Sentencing Act 1997 (Tas), ss14, 15 and 16.

R v Gilbert (1974) 60 Cr App R 220; R v Judge Frederico; ex parte The Attorney-General [1971] VicRp 51; [1971] VR 425, referred to.

3 Substitute a sentence of imprisonment for four months but order that the execution of that sentence be suspended on condition that the respondent be of good behaviour for a period of two years and during that time submit himself to the supervision of a probation officer as required by that probation officer and comply with the reasonable and lawful directions given by his probation officer.

4 Direct that the respondent attend at the Registry of this Court to arrange a date and time upon which the Registrar shall explain to him the above orders in accordance with the Sentencing Act 1997, s92.

I adopt the statement of facts set out in the reasons for judgment of Wright J, which I have had the advantage of reading. I also adopt his characterisation of the respondent's conduct as predatory and deserving punishment containing an element of both general and personal deterrence. On the face of it, a probation order is a manifestly inadequate penalty for such a crime. An offence of this nature called for an immediate custodial sentence notwithstanding that some part of its execution could properly have been suspended in light of those prospects of rehabilitation which the material before the learned sentencing judge indicated were present.

The principal ground of complaint urged by counsel for the Crown was that although the learned sentencing judge took into account, as he was obliged to do, the fact that the respondent had already served sixty-four days in custody, this factor would not be apparent on the face of the court record, nor in any criminal records maintained by the police, so that should the respondent re-offend either in this State or especially elsewhere, a court dealing with him could be left in ignorance of that fact and could form an unrealistic appreciation of the gravity of the present offence. There is some merit in this argument, but by the same token, there are many mitigating factors (an early plea of guilty, restitution of stolen property, early desistance from criminal behaviour and a variety of factors relating to the offender's antecedents, to mention but a few) which would likewise not be apparent from perusal of the formal records of the court or from a police record of prior convictions. I conclude, therefore, that the failure to so tailor the sentence as to make it apparent on the face of the record that the crime had been punished by a period of actual imprisonment is not, in itself, a sufficient basis for this Court to intervene.

Nevertheless, I consider that a probation order was an inadequate response to the gravity of the respondent's behaviour and constituted appellable error, even taking into account the period spent in custody. In my view, a sentence of imprisonment of considerably greater length than sixty-four days was required to act as a general deterrent. The conduct of the respondent required denunciation and that was not achieved by the making of the probation order. A head sentence of no less than six months' imprisonment ought to have been imposed, although, in the circumstances, part of it might properly have been suspended and, in my view, account taken of the sixty-four days' imprisonment already served by backdating the sentence accordingly.

Prior to the Sentencing Act 1997, it was common practice both in this Court and at first instance, to antedate sentences to take into account periods in custody (see Rudman v R 16/1997 where the Court of Criminal Appeal referred without any disapproval to the fact that the learned primary judge had backdated a sentence for murder to the date on which the offender was first taken into custody and Williams v R , unreported 28 August 1996, in which the Court of Criminal Appeal held the learned primary judge to be in error in holding that he had no power to backdate a sentence and substituted a backdated one to give credit for pre-trial custody). Such a practice was no doubt considered justified by the provisions of the Criminal Code, s391 which in substance remained in force from the enactment of the Code in 1924 until it was repealed by the Sentencing Act itself, which replaced it with a different regime. Immediately prior to its repeal by the latter Act, it provided:

"391 (1) Where a person is under sentence of imprisonment that has been put into execution (not being a sentence the further execution of which after a term is suspended) any other sentence of imprisonment imposed on him under this Code may be directed -

(a) to take effect from the expiration of the imprisonment under the sentence firstly referred to in this subsection; or

(b) to run concurrently with the remainder of that imprisonment.

(1A) Where a person is under sentence of imprisonment that has been put into execution but the further execution of which after a term is suspended any other sentence of imprisonment imposed on him under this Code may be directed -

(a) to take effect from the expiration of his imprisonment for that term; or

(b) to run concurrently with the remainder of his imprisonment for that term.

