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Aliano v Ashwood [2018] TASSC 44

appeal against sentence — offender convicted of possession of counterfeit money, making counterfeit money and possession of material used for counterfeiting offences contrary to ss 9(1)(a), 6 and 11(2)(b) of Crimes Currency Act 1981 (Cth) respectively — state offences — original sentence imposed for state offenses 6 months’ imprisonment backdated to 6 June — original sentence imposed for Commonwealth offences 20 months’ imprisonment commencing 6 December with offender to be released on recognizance after 10 months — cumulative and concurrent sentences — s 19 — sentencing judge correctly imposed separate sentences in respect of State and federal offences — in those circumstances s 19(3) required sentencing judge to “direct when each federal sentence commences”, but so that it did not commence later than end of State sentences — purpose of provisions in s 19 concerning commencement of federal sentence and interaction with a State sentence is to ensure that there is no hiatus between end of custodial portion of State sentence and commencement of custodial portion of federal sentence — offender argues that by fixing commencement of federal sentence as specific date, rather than specifying that federal sentence was cumulative upon State sentence, such a hiatus has arisen, or offender has been deprived of right to be considered for remission of part of imposed State sentence — provision for remission arises under s 86 of Corrections Act 1997 (Tas) — as commencement date for federal sentence fixed, practical capacity of Director to grant remission effectively removed — even if grant of remission made, fixed commencement date of federal sentence will result in hiatus between sentences — effect of remission would be that offender released at conclusion of remitted State sentence, but would have to return to custody to serve federal sentence — although practical difficulties and potential unfairness arise from setting of fixed commencement date — West Australian Court of Appeal in Mercanti held that under s 19(1) it is necessary to set specific date and “an order that a sentence be served cumulatively does not achieve this” — as this interpretation has been determined by an intermediate appellate court in another Australian jurisdiction it should not be departed from unless court is convinced that interpretation is plainly wrong (Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485) — interpretation not plainly wrong — it follows that sentencing judge had no alternative than to fix specific date for commencement of federal sentence — not necessary for this date to be end of full period of state sentence but in circumstances of case, failure to backdate federal sentence does not constitute error — instead matter entirely within sentencing judge’s discretion — appeal dismissed
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