When Rehabilitation Feels Like Prison: Assessing Quasi-Custody in Australian Courts
When offenders undertake full-time residential rehabilitation or endure strict bail conditions, courts face a nuanced challenge: how should such non-custodial yet highly restrictive environments be recognised at sentence? In response, Australian courts have developed the doctrine of “quasi-custody”, acknowledging periods where an offender’s liberty has been curtailed in ways akin to imprisonment, even though they were technically at liberty.
This article explores the evolution and application of quasi-custody across Australia, with a focus on how sentencing courts weigh the punitive character of rehabilitation against the community interest in promoting genuine reform.
I RELEVANT AUTHORITY ON QUASI-CUSTODY
There is significant authority arguing towards that time spent on bail in a quasi-custody rehabilitation program may be relevant in mitigation; in particular, this period is considered pertinent to assessing the offender’s prospects of rehabilitation.[1] That issue arose directly in Akoka v The Queen [2017] VSCA 214, where a specific complaint was made that the sentencing judge had failed to properly take into account 12-months that the appellant had spent in a drug residential facility. In allowing the appeal, the Victorian Court of Appeal followed the approach in R v Delaney (2003) 59 NSWLR 1 and detailed how, and in what way, residential rehabilitation may be taken into account at sentencing:
[95] To date, this Court has not been required to directly consider how the punitive nature of residency at a rehabilitation facility is to be taken into account in the exercise of the sentencing discretion and, in particular, whether the approach adopted by the New South Wales Court of Criminal Appeal and the Supreme Court of the Australian Capital Territory should be followed in Victoria.
[96] The punitive nature of time spent as a resident at a rehabilitation facility has been considered in Victoria in the context of bail conditions. In R v Robinson (2004) 11 VR 165, Maxwell P and Redlich JA described a set of bail conditions – which included requiring the offender to remain as a resident at a rehabilitation facility and participate in drug rehabilitation – as a severe restriction on his freedom of movement and association. They also held that it should not matter greatly that the conditions of bail were put forward by the offender's lawyers for the purpose of avoiding his incarceration, because “that may be exactly the incentive needed for [the offender] to confront the need to escape from addiction.”
[97] The approach of the New South Wales Court of Criminal Appeal involves taking into account time spent as a resident in a rehabilitation facility as time spent in “quasi-custody”.
[98] In R v Eastway (CCA, unreported, 19 May 1992), the offender, who had pleaded guilty to a drug trafficking offence, was sentenced to two years and eight months' imprisonment. The sentencing judge gave him a credit of 14 months for the time he had resided at Odyssey House “as if he had spent [that time] in custody”. This represented an allowance of around 50 per cent of the period of two years and three months the offender had spent as a resident at Odyssey House. The New South Wales Court of Criminal Appeal dismissed the Crown's appeal against the sentence. Hunt CJ at CL (with whom Gleeson CJ and Mathews J agreed) said the following in relation to the credit given by the judge:
“The evidence before the judge shows that, although there are no locked doors, the programme does not permit a resident to leave the Odyssey House premises for some nine months except for court appearances and to satisfy bail reporting requirements. Family visits are then permitted at Odyssey House itself, and next home visits are permitted provided that the resident is accompanied by a minder. … [A representative of Odyssey House] told the judge that, in his opinion, it is harder to be in Odyssey House than to be in gaol because of the discipline, the structure, the demands, the expectations and the hard work involved in the programme.”
With due respect, I think that is overstating the position to some extent. There is surveillance, and there is a system in place where defaulters who are on bail are immediately reported to the police. But the fact remains that any resident on bail is free to leave Odyssey House at any time, although the almost inevitable consequence of doing so is that he will then be returned to custody in gaol. There is nevertheless a real distinction.