(1B) Notwithstanding anything in subsection (1) or subsection (1A), it shall be lawful for a court to direct that a sentence imposed by it shall commence either concurrently with or cumulatively on any other sentence imposed on the person sentenced (whether or not that other sentence has been put into execution prior to the time of the imposition of the sentence being imposed) and the sentence being imposed shall, subject to any law or anything done under any law, be executed accordingly.

(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.

There was considerable doubt, at least in other jurisdictions, whether this permitted the antedating of sentences, or merely permitted a judge to postpone their commencement. That doubt, to some extent, derived from the legal fiction adopted in the United Kingdom, and re-enacted in some Australian jurisdictions, of dating sentences from the first day of a Sittings, notwithstanding that a prisoner might not be dealt with until much later in the Sittings. Hence, in R v Gilbert [1975] 1 WLR 1012, the Court of Appeal held that the courts had no power to order that a sentence should commence earlier than the date on which it was pronounced and that the words "unless the court otherwise directs" in the relevant English legislation (the Courts Act 1971) did not empower the court to make such an order. James LJ, delivering the judgment of the court, said at 1017:

"The cases of R v Crockett, 21 Cr App R 164, R v Hatch, 22 Cr App R 83, and R v O'Neill and Hughes (unreported) reveal in our judgment a settled understanding that in law there was no such power prior to the passing of the Courts Act 1971. Unless the wording of the Courts Act 1971 compels us to take a different view, it is, we think, too late to disturb that settled understanding on the basis of an argument that R v Crockett (supra) does not support it and that R v McLean [1911] 1 KB 332 and R v Roberts, 21 Cr App R 69 are authorities to the contrary."

Similarly, the Supreme Court of Victoria in R v Judge Frederico; ex parte The Attorney-General [1971] VicRp 51; [1971] VR 425 in a judgment predating R v Gilbert (supra) held that neither the Supreme Court nor the County Court of Victoria had such a power. The position seems to have been the same in South Australia. "Historically the situation was attributable to the superior conditions under which remand prisoners were detained in comparison with other inmates" (Mary Daunton-Fear, Sentencing in South Australia, 1970 Law Book Co Ltd, at 117). The author suggested that the claimed superior conditions were probably outweighed by other considerations such as enforced idleness and the like and, of course, in the present case, the respondent was not a remand prisoner but one actually serving a sentence.

Be that as it may, the practice of this Court prior to the Sentencing Act has never been challenged, but even if it could successfully be challenged, the provisions of that Act, in my view, now clearly allow sentences to be antedated.

The Sentencing Act, ss14, 15 and 16, relevantly provide:

"14 (1) Subject to sections15 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 (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) An offender who is sentenced to a term of imprisonment for an escape offence or for non-payment of a fine must serve the sentence cumulatively on any uncompleted sentence of imprisonment, other than a sentence of life imprisonment, that the offender is then serving or liable to serve.

(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.

(4) If a court sentences an offender to a term of imprisonment for an offence against a law of Tasmania and the offender is already serving or liable to serve a sentence of imprisonment for an offence against a law of the Commonwealth, the court must direct when the new term of imprisonment is to commence.

16 (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."

As s15 deals with circumstances which enable or require the postponement of the commencement of the sentence, the provision in s14 that the sentence commence on the day it is pronounced must be made subject to it so as to accommodate that eventuality. Section 16, unless the legislature contemplates that, in some circumstances at least, time held in custody prior to conviction and sentence may be taken into account by antedating the sentence, requires no such accommodation. 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. 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 double jeopardy to which a respondent is exposed by a Crown appeal is usually recognised by an Appeal Court "by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance" (R v Allpass (1994) 72 A Crim R 561 at 562; R v Meers and Moles 32/1998). Save in cases which cry out for a lengthy sentence of imprisonment, the Appeal Court in exercising that discretionary sentencing power is, furthermore, normally reluctant to impose a sentence which will see the respondent incarcerated or reincarcerated after having been put at liberty by the sentence, the subject of the appeal. That reluctance is naturally greater where the sentence the Appeal Court considers should have been imposed at first instance is relatively short. In the present circumstances I would feel considerable reluctance in imposing a sentence which would see the respondent, in addition to having served two months' imprisonment prior to his release on bail on 2 July 1998, returned to custody for a similar or slightly longer period barely two months after receiving a non-custodial sentence at first instance after his retrial in September of this year.

