C.01.01.R7 Determining / Applying Pre-Sentence Detention (Remand) (National Requirement)

1. Ensure there is an up to date record of the total amount of time spent on pre-sentence detention maintained on IOMS.
2. Pre-sentence detention time is the number of days a prisoner is detained in a prison, a police jail, a hospital or a Child Youth and Family Service / Social Welfare Residence under a Court Order (not just under arrest) at “any stage of the proceedings” leading to his/her conviction or sentence.
3. For the purpose of calculating key dates and non parole period of each sentence of imprisonment (including a notional single sentence) and the prisoner’s Statutory Release Date and Parole Eligibility Date, the prisoner is deemed to have been serving the sentence during any period of applicable pre-sentence detention.
4. In order to determine the amount of pre-sentence detention applicable to each sentence (ie whether it was time spent in custody “at any stage of the proceedings”) the “start date” for each of the proceedings must be determined. For each individual offence (CRN) that results in a sentence, the “start date” or Judicial Proceedings Date (JPD) is the date an information or charge is laid in Court for that offence.
5. Attendances by an offender at court while on bail are not a form of pre-sentence detention and are not to be considered as such. 
6. It is important to note that any time spent in pre-sentence detention between the earliest JPD and the date the offender is sentenced for that offending will apply to that sentence regardless of whether the CRN or the offence changes during that time. 
   

(See all examples for exceptions to the above).

For example:

When a prisoner is sentenced, the amount of pre-sentence detention applicable to each sentence must be deducted as follows:

1. When the prisoner is subject to 2 or more concurrent sentences:
   • The amount of pre-sentence detention applicable to each sentence must be determined and
   • The amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.
2. When the prisoner is subject to 2 or more cumulative sentences that make a single notional sentence, any pre-sentence detention time that relates to the cumulative sentences may be deducted only once from the single notional sentence.
3. When a prisoner is already subject to a full time custodial sentence, that prisoner cannot concurrently accumulate pre-sentence detention time.

Other Examples:

Example 1

• An offender is charged with separate offences of Assault and Wounding with Intent to Injure on the same date.
• She / he is bailed on the Assault charge and is remanded in custody on the Wounding with Intent to Injure charge.
• The offender spends 120 days on remand.
• When the charges come to court the offender is acquitted of the Wounding with Intent to Injure charge, but receives a 3 month sentence for the Assault charge.

In this instance the prisoner would have the 120 days taken off the SRD and the SED of the 3 month sentence and would consequently be released immediately.

This is because the number of days spent on pre-sentence detention between the JPD and sentencing applies, regardless of whether the offender was remanded in custody on that particular charge or not.

Example 2

• An offender is remanded in custody on 1 February 2002 on Assault and Injuring with Intent to cause GBH charges.
• On 1 August 2002, the offender is sentenced to 3 months imprisonment on the assault charge and remains on remand for the Injuring with Intent to Cause GBH charge.
• On 1 February 2003 the offender is sentenced to 4 years on the Injuring with Intent to Cause GBH charge.

The application of the pre-sentence detention time in this instance would be as follows:

• The 6 month period from 1/02/02 to 1/08/02 would be applied to the 3 month sentence (meaning that the prisoner would effectively have served that sentence and would immediately “revert to remand”).
• The period of a year from 1/02/02 to 1/02/03 would be applied to the 4 year sentence.

This is because the number of days spent on pre-sentence detention between the JPD and sentencing applies, even if some of this period has already been applied to a previous sentence.

Example 3

• An offender is remanded in custody on a Burglary charge on 1/08/02.
• On 1/10/02 the offender commits a further offence and is charged with Wounding with Intent to Injure.
• She / he appears in court that day (1/10/02) and is remanded in custody on both charges.
• On 1/11/02 the offender receives a 2 year sentence for the Burglary charge and a 6 year sentence for the Wounding with Intent to Injure charge.

The application of the pre-sentence detention time in this instance would be as follows:

• The 2 month period from 1/08/02 to 1/10/02 and the 1 month period from 1/10/02 to 1/11/02 would both be deducted from the 2 year sentence.
• The 1 month period from 1/10/02 to 1/11/02 would be deducted from the 6 year sentence.

Only the 1 month period is deducted from the 6 year sentence because those “proceedings” (the charge for the violent offending) did not “start” until 1/10/02.

Example 4

Application of pre-sentence detention / remand time when an offender is sentenced to the same term (length) of imprisonment, on the same day, for a number of offences.

• When an offender is received who is sentenced to the same term (length) of imprisonment for a number of offences on the same day, (on the same warrant) the JPDs of those offences will need to be adjusted in IOMS to all match the earliest JPD.

