Mr Paul Baker (Governor of Parklea Correctional Centre), dated 10 October 2021; and a bundle of certificates of courses completed by the applicant (together, Exhibit 2). The applicant also relied on written submissions (MFI 2). The applicant also gave evidence during the sentencing proceedings. 2. The applicant's affidavit was read on the sentencing proceedings. The affidavit evidence confirmed that whilst in custody, the applicant was prescribed medication for depression and anxiety. During his nine month engagement in the Success For Life Program, he learnt strategies to deal with his substance abuse issues and regulation of his emotions. 3. The applicant took up a position as "Koori delegate" in custody, which involved him assisting and supporting young Aboriginal prisoners. The applicant was also the resident painter when detained at Parklea Correctional Centre. He painted the cells, walls, doors and offices of the Centre. Whilst detained at Cessnock Correctional Centre he completed a domestic violence course which provided him with anger management strategies. 4. The applicant was cross-examined during the sentencing proceedings. He maintained that he was sorry for his offending conduct and acknowledged the stress and hardship caused to the victims. The applicant also confirmed that he was using methylamphetamine during the commission of the offences and up until the time he was incarcerated. Since being in custody he has managed to make contact with his children and became a grandfather. The applicant gave evidence that upon his release he would be willing to undertake urinalysis testing and engage in any other treatment to prevent reoffending. 5. The written submissions relied on by each party were supplemented by oral submissions on 16 September 2022. The proceedings were adjourned to 14 October 2022, on which date the remarks on sentence were delivered and the applicant was sentenced. Facts relating to the subject offences 1. The subject offences, for which the applicant was sentenced in the District Court, comprised at least three or four distinct sets of offending. The first set of offences involved the possession of a firearm while subject to a Firearms Prohibition Order ("FPO") and an aggravated break, enter and steal in company offence. Between 23 March 2020 and 26 March 2020 the applicant and a co-offender broke into a house and stole numerous items, including jewellery and cash, and two firearms, including a Ruger bolt action rifle, which was taken from a locked gun safe. Upon attendance at the victim's residence, crime scene officers located several items that were forensically tested. A DNA sample taken from a pair of pliers found at the scene, returned a DNA mixture that originated from at least three individuals, with the applicant identified as a major contributor. 2. As noted above, the applicant was the subject of an FPO at that time. On 30 December 2020, police conducted a search of the applicant's home in accordance with the FPO. He was arrested and taken into custody. Whilst he was in custody, he made a number of phone calls which were recorded by Corrective Services NSW, during which he made admissions in respect of the offences. 3. The second set of offences involved five offences. These offences were of steal motor vehicle; two offences of enter land with intent to steal; enter land with intent to steal motor vehicle; and larceny. Three offences on a Form 1 were taken into account when sentencing the applicant for the offence of stealing a motor vehicle. Those offences were malicious damage of property, enter land with intent to commit an indictable offence and a further offence of steal motor vehicle. 4. Between 30 and 31 October 2020 the applicant and a co-offender stole a Toyota Landcruiser ute from a property at Wallamore. Prior to 30 October 2020, the applicant and a co-offender had planned to steal a Toyota Landcruiser of a particular make and model. Conversations recorded between the applicant and his co-offender revealed that they had intended to do so on 30 October 2020. 5. Between 13 and 14 November 2020 the applicant took the keys to a vehicle from inside a property at Piallamore, and stole the vehicle, which had tools in it, from the driveway. The property consisted of 150 acres with a number of sheds. The victim kept a number of vehicles on the property, one of which was a Toyota Landcruiser ute. Sometime on the morning of 14 November 2020 the victim awoke to find that his vehicle had been stolen along with his keys and a wallet, which contained approximately $300 cash. 6. On 29 November 2020, the applicant and a co-offender drove to a property known as "Diamond Downs", entered a shed and stole a number of tools. Between 1 and 2 December 2020 the applicant picked up a co-offender, returned to "Diamond Downs" and stole a motor vehicle from a shed at the property. In the course of the theft, damage was occasioned to a fence on the property and another storage shed. The total value of the items stolen was estimated to be approximately $34,000. 