Citation : NARKLE -v- HAMILTON [2007] WASC 236

Criminal law - Sentencing - Section 87 of Sentencing Act 1995 (WA) - Time spent in custody on remand - When not solely in respect of the subject offence - Whether s 87 exhaustive - General discretion of the court

Criminal Law Amendment (Simple Offences) Act 2004 (WA), s 35(2)

Sentencing Act 1991 (Vic), s 18(1)

Sentencing Act 1995 (WA), s 87

Sentencing Legislation (Amendment and Repeal) Act 2003 (WA), sch 1

1 JUDGMENT OF THE COURT: This appeal concerns the application and effect of s 87 of the Sentencing Act 1995 (WA).

2 On 18 February 2005 the appellant indecently assaulted the complainant, a 46-year-old woman. They had by then known each other for about six months. At about 9 pm on the evening of 18 February the complainant went to a delicatessen in Armadale. The appellant approached her outside the front of the delicatessen and asked her if she wanted to have sex with him. She declined. The complainant went into the delicatessen. The appellant followed her. He continually tried to put his arm around her shoulders and waist. Each time, she moved away from him. The appellant repeatedly asked the complainant to return to his house. She declined to do so. The appellant then squeezed her firmly on the buttocks. She moved away from him. Then, he ran his right hand down the front of her left hip and touched her to the side of her groin area. The complainant pushed his hand away and told him not to touch her in that way.

3 On 18 May 2005 the appellant was charged with other, more serious, sexual offences (serious offences). These were said to have been committed by him in respect of a different complainant on 12 May 2005. On 18 May 2005 he was remanded in custody in respect of the serious offences.

4 On 24 May 2005, the appellant was charged with the indecent assault. He was then still in custody. He remained in custody until 10 November 2006, on which date he was acquitted of the serious offences. On that day he was granted bail in respect of the charge of indecent assault. On 27 July 2007 he pleaded guilty to the indecent assault.

5 At the sentencing hearing on 24 August 2007, the prosecutor characterised the offence as 'a relatively minor indecent assault'. So, too, did defence counsel, who asked the magistrate to take into account the 443 days that the appellant had spent in custody between 24 May 2005 and 10 November 2006. There was some debate between counsel for the appellant and the magistrate regarding the question whether it would be 'unjust' not to take this period into account. In the course of this debate, the magistrate said:

But it can't be said [that] because he was acquitted he spent time in gaol unjustly. In fact, he spent time in gaol pursuant to the justice system. So that's not unjustly time in gaol. He was acquitted. It's not unjust. It's not unjust; it's the way it is.

6 After submissions had been heard, the proceedings were adjourned until 21 September 2007. In his sentencing remarks made on that day, the magistrate did not refer to the time spent by the appellant in custody. He said that the appellant (who had an extensive history of sexual offending) was a sexual predator who had made sexual offending a 'way of life'. He said that society was entitled to some form of protection from him. Notwithstanding that the prosecutor had suggested that it was unnecessary to impose a sentence of imprisonment the magistrate considered that the appropriate penalty to be imposed in the circumstances was one of 12 months' imprisonment, to be served immediately. He reduced that term by 4 months 'to reflect the plea of guilty and the transitional provisions of the Sentencing Act'. The 'transitional provisions' to which he referred are those contained within sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

7 The appellant appealed to a single judge of the Supreme Court (Narkle v Hamilton [2007] WASC 236). He raised two grounds of appeal. The first was that the magistrate had erred in failing to consider relevant and lesser alternatives than a sentence of immediate imprisonment. The submissions advanced in support of that ground seem to have addressed a rather different point. The primary judge described them in the following way [14]:

First, it is submitted that the magistrate ought to have exercised discretion under the Sentencing Act 1995 (WA) s 87(b) [to take the period of imprisonment already served by the appellant into account] and was in error not to do so. Alternatively, if s 87(b) did not apply, the magistrate ought to have taken the days spent in custody, on the unrelated matter, into account as part of the antecedents of the appellant and reduced the sentence accordingly.

