The Queen v Lovegrove and The Queen v Clancy [2018] NTSC 2

Crimes (Sentencing Procedure) Act 1999 (NSW) s 47, s 47(1), s 47(2), s 47(3)

Justice (Corrections) and Other Legislation Amendment Act 2011 s 26

Sentencing Act (NT) s 3, s 5, s 5(1), s 5(2), s 5(2)(k), 60A(1), s 62(1), s 63A(2), s 63(4), s 63(5)

Sentencing Act 1991 (Vic) s 18, s 18(1), s 18(4)

Statute Law Revision Act 2011

Pappin v The Queen [2005] NTCCA 2, applied

Akoka v The Queen [2017] VSCA 214; Alimudin v McCarthy; Nurdin v Bravos [2008] NTCA 7; (2008) 23 NTLR 102; Eatts v Dawson [1990] FCA 158; (1990) 21 FCR 166; Forrest v The Queen [2017] NTCCA 5; Griffiths v The Queen (1977) 137 CLR 293; Hughes v The Queen [2008] NSWCCA 48; Makarian v The Queen (2005) 228 CLR 357; Nottle v Trenerry [1993] NTSC 47; (1993) 3 NTLR 68

Okwechime v Sindel [2009] ACTSC 162; (2009) 235 FLR 299; R v Cartwright (1989) 17 NSWLR 243; R v Douglas Unreported, New South Wales Court of Criminal Appeal, 4 March 1997; R v Eastway Unreported, New South Wales Court of Criminal Appeal, 19 May 1992; R v Elphick (No 2) [2012] ACTSC 87; R v Eyles (No 3) [2017] ACTSC 1; R v Heaney Unreported, Victorian Court of Appeal, 27 March 1996; R v Judge Frederico; Ex parte Attorney-General [1971] VicRp 51; [1971] VR 425; R v McHugh (1985) 1 NSWLR 588; R v Renzella [1997] 2 VR 88; R v Wronski v Raue [2012] ACTSC 87, referred to

R v Currado Calesso SCC 21558128; R v Lowe SCC 21715822; R v Ralph Forbes SCC 21646710; R v Rhys Watts SCC 21632323; R v Stephen Edwards SCC 21634627, not followed

Prosecution: Office of the Director of Public Prosecutions

Defendant: Northern Territory Legal Aid Corporation

The Queen v Lovegrove and The Queen v Clancy [2018] NTSC 2

[1] Stephen Lovegrove has pleaded guilty to intentionally supplying a commercial quantity of cannabis reckless as to the substance being a dangerous drug. Brendon George Clancy has pleaded guilty to intentionally possessing a commercial quantity of Lysergide reckless as to the substance being a dangerous drug.

[2] Their offences are unrelated. However, both offenders were granted bail on conditions that they be electronically monitored while residing in the community at a specified place. They were also required to complete the residential drug rehabilitation program offered by Drug and Alcohol Services Australia (DASA) in Alice Springs.

[3] During the submissions on sentence for each offender, which were heard separately, there arose a common issue about whether any sentence of imprisonment that may be imposed on them could and should be backdated under s 63(5) of the Sentencing Act (NT) so as to reflect the time they had been in the community on bail under conditions that they be electronically monitored while residing at a specified place. The issue is an important issue.

[4] Drug offending is prevalent in the Territory and an increasing number of drug offenders are applying for 'Griffiths'[1] type bail after they have been remanded in prison for 28 days, or thereabouts, and before they have pleaded guilty so they may undergo residential rehabilitation programs in the community. Bail is frequently granted by the Court subject to conditions that: (1) the accused is not to consume dangerous drugs and is to undergo testing for the consumption of dangerous drugs; (2) the accused is be electronically monitored; (3) the accused is to enter into and complete a residential rehabilitation course while in the community; and (4) the accused is to reside at a specified place after completing the residential rehabilitation course. After completing the residential rehabilitation course in the community, drug offenders are then pleading guilty and asking that (1) any head sentence imposed by the Court be backdated to reflect, not only the time that they were remanded in prison, but the time they spent in the community at a specified place while being subject to electronic monitoring; and (2) that their sentence of imprisonment be suspended forthwith.

[5] The Court has recently passed a number of sentences of imprisonment on offenders[2] where the head sentence imposed on them has been backdated to reflect part of the time the offenders have been in the community under electronic monitoring. The backdating has been calculated as a percentage of the time the offender would have otherwise spent in prison on remand. However, at no stage prior to these two sentencing proceedings has the Court given full consideration or heard full argument about whether the Court has power to backdate in such circumstances or the basis on which the length of any backdating should be calculated. Nor has the Court received any evidence about the extent and degree of regulation and supervision that the offender has been subject to in the community.

[6] A consequence of this practice is that there is a risk that offenders, who have engaged in commercial drug trafficking, may receive disproportionally lenient sentences because there is a natural reluctance to re-incarcerate offenders who have completed a residential rehabilitation program.

[7] As a result of the matters referred to above, I requested Community Corrections to provide detailed reports about the extent and degree of the regulation and supervision of the offenders while they have been on bail, and I heard full argument from the Crown and the defence about whether the Court has power to backdate a sentence to reflect, at least part of, the time the offender has been subject to electronic monitoring at a specified place in the community.

[8] As was stated by the Victorian Court of Appeal in Akoka v The Queen[3] the nature and severity of bail restrictions and in particular the residential treatment programs on offer do vary. Where reliance is placed on residency at such a residential facility, evidence should be required to establish that it is appropriate for the court to give credit for such residency. It will be relevant for the court to know whether the residency is entirely voluntary or whether there is an element of compulsion. Of course, voluntary residency will continue to be relevant to the instinctive synthesis in other ways.

Backdating of sentences - section 63(5) of the Sentencing Act (NT)

[9] It is broadly accepted that s 63(5) of the Sentencing Act (NT) is the source of the Court's power to backdate sentences of imprisonment and the subsection covers the field. So much, is common ground between the parties.

