R v Jennings [1998] VSCA 69

274. Before us it had been common ground that a declaration ought to have been made under s.18(4) in relation to Jennings, though not for 390 days. Although in custody since 6 January 1997, on 4 March Jennings appeared in the Magistrates' Court at Melbourne and was then sentenced to 44 days' imprisonment for exceeding the prescribed blood alcohol content when driving and driving while disqualified. That sentence expired on 16 April. On 9 May 1997 his parole was cancelled by order of the Adult Parole Board and Jennings commenced serving the unexpired portion of that sentence in respect of which the parole had been granted and which, it may be added, was still not fully served by the time he was sentenced on 30 January 1998. Section s.16(3B) of the Sentencing Act provided that "unless otherwise directed by the court because of the existence of exceptional circumstances" the sentences imposed on 30 January should be served cumulatively on the term which Jennings was serving in consequence of the cancellation of his parole, but the trial judge found "exceptional circumstances". That appears to have led to her Honour imposing sentences on 30 January which were to be served concurrently with the existing, unexpired sentence.

277. On the basis of the foregoing, Jennings was none the less entitled to some declaration in respect of pre-sentence detention. The period spent in custody from 6 January 1997 to 3 March 1997 was 57 days and from 17 April to 8 May 1997, 22 days. On 30 January 1998 he was therefore entitled to a declaration under s.18(4) of the Sentencing Act that 79 days should be reckoned as a period of imprisonment already served under the sentences being imposed. From 9 May 1997 he was, however, serving the unexpired portion of an earlier sentence and it was common ground, it seems, that no credit was due to him for that under s.18(4) - apparently because the applicant could not at that time be regarded as "in custody in relation to proceedings for" the offences for which he was sentenced on 30 January 1998. (The sentence which he was required on 9 May 1997 to continue serving was entirely unrelated.) By the same token that Jennings had had his parole cancelled and was being detained under an earlier sentence was not to be ignored when he came up for sentence on 30 January: see R. v Brock (Court of Appeal, 22 February 1996, unreported) at p.7 and cases there cited. The sentencing Judge, however, did take into account, in fixing the new term of imprisonment, that Jennings was already in gaol for earlier offending. Further, as I have said, in this instance her Honour was prepared to impose sentences which were to be served concurrently, not cumulatively, with the earlier.

280. Thus far there was no difficulty. The failure of the trial Judge to make a declaration that Jennings had already served 79 days by way of pre-sentence detention had been one of the errors raised for correction by this Court on Jennings' application, without opposition from the Crown. But the further difficulty perceived by the applicant was this: that when delivering judgment on 2 June this Court made no addition to the 79 days for the 123 days Jennings had spent in custody between 30 January (when he was sentenced in the County Court) and 2 June, when he was re-sentenced by us for the purpose of correcting the relatively minor errors made below. Counsel submitted (and properly so) that if our re-sentencing of the applicant meant that his sentences should be taken to run not from 30 January but from the date of our judgment, 2 June 1998, Jennings must be worse off - and by reason only of his having sought to appeal - by the 123 days spent in gaol between 30 January to 2 June, unless we were willing either to add those further 123 days to the 79 days otherwise declared as pre-sentence detention or, if we considered that s.18(4) did not apply for whatever reason, to reduce by 123 days the sentences we had announced, and the non-parole period we had fixed - in the manner adopted, for example, in R. v. Petherick (No.1) (Court of Appeal, 3 April 1997, unreported), R. v. Petherick (No.2) (Court of Appeal, 11 May 1998, unreported).

283. Now, it had never been our intention that Jennings should be worse off merely by reason of his having sought leave to appeal and, as soon as counsel raised the matter, we assured the applicant of that and told him that we would fashion our orders so as to make it plain that in respect of the total effective sentence he would be no worse off on 2 June than on 30 January. To that end, on 4 June we delayed authentication of the orders we had pronounced on 2 June and adjourned to consider how best to reach the result which all agreed should be achieved.

288. On one level it is perhaps surprising that counsel raised the matter because it is difficult to see that the sentences we imposed could be considered to run from 2 June, and not 30 January as before. As the reasons we gave demonstrated, no error of principle had been established below and so one would have thought that our re-sentencing would be understood as merely standing in place of - amending, as it were - the sentences which had been shown to be defective in point of form. It was clear enough how the 79 days had been calculated - as a period ending on 9 May 1997 when the applicant's parole was cancelled and he was required to serve the unexpired portion of his existing but unrelated sentence. It was also clear, I should have thought, especially in view of the nature of the errors being corrected, that all the sentences we imposed or re-imposed on the individual counts (subject of course to the various orders for cumulation inter se), and importantly the total effective sentence of seven years, were to be calculated from 30 January 1998, not 2 June. After all, we were not disturbing that total effective sentence; we were but altering some of the individual sentences on the separate counts in order that they might add up to the total effective sentence which the trial judge had so plainly stated it was her intention to impose as from 30 January 1998. And so long as the sentences which together made up a total effective sentence of seven years were to be taken to run from 30 January, there could be no need for us to add to the 79 days of pre-sentence detention which had been calculated up until that date. Indeed, it would have been wrong to do so and, for reasons I shall give, it would have been misleading.

