List of Subheadings
- 1. Overview
- 2. The Common Law
- 3. The concept of a single transaction
- 4. Interaction with other sentencing principles
The content on this page was last reviewed on 01 October 2014.
Recent cases alert
R v Freedman  NSWCCA 201 — sentencing judge in error by giving no reasons for ordering the sentences to be served wholly concurrently where Commonwealth and state child exploitation offences overlap but not identical.
R v Thomson  NSWCCA 56 — sentencing judge erred in ordering State offences be served wholly concurrently with Commonwealth offences, need to avoid perception that offenders will not punished more severely for committing multiple offences.
R v BAE  NSWCCA 133 — mere temporal relationship between offences does not mean that the criminality of one offence can encompass the criminality of the other offences.
*Guidance from these cases has not yet been incorporated into the commentary
There is no explicit expression of the one transaction rule in the Crimes Act 1914 (Cth). It is applied by courts when sentencing federal offenders. 1 A number of provisions are relevant to the application of the one transaction rule in the federal context.
1.1 Relevant provisions in the Crimes Act 1914
A court is required under the Crimes Act 1914 (Cth) to take into account, where relevant and known to the court, the nature and circumstances of the offence (s 16A(2)(a)) and any other offences that are required or permitted to be taken into account (s 16A(2)(b)). The court must also consider ‘if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character …’ (s 16A(2)(c)). See also below 4. Interaction with other sentencing principles.
2. The Common Law
2.1 Application of the One Transaction Rule
It is a general sentencing principle that when a court imposes sentences for more than one offence arising out of a single transaction, the sentences should be concurrent. 2DA Thomas recognised this principle and called it the ‘one transaction rule’ in his text, Principles of Sentencing (2nd ed, 1979). Thomas described the rule as follows:
The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive. 3
However, Australian courts have cautioned that the ‘rule’ is not a true rule but rather a guideline 4 or limiting principle. 5 In other words it is a ‘rule of thumb only, to the effect that concurrent sentences may well be imposed in respect of multiple offences which occur in a continuing episode of offending’. 6
In Royer v Western Australia  WASCA 139, Owen JA stated at :
First, the ‘rule’ is not a rule at all. It is one of many sentencing principles the object of which is to guide a judicial officer in the proper exercise of the sentencing discretion. 7
The one transaction rule is not mandatory. 8 Courts have held that even where offences may be characterized as arising from one transaction, a judge is not obliged to apply concurrent sentences if he/she finds that to do so would result in an inadequate overall sentence. 9 Therefore the sentencing judge must exercise their discretion in determining whether it is appropriate to apply the rule given the particular facts in each case. 10
In R v White  WASCA 112,  McKechnie J (Wallwork and Murray JJ agreeing) remarked:
There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may in the circumstances attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing Judge’s discretion.
It has been noted by the South Australian Supreme Court in R v Belczacki  SASCFC 4 that courts have traditionally moved further away ‘from the core principle and more widely used the device of partial concurrency so as to reach a total punishment which is the proper punishment’. 11 The Court then cited the following statement of King CJ in R v Blain (1984) 115 LSJS 270, 273:
[G]enerally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the information to a sufficient degree to reach a total punishment which is the proper punishment for the course of conduct …
The approach in NSW has similarly tended towards consideration of the one transaction rule within application of the principle of totality. In the federal sentencing case of DPP (Cth) v Afiouny  NSWCCA 176, the Court stated at –:
[T]he respondent contends that having regard to the period of time over which the offences were committed, the similarity of the offences, the identities of the individuals involved in the offences, and that the offences were essentially a part of a single course of conduct, it was wholly within the discretion of the sentencing Judge to make the sentences concurrent.
There is no general rule which determines whether sentences ought to be imposed concurrently or consecutively. What is necessary is that the sentencing Judge applies the principle of totality of the criminality involved for which the offender is being punished: see Cahyadi v R  NSWCCA 1; (2007) 168 A Crim R 41 at  per Howie J; R v MMK  NSWCCA 272; (2006) 165 A Crim R 481 at  per Spigelman CJ, Whealy and Howie JJ.
