Wurrawilya v Davis & Anor; Davis & Anor v Wurrawilya [2012] NTSC 57


PARTIES:                                         WURRAWILYA, Derina




                                                         DAVIS, Stuart Axtell




                                                         ALLEN, Matthew Glen




                                                         DAVIS, Stuart Axtell




                                                         ALLEN, Matthew Glen




                                                         WURRAWILYA, Derina






FILE NOS:                                        JA 21 of 2012 (20725381); JA 22 of 2012 (21039864), JA 61 of 2012 (20725381) and JA 62 of 2012 (21039864)


DELIVERED:                                   14 August 2012


HEARING DATE:                             25 July 2012


JUDGMENT OF:                              BARR J


APPEAL FROM:                               LOWNDES SM





Cumulation and concurrency – questions of totality – appellant sentenced in April 2012 for two counts of unlawful assault in August and September 2007 – whether aggregate of the sentences should have been adjusted – magistrate did not “take a last look at the total” – error in sentencing discretion – appeal allowed in part


Justices Act s 177

Sentencing Act s 40


Dinsdale v The Queen (2000) 202 CLR 321; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Pearce v R (1998) 194 CLR 610, followed


R v Lane (2005) 149 NTR 16; R v Minor (1992) 2 NTLR 183; R v Wurramurra (1999) 105 A Crim R 227, considered





    Appellants:                                   G O’Brien-Hartcher

    Respondents:                                I Taylor



    Appellants:                                   North Australian Aboriginal Justice Agency

    Respondents:                                Office of the Director of Public Prosecutions


Judgment category classification:    B

Judgment ID Number:                       Bar1212

Number of pages:                             8






Wurrawilya v Davis & Anor; Davis & Anor v Wurrawilya [2012] NTSC 57

Nos. JA 21 of 2012 (20725381), JA 22 of 2012 (21039864);

JA 61 of 2012 (20725381) and JA 62 of 2012 (21039864)





                                                     DERINA WURRAWILYA





                                                     STUART AXTELL DAVIS

                                                         First Respondent




                                                     MATTHEW GLEN ALLEN

                                                         Second Respondent


                                                     AND BETWEEN:


                                                     STUART AXTELL DAVIS

                                                         First Appellant




                                                     MATTHEW GLEN ALLEN

                                                         Second Appellant




                                                     DERINA WURRAWILYA







(Delivered 14 August 2012)


[1]       I propose to allow the appeal of Ms Wurrawilya (“the appellant”) on the basis that the learned magistrate did not adjust the aggregate of two sentences for unlawful assault to take into account the totality principle, whether by making the sentences partially concurrent or by lowering the individual sentences below that which would otherwise have been appropriate, in order to reflect the fact that more than one sentence was being imposed.

[2]       The offences the subject of this appeal were committed in 2007 and 2010.  In 2007 the appellant assaulted the same victim on two occasions: on 28 August and on 11 September.  On each occasion, the appellant used a weapon and the victim suffered harm.  In the first assault, the victim suffered a broken arm and a laceration to her head, and, in the second assault, a further laceration to her head.  The magistrate found the appellant guilty of the first assault because he decided that her defensive conduct was excessive or disproportionate and hence not reasonable.  The appellant pleaded guilty to the second assault.  

[3]       The reason for the offending was jealousy on the part of the appellant: the victim had been sleeping with the appellant’s husband.  During an emotion-charged period in August and September 2007, the appellant (who had no prior convictions for violent offending), committed two violent assaults:  offences which were said to be out of character for her.  That submission was supported by her prior record and record subsequent to September 2007.  

[4]       The appellant’s offending in 2010 involved the possession of a trafficable quantity of cannabis, packaged into smaller bags.  The appellant did not seek to rebut the statutory presumption as to intention to supply.[1]

[5]       In Mill v The Queen (1988) 166 CLR 59 the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) at pp 62 - 63 described the totality principle as “a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences”.  The Court referred with approval to Thomas, Principles of Sentencing, 2nd ed (1979), pp 56 - 57, and quoted the passage extracted below:-

“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’.”

[6]       After then referring to Ruby, Sentencing, 3rd ed. (1987), pp 38 - 41, the Court said:-

“Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.  Where practicable, the former is to be preferred.”

[7]       In Postiglione v The Queen (1997) 189 CLR 295 at 340, Kirby J also approved the same words of  Thomas, Principles of Sentencing, 2nd ed (1979), p 56, extracted above, and continued at 341.1:-

“… The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case.  The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example co-operation with authorities or absence of remissions).  But it still remains for the judge to look back at the product of these calculations and discounts.  It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment.  It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike.  Or it may offend the totality principle because, looking at the prisoner’s criminality as a whole, the outcome is, in its totality, not “just and appropriate”.  The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be “crushing” and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform.  Obviously, the adjustments for the parity and totality principles, whether performed by a sentencing judge or an appellate court, involve subtle considerations which defy precision either of description or implementation … .” 

[8]       A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, and questions of totality.[2]  

[9]       The magistrate convicted the appellant on all three charges.  On the first assault charge, he imposed a sentence of imprisonment of 18 months; on the second assault charge, a sentence of imprisonment of 12 months; and on the cannabis charge, a sentence of imprisonment of one month.  His Honour ordered that the sentences be cumulative, making a total sentence of 31 months. 

