Page 34 - Magistrates Conference 2019

24. The aggregate of the sentences must be appropriate to the offender’s criminality in
the context of the available mitigation. A sentencing judge should pass a total
sentence which properly reflects the overall criminality of the defendant and the
course and nature of the criminal conduct disclosed by the offences for which he

stands to be sentenced, while always having regard to the principle of totality.
Where consecutive sentences are imposed, a court shall take into consideration
whether the cumulative sentence is unduly long or harsh. A judge must ensure that
the cumulative sentence imposed does not exceed the overall culpability of the
offender. These principles are embedded in the common law: paragraph 16 of R v
Sidwell 2015 MBCA 56 (Court of Appeal of Manitoba). When crafting a sentence
for multiple offences, proportionality can be achieved either “by imposing
concurrent sentences or by applying the totality principle to consecutive sentences.”

The question is: was the total sentence a just and proportionate reflection of the
whole of the offending?

25. It is useful to remind ourselves as to when consecutive sentences may be imposed.
Consecutive sentences may be imposed for offences of a same or similar character
where the overall criminality of the offender, will not be reflected adequately by

concurrent sentences. Specific examples of consecutive sentences include successive
assaults on different victims on the same or different occasions. Consecutive terms
should not normally be imposed for offences which arise out of the same incident or
transaction: see R v Noble [2002] EWCA Crim. 1713. Consecutive sentences are
justifiably imposed in cases where a robbery is committed with the use of a firearm,
or violent resistance of arrest, or offences committed on bail. In all of these examples
however, distinct offences are committed in circumstances where the offences,
although distinct, can properly be said to increase the relevant criminality. A court

may impose consecutive sentences for offences committed on the same occasion
where there are exceptional circumstances to justify departure from the usual
practice. Where offences are indeed distinct or separate events, the court is entitled
to order consecutive sentences to reflect the prisoner’s criminality: Rv Peter Ralphs
[2009] EWCA 462.

26. In conclusion, it is safe to conclude that the principle of proportionality has a
constitutional provenance. The provision in our constitutions providing that no
person shall be subject to inhuman or degrading punishment or other such
treatment incorporates the principle that the sentence must be proportionate to the
seriousness of the offence. Its effect is to outlaw wholly disproportionate sentences.