Section 47(2)(a) provides the court may direct that a sentence is taken to have commenced before the date on which the sentence is imposed (“backdating”).

Section 47(3) provides, in deciding whether or not to make a direction under s 47(2)(a), and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence, or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.

When read with s 24(a), s 47(3) is accepted to mean a judicial officer may backdate a sentence of imprisonment to account for time spent in custody in relation to the offence: McMillan v R at [104]. Further, s 47(3) does not fetter the scope of the general discretion provided by s 47(2)(a): Marai v R [2023] NSWCCA 224 at [62] citing Refaieh v R [2018] NSWCCA 72 and Kaderavek v R [2018] NSWCCA 92.

Section 47(2)(b) provides for a court to direct that a sentence of imprisonment commence on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly consecutively) with some other sentence of imprisonment. See further Forward dating sentences of imprisonment at [7-547].

The principles concerning the application of ss 24(a) and 47(2)–(3) are generally well established, being derived from the common law: see R v McHugh (1985) 1 NSWLR 588. In Hunt v R [2021] NSWCCA 192, Wright J (McCallum JA and Rothman J agreeing) at [29] set out the principles as follows (some citations omitted):

There are some situations where it will not be appropriate or permissible to backdate a sentence and, in such cases, the sentence can be reduced to take pre-sentence custody time into account. For example, it is not possible to backdate some sentencing options.

Intensive correction orders (ICOs), community correction orders and community release orders each commence on the date on which they are made (ss 71(2), 86 and 96 respectively) and therefore cannot be backdated to take into account any period of pre-sentence custody.

In respect of ICOs, there is some debate regarding whether pre-sentence custody can be considered in setting the length of such an order: AM v R [2024] NSWCCA 26 at [46].

In DG v R (No 1) [2023] NSWCCA 320, the Court held that where an aggregate sentence of more than 3 years is considered appropriate and the offender has served some pre-sentence custody, it is an impermissible exercise of the sentencing discretion to reduce the term to 3 years or less, with a commencement date that is not backdated for the purpose of circumventing the ceiling at which an ICO becomes unavailable: [20], [22]–[25]; ss 24(a), 47(3), 68(3).

However, in Mandranis v R [2021] NSWCCA 97, decided before DG v R (No 1), the Court identified an injustice arising from a situation where an offender who has served a substantial period in pre-sentence custody may be forced to choose between seeking an ICO and having the sentence backdated due to the operation of ss 24(a), 47(3), 70 and 71: [55]–[56]. The Court held the solution to this problem involves a degree of departure from the three-step process in R v Zamagias [2002] NSWCCA 17 and that, provided the appropriate term of the sentence is determined before consideration is given to an ICO, it would, if an ICO is found to be appropriate, be acceptable for that term to be adjusted by the deduction of pre-sentence custody time so the ICO commences on the day it is made (see s 71) and is co-extensive with the term of imprisonment (see s 70): [61]; see R v Edelbi [2021] NSWCCA 122 at [79]–[80] and Zheng v R [2023] NSWCCA 64, also decided before DG v R (No 1), where this approach was adopted.

Whether, for example, reducing a 4-year sentence to 3 years by reason of 1 year of pre-sentence custody, and not precluding the sentence to be served by way of ICO under s 68(2), would be a legitimate exercise of the sentencing discretion was found not to arise in Mandranis v R and therefore did not need to be decided: [63]; see also N Adams J at [67].

R v Rose [2024] NSWCCA 193 is an example of a case where the Court found the sentencing judge properly directed herself regarding s 66 in accordance with Stanley v DPP [2023] HCA 3 in determining it was appropriate for a sentence of 2 years imprisonment to be served by way of an ICO, then, given an ICO must commence on the day it is imposed, appropriately reducing the term by pre-sentence custody: [63]–[64]; ss 24, 47(3); Mandranis v R at [61]; Zheng v R at [298]; R v Edelbi at [79]–[81]; see also Community safety at [3-632].

Taha v R [2022] NSWCCA 46 at [23] and R v Nykolyn [2003] NSWCCA 229 at [33] are examples of cases where the Court found it was open to the sentencing judge to reduce a sentence of imprisonment by pre-sentence custody.

