R v Edie [2006] QCA 111

Judgment (121 paragraphs)

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - where the applicant pleaded guilty to a total of 141 offences over a period of 18 months, the vast majority involving burglary - where the applicant was on bail and on probation when many of the offences were committed - in the applicant's favour was his co-operation with authorities and his youth - where effectively, the applicant was given a head sentence of seven years and four months with no recommendation for post-prison community based release - whether in all the circumstances the sentence was manifestly excessive

[2]

Penalties and Sentences Act 1992 (Qld), s 161, s 161(1),

[3]

s 161(3A), s 161(3B), s 161(3C), s 161(4A), s 189, s 189(2)(b)

[4]

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered

[5]

R v Guthrie [2002] QCA 509; (2002) 135 A Crim R 292, considered

[6]

R v Kunst [2002] QCA 400; [2003] 2 Qd R 98, considered

[7]

R v Moss [1999] QCA 426; CA No 270 of 1999, 8 October 1999, considered

[8]

R v Wishart and Jenkins [1993] QCA 563; [1994] 2 Qd R 421, considered

[9]

Director of Public Prosecutions (Queensland) for the respondent

[10]

[1] McMURDO P: Williams JA and Fryberg J have comprehensively stated the relevant facts so that my reasons can be briefly stated.

[11]

[2] The primary judge decided that he should make an order under s 161 Penalties and Sentences Act 1992 (Qld) ("the Act") that no time served by the applicant in pre-sentence custody should be declared to be time served under the sentence. Under s 161(3B) the Act he was required to state the dates and calculate the time during which the applicant was held in pre-sentence custody and to declare that no time was taken to be imprisonment already served under the sentence. The declaration made by the judge is, as Fryberg J explains, inaccurate. I agree with Fryberg J that the declaration he proposes should be substituted for that made by the primary judge.

[12]

[3] The facts set out by Williams JA and Fryberg J demonstrate that the sentence imposed did not reflect the primary judge's expressed desire to give full effect to the applicant's period of pre-sentence custody declared not to be time served under the sentence. This was a period of 590 days. As Mr Heaton on behalf of the respondent very fairly conceded, the sentence imposed appropriately reduced the head sentence to reflect the pre-sentence custody but the eligibility for post-prison community based release under the sentence did not fully reflect the pre-sentence custody. The orders proposed by Fryberg J provide the appropriate remedy. I agree with them.

[13]

[4] WILLIAMS JA: On 22 November 2005 the applicant, then aged 22 years, pleaded guilty in the District Court at Brisbane to numerous serious criminal offences. The particulars of the indictments and a brief statement of the offences are as follows:

[14]

1 count of dangerous operation of a motor vehicle causing grievous bodily harm.

[15]

These offences were committed between 18 March 2002 and 5 January 2005.

[16]

[5] Pursuant to s 651 of the Criminal Code there was also a plea of guilty entered to a series of summary offences committed between 14 October 2004 and 6 January 2005; broad particulars of those offences are as follows:

[17]

(i) 1 count of dangerous driving;

(ii) 1 count of failing to stop vehicle;

(iii) 1 count of obstructing police;

(iv) 1 count of unlawful possession of a firearm;

(v) 1 count of possession of a dangerous drug;

(vi) 1 count of possession of tainted property; and

(vii) 1 count of breaching bail.

[18]

[6] Finally, the sentencing court was asked, pursuant to s 189 of the Penalties and Sentences Act 1992 (Qld), to take into account the offences in the schedule which was marked Exhibit 11. My calculation is that schedule contains 82 counts of burglary, four counts of attempted burglary, two counts of stealing, one count of wilful damage, 20 counts of unlawful use of a motor vehicle, six counts of break and enter and steal, and one count of attempted break and enter and steal.

[19]

[7] According to the calculation by counsel who appeared for the respondent the ultimate position was that the applicant pleaded guilty to having committed a total of 141 offences over the period of approximately 18 months between July 2003 and January 2005. The vast majority of the offences, approximately 90, involved burglary. The court was told that the total loss suffered as a result of the applicant's offending was $321,000.

[20]

[8] In relation to the burglary offences, the usual procedure adopted by the applicant was to knock on the front door of the target house. If there was no answer he would break in through a door or a window or sometimes gain entry through the roof. The house would then be ransacked and he would steal cash, wallets, handbags, jewellery and electrical items.

