Can Pre Sentence Custody Be Taken Into Account On Sentencing?

A New South Wales appeal court has delivered a significant reminder to judges and lawyers that time spent behind bars before sentencing must be properly recognised — especially when an accused person is later cleared of other charges that kept them in custody.

In the case of Hamilton v R [2016] NSWCCA 59, the NSW Court of Criminal Appeal overturned part of a young man’s prison sentence after finding he had effectively lost more than three months of credit for time already spent in custody as a result of being bail refused.

The ruling has renewed attention on one of the more complex and controversial aspects of criminal sentencing in NSW: how courts calculate “pre-sentence custody”, commonly referred to as “time served”.