291. Had it been our intention to re-sentence with effect only from 2 June 1998, so that, subject only to the various orders made for cumulation, the sentences then announced were to be calculated to run from 2 June and not earlier, then a declaration of pre-sentence detention up until 2 June - that is, of 202 days, being 79 days plus the further 123 days from 30 January - would have been apt to see that the applicant was not disadvantaged merely by his having sought leave to appeal. Subject to that, whichever of the two courses was followed, the result for the applicant was the same; the time to be spent in prison under the sentences would not have been extended by virtue only of our re-sentencing. Therefore it cannot have mattered in the end whether our sentencing was to be taken as running from 30 January (if with a declaration of pre-sentence detention to 30 January) or 2 June (if with a declaration of pre-sentence detention up until 2 June). Presumably a declaration of the latter sort could have been justified in terms of s.18(1) on the ground that while the applicant's time in custody since 30 January was not perhaps "custody in relation to proceedings for" an offence (that is, the trial) it was none the less "custody in relation to ... proceedings arising from those proceedings" (that is, the application for leave to appeal). It is no longer necessary under s.18(1) that the prisoner should have been in custody as described "and for no other reason". Those words were removed from s.18(1) by s.11(1) of the Sentencing and Other Acts (Amendment) Act 1997 in response to the problem of doubly warranted detention canvassed in R. v. Renzella [1997] 2 V.R. s.9(2).

294. It is implicit in the foregoing that on 2 June last this Court had the power to follow either of the two courses that I have just described, that is that the sentences we imposed (or in large part re-imposed) could have been so arranged as to run either from 30 January or from 2 June, according to what we thought best suited the case. By s.568(4) of the Crimes Act 1958 , if on appeal against sentence the Court of Appeal thinks that a different sentence should have been passed or a different order made, it is required to quash the sentence passed at trial -

"... and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed or made ...".

Plainly, then, the new sentence or the new order takes effect "in substitution" for the order below, but, with respect, I do not read that as dictating the date from which the substituted sentence shall be calculated to run - nor, if I may say so, as fixing the date on which the substituted sentence shall be taken to have been passed (or "imposed", which is the same thing). According to s.17 of the Sentencing Act 1991 , and subject of course to any cumulation directed by order or the Act itself, "a sentence of imprisonment commences on the day that it is imposed" if the offender is then in custody; otherwise, it is the day on which he is apprehended in respect of the sentence. Putting aside the latter, which is but a gloss on the former, in the ordinary course (and subject to cumulation postponing commencement) a sentence of imprisonment will accordingly be calculated to run from the date on which it is imposed. Were it not for s.568(4), I suppose that a sentence passed by the Court of Appeal would be taken to be imposed on the day when the Court of Appeal formally makes its sentencing orders and to commence to run accordingly from that day unless otherwise directed (either expressly or by necessary implication), and I do not read s.568(4), in authorising only a sentence in substitution for that passed below, as requiring an earlier date of imposition (and hence under s.17 an earlier date of commencement). What is required by s.568(4) of the Court of Appeal when allowing an appeal against sentence is the imposition by it then of that sentence which it "thinks ought to have been passed" in the first place. But that result can be achieved, in practical terms, in more ways than one - as I have just said was possible in the present case.

299. If, as I suggest, s.584(4) does not restrict or confine the Court in that regard, in every case it must, I think, be a matter for the Court of Appeal so to frame its orders as to produce the desired result. In the ordinary course it should be apparent from the very terms of the sentence passed by the Court of Appeal the date from which it should be calculated to run. For example, if the Court of Appeal, on appeal by a prisoner who has been sentenced to seven years' imprisonment, quashes that sentence and substitutes therefor imprisonment of five years, that period of five years will be understood as replacing the seven years without any alteration of the date from which the sentence is to be calculated as running, unless of course there is reason to suppose otherwise from the terms of the order attending the imposition of the sentence. (As will be seen, these days there is no suspension, under s.579(3) of the Crimes Act, of time running under the sentence pending determination of the appeal.) It will be much the same if on appeal the Court of Appeal were to reduce (or indeed increase) an existing period of disqualification; time would be seen readily enough as running still from the time when that disqualification was first imposed (except perhaps if there had been a stay pending appeal: compare Frugtniet v. Secretary of the Department of Justice, Court of Appeal, 24 April 1996, unreported). In other cases it may be obvious from the terms of the sentencing disposition that the order of the Court of Appeal will not only take effect when made (albeit in substitution for the sentence under appeal); any calculation of time will also run from that date. So it will be (in the absence of something in the appellate order requiring a different result) if the Court of Appeal imposes a sentence of imprisonment when none was imposed below, or if it puts in place a community based order in place of a sentence of imprisonment, or if it attaches, for the first time, a period of disqualification which can have had no effect before the making of the order on appeal. If in such cases there is doubt, or room for doubt, the Court of Appeal will surely act to express its sentencing intention unequivocally - just as we are being invited to do on this occasion.

