R v Winkelmann[2022] QDC 49

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 9 March 2022, the abovenamed defendant (“offender”) was sentenced for the offences of assault occasioning bodily harm (committed on 2 October 2019) and robbery with personal violence (committed on 17 December 2019). He was then sentenced to serve a period of 3 years imprisonment, comprised of concurrent terms of 6 months imprisonment for the offence of assault occasioning bodily harm and 3 years imprisonment for the offence of robbery with personal violence. Pursuant to s 159A(3B) of the Penalties and Sentences Act 1992 (“PSA”), it was stated that there had been 438 days of pre-sentence custody in relation to these offences, from 26 December 2020 to 8 March 2022, but that only 34 days from 3 February to 8 March 2022 was declared as time already served in respect of the sentence imposed. A parole release date was fixed as 3 May 2022.
2. [2]
   These reasons relate to the question which arose as to whether the Court was required to fix a parole release date, or a parole eligibility date for this offender.  In particular, the question was as to whether ss 160B or 160C of the PSA applied.^[1]  It may be noted that pursuant to s 160A(1) and except where ss (6) applies, these provisions apply respectively when a court is imposing a term of imprisonment on an offender for an offence.  And further, pursuant to s 160A(2), they are the only law under which a court may, upon sentencing an offender, “make an order relating to a person’s release on parole”. 
3. [3]
   In the present circumstances, the main focus of submissions has been upon the application of s 160B(2) and therefore the requirement that “the Court must fix a date the offender is eligible for parole”.  The issue is as to whether, when he was sentenced in this Court, the offender:

“Has had a Court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment”.

4. [4]
   It is convenient to note that apart from the effect of either s 205 or 209 of the Corrective Services Act 2006 (“CSA”), that s 160E of the PSA makes provision for automatic cancellation of an offender’s parole release date and parole eligibility date, in the following circumstances:

   1. (a)
      When a court fixes another parole release date or parole eligibility date for the offender; or
   2. (b)
      When a court imposes a term of imprisonment on the offender for a serious violent offence or sexual offence; or
   3. (c)
      When the court imposes a term of imprisonment on the offender that results in the offender’s period of imprisonment being more than three years. 

Subsection (3) prescribes this to be the result, even if the court fixing the relevant date or imposing the further term of imprisonment is a court of lesser jurisdiction to the court which earlier fixed the “current parole release date or current parole eligibility date being cancelled under the subsection”.

5. [5]
   It is to be further noted that:

   1. (a)
      Pursuant to s 160F(1) of the PSA, it is provided that an object of s 160A to 160E “is to ensure that at any 1 time there is only 1 parole release date or parole eligibility date in existence for an offender”;
   2. (b)
      Pursuant to s 160F(2), it is prescribed that:

“the date fixed by the Court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment”; and

3. (c)
   Further and pursuant to s 160G(1), it is provided that:

“If, under this Act, the court must fix a parole release date for an offender, the court may fix any day of the offender’s sentence as the offender’s parole release date.”

6. [6]
   It is also necessary to note that the following defined concepts:

   1. (a)
      “parole release date” is defined, in s 160, as meaning “the date fixed under section 160B(3) as the date the offender is to be released on parole”;
   2. (b)
      “parole eligibility date” is defined, in s 160, as meaning “the date fixed under section 160B(2), (4) or (7), section 160C(2), (3) or (5), section 160D(2) or (3) or 213 as the date the offender is eligible for parole”;
   3. (c)
      “period of imprisonment” is defined, in s 160, as meaning “the period of imprisonment that includes the term of imprisonment mentioned in s 160A” which, in order to remove any sense of tautology, requires reference to the following definition in s 4 of the PSA:

“period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether—

1. (a)
   ordered to be served concurrently or cumulatively; or
2. (b)
   imposed at the same time or different times; and includes a term of imprisonment.”;

This is in contrast to the definition, also in s 4, of “term of imprisonment:

“term of imprisonment means the duration of imprisonment imposed for a single offence and includes—

1. (a)
   the imprisonment an offender is serving, or is liable to serve—

1. (i)
   for default in payment of a single fine; or
2. (ii)
   for failing to comply with a single order of a court; and

1. (b)
   for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term.” and

1. (d)
   The following definition of “sentence”, also in s 4:

“sentence—

1. (a)
   means a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded; and
2. (b)
   for part 10A—includes an order made by a court to deal with the offender for an offence instead of passing sentence.”.

