R v Jennings

[1998] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 23 of 1998

THE QUEEN

v

ANDREW PAUL JENNINGS

---

JUDGES:	BROOKING, TADGELL and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 May 1998, 4 June 1998
DATE OF JUDGMENT:	13 October 1998
CASE MAY BE CITED AS:	R. v. Jennings
MEDIA NEUTRAL CITATION:	[1998] V.S.C.A. 69

---

CRIMINAL LAW - Sentence - Appeal against - Appellant in custody since original sentence - Crimes Act providing that time served pending appeal shall not count unless Court of Appeal orders that it shall - Whether provision still operative - "Pre-sentence detention" - Declaration by Court of Appeal concerning - Time in custody pending appeal.

CRIMINAL LAW - Sentence - Appeal against - Substitued sentence passed - Date as at which substituted sentence is imposed.

CRIMES ACT 1958, ss. 567A(4), 568(4), 579(3).

SENTENCING ACT 1991, ss.17, 18.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. T. Gyorffy	P.C.Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. G. Mullaly	Coulter Bourke

BROOKING, J.A.:

1. On 2 June 1998 we dealt with an application by Andrew Paul Jennings for leave to appeal against sentences passed upon him in the County Court on 30 January 1998. We formed the view that his proposed appeal could not succeed on the merits but that it should be allowed for the purpose of more clearly effectuating the sentencing judge's undoubted intention regarding the total effective sentence and for the purpose of making a declaration about pre-sentence detention which her Honour had not made because she had not been told of the relevant detention. We made orders designed to dispose of the matter by allowing the appeal for the limited purposes mentioned. Shortly afterwards it was represented to us that the declaration made by us was of too short a period in that, while crediting the applicant with the 79 days' detention mentioned in the reasons for judgment, it failed to credit him in addition with the period spent by him in custody between sentence and determination of appeal.

2. Accordingly the Court reconvened and heard further argument on 4 June 1998. In the course of this the Court raised for the first time the question of the effect of s.579(3) of the Crimes Act 1958, the provision whereby time served pending appeal is not to count unless the appellate court orders that it shall. We sought assistance on whether that provision should be regarded as still operative. We invited written submissions from the parties and adjourned the matter for further consideration, directing that in the meantime our order of 2 June be not authenticated.

3. Section 579 of the Crimes Act has been on the Statute Book a long time. Its ultimate ancestor is s.14 of the Criminal Appeal Act 1907, which established a Court of Criminal Appeal for England and Wales. That section does not differ markedly from s.579 of the present Victorian Crimes Act. Sub-section (1) of s.14 of the English Act provided that an appellant who was not admitted to bail should, pending the determination of his appeal, be treated in such manner as might be directed by prison rules within the meaning of the Prison Act 1898. Those rules are to be found in Wrottesley & Jacobs, The Law and Practice of Criminal Appeals (1910), at pp.233- 5, and Ross, The Court of Criminal Appeal (1911), at pp.222-3. The rules ameliorated the position of appellants, in comparison with other prisoners, in more ways than one. When in prison they could wear a prison dress of a different colour from that worn by other convicted prisoners; they were not to be required to sleep without a mattress except in cases of misconduct; they were to be employed at work of an industrial or manufacturing nature and provision was made for the payment to them of earnings in the event of their release in consequence of a successful appeal; writing materials were to be furnished to them not only for the purpose of preparing the appeal but also for the purpose of communicating with friends. Further provision was made in the rules to enable appellants to communicate with their legal advisers for the purposes of the appeal.

4. The Act in Victoria which established the Court of Criminal Appeal is the Criminal Appeal Act 1914, of which s.14 is the presently relevant section. This did not differ substantially from the corresponding section in the English Act of 1907. Section 14(1) of the Victorian Act required appellants not admitted to bail to be treated, pending the determination of the appeal, in such manner as might be directed by rules and regulations under s.51 of the Gaols Act 1890. On 14 April 1915 regulations were made under s.51 of the latter Act dealing exclusively with the treatment of prisoners who had appealed under the Criminal Appeal Act 1914. They improved the position of appellants to a considerable extent. Appellants were to be kept apart from other prisoners; not to be subjected to the terms of separate confinement provided for in the general regulations for certain categories of prisoner; not to be photographed or have their fingerprints taken except for the purposes of identification; not, generally speaking, to be shaved or to have their hair cut unless they desired it; to be allowed visits from relatives or friends for the preparation of the appeal and to be afforded other facilities for that preparation. Regulation 13 reflected s.14(3):

   "Where an appellant's case is determined by the Full Court and such appeal is dismissed or the sentence varied, the sentence shall, subject to any directions which the Court may give, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and if he is not in custody, as from the day on which he is received into prison under the sentence."

5. The present section, s.579 of the Crimes Act 1958, begins, by s.s.(1), by requiring appellants not admitted to bail to be treated, pending the determination of the appeal, in such manner as may be directed by rules and regulations under s.203 of the Community Services Act 1970. The latter Act has undergone more than one change of name. It was originally the Social Welfare Act 1970. It formerly contained many provisions concerning the treatment of those who offend against the criminal law, for example, provisions dealing with prisoners and with probation and parole. The regulation-making power was originally contained in s.182 of the Social Welfare Act. That section empowered the Governor-in-Council to make regulations for or with respect to a number of matters concerning prisoners. Section 182 was amended, and renumbered 203, by the Social Welfare Act 1973. In consequence of the renumbering of the section and the renaming of the Social Welfare Act, s.579(1) of the present Crimes Act, as already mentioned, refers now to rules and regulations under s.203 of the Community Services Act 1970. As a result of the removal from what is now the Community Services Act 1970 of the provisions dealing with the treatment of offenders, the regulation-making power conferred by s.203 of that Act no longer extends to matters concerning prisoners. There are no longer in force any regulations dealing with prisoners under what was formerly called the Social Welfare Act (by which name I shall continue to call it). The treatment of prisoners is now governed by regulations made under the Corrections Act 1986, those presently in force being the Corrections Regulations 1998. These regulations make no special provision concerning prisoners who have launched an appeal under Part VI of the Crimes Act.

6. The regulations made under the Social Welfare Act 1970 which formerly governed the treatment of prisoners were the Social Welfare Regulations 1962 as amended. The only provision of those regulations putting in a special position prisoners who had launched an appeal under Part VI of the Crimes Act was clause 16A, paragraph (c) of which empowered the governor of a prison to direct that an unconvicted prisoner or a prisoner who had appealed against sentence be exempted from the regimen regarding shaving and length of hair where the existence or length of whiskers, beard or moustache, or the length of hair, was relevant to the defence or appeal.

7. The scheme of the legislation now to be found in s.579 of the Crimes Act is, and has ever since its enactment in Victoria in 1914 been, to provide, by s.ss.(1) and (3) of the relevant section, that appellants who are not admitted to bail shall pending the determination of the appeal be treated in a special manner as directed by regulation and that the original sentence of imprisonment, if it is not disturbed on appeal, or, if the appeal results in the substitution of a different sentence of imprisonment, the substituted sentence, is to be deemed to be resumed or to begin to run, as the case requires, as from the day on which the appeal is determined. As regards the period during which the appellant has been in custody since the institution of his appeal and accordingly (in consequence of s.s.(1)) given special treatment as an appellant under the section, that period is not to count as time served under the original or, as the case may be, substituted sentence unless the appellate court directs that it shall count.

