Area of Law – Sentencing

An Article about Remand prior to sentencing in criminal matter

SENTENCING – presentence detention
S 18(1) of the Sentencing Act 1991

“(1) If an offender is sentenced to a term of imprisonment, or to a period of detention in an approved mental health service under a hospital security order, in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings (including a period pending the determination of an appeal) must, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders, be reckoned as a period of imprisonment already served under the sentence”

Section 18 (1) applies only where held in relation to only one matter. In other cases the section is silent and a Court was not only empowered but obliged as a matter of justice to take presentence detention into account.

R v Renzella (1997) 2 VR 88

Where a new single non-parole period is imposed for further offending the Judge should reduce the head sentence and non-parole date accordingly. They should not just make an order declaring the pre-sentence detention

R v Stares (2002) 4 VR 314

The first declaration of PSD continues to operate notwithstanding any later declaration. It is for the Correctional authorities to aggregate the two periods of PSD declared.

R v Stares (2002) 4 VR 314

It is a sentencing error to make a declaration of PSD under section 18(4) when passing a wholly suspended sentence

DPP v Singh (1998) 106 A Crim R 321 at para [45]

In custody from 24 May 2001, when he was charged with attempted murder and taken back into custody, and 29 November 2001 when he was arraigned and pleaded guilty to kidnap. On appeal conceded that when pleaded to kidnap that time ought to have been taken into account for purpose of exercising discretion as to appropriate sentence.

The Court of appeal decided that of the 189 days three months should be counted as time served.

R v Chimirri VSCA No 85 of 2003

Not a prison but can be PSD

Hunt, C.J. at CL equated a period of time in which a prisoner under the control of Federal police and assisting them with their inquiries as akin to pre-sentence detention

R v Cartwright (1989) 17 N.S.W.L.R. 243 at 258-9.[1]

Breach of parole

Dead time that served because theses offence breach parole can and should be taken into account

R v Smith [2006] VSCA 23 (15 February 2006)

PSD effects both total effective sentence and non-parole period

First, this Court in Renzella[4] and Stares[5] considered that the pre-sentence detention, although not giving rise to the making of a formal declaration under s.18(1) of the Sentencing Act, nevertheless must be taken into account as a matter of justice in determining the total effective sentence and the non-parole period.

R v Smith [2006] VSCA 23 (15 February 2006)

 

Date: 09/01/2009