Concurrent and Consecutive Sentences (NSW)
A person who has been charged with multiples criminal offences may be sentenced for more than one criminal matter at the same time. This can occur when more than one charge arises out of the same incident or when multiple charges arise from separate incidents but are finalised together. When this happens, the court may impose more than one term of imprisonment. These sentences may be made concurrent or consecutive. This page looks at concurrent and consecutive sentences in New South Wales.
The Crimes (Sentencing Procedure) Act 1999 contains provisions setting out when sentencing courts must impose concurrent and consecutive sentences in New South Wales.
Concurrent sentences are sentences of imprisonment that the offender is to serve at the same time. For example, if someone is sentenced to 12 months imprisonment for Offence 1, and six months imprisonment for Offence 2, and the terms are to be served concurrently, the total effective sentence (that is, the time the offender will actually serve in prison) is 12 months imprisonment.
Consecutive sentences are terms of imprisonment that are served one after the other. For example, if someone is sentenced to 12 months imprisonment for Offence 1 and six months for Offence 2 and the terms are to be served consecutively, the total effective sentence is 18 months imprisonment.
Partly consecutive sentences
When a court imposes partially consecutive sentences, part of the second sentence will be served at the same time as the first sentence and the remainder will be served after the first sentence has finished. For example, if a person is sentenced to 12 months imprisonment for Offence 1 and six months for Offence 2, with two months to be served consecutively, the total effective sentence is 14 months.
The totality principle
When a court sentences an offender for multiple offences, the aggregate sentence (that is, the total penalty that is imposed for all the offences) must be ‘just and appropriate’ to the totality of the offending. This means that the overall sentence must not be too harsh or too lenient.
In Principles of Sentencing (1979), D.A. Thomas expressed the common law principle of totality as follows:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.
Aggregate sentences in New South Wales
Under section 53A of the Crimes (Sentencing Procedure) Act 1999, a court can apply the principle of totality by imposing an aggregate sentence of imprisonment for two or more offences instead of imposing a separate term for each offence.
In the New South Wales Local Court, the maximum sentence that can be imposed for a single offence is two years imprisonment. The maximum aggregate sentence in the Local Court is five years imprisonment.
Should a sentence be concurrent or consecutive?
There is no general rule as to whether sentences should be concurrent or consecutive in New South Wales. The sentencing court must consider whether the sentence for one offence can encompass the criminality of all of the offences.
Factors that may be taken into account when a court is deciding whether to impose concurrent or consecutive sentences are:
- Whether the offending is all of a similar nature
- Whether all the offences were all committed against the same victim or victims
- Whether all the offending arose out of a single criminal enterprise
- Whether offences committed during the same episode are of a similar nature.
In a case where a person is being sentenced for significant violence on more than one occasion and the incidents are distinct and separate, or where there are different victims, the court will generally order at least partially consecutive sentences.
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