A sentence of six months' imprisonment, backdated sixty-four days to take account of the pre-trial period in custody, adequately denounces the respondent's conduct and addresses the question of general deterrence. I do not consider that such a course is beyond the Court's power because the period spent in custody predated the notional commencement of that sentence, the respondent being on bail for the sixty-four days which preceded the date of his conviction and sentence. There are many cases where there are interruptions to the time spent pre-trial in custody and giving credit for that time by backdating a sentence for a similar aggregate period would have the effect that the offender was deemed to have spent time in custody serving a sentence when he was not in custody at all. Furthermore, there is a degree of artificiality in the concept of such a person serving a sentence when he is detained on remand. I see nothing objectionable or inappropriate in taking an offender's deprivation of liberty into account in that way. The suspension of the execution of the remainder of the sentence should satisfy the claim to some amelioration of the penalty by virtue not only of the respondent's exposure to double jeopardy, but also of the prospects of rehabilitation and other mitigating circumstances recognised by the learned sentencing judge. The threat of further incarceration should he re-offend, together with the experience of his pre-trial custody, ought to be an adequate personal deterrent to the respondent. I would allow the appeal, quash the sentence imposed at first instance and substitute a sentence in the above terms.

The Court being divided as to the appropriate orders to be made, resort must be had to a pragmatic solution. The one suggested by Wright J is a reasonable one which I adopt, although I do not resile from my views as to the power to backdate sentences so as to take account of time spent in custody.

The respondent was indicted on two counts of assault, contrary to the Criminal Code, s184. The counts were:

"1 That at Tanner's Creek in Tasmania on the 10th day of July 1997 he unlawfully assaulted [complainant] by depriving her of her liberty by causing her to believe that he was a police officer and that she was required to accompany him to Sorell for the purpose of submitting to a breathalyser test thereby inducing the said [complainant] to enter his motor vehicle and travel with him from Tanner's Creek to Sorell and then back to Tanner's Creek.

2 That at Tanner's Creek in Tasmania on the 10th day of July 1997 he unlawfully assaulted [complainant] by attempting to place tape across her mouth and grabbing her jumper."

The trial took place in Hobart between 7 and 11 September 1998 before Evans J and a jury.

The jury convicted the respondent on count 1, but were unable to agree on count 2.

This was the respondent's second trial. He had previously been convicted by a jury of the same two crimes (although each count in the indictment was in a somewhat different form) in April 1998. Upon those convictions, he was sentenced to imprisonment for a period of twelve months and had served sixty-four days in custody before he was released on bail on 2 July 1998. His appeal against each conviction was upheld on 17 August 1998 and a retrial was ordered on both counts.

Following his retrial and conviction on count 1, the Crown decided to enter a nolle prosequi on count 2. Evans J took time to consider the matter and imposed a sentence of twelve months' probation, with supervision.

As the two assaults alleged had formed part of a connected sequence of events, the learned trial judge was placed in a difficult position when considering sentence. In the first place, he concluded that there was an insufficient basis for him to find that before or during the assault mentioned in count 1 the respondent had formed an intent to carry out some further criminal offence in relation to the complainant. His Honour correctly regarded himself as being required to put out of his mind altogether, the facts which had been alleged in the second count and the evidence adduced in support thereof. The complainant said that she had willingly accompanied the respondent in his car to Sorell and back to Tanner's Creek because she believed he was an off duty police officer who genuinely wished her to accompany him for the purpose of submitting to a breath test. She had been at ease in his company, almost to the last moment when she left his vehicle at Tanner's Creek, having realised that he had been lying about his status and purpose.

Had the respondent been convicted of the second count in which it was alleged that he had commenced an actual physical attack upon the complainant, Evans J would have had a reasonable and proper basis for inferring that the respondent definitely intended to cause her serious harm but, as already mentioned, he was not convicted on that count. But even if the respondent had been convicted, it seems to me that the learned trial judge's capacity to impose a suitably severe penalty would have been curtailed by the principle established in R v Di Simoni [1981] HCA 31; (1981) 147 CLR 383, viz, that a person may only be sentenced for the offence or offences of which he has been convicted and that circumstances of aggravation may not be relied upon for the purpose of assessing sentence if those circumstances could have been made the subject of a separate and distinct charge (see also R v Causby [1985] Tas R 54 and Walsh v R [1996] TASSC 59; (1996) 6 Tas R 70).

