Salasch v The Queen

The conviction is unsafe and unsatisfactory. 2. The Appellant could not at law be found guilty of the offence of Assault Occasioning Actual Bodily Harm. 10 On the hearing of the appeal against conviction, counsel for the appellant (who had not appeared at the trial) advanced virtually the same contentions in support of both grounds. He submitted, first, that the trial judge "should, in fact, have instructed the jury that they had to be certain that either the injuries were inflicted [on the complainant] by Mr Salasch or they were inflicted by Mr Stein at the time when there was a joint criminal enterprise". His Honour's directions were, so counsel submitted, inadequate in this regard. It was the appellant's case that, if the jury had in fact been properly directed, then the jury could not have been satisfied beyond reasonable doubt that the appellant was guilty. 11 Reference was made in this context to M v The Queen (1994) 181 CLR 487 ("M v The Queen") and Tran v The Queen (2000) 105 FCR 182 ("Tran"). In M v The Queen a majority of the High Court, comprising Mason CJ, Deane, Dawson and Toohey JJ, observed at 493: Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [See Whitehorn v The Queen (1983), 152 CLR at p 686; Chamberlain v The Queen [No 2] (1984), 153 CLR, at p 532; Knight v The Queen (1992), 175 CLR 495, at pp 504-505, 511.] But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [Chamberlain v The Queen [No 2] (1984), 153 CLR, at p 621]. 12 In Tran, a Full Court of this Court (Black CJ, Weinberg and Kenny JJ), observed, at 193, after discussing M v The Queen,that an appellant may invoke the expression "unsafe and unsatisfactory" where the appellant claims that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, or where there is "some feature of the case which raises the substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been 'mistaken or misled'". The Full Court also noted, at 195, that, notwithstanding the differences between the legislation enabling this Court and the state courts to entertain appeals in criminal matters, the principles governing the outcome of these appeals were "essentially the same": see also Conway v The Queen (2002) 186 ALR 328 at [38]. 13 Counsel for the appellant contended on the appeal that the jury must have been misled by the learned Chief Justice's failure to give proper directions on the matter of the joint criminal enterprise, since if the jury had been properly directed, they could not have found the appellant guilty. The error was said to have arisen in the following way. 14 At the trial, there was an issue as to whether the actual bodily harm suffered by the complainant was sustained as a result of a joint criminal enterprise in which the appellant and Stein had been engaged. This was the subject of his Honour's charge in the following passage: The law is that where two persons carry out a joint criminal enterprise each is responsible for the acts of the other in carrying out that enterprise. The prosecution must prove the existence of the joint criminal enterprise and the participation of the accused in it if it is to rely upon an act by somebody other than the accused as if it were the act of the accused. For the purposes of the present case, the participation in and the existence of the joint criminal enterprise consists in the accused being present when the crime is committed by the other person in these circumstances. One, where the accused is encouraging that other person to commit it. Two, where the accused intends that the other person receive that encouragement and, three, where the other person actually receives that encouragement. If I can fit those general principles of law into the context of the present case, ladies and gentlemen, they emerge something like this. The prosecution says that once this man Stein, that is, the man said to be with a goatee and the taller man who joined in with the bottle and so forth and whom Mr Salasch has identified as David Stein, and I'll call him that, that once David Stein joined in the fight between the accused and Mark Oliver the accused continued to participate in that fight intending that Stein receive encouragement to continue to participate in it also. And Stein actually received that encouragement to participate from the accused. It may be put another way perhaps by saying that the continuation of both the accused and Stein in the fight proves both encouragement being given, each to the other, and encouragement being received by each from the other. And if that is proved beyond reasonable doubt, the accused is liable to be found guilty of the joint assault that continued after Stein joined in, and for the acts not only of himself, but the acts of Stein as well. And remember, as I said earlier, it is not necessary that there be shown any intention to inflict actual bodily harm either on the part of Stein or on the part of the accused. 15 In the course of their deliberations, the jury asked the Chief Justice to repeat the law regarding a joint criminal enterprise. After discussing the matter with counsel and receiving their submissions, his Honour gave a further direction in the following terms: 1. The law is that where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other, or others, in carrying out that enterprise. The fact that there is evidence of two persons committing the crime, or a crime, at the same time is not enough. The prosecution must establish both the existence of that joint criminal enterprise and the participation in it by the accused. 2. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. But the understanding or arrangement need not be express and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. 