7. The third set of offending related to a break, enter and steal offence. On 1 November 2020, a co-offender dropped the applicant off, on the side of the road, in Attunga where upon he entered the property and gained access to a shed. The applicant removed a large number of tools from the property before asking the co-offender to collect him. The value of the tools taken from the property was approximately $18,000. 8. The fourth set of offending involved two offences of committing acts with an intent to influence witnesses. The two witnesses the applicant sought to influence were the son of the applicant's partner and a witness to the second set of offences. Between 1 January 2021 and 20 April 2021, attempts were made to dissuade each of those individuals from giving true and correct evidence in the applicant's proceedings. The attempts to influence each witness were made over the telephone when the applicant had already been taken into custody and were recorded. Remarks on Sentence 1. The sentencing judge summarised the facts relating to each set of offending. In determining the objective seriousness of the subject offending, his Honour had regard to the fact that the offending involved separate and planned criminal conduct on at least three occasions. The sentencing judge described the offences as including "breaking into isolated rural properties, stealing vehicles and other property from those places and attempting to influence witnesses." 2. The sentencing judge then proceeded to assess the objective seriousness of each offence separately. No complaint is made about the sentencing judge's assessment of the objective seriousness of each of the subject offences. 3. The sentencing judge found, as an aggravating factor pursuant to s 21A(2)(j) of the CSPA, that the applicant had been subject to conditional liberty by way of bail, a Community Corrections Order ("CCO") and/or a Conditional Release Order ("CRO") at the time he committed the subject offences. 4. Although there was "some level of planning" involved in the subject offences, the sentencing judge was not satisfied that the offences were part of a planned organised criminal activity such as to constitute an aggravating factor on sentence pursuant to s 21A(2)(n) of the CSPA. With respect to some of the subject offences the sentencing judge had regard to the fact that the offences were committed in the home of the victim, which operated as an aggravating feature. In relation to other offences, the sentencing judge accepted as an aggravating factor, that they were committed in company. Subjective Case 1. The sentencing judge summarised the applicant's subjective case. He was 42 years old at the time of sentencing. The applicant is an Indigenous man who grew up in Walcha. He has three children with an ex-partner. 2. When the applicant was 10 years old, his family relocated to Uralla and lived in a caravan for 6 to 12 months. The applicant's father was an alcoholic and the applicant experienced family violence throughout his childhood. The applicant left school at the completion of year 10. He sustained significant injuries in a car accident when he was 15 years old and did not return to school following the accident. 3. The applicant maintained employment as a mechanics labourer from the age of 17 to 21. He was then employed as a shearer for a period of 10 years and later worked in the building industry as a trained house painter. 4. The applicant began drinking alcohol when he was 12 or 13 years old. His drug problem began when he was 35 years old. This was triggered by his father being diagnosed with terminal cancer, his ex-partner leaving him, and a loss of contact with his children. He reported using crystal methamphetamine as a means to self-medicate, consuming the drug on a daily basis from 2016 until he entered custody for the subject offences. He reported being treated for depression in 2012 with antidepressants, which he ceased taking when his "ice" addiction escalated. 5. In respect of mitigating factors, the applicant was afforded a 25% discount for his early pleas of guilty to the subject offences. The sentencing judge was satisfied the applicant had shown genuine remorse for his actions and had good prospects of rehabilitation. The sentencing judge accepted the applicant regrets the stress and hardship caused to the victims by his offending. He had completed a three-month Success For Life Program (which he engaged with for almost nine months). As noted above (at [18]), he was also engaged as a "Koori delegate" in his prison wing and was the resident painter. 