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SENTENCING ACT 1991 - SECT 35

Time held in custody before trial etc. to be deducted from sentence[17], [18]

S. 35(1) amended by No. 48/1997 ss 11(4), 16(4), 17(7), substituted by No. 82/2006 s. 3(3), amended by Nos 82/2006 s. 7(2), 65/2011 s. 19, substituted by No. 32/2013 s. 12.

    (1)     If a young offender is sentenced to a term of detention in respect of an offence, any period during which he or she was held in custody in relation to—

        (a)     proceedings for the offence; or

        (b)     proceedings arising from those proceedings including any period pending the determination of an appeal—

must be reckoned as a period of detention already served under the sentence unless the sentencing court or the court making the order otherwise orders.

    (2)     Subsection (1) does not apply—

        (a)     to a period of custody of less than one day; or

S. 35(2)(b) amended by No. 48/1997 s. 11(5).

        (b)     to a sentence of detention of less than one day; or

S. 35(2)(c) inserted by No. 48/1997 s. 11(5), amended by Nos 69/1997 s. 6(4), 82/2006 s. 3(4), 26/2014 s. 434.

        (c)     to a period of custody previously declared under this section or section 18 as reckoned to be a period of detention or imprisonment already served under another sentence of detention or imprisonment or Court Secure Treatment Order imposed on the offender.

S. 35(3) amended by No. 48/1997 s. 16(4).

    (3)     If a young offender was held in custody in circumstances to which subsection (1) applies, then—

S. 35(3)(a) amended by No. 48/1997 s. 16(6).

        (a)     the informant or person who arrested the young offender must, if present before the court, inform it, whether from his or her own knowledge or from inquiries made by him or her, of the length of the period of custody; or

S. 35(3)(b) amended by No. 6/2018 s. 68(Sch. 2 item 115.2).

        (b)     if that person is not present before the court, it may take and receive other evidence (whether oral or written and whether on oath or by affirmation or otherwise) of the length of the period of custody.

S. 35(4) amended by No. 48/1997 ss 11(6), 16(4).

    (4)     If a young offender was held in custody in circumstances to which subsection (1) applies, then the court must declare the period to be reckoned as already served under the sentence and cause to be noted in the records of the court the fact that the declaration was made and its details.

S. 35(5) amended by No. 48/1997 s. 16(1).

    (5)     The person with custody of the record referred to in subsection (4) must indorse on the warrant or other authority for the detention of the young offender particulars of the matters referred to in that subsection.

S. 35(6) amended by No. 48/1997 s. 16(7).

    (6)     If a young offender charged with a series of offences committed on different occasions has been in custody continuously since arrest, the period of custody for the purposes of subsection (1) must be reckoned from the time of his or her arrest even if he or she is not convicted of the offence with respect to which he or she was first arrested or of other offences in the series.

    (7)     If on an application under this subsection the sentencing court is satisfied that the period declared under subsection (4) was not correct it may declare the correct period and amend the sentence accordingly.

    (8)     An application under subsection (7) may be made by—

S. 35(8)(a) amended by No. 48/1997 s. 16(1).

        (a)     the young offender; or


        (b)     the Director of Public Prosecutions, if the sentencing court was the Supreme Court or the County Court; or

        (c)     the informant or police prosecutor, if the sentencing court was the Magistrates' Court.

Pt 3 Div. 3 (Heading) repealed by No. 65/2011 s. 20.

    *     *     *     *     *


Pt 3A (Heading) inserted by No. 65/2011 s. 21.

Part 3A—Sentences—community correction orders

Pt 3A Div. 1 (Heading) inserted by No. 65/2011 s. 21.

Division 1—Preliminary

S. 36 amended by No. 48/1997 ss 18, 19(1), 28(1), substituted by No. 65/2011 s. 21, amended by No. 69/2014 s. 17 (ILA s. 39B(1)).



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