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”.

The case centred on Barry Keith Hamilton, who was just 20 years old when he was sentenced in the District Court in 2015 for aggravated break and enter committed in regional NSW.

Hamilton had taken part in a break-in at a home in Coonamble in April 2014. During the offence, a window was smashed and approximately $700 was stolen. The offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of five years under NSW law.

Initially granted bail after being charged, Hamilton’s circumstances changed months later when he was arrested on a separate aggravated robbery allegation. Bail was refused on that unrelated charge in September 2014.

A few weeks later, on 21 October 2014, Hamilton pleaded guilty to the break-and-enter offence and was also refused bail for that matter. From that point onward, he remained in custody awaiting sentence while on remand.

When he eventually appeared before the District Court in February 2015, however, a critical issue emerged: exactly when should his prison sentence begin? October or September of 2014?

Ordinarily, Australian courts backdate sentences to account for time an offender has already spent in custody for the offence being sentenced. This principle exists to prevent prisoners from serving more time than intended by the court.

But during Hamilton’s sentencing hearing, confusion arose because part of his custody related to the separate robbery allegation that had not yet been finalised.

After discussions between lawyers and the judge, the parties agreed the sentence should begin on the day it was imposed — 6 February 2015 — rather than the earlier date when Hamilton had already been held in custody for the break-and-enter offence.

That decision effectively erased more than three months of custody from consideration.

The legal position became even more troubling later when prosecutors ultimately abandoned the unrelated robbery allegation altogether. In August 2015, the Director of Public Prosecutions “no-billed” the charge, meaning it did not proceed and he had ended up doing time in prison for an offence that was later withdrawn by police.

Hamilton had therefore spent months in jail awaiting sentence while also being held on a charge that was never pursued.

The Court of Criminal Appeal found that, in those circumstances, justice required his sentence to be recalculated.

Justice Christine Schmidt, writing for a unanimous bench that included Chief Judge at Common Law Derek Price Hoeben and Justice Harrison, accepted the Crown’s concession that the original sentence involved error.

The Court ruled Hamilton’s prison term should have commenced on 21 October 2014 — the date he was refused bail for the break-and-enter offence itself — rather than February 2015.

As a result, his sentence was quashed and replaced with a revised term of 34 months imprisonment commencing from October 2014. The adjustment meant Hamilton became eligible for parole immediately upon the appeal decision in April 2016.

The judgment highlights an important feature of NSW sentencing law that is often poorly understood outside legal circles.

Under the Crimes (Sentencing Procedure) Act 1999, courts are required to consider time spent in custody before sentencing. However, the law does not operate as a simple “credit system” where any period spent in jail automatically reduces future punishment.

Courts must determine whether the custody actually relates to the offence for which the offender is being sentenced.

That distinction can become highly complicated when an accused person is facing multiple charges at once, particularly where some matters are later withdrawn, dismissed or resolved differently.

The appeal court stressed that offenders should not receive what earlier cases have described as “credit in the bank” for unrelated custody. But equally, people should not lose credit for time genuinely spent behind bars awaiting sentence on the offence in question.

The case also exposed the practical risks that can arise when sentencing decisions are made by agreement between prosecution and defence lawyers.

Ordinarily, appeal courts are reluctant to allow parties to change positions later simply because a strategy proved unsuccessful. Courts generally expect litigants to stand by the way they argued their case at first instance.

However, the Criminal Appeal Court found this was one of those unusual situations where the “interests of justice” required intervention.

At the time Hamilton was sentenced, nobody knew the robbery allegation would later be abandoned. Once that occurred, the fairness of the original sentencing approach became difficult to defend.

Legal experts say the decision underscores how heavily sentencing outcomes can depend on procedural timing.

If Hamilton had been sentenced after the robbery charge was dropped, his sentence almost certainly would have been backdated from the outset. Instead, because events unfolded in a different order, he was initially disadvantaged by months.

The ruling also demonstrates the balancing act courts face when applying sentencing principles such as “totality”, which seeks to ensure offenders are not punished twice over for overlapping criminal conduct or custody periods.

In Hamilton’s case, the original sentencing judge had expressed concern about how the break-and-enter sentence would interact with the unresolved robbery matter. The appeal court ultimately concluded those concerns should not have prevented recognition of the custody already served.

The judgment has broader implications for criminal justice policy in NSW, particularly amid ongoing scrutiny of remand populations.

Statistics consistently show large numbers of inmates in NSW prisons are unsentenced detainees awaiting trial or sentence. Some remain in custody for lengthy periods before charges are finalised. In certain cases, allegations are later downgraded, withdrawn or dismissed entirely.

Critics argue that delays and bail refusals can produce unfair outcomes if pre-sentence custody is not carefully accounted for. Defence lawyers have long warned that accused persons can effectively serve “dead time” — periods in prison that are not fully recognised when sentences are eventually imposed.

Supporters of strict bail laws, however, argue community safety must remain paramount and that courts need flexibility when multiple charges are before the system simultaneously.

The Hamilton decision does not radically change sentencing law, but it reinforces an important principle: courts must ensure sentencing outcomes remain fair when circumstances shift after a person has already spent time in custody.

For ordinary members of the public, the case offers a rare glimpse into the technical machinery behind criminal sentencing — a process often shaped as much by timing, procedural rules and custody calculations as by the headline offence itself.

In the end, the Court of Criminal Appeal concluded Hamilton’s original sentence length was appropriate. What was wrong was the failure to properly recognise when his imprisonment had effectively begun.

That distinction proved crucial.

By correcting the commencement date, the court ensured the sentence reflected the actual time Hamilton had already spent behind bars — and prevented the justice system from imposing months of unintended additional punishment.

The case now stands as an important reminder that in NSW criminal law, when a prison sentence starts can be just as important as how long it lasts.