6. The sentencing judge made a finding of special circumstances on two bases. Firstly, the sentencing judge relied upon the onerous nature of the applicant's custody, brought about by the restrictions that applied due to the COVID-19 pandemic. Secondly, the sentencing judge took into account that this was the applicant's first time in custody. The reference to this being the applicant's first time in custody is a reference to the period of continuous custody from 30 December 2020. Totality 1. The sentencing judge appropriately considered, and applied, the principle of totality in determining the extent of concurrency and accumulation reflected in the aggregate sentence that was to be imposed for the subject offences. The sentencing judge addressed the principle of totality in the following terms: "…I accept that in determining the overall sentence I am to impose on the offender, I must have regard to the principle of totality. This requires me to calculate a sentence in respect of each offence, consider the principles governing accumulation and concurrency and review the aggregate sentence to consider whether or not it is just and appropriate. I must look at the totality of the offender's criminal behaviour and ask myself what is the appropriate sentence for all of the offences and I must avoid a crushing sentence. I am required to have regard to the fact that the offender is being sentenced for multiple offences and I must ensure that the ultimate sentence imposed is appropriate for the totality of the offending and to the offender's personal circumstances." 1. With respect to the temporal connection between the subject offences, the sentencing judge remarked that the offending was not all on one occasion and "there were in effect three separate periods of offending." Accordingly, the sentencing judge found that there must be partial accumulation of the indicative sentences to reflect the overall criminality of the offending, whilst also accepting there must be some significant concurrency so as not to impose a crushing sentence upon the applicant. 2. It is clear from the following exchange during the sentencing proceedings, that the sentencing judge, in setting the commencement date of the sentence, took into account only the period the applicant had spent in custody which was solely referable to the subject offences: "HIS HONOUR: …Now Mr Passlow and Ms McCarthy, do you want to check those dates? I've backdated the sentence to commence on 26 December having regard to my calculation that the offender has spent 292 days in custody referable solely to these offences. My JIRS calculator gets that back to the sentence commencing on 26 December 2021. So with a six year aggregate the sentence expires on 25 December 2027, a three year, six month non-parole period the first date of eligibility for release to parole is 25 June 2025. Any submissions or applications with respect to those numbers? PASSLOW: No your Honour, I'm happy with those numbers. MCCARTHY: No your Honour." 1. There is no reference in the remarks on sentence to the continuous period of custody that the applicant had served from 30 December 2020. Nor is there any reference to the term of imprisonment imposed in the Local Court for the unrelated offences, a period during which the applicant was also bail refused for at least some of the subject offences. Local Court Sentence 1. As noted above (at [9]), prior to the applicant's sentence being imposed for the subject offences, the applicant was sentenced in the Local Court at Tamworth on 17 February 2022, to three accumulated fixed terms of imprisonment for a series of offences that occurred between February 2020 and December 2020. The offending for which the applicant was sentenced in the Local Court was unrelated to the offending for which the applicant received the aggregate sentence. 2. The following table sets out the Local Court sentences, including the commencement and expiration date for each fixed term. Each fixed term of imprisonment was wholly accumulated (except a one month term of imprisonment which was imposed for the breach of the CRO and served concurrently). Charge number Offence(s) and original sentence (if applicable) Sentence Commencement Expiration H74223815 ("The H…815 offences") Sequence 2: 3 month term of imprisonment for the breach of the CCO (call up) 15 January 2021 14 April 2021 Enter building with intent to commit indictable offence (originally sentenced to a Community Correction Order ("CCO") for 12 months commencing 10 August 2020 and concluding 9 August 2021) Sequence 1: 14 February Destroy or damage property 1 month term imprisonment to be served concurrently (call up of the CRO) 15 January 2021 2021 (originally sentenced to a Conditional Release Order ("CRO") for 12 months commencing 10 August 2020 and concluding 9 August 2021) H4602952992 Sequence 1: 3 month term of imprisonment 14 April 2021 13 July 2021 ("The H…992 offence") Enter building with intent to commit indictable offence H77146140 Sequence 1: 6 month term of imprisonment 13 July 2021 12 January 2022 ("The H…140 offence") Assault occasioning actual bodily harm Total effective Local Court sentence 11 months and 29 days 15 January 2021 12 January 2022 1. The applicant was originally sentenced for the enter building with intent to commit indictable offence (H…815/2) on 10 August 2020 to a 12 month CCO commencing on 10 August 2020 and expiring on 9 August 2021. The applicant was also originally sentenced for the destroy or damage property (H…815/1) offence on the same day, to a CRO commencing 10 August 2020 and expiring 9 August 2021. 