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8. Sentencing Multiple Offenders

8.1Introduction

Multiple offenders are those convicted of a number of offences arising from a single incident and those convicted of offences committed on separate occasions over a period of time, but all dealt with at the one trial. There may be a wide variety of crimes of varying degrees of seriousness, or crimes of a similar nature, and the period over which the separate offences took place may be a lengthy one or one of a few hours. The high proportion of cases which involve more than one offence and, in some instances, numerous offences, means that any sentencing guidance must provide for the particular issues raised by multiple offenders. In addition, this sentencing is a frequent cause of public confusion and disquiet about the sentencing process, especially in view of lack of understanding and/or acceptance of the three main approaches, namely concurrent and cumulative sentencing and the application of the totality principle.

As a preface to the discussion of these issues it should be noted that prosecution charging practices are of particular relevance to the sentencing of multiple offenders. When faced with such offenders, the prosecution has a discretion as to whether to charge all the offences, the most serious of the alleged offences (which may or may not still enable the court to take other offences into account in sentencing), or to press a general encompassing charge. Any attempt to constrain sentencing discretion in this area would be particularly vulnerable to subversion through changes in prosecution practices so as to achieve a fitting result in the eye of the prosecution, unless prosecution discretion in such cases were also constrained.

8.2 Cumulative and Concurrent Sentencing

The most obvious approach where an offender is being sentenced for more than one offence is to simply impose one sentence for each offence and total up the sentences (cumulative or consecutive sentencing). The problem with this is that it may encourage prosecutors to bring as many charges as possible even in the case of a single incident, if this will lead to longer sentences than single (encompassing) charges with aggravating features. This would greatly increase the complexity and duration of trials. Another problem is that it could lead to prison sentences for a series of offences which taken as a whole would not merit such a sentence. (The England and Wales Criminal Justice Act 1991 addressed this by allowing the court to aggregate only two of the offences of any case in determining whether only a custodial sentence could be justified. This two offence rule was abolished in 1993 and the courts may now combine any number of offences to justify imprisonment.)

The other main approach is to impose separate sentences for each offence but have the offender serve them concurrently.

In New Zealand statutory guidance on cumulative and concurrent sentencing is limited to the permitted combinations of different kinds of sentences (Criminal Justice Act 1985, ss8A, 13, 73). There is no statutory guidance as to considerations to take into account in deciding whether sentences are to be cumulative or concurrent. Such considerations have emerged from case law.

8.2.1 The single transaction rule

The general rule and starting point is that where each offence is a separate transaction and unrelated to the others in time, subject matter, and modus operandi, a cumulative sentence is preferable. Cumulative sentences have nevertheless been considered appropriate where the offences are virtually simultaneous but involve different types of criminality (Hall 1993-97, D/759-2).

Where the offences arise out of the one course of conduct or activity and are truly connected with each other (part of a single transaction), then the sentences for those offences should normally be concurrent. In determining whether offences are part of a 'single transaction', relevant questions are whether the offences are related by time, subject matter, or pattern so as to constitute the invasion of the same legally protected interest, for instance, they are all property offences (Hall 1993-97, D/753-2). The rationale for concurrent sentences in such cases is that cumulative sentences would in effect be punishing the offender twice for the one wrongdoing.

As Hall notes, "there is no hard and fast rule" which can be applied in every instance. The particular facts of the case may make it difficult to determine the 'one transaction' rule, and the judge's view of the gravity of the conduct, as well as the available maximum sentences, will be relevant (Hall 1993-97, D/754).

The English courts have held that the single transaction rule does not apply when offending is accompanied by firearms offences, assault against law enforcement officers, or subsequent attempts to pervert the course of justice. The rationale is that cumulative sentences are necessary to mark the gravity of this offending and for deterrent purposes (see Ashworth 1992, pp193-4).