302. In writing the foregoing I am conscious that my view differs significantly from that of Brooking, J.A. who, as I apprehend it, regards s.568(4) as requiring (in the absence of some other statutory provision of relevance) that the sentence passed, or imposed, by this Court shall be taken to have been passed, or imposed, on the day when the sentence which is under appeal was passed, or imposed. In this instance, my differing on the interpretation of s.568(4) occasions no difference in result so far as concerns the commencement of the sentences in question; for, as I have said, it was clearly our intention on 2 June that the sentences we substituted should be reckoned as commencing on 30 January, and not 2 June. I have canvassed the operation of s.568(4) because I see it as leaving the Court of Appeal free to frame its orders to commence either on the later date or the earlier, as best meets the justice of the case, and because that provides the context in which I approach the only issue now at stake, that is, the proper declaration under s.18(4) in this instance. My view on that issue may be put shortly thus: that declaration depended upon whether the sentences we imposed were to be reckoned as commencing from 30 January or from 2 June. As it is agreed by all members of the Court that the sentences we pronounced on 2 June were to be taken to commence on 30 January, not 2 June, I think it follows that the only appropriate declaration under s.18(4) was of the relevant days in custody before 30 January, not 2 June - that is, 79 days.

305. For some years now it has been common for the appellate court, be it the former Court of Criminal Appeal or this present Court of Appeal, to declare pre-sentence detention up until the date of its own order. Previously (as the comprehensive researches of Brooking, J.A. have shown) it was not uncommon to find no declaration at all, either at first instance or on appeal, or alternatively to find no new declaration made on appeal. The absence of any declaration or of any new declaration seems to me consistent with the view that the sentence being imposed on appeal in such a case, taking effect in substitution for one passed below, was to be calculated as running from the date when sentence was first passed, that is at first instance; where that is so, I suggest, the only declaration of pre-sentence detention that is appropriate is a declaration ending with the date when sentence was first imposed: see for example, D.P.P. v. Wingate (Court of Criminal Appeal, 5 October 1987, unreported) at p.11 (no declaration made), and see the explicit orders made in R. v. Redwan (Court of Criminal Appeal, 5 May 1988, unreported) at p.7. On the other hand, where (as is now more usually so) the Court of Appeal declares pre-sentence detention up until the date of its own order, which in such a case will be for a term of imprisonment, it is that very declaration which will serve to make it plain (in my opinion) that the term of imprisonment being imposed by the Court of Appeal is to be calculated as running, not from the date when sentence was passed below, but from the date of the Court of Appeal's own order - or in the language of s.17, from "the day that it [the sentence] is imposed" - notwithstanding that the new sentence takes effect in substitution for the sentence under appeal.

308. In a case like the present the result for the prisoner is not altered by the adoption of the one course or the other (as I hope I have already demonstrated) provided only that the date on which the substituted sentence begins to run is also the date beyond which time in custody is not included in a declaration under s.18(4). A declaration under s.18(4) of time in custody ending on 2 June would have been inconsistent with the sentences we imposed commencing to run from 30 January and can only have served therefore to indicate that the sentences which we pronounced on 2 June were to commence to run from 2 June. That was not our intention, which is why I suggested earlier that it would have been misleading in this case to make a declaration of pre-sentence detention calculated to 2 June. As we intended that our substituted sentences should run from 30 January, the proper declaration under s.18(4) could not include any time in custody beyond 30 January. As I apprehend it, when a sentence of imprisonment is imposed and a declaration is made under s.18(4) of the time in custody which is to be reckoned as time served under the sentence, the prison authorities deduct the one (the number of days in the declaration) from the other (the time to be served under the sentence running from 30 January) in order to determine the release date. So in this instance if a declaration was made of time in custody ending on 2 June, when the substituted sentence was to run from 30 January, that deduction of the one from the other in order to determine the release date must have led to double crediting of the time on and between 30 January and 2 June.

311. The foregoing depends very much upon the view, which I take, that s.18(1) is concerned only with what is commonly called "pre-sentence detention". I regard that as a convenient and accurate shorthand; for, as I read it, s.18(1) is dealing with time spent in custody before the commencement of the sentence and which (by virtue only of the statute) is to be "reckoned" as time already served under the sentence. Time in custody after commencement of sentence is surely time served under the sentence, but it is difficult to see how time in custody before the commencement of the sentence could be so reckoned, were it not for statute - and hence s.18(1). Time in custody before the imposition of sentence, if to commence before its imposition, might occasion less difficulty but I do not think that s.18 is directed to sentences which commence on a date before they are imposed (as may happen on appeal) if only because, in so far as it is concerned with courts, s.18 is surely concerned principally with the trial court (and only incidentally with an appellate court) and by virtue of s.17 a sentence of imprisonment imposed at first instance is to commence when imposed, not earlier. In my opinion, "pre-sentence" and "commencement of sentence" are the correlatives so that, apart from the effect of the statute itself, time in custody pre-sentence (before it has commenced) is not time in custody under the sentence (once it has commenced). Section 18 requires that pre-sentence detention, in certain circumstances, "must" unless otherwise ordered "be reckoned as a period of imprisonment already served under the sentence" and it is to that end that s.18(4) obliges the sentencing Court (and thus the Court of Appeal when acting in place of the sentencing Court) to make the relevant declaration. Sometimes, for one reason or another, s.18(1) does not apply to time spent in custody before sentence is passed and in such cases some other course must be followed if the prisoner is to have such time brought to account. For example in Petherick the term of imprisonment ordered by the Court of Appeal was shortened by arithmetical calculation; in other cases a reduction is made more generally: R. v. Heaney (Court of Appeal, 26 March 1996, unreported) at p.6 per Brooking, J.A., Brock, supra. But whatever the course followed, pre-sentence detention (or detention in custody before the commencement of sentence) should be understood in concept as standing in contrast to time served under the sentence (once the sentence has commenced); for, as I read it, that is the premise upon which s.18(1) proceeds.