Under the Criminal Code, s183, any person who assaults another with intent to commit a crime is guilty of aggravated assault. The respondent was not charged with aggravated assault. There may have been difficulty for the Crown in pursuing such a charge because of the lack of direct evidence, such as an admission by the respondent as to his actual intent. Nonetheless, it seems to me that the Di Simoni principle would apply in the circumstances now under discussion with the result that the learned sentencing judge would have been unable to take account of an inferred criminal intent by the respondent unless he had been convicted of aggravated assault, abduction, attempted indecent assault or some other crime in addition to the assault comprised in count 1.

To many, this may seem an unreasonable and unsatisfactory outcome because, even upon the limited circumstances and events comprised within count 1, it would be apparent to any reasonable observer that the respondent had some unlawful and evil purpose in mind, even though it may be impossible to say with any certainty what that purpose may have been.

The learned trial judge, if imposing a sentence of imprisonment, would have been obliged, pursuant to the Sentencing Act 1997, s16(1), to take into account any period spent by the respondent in custody prior to sentence. But in practice, this principle is observed by the Court in any case, whether or not a custodial sentence is about to be imposed. Evans J properly took into account the fact that the respondent had spent sixty-four days in custody when imposing sentence. His Honour made a probation order under the Sentencing Act, Pt5. The order had an operative period of twelve months and was subject to the conditions enumerated in the Act, s37(1), including a condition that the respondent commit no offence punishable by imprisonment. (These details have been taken from the transcript of the learned trial judge's comments at 126 of the appeal book and were not disputed. I note, however, that the details of his Honour's order were not endorsed on the back of the indictment and no certificate of conviction was provided to the Court.)

The Crown has appealed against the sentence imposed on the sole ground that it was manifestly inadequate. The dispute, however, was narrowed to some extent when Crown counsel, Mr Shirley, indicated that the appeal was, from the prosecution viewpoint, primarily concerned with the omission of any term of imprisonment from the substance of the sentence. Mr Shirley conceded, as I understand him, that if the sentence actually imposed had included the time actually served by the respondent in custody following his original convictions, it could not be successfully contended that the sentence was manifestly inadequate. I should say, for my part, that I do not consider that this concession can or should limit this Court's discretion if it decides that the sentence should be quashed and a fresh sentence imposed.

Nonetheless, Mr Shirley's approach necessitates consideration of how the sixty-four days spent in custody may have been included in any order which the Court is empowered to make. The first thing to note is that the Sentencing Act is a consolidation, not a code. Section 6 says that it "does not derogate from the powers that a court may exercise ... under any other enactment or law" relating to the sentencing of offenders. However, the Criminal Code, s391(2), which permitted the Court to backdate the commencement of a sentence, was repealed by the Sentencing Act and now the Sentencing Act, s14(1) requires that "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", or the day when he is apprehended on warrant. Neither s15 nor s16 empower a court to backdate a sentence in the circumstances of the present case, in my opinion. Although the matter was not fully argued by counsel, it seems to me that under current Tasmanian law, the Court has no general power to backdate the commencement of a sentence of imprisonment. This, I think, is a regrettable situation because it prevents the achievement of a just resolution in some circumstances.

Mr Shirley correctly pointed out that although the learned sentencing judge took account of the time spent in custody and tailored the actual sentence formally imposed with that significant fact in mind, this feature will not appear in the Court record and, presumably, will not appear upon the respondent's criminal record kept by the police which so often provides essential background information if and when another court is required to sentence a repeat offender on a subsequent occasion.

The learned sentencing judge made the following comments and findings of fact when he sentenced the respondent on 11 September 1998:

"At the time of the offence, the complainant was 18 years of age. Late in the afternoon of 10 July 1997, you followed the vehicle she was driving along the Arthur Highway from Forcett to a deserted spot known as Tanner's Creek. You there caused her to pull over to the side of the road by flashing your vehicle's headlights and indicator lights. You approached the vehicle she was driving and introduced yourself as an off-duty police officer. You told her that she had been speeding and that she had the option of accepting a speeding ticket or returning with you to the Sorell Police Station to undergo a breath test. She rejected the assertion that she had been speeding and was not willing to accept a speeding ticket. In the circumstances she felt obliged to accompany you to Sorell. As part of your ruse to gain her confidence, you purported to speak to superiors on a mobile phone.