[10] Subsection 63(4) and (5) of the Sentencing Act (NT) state:

• (4) Except as expressly provided or expressly ordered, a sentence of imprisonment on conviction, takes effect from the day the court passes sentence on the offender and a sentence of imprisonment on summary conviction takes effect from the commencement of the offender's custody under the sentence.

• (5) Where an offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment it may be ordered that such imprisonment must be regarded as having commenced on the day on which the offender was arrested or on any other day between that day and the day on which the court passes sentence.

[11] The ordinary meaning of 'custody' in this context is confinement of the person by the police, or in a prison, correctional centre or detention centre,[4] or at court. The orthodox view is also that such confinement is in the nature of civil detention aimed at ensuring an accused person's appearance before the Court at a future date.

[12] The leading authority on backdating sentences of imprisonment in the Northern Territory remains Nottle v Trenerry.[5] That case considered the operation of s 405(1) and (2) of the Criminal Code (as that section then was). Subsection 405(2) was in very similar terms to s 63(5) of the Sentencing Act (NT). Subsections 405(1) and (2) stated:

1. Except as hereinafter expressly provided and when expressly ordered a sentence of imprisonment upon conviction on indictment takes effect from the day the court passes sentence upon the offender and a sentence of imprisonment upon summary conviction takes effect from the commencement of the offender's custody under the sentence.

2. Where the offender has been in custody on account of his arrest for an offence and he is then convicted of that offence and sentenced to imprisonment it may be ordered that such imprisonment shall be regarded as having commenced on the day on which he was arrested or on any other day between that day and the day on which the court passes sentence.

[13] In Nottle v Trenerry, Mildren J applied R v McHugh[6] as to what was the correct practice in this regard. His Honour held the power to antedate a sentence conferred on the Court under s 405(2) is discretionary but it was well established that the failure to antedate a sentence is a sentencing error, unless reasons are given for the failure to adopt that practice.

[14] In R v McHugh[7] Street CJ stated:

It is a desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referrable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole period or non-probation period) should be backdated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole period or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing, in particular in relation to remission or reduction entitlements; recognition of this does not infringe the principle in R v O'Brien [1984] 2 NSWLR 449 that remissions and reductions are to be disregarded when determining the length of sentences, non- parole and non-probation periods. A judge departing from this practice could be expected to indicate his reasons for so doing.

[15] Since Nottle v Trenerry was decided it has become the invariable practice of the Court to backdate sentences to reflect the whole of the time that an offender has been in custody as described at [11], that is, either in police custody or in prison or detention on remand.

[16] Despite the fact that custody is not defined in s 3 of the Sentencing Act (NT), which is the interpretation section in the Act, the offenders contend that the ordinary meaning of the word 'custody' in s 63(5) of the Act has been enlarged by s 5(2)(k) of the Act. Subsection 5(2)(k) states that in sentencing an offender, a court must have regard to:

time spent in custody by the offender for the offence before being sentenced, including time the offender resided at a specified place in accordance with a conduct agreement under the Bail Act that contained a provision mentioned in section 27A(1)(iaa), (iab) or (ia) of that Act;

[17] Subsections 27A(1)(iaa), (iab) and (ia) of the Bail Act state a conduct agreement may:

(iaa) for bail granted by an authorised member - require the accused person:

(i) to wear or have attached, and to not tamper with, destroy or otherwise interfere with, an approved police monitoring device; and

(ii) to comply with the reasonable directions of a police officer in the use of the device; or

(iab) for bail granted by a court - require the accused person:

(i) to wear or have attached, and to not tamper with, destroy or otherwise interfere with, an approved police monitoring device; and

(ii) to comply with the reasonable directions of a police officer in the use of the device; or

(ia) for bail granted by a court - require the accused person:

(i) to wear or have attached, and to not tamper with, destroy or otherwise interfere with, an approved monitoring device while on bail or the lesser period ordered by the court; and

(ii) to allow the placing or installation in, and retrieval from, a specified place of anything necessary for the effective operation of the monitoring device; or

[18] The only requirement of the enlarged meaning of custody in s 5(2)(k) of the Sentencing Act (NT) is that the Court is to have particular regard to the time an accused person resides at a specified place in the community and is subject to electronic monitoring. It is the time spent in such circumstances that must be weighed by a sentencing court when determining the appropriate sentence to be passed.

[19] It was submitted that the enlarged meaning of custody in s 5(2)(k) of the Sentencing Act (NT) is to be applied when there is nothing in the context or the subject matter of a provision of the Act to the contrary. There is nothing in s 63(5) of the Act to the contrary. The effect of the inclusion of the time spent at a specified place while subject to electronic monitoring in the enlarged meaning of 'custody' is that such time is to be considered in the same manner as time spent in police custody or in prison on remand. Otherwise, the Legislature would have made separate provision in s 5(2) of the Act for electronic monitoring at a specified place.

[20] As s 63(5) of the Sentencing Act (NT) requires the Court to have regard for the time spent in police custody or in prison on remand by backdating a sentence of imprisonment, the subsection also requires the Court to backdate a sentence of imprisonment for the time an offender spends in the community at a specified place while subject to electronic monitoring.

[21] The offenders submit that s 63(5) of the Sentencing Act (NT) is to be read as if the words, 'including time the offender resided at a specified place in accordance with a conduct agreement under the Bail Act that contained a provision mentioned in section 27A(1)(iaa), (iab) or (ia) of that Act' were inserted after the word 'custody'. It is submitted that the requirement is justified as the subsections of the Bail Act referred to in s 5(2)(k) of the Sentencing Act (NT) all concern electronic monitoring which, when combined with the requirement to reside at a specified place, involves significant elements of control of the liberty of the person and the state of being watched or monitored to prevent nonappearance at court. Custody quintessentially includes those elements.[8]

[22] The Crown submits the proper construction of the Sentencing Act (NT) does not and cannot support the offenders' contentions. In s 5 of the Act the Legislature has set out sentencing guidelines. Subsection 5(1) of the Act stipulates the purposes for which a sentence may be imposed and s 5(2) lists various matters which a sentencing court must have regard to when formulating a sentencing disposition which achieves the stipulated sentencing purposes for a particular offender. The matters listed in s 5(2) are all matters which sentencing courts consider when engaging in the process of instinctive synthesis by which an appropriate sentence is to be determined for an offender. They are matters which are taken into account to formulate a sentence that fits not only the crime, but also the criminal. They are relevant to the purposes of sentencing and such matters as the objective seriousness of the offence, the offender's moral culpability, the offender's subjective circumstances, relevant mitigating factors, the offender's prospects of rehabilitation, remorse, hardship suffered by the offender including the extent to which an offender may have already been punished, harm suffered by the victim, totality and the extent to which the offender's post offence conduct has facilitated the administration of justice.

