When sentencing a criminally accused in Melbourne, there are a number of principles that counsel for the defence or prosecution can seek, and that the Judge or Magistrate must take into account. Where applicable, these will form part of the ‘instinctive synthesis’ and final sentencing outcome.
Totality
In Melbourne or Victorian Courts, Totality requires that where an offender is facing sentence for multiple offences, that the sentence should be ‘just and appropriate’ for the whole of the offending. In short, after imposing a sentence for each offence, the judge or magistrate should then review the aggregate sentence and consider whether it is appropriate in relation to the overall offending. The Melbourne criminal lawyer will also take this into consideration when submitting their case to the magistrate.
This principle protects an accused being sentenced from receiving an overly severe outcome arrived at by an arithmetic process. It also recognises that an accused may be pleading guilty to two or more offences which are technically made out during a single course of criminal conduct. In this instance, it would be harsh to sentence on the individual offences without considering them in the context of the overall offending.
It too is considered a limiting principle, as it is applied at the end of the sentencing process once a prospective total sentence has been reached by the judge or magistrate.
The principle can be applied not only to sentences for multiple offences received at once, but also for sentences imposed on a guilty accused on separate occasions. Here a sentence must consider what sentence the accused would have received had all of the offences been heard together at the one time.
In sentencing an accused to terms of imprisonment, a judge or magistrate has the option of either adding the terms together to arrive at a total (cumulative), or imposing sentences that run at the same time (concurrently). An overall sentence is commonly constructed using both cumulative and concurrent goal terms. In Melbourne or Victoria, there is a presumption that multiple sentences are to be served concurrently, unless legislation reverses that presumption. Totality is a principle that many criminal lawyers in Melbourne utilise to achieve favourable results for their clients.
Double Punishment
It is common for an accused to be charged with multiple offences arising from a single course of offending. The Courts have recognised however that it would be wrong to punish an accused twice for the two offences which are made up by the same elements.
For example, if an accused breaks into a house and steals a TV, they will likely be charged with burglary. If the police however were unaware that it was the accused who stole the TV from the house, and simply found him in possession of it, then they may be charged with handling stolen goods. If that accused was convicted and sentenced of handling stolen goods before the police became aware that it was in fact them who committed the burglary, and they were later convicted and sentenced for that burglary charge, the Court would have to take into consideration the penalty served for the handling stolen goods charge as it was part of the conduct involved in the burglary offence.
Where a single act causes harm to more than one victim however, the law allows for multiple offences to be punished separately without breaching the double punishment principle. This is because, in the eyes of the law, the accused has committed a separate act against each victim, even though they may all result from the one action.
Totality and Double Punishment are two sentencing principles that Melbourne criminal lawyers are very familiar with.