7. [7]
   In that context, there are two contentions made for the offender, as to the requirement for fixing a parole release date pursuant to s 160B(2).  That is, that upon his being sentenced, there would be no circumstance where he:

   1. (a)
      has had a court ordered parole order cancelled under s 205 or s 209 of the CSA; and
   2. (b)
      alternatively, any such cancellation will not have occurred during his period of imprisonment. 
8. [8]
   When the orders were made on 9 March 2022, the offender was aged 59 years and had a lengthy prior criminal history, including for similar past offending.  Indeed, he had offended against the same female complainant as was the victim of the assault occasioning bodily harm and as was the case on this occasion, also on past occasions, in contravention of domestic violence orders.  Further, both offences were committed after he had been released on parole, on 1 March 2019.  He had been in custody since 26 December 2020.  In the first instance, that was in respect of his service of a period of imprisonment comprised of the following components:

   1. (a)
      On 1 February 2019, he was sentenced in the District Court of Mackay for offences of stealing (committed on 4 March 2018), attempted robbery (committed on 30 April 2018) and contravention of direction or requirement (committed on 9 April 2018).  The effect was the imposition of concurrent terms of imprisonment comprising a period of two years and six months imprisonment, which, in effect, began to run on 1 May 2018, having regard to the declaration of 277 days of pre-sentence custody, as time already served, from 1 May 2018 to 1 February 2019.  His parole release date was fixed as 1 March 2019;
   2. (b)
      On 15 February 2019, he was further sentenced, in the Magistrates Court at Mackay, in respect of offences of contravention of a domestic violence order (aggravated offence) and common assault (each committed on 1 April 2018).  The effect of the orders was that concurrent terms of nine months’ imprisonment were to be served concurrently with the existing period of two years and six months imprisonment, with a parole release date being again fixed as 1 March 2019. 

It was that fixed parole release date which was acted upon, with the offender being released on a “court ordered parole order”, on 1 March 2019.

9. [9]
   This offender’s situation was further complicated by the following circumstances:

   1. (a)
      His parole order was suspended on 24 September 2019 and therefore prior to the commission of all of the offences for which he was sentenced;
   2. (b)
      However, he was not apprehended and taken into custody until 26 December 2020; and
   3. (c)
      Prior to that and on 7 December 2020, he committed the further offence of evasion offence, for which, on 30 July 2021 in the Magistrates Court at Maroochydore, he was sentenced to 50 days imprisonment to be served concurrently with the pre-existing period of imprisonment, with 50 days of pre-sentence custody from 10 June 2021 to 30 July 2021, being declared as time already served and with the refixing of a parole eligibility date, as 30 July 2021. 
10. [10]
    It may then be observed that the apparently wholly nugatory effect of the orders made on 30 July 2021, are confirmed, as may be expected by the pre-sentence custody certificate.  Further and because of the suspension of parole as from 24 September 2019, neither can there be any contingent liability in respect of any pre-existing period of imprisonment, such as discussed in R v Smith,^[2] which may be engaged upon the sentencing of the offender in this Court.  Rather and in summary, the position is that on 2 February 2022, this offender had completed serving his full liability under the earlier imposed sentences.  That may be noted to have occurred as follows:

    1. (a)
       1 May 2018 to 31 January 2019, as declared pre-sentence custody;
    2. (b)
       1 February 2019 to 28 February 2019, in custody under sentence;
    3. (c)
       1 March 2019 to 23 September 2019, while released on parole;^[3]
    4. (d)
       26 December 2020 to 2 February 2022, being the remainder of his liability, as calculated from 24 September 2019 when the parole order was suspended.