[100] In R v Campbell [1999] NSWCCA 76, Kirby J (Grove J agreeing) considered the failure of a sentencing judge to take into account time spent by an offender undergoing residential rehabilitation and held that “[i]t was appropriate that the [offender] should have received recognition, and credit for the time spent in rehabilitation”. After referring to the credit of around 50 per cent given in R v Eastway (CCA, unreported, 19 May 1992) and noting that in some other cases the proportion has been as high as 75 per cent, Kirby J said the following:
“Here [the sentencing judge] did not advert to this aspect, although unquestionably his Honour was aware that the [offender] had undergone rehabilitation. It is not apparent from his remarks on sentence that credit was given to the applicant for time spent in rehabilitation. This was an important matter which ought not to have been left to inference. Therefore, I am prepared to find there was error, justifying intervention by this Court, and the setting aside of the sentence”.
[101] In R v Delaney (2003) 59 NSWLR 1, James J (with whom Santow JA agreed) held that the sentencing judge had erred in refusing to take into account the time the offender had spent undertaking residential rehabilitation programs. James J referred to evidence of the strict discipline expected of people who entered the programs and held that “the conditions of the residential programs in which the [offender] was participating amounted to conditions of quasi-custody”. James J said the following:
“If the [offender] was participating in programs the conditions of which amounted to conditions of quasi-custody, then the [offender] should not, in my opinion, be disentitled from obtaining a credit in sentencing, by reason of the circumstance that part of his motivation for undertaking the programs might have been to create a favourable impression at any sentence hearing. The [offender's] motive for undertaking the programs might be relevant in the assessment of the applicant's prospects of rehabilitation but in my view it is not relevant in determining whether he should be entitled to some credit in sentencing, on the basis that he has already undergone a kind of punishment by being subjected to quasi-custody.”
[102] In Renshaw v R [2012] NSWCCA 91, Hoeben JA (with whom RS Hulme J and Fullerton J agreed) said the following about the sentencing judge's approach to the time spent by the offender in “quasi-custody”:
“The [offender's] attendance at the rehabilitation centre, gave rise to two issues: Firstly, the positive effect of the rehabilitation and secondly, the time actually spent at the rehabilitation centre. His Honour specifically took into account the first of those issues, but made no mention of the second. I infer that because it was not expressly drawn to his attention and because he failed to make any reference to it, that his Honour did not take that matter into account … His Honour's failure to take this matter into account did constitute error.”
[103] The approach of the New South Wales Court of Criminal Appeal in taking account of the time spent by an offender in a rehabilitation facility is to backdate the commencement date of his or her sentence.
[104] A similar approach has been adopted in the Australian Capital Territory. In R v Eyles (No 3) [2017] ACTSC 1, Refshauge ACJ noted that the Supreme Court of the Australian Capital Territory “regularly recognises that time spent in specialist residential drug rehabilitation and other confinement, can be wholly or partly taken into account.” Refshauge ACJ stated the following:
“The courts have variously allowed from one-half to the full amount of time spent in full time residential rehabilitation, especially with programs that are more rigorous such as, for example, the Odyssey House Program, to count as relevant to sentence” (at [110]).
[105] In our opinion, subject to the observations that follow, the approach adopted in New South Wales and the Australian Capital Territory is correct and it should be followed in Victoria. Such an approach will also promote comity with the courts of other Australian jurisdictions. That approach, adapted in the manner discussed below, will require Victorian sentencing courts to give greater emphasis than in the past to the punitive element of residency in a rehabilitation facility such as Odyssey House.
[106] As has been demonstrated in the present case, residency at a rehabilitation facility has the potential to significantly assist an offender's rehabilitation. In particular, such residency may assist an offender to overcome drug dependency and other factors that have contributed to his or her offending and to develop strategies for becoming a law abiding citizen. These outcomes benefit not only the offender but also the community. It is in the interests of the community for offenders – particularly young offenders – to reform and make positive contributions to the community rather than spend their lives in and out of prison for increasingly more serious offending.
