Geale v Tasmania [2009] TASSC 28

Criminal Law - Sentence - Sentencing procedure - Concurrent, cumulative and additional sentences - Date of commencement - Presentence custody period unrelated to offences for which sentenced - Power to backdate.

Sentencing Act 1997 (Tas), s16.

R v Gilbert [1975] 1 WLR 1012; R v Williams [1975] 1 NSWLR 645; R v Colson [1999] SASC 184; (1999) 73 SASR 407; Doyle v R (1998) 105 A Crim R 199; Carr v R [1993] TASSC 14; Gibbs v Arnold [2005] TASSC 120; R v Arts and Briggs [1998] 2 VR 229; R v Renzella [1997] 2 VR 88; Narkle v Hamilton [2008] WASCA 31; R v Skedgwell [1992] 2 Qd R 97; R v Fabre [2008] QCA 386, referred to.

2. Sentence of 5 months' imprisonment to date from 21 October 2008 quashed, and in lieu a sentence of 5 months' imprisonment to date from 23 July 2008 imposed.

1 The appellant was sentenced to a term of imprisonment for a period of five months upon his conviction, following a jury verdict, of the crime of indecent assault on a youth committed on two occasions. The sentence itself was appropriate and its length not the subject of appeal. The issue is whether the learned sentencing judge was permitted in law to backdate the sentence or, in the exercise of discretion, entitled to take into account time served in custody pending the disposition of different crimes.

2 These crimes were said to have occurred on two occasions between 24 December 2006 and 6 February 2007. On 19 February 2007 the appellant was interviewed and charged by complaint 32685/07 and granted police bail. That grant of bail was renewed by a court of petty sessions until committal, and thereafter by this Court until 22 October 2008, the date of the jury verdict. The indictment in this case had been filed on 17 September 2007.

3 On 14 March 2008, the appellant was charged and remanded on complaint 31973/08 alleging a separate occasion of indecent assault. It may be that the remanding magistrate took into account the existence of the earlier, but like, charge comprised in complaint 32685/07, in his discretionary exercise of refusal. It may be that the safety of other young persons was a consideration in that discretion. That matter remains extant. On 1 April 2008, the appellant was separately remanded in custody following the making of complaint 41972/08 alleging "causing the death of another person by negligent driving" and "grievous bodily harm to another person by negligent driving". That matter was pending at the time of the jury verdict.

4 On 23 October 2008, following a hearing, complaint 414972/08 was dismissed. For the purpose of this appeal the period relevant to the "acquittal" argument is but two weeks, ie, the time between the complaints made on 14 March and 1 April respectively. The period relevant to the "Pending trial" question for an unrelated matter is six months and three weeks. The former is, in my opinion, of no consequence in the determination of this appeal. At no time did the appellant seek revocation of the original bail orders granted by the court of petty sessions or this Court.

5 The sentence here challenged was imposed on 6 November 2008 but its operation suspended on 23 December pending the outcome of this appeal. On 6 November the appellant was afforded bail on complaint 31973/08, namely the further allegations of indecent assault. He remains entitled to the benefit of "time served" from 14 March until 22 October 2008 in respect of the pending charge.

6 The learned sentencing judge was not permitted to use a statute as a vehicle for the backdating of the sentence. The Sentencing Act 1997 ("the Act"), s16, provides:

"16 Time held in custody before trial, &c, to be taken into account

(1) A court that is sentencing an offender to a term of imprisonment for an offence -

(a) must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence; and

(b) may order that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed".

7 That provision requires a nexus between time in custody and "the proceedings for, or arising from the offence". The section was amended (Act 17 of 1999) following, but probably not consequent upon, the decision of this Court in R v Doyle [1998] TASSC 157. It would appear that the amendment was thought necessary because magistrates, more dependent on statutory, rather than inherent power, believed they had no such power (Second Reading Speech on the Sentencing Amendment Bill (No 2) 1999). This Court had accepted the provisions of the Criminal Code, s391, as permitting the practice of antedating the sentence. Historically superior courts have power to backdate a sentence or take it into account as a factor in determining the primary sentence as an allowance (Rudman v R [1997] TASSC 16; Doyle (supra), and the cases discussed therein). The Act does not preclude recourse to historic sentencing principles, nor their development. It is a consolidation not a Code (the Act, s26). The amendment provided certainty of method and removed ambiguity (Doyle (supra)). But it retained the historic necessity for a relationship between the date of commencement of sentence and the crime or offence committed. The amendment did not afford a separate general power, but confined its operation (Doyle; Gibbs v Arnold [2005] TASSC 120).

8 The effect of the Act, s16, can only advantage the appellant if this Court reads into the provision the words "and/or" conjoining s16(a) and (b). Such an approach would offend the principles of statutory interpretation (see generally Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, Coco v R [1994] HCA 15; (1994) 179 CLR 427; Statutory Interpretation in Australia (2006) 6 ed, s24). There is nothing in Carr v R [1993] TASSC 14 which supports the approach suggested on behalf of the appellant.

9 In my opinion, grounds 1(b) and (2) of the notice of appeal ought be dismissed.

10 The principles governing totality are not here engaged. They relate to the avoidance of a "crushing" sentence (Postiglione [1997] HCA 26; (1997) 189 CLR 295) and the aggregation of otherwise appropriate penalties imposed for multiple offences (Mill (1988) 166 CLR 59; Ryan [1982] HCA 30; (1982) 149 CLR 1), the effect of existing sentences (Harland-White [1998] TASSC 1) and/or the accumulation of sentences on the individual (Griffiths v R [1989] HCA 39; (1989) 167 CLR 372). Ground 3 of the notice of appeal ought be dismissed.

11 Ground 1(a) relevantly claims error in that the learned sentencing judge, "... refused to ... place any or any sufficient weight on the period which the Appellant had spent in custody in relation to unrelated charges". The words "or in any event" used in ground 4 are subsumed into ground 1(a).

12 The argument derives from differences between jurisdictions, primarily Victoria, Queensland and Western Australia, as to any account to be given to time served for unrelated matters. Most of the decisions within those jurisdictions concern acquittals. This is not a simple acquittal case. The appellant was entitled to seek revocation of his entitlement to bail. Whether he chose not to do so through oversight or tactical advantage is of little import.

13 Questions of bail and sentence are different matters. A court, in considering bail, is required to consider risk of non-appearance and future offending. It is entitled to assess future risk in the light of the seriousness of the allegations and the history of the offender. Here, bail had been refused on two different matters. The first refusal might have been considered in the light of the prior charge and the intended protection, irrespective of any final outcome, of young persons. The second might have taken into account the seriousness of the causing of death through use of a motor vehicle. Subsequent acquittal does not operate as an "unearned credit" for other matters. Here the learned sentencing judge was aware of a pending and serious charge, separate from the matter acquitted and of the differing custodial orders.