2. On 17 February 2022, the CCO and CRO were "called up" and the applicant was sentenced to concurrent terms of imprisonment of 3 months and 1 month. The reason (or reasons) giving rise to the "call up" proceedings is not clear. Of the total ten subject offences, eight were committed while the applicant was subject to the CCO and CRO. Of the offences for which the applicant was sentenced in the Local Court, the offences of enter building with intent to commit indictable offence (H..992/1) and assault occasioning actual bodily harm (H…140/1) were committed while the applicant was subject to the CCO and CRO. Submissions on the Appeal 1. The applicant and respondent relied on written submissions respectively filed on 25 March 2024 and 2 May 2024. Each party's written submissions were supplemented by oral submissions at hearing. Applicant submissions 1. The applicant's complaint is confined to the commencement date of the sentence. At the core of the applicant's complaint is that the sentencing judge erred by failing to have regard to the principle of totality in only backdating the sentence for the subject offences by the number of days the applicant had spent in custody solely referable to those offences. The applicant asserts error in that approach, contending that there was a temporal connection between the subject offences and the unrelated offences, demonstrating some overlap in criminality, which warranted a degree of concurrency. 2. The applicant contends that, in failing to have regard to the principle of totality and its relevance to the issue of the commencement date of the sentence, the sentencing discretion had miscarried. In oral submissions, the applicant submitted the Court ought to backdate the applicant's sentence by six months. In support of that contention the applicant relied on "significant overlap" in the criminality involved in the offending and that the "temporal connection" between the Local Court and District Court offences "could be sufficient if it forms part of a series of offences…committed in a particular period of time" to warrant an additional degree of backdating. 3. The applicant submitted that the appeal should be allowed, the aggregate sentence quashed, and the Court proceed to resentence the applicant. Respondent submissions 1. The respondent submitted no error has been established. The commencement date of a sentence is at the discretion of the sentencing judge, and in this case, the setting of that date does not establish an error of the kind referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40. Nor is it a breach of the overriding principle of totality to commence the sentence date when the sentencing judge did, and accordingly there was no miscarriage of the sentencing discretion. 2. The respondent relies on exchanges between the sentencing judge and legal representatives during the sentencing proceedings in support of the contention that the sentencing judge was "cognisant" of the Local Court sentence and "mindful of the principle of totality" in arriving at the commencement date of the sentence for the subject offences. 3. The sentencing judge backdated the sentences only to reflect the period of time the applicant had spent in custody solely referable to the subject offences. It was submitted that to do otherwise – that is, to backdate the commencement of the aggregate sentence any further, such that it would be served concurrently with the unrelated Local Court sentences – may have seen the Court arrive at an overall aggregate sentence that did not adequately reflect the criminality of the subject offending. 4. The respondent acknowledged that some of the Local Court offences occurred within the same year as the subject offences, so as to establish a "broad temporal connection" between the two sets of offending. However, the respondent submitted that they could not be said to form part of a "broader 'course of conduct'" that would necessitate the sentencing judge to take the Local Court offences into account when considering totality and the commencement date of the subject offences. 5. The respondent submitted that in the event error is established and the sentencing discretion had miscarried, the "outer limit" of any further backdating imposed by this Court should be three months. Consideration Relevant Principles 1. The totality principle is a recognised principle of sentencing that requires the aggregation of multiple sentences to reflect a "just and appropriate" measure of the total criminality involved: Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]; Elmir v R [2023] NSWCCA 260 at [41] per Dhanji J (Gleeson JA and Walton J agreeing). 