[23] It is only in respect of one of the matters listed in s 5(2) of the Sentencing Act (NT) that the Legislature has seen fit to specify how the Courts shall have regard to it. That matter is time spent in custody as described at [11]. In this regard, with relatively minor amendments, the Legislature has simply re-enacted s 405(1) and (2) of the Criminal Code which involved no consideration of the matters set out in s 27A(1)(iaa), (iab) or (ia) of the Bail Act. The enlarged meaning of custody in s 5(2)(k) of the Sentencing Act (NT) was inserted into the Act by s 26 of the Justice (Corrections) and Other Legislation Amendment Act 2011. Neither that Act nor The Statute Law Revision Act 2011 amended s 63(5) of the Sentencing Act (NT) so as to enlarge the ordinary definition of custody. It must therefore be assumed that the Legislature does not intend that s 63(5) of the Sentencing Act (NT) should apply to "time the offender resided at a specified place in accordance with a conduct agreement under the Bail Act that contained a provision mentioned in section 27A(1)(iaa), (iab) or (ia) of that Act", and it does not do so. There is no basis for reading those words into s 63(5) of the Sentencing Act (NT).

[24] That it is correct to interpret s 63(5) of the Sentencing Act (NT) in such a way that 'custody' is not to be given the enlarged meaning it is given in s 5(2)(k), is made even more apparent when s 63(5) is construed in its total context. In this regard it is important to note the following. First, s 5(2)(k) is in Part 2 of the Act which deals with general principles and sentencing guidelines. Secondly, s 63(5) of the Act is in Subdivision 3 of Division 5 of Part 3 of the Act. Subdivision 3 is concerned with imprisonment. Throughout Subdivision 3 'custody' has its ordinary meaning. This is so in s 60A(1), s 62(1), s 63(4), and s 63A(2) of the Act. Thirdly, wherever 'custody' is given an enlarged meaning in Division 5 of Part 3, which is headed 'Custodial orders', the word is expressly qualified. For example, the orders contemplated by Subdivision 2A are 'community' custody orders. Fourthly, unlike the Youth Justice Act[9], the Sentencing Act (NT) does not contain any provisions which expressly provide for 'Griffiths remand'.[10]

[25] The Crown also submitted that the interpretation of s 63(5) of the Sentencing Act (NT) contended for by the offenders would result in injustice for the following reasons. The principal restrictions on an accused's freedom in the community occur when there is a bail condition requiring an accused person to attend a residential rehabilitation program. The rules of most residential rehabilitation providers are very strict and they must be complied with if an offender is to successfully complete the program. The offender's interpretation of s 63(5) would mean that a low risk accused who had a bail condition requiring the accused to attend a residential rehabilitation program but no electronic monitoring condition would not be entitled to any backdating of their sentence of imprisonment for the time spent at a residential rehabilitation facility. Whereas a higher risk accused who had the same bail condition and an electronic monitoring condition would be entitled to backdating. This would be so even if the low risk accused completed the rehabilitation program and had an excellent exit report and the high risk accused failed the rehabilitation program. It would also mean that an accused who was bailed to a remote community with a curfew from 6pm to 6am as a bail condition, which was enforced by the police monitoring, because electronic monitoring did not work at that location would not receive any backdating of his or her sentence of imprisonment. Whereas, an accused who had as a bail condition a curfew from 12.00 pm to 6.00 am and electronic monitoring would have his or her sentence backdated.

[26] In New South Wales and the Australian Capital Territory the approach of sentencing courts in taking account of time spent by an offender in a rehabilitation facility is to backdate the commencement date of the sentence of imprisonment.[11] In Victoria there is no backdating of the commencement date of sentences of imprisonment but since the decision of the Victorian Court of Appeal in Akoka v The Queen[12] restrictive bail conditions which include a condition that an accused person is required to complete a residential rehabilitation program are taken into account by way of mitigation as part of the instinctive synthesis[13] process. Each of these jurisdictions have similar legislation to the Sentencing Act (NT) which sets out the purposes of sentencing, the available sentencing dispositions and sentencing guidelines. However, their legislative provisions for backdating the commencement of a sentence of imprisonment are different to the Northern Territory.

[27] In New South Wales s 47 of the Crimes (Sentencing Procedure) Act 1999 deals with the commencement of sentences. Subsections 47(1), (2) and (3) of the Act state:

(a) subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed, or

(2) A court may direct that a sentence of imprisonment:

(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or

(3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.

[28] The discretion granted to a sentencing court in New South Wales under s 47(2) is much wider than that granted to a sentencing court in the Northern Territory under s 63(5) of the Sentencing Act (NT). Other than that the sentencing court must take into account any time for which the offender has been in custody, there appears to be no constraint on a court's discretion in New South Wales to backdate the commencement date of a sentence of imprisonment. The mandatory requirement does not preclude a sentencing court in New South Wales taking into account time spent by an accused person on restrictive bail conditions which include attendance at a residential rehabilitation centre. Whereas in the Northern Territory backdating of the commencement of a sentence of imprisonment is confined to circumstances "where an offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment".

[29] In Hughes v The Queen[14] Grove J with whom McClellan CJ at CL and Simpson J agreed stated:

Ground 1 is focussed upon the pre-sentence entry by the applicant into rehabilitation programmes. He was in a residential programme conducted by WHOS for twenty days but he transferred to the Salvation Army Bridge Programme in order to avail himself of the one to one counselling available there. A letter from Mr Muendel, the Director, indicated his good response to that programme and suggested that it might profitably be completed, however his Honour declined to permit adjournment for that purpose so that the applicant participated in the latter programme from 12 December 2006 until he was committed into custody on 13 February 2007. It would appear then, that the applicant lived within the confines of residential rehabilitation facilities for about 103 days. It is apparent from Mr Muendel's report and his Honour's findings that the applicant made beneficial use of his opportunities.