The complainant accompanied you in your vehicle as you drove back towards Sorell. Shortly before Sorell, you again purported to make a telephone call on your mobile phone and, in summary, advised the complainant that because of problems about the performance of a breath analysis at Sorell, you would return her to her vehicle, and this you did.

What actually occurred was fraught with danger. It was inevitable that, upon the complainant becoming aware of your deceit, she would be concerned that you had a nefarious objective in mind and she would be most alarmed and distressed. She left your vehicle in a state of panic."

The Crown submits that the crime committed by the respondent was of a serious nature by reason of the following features:

1 It was committed upon a young and vulnerable complainant who was a stranger to the respondent.

2 It was committed by subterfuge late on a winter's afternoon in a comparatively isolated location.

3 It was committed in circumstances which led inevitably to an inference of premeditation by the respondent.

Crown counsel submitted further that by reason of the sinister overtones, the offence required the imposition of a generally deterrent sentence.

Counsel for the respondent submitted that the assault of which his client was convicted involved no actual force or threat of force, "It was an assault with no battery", he said. He also submitted that the period of deprivation of liberty was relatively short and that during that period there was no evidence of fear or alarm:

"The trial judge could have sentenced the respondent on no other basis that that the complainant's realisation of the respondent's deception occurred at the end of the trip and immediately before she alighted from the respondent's motor vehicle."

All of these are valid points, but the intended victim's ignorance of a criminal's purpose does little to ameliorate the criminality of the relevant conduct.

Counsel for the respondent made the following points in his client's favour:

"(a) the respondent was nearly 29 years of age, with no prior convictions and with good character references, one of which described the situation as 'completely out of character';

(b) the offence was committed at a time when there was immediate uncertainty about the respondent's employment. He had full-time employment to go to at the time of the sentence;

(c) he was separated from his wife and child at the time of the offence but there was some prospect of reconciliation;

(d) whilst in prison he had undertaken an anger management course;"

When imposing sentence, the learned trial judge said:

"You are 28 years of age, have no prior convictions, have a good employment record and a number of people have provided references as to your past good character. You have been in custody for 64 days in relation to this offence. As you have already served a period of a little in excess of two months' imprisonment for the offence, I will not impose a further term of imprisonment. I do, however, make a probation order."

I am in no doubt that the respondent's crime can properly be characterised as a predatory offence and one deserving punishment containing an element of both personal and general deterrence. Notwithstanding the respondent's prior good character, I am of the view that neither of these objectives could be appropriately achieved without the imposition of a substantial custodial sentence. In my opinion, the sentence imposed was manifestly inadequate in that it failed to give recognition to the elements of deterrence and punishment to which I have referred.

If I were sentencing the respondent at first instance, I would impose a sentence of eight months' imprisonment after giving a notional credit for the sixty-four days spent in custody. However, different considerations apply in the case of a Crown appeal. As I said in R v Harland-White 23/1997, the Court of Criminal Appeal has a limited discretion once it has decided that an appeal against the adequacy of a sentence should be upheld. In the present circumstances, the "double jeopardy" principle would cause me to modify the sentence to one of six months' imprisonment and, of that, I would suspend two months for a period of two years upon the usual conditions as to good behaviour and supervision by a probation officer. In my opinion, any lesser penalty would fail to strike the appropriate balance between punishment, deterrence and rehabilitation of the offender.

In my opinion, the appeal should be upheld, the sentence imposed at trial should be quashed and, in lieu, a fresh sentence of six months' imprisonment, with two months suspended, should be imposed. As the respondent is not in custody and did not attend the hearing of the appeal, a warrant should issue for his arrest and the orders formulated above should be formally made once he has been taken into custody.