3. A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and with knowledge that the crime is to be, or is being committed by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime was committed, and a readiness to give aid if required, is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. 4. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise all of the participants in that enterprise are equally guilty of the crime, regardless of the part played by each in its commission. 5. In this case, you have been invited by the prosecution to infer that when Mr Salasch continued to assault Mr Oliver after Mr Stein, to the knowledge of Mr Salasch, had began to strike Mr Oliver with the bottle, they had reached an understanding or arrangement to assault Mr Oliver. Each, so says the prosecution, assisted the other in the commission of the crime. If you accept that such an understanding or arrangement was reached, Mr Salasch is liable to be found guilty of the crime of assault occasioning actual bodily harm, whether or not it was he who directly caused that harm. 6. The defence says that by merely continuing to behave as he had before Mr Stein joined in you would not be satisfied that Mr Salasch indicated agreement or encouragement of Stein's conduct, and that therefore he was not a party to the agreement or arrangement relied on. 16 The redirection was, plainly enough, based upon the decision of the New South Wales Court of Criminal Appeal in Tangye (1997) 92 A Crim R 545 ("Tangye") at 556-7, where Hunt CJ at CL (with whom McInerney and Sully JJ agreed) stated as follows: The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. … . So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines: (1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with the knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission. [Citations omitted.] 17 The direction approved in Tangye has met with judicial approval in subsequent cases: see, e.g., R v Donnelly [2001] NSWCCA 394 at [79] per Giles JA (with whom Wood CJ at CL agreed) and Osland v The Queen (1998) 197 CLR 316 at 343 per McHugh J. 18 Counsel for the appellant did not challenge the Chief Justice's direction in so far as it was derived from Tangye. He submitted, however, that his Honour erred by not specifically directing the jury that "they could only find the Appellant guilty if the injuries which were considered to be Actual Bodily Harm were caused by the Appellant or by Mr Stein after the joint criminal enterprise was formed". The appellant contended that his Honour should have "warn[ed] them that, if the injuries were caused by Mr Stein before the formation of the joint criminal enterprise they could not convict". In the absence of a warning of this kind, so the appellant's counsel contended, the jury "would have been left with the impression that the appellant could be responsible for all the injuries caused by Stein". 19 We reject this submission. First, we note that no objection was taken at trial to the Chief Justice's further direction. Secondly, there is, in any event, no substance to the complaint now made. 20 There was no dispute that the injuries suffered by the complainant constituted "actual bodily harm" within the meaning of s 24 of the Crimes Act. In contrast to the expression "grievous bodily harm", which is defined in s 4 of the Crimes Act as including "any permanent or serious disfiguring of the person", "actual bodily harm" is not statutorily defined and is generally accepted as including injury that is not permanent, though it must be more than trifling. As the English Court of Criminal Appeal observed in R v Donovan [1934] 2 KB 498, at 509: For this purpose we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling. As noted above, it is patent that the complainant's injuries in fact constituted "actual bodily harm". 21 On the appeal, no issue arose as to the jury's rejection of the appellant's defence that he had acted in self-defence. Instead, as we have seen, the appellant attacked the jury's verdict upon the basis that it apparently involved acceptance of the Crown's case that he had acted in concert with Stein in assaulting the complainant, and that he was, therefore, responsible for all the injuries to the complainant, whether the injuries were inflicted by him or by Stein. 22 In respect of the Crown's case, the evidence established that Stein and the appellant had dined together and were about to go home in Stein's car shortly before the fight with the complainant. Most of the Crown witnesses who saw the incident gave evidence that the appellant had been punching the complainant when the appellant was joined by another man (later identified as Stein); that the appellant had continued to punch the complainant after Stein first hit the complainant with the bottle; and that both the appellant and Stein had punched or hit, and kicked, the complainant at the same time whilst the complainant was on the ground attempting to shield himself from further blows. In this circumstance, it was plainly open to the jury to reject the appellant's evidence that he did not notice Stein join him in the fight with the complainant and to find that the appellant and Stein had formed an unspoken agreement at some time during the fight to continue the assault on the complainant together, the one encouraging the other by his continued participation in the attack on the complainant. 23 Given that by their verdict, the jury must have rejected the appellant's claim that he did not notice Stein join in the assault on the complainant and that the injuries occasioned the complainant clearly amounted to "actual bodily harm", the jury was entitled to find, beyond reasonable doubt, that the complainant had suffered actual bodily injury at some time after Stein had joined in the fight, and that the appellant and Stein had formed the agreement upon which the Crown's case relied, each encouraging the other by their participation in the fight. 