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Last updated: 1 October 2010
List of subheadings:
Aggregate
Sentences under the Crimes Act 1914 (Cth)
Scope of s4K(3) and (4)
-- Statutory Minimum Penalties
- Summary offences
-- Same facts or similar character
- Indictable offences
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Commentary on Aggregate Sentences under the Crimes Act 1914 (Cth)
In certain instances, a court may impose an ‘aggregate’ sentence for a series of offences that are deemed to be of the same or a similar character. This form of single sentence is also referred to as a ‘general’ or ‘global’ sentence. [1]
Section 4K(3)-(4) addresses the use of aggregate sentences under the Crimes Act 1914 (Cth):
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... (3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. (4) If a person is
convicted of 2 or more offences referred to in subsection (3),
the court may impose one penalty in respect of both or all of
those offences, but that penalty shall not exceed the sum of the
maximum penalties that could be imposed if a separate penalty
were imposed in respect of each offence. |
Note: The power to impose an aggregate sentence for federal offences is also granted by specific penalty provisions: see, eg, Social Security (Administration) Act 1999 (Cth) s 219; A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) s 179; Shipping Registration Act 1981 (Cth) s 76.
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Scope of s4K(3) and (4)
In s 4K, sub-s (3) and (4) ‘work together’ and should be ‘read together’: Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174, [14]. Subsection (3) imposes certain limits on sub-s (4). In particular, sub-s (3) sets out the circumstances in which a court may impose an aggregate sentence, described in sub-s (4), upon a federal offender.
For example, in Thorn v The Queen [2009] NSWCCA 294, [41], Howie J (with whom Campbell JA and Rothman J agreed) applied the following passage from R v Bibaoui [1997] VR 600, in which Ormiston JA described the relationship between sub-s (3) and (4):
Subsection (4) is only relevant if there be a conviction of two or more of the offences upon such process, and that in my opinion requires that the offences are the subject of joinder in the kind of process described in subs (3). A single penalty could not be imposed merely because offences were of a similar kind; they must be offences which are the subject of charges joined pursuant to subs (3).
It remains the discretion of the court as to whether an aggregate sentence is imposed pursuant to s 4K(4). In CEO of Customs v Coulton [2005] NSWSC 869, Simpson J stated at [46]:
The conclusion that the offences were, within the meaning of s 4K(3), part of a series of offences of the same or a similar character does not necessarily lead to a conclusion that a single penalty should be imposed. That remains discretionary.
A court may impose an aggregate penalty that does not exceed the sum of the maximum penalties that could be imposed for each separate offence: s 4K(4).
It is unclear how s 4K(4) interacts with statutory minimum penalties. In CEO of Customs v Coulton [2005] NSWSC 869, [46], Simpson J considered the relationship between s 4K(4) and statutory minimums without deciding the issue, observing that:
The subsection [s 4K(4)] makes it clear that the maximum penalty that may be imposed under its provisions is the total of those that could have been imposed if each offence had been the subject of a separate penalty. Where the subsection is silent, and rather mysterious, is in its application to offences for which a statutory minimum has been prescribed...The imposition of a single monetary penalty in relation to a series of offences is obviously a matter of convenience, but I doubt that it was intended that the use of the power conferred by the subsection would enable a court to avoid the effect of the statutory minimum sentences. It is for that reason that I earlier queried whether s 4K(4) is, in reality, a beneficial provision.
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Section 4K(3) restricts the use of aggregate sentences to instances in which courts are sentencing for multiple summary offences. Reference to the ‘same information, complaint or summons’ has been interpreted as preventing courts from imposing aggregate sentences for federal indictable offences.
In R v Bibaoui [1997] VR 600, 603-604, Ormiston JA stated:
In my opinion, however, subs(4) is intended to be confined to those offences which are in fact joined in originating criminal process of the kind described, but limited, by subs(3), to informations, complaints and summonses…
If what I have said be correct, subs(4) has no relevance to offences charged on indictment. Although such a conclusion may seem to depend upon relatively slight indications, I consider that in its favour is the desirability of the accused, upon conviction, being informed of the penalty for each offence of which he is convicted and the reasons for that penalty...
This interpretation was accepted as correct in Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174. Justices Gummow and Heydon stated at [46]:
The Court of Appeal of Victoria correctly decided in Bibaoui that the phrase in s 4K "information, complaint or summons" identifies the processes for commencing criminal proceedings in courts of summary jurisdiction.
Justice Kirby similarly stated at [86]:
I agree with the other reasons that the interpretation adopted by the Victorian Court of Appeal in R v Bibaoui is correct. By the reference in s 4K(3) of the Crimes Act to "the same information, complaint or summons" it must be accepted that the provision for the imposition of aggregate sentences on convicted federal offenders was confined to those convicted of summary offences. It did not extend to indictable offences...