It is apparent that some just solution must be sought to accommodate the differing views expressed by the Chief Justice and me as to the appropriate outcome of these proceedings. We are both of the opinion that the sentence imposed was manifestly inadequate. The Chief Justice considers that a term of imprisonment, suspended in operation so as not to require the respondent to spend further time in gaol, would be an appropriate result, whereas my view is that the respondent should spend more time in prison. Additionally, we differ as to whether or not the sentence can be backdated to commence on an earlier date than the date on which sentence was actually imposed.

I consider that a pragmatic and not unreasonable result would be achieved by sentencing the respondent to four months' imprisonment, wholly suspended for two years, on condition that he be of good behaviour and place himself under the supervision of a probation officer.

This, in my view, would give adequate recognition to his sixty-four days in custody, whilst preserving a significant sanction if he should offend again. There would be no need to backdate such a sentence which would operate from the date it was imposed by this Court.

There had been an earlier trial which concluded with the respondent being found guilty of both counts, and not merely of count 1. That placed an entirely different complexion on the case and understandably he was sentenced to a term of imprisonment, that being one of twelve months. He served sixty-four days of that sentence until he was released on bail on 2 July 1998, pending the hearing of an appeal against his conviction. That appeal was successful and a retrial was ordered. Following the retrial and his conviction on count 1 only, the learned judge considered what regard he should pay to the sixty-four days the respondent had spent in custody, and in his comments on passing sentence said:

"As you have already served a period of a little in excess of two months' imprisonment for the offence, I will not impose a further term of imprisonment. I do, however, make a probation order."

It is obvious that the learned judge regarded sixty-four days in prison, in combination with a probation order, as sufficient punishment for the crime of which the respondent was found guilty.

Counsel for the Crown submitted that a probation order alone was a manifestly inadequate punishment. He conceded that a wholly suspended sentence of imprisonment, in addition to the probation order, would have been adequate, and also described as adequate a sentence of say six months' imprisonment, backdated to commence sixty-four days before the making of the sentencing order, with the unserved balance being suspended. A particular complaint of counsel for the Crown was that in this case the public record of the sentence would contain a record only of a probation order, which was plainly inadequate punishment for the offence. A probation order alone, it was submitted, was not of sufficient general deterrence and statistically any sentencing data base would contain a record which was misleading.

The question of the power of a court to backdate a sentence was not fully argued by counsel. However, it has been addressed by the other members of the Court and as it is my understanding that the provisions of the Sentencing Act 1997, concerning the commencement of a sentence of imprisonment, are not being consistently interpreted by courts throughout the State, it is appropriate that I should also express my views about the matter.

Prior to the commencement of the Sentencing Act 1997, the Criminal Code, s391(2), provided that a sentence of imprisonment imposed in a criminal court took effect and was to be calculated from the day upon which it was imposed "unless the judge otherwise orders". It was common practice for judges to take into account a period of custody prior to the day of sentencing by backdating the commencement of the sentence of imprisonment to the day custody commenced. Whether a power to do so was given by s391(2) appears to have been assumed. Professor Warner in her Sentencing in Tasmania at 201 - 202, pointed out that English authorities suggested that there was no common law power to backdate in that way (see Gilbert (1974) 60 Cr App R 220) and the same view under statute was taken by the Full Court of Victoria in R v Frederico [1971] VicRp 51; [1971] VR 425. However, it should be noted that the statutory provisions considered in R v Frederico, and the statutory history, were substantially different than is the case here.

An authority supporting the practice of backdating sentences is R v Williams [1975] 1 NSWLR 645, in which the Court of Criminal Appeal had to interpret the Crimes Act 1900, (NSW) s441A, which provided that "for the avoidance of doubt it is hereby declared that every sentence passed shall take effect from the time when it is passed, unless the Court otherwise directs". The court held that the provision authorised the backdating (and postdating) of sentences and that R v Gilbert (supra) should not be followed in New South Wales. See also R v Clark (1975) 27 FLR 380 and R v Clark (1967) 1 CCC 47. Subsequently, in R v McHugh (1985) 1 NSWLR 588 at 590 - 591, the Court of Criminal Appeal advanced the need for a power to backdate imprisonment to commence when an accused was taken into custody:

"It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. 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 unfairness 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."

