Suspended Sentences in Victoria: A Preliminary Information Paper ● March 2005 ● Sentencing Advisory Council
Suspended Sentences in Victoria: A Preliminary Information Paper
Contents
Background to this Reference
Purpose of this Paper
The Next Step
What are Suspended Sentences?
How do Suspended Sentences Operate?
Suspended Sentences in Australia
Suspended Sentences in Victoria
General Principles Guiding Sentencing in Victoria
What Principles Guide the Court in Setting a Suspended Sentence?
Sentencing Options in Victoria
Where do Suspended Sentences Fit in the Sentencing Hierarchy?
How Common are Suspended Sentences in Victoria?
What Offence Divisions Attract Suspended Sentences?
Are Men or Women More Likely to Receive a Suspended Sentence, and for Which Offence Divisions?
How Long are the Prison Terms that the Courts Suspend?
Suspension lengths, Breach Rates and Penalties for Breach
Criticisms of Suspended Sentences
Arguments for Retention
Possible Options for Reform
References
Background to this Reference
The Sentencing Advisory Council was recently established by the Victorian Government under the SentencingAct1991(theAct).TheCouncil currently consists of 12 directors and is supported by a small secretariat.
The functions of the Council under the Act include conductingresearch,providingstatistical information on sentencing to members of the judiciary and other interested persons, gauging community views on sentencing, and providing advice to the Attorney-General on sentencing matters. The Council recently received its first reference from the Attorney-General to review the useofsuspendedsentencesinVictoria,and provide advice on whether the operation of suspended sentences can be improved in any way.
Purpose of this Paper
This information paper provides background information on the nature of suspended sentences, how they are being used in Victoria, the main criticisms of them and some of the options for reform that could be considered.
The paper contains a preliminary statistical analysis on the use of suspended sentences in Victoria drawn from data published recently by the Australian Bureau of Statistics (ABS), as well as supplementary and unpublished data provided by the ABS to the Council.[1] The Council intends to provide a more detailed analysis of the use and operation of suspended sentences, drawing directly from de-identified courts data, in its public discussion paper. The Council will be exploring issues such as the long term impact that suspended sentences have had on sentencing trends and the Victorian prisoner population, how suspended sentences are used for specific offences and breach rates.
The Next Step
The Council will release a public discussion paper on suspended sentences in April 2005 and will call for submissions.The Council will also undertake an extensive public consultation process.The Council will take views expressed in submissions and at consultations into account in making its recommendations to the Attorney-General.
What are Suspended Sentences?
A suspended sentence involves the court:
- Imposing a term of imprisonment on an offender; and
- Ordering that all or part of the gaol term be held in suspense for a set period (‘the operational period’).
If the offender commits another offence punishable byimprisonmentduringtheoperationalperiod, then the court may order the offender to serve part or all of the original term of imprisonment.
UndertheSentencingAct1991anorderto suspend a sentence of imprisonment may only be considered where a term of imprisonment is first determined by the court to be appropriate.[2] That is, a sentence of imprisonment is first imposed, andthen an order is made suspending it.
A suspended sentence under the legislation, whether wholly or partly suspended is taken to be a sentence of imprisonment.[3]However, in the case of a wholly suspended sentence, the offender does not serve any time in prison and is permitted to remain in the community.[4]
How do Suspended Sentences Operate?
Case Study 1—Wholly Suspended Sentence
Offender A is convicted of two charges of trafficking in cannabis. A is sentenced to three months' imprisonment on each of the two counts, to be served concurrently (ie a total of 3 months), and an order is made wholly suspending the sentence for 24 months. The offender is under sentence for 24 months (the operational period) and risks 3 months inprisonifheorshecommitsanotheroffence during that time. Unless the order is breached, the offender will not serve any time in prison.
Case Study 2—Partially Suspended Sentence
Offender B is convicted of several offences, including recklessly causing serious injury and armed robbery. B is sentenced to 2 years in prison, with 20 months of that 2 year sentence suspended for a period of 2 years. B will spend 4 months in prison,andwillthenbereleasedintothe community where B risks having the 20 month term of imprisonment restored if he or she commits an offence during the 2 year period.
