Concurrent and Cumulative Sentences (Vic)

Courts often sentence offenders for more than one criminal matter at the same time. This can occur when multiple charges arise from the same incident or when a number of charges arise from separate incidents but are finalised together. In these situations, the court may impose more than one term of imprisonment or detention on the offender. These terms may be made concurrent or cumulative depending on the circumstances. This page looks at concurrent and cumulative sentences in Victoria.

Concurrent sentences

Concurrent sentences are terms of imprisonment or detention that are served at the same time. For example, if a defendant is sentenced to six months imprisonment for Offence 1 and 12 months for Offence 2 and the terms are concurrent, the total effective sentence (that is, the time that the person will spend in prison) is 12 months imprisonment.

Cumulative sentences

Cumulative sentences are terms of imprisonment or detention that are served one after the other. For example, if a defendant is sentenced to six months imprisonment for Offence 1 and 12 months for Offence 2 and the terms are cumulative, the total effective sentence is 18 months imprisonment.

Partly cumulative sentences

When a court imposes partially cumulative sentences, part of the second sentence will be served concurrently with the first. The remainder will be served after the completion of the first sentence. For example, if a defendant is sentenced to 12 months imprisonment for Offence 1 and six months for Offence 2, with two months to be served cumulatively, the total effective sentence is 14 months.

The totality principle

When a court sentences a person for multiple charges, the aggregate sentence must be ‘just and appropriate’ to the totality of their offending behaviour. The overall sentence must be neither too harsh nor 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 the Magistrates Court, the maximum sentence that can be imposed for a single offence is two years imprisonment. The maximum aggregate sentence that can be imposed in the Magistrates Court is five years imprisonment. In the higher courts, the maximum sentence that can be imposed for a single offence is determined by the maximum penalty set out in legislation.

When is a sentence to be served concurrently?

Under section 16 of the Sentencing Act 1991, subject to a number of exceptions, all sentences of imprisonment imposed in Victoria are to be served concurrently unless the court directs otherwise.

However, this does not apply in cases where a term of imprisonment is imposed:

• In default of payment of a fine;
• On a prisoner for a prison offence or escape offence;
• For an offence committed while on bail;
• For an offence committed while on parole;
• For certain specified offences such as assaults on police involving the use of an offensive weapons and offences against emergency workers;
• On a serious offender for a relevant offence.

Serious offenders

Under section 6E of the Sentencing Act 1991, a term of imprisonment that is imposed on a serious offender for a relevant offence must be cumulative on any other uncompleted sentence that has been imposed on the person.

A serious offender is a serious arson offender, a serious drug offender, a serious sexual offender or a serious violent offender.

A relevant offence is an indictable offence committed while the offender was a public sector employee such as a police officer, a judicial employee or a parliamentary officer.

Detention of young offenders

Under section 33(1) of the Sentencing Act 1991, with some exceptions, a term of detention that is imposed on an offender who is under 21 must be served concurrently with any uncompleted sentence of detention or imprisonment.

The above rule does not apply in cases where detention is imposed on a young offender for escaping from a remand centre, youth residential centre or youth justice centre or for an offence involving causing property damage to a remand centre, youth residential centre or youth justice centre

In the above two situations, any term of detention that is imposed must be served cumulatively on any other sentence of detention that is uncompleted.

When a term of detention is imposed on a young offender for default in payment of a fine, it must be served cumulatively with any other term imposed for non-payment of a fine but concurrently with any uncompleted sentence.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.