FEDERAL COURT OF AUSTRALIA Geiger v The Queen [2001] FCA 475 SENTENCING - appeal against severity – disparity of sentence with co-offender – whether sufficient to give rise to justified sense of grievance. SENTENCING – appeal against severity – plea of guilty – whether taken into account – whether given sufficient weight – whether discount for plea should be specified. SENTENCING – time spent in custody prior to sentence – section 451 Crimes Act 1900 (ACT) – whether to be "reckoned" at time of sentence or after. Crimes Act 1900 (ACT) Crimes (Amendment) Bill (No 2) 1993 (ACT) Commonwealth Prisoners Act (Report No 43, 1988, AGPS, Canberra) Penalties & Sentences Act 1992 (Qld) The Queen v Lowe (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 R v Carberry [2000] ACTSC 60 R v Fernando (1992) 76 A Crim R 58 Keen v R [2000] FCA 940 R v Holder; R v Johnston [1983] 3 NSWLR 245 Carrion (1993) 69 A Crim R 230 R v Wishart & Jenkins [1994] 2 Qd R 421 Short v R (unreported, Federal Court of Australia, 13 May 1994) Antonovic v R (unreported, Federal Court of Australia, 20 June 1995) On appeal from the Supreme Court of the ACT HANK STEPHEN GEIGER v THE QUEEN A98 OF 1999 BEAUMONT ACJ, MILES and GYLES JJ CANBERRA 27 April 2001 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A98 OF 1999 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: HANK STEPHEN GEIGER APPELLANT AND: THE QUEEN RESPONDENT JUDGES: BEAUMONT ACJ, MILES and GYLES JJ DATE OF ORDER: 27 APRIL 2001 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. So much of the sentence that fixed a non-parole period of two years be set aside and in its place a non-parole period be fixed to expire on 23 July 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 98 OF 1999 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: HANK STEPHEN GEIGER APPELLANT AND: THE QUEEN RESPONDENT JUDGES: BEAUMONT ACJ, MILES & GYLES JJ DATE: 27 APRIL 2001 PLACE: CANBERRA REASONS FOR JUDGMENT BEAUMONT ACJ: 1 I agree with Miles J that the appeal should be allowed in respect of the fixing of the non-parole period. I also agree with the observations of Gyles J on the operation of s 451. I certify that paragraph numbered one (1) is a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont. Associate: Dated: 27 April 2001 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A98 OF 1999 BETWEEN: HANK STEPHEN GEIGER APPELLANT AND: THE QUEEN RESPONDENT JUDGES: BEAUMONT ACJ, MILES and GYLES JJ DATE: 27 APRIL 2001 PLACE: CANBERRA REASONS FOR JUDGMENT MILES J: 2 This is an appeal against the severity of sentences imposed in the Supreme Court of the Australian Capital Territory (Gallop J). 3 On 18 December 1998 the appellant was arraigned on indictment charging him with a number of offences under the Crimes Act 1900 (ACT) (the Crimes Act). The sentences imposed in respect of each count were as follows: (1) Act of indecency on female – 4 years imprisonment (maximum 5 years); (2) Assault occasioning actual bodily harm on female – 12 months imprisonment (maximum 5 years); (3) Assault occasioning actual bodily harm on male – 12 months imprisonment (maximum 5 years); (4) Accessory after the fact to robbery of male – 12 months imprisonment (maximum 2 years); (5) Escape from lawful custody – 2 years imprisonment (maximum 5 years). 4 All the offences, except that of escaping from lawful custody, were committed on 13 June 1998 when the appellant was almost 18 years of age. The facts upon which sentencing proceeded followed those set out in an agreed statement of facts which was admitted into evidence. Essentially they were that at about 5.30 am the two victims left a nightclub in the Civic area. Whilst they were walking together along Northbourne Avenue they were approached by the appellant and another young man, Tani Samuel. One of the two young men called out "let's fuck the girl." The two young men then set upon the couple and tried to pull them apart. The male victim pushed Samuel away. The appellant lifted the female's skirt from the front and placed his hand in the area of her vagina. When he withdrew, Samuel lifted her skirt from behind and inserted two fingers into her vagina. The appellant punched the male in the face and continued to punch him until he fell to the ground. The female tried to intercede and she too was punched in the face by the appellant. She fell to the ground. The male victim meanwhile regained his feet but again the appellant punched him in the face. Again the female tried to intercede. Again she was punched by both men. A punch by the appellant again knocked her to the ground where she stayed. Both young men continued to punch the male victim. When he again fell to the ground, Samuel asked him for money. The male victim stood up and refused, and Samuel knocked him to the ground for a third time. The male victim handed over $50. The appellant and Samuel left the scene. Both victims suffered injuries in the nature of extensive bruising, cuts and abrasions to several parts of the body and head. The injuries to the male required sutures to the left cheek and eyebrow. Victim impact statements indicated some lasting psychological injury to both victims. 5 The appellant was arrested on 15 June 1998. He declined to be interviewed. He was charged and remanded in custody. He escaped from the Quamby Youth Centre on 15 July 1998 by scaling and climbing over an electrified fence but was soon apprehended some 800 metres away by staff. That was the offence of escaping from lawful custody for which he was also convicted and sentenced. 