30 Jun

Pre-sentence custody declaration – Case Note

The Queen v Whitely [2021] QSC 154 relates to recent amendments which affect the Court’s ability to make a pre-sentence custody declaration where there is shared pre-sentence custody. Her Honour, Justice Bowskill, articulates the proper construction of section 159A(3B) of the Penalties and Sentences Act 1992.

The reasoning of Her Honour has subsequently been adopted by His Honour Justice Henry in the decision of R v Stewart [2021] QSC 187. See our Case Note.

Pre-sentence custody declarations

Where a person is remanded in custody the Court must take into account the time the person has spent in custody awaiting trial or sentence. Queensland Corrective Services produces a “pre-sentence custody certificate”, which allows the court to make a “pre-sentence custody declaration”, effectively reducing the sentence by the period already served.

If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.

Section 159(1) Penalties and Sentences Act 1992

In 2020, section 159A(1) was amended by s 164 of the Justice and Other Legislation Amendment Act 2020, to remove the words “and for no other reason” which previously applied to pre-sentence custody. 

The inclusion of those words meant that where, for example, an offender was held on remand for the offences being dealt with at the sentencing hearing, as well as other offences not being dealt with at that time, no formal pre-sentence custody declaration of time served could be made under s 159A. 

The question which arose, is whether, as a result of the amendment to section 159A(1), it was open for the court to formally make a pre-sentence custody declaration for the time the offender has been held in custody, even where that is in respect of a previous sentence of imprisonment, as opposed to being held on remand for the present or other offending.

Justice Bowskill determined that it is open for the Court to formally declare the time an offender has been remanded, regardless of whether the offender is on remand or serving a sentence.

I observe that the fact that the Court can now declare time served in custody, under a previous sentence, as time served under the sentence imposed by the Court obviates the need to ameliorate, to quite the same extent, the otherwise appropriate head sentence. This has the positive consequence of not distorting the sentence imposed, the explanation for which may not be apparent without consideration of the sentencing remarks. 

Her Honour, Justice Bowskill at 19


Whitely was sentenced for one count of trafficking in dangerous drugs between 31 March to 9 April 2020, as well as some summary offences including possession of scales and a pipe. 

Whitely was sentenced in the District Court on 5 July 2018, for supplying drugs and sentenced to 18 months’ imprisonment, with immediate release on parole. 

On 14 December 2018, he was sentenced in the Magistrates Court for a significant number of drug offences. Among other penalties, he was sentenced to six months’ imprisonment, cumulative on the previous sentence, and given a parole eligibility date of 14 February 2019.  He was released on parole on 29 April 2019. 

The trafficking allegation was therefore committed while on parole.

By operation of s 156A of the Penalties and Sentences Act, because the trafficking offence was committed while on parole, the sentence must be ordered to be served cumulatively upon the sentence he was serving (the nine months imposed by the Magistrates Court, the full time date for which is 11 August 2021). 

Whitely had been held in custody for a period of 13 months, much of which was attributable to the breach of parole.  Her Honour held that it was not appropriate, as part of imposing a just sentence, to declare all of that time as time served under the sentence to be imposed, because the cause of it was breaching parole, and the commission of other offences, at separate times.  In the end result the Court declared eight months of pre-sentence custody. 


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