Last Updated: 8 February 2008

List of subheadings:

Crimes Act 1914 (Cth)
Scope of s16E
- Commencement
- Commencement and cumulative/concurrent sentencing
- Pre-sentence custody
----Definition of custody
States and Territories
- State and Territory laws governing commencement
- Approaches to pre-sentence custody

Related links:

Cumulative and Concurrent Sentences
Totality Principle
Non-Parole Periods

Commentary on the Commencement of Sentences under the Crimes Act 1914 (Cth)

The commencement of federal sentences of imprisonment and of non-parole periods is governed by s 16E of the Crimes Act 1914 (Cth).

There is no single federal rule of commencement. Section 16E(1) operates by picking up and applying the law of the State or Territory relating to the commencement of sentences and of non-parole periods, to the federal offender who is sentenced in that State or Territory. Accordingly, the laws governing the commencement of federal sentences differ across Australia. See further Scope of s 16E and States and Territories.

Where a federal offender has spent time in custody in relation to the offence concerned, a court may take that time into account when imposing a federal sentence or fixing a non-parole period in respect of that sentence.

Sections 16E(2) and (3) govern credit for time spent in custody. Section 16E(2) picks up State and Territory laws which have the effect of reducing the sentence by the period spent in custody for the offence (s 16E(2)(a)) or the effect of commencing the sentence on the day on which the person was taken into custody for the offence (s 16E(2)(b)). If the law of the State or Territory in which the federal offender is sentenced does not have either of those effects, then s 16E(3) applies. Section 16E(3) requires a court to 'take into account any period that the person has spent in custody in relation to the offence concerned'. [1] See further Scope of s 16E. See also States and Territories for links to the relevant state and territory sentencing provisions.

The introduction of s 16E of the Crimes Act 1914 (Cth) expressed in legislation the existing practice of applying state or territory provisions governing commencement to federal offenders. [2] The approach of picking up and applying State and Territory law was adopted 'to avoid the problem of an offender who is sentenced to joint State and federal terms (eg a drug offender) commencing the terms on different dates'. [3] However, the difficulties created by the interaction of federal and state sentencing provisions have not been overcome by s 16E and there is ambiguity on the applicability of some state and territory sentencing provisions to federal sentencing. [4]

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Scope of s16E

Commencement: s 16E(1)

The commencement of a federal sentence of imprisonment and of a non-parole period is governed by the law of the State or Territory in which the federal offender is sentenced: s 16E(1).

This means that the rules governing commencement for federal sentences will vary, dependent upon the State or Territory in which each federal offender is sentenced. Some courts may have more flexibility over when they may order a federal sentence to commence (see further State and Territory). For example, in R v Nguyen [2005] NSWCCA 362, [23] a New South Wales sentencing court was able to set a sentence that commenced on a date after the date on which the sentence was imposed. As Grove J explained:

Pursuant to s 16E of the Crimes Act 1914 (Cth) a Federal offence may attract a sentence or non parole period commencing after the date of imposition if it is facilitated by relevant State law, which it is in this State pursuant to s 47(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

In comparison, the law on commencement in Victoria 'prescribes that a sentence, commences, when the offender is in custody, on the day it is imposed'. [5] In R v Satwant Singh the offender was taken into custody on 18 April 1990. The sentence was imposed in the Victorian County Court on 25 September 1990. The County Court ordered the sentence to commence on 18 April 1990. On appeal the Supreme Court of Victoria, Court of Criminal Appeal, found the County Court did not have power to backdate the sentence to 18 April 1990. There was no express federal power to backdate a sentence nor was there a power to backdate the sentence to a date earlier than its imposition under Victorian sentencing legislation: R v Satwant Singh (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Crockett and Smith JJ, 26 March 1991); R v Nagy (1991) 57 A Crim R 64, 68; O'Brien (1991) 57 A Crim R 80, 87.

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Commencement and Cumulative/Concurrent Sentencing

Where state and federal offences are heard in the same sitting and a sentence of imprisonment is imposed for these offences, some confusion may still arise due to the interaction of other federal provisions. As Gillard J of the Supreme Court of Victoria observed in R v Mokbel [2006] VSC 119, [20]:

The application of two different statutory regimes means that the Court must proceed with considerable care to ensure that the relevant statutory provisions are taken into account.