24 Furthermore, the appellant's contention ignores the alternative finding, clearly open to the jury on the evidence, that the appellant himself had inflicted some actual bodily harm on the complainant, whether before or after Stein's intervention, and irrespective of any agreement as to a joint criminal enterprise. On the hearing of the appeal, counsel for the appellant conceded that, if it was open to the jury to be satisfied beyond reasonable doubt that actual bodily harm was inflicted by the appellant on the complainant at some time during the fight, then it was immaterial, so far as the appellant's case was concerned, whether the injury was inflicted pursuant to a joint criminal enterprise or not. This concession was plainly correct, particularly bearing in mind that the mental element of the offence of assault merely requires an intention to apply unlawful force (that is, to inflict an assault): see Williams (1990) 50 A Crim R 213 at 220-2. 25 The hypotheses that the jury was required to consider were further complicated by the appellant's invocation of self-defence. This required them to consider whether any injuries inflicted by the appellant had been caused while it was reasonably necessary for the appellant to defend himself against an actual or apprehended attack by the complainant: see, e.g., Palmer v The Queen [1971] AC 814 at 831 and R v Tikos (No 2) [1963] VR 306 at 312. When all these combinations and permutations are appreciated, it is readily understandable that counsel for the appellant at the trial made the forensic election not to seek a further re-direction on the question of joint criminal enterprise. 26 For these reasons, we have concluded that the appeal against conviction must fail.

39 In order to understand the nature of the error that counsel submitted had occurred, it is necessary to refer to the Parole Act, which relevantly provides: s 5. Interpretation (1) In this Act, unless the contrary intention appears - … 'nonparole period' means - (a) a period fixed by a court in pursuance of section 7 as the period during which a person is not to be eligible to be released on parole; … 'parole order' means an order made under subsection 20(1) and, if such an order has been varied, means the order as varied; 'parole period', in relation to a person who has been released from prison on parole, means the period that - (a) commences on the day on which the person is released from prison; and (b) ends on the day on which the term of imprisonment to which that person was sentenced expires, or, if the parole order in relation to the person is revoked, on the date of the revocation; … (2) For the purposes of this Act, a person shall be deemed to have served a term of imprisonment - (a) when he or she is discharged from imprisonment; or (b) when he or she would, but for the fact that he or she is serving another term of imprisonment, have been discharged from imprisonment. … s 7. Court to fix nonparole period (1) Subject to subsection (2), where a court sentences a person to a term of imprisonment of not less than 12 months or to terms of imprisonment that, in the aggregate, are not less than 12 months, the court shall fix a period as the period during which the person is not to be eligible to be released on parole in pursuance of this Act. … (4) Where a court sentences a person to imprisonment but fails to fix, or fails properly to fix, a nonparole period, the court may, upon application by the Attorney-General, the informant or the person sentenced, fix a nonparole period. s 8. Fixing of nonparole period where person serving a previous sentence (1) Where a person who is serving a sentence of imprisonment (in this section called 'the previous sentence') is sentenced to a further term of imprisonment (in this section called 'the further sentence'), subsections 7(1) and 7(2) apply as if the court by which the further sentence is imposed had sentenced the person to imprisonment for a term equal to the aggregate of the terms of the previous sentence and the further sentence. (2) Subsection (1) applies whether the previous sentence was imposed before or after the commencement of this Act. (3) The imposition of the further sentence revokes any nonparole period fixed in respect of the previous sentence. (4) A non-parole period fixed at the time of the imposition of the further sentence - (a) shall be taken to have commenced on the date on which the previous sentence was imposed; and (b) shall not be such as to render the person eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed. … 20 Release on Parole (1) Where - (a)a person is serving a sentence of imprisonment; and (b)a nonparole period has been fixed in respect of that person; the Board may, by order, direct that the person be released from prison on parole at a time specified in the order. … 22. Parole order revoked where person sentenced to imprisonment (1) In this section - 'parole order' has the same meaning as in section 25. (2) Where the person to whom a parole order relates is sentenced to a term of imprisonment in respect of an offence (including an offence against a law of the Commonwealth or of a State or another Territory) committed during the parole period, the parole order shall be deemed to have been revoked and, if the parole period has already expired, to have been revoked immediately before the expiration of the parole period. … 24. Effect of parole order on sentence (1) In this section - 'parole order' has the same meaning as