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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 8 February 2008

List of subheadings:

Crimes Act 1914 (Cth)
The Common Law
- The concept of a single transaction
- Interaction with other sentencing principles

Commentary on the One Transaction Rule under the Crimes Act 1914 (Cth)

The following matters are relevant to the application of the one transaction rule, however, there is no explicit expression of the one transaction rule in the Crimes Act 1914 (Cth).

A court is required under the Crimes Act 1914 (Cth) to take into account, where relevant and known, the nature and circumstances of the offence (s 16A(2)(a)) and any other offences that are required or permitted to be taken into account (s 16A(2)(b)). The court must also consider 'if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character...': Crimes Act 1914 (Cth) s 16A(2)(c).

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The Common Law

It is a general sentencing principle that when a court imposes sentences for more than one offence arising out of a single transaction the sentences should be concurrent. DA Thomas recognised this principle in his text, Principles of Sentencing (2nd ed, 1979), and called it the 'one transaction rule'. Thomas states:

The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive. [1]

To apply the one transaction rule the sentencing judge must determine whether the offences were committed in the course of a 'single transaction'.

The concept of a 'single transaction' has been defined by Australian courts in many ways (see below).

Professors Fox and Freiberg have cautioned that the one transaction rule is not a simple guide. They note that,

[f]or every case that can be cited to illustrate the rule, another can be found that provides an exception, or effectively negates it. [2]

However, despite its imprecise nature, the one transaction rule is a long standing sentencing principle recognised in Australia as a 'good working rule': Ruane v The Queen (1979) 1 A Crim R 284, 286 cited in R v White [2002] WASCA 112, [15]; see also Dickens v The Queen [2004] WASCA 179, [12].

The one transaction rule is not mandatory: R v Faithfull [2004] WASCA 39, [30]. The sentencing judge must exercise their discretion in determining whether it is appropriate to apply the rule given the particular facts in each case: see Worthington v Western Australia [2005] WASCA 72, [23]. In R v White [2002] WASCA 112, [26] McKechnie J (Wallwork and Murray JJ agreeing) remarked:

There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may in the circumstances attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing Judge's discretion.

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The concept of a single transaction

The concept of a 'single transaction' has been described by Australian courts as:

• one multi-faceted course of criminal conduct, (see below)
• a 'continuing episode',[3]
• part of one transaction or episode of offending, [4]
• offences that are of similar character or ordinarily associated and that simply represent facets of one course of conduct, [5]
• when a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences,[6] and
• manifestations of the one criminal enterprise, transaction or episode. [7]

Commentator Mr Clayton C. Ruby has recognised a similar effect in Canadian case law where there are multiple expressions of the concept of a single transaction . Ruby remarks that in addressing the concept of a single transaction, 'one cannot minimize the difficulty of deciding what is a sufficiently close nexus to fit within the rule.' [8]

DA Thomas describes the one transaction rule as operating 'when all the offences taken together constitute a single invasion of the same legally protected interest.' [9]

In Attorney-General v Tichy (1982) 30 SASR 84, 93; 6 A Crim R 117, 126 Wells J recognised the operation of the one transaction rule and gave the following widely cited description of the principle. Wells J said:

The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. 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 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).

This passage was cited and adopted by Gleeson CJ in Johnson v The Queen [2004] HCA 15, [4-5].

Repetition of the same behaviour towards the same victim is generally indicative of a 'single transaction'. In his analysis of the English case law, DA Thomas found that:

The concept of a 'single transaction' may be held to cover a sequence of offences involving a repetition of the same behaviour towards the same victim... provided the offences are committed within a relatively short space of time. The concept will not normally apply to a series of similar offences involving different victims, even though the offences are of a similar character. [10]

Offences carried out over a short period of time may be indicative of a 'single transaction'. But DA Thomas cautions that where offences were committed simultaneously or close together in time does not necessarily mean that they amount to a single transaction.[11]In Murrell v The Queen (1985) 15 A Crim R 303 Blackburn J said:

In Australia there seems also to be a practice of regarding a succession of crimes each being the commission of the same offence, committed within a short space of time, as appropriate for concurrent sentences. But this practice is not invariable, as Mitchell J pointed out in Robinson v Samuels (1977) 18 SASR 137.