8. It has been said that s.14(3) of the English Act of 1907 was intended to discourage unnecessary appeals: Pattenden, English Criminal Appeals 1844-1994, pp.113-6 and 243, where both the practice and the legislative changes are discussed. It may be noted that, notwithstanding s.14(3), in the early case of R. v. James & Sharman (1913) 9 Cr.App.R. 142 at 144 the Court said, "When a sentence is altered, it runs from the date of conviction", and that in R. v. Clue (1930) 21 Cr.App.R. 68 the Court substituted a sentence of 26 days' imprisonment, "to run from the first day of the York Assizes", that being the day from which, by a legal fiction preserved in England until s.17 of the Criminal Justice Administration Act 1962, the original sentence ran. It is perhaps also worth noting that the provision in New South Wales corresponding to the present Victorian s.579 (s.18 of the Criminal Appeal Act 1912) has been considered by the Court of Criminal Appeal in a number of cases, including R. v. Crawford (1915) 38 W.N.(N.S.W.) 141; R. v. Brennan [1974] 1 N.S.W.L.R. 618; R. v. Cuthbertson [1974] 1 N.S.W.L.R. 672; R. v. Niblett [1981] 1 N.S.W.L.R. 738; R. v. Shutt [1986] 5 N.S.W.L.R. 232; R. v. Costace (unreported, 13 November 1990), and that the section in South Australia (s.364 of the Criminal Law Consolidation Act 1935) was considered in R. v. Thompson (1979) 22 S.A.S.R. 12 and R. v. Malvaso (No. 2) (1989) 50 S.A.S.R. 541.

9. In Victoria there is very little discussion to be found of the effect of s.579 except as regards the provision it makes for admission to bail. In R. v. Wort [1927] V.L.R. 560 the Full Court dealt with a submission about what its practice had been in dealing with applications that time already served by the prisoner be taken as part of the sentence. Section 579(3) is brought into operation where there is an appeal against conviction or an application for leave to appeal either against conviction or against sentence. Wort itself was an application for leave to appeal against conviction. A random and far from complete examination of the law reports before 1976 (when the statutory provision soon to be mentioned came into operation) showed that in each of the unsuccessful appeals against conviction or applications for leave to appeal against conviction examined no direction was given that time served should count: the matter of time served is simply not mentioned in the judgment, and so presumably the prisoner lost the benefit of time served pending appeal. (In some of the cases examined the nature of the sentence below is not stated, but it is highly likely to have been imprisonment.) A random and far from complete examination of the law reports before 1976 disclosed only two examples of successful applications for leave to appeal against sentence where a direction was given that time served should count: R. v. Inglis (1920) 41 A.L.T. 134 at 135 and R. v. Henderson [1966] V.R. 41 at 44. Successful applications for leave to appeal against sentence where no such direction was given include R. v. Wilson [1956] V.L.R. 199; R. v. Douglas [1959] V.R. 182; R. v. Bruzzese [1970] V.R. 813; R. v. Martin [1973] V.R. 854; R. v. Clune (No. 1) [1975] V.R. 723.

10. Until 1975 there was not in Victoria any statutory provision requiring credit to be given to a prisoner, either by the court or by the administrative authorities, for what is nowadays called pre-sentence detention. It was in fact the practice of judges to have regard to pre-sentence detention in considering what sentence should be passed: compare what was said by Gowans, J. in R. v. Judge Frederico; ex parte Attorney-General [1971] V.R. 425 at 430 and by the Full Court in R. v. Clune (No. 2) [1975] V.R. 737, the report of the Statute Law Revision Committee on Arrest Without Warrant and Related Matters, paragraphs 138-140 and the report of the Statute Law Revision Committee on clause 4 of the Crimes (Sentences) Bill 1971, especially paragraph 7. That Bill had been introduced into the Legislative Council by the Hon. J.W. Galbally as a private member's Bill in an attempt to establish a more satisfactory means of having pre-sentence detention brought to account. It was s.202A of the Social Welfare Act 1970 which in substance achieved what the Hon. J.W. Galbally had earlier sought to bring about through his private member's Bill. That section was introduced by the Social Welfare (Amendment) Act 1975 in consequence of the report made on clause 4 of the Bill by the Statute Law Revision Committee I have already mentioned. The second reading speech in the Legislative Assembly on the Bill for the amending Act of 1975 will be found at pp.4279 et seq. of Vol. 321 of Hansard; it is also worth noting the resumption of the debate at p.5851 in Vol. 322. Unfortunately it would seem that s.579 of the Crimes Act was overlooked when the Statute Law Revision Committee made its report and when the amending legislation was prepared and enacted. Similarly, there had been no reference to s.579 in the Parliamentary Debates on the private member's Bill: Hansard, vol. 303, pp.464 et seq. and 726 et seq.

11. By s.202A(1) of the Social Welfare Act 1970:

    "(1) After the commencement of the Social Welfare (Amendment) Act 1975 where a person is convicted for an offence, whether an indictable offence or an offence punishable on summary conviction, and sentenced to a term of imprisonment or detention in respect of that offence, any period of time during which that person was held in custody in a prison, police gaol, watch-house, lock-up, youth training centre, or reception centre on arrest, remand, committal for trial, or awaiting the determination of an appeal in relation to proceedings for that offence or proceedings from which those proceedings arose or was in any other way in the legal custody of the Director-General or a member of the police force in relation to any such proceedings shall, subject to the following provisions of this section, be reckoned as a period of imprisonment or detention already served by that person under the sentence."

12. This legislation was replaced by s.16 of the Penalties and Sentences Act 1985 and ultimately by s.18 of the Sentencing Act 1991. There are great similarities between s.16 of the 1985 Act and s.18 of the 1991 Act, although the two sections are by no means identical. They both differ markedly from s.202A of the Social Welfare Act 1970, introduced by the 1975 amendment.

13. The only discussion of which I am aware of the status in modern times of s.579(1) and (3) of the Crimes Act is to be found in Fox & Freiberg on Sentencing, para.9.612, where it is suggested that the denial of the benefit of time served which appears to result from s.579(3) may have become inoperative, either because of the absence of regulations conferring any substantial benefit on appellants as regards their treatment in prison or because of an implied repeal effected by s.202A of the Social Welfare Act.

14. So far as implied repeal is concerned, one must first consider the scope of s.202A. I shall not set out the whole section: it is too long. The section is in large part concerned with what the sentencing court is to do at the time of passing sentence. That court is to endeavour to ascertain the period during which the offender was held in custody within the meaning of s.s.(1). Sub-section (1) includes "any period of time during which that person was held in custody ... awaiting the determination of an appeal in relation to proceedings for that offence." Sub-section (1) speaks of a person's having been held in custody. It then goes on to deal with the place of detention ("prison, police gaol, watch-house, lock-up, youth training centre, or reception centre") and with what might be loosely called the status of the prisoner ("on arrest, remand, committal for trial, or awaiting the determination of an appeal"). Next come the words "in relation to proceedings for that offence [the offence for which he has been sentenced] or proceedings from which those proceedings arose". It seems to make no difference whether the phrase beginning "in relation to" is treated as an adverbial one modifying "held in custody, as an adjectival one qualifying "on arrest, remand, committal for trial, or awaiting the determination of an appeal", or as an adverbial one modifying the whole compound expression which begins with "held" and ends with "appeal".

15. I see no reason why s.202A should not apply not only to sentences passed at first instance but also to substituted sentences passed by appellate courts. I note in passing that the Hon. J.W. Galbally was in part concerned that prisoners who appealed unsuccessfully to the Court of Criminal Appeal should be given the benefit of time spent in gaol awaiting the determination of their appeals: Hansard, vol. 303, p.465. At the time when s.202A came into operation (1 March 1976), an appellate court could be called upon to pass sentence in four situations: first, where an appeal - by way of rehearing - brought by the defendant from the Magistrates' Court to the County Court resulted in a conviction; secondly, where an appeal to the County Court by the Director of Public Prosecutions succeeded against a sentence passed by the Magistrates' Court; thirdly, where an appeal by the person convicted brought under Part VI of the Crimes Act succeeded in circumstances requiring the Court of Criminal Appeal to re-sentence; fourthly, where an appeal by the Director of Public Prosecutions under s.567A of the Crimes Act succeeded. Time in custody "awaiting the determination of an appeal in relation to proceedings for that offence" could be the concern of a sentencing court at first instance only where, the offence being indictable, an appeal against conviction had resulted in a re-trial which had ended with a conviction. Time in custody "awaiting the determination of an appeal in relation to proceedings for that offence" could (and would in every case where the offender had not been on bail continuously between conviction and appeal) be the concern of an appellate court in any of the situations mentioned above in which an appellate court was called upon to pass sentence.