3. The concept of a single transaction
The concept of a ‘single transaction’ has been described by Australian courts as:
- one multi-faceted course of criminal conduct, (see Attorney-General v Tichy below)
- a ‘continuing episode’; 12
- part of one transaction or episode of offending; 13
- offences that are of similar character or ordinarily associated and that simply represent facets of one course of conduct; 14
- when a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences; 15 and
- manifestations of the one criminal enterprise, transaction or episode. 16
In Attorney-General v Tichy (1982) 30 SASR 84, 93; 6 A Crim R 117, 126 Wells J recognised the one transaction rule. His description of the principle has been widely cited. 17 Wells J said:
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 (emphasis added).
3.1 Factors indicative of a ‘single transaction’
In Royer v Western Australia  WASCA 139, Owen J described the scope and application of the principle stating at :
At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
3.1.1 Offences committed over a short period of time
Courts have found that offences carried out over a short period of time may be indicative of a ‘single transaction’: see, e.g. R v Belczacki  SASCFC 4, . However, bearing in mind that this is not a strict rule (as discussed above) the fact that offences were committed simultaneously or even close together in time does not mean that they will amount to a single transaction. 18 In Murrell v The Queen (1985) 15 A Crim R 303, Blackburn J said:
In Australia there seems also to be a practice of regarding a succession of crimes each being the commission of the same offence, committed within a short space of time, as appropriate for concurrent sentences. But this practice is not invariable, as Mitchell J pointed out in Robinson v Samuels (1977) 18 SASR 137.
See also Borbil v The State of Western Australia  WASCA 24,  where Steytler P reviewed the operation of the one transaction rule in Western Australia. Steytler P (Wheeler and McLure JA agreeing) said:
Successive crimes, each involving the commission of the same or closely related offences, committed within a short space of time, are sometimes regarded as appropriate for concurrent sentences: Pepper v Western Australia (2005) 30 WAR 447 at 471 per Roberts-Smith JA. Even distinct and unrelated offences have sometimes been treated as if they were related for the purposes of concurrency because they were committed within a short period of time: [Western Australia v Miller (2005) 30 WAR 38, 42; Worthington v Western Australia (2005) 152 A Crim R 585, 591]. However, the fact that offences are committed soon after one another, or even simultaneously, does not necessarily make them part of a single transaction for the purposes of this rule: Shaw (1989) 39 A Crim R 343 at 347 per Brinsden J; Pepper at 471 per Roberts-Smith JA; Hollingsworth [ WASCA 73, ]; Coyne v The Queen, unreported; CCA SCt of WA; Library No 2325; 1 May 1978 (emphasis added).
Courts have cautioned that offences committed over a short period of time may still require cumulative sentences.
For example, in R v Harris  NSWCCA 130, the Court cautioned against making sentences wholly concurrent, even where the offences form a ‘single transaction’, where this would indicate to the community that once an offender has ‘committed one or a few offences, they can continue offending with virtual impunity so far as sentences are concerned’. 19 The Court noted at –
An increase in the number of offences will commonly also demonstrate a need for greater weight to be given to many if not all of the purposes of sentencing and for the effective sentence to be longer than if only one offence had been committed.
Considerations of general and personal deterrence demand that the courts signal to would-be offenders, many of whom in this area are serial offenders, that they can expect punishment for each of their offences.
Nor is it an adequate reason for complete concurrency that a group of offences such as breaking, entering and stealing may be of the same type or committed as part of one criminal spree. As the Court has sought to point out, implementation of a decision to commit another offence will generally involve more loss and damage, and more victims. When it does, there is also a greater entitlement of the community to retribution.
Of course at times there will be good reason for complete concurrency. One is where some offences are little more than incidents of, or incidental to, others… Were an offender charged with break, enter and steal also charged with having custody of the same goods, it would be a rare case where anything other than concurrent sentences for those offences would be appropriate.