2. The totality principle is not limited in its application to a consideration of the total criminality involved in the offences for which an offender is to be sentenced but extends to any offences for which the offender is already serving a sentence. In Postiglione v The Queen (1997) 189 CLR 295 at 308; [1997] HCA 26, McHugh J stated: "Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence. The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon: "When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."" (Footnotes omitted.) 1. Whenever sentences are accumulated, careful consideration must be given to the principle of totality. In R v Close (1992) 31 NSWLR 743 Hunt CJ at CL observed at 748B that the principle "is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences": see also Carroll v R [2015] NSWCCA 219 at [25] per McCallum J (as her Honour then was), Hoeben CJ at CL (as his Honour then was) and Adams J agreeing; Harris v R [2023] NSWCCA 44 at [15] per Beech-Jones CJ at CL (as his Honour then was), Yehia and Weinstein JJ agreeing; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] per Howie J (Adams and Price JJ agreeing). 2. In Deakin v R [2014] NSWCCA 121, Hall J, in concluding that error had been established, summarised the relevant principles. Relevantly, his Honour said at [94] (Hoeben CJ at CL and Adams J agreeing): "…(i) It has long been established that the totality principle applies where an offender is serving an existing sentence and is sentenced by a second court for a period after the first offence: Mill v The Queen (1988) 166 CLR 59 at 66; Choi v The Queen [2007] NSWCCA 150 at [157]. In R v MMK (2006) 164 A Crim R 481 at [11] the Court observed: "It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616." (ii) Questions of concurrence and accumulation are discretionary matters for the sentencing judge: R v Hammoud, supra, at [7]; R v Scott [2005] NSWCCA 152 at [31]; LG v The Queen [2012] NSWCCA 249 at [24]. (iii) Judges at first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected: Johnson v The Queen (2004) 78 ALJR 616 at [26]. (iv)That said, the discretion is generally circumscribed by a proper application of the principle of totality: R v MMK, supra, at [11]. …" 1. The principle of totality has been recognised as a fundamental principle in sentencing. In Warwick v R [2016] NSWCCA 183, Adamson J observed at [28] (Payne JA and R A Hulme J agreeing): "The principle of totality is, in my view, so fundamental that the failure to apply it will necessarily lead to error. A sentencing judge is required as a matter of law to consider the total criminality involved, not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen (1997) 189 CLR 295 at 308 (McHugh J). As Giles JA said in Wu v R [2011] NSWCCA 102; 211 A Crim R 88: "[52] Application of totality principles is not a matter of leniency. . . [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."" Application of principle to the ground of appeal 1. Pursuant to s 24 of the CSPA, in sentencing an offender, the Court must take into account any time for which the offender has been held in custody in relation to the offence. Section 47(2) of the CSPA provides that: 47 Commencement of sentence … (2) A court may direct that a sentence of imprisonment— (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. … 1. In exercising the discretion under s 47(2), the Court must take into account any time to which the offender has been held in custody in relation to the offence, or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates: s 47(3) of the CSPA. 2. As indicated above, at the time of sentence, the total period that the applicant had spent in custody solely referable to the subject offences was 292 days. However, the applicant had been in continuous custody since 30 December 2020, bail refused in relation to at least some of the subject offences and at least some of the unrelated offences for which he was sentenced in the Local Court. 3. The principle of totality applied to the applicant's sentence in two ways. Firstly, the sentencing judge was required to consider the total criminality of the subject offences in the context of setting an aggregate sentence. The sentencing judge did apply the principle of totality in determining the proportionate aggregate sentence to be imposed for the subject offences. 4. Secondly, the sentencing judge was required to consider totality not only in reference to the offences for which the applicant was being sentenced, but also in reference to the criminality involved in the unrelated offences. It is only by applying the principle of totality in this way that the sentencing judge could have determined whether the total period to be spent in custody "adequately and fairly" represented the totality of the criminality involved in all of the offences to which the total period of imprisonment is attributable. 5. The sentencing judge failed to have regard to the principle of totality in the second way identified above. Regrettably, the sentencing judge was not provided with sufficient assistance in relation to how totality applied, having regard to the total criminality and the total period of imprisonment. 