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Commencement of Federal Sentences

Commencement of Federal Sentences

The content on this page was last reviewed on 24 April 2023.

Recent Case Alerts:

Dib v The King [2023] NSWCCA 243 — New South Wales law, operating via of Crimes Act s 16E, does not require or permit pre-sentence custody referable to an offence for which offender acquitted to be accounted for on commencement for a separate Commonwealth offence. No sentencing principle or practice supporting such an allowance was recognised.

1. Overview

The Crimes Act 1914 (Cth) does not provide a uniform scheme for the commencement of sentences for federal offenders. Instead, s 16E(1) picks up and applying the relevant law of the State or Territory in which the federal offender is sentenced. This approach 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’.1

The approaches taken to commencement in each state and territory are different and are governed by the relevant sentencing statutes of each jurisdiction. See further: 2. State and Territory Laws.

Sections 16E(2)–(3) make provision for State laws which take into account pre-sentence custody to apply when imposing a federal sentence. See further 3. Pre-Sentence Custody.

Section 19 provides that courts directing that sentences be served cumulatively or concurrently do so through the setting of commencement dates. See further: 4. Cumulative and Concurrent Sentences.

2. State and Territory Laws

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). Throughout the states and territories, there is wide variation in the provisions governing the commencement of sentences and non-parole periods.

In most states and territories sentences commence on the day they are imposed, except where the offender is not in custody at that time. However, however there are often exceptions to this rule. See 3. Pre-Sentence Custody and 4. Cumulative and Concurrent Sentences.

The commencement of sentences in each state and territory is governed by the following legislative schemes:

In most jurisdictions, the relevant statute provides that, by default, sentences of imprisonment commence on the day they are imposed, except where the offender is not then in custody, in which case the sentence commences when the offender becomes subject to custody:

In Queensland, sentences imposed for summary offences commence at the beginning of the offender’s custody for that offence: Penalties and Sentences Act 1992 (Qld) s 154(1)(b).

In Western Australia, the Sentencing Act 1995 (WA) does not provide a default day of commencement of sentences: see pt 13 div 2.

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3. Pre-sentence custody

Sections 16E(2)–(3) of the Crimes Act 1914 (Cth) make specific provision for the application of state and territory laws which enable courts to take pre-sentence custody into account.

Section 16E(2) picks up state and territory laws which have the effect of either:

  • reducing the sentence by the period spent in custody for the offence: s 16E(2)(a); or
  • commencing the sentence on the day on which the person was taken into custody for the offence: s 16E(2)(b).

As s 16E only picks up the law in the State and Territory where the federal offender is being sentenced, there is no statutory basis for adopting one of these two methods if that method is not otherwise available in that jurisdiction.

Where pre-sentence custody cannot, under the law of the relevant state or territory, be taken into account under sub-ss (1) or (2), s 16E(3) applies:

Section 16E(3) 

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.

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

Section 16E(3) may also be relied on in cases where the offender has served a period of pre-sentence custody which is ‘custody in relation to the offence’ for the purposes of s 16E(3) but which is not relevant custody under state or territory law.2

3.1 Relevant Periods of Custody

3.1.1 Definition of Custody

The term ‘custody’, used in ss 16E(2) and (3), is not defined in Part IB of the Crimes Act 1914 (Cth).

Section 16E(3) states that the period spent in custody ‘in relation to the offence concerned’ must be taken into account. Section 16E(2), in applying state and territory provisions, uses the language of ‘been in custody for the offence’.

In Alimudin v McCarthy [2008] NTCA 7, the Northern Territory Court of Appeal considered that the offender’s period of custody began at the time of their arrest, and that an arrest occurs when ‘it is made plain by what is said or done by an officer that a suspect is no longer a free person’: Alimudin v McCarthy [2008] NTCA 7, [21].

Custody is ‘for the offence’ or is ‘in relation to the offence’ for the purposes of ss 16E(2)–(3) where the offending conduct is the sole reason for the detention: Alimudin v McCarthy [2008] NTCA 7, [30].