16. The Statute Law Revision Committee which reported on clause 4 of the private member's Bill appears to have contemplated that time spent between original sentence and determination of appeal should count as time served whether or not a different sentence was substituted on appeal. For paragraph 8 of the report speaks of time spent in custody between trial and appeal counting "as part of the sentence of imprisonment", and recommendation (vii) speaks of the counting of such time "as part of the sentence finally imposed".

1. Section 202A(1) expressly mentions time held in custody on committal for trial and the words "or proceedings from which those proceedings arose" may well be intended to refer to proceedings for offences with which the prisoner was formerly charged and which were replaced by the offences of which he or she stands convicted.

2. Both common sense and the authorities warn us that we should be very cautious before concluding that the provisions of one Act of Parliament have by implication been repealed by those of a later Act. More than one test of inconsistency for this purpose has been suggested, but I am persuaded that, by any test which might properly be considered for adoption, inconsistency in the necessary sense exists between s.202A of the Social Welfare Act and the relevant portion of s.579(3) of the Crimes Act. Section 579(3) is, from its terms, plainly inapplicable to appeals by the Director of Public Prosecutions under s.567A of the Crimes Act; compare s.567A(5). I have considered whether it is possible to preserve s.579(3) by regarding it as a "special provision", confined (as it undoubtedly is) to appeals by convicted persons under Part VI of the Crimes Act, and by treating s.202A as a "general" provision, which will operate in the remaining classes of case in which an appellate court is required to re-sentence. But I think it would be wrong to adopt this approach and so preserve as the exception to the new general rule those cases where the matter of pre-sentence detention was likely to assume its greatest practical importance.

3. The absence of the rules and regulations for which s.579(1) and (3) provides does not in my view prevent the inconsistency from arising. Section 202A was inconsistent with the regime which s.579(1) and (3) sought to establish.

4. I should add that it would be a singular result if s.202A required the Court of Criminal Appeal to have regard to time spent in custody awaiting the determination of a successful Director's appeal but not to time spent in custody awaiting the determination of a successful appeal by the person sentenced.

5. I should also add that I do not consider that the amendment made to s.579(3) by s.28(f) of Act No. 109 of 1994 stands in the way of the view which I think ought to be taken on the question of implied repeal. That amendment did no more than replace references to the Full Court by references to the Court of Appeal.

6. Quite apart from the possible effect on s.579(3) of s.16 of the Penalties and Sentences Act 1985, it cannot be said that the repeal of s.202A of the Social Welfare Act by s.114 of the Penalties and Sentences Act 1985 revived s.579(3). For by s.14(2)(c) of the Interpretation of Legislation Act 1984 the repeal of a provision of an Act does not revive anything not in force or existing at the time of the repeal. Notwithstanding the remarks of A.H. Simpson, J. in Aarons v. Rees (1898) 15 W.N. (N.S.W.) 88 at 90, s.14(2)(c) should be held to extend to cases of implied repeal; compare what was said by Taylor, J. in Commonwealth v. Cigamatic Pty. Ltd. (in liq.) (1962) 108 C.L.R. 372 at 387-8 and by Windeyer, J. in Mathieson v. Burton (1971) 124 C.L.R. 1 at 9-11.

7. I should record the fact that Mr Gyorffy, in his admirable written submission on behalf of the Crown, invites us to take the view that s.579(3) of the Crimes Act has been repealed by implication by s.202A.

8. In my judgment s.579(3), save in so far as it deals with the effect of admission to bail, was impliedly repealed by s.202A of the Social Welfare Act 1970 and remains repealed. But if the case is not one of repeal, the result of the absence of the rules and regulations which s.579(1) and (3) contemplates is that s.579(3) has no effect except as regards admission to bail.

9. I turn now to the question of the basis on which pre-sentence detention is calculated as including time in custody right up to the appeal, as is nowadays done.

10. Over the years since 1976 the practice of individual judges and appellate courts with regard to pre-sentence detention has varied.

11. None of my own sentences passed between 1977 and 1986 contains a declaration under s.202A of the Social Welfare Act recording the period of pre- sentence detention. It is my personal impression (supported by what was said in R. v. Clarkson (1987) V.R. 962 at 984 and by the examination of my own sentences) that it was the practice of judges of the County Court and Supreme Court sentencing at first instance not to make a declaration under s.202A of the Social Welfare Act of the period of pre-sentence detention but to leave it to the authorities to ascertain that period. Be that as it may, it was, in my own experience, not the practice of the Court of Criminal Appeal, if called upon to re-sentence, to declare the period of pre-sentence detention under the section. I have confirmed the correctness of my own recollection of the practice by reference to numerous unreported cases in which the appellate court has re-sentenced. In all but one of the cases examined by me not only is no declaration made by the appellate court but there is simply no mention of whether a declaration should be made of how many days have been spent in custody. The exception is R. v. Testa (18 April 1978), where the reasons for judgment conclude with the words, "The Court makes no declaration under s.202A of the Social Welfare Act". It goes without saying that there may be other express or implied references to the section in cases at which I have not looked.

12. The Penalties and Sentences Act 1981 did not repeal s.202A of the Social Welfare Act 1970. That was done by s.114 of the Penalties and Sentences Act 1985, s.16 of which contained the corresponding new provision. Like s.202A, s.16 is too long to be conveniently set out in full: s.s.(1) must suffice:

    "16(1) If a person is convicted of an offence and sentenced to a term of imprisonment or detention in respect of that offence, any period of time during which that person was held in custody in relation to proceedings for that offence or proceedings from which those proceedings arose shall, unless the court otherwise orders, be reckoned as a period of imprisonment or detention already served by that person under the sentence."

13. Gone are the references to various places of detention found in s.202A; gone too the references to various states of the detainee. No longer are those who await the determination of appeals separately mentioned. For by 1985 brevity is thought to have become the soul of Parliamentary drafting. The sub-section has shrunk to less than half its predecessor's size. In his second reading speech on the Bill for the 1985 Act the Attorney-General, the Hon. J.H. Kennan (one of the apostles of brevity), spoke of its two purposes as consolidation and reform. In the summary of reforms which followed there is nothing to suggest that it was intended to alter the law in relation to pre-sentence detention: Hansard, vol. 379, pp.566 et seq.

14. Section 16 of the Penalties and Sentences Act 1985 was in force from 1 June 1986 until 22 April 1992, when the Sentencing Act 1991 came into operation. It was laid down by the Court of Criminal Appeal that it was in general very undesirable for a sentencing judge himself to give credit for pre-sentence detention by discounting the sentence which would otherwise have been passed, it being much more satisfactory to allow the matter of pre-sentence detention to be dealt with by the authorities administratively: R. v. Tippett (unreported, 17 November 1989); R. v. Roderick (unreported, 17 April 1991); R. v. Reed [1992] 2 V.R. 484. In the last of these cases the Court expressed the opinion, at 486, that the calculation of pre-sentence detention should be left in the hands of the correctional authorities, thus intimating, it would seem, that in general it was undesirable to make a declaration under s.16(4). In that case the Court re-sentenced the applicant and intimated that it had not taken into account pre-sentence detention; it made no declaration under s.s.(4). Similarly, in R. v. Foltin (unreported, 13 November 1986), Director of Public Prosecutions v. Baldwin (unreported in this respect, 1 August 1988) and R. v. Turnbull (unreported, 5 August 1988) the Court in re-sentencing intimated that it had not taken into account the time that the applicant had already served; the intimation in Baldwin is in a part of the judgment not reported in (1988) 39 A.Crim.R. 465. On the other hand in R. v. Burns (unreported, 17 November 1986), R. v. Zalar (unreported, 22 February 1991) and R. v. Edwards (unreported, 29 October 1991) the Court in re-sentencing intimated that it had taken pre-sentence detention into account.

15. I am not aware of any reported or unreported decision in which an appellate court has found it necessary to give detailed consideration to the legislation dealing with pre-sentence detention, whether contained in s.202A of the Social Welfare Act 1970, s.16 of the Act of 1985 or s.18 of the Sentencing Act 1991.

