Court to take other matters into account (including pre-sentence custody)

Section 24 Crimes (Sentencing Procedure) Act 1999 provides that the court must take into account time served in custody and the fact that the person has been the subject of a community correction order, conditional release order or an intervention program order.

24 Court to take other matters into account

In sentencing an offender, the court must take into account:

(a) 

any time for which the offender has been held in custody in relation to the offence, and

(b) 

in the case of an offender who is being sentenced as a result of failing to comply with the offender’s obligations under a community correction order, conditional release order or intervention program order:

(i) 

the fact that the person has been the subject of such an order, and

(ii) 

anything done by the offender in compliance with the offender’s obligations under the order, and

(c) 

in the case of an offender who is being sentenced as a result of deciding not to participate in, or to continue to participate in, an intervention program or intervention plan under an intervention program order, anything done by the offender in compliance with the offender’s obligations under the intervention program order, and

(d) 

in the case of an offender who is being sentenced following an order under section 11(1)(b2):

(i) 

anything done by the offender in compliance with the offender’s obligations under the order, and

(ii) 

any recommendations arising out of the offender’s participation in the intervention program or intervention plan.

[12-500] Counting pre-sentence custody

The ambit of the phrase in s 24(a) — “any time for which the offender has been held in custody in relation to the offence” — has been a source of ambiguity. The provision is silent on the question of whether pre-sentence custody attributable both to other offences and the offence for which the offender stands for sentence should be taken into account. The section also leaves the issue of exactly how such time is to be taken into account to the sentencer’s discretion.

Section 47(2) Crimes (Sentencing Procedure) Act 1999 allows the court to direct that a sentence is taken to have commenced before the date on which the sentence is imposed (“backdating”) and s 47(3) provides, inter alia, that:

… in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates.

The section does not oblige a court to backdate a sentence, but the pre-sentence custody served by an offender “in relation to the offence” must be taken into account when deciding whether the sentence should commence before the sentence date: Kaderavek v R [2018] NSWCCA 92 at [20].

An offender granted bail on one charge is not in custody “in relation to” it for the purposes of s 47(3) if they are being held on remand for an unrelated charge: Rafaieh v R [2018] NSWCCA 72 at [44], [50]. The fact an offender is not entitled to be released from custody for one offence but was granted bail in respect of another does not alter their bail status in respect of the latter: at [59]–[60].

Section 47(2)(b) provides for a court to direct that a sentence of imprisonment commence on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly consecutively) with some other sentence of imprisonment. See further Forward dating sentences of imprisonment at [7-547].

Backdating the sentence is usual practice

Backdating a sentence by a period equivalent to the pre-sentence custody is the preferable, and usual, approach: Wiggins v R [2010] NSWCCA 30 at [2], [3]–[6]; Martinez v R [2015] NSWCCA 5 at [19]; Salafia v R [2015] NSWCCA 141 at [65]; Kaderavek v R [2018] NSWCCA 92 at [20]. Before the enactment of the provisions of the Act, it was accepted at common law, in cases such as R v McHugh (1985) 1 NSWLR 588, that where there had been a continuous period of pre-sentence custody, the practice was to backdate a sentence to take account of pre-sentence custody, rather than to discount or reduce it. Nothing in s 47 of the Act prevents backdating a sentence for an offence even where there has been discontinuous custody: R v Newman and Simpson [2004] NSWCCA 102 at [26].

In R v Newman and Simpson at [26]–[31], Howie J summarised the reasons in favour of backdating:

  • It preserves the denunciatory and deterrent value of the sentence so that it is, and appears to be, adequate both to public perception and when it appears in statistical information.

  • It makes it clear to the defendant and to the appeal court that the offender has received a reduction in sentence for pre-sentence custody.

  • It avoids questions of disparity when comparing one sentence to another that has been markedly reduced by pre-sentence custody.

  • It avoids skewing statistical information on that offence where there are very few comparable sentences for similar offences and avoids giving a false indication of the range of sentence that have been imposed for a similar offence or similar offender.

