List of Subheadings
The rule against double punishment is a long standing common law principle. It operates ‘at the stage of punishment’ after a person has been found guilty of an offence,1 and addresses an aspect of double jeopardy that arises during the sentencing of offenders.
The rule against double punishment is reflected in s 4C of the Crimes Act 1914 (Cth):
(1) Where an act or omission constitutes an offence:
(a) under 2 or more laws of the Commonwealth; or
(b) both under a law of the Commonwealth and at common law;
the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth or at common law, but shall not be liable to be punished twice for the same act or omission.
(2) Where an act or omission constitutes an offence under both:
(a) a law of the Commonwealth and a law of a State; or
(b) a law of the Commonwealth and a law of a Territory;
and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth.
(3) Where an act or omission constitutes an offence against a law of a Territory, the validity of that law is not affected merely because the act or omission also constitutes an offence against a law of the Commonwealth.
2. Common law rule against double punishment
At common law, the rule against double punishment provides that an offender should not be punished twice for the same criminal conduct. In Pearce v The Queen  HCA 57, , McHugh, Hayne and Callinan JJ described the rule against double punishment in the following terms:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.3
The application of the rule arose for consideration in Pearce v The Queen  HCA 57. The appellant had been sentenced to concurrent terms of imprisonment for two offences: (1) maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm and (2) breaking and entering the dwelling-house of the same victim and, while therein, inflicting grievous bodily harm on the victim, pursuant to ss 33 and 110 of the Crimes Act 1900 (NSW). Both offences arose out of a single incident, and the infliction of grievous bodily harm was an element that was common to both offences. A majority of the High Court held that the concurrent sentences imposed on the offender infringed the rule against double punishment.4
3. Identifying common elements between offences
In Pearce v The Queen  HCA 57, McHugh, Hayne and Callinan JJ addressed the process of identifying common elements between offences. At , they stated:
The identification of a single act as common to two offences may not always be as straightforward [as in this case]. It should, however, be emphasised that the enquiry is not to be attended by “excessive subtleties and refinements”. It should be approached as a matter of common sense, not as a matter of semantics.5
Identifying common elements between offences includes consideration of the commonality of the facts and circumstances of the offence. In R v Dennison  NSWCCA 114 the offender had been sentenced for using a carriage service to make available child pornography, contrary to s 474.19 of the Commonwealth Criminal Code and dealing in the proceeds of crime contrary to s 400.4(1) of the Commonwealth Criminal Code. The Court noted the need to avoid double counting in sentencing for the proceeds of crime offence, as the fact the offender had profited was taken into account as an aggravating factor in sentencing for the carriage service offences. Schmidt J (Whealy JA and McCallum J agreeing) stated at :
It is not only the commonality of the legal elements of the offences which had to be considered, but also the commonality of the facts and circumstances (see R v Hilton  NSWCCA 317; (2005) 157 A Crim R 504 at ). As explained in R v Elphick  NSWCCA 112, when an offender is being punished for more than one offence arising out of the same set of facts, the need to avoid punishing an offender twice does not require that elements which are common to any overlapping offences with which the offender is charged be ignored. Rather, it is necessary to consider, independently, the facts and circumstances relevant to the sentence imposed for the first offence and to sentence accordingly. Then, when turning to deal with the second offence, ‘any necessary step in assessment of punishment for that crime to avoid that which would amount to double punishment can be taken’ (at ).
Similarly, in Dang v The Queen  VSCA 49, Tate JA (Weinberg JA agreeing) stated at :
It is what the offender has done, or relevantly omitted to do, which gives rise to criminal culpability and for which he or she stands to be punished. In my view it would be wrong to construe the reference in Pearce to the boundaries of particular offences as inviting a comparison between the formal elements of offences to determine if they overlap; rather, it is a matter of determining whether, in the commission of the offences for which an accused stands convicted, there is any commonality in the offending.
3.1 The process of identifying commonality in offending
The following cases provide examples of the process Courts have used to identify commonality in offending.