The Court of Appeal in Alimudin construed the words ‘custody on account of his or her arrest for an offence’ in s 63(5) of the Sentencing Act 1995 (NT) in light of s 16E(2) of the Crimes Act 1914, stating at [28]:

There need not be an exact identity between the offence initially identified and the offence of which the person was subsequently convicted and for which sentence is to be passed. It is sufficient that there is conformity between the conduct that led to the arrest and the conduct for which the person was ultimately sentenced to imprisonment. There does not need to be a nexus with a specific offence but rather a nexus between the conduct giving rise to the arrest and detention and the offence or offences for which the person is to be sentenced. [Emphasis added]

The effect of this is that courts may take into account custody for charges entirely separate to those for which the offender is ultimately sentenced, provided that the offending conduct is sufficiently similar to that which lead to the custody: Alimudin at [27].

In Rogers v The Queen [2018] NSWCCA 47, the Court of Appeal upheld the sentencing judge’s decision to backdate a sentence for a Commonwealth offence under s 16E notwithstanding that the pre-sentence custody taken into account was in relation to a state offence for which the offender was also sentenced. Johnson J (Hoeben CJ at CL and N Adams J agreeing) stated at [70], [72]:

Neither ss. 47 [of the Crimes (Sentencing Procedure) Act 1999 (NSW)] nor 16E mandate how presentence custody is to be taken into account.

Ordinarily, a sentencing court would select the commencement date for an offence in relation to which the offender was in custody at that time. However, there is no inflexible rule in this respect.

3.1.2 Administrative Detention

Time spent in administrative detention may be taken into account under s 16E if there is a sufficient nexus between the conduct giving rise to the arrest and the conduct giving rise to the offence for which the offender is to be sentenced: Alimudin v McCarthy [2008] NTCA 7, [28]. Federal offenders may be subject to various other forms of detention including fisheries detention,3 preventative detention,4 immigration detention,5 and home detention conditions under control orders.6

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.

In Alimudin v McCarthy [2008] NTCA 7, the appellant had been initially detained under the Fisheries Management Act 1991 (Cth) before being transferred to immigration detention under the Migration Act 1958 (Cth). The Northern Territory Court of Appeal applied s 16E to backdate the sentence to the date on which the offender was initially apprehended on his boat by Fisheries Management Authorities, not only the period of immigration detention.7

Riley J (Martin CJ and Thomas J agreeing) stated at [24]–[25]:

The underlying thrust of s 16E of the Crimes Act is to ensure that periods spent in custody by a person awaiting sentence are to be taken into account when the sentence is imposed…

The intended effect of s 63(5) of the Sentencing Act and other like provisions is to ensure that fairness applies in the sentencing process… Provisions such as s 63(5) permit such unfairness to be avoided. They should be accorded the widest available application consistent with the wording of the provision.

See also R v Zainudun [2005] NTSC 14 where Mildren J commented at [42]:

There can be no doubt that the defendant was in custody when he was held in detention. Now whether the detention was under the Fisheries Management Act or the Immigration Act, he was not free to go and he would have committed an offence if he had escaped.

3.1.3 Immigration Detention

Where an offender has been held in immigration detention other than for people smuggling offences, this time may, in some circumstances, be taken into account under s 16E. If the offender is detained for people smuggling offences, this period may be taken into account under s 236C of the Migration Act 1958 (Cth). Consideration Under s 16E

Whether a period of immigration detention can be considered to relate to the offence will depend on the factual context. In R v Dadash [2012] NSWSC 1511, concerning a state offence, the Court backdated a sentence to the date upon which the offender was returned to immigration detention after being granted bail for the offence. This was because the offender had applied to be returned to his home country but his application had been denied pending the disposition of the criminal proceedings against him. Hulme J found at [28] that the detention was ‘referable to the fact that he was charged with offences’ and so could be taken into account.

In Alimudin v McCarthy [2008] NTCA 7, the offender was sentenced for use of a foreign boat for commercial fishing and for possessing a foreign boat equipped for fishing contrary to the Fisheries Management Act 1991 (Cth). The offender’s time in immigration detention prior to being charged for the fisheries offences could be considered under s 16E because the only reason for that detention was the conduct constituting the offence: Alimudin at [30] (Riley J, Martin CJ and Thomas J agreeing). People Smuggling Offences

Where an offender is sentenced for an offence against div 12, sub-div A of the Migration Act 1958 (Cth), which relates to people smuggling offences, any time spent in immigration detention must be taken into account when imposing a sentence or non-parole period: s 236C Migration Act 1958 (Cth).