Were there any offences committed during the period of the prisoner’s parole order?

11. [11]
    It was a correctly accepted position that the offending for which this offender was to be sentenced on 9 March 2022, could only appropriately be met by the imposition of terms of imprisonment.  However, the primary submission for him was that s 160B(2) would not be engaged, so as to require the fixing of a parole eligibility date, because his offences were not committed during “the period of his parole order”, due to the prior suspension of it.  Therefore it is contended, s 209 of the CSA would not be engaged and in turn, neither would s 160B(2), with s 160B(3) therefore applying to require the court to fix a parole release date.  It was otherwise common ground that there had been no prior cancellation of the offender’s parole order, as opposed to the suspension of it, from 24 September 2019.
12. [12]
    Support for this reasoning was sought by reference to Chevathen v Queensland Police Service.^[4]  For the prosecution it is contended that the decision in Chevathen and the contention based upon it, as made for this offender, is flawed and not consistent with the relevant provisions of the CSA.  The prosecution submission is to be accepted for the following reasons.
13. [13]
    Essentially the issue is as to the meaning of the undefined phrase “during the period of the prisoner’s parole order” and in this respect, not sharing a conclusion reached in Chevathen (at [44]-[46]), there recognised as apparently anomalous, that the effect of a suspension of a parole order is to suspend the period of such an order.
14. [14]
    It is necessary to note some of the complexity of the CSA in respect of sentences to be served by prisoners:

    1. (a)
       in the first instance it may be noted that s 9 of the CSA recognises that detention of a prisoner may only occur under the authority of the specified records (being a warrant, a verdict and judgment record under the Criminal Practice Rules 1999 and a record under the Penalties and Sentences Act 1992 of an order committing the detainee into custody).  Implicitly it is such a record which will define the extent to which a prisoner is to be detained.^[5]  Section 108 then provides for the discharge or release of a prisoner, on the prisoner’s “release day”, defined as meaning “the day on which a prisoner is to be discharged or released on parole”;
    2. (b)
       as far as the provisions relating to parole are concerned it may be noted that the dictionary in Schedule 4 of the CSA contains the following relevant definitions:

“court ordered parole order means an order issued by the chief executive under section 199 in accordance with a court order under the Penalties and Sentences Act 1992, section 160B(3) fixing the date for the prisoner to be released on parole.

….

parole period means the period during which a prisoner is released on parole.

….

released means released on parole.

….

released on parole means released from a corrective services facility subject to the conditions of a parole order.”

3. (c)
   pursuant to s 194 of the CSA, the effect of a parole order made under that section is to “release an eligible prisoner on parole”;
4. (d)
   pursuant to s 199 of the CSA, except where the prisoner is otherwise remanded in custody in respect of another offence or charge, the Chief Executive “must issue a court ordered parole order for a prisoner in accordance with the date fixed for the prisoner’s release to parole under the Penalties and Sentences Act 1992, Pt 9, Div 3”;
5. (e)
   as set out in s 200 of the CSA, such orders allow for the supervision of a prisoner in the community, subject to the applicable conditions;
6. (f)
   section 205(2) of the CSA empowers the parole board to amend, suspend or cancel a parole order, in specified circumstances,
7. (g)
   in the event of suspension or cancellation s 206 empowers the Board to issue a warrant for the prisoner’s arrest and as may be seen from s 206(3), such arrest has different effect as between suspension and cancellation:

“When arrested, a prisoner must be taken to a prison –

1. (a)
   if the order was suspended – to be kept there for the suspension period; or
2. (b)
   if the order was cancelled – to serve the unexpired portion of the prisoner’s period of imprisonment;”^[6]

3. (h)
   similarly and in the event of the engagement of s 209(1) of the CSA, which applies subject to s 205 and “whether or not the prisoner is sentenced to the other period of imprisonment before or after the parole order has expired”, it is provided that:

“If a prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the prisoner’s parole order, the order is taken to have been automatically cancelled on the date on which the offence occurred.”

