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Multiple or Continuing Offences

Multiple or Continuing Offences

The content on this page was last reviewed on 29 November 2017.

Recent cases alert:

DPP (Cth) v Beattie [2017] NSWCCA 301 — confirmed that aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth indictable offences by application of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

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1. Overview

A court may impose an ‘aggregate’ federal sentence for a series of federal offences that are deemed to be of the same or a similar character: s 4K Crimes Act 1914 (Cth).

Section 4K

(3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

(4) If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.

The power to impose an aggregate sentence for federal offences is also granted by specific penalty provisions in statutes other than the Crimes Act 1914 (Cth).1

In some state and territory jurisdictions, this form of single sentence is referred to as a ‘general’ or ‘global’ sentence.2

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2. Operation of ss 4K(3) and (4)

In s 4K, sub-s (3) and (4) ‘work together’ and should be ‘read together’.3

In Thorn v The Queen [2009] NSWCCA 294 at [41], Howie J (Campbell JA and Rothman J agreeing) applied the following passage from R v Bibaoui [1997] 2 VR 600, in which Ormiston JA described the relationship between sub-s (3) and (4):

Subsection (4) is only relevant if there be a conviction of two or more of the offences upon such process, and that in my opinion requires that the offences are the subject of joinder in kind of process described in subs (3). A single penalty could not be imposed merely because offences were of a similar kind; they must be offences which are the subject of charges joined pursuant to subs (3).

It falls within the discretion of the court as to whether an aggregate sentence is imposed pursuant to s 4K(4). For example, in CEO of Customs v Coulton [2005] NSWSC 869, Simpson J stated at [46]:

The conclusion that the offences were, within the meaning of s 4K(3), part of a series of offences of the same or a similar character does not necessarily lead to a conclusion that a single penalty should be imposed. That remains discretionary.

2.1 Statutory Minimum Penalties

Subsection 4K(4) provides that a court may impose an aggregate penalty that does not exceed the sum of the maximum penalties that could be imposed for each separate offence. It is unclear how the limit imposed by s 4K(4) interacts with statutory minimum penalties. For example in CEO of Customs v Coulton [2005] NSWSC 869, Simpson J considered the relationship between s 4K(4) and statutory minimums without deciding the issue. Simpson J observed at [46]:

The subsection makes it clear that the maximum penalty that may be imposed under its provisions is the total of those that could have been imposed if each offence had been the subject of a separate penalty. Where the subsection is silent, and rather mysterious, is in its application to offences for which a statutory minimum has been prescribed … The imposition of a single monetary penalty in relation to a series of offences is obviously a matter of convenience, but I doubt that it was intended that the use of the power conferred by the subsection would enable a court to avoid the effect of the statutory minimum sentences (emphasis added).

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3. Applicable to Summary Offences

In s 4K(3), the reference to the ‘same information, complaint or summons’ has been interpreted as preventing courts from imposing aggregate sentences for federal indictable offences.

In R v Bibaoui [1997] 2 VR 600 at 603, Ormiston JA stated:

In my opinion, however, subs(4) is intended to be confined to those offences which are in fact joined in originating criminal process of the kind described, but limited, by subs(3), to informations, complaints and summonses … If what I have said be correct, subs(4) has no relevance to offences charged on indictment. Although such a conclusion may seem to depend upon relatively slight indications, I consider that in its favour is the desirability of the accused, upon conviction, being informed of the penalty for each offence of which he is convicted and the reasons for that penalty …

This interpretation was accepted as correct in Putland v The Queen [2004] HCA 8, Gummow and Heydon JJ stated at [46]:

The Court of Appeal of Victoria correctly decided in Bibaoui that the phrase in s 4K “information, complaint or summons” identifies the processes for commencing criminal proceedings in courts of summary jurisdiction.

Kirby J similarly stated at [86]:

I agree with the other reasons that the interpretation adopted by the Victorian Court of Appeal in R v Bibaoui is correct. By the reference in s 4K(3) of the Crimes Act to “the same information, complaint or summons” it must be accepted that the provision for the imposition of aggregate sentences on convicted federal offenders was confined to those convicted of summary offences. It did not extend to indictable offences …

Subsequent federal sentencing decisions have confirmed that the use of aggregate sentences under s 4K is limited to sentencing for summary offences.4

Moreover, the application of s 4K has been considered in jurisdictions where the term ‘information’ is also used in relation to initiating proceedings in superior courts (South Australia and the Australian Capital Territory). The application of s 4K(3) and (4) to courts of summary jurisdiction has been upheld.