6 The appellant was born on 21 July 1980. By the time of the offences under consideration he had acquired what his Honour called a very substantial record of findings of guilt in Childrens Courts in Queanbeyan, Wollongong and Port Kembla. His prior offences were mainly in the way of property offences, including burglary, theft and illegal use of motor vehicles. There was also one offence of break, enter and steal on 29 August 1997 which was dealt with in the Queanbeyan Childrens Court. He was made subject to a control order of 9 months with an additional term of 3 months, to date from 30 July 1997. Assuming that he was released at the end of April 1998, the offences of 13 June 1998 were committed some 6 weeks after his discharge. 7 In addition to the agreed statement of facts and the appellant's prior record, the learned sentencing judge had before him a pre-sentence report from ACT Youth Justice Services dated 17 December 1998 and pre-sentence reports from the NSW Probation and Parole Service dated 21 October 1999 and 3 November 1999. There were also reports from clinical psychologists Ms Kate Barrelle dated 16 December 1998 and Dr Bruce Stevens dated 15 November 1999. A typed "statement of regret" signed by the appellant was admitted into evidence. Otherwise the appellant did not give evidence. 8 The appellant was initially committed for sentence on 1 September 1998. When he appeared for sentence on 18 December 1998, his Honour was persuaded to release him on bail with the intent that if placed on remand for a lengthy period the appellant would have the opportunity to show his chances of rehabilitation. He was remanded then to 30 April 1999 and he was further remanded on bail on a number of occasions. On 10 January 1999, the appellant came before the Queanbeyan Local Court on a charge of offensive behaviour. He came again before that Court on 7 March 1999 on a charge of being drunk and disorderly, and on 10 March for burglary and stealing property including theft of a motor vehicle, and again later in May on further offences of burglary. He later told the psychologists and corrections officers that a friend of his died of a heroin overdose on 15 June 1999 which put him into a state of deep depression. At about that time his bail was further extended in the Supreme Court to 2 August 1999 but he failed to appear in court on that day. He was convicted and sentenced for the burglary and theft offences in the Queanbeyan Local Court on 19 July 1999. The outcome of those proceedings is unclear. 9 A warrant for his arrest was issued by the Sheriff of the ACT and had not been executed by 2 August 1999 when he failed to appear to answer his bail. He was in custody in Goulburn Correctional Centre from 18 September to 29 October 1999, for what reason it is not clear. He was granted bail by another Judge of the Supreme Court. He was again apprehended, appeared before Gallop J on 10 November 1999 and was further remanded in custody to 17 November 1999 when he was sentenced. In the meantime, on 8 October 1999, the man who was with him at the time of the commission of the offences now under consideration, Tani Samuel, was tried by a jury, convicted and sentenced by Higgins J to imprisonment as set out below. 10 Gallop J considered that the appellant had failed "very badly" to take the chance given to him on 18 December 1998. He could hardly have concluded otherwise. Subject to what appears below, his Honour acknowledged in a summary way that he had regard to all factors which the Crimes Act requires to be taken into account on sentencing (s 429A) and also to "the admonition that imprisonment is a [sentence of] last resort" (s 429C). Grounds of Appeal: Parity and the Plea of Guilty 11 Although these were expressed in the notice of appeal as separate grounds, the circumstances are such that they are closely connected. Samuel pleaded guilty to charges of robbery and assault occasioning actual bodily harm, both on the male victim. He pleaded not guilty and was convicted after trial on charges of sexual intercourse without consent and assault occasioning actual bodily harm upon the female victim. On 8 October 1999, Higgins J, sentenced Samuel to a total of five years imprisonment with a non-parole period of two years, both to commence on 23 July 1999. He described the attack on the female victim as particularly outrageous and vicious, creating lasting psychological damage to her as well as physical injury. Higgins J described the offence against the male victim as "serious" to which a "final insult" was added by the stealing of $50. The facts were not otherwise described in the sentencing remarks of Higgins J but it is common ground for the purpose of the present appeal that they were in general terms much the same as set out in the statement of facts admitted in the case against the appellant. 12 The principle of parity of sentence among persons who commit similar offences is well recognised as a fundamental principle of criminal justice. This was emphasised by the High Court in The Queen v Lowe (1984) 154 CLR 606. In that case Mason J was moved to say: at 610-611: "Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 13 The principle was considered in the later case of Postiglione v The Queen (1997) 189 CLR 295. It was expanded upon by Dawson and Gaudron JJ in a joint judgment at 301 (footnotes excluded): "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. The different circumstances involved in this case, namely the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas." 14 On page 303 their Honours said: "…….it is convenient to observe, once again, that, as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody." 15 Although the latter passage suggests that the principle may not be confined to co-offenders, it is more difficult to apply where the allegedly disparate sentences are imposed on persons not charged as co-offenders (Postiglione, at 338 per Kirby J). In both Lowe (armed robbery) and Postiglione (conspiracy to import illicit drugs) the offenders were convicted on identical charges but on separate indictments. 