16. It may be noted that both in R. v. Fordham (unreported, 1 March 1988) and R. v. Costa (unreported, 17 November 1989) it was held that the sentencing judge had wrongly made an "order otherwise" under s.16(1) of the 1985 Act. It is also worth noting in passing that, while in R. v. Fordham the Court treated an "order otherwise" as an order which altogether deprived the prisoner of the benefit of pre-sentence detention, in R. v. Reed [1992] 2 V.R. 484 and the two decisions of the Court of Criminal Appeal there cited the view seems to have been taken that an "order otherwise" was not an order which altogether deprived the prisoner of the benefit of pre-sentence detention but was one which was made to prevent the administrative crediting of the time in a case in which the judge intended himself to give credit for it.

17. Section 16(1) was held to apply only to sentences passed after it came into operation: Re Nylander (unreported, Court of Criminal Appeal, 7 June 1989). Declarations under s.s.(4) of s.16 were rarely made by the Court of Criminal Appeal. It is not easy to find cases in which the question whether a declaration should be made is expressly adverted to by the Court. In R. v. Wingate (unreported, 5 October 1987) the Court in re-sentencing observed, "No declaration is made under s.16 of the Penalties and Sentences Act 1985." The only example of a declaration made by the Court of Criminal Appeal under s.16 of which I am aware (of course there may well be others) is to be found in R. v. Nason (1991) 60 A.Crim.R. 302. There the Court, taking the view that s.16(4) overrode s.16(2)(a), so as to enable a declaration to be made where the offender had been released on a bond, and being of opinion that the County Court judge had wrongly failed to make a declaration, itself made one.

18. When the Sentencing Act 1991 came into operation, s.18 of it replaced s.16 of the 1985 Act. In its original form, s.18(1) was as follows:

    "(1) 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 and for no other reason must, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders, be reckoned as a period of imprisonment already served under the sentence."

19. For some reason, in s.18(1) the words used in the former provisions, s.202A and s.16(1), "proceedings for that offence or proceedings from which those proceedings arose", have been replaced by "proceedings for that offence or proceedings arising from those proceedings". The phrase in s.16(1) of the 1985 Act received passing mention in R. v. Clarkson (1987) V.R. 962 at 983-4.

20. There was a diversity of practice, and so perhaps of opinion, in the Court of Criminal Appeal in relation to s.18 of the Sentencing Act 1991. In considering early decisions it is necessary to bear in mind s.117(1) and (4), whereby the new Act did not apply to a sentence imposed by an appellate court on setting aside a sentence if the sentence set aside had been imposed before the commencement of s.117. Those provisions were considered in R. v. Hawley (Court of Criminal Appeal, unreported, 27 April 1992). I have examined a large number of decisions of the Court of Criminal Appeal in an attempt to ascertain the view taken on whether, when a substituted sentence was passed by that Court, pre-sentence detention should, under s.18, be calculated down to the date of determination of the appeal or only down to the date of the original sentence. No light is thrown on this question by R. v. McGrath and R. v. Barry (unreported, 1 October 1992), where the Court of Criminal Appeal dealt with s.18(4)(b), describing it as a drafting solecism and saying that in the great majority of cases the words used in paragraph (b) should not be included in the declaration made under the section. (This difficulty has been removed by amendment: see note 19 at p.166 of Reprint No. 3 of the Sentencing Act.)

21. There was, in the first place, diversity of practice with regard to whether a declaration under s.18 was made at all when a substituted sentence was passed. Down to about the middle of 1993 it was not rare for no declaration to be made when a sentence was substituted. For example, none was made in R. v. D'Arcangelo (unreported, 11 March 1993), R. v. Pallay (unreported, 1 April 1993), R. v. Sewell (unreported, 1 April 1993), R. v. Gough (unreported, 11 June 1993), R. v. Skelly (unreported, 28 June 1993 and R. v. Van Zanten (unreported, 2 July 1993). But it may be said that, as time went by, probably as a result of the increasing frequency with which sentencing judges themselves made declarations, the Court of Criminal Appeal came itself to make them more and more often, with the result that by the end of 1993 it was rare for the Court of Criminal Appeal not to make a declaration when substituting a sentence. When declarations were made by it, it is now often impossible to say whether the appellate court in fact included as part of the pre- sentence detention time spent in custody between the original sentence and the determination of the appeal (which for brevity I shall call "custody pending appeal"). In cases where it is possible to say whether the Court included custody pending appeal, this is sometimes the result of express statement by the Court and sometimes the result of calculations or comparisons which can be made now by reference to the reasons for judgment. Unfortunately in many cases these calculations or comparisons are not possible, since the reasons on appeal often fail to state the date of the original sentence and the period (if any) of pre-sentence detention declared by the sentencing judge. In something like every second case about five years ago in which the appellate court made a declaration it is impossible now to determine whether custody pending appeal was included. In the cases where this can be determined we find a diversity of practice with regard to whether custody pending appeal was included.

22. Cases in which the Court, on re-sentencing, made a declaration which it can be said did not incorporate custody pending appeal include the following decisions, mostly unreported: R. v. Johnston (10 December 1992); R. v. Hatton (11 December 1992); R. v. Fiume (18 December 1992); R. v. Stanbrook (16 March 1993) reported in [1994] 1 V.R. 391; R. v. Barry (1 April 1993); R. v. Walker (1 April 1993); R. v. Hearn (13 April 1993); R. v. Robson (24 June 1993); R. v. Squillace (10 March 1994). It is worth noting that in Squillace the Court said, "The Court has proceeded upon the basis that this order takes effect from 10 March 1993, the earlier sentencing date."

23. Unreported decisions in which the Court of Criminal Appeal made a declaration which it can be said incorporated custody pending appeal include: R. v. Hocking (20 March 1993); R. v. Saxon (11 August 1993, where the declaration said "to this day"); R. v. Baron and Calder (21 August 1993); R. v. Crowther (1 September 1993, where in unusual circumstances the Court made an "order otherwise" under s.18(1) concerning pre-sentence detention down to the date of the sentence below and a declaration under s.18(4) in respect of custody pending appeal); R. v. Hancock (8 October 1993); R. v. Masri (19 October 1993, where the declaration used the words "from 18 April 1992 to today, or, in other words 551 days"); R. v. Price (15 November 1993, where the declaration said "as of this date"); R. v. Lakeland (19 November 1993); R. v. Mamo (23 November 1993, where the declaration said "as of this date"); R. v. Walker (25 November 1993, where the reasons, but not the actual declaration, said "to this date"); R. v. Yorston (29 November 1993, where the declaration said "as of this date"); R. v. Snowden (23 March 1994); R. v. Hamilton (25 March 1994, where the Court said, "The Court's substituted sentence dates from today"); R. v. Miletic (3 June 1994, where the declaration said "as of today").

24. It was not the practice for the Court of Criminal Appeal, in re-sentencing, to take pre-sentence detention into account by way of allowing a discount. In R. v. Sidea (unreported, 21 October 1993) the Court, having calculated pre-sentence detention down to the date of the determination of the appeal as 400 days, departed from its usual practice because of the special difficulties and did not make a declaration but instead itself took into account pre-sentence detention and made an "order otherwise" under s.18(1).

25. I think it may be said that by 1994, although there may have been some few exceptions (Squillace, mentioned above, at least is one), it had become the practice of the Court of Criminal Appeal to make a declaration which included custody pending appeal. I think it may also be said that by 1994, again with some exceptions (Hamilton and Miletic, mentioned above, at least are two), the Court had ceased to say in terms, as it had done not infrequently but by no means invariably in the past, that the pre-sentence detention which it was declaring was calculated "as of this date" or "to this date" or "to this day". I think that by 1994 it had come to be understood, both by members of the Court of Criminal Appeal and by members of the profession practising in that Court, that although no such words would be used the Court would in declaring the period of pre-sentence detention include custody pending appeal.

26. When the Court of Appeal was established, it adopted what had become the practice of the Court of Criminal Appeal, in that it made declarations concerning pre- sentence detention, included in the time declared custody pending appeal; and did not expressly state that the calculation included custody pending appeal.