It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50 percent of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588. What is here involved is therefore a potential backdating of a little over fifty days. I would reject the Crown submission that this ground should be rejected because that period is de minimis.

[30] The basis on which the commencement of a sentence of imprisonment is backdated in New South Wales when the accused has spent time on restrictive bail conditions, which include a condition that an accused person complete a residential rehabilitation program, is that such time is said to constitute quasi custody,[15] not custody. The courts in New South Wales have not expanded the meaning of custody but have developed the concept of quasi custody and then exercised their discretion to backdate the commencement of sentences of imprisonment where an accused has spent time on bail in the community in quasi custody.

[31] In R v Douglas[16] Gleeson CJ stated:

[T]his Court has, on a number of occasions, recognised the regime at Odyssey House, which is ultimately directed at treatment and rehabilitation in the case of drug users, as being of a quasi-custodial nature. Indeed on a number of occasions when considering credit that an offender ought to be given for presentence custody, or a regime in the nature of presentence custody, the Court has treated time spent at Odyssey House as warranting credit, if I may use that expression, in the order of approximately 50 percent of the credit that would be given for pre-sentence custody.

[32] However, the courts in New South Wales do recognise that there is a real distinction between pre-sentence custody and quasi custody. In R v Eastway[17] Hunt CJ at CL (with whom Gleeson CJ and Mathews J agreed) stated:

The evidence before the judge shows that, although there are no locked doors, the programme does not permit a resident to leave the Odyssey House premises for some nine months except for court appearances and to satisfy bail reporting requirements. Family visits are then permitted at Odyssey House itself, and next home visits are permitted provided that the resident is accompanied by a minder. ... [A representative of Odyssey House] told the judge that, in his opinion, it is harder to be in Odyssey House than to be in gaol because of the discipline, the structure, the demands, the expectations and the hard work involved in the programme.

With due respect, I think that is overstating the position to some extent. There is surveillance and there is a system in place where defaulters who are on bail are immediately reported to the police. But the fact remains that any resident who is on bail is free to leave Odyssey House at any time, although the most inevitable consequence of doing so is that he will then be returned to custody in gaol. There is nevertheless a real distinction.

[33] There is some similarity between s 5(2) of the Sentencing Act (NT) and s 33(1) of the Crimes (Sentencing) Act 2005 (ACT). Both subsections list matters which a court must take into account when sentencing an offender.

[34] The matters which must be taken into account under s 33(1) of the Crimes (Sentencing) Act 2005 (ACT) include whether the offender has complied with an order for assessment, treatment, referral or monitoring by the court alcohol and drug assessment service under s 40B(2) of the Act. Subsection 40B of the Crimes (Sentencing) Act 2005 (ACT) establishes a formal regime under which, before sentencing an offender, a court may order that an offender is to be assessed by the court alcohol and drug assessment service and undertake treatment in accordance with the assessment. However, there is no reference to these arrangements in the backdating provisions of the Act.

[35] Subsections 63(1), (2) and (3) of the Crimes (Sentencing) Act 2005 (ACT) deal with backdated sentences in the Australia Capital Territory. The subsections state:

• (1) The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.
• (2) For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.
• (3) However, subsection (2) does not apply to -

  • (a) a period of custody of less than 1 day; or

  • (b) a sentence of imprisonment of less than 1 day; or

  • (c) a sentence of imprisonment that is fully suspended; or

  • (d) the suspended part of a partly suspended sentence of imprisonment.

[36] The breadth of the discretion granted to the courts in the Australian Capital Territory under s 63 of the Crimes (Sentencing) Act 2005 (ACT) to backdate the commencement of a sentence of imprisonment is similar to that granted to the courts in New South Wales. There is no reference to custody of any kind in s 63(1) of the Act. The provisions are wide enough for courts to take into account any periods of quasi custody by appropriately backdating the commencement of a sentence of imprisonment.

[37] In Wronski v Raue[18] her Honour Penfold J stated:

[Subsection] 63(1) is not, on its face, limited to cases where there is local pre-sentence custody. It seems to me that s 63(1) also permits backdating to take account of other matters such as residential rehabilitation (as to which there would certainly be no presumption of backdating) ....

[38] Her Honour Penfold J's construction of s 63(1) of Crimes (Sentencing) Act 2005 (ACT) appears to have been consistently followed in the Australian Capital Territory since her decision in Wronski v Raue. In R v Elphick (No 2)[19] his Honour Refshauge J accepted that in an appropriate case residential rehabilitation could be taken into account under s 63(1) of the Act. His Honour Also held that s 63(1) of the Act did not require full accounting of the period of pre-sentence custody or residential rehabilitation. Those matters were only required to be taken into account to the extent that was fair in all the circumstances.[20]

[39] In R v Eyles (No 3)[21] Refshauge J stated:

This Court also regularly recognises that time spent in specialist residential drug rehabilitation and other confinement, can be wholly or partly taken into account.

Including the time in Odyssey House (91 days in total) and Arcadia House (Day Program apparently approximately 20 days, Transition Program 16 days) there are 107 days of full-time rehabilitation. I did not have complete details of the participation in the Day Program and that, of course, is deserving of lesser consideration.

The courts have variously allowed from one-half to the full amount of time spent in full time residential rehabilitation, especially with programs that are more rigorous such as, for example, the Odyssey House Program, to count as relevant to sentence.

I must also take into account that Mr Eyles has, not without some significant prompting, completed the 100 hours of community service work which must also be taken into account as it was part of the sentence when the term of imprisonment was suspended.

Mr Eyles had completed a little less than 11 months of his Good Behaviour Order before he committed the further offence and, until he was remanded in custody on 5 December 2016, 27 months of the Good Behaviour Order.

In my view, the matters to which I have referred show that it is reasonable to accept that Mr Eyles should be given credit for between four and six months of the 12 months sentence for the prior custody and other matters.