  • It avoids lengthy sentences being imposed in years, months and days, which may suggest that sentencing is an exact science and that a sentence can be determined to a precise number of days.

When discounting a sentence may be appropriate

The length of a sentence should not be discounted unless reasons are clearly articulated for adopting that approach: Wiggins v R at [3], [8]; R v Newman and Simpson at [25]; R v Jammeh [2004] NSWCCA 327 at [18] and R v Howard [2001] NSWCCA 309 at [24]. However, there are some situations where it will not be appropriate or even permissible to backdate a sentence and in such cases, the sentence can be reduced to take this time into account.

One such situation, identified by Badgery-Parker J in R v Deeble (unrep, 19/9/91, NSWCCA) at 3–4 and applied in R v Leete [2001] NSWCCA 337 at [29], is where a sentencer may discount a sentence to three years or less, thereby making an offender’s release upon expiry of the non-parole period an entitlement rather than based on eligibility: Wiggins v R at [8]; White v R [2009] NSWCCA 118. See also s 158 Crimes (Administration of Sentences) Act 1999.

Another relates to the nature of the sentencing option selected by the sentencer as it is not possible to backdate some sentencing options. Intensive correction orders, community correction orders and community release orders each commence on the date on which they are made (ss 71(2), 86 and 96 respectively) and therefore cannot be backdated to take into account any period of pre-sentence custody. Thus, any such period must be taken into account by reducing the term of sentence.

Method of crediting custody time

Where a defendant is given credit for a period of pre-sentence custody, this time should be reflected in both the total sentence and the non-parole period: R v Newman and Simpson at [25] and R v Youkhana [2005] NSWCCA 231 at [10]. Under the proper approach — fixing the sentence and the non-parole period, and then making allowance for the period in custody — the applicant gets the benefit of the whole of the period served where it is deducted from the non-parole period. The judge erred in R v Youkhana by taking into account the periods spent in custody when setting the head sentence. The period spent in custody must be deducted from the whole of the sentence including the non-parole period. The difference between the approach adopted and the correct approach is most obvious when there is no finding of special circumstances. In such a case, the offender obtains the benefit of only 75% of the period served by way of a reduction in the non-parole period. The mathematical problem would not have arisen had the judge backdated the commencement of the sentence.

On some occasions it is sufficient for a sentencing judge to express in the remarks on sentence that a period of pre-sentence custody has been “taken into account”: R v Frascella [2001] NSWCCA 137; R v Rose [2001] NSWCCA 370 and R v Deron [2006] NSWCCA 73 at [9]. However, such an incantation may not be sufficient where there has been an irregular period of pre-sentence custody. Where a sentence is expressed in whole years, it may be more difficult to infer the sentencing judge has actually taken this period of custody into account: R v Galati [2003] NSWCCA 148.

In R v Bushara [2006] NSWCCA 8 at [37] it was held that when sentencing an offender for multiple offences, a judge must ensure that pre-sentence custody is deducted from the aggregate non-parole period. Consideration must be given to the period of pre-sentence custody when considering the relationship between the aggregate non-parole period and balance of the term: at [22], [24], [35]. The effective sentence in Bushara did not reflect the finding of special circumstances.

It is an error for a judge to revoke bail so a period of custody counts towards the sentence by reason of s 24(a): R v West [2014] NSWCCA 250. In R v West, the judge unilaterally revoked the offender’s bail while an intensive correction order (ICO) report was obtained, stating this gave the offender about four months of full-time custody, after which the judge imposed an ICO for a period of two years. This approach did not accord with usual sentencing practice which requires that the sentencing discretion be exercised immediately before a sentence is passed, rather than conditionally in advance and in two stages: at [36], [41], [43].

[12-510] What time should be counted?

Parole revoked as a consequence of a subsequent offence

When a person commits an offence whilst on parole, they may spend time in custody referable to that offence (“the second offence”), if bail is refused. However, the Parole Authority may, on occasions, revoke the person’s parole due to the second offence and order the person to serve the remaining period of the first sentence. An offender may thus be in custody referable to two offences; namely, the revocation of parole for the first offence(s) and the second offence.

