Suspended Sentences And Intermediate Sentencing Orders: Suspended Sentences Final Report—Part 2

Council Members: Carmel Arthur, Bernie Geary OAM, David Grace QC, Rudolph Kirby, Andrea Lott, Professor Jenny Morgan, Simon Overland APM, Barbara Rozenes, Gavin Silbert SC, David Ware

Chief Executive Officer: Stephen Farrow

The Council thanks the following people and organisations for their assistance in the provision of information and the preparation of this report: Australian Community Support Association, Corrective Services (Department of Justice [Vic.]), Court Services, Statistical Services Unit (Department of Justice [Vic.]), CourtLink (Department of Justice [Vic.]), Court of Appeal (Supreme Court of Victoria), Criminal Law Committee (Law Institute of Victoria), Department of Corrective Services [WA], Federation of Community Legal Centres (Vic) Inc, Fitzroy Legal Service, Judicial Liaison Unit (Queensland Corrective Services), Justice Library (Department of Justice [Vic.]), Magistrates’ Court of Victoria, Mental Health Legal Centre, Office of Public Prosecutions [Vic.], Specialist Courts and Court Support Services (Magistrates’ Court of Victoria), Victoria Legal Aid, Youth Justice (Department of Human Services [Vic.]), Youthlaw, Carmel Benjamin AM, Prue Boughey, Julie Bransden, Anne Bruce, Noel Butland, Jenni Coady, Karen Gelb, Maddy Harford, Jonathan Kaplan, Sarah Lappin, Francine McCabe, Jo Metcalf, Marilyn Minister, Frank Morgan, Associate Professor Neil Morgan, Jeremy Rapke QC, Joseph Shields, Felicity Stewart, and Fred Wurzel.

Abbreviations

ABS : Australian Bureau of Statistics

A Crim R : Australian Criminal Reports

AC : Appeal Cases (United Kingdom)

ABS : Australian Bureau of Statistics

ACT : Australian Capital Territory

AJA : Acting Justice of Appeal

ALJR : Australian Law Journal Reports

All ER : All England Law Reports

ALR : Australian Law Reports

ALRC : Australian Law Reform Commission

CCTO : Combined Custody and Treatment Order

CBO : Community-Based Order

CCO : Community Corrections Officer

CJ : Chief Justice

CLR : Commonwealth Law Reports

Cth : Commonwealth

CSO : Correction and Supervision Order

CWO : Community Work Order

DHS : Department of Human Services

DPP : Director of Public Prosecutions

DTO : Drug Treatment Order

FCR : Federal Court Reports

FCLC : Federation of Community Legal Centres

FDO : Fine Default Order

ICO : Intensive Correction Order

IRO : Imprisonment Release Order

J : Justice (JJ plural)

JA : Justice of Appeal (JJA plural)

NSW : New South Wales

NSWCCA : New South Wales Court of Criminal Appeal

NSWSC : New South Wales Supreme Court

NT : Northern Territory

OCSC : Office of Correctional Services Commissioner

P : President (judicial office)

QB : Law Reports, Queen’s Bench

QC : Queens Counsel

Qld : Queensland

s : section (ss plural)

SA : South Australia

SASC : South Australian Supreme Court

SASR : South Australian State Reports

SCR : Canada Supreme Court Reports

Tas R : Tasmanian Reports

UK : United Kingdom

VAADA : Victorian Alcohol and Drug Association

VALS : Victorian Aboriginal Legal Service Co-operative Ltd

Vic : Victoria

VR : Victorian Reports

VSC : Supreme Court of Victoria

VSCA : Supreme Court of Victoria Court of Appeal

WA : Western Australia

WAR : Western Australian Reports

YAO : Youth Attendance Order

YTC : Youth Training Centre

YRC : Youth Residential Centre

Glossary

Adjourned undertaking (ss 72–79 Sentencing Act 1991 (Vic)): Release (unsupervised) with or without recording a conviction, for a period of up to five years, with conditions.

Combined custody and treatment order (ss 18Q–18W Sentencing Act 1991 (Vic)): A term of imprisonment served by a combination of an immediate prison term of at least six months followed by supervised drug rehabilitation treatment while living in the community (maximum one year).