8 Having referred briefly to some of the cases, the primary judge said [18] - [19]:

The matter must be approached in a practical way. The substantial reason for the appellant being in custody was not because he was charged with this offence but because of the other far more serious offence[s]. This was confirmed by the fact that when the other matter was discontinued [sic] the appellant was granted bail in respect of this assault.

I hold that the Sentencing Act s 87 has no bearing on the case.

9 The primary judge then turned to the question whether the time spent in custody in respect of the serious offences could be taken into account upon some other basis. Having referred to some of the relevant cases, he said [26] that the view to which he had inclined was that the time spent in custody on another matter was 'part of the general antecedents of an offender to be taken into account and given such weight in the sentencing process as is appropriate'.

The pre-sentence report that the magistrate obtained demonstrates eloquently the lack of insight or prospect of rehabilitation for the appellant, whether with or without a sense of grievance. While the appellant has been deprived of those days of freedom, there is little to show that he has gained from the experience. I acknowledge that he may feel a sense of grievance but as the magistrate pointed out, it is neither just nor unjust that he spent such time in custody. It is a concomitant of the criminal justice system, and in particular the provisions of the Bail Act 1982 (WA) that innocent persons will be remanded in custody from time to time.

I am not persuaded that the magistrate erred in the exercise of his discretion by ... failing to take into account the time spent in custody.

11 Finally, after mentioning that the dominant sentencing considerations were personal deterrence and protection of the community, and that the appellant had consistently offended all of his adult life and had a 'bleak' outlook in the pre-sentence report, the primary judge concluded that the magistrate made no error in deciding that a term of imprisonment to be served immediately was the only appropriate sentence.

12 The second ground of appeal was that the magistrate's discretion miscarried because he failed to afford the appellant a discount for his plea of guilty. The primary judge upheld this ground [37]. He reduced the sentence imposed by the magistrate to one of 6 months and 2 weeks' imprisonment.

13 The appellant has appealed against the judgment of the primary judge on one ground. After amendment, it reads as follows:

The learned judge erred when he determined that s 87 of the Sentencing Act 1995 had no bearing on the appellant's case such that the sentence imposed was manifestly excessive, alternatively he erred in the exercise of his inherent discretion in failing to take into account the prior time spent in custody.

14 Both parties requested that the appeal be heard on the papers only. However, the court invited, and received, oral submissions in respect of a number of issues arising in the appeal. Distilled to their essence, the appellant's initial written submissions in support of his single ground come down to the proposition that the primary judge should have found that the magistrate should have taken the time served in respect of the serious offences into account under s 87(b) of the Sentencing Act. It is only for that reason that the sentence is said to be manifestly excessive. In his subsequent submissions, counsel for the appellant contended that, even if s 87 of the Sentencing Act is inapplicable, the primary judge erred in giving no weight to the time spent in custody. The respondent answers this by contending that, because the time spent in custody was not spent solely or even substantially in respect of the indecent assault, but was spent on remand, it could not be taken into account by the magistrate as s 87 precluded him from doing so. It also contends that, if the primary judge had a discretion to take the time into account, he was right to give it no weight in circumstances in which the appellant appears to be incapable of being rehabilitated.

15 Prior to the enactment of s 87 of the Sentencing Act, there was some debate concerning the question whether time spent in custody in respect of an offence of which the alleged offender was acquitted could be taken into account when later sentencing the same person for an unrelated offence. The issue arose in Mickelberg v The Queen (Unreported, WASCA, Library No 5509, 19 September 1984). In that case, the appellant had been convicted and sentenced in respect of offence A. He appealed successfully and was acquitted of the offence. However, he had, by then, served some 8 1/2 months of the term of imprisonment that had been imposed upon him in respect of the offence. The appellant was later convicted of offence B. That offence was committed before the appellant was convicted of offence A. On an appeal against the sentence of imprisonment imposed upon him in respect of offence B, the appellant argued, amongst other things, that that term should have been reduced by the term of 8 1/2 months' imprisonment served by him in respect of offence A. The trial judge had made no such allowance. He regarded the issue of what had happened concerning offence A as one that should more properly be left to the Executive.