[107] The evidence in the present case indicates that residency at Odyssey House involves significant restrictions on the liberty of those undertaking the treatment offered by that facility. It is likely that other rehabilitation facilities impose similar restrictions. However, the nature and severity of the restrictions and the treatment programs on offer may vary as between different facilities. Where reliance is placed on residency at such a facility, evidence will be required to establish that it is appropriate for the Court to give credit for such residency. It will be relevant for the court to know whether the residency is entirely voluntary or whether there is an element of compulsion as in the present case, where residence at Odyssey House was a condition of the applicant's bail. Of course, voluntary residency will continue to be relevant to the instinctive synthesis in other ways.
[108] According to the evidence of Mr Smithers, there is a significant “drop out” rate among Odyssey House residents, with only 10 to 20 per cent of them progressing through to the third stage of the treatment program. Those who complete all stages of the program have a good chance of adopting a positive value system that can equip them to cope with the vicissitudes of life without reverting to unlawful or anti-social behaviour.
[109] Self-evidently, it is in the community's interest that offenders – particularly young offenders with substance abuse problems – seek assistance from residential rehabilitation facilities and complete the rigorous treatment programs that they offer. Offenders will be encouraged to seek residential treatment if it is understood that sentencing judges will acknowledge, and give credit for, the punitive nature of residency in such a facility. The extent of that credit will depend on the circumstances of each case, including the nature and severity of the restrictions to which an offender has been subject and the duration of the offender's residency. Clearly, the period of residency must post-date the commission of the offences for which the offender is being sentenced. Further, a period of residency cannot be doubly credited. Thus, where the offender is sentenced on different occasions for separate offences following a period of residency, credit for that period can be given on only one of those occasions.
[110] The credit referred to at [109] above will, as with all other sentencing discounts, form part of the application of the instinctive synthesis without being numerically identified. However, as with other significant sentencing considerations, a sentencing judge should ordinarily explain how the punitive nature of residency at a rehabilitation facility has informed – in terms of the weight assigned to it – the instinctive synthesis.
[111] Although residency at a rehabilitation facility has punitive elements, credit for it cannot be given in the same way as pre-sentence detention. Pre-sentence detention involves time spent in custody and, in accordance with s 18(1) of the Sentencing Act 1991 (VIC), it must be deducted from a custodial sentence in a precise mathematical manner for the entire period the offender has spent in detention. On the other hand, residence at a rehabilitation facility, no matter how restrictive and punitive, is not equivalent to time spent in custody. It will not ordinarily result in a deduction of the entire period of residency from a custodial sentence. [footnotes omitted]
The approach to taking into account bail conditions was summarised in R v Butler [2024] NSWCCA 133 as follows:
[45] I am of the view that the test as formulated by Price J in Quinlin (see R v Butler [2024] NSWCCA 133, [34]) is as specific as the nature of the sentencing task and the wide discretion applicable to it will permit. To repeat, 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, conveniently referred to as ‘quasi-custody’.”
[46] Price J pointed out in R v Quinlin [2021] NSWCCA 284, [89], that two questions arise: first whether the bail conditions in fact amount to quasi-custody; and secondly, whether and to what extent an allowance should be made by backdating the sentence. As I have already indicated, his Honour said these are discretionary decisions reviewable only on a House v The King basis (Quinlin at [89]). As Garling J pointed out in La v R [2021] NSWCCA 136 (at [56]-[58]) (Basten JA and Price J agreeing), all grants of conditional bail pursuant to s 20 of the Bail Act 2013 will involve, or are highly likely to involve, restrictions on the person’s liberty. His Honour observed that a grant of conditional bail involving some restriction on a person’s liberty does not thereby, without more, constitute quasi-custody of a kind which makes it relevant to the imposition of a sentence. I think it useful to set out in full the relevant passage from his Honour’s judgment (La v R, at [56]-[59]):
“All grants of conditional bail pursuant to s 20 of the Bail Act 2013 involve, or are highly likely to involve, some restriction. It may be noted that s 20A(2) of the Bail Act requires that any condition imposed on a grant of bail relates to the bail concerns which have been found to exist; that the condition is reasonably proportionate to the offence and the bail concern raised and that the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed. It will also be relevant when considering the issue of quasi-custody, to identify with some precision the length of time over which a person has been on bail, and whether the conditions during that period had changed in any way. The mere fact that a grant of conditional bail involves some restriction on a person’s liberty does not thereby, without more, constitute quasi-custody of a kind which makes it relevant to the imposition of a sentence. Before a grant of conditional bail, and compliance by an offender with that grant can be relevant to sentence, the offender upon whom the onus falls on the balance of probabilities, must establish that such were the restrictions imposed upon the offender by reason of the conditions of bail, that the Court ought conclude that the effect of the conditional bail approached the effect of being held in custody — that is what gives rise to the description “quasi-custody”. Other references to authority could be readily multiplied but the foregoing adequately captures the applicable principles.”
