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Pearce v The Queen (1998) 194 CLR 610

Updated: Jul 20, 2021

Criminal Law, Sentencing, Multiple Offences

Facts; Douglas Pearce was indicted upon to charges that arose out of a single episode: first having maliciously inflicting grievous bodily the harm on a person with intent to inflict such harm, and second having broken and entered a dwelling-house whereupon he inflicted grievous bodily the harm on a person. Pair sort of stay of proceedings on the ground the prosecuting two separate charges was oppressive or an abuse of process, because (so he argued) doing so placed him in double jeopardy. This was not granted, and the trial judge sentenced him for the two offences to concurrent term of 11 years imprisonment. Pearce appealed, ultimately to the High Court, on grounds loosely falling under the label of double jeopardy.

Application; To the extent to which to offences of which in offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common… To punishment offender twice if conduct fails in that area of overlap would be to punish offenders according to the accidents of legislative history rather than according to there just deserts… To an offender the only relevant question maybe how long and that may suggest that the sentencing judge or appellate court should have regard only to the total affective sentence that is to be or has been imposed on the offender.

Such an approach is likely to mask era. A judge sentencing and offender for more than one offence must fix an appropriate sentence for each offence and then consider questions accumulation or concurrence, as well, of course, as questions of totality. (McHugh, Hayne and Callinan JJ at 623-4).

Double jeopardy is an expression that is employed in the relation to several different stages of the criminal justice process: prosecution conviction and punishment (Pearce at 614).

Holding; A 4:1 majority of the High Court allowed the appeal. Although the majority did not consider it an abuse of process that the prosecutor had indicted peers on multiple charges, given that each charge contained unique elements, it did find that the trial judge had a third on a sentence, as his honour had sentence peers to identical terms of imprisonment for each of the two offences, and then made those two sentences wholly concurrent. This meant that, insofar as both offences contained a portion which was to punish the accused for inflicting grievous bodily harm, he was being doubly punished for the one act. Rather, the judge should have given individual sentences for each of the two offences, and then considered whether and to what extent those sentences should be served cumulatively or concurrently, in accordance with the principle of totality (which requires that the overall sentence must be ‘just and appropriate’ to the totality of the offending behaviour: Mill v The Queen (1988) 166 CLR 59 [#47].

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