316. What I have just said seems to me confirmed by the legislative history of s.18. I have mentioned already Mr. Gyorffy's memorandum, which sketched for us the history of both s.17 and s.18 of the Sentencing Act 1991 , and much of what follows is based on that memorandum. I deal first with s.17 in order to establish the context in which the introduction of the precursor to s.18 must be understood.

319. At common law, it appears, a sentence of imprisonment imposed by a Court dealing with an indictable offence was deemed to commence on the first day of the sittings of that Court at which sentence was passed: Whitaker v. Wisbey (1852) 6 Cox C.C. 109, R. v. Judge Frederico, ex parte Attorney-General [1971] VicRp 51; [1971] V.R. 425, at 427 per Gowans, J. and 431 per Little, J. Though dubbed "a fiction", it may well have been the case that those who were accused but not in custody had to surrender themselves on the first day of the assizes at which the trial was listed to begin; for example, bail was granted only until that day: Archbold, Criminal Law and Practice (32nd ed., 1949) p.74, (23rd ed., 1905) p.114. Be that as it may, the "fiction" was transplanted to the Colony of Victoria by means of The Gaols Act 1887 s.15 which provided that a sentence of imprisonment imposed by the Supreme Court or Court of General Sessions "shall date from" the first day of the relevant sittings and all other sentences of imprisonment from the date of the signing of the warrant of commitment or if the offender was not then in custody from the time of his arrest. The Gaols Act 1887 s.15 became in due course the Gaols Act 1890 s.29 (see also Crimes Act 1890 s.488), Gaols Act 1915 s.20(1), Gaols Act 1928 s.20(1) and Gaols Act 1958 s.18(1).

322. The 1958 provision was, however, recast altogether by s.2 of the Gaols (Commencement of Sentences) Act 1966 (Act No.7469) which substituted a new s.18(1) of the 1958 Act: Hansard (Legislative Assembly, 9 November 1966) vol.284 pp.1530-1. In respect of sentences passed by the Supreme and County Courts, the new s.18(1), apart from allowing that the court might otherwise order and clarifying which was the relevant sittings, confirmed the rule that a sentence of imprisonment "shall commence upon and be reckoned [sic] from" the first day of the sittings of the court imposing the sentence. Any other sentence was to commence on the day on which it was imposed if the offender was then in custody; if not it was to commence on the day of his apprehension under warrant of commitment issued in respect of that sentence. In 1970, the Gaols Act 1958 was repealed by the Social Welfare Act 1970 (as it was then called) in which s.122 replicated s.18 of the 1958 Act as amended. Subsequently s.122 was replaced by s.14 of the Penalties and Sentences Act 1985 , at which time subs.(1) was simplified by the dropping of all reference to the first day of the sittings, the same rule being adopted for sentences in all jurisdictions, which was in substance the rule now found in s.17(1) of the Sentencing Act 1991 .

325. Until the Parliament intervened in 1975, time in custody before conviction and sentence was brought to account by the sentencing Judge in a general way: R. v. Clune (No.2) [1975] VicRp 73; [1975] V.R. 737. On 15 September 1971, and thus while s.122 of the Social Welfare Act 1970 held sway, the Hon. J.W. Galbally Q.C. moved the second reading speech of a private member's bill called the Crimes (Sentences) Bill designed to give a prisoner credit for any time spent in custody if time was not otherwise running under the sentence. The proposals in clause 4 of the bill were referred to a Statute Law Revision Committee which reported to Parliament in March 1974 (Report on Clause 4 of the Crimes (Sentences) Bill 1971, 12 March 1974) and the result was a government bill introducing s.202A into the Social Welfare Act 1975 : see Social Welfare (Amendment) Act (Act No.8701) s.4. It had been the view of an earlier committee (reporting in 1968) that the courts should be empowered to backdate sentences to recognise time in custody before sentence was imposed: Report of the Statute Law Revision Committee on Arrest without Warrant, 14 November 1968, para.140. It was the proposal of Mr. Galbally in 1971 that time spent in gaol before trial should be used to reduce (I think arithmetically) the length of sentence otherwise to be pronounced: Hansard (Legislative Council, 15, 29 September 1971) vol.303 pp.464-5, 730-1. Neither of these solutions was adopted in 1975.