6. I have concluded that the sentencing judge failed to have regard to the principle of totality for the following reasons. 7. Firstly, the sentencing judge did not refer in the remarks on sentence to the sentence imposed upon the applicant in the Local Court, nor was there explicit reference to the principle of totality in that regard. The written submissions relied upon in the sentencing proceedings contained a fleeting reference to the Court's discretion to "give further credit" out of the total period of continuous custody. The reference to totality during the oral submissions in the sentencing proceedings was even more fleeting. 8. The Crown, at sentence, submitted that it would be appropriate to take into account only the time solely referable to the subject offending, when determining the commencement date. However, the Crown acknowledged that the sentencing judge would have to have regard to the "principles of totality." 9. The sentencing proceedings were conducted on 16 September 2022. The sentencing judge reserved judgment until 14 October 2022, at which time the applicant was sentenced and the remarks on sentence delivered. 10. Notwithstanding the cursory attention given to the principle of totality in the sentencing submissions on behalf of the applicant, it was a matter raised at first instance and should have been explicitly addressed in the remarks on sentence. 11. Secondly, the reference in the remarks on sentence (and after the imposition of the aggregate sentence) to the period of 292 days in custody referable solely to the subject offences, does not mean that the sentencing judge implicitly considered the question of totality in relation to the total period of custody served by the applicant. The simple assertion that the commencement date takes into account only the period of custody solely referable to the subject offences, says nothing about the reasons for declining to structure the aggregate sentence in such a way as to provide a measure of concurrency with the existing sentence. The absence of any reasons in this regard supports the contention that the sentencing judge failed to consider totality in connection with the overall sentence of imprisonment to be served by the applicant. 12. Thirdly, had the sentencing judge applied the principle of totality in connection with the overall sentence of imprisonment, it may be expected that his Honour would have referred to the wholly accumulated aggregate sentence as a factor relevant to a finding of special circumstances. His Honour did not do so. The finding of special circumstances was made only on two bases: that this was the applicant's first time in custody and the hardship in custody resulting from the COVID-19 pandemic. 13. It follows that I am satisfied that the sentencing judge erred in his approach to the commencement date of the aggregate sentence imposed on the applicant by failing to consider the principle of totality. The ground of appeal is made out. Resentence 1. As indicated above, the applicant does not challenge the various findings made by the sentencing judge. There is no complaint about the aggregate sentence or the non-parole period. Although the appeal was conducted on the limited basis that if error was established a further backdate (of either three months or six months) should be applied, the parties proceeded upon the basis that the Court would proceed to resentencing. 2. Given the very limited scope of the ground of appeal, I have given some consideration as to whether the error requires the Court to undertake an independent exercise of the sentencing discretion consistent with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 or whether it could confine itself to correcting the discrete component of the sentence which was the subject of error by adjusting the commencement date of the sentence. 3. The issue as to whether established or conceded error is purely arithmetical or is "entirely discrete" from the discretionary aspects of sentencing, so that the Court can appropriately resentence without undertaking the entire sentencing exercise again, was discussed by a five-judge bench in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 and considered in a number of decisions of this Court: see also Christian v R [2021] NSWCCA 300 at [29]-[37] per Beech-Jones CJ at CL (as his Honour then was) (R A Hulme and Dhanji JJ agreeing); Sausa v R [2023] NSWCCA 95 at [31]-[35] per N Adams J (Wilson and Cavanagh JJ agreeing); DB v R [2024] NSWCCA 18 at [7]-[18] per Hamill J. 4. Having considered these authorities, I have concluded that the error is more than a mere arithmetical error or an error "entirely discrete" from the discretionary aspects of the sentencing, such that it can be rectified by a simple adjustment to the commencement date. 5. It is not possible to know how the sentencing judge would have structured the aggregate sentence had he applied the principle of totality to the overall term of imprisonment. Furthermore, there was no common ground between the parties as to the period of backdate to be applied in the event error was established. It follows that the Court should proceed to resentence the applicant. In doing so, I proceed to consider the material afresh. 