[47] The factual outcomes in other considered decisions do not constitute binding authority nor do they establish categories of case in which an allowance for quasi-custody while on bail will or will not be allowed in future cases. At the same time, they may illustrate how the principles are applied, without necessarily establishing any useful pattern. The sentence in Quinlin was similar in effect to the present case. The offending was manslaughter by unlawful and dangerous act which the sentencing judge found to be at the low end of objective seriousness. The offender pleaded guilty in the Local Court but there was a delay of 21 months not attributable to the offender or his legal representatives before he was dealt with in the District Court. The conditions of bail included a twelve-hour curfew, prohibition on entering licensed premises, abstinence from alcohol, a geographical restriction on entering the township where the offending occurred and, daily reporting for the initial period of six months. The offender was aged 23 when he offended and 25 years of age when sentenced, and he had a history of schizophrenia and significant childhood social deprivation. He used his time on bail wisely to undertake a TAFE course and substance abuse rehabilitation. With an allowance for six months on remand and an additional six months (totalling twelve) for quasi-custody on bail, the sentencing judge backdated the commencement of the sentence so that the non-parole period of twelve months expired on the day sentence was passed. Price J (at [98]) found the bail conditions would not normally have justified a finding of quasi-custody. However, the mental health issues, the long delay, which increased the time on conditional bail and the relative stringency of the bail conditions together were sufficient to justify the additional period of backdating and the Court found no error.
[48] In Hoskins v R [2016] NSWCCA 157, [33]-[38], [40]-[41], the sentence had been discounted by 60 days on account of onerous bail conditions. The conditions included a residential condition, daily reporting, non-contact with co-accused and prosecution witnesses, a conduct condition that the offender pursue employment, and a twelve-hour curfew with an enforcement condition. While the court did not interfere with the discount, it expressed the view that there is a real factual issue as to whether the conditions “are so restrictive as to amount to quasi-custody” (at [38]).
[49] In R v Anderson [2012] NSWCCA 175, Davies J (with whom I agreed at [44]) held that bail requiring residence in a country town with a relative, a geographical restriction that the person remain within the town limits except when attending court or conferences pre-arranged by her lawyers, a twelve hour curfew and daily reporting supported a finding of quasi-custody. Dissenting, Allsop P (at [2]) regarded the conditional bail in all of the circumstances as “hardly rigorous”.
[50] In R v Webb [2004] NSWCCA 330, while the principle was acknowledged, a home detention condition except for reporting, attending court and medical appointments was held not to mandate any mitigation of sentence (at [18]). After the first three weeks, the offender was permitted to leave home to attend work in the company of his father, and he was able to receive visitors including members of his family. He had been on bail for approximately 20 months when sentenced.
[51] In R v Reeves [2014] NSWCCA 154, the offender, who was on parole for other offending, was granted bail requiring him to reside at a Community Offender Support Program (“COSP”) centre with very strict conditions limiting all aspects of daily life including residence, movements, financial management, a requirement to undertake community work and chores at the COSP and restrictions on his freedom to associate. The Court of Criminal Appeal found the conditions “may be properly characterised as quasi-custody” (Bathurst CJ, Hall and R A Hulme JJ at [65]).
