Is there ever a time when it’s justified to ask a court not to declare pre-sentence detention (‘PSD’)? Sounds weird but turns out, sometimes, yes. It is referred to by the Court of Appeal as the “device”. So how do we use the device and when is it appropriate? This article will cover two situations when it can be used. First, the traditional YTC situation where I discuss the principles applicable. But then I secondly argue it can also be used in the Drug Court just as legitimately. This is arguably an extension of the doctrine that I believe practitioners will find most useful for Drug Court.
What is the “device” and where does it come from?
Under s 18(1) of the Sentencing Act 1991 (Vic) generally the court must declare PSD unless “the court fixing a non-parole in respect of the sentence otherwise orders” (authors emphasis). Poor wording but it basically means that the Court can “otherwise order” to not declare the PSD. Generally, this is something that needs to be specifically requested of a sentencing judge or magistrate and usually involves situations involving young offenders. Even then it is quite rare. The leading case on the matter is Hill  2 VR 496 where the Court of Appeal declined to reckon the PSD in order to allow the convicted person to be eligible for a Youth Training Centre (‘YTC’) order which has a maximum of three years. This is the first use of the “device”. It is now settled law in Victoria (see below).
The device to get into YTC
The first is YTC orders. Let us pretend you are representing a young offender who has done a significant amount of PSD either in adult or youth custody. Under the Sentencing Act 1991 (Vic) a court can only order a maximum of 3 years at a YTC. For very serious crimes a court may decide that 3 years is insufficient on its own however an offender might have done a lot of PSD. In situations like these the Court can be asked to use the “device” to not declare the PSD so as not to violate the jurisdictional maximum of 3 years for a YTC order. This was used in Hill  2 VR 496. I myself made submissions in the County Court to use the “device” for this purpose in the case of DPP v Awo & Ors  VCC 1801 at  which was adopted by the learned judge when sentencing two of the accused.
Can the device be used to get into Drug Court?
I believe that this doctrine can be extended and used in the Drug Court jurisdiction. As most practitioners know the Drug Court has a jurisdictional limit of 2 years. It seems to be that no submissions have been made to that court about using the “device” to not declare PSD. So this is probably a new use of the law. However in cases where there are clients with (a) a lot of PSD under their belt and (b) are pushing the upper limit of the 2 years it may be appropriate. The Court of Appeal has not discussed whether the “device” could be used in the Drug Court, however they have spoken about CCOs and the “device”. The device can’t be used with CCOs basically due to issues with respect to declaring non-parole periods (too complicated to go through here). The authority for this is DPP v Grech  VSCA 98. However it is at paragraph  where the Court of Appeal outlines areas where the “device” can and can’t be used. In ruling it out when it comes to a cocktail sentence of a CCO and imprisonment they state at  that,
“This is not, as in Hill, a situation where there is a lacuna in the legislation that needs to be filled. The legislation implicitly (if not excplicitly) address the very point in issue.”
There is that same “lacuna” when it comes to Drug Court sentences. In fact under s 18ZD the Drug Court “must not fix a non-parole period in accordance with that section as part of the sentence imposed by it.” The Drug Court is also required under the legislation to prioritise the safety of the community (through rehabilitation of an offender) over other aspects of the Sentencing Act 1991 (Vic). It is perfectly legitimate for those considerations to factor into a Drug Court magistrates mind when deciding whether or not to utilise the PSD device. The gap in the legislation means that the court can step in, when appropriate, and decline to declare the PSD. This gap may be rare but may be an actual life saver for a client who would otherwise fall through the gap. The Drug Court is at the cutting edge of therapeutic jurisprudence in this country and possibly in the world.
So I’d be stating to lawyers who appear in Drug Court that when you have a person who is pushing the 2 year jurisdictional limit and has a lengthy period of PSD to use this “device”. It is a legitimate sentencing option available to the learned Drug Court magistrates’. Just be aware that generally speaking it is rare for a court to use it. So the reasons have to be very good and something more than the typical. As the Court of Appeal states in Hill at :
“Section 35(1) … is addressed primarily to the prison authorities responsible for the administration of the Act. However, it also empowers the sentencing court to ‘otherwise order’, that is to say, to order that the period spent in custody is not to be reckoned as already served. It would follow from the making of such an order that the offender would serve a term which was the aggregate of the period already served and the sentence then imposed.
In most cases, such a result would appear to offend the principle that an offender should serve a term no longer than the justice of the case requires; it being the duty of the court to impose a sentence appropriate in all the circumstances or, put another way, a sentence which fits the crime. If that is the sentence imposed, justice requires that time already served is subtracted. That was the practice in the law long before legislative intervention.
The legislation is silent as to the considerations which the sentencing court should take into account in exercising the wide discretion granted to the court by s.35(1).
There are here two considerations which appear to us to be diametrically opposed to each other. On the one hand, there is the consideration that what we have termed the ‘clear intention’ of Parliament is that the period of detention not exceed three years; on the other hand, if we take the view (as we do) that three years’ detention is inadequate, then we would be obliged to sentence the applicant to imprisonment. Not without considerable hesitation we have finally concluded that though ‘device’ it may be, that word ought not necessarily be given a pejorative meaning, and in particular circumstances now before the court it is a legitimate device, and one, we might add, which counsel for the applicant urges us to adopt. Furthermore the adoption of this course will assist in the achievement of two objectives which are important in the case of a youthful offender, particularly so where the offender is a child. The first of these is that rehabilitation is usually far more important than general deterrence; the second is that such an offender is not, if it can be avoided, sent to an adult prison for a first offence: see R. v.Misokka (unreported, Court of Appeal, 9 November 1995) at 6-7 and the authorities there cited.” (authors emphasis)
But in certain special cases it is perfectly legitimate to use this “device” in a Drug Court context. The Court should be quite rightly hesitant to decline to declare PSD however in deserving cases (especially those involving youth) then it can be legitimately used.
I hope you find it useful.