Discounting EM Bail – Developing the Evaluative Approach

Abstract

Under New Zealand Law a person sentenced to imprisonment may receive a credit if that person has been in a custodial remand at any time prior to sentence. A “one for one” approach is adopted whereby the amount of time spent in custody is deducted from the sentence. One of the reasons for this is to recognize the restrict nature of a custodial remand.

The advent of Electronically Monitored Bail (EM Bail) has added a complication to the way in which sentences may be calculated. It is recognized by New Zealand Courts that EM Bail is restrictive of a person’s liberty, but not as much as a custodial remand. A debate has developed over the amount of credit that should be given for time spent on EM Bail. Two cases suggest that the credit should be one for one – just like the reduction of a prison sentence following a custodial remand. Other cases suggest that an evaluative process should be undertaken to determine the available sentence reduction. However, the methodology for such evaluation has not been articulated.
This paper examines the various approaches of the New Zealand Courts and proposes a methodology for evaluating the available reduction in sentence to reflect the time spent on EM Bail which is transparent and clear and provides a rational approach to determining the reduction.

Keywords: Criminal law, Sentencing, Sentencing Credit