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Welcome to the COMMONWEALTH SENTENCING DATABASE

Commencement of Federal Sentences

The content on this page was last reviewed on 22 July 2014.

Related links:
Cumulative and Concurrent Sentences
Totality Principle
Non-Parole Periods

Recent cases alert
R v Hudson [2016] SASCFC 60 — sentencing judge erred by not taking into account time spent in custody and home detention bail when determining head sentence and recognizance release period, home detention bail may be taken into account as an ‘antecedent’ under s 16A(2)(m).
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

There is no federal rule of commencement. The law on the commencement of federal sentences of imprisonment and non-parole periods operates by picking up and applying the relevant law of the State or Territory in which the federal offender is sentenced: s 16E of the Crimes Act 1914 (Cth). 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

2. Commencement

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 across different states and territories, with courts in some jurisdictions having greater flexibility over when they may order a federal sentence to commence. See further: 4. Approaches in states and territories. 

For example, in R v Nguyen [2005] NSWCCA 362 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 at [23]:

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 …

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’. 2 In R v Satwant Singh the court found there was no power in Victoria to backdate a federal sentence to a date earlier than its imposition, as there was no express federal power to do so, nor was there a power under the Victorian sentencing legislation. 3

2.1 Commencement and cumulative/concurrent sentencing

A court may be 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. 4

See Cumulative and Concurrent Sentences for further commentary on s 19.

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3. Pre-sentence custody

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.

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: s 16E(2) and (3)

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 picks up the law in the State and Territory where the federal offender is being sentenced there is statutory basis for adopting one of these two methods if that method is not otherwise available in that jurisdiction: See R v Satwant Singh (discussed above).

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 then 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. [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. 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. 5

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 4. Approaches in states and territories.

3.1 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. In 2013 the Migration Act 1958 (Cth) was amended to include a new s 236C, which requires a court to take time spent in immigration detention into account when sentencing for ‘people smuggling’ offences (see below 3.2). 6  However, federal offenders may be subject to various other forms of detention including fisheries detention, 7 preventative detention 8 and home detention conditions under control orders. 9  Federal offenders may also be subject to immigration detention for reasons other than ‘people smuggling’. 10

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. 11 

3.2 People smuggling offences

Where an offender commits an offence against Division 12, Subdivision A of the Migration Act 1958 (Cth),time spent in immigration detention must be taken into account by a court imposing a sentence, or setting a non-parole period: s 236C Migration Act 1958 (Cth).

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 for this amendment states:

…as immigration detention is a non-custodial and non-punitive administrative arrangement, there may be doubt as to whether section 16E of the Crimes Act, and relevant State and Territory sentencing laws, allow a court to take time spent in immigration detention into consideration when sentencing individuals for people smuggling under the Migration Act. New subsection 236C will ensure that the periods a person spends in immigration detention between arrival in Australia and charge for people smuggling, and any subsequent period between charge and sentencing, can be taken into consideration by a court at the sentencing stage of court proceedings in relation to a people smuggling offence.

The aim of this amendment is to ensure that, when imposing mandatory minimum penalties for people smuggling offences, all pre-sentence detention, whether administrative or custodial, is taken into account for people smugglers. It will also ensure consistent treatment of time spent in custody and immigration detention throughout State and Territory jurisdictions. 12

3.3 Administrative detention and ‘custody’

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 Haruma v McCarthy [2008] NTSC 18 the appellant was detained pursuant to cl 8, sch 1A of the Fisheries Management Act 1991 (Cth) and then under s 250 of the Migration Act 1958 (Cth). In relation to applying the backdating provision of s 63(5) of the Sentencing Act (NT) by the operation of s 16E(2), the sentencing magistrate had remarked ‘he has not been in custody, he has only been in detention’. Southwood J found that the sentencing magistrate had erred in not back-dating the sentences of imprisonment imposed. He stated at [49]-[50]:

In circumstances where a person is ultimately prosecuted and convicted of offences against the Fisheries Management Act, being detained under cl 8, sch 1A of the Fisheries Management Act is the equivalent of being arrested. Once the person is detained the person is no longer a free person…

In my opinion, for the reasons given by Mildren J in R v Zainudin and Another, which I apply, “custody on account of his or her arrest for an offence” for the purposes s 63(5) of the Sentencing Act includes the period following the appellant’s detention on the foreign boat and his detention at the Northern Immigration Detention Centre in Darwin.

Note that on further appeal, 13 the Northern Territory Supreme Court (Court of Appeal) saw fit to backdate the sentence to the date on which the offender was apprehended on his boat by Fisheries Management Authorities. 14 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.

3.4 Administrative detention and offences not carrying a penalty of imprisonment

Section 16E of the Crimes Act 1914 (Cth) arises under Division 3 of the Act which deals with ‘Sentences of Imprisonment’. 15 Where an offence does not carry a penalty of imprisonment, it appears that the preferable view is that time spent in detention is not taken into account under s 16E(2) or (3): see Darter v Diden [2006] SASC 152 [24].

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] R v Zainudin [2005] NTSC 14 [39].

In Yusup v The Queen [2005] NTCCA 19 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. The offences for which he was charged carried maximum penalties of fines only. 16 Justice Mildren warned that there is potential for abuse if courts do not take such detention into account in determining the appropriate fine. 17 Riley J (Mildren and Southwood JJ agreeing) said at [17]-[20]:

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 s 16A(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.

3.5 Necessary nexus between custody and offence

Section 16E(3) states that the period spent in custody ‘in relation to the offence concerned’ must be taken into account, and s 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 court considered whether the Sentencing Act 1995 (NT) (applying by operation of s 16E(2)) required that the person be arrested and detained in custody for a particular offence, and then sentenced for that offence before the section was to apply. Riley J (Martin CJ and Thomas J agreeing) stated 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.