[40] As to Victoria, s 18 of the Sentencing Act 1991 (Vic) states:

18 Time held in custody before trial etc. to be deducted from sentence

(1) If an offender is in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order, any period during which he or she was held in custody in relation to -

(b) proceedings arising from those proceedings including any period pending the determination of an appeal -

must be reckoned as a period of imprisonment or detention already served under the sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders.

(a) to a period of custody of less than one day; or

(b) to a sentence of imprisonment or period of detention in a designated mental health service of less than one day; or

(d) to a period of custody previously declared under this section or section 35 as reckoned to be a period of imprisonment or detention already served under another sentence of imprisonment or detention or Court Secure Treatment Order imposed on the offender.

(3) If an offender was held in custody in circumstances to which subsection (1) applies, then -

(a) the informant or person who arrested the offender must, if present before the court, inform it, whether from his or her own knowledge or from inquiries made by him or her, of the length of the period of custody; or

(b) if that person is not present before the court, it may take and receive other evidence (whether oral or written and whether on oath or otherwise) of the length of the period of custody.

(4) If an offender was held in custody in circumstances to which subsection (1) applies, then the court must declare the period to be reckoned as already served under the sentence and cause to be noted in the records of the court the fact that the declaration was made and its details.

(5) The person with custody of the record referred to in subsection (4) must indorse on the warrant or other authority for the imprisonment or detention of the offender particulars of the matters referred to in that subsection.

(6) If a person charged with a series of offences committed on different occasions has been in custody continuously since arrest, the period of custody for the purposes of subsection (1) must be reckoned from the time of his or her arrest even if he or she is not convicted of the offence with respect to which he or she was first arrested or of other offences in the series.

(7) If on an application under this subsection the sentencing court is satisfied that the period declared under subsection (4) was not correct it may declare the correct period and amend the sentence accordingly.

(8) An application under subsection (7) may be made by -

(b) the Director of Public Prosecutions, if the sentencing court was the Supreme Court or the County Court; or

(c) the informant or police prosecutor, if the sentencing court was the Magistrates' Court.

[41] Under s 18(1) of the Sentencing Act 1991 (Vic) any period of presentence custody in relation to proceedings for any offence, or proceedings arising from those proceedings, must be reckoned as a period of imprisonment or detention already served under the sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders. Under s 18(4) of the Act the sentencing court must declare the period to be reckoned as already served under the sentence and cause to be noted in the records of the court the fact that the declaration was made and its details. Subsection 18(1) of the Act appears to create a presumption that presentence custody must be recognised as a period of imprisonment or detention already served unless otherwise ordered for good reason.

[42] In R v Renzella[22] the Victorian Court of Appeal held that s 18(1) of the Sentencing Act 1991 (Vic) only applied where an offender was sentenced to a term of imprisonment and there was a period of time during which the offender was held in custody in relation to proceedings for that offence, or proceedings arising from them, and for no other reason. In other cases the section was silent and a court was not only empowered but obliged as a matter of justice to take presentence detention into account.

[43] R v Renzella involved an appeal against conviction and a Crown appeal against sentence. The relevant ground of the Crown's appeal against sentence was, "the learned sentencing judge erred in that he took into account time which the applicant had spent in custody prior to trial - (a) after ruling that s 18(1) of the Sentencing Act 1991 was inapplicable; and (b) in reduction of both the head sentence and the minimum term". The relevant time in custody was the period which the accused had spent in detention in relation to an unrelated charge. The Crown case on appeal was that it was the intention of Parliament that s 18 of the Sentencing Act 1991 (Vic) "cover the field" in so far as credit was to be given to a convicted person for time spent in custody awaiting trial or sentence. The Victorian Court of Appeal held that s 18 of the Act did not cover the field. The section only applied where an offender is sentenced to a term of imprisonment and there is a period of time during which the offender was held in custody in relation to proceedings for that offence or proceedings arising from them and for no other reason. Relying on R v Heaney[23] and R v Judge Frederico; Ex parte Attorney-General,[24] the Victorian Court of Appeal held that regard could be had by a sentencing court to other kinds of presentence detention. Section 18 of the Act did not exclude the Courts discretion to do so. In cases other than that subject to s 18 of the Act, the section is silent and a court is not only empowered but obliged as a matter a matter of justice to take presentence detention into account. "The penalty is after all, determined for the circumstances of the offender as well as for the circumstances of the offence."[25] Where s 18 of the Act applies, "presentence detention is to be reckoned as a period of imprisonment already served under the sentence, and a declaration made to that effect, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders. Presentence detention to which s 18 does not apply is to be taken into account in the exercise of the Court's discretion."[26]

[44] In Akoka v The Queen[27] the relevant issue on appeal for the Victorian Court of Appeal was whether the sentencing judge had erred in failing to take into account, as a form of presentence detention or additional punishment, the 12 months the applicant had spent engaging in a residential drug rehabilitation program at Odyssey House up until the date of sentence. The applicant submitted that the period of nearly 12 months that he spent as a resident at Odyssey House gave rise to two separate sentencing considerations. The first consideration was the progress that he had made towards his rehabilitation during the residency. The second consideration was the 'credit' that should be given to the 'quasi-custody' nature of the residency by analogy to pre-sentence detention or 'Renzella time'.[28]

[45] The Victorian Court of Appeal in Akoka v The Queen allowed appeal on the following grounds.[29]

[105] In our opinion, subject to the observations that follow, the approach adopted in New South Wales and the Australian Capital Territory is correct and it should be followed in Victoria. Such an approach will also promote comity with the courts of other Australian jurisdictions. That approach, adapted in the manner discussed below, will require Victorian sentencing courts to give greater emphasis than in the past to the punitive element of residency in a rehabilitation facility such as Odyssey House.

[106] As has been demonstrated in the present case, residency at a rehabilitation facility has the potential to significantly assist an offender's rehabilitation. In particular, such residency may assist an offender to overcome drug dependency and other factors that have contributed to his or her offending and to develop strategies for becoming a law abiding citizen. These outcomes benefit not only the offender but also the community. It is in the interests of the community for offenders - particularly young offenders - to reform and make positive contributions to the community rather than spend their lives in and out of prison for increasingly more serious offending.