328. Instead, on the recommendation of the committee in 1974 (Hansard (Legislative Assembly, 19 March 1975) vol.321 p.4279), it was provided by s.202A that where a person was convicted of an offence, time spent in custody "in relation to proceedings for that offence or proceedings from which those proceedings arose" should "be reckoned as a period of imprisonment or detention already served by that person under the sentence". This avoided any backdating of the sentence pronounced (compare R. v. McHugh [1985] 1 N.S.W.L.R. 588); it also avoided in the main any reduction in the length of sentence otherwise pronounced (a step which could have prejudiced the fixing of minimum terms; see also the warnings later given by the Full Court against attempting such reduction in R. v Tippett (17 November 1989, unreported) at p.7 and R. v. Roderick (17 April 1991, unreported) at p.7, as re-inforced in R. v. Reed [1992] VicRp 79; [1992] 2 V.R. 484 at 485-6). Instead what s.202A justified in the ordinary case was an administrative reduction in the time actually spent in prison under the sentence once imposed. All three solutions, however, appear to me to have proceeded upon the sort of distinction that I have suggested underlies s.18 of the Sentencing Act 1991 , namely a distinction between time in custody before sentencing and time in custody after sentencing.

331. To complete the history of s.18: s.202A of the Social Welfare Act 1970 (later renamed the Community Welfare Services Act 1970 and then the Community Services Act 1970 ) became, in time, s.16 of the Penalties and Sentences Act 1985 , when the wording was simplified and the provision made more general. Section 16 was the immediate precursor to s.18 of the 1991 Act (which, as already mentioned, was amended slightly in 1997 to meet the problem of doubly warranted detention).

334. Reference should be made at this point to subs.(4) of s.202A. (Subsection (4) became in time, with some changes, s.16(4) of the Penalties and Sentences Act 1985 and s.18(4) of the Sentencing Act 1991 ). Section 202A required that the time in custody, identified in sub-s.(1), "be reckoned as a period of imprisonment or detention already served ... under the sentence". By sub-s.(4), the sentencing Court was empowered, though not obliged, to make a declaration of that period which was to be so reckoned, a declaration that might be made if the Court was "satisfied by information on oath". If such a declaration was made two things were then to be noted on the record: first, by paragraph (a), the making of the declaration and its particulars and, secondly, by paragraph (b), "whether or not the period so declared was taken into account" in fixing the term of the sentence imposed "or remains to be deducted from the sentence passed". The substance of this second was repeated through successive versions of the section though it made little sense because the scheme of the section was for the declaration to be made without reduction in the length of the sentence pronounced - and it would always be the case that, if a declaration was made, the period identified thereby would "remain to be deducted from the sentence passed" administratively (in which event subs.(6) was called into play). When the inconsistency of paragraph (b) was pointed out in R. v. McGrath (Court of Criminal Appeal, 15 September 1992, unreported) the then s.18(4) was amended to remove paragraph (b): Sentencing and Other Acts (Amendment) Act 1997 s.11(3). Since then the subsection has required only the noting of the making of the declaration and its contents.

337. Notwithstanding that s.202A(4) of the Social Welfare Act 1992 existed to empower the sentencing court (and thus an appellate court when re-sentencing) to make a declaration of pre-sentence detention which was to be reckoned as time served under the sentence subsequently imposed, courts were advised that ordinarily the task of calculating such detention to go in reduction of time to be served under the sentence was best left to the prison authorities. This was said by the Court of Criminal Appeal as late in the day as on 27 March 1992: R. v. Reed at 486-7. That advice was in part the product of the complicated regime then in place of remissions (which perhaps had been one of the reasons why Parliament had in the first place preferred to adopt the system of "reckoning" which was put in place by s.202A(1), instead of Mr. Galbally's suggestion of reducing the length of the sentence actually pronounced). And while remissions lasted, so did subs.(4) as permissive only. But when remissions were abolished, which was achieved as from 22 April 1992 (shortly after Reed) by the Corrections (Remissions) Act, subs.(4) was altered too, to make it for the first time obligatory for the court to make a declaration about pre-sentence detention. It was so enacted by s.18(4) of the Sentencing Act 1991 which also came into force on 22 April 1992. The fact that it was not previously obligatory to make a declaration about pre-sentence detention may perhaps account for much of the variation in practice to which Brooking, J.A. refers. It may also, to some extent at least, account for why since 1991 it appears to have become more common for this Court on appeal to make a declaration of pre-sentence detention up until the date of this Court's order.