14 The appeal is based on a general discretion to take into account past hardship, private vengeance (Sugg [1985] TASSC 25, Richardson [1991] TASSC 5) and historic treatment effected through the criminal justice system. Factors relevant to a specific sentence are not closed in law. Fair evaluation is not confined (Carr (supra)), even if in some circumstances it takes into account the hardship to be suffered by others (Boyle v R (1987) 34 A Crim R; Georgiadis [2001] TASSC 88; Ponsford v Wynwood [1999] TASSC 21).

15 The line of reasoning advocated on behalf of the appellant has its origin in R v Heaney (Vic Unreported, 27 March 1996), restated in R v Renzella [1997] 2 VR 88. In the latter case, concerning the Sentencing Act 1991, s18 (Vic), the court concluded at 98:

"It follows that the law expounded by Brooking, JA in Heaney's case is, unsurprisingly, correct in principle and consistent with s18. Where that section applies, pre-sentence detention is to be reckoned as a period of imprisonment already served under the sentence, and a declaration made to that effect, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders. Pre-sentence detention to which s18 does not apply is to be taken into account in the exercise of the court's discretion. It should ordinarily be taken into account at the first opportunity, as it was in Heaney's case, and not left to the court imposing a later sentence. Cf R v Birnie (Full Court, unreported, 17th November 1994)."

16 I take no issue with that statement as permitting recourse to time served generally. but note the reference to the observation that "It should ordinarily be taken into account at the first opportunity". Renzella was followed in R v Chimirri [2003] VSCA 45 and R v Wade [2005] VSCA 276. The guiding principles ought be absent practical problems (R v Birnie [1994] VSCA 201) and be specific to each case. The question was further considered by the Victorian Court of Appeal in R v Arts and Briggs [1998] 2 VR 229. In his reasons for judgment, Callaway JA said at 264 - 265:

"1 It may be possible to conclude, with a degree of probability approaching certainty, that Briggs would have been on bail and in the same position as Arts had it not been for the charge of murder; but there are likely to be other cases where it is more difficult to decide what would have happened if circumstances had been different. To ask whether custody was doubly warranted in law avoids those difficulties and uncertainties. In that respect the choice is similar to that between the legal and practical criteria for an interlocutory judgment or order. See Cart v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 248.

2 The law should not depart from community standards of fairness unless there are good reasons for doing so. The person in the street would not understand why Briggs should run the risk of being acquitted on the charge of murder and not being given credit for pre-sentence detention if that could lawfully be done, nor would taking such detention into account give a co-offender a justifiable sense of grievance. Arts should understand, for example, that Briggs was in prison and he was not and that Briggs's imprisonment is being taken into account. In substance their sentences remain the same.

There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case here. As Lord Bingham of Cornhill CJ said on behalf of the Divisional Court in R v Governor of Brockhill Prison; ex p Evans [1997] 2 WLR 236 at 252:

'It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served [emphasis added].'

Applying R v Heaney and R v Renzella, I would therefore deduct from the head sentence of six months to be imposed on Briggs a period that takes account of the time during which his detention was doubly warranted. As explained in the authorities, that is done as part of the exercise of the sentencing discretion and not pursuant to s18.

That brings me to the fourth question raised by this case and the second question relating to pre-sentence detention. It was common ground at the hearing of the application for leave to appeal that s18 was inapplicable not only to the period between 3 July and 21 November 1996 but also to the period during which Briggs has been in custody pursuant to the sentence imposed on the latter date. That view is consistent not only with the order made in R v Heaney but also with what Brooking JA said, with the concurrence of the other members of the Court, at 6 and 7. The period of custody that was taken into account, not under s18 but in the exercise of the Court's discretion, was the whole period from her being remanded in custody until she was re-sentenced by the Court of Appeal.

I do not stay to consider whether we are bound by that aspect of the decision in R v Heaney. Although the three cases may well be distinguishable inter se, compare Schwerin v City of Sale [1997] 2 VR 219 at 223-4 and 230-1; R v Dowlan [1998] 1 VR 123 at 138; and National Enterprises Ltd v Racal Communications Ltd [1975] Ch 397 at 406, recently applied in Dobree v Hoffman (1995) 14 WAR 408 at 414. Whatever might have been the choice between a literal and a purposive construction in the absence of authority, I am content to follow the course adopted in R v Heaney, especially as to do otherwise might cause injustice at a later stage to some prisoners in a similar position to Briggs.

17 The general principle of fairness referred to by the Chief Justice ought not be elevated to a mandatory principle governing pre-trial detention (Denman v R (1995) 84 A Crim R 365).

18 The Victorian approach to the import of s18 (Vic), was followed in Queensland in R v Skedgwell [1992] 2 Qd R 97; R v Ainsworth [2000] QCA 163; and R v Fabre [2008] QCA 386. In the last named case, Fraser JA, with whom Keane and Muir JA concurred, stated at 14 - 16:

"[14] Unfortunately his Honour's attention was not drawn to the decisions of this Court in which it has been held that, although it is not mandatory, it is generally desirable to take into account periods of pre-sentence custody which are not declarable under s 159A of the Act at the first opportunity: R v Ainsworth [2000] QCA 163 and R v Voss [2000] QCA 176. In those decisions the Court referred with approval to the approach taken in Victoria under analogous legislation in decisions including R v Renzella [1997] 2 VR 88 and R v Arts & [B]riggs (1997) 93 A Crim R 56. This Court has recently endorsed that general approach: see R v Cannon [2005] QCA 41. I note that the Victorian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VSCA 82, and R v Rosenow [2007] VSCA 265.

[15] That general approach should continue to be followed in Queensland. It has the advantage that if the offender is subsequently acquitted of the other charges an application for re-opening of the sentence will not be necessary: that accords with the strong policy of the law that there be an end to litigation. Further, if credit for the pre-sentence custody has been given at the first opportunity and the offender is subsequently convicted of the other charges which also justified the offender being held in custody, it ordinarily should be simpler for the subsequent sentencing court to impose cumulative terms of imprisonment where that is warranted by the circumstances.

[16] The manner in which the discretion is to be exercised of course depends upon the particular facts of each case, which are infinitely various. In some cases the circumstances may militate against the exercise of the discretion at the first opportunity. But in my respectful opinion, the grounds assigned by the learned sentencing judge for declining to take into account any part of the substantial period of pre-sentence custody in this case were irrelevant. The sentencing judge's reliance upon a view that the applicant would probably be convicted of the other alleged offences, in respect of which his counsel had signalled his intention to plead not guilty, was inconsistent with the presumption of innocence to which the applicant was entitled; and his Honour's reference to the potentially curative effect of an application to re-open the sentence in case that view should prove to be incorrect failed to give effect to the policy of the law that favours an end to litigation**."**

19 In Ainsworth, Davies JA, in rejecting an appeal on the basis of totality, stated: "An allowance should also have been made for the time spent in custody" but later added the qualification of "ordinarily". That statement does not elevate any general allowance to one mandatory.

