Victorian Consolidated Legislation

Sentencing Act 1991 - SECT 18

Time held in custody before trial etc. to be deducted from sentence10

18. Time held in custody before trial etc. to be deducted from sentence10



(1) If an offender is-

   (a)  in respect of an offence sentenced to a term of imprisonment or to a
        period of detention in an approved mental health service under a
        hospital security order; or

   (b)  under section 31 ordered to serve the whole or part of a sentence or
        part sentence of imprisonment held in suspense-

any period during which he or she was held in custody in relation to-

   (c)  proceedings for the offence referred to in paragraph (a) or
        proceedings arising from those proceedings; or

   (d)  proceedings under section 31-

including any period pending the determination of an appeal, must be reckoned
as a period of imprisonment or detention already served under the sentence or
restored sentence unless the sentencing court or the court fixing a non-parole
period in respect of the sentence or the court making the order under section
31 otherwise orders.

(1A) If an offender is sentenced to a term of imprisonment and is remanded in
custody while the sentence is stayed while a home detention assessment report
is prepared on the offender, any period of time during which he or she is held
in custody on that remand must be reckoned as a period of imprisonment already
served under the sentence.



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(2) Subsection (1) or (1A) does not apply-

   (a)  to a period of custody of less than one day; or

   (b)  to a sentence of imprisonment or period of detention in an approved
        mental health service of less than one day; or

   (ba) to an intensive correction order; or





   (c)  to a sentence of imprisonment that has been wholly suspended or to the
        suspended part of a partly suspended sentence of imprisonment; or



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   (d)  to a period of custody previously declared under this section or
        section 35 as reckoned to be a period of imprisonment or detention
        already served under another sentence of imprisonment or detention or
        hospital security order imposed on the offender.





(3) If an offender was held in custody in circumstances to which subsection
(1) or (1A) applies, then-

   (a)  the informant or person who arrested the offender must, if present
        before the court, inform it, whether from his or her own knowledge or
        from inquiries made by him or her, of the length of the period of
        custody; or

   (b)  if that person is not present before the court, it may take and
        receive other evidence (whether oral or written and whether on oath or
        otherwise) of the length of the period of custody.

(4) If an offender was held in custody in circumstances to which subsection
(1) applies, then the court must declare the period to be reckoned as already
served under the sentence and cause to be noted in the records of the court
the fact that the declaration was made and its details.

(4A) If an offender was held in custody in circumstances to which subsection
(1A) applies, then the court, on making its decision as to whether or not to
make the home detention order, must declare the period to be reckoned as
already served under the sentence and cause to be noted in the records of the
court the fact that the declaration was made and its details.

(5) The person with custody of the record referred to in subsection (4) must
indorse on the warrant or other authority for the imprisonment or detention of
the offender particulars of the matters referred to in that subsection.

(5A) The person with custody of the record referred to in subsection (4A) must
indorse on the warrant or other authority for the imprisonment or detention of
the offender or on the home detention order particulars of the matters
referred to in that subsection.

(6) If a person charged with a series of offences committed on different
occasions has been in custody continuously since arrest, the period of custody
for the purposes of subsection (1) must be reckoned from the time of his or
her arrest even if he or she is not convicted of the offence with respect to
which he or she was first arrested or of other offences in the series.

(7) If on an application under this subsection the sentencing court is
satisfied that the period declared under subsection (4) or (4A) was not
correct it may declare the correct period and amend the sentence accordingly.

(8) An application under subsection (7) may be made by-

   (a)  the offender; or

   (b)  the Director of Public Prosecutions, if the sentencing court was the
        Supreme Court or the County Court; or

   (c)  the informant or police prosecutor, if the sentencing court was the
        Magistrates' Court.

Subdivision (1A)-Indefinite sentences