Obiter

Pearce v The Queen (1998) 194 CLR 610

In Pearce v The Queen,¹ the defendant was indicted on two charges arising from a single incident. The High Court held that there was no double prosecution, as each offence required proof of a different essential element, but the trial judge erred in sentencing.

COURT: High Court of Australia (McHugh, Hayne, Callinan, Kirby JJ).

PARTIES: Pearce (Appellant), The Queen (Respondent).

PROCEDURAL HISTORY: On appeal from the Court of Criminal Appeal (NSW).

• In the Supreme Court of NSW, Pearce pleaded guilty under ss 33 and 110 of the Crimes Act 1900 (NSW) (‘Crimes Act’) on Counts 9 and 10. Trial judge (Ireland J) refused stay, sentencing Pearce to 12 years imprisonment.
• Appeal to the Court of Criminal Appeal (NSW) was dismissed.² The Court held that there was neither double jeopardy nor double punishment.³ Pearce appealed to the High Court under the umbrella term “double jeopardy”.

FACTS:

1. Pearce broke into the victim’s home and beat him. Out of this one incident, Pearce was indicted, inter alia, with two charges: maliciously inflicting grievous bodily harm with intent under s 33 of the Crimes Act;⁴ and, breaking and entering with intent to inflict grievous bodily harm under s 110 of the Crimes Act.⁵
2. Elements in ss 33 and 110 of the Crimes Act overlap but they are not identical.
3. Pearce sought a stay of proceedings, which was refused, arguing oppression, abuse of process, and double jeopardy.
4. Pearce was sentenced to 12 years’ imprisonment (8 years, 4 years).

ISSUES:

1. Did charging both offences subject the appellant to double jeopardy?
2. Whether prosecuting the appellant on the two charges was oppressive or an abuse of process?
3. Whether appellant should have been granted plea in bar or stay in proceedings?
4. Whether the trial judge had erred in sentencing the appellant?

RELEVANT LAW:

The Crimes Act 1900 (NSW)

Section 33 of the Crimes Act relevantly provides:

33 Wounding or grievous bodily harm with intent
Whosoever: maliciously by any means wounds or inflicts grievous bodily harm upon any person, or maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or any other person, shall be liable to penal servitude for 25 years.⁶

Section 110 of the Crimes Act provides:

110 Breaking, entering and assaulting with intent to murder etc
Whosoever breaks and enters any dwelling‑house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to penal servitude for 25 years.⁷

COURT’S REASONING:

The High Court first discussed the principle of double jeopardy, then used the stages in the criminal justice process separately, to deal with issues of double prosecution from issues of double punishment.

Nature of double jeopardy:

Kirby J said at [92]:

Successive protections: In Australia, there is no express constitutional prohibition against double jeopardy. The principle stated in international law has not been incorporated into Australian municipal law. Whilst international law may influence the elaboration of Australian common law where there is doubt or ambiguity, it is not, as such, part of that law.⁸

In joint judgment, McHugh, Hayne and Callinan JJ stated at [9]:

The expression “double jeopardy” is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter” per Blackburn J at 381 in Wemyss v Hopkins (1875) LR 10 QB 378. Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.⁹ 

Their Honours acknowledged that the rule against double jeopardy is also reflected in constitutional guarantees, such as the 5th Amendment to the United States Constitution, which states in part:¹⁰ ‘[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.’¹¹

Double prosecution:

McHugh, Hayne and Callinan JJ of double prosecution at [16]:

It is clear in this case that each of the offences concerned contains an element that the other does not – a specific intent to do grievous bodily harm in s 33 which is absent from s 110 and a breaking and entering in s 110 which is absent from s 33. Neither offence, therefore, is wholly included in the other.¹²

Double punishment:

The rule against double punishment emerges from both legislation and common law. As a general proposition, persons found guilty of two offences must not be punished twice for an act which is common to the two offences.¹³ Their Honours at [40]:

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.¹⁴

Plea in bar — Stay of proceedings:

The appeal considered 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. A plea in bar is the underlying principle of the rule against repeated prosecution for a single offence.¹⁵ McHugh, Hayne and Callinan JJ, at [18]:

[A] plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to convict or acquittal.¹⁶

Their Honours concluded that there was no abuse of process in charging the appellant with both counts 9 and 10, and that the trial judgment was right in concluding that the proceedings on the indictment should not be stayed.¹⁷ Their Honours at [31]:

To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni [36], would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately.¹⁸ [footnotes omitted]

Sentencing:

