Concurrent and Consecutive Sentences (NSW)

When a person is charged with or being sentenced for multiple criminal offences, they may be sentenced for all those offences at the same time. When this occurs, the Court may impose one or more penalty for each offence which may include multiple periods of imprisonment and the Court needs to consider whether the terms of imprisonment will be served all at once (concurrently) or separately (consecutively). The Crimes (Sentencing Procedure) Act 1999 in Part 4 at Division 2 contains the relevant provisions for concurrent and consecutive sentences in New South Wales. 

Definitions:

Concurrent Sentences

A concurrent sentence are sentences of imprisonment or bonds that the offender is to serve at the same time. For example, if an offender is sentenced to 12 months imprisonment for Sequence 1, and 6-months imprisonment for Sequence 2, the total time to be served is 12 months imprisonment. 

Consecutive Sentences

A consecutive sentence are sentences of imprisonment or bonds that the offender is to serve one after the other. For example, if an offender is sentenced to 12 months imprisonment for Sequence 1, and 6-months imprisonment for Sequence 2, the total time to be served is 18 months imprisonment. 

Partially Consecutive Sentences

Partially consecutive sentences occur where the offender serves part of the second sentence at the same time as the first sentence with the remainder to be served after the first sentence has finished. For example, if an offender is sentenced to 12 months imprisonment for Sequence 1, and 6-months imprisonment for Sequence 2, with two months ordered to be served consecutively, the total effective sentence is 14 months. 

Non-Parole Period

A non-parole period is the period of time the offender must serve in custody / in gaol for their offence. 

Aggregate Sentence

An aggregate sentence is a single total penalty imposed for multiple offences rather than individual sentences imposed for each separate offence. Aggregate sentences must be just and appropriate to the total criminality of the offending conduct as per the principle of totality. Section 53A of the Crimes (Sentencing Procedure) Act 1999 vests the Court with the power to impose an aggregate sentence instead of individual terms of imprisonment for each offence. An aggregate sentence imposed by the Local Court cannot exceed 5 years. 

Principle – Totality:

The principle of totality requires that the aggregate sentence must be “just and appropriate” to the totality of the offending behaviour when the Court is sentencing an offender for more than one offence. 

The principle of totality was discussed in R v MMK [2006] NSWCCA 272 where that Court held that: 

“The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

When applying the totality principle, the Court will consider each maximum penalty of all charged offences before imposing the sentence for any one offence. This process ensures the effective sentence reflects the overall criminality of the offending conduct and that the individual sentences imposed comply with any statutory limits for specific sentencing options. 

Fine Penalties – Concurrent or Consecutive?

When a person is being sentenced for multiple fine only offences, then fines imposed cannot be made “concurrent”. Each fine must be paid separately. 

Should Sentences of Imprisonment be Served Concurrently or Consecutively?

There is no general rule in favour of sentences being concurrent or consecutive. 

When considering how the terms of imprisonment are to be served, the Court needs to determine whether one sentence covers the totality of the criminal conduct or whether concurrent sentences are required. 

The principles on whether a concurrent or consecutive sentence should be applied are contained in case law:

• R v Wilson [2005] NSWCCA 219 – Questions of accumulation are discretionary. The important factor is that an appropriate sentence is imposed in respect of each offence and secondly whether the total sentence reflects the totality of criminality.
• R v Weldon (2002) 136 A Crim R 55 – Where offences arise from one criminal enterprise, concurrent sentences will often be imposed.
• Nguyen v R [2007] NSWCCA 14 – The principle of totality is to be used when considering whether a sentence in respect of two or more offences committed in the course of a single episode or criminal conduct or on a particular day should be concurrent or at least partially concurrent.
• R v MMK (2006) 164 A Crim R 481 – When applying the principle of totality, whether the sentence for one offence can comprehend and reflect the criminality of another offence.
• Cahyadi v R [2007] NSWCCA 1 – If the sentence for one offence can comprehend and reflect the criminality of another offence, then the sentences ought to be concurrent. 
• Cahyadi v R [2007] NSWCCA 1– If not, the sentences should be at least partially cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. 
• Whether the above applies is to be evaluated from the relevant factors pertaining to the offences being the nature and seriousness of each offence.
• In cases of assault with violence, the closeness in time and proximity of the two offences will not be the determinative factors. 
• In cases of two offences committed during the course of a single episode are of a completely different nature with different gravity, it is likely that some accumulation will be necessary to comprehend and reflect the criminality of those offences. 
• In cases of drug possession of two different kinds of drugs, such may not be regarded as one episode of criminality in a “deemed” supply case.
• The fact that evidence of two offences are located by Police in the one place is not a factor in favour of concurrent sentences.