Why Pre-Sentence Custody Has Nothing To Do With The Final Outcome

While it is not a legal requirement, pre-sentence custody is essential in some cases for judges and magistrates to come to a conclusion. 

For starters, the primary function of a pre-sentence report is to “assist the court in determining the most suitable method of dealing with an offender.” The report is made after assessing the defendant’s attitude to the offence and presented before the sentence is declared. But does the time in pre-sentence custody affect the final decision of the court? Let’s find out.

Pre-Sentence Custody

How Does A Pre-Sentence Report Work? 

For preparing an accurate pre-sentence report, the probation officer meets the defendant in person or through an online video meeting. The officer can then proceed to question the defendant about what happened and related details about their background. The additional information could include employment issues, mental health conditions, substance abuse, and more. 

Why Is Preparation Of Pre-Sentence Report Essential?

Pre-custody sentence allows defendants to advance significant mitigation well before their attorney represents their stance in court. Hence, the report acts as a prior opportunity to influence the sentencing outcome in one’s favour. 

As such, report writers look for evidence of the accused party’s regret/remorse and willingness to repent. But keep in mind that while the writer may suggest an appropriate sentence, the final decision lies with the judge or magistrates.

How Does Time Spent In Pre-Sentence Custody Count Towards a Final Sentence?

For those who do not get bail when charged with a crime, the judge orders to put them in custody. As such, with each day spent in pre-trial custody, the accused receives a credit of 1.5 days. So, if the accused spends 30 days in custody, they get 45 days of credit against the final sentence.

Now, some inmates may try to act smart and “rack up” on their credit by delaying their sentence. But, much to their disappointment, they won’t be spending any less time in jail.

This is simply because of how legal institutions work. Practically, anyone who gets sentenced for less than two years almost always gets released after serving two-thirds of the sentence. So, if someone gets sentenced to six months (180 days) and gets bail immediately, they’ll actually be released once they complete 120 (two-thirds of 180) days in jail.

In contrast, if someone with the same sentence spends 60 days in custody, they will get 90 (60 x 1.5) days of credit. So, from the 180 days of the sentence, 90 days are credited, leaving just 90 days to serve in jail. 

Now, the accused will actually have to serve just two-thirds of the 90 days, which is 60 days. Add to that the 60 days they spent in pre-trial custody. The total comes back to 120 real days in jail – exactly the amount spent by someone who immediately got bail.


With the aforementioned calculation, sometimes offenders who try to delay and “reduce” their sentence may even be at risk of spending more real days in jail. Rather, it is best to use this “dead time” effectively for proving your innocence/remorse over “racking up” your pre-trial custody days.

For more details, we suggest contacting a reputed criminal lawyer in your city. 

Owen McEvilly

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