20 The Court of Appeal (WA) adopted a more stringent approach in Mickelberg v R (unreported 19 September 1984) and Narkle v Hamilton [2008] WASCA 31. In the former, the majority agreed with the disposition by the sentencing judge in the words of Pidgeon J, stating:

"I would, with respect, come to the same view as his Honour that such a matter must be left to the Executive. His Honour was bound to impose an appropriate sentence for the offence with which the appellant had been convicted. Normally he would take into account any time spent in custody in respect of that particular offence. This would normally have the same effect as back-dating the term to the date of first arrest. I do not consider that in imposing an appropriate term his Honour ought to undertake the exercise of examining other periods when a person may have been imprisoned in respect of an offence that it was found he did not ultimately commit. This is a matter that I consider is properly left to the Executive."

21 In the latter case the court, in a joint judgment stated at 43:

"43 In our opinion, the question is, as we have said, one for the exercise of a discretion, which will be influenced by the circumstances of the individual case: see, in this respect, R v McMahon [2006] VSCA 240 [22] (Vincent JA, Neave JA & King AJA agreeing) and Berry [119]. For example, in a case in which an offence is committed after serving time in custody in respect of a charge upon which the offender was subsequently acquitted, there would ordinarily be no reason to take the prior period of custody into account so as to reduce the sentence imposed in respect of the current offence."

22 If there be difference, it be but of degree and the synthesis that of case-specific application. If not, I would prefer the more stringent approach taken in Western Australia.

23 The cases referred to above concerned acquittals. Here there remained an undetermined and serious charge which, if proven, warranted a term of imprisonment. This was not an earliest or "first opportunity" circumstance as referred to in Renzella. If the appellant were to be acquitted on complaint 31973/08, the period spent in custody is a consequence of the principles governing bail. If convicted, he is entitled, as a matter of law, to the accounting for time served. It would have been problematic for the learned sentencing judge to have given a "bank account debt" without good reason. She might have been entitled, in an exercise of discretion, to have done so, but her refusal did not constitute appealable error.

26 On 6 November 2008, the appellant was sentenced to five months' imprisonment to date from 22 October 2008 following his conviction on two counts of indecent assault ("the sentenced crimes"). He appeals against that sentence.

27 The grounds of appeal raise issues in relation to the regard that a sentencer should pay to an offender's presentence time in custody and the meaning to be attributed to the Sentencing Act 1997, s16(1). That subsection is as follows:

"16 Time held in custody before trial, &c., to be taken into account

(1) A court that is sentencing an offender to a term of imprisonment for an offence -

(a) must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence; and

(b) may order that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed."

"1 That the learned sentencing Judge erred in that in exercising her discretion pursuant to s16(1)(b) of the Sentencing Act:

(a) She refused to take into account, or place any or any sufficient weight on the period which the Appellant had spent in custody prior to sentence in relation to unrelated charges.

(b) She refused to take into account the fact that the Appellant had spent time in custody prior to sentence in relation to a charge of which he had been acquitted.

2 That the learned sentencing Judge erred in law by proceeding on the basis that the discretion under s16(1)(b) of the Sentencing Act could only be exercised in relation to time for which the Appellant had been held in custody prior to sentence in relation to proceedings for, or arising from, the offence for which he is being sentenced or, alternatively, where there is a real connection between the circumstances of the period of pre-sentence custody and the offence for which the penalty is to be imposed.

3 That the learned sentencing Judge erred by failing to take into account the period which the Appellant had spent in custody prior to sentence in relation to unrelated charges, whether to give effect to the totality principal or in any event."

29 A ground of appeal that contended that the sentence was manifestly excessive was not pursued.

30 Prior to being sentenced, the appellant spent time in custody in relation to three separate and distinct proceedings including the sentenced crimes. The following chronology relates to his time in custody:

• The sentenced crimes were committed between 24 December 2006 and 6 February 2007 and involved the indecent assault of a 6 year old boy.

• 19 February 2007 - the appellant was charged with the sentenced crimes and granted bail.

• 14 March 2008 - the appellant was remanded in custody on a charge of indecent assault which was in no way connected to the sentenced crimes ("the unrelated charge of indecent assault").

• 1 April 2008 - the appellant was remanded in custody on charges that he caused the death of another person by negligent driving and caused grievous bodily harm to another person by negligent driving ("the unrelated negligent driving charges").

• 22 October 2008 - following a trial, the appellant was convicted of the sentenced crimes and remanded in custody.

• 31 October 2008 - following a trial, the appellant was acquitted of the unrelated negligent driving charges.

• 6 November 2008 - the sentence that is subject to this appeal was imposed on the appellant referable to the sentenced crimes.

31 Accordingly, when the sentence that is the subject of this appeal was imposed:

• the appellant had been held in custody in respect of the unrelated and unresolved charge of indecent assault since 14 March 2008;

• during the bulk of the above period, that is from 1 April 2008 to 31 October 2008, the appellant had been held in custody on the unrelated negligent driving charges of which he was acquitted; and

• the only time that the appellant had spent in custody on the sentenced crimes was the period from 22 October 2008.

32 When sentencing the appellant, the learned sentencing judge said the following about the time the appellant had spent in custody prior to being sentenced:

"In respect of this matter you have been in custody since the jury's verdict on 22 October 2008. However, you have been in custody on other matters since 14 March 2008. You were discharged in the Court of Petty Sessions at Launceston in respect of one of those matters on 31 October 2008. The remaining matter has yet to be dealt with. Your counsel has sought by reference to the Sentencing Act 1997, s16(1), that I backdate any sentence I impose beyond 22 October 2008 to take into account the bulk if not all of the time spent in custody since 14 March.

Section 16(1)(a) requires that a court sentencing an offender to a term of imprisonment for an offence must take into account any time in custody 'in relation to proceedings for, or arising from, that offence'. Section 16(1)(b) then provides that the court may also order that the sentence of imprisonment commence from a date earlier than when it is imposed. It is clear in my view that s16 deals with circumstances where an offender has been in custody prior to sentence in relation to the offence for which he is to be sentenced. In a decision of Evans J in a matter of Gibbs v Arnold [2005] TASSC 120, the same issue was dealt with. Evans J said in that case that while s16(1) did not apply to certain charges being dealt with 'a consideration of fairness which that provision reflects was applicable. Relevantly, that consideration is that when a penalty of actual imprisonment is to be imposed on a person for an offence, account should be taken of any period during which that person was held in custody where there is a real connection between the circumstances of the period in custody and the offence for which the penalty of imprisonment is to be imposed.'

With respect I agree with that proposition. However, in the present case, beyond 22 October 2008, there is no connection at all between the time already spent in custody by you and the offence for which you are being sentenced today. In the circumstances, the sentence I impose will be backdated only to 22 October 2008."