For example, while s 16E(1) of the Crimes Act 1914 (Cth) provides that the State or Territory law on commencement governs the federal sentence, s 19(3) of the Crimes Act 1914 (Cth) also applies where state and federal offences are heard in the same sitting. Section 19 deals with cumulative, partly cumulative and concurrent sentencing and it places an obligation on the court, by order, to direct when each federal sentence commences. Therefore regardless of the position under the relevant state or territory legislation a court sentencing an offender for a federal offence and a state or territory offence (pursuant to s 19(3)) must ensure that it directs, by order, when the federal sentence commences. See Setting cumulative, partly cumulative and concurrent sentences.

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Pre-sentence Custody: s 16E(2) and (3)

Section 16E(1) of the Crimes Act 1914 (Cth) is subject to sub-ss (2) and (3) which govern taking into account time spent in custody.

Section 16E(2) picks up and applies specific State or Territory laws to a federal offender sentenced in that State or Territory. The State/Territory law applies in the same way to a federal sentence or non-parole period fixed in respect of that sentence in either of the following circumstances:

• where the law of the State or Territory has the effect that a sentence or non-parole period may be reduced by the period the person has been in custody for the offence (s 16E(2)(a)).

  OR

• where the law of the State or Territory has the effect that a sentence or non-parole period is to commence on the day on which the person was taken into custody for the offence (s 16E(2)(b)).

As s 16E picks up the law in the State and Territory where the federal offender is being sentenced there is no federal power to adopt one of these two methods if that method is not otherwise available in that jurisdiction: See R v Satwant Singh (discussed above) where the Supreme Court of Victoria, Court of Criminal Appeal held that the sentence imposed could not be backdated to take account of time spent in custody as there was no state provision enabling it to do this.

If the law of the State or Territory in which the federal offender is sentenced does not fall within either of the two circumstances listed above (s 16E(2)(a) or (b)), then s 16E(3) applies. Section 16E(3) is a catch all provision which states:

Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned. (emphasis added)

The Australian Law Reform Commission drew attention to the ambiguous drafting of s 16E(3) in its report Same Crime, Same Time. The Commission remarked that it is not clear whether sub-s (3) requires a court to give full credit for the period of time spent in custody (as occurs under s 16E(2)) or whether time spent in custody is simply a sentencing factor that a court is required to take into account. Thus, under the latter interpretation a court may choose not to give the offender full credit for any period spent in custody in relation to the offence concerned. [6]

The federal court operates under s 16E(3). Currently, all Australian States and Territories have legislative provisions which have been judicially interpreted as falling under s 16E(2): see States and Territories.

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Definition of 'custody'

The term 'custody' is used in s 16E(2) and (3) but it is not defined in Part IB of the Crimes Act 1914 (Cth).

The issue of whether credit for time spent in 'custody' under s 16E includes time spent in administrative detention by a federal offender is unclear. Federal offenders may be subject to various forms of detention such as immigration detention, [7] fisheries detention, [8] preventative detention, [9] home detention conditions under control orders [10] etc.

The Explanatory Memorandum in relation to sub-ss (2) and (3) refers to 'time spent on remand in custody'. This seems to support a restrictive interpretation of 'custody' rather than a broader interpretation which would include forms of non-remand detention. [11]

State and Territory sentencing provisions have also left the term 'custody' undefined. In its report, Same Crime, Same Time, the Australian Law Reform Commission observed:

Apart from the sentencing legislation of Victoria and the Northern Territory, which make specific provision for credit to be given for periods of detention under hospital orders, other state and territory sentencing provisions are, on their face, limited to enabling a court to give credit for time spent in custody, which is typically time spent in remand after bail has been refused. [12]

There has been some judicial consideration as to whether time spent in non-remand detention falls within s 16E of the Crimes Act 1914 (Cth) in cases regarding fisheries and immigration detention. However, these cases concern offences which do not carry a penalty of imprisonment and s 16E of the Crimes Act 1914 (Cth) arises under Division 3 of the Act which deals with 'Sentences of Imprisonment'. [13]

Chief Justice Doyle of the Supreme Court of South Australia has expressed reservations as to the applicability of s16E for offences which do not carry a penalty of imprisonment. In Darter v Diden [2006] SASC 152, [24] Doyle CJ said in relation to a fisheries offence punishable only be fine:

It is also appropriate to take account of the time spent in detention, even though that detention may be a result of the defendant’s immigration status (that is, not being an Australian citizen or the holder of an appropriate visa) rather than a result of the offence itself. That was the view of the Full Court of the Supreme Court of the Northern Territory in Mohammed Yusup v The Queen [2005] NTCCA 19 at [13]-[25] Riley J, with whom the other members of the Court agreed. In that case Riley J put considerable weight on the provisions of s 16E of the Crimes Act. I am not confident that that section applies in a case like this. However, there is such a close connection between the detention and the offence that it is appropriate to take the detention into account (emphasis added).

