Concurrent Sentences


The Migration Amendment (Character and General Visa Cancellation) Act 2014 came into force on 11 December 2014 also converted the legal effect of a concurrent sentence to treating concurrent sentences as a cumulative of each concurrent sentence imposed – see s 501 (7A) :

Concurrent sentences

(7A)  For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example:    A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

This means that a person convicted of concurrent sentences of 3 months imprisonment each for say 5 offences would fall foul of the mandatory visa cancellation regime as this would be regarded as a sentence of 15 months, even though the time actually served in prison would be 3 months.  The previous case law interpreted a concurrent sentence as whatever time was actually served in prison in order to determine if the person was sentence to a term of imprisonment of 12 months or more (ie a person who received 5 concurrent 3 month sentences was considered as serving a term of only 3 months).

This overturns the Full Federal Court decision of Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 (22 April 2004) which found that a sentence was determined that a concurrent sentence was looked at by the total amount of time a prisoner actually had to serve, not by treating a concurrent sentence as a cumulative individual sentence.