in section 25. (2) Where a person has been released from prison on parole, whether under this Act or under the repealed Ordinance - (a) he or she shall be deemed to be still under sentence of imprisonment, and not to have served any period of imprisonment that remained to be served at the commencement of the parole period, until the parole period expires without the parole order being revoked or until he or she is otherwise discharged from that imprisonment; and (b) if the parole period expires, without the parole order being revoked, he or she shall be deemed to have served the period of imprisonment that remained to be served at the commencement of the parole period and to have been discharged from that imprisonment. (3) Where a parole order is, by virtue of section 22, to be deemed to have been revoked immediately before the expiration of the parole period, subsection (2) has effect as if the parole period had not expired without the parole order being revoked. … 25. Apprehension of person on parole (1) In this section - 'parole order' means - (a) an order made under subsection 20(1); or … … (8) Where a parole order is revoked, the person to whom the order related shall, unless he or she is again released on parole, be liable to be detained in prison for a period equal to the period for which he or she was liable, on the date on which he or she was released on parole under the revoked order, to be detained in prison. 40 As already noted, at the time the appellant came before the Chief Justice for sentence, there was still a little over four months to run before 13 November 2001, when the sentence imposed on 14 September 2000 was to expire. Although the appellant had been granted parole on 13 November 2000, by virtue of s 24(2)(a) of the Parole Act he was "deemed to be still under sentence of imprisonment, and not to have served any period of imprisonment that remained to be served at the commencement of the parole period …". The imposition by the Chief Justice of the sentences for the assault and drug charges operated, by force of s 8(3) of the Parole Act, to "revoke" the non-parole period that had been fixed in respect of the previous sentence. Pursuant to s 8(1) of the Parole Act, the Chief Justice became obliged to fix a new non-parole period "as if" he had sentenced the appellant to imprisonment "for a term equal to the aggregate of the terms of the previous sentence and the further sentence". In this case, the aggregate was eight years' imprisonment. 41 In attempting to identify relevant error, counsel for the appellant referred to s 22(2) and s 25(8) of the Parole Act, contending that the Chief Justice had erroneously treated them as the applicable provisions. In written submissions, counsel for the appellant contended: Since parole was not automatically revoked there was no requirement that the new sentences should commence after 6 July 2002. Sections 7 and 8 of the Parole Act do not act so as to require that the further sentence commences after the expiry of the previous sentence. They merely require that, subject to subsection 7(2), a non-parole period be fixed by the Court. Counsel submitted that the appellant had effectively been deprived of the unexpired term of the parole order previously made. 42 Part of this submission can be readily accepted. Neither s 22(2) nor s 25(8) of the Parole Act was applicable in this case. Subsection 22(2) provides for the revocation of a parole order in the case of a person who commits an offence while subject to the parole order, and s 25(8) concerns the effect of the revocation of the parole order on an outstanding period of imprisonment. Moreover, it cannot, we think, be said that the parole order had been revoked for the purposes of s 24. In this case, the Chief Justice was concerned with sentencing for drug offences in 1997 and for an assault in December 1999. As we have seen, the effect of the imposition of the further sentences in a case such as this was merely to "revoke" the non-parole period that had been fixed on 14 September 2000. Of course, the revocation of the non-parole period and the imposition of another custodial sentence carried with it, as a practical consequence, the termination of the appellant's parole. 43 In this case, s 8(1) of the Parole Act required the Chief Justice to fix a non-parole period for the aggregate of the head sentences (in this case, eight years), subject to s 8(4) which stipulates that the non-parole period fixed at the time of the imposition of the further sentence "shall be taken to have commenced on the date on which the previous sentence was imposed", that is, on 14 September 2000. Although the Parole Act did not direct a sentencing judge to take account of any parole order made in respect of a previous sentence, it would have been proper for the judge to do so in a case such as the present, where neither s 22(2) nor s 25(8) of the Parole Act applied. 44 The Chief Justice's observation that "there can be no alternative to an immediate custodial sentence, particularly taking into account that if a custodial sentence is imposed then parole is revoked as a matter of law" read with his further observation that "the head sentences on the present matters" were not "to commence until the expiration of the sentence for perverting the course of justice" may signify that his Honour was proceeding on the mistaken basis that, on the automatic termination of the appellant's parole pursuant to ss 8 and 22(2), he was required, by virtue of s 25(8), to serve the balance of the previous sentence in prison. The significance of these observations, read on their own, is not, however, free from doubt. His Honour's comment that the head sentences on the matters before him were not to commence until the expiration of the previous sentence was intended, presumably, to be a direction under s 354(1) (formerly s 443(1)) of the Crimes Act that the sentences imposed on 6 July 2002 were not to be served "concurrently with any uncompleted part" of the previous sentence. 