The power to backdate a sentence of imprisonment

33 A contention that is central to grounds 1 and 2 is that the Sentencing Act, s16(1)(b), authorises the backdating of any sentence of imprisonment. When enacted, the Sentencing Act contained no express provision as to backdating of a term of imprisonment, and s16(1) simply provided:

"16 Time held in custody before trial, &c., to be taken into account

(1) A court that is sentencing an offender to a term of imprisonment for an offence must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence."

34 In 1999, s16(1) was amended to the form it now takes, as set out in par27 of these reasons. Part (b) of s16(1) now expressly provides for the backdating of a sentence. Counsel for the appellant, in substance, contends that s16(1)(b) confers on a court imposing a term of imprisonment a general power to backdate the sentence and this power stands alone and is not confined by part (a) of that subsection. Counsel for the State, the Director of Public Prosecutions, contends to the contrary. He in substance submits that s16(1)(b) does not stand alone and is confined in its application by part (a) of the subsection to any period when the offender was held in custody in relation to proceedings for, or arising from, the offence for which the offender is sentenced. On this basis the Court has no general power to backdate a sentence.

35 On my reading of s16(1) as amended, both of the constructions advanced are reasonably open. As to this, I mention two matters. First, the section heading to s16 when enacted was "Time held in custody before trial, &c, to be taken into account" and that heading remains. That this heading has not been amended does not incline me towards favouring the confined construction of s16(1)(b) advanced by the Director of Public Prosecutions. It is rare for a section heading to assist in the interpretation of a section and when it does it is at most a quite minor and unsure guide; see Pearce and Geddes, Statutory Interpretation in Australia, 6 edn, LexisNexis 2006, par4.49. The reason for this is as explained in that text par1.35:

"Headings to sections Each section of an Act is accompanied by a brief note that is intended to indicate its subject matter. In earlier Acts these were in the form of marginal notes. Headings to sections have now replaced marginal notes in all jurisdictions. The drafter of the Act inserts them. They are not debated by the parliament and may not be the subject of formal amendment. The Interpretation Acts in most jurisdictions provide that marginal notes and headings to sections shall not be taken to be part of the Act."

In this jurisdiction the relevant provision is the Acts Interpretation Act 1931, s6(4). The second matter I mention is that I was initially inclined towards the construction advanced by the Director of Public Prosecutions by the use of the word "and" to link parts (a) and (b) of s16(1). Upon reflection, I give little weight to this. Section 16(1) lists what a court sentencing an offender to a term of imprisonment must and may do. Statutory provisions containing lists of powers and authorities or the like commonly link the listed items with an "and" or an "or". Whilst "and" is usually employed conjunctively and "or" is usually employed disjunctively, this is not always the case and these words maybe given a hybrid disjunctive and conjunctive use in lists of this nature. Not infrequently, it is plain that the intended meaning where "or" is used is "or, or as well", and the intended meaning where "and" is used is "and or". As to the former, see Irwin v Meander Valley Council [2008] TASSC 82, par28. Examples of the latter in the Sentencing Act include ss22(2), 30(1), 38(1), 81A(2), (2A) and (6). To illustrate what I am saying, I set out s22(2):

"22 - (2) At a conference under subsection (1) the judge may -

(a) give any directions to either or both of the parties to the application as the judge considers necessary or expedient for a proper consideration of the application; and

(b) determine any question of law or procedure that has arisen or is expected to arise in the hearing; and

(c) give such directions as the judge thinks fit in order to resolve any issue or matter that the judge considers necessary or convenient to resolve before the hearing."

It is plain beyond doubt that in this provision the use of "and" to link parts (a), (b) and (c) is intended to mean "and or". Had s16(1) not been divided into two parts, I would have been inclined to the view that the "and" in question was used strictly as a conjunctive. As it is, the division of s16(1) into two parts linked by the conjunctive "and" leaves me undecided as to whether "and" is used strictly as a conjunctive or as a conjunctive and disjunctive hybrid.

36 A decision on which of the reasonably open constructions of s16(1) should be adopted is assisted by establishing the purpose of the insertion of part (b) into that provision. This common law approach to the interpretation of legislation is given statutory force by the Acts Interpretation Act, s8A. The establishment of the purpose of part (b) is informed by that which preceded it and the circumstances in which it was enacted. In order to address these matters, it is necessary to canvass the history of the power of courts in Tasmania to backdate sentences of imprisonment. I turn to that history.

Backdating sentences of imprisonment in the Supreme Court prior to the Sentencing Act 1997

37 The Criminal Code Act 1924, s391(1) and (2), as enacted, provided as follows. These provisions were not relevantly amended before they were repealed by the Sentencing Act 1997:

"(1) When a person convicted of a crime is under sentence of imprisonment for any other offence, the punishment to be inflicted upon him for such crime may be directed -

I To take effect from the expiration of the imprisonment under such other sentence: or

II To run concurrently with the remainder of such last-mentioned imprisonment.

(2) In all other cases a sentence of imprisonment shall take effect, and shall be calculated from the day upon which it is imposed, unless the judge imposing such sentence shall otherwise order."

38 As s391(2) authorised a judge to "otherwise order" when a sentence of imprisonment was to commence, this Court proceeded on the basis that it had the power to backdate a sentence of imprisonment. Authorities in some other jurisdictions were in conflict as to whether provisions similar to s391(2) empowered a court to backdate a sentence. In R v Gilbert [1975] 1 WLR 1012, the Court of Appeal (England and Wales) held that the words "unless the court otherwise directs" in the Courts Act 1971, s11(1), did not empower a court to order that a sentence should commence on a date earlier than the date on which it was pronounced. A similar decision was reached by the Full Court (Victoria) in R v Judge Frederico; ex parte Attorney-General [1971] VicRp 51; [1971] VR 425 in dealing with an amendment to the Gaols Act 1958 (Vic), s18(1), which provided that a sentence imposed by the Supreme Court or the County Court commenced on the first day of the sitting at which the offender was convicted if "the court does not otherwise order". It was held that this provision did not give the court the power to backdate a sentence. On the other hand, the Court of Criminal Appeal (New South Wales) held in R v Williams [1975] 1 NSWLR 645 that the Crimes Act 1900 (NSW), s441A, which provided that "every sentence passed shall take effect from the time when it is passed unless the court otherwise directs" authorised the backdating (and postdating) of sentences. That court gave decisions to the same effect in R v Clarke (1975) 27 FLR 380 at 383, and R v McHugh (1985) 1 NSWLR 588. Similar conclusions have been reached by the Court of Criminal Appeal (South Australia) in R v Garrett (1978) 18 SASR 309 in relation to the Prisons Act 1936, s24(1), which provided that sentences should date from the first day of the sittings "unless the court orders that the sentence of imprisonment shall date from any other day", and in R v Colson [1999] SASC 184; (1999) 73 SASR 407 in relation to the Criminal Law (Sentencing) Act 1988, s30(1), which provides that "the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced". An authority to the same effect is the Canadian decision of R v Clarke (1967) 1 CCC 47.