[107] The evidence in the present case indicates that residency at Odyssey House involves significant restrictions on the liberty of those undertaking the treatment offered by that facility. It is likely that other rehabilitation facilities impose similar restrictions. However, the nature and severity of the restrictions and the treatment programs on offer may vary as between different facilities. Where reliance is placed on residency at such a facility, evidence will be required to establish that it is appropriate for the Court to give credit for such residency. It will be relevant for the court to know whether the residency is entirely voluntary or whether there is an element of compulsion as in the present case, where residence at Odyssey House was a condition of the applicant's bail. Of course, voluntary residency will continue to be relevant to the instinctive synthesis in other ways.

[108] According to the evidence of Mr Smithers, there is a significant 'drop out' rate among Odyssey House residents, with only 10 to 20 per cent of them progressing through to the third stage of the treatment program.94 Those who complete all stages of the program have a good chance of adopting a positive value system that can equip them to cope with the vicissitudes of life without reverting to unlawful or anti-social behaviour.

[109] Self-evidently, it is in the community's interest that offenders - particularly young offenders with substance abuse problems - seek assistance from residential rehabilitation facilities and complete the rigorous treatment programs that they offer. Offenders will be encouraged to seek residential treatment if it is understood that sentencing judges will acknowledge, and give credit for, the punitive nature of residency in such a facility. The extent of that credit will depend on the circumstances of each case, including the nature and severity of the restrictions to which an offender has been subject and the duration of the offender's residency. Clearly, the period of residency must post-date the commission of the offences for which the offender is being sentenced. Further, a period of residency cannot be doubly credited. Thus, where the offender is sentenced on different occasions for separate offences following a period of residency, credit for that period can be given on only one of those occasions.

[110] The credit referred to at [109] above will, as with all other sentencing discounts, form part of the application of the instinctive synthesis without being numerically identified. However, as with other significant sentencing considerations, a sentencing judge should ordinarily explain how the punitive nature of residency at a rehabilitation facility has informed - in terms of the weight assigned to it - the instinctive synthesis.

[111] Although residency at a rehabilitation facility has punitive elements, credit for it cannot be given in the same way as pre-sentence detention. Pre-sentence detention involves time spent in custody and, in accordance with s 18(1) of the Sentencing Act 1991, it must be deducted from a custodial sentence in a precise mathematical manner for the entire period the offender has spent in detention. On the other hand, residence at a rehabilitation facility, no matter how restrictive and punitive, is not equivalent to time spent in custody. It will not ordinarily result in a deduction of the entire period of residency from a custodial sentence.

[112] For these reasons, residency at a rehabilitation facility is also different in nature to Renzella time. Although Renzella time is actual time spent in custody, it falls outside s 18 of the Sentencing Act 1991. As Renzella time is real incarceration it will usually be given greater weight than time spent in a residential rehabilitation facility.

[113] In the present case, the judge acknowledged that the applicant's residency at Odyssey House for nearly 12 months had a punitive element as well as a rehabilitative element and stated that he had taken both elements into account. However, while the judge devoted several paragraphs of his sentencing remarks to discussing the rehabilitative element, his discussion of the punitive element was confined to a single sentence explaining why he fixed a shorter than usual non-parole period.

[114] It is not entirely clear whether the judge confined his consideration of the punitive element to the non-parole period, but the sentencing remarks, read as a whole, indicate that he misapprehended the real significance of this element. Moreover, until now, there has been no focus in Victoria upon how the punitive aspect of restrictive residency should be treated. Had the judge appreciated the full impact of the restrictive nature of the applicant's residency and how it should inform the exercise of his sentencing discretion, there would no doubt have been reference made to it in the sentencing remarks. It was necessary that it be indicated that the restrictive residency had resulted in a lowering of both the head sentence and the non-parole period

[46] With the greatest respect to the members of the Victorian Court of Appeal, I find the above reasons a little ambiguous. The ambiguity arises because both the punitive and the rehabilitative aspects of time spent in a residential rehabilitation facility are considered by the Court of Appeal. In paragraph [109] the Court of Appeal refers to both aspects of residency in such a facility. However, the primary emphasis is on credit for the punitive nature of residency in such a facility. In paragraph [110] the Court states that the credit referred to in paragraph [109] (that is, for the punitive aspect of residency in such a facility) will form part of the instinctive synthesis without being numerically identified. The statement appears to be contradicted in paragraph [111] where the Court of Appeal states that residency at a rehabilitation facility will not ordinarily result in a deduction of the entire period of residency from a custodial sentence. The latter statement suggests that, nonetheless, there is to be a deduction. It is unclear whether this is to be a numerical deduction or not.

[47] Doing the best I can, it seems to me that the approach adopted by the Victorian Court of Appeal means that the punitive aspect of residency at a rehabilitation facility is to form part of the application of the instinctive synthesis and will result in a lowering of both the head sentence and the non-parole period but will not result in a numerical deduction.

[48] In seems to me that the review of the law in these three Eastern jurisdictions leads to the following conclusions. There is a dichotomy in the approach adopted by New South Wales and the Australian Capital Territory on the one hand and Victoria on the other. Nonetheless, justice requires a sentencing court to take into account both the punitive and rehabilitative effects of therapeutic conditions of bail in a way which ameliorates or mitigates the ultimate sentencing disposition. Both matters are to be taken into account. The weight to be given to such matters will depend on how punitive or restrictive the bail conditions are and how successful the accused person has been in rehabilitating himself or herself. However, the precise manner in which the sentence is to be mitigated depends on the provisions of the sentencing legislation in each jurisdiction. In this final regard, none of the authorities dealing with the mechanical aspects of the legislative provisions in the other jurisdictions is of great assistance in interpreting s 63(5) of the Sentencing Act (NT).