340. Finally in relation to s.202A, it remains to mention that when first enacted as part of the Social Welfare Act 1970 , the section referred, inter alia, to time during which a person sentenced for an offence -

"... was held in custody in a prison, police gaol, watch-house, lock-up, youth training centre, or reception centre on arrest, remand, committal for trial, or awaiting the determination of an appeal ..." [Emphasis added]

Subsection (1) then continued with these words, "in relation to proceedings for that offence or proceedings from which those proceedings arose", but this expression should be taken to qualify "held in custody" rather than the place of or the immediate occasion for that custody - a reading which is confirmed, to my mind, by the simplified version of s.202A which was s.16 of the Penalties and Sentences Act 1985 . But that said, the inclusion of the reference to custody pending appeal needs consideration; for although most of the words quoted above from s.202A(1) were dropped when the section was re-enacted as s.16 of the 1985 Act, the concern about time in custody pending appeal does bear, I think, upon the question of the date on which a sentence imposed on appeal should be taken to commence.

345. When Mr. Galbally introduced his private member's bill in 1971, he was concerned that time spent in custody before conviction and, as well, time spent in custody after conviction and pending appeal should go to the credit of the prisoner. Although the mechanism adopted was different from that suggested by Mr. Galbally, the same concern was reflected in the speech of the Minister when the bill to introduce s.202A was read a second time in 1975. Yet on neither occasion, in 1971 or 1975, nor (which is perhaps more notable) in the 1974 report of the Statute Law Revision Committee which led to the introduction of the measure, is there any specific reference to the reason why time in custody between conviction and appeal was not already counted as time served under the sentence. It was surely not thought to be the product of s.579(3) of the Crimes Act 1958 (of which more anon) because no mention is made of that section in the Debates or in the Committee's Report and if s.579(3) had been the source of the problem in relation to time in custody after conviction and pending appeal, a short amendment to s.579(3) would have been the simple remedy. It seems then that Parliament, and indeed the Committee, must have been acting on the view that a sentence imposed on appeal, whether or not in substitution for a sentence imposed below, commenced to run from the time of its imposition on appeal, or perhaps from the first day of the sittings of the appellate court (reflecting the provision then made by s.122 of the Social Welfare Act 1970 ). Be that as it may, it can be said with some confidence that if first the Committee and then Parliament saw the need to make specific legislative provision for the case of time spent by the prisoner in custody between the passing of sentence by the trial court and the determination of an appeal by the appellate court, they were certainly not of opinion that a sentence imposed on appeal ran from the date on which the sentence under appeal was imposed below or had commenced to run. Had that been their opinion, there would have been no need to provide for time in custody pending appeal; for, being time spent in custody after sentence was first passed, that must have counted as time served under the sentence, whether it was the sentence imposed at trial and commencing on the first day of the sittings or the sentence imposed on appeal, if commencing as did the sentence imposed at first instance.

348. I turn now to the last of the legislative provisions that might be thought to bear, more or less directly, upon the present problem. I mean s.579(3) of the Crimes Act 1958 which provides that in certain conditions time spent by a prisoner in custody pending the outcome of an appeal "shall not count as part of any term of imprisonment under his sentence" - a provision which thus far might be thought to be in conflict with the counting of such time under s.18(1) of the Sentencing Act 1991 , particularly given s.18's antecedents in s.202A of the Social Welfare Act 1896 which did refer expressly, as we have seen, to time in custody "awaiting the determination of an appeal".

351. The history of s.579 itself may be canvassed, again by drawing on Mr. Gyorffy's memorandum. Once the common law rule was introduced into the colony of Victoria that a sentence imposed in respect of an indictable offence should run from the first day of the sittings at which it was imposed, a problem emerged when a person who was convicted and sentenced to a term of imprisonment was released on bail pending appeal. Apparently it was not uncommon for such an appeal to be instituted and then abandoned, thereby reducing, sometimes substantially, the overall time to be spent in gaol; for the sentence, the appeal against which had justified the granting of bail, still ran from the first day of the sittings at which it was imposed: Hansard (Legislative Council, 2 July 1895) vol.77 p.665. This led to the passing of the Gaols Act s.2 which provided in subs.(1) that time spent on bail, pending appeal or the like, was not to be counted as time served under the sentence. Section 2 of the Gaols Act 1896 was incorporated into s.29 of the Gaols Act 1915 as sub-ss.(2), (3) and (4), thereby being placed immediately after the provision (then s.29(1)) which ultimately became s.17(1) of the Sentencing Act 1991 .

354. That is where those provisions remained, linked with the precursors to s.17(1), for the Gaols Act 1915 s.29(2), (3) and (4) became in turn the Gaols Act 1928 s.20(2) and (3) (when subs.(4) which referred to whipping and solitary confinement was dropped and the section was extended to include the case of escape, first dealt with by the Gaols Act 1916 ) and the Gaols Act 1958 s.20(2) and (3). When the Gaols Act 1958 was repealed and replaced by the Social Welfare Act 1970 , s.20 became s.122 of the 1970 Act (as earlier mentioned in the history of s.17(1) of the 1991 Act) and in time, in simplified form, s.14 of the Penalties and Sentences Act 1985 and ultimately s.17 of the Sentencing Act 1991 . In these last two versions, the reference was no longer to an offender who had been sentenced to a term of imprisonment being "allowed to be or to go at large either on bail or otherwise pending an appeal" or the like, but to the offender under sentence being "allowed to be or to go at large for any reason": Penalties and Sentences Act 1985 s.14(2), Sentencing Act 1991 s.17(2). In such case the time spent at large "does not count in calculating the time to be served and service of the sentence is suspended during that period". (Compare Adem Kuru (1995) 78 A.Crim.R. 447 in relation to time on parole.) That provision remains in force.

