R v Holman [1994] QCA 110

At the time when he was sentenced, the prisoner had been held in custody for 17 months in relation to the proceedings for the offences for which he was sentenced and for no other reason. In the course of his sentencing remarks, the judge said:

"I take into account that you have served the period to which I have already made reference. Using a multiplier of two, which seems to be the accepted arithmetic to apply to these sorts of situations, that produces a period of about two years nine months or thereabouts which I should regard that you have already served of any sentence."

His Honour then went on to impose the sentences earlier referred to.

It is plain from what was said that it was intended to impose sentences commencing from the date of sentencing and operating prospectively, and so much was not disputed in this Court. Further, it was accepted that, by virtue of subsection 161(1) of the Penalties and Sentences Act, that objective was not achieved. The Court was candidly informed by counsel who represented the Attorney-General and the Director of Prosecutions that this had not been appreciated until after the prisoner's application for leave to appeal; hence, the Attorney-General's application for an extension of time.

At the request of counsel for the prisoner, the Court ruled on that application in the course of the hearing. Although such applications are usually only granted in exceptional circumstances with an adequate explanation for the delay, the time was extended in this instance to allow an obvious error to be corrected and the position to be regularised. However, the Court indicated that it would not increase the prisoner's sentences on the Attorney-General's application beyond that which the sentencing judge had intended to impose.

Before proceeding to consider the sentences further, it is desirable to say something of sections 158 and 161 of the Penalties and Sentences Act, which were criticised in R. v. Wishart and Jenkins (C.A. Nos 275 and 276 of 1993, unreported judgment delivered 21.12.93). We have set out only so much of the sections as are needed to understand our comments.

(ii)has been in custody in relation to proceedings for the offence and for no other reason; and

(b)the court sentences the offender to imprisonment for the offence;

the court may order that the term of the imprisonment is to have effect on and from the day the offender was arrested.

(2) If subsection (1)(a) applies to an offender, the sentencing court must -

(a)state the dates between which the offender was in custody in relation to proceedings for the offence and no other reason; and

(b)calculate the time that the offender was in custody in relation to proceedings for the offence and no other reason; and

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

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

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

(e)cause the Commission to be advised of the declaration and its details.

Time held in presentence custody to be deducted

161.(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.

(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

(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 Commission to be advised of the declaration and its details.

(5) If the sentencing court is satisfied that the time declared under subsection (3) was not correct, it must -

(c)cause the Commission to be advised of the amendment.

It difficult to understand the object of section 158, why it is needed or when it should be implemented. Although subsection 161(5) is incomprehensible, section 161 otherwise establishes a fair, cohesive scheme. Especially if subsections 158(2) and 161(3) are interpreted in accordance with R. v. Wishart and Jenkins, referred to further below, the confused alternative course offered by section 158 adds nothing of practical value.

Although the language is different, subsections 158(1) and 161(1) have the same starting point; namely, an offender who is convicted and sentenced to imprisonment for an offence in respect of which he or she has been in custody prior to sentencing. Under subsection 158(1), "the court may order that the term of the imprisonment is to have effect on and from the day the offender was arrested". Presumably, such an order would not ordinarily be made unless the date of arrest was the date when the offender was placed "in custody in relation to proceedings for the offence and for no other reason" and the custody had since been continuous, although there are no such express limitations in the subsection.

Certainly, subsection 161(1) is not so limited. Under it, "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." This provision is not in any way related to the date of arrest, is apposite to deal with broken periods of custody, eg. prior to a grant of bail or after bail has been revoked, and, in contradistinction to subsection 158(1), does not require an order of the sentencing court for its operation but takes effect "unless the sentencing court otherwise orders."

Nor does subsection 158(2) add anything of consequence. Although the language used varies slightly, paragraphs (a) to (e) of each of subsections 158(2) and 161(3) are identical in effect. Further, each operates in what are effectively the same circumstances: subsection 158(2) only when an order has been made under subsection 158(1) and subsection 161(3) only when an order has not been made under section 161(1): R. v. Wishart and Jenkins. Since there will seldom be a need for an order under subsection 158(1) if section 161 is correctly implemented, this will largely obviate the difficulties which section 158 would otherwise inevitably cause. It is sufficient to mention two further points. One is that, unlike subsection 158(1), subsection 158(2)(c) does not appear to limit the court's power to making an order "that the term of the imprisonment is to have effect on and from the day the offender was arrested". More importantly, subsection 158(2)(d)(ii) is based upon an erroneous assumption that an order made by the sentencing court under subsection 158(1) would be the opposite of the order for which that subsection provides.

In the present matter, no attempt was made to implement section 158. We agree with that course. In our view, neither section 158 nor the former practice of reducing a head sentence by double the amount of presentence custody should ordinarily be adopted. The latter course led to the error in the present case. If subsection 161 had been used, as it should have been, the sentencing judge would have had the option of imposing the head sentences of 3 years' imprisonment and directing that the period of presentence custody not be taken to be imprisonment already served under the sentence, or of setting a head sentence of approximately 5 years 9 months in respect of each of the breaking and entering and burglary counts and then taking the steps required by subsection 161(3). This would have given the prisoner full credit for the time already spent in prison, which would in turn have been taken into account in determining when the prisoner should be considered for release on parole.

In R. v. Wishart and Jenkins, there were two judgments delivered, each of which expressed an opinion with respect to the implementation of section 161. We have taken the occasion of this unanimous judgment to restate the position for the future.

To achieve backdating under section 161, the following orders are necessary:

"(a)The dates between which the offender was held in presentence custody are and .

(c)That period is declared to be imprisonment already served under the sentence.

(d)The registrar is to inform the Commission of the content of these orders.

Counsel who appeared before us were agreed that the first option was preferable, and the submission that the sentences imposed on the prisoner were manifestly excessive was not pressed. More specifically, it was conceded that the head sentences imposed were within the permissible range, as had been accepted before the sentencing judge, and that the only divergence between what had then been submitted for the prisoner and the course adopted by the sentencing judge was that he had not made a recommendation that the prisoner "be eligible for parole at some six or twelve months from now", as requested. Since the prisoner will, in the ordinary course, be eligible to be considered for parole 18 months after he was sentenced on 3 December 1993, his counsel acknowledged that, in the circumstances, it could not be established that the sentences imposed on the prisoner were manifestly excessive.

Accordingly, the prisoner's application for leave to appeal is refused. The Attorney-General's appeal is allowed to the extent that it is ordered pursuant to subsection 161(1) of the Penalties and Sentences Act that the period for which the prisoner was in custody prior to 3 December 1993 is not to be taken to be imprisonment already served by the prisoner under the sentences imposed that day.

2.Attorney-General's application for extension of time in which to appeal granted.

3.Attorney-General's appeal is allowed to the extent that the time held in custody prior to 3 December 1993 is not to be taken to be imprisonment already served under his sentence.

4.The sentences otherwise imposed below are confirmed.

CATCHWORDS:CRIMINAL LAW - sentence - housebreaking - burglary - sentence of three years for each of the breaking and entering and burglary counts - 16 months spent in presentence custody - whether manifestly excessive - application of ss.158 and 161 Penalties and Sentences Act 1992.

Counsel:Mr M. Byrne Q.C. with him, Miss v. Cvetkivksi for the Crown

Mr S. Herbert Q.C. with him, Mr A. Rafter for the applicant/respondent