The parole board is then empowered pursuant to s 210, to issue a warrant for the arrest of the prisoner to “be taken to a prison to serve the unexpired portion of the prisoner’s period of imprisonment”;^[7]

9. (i)
   time whilst released on parole counts towards the completion of a period of imprisonment, because s 214 of the CSA provides that:

“A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner.”

And this is confirmed by s 215, which provides:

“A prisoner is taken to have served the prisoner’s period of imprisonment if the prisoner’s parole order expires without being cancelled under section 205 or 209.

15. [15]
    Otherwise, it is only necessary to note that there are some further provisions which will, when engaged, require adjustment to the calculation of the unexpired portion of a prisoner’s sentence and therefore, discharge date:

    1. (a)
       for periods when a prisoner is “unlawfully at large”,^[8] pursuant to s 112(4) of the CSA; and
    2. (b)
       when there is a cancellation of a parole order, for any additional period when the prisoner was released on parole, after the relevant event for which the cancellation occurred, pursuant to s 211.^[9]
16. [16]
    Accordingly, it may be seen that in contrast to the position in respect of the cancellation of a parole order, which brings the order and therefore the period of the order to a conclusion, with the noted effects in respect of the calculation of the unexpired portion of the sentence then remaining to be served, the effect of suspension of a parole order is to allow for return to custody only for the suspension period and the non-allowance of the benefit of any time for which the prisoner remained unlawfully at large in the community after such suspension.  Importantly and axiomatically the parole order is not rescinded, so that it remains effective to be re-engaged once the period of suspension has been completed.^[10]
17. [17]
    Whilst the effect of a suspension of parole is to suspend the defined concept of “parole period”, this concept is only defined for the purpose of where it appears in s 200(1)(e) of the CSA, in respect of a standard condition of a parole order: “to notify the Chief Executive within 48 hours of any change in the prisoner’s address or employment during the parole period”.  Understandably such a condition can only be effective whilst a prisoner is released on parole.
18. [18]
    The definition of “parole period” does not apply to the different and otherwise undefined term in s 209: “the period of the prisoner’s parole order”. Notwithstanding that the power as expressed in s 205 and s 208B, is to “suspend the parole order”, once it is understood that the effect is only upon the operation rather than continued existence of the parole order, the legislative intent in s 209, in the phrase “the period of the prisoner’s parole order”, may be discerned to be not to produce any apparently discordant or anomalous result but rather to be a reference to the period during which a parole order remains extant, whether or not subject to an order suspending its operation.

Has the offender had a court ordered parole order cancelled under s 205 or s 209 of the Corrective Services Act 2006 during the offender’s period of imprisonment?

19. [19]
    However the overarching question is as to whether upon sentencing on 9 March 2022, s 160B(2) is engaged, upon the basis that this offender “has had  a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment”.
20. [20]
    It is convenient to note some of the provisions of s 160 to s 160H, which comprise Division 3 of Part 9 of the PSA. As has been noted, pursuant to s 160A(1), except for the exceptions stated in s 160A(6), s 160B to 160D “apply if a court is imposing a term of imprisonment on an offender for an offence” and pursuant to s 160A(2), “are the only law under which a court may, on sentence of an offender for an offence, make an order relating to a person’s release on parole”. And it is explained in s 160F that:

1. “(1)One of the objects of sections 160A to 160E is to ensure that at any 1 time there is only 1 parole release date or parole eligibility date in existence for an offender.
2. “(2)When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.”

Accordingly, it is of critical importance to identify the period of imprisonment to which any fixing of any parole entitlement is to attach.

21. [21]
    As has been noted “parole release date” is defined in s 160 as “the date fixed under section 160B(3) as the date an offender is to be released on parole” whereas “parole eligibility date” is separately defined “as the date the offender is eligible for parole” and as may be required or permitted to be fixed under other provisions in Division 3.  It may be noted that s 160E relevantly provides:

1. (1)
   An offender’s parole date is automatically cancelled when –

1. (a)
   a court fixes another parole release date or parole eligibility date for the offender under this division; or
2. (b)
   a court imposes a term of imprisonment on the offender:

1. (i)
   for a serious violent offence or a sexual offence; or
2. (ii)
   that results in the offender’s period of imprisonment being more than 3 years.