357. So far I have dealt only with the prisoner who is allowed to go free on bail pending appeal, yet that is not our immediate concern. In 1914 the modern right of appeal was created in Victoria by the Criminal Appeal Act 1914 (Act No. 2564) following upon the Criminal Appeal Act 1907 in England. Section 14 of the local Act reflected s.14 of the model, providing, by subs.(1), that an appellant not admitted to bail pending appeal should be treated "in such manner as may be directed by the rules and regulations under [s. 51] of the Gaols Act 1890 " and, by subs.(2), that an appellant might be granted bail pending appeal "or where a new trial is ordered until the termination of the new trial". Subsection (3) is the most directly relevant now. It read:-

"(3) The time during which an appellant pending the determination of his appeal or pending a new trial is admitted to bail and subject to any directions which the Full Court may give to the contrary on any appeal, the time during which the appellant if in custody is specially treated as an appellant under this section shall not count as part of any term of imprisonment under his sentence. And in the case of an appeal under this Act any imprisonment under the sentence of the appellant whether it is the sentence passed by the Court of trial or the sentence passed by the Full Court shall subject to any directions which may be given by the Full Court as aforesaid be deemed to be resumed or to begin to run as the case requires if the appellant is in custody as from the day on which the appeal is determined, and if he is not in custody as from the day on which he is received into prison under the sentence." [Emphasis added]

Subsection (5) authorised the making of rules and regulations under s.51 of the Gaols Act 1890 for the treatment of appellants in custody.

362. Section 14 of the 1914 Act became in turn s.605 of the Crimes Act 1915 and of the Crimes Act 1928 and finally s.579 of the Crimes Act 1958 . The reference in subs.(1) to s.51 of the Gaols Act 1890 became in turn a reference to s.51 of the Gaols Act 1915 , s.55 of the Gaols Act 1928 , s. 49 of the Gaols Act 1958 and then s.182 of the Social Welfare Act 1970 , which in 1973 was renumbered as s.203 before the Act itself underwent its successive name changes; and of course "the Full Court" was changed to "the Court of Appeal". Otherwise there were no changes in the drafting of 1914. Though the appellate court was given a discretion by subs.(3) to direct that time spent in custody pending appeal should count as part of the term served under the sentence, there was no rule of practice that the discretion would be exercised simply because an appeal was not frivolous: R. v. Wort [1927] VicLawRp 83; [1927] V.L.R. 560 at 568-9; contrast R. v. Cuthbertson [1974] 1 N.S.W.L.R. 672 and R. v. Shutt (1985) 5 N.S.W.L.R. 232 to which Brooking, J.A. refers.

365. Because in neither the Parliamentary Debates nor in the 1974 report of the Statute Law Revision Committee is there any reference to s.579(3), it may be supposed that in 1975 when s.202A was being enacted as an amendment to the Social Welfare Act, s.579(3) was not thought to have any negative impact on the counting of time spent by a prisoner "in custody [while] awaiting the determination of an appeal" (to use the words of s.202A) as service under his sentence. Putting aside the reference to time on bail pending appeal which is not now under consideration, s.579(3) purports to take out of account time spent in custody pending appeal only where the prisoner "is specially treated as an appellant under this section". In times past there was a regimen noticeably different for appellants in custody; Brooking, J.A. notes that there were regulations made in 1915 under s.51 of the Gaols Act 1890 to ameliorate the lot of prisoners in custody awaiting the determination of an appeal: see also Wrottesely and Jacobs, Law and Practice of Criminal Appeals (1910) pp.233-5 setting out like rules in England under the Prison Act 1898 and the Criminal Appeal Act 1907 and R. v. Brennan [1974] 1 N.S.W.L.R. 618 at 620-1 where the regulations under the Prison Act 1952 (N.S.W.) are canvassed. But there has been no such separate regimen for some time now in Victoria and importantly there was none by 1975. By 1975, the words of subs.(3) "specially treated as an appellant under this section" were a reference to treatment according to "rules and regulations under section 182 of the Social Welfare Act 1970 ": see Crimes Act 1958 (Reprint No.5) s.579(1). Section 182 was the general regulation-making power at the end of the Social Welfare Act 1970 (though by 1975 s.182 had been renumbered as s.203). The Social Welfare Regulations 1962 were still in force, it seems, in May 1975 (when s.202A was enacted), yet they contained no regime of special treatment for appellants in custody.