[21]

[9] On at least one occasion the occupier of the house was in fact at home and awoke to see the applicant.

[22]

[10] Most of the counts of unlawful use of a motor vehicle involved the applicant obtaining the keys to the car during the burglary and then after driving the vehicle for some time, abandoning it. On two occasions (apart from the dangerous operation of a motor vehicle causing grievous bodily harm on 18 July 2003) the applicant was apprehended in the stolen vehicle after a police chase which potentially created danger to other road users.

[23]

[11] During the period of offending the applicant was arrested or issued with a notice to appear on five separate occasions. He was first arrested on 18 July 2003 so all but six of the offences were committed whilst he was on bail. The applicant participated in a number of formal interviews with police and made admissions that formed the basis of the charges on the s 189 schedule. The prosecution conceded that without his admissions those offences may have remained unresolved.

[24]

[12] Of particular concern is the count of dangerous operation of a motor vehicle causing grievous bodily harm committed on 18 July 2003. At about 11.00 pm on that evening the police went to Daveson Road, Capalaba, following reports of a car doing burn-outs on the street. Police observed a Ford Falcon sedan bearing registration number NED 09 doing doughnuts; the police activated emergency lights and siren and stopped that vehicle. But having stopped initially, the vehicle accelerated and drove off at high speed along Daveson Road and turned left into Old Cleveland Road East with the police following. The Ford was travelling with no lights on and its estimated speed was between 100 and 120 kilometres per hour. The vehicle drove through a red light and collided with another vehicle being driven by Elizabeth Graham, who was 18 years old. The intersection in question was a major one controlled by traffic lights. The applicant was the driver of the Ford and he received some relatively minor injuries in the accident. The vehicle in question had been stolen, and further the number plates attached to it had been stolen from another motor vehicle. The police also located stolen property in that vehicle after the accident. Finally, it should be noted that at the time the applicant was disqualified from holding or obtaining a driver's licence.

[25]

[13] Elizabeth Graham suffered serious injuries as a result of the collision and was in hospital for some time.

[26]

[14] The applicant told the psychiatrist who examined him for purposes of a pre-sentence report that at the time of the collision he was "intoxicated with ice", that is an amphetamine derivative. However, the applicant was not charged with the aggravating circumstance of being "adversely affected by an intoxicating substance" at the material time.

[27]

[15] The applicant was born on 25 July 1983 meaning that he was aged from about 19 to about 21 when the relevant offences were committed. He had a not insignificant criminal history. On 4 December 2000, 29 January 2002 and 6 December 2002 he was dealt with in the Magistrates Court for possession of drug utensils. On two occasions he was dealt with for possession of a knife in a public place. Apart from other simple offences dealt with in the Magistrates Court his most significant conviction was in the District Court on 19 November 2002. He was placed on probation for two years with respect to charges of receiving, entering premises and committing an indictable offence, unlawful use of a motor vehicle, stealing, and wilful damage. That means he was on probation when many of the offences the subject of this application were committed. Apparently on that occasion he had spent approximately eight months in pre-sentence custody. He was also dealt with in the Magistrates Court on 22 March 2004 for offences of burglary and dangerous operation of a motor vehicle. He was then sentenced to a further 18 months probation. Again a number of the offences now being dealt with were committed after that date.

[28]

[16] It is clear that the applicant's criminal conduct has not been deterred by court orders. He was on bail and on probation when many, if not most, of the current offences were committed. In those circumstances a substantial term of imprisonment was called for.

[29]

[17] One cannot overlook the fact that the dangerous driving causing grievous bodily harm was so serious an offence that it would itself have called for a significant period of imprisonment. His conduct on that occasion clearly demonstrated a lack of consideration for the property and welfare of other citizens.

[30]

[18] The experienced District Court judge who imposed sentence said that:

[31]

"Without a doubt you are the worst property offender I have ever had to deal with. You selfishly went about, really out of control, without a care about not only authority but also innocent people whose lives you impacted upon."

[32]

[19] But against that the sentencing judge took into account "your co-operation with the authorities which is a powerful factor in your favour resulting in personal risk to yourself". That is a matter which the applicant, who appeared on his own behalf on the hearing of this application, stressed to this court.

