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Pre-Sentence Custody and Other Constraints on Liberty

NCJ Number
Andrea Hadaway; Hugh Donnelly
Date Published
May 2005
18 pages
This paper identifies and discusses issues pertinent to sentencing in New South Wales (Australia) that provides for reductions in formal sentencing due to periods of presentence custody and other presentencing constraints on liberty.
Two basic issues that arise in this task are the time periods that should be taken into account and how the time should be measured in the context of the sentencing option selected. Regarding legal mandates for courts to engage in this sentencing calculation, the relevant principle of common law is that allowance be made for presentence custody, but only in circumstances where such presentence custody is exclusively related to the crime for which the offender is being sentenced. This paper notes, however, that the common law is incomplete, since presentence custody may pertain to two discrete episodes of offending. Another circumstance under which time in custody is a factor in decisionmaking is when the Parole Board revokes parole as a consequence of the commission of a second offense. The issue is whether the time in custody for a parole violation should be deducted from the sentence for the second offense. Other issues discussed in this paper are how time in presentence custody should be handled when there are two offenses and two sentences involved; whether time in presentence custody applied to a conviction successfully appealed can then be transferred to a sentence for another crime; backdating rather than discounting a sentence; whether presentence protective custody can be given greater value than the actual time in custody; consideration of onerous bail conditions; and the value given to presentence custody in a residential program. For these various circumstances, this paper reports the law as determined by the New South Wales Court of Criminal Appeal. 158 notes