Last Updated: 8 February 2008

List of subheadings:

Crimes Act 1914 (Cth)
Scope of s19
- Definitions
- Setting a cumulative, partly cumulative and concurrent sentence
- No Gap

Related links:

Commencement of Sentences
Aggregate Sentences
One Transaction Rule
Totality Principle
Rule against Double Punishment

Commentary on Cumulative, Partly Cumulative and Concurrent Sentences under the Crimes Act 1914 (Cth)

Under s 19 of the Crimes Act 1914 (Cth) the court may set a federal sentence that is, in effect, cumulative, partly cumulative or concurrent upon another federal, state or territory sentence. [1]There are two important aspects to this section:

The first, is that the court must, 'by order, direct when each federal sentence commences': Crimes Act 1914 (Cth) s 19(1), (2) and (3). (See below Setting a cumulative, partly cumulative and concurrent sentence)

The second, is that in making this order the court is to ensure that no federal sentence commences later than the 'end of the sentences the commencement of which has already been fixed' or 'the last to end of those sentences': Crimes Act 1914 (Cth) s 19(1)(b), (2) and (3)(c). (See below 'No Gap')

In other words, there is to be 'no gap' between the end of one sentence and the commencement of a federal sentence. In R v Dobie [2004] QCA 140 Davies JA remarked (de Jersey CJ and Holmes J agreeing):

The intention of s 19 as a whole appears to be plainly to ensure that there is no gap between the end of a sentence which an offender is serving at the time when he or she is convicted for a federal offence and the commencement of the sentence for that federal offence. (emphasis added)[2]

Note also, that s 19 does not identify when it is appropriate to set a cumulative, partly cumulative or concurrent sentence. There is no legislative enactment of the common law presumption that sentences will be served concurrently [3] in Part IB of the Crimes Act 1914 (Cth). Rather, s 19 of the Crimes Act 1914 (Cth) is divided into three subsections which set out the different situations a court may face when seeking to set a cumulative, partly cumulative or concurrent sentence upon a federal offender: outlined in the table below.

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Scope of s19

Definitions

Section 19 is headed 'Cumulative, partly cumulative or concurrent sentences' [4] but the terms 'cumulative' and 'concurrent' do not appear in the section. A court imposing a cumulative, partly cumulative or concurrent sentence for a federal offence is required by the general language of the section to direct when the federal sentence commences rather than order that the federal sentence be cumulative, partly cumulative or concurrent: see further Setting a cumulative, partly cumulative or concurrent sentence.

The terms 'cumulative' and 'concurrent' are not defined in the Crimes Act 1914 (Cth).

The Butterworths Concise Australian Legal Dictionary (3rd ed, 2004) defines the terms as follows:

• Cumulative sentence: A punishment or term of imprisonment which commences at the expiration of another punishment or term of imprisonment.
• Concurrent sentence: A sentence that is served at the same time as another sentence.

NB. The NSW and ACT sentencing law uses the term 'consecutive' instead of 'cumulative'. [5]

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Setting a cumulative, partly cumulative or concurrent sentence

A court setting a federal sentence must direct when each federal sentence commences: Crimes Act 1914 (Cth) s 19; see, eg, R v Satwant Singh (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Crockett and Smith JJ, 26 March 1991) 13.

An order that does not specify when a federal sentence will commence will have no effect: R v Daswani [2005] QCA 167, [10].

A federal sentencing court is not empowered to make an order that a 'sentence be served cumulatively', rather it must operate under s 19 of the Crimes Act 1914 (Cth) and fix a commencement date so that this effect is achieved: see O'Brien (1991) 57 A Crim R 80, 87 cited in Johnson v The Queen [2004] HCA 15, [17]; see also R v Daswani [2005] QCA 167, [10].

The sentencing judge must turn his/her mind to whether the sentences should be concurrent or cumulative. It is for the sentencing judge to determine 'what should be the appropriate overall sentence or how the sentences should be structured to achieve that result': R v Institoris [2002] NSWCCA 8, [98] (Howie J, Mason P agreeing). Moreover, there is no duty upon the Crown to positively seek a cumulative sentence where it considers it appropriate: R v Institoris [2002] NSWCCA 8.

A court should first 'fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence': Pearce v The Queen [1998] HCA 57, [45] (McHugh, Hayne and Callinan JJ). To be consistent with general approaches to sentencing a court in determining how the sentence will be structured must have regard to the sentencing principles of totality, [6] double punishment and the one transaction rule.

There is overlap in the application of these principles and an appropriate sentence may be reached in a number of ways. The following passage of Wells J in Attorney-General v Tichy (1982) 30 SASR 84, 92-3 was cited with approval by Gleeson CJ in Johnson v The Queen [2004] HCA 15, [4]:

It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively... What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been found guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient (emphasis added).

The last sentence in the above passage is a description of the common law 'one transaction rule'.

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'No Gap'

Sentence

In relation to all three situations the section states that the court is to direct when each sentence commences, but so that no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences: Crimes Act 1914 (Cth) s 19(1)(b), (2) and (3)(c).

The phrase 'end of the sentences the commencement of which has already been fixed' includes a reference to another sentence imposed at the same time as the federal sentence: Crimes Act 1914 (Cth) s 19(4).

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Non-parole period

Similarly, there should be no gap between the end of a 'non-parole period' and the commencement of the federal sentence. So that where a non-parole period applies for a state or territory offence (sub-ss (1) and (3)) 'the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period': Crimes Act 1914 (Cth) s 19(1)(b) and (3)(d) (emphasis added).

'Non-parole period' is defined in s 16(1) of the Crimes Act 1914 (Cth).

There must be a non-parole period applying for s 19(1)(b) or (3)(d) to take effect. For example, sub-ss (1)(b) and (3)(d) do not allow for a federal sentence to be backdated to the end of a non-parole period which has expired. Therefore if there is no non-parole period applying at the time the offender is sentenced for the federal offence ss 19(1)(b) and 19(3)(d) have no application: R v Dobie [2004] QCA 140, [20].

Davies JA (de Jersey CJ and Holmes J agreeing) in R v Dobie [2004] QCA 140, [19] said:

It may be noted that s 19(1)(b) [of the Crimes Act 1914 (Cth)] speaks in the present tense: "applies". Thus it requires for its operation the existence of a non-parole period applying in respect of a State or Territory sentence at the time when a federal sentence is being imposed.

This passage was cited with approval by Wilson J in MacCormack v The Queen [2005] QSC 49, [13].

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Footnotes

[1] Prior to the introduction of Part IB of the Crimes Act 1914 (Cth) federal sentences could not be partly cumulative upon other sentences: Explanatory Memorandum, Senate, Crimes Legislation Amendment Bill (No 2) 1989 (Cth), 12; see R v Rumpf (1987) 29 A Crim R 64; Re R v Hillsley (1992) 34 FCR 148, [34-35].

[2] R v Dobie [2004] QCA 140, [21].

[3] There is a common law presumption that sentences will be served concurrently unless otherwise ordered see R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 705-7. This presumption has been reflected in some state and territory sentencing legislation: see Sentencing Act 1991 (Vic) s 16(1); Sentencing Act 1995 (WA) s 88(2). But it is not reflected in the Crimes Act 1914 (Cth).

[4] A heading to a section is not part of the Act: Acts Interpretation Act 1901 (Cth) s 13(3).

[5] See further Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [12.7, 12.12].

[6] Pearce v The Queen [1998] HCA 57, [45] (McHugh, Hayne and Callinan JJ).

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