Section 236C does not exclude the operation of s 16E of the Crimes Act 1914 (Cth); it applies as a mandatory consideration irrespective of the state or territory in which the offender is sentenced: s 236C(3).

Section 236C

Time in immigration detention counts for sentencing etc.

(1)  This section applies to the court when imposing a sentence on, or setting a non-parole period for, a person convicted of an offence against this Subdivision.

(2)  The court must take into account any period that the person has spent in immigration detention during the period:

  • (a)  starting when the offence was committed; and
  • (b)  ending when the person is sentenced for the offence.

Note:  This enables the court to take into account time spent while not in punitive detention.

(3)  Neither section 236B nor this section prevents section 16E of the Crimes Act 1914 from applying to the imposition of the sentence or the setting of the non-parole period.

Note:  Section 16E of the Crimes Act 1914 applies State law to aspects of sentencing for federal offences, subject to specified exceptions.

The Explanatory Memorandum provides that s 236C was implemented due to doubts that s 16E applied to periods in immigration detention, and to ensure that time spent in immigration detention would be taken into account for people smuggling offences regardless of the state or territory in which the offender was sentenced.8

3.1.4 Non-custodial Sentence

Section 16E of the Crimes Act 1914 (Cth) arises under Division 3 of the Act which deals with ‘Sentences of Imprisonment’.9

In Yusup v The Queen [2005] NTCCA 19, Riley J (Mildren and Southwood JJ agreeing) relied on s 16E(3) in finding that the sentencing judge should have taken into account the time the offender had spent in immigration detention prior to being sentenced for two offences punishable only by a fine (at [23]).

Further, pre-sentence custody may always be taken into account 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, provided there is a sufficient connection between the period of detention and the offence: Yusup v The Queen [2005] NTCCA 19, [17]–[20], Darter v Diden [2006] SASC 152, [24] R v Zainudin [2005] NTSC 14, [39].

3.2 State and Territory Approaches to Pre-sentence Custody

The methods by which a court may take pre-sentence custody into account under s 16E(2)–(3) vary throughout the states and territories. The methods include: backdating commencement dates, reducing the length of the sentence, and declaring time as already served.

3.2.1 Backdating a Sentence

Backdating the sentence involves retroactively fixing a commencement date to be earlier than the date on which the sentence was imposed. The use of state and territory laws to backdate federal sentences is specifically permitted under s 16E(2)(b) of the Crimes Act 1914. This approach is not available in all states and territories.

An order to backdate the commencement of an offence may be made in:

There is no basis at common law for backdating a sentence in the absence of statutory authorisation: R v Judge Frederico; Ex parte Attorney-General [1971] VR 425, 427, 431 (Little and Gowans JJ, Winneke CJ agreeing).10

In Ribbon v The Queen [2022] SASCA 15, the Court considered the comparative merits of backdating at [25]–[26]:

There are advantages to a defendant in backdating the sentence and it has been considered the preferable course compared with reducing the sentence for time served. As Blue J said in R v Deng [[2015] SASCFC 176]:

  • Giving credit by backdating rather than reduction has two principal advantages.
    • 1.  It promotes accuracy and transparency of the record in that the substantive and nominal length of the sentence and non-parole period are the same. This in turn avoid false perceptions as to the true extent of the sentence and false appearances of disparity between nominal sentences when the substantive sentences are the same and vice versa.
    • 2.  It promotes the transparency of the sentencing remarks, making obvious both the fact and extent of credit being given and avoids subsequent arguments.

However, it is not an error for a court to account for time served by reducing a sentence rather than backdating a sentence. When the legislation specifically provides for an approach it cannot be said to be an error for a court to adopt that approach.

In The Queen v Rowe [2015] SASCFC 124, Blue J stated at [134]:

At least in cases in which the period of custody has been continuous and even in some cases in which it has been discontinuous, [backdating] is preferable because it gives a true indication of the sentence imposed and avoids the risk that periods of custody will be overlooked or misunderstood. [Emphasis added]

Similar preferences for backdating have been expressed in relation to the sentencing schemes in the ACT (Hawkins v Hawkins [2009] ACTSC 148, [78]–[79]) and NSW (Rodgers v The Queen [2018] NSWCCA 47, [76]).