In R v Tang  VSCA 182, the applicant had been convicted of five counts of possessing a sex slave and five counts of using a sex slave, pursuant to s 270.3(1)(a) of the Commonwealth Criminal Code. The Victorian Court of Appeal considered whether there was overlap between possession and use of a slave. The Court (Maxwell P, Buchanan and Vincent JJA) observed at :
As the High Court said in Pearce, we must obey Sir John Barry’s injunction to “avoid excessive subtleties and refinements”. Approaching the question “as a matter of common sense, not as a matter of semantics”, we have no doubt that the offences of “possessing a slave” and “using a slave” overlap when committed in relation to the same person. Put simply, there can be no “use” unless there is “possession”, and “use” is itself an illustration of “possession” (citations omitted).
A consideration of the elements of s 100A and s 101A [Fisheries Management Act 1991 (Cth)] reveals that there are areas of overlap. In each case the offending involves a foreign boat at a place inside the Australian Fishing Zone. In relation to the offence under s 100A the offender is required to be “using” the boat “for commercial fishing”. In relation to s 101A the offender is required to “have in his possession” the foreign boat whilst it is equipped with nets, traps or other equipment for fishing. For present purposes the degree of overlap can be seen from an examination of the circumstances of the appellant. As the captain of the vessel he was using a boat for commercial fishing and, by that very same conduct, he had in his possession a boat that was equipped for fishing. The conduct which exposes him to liability under s 101A is, to a large extent, the same conduct which exposes him to liability under s 100A. Whilst two discrete offences are created by those sections, in the circumstances of this matter there is significant commonality and that commonality should have been considered in determining the appropriate sentence. It was not considered.
4. Method of avoiding double punishment
If an offender is convicted of two offences arising out of the same act or omission and the commonality is such that one offence is totally subsumed within the other, it is inappropriate to impose a sentence for the subordinate offence.6 The implication from Pearce v The Queen  HCA 57 is that the imposition of a sentence in this situation will not be remedied by making the two sentences wholly concurrent.7 However, where the second offence involves additional criminal misconduct, it will be appropriate to impose some additional sentence in order to reflect this misconduct. 8
Where two or more offences are committed in the course of ‘one transaction’, all sentences in respect of these offences may be made concurrent or partly concurrent. Operation of this principle will generally arise after consideration of double punishment: see One Transaction Rule.
4.1 Double Punishment and Concurrency
There is continuing judicial uncertainty about whether double punishment can be avoided by making sentences concurrent or partially concurrent. In Nantankhum v The Queen  ACTCA 40, Dowsett J (Higgins CJ agreeing) confirmed the orthodox view that ‘[t]he decision in Pearce establishes that concurrent sentences may comprise double punishment or otherwise reflect an error in the sentencing judge’s approach.’9 However, Penfold J (dissenting) reviewed the application of Pearce in relation to double punishment by intermediate appellate courts and concluded at –:
[T]here is in my view a discernible inclination in the Courts of Appeal of New South Wales, Victoria and Western Australia to work around Pearce to the extent that it seems to require that, in sentencing for offences with common elements, the common element should be addressed in one sentence and then ignored in sentencing for the other offences.
That is, the courts have sought to address the obligation to avoid “double punishment” by using concurrency to recognise the overlap between two or more offences. In doing so, they have either ignored or rejected the implication in Pearce that concurrency may in itself involve double punishment.
I propose to do the same, for reasons that can be summarised as follows:
(a) That the desirability, as identified in Pearce and since, of specifying appropriate sentences for each separate offence before considering totality outweighs the theoretical possibility that concurrency of sentences to recognise common elements of two offences amounts to “double punishment” for those common elements.
(b) That it is by no means clear that in Pearce, their Honours really meant to say that concurrency of sentences for offences with common elements necessarily amounted to “double punishment” for the common elements, so much as to express a concern that the simple imposition of two identical and concurrent sentences for the two different offences suggested inadequate attention to the appropriate sentence for each offence and to how the common elements should be dealt with. This perhaps charitable proposition is founded on an assumption that if their Honours had really intended to exclude the use of concurrency to address overlaps (whether of elements or of factual matters) between multiple offences, they would have made an effort either to reconcile such a requirement with the general expectation (articulated in Pearce within a few lines of the comments that warn of the dangers of concurrency) that proper sentences should be set for each offence, or at least to provide some indication of how such an approach would work in practice.