16 The charges upon which the appellant was convicted were not identical to those on which Samuel was convicted save for the charges of assault occasioning actual bodily harm to both victims. In that respect the appellant pleaded guilty to the assault on the female and Samuel pleaded not guilty. Both the appellant and Samuel pleaded guilty to the assault on the male. Both offenders received the same sentences of 12 months on both charges, to be served concurrently. In respect of the sexual assaults and the robbery the situation was more complex. The appellant was not charged with being party to Samuel's act of sexual penetration, which carried a maximum of 12 years imprisonment, and Samuel was not charged with being party to the appellant's act of indecency, which carried a maximum of only 5 years imprisonment. Nor was the appellant charged with being a party to the robbery committed by Samuel, which carried a maximum of 14 years imprisonment, except to the extent that he was charged with being an accessory after the fact to that robbery, which carried a maximum of only 2 years imprisonment. Further, the appellant but not Samuel was convicted of escaping from lawful custody, an offence which had nothing to do with those committed on the night of the assaults and robbery. If the maximum possible terms are aggregated, the appellant stood to be sentenced to 22 years imprisonment and Samuel stood to be imprisoned to 36 years imprisonment. As has been noted, in respect of the offences committed on 13 June 1998, the appellant's head sentence was four years, with a non-parole period of two years, reckoned from 10 November 1999. Samuel was sentenced to five years' imprisonment but with a non-parole period of two years, reckoned from 23 July 1999. 17 Notwithstanding the difference in some of the charges, the facts upon which the sentencing of each offender proceeded are sufficiently similar for the parity principle to be invoked and applied, as indeed Gallop J recognised in sentencing the appellant. His Honour was content to regard both the appellant and Samuel as co-offenders and so referred to them by that term during his sentencing remarks. 18 Mr Harris of counsel, who appeared for the appellant, submitted that his Honour failed properly to apply the principle in that his Honour did not give sufficient weight to the following factors: · The plea of guilty to all charges; · The more serious sexual assault committed by Samuel; · The lack of participation by the appellant in the robbery; · The difference in the total maximum sentences; · The principle of totality. 19 Mr Harris properly conceded that, for the purpose of applying the parity principle, it must be recognised that in reality things tend not to be equal and that some factors might have militated against the appellant when compared with Samuel. The position of the Director of Public Prosecutions, represented by Mr Archer of counsel on the appeal, was that when these countervailing factors are taken into consideration, there was no marked discrepancy between the sentences imposed on the two men and that any discrepancy found is not such as to give rise to a justifiable sense of grievance on the part of the appellant. The countervailing factors are: · The common factual circumstances; · The fact that the act of sexual penetration on the part of Samuel was at the lower end of the scale of seriousness for that offence; · The more serious criminal record of the appellant; · The low prospects of rehabilitation of the appellant; · The conviction for escape. 20 At this stage it is appropriate to record that one matter that received passing mention in one of the psychologist's report, but nowhere else in the evidence, nor in his Honour's reasons, is that the appellant is of Aboriginal origin. Nothing was put in submissions on that aspect in the appeal. It may go some way to explain the recidivist pattern of the appellant's offending from early childhood and should not be ignored: see R v Carberry [2000] ACTSC 60 and R v Fernando (1992) 76 A Crim R 58. 21 Further, when considering the submissions made, the Court should be mindful of the impossibility of achieving perfect parity (Postiglione, [336], Kirby J), the undesirability of very minor or token adjustments of sentence and the prospect of any substantial reduction of the appellant's sentence creating a sense of grievance on the part of the co-offender Samuel. 22 Dealing first with the pleas of guilty, it is well established that a plea of guilty should usually result in a reduction of the length of term of imprisonment. Although the plea of guilty is simply one of the matters required to be taken into account under s 429A of the Crimes Act, the principle that a plea, particularly at an early stage, should attract a reduction of sentence is fundamental. In New South Wales, legislation requiring the sentencing judge or magistrate to specify the reduction given is in force, but there is no similar provision in the ACT. It must be recognised that the reduction, or discount, will be the greater if the admission of guilt is reflective of true contrition. However, to lay down by judicial fiat a general principle that a sentence must specify the reduction given for a plea of guilty is not desirable. 