In light of Doyle CJ's statement, the preferable view is that time spent in detention is not taken into account in under s 16E(2) or (3). Nevertheless, it may be taken into account (provided there is a close connection between the administrative detention and the offence) under the general power of s 16A(2) of the Crimes Act 1914 (Cth) as an additional matter that is relevant and known to the court: Yusup v The Queen [2005] NTCCA 19, [17-20], Darter v Diden [2006] SASC 152, [24].

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Case Note: Yusup v The Queen [2005] NTCCA 19

In Yusup v The Queen the appellant was detained pursuant to the Fisheries Management Act 1991 (Cth) and then under the Migration Act 1958 (Cth). Detention under section 250 of the Migration Act 1958 (Cth) is not subject to a time limit. Justice Mildren warned that there is potential for abuse if courts do not take such detention into account in determining an appropriate sentence. In Yusup v The Queen [2005] NTCCA 19, [4] Mildren J said:

Of further concern is that fisherman taken in fisheries detention are not being charged or released within 168 hours as required by s 84A(1) of the Fisheries Management Act [(Cth)], but are being detained, after that period has expired, under s 250 of the Migration Act [(Cth)]... There is a danger that detention under s 250 may be abused by the tactical use of "go-slow" methods either as a means of imprisonment for deterrent purposes because the Fisheries Management Act fails to impose adequate penalties or for other irrelevant reasons... the courts cannot close [sic] a blind eye to such tactics.

(See also Mildren J's comments on the use of fisheries and immigration detention in R v Zainudin & Ho [2005] NTSC 14, [26-29]).

In the leading judgment of the court, Riley J commented on applicability of ss 16E and 16A(2) of the Crimes Act 1914 (Cth) to time spent in custody and detention. In Yusup v The Queen [2005] NTCCA 19, [17, 20] Riley J (Mildren and Southwood JJ agreeing) said:

Section 16E(3) of the Crimes Act 1914 (Cth) provides that a court that imposes a federal sentence on a person must take into account any period that the person has spent in custody in relation to the offence concerned. His honour acknowledged this requirement and expressly took the period in custody into account. Section 16A(2) of the same Act provides that "in addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court..." and thereafter a series of matters is set out. Neither time spent in fisheries detention nor immigration detention are matters referred to. However it is necessary to consider whether a period of some seven weeks spent in detention, which arose out of the fact that the appellant was to be charged with the offences to which he subsequently pleaded guilty and whilst he was awaiting that process to be undertaken, is a matter which should be considered "in addition to" the matters set out in s16A(2)... (emphasis added).

In my view the fact that the appellant was held against his will, albeit lawfully, for such a lengthy period whilst the authorities determined how best to deal with him is a matter to be taken into account in determining an appropriate sentence.

Note, however, Doyle CJ's reservations in Darter v Diden (discussed above) on the application of s 16E to provide credit for time spent in custody where the offence does not carry a sentence of imprisonment. In such cases, time spent in custody and/or detention may be taken into account by a sentencing court under s 16A(2) of the Crimes Act 1914 (Cth).

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STATES AND TERRITORIES

Throughout the States and Territories of Australia there is wide variation in the provisions that govern the commencement of sentences and the approach a court may adopt to account for time spent in custody.

The State and Territory laws governing commencement and pre-sentence custody are set out below.

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State and Territory Laws Governing Commencement

Section 16E(1) of the Crimes Act 1914 (Cth) applies the law of the State or Territory relating to the commencement of sentences and of non-parole periods to the federal offender convicted in that State or Territory.

There is a general rule operating in most States and Territories that a sentence commences on the day the sentence is imposed unless the offender is not in custody at that time: ACT Crimes (Sentencing) Act 2005 (ACT) s 62(1)(a); NSW Crimes (Sentencing Procedure) Act 1999 (NSW) s 47(1)(a); NT Sentencing Act 1995 (NT) s 62(1); Qld Penalties and Sentences Act 1992 (Qld) s 154(1)(a) [for convictions on indictment only]; Tas Sentencing Act 1997 (Tas) s 14(1); Vic Sentencing Act 1991 (Vic) s 17(1).