[52] In Hello v R [2010] NSWCCA 311, the conditions of bail included curfew of 10 hours duration and reporting to police on four days of each week. Latham J (Rothman and Price JJ agreeing) was not persuaded that the conditions of bail were relevantly onerous (at [49]-[50]).
[53] Extended home detention conditions or participation in a full-time residential rehabilitation program subject to compliance with strict conditions for an extended period of time may be taken to constitute quasi-custody, but not always. In La v R, Garling J said (at [60]):
“If a person is free to come and go from the premises to which they are bailed, then there will be little or no restriction of any relevant kind. The mere fact that a person had to reside at a particular premises does not of itself, constitute a restriction sufficient to amount to quasi-custody, nor does the fact that a person is required by a condition of bail to undergo medical treatment, to seek psychiatric or psychological help or to participate in such rehabilitation program as may be appropriate for their condition. These are conditions imposed, as the Bail Act requires, to address the underlying offence or the bail concerns raised by the Crown when bail is applied for. They may be relevant considerations for a finding of quasi-custody, but in the absence of anything more would not ordinarily constitute quasi-custody. Notwithstanding his residence in a rehabilitation facility, the offender’s freedom “to come and go from the premises” included the freedom to work full time in the latter stages of the program. During this latter period, he met, and formed a new relationship, with his life-partner when sentenced to whom he had been introduced by a mutual friend, suggesting significant freedom of social interaction and association”. (La v R, [61]).
[54] Naturally, this Court would be slow to interfere in a borderline case given the high bar constituted by the requirement that the Crown demonstrate the conclusion that the bail conditions amounted to quasi-custody was not open. But I am satisfied that it was not open to the learned sentencing judge to conclude that the conditions of the respondent’s bail amounted to quasi-custody. I reiterate that by necessary implication, his Honour did not regard the bail conditions after 11 October 2022, as justifying such a finding. But there was little to distinguish between the conditions of bail before and after that date, so far as they impinge upon the respondent’s general right to be at liberty, which is the appropriate focus. The large surety, which was appropriate to the seriousness of the charge, the maximum penalty and the risk of flight, did not of itself impede the respondent’s liberty. In any event it was provided by another. The curfew, reporting condition and residence condition were the most relevant conditions for this purpose. In this regard it should not be overlooked that even the twelve-hour curfew condition when applicable was subject to a very flexible exception. The respondent was entitled to be absent from the residence during the hours of curfew to attend to family commitments involving his children and for work purposes. The requirement that he reside with his mother and report to police daily do not strike me as unduly onerous, either by themselves or as part of the broader suite of bail conditions.
[55] It should also be pointed out that in the case of serious offences, like this charge, the conditions imposed upon the respondent were of a type very commonly imposed by the Supreme Court. Indeed, it could be said that curfew, frequent reporting and residence conditions are almost “standard conditions of bail” when an offender is charged with a serious offence, the Crown case is strong and full-time custody is a likely outcome on conviction. These observations would have applied to this case when bail was first granted. The period of eighteen months during which the respondent was subject to these conditions of itself did not represent an unreasonable or unduly long period to be on bail; I say nothing of the three years it took for the matter to come on for sentence. Were the conditions of bail imposed on the respondent adjudged as quasi-custody, most people charged with strictly indictable offences would be entitled to make the same claim. Given the purpose of conditional bail is to ameliorate bail concerns in compliance with ss 20 and 20A Bail Act, such a state of affairs cannot be justified.
[56] I agree with Garling J that a grant of conditional bail involving some restriction on the person’s liberty “does not thereby without more constitute quasi-custody”.