6. At the hearing of the appeal, the affidavit of the applicant affirmed 17 April 2024 and the affidavit of Bryan Dowe affirmed 16 April 2024 were read on the usual basis. Shortly after the applicant was sentenced on 14 October 2022, he was transferred to Cessnock Correctional Centre where he remained until 11 May 2023. He was then moved to Goulburn Correctional Centre and remained there until 13 December 2023. The applicant was again transferred to the South Coast Correctional Centre where he is currently detained. The applicant worked as a painter when he was detained at Goulburn, Parklea and Cessnock Correctional Centres. There are not yet any employment positions that have become available for the applicant at the South Coast Correctional Centre, although the applicant hopes to be allocated ground maintenance or sewing work. In 2023 the applicant completed TAFE courses in Drawing, Painting Skills and Developing Understanding of Aboriginal Identity, for which he received a TAFE NSW Statement of Attainment (annexed to the affidavit of Bryan Dowe affirmed 16 April 2024). At present, there are no education courses available at the South Coast Correctional Centre in which the applicant can participate. 7. I adopt the findings of the sentencing judge with respect to the objective seriousness of the subject offences. Although some planning was involved, I am not of the view that the offending constituted planned or organised criminal activity, as comprehended by s 21A(2)(n) of the CSPA. Some of the offences were committed in company and in the home of the victim, both of which are aggravating factors pursuant to s 21A(2)(e) and s 21A(2)(eb) of the CSPA. Furthermore, the offender was subject to conditional liberty at the time he committed the offences. 8. Subjectively, the applicant has demonstrated genuine remorse and has acknowledged the hardship to the victims caused by his offending. The applicant has received some treatment and has availed himself of a number of courses whilst in custody. I accept that he has good prospects of rehabilitation. 9. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s 3A of the CSPA. I agree with the indicative sentences as set out by the sentencing judge. I also agree that the aggregate sentence and the non-parole period imposed by the sentencing judge were appropriate, having regard to the objective seriousness of the offences, the subjective case of the applicant and the purposes of sentencing. 10. I make a finding of special circumstances warranting a variation of the statutory ratio. The period the applicant has spent in continuous custody from 30 December 2020 is his first time in custody. Part of that period in custody was served under onerous conditions, resulting from COVID-19 related restrictions. In addition, I have had regard to the fact that there will be accumulation of the aggregate sentence on the Local Court sentence. 11. In determining the extent of accumulation on the Local Court sentence I have had regard to the principle of totality. Like the sentencing judge, I am satisfied that the period of 292 days in custody solely referable to the subject offences must be taken into account. However, in applying totality, I am satisfied that the non-parole period should be further backdated by a period of three months. I have come to that conclusion for the following reasons. 12. Firstly, there is a loose temporal connection between the subject offences and the unrelated offences for which the applicant was sentenced in the Local Court. 13. Secondly, the applicant has been in continuous custody since 30 December 2020. Although the period between 15 January 2021 and 13 January 2022 relates to the Local Court sentence, the applicant was also bail refused for at least some of the subject offences between 30 October 2020 and 16 September 2022. 14. Thirdly, while the reason or reasons for the call up of the CCO and CRO is unclear on the material, it is open to infer that at least one of the reasons for the call up was the commission of some of the subject offences whilst the applicant was subject to the CCO and CRO. The call up proceedings resulted in the imposition of concurrent terms of imprisonment of three months and one month. 15. Accordingly, I propose the following orders: 1. Grant leave to appeal and extend the time within which to appeal. 2. The appeal against sentence is allowed. 3. The sentence imposed by Judge Coleman SC is quashed and in lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 6 years commencing on 26 September 2021 and expiring on 25 September 2027 with a non-parole period of 3 years and 6 months expiring on 25 March 2025. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2024