45 The matters that indicate error in this case are the reference to the date "5 July 2000" in the principal part of his Honour's remarks and its subsequent correction to "5 July 2001", and his Honour's mistaken statement that the appellant was on parole at the time of the assault, which, it may be recalled, occurred on 11 December 1999. After his Honour had made the remarks set out above, the Chief Justice and Crown counsel had the following exchange: crown counsel: … Your Honour, just while we pause. Just a couple of questions of fact. You mentioned that he might have been on parole at the time of the commission of the assault charge. In fact he was on bail, not parole. his honour: Yes, that's right. That was an error. crown counsel: And the - as you later corrected - the expiration of the relevant period so far as the previous sentence was 5 July 2002. his honour: What did I say? crown counsel: 5 July 2000, you actually said, I think. his honour: Well, I meant to say 2002. Thank you. It's a year, almost a year, from today. 46 Bearing in mind that Crown counsel had previously informed his Honour that "the imposition of the sentence … revokes a parole", the above exchange indicates that his Honour may have mistakenly proceeded to sentence the appellant on the basis that he had committed the assault whilst on parole. In this event, s 22(2) and s 25(8) of the Parole Act would have applied. Although the Crown brought the factual error to his Honour's attention, he may not have appreciated that s 22(2) and s 25(8) had no application, and that there was no other provision in the Act that, in the circumstances of the case, had an operation equivalent to those sub-sections. 47 Moreover, the exchange makes it clear that the Chief Justice thought that the previous sentence would expire on 5 July 2002, a year from the date of sentencing. There is no warrant in s 8 of the Parole Act for this result. The object of s 8 is merely to ensure that, when imposing a "further sentence", the sentencing judge fixes a non-parole period which dates back to the imposition of the previous sentence and takes account of the new sentence. Neither s 8 nor s 24(2) and s 25(8) would operate, in the circumstances of this case, to alter the date on which the previous sentence was to expire, namely 13 November 2001. Subsection 24(2) relevantly provides that a person released on parole "shall be deemed to be still under sentence of imprisonment, and not to have served any period of imprisonment that remained to be served at the commencement of the parole period, until the parole period expires without the parole order being revoked or until he or she is otherwise discharged from that imprisonment". As already noted, in the circumstances of this case, it was not the parole order in respect of the previous sentence that was revoked by operation of the statutory provision, but the non-parole period fixed in respect of the previous sentence. Subsection 25(8) did not therefore apply to affect the period for which the appellant was to be retained in prison. Moreover, as already noted, it would have been proper for his Honour, in sentencing the appellant, to have taken account of the parole order that had been previously made in the appellant's favour in fixing the new non-parole period. 48 In this case, his Honour fixed a non-parole period of 3 years and 8 months in respect of an aggregate of head sentences of eight years. This of itself does not indicate error. His Honour did state, however, that, in view of "the positive remarks of the probation and parole officer and the other subjective factors", he would fix a relatively short non-parole period. Bearing in mind both this and his Honour's mistaken view that the previous sentence would not expire on 13 November 2001 but some eight months later, on 5 July 2002 (this being the period during which his Honour apparently assumed the appellant had been on parole), the appellant's submission that there has been an error in the application of the Parole Act to his case should be upheld. The Chief Justice would appear to have mistakenly treated the case as governed by ss 22(2), 24(2) and 25(8) and, on that basis, to have wrongly assumed that the appellant was to serve both the period during which he had been on parole and the unexpired balance of the parole order. At the same time he failed to take into account that, as a consequence of the date upon which the new sentences were to be imposed, the appellant was losing the benefit of the parole order previously been made in his favour. We are satisfied that sentencing error is shown. 49 The appellant also submitted that the Chief Justice failed to take account of s 360 (formerly s 451) of the Crimes Act, as he was required to do; and, in the alternative, that the terms of his Honour's orders effectively precluded the appellant from taking the benefit of the provision. (We note that certain provisions of the Crimes Act were renumbered by the Crimes Legislation Amendment Act 2001 (No 63 Pt 4), and under the Legislation Act 2001.) Section 360 of the Crimes Act provides as follows: If an offender is sentenced to a term of imprisonment in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings shall be reckoned as a period of imprisonment already served under the sentence. 