Concurrent and Cumulative Sentences (WA)

Courts in Western Australia often sentence offenders for multiple offences at the same time. This may be because several offences arise from the same incident or because offences arising from different incidents are being finalised together. In this situation, the court may order imprisonment for more than one offence. These custodial terms may be made concurrent, cumulative or partly cumulative. This page deals with concurrent and cumulative sentences in Western Australia.

Legislation

The Western Australia legislation that governs whether a term of imprisonment is to be served concurrently or cumulatively is the Sentencing Act 1995.

Concurrent sentences

Under section 88 of the Sentencing Act 1995, when a Western Australian court sentences a person to a fixed term of imprisonment, the term is to be served concurrently with any other fixed term of imprisonment that they are serving or have yet to serve unless the court makes an order to the contrary.

When the court makes a term of imprisonment concurrent with another term, the offender is to serve both sentences at the same time. For example, if a person is sentenced to five months imprisonment for Offence 1, and 10 months imprisonment for Offence 2, the total effective sentence is 10 months imprisonment.

Cumulative sentences

Under section 88(3) of the Sentencing Act 1995, when an offender is serving, or has been sentenced to serve a fixed term of imprisonment, and a court imposes another fixed term of imprisonment for another offence, it may make the sentences cumulative or partly cumulative.

When a term of imprisonment is cumulative on another term of imprisonment, the second term is served after the first term has been finished. For example, if a person is sentenced to five months imprisonment for Offence 1, and ten months imprisonment for Offence 2, the total effective sentence would be 15 months imprisonment.

When a sentence of imprisonment is partly concurrent, some of the term is served at the same time as another sentence, and some of it is served after the other sentence has finished. The court must state the period of the sentence that must be served before the partly concurrent term begins.

When should a sentence be served cumulatively?

Western Australian legislation does not provide any guidance on when a court should order a sentence to be served cumulatively.

Under common law, when a court decides whether to order that a sentence be served concurrently or cumulatively, it must consider a range of questions. This includes:

• Were the offences committed against the same victim?
• Were the offences similar in nature?
• Did the offences arise out of one criminal enterprise?
• Were the offences committed during the same episode or are they of a similar nature?

In cases where there has been significant violence on two or more distinct and separate occasions, or where the offences were committed against different victims, the offender will generally be ordered to serve at least part of the sentence cumulatively.

The totality principle

When a defendant is sentenced for multiple offences, the aggregate sentence that the court hands down must be ‘just and appropriate’ to the totality of the offending. The overall sentence must not be too harsh or too lenient. The court must consider the appropriate sentence for all the offending.

In 1979, British lawyer David 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 WA, the maximum penalty that can be imposed for a single offence in the Magistrates Court is two years imprisonment. The maximum aggregate sentence that can be imposed in the Magistrates Court is five years imprisonment.

In the District Court and Supreme Court, the maximum penalty that can be imposed for a single offence is determined by the maximum penalty stipulated in the legislation. There is no maximum aggregate sentence in the higher courts.

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