23 It is true, as Mr Harris pointed out, that his Honour did not indicate exactly how he had taken the pleas of guilty into account nor the extent to which the sentence had been reduced accordingly. It was suggested for the appellant that it was incumbent upon his Honour to have done so in order that the appellant might know what benefit he was to receive as a result of his pleas of guilty to all charges, in contrast to Samuel who had denied his guilt in relation to the female victim. However, the repeated reference by his Honour to the pleas of guilty and the expressed recognition that the early pleas had initially resulted in a lengthy remand on bail for the purpose of giving the appellant a chance to redeem himself, and the reference to the absence of actual contrition, make it impossible to accept that his Honour was not conscious of the need to take the pleas into account. Further, in view of the circumstance of the earlier lengthy remand, it is also impossible to draw the inference that his Honour did not give the pleas the weight he thought they deserved. 24 It was further submitted for the appellant that his Honour was in error when he described the differences in the sexual offences with which each was charged as "slight". However, despite the substantial difference in the maximum sentences provided for in the Crimes Act, it was the actual criminality of each offender's conduct that had to be assessed. His Honour assessed that conduct in the light of the maximum sentences available and it was open to his Honour to conclude that the difference in criminality of conduct was not so great that the sentences for the appellant should not be "roughly the same", although somewhat more severe in respect of the appellant. 25 Where the circumstances justify or require the application of the totality principle, that principle is not to be ignored in favour of the parity principle, although the two principles may appear to pull in opposite directions: see Postiglione at 314 per McHugh J, at 341 per Kirby J. 26 At the time of sentence the appellant had turned 19 years of age. We were informed that Samuel was about the same age (born on 17 October 1979). Subject to what is said below it appears that the appellant is due for release on parole on 10 November 2001. Samuel is due for release on 23 July 2001. In neither case could it be said that the non-parole period results in a crushing sentence. However, the head sentences are substantially different. In the case of the appellant the head sentence expires on 10 November 2005 and in the case of Samuel on 23 July 2004. The appellant clearly has a bad record which is said to be worse than that of Samuel. The latter was not included in the material available on the appeal and neither Higgins J nor Gallop J said anything about the record of Samuel. In these circumstances the difference between the records of the two should not be presumed to operate significantly to the prejudice of the appellant in order to justify the discrepancy in the sentences. 27 Then there is the question of time spent on remand in custody. Gallop J was aware that the appellant had been in custody in respect of the relevant offences from the time of his initial arrest on 15 June 1998 until 18 December 1998. His Honour was also aware that the appellant was in custody from 18 September to 29 October 1999 when he was granted bail in the Supreme Court. However, it was not clear whether the appellant was in custody during those periods and for the whole of that time in relation to the relevant offences or, for at least some of that time, for further offences committed in New South Wales. Counsel on the appeal agreed that the total period in custody for the relevant offences was 200 days. After pronouncing sentence, his Honour stated that the head sentence and non-parole periods were to commence on 10 November 1999, the date on which he, the offender, finally appeared for sentence, adding that he had "taken into account … the periods you have spent in custody." His Honour specifically inquired of counsel whether there was anything further to be put and both counsel answered no. Mr Harris conceded that this reference to the prior period in custody indicated that his Honour intended that the head sentence and the non-parole period were to be served in addition to the time already spent in custody before 10 November 1999. In contrast, Higgins J, in sentencing Samuel on 8 October 1999, ordered that the sentences commence on 23 July 1999 and made no reference to time spent in custody. However, it is a reasonable inference and is common ground that in "back dating" the sentence, Higgins J intended it to commence on the day Samuel first went into custody on the relevant charges and to continue until and beyond the day of sentence. 28 Thus, according to the submission, there was further discrepancy in the sentence imposed on the two men because the aggregate time to be spent by the appellant in custody before his release on parole will exceed that period similarly spent by Samuel. Counsel for the prosecution on the appeal did not join issue on this question of the effect of time spent in custody prior to sentence. It is a difficult question. Section 451(1) of the Crimes Act provides as follows: "Time held in custody to count 451(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 shall be reckoned as a period of imprisonment already served under the sentence." 29 Section 441A of the Crimes Act is also relevant: "When sentence takes effect 441A. Where a court passes a sentence, the sentence shall, subject to this Part, take effect from the date on which it is passed unless the court otherwise orders." 