In R v Stewart  QSC 187, His Honour, Justice Henry looks at the issue of where there is shared pre-sentence custody and whether it is open to the court to declare the time held, even where that is in respect of a previous sentence.
The case considers the proper interpretation of section 159A(1) of the Penalties and Sentences Act 1992. His Honour adopts the reasoning of Her Honour, Justice Bowskill in R v Whitley  QSC 154. See Case Note.
Mr Stewart entered a plea of guilty to 12 offences. The most serious was the possession of a dangerous drug over the schedule amount. Some of the offending was while on bail.
At the time he committed the offences, Stewart was on parole, having been sentenced to three years imprisonment for trafficking in February 2019. By the time of the sentence there was 412 days of shared pre-sentence custody.
Section 159A amendment
Section 159A was amended by section 164 of the Justices and Other Legislation Amendment Act 2020 and now read “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.”
Prior to the amendment, after the words “proceedings for the offence”, there used to appear the words “and for no other reason”. In R v Whitely  QSC 154, Justice Bowskill concluded, by reason of that amendment, that it is now “open to the Court to formally declare 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”.
Many criminal lawyers understood that the amendment was calculated at dealing with the situation where an offender is sentenced in respect of only some of a broader number of offences for which the offender has been held in custody on remand.
I respectfully agree that the ordinary meaning of the words of s 159A(1) as amended has that effect. Minds may differ as to whether the legislature intended to give rise to such a potential effect and whether that effect is, in the sense contemplated by s 14B of the Acts Interpretation Act, an unreasonable result.Justice Henry at 30
In reaching the above position His Honour had regard to extrinsic material such as the first and second reading speech together with the explanatory note.
Moderation of sentence
What would ordinarily have occurred prior to the amendment, in a case of shared pre-sentence custody is that the Court would have imposed a term of imprisonment to be served cumulatively upon the term of imprisonment presently being served.
The Court would have significantly discounted the head sentence of that term of imprisonment and the calculation of the parole eligibility date. Such moderation or tempering being appropriate, given that the sentence would involve an accumulation upon an already prolonged period of unbroken custody.
That discounting process is sometimes characterised as being a product of the totality principle. It may just as easily be explained as consistent with the process of arriving ultimately at a just sentence.Justice Henry at 39
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