27. It might be said that the fact that for several years now it has been the practice of the appellate court in this State, when making a declaration, to calculate pre- sentence detention down to the date of its own order shows that in the view of the appellate court a substituted sentence passed by it runs from the date of its own order. On at least one or two occasions the Court of Appeal has indeed described its own substituted sentence as commencing on the date of its own order. This was done in R. v. Petherick (No. 1) (unreported, 3 April 1997), a decision which had as its sequel R. v. Petherick (No. 2) (unreported, 11 May 1998). It would be unsatisfactory to say that, since detention cannot pre-date a sentence which has not yet commenced to run, the calculation of pre-sentence detention down to the date of the appellate court's order is consistent only with the view that the substituted sentence runs from the date of that order. For to say this would be to substitute the conventional and convenient phrase "pre-sentence detention" for the words of the statute. The words used by the present s.18(1) are "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". I have earlier mentioned how the reference in s.202A of the Social Welfare Act to custody awaiting the determination of an appeal disappeared when s.16 of the Penalties and Sentences Act 1985 replaced it and how s.18 of the present Act replaced the words "proceedings for that offence or proceedings from which those proceedings arose" with the words "proceedings for that offence or proceedings arising from those proceedings". A person serving a sentence of imprisonment for an offence would not ordinarily be described as "held in custody in relation to proceedings for that offence". Nor would such a person ordinarily be described pending an appeal as "held in custody in relation to ... proceedings arising from those proceedings". It is the sentence of imprisonment which justifies the detention in custody. It may be that one should infer - in the apparent absence of any discussion of the point by an appellate court - that the view has been taken that sentenced prisoners are, pending appeal, to be regarded as held in custody in relation to proceedings arising from proceedings for the offence within the meaning of s.18(1), notwithstanding that their detention is justified, not by some interlocutory order, but by a sentence of imprisonment. If this is the view on which the appellate courts should be taken to have proceeded, then it seems to me that the calculation of pre-sentence detention as including custody pending appeal is not inconsistent with the view that a substituted sentence passed by the appellate court runs from the date of the original sentence. For it might be said is that if the correct view is that a substituted sentence runs from the date of the original sentence, then Parliament has qualified that rule by requiring time in custody pending appeal to be treated as time served under the substituted sentence and that in other respects the rule remains unimpaired.

1. It is easy to confuse two questions. The first is, On what date was the sentence of imprisonment imposed? The second is, On what date did the sentence commence to run, in the sense that the offender is taken to be serving the sentence of imprisonment, or time is taken to be running for the purpose of a disqualification imposed, from that date? The answer to the first will often, but by no means invariably, also be the answer to the second. At common law sentences of imprisonment passed by a court of oyer and terminer or gaol delivery were by a fiction treated as imposed, and therefore as commencing, on the first day of the sitting: R. v. Judge Frederico; ex parte Attorney-General [1971] V.R. 425 at 427. The fiction was, as I have said, abolished in England by s.17 of the Criminal Justice Administration Act 1962. That the date of the passing of a sentence may not coincide with the date of its commencement is illustrated by the provision formerly made in Victoria by s.14(1) of the Penalties and Sentences Act 1985 - now found in s.17(1) of the Sentencing Act - whereby if the offender is not in custody when the sentence is imposed the sentence does not commence until apprehension. Another illustration concerns the crediting of pre-sentence detention, to which the general rule laid down by ss.14(1) and 17(1) was expressly made subject.

2. There are three possible views of the date from which a substituted sentence passed under Part VI of the Crimes Act operates. The first is that it operates as if it had been passed on the date of the original sentence. The second is that it operates as a sentence passed on the date of the appellate court's order. The third is that the appellate court can itself determine the date from which its sentence is to operate. In civil proceedings the Court of Appeal has a discretion and may select the date from which a judgment or order substituted by it is to operate; unless the Court expressly or by implication directs that the substituted judgment or order is to take effect from some other date, it will take effect from the date of the order made on appeal. I mentioned some of the authorities on this point in G.E.F. Packaging Services Pty. Ltd. v. Turner, a decision of the Court of Appeal given on 5 September 1995 but never reported. Particular note should be taken of the view taken in Nicol v. Allyacht Spars Pty. Ltd. (1988) 165 C.L.R. 306 and the English cases there mentioned of the effect of a provision empowering the appellate court to give such judgment as ought to have been given in the first instance. These decisions should be borne in mind when ss.568(4) and 567A(4) of the Crimes Act are being considered. But they do not necessarily lead to the conclusion that those two sections of the Crimes Act should not be treated as making the substituted sentence speak from the date of the original one. It is enough to mention two possible grounds for distinguishing the civil cases. In the first place, it is said in them that if a plaintiff succeeds for the first time on appeal there is in fact no judgment for the plaintiff until the appeal is determined; but where one sentence is substituted for another the Crown has always obtained the judgment of the court at first instance. In the second place, in one of the English cases, Borthwick v. Elderslie Steamship Co. Ltd. (No. 2) (1905) 2 K.B. 516, both members of the Court of Appeal relied on the circumstance that an appeal to that court was by way of rehearing.

3. Section 568(4) is the sole source of the power of the Court of Appeal to interfere with sentences on appeals by convicted persons. The practice and power of that Court in civil cases are an unsafe guide: Grierson v. R. (1938) 60 C.L.R. 431 at 435-6 per Dixon, J. The question is what is authorised by s.568(4) of the Crimes Act.

4. Section 579(3) of the Crimes Act provided that, subject to any direction given that custody pending appeal should count, a sentence substituted by the Court of Criminal Appeal should be deemed to begin to run, if the appellant was in custody, as from the day on which the appeal was determined, and if the appellant was not in custody, as from the day on which he was received into prison under the sentence. As I have said, it is plain that this sub-section did not apply to Crown appeals when provision was made for such appeals by the introduction into the Crimes Act of s.567A by Act No. 8063 of 1970. Section 567A(4) empowered the Court to quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thought ought to have been passed. This sub-section echoed the language of s.568(4), dealing with appeals against sentence by persons convicted.

5. By statute, between 1887 - as the result of s.15 of the Gaols Act of that year and its successors - and the coming into operation of the Penalties and Sentences Act 1985 sentences of imprisonment passed by the Supreme Court or a court of general sessions or the County Court dated from the first day of the sittings. The statutory provision was modified in 1966 by the enactment of a substituted section containing the words "and the court does not otherwise order", and the effect of this modification, and indeed the history of the legislation, were considered in R. v. Judge Frederico; ex parte Attorney-General [1971] V.R. 425. Shortly after that decision was given the provision ceased to be contained in the Gaols Act 1958 and came to be found in s.122 of the Social Welfare Act 1970. Section 122 continued to govern the matter until it was repealed by s.114 of the Penalties and Sentences Act 1985, s.14 of which made a different provision with regard to the commencement of sentences. It was said in the second reading speech on the Penalties and Sentences Bill that the old rule, that the sentence dated, in the case of the County Court and Supreme Court, from the first day of the sittings, had meant that there had sometimes been a wholly fictional and gratuitous period of up to some months taken into account in favour of the prisoner: Hansard, Vol. 380, p.2312. By s.14(1) of the Penalties and Sentences Act 1985, subject to that section itself and to ss.15 and 16 (dealing respectively with concurrency and pre-sentence detention), sentences of imprisonment were to commence -

   (a)        if the offender was in custody at the time of sentence - the day the sentence was imposed; or

   (b)        if the offender was not then in custody - the day the offender was apprehended in consequence of the sentence.

6. Section 17 of the Sentencing Act 1991 is the corresponding provision.

7. In numerous decisions of the Court of Criminal Appeal given during the last fifteen to twenty years of its life a uniform view seems to have been taken of the date on which a substituted sentence passed by that court (whether on an appeal by a convicted person or a Crown appeal) should be taken to have been passed. The view uniformly adopted is that the substituted sentence should be taken to have been passed on the day on which the sentence set aside was imposed. In none of these decisions is there any reference to s.579 of the Crimes Act.

