That statement was adopted by Meagher JA, with whom Hidden J agreed, in R v Brett John Kelly [2000] NSWCCA 557.
13 The other line of authority is exemplified by the decision in R v Kaiva, NSWCCA, unreported, 9 November 1998. There Kirby J, with whom I agreed, said:
"Secondly, his Honour expressly took into account, as a circumstance of aggravation, the fact that the offence was committed whilst the applicant was on parole. That was entirely appropriate. The sentence which he then passed reflected that circumstance. Having taken that matter into account, to then not backdate the sentence gives the appearance of penalising the prisoner for a second time, in respect of the same matter. That, it seems to me, is also undesirable." (emphasis added)
14 It is apposite to emphasise here that Kirby J did not hold that double punishment actually occurred; merely that the process gave that appearance. On the same day, the same bench took an identical approach in R v David Webb, NSWCCA, unreported, 9 November 1998.
15 However, in Regina v Shane John Ravet [2001] NSWCCA 535, Stein JA expressly declined to accept that Kaiva and Webb established any principle. His Honour regarded them, rather, as examples demonstrating that backdating to the date of revocation of parole may be within a judge's sentencing discretion in appropriate circumstances.
16 In R v Kitchener [2003] NSWCCA 134 the court was constituted by Wood CJ at CL (as he then was) and myself.
17 There, an offender whose parole had been revoked was sentenced in respect of subsequent offences in such a fashion as to allow credit for only six days of a thirteen month balance of term. The reasons for the parole revocation were not confined to the subsequent offending, but included other specified breaches of parole conditions.
18 I considered, and Wood CJ at CL agreed, that, in some circumstances, a court sentencing in respect of subsequent offences would find it necessary to attempt the hypothetical exercise of assessing what the offender's parole position would or might have been had parole been revoked not as a result (solely) of the subsequent offending, but solely or partly as a result of his other breaches of parole conditions.
19 The Crown drew attention to the decision of this Court in R v SAE NSWCCA, unreported, 3 April 1997, per Gleeson CJ, with whom Mason P and Dowd J agreed. Gleeson CJ said:
"The usual principle is that allowance is made for pre-sentence custody but only in circumstances where such pre-sentence custody is exclusively referable to the crime for which the offender has been sentenced."
20 I do not accept that his Honour intended to lay down as an absolute rule that, where pre-sentence custody is referable partly to the crime for which an offender is being sentenced, and partly to some other circumstance, such as revocation of parole, that pre-sentence custody may never be taken into account. The judgment was delivered ex-tempore and the passage cited was not essential to this decision.
21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced.
22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule.
23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.
24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.
25 Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. That allowed her a period of six months. She could have specified the current sentences to commence at any time during that period.
26 The second question which arises is whether is has been shown that the exercise of her discretion miscarried. I am unable to see that that has been established. I would, accordingly, grant leave to appeal but dismiss the appeal.
27 HALL J: I agree with Simpson J.