Where parole is revoked as a consequence of the commission of a subsequent offence(s), it is a matter within the sentencer’s discretion whether the subsequent sentence should be backdated only to the time the offender was taken into custody for the subsequent offence: Callaghan v R [2006] NSWCCA 58 at [21]–[23]. Simpson J said at [22]–[23]:

[22] … a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule.

[23] It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.

A number of matters inform the exercise of the discretion: first, the fact that imprisonment for the period of the revoked parole is due to the original sentence and revocation occurred because the offender had been unable to adapt to civilian life; second, the fact that the revocation arises in consequence of a new offence for which a fresh sentence is being imposed, rather than for some unconnected cause; third, the proportion of time the offender complied with the terms of parole; and, fourth, the periods of revocation: R v DW [2012] NSWCCA 66 at [35].

This principle does not apply if parole has not been revoked by the Parole Authority. In a case where an offender has committed a subsequent offence, the court should not treat parole as having been notionally revoked: R v Skondin [2006] NSWCCA 59 at [16]–[17].

In R v Callaghan and R v DW, parole was revoked for an earlier sentence solely due to commission of the second set of offences. The court in both cases held that the judge did not err by refusing to backdate to the date the applicant was taken into custody.

Parole revoked as a consequence of breach of another condition of parole

Where parole is revoked for unrelated reasons, such as a breach of the conditions of parole and not the commission of the subject offence (for example, reporting or non-association requirements or for an unrelated offence), time spent in custody as a consequence of the breach is not taken into account upon sentence for the second offence: R v Bojan [2003] NSWCCA 45 and R v Walker [2004] NSWCCA 230. This time is not “referable” to the second offence, as required by ss 24 and 47 Crimes (Sentencing Procedure) Act 1999. As an example, see R v Kitchener [2003] NSWCCA 134 at [56] (a two-judge bench case).

However, the matter is not as clear cut as it seems. The parole status of the defendant may be affected by the commission of the second offence. In such a case, the court may need to attempt the hypothetical exercise of deciding what the applicant’s parole position would have been, had the second offence not been committed: R v Walker. It was said in R v Walker that the court will need to determine whether the second offence has caused a continuation of the revocation of parole. In R v Walker it was held that where the revocation of parole has been continued partly due to the commission of the second offence, pre-sentence custody referable to the continuation of the revocation of the parole may be taken into account upon sentence for the second offence.

A court has a discretion to impose a partially concurrent or wholly cumulative sentence upon a revoked parole period. The discretion has to be exercised in a principled way: Barnes v R [2014] NSWCCA 224 at [28]–[29].

In Barnes v R, the applicant had his parole revoked for an offence and was then sentenced for a subsequent offence with the sentence to commence at the expiry of the revoked parole period. The court, at [27], rejected the applicant’s argument that imposing a sentence that was totally cumulative made no allowance for the offender having a second chance at parole for the first offence.

Time already counted in previous proceedings

If a court takes account of the whole period of pre-sentence custody, it is not appropriate to again take that pre-sentence custody into account when sentencing the defendant for the second group of offences: R v Wood [2005] NSWCCA 159 at [5]; Martinez v R [2015] NSWCCA 5.

Time spent in custody in relation to another matter for which the offender is acquitted

Where an offender is sentenced in relation to one matter, time spent in custody referable exclusively to an unrelated offence, which has been successfully appealed, is not to be taken into account as a form of credit: R v Niass (unrep, 16/11/88, NSWCCA); R v David (unrep, 20/4/95, NSWCCA). In R v Niass, Lee CJ at CL said at 2:

… there is good reason to keep intact the division between the functioning of the court dealing with a particular offender in respect of the offence on which he comes before the court and taking into account periods spent in custody in respect of that offence, and the function which the State has undertaken on occasions to recompense persons who, when the justice system has miscarried may seek solatium.

R v Niass was subsequently confirmed by the five-judge bench decision of Hampton v R [2014] NSWCCA 131 at [35].