One arguable point is whether offences are classified as a single transaction when they are committed against the same victim, even if distant in time. Ashworth argues that for some offences the same victim criterion should override the requirement for proximity in time, for instance with respect to occasional acts of fraud against a single employer over a long period (Ashworth 1992, p194-5). In some cases, the English courts have viewed a series of thefts in the course of a day on different premises (i.e. with separate victims) as a single course of criminal conduct, and sometimes separate sexual offences over time involving the same victim will attract cumulative penalties. Particular instances where this question is relevant are where domestic violence or incest is involved, as this often concerns a lengthy pattern of offending against the same victim(s).

8.3 The Totality Principle

A further consideration is that sometimes cumulative sentences might add up to an extremely long term of imprisonment, which may even exceed the offender's future lifetime or give a longer sentence for a number of burglaries or car conversions (as examples) than would be given in a rape case. The courts have accordingly evolved a 'totality principle'. Under the totality principle the sentence for each offence should be decided on as if in isolation. The judge then considers the total sentence as against the general level of gravity of the individual offences. If the sentence is deemed excessively harsh or disproportionate, the judge achieves a fitting result by making some or all of the sentences concurrent, and/or by progressively reducing the cumulative sentences for each additional offence. The totality principle is also applied when sentencing an offender who is already undergoing a sentence (Hall 1993-97, D/745/2-753/2).

The England and Wales Criminal Justice Act 1991 actually states this principle by providing that nothing in the Act "shall prevent the court ... in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences" (s28(2)(b)).

The application of the totality principle calls for assessment of proportionality between offences, as is the case with just deserts. It is a more difficult assessment than that which applies to single offences, requiring comparisons for instance between the appropriate overall sentence for a number of burglaries as opposed to one rape. To aggregate the sentences for the burglaries so that the total equated to, or exceeded, the normal sentence for rape would result in a loss of proportionality between these two offence types. Hence the totality principle is applied to assess how the total conduct compares with other offences which would attract a similar level of sentence. The principle is that the aggregate sentence is kept below a level which would normally be imposed for much more serious crimes than the ones being sentenced. The totality principle is most often applied to prison sentences and fines, but also has relevance to community-based sentences, where the practical burden of multiple obligations must be recognised.

English academic, David Thomas has argued that the total sentence should be no more than the normal sentence for the most serious of the offences under consideration (see Hall 1993-97, D/746). This principle has with some exceptions generally been viewed with little favour by the New Zealand courts which have preferred an approach adopted by the Court of Appeal in R v Williams (1988) 3 CRNZ 409 (CA) whereby the sentence for the major offence should reflect the total appropriate for the whole course of criminal conduct, and that concurrent sentences for the lesser sentences should then reflect the gravity of each offence (see Hesketh and Young 1994, pp68-9; and Hall 1993-97, D/746-747/2). Other possible principles for the length of the total sentence are that the aggregate sentence should not exceed the maximum sentence for the most serious of the offences, and that the total sentence is fitting to the offender's record and prospects (and that mitigating factors are taken into account).

8.3.1 The totality principle and deterrence

The objection often raised to the totality principle is that it amounts to discounting for bulk offending. This is seen to weaken the deterrent effect of sentencing. The effective sentence for each additional crime progressively decreases, meaning there is no inducement for an offender after offending once to refrain from crimes of the same or different sort at a slightly later date. This assumes that offenders are rational and well-informed calculators of the cost/benefit of committing offences and that the likely sentence is a major determinant of offending behaviour. This is by no means certain, as discussed in section 3.2 above. A related point is that additional offending may lead to increased chances of detection, which may be a deterrent at least as significant, if not more so, than the actual length of sentence.

The totality principle is an example of proportionality and the principle of restraint combining to temper the pursuit of deterrence through heavier sentences. The courts have, nevertheless, recognised a need to balance totality with deterrence and adequate denunciation of the conduct involved. The New Zealand courts would seem to be in sympathy with the South Australian judgment that those who continue to commit serious offences must not be allowed, through concurrent sentencing on the basis of totality, to escape long terms of imprisonment (see Hall, 1993-97, D752).