30 These provisions were considered by a Full Bench of this Court in Keen v The Queen [2000] FCA 940 where it was said at [7] to [9]: "….s 451 appears to be an instruction to the prison authority responsible for executing the sentence of the Court as to how the sentence is to be calculated for the purpose of fixing a date for the release of the prisoner serving the sentence, rather than constraining the sentencing judge or magistrate in the sentence to be imposed. The question arises, however, about how the prison authority is to give effect to s 451. The Court is aware that persons sentenced to imprisonment by an ACT Court serve their sentences in prisons in New South Wales. Apart from the question whether s 451 is binding on the NSW prison authority, there is also the fact that the prison authority in that State will not necessarily be aware of whether the prisoner has previously spent time awaiting sentence in custody in the ACT. Conceivably the Sheriff of the ACT who delivers the prisoner from the ACT court to the prison authority in NSW under warrant could ensure that the warrant gives effect to s 451. However, there may be a further problem. The Sheriff may not be aware of time spent in custody in NSW (or elsewhere outside the ACT) awaiting sentence. In our view, these difficulties are best resolved by the sentencing judge or magistrate making it clear that the sentence pronounced is 'just and appropriate' (see Crimes Act, s 429) after taking into account the reckoning required by s 451. That may be done by the sentencing judge or magistrate taking the course of what is called 'back dating' the sentence, that is to say, by ordering that the sentence is to date from the time the person was taken into custody in relation to the offence in respect of which the person is sentenced. Alternatively, it may be done by the sentencing judge or magistrate making it clear that the time already spent in custody in relation to the offence has been taken into account, or as s 451(1) put it, 'reckoned' as a period of imprisonment already served under the sentence. If that is made clear, the sentence need not be back dated and it will take effect on the day on which it is passed in accordance with s 441A. The latter course, rather than back dating, may be appropriate where pre-sentence custody has not been continuous." 31 Keen v The Queen was decided in circumstances where the appellant neither appeared nor was represented and it may well be that some of the above remarks were obiter dicta. However, from what the Court was told in the present appeal, the remarks in Keen v The Queen reflect sentencing practice in the Territory. The "reckoning" required by s 451 may be carried out by the sentencing judge or magistrate, or by those executing the sentence, that is to say the Sheriff preparing the warrant for the delivery of the prisoner to the jail or the jailer who receives the prisoner for the term of imprisonment. If the judge or magistrate does the reckoning, then there is nothing to be done by the Sheriff or by the jailer in this respect. If, for whatever reason, the judge or magistrate omits to do the reckoning then it is to be done administratively in execution of the sentence. It may not be an ideal practice but it is made necessary by and conforms with s 451. 32 In the light of sentencing practice, it is to be accepted that when a judge or magistrate says that he or she "takes into account" time previously spent in custody, then the Sheriff or jailer is not to deduct that time from the sentence imposed. There is no way in which a sentencing judge or magistrate in the Territory would by the reference to taking into account time already spent in custody intend that that time be deducted from the sentence imposed and about to be served. There is no way in which Gallop J intended that the present appellant be released on parole after two years less 200 days already spent in custody. 33 Conversely, if the sentencing judge or magistrate back-dates a sentence, that back-dating is also to be accepted as a "reckoning" for the purpose of s 451 and no further deduction is required on the part of the Sheriff or jailer. If the sentencing judge or magistrate simply fails or omits to refer to time spent in custody, or to back-date the sentence, then it is the obligation of the Sheriff or the jailer to give effect to s 451. If there is any doubt what the sentencing judge or magistrate intends about the reckoning required by s 451, then it is the duty of counsel to draw that to the attention of the judge or magistrate. 34 This operation of s 451 requires the prosecuting authority to insist on obtaining from those responsible a precise account of the time spent by an offender in custody prior to sentence and of the charges in relation to which that time in custody is spent: cf. R v Holder; R v Johnston [1983] 3 NSWLR 245. 35 The offence of escaping from lawful custody is in a different category from the other offences committed by the appellant as the facts outlined above indicate. 36 Offences of escaping from lawful custody are usually regarded as serious, particularly when a prisoner escapes whilst serving a sentence of imprisonment. This was not the case here. The appellant was only a juvenile at the time and he was at large so briefly that it did not interrupt the continuity of the time calculated for the purpose of s 451. It is difficult to see that the particular sentence of two years imprisonment as an adult is justified: Carrion (1993) 69 A Crim R 230. The actual severity was ameliorated by his Honour, no doubt in accordance with the totality principle, by making the sentence concurrent. It is not clear that there is power to make a sentence for escaping from lawful custody concurrent with other sentences that the offender would have had to serve if he or she had not committed the offence of escaping: Crimes Act, s 159. That was not a point raised by counsel and no view on it need be expressed. In the absence of argument on that issue, there should be no interference with the sentence for escaping from lawful custody. 