[33]

[20] The sentencing judge then referred to the fact that the applicant was "still young" and there was some hope that eventually he would be rehabilitated. He noted that the applicant "confessed to many of the offences and without that the cases against you might not have been brought to justice." He then proceeded to determine the appropriate sentence in the difficult circumstances which then faced him, and began by saying that "[b]ut for the things in your favour I would not have hesitated sentencing you to an overall sentence of 10 years at least for the most serious property offences". But he went on to say that in recognition of matters in the applicant's favour he would "reduce that to eight years".

[34]

[21] It has already been noted that the applicant was apprehended by the police on a number of occasions throughout the period of his relevant offending. He spent periods in custody from time to time before being released on bail. In the circumstances, given the complexity of the repetitive offending and detention, it was not possible to deal with the pre-sentence custody pursuant to s 161(1) of the Penalties and Sentences Act. What the judge at first instance did was round off the total period spent in pre-sentence custody to 20 months and then take that period off the head sentence. He then stated that he proposed to impose a cumulative sentence with respect to the offence of dangerous driving causing grievous bodily harm.

[35]

[22] The sentencing judge then summarised his reasoning as follows:

[36]

"Now, coming to my formal orders then. As I said earlier, I would regard the most serious offences as commanding a 10 years head sentence and I said that I would reduce that to eight years to give you the benefit of the things in your favour. Additionally, as I said I will give you the benefit of all of the time that you have spent in custody on any of these offences which I have rounded up, as I said, to 20 months. So, my calculation is that eight years is 96 months less 20 months which leaves 76 months which really expressed in another way is six years and four months. I therefore sentence you on each of the burglary offences on the indictments to six years and four months' imprisonment.

...

As I indicated, I propose to make a separate and cumulative sentence for the dangerous driving causing grievous bodily harm. . . .

I sentence you to imprisonment for 12 months and I direct that that sentence start from the end of the periods of imprisonment which you have been ordered to serve or which you are currently serving.

Now, on each of the indictment charges not already dealt with so far by me you are sentenced to 18 months' imprisonment concurrent with each of the six years and four months sentences earlier imposed by me and concurrent with each other."

[37]

Orders were then made disqualifying the applicant from holding or obtaining a driver's licence absolutely, and other orders were made with respect to the summary offences.

[38]

[23] Effectively then the applicant was given a head sentence of seven years four months. As no specific recommendation was made with respect to eligibility for post-prison community based release he would become eligible after serving one half of the sentence; that is after three years and eight months. But he had spent 20 months in custody prior to the date of sentence in the District Court, so that would mean he would actually serve five years and four months in custody before becoming eligible to apply for release.

[39]

[24] The property offending was serious if only because of the number of offences involved and the value of the property. The starting point of 10 years adopted by the sentencing judge could be regarded as somewhat on the low side. Further, if the dangerous driving causing grievous bodily harm was considered in isolation, it would call for a sentence of around the three year mark. But it was correct to moderate that sentence because it was being made cumulative.

[40]

[25] The circumstances of this case call into play the reasoning of Hayne J in

[41]

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 155; there relevantly he said:

[42]

"An offender who confesses to crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known. . . . And the offender who confesses to what was an unknown crime may properly be said to merit special leniency. That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition."

[43]

[26] In addition to those factors there is in this case the further mitigating fact of the applicant's significant co-operation with the authorities - a matter referred to by the sentencing judge.

[44]

[27] Assuming a notional head sentence of 10 years for the property offences and a cumulative one year sentence for the dangerous driving causing grievous bodily harm, all of those mitigating factors would clearly justify reducing the head sentence to seven years four months; indeed some further small reduction in the head sentence might even be justified. But that could, in my view, also be reflected in the making of a recommendation with respect to eligibility for post-prison community based release.

[45]

[28] Then one also has to have regard to the 20 months spent in custody prior to the date of sentence. It is significant that the 20 months were not served as one period, and when released on bail further offences were committed. As already noted, for those, and other reasons, it was not appropriate to deal with the pre-sentence custody pursuant to s 161(1) of the Penalties and Sentences Act. How that 20 months should be taken into account is essentially within the discretion of the sentencing court.