16 The majority agreed with the trial judge. Pidgeon J said:

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.

17 The third judge, Kennedy J, was in dissent on this point. He said:

It may readily be acknowledged that a person who, following conviction, has commenced to serve a sentence of imprisonment, but whose conviction is subsequently quashed, has no entitlement to compensation. When, however, such a person is subsequently sentenced to imprisonment for an offence for which he is rightly convicted, and where that offence was committed prior to his commencing to serve the sentence imposed in respect of the quashed conviction, it appears to me to be quite wrong to fail to take that period spent in custody into account, just as other factors personal to the accused must be taken into account. Furthermore, this Court has recently had regard to the length of the sentence already being served in relation to ... [offence A] by ... [a co-offender] and has on that account reduced his sentence in respect of ... [offence B]. To ignore the earlier sentence can only give rise to a sense of injustice, a sense of unfairness and of unfair treatment. That sense of injustice and unfairness can, in my view, be avoided equally as readily by a sentencing judge as by the Executive, and, indeed, in my view, it is more properly the function of the sentencing judge to ensure that the sentence which he imposes is fair.

Kennedy J would have allowed the appeal by reducing the sentence imposed in respect of offence B by the period of imprisonment previously served in respect of offence A.

18 Section 87 appeared in the Sentencing Act in its present form when that Act was first enacted, in 1995. It reads as follows:

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.

19 The section appears to have been considered for the first time in R v Jones (Unreported, WASC, Library No 970210, 7 May 1997). In that case Scott J concluded that the words 'and for no other reason' in s 87 should be read as if the word 'substantial' appeared before the word 'reason'.

20 The section was considered by the Court of Criminal Appeal in Palmer v The Queen [1999] WASCA 253. In that case the appellant was charged, on 14 June 1996, with offences A, allegedly committed between 10 January and 14 June 1996. On 28 November 1997 he was convicted on both charges and sentenced to a total term of 10 years' imprisonment. He lodged a successful appeal and, on 18 June 1998, his convictions were quashed. He was released from custody after having served just under 7 months of the sentences imposed. On 9 April 1999 the appellant was convicted of offences B. These offences were committed by him on 3 September 1997. He was then on bail in respect of the charges arising from the alleged commission of offences A. Between 18 June 1998 (when he was released from prison after the convictions in respect of offences A had been quashed) and 9 April 1999 (when he was convicted of offences B) he had been released on bail. He was sentenced to a total term of 2 years' imprisonment in respect of offences B.

21 The appellant appealed against the sentences imposed in respect of offences B. Among his contentions on the appeal was one to the effect that the sentencing judge should have taken into account the term of imprisonment that had been served by the appellant in respect of offences A. The majority upheld the appeal. Malcolm CJ (with whom Wallwork J agreed) said [23] (after referring [21] to the provisions of s 87) that the combination of the prior imprisonment and its effect on the applicant's rehabilitation, taken together with other factors, justified a discount to the sentence imposed. He said that the sentence of imprisonment of 2 years did not sufficiently reflect the impact and consequences of the matters to which he had referred (including the prior imprisonment), 'which all formed part of the applicant's antecedents as he came to be sentenced for these offences'.

22 Murray J took a different approach. He said [39]:

In principle, it seems to me, it is only when the time in custody is solely related to the criminal process in relation to the offence or offences for which the prisoner is to be sentenced that it may be taken into account as a reason for reducing the sentence imposed below that which would otherwise be proportionate to the offence or offences committed, preferably by backdating the sentence. To my mind the logic of that reasoning is inescapable when one considers that in a case such as this, no 'credit' would be available if the applicant had not committed the offences for which he was sentenced on 9 April.

