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Totality principle

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The totality principle is a common law principle which applies when a court imposes multiple sentences of imprisonment.[1][2][3] The principle was first formulated by David Thomas[4] in his 1970 study of the sentencing decisions of the Court of Appeal of England and Wales:[1]

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.'

Application

United Kingdom

Main article: English and Welsh law

Within the context of English and Welsh law, the totality principle is defined within the Criminal Justice Act 1991, that states that nothing in the Act "shall prevent the court ... in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences".[5] The principle was recognised in the Criminal Justice Act 2003 Section 166 (3)(b).[2]

Sentencing guidelines are contained within the Coroners and Justice Act 2009, which states that the application of the principle are within the management of the Sentencing Council, applied alongside with the Offences Taken into Consideration (TICs).[3] On 11 June 2012,[6] the latest guidelines from the Sentencing Council came into force, which cover the three overarching aspects of sentencing:[7] allocation; TICs; totality.

The principle of totality comprises two elements:[8]

#All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence.

  1. It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole.

Resultantly, the suggestion for the application of concurrent or consecutive sentences is within the following gudielines:

  • Concurrent sentences: offences arise out of the same incident; there are a series of offences of the same or similar kind, specifically when committed against the same person.
  • Consecutive sentences: offences arise out of unrelated facts or incidents; offences that are of the same or similar kind but where the overall criminality will not sufficiently be reflected by concurrent sentences; one or more offence(s) qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum.

Australia

Main article: Australian law

The totality principle is "well established"[9][10] in the common law of Australia.[11] The High Court quoted Thomas's formulation of the principle in Mill v R (1988).[12] It is also reflected in the Crimes Act 1914 (Cth) s 16B.[10][13]

As well as to prevent an excessive sentence, the principle is a product of two further principles "namely proportionality and mercy."[14] Further, the principle must be applied "without a suggestion that a discount is given for multiple offences."[15][16]

Canada

Main article: Canadian law

Section 718.2 applies the totality principle by stating that: c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; This is so as to "avoid sentences that cumulatively are out of proportion to the gravity of the offences."[17][18] In application it requires Canadian courts to craft a global sentence of all offences that is not excessive.[19] If the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper". [20] A sentence may violate the totality principle where:

  1. The global sentence considerably exceeds the "normal" level of the most serious of the individual offences.[21]
  2. The global sentence "exceeds what is appropriate given the offender's overall culpability.[22]

Hong Kong

Main article: Law of Hong Kong

Hong Kong Basic Law is based on the principles of English common law, and hence include the totality principle, which are applied by the Department of Justice.[23]

New Zealand

Main article: New Zealand law

The totality principle applies within New Zealand law.[5] Aware of public concerns re perceived sentence discounting by the judiciary for multiple offences, the courts state that this assumes that offenders are "rational and well-informed calculators of the cost/benefit of committing offences", and hence see the correct application of the totality principle as "recognising a need to balance totality with deterrence and adequate denunciation of the conduct involved."[5]

References

  1. ^ a b Dr David A. Thomas (1970). Principles of sentencing: The sentencing policy of the Court of Appeal Criminal Division. Heinemann.
  2. ^ a b Lucia Zedner, Julian V. Roberts (16 August 2012). Principles and Values in Criminal Law and Criminal Justice. Oxford University Press. p. 286. ISBN 978-0199696796. Retrieved 4 July 2014.
  3. ^ a b Sentencing Council for England and Wales. "Totality guideline" (PDF). Retrieved 1 February 2015.
  4. ^ Keith Ewing (5 November 2013). "David Thomas obituary". The Guardian. Retrieved 4 July 2014.
  5. ^ a b c "8. Sentencing Multiple Offenders". New Zealand Ministry of Justice. Retrieved 4 July 2014.
  6. ^ "Sentencing Council publishes guidelines on allocation, offences taken into consideration and totality". Sentencing Council. 6 March 2012. Retrieved 4 July 2014.
  7. ^ "Sentencing - Overview - Totality". Crown Prosecution Service. Retrieved 4 July 2014.
  8. ^ Sentencing Advisory Panel. "Definitive Guidelines TICS & Totality" (PDF). Retrieved 4 July 2014.
  9. ^ "Sentencing for Multiple Offences in Western Australia" (PDF). Crime Research Centre, University of Western Australia. p. 34. Retrieved 1 February 2015.
  10. ^ a b "Sentencing Bench Book - Concurrent and consecutive sentences". Judicial Commission of New South Wales. Retrieved 30 January 2015.
  11. ^ "Victorian Sentencing Manual 6.4 - The totality principle". State of Victoria Judicial College. Retrieved 4 July 2014.
  12. ^ Mill v R [1988] HCA 70 at 8; (1988) 166 CLR 59
  13. ^ Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308.
  14. ^ R Fox and A Freiberg (1999). Sentencing: State and Federal Law in Victoria (2 ed.). p. 725.
  15. ^ R v MAK (2006) 167 A Crim R 159
  16. ^ R v Knight (2005) 155 A Crim R 252
    R v Harris (2007) 171 A Crim R 267
    R v Wheeler [2000] NSWCCA 34
  17. ^ R. v. D.F.P. (2005), 197 C.C.C. 498 (N.L.C.A.)
  18. ^ Ruby (1994). Sentencing, 4th edition. Butterworths.
  19. ^ M. (C.A.), [1996] 1 S.C.R. 500, 1996 CanLII 230 at para 42
  20. ^ R. v. Keshane, 2005 SKCA 18
    R. v. Hicks, 2007 NLCA 41
  21. ^ R. v. E.T.P., 2001 MBCA 194
  22. ^ R v Wharry, 2008 ABCA 293, 234 CCC 3d 338, 437 AR 148 at para. 35
    R v Abrosimo, 2007 BCCA 406, 225 CCC 3d 253 at paras. 20 to 31
    see also R v Tiegs, 2012 ABCA 116 (CanLII), 2012 ABCA 116, [2012] AJ No. 378
  23. ^ "Sentencing Principles" (PDF). Department of Justice (Hong Kong). 2011. Retrieved 4 July 2014.
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