Introduction

For those who’ve landed themselves in hot water and been convicted of multiple offences, the approach to sentencing vastly changes. There are a couple of important ways to adequately deal with an offender, called concurrent and consecutive sentences. These sentencing options significantly impact the total time an offender serves, influencing both the severity and the structure of the punishment. Concurrent sentences allow multiple sentences to be served simultaneously, while consecutive sentences require them to be served one after another, each affecting the overall duration of imprisonment.

This guide provides a comprehensive overview of consecutive and concurrent sentences in NSW, explaining their definitions, applications, and the principles that guide sentencing decisions. It will explore how courts determine whether sentences should run concurrently or consecutively, the role of the totality principle, and the practical implications for offenders. By examining these aspects, this guide aims to clarify the complexities of sentencing in NSW and offer practical insights for those affected by the criminal justice system.

Understanding Concurrent Sentences in NSW

Defining Concurrent Sentences

Concurrent sentences are terms of imprisonment that an offender is required to serve simultaneously. For instance, if an individual receives a 12-month sentence for one offence and a six-month sentence for another, both sentences will run at the same time, resulting in a total effective sentence of 12 months.

This approach ensures that the offender serves the longest sentence, while the shorter sentence does not extend the overall imprisonment period.

The Crimes (Sentencing Procedure) Act 1999 (NSW) governs the imposition of concurrent sentences in New South Wales. Courts often impose concurrent sentences when:

• Multiple offences arise from the same incident
• The offences are closely related

This ensures that the total sentence reflects the overall criminality without excessive harshness.

Factors Influencing the Use of Concurrent Sentences

Courts consider several factors when deciding whether to impose concurrent sentences:

• Similarity of Offences: If the offences are of a similar nature, the court is more likely to impose concurrent sentences to avoid disproportionate punishment.
• Common Incident or Enterprise: Offences arising from a single criminal incident or enterprise are typically sentenced concurrently.
• Same Victim or Victims: When offences involve the same victim or group of victims, concurrent sentences are often imposed to reflect the connected nature of the crimes.
• Proximity in Time: Offences committed in close proximity are more likely to be sentenced concurrently, especially if they are part of a continuous course of conduct.

The court’s primary concern is whether the sentence for one offence can encompass the criminality of all offences. This approach ensures the total sentence is just and appropriate while preventing the imposition of an excessively harsh sentence, all while holding the offender accountable for their actions.

Understanding Consecutive Sentences in NSW

Defining and Illustrating Consecutive Sentences

Consecutive sentences in New South Wales are terms of imprisonment that are served one after another, rather than simultaneously. This approach ensures that the offender serves the full term for each individual offence.

When the court determines that the criminality of each offence cannot be encompassed within a single sentence, consecutive sentences are imposed. For example:

• If an offender receives a 12-month sentence for one offence and a 6-month sentence for another
• And both sentences are to be served consecutively
• The total effective sentence will be 18 months

This calculation method means that the total sentence is the sum of all individual sentences, reflecting the full weight of each crime committed.

Factors Determining Consecutive Sentencing

The decision to impose consecutive sentences is influenced by several key factors:

• Separate incidents: When offences occurred during distinct incidents, the court is more likely to order consecutive sentences to properly reflect the severity of each separate offence.
• Different victims: Cases involving multiple victims often result in consecutive sentences to acknowledge the harm caused to each individual victim.
• Severity of offences: For serious offences or those involving significant harm, consecutive sentences may be necessary to ensure the total sentence adequately reflects the entirety of the offending behaviour.

These factors guide the court in determining whether consecutive sentences are appropriate in each case, helping to ensure that the overall sentence is just and proportionate to the crimes.

Partly Consecutive & Aggregate Sentences in NSW

What Are Partly Consecutive Sentences?

Partly consecutive sentences are a sentencing option that balances punishment with proportionality. In this approach:

• A portion of one sentence overlaps with another sentence
• The remaining part is served after the initial sentence concludes
• Courts can effectively balance punishment needs with the principle of totality

This method ensures that the overall sentence remains proportionate to the offending behaviour while still addressing the seriousness of multiple offences.

For instance, if an offender receives a two-year sentence for one offence and a 12-month sentence for another, the court might structure it as follows:

• Six months to be served concurrently with the two-year term
• The remaining six months to be served consecutively

This arrangement results in a total effective sentence of 2.5 years rather than the full 3 years if served completely consecutively.

Aggregate Sentences & the Totality Principle

Aggregate sentences provide courts with a mechanism to address multiple convictions through a single, comprehensive sentence determined at a sentencing hearing. When an offender is convicted of multiple offences, this approach allows the court to combine these into a single sentence that appropriately reflects the overall criminality.