Penfold J then addressed the issue of double punishment by identifying a proper sentence for each offence, and then using concurrency to ensure there was no double punishment, stating at :
Sentences that address all the elements of the two immigration offences should be served concurrently with other sentences to the extent that they reflect that aggravating factor of SK’s enslavement …
However, Dowsett J (Higgins CJ agreeing) dealt with double punishment by imposing no sentence in relation to the overlapping elements, stating at –:
In my view the circumstances concerning the way in which SK was brought to Australia formed part of the factual basis for Count 1, being relevant to the question of guilt on the slavery count and sentence. They were also relevant to Count 2. As such circumstances might be considered in passing sentence on either count, the sentencing judge should have clearly identified the way in which he proposed to deal with them. I am unable to discern how his Honour dealt with this problem in the present case, but it seems that the immigration matters were, to some extent, taken into account in fixing the sentence on Count 1, as well as that on Count 2. There is no appeal against the sentence on Count 1. The decision in Pearce establishes that concurrent sentences may comprise double punishment or otherwise reflect an error in the sentencing judge’s approach.
If it were clear that the sentencing judge had not taken those circumstances into account in sentencing on Count 1, some additional sentence on Count 2, in recognition of additional criminal misconduct, would have been appropriate. However, as it seems that his Honour may have taken those matters into account in sentencing on Count 1, I can only ensure that there is no double punishment by imposing no sentence in connection with Count 2 (emphasis added).
The approach taken by Penfold J in Nantankhum v The Queen  ACTCA 40 is reflected in the decision of the New South Wales Court of Appeal in Standen v The Queen  NSWCCA 211, where the Court rejected the offender’s argument that the sentencing judge had offended the rule against double punishment. The offender was sentenced for three offences: (1) conspiracy to import a border controlled substance contrary to ss 307.11(1) and 11.5 of the Commonwealth Criminal Code; (2) supply of prohibited drug contrary to s 25(2) of the Drug Misuse and Traff?cking Act 1985 (NSW) and (3) conspiracy to pervert the course of justice contrary to s 42 of the Crimes Act 1914 (Cth). In his remarks on sentence, the sentencing judge had noted that:
The conduct of the prisoner constituting the three offences almost completely overlaps. All of the conduct in the conspiracy to import offence is conduct in the supply offence. There is some additional conduct in the supply offence which is not included in the conspiracy to import offence. All of the conduct in the conspiracy to pervert the course of justice offence, with one negligible exception, is conduct in the supply offence.10
[I]t was common ground between counsel for the Crown and counsel for the prisoner that I should fix an appropriate sentence for each offence, as if it was the only offence for which the prisoner was being sentenced, and I should seek to avoid double punishment by making the sentences wholly or largely concurrent. I was referred to New South Wales Court of Criminal Appeal authorities sanctioning the setting of fully concurrent sentences, where the sentence for each offence comprehends and reflects the criminality in the other offence or offences [emphasis added].11
The Court of Appeal in Standen v The Queen  NSWCCA 211, confirmed the approach of the sentencing judge, and held that Pearce required that an appropriate sentence had to be formulated in respect of each offence, as if it were the only offence for which the offender was being sentenced, before taking into any element of double punishment. The Court stated at –:
What that means is that an appropriate sentence has to be formulated in respect of each offence. It is only when that has occurred that considerations of cumulation, concurrence and totality are taken into account to ensure that the overall sentence is within an appropriate range.
What one does not do (which was implicit in the appellant’s submissions) is to take the sentence for the conspiracy to import offence (simply because that was the sentence first imposed) and to use it as some kind of benchmark against which to measure the sentences imposed for the other offences. Apart from being contrary to the statement of principle in Pearce, such an approach has no regard to the maximum sentence available for each offence.
By way of illustration, if there were no conspiracy to import offence and no sentence for that offence, it could not be said looking at the supply offence on its own that the sentence imposed for it was “manifestly excessive”.
… it is difficult to see how the fact that the appellant was sentenced for the conspiracy to import offence at the same time would provide a basis for why the sentence for the supply offence should be regarded as manifestly excessive. What was required in the sentencing process was an independent analysis of the elements of each offending in order to arrive at an appropriate sentence for each and to then make adjustments for concurrence, cumulation and totality. This is precisely what his Honour did.