50 For the purposes of the appeal, the respondent admitted that: (1) The Appellant, David Alexander Salasch, was arrested on 3 March 1998 and charged with burglary contrary to section 102(1)(b) (now section 93(1)(b)) of the Crimes Act 1900). On that day at that time he was also charged with 11 other offences, including the two offences to which he pleaded guilty on 23 May 2001 and for which he was sentenced on 6 July 2001 and which sentences are the subject of this appeal; (2) He applied for bail in respect of the charge of burglary and bail was refused; (3) He did not apply for bail in respect of the other offences and bail was not considered in respect of them; and (4) A notice declining to proceed with the burglary charge was filed in court on 25 May 2001. 51 In written submissions, the appellant's counsel stated that the appellant "was not released from custody into Bail until 11 December 1998". Counsel submitted that the Chief Justice had erred in not taking into account that the appellant was detained between 3 March 1998 and 11 December 1998 as s 360 required. 52 As already noted, in imposing the previous sentence on 14 September 2000, the sentencing judge had specifically taken into account the time spent by the appellant in custody in 1998. This is not, however, to the point. The terms of s 360 require that any period of time during which the appellant was held in custody in relation to proceedings for the drug offences was to be "reckoned as a period of imprisonment already served under the sentence". 53 A Full Court of this Court considered the operation of what was then ss 451 (and 441A) of the Crimes Act in Keen v The Queen [2000] FCA 940, Geiger v The Queen [2001] 112 FCR 79 ("Geiger"), and in Massey v The Queen [2001] FCA 1703 ("Massey"). In Keen v The Queen, the Full Court, (constituted by Miles, Madgwick and Weinberg JJ) observed at [7]-[9]: On the face of it, s 451 appears to be an instruction to the prison authority responsible for executing the sentence of the Court as to how the sentence is to be calculated for the purpose of fixing a date for the release of the prisoner serving the sentence, rather than constraining the sentencing judge or magistrate in the sentence to be imposed. The question arises, however, about how the prison authority is to give effect to s 451. The Court is aware that persons sentenced to imprisonment by an ACT Court serve their sentences in prisons in New South Wales. Apart from the question whether s 451 is binding on the NSW prison authority, there is also the fact that the prison authority in that State will not necessarily be aware of whether the prisoner has previously spent time awaiting sentence in custody in the ACT. Conceivably the Sheriff of the ACT who delivers the prisoner from the ACT court to the prison authority in NSW under warrant could ensure that the warrant gives effect to s 451. However, there may be a further problem. The Sheriff may not be aware of time spent in custody in NSW (or elsewhere outside the ACT) awaiting sentence. In our view, these difficulties are best resolved by the sentencing judge or magistrate making it clear that the sentence pronounced is 'just and appropriate' (see Crimes Act, s 429) after taking into account the reckoning required by s 451. That may be done by the sentencing judge or magistrate taking the course of what is called 'back dating' the sentence, that is to say, by ordering that the sentence is to date from the time the person was taken into custody in relation to the offence in respect of which the person is sentenced. Alternatively, it may be done by the sentencing judge or magistrate making it clear that the time already spent in custody in relation to the offence has been taken into account, or as s 451(1) put it, 'reckoned' as a period of imprisonment already served under the sentence. If that is made clear, the sentence need not be back dated and it will take effect on the day on which it is passed in accordance with s 441A. The latter course, rather than back dating, may be appropriate where pre-sentence custody has not been continuous. 54 In Geiger, Miles J observed at [31]: [F]rom what the Court was told in the present appeal, the remarks in Keen v The Queen reflect sentencing practice in the Territory. The 'reckoning' required by s 451 may be carried out by the sentencing judge or magistrate, or by those executing the sentence, that is to say the Sheriff preparing the warrant for the delivery of the prisoner to the jail or the jailer who receives the prisoner for the term of imprisonment. If the judge or magistrate does the reckoning, then there is nothing to be done by the Sheriff or the jailer in this respect. If, for whatever reason, the judge or magistrate omits to do the reckoning then it is to be done administratively in execution of the sentence. It may not be an ideal practice but it is made necessary by and conforms with s 451. 55 In the same case, Gyles J (with whom Beaumont J agreed) stated at [43]: The section does not appear to me to give any discretion to a court as to whether it should be applied. It applies by or of its own force. In my respectful opinion, the words in s 451(1) 'shall be reckoned as a period of imprisonment already served under the sentence' refer to the sentence which is actually pronounced and to no other. 