37 Having regard to the time which will have been spent in custody prior to eligibility for release on parole, which in all amounts to some two years and 200 days, significantly more than that to be spent by Samuel, there is a marked disparity between the sentences. Although the difference of 200 days may be regarded as a small proportion of the total head sentence of six years, which is one year more than that imposed on Samuel, it is, in the light of all the circumstances, but particularly the relative degrees of criminality and time already served, as seen through the eyes of the objective observer, sufficient to give rise to a justified sense of grievance on the part of the appellant. In that sense it was not a just and appropriate sentence as required by the Crimes Act. There is no need to reduce the head sentence (the appellant may benefit from a lengthy time spent under supervision on parole when closer attention may be given to his background) but, in all the circumstances of the case, the sentence should be adjusted so that the appellant is eligible for release on parole at the same time as Samuel. He will, after all, be only 21 years of age. Outcome 38 For the foregoing reasons there is a marked disparity between the sentences imposed upon the appellant and those imposed on Samuel sufficient to justify a sense of grievance on the part of the appellant with regard to the non-parole period. The appeal should be allowed and the sentence set aside so that for the non-parole period of two years there is substituted a non-parole period to expire on 23 July 2001. I certify that the paragraphs numbered two (2) to thirty-eight (38) are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles. Associate: Dated: 27 April 2001 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 98 OF 1999 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: HANK STEPHEN GEIGER APPELLANT AND: THE QUEEN RESPONDENT JUDGE: BEAUMONT ACJ, MILES and GYLES JJ DATE: 27 APRIL 2001 PLACE: CANBERRA REASONS FOR JUDGMENT GYLES J: 39 I have had the advantage of reading the judgment of Miles J in draft. I agree that, having regard to the conclusion reached by his Honour as to the effect of s 451 of the Crimes Act 1900 (ACT) ("the Act") in the case, there is an issue of parity which the orders proposed by his Honour would cure. My difficulty is that I do not agree that s 451 authorises the sentencing practice to which his Honour refers. 40 Section 451 provides as follows: "Time held in custody to count 451(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 shall be reckoned as a period of imprisonment already served under the sentence. (emphasis added) (2) Subsection (1) does not apply – (a) to a period of custody of less than 1 day; (b) to a sentence of imprisonment of less than 1 day; or (c) to a sentence of imprisonment which has been wholly suspended or to the suspended part of a partly suspended sentence of imprisonment. (3) If a person charged with a series of offences committed on different occasions has been in custody continuously since arrest, the period of custody for the purposes of subsection (1) shall be reckoned from the time of his or her arrest even if he or she is not convicted of the offence with respect to which he or she was first arrested or other offences in the series." 41 The relationship between s 451 and s 441A was considered in Keen v R [2000] FCA 940 and it was decided that s 441A must be read subject to s 451. Importantly for present purposes, it was also said that: "On the face of it, s 451 appears to be an instruction to the prison authority responsible for executing the sentence of the Court as to how the sentence is to be calculated for the purpose of fixing a date for the release of the prisoner serving the sentence, rather than constraining the sentencing judge or magistrate in the sentence to be imposed." [7] 42 The Court proceeded to consider how the prison authority is to give effect to s 451, having noticed some practical difficulties involved in that question. The conclusion of the Court was expressed at [9] in the following terms: "In our view, these difficulties are best resolved by the sentencing judge or magistrate making it clear that the sentence pronounced is "just and appropriate" (see Crimes Act, s 429) after taking into account the reckoning required by s 451. That may be done by the sentencing judge or magistrate taking the course of what is called "back dating" the sentence, that is to say, by ordering that the sentence is to date from the time the person was taken into custody in relation to the offence in respect of which the person is sentenced. Alternatively, it may be done by the sentencing judge or magistrate making it clear that the time already spent in custody in relation to the offence has been taken into account, or as s 451(1) put it, "reckoned" as a period of imprisonment already served under the sentence. If that is made clear, the sentence need not be back dated and it will take effect on the day on which it is passed in accordance with s 441A. The latter course, rather than back dating, may be appropriate where pre-sentence custody has not been continuous." 43 The course which was followed by the sentencing judge in the present case requires closer attention to be given to the second alternative outlined in Keen than was necessary in that case. The sentence here was not back-dated in the sense explained in Keen. Although the cryptic remarks of his Honour make it difficult to be confident as to his intention, it would be sensible to assume that he was giving effect to the alternative left open in Keen. I agree with Miles J that the sentencing judge expected that the full sentence would be served regardless of time spent in custody prior to that sentence commencing. However, the obiter dicta in Keen as to that alternative being open seems to me to be inconsistent with the construction of s 451 which had been placed upon it by the Court in that case in the passage from [7] of the judgment to which I have referred, a view of the section which, with respect, seems to me to be plainly correct. The section does not appear to me to give any discretion to a court as to whether it should be applied. It applies by or of its own force. In my respectful opinion, the words in s 451(1) "shall be reckoned as a period of imprisonment already served under the sentence" refer to the sentence which is actually pronounced and to no other. 