8. Early examples are Attorney-General v. Kortum and Attorney-General v. Hayden (unreported, 23 September 1977), where, in stating that its substituted sentences were to run from the commencement of the May, 1977 sittings of the County Court the Court of Criminal Appeal should probably be taken to have intended merely to state the effect of the legislation then in force, not to give a direction. In R. v. McMinn [1982] V.R. 405 the prisoner's appeal against sentence succeeded. The judge, in passing a sentence of nine months' imprisonment on 16 October 1981, had believed that it would commence on 1 September 1981, that is, the first day of the September sittings of the County Court, having regard to the provisions of s.122 of the Social Welfare Act 1970. The Court of Criminal Appeal, being of opinion that the sentence passed by the judge did not commence until the first day of the October sittings, gave effect to his intention by reducing the sentence to one of eight months, observing, at 412, that its own sentence "will stand as imposed in those sittings". By the time of the next case to be mentioned, R. v. Ferrett (1987) 24 A.Crim.R. 161, the statute law had, as mentioned above, been altered, and sentences passed by judges for indictable offences no longer commenced on the first day of the sittings. The corresponding change as regards substituted sentences passed by the Court of Criminal Appeal was reflected in Ferrett, where a prison sentence was increased in consequence of a successful Crown appeal. At 162 Young, C.J. said this:

   "A question arises when the sentence imposed by this Court should commence. Ordinarily when a person is in custody a sentence commences from the day upon which it is imposed: Penalties and Sentences Act, s.14(1)(a). But the power of this Court under s.567A of the Crimes Act 1958 (Vic) under which the appeal is brought is to pass a sentence 'in substitution for' the sentence appealed from: see s.567A(4). The sentence which this Court imposes should therefore run from 7 October 1986, the day upon which the sentence under appeal was passed."

9. I interpolate the remark that there was of course no reference made by the Chief Justice to s.579(3) of the Crimes Act. That sub-section must in my opinion be taken to have been repealed in March 1976. But, at least until the time of its implied repeal, its presence and terms might be thought to have borne on the view to be taken of the effect of ss.568(4) and 567A(4) on the time from which a substituted sentence ran.

10. Director of Public Prosecutions v. Eades (unreported, 4 March 1987) was another successful Director's appeal. Speaking for the Court, and plainly referring to s.14(1) of the Penalties and Sentences Act 1985, Young, C.J. said:

    "I should just add by way of explanation that under the new legislation that sentence will run from the date when the sentence under appeal was imposed, that is, from the 18th December 1986."

11. Another example is Director of Public Prosecutions v. Wingate (unreported, 5 October 1987), where the sentences were increased and Young, C.J., on behalf of the Court, said of the substituted sentences: "The sentences run from 5th August 1987." No doubt that was the date on which the sentences below were passed. In R. v. Dennaoui (unreported, 5 May 1988) the prisoner's appeal against sentence was allowed and a lower prison sentence was substituted. The Court, through Young, C.J., said:

    "The order of the Court is that each application is granted. Each appeal is treated as instituted and heard instanter and allowed. The sentences are quashed. In lieu thereof each applicant is sentenced to be imprisoned for a term of twelve months and nine months of each such sentence is suspended pursuant to s.21(1)(b) of the Penalties and Sentences Act 1985. Pursuant to s.21(3) of the said Act, it is ordered that each applicant must not, within the period of twelve months from 29th March, 1988, commit another offence punishable by imprisonment. The sentences so imposed, by the operation of s.14(1)(a) of the said Act, commence on the day the original sentence was imposed, namely 29th March, 1988, the sentences imposed by this Court being substituted for those sentences. Section 16 of the said Act will operate so that the time spent by the applicants in custody prior to 29th March will be reckoned as a period of imprisonment already served under the sentence now imposed."

    29 March was no doubt the date of the sentence below, and so the Court does not
    regard custody pending appeal as falling within s.16 of the 1985 Act.

12. In the earlier case of R. v. Hamill (Court of Criminal Appeal, unreported, 9 September 1986) an application for leave to appeal against sentence was allowed only about three months after s.14 of the Penalties and Sentences Act 1985 came into operation. Crockett, J., speaking for the Court, said of the substituted sentence:

    "If it is necessary so to order we will direct that the sentence is to run
    from 15 July 1986 [the date of the sentence below]."

13. This leaves open the question whether what the Court was doing was giving a direction in the exercise of a power to determine when the substituted sentence commenced or making a declaratory order intended to record the legal effect of the new section. The same may be said of the words used by the Court in R. v. Louden (6 May 1987): "Such sentence to commence as and from the 26th day of February 1987."

14. A series of appeals made it clear, in the particular case of murder, that substituted sentences passed by the Court of Criminal Appeal ran from the date of the sentence that had been quashed. On a number of occasions, the Court said this in terms. After a while, it stopped doing so, no doubt regarding the matter as too well understood to require continued statement. In R. v. Stone (26 May 1987), reported in

[1988] V.R. 141 there was a successful Crown appeal. At 150-1 the Court said:

"The trial Judge passed sentence on 16 December 1986 and it follows that the sentences substituted by this court will begin to run from that date."

In D.P.P. v. Servedio (unreported, 10 November 1989), another successful Crown appeal, the Court observed that the substituted sentence passed by it would run from the date of the original sentence. In R. v. Hayden (unreported 9 March 1989), the prisoner's appeal against a sentence for murder was successful and again the Court said that the substituted sentence passed by it would run from the date of the original sentence.

1. In R. v. Singh (unreported, 26 March 1991) it was observed, in the joint judgment of Young, C.J., Crockett and Smith, JJ. at 13, that a sentence for a State offence substituted by the Court of Criminal Appeal commences on the day on which the original sentence commenced.

2. The practice of the Court in passing substituted sentences in relation to driver's licence disqualifications is consistent with the view that a substituted sentence of disqualification runs from the date on which the original sentence commenced. So in R. v. George (unreported, 21 September 1989) a prisoner successfully appealed against the length of the disqualification and the Court of Criminal Appeal substituted a three year disqualification for a five year disqualification. It is implicit in this that the new period, being simply substituted for the old, commenced to run on the same day. The same may be said of the order of the Court of Criminal Appeal in R. v. Seager (unreported, 15 December 1987), numerous other examples might be given. In R. v. Boeyen (1990) 50 A.Crim.R. 482 again the prisoner's appeal succeeded to the extent that the driver's licence disqualification was reduced, this time from 20 years to five years. The Court said in terms that the substituted disqualification was effective from 7 September 1990, that being the date of the sentence below. The Court did the same in R. v. Vasiliadis (unreported, 21 September 1990).

3. There is another decision, in addition to R. v. Dennaoui, which bears directly on the matter of pre-sentence detention. In R. v. Tippett & Ball (unreported, 17 November 1989) a prison sentence was reduced on appeal and Young, C.J. (with whom Crockett and Marks, JJ. concurred) said that "each of the applicants will be entitled to full credit, properly calculated by the authorities, for the time spent in custody awaiting trial". The reference to trial suggests that, as in Dennaoui, the view taken in relation to the Penalties and Sentences Act 1985 was that no allowance could be made for detention between the date of the sentence below and the date of the determination of the appeal.

4. In one case (R. v. Arts & Briggs (1997) 93 A.Crim.R. 56) the Court of Appeal, in re-sentencing one of the applicants (Briggs) sentenced him to be imprisoned until the rising of the Court. This was presumably done on the basis that the substituted sentence passed by the Court was to be taken to have been imposed on the date of the determination of the appeal. Had it been desired to adhere to the practice of the Court of Criminal Appeal, a more appropriate course, strictly speaking, might have been to quash the sentence below and pass no other sentence, intimating that, the Court being about to rise, the applicant may be discharged at the rising of the Court. This was done by the Court of Criminal Appeal in R. v. Williams (unreported, 4 May 1988).

5. I do not think that any assistance is to be derived from s.570B(2) of the Crimes Act, dealing with the commencement of a sentence passed by the Court of Appeal where an appeal against a verdict of not guilty because of mental impairment is allowed.