8.4 Total Sentence Option

An alternative to concurrent or cumulative sentencing is the option of imposing a single sentence upon conviction on more than one count. The Crimes Act 1961, s340(7) allows this, provided that the sentence is justified by any one of the counts. This in effect amounts to sentencing only for that count. New Zealand courts have held the single sentence option to be "undesirable", and present practice involves cumulative or concurrent sentences for each count (see Hall 1993-97, D/744).

The single sentence option is used in Germany, the Netherlands, Austria, Finland, and Sweden. It is more accurately described as a 'total sentence' in that it is intended to reflect the totality of the offending, rather than one particular offence as in the New Zealand provision. In Finland, where there are multiple offences, the courts are directed to pass one single sentence for the main offence and the secondary sentences are treated as aggravating circumstances (T rnudd 1994, p13). A practical advantage of the single sentence option is that it makes it easier to calculate parole and remission.

The 'total sentence' option was recommended by the Canadian Sentencing Commission on the basis that the practice of concurrent and cumulative sentencing was too obscure and confusing. It was also justified on the observation that the courts had shown themselves to be more interested in the appropriateness of the final sentence than in the actual process by which it was calculated. The proposed process was nevertheless not simple. As with the normal application of the totality principle, the court would first decide the appropriate sentence for each offence and place this on the offender's criminal record. These individual sentences would be appealable. The totality principle would then be applied to arrive at the final sentence. A formula was suggested for the upper limits of these 'total sentences', namely the lesser of the sum of the maximum penalties for each offence or the maximum for the most serious offence plus one-third. For practical reasons, normal consecutive and concurrent sentencing would apply where the offender was already serving a sentence (Canadian Sentencing Commission 1987, pp218-27).

This proposal possibly has greater integrity and clarity than the normal operation of the totality principle in that it actually is a sentence to reflect the gravity of all the offences, rather than a series of separate sentences which are so combined and/or so reduced so as to add up to the appropriate totality. A further advantage is the recording of the actual deserved sentence, which at least retains the expressive function of sentencing for each individual offence. This is something which could be required to be recorded even under the normal operations of the totality principle through cumulative and/or concurrent sentencing.

The total sentence concept may not be inappropriate in New Zealand, given that the Court of Appeal has affirmed that it will not interfere with the individual components of a sentence so long as it correctly reflects the overall criminality. In R v Swain (CA158/92, 8 July 1992) [1992] BCL 1501, the Court stated "Precisely how the total sentence was made up in a formal sense is unimportant so long as it accurately reflected the culpability involved" (see Hall 1993-97, D/761). Where sentences are applied concurrently, the Court has stated that each sentence should properly reflect the gravity of the offending. The rationale for this is provided in the Williams case cited above, namely that the offender is not only entitled to know the Court's view of "the seriousness of each offence, but it is also important that records of the sentences imposed give some indication of the gravity of each offence as such records may be relevant to further consideration of the facts of the case by another Court or for the purposes of the Criminal Justice Act 1985" (e.g. parole) (Hall 1993-97, D764-766).

8.5 Summary

1. Sentences for several offences being heard at the one time can be either cumulative or concurrent. New Zealand has virtually no statutory guidance on the application of these options.

2. Concurrent sentences are usually imposed when the offences at issue are deemed to be part of a single transaction, especially if constituting invasion of the same legally protected interest.

3. The totality principle is used by the courts to ensure that aggregate sentences for a number of offences do not become disproportionate to sentences for more serious offences, nor a crushing burden on the offender. The total sentence may be reduced accordingly.

4. Issues for consideration include:

(a) Whether legislative or regulatory guidance should be provided as to when cumulative and concurrent sentencing is appropriate, including guidance on the single transaction rule?

(b) Whether a single total sentence is a more accurate reflection of the sentencing process under the totality principle than the current practice of combinations of concurrent and cumulative sentences?

(c) Whether the individual sentence applied for each offence should be recorded to mark denunciation of that conduct, irrespective of whether that sentence stands, is amended under the totality principle, or replaced by a total sentence?

(d) Whether legislative or regulatory guidance should be provided as to the upper limits of any combined sentence under the totality principle or a single total sentence?