He commented further on the language of s 16E(3), stating at [24]:

In the absence of such a provision the fall back, as provided for in s 16E(3), is that the sentencing court “must take into account any period that the person has spent in custody in relation to the offence concerned”. The necessary nexus is present when the custody is “in relation to” the offence concerned reflecting an intention to permit a wide application to the provision.

3.6 Custody and immigration detention

Where an offender is held in immigration detention, and during this period of detention commits an offence for which the offender is later sentenced to imprisonment, the period of detention may be taken into account.  Note: for taking immigration detention into account in relation to people smuggling offences, see 3.2 above. 

3.6.1 Detention closely related to offence

If the period that the offender remained in immigration detention was because of, or exacerbated by pending criminal proceedings, then such detention may be taken into account as an additional factor under s 16A(2): see Habib Urahman v Semrad [2012] NTSC 95 [54]. 18

However it has been suggested that such detention cannot be used to identify a period by which the sentence might be backdated: see Habib Urahman v Semrad [2012] NTSC 95 [26]. 19

3.6.2 Detention solely referable to offence

The circumstances under which a court will backdate a sentence where the offender has been kept in immigration detention are unclear.  However, in R v Dadash [2012] NSWSC 1511 (in sentencing for a NSW 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 he had applied to be returned to his home country but his application had been denied whilst criminal proceedings were pending against him.  Hulme J found he was satisfied that the detention was ‘referable to the fact that he was charged with offences’. 20

3.6.3 Immigration detention as a sentencing factor

There has been some judicial recognition that the fact the offender was being held in immigration detention at the time of the offence, may be taken into account under s 16A(2), if there is evidence of mental deterioration or vulnerability whilst held in detention. See Habib Urahman v Semrad [2012] NTSC 95, [32]-[34], confirmed in Semrad v Habiburahman [2013] NTCA 6, [26]. 21 

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4. Approaches in states and territories

4.1 Introduction

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.

4.2 State and territory laws governing commencement

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 2.1 above) and provisions allowing for sentences to be backdated.

4.3 State and territory 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 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. 22

4.3.1 Backdating the sentence

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.

There is a statutory basis for backdating 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)) provided in:

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. Vanstone J (Doyle CJ agreeing) stated 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. [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]. In Assafiri v R [2007] NSWCCA 159, [11] Howie J held that the ‘normal and preferred practice in sentencing for state matters’ of backdating the sentence ‘should be adopted pursuant to s 16E(1) of the Crimes Act (Cth) that provides that the law of this State relating to the commencement of sentences applies to a person sentenced for a Federal offence.’

4.3.2 Reducing the term of the sentence

This approach does not alter the commencement date of the sentence but rather reduces the term of the sentence. It is legislatively available in the Sentencing Acts of South Australian and Western AustralianCriminal Law (Sentencing) Act 1988 (SA) s 30(2)(a); 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. 23

Howie J (McColl JA agreeing) remarked on the reduction approach in R v Newman [2004] NSWCCA 102 at [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].

4.3.3 Making a declaration of time already served

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: Penalties and Sentences Act 1992 (Qld) s 159A; Sentencing Act 1991 (Vic) s 18(4).

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]. But see the reservations expressed by Fryberg J in R v Hargraves and Stoten [2010] QSC 188 at [64]-[65].

4.3.4 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, 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.

4.3.5 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.

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])

However, 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. 24 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] and Abdullah v Sleiman [2011] WASC 262 [5].

Notes:

  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.   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).
  3.  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.
  4.  R v Knight [2013] QCA 277 [25].
  5.  Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.17]. 
  6.  The Migration Act 1958 (Cth) was amended to include the new s 236C by the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth). Section 236C applies in relation to sentences imposed, or non-parole periods set, at or after 29 June 103, whether the relevant offence was committed before, at or after that date: Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth), Schedule 3. 
  7.  Fisheries Management Act 1991 (Cth), sch 1A.
  8.  Criminal Code Act 1995(Cth) pt 5.3 div 105.
  9.  Criminal Code Act 1995 (Cth) pt 5.3 div 104.
  10.  Migration Act 1958 (Cth) divs 6, 7, 13.
  11.  Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.31].
  12.  Explanatory Memorandum, House of Representatives, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection And Other Measures) Bill 2013 (Cth), 61-62.  
  13.  Alimudin v McCarthy [2008] NTCA 7 
  14.  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.
  15.  The heading of a Division is part of the Act: Acts Interpretation Act 1901 (Cth) s 13.
  16.  Yusup v The Queen [2005] NTCCA 19 [2] (Mildren J).
  17.  Yusup v The Queen [2005] NTCCA 19 [4] (Mildren J).
  18.  See also R v Ali; R v Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871 [108]; R v Darabi, Mansoor and Razai [2013] NSWSC 387 [132]; R v Abdollahi [2013] NSWSC 428 [43]. While sentencing for offences against the Crimes Act 1900 (NSW) Hulme J considered the impact that the detention could have on sentence.
  19.  See also R v Darabi, Mansoor and Razai [2013] NSWSC 387. In sentencing for a NSW offence, Hulme J stated at [132]: ‘The fact that they might have been considered for community detention if it had not been for the pending proceedings is too uncertain for it to be taken into account in terms of identifying a period by which sentences might be backdated. However, the fact is that they have remained in a custodial environment and have been denied an opportunity for consideration of living in the community under a form of conditional liberty. It is a matter I have taken into account in my assessment of the overall sentence.’
  20.  R v Dadash [2012] NSWSC 1511 [28] (Hulme J).
  21.  See also Chegeni Najad v Bruhn [2014] WASC 73 [44].
  22.  Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.13]. 
  23.  The ALRC report 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’: Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [10.13]. 
  24.  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.