3.2.2 Reducing the Term of a Sentence

An alternative approach to backdating a sentence is to reduce the term of the total effective sentence to be served by the offender. The use of state and territory laws to reduce the sentences of federal offenders is specifically permitted under s 16E(2)(a) of the Crimes Act 1914. This option is permitted by legislation in South Australia (Sentencing Act 2017 (SA) s 44(2)(a)) and Western Australia (Sentencing Act 1995 (WA) s 87(c)). In jurisdictions where sentencing legislation does not provide for the reduction of sentences, it may nonetheless be available at common law: see, eg, Sultana v the Queen [2007] NSWCCA 107, [11] (Hidden J, McClellan CJ at CL and Rothman J agreeing).

The reduction approach has been criticised because its use may result in the 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 prospective sentence imposed may appear unusually short.

However, in states where the option to reduce a sentence is provided by statute, it cannot be considered an error to do so: Ribbon v The Queen [2022] SASCA 15, [26].

3.2.3 Making a Declaration of Time Already Served

Some jurisdictions permit courts to take time spent in pre-sentence custody into account by making a declaration of time already served. This approach is available in Queensland under s 159A of the Penalties and Sentences Act 1992 (Qld) and in Victoria under s 18(4) of the Sentencing Act 1991 (Vic).

Under this approach, a court calculates the time that has been spent in pre-sentence custody in relation to the offence and then declares the period to have already been served under the sentence, thereby bringing forward the end of the term of the sentence or non-parole period. Because the sentence imposed appears to maintain its full length, this method is not subject to the same criticism as reducing a sentence: see 3.2.2 Reducing the term of the sentence.

Although s 16E(2) of the Crimes Act 1914 (Cth) does not expressly provide for declarations of time already served, it has been frequently utilised when sentencing federal offenders in Queensland and Victorian courts: see R v Hoong (1994) 75 A Crim R 343 applied in R v Salles [2003] QCA 127; Ferreira v The Queen [2002] QCA 12R v Perkins [2000] VSCA 132, [14]; R v Nunez [2002] VSCA 15, [4]; R v Mokbel [2006] VSC 119, [114].

In R v Hargraves and Stoten [2010] QSC 188, Fryberg J remarked at [64] that:

It requires a substantial straining of language to bring such a regime within the terms of s 16E(1)(a) and an almost impossible straining of language to bring it within the terms of s 16E(1)(b). A stronger argument is that s 159A is caught up by s 68(1) of the Judiciary Act 1903 (Cth); but that argument must meet the counter argument that s 16E of the Crimes Act, enacted in 1990, covers the field as regards pre-sentence custody.

However, this approach has not been adopted in subsequent decisions, and courts in both jurisdictions have continued to rely on s 16E(2) to give effect to declarations of time served: see, eg, Edwards v The Queen [2013] VSCA 188, [37] (Osborn JA, Nettle and Coghlan JJA agreeing); R v Ocampo Alvarez [2018] QCA 162, [54] (Holmes CJ, Gotterson and McMurdo JJA agreeing).

3.2.4 Discretion to Take Pre-sentence Custody into Account

There is variation throughout the states and territories on whether a court is obliged to take pre-sentence custody into account.

It is mandatory to take pre-sentence custody into account when sentencing offenders in:

Courts have discretion to take into account pre-sentence custody when sentencing offenders in:

Where a sentencing court exercises its discretion to decline to credit pre-sentence custody, it should provide valid reasons for the exercise of its discretion.11

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]

See further: Azizi v Clarson [2002] WASCA 123 [15]; Abdullah v Sleiman [2011] WASC 262 [5].

3.2.5 Other Methods to Take Pre-Sentence Custody into Account

In addition to taking pre-sentence custody into account under s 16E of the Crimes Act 1914 (Cth), s 16E of the Crimes Act 1914 (Cth), it may be taken into account as a subjective circumstance of the offender under s 16A(2)(m). In R v Hudson [2016] SASCFC 60, Nicholson J (Parker and Lovell JJ agreeing) said at [16]–[17]:

Section 16A(2) of the Crimes Act 1914 (Cth) is to the effect that, when determining sentence for a federal offence, ‘the court must take into account such of the following matters as are relevant and known to the court’. Thereafter, in subparagraphs (a) to (p), various matters are listed. The specified matters represent an array of considerations similar to those set out in section 10 of the Criminal Law (Sentencing) Act 1988 [(SA)]. Like section 10, there is no express mention of time spent on home detention bail. However, section 16A(2)(m) does identify as a matter the court must take into account:

  • the character, antecedents, age, means and physical or mental condition of the person.