[46]

[29] Once it is appreciated that the applicant would serve a total of five years four months in custody before becoming eligible for post-prison community based release when the head sentence for the totality of the offending in question was seven years four months, it is clear that the sentence as structured at first instance is manifestly excessive. So much was frankly conceded by counsel for the Director of Public Prosecutions at the hearing.

[47]

[30] As already indicated, some further amelioration by making an order with respect to post-prison community based release is justified. Whilst, given that further offending occurred during periods of release, arguably the whole of the 20 month period ought not be brought into account, that becomes justifiable when regard is had to the other factors I have already referred to.

[48]

[31] If one made the eligibility date two years after the date of sentencing in the District Court that would mean that the applicant would spend three years eight months in custody (one half of a head sentence of seven years four months) before becoming eligible for release. If release was granted at that time then the applicant would be subject to parole conditions for a further period of five years four months, which would be a very significant deterrent to further offending. He is still a young man and, provided he can overcome his drug dependency, he can still lead a useful life in the community. Being on parole for five years four months would be a very strong inducement to remain drug free.

[49]

[32] For all those reasons I am of the view that the sentence imposed was manifestly excessive and should be varied by adding to the sentence imposed at first instance a recommendation that the applicant be eligible for post-prison community based release after serving two years of the sentence, namely on 24 November 2007.

[50]

[33] I would therefore make the following orders:

[51]

(ii) allow the appeal to the extent of adding to the sentence imposed at first instance a recommendation that the applicant be eligible for post-prison community based release after serving two years of the term, namely on 24 November 2007.

[52]

[34] FRYBERG J: The respondent conceded that the sentence imposed in the District Court was manifestly excessive in relation to the date when the applicant will become eligible for post-prison community based release. We must therefore re-sentence the applicant.

[53]

[35] The applicant pleaded guilty to the following charges:

[54]

With the consent of the prosecutor, the sentencing judge was also asked to take into account 119 other offences consisting predominantly of burglary and unlawful use of a motor vehicle.[1]

[55]

[36] The circumstances of the offences are described in the reasons for judgment of Williams JA and I need not repeat them here. I agree with what his Honour has said about them, particularly the count of dangerous operation of a motor vehicle causing grievous bodily harm.

[56]

[37] The sentences which his Honour imposed were (using my own shorthand descriptions):

[57]

1. Burglary x 6 (each) Imprisonment 6 years 4 months concurrent

[58]

2. Dangerous driving causing GBH Imprisonment 1 year cumulative upon item 1

[59]

3. All other indictable offences (each) Imprisonment 18 months concurrent with each other and with item 1

[60]

4. Failing to stop and obstructing police Admonished and discharged on each

[61]

5. All other summary offences (each) Imprisonment 12 months concurrent with each other and with item 1.

[62]

The process by which his Honour arrived at these periods is described in the reasons for judgment of Williams JA.[2] He made no recommendation regarding post-prison community based release. He made certain declarations in relation to presentence custody which I shall discuss below.

[63]

[38] Before us, the applicant was unrepresented. He said that he had no complaint about what he described as the head sentence. By this he referred to the orders at items 1 and 2 in the preceding paragraph. It was not suggested by either party that we should interfere with those orders. Both sides approached the application on the basis that the only issue before the Court was the question of a recommendation in relation to post-prison community based release.

[64]

[39] In order to identify the point at which the applicant should become eligible for post-prison community based release it is helpful first to identify a notional head sentence or sentences. I am content to adopt the same approach as the sentencing judge. That involves fixing sentences for the burglary offences and the dangerous driving causing grievous bodily harm. We were not provided with comparative cases for burglary, but exercising my judgment as best I can, I would impose imprisonment for 11 years. The scale of the applicant's activities was quite breathtaking. I would impose a sentence of three years for the dangerous operation of a motor vehicle causing grievous bodily harm, to be served cumulatively. That produces a maximum period of imprisonment of 14 years. That period would reflect the applicant's total criminality. If one were considering actually ordering imprisonment of that duration, it would be necessary to look at it in the light of the totality principle. However, that principle is not applicable to the process of notional calculation. It is applied as a "last look", to ensure that the final result is not disproportionate or crushing.[3] Because I am presently undertaking this exercise only for the purpose of identifying the point at which the applicant should become eligible for post-prison community based release, it is unnecessary to embark upon a consideration of the difficulties involved in deciding whether that period should be a compound of cumulative sentences or imposed in respect of the burglary charges to reflect the total criminality of all charges.