39 Prior to the repeal of s391(2) there does not appear to be a decision of this Court that expressly addressed these conflicting authorities on statutory provisions that bear some similarity to it. Nevertheless, it is unquestionable that in this jurisdiction it was accepted that s391(2), empowered the Court to backdate a sentence. In Doyle v R (1998) 105 A Crim R 199, Wright J at 206 said that s391(2) had permitted the court to backdate the commencement of a sentence. Crawford J (as he then was) said at 209 that it appeared to have been assumed that the power to backdate a sentence was given to the court by s391(2). Cox CJ, at 200, said that the power to backdate sentences was no doubt considered justified by the provisions of s391. His Honour also noted that in Rudman v R 16/1997, the Court of Criminal Appeal referred without any disapproval to the fact that the sentencing judge had backdated the sentence subject to appeal, and that in Williams v R, an unreported decision of the Court of Criminal Appeal on 28 August 1996, it was held that the sentencing judge had been in error in holding that he had no power to backdate the sentence. I have examined the file of the Court of Criminal Appeal in relation to Williams. The sentence that was the subject of that appeal was imposed by Wright J pursuant to the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994. That Act, s9(3), provided that when re-sentencing a prisoner serving a sentence of life imprisonment, "the court has the same powers and duties it would have had if the applicant had been convicted by that court of the crime ...". When sentencing Williams, Wright J said that the substituted sentence he was to impose "must commence to run from the date on which the life sentence was imposed". A ground of Williams' appeal against the substituted sentence was that Wright J had erred in law in so holding. The appeal was allowed and the substituted sentence was backdated to give Williams the benefit of pretrial time spent in custody. The notes of the Court's decision record that it found that s9(3) gave the sentencing judge the power to backdate the sentence of imprisonment pursuant to the Code. In Carr v R [1993] TASSC 20, an unreported decision A14/1993, the Court of Criminal Appeal substituted a backdated sentence of two months' imprisonment for a sentence of five months' imprisonment without discussing its power to do as it did. In Doyle, both Cox CJ and Crawford J said it was the common practice of this Court before the Code, s391(2), was repealed to backdate sentences. My review of the Court's sentencing database confirms the frequency of this practice.

Backdating sentences of imprisonment in the court of petty sessions prior to the Sentencing Act 1997

40 In Wills v Webster [1968] Tas SR 195 (NC 21), Chambers J held that the Justices Act 1959, s75(2), prohibited a court of petty sessions from backdating a sentence. Thereafter that section was amended by the Justices Act 1974 so as to relevantly provide:

"75 - (1) Subject to this section, a term of imprisonment imposed on a defendant by justices under this Act takes effect on and from the date of the execution of the warrant of commitment on the defendant.

(2) Justices may order that a term of imprisonment imposed by them under this Act shall take effect on and from a date earlier than that specified in subsection (1)."

This amended form of s75(2) put beyond any doubt the power of a court of petty sessions to backdate a sentence of imprisonment.

The initial effect of the Sentencing Act 1997 on the backdating of sentences of imprisonment by courts in Tasmania.

41 The Sentencing Act 1997 repealed inter alia the Code, s391, and the Justices Act, s75. It consolidates the law in relation to sentencing and applies to the Supreme Court, the Court of Criminal Appeal and a court of petty sessions. The repeal was not accompanied by anything to indicate that an intention of the repeal was to do away with the power of courts in Tasmania to backdate sentences of imprisonment. In the second reading speech on the Bill that introduced the Sentencing Act 1997, the Attorney-General made no reference to any intention to do away with that power. On the contrary, the clause note to clause 14 of the Bill, which became s14 of the Act, asserts that it brings forward the provisions of the Code, s391. That assertion is not correct insofar as the portion of s391(2) that provided authority for the backdating of sentences was not carried forward.

42 The Sentencing Act, ss14, 15 and 16, dealt with the commencement of sentences. When enacted, they relevantly provided:

"14 Commencement of custodial sentence

(1) Subject to sections 15 and 16, a sentence of imprisonment commences on the day on which it is imposed unless the offender is not then in custody.

(2) If the offender is not then in custody, the sentence of imprisonment commences on the day on which the offender is apprehended under a warrant to imprison issued in respect of the sentence.

15 Custodial sentence: whether concurrent or cumulative

(1) Except as provided in this section, an offender who is sentenced to a term of imprisonment must serve the sentence concurrently with any uncompleted sentence of imprisonment that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise.

(2) ...

(3) An offender who is sentenced to a term of imprisonment for a prison offence must serve the sentence cumulatively on any uncompleted sentence of imprisonment that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise because of exceptional circumstances.

16 Time held in custody before trial, &c., to be taken into account

(1) A court that is sentencing an offender to a term of imprisonment for an offence must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence.

(2) Subsection (1) does not apply to -

(b) a sentence of imprisonment of less than one day; or

(c) a sentence of imprisonment that has been wholly suspended or the suspended part of a partly suspended sentence of imprisonment; or

(d) a period of custody spent pending the determination of an appeal during which the offender is treated as if he or she were awaiting trial in accordance with section 415 of the Criminal Code."

43 The above provisions were considered by the Court of Criminal Appeal in Doyle. The majority of the court, Cox CJ and Crawford J, held that the court retained a power to backdate a sentence of imprisonment. Wright J dissented. In their separate judgments, Cox CJ and Crawford J both focused on s14(1) being made subject to ss15 and 16. At 202, Cox CJ observed that unless the legislation contemplated that in some circumstances, at least, time held in custody prior to conviction and sentence may be taken into account by backdating the sentence, there was no reason to make s14(1) subject to s16. He said:

"If the courts are to have no power to antedate a sentence and must take account of pre-sentence custody in some other way, there is no reason to make s14 'subject to section 16'. It is completely otiose."

Crawford J, at 210, reasoned in much the same way as Cox CJ. Having observed that s16(1) requires that a court sentencing an offender take into account time in custody for the offence and that the general rule provided for in s14(1) was expressly made subject to s16, Crawford J said:

"In my opinion the most sensible interpretation of that is that, in the circumstances provided for by s16(1), courts are empowered to backdate sentences of imprisonment so as to take into account periods in custody with respect to the offence prior to the imposition of the sentence for it. If such a power was not given to courts by s16(1), then the general rule of s14(1) would not have been expressed to be subject to s16, for it would be unaffected by it. In such event the two provisions would operate independently of each other."