Although not taken into account as a form of credit, time spent in custody in relation to another offence, which is successfully appealed, may be taken into account where the sentence has been served under particularly onerous conditions. In R v Evans (unrep, 21/5/92, NSWCCA), whether the respondent was returned to custody was relevant to his rehabilitation and to an assessment of his culpability, since his “capacities of self-control had been weakened by the experience he had endured” through no fault of his own.

In R v Karageorge [1999] NSWCCA 213 it was held that the time spent in custody was referable not only to the offence, which was subsequently successfully appealed, but also to a different offence, for which the offender was sentenced. The case emphasises the prudence for defence representatives of ensuring bail is formally refused to enable the custody time to be “referable” to that offence.

Similarly, time spent in custody in relation to offences for which an offender is discharged or acquitted is not to be taken into account as a form of credit: Hampton v R at [27]; Rafaieh v R [2018] NSWCCA 72 at [74]. Bare reliance on a period of custody for an unrelated matter, without more, is extraneous to the exercise of sentencing discretion for other matters, particularly in the case of broken periods of custody: Hampton v R at [30].

Although statutory provisions in NSW confirm that time in custody relating to the instant offence is a mandatory factor to be taken into account on sentence, there is nothing requiring a judge to take custody for an unrelated offence into account: Hampton v R at [26], [28]; Rafaieh v R at [74]; ss 24(a), 47(3) Crimes (Sentencing Procedure) Act.

Pre-sentence custody served in protection

The courts no longer assume that being in protective custody will place an offender in a more onerous prison environment than that of the general prison population: Clinton v R [2009] NSWCCA 276. If an offender wants such a consideration taken into account, the offender should present evidence of it: R v Jarrold [2010] NSWCCA 69 [26]–[27]. Where an offender has spent a period of pre-sentence custody in protection which is more onerous, this may be given greater value than the actual time spent in custody: R v Rose [2004] NSWCCA 326. The reduction depends on the circumstances of the particular case.

The decision of R v Rose “is not authority for a mathematical approach to determining the relevance of time spent in protection”: Clinton v R at [21]. A mathematical formula is not appropriate as there are too many variables, there is not always a significant difference between being on protection and being part of the normal prison population and there may be some benefits from being on protection that offset some of the deprivations: at [25].

Form 1 offences and pre-sentence custody

Pre-sentence custody referable to a Form 1 matter “should normally be taken into account” by backdating the sentence for the principal offence to which the Form 1 is attached, because Form 1 matters “normally have an impact, sometimes a substantial impact on the sentence passed for the principal offence”: Sultana v R [2007] NSWCCA 107 at [15].

Immigration detention

A court may have regard to detention in an immigration facility notwithstanding an offender has been granted bail for an offence. The sentencing judge in R v Parhizkar [2013] NSWSC 871 took into account “in an unquantifiable sense” that the length of time the offenders were kept in immigration detention was “exacerbated by the fact that there have been pending criminal proceedings against them”: at [108]. On appeal, the applicant argued that he should have been given a quantified allowance for immigration detention: Parhizkar v R (2014) 245 A Crim R 515 at [69]. Basten JA noted at [70] that the argument was not drawn to the judge’s attention and that no evidence of the circumstances of the period in immigration detention was presented to the judge. Basten JA held (Price J at [93] and McCallum J at [98] agreed) that in those circumstances it could not be said the judge erred in the approach that was taken.

In R v Dadash [2012] NSWSC 1511, immigration detention after the offender was granted bail was taken into account as part of the backdating of the sentence.

In the ACT, immigration detention time linked to the offending is taken into account: Islam v R [2014] ACTCA 2 at [6]. The Crown conceded before the sentencing judge that the seven-month-period of immigration detention while Mr Islam was awaiting trial should be accounted for in determining the backdating of his sentence: at [7]. The backdating provision in s 63(2) Crimes (Sentencing) Act 2005 (ACT) uses the same expression — “held in custody in relation to the offence” — in s 24 Crimes (Sentencing Procedure) Act 1999 (NSW).