2. (2)
   An offender’s parole eligibility date is automatically cancelled when –

1. (a)
   a court fixes another parole eligibility date for the offender under this division; or
2. (b)
   a court imposes a term of imprisonment on the offender –

1. (i)
   for a serious violent offence or a sexual offence; or
2. (ii)
   that results in the offender’s period of imprisonment being more than 3 years.”^[11]

22. [22]
    However the potential application of s 160B(2) relates to another provision relating to automatic cancellation of an offender’s parole order. There is no suggestion of any cancellation under s 205 of the CSA.  The issue only arises on the basis that s 209 is engaged upon the sentencing of the prisoner to a term of imprisonment for an offence, which is not excluded by s 209(3).  Here, the only conceivably relevant exclusion would be a wholly suspended term of imprisonment, which would be an inappropriate response for this offending.
23. [23]
    It has been noted that s 209 may be engaged “after the parole order has expired”,^[12] but it is of importance to note that the effect pursuant to s 209(1) is that “the order is taken to have been automatically cancelled on the date on which the offence occurred”. Therefore, the question becomes whether that date and effective cancellation at that point in time, is within the period of imprisonment for which the court may be required to fix or consider fixing an entitlement to parole pursuant to Division 3 of Part 9 of the PSA.
24. [24]
    The definition of “period of imprisonment” in s 4 of the PSA relates to:

“The unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment whether –

1. (a)
   ordered to be served concurrently or cumulatively; or
2. (b)
   imposed at the same time or different times;

and includes a term of imprisonment.”

Therefore, it is not just a matter of looking to any continuous period when a prisoner has remained in custody but rather requires a nexus or connection of terms of imprisonment imposed by court orders in a concurrent or cumulative sense.

25. [25]
    As provided in s 154 of the PSA and leaving aside the noted exceptions:

“… a term of imprisonment –

1. (a)
   on conviction on indictment – starts on the day the court imposes imprisonment on the offender; and
2. (b)
   on a summary conviction – starts at the beginning of the offender’s custody for the imprisonment.”

Further, s 155 states the ordinary rule that:

“Unless otherwise provided by this Act, or the court imposing imprisonment otherwise orders, if –

1. (a)
   an offender is serving, or has been sentenced to serve, imprisonment for an offence; and
2. (b)
   is sentenced to serve imprisonment for another offence;

the imprisonment for the other offence is to be served concurrently with the first offence.”

And s 156 states the power to accumulate terms of imprisonment:

1. (1)
   If –

1. (a)
   an offender is serving, or has been sentenced to serve, imprisonment for an offence; and
2. (b)
   is sentenced to serve imprisonment for another offence;

the imprisonment for the other offence may be directed to start from the end of the period of imprisonment the offender is serving, or has been sentenced to serve.

2. (2)
   Subsection (1) applies whether the imprisonment for the first offence is being served concurrently or cumulatively with imprisonment for another offence.”

26. [26]
    It may therefore be seen that the common nexus in the application of s 155 and s 156 is in respect of circumstances where “an offender is serving, or has been sentenced to serve, imprisonment for an offence.”  That is, when a term of imprisonment is imposed, if there is an existing liability to serve at least some part of another period of imprisonment, whether constituted by another term or other terms of imprisonment and whether imposed on that occasion or at some earlier point in time.
27. [27]
    Therefore, and notwithstanding that there may be an unbroken duration of imprisonment when, after completion of serving an earlier imposed period of imprisonment, an offender remains in custody on remand for other offences, at least until such offences are dealt with, as discussed in a different context in Rule v Commissioner of Police,^[13] this leaves open the prospect of consecutively operative terms or periods of imprisonment, because of the implications of dealing with declaration as to pre-sentence custody pursuant to s 159A of the PSA.
28. [28]
    Before further considering such implications, it should be noted here that in the circumstances and where there remained no outstanding liability to serve any part of the period of imprisonment comprised of the terms imposed respectively on 1 February 2019, 15 February 2019 and 30 July 2021, including in any contingent sense, after 2 February 2022, it was appropriately conceded for the prosecution that:

