Truth in sentencing legislation grants unexpected sentencing power to Justices of the Peace

The Truth in Sentencing Legislation awaits proclamation.

The way the legislation is drafted, Justices of the Peace at the judicial interim release hearings have considerable power to constrain judges sentencing after trial.

This is a curiosity, and perhaps unintended, because (1) the Justice of the Peace at a bail hearing has very little admissible evidence – mainly bail decisions are based on credible assertions – and (2) normally a Judge would have review power over a Justice of the Peace and not the other way around.

The Parliamentary Library notes:

In general, the bill changes the two days for one currently credited to one day for one, that is, it limits the credit for pre-sentencing custody to a maximum of one day for each day spent in pre-sentencing custody (new section 719(3) of the Code). That maximum applies to all cases in which the accused was in pre-sentencing custody because of his or her criminal record or breach of conditions of release on bail, including the commission of a criminal offence (new sections 719(3) and 719(3.1) of the Code).

The actual transitional section provides:

Subsections 719(3) to (3.4) of the Act, as enacted by section 3, apply only to persons charged after the day on which those subsections come into force.

Those sections give a new power to the Justice of the Peace at the bail hearing. Before, the Justice simply would say that the accused was detained on the primary, secondary, and/or tertiary grounds.

Under the new section, section 515(9.1): …if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.

The sentencing court can then give up to one and one half days credit for each day in custody, except where the Justice of the Peace detained, primarily because of a previous conviction of the accused

In those latter circumstances, the sentencing judge can only give one-for-one credit:

if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1)