Example 4a

• An offender is sentenced on CRN 1 Burglary, CRN 2 Theft, CRN 3 Burglary and CRN 4 Burglary to 4 months on 1 July 2002.
• The JPD for CRN 1 = 01/06/02, CRN 2 = 01/06/02, CRN 3 = 15/06/02 and CRN 4 = 20/06/02.
• The system will calculate the number of days between the JPD and the sentencing for each offence.
  ie: CRN 1 = 30 days, CRN 2 = 30 days, CRN 3 = 16 days and CRN 4 = 11 days.
• Unless the JPDs on CRNs 3 & 4 are adjusted to match the earliest JPD, the least number of remand days (the 11 days on CRN 4) will ‘dictate’ the actual PED, SRD and SED (and the offender will not receive credit for the 30 days spent on remand on CRNs 1 & 2).
• The JPDs for CRNs 3 & 4 should be adjusted to 01/06/02, so that 30 days is applied to all of those CRNs.
• This rule applies within each ‘group’ of sentences of the same length imposed on the same day, but doesn’t apply to sentences of different lengths imposed on the same day or sentences of the same length on separate warrants.

Example 4b

• The offender in the example above is also sentenced on 1 July to 6 months on CRN 5 Using a Doc, CRN 6 Using a Doc, CRN 7 Using a Doc.
• The JPDs will need to be adjusted in IOMS to match the earliest JPD of that group of offences on the same warrant, but not the earliest JPD of all the offences the offender was sentenced for that day.

Example 4c

• If the earliest JPD within this group of “Using a Doc” offences (CRNs 5 to 7) was 15/06/02, then the JPDs for all three of these CRNs should be adjusted to 15/06/02.
• The JPDs for these offences would not however be adjusted to 1/06/02 (the earliest overall JPD for all the offences the offender was sentenced for on that day).

Example 5

• An offender is remanded in custody on 1/2/93 for 7 days on a Burglary charge.
• The offender is then sentenced to a community based sentence.
• On 1/4/93 the offender is charged with assault and is remanded in custody.
• On 1/5/93 the offender is sentenced to 1 years imprisonment for the assault.

The application of the remand time in this instance would be as follows:

• The 1 month period from 1/4/93 to 1/5/93 will be deducted from the 1 year sentence.
• The 7 day period is not included in the remand time because the stage of the proceedings had not commenced until after this remand period. If the offender had been charged with the assault offence before the 1/2/93 the 7 day period would be included.

Example 6

Application of remand time spent in a DSW facility – Offenders sentenced after 30 June 2002.

• In calculating the key dates of an offender sentenced after 30 June, they are entitled to credit for the entire period spent in the DSW facility on remand prior to sentencing; both any remand days that accrued prior to 30 June 2002 and the days that accrued afterwards.
• The remand days should not be divided into two periods and only the second period (the days accrued after 30 June 2002) taken into account in calculating the key dates.
• If this were done, it would mean that an offender sentenced shortly after 30 June would be disadvantaged, because their remand time will have been accrued prior to 30 June.

Example:

Example 7

• An offender is sentenced on CRN 1 for Assault to 4 months home dentention.
• Prior to sentencing he spent 30 days in prison on remand.
• After serving on month (30 days) of the home detention sentence, the offender breaches his home detention conditions and is arrested with bail declined.
• At this time the offender is charged with an additional offence, CRN 2 for, for breaching his home detention.
• The offender serves a further 20 days on remand prior to sentencing.
• At sentencing the offender is re-sentenced on CRN 1 and his home detention sentence is cancelled and is replaced with a 6 months imprisonment.
• The offender is further sentenced to 6 months on CRN 2.
• The JPDs on CRNs  1 & 2 should not be adjusted to match the earliest JPD date as there are unique incidents with CRN 2 occuring after CRN 1 was first sentenced.
• The original remand time accrued prior to the original sentencing (30 days) plus the time spent on remand prior to re-sentencing (20 days) should be removed from the end sentence of CRN 1.
• However, only the second amount of remand time (20 days) should be removed from CRN 2.
  
  This is because if an offender has served time in prison on remand and then is sentenced to a community based sentence and then they breach that sentence, if they are re-sentenced to imprisonment, any remand time accrued prior to the original sentencing and community based sentence order, can only be allocated to the original charge.
  
  Any subsequent charge relating th the breach of the community based sentence can not have remand time, that was accrued prior to the original sentence, removed from it.

Notification on Warrants

1. Where there are several warrants for one prisoner the number of remand days has to be entered on each separate warrant. To ensure that this does not cause confusion where remand days apply to more than one warrant the warrant should be cross referenced.
2. For example, if a prisoner has served 20 days on remand but has 4 separate warrants, 20 days will need to be entered on each warrant. However, to ensure that this is not interpreted as 80 days in total, the Prison Manager should also note on the warrant "20 days remanded in custody. These 20 days also apply to CRN/Warrant (number) for the sentence of ...".

Notification to prisoners

• A copy of each warrant with the appropriate days recorded, together with a copy of the Notification of Review of Remand Time, is to be handed to the prisoner as soon as practical.

Review by prisoner

1. On receiving a request from a prisoner to review the number of remand days the unit manager will:
   
   • Record the details of the review in a register.
   • Collate data relating to the calculation of remand time.
   • Review the number of days.
   • Forward all documentation, together with a recommendation, to the Prison Manager.
     
2. On receiving a request from a prisoner to review the number of remand days the Prison Manager will:
   
   • Review all the data relating to the calculation of the remand time.
   • Determine whether the number of days is correct.
   • Inform, in writing, the prisoner, unit manager and receiving office of outcome.
     

Where the prisoner still disagrees with the number of days she / he may apply to the court that imposed the sentence for a review.