[12-520] Intervention programs

Section 24(b) Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to take into account the fact an offender has been the subject of an intervention order and “anything done by the offender in compliance with the offender’s obligations under the order”. Part 4 of the Criminal Procedure Act 1986 provides for the recognition and operation of intervention programs. According to s 346, an intervention program is “a program of measures declared to be an intervention program under s 347.” Clause 31 Criminal Procedure Regulation 2017 declares that the Circle Sentencing Intervention Program is an intervention program for the purposes of Ch 7, Pt 4 of the Criminal Procedure Act 1986: see Intervention programs at [5-430].

An accused person or offender may be referred to an intervention program:

  • as a condition of bail under the Bail Act 2013

  • with an adjournment and a grant of bail before a finding of guilt is made

  • where there is a finding of guilt and a dismissal of charges without a conviction under s 10 of the Crimes (Sentencing Procedure) Act, or

  • where sentence is deferred under s 11.

See Note to Ch 7, Pt 4 Criminal Procedure Act 1986.

Section 11(4) Crimes (Sentencing Procedure) Act permits the court to make an order that an offender may participate, or be assessed for participation, in a program for treatment or rehabilitation that is not an intervention program.

[12-530] Quasi-custody bail conditions — residential programs

Time spent in a residential program, either in conformity with a bail requirement or under a s 11 adjournment, may constitute a period of quasi-custody, which may be taken into account to reduce the sentence eventually imposed: R v Eastway (unrep, 19/5/92, NSWCCA); R v Campbell [1999] NSWCCA 76; R v Delaney (2003) 59 NSWLR 1; Kelly v R [2018] NSWCCA 44. This may be done by reducing or backdating the sentence: Reddy v R [2018] NSWCCA 212 at [31]. A failure of a court to take account of time actually spent in a residential program constitutes an error in the exercise of the sentencing discretion: Renshaw v R [2012] NSWCCA 91 at [29]; Hughes v R [2008] NSWCCA 48 at [38]. Where there is an evidentiary foundation for it to be taken into account, the sentencing judge may be obliged, in some circumstances, to have regard to it even when not specifically requested: Bonett v R [2013] NSWCCA 234 at [50]; see also Kelly v R at [48]–[49].

Residential rehabilitation programs that have constituted quasi-custodial conditions include Odyssey House, the Salvation Army’s Bridge Program, Guthrie House, Selah House, the Glen Rehabilitation Centre, ONE80TC (a Teen Challenge initiative), the Northside Clinic, Byron Private Treatment Centre, William Booth House and Bennelong Haven.

A reduction in sentence does not depend entirely on whether the residential program has been productive. The rationale for the allowance is the need to factor into the sentencing exercise the restriction on the offender’s liberty during the period of the program: Truss v R [2008] NSWCCA 325 at [22]; R v Marschall (2002) 129 A Crim R 381 at [30]; see also Hughes v R [2008] NSWCCA 48 at [38]; Kelly v R at [4], [11], [46]. Nor is the offender’s motive for undertaking the program a relevant consideration when determining entitlement to some credit as a result of being subjected to quasi-custody: R v Delaney at [23]. As it is invariably the offender who moves the court for an order to enable attendance at a program, such attempts at rehabilitation are to their credit: Reddy v R at [33].

To qualify for a discount on sentence the conditions on the program must closely resemble imprisonment and thus impose a form of punishment on the defendant. Whether the conditions imposed amount to quasi-custody is a question of fact: Kelly v R at [10], [50]; Bonett v R at [50].

Factors relevant to that determination include:

  • whether the course was residential: R v Eastway; Kelly v R at [11]

  • whether the environment is a disciplined one, and how strict that discipline is: R v Delaney at [22]; Kelly v R at [11]

  • whether the person is subject to restrictions and if so, the nature and extent of those restrictions: R v Campbell at [24]; Kelly v R at [3], [11]

  • whether the time spent in rehabilitation has been productive: Hughes v R; Kelly v R at [11].