44 It follows, in my opinion, that the result intended by his Honour in the present case is not permissible. A proper sentence should be fixed and s 451 then operates according to its terms. I can find no warrant in the section for the sentencing judge fixing a sentence net of time spent in custody. In my view, the express statutory provision for the topic in s 451 renders inapplicable the approach which would be appropriate if it were not for that provision. It is agreed by the parties that the appellant served 200 days in custody prior to sentence. The result is that it is possible that the appellant may not, in fact, serve the full sentence which was imposed upon him. I cannot see that this Court has any particular role in relation to that issue. 45 As Keen was a unanimous and recent decision, I have looked at the antecedents of the section and authority in other jurisdictions to see if more light can be cast upon the issue. Section 451 was introduced, together with a number of other sections in relation to sentencing, by the Crimes (Amendment) Bill (No 2) 1993 (ACT). The Explanatory Memorandum to the Bill states: "Proposed section 451 ensures that the time which a person has been held in custody before trial or sentence must be counted as time served, in recognition of the fact that some people are deprived of their liberty for extensive periods whilst awaiting the outcome of proceedings against them." 46 The Second Reading speech makes clear that the sentencing amendments were the result of the Australian Law Reform Commission Report on Sentencing (Report No 44, 1988, AGPS, Canberra), which has been reflected in various respects and in various forms by Commonwealth legislation and legislation of most, if not all, States. 47 Report No 44 included the following statement: "Finally, while the commencement of the period of the custodial order, and of the non-parole period, should be the time when sentence is pronounced, for the reasons advanced in ALRC 43, if the offender has already been in custody in relation to the offence, the time spent in custody should be counted as time served under the prison term. This will avoid undue harshness." 48 This reference is a reference back to the Australian Law Reform Commission's interim report on the Commonwealth Prisoners Act (Report No 43, 1988, AGPS, Canberra) states: "33. Commencement of the sentence and minimum term. Under s 68 of the Judiciary Act 1903 (Cth), the State and Territory law as to the commencement of sentence has effect for federal offenders. There is some doubt, however, whether all State and Territory law relating to the commencement date of the minimum term applies to federal offenders: in particular, provisions allowing the court to order that the minimum term begin earlier or later than the sentence. Under the laws of some States and Territories, an offender may be given credit for the time spent in custody on remand. In Victoria, for example, the time spent in custody is deemed to be time already served under the sentence and is either deducted from the sentence or taken into account when imposing the sentence. In New South Wales, if a person has been detained on remand, the non-parole period is deemed to have commenced from the time specified by the court as the time from which the offender has been in custody by reason of the offence. In jurisdictions where there is no statutory requirement for credit to be given, pre-sentence detention is often taken into account informally in determining the sentence. … 36. Credit for pre-sentence detention. The Commission is strongly of the view that any time spent in prison in relation to an offence for which the offender is ultimately sentenced to imprisonment should be deemed to be part of the service of that imprisonment. Under present law, whether or not this happens depends upon the provisions of the law of the State or Territory in which the offender is sentenced. The Commission considered making no specific recommendation on the matter of credit for pre-sentence detention, confining itself to recommending only that State or Territory law by which the commencement date of a sentence and minimum term is ascertained should apply to federal offenders. This would have been consistent with the policy underlying this report and would have clarified the uncertainty surrounding the applicability to federal offenders of State and Territory law relating to the commencement of the minimum term. However, it would have had the effect, in some jurisdictions, that no credit would be given. The Commission recommends that the commencement date of the sentence and of the minimum term should be the date on which the sentence was imposed, except where the offender has been in custody in relation to the offence. In that case the offender should be deemed to have been serving the sentence and the minimum term during the period of custody. In making this recommendation, the Commission acknowledges that it may give rise to administrative difficulties in cases where joint offenders are sentenced to concurrent terms of the same length for both a federal and a State or Territory offence. If pre-sentence detention is credited to the federal, and not the State or Territory sentence, the offender will be entitled to be released on parole for the federal offence before he or she is eligible for parole for the State or Territory offence." 