    1. (a)
       despite each of the offences for which this offender was to be sentenced, being included in Schedule 1 to the PSA, there was no occasion for any accumulation of any term of imprisonment including having regard to s 156A, because there was no other term or period of imprisonment which this offender remained liable to serve or was serving;^[14] and
    2. (b)
       because of this and common ground that a properly moderated response, particularly in giving weight to the extent to which this offender had served his previous period of imprisonment in custody, including consequently to his suspension and breaches of parole, would be the imposition of 3 years imprisonment on that basis, there was, appropriately, no contention that s 160C was engaged.
29. [29]
    Further and despite it being maintained in written submissions for the prosecution that nevertheless s 160B(2) was engaged to require the fixing of a parole eligibility date, it was ultimately conceded otherwise, upon further consideration of the wording and therefore effective operation of s 209 of the CSA, in that the offender’s parole order “is taken to have been automatically cancelled on the date on which the offence occurred”.  In each case here that was a date during a prior period of imprisonment and not the period comprising the terms imposed on and commencing from 9 March 2022 and in respect of which the Court was concerned as to fixing any parole entitlement.
30. [30]
    For similar reasons, neither is s 160E engaged.  Further in this regard, once the implications of s 160G are noted, it is clear that s 160E is concerned with effecting the objective stated in s 160F(1) and once the effect of s 160F(2) is understood in the focus upon fixing parole entitlement for a particular period of imprisonment, it is clear that s 160E has no application to any past and served period of imprisonment.^[15]