[49] Prior to determining the interpretation to be given the relevant provisions of the Sentencing Act (NT), it is important to note the basic rationale of granting a person bail. Messrs Freiberg and Morgan succinctly and accurately state the rationale to be:

[I]t is that a person who is taken into custody for an alleged criminal offence may be set at liberty upon entering into an undertaking to appear before a court at some later date. The undertaking can be conditional and the alleged offender may be asked to find another person or persons (surety) to enter into a similar undertaking to ensure that the accused appears in court on the due date.

Though legislation varies between jurisdictions, it is common ground that the primary considerations in determining whether or not bail should be granted are (1) to ensure that an offender will appear before a court to determine his or her guilt or innocence (or for sentencing); (2) to protect witnesses; (3) to ensure the safety of the defendant, and (4) to ensure that the defendant will not commit further offences before the matter is brought to trial. Courts will also have regard to the interests of the person in relation to the period of time which may be spent in custody, the conditions under which they may be held and their ability to obtain legal advice and prepare their case.

In essence, therefore, bail laws are designed mainly to ensure the smooth and effective running of the justice system with respect to the processing of past events, not a means of imposing positive obligations upon a person in order to provide a new basis for future decisions. They are 'criminal process-oriented' rather than 'performance-based'. The conditions that traditionally attach to bail are designed to ensure that these purposes are satisfied. The standard bail conditions relate to the provision of undertakings, deposit of money or security and/or sureties. Special conditions, such as surrender of a passport, reporting to police, restrictions on movement or association with named individuals may also be imposed to secure the four basic purposes of bail [references omitted].[30]

[50] Further, as Messrs Freiberg and Morgan state:

A person on pre-trial bail has not been convicted of an offence and is to be treated as innocent until proven guilty. Consequently, there is no mandate for pre-trial punishment. Bail has not been regarded as a sentencing, or final dispositional option and 'punitive' remands (where the person is remanded in custody as a short punishment) are objectionable in principle. A sentence, on the other hand, is ·a dispositive order of a criminal court consequent upon a finding of guilt, whether or not a formal conviction is recorded'. A sentencing order may require the consent of the offender. A wide definition of a sentence may include adjournment of proceedings to determine whether the offender can conforn1 to the conditions imposed, but sentencing orders are usually regarded as a final disposition, following which the court is functus officio [references omitted].[31]

[51] On their face the provisions of s 27A(1)(iaa), (iab) and (ia) of the Bail Act (NT) are not inconsistent with the above principles if the restrictive conditions are imposed in accordance with the primary considerations for determining whether or not bail should be granted.

[52] It seems to me that the correct construction of s 63(5) of the Sentencing Act (NT) is that the subsection covers the field and does not apply to any electronic monitoring conditions which are made conditions of an accused's bail in accordance with s 27A(1)(iaa), (iab) and (ia) of the Bail Act. Nor does the subsection apply to time spent in a rehabilitation facility on stringent conditions. I accept the Crowns submissions in this regard. Such conditions do not constitute custody as described at [11]. There can be no backdating for electronic monitoring or time spent in residency at a residential rehabilitation facility under the Sentencing Act (NT). Even adopting the statement of his Honour Riley J (as his Honour then was) in Alimudin v McCarthy and Nurdin v Bravos[32] that provisions such as s 63(5) should be given the widest available application, there is no basis for inserting the words, "including time the offender resided at a specified place in accordance with a conduct agreement under the Bail Act that contained a provision mentioned in section 27A(1)(iaa), (iab) or (ia) of that Act", into s 63(5) of the Act. As his Honour Riley J noted, the widest available application must be consistent with the wording of the provision.

[53] The extent to which a sentencing Judge should take into account time spent on bail subject to restrictive conditions, such as a curfew or home detention, was considered by the Court of Criminal Appeal of the Northern Territory in Pappin v The Queen.[33] At [17] to [19] his Honour Martin (BR) CJ, with whom the other members of the court concurred, stated:

[17] The extent to which a sentencing Judge should take into account time spent on bail subject to restrictive conditions such as a curfew or home detention has been the subject of discussion in a number of authorities in South Australia: R v Bruce and Hollick (1998) 71 SASR 536; R v Malesevic (1999) 204 LSJS 32; R v Allen [1999] SASC 346; R v Nguyen [2004] SASC 405. It is unnecessary to canvass those authorities in detail. They demonstrate that if an offender has been subjected to bail with restrictive conditions such as home detention for a significant period, although it is permissible for a sentencing court to make some reduction by reason of that curtailment of liberty, the court is not obliged to do so. The case for a reduction may be greater if the stringent conditions of bail were imposed by reason of a more serious charge which was subsequently withdrawn.

[18] In my view the approach taken in the South Australian authorities is consistent with principle. If, by reason of restrictive bail conditions, the liberty of an offender has been significantly curtailed, it is open to a sentencing court to take that fact into account. Generally speaking, however, it will not be an error to decline to do so. The point of error will only be reached if the nature of the curtailment of liberty and the period of that curtailment demonstrate that in substance the offender has already suffered a penalty of significance.

[19] The sentencing Judge was well aware that the appellant had been subject to restrictive bail conditions for a period of four months. There is no basis for an assumption that her Honour did not take that fact into account. In addition, given the nature of the restrictive conditions and the period during which those conditions applied, in my view a failure to take that matter into account would not amount to an error of principle or fact justifying interference by this Court. The circumstances are not such as to warrant a finding that by reason of the restrictive bail conditions the appellant had already suffered a penalty of such significance that it should be reflected in a lesser sentence.

[54] The effect of the Court of Criminal Appeal's decision in Pappin v The Queen is that it is permissible for a sentencing judge to make a reduction in the sentence that might otherwise have been imposed if restrictive bail conditions have resulted in a curtailment of an accused's liberty. But the sentencing judge is not obliged to do so. A point of error will only be reached if the court fails to take the conditions into account, and the nature of the curtailment of liberty and the period of that curtailment demonstrate that in substance the offender has already suffered a penalty of significance. The decision of the Court of Criminal Appeal is binding on me.

[55] Pappin v The Queen was most recently considered by the Court of Criminal Appeal in Forrest v The Queen[34] for different reasons. However, there was no suggestion in that case that the principles enunciated in Pappin v The Queen should be revisited.