Common law: Principles of law arising from judicial decisions (case law) rather than derived from legislation (statutory law).

Community-based order (ss 36–48 Sentencing Act 1991 (Vic)): Supervised non-custodial sentence, with or without recording a conviction, with conditions including supervision, treatment and/or unpaid community work (maximum two years).

Deferral of sentencing (s 83A Sentencing Act 1991 (Vic)): The Magistrates’ Court may defer sentencing of a young offender aged 18 or over but under 25 years, and may adjourn the proceedings for up to six months to enable the offender to demonstrate his or her rehabilitation.

Discharge (s 73 Sentencing Act 1991 (Vic)): After convicting a person of an offence a court may discharge that person.

Dismissal (s 76 Sentencing Act 1991 (Vic)): After finding someone guilty of an offence a court may dismiss the charge without recording a conviction.

Drug treatment order (ss 18X–18ZS Sentencing Act 1991 (Vic)) [Drug Court Division of the Magistrates’ Court only—Pilot program]: An order imposed by the Drug Court, which consists of a treatment and supervision component (which operates for two years or until that part of the order is cancelled) and a custodial component (which must not exceed two years) (maximum two years).

Fine (ss 49–69 Sentencing Act 1991 (Vic)): Monetary penalty (can be in addition to, or instead of, another order and with or without recording a conviction).

Home detention order (ss 18ZT–18ZZR Sentencing Act 1991 (Vic)): A term of imprisonment served by way of home detention. This is not available for certain offences (e.g. sexual offences, breach of intervention or stalking order). While on a home detention order the offender is subject to electronic monitoring (maximum one year).

Imprisonment (ss 9–18P Sentencing Act 1991 (Vic)): A term of imprisonment is not always served by confinement in prison. It can be served in other ways, such as by an intensive correction order (see below). The maximum term of imprisonment that a judge can impose for an offence is determined by Parliament, although courts generally have the discretion to sentence an offender to less than the maximum penalty.

Indefinite sentence (ss 18A–18C Sentencing Act 1991 (Vic)): A sentence of an indeterminate length that may be imposed by the Supreme Court or County Court on offenders who are deemed to pose a serious danger to the community and who have been convicted of specified serious offences (e.g. murder, manslaughter, armed robbery, rape, sexual penetration of a child under 16). The court must set a nominal sentence (equal in length to the non-parole period that it would have fixed had the court sentenced the offender to a fixed-term sentence). The expiration of the nominal sentence triggers a review of the order.

Intensive correction order (ss 19–26 Sentencing Act 1991 (Vic)): A term of imprisonment served in the community by way of intensive correction, combining supervision and/or personal development programs and including conditions such as treatment and unpaid community work (maximum one year).

Life imprisonment: A sentence under which the offender is liable to be imprisoned for the term of his or her natural life. Offences that carry a maximum penalty of life imprisonment include murder, treason and trafficking in a large commercial quantity of a drug of dependence. The court must still fix a minimum prison term, which the offender must serve before being eligible for parole, unless the court considers the setting of a non-parole period inappropriate based on the nature of the offence or the past history of the offender, in which case the offender will remain in prison for the rest of his or her life.

Mandatory imprisonment: Some offences (e.g. driving while disqualified under section 30 of the Road Safety Act 1986 (Vic)) carry a mandatory minimum prison sentence. This means that a judge has no discretion and must impose a term of imprisonment on the offender for the offence.

Net-widening: The use of a more severe sentencing order than required to achieve the purpose or purposes of sentencing in a particular case: e.g. the use of a suspended sentence for an offender who would not otherwise have received a prison sentence.

Parole (s 11 Sentencing Act 1991 (Vic)—fixing of a non-parole period): A form of supervised release for prisoners intended to ensure that they receive assistance in the transition from prison into the community while also being subject to supervision. A non-parole period is the minimum portion of a prison sentence that an offender must serve before becoming eligible for parole. When a court sentences an offender to a prison sentence of two years or more it must set a non-parole period unless it regards the fixing of the non-parole period as inappropriate. If a court sentences an offender to a prison sentence of 12 months or more but less than two years it may set a non-parole period. In both cases the non-parole period must be at least six months less than the term of the sentence.