56 In Massey, the Full Court (consisting of Miles, O'Loughlin and Madgwick JJ) observed at [22]-[24]: As this Court has pointed out in Keen v The Queen [2000] FCA 940 at [7] and Geiger v The Queen [2001] FCA 475, s 451 of the Crimes Act is productive of difficulties, some of which might be removed by the addition of words such as 'unless the Court otherwise orders'. We incline to the view expressed in Geiger that, unless the Court indicates that it has already taken previous time spent in custody into account in order to reduce the time which the offender is to serve before the sentence is to expire, or to reduce the length of the non-parole period, or both, then those responsible for the execution of the sentence are required to do the 'reckoning' required by s 451. It is obvious that the sentencing judge cannot do the reckoning for himself or herself without reliable information, preferably evidence from a gaol recorder, as in New South Wales: see R v Holder [1983] 3 NSWLR 245, or from an officer of the Central Records Office of the Correctional Services Commissioner as in Victoria: see DPP v Ibrahimoff [2001] VSCA 46 and the Sentencing Act 1991 (Vic) ss 18 and 35. It may not be quite as obvious but it is important to recognise also that, for the purpose of an appeal against sentence, the appropriateness or otherwise of a sentence may not be possible to assess unless and until such information is available. Information of such reliability does not appear to have been before his Honour, and there was no error in expressly leaving the reckoning of time spent in custody to those responsible for the execution of the sentence. However we were informed at the hearing of the appeal, and it was not disputed, that the time which the appellant had spent in custody, within s 451, was one year and one month. That appears to accord with the appellant's history. Thus the effect of the sentencing in the Supreme Court will be that the expiry of the head sentence will take place on 10 October 2012 and the appellant will be eligible for release on parole on 10 October 2008. 57 In this case, the Chief Justice did not make any "reckoning" for the purposes of s 360. He may have thought that the reckoning required by s 360 was best left to those responsible for the execution of the sentences that he imposed. Mere silence on his Honour's part does not betoken error, since s 360 operates of its own force and would require the reckoning to be done by the prison authorities. 58 There is no doubt that the appellant is entitled to the benefit of s 360, and the Chief Justice did not suggest otherwise. Did error inadvertently occur as a consequence of the terms of his Honour's orders? It is to be borne in mind that, in a document headed "Summary of Time Spent in Custody", the Crown had informed his Honour, wrongly as it turned out, that the appellant had spent no time in prison in relation to the offences with which his Honour was concerned. (We note that the appellant's counsel at trial apparently agreed with the Crown and, in any event, did not take issue with what his Honour was told on this matter.) In stating that the sentences imposed by him on 6 July 2000 would not commence until the previous sentence had expired on 5 July 2002 and that the appellant would not be eligible for parole until 6 July 2004, the Chief Justice apparently proceeded on the basis of this misinformation. The terms of the Chief Justice's orders, as now reflected in the Certificate of Conviction, may well give rise to confusion when the prison authorities attempt to do the reckoning required by s 360. If his Honour was misled, then this was because he was misinformed. It is unnecessary to say more, since the difficulty can be overcome when the error identified above in relation to parole is remedied. (b) Other matters 59 The appellant submitted that the sentences imposed by the Chief Justice offended the principle of totality. The application of this principle requires a judge who is sentencing for more than one offence to assess the overall criminality involved in all the offences and, if appropriate, to adjust the overall length of the sentences downwards in order that their aggregate does not exceed the overall criminality: see, in this regard, R v Holder and Johnston [1983] 3 NSWLR 245 at 260. If, at the time of sentencing, the offender is already serving a term of imprisonment in respect of a previous sentence, the sentencing judge is required to consider the effect on the offender of any sentence that is to be imposed bearing in mind the existing sentence: see Bakhos (1989) 39 A Crim R 174 at 176 per Roden J and 177-8 per Hunt J; Gordon (1994) 71 A Crim R 459 at 470; and Zocchi (2000) 116 A Crim R 245 at 246-7. 60 In the present case, the Chief Justice specifically directed that the sentences that he was imposing were to commence at the end of the previous sentence, although he made the sentences for the second drug offence and the assault partly cumulative. It needs to be borne in mind that the drug offences and the assault were quite unrelated. Plainly enough, his Honour had the relevant principle in mind. If there were any error of the kind the appellant alleges, it arose because of his Honour's mistaken reading of the Parole Act, as a result of which the appellant lost the benefit of his previous parole order. We dealt with this matter above. 61 We also reject the appellant's submission that the sentences imposed on him for supplying methamphethamine offended the parity principle: see Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ, 313-14 per McHugh J, 323 per Gummow J, and 338 per Kirby J and Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ, 611 per Mason J and 617-618 per Brennan J. The parity principle applies to co-offenders, and only where a genuine comparison can be made between the sentences imposed on them. The appellant contended that, with regard to the drug offences, the disparity between his punishment and that of the person who had supplied him with methamphethamine (Trevor Finnigan) was such as to give rise to a justifiable sense of grievance on the appellant's part. As Finnigan was not, however, charged in respect of any offence arising out of the supply of drugs by the appellant, no question arises concerning any disparity in their sentences. In this circumstance, the parity principle has no application. 