The consideration in (m) embraces an offender’s personal circumstances. In particular, the notion of ‘antecedents’ is broad enough to pick up any period spent on home detention bail.

Furthermore, there is no express prohibition in the Crimes Act 1914 to the taking of time spent on home detention bail into account, just as there is no express prohibition in the Criminal Law (Sentencing) Act 1988. The opening words of section 16A(2) are important in this respect: ‘In addition to any other matters, the court must take into account…’. These opening words leave room for the operation of common law rules relating to sentencing that are not inconsistent with other provisions of the Crimes Act 1914. In addition, section 16A(2A) lists specific matters that are not to be taken into account further reinforcing the conclusion that section 16A(2) is not exhaustive of the matters that may be taken into account. [Emphasis added]

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4. Commencement of Cumulative and Concurrent Sentences

A court is required to direct, by order, when a federal sentence commences when dealing with cumulative, partly cumulative or concurrent sentencing, regardless of the position under the relevant state or territory legislation: s 19.

Specifying when a federal sentence is to commence will be required when the person is:

  • convicted of a federal offence, and is at the time serving or subject to one or more federal, state or territory sentences: s 19(1); or
  • convicted of two or more federal offences at the same sitting, and sentenced to imprisonment for more than one of them: s 19(2); or
  • convicted of a federal and state or territory offence at the same sitting, and sentenced to imprisonment for more than one of them: s 19(3).

Therefore, while s 16E(1) provides that the State or Territory law on commencement governs the federal sentence, s 19 will apply in relevant sentencing situations.

Gillard J of the Supreme Court of Victoria observed in R v Mokbel [2006] VSC 119 at [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.

In R v Knight [2013] QCA 277 the sentencing judge had directed the federal sentences to commence ‘upon the expiration of his incarceration for the current term of imprisonment being served’. In the Supreme Court of Queensland, Atkinson J (Muir and Fraser JJA agreeing) stated at [23]:

It is open to doubt that a sentencing judge may direct a sentence to commence on a date that is uncertain or that is dependent upon a decision of a State administrative body.

However, the Court did not make a determinative finding on the issue, as there was no provision under the relevant state parole legislation for a prisoner to be granted parole in order to commence a new sentence of imprisonment: R v Knight [2013] QCA 277, [25].

See further: Cumulative and Concurrent Sentences.

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  1. 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].[]
  2. For example, time spent in immigration detention following arrest could not be taken into account under the Sentencing Act 1991 (Vic) in Sahhitanandan v The Queen [2019] VSCA 115, [31]; however, custody of this kind did fall within the meaning of ‘custody in relation to the offence’ for the purposes of s 16E(3) in R v Mohamed [2016] VSC 581, [32].[]
  3. Fisheries Management Act 1991 (Cth), sch 1A.[]
  4. Criminal Code Act 1995(Cth) pt 5.3 div 105.[]
  5. Migration Act 1958 (Cth) divs 6, 7, 13.[]
  6. Criminal Code Act 1995 (Cth) pt 5.3 div 104.[]
  7. In Haruma v McCarthy [2008] NTSC 18,the sentencing judge backdated only to the date on which the FMA decided to proceed against the appellant, which was 19 days after he was apprehended in the Australian Fishing Zone.[]
  8. Explanatory Memorandum, House of Representatives, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection And Other Measures) Bill 2013 (Cth), 61–62.[]
  9. The heading of a Division is part of the Act: Acts Interpretation Act 1901 (Cth) s 13.[]
  10. See also Hawkins v Hawkins [2009] ACTSC 148, [61] (Refshauge J).[]
  11. For the discussion of this issue in the context of Victorian sentencing law see Arie Freiberg, Sentencing: State and Federal Law in Victoria (3rd ed, 2014) 819.[]
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