Another example of a situation where it may not be desirable to backdate a sentence by the pre-sentence custody time is if it will result in a total sentence of more than 3 years, thereby depriving an offender of automatic release to parole: R v Deeble (unrep, 19/9/91, NSWCCA) at 3–4. See also Wiggins v R at [8]; White v R [2009] NSWCCA 118 at [12]; R v Leete [2001] NSWCCA 337 at [29]. Note: s 158 Crimes (Administration of Sentences) Act 1999, which relates to statutory parole orders, was amended in 2018, however the cases cited here may still be relevant.

Where an offender is given credit for a period of pre-sentence custody, this time should be reflected in both the head sentence and the non-parole period: R v Newman at [25]; R v Youkhana [2005] NSWCCA 231 at [10]; Taha v R at [24].

In R v Youkhana the Court held the judge erred by taking into account pre-sentence custody time in relation to the head sentence only, where the proper approach is to fix the sentence and the non-parole period, and then make allowance for pre-sentence custody so the offender gets the benefit of the whole period served: [10]. Similarly, in Taha v R, the Court held the judge erred by taking into account pre-sentence custody through a reduction of the non-parole period only: [23].

When sentencing an offender for multiple offences, pre-sentence custody is a relevant consideration when determining the total effective sentence: R v Bushara [2006] NSWCCA 8 at [22], [24], [35]. In R v Bushara, the failure to have regard to the effect of pre-sentence custody on the final ratio between the total effective sentence and the non-parole period meant the total effective sentence did not reflect the intended finding of special circumstances: [36]. The Court also observed that in some cases where there is a period of pre-sentence custody not reflected in the sentence, a court might have to find special circumstances to give effect to the statutory ratio: [37]; see also Kaderavek v R at [29]. See also [8-200] The principle of totality.

In Mattiussi v R [2023] NSWCCA 289, Hulme AJ (Adamson JA and Button J agreeing) at [70]–[73] made observations regarding the need for simplicity in the Crown’s provision of pre-sentence custody information to a sentencing judge. The date, or range of dates, to which a sentence should be backdated is an essential matter of which the judge should be informed in addition to the actual period of pre-sentence custody: [71]. It is unhelpful to only tell a judge there was a period of pre-sentence custody of a certain number of years, months or days: [73].

Where parole is revoked as a consequence of the commission of a subsequent offence, the court has discretion to backdate the sentence for the subsequent offence up to the date of revocation: Callaghan v R [2006] NSWCCA 58 at [21]–[23]. Simpson J said at [22]–[23]:

The exercise of this discretion has to be carried out in a principled way: Barnes v R [2014] NSWCCA 224 at [28].

This discretion has in some cases been framed around the notion of double punishment: Callaghan v R at [12]–[13]. By way of example, in R v DW [2012] NSWCCA 66, Basten JA stated in circumstances where the offences constitute the reason for the revocation of parole, in addition to allowing for the possibility the offender could have been re-paroled during the balance of the term for the earlier offence, it is important not to double count that the subsequent offence was committed whilst on parole for the first offence: [35].

Matters that have been considered in the exercise of the discretion include:

See also Marshall v R [2024] NSWCCA 194 at [1]–[4]; [45]–[58] for a further discussion of the considerations in the exercise of this discretion.

In a case where an offender has committed a subsequent offence while on parole, and is bail refused, the court should not treat parole as having been notionally revoked: R v Skondin [2006] NSWCCA 59 at [16]–[17]; see also, for example, Robb v R [2019] NSWCCA 113 at [13]–[18].

Where parole for a previous offence has been revoked, delay in the sentence proceedings for the subsequent offence may be a factor going towards the exercise of the discretion to backdate: White v R [2016] NSWCCA 190 at [8]; [118]–[123]; applied in R v Gray [2018] NSWCCA 241 at [66]; Tompkins v R [2019] NSWCCA 37 at [50]–[52]; [59], [62]–[65]; Browne v The King [2023] NSWCCA 218 at [47]–[49].

In White v R, Simpson J (Bathurst CJ agreeing; Basten JA dissenting) accepted that delay in sentencing in that case caused the offender significant disadvantage with respect to the commencement date of his sentence: [122]. Simpson J explained, by reason of s 47(4) and (5), the sentence could not have been post-dated because, notwithstanding the revocation of parole, the offender was eligible for parole at the time of sentence. As a result, the delay in sentencing extended the period of accumulation available to the sentencing judge: [119]. In those circumstances, it would have been appropriate for the sentencing judge notionally to determine at what point the offender could reasonably have expected to have been sentenced (having regard to the date of his plea) and to have directed the sentence commence no later than that date: [122].

