Concurrent and Cumulative Sentences (WA)
In Western Australia, courts often sentence offenders for multiple offences at the same time. This can happen because several offences arise out of the same incident or because offences arising from different incidents are being dealt with at the same time. In this situation, the court may impose terms of imprisonment for more than one offence. These sentences may be made concurrent, cumulative or partly cumulative. This page deals with concurrent and cumulative sentences in Western Australia.
Legislation
The legislation that governs whether a term of imprisonment is to be served concurrently or cumulatively in Western Australia is the Sentencing Act 1995.
Concurrent sentences
Under section 88 of the Sentencing Act 1995, when a court in WA sentences a person to a fixed term of imprisonment, the term is to be served concurrently with any other fixed term of imprisonment that the person is serving or has yet to serve unless the court orders otherwise.
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 be 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 term of imprisonment is partly concurrent, part of the sentence is served at the same time as another sentence, and part of it must be served after the other sentence has been completed. The court must state the period of the sentence that must be served before the partly concurrent term begins.
Should a sentence be concurrent or cumulative?
Unlike other states, Western Australian legislation does not provide any guidance on when a sentence should be ordered 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 factors including:
- Whether the offences were committed against the same victim
- Whether the offences are similar in nature
- Whether the offences arose out of one criminal enterprise
- Whether offences that were committed during the same episode are 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 court will generally order at least part of the sentence to be served cumulatively.
The totality principle
When a person 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 what is 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.
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