[65]

[40] That is not the end of the hypothetical exercise. It is also necessary to consider whether some adjustment should be made to take account of mitigating circumstances. The mitigating circumstances in this case are considerable and unusually impressive. They are sufficiently described in the reasons for judgment of Williams JA. Together they warrant not only a recommendation for early eligibility for post-prison community based release, but also a reduction in the head sentence. Subject to the question of allowance for time already served, the period of imprisonment reflected in the notional head sentences should be 12 years. That would not in my judgment constitute a crushing head sentence, nor would it be disproportionate to the applicant's criminality. I would also recommend that he be eligible for post-prison community based release after serving 25 per cent of that period of imprisonment (in other words, after three years had been served), to further take account of the various mitigating circumstances.

[66]

[41] I should add that in my view it is usually preferable to recognise mitigating factors by a recommendation for early post-prison community based release eligibility rather than by reducing the head sentence.[4] The head sentence operates as an important element in general deterrence and the possibility of early release as a significant incentive toward rehabilitation. There are however cases where such an approach may not be appropriate. Examples of such cases are where the mitigating factors are unusually powerful and cases where a serious violent offence declaration is made under Part 9A of the Penalties and Sentences Act 1992 ("the Act"). No doubt there are others.

[67]

[42] At all material times s 161(1) of the Act provided:

[68]

"(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."

[69]

[43] If a court decides to give an offender credit for time spent in custody before the day of sentencing, it should ordinarily do so under s 161(1) of the Act, rather than by adopting the former practice of reducing a head sentence by double the amount of pre-sentence custody.[5] As McPherson JA has expressed it, "In the ordinary way ... I would expect the deduction envisaged by s 161(1) to be given effect."[6] When that is done, the prisoner obtains credit for the custody in respect of both the head sentence and the period which must elapse before he is eligible for post-prison community based release. It is however, well settled that a sentencing court is not obliged to proceed under s 161. Independently of that section it has a discretion to frame a sentence that takes all relevant matters into account. The section does not limit or exclude the general sentencing discretion to consider a period of pre-sentence custody as a factor which may operate in mitigation, whether by reducing the head sentence, or by accelerating the date for consideration for parole, or otherwise.[7]

[70]

[44] It has been suggested that in cases which otherwise fall within s 161(1), this or a similar power is also conferred by the last clause of s 161(1).[8] It is unnecessary to determine the correctness of that view. It is arguable that the clause is not intended to confer a power, but simply to limit the class of cases encompassed by the subsection. It is also arguable that the only form of order falling within the clause is one which at least partially negates the operative part of the subsection; for example, an order to the effect "that the period for which the prisoner was in custody between [date] and [date] is not to be taken to be imprisonment already served by the prisoner under the sentences imposed today."[9]

[71]

[45] The circumstances in which an offender may be held in custody for an offence for a period of time before he or she is sentenced are many and varied. Section 161(1) requires a court sentencing for an offence in such circumstances to embark upon an exercise in classification. It must determine whether "the offender was held in custody in relation to proceedings for the offence and for no other reason". There are only two logical outcomes of that process. Either the offender was so held or the offender was not so held. If it is the latter, s 161 can have no application to the sentence. In such circumstances the only way in which the custody can be given recognition is by the exercise of the general discretion described above. In such cases there is no statutory obligation to order that the custody not be taken to be imprisonment already served by the prisoner.

[72]

[46] If the outcome of the process is the former alternative, the judge has a discretion as to whether the section is to apply. The default position is in favour of its application: it applies unless the judge orders that it not do so. As Williams JA said in R v Guthrie:

[73]

"It was obviously the intention of the legislature in enacting s 161 that a declaration that time spent in custody should be counted as part of the sentence was a preferable approach to that previously adopted by sentencing judges of making a reduction from the notional head sentence to take account of time already spent in custody." [10]

[74]

If it is otherwise ordered (and probably even if it is not, although I have found no authority on the point), the judge has a choice whether or not to exercise the general discretion. If it is not otherwise ordered, s 161(1) operates according to its terms.

