Concurrent and Consecutive Sentences (NSW)

It is common for a person to be sentenced for multiple offences on the same occasion. This can occur when multiple charges arise out of the same incident or when multiple charges arise from different incidents but are finalised together. In these situations, the court may impose two or more terms of imprisonment in respect of different charges. These sentences may be made concurrent or consecutive. This page deals with concurrent and consecutive sentences in New South Wales.

Legislation

The Crimes (Sentencing Procedure) Act 1999 contains provisions setting out when concurrent and consecutive sentences must be imposed in New South Wales.

Concurrent sentences

Concurrent sentences are sentences of imprisonment that are served at the same time. For example, if a person is sentenced to 12 months imprisonment for Offence 1 and six months for Offence 2 and the terms are to be served concurrently, the total effective sentence (that is, the time that the person will actually serve) is 12 months imprisonment.

Consecutive sentences

Consecutive sentences are sentences of imprisonment that are served one after the other. For example, if a person 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 a person for multiple offences, the aggregate sentence must be ‘just and appropriate’ to the totality of the offending. The overall sentence must not be too harsh or too lenient.

In 1979, DA 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.

Under section 53A of the Crimes (Sentencing Procedure) Act 1999, a court in New South Wales can apply the principle of totality by imposing an aggregate sentence of imprisonment for two or more offences instead of imposing separate sentences for each offence.

Should a sentence be concurrent or consecutive?

There is no general rule as to whether sentences should be concurrent or consecutive. The court must consider whether the sentence for one offence can encompass the criminality of all offences. Factors that may be taken into account are:

Whether the offending is all of a similar nature
Whether all the offences were committed against the same victim
Whether all the offending arose out of one criminal enterprise
Whether offences committed during the same episode are of a similar nature.

In a case where there has been significant violence on two or more occasions that are distinct and separate, or where the victim is different, the court will generally order at least partially consecutive sentences.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.