In Nguyen v R  NSWCCA 14, Howie J noted that when taking the temporal link between the offences into account, it is the criminality of the offences is important. Howie J stated at :
There is no rule that sentences for offences committed on the same day or in the same criminal enterprise should be served concurrently … the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence … 20
3.1.2 Geographical Link
In R v Belczacki  SASCFC 4, the Court found that the geographical link between the offences was a ‘strong indicator’ that the offences should be afforded some concurrency. Peek J (Blue J agreeing) stated at –:
In the present case, there are a number of strong indicators that the two offences within each pair of offences should be afforded at least partial concurrency as between themselves. They include the following matters.
First, closeness in time and place have always been very important matters when concurrency of sentence is being considered. Here, the two crimes within each pair occur very close in time and at the very same place.
3.1.3 Repetition of behavior towards the same victim
Courts have found that the repetition of the same behaviour towards the same victim is generally indicative of a ‘single transaction’. For example, in his analysis of the English case law, DA Thomas found that:
The concept of a ‘single transaction’ may be held to cover a sequence of offences involving a repetition of the same behaviour towards the same victim … provided the offences are committed within a relatively short space of time. The concept will not normally apply to a series of similar offences involving different victims, even though the offences are of a similar character. 21
However, courts have cautioned that offences involving repetition of behavior towards the victim may still require cumulative sentences.
For example, there may be situations where regarding a series of similar offences against a single victim as a ‘single transaction’ will fail to give adequate weight to the gravity of an offender’s conduct. In Carroll v the Queen  NTCCA 6, the court noted that in the context of sexual offending, the application of the ‘one transaction rule’ is difficult, because of the common presence of numerous sequential acts of a violent, degrading, or humiliating kind, each of which involve an additional violation of the victim. The court noted that to order the sentences to be served wholly concurrently in such a case may fail to ‘do justice’. 22
A comparable approach was applied in the New South Wales case of R v Cutrale  NSWCCA 214. Hidden J (McClellan CJ at CL, Grove AJ agreeing) stated at :
Clearly, in the present case the two offences constituted a single episode of criminality. The crucial question, however, is that posed by Howie J in the passage quoted: can the sentence for one of them comprehend and reflect the criminality of the other? I am satisfied that it cannot. The attempt to choke the victim was not a relatively minor act of violence incidental to the sexual offence. It was a serious and dangerous assault, involving a measure of criminality separate from the sexual intercourse. Some accumulation of sentence was called for.
4. Interaction with other sentencing principles
When sentencing for multiple offences, the application of the one transaction rule frequently overlaps with other general sentencing principles such as the Totality Principle. and the rule against double punishment. These principles are distinct and it is good practice to clearly state which is being applied. 23
The joint judgment in Pearce v The Queen  HCA 57,  sets out a broad approach to sentencing for multiple offences. McHugh, Hayne and Callinan JJ stated:
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation and concurrence, as well, of course, as questions of totality (emphasis added).
The rule against double punishment will generally arise when the court is determining an appropriate sentence for each offence. Then the one transaction rule may assist in determining whether the sentences should be cumulative or concurrent. But the court must review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’ or whether the total sentence is crushing, in application of the totality principle. Hence while the operation of the one transaction rule is discretionary, the operation of the totality principle is mandatory.
In considering the totality of the sentence the court may need to adjust the sentences so that the aggregate is ‘just and appropriate’. For example, concurrent sentences would not be appropriate if it would result in a manifestly inadequate overall sentence. For further commentary on the application of this principle see Totality Principle.
In Dickens v The Queen  WASCA 179, McLure J described the application and interaction of these sentencing principles. McLure J said:
At the second stage [of the sentencing process], the relevant principle is what is variously described as the ‘one transaction’ or ‘continuing episode’ rule. It is a general rule, or what has been described as a good working rule (Ruane v The Queen (1979) 1 A Crim R 284) that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences are to be made concurrent. However, a sentencing Judge must proceed to the third stage and consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: R v White  WASCA 122; R v Faithfull (2004) 142 A Crim R 554. If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially cumulative rather than by adjusting the otherwise appropriate sentence: Mill v The Queen  HCA 70 at 63 … (emphasis added).
See also Royer v Western Australia  WASCA 139,  (Owen JA).
