Queensland Consolidated Acts

PENALTIES AND SENTENCES ACT 1992 - SECT 159A

159A Time held in presentence custody to be deducted

(1) 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.

(2) Subsection (1) does not apply to—

(a) a period of custody of less than 1 day; or

(b) imprisonment of less than 1 day; or

(c) imprisonment that has been wholly suspended; or

(d) the suspended part of imprisonment partly suspended.

(3) If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A) , the sentencing court must, as part of the sentencing order—

(a) state the dates between which the offender was held in presentence custody; and

(b) calculate the time that the offender was held in presentence custody; and

(c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.

(3A) Subsection (3B) applies if—

(a) an offender was held in custody in circumstances to which subsection (1) applies (
"presentence custody" ); and

(b) the sentencing court orders that the time, or part of the time, the offender was held in custody is not to be taken to be imprisonment already served under the sentence.

(3B) The sentencing court must, as part of the sentencing order—

(a) state the dates between which the offender was held in presentence custody; and

(b) calculate the time that the offender was held in presentence custody; and

(c) declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.

(3C) If an offender was held in presentence custody and the sentencing court makes a declaration under subsection (3) (c) or (3B) (c) , the sentencing court must cause the chief executive (corrective services) to be advised in writing of the declaration and its details.

(4) If—

(a) an offender is charged with a number of offences committed on different occasions; and

(b) the offender has been in custody since arrest on charges of the offences and for no other reason;

the time held in presentence custody must be taken, for the purposes of subsection (1) , to start when the offender was first arrested on any of those charges, even if the offender is not convicted of the offence for which the offender was first arrested or any 1 or more of the number of offences with which the offender is charged.

(4A) To help the sentencing court for the purposes of subsections (3) and (3B) , the prosecuting authority must give to the court a presentence custody certificate.

(5) If the sentencing court is satisfied that the time declared under subsection (3) was not correct, it must—

(a) declare the correct time; and

(b) amend the sentence accordingly; and

(c) cause the chief executive (corrective services) to be advised of the amendment.

(6) An application for a declaration under subsection (3) , (3B) or (5) may be made by—

(a) the offender; or

(b) the prosecuting authority; or

(c) the offender and the prosecuting authority jointly.

(7) If an application for a declaration under subsection (5) is made by the offender and the prosecuting authority jointly, the sentencing court may make the declaration having regard to written materials and submissions before it and without requiring the attendance of the parties.

(8) Subsection (7) applies only if—

(a) the parties propose in the joint application that the declaration be made having regard to written materials and submissions before the court and without the attendance of the parties; and

(b) the application is accompanied by a draft order and written submission in support.

(9) If the sentencing court decides that the application is inappropriate for decision without an oral hearing, the court—

(a) must immediately notify the parties to the application of the decision by telephone or in some other way; and

(b) may set a date for hearing.

(10) In this section—

"presentence custody certificate" means a certificate, in the approved form, signed by the chief executive (corrective services), an authorised corrective services officer or the commissioner of the police service, that—

(a) states the offence or offences for which the offender was held in custody; and

(b) states the dates between which the offender was held in custody for each of those offences; and

(c) calculates the time that the offender was held in custody.

"proceedings for the offence" includes proceedings that relate to the same, or same set of, circumstances as those giving rise to the charging of the offence.

"prosecuting authority" means—

(a) if the sentencing court is the Supreme Court or a District Court—the director of public prosecutions; or

(b) if the sentencing court is a Magistrates Court—the prosecutor.