Under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), courts can impose an aggregate sentence for two or more offences while outlining indicative sentences for each individual offence. This approach is guided by several key factors:

• Proportionality: Ensuring the sentence accurately reflects the severity of the combined offences
• Victim Impact: Considering whether offences involve multiple victims or significant harm
• Legal Precedents: Adhering to established sentencing principles and case law

The totality principle plays a crucial role in this process. It requires courts to review the aggregate sentence to ensure it is proportionate and appropriate. This principle prevents “crushing” sentences that exceed what is necessary for justice. Additionally, when an offender is already serving an existing sentence, the totality principle ensures that the overall punishment remains fair and appropriate.

The Totality Principle in NSW Sentencing

What is the Totality Principle?

The totality principle is a fundamental concept in New South Wales sentencing law that ensures the overall sentence imposed for multiple offences is just, appropriate, and proportionate to the totality of the offending behaviour. This principle applies in two key scenarios:

• When a court sentences an offender for more than one offence
• When an offender is already serving an existing sentence

The primary goal of the totality principle is to avoid imposing a sentence that is either excessively harsh or unduly lenient.

This principle requires the court to review the aggregate sentence and consider whether it reflects the overall criminality of the offences. After imposing individual sentences for each offence, the court must take a “last look” at the total sentence to ensure it is proportionate and does not exceed what is necessary for justice.

The totality principle is particularly important in cases where multiple offences are committed, as it helps to balance punishment with fairness.

Applying the Totality Principle

When applying the totality principle, courts in New South Wales consider several key factors to ensure the overall sentence is just and appropriate. These factors include:

• Whether the sentence for one offence can encompass the criminality of all offences: If the sentence for one offence can reflect the seriousness of all offences, the court may impose concurrent sentences to avoid excessive punishment.
• The nature and seriousness of the offences: Offences that are similar in nature or arise from the same incident are more likely to be sentenced concurrently. In contrast, serious or distinct offences involving different victims may require consecutive sentences.
• The proximity in time and connection between offences: Offences committed during the same incident or as part of a single criminal enterprise are often treated as a whole, while offences committed at different times or in unrelated circumstances may require separate sentencing.
• The impact on victims: When offences involve multiple victims or significant harm, the court may impose consecutive sentences to reflect the full extent of the harm caused.

The court’s task is to evaluate the overall criminality involved in all offences and determine whether the aggregate sentence is proportionate. If the total sentence is deemed excessive or insufficient, the court may adjust the sentences to achieve a just outcome. This ensures that the sentence reflects the totality of the offending, while maintaining the principles of proportionality and fairness.

Deciding Between Concurrent & Consecutive Sentences in NSW

Key Factors & Circumstances in Sentencing

Courts in New South Wales weigh several factors when determining whether to impose concurrent or consecutive sentences. These considerations help ensure that the overall penalty is just and proportionate, reflecting the totality of the offending behaviour. Key considerations include:

• Similarity of offences: Offences of a similar nature are more likely to attract concurrent sentences to avoid disproportionate punishment.
• Common incident or enterprise: When offences arise from a single incident or criminal enterprise, courts typically sentence them concurrently.
• Multiple victims: Cases involving different victims often lead to consecutive sentences, acknowledging the separate harm caused to each individual.
• Proximity in time: Offences committed in close succession—especially as part of a continuous course of conduct—are generally sentenced concurrently.

Ultimately, the court’s primary concern is whether the sentence for one offence can encompass the criminality of all offences, thereby preventing unduly harsh outcomes.

Judicial Considerations and Case Explanations

Judges apply established precedents alongside the totality principle to arrive at an appropriate sentencing structure, which can involve processes like plea bargaining. Under this principle, the court reviews the aggregate sentence to ensure it reflects overall criminality without being excessively severe.

Examples include:

• Cahyadi v R: The court held that if one sentence can fully comprehend the criminality of another offence, concurrent sentences are appropriate.
• R v XX: In contrast, when offences are distinct and involve different victims, partial or full consecutive sentences may be imposed.

By carefully evaluating the nature and seriousness of each offence, courts uphold the principles of proportionality and fairness, achieving a balanced approach to sentencing.

Conclusion

This guide has explored the key differences between concurrent and consecutive sentences for multiple offending in New South Wales, explaining how each is applied and the factors influencing these decisions. It has also delved into the principle of totality, which ensures that the overall sentence reflects the totality of the offending behaviour. Understanding these concepts is crucial for anyone navigating the criminal justice system in NSW, as the final penalty is determined at a sentencing hearing.

If you or someone you know is facing criminal charges and has questions about sentencing options, it is essential to seek expert legal advice from our criminal lawyers. The team at Daoud Legal: Sydney Criminal Defence & Traffic Lawyers are experts in this complex area of law and can provide the guidance and support you need to ensure the best possible outcome.

Frequently Asked Questions