See also Borbil v The State of Western Australia [2007] WASCA 24, [87] where Steytler P reviewed the operation of the one transaction rule in Western Australian. Steytler P (Wheeler and McLure JA agreeing) said:

Successive crimes, each involving the commission of the same or closely related offences, committed within a short space of time, are sometimes regarded as appropriate for concurrent sentences: Pepper v Western Australia (2005) 30 WAR 447 at 471 per Roberts-Smith JA. Even distinct and unrelated offences have sometimes been treated as if they were related for the purposes of concurrency because they were committed within a short period of time: [Western Australia v Miller (2005) 30 WAR 38, 42; Worthington v Western Australia (2005) 152 A Crim R 585, 591]. However, the fact that offences are committed soon after one another, or even simultaneously, does not necessarily make them part of a single transaction for the purposes of this rule: Shaw (1989) 39 A Crim R 343 at 347 per Brinsden J; Pepper at 471 per Roberts-Smith JA; Hollingsworth [[2004] WASCA 73, [32]]; Coyne v The Queen, unreported; CCA SCt of WA; Library No 2325; 1 May 1978 (emphasis added).

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Interaction with other sentencing Principles

When sentencing for multiple offences, the application of the one transaction rule frequently overlaps with other general sentencing principles such as the totality principle and the rule against double punishment. These principles are separate principles and it is good practice to clearly state which principle you are applying. [12]

The joint judgment in Pearce v The Queen [1998] HCA 57, [45] set out a broad approach to sentencing for multiple offenders. McHugh, Hayne and Callinan JJ said:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation and concurrence, as well, of course, as questions of totality.

The rule against double punishment will generally arise when the court is determining an appropriate sentence for each offence. Then the one transaction rule may assist in determining whether the sentences should be cumulative or concurrent. But the court must review the aggregate sentence and consider whether the aggregate is 'just and appropriate' or whether the total sentence is crushing in accordance with the totality principle. Hence while the operation of the one transaction rule is discretionary the operation of the totality principle is mandatory. In considering the totality of the sentence the court may need to adjust the sentences so that the aggregate is 'just and appropriate.' For example, concurrent sentences would not be appropriate if it would result in a manifestly inadequate overall sentence. For further commentary see totality principle.

In Dickens v The Queen [2004] WASCA 179, McLure J described the application and interaction of these sentencing principles. McLure said:

At the second stage [of the sentencing process], the relevant principle is what is variously described as the 'one transaction' or 'continuing episode' rule. It is a general rule, or what has been described as a good working rule (Ruane v The Queen (1979) 1 A Crim R 284) that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences are to be made concurrent. However, a sentencing Judge must proceed to the third stage and consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 122; R v Faithfull (2004) 142 A Crim R 554. If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially cumulative rather than by adjusting the otherwise appropriate sentence: Mill v The Queen [1988] HCA 70 at 63 ... (emphasis added).

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Footnotes

[1] DA Thomas, Principles of Sentencing (2nd ed, 1979) 53.

[2] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 715.

[3] see, eg, R v GMW [2005] NSWCCA 101, [48]; Professors Fox and Freiberg refer to the concept as the 'continuing episode' rule: see R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 714.

[4] Dickens v The Queen [2004] WASCA 179, [14].

[5] Dicker v Ashton (1974) 65 LSJS (SA) 150,151 (Wells J) cited with approval in R v Amos (1985) 16 A Crim R 409, 411. See also R v Scanlon (1987) 89 FLR 77, 80; Worthington v Western Australia [2005] WASCA 72, [22].

[6] Brown (1982) 5 A Crim R 404, 407.

[7] Pearce v The Queen [1998] HCA 57, [120] (Kirby J).

[8] C.C Ruby, Sentencing (4th ed, 1994) 354. See also DA Thomas who states that '[d]ifficulty lies in establishing a sufficiently precise definition of the concept of a single transaction' (Principles of Sentencing (2nd ed, 1979) 53).

[9] DA Thomas, Principles of Sentencing (2nd ed, 1979) 53 cited in R v Scanlon (1987) 89 FLR 77, 90. Although recent judgments in the Western Australian Court of Appeal have observed that this rationale for the rule does not make the concept any clearer see, eg, R v Faithfull [2004] WASCA 39, [27]; Worthington v Western Australia [2005] WASCA 72, [21]; Ruich v The State of Western Australia [2006] WASCA 241, [19].

[10] DA Thomas, Principles of Sentencing (2nd ed, 1979) 54. Thomas's comments have been cited with approval in Australia see, eg, Pieri v The Queen [2001] WASCA 357, [44].

[11] DA Thomas, Principles of Sentencing (2nd ed, 1979) 54.

[12] Professor Warner has remarked that confusion has arisen and the boundaries between these principles has become blurred because courts have not made it clear exactly which principle they are applying: see K Warner, 'Sentencing Review 2003-2004: Part II' (2005) 29(1) Criminal Law Journal 46, 54.

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