Subsequent federal sentencing decisions have confirmed that the use of aggregate sentences under s 4K is limited to sentencing for summary offences: Thorn v The Queen [2009] NSWCCA 294, [39]-[46]; Johnsson v The Queen [2007] NSWCCA 192, [33]-[34]; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40, [34].
There has been consideration of the application of s 4K in jurisdictions where the term 'information' is also used in relation to initiating proceedings in superior courts (South Australia and the Australian Capital Territory). The application of s 4K(3) and (4) to courts of summary jurisdiction has been upheld. In R v Jackson [1998] SASC 6932, Millhouse J of the Supreme Court of South Australia (Court of Criminal Appeal) stated at [52]:
It would be a strange state of affairs if the Commonwealth were to single out the ACT and South Australia to enable joinder of Commonwealth offences in superior courts and not in the other States. One of the primary objectives of Commonwealth legislation is to provide consistency between the States. It would be quite illogical for the Commonwealth to allow Commonwealth offences to be treated differently in the ACT and South Australia without an express intention stated.
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Same Facts or Similar Character
A court must determine whether separate charges are ‘founded on the same facts’ or constitute ‘a series of offences of the same or a similar character’: Crimes Act 1914 (Cth) s 4K(3).
In Chief Executive Officer of Customs v Pham [2006] NSWSC 1370, Bell J held that a single penalty should not be imposed for two smuggling offences contrary to s 233(1)(a) of the Customs Act 1901 (Cth). Justice Bell stated at [19]:
While these two offences occurred within a relatively short timeframe, I accept Customs’ submission that they were discrete episodes of offending and that the appropriate course is to impose separate penalties for each.
In CEO of the Australian Customs Service v Nabhan [2009] NSWSC 199, Fullerton J considered whether an aggregate penalty should be imposed for multiple offences of smuggling and evading the payment of duty contrary to the Customs Act 1901 (Cth). Justice Fullerton held at [57]-[58]:
[57] The plaintiff submitted that it would be inappropriate in the circumstances for the Court to apply s 4K(4) as each of the shipments, although apparently planned simultaneously, involved a discrete episode of offending with the use of different people and premises implicated in each shipment...
[58] ... although offences relating to shipments 2, 3 and 4 occurred within a very short time of each other and were planned simultaneously, the evidence compels a finding that they were dealt with in Australia quite separately, and in this way involved a discrete episode of offending so as to displace the application of s 4K(4).
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Courts sentencing for multiple indictable offences may impose an aggregate sentence only where the State or Territory scheme permits such an approach. This operates by reason of the Judiciary Act 1903 (Cth) s 68, which allows State and Territory laws for Commonwealth offences to operate ‘so far as they are applicable’.
In Putland v The Queen [2004] HCA 8, a majority of the High Court held that while s 4K(3) is limited to summary offences, the Judiciary Act 1903 (Cth) s 68 operates to ‘pick up’ State and Territory sentencing legislation in respect of indictable offences.
In Putland v The Queen [2004] HCA 8, the appellant was convicted of indictable offences pursuant to the Crimes Act 1914 (Cth) and the Bankruptcy Act 1966 (Cth). The sentencing judge imposed a single aggregate sentence. The appellant argued that the judge was not empowered to impose an aggregate sentence, as Part 1B of the Crimes Act 1914 (Cth) ‘covers the field’ in regard to sentencing federal offenders.
Justices Gummow and Heydon stated:
[44] It was held that the power conferred by s 4K(4)...was confined to summary offences and so did not apply to indictable offences. It follows that s 4K(4) had no application to the appellant. With respect to his sentence, s 4K was not a law of the Commonwealth which otherwise provided so as to exclude the operation of s 68(1) of the Judiciary Act to "pick up" s 52(1) of the Sentencing Act [1995 (NT)]...
[50] ... whilst s 4K of the Crimes Act made particular provision with respect to joinder in summary process (with qualifications drawn from the revised indictment procedures) and for aggregated sentencing, no such specific provision was made by federal law with respect to the trial on indictment of federal offences. In particular, the question of the existence of any power of aggregated sentencing upon charges tried on indictment was left to the operation of s 68(1) of the Judiciary Act.
Legislation in South Australia, Tasmania, Victoria and the Northern Territory permits aggregate sentences to be imposed for indictable offences. [2]
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Footnotes
[1] Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) [9.627]; Kate Warner, Sentencing in Tasmania (2nd ed, 2002) [9.404].
[2] Criminal Law (Sentencing) Act 1988 (SA) s 18A; Sentencing Act 1997 (Tas) s 11; Sentencing Act 1991 (Vic) s 9; Sentencing Act 1995 (NT) s 52(1).