Although time spent in custody due to the revocation of parole for an unrelated offence may not be taken into account (see above), where an offender has re-offended and breached other parole conditions, the exercise of the discretion to backdate is not always straightforward: see, for example, R v Kitchener [2003] NSWCCA 134 (a two-judge Bench case); R v Bojan [2003] NSWCCA 45 at [10]–[15]. In R v Kitchener, the offender’s parole was revoked by reason of the subsequent offence and a breach of a non-association condition of his parole. The Court held it was necessary to consider the offender’s hypothetical position had there only been a non-association breach in order to determine whether the revocation could “properly [be] seen as attributable” to the subsequent offence. In concluding the offender was likely to have been released to parole absent the subsequent offence, the Court intervened to adjust the commencement date: [56]–[57].

In R v Walker [2004] NSWCCA 230, which applied R v Kitchener, the offender’s parole was revoked for failing to report to Community Corrections, with the warrant for revocation executed upon her arrest for the subsequent offence. The Parole Board (as it then was) adjourned the application for parole review until proceedings for the subsequent offence were concluded, and the Court considered the offender’s hypothetical position had the Parole Board dealt with her application for review earlier, and concluded the commencement date ought be adjusted: [17]–[20].

When an ICO is revoked because of a subsequent offence, the court is required to take a similar approach in relation to the resulting time spent in custody to that taken with parole revocation: Edquist-Wheeler v R [2024] NSWCCA 49 at [41]–[43]; see above at Parole revoked as a consequence of a subsequent offence and Parole revoked as a consequence of breach of another condition of parole. In Edquist-Wheeler v R, where the offender’s ICO was revoked because of the fresh offence, the Court held the sentencing judge should have imposed a sentence allowing for greater concurrency with the revoked ICO, having regard to the criminality of both offences, to avoid the perception of the offender being doubly punished: [41]–[43].

If a court takes account of the whole period of pre-sentence custody, it is not appropriate to again take that pre-sentence custody into account when sentencing the offender for the second group of offences: R v Wood [2005] NSWCCA 159 at [5]; Martinez v R [2015] NSWCCA 5 at [32]–[35]; see also example of McMillan v R [2024] NSWCCA 83 at [107]. Where pre-sentence custody for other offences is difficult to quantify, it is necessary and appropriate for the sentencing remarks to be examined to see what allowance was made: McMillan v R at [105]; Huynh v R [2024] NSWCCA 61 at [27].

Where an offender is sentenced for one offence, time spent in custody referable exclusively to an unrelated offence, which has been successfully appealed, is not to be taken into account as a form of credit: Hampton v R [2014] NSWCCA 131 at [27]–[30]; see also Dib v R [2023] NSWCCA 243 at [52], [80]–[83], [102]–[104].

In Hampton v R (a five-judge Bench decision), the Court followed the line of authority established by R v Niass (unrep, 16/11/88, NSWCCA), and held bare reliance on a period of custody for an unrelated matter, without more, is extraneous to the exercise of the sentencing discretion, particularly in the case of broken periods of custody: [30]. In R v Niass, Lee CJ at CL said at 2:

Hampton v R has been applied in Court of Criminal Appeal decisions including Refaieh v R [2018] NSWCCA 72 at [73]–[74], SY v R [2020] NSWCCA 320 at [49]–[52], and Farrell v R [2020] NSWCCA 195 at [87].

In Refaieh v R, the Court held an offender granted bail for one offence is not in custody “in relation to” it for the purposes of s 47(3) if they are being held on remand for another unrelated offence: [44], [50], [56]. In that case¸ the unrelated charge was withdrawn and the Court found there is no overriding obligation to take into account custody that does not fall within the definition of being “in relation to” the subject offence, however accepted that it would have been open to the sentencing judge to have exercised the broad discretion under s 47(2) to backdate the sentence: [74], [82]; see also R v Karageorge [1999] NSWCCA 213.

Although not taken into account as a form of credit, time spent in custody in relation to another offence, which is successfully appealed, may be taken into account where the sentence has been served under particularly onerous conditions and that experience has a bearing on the offender’s subjective circumstances and rehabilitation: See, for example, R v Evans (unrep, 21/5/92, NSWCCA); Hampton v R at [29], [31].

