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In sentencing a defendant on various drug related charges, his Honour considered the effect of the 2020 amendment to s 159A(1) Penalties and Sentences Act 1992 in relation to the Court’s ability to make a pre-sentence custody declaration. In particular he endorsed the reasoning in R v Whitely  QSC 154, wherein Justice Bowskill determined that, where there is shared pre-sentence custody, as a result of the amendment it is “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”.
23 July 2021 (delivered ex tempore)
The defendant had pleaded guilty, at an early stage, to twelve offences. , . In the current proceeding, a sentence was being imposed for offences which he had committed while on parole. His previous sentence of imprisonment was still running and had an expiry date of 8 September 2021. , . His Honour was thus required to consider how to moderate the new sentence having regard to the amendment to s 159A(1) Penalties and Sentences Act 1992 in the context of a prisoner who had a lengthy and continuous accumulation of custody.
In 2020, s 159A(1) was amended by s 164 Justice and Other Legislation Amendment Act 2020, to remove the words “and for no other reason” which had previously applied to pre-sentence custody. The Cabinet Explanatory Notes indicate that this amendment was intended to enhance judicial discretion, reduce complexity and provide a sentencing court with increased flexibility in relation to the consideration of presentence custody.
Consideration of the effect of the 2020 amendment to s 159A(1) and whether the decision in R v Whitely  QSC 154 is correct
In moderating the sentence his Honour noted that the proper construction of the amendment had previously been considered by Justice Bowskill in R v Whitely  QSC 154. In that matter, her Honour held that, contrary to the conventional approach, it is now open for the Court to formally declare time served in custody under a previous sentence as time served under the sentence imposed by the Court. She observed that the wording of s 159A(1) post-amendment affords the Court with a “very broad” power to make a declaration (see R v Whitely, ).
Having regard to that dicta, and approving the approach taken in R v Whitely, his Honour however queried whether such an interpretation is an “unreasonable result” according to s 14B Acts Interpretation Act 1954. . In his considered view, whilst recognising that situations will arise where it would be unsuitable to declare time served concurrently on remand with the time served for a prior imposed sentence as imprisonment already served under the sentence being imposed, the ordinary meaning given to the words of s 159A(1) in R v Whitely cannot be categorised as bringing about an unreasonable result. .
His Honour acknowledged that the matter before him was not unique – it is often the case that offenders are sentenced for offences committed after the imposition of an earlier imposed sentence of imprisonment, which remains current. . He articulated:
“What would ordinarily have occurred prior to the amendment ... is that I would have imposed a term of imprisonment to be served cumulatively upon the term of imprisonment presently being served. However I would have significantly discounted the quantum of the head sentence of that term of imprisonment and the calculation of the parole eligibility date, such moderation or tempering being appropriate, bearing in mind that the sentence will involve an accumulation upon an already prolonged period of unbroken custody.” .
Having regard to the circumstances, in the end result his Honour declared 183 days as time already served under the sentences he imposed. . In doing so he noted that the discretion under s 159A actually enabled the court to preserve, for the purpose of general deterrence, a higher head sentence. As such it was his preferred course, as the former approach prior to the amendment would have resulted in a greater discounting of the head sentence in order to effect the moderation required, since without a declaration the sentence ultimately imposed would have had to be imposed cumulatively. .