II CURRENT APPROACH:
In R v Butler [2024] NSWCCA 133 at [34], the Court endorsed the approach in R v Quinlin [2021] NSWCCA 284 at [87]-[88]:
“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, conveniently referred to as ‘quasi-custody’”.[2]
Two questions arise:[3]
· (i) whether the bail conditions in fact amount to quasi-custody; and
· (ii) whether and to what extent an allowance should be made by backdating sentence
a. Onus and Burden of Proof:
The offender bears the onus of establishing whether bail conditions amount to quasi-custody on the balance of probabilities.[4]
b. Precedential weight:
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.[5]
Step 1: Whether the bail conditions in fact amount to quasi-custody?
a. Question of Fact (and Degree)
Whether the conditions imposed amount to quasi-custody is a question of fact in which questions of degree arise.[6]
Factors relevant to the determination of this factual issue have been identified in Kelly v R [2018] NSWCCA 44 at [11], and include:
whether the course was residential;[7]
whether the environment is a disciplined one, and how strict that discipline is;[8]
whether the person is subject to restrictions and if so, the nature and extent of those restrictions;[9]
whether the time spent in rehabilitation has been productive.[10] But see also R v Marschall [2002] NSWCCA 197 at [30] and Truss v R [2008] NSWCCA 325, where credit was given although the offender had not successfully completed the rehabilitation course.
the nature of the programs in which a person participates during the period of rehabilitation;
whether those programs are compulsory or optional;
whether the person has a mobile phone, or access to a mobile phone, internet or other communications and, if so, whether they are limited;
whether the person is able to travel in an unrestricted way away from the rehabilitation residence and, if so, to what extent and over what periods and for what purpose;
whether the person is entitled to receive visitors and, if so, whether there is any restriction on the visitors who may be received and the length of time for which such a visit may takes place;
whether full-time or part-time employment is permitted or else forms part the program; and
whether external volunteering activities are permitted and, if so, to what extent and in what circumstances.
Alternatively, La v R [2021] NSWCCA 136 at [61]-[63] provides an example of a court assessing these factors to conclude time spent in residential rehabilitation did not amount to quasi-custody.
b. Residential Rehabilitation:
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.[11] This may be done by reducing or backdating the sentence.[12]
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.[13] 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.[14]
c. Recognised Residential Programs:
Residential rehabilitation programs that have constituted quasi-custodial conditions include both government agency programs and programs run by non-government agencies, such as:
Odyssey House;[15]
Salvation Army’s Bridge Program;[16]
Guthrie House;
Selah House;
Glen Rehabilitation Centre;
ONE80TC (a Teen Challenge initiative);
Northside Clinic;
Byron Private Treatment Centre; and
William Booth House and Bennelong Haven.
d. Productivity of the Program:
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.[17] However, it is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive.[18]
e. Offender’s Motive:
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.[19] 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.[20]
f. MERIT — Magistrates Early Referral Into Treatment program:
The completion of a MERIT program should not be equated with a period of quasi-custody.[21] James J said that if any allowance was made “it would … only be a very small allowance”.[22] Hodgson JA said that completion of the program was a powerful consideration in the offender’s favour and “there is public interest in having successful completion of such a program explicitly adverted to as a factor favourable to a defendant in the sentencing process, in order to encourage others to successfully complete such programs”.[23]
g. Impact on offender (vulnerability and duration):
Whether certain bail conditions amount to quasi-custody may also be assessed by the impact on the offender. Where the offender was a 23–25 year old young man with a history of schizophrenia, significant trauma, loss and grief whose bail conditions prevented him from visiting friends and family in Nambucca Heads and maintaining contact with his Aboriginal culture, then standard bail conditions which included a curfew could be taken into account. In R v Quinlin [2021] NSWCCA 284, Price J concluded: “As a matter of common sense, mental health issues in combination with a lengthy period of time that an offender is on conditional bail may increase the burden of restrictive bail conditions”.[24]
h. Drug Court:
Similarly, time spent in a drug court program can be take into account (R v Bushara [2006] NSWCCA 8). The Drug Court Act 1998 (NSW) generally governs how an offender’s participation in the Drug Court program is to be taken into account on sentence.[25] 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.[26] 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”.[27]
i. Onerous bail conditions:
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.[28] In La v R [2021] NSWCCA 136, 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 the Bail Act 2013 (NSW) (regarding the imposition of bail conditions).[29] The duration of bail and any change in conditions must be identified with precision, but without more, such restrictions do not constitute quasi-custody.[30]
Step 2: Whether and to what extent an allowance should be made by backdating sentence?