Parsimony: The principle that a sentencer must not impose a sentence that is more severe than necessary to achieve the purpose or purposes for which the sentence is imposed. The principle of parsimony is given statutory recognition in Victoria in section 5(3) of the Sentencing Act 1991 (Vic).

Sentence inflation: Sentence inflation, as it applies to suspended sentences, refers to a longer period of imprisonment than would have been imposed had the sentence been ordered to be served immediately, on the basis that it will be suspended.

Suspended sentence (ss 27–31 Sentencing Act 1991 (Vic)): A term of imprisonment that is suspended (i.e. not activated) wholly or in part for a specified period (the ‘operational period’), subject to the condition to be of good behaviour (i.e. not re-offend) (maximum two years (Magistrates’ Court), three years (County and Supreme Courts)).

Substitutional sanction: A sentencing order that is intended to be used as a direct substitute for prison. Examples of substitutional sanctions in Victoria include suspended sentences, combined custody and treatment orders, home detention and intensive correction orders. A court is required to impose a prison sentence before making one of these orders.

Youth justice centre (previously youth training centre) and youth residential centre orders (ss 32–35 Sentencing Act 1991 (Vic)): A sentence requiring a young offender (under 21 years old) to be detained in a youth justice centre (15 years or older) or youth residential centre (under 15 years old) (maximum two years (Magistrates’ Court), three years (County and Supreme Courts)).

Preface

This second part of our Final Report brings to an end a project that has spanned almost the whole life of the Council. It is the fifth publication relating to a reference that has already produced significant changes in the law relating to suspended sentences. In late 2006 the Sentencing (Suspended Sentences) Act 2006 (Vic) adopted many of the recommendations in Part 1 of our Final Report and which have, we believe, already started to change sentencing practices in the way that Parliament intended. The Council hopes that this report, which examines both suspended sentences and other sentencing orders, will be similarly well-received.

In reviewing the operation of suspended sentences in Victoria, the Council has consistently taken the view that reform of these sentences cannot be undertaken in isolation. Changes to one part of a complex system, such as sentencing, will always affect others, often in ways that cannot be foreseen. The majority of the forty-five detailed recommendations in this report are aimed at improving the broader sentencing framework rather than focusing even more closely on the suspended sentence.

The Council has also taken the view that change should be gradual. An immediate abolition of suspended sentences might have a catastrophic impact upon prison populations which would be unmanageable, unwise and very expensive. The Victorian prison population stands at record levels and is already growing steadily, placing pressure on correctional facilities.

In this report we recommend major changes to the whole range of intermediate sanctions covering the Intensive Correction Order, the Combined Custody and Treatment Order, Home Detention Orders, Community-based Orders as well as the courts’ powers to defer sentence. We do so in the belief that the use (and overuse) of suspended sentences is due in part to the deficiencies of these orders. We recommend the abolition of some orders and the introduction, modification or extension of others. We do so after extensive consideration of the operation of these orders in Victoria, of similar orders elsewhere in Australia and overseas and after consultation with a wide range of stakeholders as to the most suitable forms of orders for this jurisdiction.

Some of the recommendations are aimed at improving sentencing responses to offenders who are over-represented in the criminal justice system and for whom the current responses are not proving effective, namely offenders with drug or alcohol related problems and some groups of young offenders. For these, sometimes highly recidivist groups, it is vital that the sanctions we propose are supported by sufficient correctional, social and other services.

Other recommendations, particularly in relation to the abolition of the mandatory minimum sentence of one month’s imprisonment under section 30 of the Road Safety Act 1986 (Vic) for second and subsequent offences of driving whilst disqualified are likely to be highly controversial. This offence represents nearly 19% of all suspended sentences imposed in the Magistrates’ Court, No other Australian jurisdiction has a similar penalty for this offence and the Council believes that it lacks a clear rationale. The Council has commenced a project to examine the growing problem of driving whilst disqualified or suspended from a variety of viewpoints.

Although we continue to be concerned about the inherent flaws of suspended sentences and the effect that this sanction has on public confidence in the criminal justice system, we believe that the changes we recommend in relation to intermediate orders should be fully tested before any further moves are made to further restrict sentencers’ ability to make this order.