[10]     On appeal, no criticism is made of the sentences fixed by the magistrate for each offence.  Further, the appellant has not demonstrated error in his Honour’s approach to the principles of concurrency and cumulation at the second stage of his considerations.[3]  However, I have concluded that, after imposing the individual sentences he imposed for each offence,[4] although each may have been “properly made consecutive in accordance with the principles governing consecutive sentences”, the magistrate did not “take a last look at the total” or “look back at the product of his calculations and discounts”, in the words, respectively, of the High Court in Mill and of Kirby J in Postiglione v The Queen.

[11]     I have reached my conclusion that his Honour did not take a last look and consider the principle of totality, because, notwithstanding his generally careful and reasoned approach: (1) he ordered all sentences to be served cumulatively; (2) he did not specifically refer to having considered the principle of totality, and explain why, on such consideration, it made no difference to the effective aggregate sentence; and (3) he did not refer to lowering any of the individual sentences below that which would otherwise have been appropriate to take account of the totality principle.

[12]     In my opinion, the application of the totality principle at the final stage dictated that there should have been some proper reduction.

[13]     This was particularly so given that sentencing took place in April 2012 for offences committed just two weeks apart, almost five years earlier, in August and September 2007.  His Honour was acutely aware of the passage of time, and the reasons for it, and he took it into account in fixing individual sentences.[5]  He evidently did not take into account the passing of time in reference to the totality principle.  As mentioned, his Honour did not refer to the totality principle.

[14]     It has also been argued on appeal that the effective aggregate of the two unlawful assault sentences (indeed of all three sentences) was manifestly excessive.  It is not necessary for me to determine that ground, and I refrain from doing so.

[15]     Nonetheless, there has been an error in the magistrate’s exercise of the sentencing discretion, and I therefore propose to re-sentence the appellant.  

[16]     I allow the appeal in part.

[17]     Pursuant to s 177(2)(c) Justices Act I affirm the individual sentences imposed by the magistrate.  I order that the sentence on conviction for the second assault charge, that committed 11 September 2007 (file no 20725381), be served cumulatively as to six months and concurrently as to six months on the sentence on the first assault charge, that committed on 28 August 2007 (also on file no 20725381).  I affirm the order that the sentence on conviction for the cannabis charge (file no 21039864) be served cumulatively on the sentences for the two unlawful assault charges.

[18]     The total effective sentence on all three counts is therefore 25 months.  I affirm that the commencement date for the sentence is 1 April 2012, as ordered by the magistrate.

[19]     I affirm the order made by the magistrate that the sentence should be suspended after the appellant has served five months, pursuant to s 40(1) Sentencing Act.  There was no demonstrated error in the approach of the magistrate in determining the period of imprisonment which the appellant should serve before her sentence was suspended.  Notwithstanding the reduction on appeal of the total effective sentence, the period of five months to be served (of a 25-month sentence) is neither wrong in principle nor manifestly excessive, given the facts of the offending as well as those matters personal to the offender.[6]

[20]     I quash the order made by the magistrate specifying an operational period of 18 months for the suspended sentence, and, pursuant to s 177(2)(c) Justices Act read with s 40(6) Sentencing Act, I specify a period of 20 months from the date of the appellant’s release as the operational period.  There are no exceptional circumstances which justify specifying a shorter operational period than that of the unserved part sentence held in suspense.[7]

[21]     I record that in quashing the order made by the magistrate specifying an operational period of 18 months for the suspended sentence, I have upheld the cross appeals of the informant respondents that the magistrate erred in fixing an operational period under s 40(6) Sentencing Act which was less than the suspended balance of the head sentence.

[22]     I affirm the conditions of the suspended sentence imposed by the magistrate under s 40(2) Sentencing Act.  They include a condition that the appellant is to be under the supervision of Correctional Services for the first 12 months after her release from prison and is to comply with all reasonable directions as to residence, employment, associates, reporting and counselling.


[1]    s 37(6)(a) Misuse of Drugs Act.

[2]    Pearce v R (1998) 194 CLR 610 at 624, per McHugh, Hayne and Callinan JJ.

[3]    Brown v Lynch (1982) 15 NTR 9 at 11-12; Miles v The Queen [2001] NTCCA 9 at [35] – [40]; Hampton v The Queen [2008] NTCCA 5 at [35] –[36].

[4]    Transcript 2/4/2012, page 6.5.

[5]    Transcript 2/4/2012, page 4.4: “… if the delay has been brought about by the flight of an offender or an offender not appearing before court as and when required, the authorities indicate that the fact of rehabilitation [during the period between offence and sentence] will be given less weight.” See also page 6.2. 

[6]    Dinsdale v The Queen (2000) 202 CLR 321 at [26] per Gaudron and Gummow JJ; at [84] - [85] per Kirby J.  The exercise of the discretion to suspend a sentence of imprisonment is not limited by reference to rehabilitation and matters personal to the offender.  It is necessary to look again at all matters relevant to the circumstances of the offence.

[7]    R v Minor (1992) 2 NTLR 183 at 186, 189, 199; 59 A Crim R 227; R v Lane [2005] NTCCA 16; R v Wurramurra [1999] NTCCA 45; (1999) 105 A Crim R 512 at [64]-[65].