[56] Pappin v The Queen was decided before the words, "including time the offender resided at a specified place in accordance with a conduct agreement under the Bail Act that contained a provision mentioned in section 27A(1)(iaa), (iab) or (ia) of that Act", were inserted into s 5(2)(k) of the Sentencing Act (NT). However, given my interpretation of s 63(5) of the Act, it seems to me that the decision in Pappin v The Queen is still applicable; with perhaps the only qualification being that a sentencing judge must consider whether there should be a reduction in the sentence which might otherwise have been imposed because of the length of time a person has been subject to electronic monitoring while on bail.

[57] The approach taken in Pappin v The Queen is consistent with the principles of instinctive synthesis addressed by the High Court in Markarian v The Queen.[35] There does not appear to be any requirement to state the extent of any reduction of a sentence because of stringent bail conditions. However, given it was stated in Akoka v The Queen[36] that "offenders will be encouraged to seek residential treatment if it is understood that sentencing judges will acknowledge, and give credit for, the punitive nature of residency in such a facility", the better practice may be for the sentencing judge to state the extent of any reduction on the same basis that the extent of a reduction in sentence for a guilty plea is stated by the sentencing judge.

[58] In accordance with the reasoning set out above, I find the court does not have power to backdate the commencement of a sentence of imprisonment for either the time an offender spends in the community on electronic monitoring under the provisions of s 27A(1)(iaa), (iab) or (ia) of the Bail Act, or on bail on stringent conditions at a residential rehabilitation facility. However, a sentencing court may consider such matters and may because of them reduce a sentence of imprisonment which might otherwise have been imposed on an offender. A point of error will only occur if the accused's bail conditions demonstrate that in substance the offender has already suffered a penalty of significance and the sentencing court fails to take this fact into account and reduce the sentence of imprisonment accordingly.

[59] It also seems to me that a sentencing court should very carefully consider whether an accused person should be granted bail to undertake a rehabilitation program before an accused person has pleaded guilty. I agree with Messrs Freiberg and Morgan[37] that legal structures matter. I further agree with them that "[b]ail is not a sentencing option, nor should it be an alternative to sentence." Bail should not be treated as a deferred sentence. A sentencing court should be careful to avoid this kind of conflation. It has the potential to result in disproportionally lenient sentences. Commonly, sentencing courts do not have all of the facts of the offending to be able to decide the appropriate sentence to be imposed on the accused at the time bail is granted.

[1] Griffiths v The Queen (1977) 137 CLR 293.

[2] R v Lowe, SCC 21715822, 1 September 2017; R v Ralph Forbes SCC 21646710, 15 August 2017, Southwood J; R v Stephen Edwards SCC 21634627, 27 April 2017; R v Rhys Watts SCC 21632323, 26 April 2017; R v Currado Calesso SCC 21558128, 11 November 2017.

[3] [2017] VSCA 214 at [107].

[4] It includes detention under clause 8 of Schedule 1A of the Fisheries Management Act 1991 (Cth) and immigration detention under s 250(3)(a)(i) of the Migration Act 1958 (Cth): Alimudin v McCarthy; Nurdin v Bravos [2008] NTCA 7, (2008) 23 NTLR 102. The main issue in that case was not the meaning of "custody" but whether the appellants were "in custody on account of his ... arrest for an offence".

[5] [1993] NTSC 47; (1993) 3 NTLR 68.

[7] (1985) 1 NSWLR 588 at 590 - 1.

[8] Eatts v Dawson [1990] FCA 158; (1990) 21 FCR 166 per Morling and Gummow JJ at 179.

[9] Youth Justice Act (NT), s 83(1)(d).

[10] Griffiths v The Queen (1977) 137 CLR 293.

[11] Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(2); Hughes v The Queen [2008] NSWCCA 48 at [37] and [38][2008] NSWCCA 48; , 185 A Crim R 155 at [37] and [38]; Crimes (Sentencing) Act (ACT), s 63(1); R v Eyles (No 3) [2017] ACTSC 1; R v Elphick (No 2) [2015] ACTSC 23 at [86] - [90].

[12] [2017] VSCA 214.

[14] [2008] NSWCCA 48 at [37] and [38][2008] NSWCCA 48; , 185 A Crim R 155.

[15] The notion seems to have first arisen in this context R v Cartwright (1989) 17 NSWLR 243 at 258-259 where the New South Wales Court of Appeal took into account a period of 8 months spent by the applicant, who was nominally on bail but who was in fact away from his home and under the direction and supervision of the Federal Police while he was giving them assistance in their inquiries. The arrangement was described as quasi custody.

[16] Unreported, New South Wales Court of Criminal Appeal, 4 March 1997.

[17] Unreported, New South Wales Court of Criminal Appeal, 19 May 1992.

[18] [2012] ACTSC 87 at [10]; see also Okwechime v Sindel [2009] ACTSC 162; (2009) 235 FLR 299 at [65].

[19] [2015] ACTSC 23 at 89.

[21] [2017] ACTSC 1 at [103] - [108].

[22] [1997] 2 VR 88.

[23] Unreported, Victorian Court of Appeal, 27 March 1996.

[24] [1971] VicRp 51; [1971] VR 425 at 430.

[25] R v Renzella [1997] 2 VR 88 at 96; R v Judge Frederico: Ex Parte Attorney-General [1977] VR 425 per Gowans J at 430.

[27] [2017] VSCA 214.

[30] A Freiberg and N Morgan, Between bail and sentence: the conflation of dispositional options, (March 2004) 15 Current Issues in Criminal Justice 220 at 221 - 222.

[31] A Freiberg and N Morgan, Between bail and sentence: the conflation of dispositional options, (March 2004) 15 Current Issues in Criminal Justice 220 at 222.

[32] [2008] NTCA 7 at [25]; [2008] NTCA 7; (2008) 23 NTLR 102.

[33] [2005] NTCCA 2.

[34] [2017] NTCCA 5.

[36] [2017] VSCA 214 at [109].

[37] A Freiberg and N Morgan, Between bail and sentence: the conflation of dispositional options, (March 2004) 15 Current Issues in Criminal Justice 220 at 226 and 234.