62 At the hearing of the appeal, the appellant also sought to rely on an alleged disparity between the sentence imposed on him for the offence of conspiring to pervert the course of justice and sentences imposed on his co-offenders. The appellant has not, however, appealed against the sentence imposed on 14 September 2000 (by a different judge) for this offence. No question of parity in connection with these sentences arises on this appeal. Further, there is no evidence before the Court to indicate that any alleged disparity was such as to give rise to a justifiable sense of grievance that would offend the parity principle. 63 The appellant also submitted that, in sentencing him for the offence of assault occasioning actual bodily harm, the Chief Justice had erred by taking in account facts which had not been proved beyond reasonable doubt. In particular, the appellant complained about his Honour's observations that when the appellant got out of the car and approached the complainant he was determined … to give [the complainant] a thrashing if he did not get a satisfactory explanation about the hassling of the daughter. The appellant also complained about the Chief Justice's statements that: As [the complainant] lay or crouched on the roadway the other two kicked and continued to strike him. With the remains of the bottle in his hand, the offender made threatening but futile remarks in the direction of Mr Oliver who had regained his feet … . [The appellant] presents himself as a danger to the public. We reject these submissions. Bearing in mind the jury's verdict and the evidence at trial, it was plainly open to his Honour to make the findings that he did, and no error is shown in regard to them. 64 Finally, the appellant contended that the sentences imposed on him were manifestly excessive, although he did not ultimately pursue this submission in relation to the drug offences. We note that the maximum penalty for supplying a drug of dependence contrary to s 164(2)(a) and (d) of the Drugs of Dependence Act is a fine of $10,000 or five years' imprisonment or both. It is clear that, considered individually, the sentences imposed in connection with these offences were well within the range open to his Honour. 65 The appellant did, however, press the contention that the sentence for assault occasioning actual bodily harm was manifestly excessive. In support of this contention, the appellant referred to the circumstances of the offence, including his motivation for approaching the complainant in the first place and the subsequent intervention of Stein. He also referred to the nature and dates of his previous convictions, the fact that he had significant family and community ties, the effect on him of his previous sentence for conspiring to pervert the course of justice, and a pre-sentence report. 66 The Chief Justice's sentencing remarks showed that his Honour took account of all these matters. The maximum punishment for assault occasioning actual bodily harm is five years' imprisonment. The degree of culpability relevant to punishment for the offence will depend, however, on all the facts, as found, in the particular case: cf Ibbs v The Queen (1987) 163 CLR 447 at 452. Bearing in mind all the circumstances of this case, it was plainly open to his Honour to take the view he did that the assault for which the appellant was convicted was a comparatively serious contravention of s 24 of the Crimes Act. Notwithstanding the matters militating in the appellant's favour (to which his Honour referred), the sentence imposed for the assault was not outside the range open to his Honour in the circumstances. 67 The Court was provided with information (including sentencing remarks) concerning a number of sentences imposed in connection with other offences involving the supply of methamphetamine and other offences of assault occasioning actual bodily harm. An examination of this material demonstrated that there were many factual differences between these cases and the present case, and that these differences were relevant to the sentences imposed. The usefulness of comparative material such as this is ordinarily limited and, in the present case, it does not disclose any sentencing practice at odds with the sentences imposed by the Chief Justice. Outcome 68 In summary, we conclude that the sentencing judge fell into error in applying the Parole Act. His Honour would appear to have mistakenly treated the appellant's case as governed by s 22(2) and s 25(8) and, on that basis, to have assumed that the appellant was to serve both the period during which he had been on parole and the unexpired balance of the parole order. As it happens, there is no provision of the Parole Act that would require this result in the appellant's case. We are satisfied that sentencing error is shown. 69 There remains the question whether, having set aside the relevant part of the sentence of the Supreme Court of 6 July 2001, this Court should reformulate the appellant's sentence, or remit the matter for sentencing in accordance with these reasons for judgment. Bearing in mind our earlier observations regarding s 360 of the Crimes Act, we consider that the preferable course is to allow the appeal against sentence, to set aside so much of the sentence that fixed a non-parole period and to remit the matter to the Supreme Court in order that that Court may fix a new non-parole period in accordance with the Parole Act, bearing in mind our observations concerning s 360 of the Crimes Act. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

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