Under the Justices Act 1959, s75, as originally enacted, justices had no power to backdate sentences of imprisonment. Wills v Webster [1968] Tas SR 195 (NC21). However, such a power was given when s75 was repealed in 1974 and replaced with a new s75 which, by subs(2), authorised justices to order that a term of imprisonment take effect on and from a date earlier than the date of the execution of the warrant of commitment of the defendant.

At the time of the enactment of the Sentencing Act 1997, it was therefore common practice in Tasmania, in the criminal courts and courts of petty sessions, for sentences of imprisonment to be backdated to the date upon which the offender was taken into custody for the offences for which he was being sentenced. By the Sentencing Act 1997, s103 and Sch 1, the Criminal Code, s391, and the Justices Act 1959, s75, were repealed, and by s14(1) it was provided that "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." The usual rule that a sentence of imprisonment commences on the day on which it is imposed is therefore expressed to be subject to the provisions of both s15 and s16. Section 15 requires inter alia that sentences of imprisonment imposed for an escape offence (subs(2)) and sentences of imprisonment imposed for an offence under Sch 1 of the Corrections Act 1997 (subs(3)) are to be served cumulatively on any uncompleted sentence of imprisonment the offender is then serving or is liable to serve. Except for those cases and other cases specifically referred to in s15, it is provided in subs(1) that 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 is liable to serve "unless the court imposing the sentence directs otherwise". Section 15 therefore provides for circumstances in which a sentence of imprisonment which is imposed by a court must commence or may be directed to commence on a later date than the date on which it is imposed, and the general rule provided for in s14(1), that a sentence of imprisonment commences on the day on which it is imposed is expressly made subject to those provisions. By s16(1) it is provided that a court that is sentencing an offender to a term of imprisonment 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. The general rule provided for in s14(1) is expressly made subject to that provision also. 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.

The interpretation I have reached achieves a more sensible and just result. Earlier I cited a passage from R v McHugh (1985) 1 NSWLR 588 at 590 - 591, in which it was explained why it is desirable sentencing practice to backdate sentences of imprisonment in cases of pre-sentence custody referable to the same offence. 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, reg23.

In the usual case where a backdating of the commencement of imprisonment is ordered, the offender has been in custody continuously since an earlier date and the sentence is expressed to commence from that date. However, it is not unusual that an offender spends a period in custody and is then released on bail until his case is heard in court. This is such a case. Occasionally an offender may have been in custody for two or more periods of time prior to the matter coming to court. In those cases and in a case such as this, backdating a sentence of imprisonment will not always be a realistic option. Counsel for the Crown submitted that in this case the learned trial judge could have imposed a sentence of imprisonment and ordered that it commence sixty-four days prior to the date of sentencing, thereby giving the respondent credit for his time in custody. But the truth of the matter is that the respondent was not in custody for any of that period of time. The sixty-four days of custody occurred earlier in time, ending on 2 July, and the sentence from which this appeal was brought was not imposed until 11 September 1998 which was over sixty-four days later. In my view it is inappropriate for a court to sentence an offender to a period of imprisonment commencing from an earlier date when, in reality, he was not in fact in custody from that date at all. That would involve too much of a fiction and ought not be countenanced. There should be truth in sentencing orders, if it can reasonably be achieved.

The learned trial judge was clearly correct in giving the respondent credit for the sixty-four days he had spent in custody. If for his offence the respondent deserved no more than sixty-four days of imprisonment by way of punishment, the learned judge had no choice which was reasonably open, in the circumstances of this case, but to not impose any imprisonment and to allow the respondent's immediate release.

The respondent was convicted only of the assault charged in count 1. The jury could not reach agreement with regard to a verdict on the assault charged in count 2, and it followed that the learned sentencing judge had to ignore the facts alleged to constitute that crime. Therefore, the respondent was to be sentenced only for an assault by depriving the complainant of her liberty, by causing her to believe that he was a police officer and to agree to travel with him in his motor vehicle from Tanner's Creek to Sorell for the purpose of submitting to a breathalyser test. The evidence established that when the respondent's vehicle reached the outskirts of Sorell, after travelling only a few kilometres from Tanner's Creek, he decided to return her to where they had left her vehicle on the side of the road. Accordingly he drove straight back, stopped his vehicle and she got out. She gave evidence at the trial that before she got out he assaulted her by attempting to place tape across her mouth and grabbing her jumper, but because the jury was unable to reach a verdict on count 2 (and the Crown has since filed a nolle prosequi with regard to it), the learned judge was obliged to sentence only upon the factual basis that such an assault did not take place.