In R v Jackson [1998] SASC 6932, Millhouse J stated at [52]:

It would be a strange state of affairs if the Commonwealth were to single out the ACT and South Australia to enable joinder of Commonwealth offences in superior courts and not in the other States. One of the primary objectives of Commonwealth legislation is to provide consistency between the States. It would be quite illogical for the Commonwealth to allow Commonwealth offences to be treated differently in the ACT and South Australia without an express intention stated.

3.1 An aggregate sentence may be imposed for indictable federal offences only where a state or territory scheme permits

Courts sentencing for multiple indictable offences may impose an aggregate sentence where the state or territory scheme permits such an approach. This operates by reason of s 68 of the Judiciary Act 1903 (Cth). In Putland v The Queen [2004] HCA 8, a majority of the High Court held that while s 4K(3) of the Crimes Act 1914 (Cth) is limited to summary offences, s 68 of the Judiciary Act 1903 (Cth) still operates. Therefore, s 68 can ‘pick up’ a state or territory aggregate sentencing provision applicable to indictable offences.

In Putland v The Queen [2004] HCA 8, the offender was convicted of indictable offences pursuant to the Crimes Act 1914 (Cth) and the Bankruptcy Act 1966 (Cth). The sentencing judge imposed a single aggregate sentence. The offender argued on appeal that the judge was not empowered to impose an aggregate sentence, as Part 1B of the Crimes Act 1914 (Cth) ‘covers the field’ in regard to sentencing federal offenders.

Gummow and Heydon JJ stated at [44], [50]:

It was held that the power conferred by s 4K(4) … was confined to summary offences and so did not apply to indictable offences. It follows that s 4K(4) had no application to the appellant. With respect to his sentence, s 4K was not a law of the Commonwealth which otherwise provided so as to exclude the operation of s 68(1) of the Judiciary Act to “pick up” s 52(1) of the Sentencing Act.

whilst s 4K of the Crimes Act made particular provision with respect to joinder in summary process (with qualifications drawn from the revised indictment procedures) and for aggregated sentencing, no such specific provision was made by federal law with respect to the trial on indictment of federal offences. In particular, the question of the existence of any power of aggregated sentencing upon charges tried on indictment was left to the operation of s 68(1) of the Judiciary Act (emphasis added).

Legislation in New South Wales, South Australia, Tasmania, Victoria and the Northern Territory permits aggregate sentences to be imposed for indictable offences. See:

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4. Same Facts or Similar Character

A court must determine whether separate ‘charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character’: s 4K(3).

4.1 Where Same Facts or Similar Character Found

In Huynh v Commonwealth Services Delivery Agency [2014] SASC 143, Peek J upheld the sentencing judge’s finding that seven offences of obtaining a financial advantage contrary to s 135.2(1) of the Commonwealth Criminal Code were of sufficiently similar character to satisfy s 4K(3). His Honour explained at [42]:

As to legal joinder, the charges were properly joined on the same complaint pursuant to s 4K(3),  Crimes Act 1914 (Cth). They were offences against the same provision of a law of the Commonwealth; they related to a series of offences of the same or similar character; and there is a clear legal and factual similarity between each of them. Each count charges that the appellant obtained from the same victim (Centrelink) benefits to which he was not entitled by falsely representing that he was not working or earning income. That the appellant worked for different employers during the charge period is here of no significance to this matter of legal joinder (emphasis added).

Similarly, in R v Russell aka Hugill [2015] ACTSC 360, Burns J held that a single penalty pursuant to s 4K should be imposed separately for two sets of offences. The first set of offences related to three counts of misusing a Commonwealth credit card contrary to s 60(1) of the Financial Management and Accountability Act 1997 (Cth).5

These offences related to a series of unauthorised personal transactions when the offender was employed at the Department of Human Services (DHS). The second set of offences related to four counts of dishonestly obtaining a gain contrary to s 135.1(1) of the Commonwealth Criminal Code.6

These offences occurred while the offender was employed as an executive assistant at both the DHS and at the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA). In discussing the second set of offences, Burns J noted the similarities between the dishonest conduct at each department at [25]–[26]:

[Y]ou engaged in deceitful conduct which, akin to your former conduct whilst employed with DHS, exploited the trust your employer placed in you.