[75]

[47] In the present case it necessary to consider both the general discretion described above and s 161. Those matters become relevant not only in determining what is the appropriate recommendation regarding eligibility for post-prison community based release but also in assessing a declaration made by the sentencing judge. Those tasks are unusually complex.

[76]

[48] The periods of pre-sentence custody served by the applicant and the originating process which brought the charges in relation to which they were served before the Court were:

[77]

[49] A further complication was that the pre-sentence custody certificate provided to the District Court under s 161(4A) was acknowledged by both parties to be wrong.

[78]

[50] The final complication arose from the fact that the sentencing took place on 24 November 2005, only five days after some significant amendments to s 161 of the Act came into force. Those amendments applied regardless of whether the offences or convictions to which the section was to be applied occurred before or after the commencement of the amendments.[11] Until 19 November 2005, sub-ss 161(3) and (4) provided:

[79]

"(3) If an offender was held in custody in circumstances to which subsection (1) applies, the sentencing court must -

(a) state the dates between which the offender was held in presentence custody; and

(b) calculate the time that the offender was held in presentence custody; and

(c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence; and

(d) cause to be noted in the records of the court -

(i) the fact that the declaration was made and its details; and

(ii) unless the court otherwise orders under subsection (1), the fact that the declared time was taken into account by it in imposing sentence; and

(e) cause the chief executive (corrective services) to be advised of the declaration and its details.

(4) If -

(a) an offender is charged with a series[12] of offences committed on different occasions; and

(b) the offender has been in custody _continuously_12 since arrest on charges of the offences and for no other reason;

the time held in presentence custody must be taken, for the purposes of subsection (1), to start when the offender was arrested even if the offender is not convicted of the offence for which the offender was first arrested or any other offences in the _series_12."

[80]

[51] From 19 November 2005 those subsections were replaced by the following :

[81]

"(3) If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A), the sentencing court must, as part of the sentencing order -

(a) state the dates between which the offender was held in presentence custody; and

(b) calculate the time that the offender was held in presentence custody; and

(c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.

(3A) Subsection (3B) applies if -

[82]

(a) an offender was held in custody in circumstances to which subsection (1) applies (presentence custody); and

[83]

(b) the sentencing court orders that the time, or part of the time, the offender was held in custody is not to be taken to be imprisonment already served under the sentence.

[84]

(3B) The sentencing court must, as part of the sentencing order -

(a) state the dates between which the offender was held in presentence custody; and

(b) calculate the time that the offender was held in presentence custody; and

(c) declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.

(3C) If an offender was held in presentence custody and the sentencing court makes a declaration under subsection (3)(c) or (3B)(c), the sentencing court must cause the chief executive (corrective services) to be advised in writing of the declaration and its details.

(4) If -

(a) an offender is charged with a number[13] of offences committed on different occasions; and

(b) the offender has been in custody since arrest on charges of the offences and for no other reason;

the time held in presentence custody must be taken, for the purposes of subsection (1), to start when the offender was first arrested on any of those charges, even if the offender is not convicted of the offence for which the offender was first arrested or any 1 or more of the _number_13 of offences with which the offender is charged."

[85]

[52] Three features of the amendments are relevant for present purposes. First, the new sub-ss (3A) to (3C) gave a sentencing court a statutory option to order that time held in custody solely for the offence being dealt with is not to be taken as time already served under the sentence imposed (the former s 158 was repealed by the amending Act). Second, the reference to a "series" of offences in sub-s (4) was replaced by a reference to a "number" of offences. Third, the requirement in sub-s (4) for the offender to have been held "continuously" in custody was deleted. These changes appear to have been intended to eliminate the problems discussed and criticisms made in a number of cases in this Court.[14]

[86]

[53] How does s 161 apply to the pre-sentence custody described above?[15] First, it can have no application to period B. That was custody solely in relation to proceedings for offences which were not the subject of the sentencing proceedings. It did not answer the description in s 161(1) and consequently, s 161 had no application to it. It could not be declared under s 161(3), nor under s 161(3B). Second (as the respondent conceded), it undoubtedly applied to period C. All of the imprisonment during that period related to all of the offences before the court and to none other. It is in relation to the first period of custody, period A, that some difficulty arises.