However, Murray J considered that, in a case in which rehabilitative measures taken by the prisoner while in custody had had a beneficial effect, this might justify a conclusion that there was a lesser need that the sentence to be imposed operate as a personal deterrent than might otherwise have been the case, leading to some reduction in the sentence imposed. He agreed with comments to that effect made by Zeeman J (with whom Wright & Slicer JJ agreed) in R v Denman (1995) 84 A Crim R 365, 368.

23 The issue was again touched upon by Murray J in Smith v The Queen [2000] WASCA 243. He said [15]:

As to the process of recognising the time spent in custody on remand, the Sentencing Act, s 87 provides that that may be done where the sentencing Court considers it to be appropriate, but it is clear from the section that there is no compulsion to reduce a sentence on that account, particularly where, as in this case, the applicant's own conduct by reason of the commission of further offences while on bail may be truly regarded as being responsible for his remaining in custody thereafter: see Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 per Murray J, with whom Kennedy and Anderson JJ agreed, at 5, and the cases discussed therein.

The other two judges in Smith, Kennedy ACJ and Parker J, found it unnecessary to refer to s 87.

24 Not long after this, the section again came to the attention of the Court of Criminal Appeal in King v The Queen [2001] WASCA 198. In that case the applicant had been convicted on two serious charges on 16 December 1999. He was sentenced to a total term of 7 years' imprisonment. He had, by then, been in custody since 21 November 1998, a period of almost 13 months. Although the sentencing judge made some allowance for the time spent by the appellant in custody, he said that he was unable to backdate the sentence imposed by him to 21 November 1998 (as he would otherwise have done) because the applicant had also been in prison on other charges (traffic charges), which had then not yet been heard and in respect of which no application for bail had been made. He considered that, in these circumstances, s 87(a) of the Sentencing Act prevented him from backdating the sentence imposed by him to 21 November 1998. Among the grounds of appeal raised by the appellant was one to the effect that the sentencing judge could and should have backdated the sentence to 21 November 1998, as he had wished to do.

25 The majority (Wheeler J, with whom Wallwork J agreed) dismissed this ground. They formed the opinion that, even though it was 'at least arguable that the substantial reason for the applicant being in custody was his being charged with [the serious offences]' [56], there were circumstances which would have entitled the sentencing judge not to give the applicant the full benefit of the time spent in custody prior to trial.

26 So far as we are aware, the most recent case in this jurisdiction in which the issue of taking into account time spent in prison on unrelated charges has been discussed is Mills v The State of Western Australia [2007] WASCA 118. In that case the appellant was charged, in February 2004, with offences A. While on bail for those offences, he committed offences B. On 24 March 2004 he was arrested and charged with offences B. From 30 March 2004 he was held in custody. On 8 October 2004 he was sentenced to a term of 2 years and 4 months' imprisonment in respect of offences A, backdated to 30 March 2004. On 29 May 2005, he became eligible for parole. However, he was not released because of his pending trial in relation to offences B. The trial was listed for 27 June 2005 but was adjourned because no judge was available. The appellant was granted bail in relation to offences B, but he was not released to parole. On 7 September 2005 he was released to parole and bail. He was eventually convicted of offences B on 30 June 2006. He was sentenced on 1 September 2006. The delay of approximately 101 days between 29 May 2005 and 7 September 2005 in respect of the appellant's release on parole was attributable to the charges for offences B. The appellant accepted that s 87 of the Sentencing Act did not apply to that period, but contended that the period of 101 days should have been taken into account when considering the totality principle. The court upheld the appeal.