44 I do not understand the power to backdate a sentence that was identified by Cox CJ and Crawford J to be a general power. As the power they identified flowed from s14 being subject to s16(1), it is reasonable to conclude that the power was confined by the scope of s16(1), that is, to backdating sentences so as to take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, the offence. Crawford J expressly confined the power in this way and I infer that Cox CJ similarly confined the power.

45 Whilst the decision of the majority in Doyle was that the Court had a confined power to backdate a sentence, there was disagreement between Cox CJ and Crawford J as to whether the effect of a backdating could be to sentence an offender to a period of imprisonment commencing from an earlier date when, in reality, the offender was not in fact in custody. Cox CJ expressed the view that this course was appropriate, at 203. Crawford J expressed a contrary view, at 211. I agree with Cox CJ about this and consider that the wording of the subsequent amendment of s16(1) by the insertion of part (b) is consistent with this view.

The relevance to a sentence of time spent in custody prior to the sentencing

46 It is well recognised that presentence time spent in custody by an offender may be relevant to penalty. It may be relevant regardless of whether the time relates solely to the offence for which the offender is being sentenced, or whether there is a power to backdate the sentence. In Carr v R (supra), the Court of Criminal Appeal dealt with an appeal against a sentence of five months' imprisonment imposed on an applicant who, prior to being sentenced, had spent some time in custody on charges in respect of which he had been acquitted, and some time in custody on the charge of escape for which he was sentenced. As to a period of 44 days that the applicant spent in custody solely referable to the charges on which he was acquitted, Green CJ, agreed with by Underwood J (as he then was), said that there was no principle which imposed upon the sentencer an obligation to take into account that period, "although it is possible that in some cases overriding considerations of fairness might make such a period relevant". However, his Honour recognised its relevance in that case insofar as he said that it was clear that the sentencer had taken into account "the fact that the custody from which the applicant escaped was in respect of charges of which he was eventually acquitted and I am not persuaded that it is manifest that he gave that consideration insufficient weight". As to a period of over 6 months that the applicant spent in custody on the charge of escape for which he was sentenced, Green CJ said:

"In most cases a judge who is imposing sentence is obliged to have regard to the fact that the accused has already spent time in custody in respect of the charge for which he is being sentenced although the weight he gives to that consideration and the way in which he takes it into account is a matter of discretion to be exercised in the light of the particular circumstances of each case. In my view this was plainly a case in which the period during which the applicant was in custody for the escape was a matter which ought to have been taken into account but with respect I have concluded from the materials before us that the learned trial judge did not take that period of custody into account when imposing sentence. "

Green CJ and Underwood J allowed the appeal on the basis that the sentencer had not taken into account the period that the applicant had spent in custody referable to the crime of escape for which he was sentenced. The third member of that Court, Wright J, did not agree with the majority in relation to the manner in which the applicant's time in custody, solely referable to the charges of which he had been acquitted, was dealt with. He allowed the appeal on the basis that the applicant should have been notionally credited with this time in custody. He said:

"In many circumstances the fact that an accused person is remanded in custody on a particular charge whilst he is in custody in respect of other alleged offences, would have little, if any, impact upon a sentencing judge's discretion. Here of course, the applicant was acquitted of the other charges in respect of which he was detained in custody. [T]here was therefore no chance that the period in custody could be notionally credited against an otherwise appropriate sentence unless the sentence chosen for that exercise was the sentence imposed in respect of the charge of escape. As the applicant has been deprived of that opportunity by the way in which the learned sentencing judge approached the matter, [I] think it is appropriate that this Court should grant the application and allow the appeal."

The appeal was allowed and all three members of the Court agreed that the sentence of five months' imprisonment should be set aside and in lieu they imposed a sentence of two months' imprisonment, which sentence was backdated two months from the date of their decision. It is to be remembered that the decision in Carr was imposed at a time when there was no statutory requirement similar to that contained in s16(1)(a) that presentence time in custody in relation to proceedings for, or arising from, the offence for which the offender is being sentenced must be taken into account.

47 In Gibbs v Arnold [2005] TASSC 120, I dealt with an analogous situation to that which had been the subject of the decision in Carr, save that it arose after the enactment of s16(1). At par9, I said that whilst s16(1) did not by its terms apply to the sentence that was the subject of the appeal (it was not presentence time referable to the sentenced offence):

"... a consideration of fairness which that provision reflects was applicable. Relevantly, that consideration is that when a penalty of actual imprisonment is to be imposed on a person for an offence, account should be taken of any period during which that person was held in custody where there is a real connection between the circumstances of the period in custody and the offence for which the penalty of imprisonment is to be imposed."

What I did not say then, but in the light of the authorities I have since read should have said, is that this is by no means the only consideration that warrants taking into account unrelated presentence time in custody.

48 In R v Arts and Briggs [1998] 2 VR 261, Harper AJA dealt with presentence custody that was not covered by the Sentencing Act 1991 (Vic), s18(1), a provision that has some similarities with the Sentencing Act 1997 (Tas), s16(1) and which is set out in the following paragraph. At 272 Harper AJA said that the court's power to declare that such a period be reckoned as part of the period of imprisonment that was imposed flowed "from the inherent jurisdiction of the court to do justice in the sentencing process".

49 On one view, the introduction of a statutory requirement that account be taken of presentence time in custody referable to the same offence by the Sentencing Act 1997 s16(1), carries with it an implication that regard should not be had to presentence time in custody referable to an unrelated offence. This view finds some support in what was said in R v Wallis [1949] HCA 30; (1949) 78 CLR 529 at 550, by Dixon J. He said:

"... an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."

A proposition that reflects this view was addressed in R v Renzella [1997] 2 VR 88, a case that dealt with the Sentencing Act 1991 (Vic), s18(1), which was as follows:

"(1) If an offender is sentenced to a term of imprisonment in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason must, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders, be reckoned as a period of imprisonment already served under the sentence."

Counsel contended that Parliament had intended s18(1) to be an exhaustive statement of the extent to which presentence detention might be taken into account, with the result that no regard could be had to time spent in custody in relation to proceedings other than proceedings in relation to the sentence being imposed. In a joint decision, the Court of Appeal (Victoria) rejected this contention and said that s18(1) does not exclude the discretion that the court had to pay regard to time spent in custody in relation to proceedings other than those in respect of which the offender is being sentenced. At 97, the court said as to s18(1):

"It applies only where an offender is sentenced to a term of imprisonment and there is a period of time during which the offender was held in custody in relation to proceedings for that offence or proceedings arising from them and for no other reason. In other cases the section is silent and a court is not only empowered but obliged as a matter of justice to take presentence detention into account."

50 In Narkle v Hamilton [2008] WASCA 31, the Court of Appeal (Western Australia) considered an argument to the effect that the Sentencing Act 1995 (WA), s87, was an exhaustive statement of the circumstances in which credit might be given for presentence time spent in custody. That section is as follows:

"87 Taking time on remand into account

If when an offender is being sentenced to imprisonment for an offence -

(a) he or she has previously spent time in custody in respect of that offence and for no other reason; and

(b) the sentencing court decides that that time should be taken into account,

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."

