The meaning of 'sentence'

Ludeman, Thomas & French v R is the first five-judge bench decision on the meaning of the new appeal provisions in the Criminal Procedure Act 2009. The court held that the right to appeal 'a sentence' and the provisions governing when the court may grant leave or allow the appeal, apply to:

• The recording of a conviction;
• The individual sentences;
• Any concurrency or cumulation orders associated with individual sentences; 
• The non-parole period;
• An aggregate sentence;
• Superannuation orders;
• Restitution orders; and
• Compensation orders.

However, the provisions do not apply to what is conventionally called the 'total effective sentence'.


Nettle JA"s disappointment with this result is palpable. In his 3 paragraph concurring judgment, he writes:

For a while after the enactment of the Criminal Procedure Act 2009, I was inclined to think or, perhaps more accurately, I dared to hope that ‘a different sentence’ in s 281(1) (b) meant a different total effective sentence. Were it so, it would save the lamentably large amounts of time and effort which are invested in dealing with leave applications and correcting individual sentences in cases where the total effective sentence is unexceptionable.

Having now, however, read in draft the reasons for judgment of Ashley and Redlich JJA, I am compelled to agree with their Honours that ‘a different sentence’ means a different individual sentence for a discrete offence. Consequently, we must continue to invest time and effort in correcting individual sentences in cases in which the total effective sentence is not inappropriate. If it matters, I do not consider that the supposed objectives and advantages of correcting individual sentences in cases of that kind are sufficient to warrant the application of the resources which it entails. I also agree with Ashley and Redlich JJA that s 282(2) does not authorise the court to make an order with respect to an individual sentence which is not the subject of a grant of leave to appeal. In my view, that is a logical consequence of the power conferred by s 280(2) to refuse leave to appeal in relation to individual grounds of appeal.

The nub of the decision by Redlich and Ashley JJA is found at [54] - [55]:

Counsel for the Crown resiled from the submission advanced before Redlich JA, now contending that ‘the overall product of individual sentences is simply the actual period that must be served by an offender - but that period is not a “sentence” in its own right’. The submission continued that the word ‘sentence’ wherever appearing in ss 280 and 281 of the Criminal Procedure Act ‘does not mean (or include) “total effective sentence”, but rather any sentence captured by the definition of “sentence” in section 3’. Thus, regardless whether the total effect of multiple sentences, or the non-parole period fixed, was likely to be any different, leave should be granted to appeal in respect of a particular sentence which was arguably erroneous. On appeal, s 281 of the Criminal Procedure Act should be given the same operation, as was the predecessor s 568(4) of the Crimes Act 1958 – this mandating that an appeal be allowed so as to correct an erroneous sentence.

In our opinion, both the words of the relevant provisions and history point to the general correctness of the Crown’s submissions with respect to grant or refusal of leave. We think it is clear that, in the ordinary case, ‘sentence’ embraces each individual sentence imposed and any consequential orders made for cumulation/concurrency, and any non-parole period which is fixed; but not what is commonly called the ‘total effective sentence’. Thus, in an application for leave to appeal against sentence under s 280, in a matter involving multiple offences, leave should ordinarily only be granted in respect of an individual sentence which is arguably erroneous, but should be refused in respect of other individual sentence(s). Leave will extend, in such a case, to any consequential order for cumulation/concurrency made in respect of the impugned sentence and to any non-parole period which has been fixed. It will so extend without separate specification on the grant of leave.

The judges also point out that, with this new focus on accurately identifying 'the sentence', arguments that focus the total effective sentence or the non-parole period will need to be reframed. At [56] - [57]:

Next, it is not in doubt that the common law principle of totality remains a sentencing consideration. The Criminal Procedure Act, however, mandates the way in which a complaint about totality must be raised in a particular case. Often, when an applicant seeks to raise a totality complaint, the ground is stated this way: ‘the total effective sentence was manifestly excessive’. Sometimes, an expanded form is framed along these lines: ‘the individual sentence, the orders for cumulation and the total effective sentence were all manifestly excessive’. Whether the formulation be one or the other, in many instances no complaint is made about the individual sentences; the real battleground being the order(s) for cumulation. Consistently with what we have said thus far, the Criminal Procedure Act requires that a complaint about totality should be framed by reference to the individual sentences (if any) which the applicant seeks to impugn, as well as any order(s) for cumulation which will be attacked. The proposed ground then having a sufficient degree of specificity, the judge will be better able to determine whether leave should be granted in respect of one or more (and which) individual sentences and orders for cumulation.

We have said that grant of leave in respect of an individual sentence will carry with it a right to challenge such non-parole period which may have been fixed. But there are also cases where the principal complaint is that the non-parole period fixed was inappropriately great. In such a case, the applicant will need to frame a ground specifically to that effect. We should add that the success of such a ground, assuming a grant of leave, has implications for the head sentence.

The judges noted that this result was consistent with the pre-Criminal Procedure Act jurisprudence. This is unsurprising, given that the Criminal Procedure Act wasn't intended to change this area of law. Instead, the Act makes several discrete changes to issues such as the test for conviction appeals, the test for leave to appeal against sentence and the application of double jeopardy principles on Crown appeals against sentence. Otherwise, as we move into the period when the Act will start being applied (as it only applies to appeals when the person was sentenced after 1 January 2010), I expect that the changes outside those three identified areas will be moderate.