368. Nor was this position altered by the introduction on 5 November 1975 of a new reg.16A (see S.R. No.397 of 1975) into the Social Welfare Regulations, though s.202A of the Social Welfare Act itself came into operation only afterwards on 1 March 1976. Regulation 16A did no more than empower the Governor to give special directions with respect to washing and shaving "of a prisoner or the length of his hair", if he considered it desirable having regard to (inter alia) the relevance of length of hair or existence of whiskers to an unconvicted prisoner's defence or a prisoner's appeal. That is not in itself the sort of regimen for special treatment contemplated by s.579 and its presence can scarcely affect the conclusion, otherwise valid, that when s.202A was enacted (and when it came into force) there was no "special treatment" provided for appellants in custody by any rules or regulations relevant under s.579(1). Therefore it would not be surprising if in 1975 s.579(3) had been regarded merely as a spent force in this regard. No other rules or regulations have come to light since 1975 and so, to the same extent, s.579 still seems to be a spent force. Wanting any relevant rules or regulations within the meaning of subs.(1) concerning special treatment, subs.(3) can have no more operation these days than it had in 1975, in respect of prisoners in custody awaiting the determination of an appeal; for none is "specially treated as an appellant under this section". Section 579(3) can therefore have no application to the case in hand.

371. That being so, there seems to me no need to canvass the larger issue whether, by reason of inconsistency, s.579(3) was impliedly repealed pro tanto when s.202A was enacted. Certainly, without deciding it, I incline to the view expressed by Brooking, J.A. that, so far as it directed that time in custody during which a prisoner "is specially treated as an appellant under this section" should not be counted, s.579(3) can be taken to have been repealed by implication by s.202A of the Social Welfare Act 1985 which sought to include as part of the time served under a sentence - expressly, though more generally - time in custody while "awaiting the determination of an appeal". Perhaps the inconsistency became less clear when those words were dropped in s.16 of the Penalties and Sentences Act and not included in the present s.18, but that probably does not matter once the repeal was worked: Interpretation of Legislation Act 1984 s.14. However, I would add that, so far as I can see, the reference in s.579(3) to time on bail pending appeal is equally inappropriate now because s.17(2) of the Sentencing Act 1991 deals with the situation covered by s.579(3), albeit much more generally and in this case making like provision. My only hesitation with regard to time on bail is that that overlapping (between what was originally the Gaols Act 1896 s.2 and the Criminal Appeal Act 1914 s.14(3)) has existed for many years without apparently causing concern. In all the circumstances I would refer the whole of s.579 to the Parliament for reconsideration.

376. In the course of the foregoing I have described the changes made on 22 April 1992 when the new Sentencing Act of 1991 came into operation and it became obligatory for the sentencing court to make a declaration of pre-sentence detention. No longer was it to be left to the prison authorities to make the appropriate calculation and then to make the requisite deduction from the time otherwise to be served under the sentence pronounced; that task was now transferred to the Courts and it is at least consistent with the statutory directive now in s.18(4) - and consistent too, I think, with s.17(1) - that it has latterly become the practice of this Court of Appeal, when sentencing to a term of imprisonment, to make a declaration of pre-sentence detention and to bring it up to the date of this Court's own sentencing. If the making of such declarations is a departure from previous practice, so be it; such a declaration when made serves in effect to confirm that the re-sentencing order of this Court which it accompanies imposes a prison sentence which is to run from the date of this Court's order. If that is not the intent, then a declaration of pre-sentence detention should be of custody up until but not beyond the date from which the re-sentencing is to be taken to run (in this instance, 30 January 1998). The declaration is, I apprehend, for the purpose of the prison authorities' calculating a release date and the deduction by them of pre-sentence detention calculated to a date after 30 January from the time to be served under sentences running from 30 January can only result in the double crediting of the extra days after 30 January.

379. When a sentence imposed at first instance is set aside and replaced on appeal by another sentence, the earlier sentence may of course be regarded as justifying custody until the date of the Court of Appeal's order (unless it is otherwise ordered), but once this Court has re-sentenced the time spent in custody under the sentence displaced on appeal is to be reckoned as time served under the Court of Appeal's order and the new sentence of imprisonment - and that is so whether the Court of Appeal's sentence runs from the date of the sentence overturned on appeal or the date only of this Court's re-sentencing. I have given my reasons for thinking that either course is commonly open on appeal; in my view neither is proscribed by statute. Either course might have been followed by this Court on this appeal (once leave to appeal had been granted) but I am clear that on 2 June this Court intended simply to correct in part the orders made on 30 January 1998 and that its substituted sentences were to be taken as running from 30 January as before.

382. Accordingly the only appropriate declaration of pre-sentence detention was of time in custody up until 30 January, and not beyond. That was 79 days only, and if we are now to re-make the orders we pronounced on 2 June I see no need for any change in that respect. Perhaps to remove any possibility of doubt as the matter has been so fully considered, it might usefully be stated that the time to be served under the sentences of imprisonment which we are imposing (or re-imposing), and in particular the total effective sentence of seven years and the non-parole period of five years, are to be calculated as running from 30 January 1998. Conformably with the foregoing a declaration should be made under s.18(4) of the Sentencing Act that up until 30 January the applicant had spent 79 days in pre-sentence detention, which days were now to be reckoned under s.18(1) as time already served under these sentences. My concern remains that if we declare pre-sentence detention calculated to the date of our orders when the sentences are to run from 30 January, that will lead to double counting of the days after 30 January.