You fabricated circumstances to create opportunities to exploit your employer for personal gain on two separate occasions. When questioned about your conduct, after your first successful exploitation of your manager’s trust, you transferred to another part of the same department and engaged in an attempt to replicate the same fraud (emphasis added).

4.2 Where Same Facts or Similar Character Not Found

Same facts or similar character will not be found where the offences are discrete episodes of offending, even where the offending occurred within a short time frame.

In CEO of Customs v Pham [2006] NSWSC 1370, Bell J held that a single penalty should not be imposed for two smuggling offences contrary to s 233(1)(a) of the Customs Act 1901 (Cth). The offences related to two separate shipments of tobacco, Bell J stated at [19]:

[C]ounsel for Customs submitted that s 4K would admit of the imposition of a single penalty in relation to the two smuggling offences (each being offences against the same provision of a law of the Commonwealth). However, in Customs’ submission, since the two smuggling offences were discrete episodes of offending it was appropriate to impose separate penalties for each. Counsel for the defendants made no submissions with respect to the operation of s 4K. While these two offences occurred within a relatively short timeframe, I accept Customs’ submission that they were discrete episodes of offending and that the appropriate course is to impose separate penalties for each … (emphasis added).

Similarly in CEO of the Australian Customs Service v Nabhan [2009] NSWSC 199, Fullerton J considered whether an aggregate penalty should be imposed for multiple offences of smuggling and evading the payment of duty contrary to the Customs Act 1901 (Cth). Fullerton J held at [57]–[58]:

The plaintiff submitted that it would be inappropriate in the circumstances for the Court to apply s 4K(4) as each of the shipments, although apparently planned simultaneously, involved a discrete episode of offending with the use of different people and premises implicated in each shipment

although offences relating to shipments 2, 3 and 4 occurred within a very short time of each other and were planned simultaneously, the evidence compels a finding that they were dealt with in Australia quite separately, and in this way involved a discrete episode of offending so as to displace the application of s 4K(4) (emphasis added).

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5. Not applicable to civil pecuniary penalty orders

Courts have held that the imposition of an aggregate federal sentence under s 4K is not available for civil penalties.

For example, in Director of the Fair Work Building Industry Inspectorate v CFMEU [2016] FCA 413 it was held that a court is not empowered to impose a single penalty in respect of multiple contraventions of civil pecuniary penalty provisions in the Fair Work Act 2009 (Cth). White J stated at [54], [58]:

I doubt that s 4K(4) of the Crimes Act is applicable to contraventions of civil remedy provisions in the FW Act. The reference in subs (3) to “offences” which have been joined in the same “information, complaint or summons” and the terms “convicted” and “offences” in subs (4) indicate that those provisions are directed to criminal offences. The distinctions between criminal proceedings and civil penalty proceedings to which the reasons of the plurality drew attention in Commonwealth v DWFBII at [51], [57] are also pertinent in this context. In my opinion, the power vested in courts by s 4K is not available in the present context.

I add that a power to impose a single penalty for multiple contraventions would be advantageous. In particular, it would simplify the task of courts when imposing penalties for multiple contraventions.7

See also Corporations.

  1. See, eg, Social Security (Administration) Act 1999 (Cth) s 219; A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 179; Shipping Registration Act 1981 (Cth) s 76.[]
  2. Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) [13.105]; Kate Warner, Sentencing in Tasmania (Federation Press, 2nd ed, 2002) [9.404].[]
  3. Putland v The Queen [2004] HCA 8, [14].[]
  4. See, eg, Thorn v The Queen [2009] NSWCCA 294, [39]–[46]; Johnsson v The Queen [2007] NSWCCA 192, [33]–[34]; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40, [34].[]
  5. R v Russell aka Hugill [2015] ACTSC 360, [51].[]
  6. R v Russell aka Hugill [2015] ACTSC 360, [52].[]
  7. See also ASIC v Kobelt [2017] FCA 387, [78]–[80] (White J).[]
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