- See, eg, Johnson v R  HCA 15,  (Gleeson CJ); R v Furber  WASCA 233,– (Murray AJA, Buss and Miller JJA agreeing). ↩
- Ruane v The Queen (1979) 1 A Crim R 284, 286 cited in R v White  WASCA 112, . See also Dickens v The Queen  WASCA 179, . ↩
- DA Thomas, Principles of Sentencing (2nd ed, 1979), 53. ↩
- Worthington v Western Australia  WASCA 72,  (Steytler P). ↩
- R v Bagnato  SASCFC 161,  (Peek J). See also R v XX  NSWCCA 115,  (Hall J, Tobias JA and Kirby J agreeing); Eves v Western Australia  WASCA 7,  (Steytler P). ↩
- De Faria v The State of Western Australia  WASCA 116,  (Mazza JA) (emphasis added). ↩
- See further Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 789. Professor Freiberg cautions that the one transaction rule ‘is only one factor to be taken into account in arriving at a proportionate sentence’. ↩
- R v Faithfull  WASCA 39, . ↩
- Royer v Western Australia  WASCA 139,  (Owen JA),  (Miller JA); The State of Western Australia v Amoore  WASCA 65, ; R v Weldon  NSWCCA 475,  (Ipp JA, Hulme and Bell JJ agreeing), R v XX  NSWCCA 115,  (Hall J, Tobias JA and Kirby J agreeing). ↩
- See Worthington v Western Australia  WASCA 72, . ↩
- R v Belczacki  SASCFC 4,  (emphasis in original). For information on partial concurrency in the federal context, see Cumulative and Concurrent Sentences. ↩
- See, eg, R v GWM  NSWCCA 101, . Professor Freiberg describes the principle as the ‘continuing episode’ rule: see Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 789. ↩
- Dickens v The Queen  WASCA 179, . ↩
- Dicker v Ashton (1974) 65 LSJS 150,151 (Wells J) cited with approval in R v Amos (1985) 16 A Crim R 409, 411. See also R v Scanlon (1987) 89 FLR 77, 80; Worthington v Western Australia  WASCA 72, . ↩
- R v Brown (1982) 5 A Crim R 404, 407. ↩
- Pearce v The Queen  HCA 57,  (Kirby J). ↩
- Johnson v The Queen  HCA 15, – (Glesson CJ); Royer v Western Australia  WASCA 139, Coles v Tasmania  TASCCA 9, –; R v Major; ex parte A-G (Qld)  QCA 210, ; Hooton v The Queen  NTCCA 2, ; R v Barnes  SASCFC 79, ; Jomaa v The Queen  VSCA 103,; R v Wells  NSWCCA 279, . ↩
- See further DA Thomas, Principles of Sentencing (2nd ed, 1979) 54. ↩
- R v Harris  NSWCCA 130, . ↩
- See also R v Ciantar  VSCA 313, . See further Haines v R  NSWCCA 238 where the Court rejected the applicants claim that a greater degree of concurrency should have been afforded where the offending occurred over the period of one hour, stating at  ‘the primary focus must necessarily be upon what the applicant did in terms of offending, rather than upon the period of time over which that offending occurred.’ ↩
- DA Thomas, Principles of Sentencing (2nd ed, 1979) 54. Thomas’s comments have been cited with approval in Australia see, eg, Pieri v The Queen  WASCA 357, . ↩
- Carroll v the Queen  NTCCA 6, . See further Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 791. ↩
- Professor Warner has remarked that confusion has arisen and the boundaries between these principles has become blurred because courts have not made it clear exactly which principle they are applying: see K Warner, ‘Sentencing Review 2003-2004: Part II’ (2005) 29(1) Criminal Law Journal 46, 54. But see R v XX  NSWCCA 115, where the one transaction rule and totality were conflated. Hall J stated at: ‘The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence…. If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences…’. This approach has been applied in subsequent NSW Cases, see, eg DPP (Cth) v Afiouny  NSWCCA 176, –; NM v R  NSWCCA 215, ; R v Martin  NSWSC 1189, . ↩