Although time spent in protective custody, including on remand, is to be taken into account on sentence, a sentencing court should not automatically grant a reduction simply because the offender has been (or will be) on protection: Durocher-Yvon [2003] NSWCCA 299 at [23]–[24] cited in authorities including Clinton v R [2009] NSWCCA 276 at [24]; RWB v R [2010] NSWCCA 147 at [192]; Miller v R [2015] NSWCCA 86 at [31]; cf AB v R (1999) 198 CLR 111 at [105] (Kirby J). See further at Hardship in custody at [10-500].

Onerous conditions in custody owing to COVID-19 pandemic restrictions and lockdowns can be taken into account for the purposes of ss 24(a) and 47(3): Kljaic v R [2023] NSWCCA 225. Those provisions should not be construed so as to limit the words “any time” so that conditions during that period can not be taken into account by backdating beyond the actual period of pre-sentence custody: Kljaic v R at [36]. The flexibility inherent in the provisions indicates the legislative intention was that a sentencing judge should be able to take into account not only the actual length of time spent in pre-sentence custody but also occurrences and conditions in custody during that time: Kljaic v R at [23].

Pre-sentence custody referable to a Form 1 matter “should normally be taken into account” by backdating the sentence for the principal offence to which the Form 1 is attached, because Form 1 matters “normally have an impact, sometimes a substantial impact on the sentence passed for the principal offence”: Sultana v R [2007] NSWCCA 107 at [15].

A court may have regard to detention in an immigration facility notwithstanding an offender has been granted bail for an offence. In Marai v R [2023] NSWCCA 224, a sentence appeal for a Commonwealth offence, Sweeney J (Kirk JA agreeing; Fagan J agreeing except with regard to the extent of backdating) held, as the offender was in immigration detention at the request of the Commonwealth Director of Public Prosecutions, the time in detention should be taken into account and the sentence backdated pursuant to the general discretion in s 47(2): [95], [103]. In reaching this conclusion, her Honour observed it was not clear if s 16E Crimes Act 1914 (Cth) and ss 24 and 47(3) were intended to encompass immigration detention, however found it unnecessary to resolve the issue: [102].

Her Honour reviewed the NSW and interstate authorities on taking immigration detention into account on sentence at [65]–[82] and observed:

The NSW authorities reviewed were:

Sweeney J reviewed several interstate authorities at [69]–[82].

See also [16-015] Cth sentencing — Restrictions on sentences of imprisonment and commencement date.

Time spent in a residential rehabilitation program, either in conformity with a bail requirement or under a s 11 adjournment, may constitute a period of quasi-custody, which may be taken into account to reduce the sentence eventually imposed: R v Eastway (unrep, 19/5/92, NSWCCA); R v Campbell [1999] NSWCCA 76 at [24]–[25]; R v Delaney (2003) 59 NSWLR 1 at [24]–[25]; Kelly v R [2018] NSWCCA 44 at [8]–[10]; [46]–[47] see s 24(a)–(d). This may be done by reducing or backdating the sentence: Reddy v R [2018] NSWCCA 212 at [31].

A failure of a court to take account of time actually spent in a residential program constitutes an error in the exercise of the sentencing discretion: see for example Renshaw v R [2012] NSWCCA 91 at [29]; Hughes v R [2008] NSWCCA 48 at [38]. Where there is an evidentiary foundation for it to be taken into account, the sentencing judge may be obliged, in some circumstances, to have regard to it even when not specifically requested: Bonett v R [2013] NSWCCA 234 at [50].

Residential rehabilitation programs that have constituted quasi-custodial conditions include Odyssey House, the Salvation Army’s Bridge Program, Guthrie House, Selah House, the Glen Rehabilitation Centre, ONE80TC (a Teen Challenge initiative), the Northside Clinic, Byron Private Treatment Centre, William Booth House and Bennelong Haven.

A reduction in sentence does not depend entirely on whether the residential program has been productive as the rationale for the allowance is the need to factor into the sentencing exercise the restriction on the offender’s liberty during the period of the program: Truss v R [2008] NSWCCA 325 at [22] cited in Small v R [2018] NSWCCA 290 at [37]; see also R v Marschall [2002] NSWCCA 197 at [29]–[30]. However, it is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: Hughes v R [2008] NSWCCA 48 at [38] cited in authorities including Kelly v R at [11], [46]; see below.