a. Discretion:
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.[31] 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.[32] It is “uncontroversial” that time spent on bail in a full-time residential rehabilitation program can to some extent be taken into consideration in sentencing as time served.[33] If it is found that the judge has not taken into account time spent in residential rehabilitation, error has been established.[34]
b. Typical Allowances:
Generally the relevant time should be taken into account by backdating the starting date of the sentence.[35] However, it is not mandatory to do so, nor is it necessary for the judge to specify or quantify the discount to be allowed for 'quasi-custody'.[36] In R v Kominkovski [2023] NSWDC 511, it was noted that there are dangers in any sentencing exercise where arithmetical solutions are suggested. Courts should avoid too much “mathematization”, to quote McHugh J in Markarian v The Queen [2005] HCA 25 at [52].
Quasi-custody pre-sentence bail conditions are usually acknowledged by backdating the sentence in appropriate proportions of the time spent on bail:[37]
50% of the time spent in full-time residential rehabilitation,[38] and in some cases can amount to 75%;[39]
25% discount where the person is permitted weekend leave from a residential program;[40]
Time in a program may be given even where the offender did not complete the program;[41]
Bail which included a 7pm-7am curfew unless with the offender's sister and a prohibition on drinking and going to licensed premises was, in the circumstances of a vulnerable young man, taken to be quasi-custody and 21 months on bail was deemed to be 6 months pre-sentence custody.[42]
In R v Eastway (CCA, unreported, 19 May 1992), the CCA approved the sentencing judge giving the prisoner credit for 50% of the period he spent in residential rehabilitation for drug abuse.[43]
A discretionary range of 50 to 75% has been allowed for time in residential rehabilitation.[44]
In Blakeney v The King [2022] NSWCCA 277 at [95]–[99], a 30% allowance was upheld where the applicant had weekly weekend leave and resided at a facility with significant amenity; the Court emphasised there is no set rate and the percentage turns on the proved nature and extent of restriction. In Psaroudis (NSWCCA, 1 April 1996, unreported) an allowance around 25% was regarded as appropriate where weekend leave was permitted.
It does not matter whether the offender entered the rehabilitation programs as a result of court orders or voluntarily.[45] Even if attendance at residential rehabilitation is voluntary, and not court-ordered, it should be taken into account.[46] Time in residential rehabilitation which the offender has not yet undertaken should not be taken into account.[47] A reduction in sentence does not depend entirely on whether the residential program has been productive, nor the applicant's motive for undertaking it. The rationale for the allowance is the need to factor into the sentencing exercise the restriction on an offender's liberty during the period of the program.[48]
FOOTNOTES:
[1] R v Delaney (2003) 59 NSWLR 1.
[2] See also Frlanov v R [2018] NSWCCA 267, [24], (RA Hulme J; Macfarlan JA and Rothman J agreeing); R v Webb [2004] NSWCCA 330, [18] (Grove J; Simpson and Shaw JJ agreeing).
[3] R v Butler [2024] NSWCCA 133, [46], citing R v Quinlin [2021] NSWCCA 284, [89].
[4] R v Quinlin [2021] NSWCCA 284, [88].
[5] R v Butler [2024] NSWCCA 133, [47].
[6] R v Butler [2024] NSWCCA 133, [44]; Kelly v R, [10], [50].
[7] See R v Eastway (CCA, unreported, 19 May 1992).
[8] See R v Delaney (2003) 59 NSWLR 1, [22].
[9] R v Campbell [1999] NSWCCA 76, [24].
[10] Hughes v R [2008] NSWCCA 48, [38].
[11] R v Eastway (unrep, 19/5/92, NSWCCA); R v Campbell [1999] NSWCCA 76, [24]–[25]; R v Delaney (2003) 59 NSWLR 1, [24]–[25]; Kelly v R [2018] NSWCCA 44, [8]–[10], [46]–[47].