6. Section 3(1) of the Corrections (Remissions) Act 1991 did away with remissions, but only in respect of sentences imposed after its commencement. By s.3(4), for the purposes of s.3 a sentence imposed by an appellate court after the commencement of s.3(1) on setting aside a sentence imposed before that commencement is to be taken to have been imposed at the time of the original sentence. This section is wide enough to extend to appeals by way of rehearing to the County Court. The section cannot provide a safe basis for any inference about what Parliament understood the position to be as regards when sentences of an appeal should be taken to have been imposed for purposes other than that with which the section is concerned. It is tempting to say the same of s.117 of the Sentencing Act 1991, which applies that Act to any sentence imposed after the commencement of s.117 and goes on to provide, by s.s.(4), that for its purposes a sentence imposed by an appellate court on setting aside a sentence imposed before that commencement is to be taken to have been imposed at the time of the original sentence. But in R. v. Hawley (unreported, 27 April 1992) Crockett, J., in a judgment concurred in by the Chief Justice, said this of s.117(4):

   "It appears tolerably clear from that provision that it is the task of this Court, in the circumstances with which it is now confronted, to re- sentence on the basis that this sentence will be in substitution for that which is being set aside and thus will operate from the time of the passing of the original sentence. It will also thus follow that the re- sentencing process will be governed by the law in existence prior to the proclamation of the new legislation."

7. It is, with respect, a question whether this statement gives effect to the opening words of s.s.(4), "for the purposes of this section". But the conclusion concerning the date of operation of the substituted sentence is consistent with much authority.

8. The question arises of the effect of s.17 of the Sentencing Act 1991 on sentences passed by the Court of Criminal Appeal or Court of Appeal. That is the section dealing with the commencement of sentences generally. Subject to s.16 (concurrency and cumulation) and s.18 (pre-sentence detention) a sentence of imprisonment is to commence on the day of its imposition or, if the offender is not then in custody, on the day of apprehension under the relevant warrant to imprison. In my opinion, s.17 of the Sentencing Act and s.568(4) of the Crimes Act cannot be taken in conjunction in order to obtain a power in the Court of Appeal to determine on what date a substituted sentence passed by it is to be taken to have been imposed. Section 17(1) does not bear on when such a sentence - or any other sentence - is imposed: it simply makes the date of imposition the date on which a sentence commences (unless the offender is not then in custody). It seems to me that the Court of Criminal Appeal has, over many years, taken the view that, notwithstanding s.17 and its predecessor, s.14 of the Act of 1985, the result of ss.568(4) and 567A(4) of the Crimes Act is that substituted sentences passed by it operate from the date of the original sentence. I refer again to the numerous decisions I have already mentioned, and in particular to R. v. Ferrett and Director of Public Prosecutions v. Eades. Doubt has been cast on the correctness of this view by one or two recent statements by the Court of Appeal that its substituted sentence runs from the date of its order. There is also the matter of the basis for the practice of appellate courts in this State, which may now be described as inveterate, of calculating pre-sentence detention, when passing a substituted sentence, down to the date of the order determining the appeal. The justification for this course might be the view that the expression "or proceedings arising from those proceedings" in s.18(1) of the Sentencing Act empowers the Court of Appeal to make a declaration which includes custody pending appeal. On the other hand, it might be the view that a substituted sentence operates from the date of the order made on appeal.

1. In my opinion it should be taken to be authoritatively established that substituted sentences passed by the Court of Appeal do not take effect from the date of its order and that the Court of Appeal has no discretionary power to determine the date of operation of its substituted sentences: by force of the Crimes Act, those sentences operate from the date of the original sentence. Section 568(4) requires the passing of such other sentence in substitution for the original one as the appellate court thinks ought to have been passed. It is the combined effect of the words "in substitution therefor" and "as it thinks ought to have been passed" which suggests to my mind that, as was said by the Full Court in such cases as Ferrett, Eades, Dennaoui, Stone and Singh, a substituted sentence passed on appeal under Part VI of the Crimes Act must be taken to have been passed on the date of the original sentence unless there can be found, as applicable in a given case, some express or implied statutory provision to the contrary. The passing of the sentence which ought to have been passed below in substitution for the sentence actually passed seems to me to require that the sentence be imposed as at the date on which the sentence below was imposed, although, as I have said, the requirements of s.568(4) and s.567A(4) are capable of being modified expressly or by implication by some other statutory provision, including one providing for a particular kind of sentence.

2. Pre-sentence detention should continue to be calculated by the Court, when passing a substituted sentence, down to the date on which the Court makes its order determining the appeal. The justification for this course is the view that the expression "or proceedings arising from those proceedings" in s.18(1) of the Sentencing Act empowers the Court of Appeal to make a declaration which includes custody pending appeal.

3. The rule that substituted sentences passed by the Court of Appeal operate from the date of the original sentence is liable to be displaced by an express or implied statutory provision to the contrary. It is possible that an intention that a substituted sentence passed by the Court of Appeal shall take effect from the date of that order is, as regards community-based orders made on appeal, to be derived from the provisions of the Sentencing Act dealing with community-based orders.

4. The present matter should be disposed of by setting aside the order made by this Court on 2 June 1998 and now making the same order, subject only to the variation that the declaration concerning pre-sentence detention will refer, conformably with s.18(1) of the Sentencing Act 1991, not to 79 days but to 335 days. This is the aggregate of the period of 79 days before the imposition of the original sentence on 30 January 1998 during which the applicant Jennings was held in custody in relation to proceedings for the offences committed on 5 and 6 January 1997 and the period of 256 days, beginning on 30 January and ending today, during which he was held in custody in relation to his application for leave to appeal against sentence arising from those proceedings. It is to be noted that s.18(1) no longer operates only where the offender has been held in custody in relation to the proceedings to which it refers "and for no other reason", those words having been repealed by s.11(1) of the Sentencing and Other Acts (Amendment) Act 1997, which provision (by virtue of s.2(2)) came into operation on 1 September 1997. We should ask the Registrar to take steps with a view to ensuring that no confusion results as regards the correctional authorities from the unusual course which the Court has taken, it being important that the authorities be made aware that the declaration made today supersedes the declaration made on 2 June 1998 and gives the applicant the benefit of all relevant detention, whether before or after the original sentence, calculated down to this day.

5. Since writing the above judgment I have been given the opportunity of reading in draft the judgment of Phillips, J.A. Because the correctional authorities have been waiting on the outcome of the appeal, I shall add only a fairly brief addendum in the light of what his Honour has written.

6. Phillips, J.A. considers that if the correct view is that the Court of Appeal may select the date as at which its substituted sentence is to be taken to have been imposed, the substituted sentence passed will itself enable one to say, without the need for any express statement, what selection has been made. If this is the effect of the Crimes Act, so be it; but I would regard as unsatisfactory a regime under which the correctional or other administrative authorities were, in a matter of great importance to the offender and to the community, required to interpret orders of the Court of Appeal by the application of the rules which are suggested. I give an example. It is said that, in the absence of something in the appellate order requiring a different result, the intention of the Court is that a substituted sentence which merely varies the quantity of the sentence below without altering its quality or nature is imposed as at the date of the sentence below, while one which alters the nature of the sentence below is imposed as at the date of the order made on appeal. An instance given of the latter is an order of disqualification made for the first time on appeal. Assume that a person is imprisoned by the lower court for three years without disqualification and that on appeal the prison sentence is left untouched but some kind of disqualification is imposed for five years. This period of disqualification would, on the rules put forward, presumably be treated as imposed on the date of the determination of the appeal. But how is one able to say that this was the intention of the Court?

7. If the contrary intention is capable of being found, not only in the formal order of the Court of Appeal, but also (as presumably would have to be said) in its reasons for decision, must the correctional and other administrative authorities possess themselves of those reasons?

8. More satisfactory in practice is a rule that by force of the Crimes Act itself substituted sentences must be imposed as at the date of the sentence below unless in a given case some other statutory provision brings about, expressly or by implication, a different result.

