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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 1 October 2010

List of subheadings:

Rule Against Double Punishment under the Crimes Act 1914 (Cth)
Rule Against Double Punishment
Scope of s 4C

Commentary on the Rule Against Double Punishment under the Crimes Act 1914 (Cth)

The rule against double punishment is a long standing common law principle. It addresses an aspect of double jeopardy that arises during the sentencing of offenders. The rule operates 'at the stage of punishment' after a person has been found guilty of an offence. [1]

The rule against double punishment is reflected in the following provision:

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Rule Against Double Punishment

At common law, the rule against double punishment provides that an offender should not be punished twice for the same criminal conduct.

The application of the rule arose for consideration in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. The appellant had been sentenced to identical terms of imprisonment for two offences (arising out of a single incident) pursuant to ss 33 and 100 of the Crimes Act 1900 (NSW). The infliction of grievous bodily harm was an element that was common to both offences. A majority of the High Court held that the concurrent sentences imposed on the offender infringed the rule against double punishment. [2]

In Pearce v The Queen [1998] HCA 57, [40], McHugh, Hayne and Callinan JJ described the rule against double punishment in the following terms:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

This formulation of the rule against double punishment has been cited and adopted in the following federal sentencing decisions: Johnson v The Queen [2004] HCA 15, [27]; R v Hamzy [2001] NSWCCA 539, [103]; Blay v The Queen [2006] WASCA 248, [7] (McLure JA) and [56] (Buss JA); Alder v The Queen [2006] NSWCCA 158, [47]; R v Wei Tang [2009] VSCA 182, [26].

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Scope of s 4C

In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ addressed the process of identifying common elements between offences. At [42], they stated:

The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a matter of semantics.

This approach was applied in the federal sentencing decision of R v Wei Tang [2009] VSCA 182.

In R v Wei Tang [2009] VSCA 182, the applicant had been convicted of five counts of possessing a sex slave and five counts of using a sex slave, pursuant to the Criminal Code Act 1995 (Cth) s 270.3(1)(a). The Victorian Court of Appeal considered whether there was overlap between possession and use of a slave. The Court (Maxwell P, Buchanan and Vincent JJA) observed at [28]:

As the High Court said in Pearce, we must obey Sir John Barry’s injunction to “avoid excessive subtleties and refinements”. Approaching the question “as a matter of common sense, not as a matter of semantics”, we have no doubt that the offences of “possessing a slave” and “using a slave” overlap when committed in relation to the same person. Put simply, there can be no “use” unless there is “possession”, and “use” is itself an illustration of “possession”. (citations omitted)

See also Yusup v The Queen [2005] NTCCA 19, where Riley J (with whom Mildren and Southwood JJ agreed), after citing Pearce v The Queen [1998] HCA 57 and Johnson v The Queen [2004] HCA 15, stated at [12]:

A consideration of the elements of s100A and s101A [Fisheries Management Act 1991 (Cth)] reveals that there are areas of overlap. In each case the offending involves a foreign boat at a place inside the Australian Fishing Zone. In relation to the offence under s 100A the offender is required to be "using" the boat "for commercial fishing". In relation to s 101A the offender is required to "have in his possession" the foreign boat whilst it is equipped with nets, traps or other equipment for fishing. For present purposes the degree of overlap can be seen from an examination of the circumstances of the appellant. As the captain of the vessel he was using a boat for commercial fishing and, by that very same conduct, he had in his possession a boat that was equipped for fishing. The conduct which exposes him to liability under s 101A is, to a large extent, the same conduct which exposes him to liability under s 100A. Whilst two discrete offences are created by those sections, in the circumstances of this matter there is significant commonality and that commonality should have been considered in determining the appropriate sentence. It was not considered.

See further, Blay v The Queen [2006] WASC 248, [65]-[75].

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Footnotes

[1] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, [13]-[15] (McHugh, Hayne and Callinan JJ); [68] (Gummow J); [120] (Kirby J). See also K Warner, Sentencing in Tasmania (2nd ed, 2002) [1.412]-[1.416].

[2] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, [49] (McHugh, Hayne and Callinan JJ) and [69] (Gummow J).

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