The trial judge sentenced Pearce to terms of imprisonment wholly concurrent.¹⁹ McHugh, Hayne and Callinan JJ, at [45] (emphasis added):

To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.²⁰

Sentencing is not a process that leads to a single correct answer to be applied with mathematical precision, and it is important for proper principle to be applied throughout the process.²¹

Totality principle:

The principles of sentencing concerning cumulation and concurrency are explained by the High Court, quoting DA Thomas’ exposition applied in Johnson v The Queen (2004) 78 ALJR 616 at [18]:

In Mill [Mill v The Queen (1988) 166 CLR 59 at 63] per Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing … at 56–57 [footnotes omitted]:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.²² [emphasis added]

In summary, where a court sentences an offender for more than one offence (or serving an existing offence), the aggregate or overall sentence must be “just and appropriate” to the totality of the offending behaviour.²³

DECISION:

The High Court allowed the appeal by a majority 4:1 (McHugh, Gummow, Hayne, Callinan JJ, with Kirby J dissenting). The Court did not consider it an abuse of process for the prosecutor to indict the appellant on multiple charges, as each charge contained unique elements, however, the trial judge had erred in sentencing.

The sentence on each of the counts contained a portion which was to punish the appellant for inflicting grievous bodily harm on the victim, prima facie, he was doubly punished for the one act: at [43].²⁴ 

By sentencing Pearce to terms of imprisonment for each of the two offences to serve concurrently was incorrect — the trial judge should have imposed individual sentences for each offence, then consider whether and to what extent those sentences should be served cumulatively or concurrently in line with the “principle of totality”, which requires that the overall sentence must be “just and appropriate” to the totality of the offending conduct, following Mill v The Queen (1988) 166 CLR 59.²⁵

ORDER:

Appeal allowed, setting aside the order of the Court of Criminal Appeal (NSW) dismissing the appellant’s application for leave to appeal against sentence.²⁶

DOUBLE JEOPARDY LEGISLATION (QLD):

In Queensland, the prevention of double jeopardy is set out in the Criminal Code Act 1899 (Qld) under section 16 ‘Person not to be punished twice for same offence’ (the same act or omission which is the essential feature of the double punishment defence),²⁷ and section 17 the ‘Former conviction or acquittal’, cover the special pleas of autrefois.²⁸

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FOOTNOTES:

1. Pearce v The Queen [1998] HCA 57; 194 CLR 610 (‘Pearce‘). ↩︎
2. R v Pearce, unreported, 1 November 1996. ↩︎
3. Pearce (n 1) [2]. ↩︎
4. Crimes Act 1900 (NSW) s 33 (‘Crimes Act‘). ↩︎
5. Ibid s 110 ↩︎
6. Ibid s 33. ↩︎
7. Ibid s 110. ↩︎
8. Pearce (n 1) [92]; Mabo v Queensland [No 2] (1992) 175 CLR 1, 42; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287-288; Newcrest Mining v The Commonwealth (1997) 71 ALJR 1346, 1423–1426; 147 ALR 42, 147–151. ↩︎
9. Pearce (n 1) [9]. ↩︎
10. Ibid [10]. ↩︎
11. United States Constitution amend V; Pearce (n 1) [10]. ↩︎
12. Pearce (n 1) [16]. ↩︎
13. Ierardo v The King (16 August 2024) [2024] VSCA 181, 116. ↩︎
14. Pearce (n 1) [40]. ↩︎
15. Ibid [26]. ↩︎
16. Ibid [18]. ↩︎
17. Ibid [31]-[32]. ↩︎
18. Ibid [31]. ↩︎
19. Ibid [43]. ↩︎
20. Ibid [45]. ↩︎
21. Ibid [46]. ↩︎
22. Johnson v R (2004) 78 ALJR 616; [2004] HCA 15 [18], cited in Environment Protection Authority v Central Coast Council [2024] NSWLEC 141 [97]. ↩︎
23. Judicial Commission of New South Wales, ‘[8-200] The principle of totality’ Sentencing Bench Book (Web Page, 10 May 2025). ↩︎
24. Pearce (n 1) [43]. ↩︎
25. Ibid; Mill v The Queen (1988) 166 CLR 59. ↩︎
26. See Pearce (n 1). ↩︎
27. Andrew Hemming, Criminal Law Guidebook: Queensland and Western Australia (Oxford University Press, 2021) 71; Criminal Code Act 1899 (Qld) s 16. ↩︎
28. Hemming (n 27); Criminal Code Act 1899 (Qld) s 17. ↩︎