This rule is then subject to a number of exceptions which accommodate different sentencing circumstances such as periodic detention, cumulative sentencing (although see discussion above) and provisions allowing for sentences to be backdated.

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Approaches to pre-sentence custody

A sentencing court may provide credit for the period of time the offender has spent in pre-sentence custody. Three different approaches that have been adopted by courts in Australia to account for time spent in pre-sentence custody: backdating the sentence, reducing the term of the sentence and counting time in custody as time already served. [14]

1. The first approach of backdating the sentence involves fixing the date of commencement to a date earlier than the date on which the sentence was actually imposed by a court. This approach is not available in all States and Territories.

Legislative power to backdate a sentence so that it 'commences on the day on which the person was taken into custody for the offence' (in accordance with s 16E(2)(b) of the Crimes Act 1914 (Cth)) is provided in:

• Australian Capital Territory Crimes (Sentencing) Act 2005 (ACT) s 63(1),
• New South Wales Crimes (Sentencing Procedure) Act 1999 (NSW) s 47(2)(a),
• Northern Territory Sentencing Act 1995 (NT) s 63(5),
• South Australia Criminal Law (Sentencing) Act 1988 (SA) s 30(2)(b),
• Tasmania Sentencing Act 1997 (Tas) s 16(1)(b), and
• Western Australia Sentencing Act 1995 (WA) s 87(d).

There is a clear judicial preference in South Australia for adopting the approach of backdating the sentence to account for time spent in pre-sentence custody. As Vanstone J (Doyle CJ agreeing) said in Fox v Police [2005] SASC 208, [40]:

... this Court observed in R v Nguyen (2002) 84 SASR 190 there are sound reasons of policy in favour of directing that a sentence be "backdated" wherever that is permitted. [To link to these reasons see R v Nguyen [2002] SASC 341, [56-58]]

Judicial preference in New South Wales is also in favour of backdating the sentence: R v Newman [2004] NSWCCA 102, [27].

NB. The Australian Law Reform Commission does not support the backdating of sentences and its effect of creating an artificial commencement date. In its report, Same Crime, Same Time, it proposed that the power to backdate a sentence should not be available in Commonwealth sentencing see Report No 103 (2006) [10.11].

2. The second approach which is used to provide credit for pre-sentence custody does not alter the commencement date of the sentence but rather reduces the term of the sentence. This approach is legislatively available in the Sentencing Acts of South Australian and Western Australian: SA Criminal Law (Sentencing) Act 1988 (SA) s 30(2)(a); WA Sentencing Act 1995 (WA) s 87(c).

Legislative provisions which allow for a reduction in the term of a sentence are made applicable to federal sentencing under the operation of s 16E(2)(a) of the Crimes Act 1914 (Cth).

The reduction approach has been criticised for its distorting effect on statistical information on sentencing and because its use may result in the public perception of an inadequate sentence having been passed for the offence convicted. This is because when the term of the sentence is reduced, particularly if the offender has spent a lengthy period of time in custody, the actual sentence imposed may appear very lenient. The ALRC report (Same Crime, Same Time) provides the following example:

If a federal offender is to receive a sentence of 12 months but has already spent 11 months in custody, a court using the reduction method would impose a sentence of only one month. [15]

See also Howie J (McColl JA agreeing) remarks on the reduction approach in R v Newman [2004] NSWCCA 102, [27]:

In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour. Firstly, it preserves the denunciatory and deterrent value of the sentence to be pronounced. If a sentence is decreased by a substantial period already served in custody, it can have the appearance of being inadequate both to public perception and when it appears in the statistical information that is now so often relied upon by sentencing courts (emphasis added).

3. The third approach is to provide credit for time spent in custody by making a declaration of time already served. Queensland and Victoria provide credit for pre-sentence custody in the form of time already served under the sentence: Qld Penalties and Sentences Act 1992 (Qld) s 159A;Vic Sentencing Act 1991 (Vic) s 18(1). Under this approach the court determines and imposes an appropriate sentence. In making the sentencing order the court calculates the time that has been spent in pre-sentence custody in relation to the offence and then declares the period to be reckoned as time already served under the sentence.