49 The draft legislation proposed by the Commission included the following: "4(1) A sentence of imprisonment imposed on, and a minimum term of imprisonment specified under section 5 for, a federal offender shall be taken to have commenced on the day on which the sentence was imposed. (2) Where, before the sentence was imposed, the offender was in custody in relation to the offence concerned, the offender shall be taken to have been serving the sentence of imprisonment, and the minimum term of imprisonment, during any period during which the offender was in that custody." 50 The Explanatory Memorandum proposed by the Commission was couched in the following terms: "Proposed section 4 specifies the time when sentence of imprisonment, and non-parole periods, are to be taken to have commenced. This will provide a common point of commencement for the calculation of the date of release on parole. Proposed section 4(1) provides the general rule that these periods commence on the day on which sentence is imposed. In the case of offenders who have previously been in custody for the offence (for example, on remand), proposed section 4(2) requires that time spent in custody be taken into account in calculating the time to be served." 51 The most useful interstate authority is R v Wishart & Jenkins [1994] 2 Qd R 421. The section under consideration in that case, being s 161 of the Penalties & Sentences Act 1992 (Qld), differed significantly from the form of s 451 and was in the following terms (so far as relevant): "Time held in presentence custody to be deducted 161(1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders. … (3) If an offender was held in custody in circumstances to which subsection (1) applies, the sentencing court must – (a) state the dates between which the offender was held in presentence custody; and (b) calculate the time that the offender was held in presentence custody; and (c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence; and (d) cause to be noted in the records of the court – (i) the fact that the declaration was made and its details; and (ii) unless the court otherwise orders under subsection (1), the fact that the declared time was taken into account by it in imposing sentence; and (e) cause the Commission to be advised of the declaration and its details. McCrossan CJ and Pincus JA said (at 425-6): "Section 161(1) does not contemplate that the sentence will be expressly backdated, but has the effect that, in the circumstances to which it applies, time spent in custody is deemed to be time served under the sentence." Thomas J (at 429) said: "Section 161 gives the court the option to choose between two sentencing methods. One of these is the prospective sentence, similar to the system previously enforced. The other results in a notional as distinct from actual backdating. Unless the court "otherwise orders", the period of pre-sentence custody is "taken" to be imprisonment already served under it. This requires all persons (including the corrective service authorities) to recognise the backdating effect. In short, under s 161, a backdating effect is automatic unless otherwise ordered. The court will only "otherwise order" under s 161(1) when, having done its own calculations, it imposes a reduced sentence on account of the pre-sentence custody served." It will be observed that it was only the presence of the words "unless the sentencing court otherwise orders" that authorised the course taken by the sentencing judge here. 52 By way of completeness, I should note that in Short v R (unreported, Federal Court of Australia, 13 May 1994) s 451 was referred to in relation to a sentence which had been back-dated to the commencement of pre-sentence custody and, in Antonovic v R (unreported, Federal Court of Australia, 20 June 1995) s 451 is referred to in a way which does not seem to be more than neutral for present purposes. 53 Consideration of this additional material confirms my opinion as to the proper construction of s 451 with the result that the current sentencing practice referred to by Miles J and applied in this case is contrary to the statute. This is not intended to express any view as to whether this is the best solution to a difficult problem. It happens to be the solution chosen by the legislature following consideration by the Australian Law Reform Commission. Any change should be by the legislature. 54 It does not follow that this view of the effect of s 451 should have any effect upon the result of the appeal, the purpose of which is to correct error below. There is nothing to indicate that either side suggested to the judge that the sentencing practice referred to in Keen should not be followed, it was not a ground of appeal and only emerged during oral argument on the appeal. There was no exploration, for example, as to how s 451 affects a non-parole period. In those circumstances, in my opinion, it is not appropriate to act on a view contrary to the sentencing practice applied in this case. I do not think that we should take into account the possibility that, as a result of other proceedings, the appellant may, in fact, be released earlier than anticipated. For my part, however, the practice should be re-examined. 55 I agree with the orders proposed by Miles J. I certify that the paragraphs numbered thirty-nine (39) to fifty-five (55) are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 27 April 2001 Counsel for the Appellant: Mr J Harris Solicitor for the Appellant: Legal Aid Office, ACT Counsel for the Respondent: Mr K Archer Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 14 February 2001 Date of Judgment: 27 April 2001