CONCURRENT & CUMULATIVE SENTENCES31-Oct-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 31/10/2010
It is often the case that more than one charge is preferred or arises from one criminal enterprise – this then raises the issue of how the court is to sentence an offender for multiple charges. The imposition of concurrent or cumulative sentences is largely a discretionary exercise for the court however, the main principle involved is the principle of totality and whether the sentence for one offence can comprehend and reflect the criminality of the other offence/s. The principles relating to the imposition of concurrent and cumulative sentences were discussed by the Court of Criminal Appeal in R v XX  NSWCCA 115 per Hall J (Kirby and Tobias JJ agreeing):
52 There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina  NSWCCA 1; (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:-
(1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson  NSWCCA 219 at  per Simpson, Barr and Latham JJ agreeing.
(2) In Regina v Weldon; Regina v Carberry  NSWCCA 475; (2002) 136 A Crim R 55, Ipp JA at  stated that it is “not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed” but his Honour observed that “this is not an inflexible rule” and “[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct".
(3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina  NSWCCA 14 at .
(4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK  NSWCCA 272 at  and , Cahyadi (supra) at  and  and Vaovasa v Regina  NSWCCA 253.
(5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at .
(6) If not, the sentence 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. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at .
(7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence.
(8) In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn  NSWCCA 41 at ) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM  NSWCCA 65. In Wilson (supra), having regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act, Simpson J observed at  that “... to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims ...” In Dunn (supra), the respondent to the Crown appeal had entered a guilty plea to an offence under s.51A of the Crimes Act 1900 of breaking and entering the dwelling house of a female, being armed with an offensive weapon, namely a knife with which he wounded the victim by inflicting three shallow lacerations to her neck. He also pleaded guilty to the offence of assaulting a male thereby occasioning actual bodily harm, that crime also occurring in the female’s home when the male victim attempted to protect her from the respondent. On the appeal, the Crown submitted that the sentences should have been partially accumulated. Adams J (with whom Ipp JA and Sully J agreed) stated at  that there should have been some accumulation in the sentences to reflect the fact that the respondent had persisted in his violence when the male victim attempted, justifiably and lawfully, to restrain him:- “... there is a distinct difference between assaulting one victim and assaulting two. Each was intentionally injured with the knife. The learned sentencing judge did not articulate his reasons for making the sentences wholly concurrent. Merely that the offences occurred in the course of a single extended episode does not justify such a conclusion. In my view the two attacks were distinct and separate instances of considerable violence and required distinct punishment, although they were so closely related in time and proximity as to require a significant degree of concurrency. Of course, it is also important to ensure that the effective sentence thus derived does not exceed the respondent’s criminality considered as a whole.”
(9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at .
(10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of “deemed” supply: Luu v Regina  NSWCCA 285 at .
(11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:-
“... The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed.” (Cahaydi (supra) at )
53 The observations in the above paragraphs are of particular relevance to the present appeal. The gun and firearm offences, in particular, should be considered in light of the facts in Luu (supra). The applicant in that case pleaded guilty to the following four charges:- • Count 1: unauthorised possession of a prohibited pistol contrary to s.7(1) of the Firearms Act, being a .22 calibre self-loading Jennings pistol. The offence carried a maximum penalty of 14 years’ imprisonment and the standard non-parole period of three years. • Count 2: possession of an unregistered pistol contrary to s.36(1) of the Firearms Act, being a 9 mm Luger self-loading pistol. The offence carried a maximum penalty of 10 years’ imprisonment. • Count 3: supply of a prohibited drug pursuant to s.25(1) of the Drug Misuse and Trafficking Act, being 19.72 grams of crystalline methylamphetamine. The offence carried a maximum penalty of 15 years’ imprisonment. • Count 4: supply of a prohibited drug pursuant to s.25(1) of the Drug Misuse and Trafficking Act, being 7.29 grams of heroin. The offence carried a maximum penalty of 15 years’ imprisonment.
54 The sentencing judge made the sentences partially concurrent and partially cumulative, by staggering their starting dates. The period of each sentence overlapped with the period of the preceding sentence, but the staggering was such that the sentence on Count 1 commenced shortly after the expiry of the sentence on Count 4.
55 It was submitted in that case on behalf of the applicant that the aggregate total sentence and aggregate non-parole period were both excessive. The submission was that the four offences were substantially connected, the two drug offences being in relation to the applicant’s stock as a drug dealer and brought separately only because there were two different types of drugs, and his possession of the pistols being connected with his activities as a drug dealer. The submission was that it was wrong to stagger the starting dates of the two drug offences and it was wrong to stagger the starting dates of the two firearm offences, because each pair of offences bore substantial connections, and greater concurrency should have been given to the two sets of offences.
56 On appeal, this Court (Giles JA, Latham J and Mathews AJ) rejected the submission that such was the connection between the offences that greater concurrency was called for. After citing dicta of Howie J in Cahyadi (supra) at , the Court stated:- “32. Possession of the two different kinds of drugs giving rise to the ‘deemed supply’ offences is not properly regarded as one episode of criminality. There were two deemed supplies, as there would be two (or more) actual supplies were the different drugs to be sold to two (or more) purchasers in the course of the applicant’s drug dealing. Nor is the criminality in the possession of the pistols, and two pistols one of which was a prohibited pistol involves greater criminality than one, to any substantial degree reflected in the sentences for the drug offences. The drug dealing could be carried on without firearms; that the applicant had them in his possession in connection with his drug dealing was significant additional criminality, and there was no double counting. The Firearms Act gives effect to the significant legislative policy of strict control upon the possession of firearms, and offences against it inimical to that policy called for substantial recognition in their own right: see R v Cromarty  NSWCCA 54; R v Tolley  NSWCCA 165.” (emphasis added)
57 I consider these observations to be relevant to the issues arising in this Crown appeal. They support the proposition that the actual supplies of the prohibited drugs constituting Counts 1 and 2 required a degree of accumulation and also indicate the need for a partial accumulation of Count 4 on the sentence in respect of Count 3.