[87]

[54] Period A involved 130 days in custody from 18 July 2003 until 24 November 2003. That custody was in respect of the charges included in indictment 1524/04, namely four counts of receiving, one count of unlawful use of a motor vehicle and the count of operating a motor vehicle dangerously causing grievous bodily harm. However, each of the counts for receiving in the indictment was charged as an alternative to stealing.[16] There is no evidence of the form of the charges at the time of arrest. There is considerable difficulty in determining the signification of the words "proceedings for the" in s 161(1), a determination which I think it would be necessary to make in order to resolve the applicability of the section to this period. The proper interpretation of those words has not been argued before us. It is inappropriate to decide whether the period of custody must be taken to be imprisonment already served under the subsection.

[88]

[55] It was plainly considerations such as these which led the sentencing judge to decide to exercise the general sentencing discretion in order to give recognition to all of the pre-sentence custody. That decision was plainly within the scope of his discretion. Indeed, it was, with respect, plainly the right decision.

[89]

[56] In exercising that discretion his Honour stated that he would reduce the head sentence by 20 months, the rounded total of the three periods of pre-sentence custody. There is no challenge to that aspect of the decision. Then he turned to the question of a declaration. He said:

[90]

"If it be thought to be necessary (it seems that that is one interpretation of the new section 161) I will declare, nevertheless, the times that you have spent in custody. I declare clearly that no time already served, as per the certificate Exhibit 15 or at all, should be regarded as time spent under the sentences imposed today.

But as I say, if it be thought that I need nevertheless to declare those periods, I declare as per the certificate (subject to its correctness, which seems to be certainly very questionable) the period 15th of April 2004 to the 1st of September 2004, 136 days and ... 18th of July 2003 to the 24th of November 2003 as informed by the Crown Prosecutor, that is 130 days. I observe that some of these periods relate to some charges and not others. ... I will further declare then the period from 5th of January 2005 to today's date, 324 days as being time spent in custody awaiting sentence but time which should not be regarded as time spent serving any of the sentences I impose today."

[91]

Perhaps optimistically he added, "I thank you for that, it is as well to have it all cleared up now as much as we can rather than everybody having to come back."

[92]

[57] His Honour's doubts about the correctness of the certificate were well founded. It contained a substantial error and an important omission. Unfortunately, those doubts have not been translated into the formal order of the court, which was:

[93]

"Declare the period (as per the certificate Exhibit 15) 15/4/04 until 1/9/04 namely 136 days and 5/1/05 to 6/4/05 (92 days) also the period 18/7/03 to 24/11/03 namely 130 days and 5/1/05 until 24/11/05 namely 324 days said to be time spent in custody awaiting sentence as time which should not be regarded as time spent serving any of the sentences imposed today, since all time has been deducted from the head sentence."

[94]

In my judgment that order is uncertain, confusing and has the potential to mislead the officers of the Department of Corrective Services. The effect of the reference to Exhibit 15 is uncertain; the period from 5 January 2005 until 6 April 2005 is referred to or included twice; and the reference to the period of 324 days as "said to be time spent in custody" is embarrassing. In my judgment the order should be corrected.

[95]

[58] What declaration should be made? Period C was undoubtedly time that the applicant was held in custody in relation to the proceedings for the offences and for no other reason. That time must be taken to be imprisonment already served unless the court otherwise orders. To give effect to the decision to exercise the general sentencing discretion and not to allow the time to be so counted, the Court could, in the exercise of its inherent jurisdiction, declare "that no time is taken to be imprisonment already served under any of these sentences." Is that enough, or must the Court also comply with paras (a) and (b) of s 161(3B)? That raises the question whether the recent amendments were intended to overrule the decision of this Court in R v Wishart and Jenkins.[17]

[96]

