Area of Law – Sentencing

An Article about Cumulacy or concurrency in criminal cases

SENTENCING – Cumulacy, concurrency
Cumulacy means that the amount of a sentence of imprisonment is added onto another sentence. Concurrency means the sentences are served at the same time.

This is a very important principle on sentencing because it can shorten a sentence considerably if you are able to convince a Judge to run sentences concurrently.

It is often a hard balancing act for Judges to give appropriate sentences for each offence and then work out what should be cumulated or made concurrent.

Some of the law in relation to these issues is as follows:

General principle
As Ormiston, J.A., with whom Winneke, P. and Hedigan, A.J.A. agreed, explained in D.P.P. v. Grabovac [1998] 1 V.R. 664 at 676.

” … The ordinary principles as to cumulation require that the sentencing judge should as far as practicable identify separate events, ‘episodes’, or ‘transactions’ giving rise to specific counts or groups of counts and to recognize them by ordering at least a degree of cumulation. This is to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity if all sentences for a series of unconnected offences were to be served concurrently. Difficulty arises not so much in providing for a degree of cumulation, but in having proper regard to the principle of totality and in avoiding the imposition of an inappropriately crushing sentence.”

This has been followed in R v McDonald [2004] VSCA 196 (21 October 2004)

As Ormiston, J.A. also explained in DPP v. Grabovac: “In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. … it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences.”

Followed DPP v Muliaina [2005] VSCA 13 (2 February 2005)

Multi-faceted course of conduct
Ultimately, justice requires due consideration of whether, and to what extent, the appellant “was truly engaged upon one multi-faceted course of criminal conduct”, and whether the sentences imposed properly reflected the outcome of that consideration

Johnson v The Queen [2004] HCA 15

“It may be accepted that the approach, which ought to have been adopted by the sentencing judge in the present case, was to fix appropriate penalties for both offences, then consider the application of the totality principle and, in particular, whether any adjustment needed to be made to either of the sentences imposed to achieve the total effective sentence which was consistent with the application of the principle”

Johnson v The Queen [2004] HCA 15

In Johnson’s case Gleeson CJ adopted Wells comments in Attorney-General v Tichy, Wells J said:

“It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.”

It may be added that the Crimes Act 1914 (Cth), in s 19, allows for sentences that are partly cumulative, and partly concurrent. And, as was observed in Mill [2], a sentencing judge, in a suitable case, may respond to considerations of the kind discussed by Wells J by lowering individual sentences rather than by making sentences wholly or partly concurrent. Ultimately, justice requires due consideration of whether, and to what extent, the appellant “was truly engaged upon one multi-faceted course of criminal conduct”, and whether the sentences imposed properly reflected the outcome of that consideration.


Date: 09/01/2009