If conditions amounting to quasi-custody are established, the extent to which the sentence should be adjusted is a matter of discretion for the sentencing judge: Kelly v R at [50]; Bonett v R at [50]. The discount given for time spent in a residential program does not need to be quantified: R v Sullivan [2004] NSWCCA 99 at [67]. However, a figure of between 50–75% of the period spent on the program has been allowed in a number of cases: R v Cartwright (1989) 17 NSWLR 243; R v Eastway; R v Douglas (unrep, 4/3/97, NSWCCA); Kelly v R at [51], [53]; Hughes v R at [38]. This figure may be reduced as the conditions in the program become less strict: R v Psaroudis (unrep, 1/4/96, NSWCCA).

MERIT — Magistrates Early Referral Into Treatment program

The completion of a MERIT program should not be equated with a period of quasi-custody: R v Brown [2006] NSWCCA 144. James J said at [59] that if any allowance was made “it would, in my opinion, only be a very small allowance”.

Hodgson JA said at [4] that completion of the program was a powerful consideration in the applicant’s favour. He went on to say:

I think there is public interest in having successful completion of such a program explicitly adverted to as a factor favourable to a defendant in the sentencing process, in order to encourage others to successfully complete such programs.

Drug Court

The approach to participation in the Drug Court program prior to being sentenced should be the same as when an offender has been on bail for a lengthy period with strict conditions: R v Bushara [2006] NSWCCA 8 at [28]. Participation in the Drug Court is not equivalent to imprisonment. It is not a form of pre-sentence custody that would require a sentence to be backdated. The fact of participation is simply another matter the court takes into account when considering the appropriate sentence without attributing to it “any mathematical equivalence that would have a direct bearing on the length of the sentence”.

See Diversionary programs on JIRS for further information on diversionary and intervention programs.

Other onerous bail conditions

Onerous bail conditions may be taken into account at sentence but there is no obligation to do so. It is a discretionary matter which depends on the circumstances of the individual case: R v Fowler [2003] NSWCCA 321 at [242]; R v Webb [2004] NSWCCA 330 at [18]; Hoskins v R [2016] NSWCCA 157 at [36]; Frlanov v R [2018] NSWCCA 267 at [24]; Banat v R [2020] NSWCCA 321 at [18].

The test of what is “onerous” or “stringent” seems difficult to satisfy. Delay combined with onerous bail conditions may constitute a form of punishment to be taken into account on sentence: see, for example, R v Khamas [1999] NSWCCA 436; see also Relevance of onerous bail conditions during delay at [10-530] Delay. Under the Bail Act 2013, bail conditions imposed for the purpose of mitigating an unacceptable risk may require the defendant to report or reside at a particular residence, or may include financial requirements (such as giving security) and non-association and place restriction conditions. Restrictive accommodation requirements will not necessarily amount to a form of quasi-custody: Bland v R [2014] NSWCCA 82 at [128]. In Banat v R the imposition of a curfew condition and the requirement for electronic monitoring were appropriately taken into account on sentence: at [25]–[27]. By comparison, in Frlanov v R the sentencing judge did not err by not taking into account the applicant’s daily reporting condition as that was not particularly onerous: at [26].

The nature of the offence and the purposes of punishment may determine whether bail conditions are taken into account upon sentence: R v Fowler at [242]. In R v Fowler the applicant argued that the sentencing judge had failed to take into account the lengthy period during which the applicant was subject to bail conditions (including reporting). However, the court held at [242] that while in an appropriate case the length and terms of an offender’s period on bail awaiting trial or sentence is relevant to determining the proper sentence, the weight given to such a matter will vary, depending upon other factors to be considered and what sentence is required in the particular case to address the purpose of punishment.

There is no specific formula for taking into account onerous bail conditions and delay. Nor is there a principle that dictates a reduction in sentence as a direct equivalent of a period of time spent subject to strict conditions on bail: Hoskins v R at [36]. It is enough for a sentencing court to make clear in its remarks that those factors have been recognised and taken into account. While in R v Cartwright the court gave the appellant credit for 75% of the time spent on bail, this figure has not been applied more generally.

Delay in proceedings

The length of time spent on bail due to delay in the proceedings may, similarly, be seen as a form of punishment sometimes referred to as a “penal consequence” already suffered by an offender that may be taken into account: R v Yeo [2005] NSWCCA 49 at [109]; R v Fowler [2003] NSWCCA 321 at [242]–[243].