Prior to sentence, counsel for the Crown submitted that the crime in count 1 was very serious and "predatory in nature", and when the learned judged countered that it was only "predatory in potential", counsel for the Crown agreed, but submitted that his Honour could nevertheless "find or infer that there was a sinister purpose to the actions of the accused". His Honour accepted that he could certainly be concerned that there was a sinister aspect but questioned that he could find that to be the case. Counsel for the Crown did not adequately address the question. In his comments on passing sentence, the learned judge properly excluded from his consideration the complainant's allegations of a direct physical assault at the conclusion of the journey. His Honour said that what actually occurred was fraught with danger, and that "it was inevitable that, upon the complainant becoming aware of your deceit, she would be concerned that you had a nefarious objective in mind and she would be most alarmed and distressed". His Honour noted that the complainant had left the vehicle in a state of panic. It was established by the evidence that she had not been concerned for her welfare until the time when the respondent's vehicle had pulled up once again at the place where she had left her vehicle at the side of the road. It can be seen from his Honour's comments that he found that at that point of time the complainant became concerned that the respondent had a nefarious objective, but his Honour did not find that he actually had such an objective.

At the hearing of the appeal counsel for the Crown initially conceded that it was not open to the learned sentencing judge to sentence the respondent upon the basis of a finding that he had an intention to commit some other crime and accepted that the sentencing judge was correct when he went no further than conclude that the complainant was likely to infer a sinister purpose. Counsel therefore abandoned any suggestion that the respondent had a nefarious purpose. However, after some urging from Wright J, counsel for the Crown retreated from what he had conceded and instead submitted that the learned sentencing judge should have found beyond reasonable doubt that the respondent had a nefarious purpose, that being to commit some other unidentifiable illegal act, possibly a sexual crime.

The only ground upon which the Crown has appealed against the sentence is that it was manifestly inadequate. It is not a ground of appeal that the learned sentencing judge made erroneous findings of fact or failed to make findings and, without an application to amend the notice of appeal, it is inappropriate for this Court to consider upholding the Crown's appeal upon the basis that his Honour did not determine the facts correctly and ought to have found that the respondent had some "nefarious objective" or "nefarious purpose".

Statements that the respondent had a "nefarious objective" or that the crime of which he was committed was a "predatory offence" are vague to the point of being almost meaningless, without definition or explanation of what is meant by them. It would have been contrary to law to sentence the respondent upon the basis that he committed some other crime than assault, such as aggravated assault. Lovegrove v R [1961] Tas SR 106; R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; R v Causby [1984] Tas R 54; Walsh v R [1996] TASSC 59; (1996) 6 Tas R 70. By definition, an assault committed with intent to commit another crime amounts to an aggravated assault. It follows that it would have been unlawful, and also unjust, to sentence the respondent upon a finding of fact that when committing the crime of which he was found guilty, he intended to commit some other crime.

Most people would have a very strong suspicion that the respondent, by pretending to be a police officer and persuading the young woman to travel with him in his vehicle, intended to commit a more serious crime than assault, a suspicion therefore that he had a "nefarious objective" and that the nature of the crime proved to the jury's satisfaction to have been committed by him was "predatory", vague as those terms may be. But suspicion, falling short of proof beyond reasonable doubt, is in any event, inadequate as a factual basis for sentencing (R v Storey [1998] 1 VR 359, R v Turnbull [1994] TASSC 131; (1994) 4 Tas R 216) and as I have pointed out, that basis was not permitted as a matter of law.

Upon the factual basis for sentence, applied by the learned sentencing judge, no error in the exercise of the sentencing discretion has been established by the Crown. Sixty-four days in prison, together with a probation order, was not manifestly inadequate. The period of deprivation of the complainant's liberty was short and during its course there was no evidence of fear or alarm. Such emotions only arose at the conclusion of the assault which was found proved. The complainant does not continue to suffer from what occurred. The respondent was 28 years of age with unblemished antecedents. Those who knew him well thought his crime completely out of character.