[59] It might be thought that the purpose of the recent amendments was to divide all cases where an offender was held in custody in relation to proceedings for an offence for which he is sentenced to a term of imprisonment, and for no other reason, into three categories: those where the time in custody is to be taken to be imprisonment already served under the sentence imposed; those where part of such time is to be so taken; and those where none of such time is to be so taken. It might be thought that in the first category the court was obliged to proceed in accordance with s 161(3) and in the second and third categories under s 161(3B). What stands in the way of that relatively simple interpretation is the use by the legislature in s 161(3A) of the expression "circumstances to which subsection (1) applies". Under conventional principles of statutory interpretation the legislature would be assumed to have been aware of the interpretation given to that phrase in Wishart and Jenkins, namely that it refers to the circumstances "to which subsection (1) applies and where the sentencing court has not otherwise ordered under that subsection".[18] If that decision is applied to s 161(3A) (and it is difficult to justify not applying it to that subsection if it is to continue to apply to s 161(3)), there is no scope for the application of s 161(3B). Indeed, on that basis it is difficult to think of any situation in which that subsection could be applied. Moreover, the addition in s 161(3) of the words "and the court has not made an order mentioned in subsection (3A)" seems to overcome the difficulty which gave rise to that decision. These are in my judgment considerable arguments in support of the view that the decision does not have application to s 161 as amended.

[97]

[60] It is inappropriate to determine such a matter in a case where there has not been argument on the point. The difficulty can be overcome if the declaration is worded in such a way as to comply with the requirements of s 161(3B) and a direction is given that the registrar do the things required of the court by s 161(3C). There is no problem in applying that approach in the case of a period of presentence custody not falling within the ambit of s 161, as is the case with period B; the inherent jurisdiction of the court is enough to do that. That approach also avoids the need to categorise period A. Even if the declaration is not required by s 161(3B) in some cases, it can be justified on the basis that it may assist officers of the Department of Corrective Services in administering the sentence, and also makes it clear that the court has not overlooked any of the presentence custody.

[98]

[61] I would therefore substitute the following declarations and direction:

[99]

"Declare that the applicant was held in pre-sentence custody between 18 July 2003 and 24 November 2003, a period of 130 days; between 15 April 2004 and 1 September 2004, a period of 140 days; and between 5 January 2005 and 24 November 2005, a period of 324 days: a total time in pre-sentence custody of 590 days.

Declare that no time is taken to be imprisonment already served under any of these sentences.

Direct that the registrar advise the chief executive (corrective services) in writing of these declarations and their details."

[100]

[62] Time spent in pre-sentence custody which is not taken to be time already served under a sentence may be relevant not only to the head sentence but also to the period which must elapse until eligibility for post-prison community based release. It is so in this case. As I have already said, in my judgment that period should in this case total three years.[19] Like the sentencing judge and Williams JA,[20] I would round the 590 days of pre-sentence custody to a period of 20 months. I agree with Williams JA that in the circumstances of this case the applicant should be given credit for the whole of that period.[21] There should be an order recommending that the applicant be eligible for post-prison community based release after serving one year and four months of the period of imprisonment imposed by his Honour. If it be thought necessary to specify a date on which such eligibility arises, that date should be 24 March 2007.

[101]

3. Set aside the declaration of the District Court relating to time spent in custody, and in lieu thereof declare and direct as follows:

[102]

"Declare that the applicant was held in pre-sentence custody between 18 July 2003 and 24 November 2003, a period of 130 days; between 15 April 2004 and 1 September 2004, a period of 140 days; and between 5 January 2005 and 24 November 2005, a period of 324 days, a total time in presentence custody of 590 days.

Declare that no time is taken to be imprisonment already served under any of these sentences.

Direct that the registrar advise the chief executive (corrective services) in writing of these declarations and their details."

[103]

4. Add to the sentence of the District Court: "Recommend that the applicant be eligible for post-prison community based release after serving one year and four months of the foregoing period of imprisonment, namely on 24 March 2007."

[104]

[1] It appears that the requirements of Penalties and Sentences Act 1992 (Qld), s 189(2)(b) were not complied with, but nobody noticed that omission. No point regarding it is taken on this appeal.

[105]

[2] Paragraph [22 & 23] of his Honour's reasons for judgment.

[106]

[3] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346.

[107]

[4] R v Moss [1999] QCA 426.

[108]

[5] R v Holman [1994] QCA 110.

[109]

[6] R v Kunst [2002] QCA 400; [2003] 2 Qd R 98 at p 100.

[110]

[7] R v Jones [1997] QCA 132; [1998] 1 Qd R 672 at p 675; R v Skedgwell [1998] QCA 93; [1999] 2 Qd R 97 at pp 99-100.