27 McLure JA (with whom Steytler P agreed) remarked [10] that the totality principle applied if the offender was still serving a sentence, even if he has been released to parole. She referred in that respect to Barnes v The State of Western Australia [2004] WASCA 258. She concluded [11] that the sentencing judge should have taken both the delay in the grant of parole and the sentence that the appellant had just completed into account as matters relevant to totality. Miller JA reached a similar conclusion [61]. We should add that it has not, so far as we are aware, ever been doubted that s 87 was not intended to, and does not, preclude the operation of the totality principle: see, for example, Ugle v The State of Western Australia [2004] WASCA 190 [15] (Wheeler J); Hiemstra v The State of Western Australia [2006] WASCA 70 [107] (Roberts-Smith JA, Malcolm CJ agreeing), [116] - [118] (McLure JA). That seems to us to be plainly correct. As counsel for the respondent conceded, s 87 addresses only the issue of time spent in custody on remand.

Construction of s 87

28 That brings us back to the construction of s 87. Discussion concerning that section has primarily addressed the meaning of the words 'and for no other reason' in par (a).

29 We have said that Scott J appears to have interpreted those words as meaning 'for no other substantial reason'. The relevant page from his judgment was referred to, without comment, by Malcolm CJ in Palmer. We have also mentioned that, in King, Wheeler J said that it was 'at least arguable that the substantial reason for the applicant being in custody' was his being charged with the offences for which he was subsequently sentenced. She referred, in that respect, to Jones. She also raised the question whether the section is intended to provide exhaustively for the circumstances in which credit may be given for time spent in custody. She said, in that respect [56]:

When regard is had to the way in which s 87 is worded, it has the appearance of attempting to provide exhaustively for the circumstances in which credit may be given for time spent in custody; it not only introduces the new concept of back-dating a sentence, but also purports to describe the circumstances in which a court may reduce a fixed term which would otherwise have been imposed, which was the subject previously of an uncodified discretionary judgment by the sentencing Judge. If his Honour was right in the view which he took, there may have been an argument that his Honour was unable either to reduce the fixed term or to backdate it.

She found it unnecessary to give any final answer to that question in the circumstances.

30 In our opinion, s 87 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.

31 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.

32 That this is so seems to us to be supported by the second reading speech made in respect of the Sentencing Bill by the then Attorney General, Ms Cheryl Edwardes. She gave scant attention to cl 87. She said only that the Bill contained 'specific provision for the court to set a commencement date which may mean that time spent on remand may count towards service of the sentence': Western Australia, Parliamentary Debates, Legislative Assembly, 25 May 1995, 4254, 4260 .

33 The construction that we have given s 87 is consistent with that given, in Victoria, to the former provisions of s 18(1) of the Sentencing Act 1991 (Vic). That section (which has since been amended) read 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 these proceedings and for no other reason must, unless the sentencing court ... otherwise orders, be reckoned as a period of imprisonment already served under the sentence.

34 Although that section is significantly different from s 87 in the sense that it provides for the circumstances in which time in custody 'must', unless the court orders otherwise, 'be reckoned as a period of imprisonment already served under the sentence', the cases shed light on the approach that might be taken to the words 'and for no other reason'.

35 In R v Heaney (Unreported, VSCA, 27 March 1996) Brooking JA (with whom Winneke P & Hampel AJA agreed) held that, in circumstances in which the prior period of imprisonment was not 'in relation to proceedings for [the current] offence ... and for no other reason', regard must still be had, in re-sentencing, to the period during which the appellant was detained in custody. In that case, the appellant had been in custody for a drug trafficking offence and an unrelated murder offence. Brooking JA said, in the appeal against the sentence imposed for the trafficking offence:

I would propose that this Court - not, of course, under s 18 but in the exercise of its inherent power - declare that in re-sentencing the applicant it has taken into account her being held in custody between 15 September 1995 and the present day, so it will be made clear by the formal order to any court that may be called on to sentence the applicant for murder - a quite unrelated offence - that the court should not duplicate the credit already given by this Court.

36 Heaney was applied by the Victorian Court of Appeal (Winneke P, Charles & Callaway JJA) in R v Renzella [1997] 2 VR 88. The court said (97):

Section 18 does not exclude the discretion that this court exercised in Heaney's case. 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 pre-sentence detention into account.