The offender’s motive for undertaking the program is not a relevant consideration when determining entitlement to some credit as a result of being subjected to quasi-custody: R v Delaney at [23]. As it is invariably the offender who moves the court for an order to enable attendance at a program, such attempts at rehabilitation are to their credit: Reddy v R at [33].

Whether the conditions imposed amount to quasi-custody is a question of fact: Kelly v R at [10], [50]; Bonett v R at [50].

In Kelly v R, Garling J (dissenting as to whether the rehabilitation course undertaken by the offender did amount to quasi-custody and to backdate the sentence) at [11] set out the factors relevant to that determination, which include:

His Honour identified additional relevant indicia as to what amounts to quasi-custody at [13]. For an example of a court assessing these factors to conclude time spent in residential rehabilitation did not amount to quasi-custody, see La v R [2021] NSWCCA 136 at [51], [61]–[63].

If conditions amounting to quasi-custody are established, the extent to which the sentence should be adjusted is a matter of discretion for the sentencing judge: Kelly v R at [50]; Bonett v R at [50]. The discount given for time spent in a residential program does not need to be quantified: R v Sullivan [2004] NSWCCA 99 at [67]; cited in Small v R at [39]. However, a figure of 50% of the period spent on the program has been allowed in a number of cases: R v Eastway; R v Douglas (unrep, 4/3/97, NSWCCA); Kelly v R at [51], [53]; Hughes v R at [38].

The completion of a MERIT program should not be equated with a period of quasi-custody: R v Brown [2006] NSWCCA 144. James J said at [59] that if any allowance was made “it would … only be a very small allowance”.

Hodgson JA said at [4] that completion of the program was a powerful consideration in the offender’s favour and:

The Drug Court Act 1998 generally governs how an offender’s participation in the Drug Court program is to be taken into account on sentence (see s 12 Drug Court Act). In R v Bushara [2006] NSWCCA 8, the Court likened participation in the Drug Court program to being on bail for a lengthy period with strict conditions limiting freedom and other obligations: [27]–[28]. Participation is another matter the court takes into account when considering the appropriate sentence without attributing to it “any mathematical equivalence that would have a direct bearing on the length of the sentence””: R v Bushara at [26]–[28]; cf Other onerous bail conditions below.

Information regarding court-based and other diversionary programs is available on the Judicial Information Research System (JIRS).

Onerous bail conditions may be taken into account at sentence as quasi-custody but there is no obligation to do so; it is a discretionary matter which depends on the circumstances of each case: R v Fowler [2003] NSWCCA 321 at [242]; R v Webb [2004] NSWCCA 330 at [18]; Hoskins v R [2016] NSWCCA 157 at [36]; Frlanov v R [2018] NSWCCA 267 at [24]; Banat v R [2020] NSWCCA 321 at [18].

The offender bears the onus of establishing whether bail conditions amount to quasi-custody on the balance of probabilities: La v R [2021] NSWCCA 136 at [59]; R v Quinlin [2021] NSWCCA 284 at [88]. In La v R, the Court said all grants of conditional bail involve, or are highly likely to involve, some restriction, and noted in particular the effect of s 20A(2) of that the Bail Act 2013 (regarding the imposition of bail conditions): [56]. The duration of bail and any change in conditions must be identified with precision, but without more, such restrictions do not constitute quasi-custody: La v R at [57]–[58]. In R v Butler [2024] NSWCCA 133, the Court endorsed the above approach in R v Quinlin: the question is whether the conditions of bail “are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody”: [45].

The extent to which an allowance may be made for bail as quasi-custody is a discretionary decision: R v Quinlin at [89]; R v Butler at [46]. There is no principle that dictates a reduction in sentence as a direct equivalent of a period of time spent subject to strict conditions on bail: Hoskins v R at [36]. While in R v Cartwright (1989) 17 NSWLR 243 the Court gave the offender credit for 75% of the time spent on bail, this percentage has not been applied more generally.

The factual outcomes in cases considering bail as quasi-custody do not constitute binding authority, nor do they establish categories of cases in which allowances for quasi-custody on bail will or will not granted, but they can illustrate how the principles are applied: R v Butler at [47]. Examples of cases considering the issue of whether bail conditions amounted to quasi-custody include:

See also the cases considered in R v Butler at [48]–[53] and Relevance of onerous bail conditions during delay at [10-530] Delay.