[12] Reddy v R [2018] NSWCCA 212, [31].
[13] Renshaw v R [2012] NSWCCA 91, [29]; Hughes v R [2008] NSWCCA 48, [38].
[14] Bonett v R [2013] NSWCCA 234, [50].
[15] R v Eastway (unreported,19/5/92, NSWCCA).
[16] Reddy v R [2018] NSWCCA 212.
[17] Truss v R [2008] NSWCCA 325, [22], cited in Small v R [2018] NSWCCA 290, [37]; see also R v Marschall [2002] NSWCCA 197, [29]–[30].
[18] Hughes v R [2008] NSWCCA 48, [38], cited in Kelly v R [2018] NSWCCA 44, [11], [46].
[19] R v Delaney (2003) 59 NSWLR 1, [23].
[20] Reddy v R [2018] NSWCCA 212, [33].
[21] R v Brown [2006] NSWCCA 144.
[22] R v Brown [2006] NSWCCA 144, [59].
[23] R v Brown [2006] NSWCCA 144, [4].
[24] R v Quinlin [2021] NSWCCA 284, [97] (Price J).
[25] Drug Court Act 1998 (NSW) s 12.
[26] R v Bushara [2006] NSWCCA 8, [27]-[28].
[27] R v Bushara [2006] NSWCCA 8, [26]-[28].
[28] R v Fowler [2003] NSWCCA 321, [242]; R v Webb [2004] NSWCCA 330, [18]; Hoskins v R [2016] NSWCCA 157, [36]; Frlanov v R [2018] NSWCCA 267, [24]; Banat v R [2020] NSWCCA 321, [18]).
[29] La v R [2021] NSWCCA 136, [56].
[30] La v R [2021] NSWCCA 136, [57]-[58].
[31] Kelly v R [2018] NSWCCA 44, [50]; Bonett v R [2013] NSWCCA 234, [50]; R v Quinlin, [89]; R v Butler, [46].
[32] Hoskins v R [2016] NSWCCA 157, [36].
[33] Bonnett v R [2013] NSWCCA 234; Renshaw v R [2012] NSWCCA 91; BJT v The Queen [2011] NSWCCA 12; Hughes v The Queen [2008] NSWCCA 48; R v Delaney [2003] NSWCCA 342; R v Campbell [1999] NSWCCA 76, [24] (Kirby J); Eastway (unreported, NSWCCA, 19 May 1992); R v Cartwright (1989) 17 NSWLR 243.
[34] Renshaw v Regina [2012] NSWCCA 91, [28]-[29]; Small v R [2018] NSWCCA 290, [35].
[35] Gardiner v Regina [2018] NSWCCA 27.
[36] R v Sullivan [2004] NSWCCA 99, [67]; cited in Small v R [2018] NSWCCA 290, [39].
[37] Hughes v The Queen [2008] NSWCCA 48, [38].
[38] BJT v The Queen [2011] NSWCCA 12; Reddy v The Queen [2018] NSWCCA 212; 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, [51], [53]; Hughes v R, [38]).
[39] R v Cartwright (1989) 17 NSWLR 243.
[40] R v Psaroudis (unreported, NSWCCA, 1 April 1996).
[41] BJT v The Queen [2011] NSWCCA 12, [24].
[42] R v Quinlin [2021] NSWCCA 284.
[43] R v Eastway (CCA, unreported, 19 May 1992); See also R v Psaroudis (1996) PD [356], R v Campbell [1999] NSWCCA 76, Brown v R [2013] NSWCCA 44, [21]-[27].
[44] Small v R [2018] NSWCCA 290, [38].
[45] Reddy v R [2018] NSWCCA 212, distinguishing Bonett v The Queen [2013] NSWCCA 234.
[46] Reddy v R [2018] NSWCCA 212, [33].
[47] Williams v R [2013] NSWCCA 15.
[48] Truss v R [2008] NSWCCA 325, [22].
Disclaimer:
‘Black Letter Law’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.