37 A similar construction was accorded to the section in R v Arts & Briggs [1998] 2 VR 261, 262 (Phillips CJ); 263 - 264 (Callaway JA); 271 - 272 (Harper AJA). However, Callaway JA said (264):

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 parte Evans [1997] Q.B. 443 at 462:

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].

38 That brings us back to the present case. The totality principle has no application in this case. That principle deals with cumulation of sentences, whether in respect of sentences already being served or to be served: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. It does not apply to a case in which a sentence in respect of prior offending has already been fully served (including any parole period) before the new sentence is imposed. However, the prior sentence may be relevant for other reasons.

39 One of these is when considering the need for personal deterrence, as discussed by Murray J in Palmer and by the Tasmanian Court of Criminal Appeal in Denman. In Denman, the offender had spent 10 months in prison in New South Wales for drug charges which were ultimately dismissed. He was then extradited to Tasmania to face the current charges. The Court accepted that the totality principle was not applicable. However, it considered that the steps taken by the respondent to rehabilitate himself while in custody justified a conclusion that there was a lesser need for personal deterrence than might otherwise have been the case. Also, in Palmer [23], Malcolm CJ considered that previous time spent in custody was 'a relevant matter to consider in the context of ensuring that the applicant's efforts at rehabilitation were not prejudiced by leaving him with a sense of injustice'.

40 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. In a case such as the present, the time in custody may have relevance (as the primary judge recognised) to the question whether there is a need for personal deterrence and also to that of the prospect that the offender has been, or will be rehabilitated. However, it seems to us that it may also be relevant for other reasons. For example, it might raise the question whether or not there has already been some degree of retribution, even if the offence in question was not the sole reason the time was spent in custody. This case provides a good example. It is difficult to see why there should, as a matter of fairness, be any distinction, when taking time spent in custody into account, between a case in which the time in remand was spent solely in respect of the offence in question and one in which it was spent in respect of that offence and other offences of which the offender was subsequently acquitted. We agree, in that respect, with what was said by Kennedy J in his dissenting judgment in Mickelberg. It also seems to us that what was there said, in the context of time spent in custody in respect of a conviction that was later overturned on appeal, is equally applicable in a case of the present kind, where the time was spent in remand in respect of the subject offence and offences of which the appellant was later acquitted. What was said by the majority in Mickelberg seems not to have been followed in Palmer and is also inconsistent with the approach adopted in the Victorian cases.

41 Of course, it would be a mistake to assume that time wrongly spent in prison will inevitably be taken into account in sentencing for a later offence. As Callaway JA said in Arts and Briggs (264), 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'. However, if Callaway JA meant to say, in the passage to which we have earlier referred, that time on remand in relation to an unconnected offence of which the offender is subsequently acquitted can never be taken into account in a general way in sentencing the offender for the subject offence, we would respectfully disagree with him.

42 Moreover, if that was what was intended by Callaway JA, his view has been departed from by the Victorian Court of Appeal in R v Berry [2007] VSCA 202. In that case two men were charged with a murder committed on 2 March 1998. The murder was committed while the appellant and his co-offender were in custody on a charge of which he was later acquitted. He spent 21 months in custody before being acquitted. He complained that the sentencing judge failed to pay any or sufficient regard to this. Redlich JA (with whom Buchanan & Kellam JJA were relevantly in agreement) said [119]:

[W]here an offender has not been charged with the offence upon which he now falls to be sentenced until after he has spent time in custody on remand, the circumstances may require the sentencing judge to take the time in custody into account in a general way. R v Ali [(No 2) [2005] VSCA 302; (2005) 13 VR 257] appears to have been such a case, the time spent on remand - for an offence upon which he was subsequently acquitted - and which should have been taken into account, occurring prior to the commission of the offence upon which he fell to be sentenced.