However, the New South Wales Court of Appeal has also taken the orthodox Pearce approach adopted by the majority in Nantankhum v The Queen  ACTCA 40. For example, in Martin v The Queen  NSWCCA 124, the Court considered a submission in relation to double punishment, and noted at :
There was some further element of double punishment in that the fact that the relevant recipient of the disseminated material was a paedophile whom the applicant was banned from contacting was considered to be an aggravating feature of the dissemination. A strict approach of the passage in Pearce v R  HCA 57; 194 CLR 610 (“Pearce“) at  might warrant a reduction in the sentence for this offence on this account.12
The principle of double punishment may apply where an individual offender and a corporation that the offender solely owns or has a significant shareholding in are both sentenced for the same offence. When imposing a fine on both the corporation and the individual, a Court should take into account the effect a fine imposed on the corporation will have on the offender’s pecuniary interests.
For example, in Minister for the Environment and Heritage v Greentree (No 3)  FCA 1317, Sackville J stated at –:
[I]t is appropriate to take into account both the fact that Auen is, in effect, a “one-man” company and the relationship between Auen and Mr Greentree. The evidence indicates that Mr Greentree is the sole director and, in effect, the sole shareholder of Auen. (Prime Grain Pty Ltd is a shareholder of Auen, but Mr Greentree holds all shares in Prime Grain Pty Ltd.) …
I infer that Mr Greentree will bear the burden of any diminution of Auen’s assets that will result from the imposition of a pecuniary penalty on the company. It is appropriate to take that fact into account in order to prevent Mr Greentree being punished, in effect, twice over: Australian Competition & Consumer Commission v ABB Transmission & Distribution Ltd (No 2) (2002) 190 ALR 169 at 182 , per Finkelstein J; Re HIH Insurance Ltd (2002) 42 ACSR 80 at –, per Santow J …
See also ACCC v ABB Transmission & Distribution Ltd (No 2)  FCA 559, where Finkelstein J stated at :
The relationship between Mr Wilson and his company is a matter that must be taken into account when assessing his penalty … It will only be with the imposition of very high penalties that this conduct will be stamped out. That said, I will not ignore the fact that Mr Wilson is the principal shareholder in WTC, and the diminution of its assets that will result from the imposition of a pecuniary penalty is a loss that will ultimately be borne by Mr Wilson. If I do not make allowance for this when assessing Mr Wilson’s penalty he will, in effect, be punished twice over.
- Pearce v The Queen  HCA 57, – (McHugh, Hayne and Callinan JJ);  (Gummow J);  (Kirby J). See also K Warner, Sentencing in Tasmania (2nd ed, 2002) [1.412]–[1.416].
- Dickson v The Queen  HCA 30, .
- This formulation of the rule against double punishment has been cited and adopted in the following federal sentencing decisions: Johnson v The Queen  HCA 15, ; R v Hamzy  NSWCCA 539, ; Blay v The Queen  WASCA 248,  (McLure JA),  (Buss JA); Adler v The Queen  NSWCCA 158, ; R v Tang  VSCA 182, ; Beqiri v The Queen  VSCA 39, ; Khan v The Queen  NSWCCA 132, –; Nantahkum v The Queen  ACTCA 40,  (Dowsett J, Higgins CJ agreeing).
- Pearce v The Queen  HCA 57,  (McHugh, Hayne and Callinan JJ),  (Gummow J).
- This approach was applied in the federal sentencing decisions of R v Tang  VSCA 182; Beqiri v The Queen  VSCA 39; Khan v The Queen  NSWCCA 132.
- Pearce v The Queen  HCA 57, – (McHugh, Hayne and Callinan JJ); R v Tang  VSCA 182, ; Nantahkum v The Queen  ACTCA 40,  (Dowsett J, Higgins CJ agreeing). See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 213.
- Pearce v The Queen  HCA 57, – (McHugh, Hayne and Callinan JJ); Nantahkum v The Queen  ACTCA 40,  (Dowsett J, Higgins CJ agreeing). Cf Nantahkum v The Queen  ACTCA 40, – (Penfold J). See generally Stephen Odgers, Sentence (Longueville, 2013) 167.
- See Nantahkum v The Queen  ACTCA 40,  (Dowsett J, Higgins CJ agreeing).
- Nantahkum v The Queen  ACTCA 40,  (Dowsett J, Higgins CJ agreeing).
- R v Standen  NSWSC 1422,  (James J).
- R v Standen  NSWSC 1422,  (James J).
- See also Martin v The Queen  NSWCCA 124,  (Beech-Jones J, Hoeben CJ and Rothman J agreeing).