In a joint decision, the members of the court held, at pars30 and 31, that:

"In our opinion, s87 is not the source of the court's power (which it has long had) to take time spent in custody on remand into account when sentencing an offender. The section sets out the means by which the sentence can be reduced or back-dated where the court has, in the exercise of its non-statutory power, determined, as contemplated by par (b), to take it into account. That the section is not the source of the power to which we have referred is apparent from the provisions of (b) itself. Section 87 contains no express or implied limitation on the court's general power to take into account time spent in custody, including on remand, in the exercise of its sentencing discretion.

Prior to the enactment of the section, backdating of a sentence to take time served on remand into account was not an option that was available to the court. Consequently, the provision was facilitative and was not intended to limit the general discretion that the courts have to take time spent in custody on remand into account when appropriate. That this could not have been the intention is apparent for reasons that were expressed by Steytler P in his dissenting judgment in King (although he there suggested a different construction to that which seems to us be the better construction of s 87). In that case, he said [12] that a construction that treated the section as being exhaustive of the circumstances in which any prior custody can be taken into account would have the result that a prisoner who is remanded in custody on multiple charges could never have the term imposed on him in respect of one or some of those charges taken into account for the purpose of reducing the sentence imposed, even if the remaining charges resulted in an acquittal or were subsequently withdrawn. That could not have been the intention of the legislature."

51 A similar issue was resolved in the same way by the Court of Appeal (Queensland) in R v Skedgwell [1998] QCA 93; [1999] 2 Qd R 97 which related to the Penalties and Sentences Act 1992 (Qld), s161(1) that provided as follows:

"161 Time held in presentence custody to be deducted. (1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders."

52 The court held that that provision did not limit or exclude the general sentencing discretion to consider a period of presentence time in custody unrelated to proceedings for the offence for which the offender was being sentenced. In my view, a similar conclusion should be reached in relation to the impact of the Sentencing Act 1997 (Tas), s16(1)(a), on the sentencing discretion. It is not exhaustive and does not limit or exclude the general sentencing discretion in relation to the consideration of presentence time in custody.

Concern that the record of a sentence include any reduction in the length of the sentence for time spent in custody

53 Where a sentence of imprisonment is backdated, the record of the sentence shows the full length of the term of imprisonment. Where in consequence of a period spent in custody the sentence of an offender either does not include a custodial sentence or the custodial sentence is shortened, the record does not show the full gravity attributed to the offence by the sentencer. In Doyle, when I sentenced the offender, I said that as he had already spent 64 days in prison in relation to his offence, I would not re-impose a term of imprisonment and ordered that he be subject to probation for 12 months. In the course of the State's appeal against that sentence, counsel for the State said that if the sentence imposed had included the time actually served in custody by the offender, it could not have been successfully contended that the sentence was manifestly inadequate. The State's concern was that the fact that the offender had already served 64 days in custody would not be apparent on the face of the court record, nor in any criminal records maintained by the police, so that should the offender re-offend either in this State or elsewhere, a court dealing with him could be left in ignorance of that fact and could form an unrealistic appreciation of the gravity of his offence. See Doyle at 200 and 205. A similar concern was the motive for an appeal dealt with in Director of Public Prosecutions v NLW and JGW [2004] TASSC 93, par11. In that case, the State's concern was that the record of the sentence of an offender, did not record that in sentencing the offender regard, had been paid to the fact that he had been in custody for 15 days.

54 In New South Wales, where the court has the power to backdate a sentence, in R v McHugh (supra), the Court of Criminal Appeal said at 590 - 591 that where presentence time in custody is taken into account, it is desirable to backdate the sentence rather than discount it as:

"The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing, in particular in relation to remission or reduction entitlements; recognition of this does not infringe the principle in R v O'Brien [1984] 2 NSWLR 449 that remissions and reductions are to be disregarded when determining the length of sentences, non-parole and non-probation periods. A judge departing from this practice could be expected to indicate his reason for so doing."

55 In Victoria, where the courts do not have the power to backdate sentences, the integrity of sentencing records is preserved by the device of requiring that if the sentencer is satisfied that presentence time in custody should be taken into account, the sentencer must declare that period of the sentence being imposed to have been served. The declaration must be noted on the court record. See the Sentencing Act 1991 (Vic), s18(4) and s35(4).

Backdating a sentence can avoid problems that may arise from other means of taking into account presentence time in custody

56 When it is necessary to pay regard to a period of presentence time in custody when imposing a sentence, backdating the sentence can avoid a variety of problems that arise from adopting other means of taking account of that time in custody. Problems in relation to parole and remissions are mentioned in the passage from R v McHugh quoted above. In Doyle at 211, Crawford J said:

"Whether a sentence is backdated to take into account pre-trial custody or whether instead the period of pre-trial custody is simply deducted from the proposed term which then commences on the day the sentence is imposed, may have significant consequences. I will give some examples. If a person is sentenced to three years' imprisonment but the sentence is expressed to commence one year earlier, when custody with respect to the offence in fact commenced, then the prisoner will be eligible for parole six months after the imposition of the sentence and eighteen months after the commencement of the imprisonment. If however, the one year period of pre-trial custody is first deducted and the sentence is expressed as one of two years' imprisonment commencing on the day the sentence is passed, the prisoner will not be eligible for parole until twelve months after the imposition of the sentence and two years after the imprisonment commenced. That is because the Corrections Act 1997, s68(1), expresses the non-parole period applicable to a sentence of imprisonment as a period equal to one half of the period of the sentence. It would plainly be unjust if a prisoner who had spent time in custody prior to sentence should have a longer period of parole ineligibility than a prisoner who had spent no such time in custody. Injustices could also arise with respect to remissions for good behaviour under the Corrections Regulations 1998 (Tas), reg23."

This potential problem referable to parole continues notwithstanding changes made to the legislation in relation to parole eligibility. Again in Doyle, Cox CJ said at 202 - 203:

"In some cases, account can be taken by reducing the sentence otherwise appropriate. There may be some argument that account can be taken of presentence custody by partially suspending the otherwise appropriate sentence, although it would not be just, were the sentence to be activated, that the offender might serve the sentence pronounced on top of the period already spent in custody. In most cases, the only realistic alternatives will be to backdate the sentence or to reduce it by something approximating the time already spent in custody. In many cases, this may produce an unsatisfactory result: if a prisoner has spent time in custody greater than the term of imprisonment which the judge considers his crime deserves, the judge would have to discharge him without further penalty at all or with only a token penalty. In these circumstances, a far more satisfactory result and one which the public would more readily comprehend, would be to backdate the sentence allowing the prisoner's immediate release."