Dealing with pre-sentence custody

31. [31]
    As I concluded in Rule v Commissioner of Police^[16] and where, as here and in a practical sense, the offender has remained in custody for an unbroken duration past the end of his liability under any prior sentence and thereafter solely, in pre-sentence custody for the offences for which the Court is to sentence, that sentence, including any declaration that the pre-sentence custody be taken as time served, may, at least in a practical sense, be viewed as being effected consecutively rather than in any overlapping, or it might be further observed connected, sense.
32. [32]
    In the light of what has been discussed above and particularly in respect of the definition of “period of imprisonment” in s 4 of the PSA, it may be seen that the necessary sense of separation of relevant periods may be observed, not only in understanding the absence of requisite nexus in being “ordered to be served concurrently or cumulatively” but also in understanding that the definition focuses upon “the unbroken duration of imprisonment that an offender is liable to serve” and that such may be served on parole (subject to the noted potential adjustments) as well as in custody. Accordingly, it may be seen that the period of imprisonment will comprise the total liability effected by the sentencing orders which operate in any concurrent or cumulative sense, rather than any unbroken duration of actual detention in custody.
33. [33]
    The decision in Rule occurred prior to the recent amendment of s 159A(1) of the Penalties and Sentences Act, to remove the limiting words “and for no other reason”.  And therefore, at a time when such other reason for not declaring pre-sentence custody in relation to a sentence, included the coincidence of serving a previously imposed period of imprisonment, including upon suspension of a parole order.
34. [34]
    However, that changed, as from 25 May 2020.  Since then, this Court has regularly applied s 159A(1) on the basis that it has application to any such pre-sentence custody, irrespective of there being any other reason for it, including serving a prior sentence, subject to the appropriate application of the further provisions in that section, including s 159A(3B).  Notably, and in R v Wilson,^[17] the Court of Appeal has recently endorsed such an approach and particularly one where “there is no preferred or prima facie position” as to the declaration of the pre-sentence custody to which s 159A(1) is now applicable, having regard to the remaining provisions in that section.
35. [35]
    The inclination expressed but not effected, in Wilson,^[18] for declaration of the whole of the pre-sentence custody, including that coincident with serving an earlier period of imprisonment, may require consideration in the light of the later decision in R v Braeckmans.^[19] That later decision may be seen as being critical of an approach where any pre-sentence custody coinciding with serving a prior sentence, is declared as time served in respect of an accumulated sentence and as may be required by s 156A of the PSA.  As there expressed, that was because of a perceived effect of concurrency of sentence in avoidance of the mandatory requirement of accumulation in s 156A.^[20] 
36. [36]
    It may be observed that, as noted in Braeckmans,^[21] reference to the explanatory memorandum for the bill by which s 159A was amended provides only the limited assistance of an assertion that the amendment would “provide a sentencing court with increased flexibility in relation to the consideration of pre-sentence custody”. It may be generally understood that an impetus for the recent amendment lies in understanding the authoritative recognition of the desirability of taking into account pre-sentence custody which was not declarable, particularly when another reason for that custody may have been other charges which remain to be later dealt with, at the first sentencing opportunity.^[22] And the potential problem confronting a subsequent court dealing with any of those other offences, in the absence of precise information as to whether and how the pre-sentence custody has already been taken into account, in order to avoid any inappropriate double counting of the same pre-sentence custody. A clear effect of the amendment to s 159A is to provide for a precise notation, as part of the sentence imposed, of the pre-sentence custody already given effect, so as to avoid any such subsequent difficulty.  However, the simplicity of the amendment, has introduced the potential complications now noted in respect of dealing with situations where the pre-sentence custody coincides with the service of any earlier imposed period of imprisonment. However, in that regard a critical consideration is that this time is necessarily counted in respect of the service of that period of imprisonment.
37. [37]
    When the new sentence to be imposed will have concurrent or cumulative effect in respect of an existing liability in respect of a period of imprisonment and whether or not the approach for which inclination was expressed in Wilson,^[23] or any other, is adopted, as earlier recognised in Wilson,^[24] the totality principle is engaged and as is well recognised, the imposition of an accumulated term of imprisonment usually requires consideration as to moderation because of that effect and having regard to totality considerations.^[25]  Moreover, it may be respectfully observed that when there is accumulation, or any concurrent term imposed (whether or not such term introduces any accumulation to the liability under a period of imprisonment) in the context of that necessary application of the totality principle, there is usually no necessity nor warrant for declaring any such pre-sentence custody, unless it will not otherwise count as being served in respect of the overall period of imprisonment.^[26] This is because all the earlier service of the period of imprisonment will necessarily be taken into account in the calculation of the period of imprisonment and also necessarily be taken into account in the fixing of parole entitlement for that period of imprisonment.^[27]
38. [38]
    The view just expressed would not only support the ultimate conclusion reached in Braeckmans, as to the undesirability of the declaration which was made and indeed the absence of any need for it. It must, however, be respectfully observed that a potential difficulty with the reasoning in Braeckmans might be exemplified by considering an alternative position that this offender had committed an offence prior to the suspension of his parole order, such that a contingent liability in respect of his earlier period of imprisonment, of the kind discussed in R v Smith,^[28] arose upon his sentencing for the offences committed whilst on parole. In the circumstances, that would have engaged s 156A of the PSA and also a need to consider the time in presentence custody which would not be otherwise counted in his sentence calculation.  It is desirable that what is becoming the ever more complicated task of exercising the sentencing discretion, be not any further complicated and respectfully suggested that an approach which would allow for the simple declaration of that pre-sentence custody as time served under the later sentence imposed, is desirable.
39. [39]
    It may also be respectfully observed that the conclusion reached in Braeckmans, in respect of what is there identified as to tension between the application of both s 156A and s 159A of the PSA, may be difficult to reconcile with the treatment of a similar apparent tension between 154 and s 159A, in Attorney-General (Qld) v Kanaveilomani.^[29] As is discussed at some length in that earlier decision, the Court was there concerned with examining the particular interpretation of the forerunner to s 159A, in the context of its introduction when the PSA was enacted, ^[30] along with a cognate provision in s 158, which it may be noted was relevantly and prior to an amendment made in 1994, introduced in the following form:

1. “(1)If –