And that is when the issue will arise of how much time served in custody should be allocated to that current matter.
This can potentially be a complex arithmetical exercise, or at least appear that way, when trying to separate time served on remand from time served under a sentence.
In the case of R v Renzella  2 VR 88, the court recognised that it had a discretion under common law, in sentencing, to take into account their detention in custody in circumstances where the detention was ‘warranted twice over’ (by the offence for which the person is on remand and stands to be sentenced and by unrelated offending). Renzella stands for the principle that the court can take that detention into account ‘in a broad way’ by reducing the head sentence and non-parole period accordingly, regardless of whether any pre-sentence detention had previously been declared and rather forcefully stating that ‘a court is not only empowered by obliged as a matter of justice to take pre-sentence detention into account’.
More recently, the case of Wheldon v The Queen  VSCA 83 has revisited the issue of pre-sentence detention and how it is to be calculated. In this matter, Mr Wheldon pleaded guilty to recklessly causing serious injury. At the time he was sentenced in the County Court on this charge, he had served a one month sentence for unrelated matters, imposed in the Magistrates’ Court. It was submitted on appeal that the sentencing judge failed to consider her common law discretion in keeping with the Renzella principles and had proceeded without regard to that one month sentence when imposing her sentence for recklessly causing serious injury. The Court of Appeal agreed, stating that had the situation been reversed and the County Court matter had preceded the Magistrates’ Court matter, it is likely that there would have an order for concurrency of sentences and that the judge had, therefore, denied the opportunity for concurrency.
In Wheldon’s case, the sentencing judge was misinformed by counsel for the Crown and counsel for the accused who both stated that Her Honour was required to subtract the one month sentence from the total number of days spent on remand when calculating pre-sentence detention. The Court of Appeal was critical of this and emphasised that there needs to be some consideration by the sentencing judge of the discretion with respect to “doubly warranted detention.”
Now, whether that means including only a portion of the time or refusing altogether to exercise the discretion is a matter for debate, but an important one, nonetheless.
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