9. To the case of R. v. James & Sharman (1913) 9 Cr.App.R. 142 mentioned in my original judgment may be added Hancock v. Prison Commissioners [1960] 1 Q.B. 117 at 125-6, as accepting that the effect of s.4(3) of the English Criminal Appeal Act 1907 (corresponding to the Victorian s.568(4)) is that the substituted sentence is taken to have been imposed on the date of the original sentence. The present section in England - s.11(3) of the Criminal Appeal Act 1968 - is in different terms ("may ... in place of it pass such sentence ... as they think appropriate for the case"), and s.30(4) of the 1968 Act provides that the term of a sentence passed by the Court of Appeal shall, in the absence of a contrary direction, begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies.

TADGELL, J. A.:

1. I agree with the conclusion reached by Brooking, J.A. and substantially with the reasons he has assigned for it.

2. Assuming that more than one view is open as to the day on which a sentence passed pursuant to s.568(4) of the Crimes Act 1958 commences, I should prefer (other things being equal) a solution which conduces to certainty. To leave to the Court what might be regarded as desirable room to manoeuvre seems to me to carry with it a prospect of undesirable uncertainty. Moreover, I would regard as potentially troublesome a conclusion that the need for an appellate court to make a declaration under s.18(4) of the Sentencing Act 1991, or that the content of such a declaration made by an appellate court, should depend upon the intention of the appellate court as to the time of commencement of the sentence that it passes. That, however, is rather by the way: the essential debate now concerns the propriety or no of including a period from 30 January 1998 in the declaration to be made under s.18(4).

3. Phillips, J.A. apprehends that a declaration pursuant to s.18(4) in the present case that the period from 30 January 1998 up to the date of passing of sentence by this Court pursuant to s.568(4) is to be reckoned as a period of imprisonment already served under that sentence would result in the applicant's receiving credit twice for that period. As I understand, the apprehension is that the applicant would receive credit for having actually been in custody during that period, and that he would receive credit again in respect of that period by virtue of the declaration. If that correctly states the basis for the fear, I, with respect, cannot share it. It appears to stem from an assumption that the release date will be calculated by reference to the declaration and the whole of the time actually spent in custody from 30 January 1998 onwards, even though the Court has taken part of that period into account in formulating the declaration and has said so.

4. If the fear be valid it would be valid, as it seems to me, whether or not the Court of Appeal made a declaration under s.s.(4) of s.18: s.18(1) would itself produce the apprehended result, for the Court's declaration would rise no higher than the source of its power to make it. I should not be prepared to suppose that the prison authorities could properly regard (or that they would be likely to regard) s.18(1) as requiring a result of the kind suggested. The likelihood appears to me to be further reduced by the clear explanation of the manner of calculation of the declaration that is contained in the last paragraph of the reasons for judgment of Brooking, J.A. A declaration in those terms is in my opinion authorised, and in this case required, by the terms of s.18(1) and (4).

5. I understand s.18(1) to be directed chiefly to the prison authorities, although a sentencing court or a "court fixing a non-parole period in respect of the sentence" has authority under it to modify its application, and to that extent it does speak to courts. Sub-section (4) does specifically speak to all courts imposing or passing a sentence (and only to them), and requires a declaration to be made if s.s.(1) applies. I think s.s.(1) applies here in relation to the period from 30 January 1998 (as well as to the period of 79 days up to that date) because of the words "or proceedings arising from those proceedings".

6. I suggest that the use of the expression "pre-sentence detention" as an alternative or substitute for the words of s.18(1) "... period of time ... in custody in relation to proceedings for that offence or proceedings arising from those proceedings ... ", though often convenient, is not useful in a resolution of the question that has arisen in this case. It is a convenient expression so long as one knows what one happens to mean by it at the time of using it; but it is not to be found in any statute and cannot be taken necessarily to have an invariable or inevitable signification. With respect, it appears to me therefore to be unhelpful to seek to solve the present problem by reference to the idea that "pre-sentence detention" has a precise meaning and that it is confined to time spent in custody before the imposition of a sentence which is the subject of an application for leave to appeal; or that it can not refer to time to be reckoned as already served under a sentence passed under s.568(4).

PHILLIPS, J.A.:

1. The handing down of reasons for judgment on this application has thrown up a problem which, as it happens, is of more concern to the Court than the parties. It is a problem concerning the calculation of pre-sentence detention which hitherto has not been perceived as causing difficulty. As will appear, whatever solution is adopted the only requirement so far as the applicant is concerned was that he should not be disadvantaged merely by reason of his having sought leave to appeal. On that there was no disagreement in any quarter, but that necessarily lost us the advantage of a full exposure of the problem by means of competing submissions. Any deficiency in that regard is now rectified by the very detailed and comprehensive judgment prepared by Brooking, J.A. which I have had the considerable advantage of reading in draft. Unfortunately, having considered that judgment with great care, I find myself not in agreement with his Honour as to the solution that ought to be adopted and I shall set out my reasons for suggesting that there is no need for a change in practice. In what follows, I refer, for the purposes of illustration, to some of the many cases unearthed by his Honour's elaborate research, but I freely acknowledge that there the industry is his, not mine. I was greatly assisted, too, by a helpful memorandum prepared by Mr. Gyorffy, dealing with the history of ss.17 and 18 of the Sentencing Act 1991 and of s.579(3) of the Crimes Act 1958.

   Background

2. On 30 January 1998 the applicant Jennings was sentenced in the County Court on six counts of which he had been found guilty by a jury. He was sentenced to various terms of imprisonment which, after allowing for some concurrency, the trial judge declared resulted in a total effective sentence of seven years. A non-parole period was fixed of five years. No declaration was made of pre-sentence detention.

3. The applicant applied for leave to appeal against sentence on the ground, inter alia, that there was no proper parity when the sentences meted out to him were compared with those given at the same time to his co-offender, Morgan, who had pleaded guilty to six counts which were nearly, but not quite, the same as those of which Jennings had been convicted. Morgan also sought leave to appeal against sentence and both applications were in substance dismissed, although in the case of Jennings the application was allowed only for the purpose of correcting errors made by the trial Judge in articulating the individual sentences in order that these did add up to the total effective sentence of seven years.

4. All this is dealt with in the judgment handed down on 2 June 1998: R. v. Jennings and Morgan. But then a problem arose about the calculation of pre-sentence detention in the case of Jennings, a problem which was explained to us a day or so later when we reconvened for the purpose on 4 June. Jennings and Morgan were sentenced for offences committed by them while in company on the night of 5 and 6 January 1997 and they were both arrested in the early hours of 6 January. Thus by the time they were sentenced on 30 January 1998, both had spent some 390 days in custody. In relation to Morgan, a declaration was accordingly made under s.18(4) of the Sentencing Act 1991, that 390 days should be reckoned as a period of imprisonment already served under the sentences imposed on 30 January, but no such declaration was made in the case of Jennings. It appears that the trial judge regarded such a declaration as inappropriate because Jennings had offended while on parole for previous offences, parole which had been revoked in consequence of his re-offending.

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

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

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

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

   Pre-sentence detention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Nor was this position altered by the introduction on 5 November 1975 of a new reg.16A (see S.R. No.397 of 1975) into the Social Welfare Regulations, though s.202A of the Social Welfare Act 1970 itself came into operation only afterwards on 1 March 1976. Regulation 16A did no more than empower the Governor to give special directions with respect to washing and shaving "of a prisoner or the length of his hair", if he considered it desirable having regard to (inter alia) the relevance of length of hair or existence of whiskers to an unconvicted prisoner's defence or a prisoner's appeal. That is not in itself the sort of regimen for special treatment contemplated by s.579 and its presence can scarcely affect the conclusion, otherwise valid, that when s.202A was enacted (and when it came into force) there was no "special treatment" provided for appellants in custody by any rules or regulations relevant under s.579(1). Therefore it would not be surprising if in 1975 s.579(3) had been regarded merely as a spent force in this regard. No other rules or regulations have come to light since 1975 and so, to the same extent, s.579 still seems to be a spent force. Wanting any relevant rules or regulations within the meaning of subs.(1) concerning special treatment, subs.(3) can have no more operation these days than it had in 1975, in respect of prisoners in custody awaiting the determination of an appeal; for none is “specially treated as an appellant under this section”. Section 579(3) can therefore have no application to the case in hand.

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

   Conclusion

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

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

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