For reasons that are not presently pertinent the court went on to find that no sentencing error would have arisen if the sentencing judge had not taken into account the period which the appellant served in custody whilst on remand.

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.

44 It seems to us that, in this case, the time in custody between 24 May 2005 and 10 November 2006 should have been taken into account. It was served after the commission of the indecent assault and, as we have said, the appellant was remanded in custody in respect of that offence as well as the serious offences of which he was subsequently acquitted. He was, for any practical purpose, in no different position than that in which he would have been had he been remanded in custody solely in respect of the indecent assault. The appeal should consequently succeed upon that basis.

45 That brings us to the sentence that should now be imposed. Ordinarily, an indecent assault of the kind that occurred in this case would attract a non-custodial sentence. The touching that took place was outside the complainant's clothing and relatively brief. There was also a plea of guilty, even if it was somewhat belated (it was not entered until 27 July 2007, some 14 months after the appellant's first appearance). We have said that the prosecutor told the magistrate that it was unnecessary to impose a sentence of imprisonment notwithstanding the absence of any mitigation, apart from the plea.

46 There is no doubt that there was no other mitigation. The appellant is a 50-year-old man with an extensive criminal record, which encompasses a number of very serious sexual offences. There is no challenge to the primary judge's finding that the outlook in the pre-sentence report prepared in respect of the appellant was 'bleak'. His history suggests that his prospects of rehabilitation are negligible. He has shown no remorse. We agree with the primary judge that, given the appellant's background and his lack of remorse, personal deterrence and the protection of the community were the principal sentencing considerations in this case. Protection of the community is especially important in the case of an offender with a prior history such as that of the appellant. While he is not to be sentenced, a second time, for his prior offending, the fact that he has yet again offended in a sexual context shows a complete disregard for the law. He has also demonstrated an inability to respect the rights of others, especially women. He seems to have no understanding of, or any regard to, the consequences for his victims of his actions.

47 In these circumstances, notwithstanding that a non-custodial sentence would ordinarily have been imposed for an offence of this kind, a sentence of immediate imprisonment was necessary. In our opinion, a sentence of 9 months' imprisonment would, ignoring the time spent in custody, be appropriate. That term does not, and is not required to, take account of the transitional provisions. In our respectful opinion, the primary judge was right to query, as he did [34], whether there should, in this case, have been any reduction pursuant to the transitional provisions. As he pointed out, the summary penalty for indecent assault provided for by s 323 of the Criminal Code (WA) was amended by s 35(2) of the Criminal Law Amendment (Simple Offences) Act 2004 (WA). The amendment deleted the summary conviction penalty previously provided for (being one of imprisonment for 2 years or a fine of $8,000) and substituted for it a summary conviction penalty of imprisonment for 2 years and a fine of $24,000. Clause 2(5) of the transitional provisions provides that cl 2 does not apply if the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced.

48 A sentence of 9 months' imprisonment would make sufficient allowance for the only factor in mitigation, being the appellant's plea of guilty. However, as we have said, the time spent in custody must also be taken into account. The appellant has spent 443 days in custody on remand in respect of the present offence. Moreover, he has served nearly 5 months of the sentence imposed upon him by the primary judge. Consequently he has served almost 19 1/2 months in prison. That, by any measure, is considerably more than could properly have been imposed upon him in respect of this offence. It is not open to us to impose a term of imprisonment of 6 months or less (s 86 of the Sentencing Act) or to impose no sentence (s 46 of the Sentencing Act). In the circumstances it seems to us to be appropriate to sentence the appellant to a term of 6 months and 2 weeks' imprisonment (the term imposed by the primary judge) but to suspend that sentence for a term of 4 months from 21 September 2007, the day upon which the appellant was first sentenced. That would mean that the period of suspension has now expired.

49 We would allow the appeal, set aside the decision of the primary judge and substitute, in lieu, a sentence of 6 months and 2 weeks' imprisonment, suspended for a term of 4 months with effect from 21 September 2007.