The background against which the Sentencing Act, s16 was amended

57 In summary, the background against which the Sentencing Act, s16, was amended by the Sentencing Amendment Act 1999 so as to include an express power for a court to order that a sentence of imprisonment commence on a day earlier than the day on which it was imposed was:

• That prior to the repeal of the Code, s391(2) and the Justices Act, s75(2), courts in Tasmania had a general power to backdate a sentence of imprisonment;

• That the repeal of the above provisions by the Sentencing Act 1997 was not accompanied by anything to indicate that the repeal was intended to do away with the power of courts to backdate sentences;

• That in Doyle it had been held that under the Sentencing Act 1997, the courts retained a power to backdate a sentence of imprisonment to take into account presentence time in custody referable to the offence for which the sentence was imposed;

• That presentence time in custody was relevant to a sentence regardless of whether the custody related to the offence for which the offender was being sentenced, and regardless of whether the court had a power to backdate the sentence;

• That backdating a sentence was the best means available in this jurisdiction for catering for parole and remissions, and the situation where presentence time in custody exceeded the length of the sentence to be imposed; and

• That backdating a sentence preserved the integrity of the sentencing record.

58 Why then was the Sentencing Act, s16, amended by the Sentencing Amendment Act 1999 so as to include an express power to backdate a sentence? In the course of the second reading speech that introduced this amendment, Mr Patmore, the Minister for Justice and Industrial Relations, said that the purpose of the amendment was to amend the Sentencing Act to deal with a problem which had arisen since its commencement, that problem being:

"Section 14(1) of the Sentencing Act provides that a sentence of imprisonment commences on the day on which the imprisonment is imposed. However, this is subject to section 16 which states that a court, when sentencing an offender to a term of imprisonment, must take into account the time the offender has spent in custody on remand.

The magistrates have taken the view that the Act does not enable them to backdate the commencement of sentences and have not done so. The Supreme Court judges take a different view and have been backdating sentences. Instead of backdating sentences, magistrates have been reducing the sentence of imprisonment by the time spent on remand. This, of course, does not in any way prejudice the offender but it does corrupt the sentencing database in the Magistrates Court. This is clearly an unsatisfactory state of affairs and the Act ought to be amended to put beyond doubt that magistrates can backdate sentences under the Act."

59 That the purpose of the amendment was to avoid the corruption of the sentencing database satisfies me that the insertion of part (b) into s16(1) was intended to give courts a general power to backdate sentences of imprisonment, and that the power is not confined by circumstances that satisfy part (a) of that subsection. A confined power to backdate sentences would not preserve the integrity of the sentencing database where the circumstances were outside part (a), but it was, in any event, appropriate to adjust the sentence to take into account presentence time in custody. Similarly, in those circumstances, it could be difficult for a court to cater for parole and remissions, and deal with the problem that arises when presentence time in custody exceeds the length of the sentence to be imposed.

60 Before returning to the specifics of this appeal, I will address one other matter. As already mentioned, there is ample authority to the effect that presentence time in custody that falls outside of s16(1)(a) may, in any event, be taken into account when sentencing. In Victoria, the authorities go further and hold not only that it should be taken into account, but that it should ordinarily be taken into account at the first opportunity. See R v Renzella (supra) at 98 and R v Arts and Briggs (supra) at 263. The Court of Appeal (Queensland) has approved the Victorian approach. In R v Fabre [2008] QCA 386, Fraser JA, agreed with by Keane and Muir JJA, said at par14:

"Unfortunately his Honour's attention was not drawn to the decisions of this Court in which it has been held that, although it is not mandatory, it is generally desirable to take into account periods of pre-sentence custody which are not declarable under s 159A of the Act at the first opportunity: R v Ainsworth [2000] QCA 163 and R v Voss [2000] QCA 176. In those decisions the Court referred with approval to the approach taken in Victoria under analogous legislation in decisions including R v Renzella [1997] 2 VR 88 and R v Arts & [B]riggs (1997) 93 A Crim R 56. This Court has recently endorsed that general approach: see R v Cannon [2005] QCA 41. I note that the Victorian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VSCA 82, and R v Rosenow [2007] VSCA 265.

That general approach should continue to be followed in Queensland."

61 In Narkle v Hamilton (supra), a decision of the Court of Appeal (Western Australia), the members of the court said of taking presentence time in custody into account at par40:

"The court always has a discretion, when considering time spent in custody, whether it will make an allowance for that time and if so, how much of an allowance it will make. Even in a case in which the time was spent in custody in respect of the offence in question and for no other reason, the court does not have to give credit for the whole of the time spent in custody: King [57] (Wheeler J); R v Lambley (1989) 40 A Crim R 430, 440 (Kennedy J); Ratcliffe v The Queen (Unreported, WASCA, Library No 980651, 3 November 1998). The manner in which the discretion is exercised will depend upon the individual circumstances of each case."

62 Whilst the convoluted, if not incomprehensible, statutory provisions that apply to presentence time in custody in England and Wales do not bear repeating, it is of note that in that jurisdiction it is recognised that credit should be given for such time unless to do so would contravene some statutory provision. See R v Gordon [2007] 2 Cr App R 400 par31, and R v Metcalfe [2009] EWCA Crim 374 par13.

63 In summary, I conclude that as to an offender's presentence time in custody:

• as required by s16(1)(a), a court must take into account time in custody in relation to proceedings for, or arising from, the offence for which the sentence is imposed;

• that as to time that is not covered by s16(1)(a), it is generally desirable to take it into account at the first opportunity; and

• The court always has a discretion as to whether it will make an allowance for time in custody and, if so, how much of an allowance it will make.

64 Returning to this appeal, the learned sentencing judge correctly backdated the appellant's sentence in respect of the presentence time that he had spent in custody referable to the two counts of indecent assault for which he was sentenced. The learned sentencing judge declined to take into account the appellant's presentence time in custody in relation to the unrelated charge of indecent assault that remained outstanding and the unrelated negligent driving charges in respect of which he had been acquitted as there was no real connection between those charges and the crimes for which the appellant was sentenced. In my view, this was an error. Whilst such a real connection is a factor that may encourage a sentencer to give an offender the full benefit of presentence time in custody, the absence of that connection does not render that time irrelevant. In the absence of any factors that warrant disregarding presentence time in custody, then ordinarily it should be taken into account. In the circumstances of this case, I can see no reason for not allowing the appellant the benefit of his presentence time in custody. The duration of his sentence, five months' imprisonment, has not been challenged and, in my view, it was entirely appropriate. I would allow the appeal, set aside the sentence that was imposed and re impose a fully backdated sentence of the same duration. On 23 December 2008 the appellant was bailed in respect of the sentence imposed on him pending the outcome of this appeal. I would accordingly backdate the reimposed sentence of five months' imprisonment to run from 23 July 2008.

65 I agree with the reasons for judgment of Evans J and with the orders which he proposes.