FEDERAL COURT OF AUSTRALIA

Keen v The Queen [2000] FCA 940

CRIMINAL LAW – appeal – application for extension of time in which to appeal against severity of sentences – date of commencement of sentence – delay due to misunderstanding as to commencement of sentence and incarceration – extension granted.

CRIMINAL LAW – appeal – effect of s 451(1) and 441A of Crimes Act 1900 (ACT) – effect of date of commencement of sentence – need for back-dating of sentence or acknowledgement that time spent in custody in relation to the offence has been taken into account.

Crimes Act 1900 (ACT), s 429, s 441A, s 451(1) 

 PHILLIP JOHN KEEN v THE QUEEN

A 81 OF 1999

MILES, MADGWICK and WEINBERG JJ

CANBERRA

12 JULY 2000

THE COURT ORDERS THAT:

1.             The application for extension of time be granted.

2.             The hearing of the application be treated as the hearing of the appeal.

3.             The appeal be allowed.

4.             The judgment of the Supreme Court be set aside.

5.    The sentence in the Magistrates Court be varied to the extent that it commence on 27 January 1999.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     On 11 May 2000 the Court granted an extension of time in which to appeal against a judgment of the Supreme Court of the Australian Capital Territory on 6 September 1999 dismissing an appeal against the severity of sentences imposed on the appellant by the Australian Capital Territory Magistrates Court on 14 May 1999.  The Court also allowed the appeal to the extent that the sentence imposed on a charge of unlawfully taking and using a motor vehicle was ordered to commence on 27 January 1999.

2                     At the time of the hearing of the application and the appeal, the applicant was serving the sentences imposed upon him.  He had previously informed the District Registrar indicating that he did not wish to be present for the hearing of the application and that he was content for the Court to consider the application on the material before it.

3                     The first application for an extension of time is dated 11 October 1999.  The second application for an extension of time is dated 20 October 1999 and is supported by affidavits sworn 20 October and 3 December 1999.  The major reason given for the applicant’s failure to lodge an appeal within time was that he was in prison at the Goulburn Correctional Centre following the sentences and that, despite efforts on his part, the District Registry did not accept his notice of application until some time in December 1999.  The Court indicated to counsel for the respondent that if there were any substance in the grounds of appeal upon which the applicant wished to rely, then it would be appropriate to hear the application as if it were the appeal.  Counsel for the respondent did not oppose that course.

4                     The point that the applicant wished to raise and on which he would rely, is that in both the Magistrates Court and the Supreme Court there was a failure to consider the effect of s 451(1) of the Crimes Act 1900 (ACT) which 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.”

5                     In fact neither in the Magistrates Court nor in the Supreme Court was there any reference to the provisions of s 451(1) nor to the other relevant section of the Crimes Act, namely s 441A, which provides as follows:

“Time from which sentence to take 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.”

6                     The appellant was informed in a letter written to him by his then solicitor at the Australian Legal Aid Office dated 17 May 1999 that the time served in custody between arrest and sentence would count as part of the sentence.  It appears that when the appeal was dismissed by the Supreme Court on 6 September 1999 the appellant was then given to understand that time previously served would not count.  He wanted that situation rectified by this Court.

7                     It is not easy to reconcile the provisions of s 441A and s 451.  However, being part of a penal statute they should be construed in favour of freedom and not in favour of incarceration.  Such a construction would give full effect to s 451 and is consistent with the words “subject to this Part” which were inserted into s 441A by Act No. 73 of 1993, as was s 451 itself.  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.

8                     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.

9                     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.

10                  In applying these principles to the present case, the facts are that the applicant was granted bail on the day he was arrested on each of the charges in respect of which he was later sentenced.  We think that those days may be disregarded for the purposes of s 451.  He was in continuous custody in relation to those charges when bail was revoked in the ACT Magistrates Court on 27 January 1999.  We were told by counsel for the respondent that on the same day parole was revoked in relation to a sentence previously imposed in New South Wales and that that sentence expired whilst he was in custody on 15 March 1999.  However the material before us on that aspect (and there was none before the Supreme Court or the Magistrates Court) is not sufficient to displace the inference that, following the revocation of bail, the appellant remained in custody in relation to the proceedings for the offence in respect of which he was sentenced under s 451.

11                  Thus the time in custody from 27 January to 14 May 1999 should have been reckoned as time served under the sentence by either ordering that the sentence commence on 27 January 1999, or by a specific and express acknowledgement by the sentencing magistrate, that that time had been taken into account with the intention that the head sentence, which on the face of it was a total of 3 years to date from 14 May 1999, was effectively a sentence of three years and 107 days.  Had that been done, it would have followed that the non-parole period would also have been back dated or acknowledged to be an effective two years and 107 days.  Neither in the Magistrates Court nor in the Supreme Court was any consideration of the effect of the time spent by the appellant in custody put before sentence.  It appears that the matter was simply overlooked.

12                  The sentencing remarks of the Magistrate and the judgment on appeal in the Supreme Court both reveal an intention to impose an effective term of imprisonment totalling three years with a non-parole period of two years, without regard to the time already served.  Noting the absence of remarks or anything said to indicate that the term still to be served and the non-parole period were intended to be, in effect, in addition to the period already served, it follows, in our view, that the sentence should have been ordered to commence at the time the applicant was taken into custody for the offences for which he was sentenced.

13                  For those reasons, the application for extension of time was granted, the hearing of the application was treated as the hearing of the appeal, the appeal was allowed, the judgment of the Supreme Court was set aside and the sentence in the Magistrates Court was varied to the extent that it was ordered to commence on 27 January 1999.

Associate:

Dated:  12 July 2000