Counting time in custody as time already served under the sentence is not expressly covered in s 16E(2) of the Crimes Act 1914 (Cth). Yet, the Queensland and Victorian provisions which enable a court to declare the period spent in custody as time already served have been judicially interpreted as having the effect of reducing the sentence and thus falling within s 16E(2)(a) of the Crimes Act 1914 (Cth): R v Satwant Singh (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Crockett and Smith JJ, 26 March 1991) 14; R v Hoong (1994) 75 A Crim R 34 applied in R v Salles [2003] QCA 127. See also Ferreira v The Queen [2002] QCA 12; R v Perkins [2000] VSCA 132, [14]; R v Nunez [2002] VSCA 15, [4]; R v Mokbel [2006] VSC 119, [114].

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Differing state and territory approaches

Some State and Territory sentencing provisions give courts greater flexibility and allow a choice in the approach taken to account for pre-sentence custody. For example, in South Australia a court may either reduce the term of the sentence imposed or backdate the sentence to take account of time spent in custody when the offender is subsequently sentenced to imprisonment: Criminal Law (Sentencing) Act 1988 (SA) s 30(2).

However, as mentioned above, s 16E of the Crimes Act 1914 (Cth) picks up the law in the State and Territory where the federal offender is being sentenced. A sentencing court does not have the power to adopt one of the three approaches outlined above, to take account of pre-sentence custody, if that method is not otherwise available in that jurisdiction.

There is also variation throughout the States and Territories on whether a court is obliged to take pre-sentence custody into account. For example, in New South Wales it is mandatory for a court to take into account any time the offender has been held in custody in relation to the offence (Crimes (Sentencing Procedure) Act 1999 (NSW) ss 24(a), 47(3)) while in Western Australia a court's power to take time spent in custody into account is discretionary (Sentencing Act 1995 (WA) s 87(b); Ratcliff v The Queen (Unreported, Supreme Court of Western Australia, Court of Appeal, Kennedy, Murray and Anderson JJ, 3 November 1998); Shams v Clarson [2002] WASCA 121, [36-39]).

Even in those jurisdictions where the power to credit for time spent in custody is discretionary, a sentencing court which declines to provide credit should provide valid reasons for the exercise of its discretion. [16] In Shams v Clarson [2002] WASCA 121, [37-39], McKechnie J said:

The power in s 87 [Sentencing Act 1995 (WA)] is discretionary. However, where a defendant has been in custody for a period in respect of the offences under consideration and for no other reason, and the defendant has not contributed to delay or has otherwise become disentitled to the benefit of the provision, a sentence should be backdated. It is no answer to say that the offender would likely have been detained in any event. While this may be true, there is a difference in status and in fact between detention and custody.

Furthermore, the Magistrate was inconsistent. In respect of some offenders he backdated the sentences while for others he did not. In no case did he provide reasons for his decision.

In the absence of any reasons why the Magistrate exercised his discretion against backdating, I infer error (emphasis added).

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Footnotes

[1] Crimes Act 1914 (Cth) s 16E(3).

[2] Explanatory Memorandum, Senate, Crimes Legislation Amendment Bill (No 2) 1989 (Cth), 8. For further reading on the use of state sentencing law in federal sentencing see R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 44 [1.303], 747.

[3] Explanatory Memorandum, Senate, Crimes Legislation Amendment Bill (No 2) 1989 (Cth), 8 cited in Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.3].

[4] The Australian Law Reform Commission believes that some state and territory provisions on commencement and pre-sentence custody are inappropriate for federal sentencing: Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [Ch 10]. See also comments by Professor Arie Freiberg made in 'consultation and in a submission to the Inquiry that the law relating to the commencement of sentences was complex, confusing and in need of reform' (Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.6]).

[5] R v Satwant Singh (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Crockett and Smith JJ, 26 March 1991) 13. At the time the relevant section was, s 14 of the Penalties and Sentences Act 1985 (Vic) however now the law on commencement can be found under s 17 of the Sentencing Act 1991 (Vic).

[6] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.17].

[7] Migration Act 1958 (Cth).

[8] Fisheries Management Act 1991 (Cth), sch 1A.

[9] Criminal Code Act 1995 (Cth).

[10] Criminal Code Act 1995 (Cth).

[11] Explanatory Memorandum, Senate, Crimes Legislation Amendment Bill (No 2) 1989 (Cth), 9.

[12] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.31].

[13] The heading of a Division is part of the Act: Acts Interpretation Act 1901 (Cth) s 13(1).

[14] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.13].

[15] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.13].

[16] For the discussion of this issue in the context of Victorian sentencing law see R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 743.

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