List of subheadings:
The
Common Law
- Pearce v The Queen
- Common elements
- Interaction with other sentencing principles
Crimes Act 1914 (Cth)
Related links:
One
Transaction Rule
Totality Principle
The rule against double punishment addresses an aspect of double jeopardy that arises during the sentencing of offenders.[1] Hence the rule operates 'at the stage of punishment' after a person has been found guilty of an offence. [2]
The rule against double punishment provides that an offender should not be punished twice for the same conduct. In R v Hoar (1981) 148 CLR 32, 38 Gibbs CJ, Mason, Aickin and Brennan JJ stated that it is:
...a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act.
This passage was cited by McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57, [34], see also Gummow J [68].
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Leading Case: Pearce v The Queen
The Pearce case was an appeal to the High Court from the New South Wales Court of Appeal. The appellant had been sentenced to identical terms of imprisonment for two offences (arising out of a single incident) under the Crimes Act 1900 (NSW).[3] The sentences were set to be served concurrently and the infliction of grievous bodily harm was an element in both offences for which the appellant was sentenced. In the High Court, McHugh, Hayne and Callinan JJ (Gummow J agreeing) held that while the sentences imposed on the offender were not disproportionate to the total criminality involved, they infringed the rule against double punishment because in imposing identical sentences for each offence the offender was punished twice for the same act (the infliction of GBH). [4]
On the operation of the rule against double punishment at common law, McHugh, Hayne and Callinan JJ stated in Pearce:
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. [5]
McHugh, Hayne and Callinan JJ's formulation of the rule against double punishment has been cited and adopted in the federal sphere: see, eg, Johnson v The Queen [2004] HCA 15, [29-35]; RV Hamzy [2001] NSWCCA 539, [103]; Blay v The Queen [2006] WASCA 248, [7] (McLure JA) and [56] (Buss JA); Alder v Regina [2006] NSWCCA 158, [47].
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Identifying the Common elements
The joint judgment in Pearce cautioned that the identification of a common element between two or more offences is not always straightforward. McHugh, Hayne and Callinan JJ said:
It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110 [Crimes Act 1900 (NSW)]. The identification of a single act as common to two offences may not always be as straightforward. 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 (emphasis added). [6]
The rule against double punishment does not prohibit a sentence being imposed for each offence where there are common elements but it will often be important for the court to identify the discrete nature of each offence. On the operation of the rule against double punishment Professor Warner states:
Where each offence contains an element that the other does not, a sentence can be imposed for each provided there is not double punishment for the overlapping elements. In some cases it will be more appropriate to not record a conviction, such as where the entry of a conviction may itself amount to double punishment or where recording a conviction attracts a mandatory penalty. [7]
In Mohammed Yusup v The Queen [2005] NTCCA 19 the Court of Criminal Appeal of the Northern Territory considered the operation of the rule where there was a significant overlap of elements between two offences . Riley J (Mildren and Southwood JJ agreeing), after citing Pearce v The Queen and Johnson v The Queen as authority, said:
A consideration of the elements of s100A and s101A [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. [8]
See also, eg, Blay v The Queen [2006] WASC 248, [65-10].
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Interaction with other sentencing Principles
The operation of the rule against double punishment may overlap with the operation of the totality principle and the single transaction rule. However, while the scope of the three rules may overlap they are separate sentencing principles each of which addresses a distinct sentencing issue. Professor Warner states,
Confusion seems to have arisen in part because, in applying Pearce, courts have not made it clear exactly which principle they are applying. Pearce may well "currently represent the law in relation to any sentencing exercise that involves more than one count", but the boundaries between double punishment, the one transaction rule and totality require clarification. [9]
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The rule against double punishment is given statutory effect in s 4C of the Crimes Act 1914 (Cth) [10] (extracted below).
Section 4C supplements the operation of the rule against double punishment at common law. Similar legislative provisions have been enacted in the States and Territories.[11] Early legislative provisions focused, more broadly, on double punishment for the same offence. Now the federal provision deals with double punishment for the same act or omission.[12]
Section 4C(1) provides where an act or omission constitutes an offence under two or more federal laws (s 4C(1)(a)) or a federal law and a common law (s 4C(1)(b)) a court is prohibited from punishing an offender twice for the same act or omission.
Section 4C(2) deals with acts or omissions which constitute an offence under both a federal law and a law of a State or Territory. The provision operates where an offender has been punished for that offence in a State or Territory and it then prohibits a court from punishing the offender for the offence under a federal law.
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(1) Where an act or omission constitutes an offence: (a) under 2 or more laws of
the Commonwealth; or 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 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. |
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Last Updated: 8 February 2008
[1] Pearce v The Queen [1998] HCA 57, [13 -15] (McHugh, Hayne and Callinan JJ) [68] (Gummow J) [120] (Kirby J). See also K Warner, Sentencing in Tasmania (2nd ed, 2002) 17-19.
[2] See Pearce v The Queen [1998] HCA 57, [15] where McHugh, Hayne and Callinan JJ state 'At the stage of prosecution, it is necessary to consider first whether the appellant was entitled to enter a plea in bar to one or more counts on the indictment, and secondly whether he was entitled to a stay of proceedings on one or more counts. At the stage of punishment, it is necessary to consider whether he was entitled to be sentenced in some way differently from the sentences imposed upon him.'
[3] Crimes Act 1900 (NSW) ss 33 and 110.
[4] Pearce v The Queen [1998] HCA 57, [49] (McHugh, Hayne and Callinan JJ) and [69] (Gummow J).
[5] Pearce v The Queen [1998] HCA 57, [40].
[6] Pearce v The Queen [1998] HCA 57, [42].
[7] K Warner, Sentencing in Tasmania (2nd ed, 2002) 19.
[8] Mohammed Yusup v The Queen [2005] NTCCA 19, [12].
[9] K Warner, 'Sentencing review 2003-2004: Part II' (2005) 29 Crim LJ 46, 54. For case commentary on Johnson v The Queen (2004) 205 ALR 346 and a detailed review of the principles involved in sentencing an offender for multiple offences see K Warner, 'Sentencing review 2003-2004: Part II' (2005) 29 Crim LJ 46, 51-54.
[10] The provisions in this section were formally s 30 of the Acts Interpretation Act 1901 (Cth) and s 11 of the Crimes Act 1914 (Cth): see generally Winneke, Ex parte Gallagher (1982) 152 CLR 221, 224 (Mason J).
[11] See, eg, Crimes (Sentencing Procedure) Act 1999 (NSW) s 20; Acts Interpretation Act 1954 (Qld) s 45; Criminal Code Act 1924 (Tas) s 11; Interpretation of Legislation Act 1984 (Vic) s 51.
[12] Pearce v The Queen [1998] HCA 57, [38] (McHugh, Hayne and Callinan JJ).
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