Suspended Sentences in Australia
The power to order that a term of imprisonment be suspended exists in every jurisdiction in Australia. Differences exist between how the power operates in those jurisdictions, including:
- the length of the gaol term that is able to be suspended;
- the operational period;
- the options available to a court on breach;
- whether conditions attach to the order to suspend; and
- whether the sentence of imprisonment can be partially and/or wholly suspended.
Suspended Sentences in Victoria
Has Victoria always had suspended sentences?
No. Suspended sentences were previously available in the 1915 Crimes Act, and the 1928 Act, but were excluded from the 1958 Crimes Act. Suspended sentences were reintroduced in Victoria in 1986.
Sentencing Act 1991
Under the current Sentencing Act 1991 suspended sentences:
- may be wholly, or partially suspended;[5]
- may be used where the period of imprisonment imposed does not exceed 3 years (in the Supreme or County Courts) and 2 years (in the Magistrates’ Court);[6]
- can be suspended for the same length as the imprisonment term, or another period specified by the court (not exceeding 3 years, or 2 years in the case of the Magistrates’ Court).[7]
Breach of Orders
An offender who breaches a suspended sentence order by committing another offence punishable by imprisonment during the operational period is guilty ofaseparateoffenceundertheAct.[8]Breach proceedings may be commenced within 3 years of the date of the subsequent offence.
Amendments in 1997 restricted the options open to the court when dealing with an offender who has breachedhisorhersuspendedsentence.The court may impose a fine of up to $1,022.50[9] and must order the offender to serve all or part of the original gaol term ‘unless it is of the opinion that it would be unjust to do so in view of any exceptionalcircumstances’. Other orders which the court can make include extending the operational period (of a wholly suspended sentence) for up to 12 months, or making no order with respect to the suspended sentence.[10]
If the court decides not to restore all or part of the gaol term, it must state in writing its reasons.[11] Any restored gaol term must be served cumulatively on any other term of imprisonment previously imposed on the offender unless the court otherwise orders.[12]
General Principles Guiding Sentencing in Victoria
A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[13] For example, a court must not impose a gaol term if a non-custodial sentence would fulfil thepurposeforwhichthe sentenceisimposed. This is called the principle of parsimony.
Other principles which guide the Victorian courts when sentencing offenders, as set out in section 5 of the Sentencing Act 1991, are:
- Just punishment—to punish the offender to an extent and in a manner which is just in all of the circumstances;
- Specific and general deterrence—to deter the offender or other persons from committing offences of the same or a similar character;
- Rehabilitation—to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated;
- Denunciation—to manifest the denunciation by the court of the type of conduct in which the offender engaged;
- Community protection—to protect the community from the offender; or
- a combination of two or more of those purposes.[14]
In the case of juvenile offenders sentenced under the Children and Young Persons Act 1989, the emphasis is on rehabilitation.[15]
While some of these sentencing principles have a backward-looking focus (eg just punishment and denunciation),others,suchasrehabilitation,deterrence and community protection, are forward-looking. This reflects two different philosophies on the principal purposes of punishment: the ‘just deserts’ perspective and the utilitarian perspective. Supporters of the ‘just deserts’ approach (also commonly referred to as retributivism or non-consequentialism) emphasise the need for punishment to be proportionate to the crime and the culpability of the offender. In comparison, those who favour utilitarian or consequentialist justifications for punishment tend to focus on practical future outcomes, such as the protection ofthe community (for example, through the incapacitation of the offender), prevention of crime, reparation and rehabilitation.
One of the challenges for a sentencer in deciding on the appropriate sentence in an individual case is to determine which of these sentencing principles should be taken into account, and what weight they should be given.
Under the Act in sentencing an offender a court must also have regard to—
- the maximum penalty prescribed for the offence;
- current sentencing practices;
- the nature and gravity of the offence;
- the offender's culpability and degree of responsibility for the offence;
- thepersonalcircumstancesofany victim of the offence;
- anyinjury,lossordamageresulting directly from the offence;
- whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
- the offender'sprevious character; and
- the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.[16]
What Principles Guide the Court in Setting a Suspended Sentence?
The suspended sentence was originally intended to avoidthenegativeeffectsofashortprison sentenceonapersonwithgoodprospectsfor rehabilitation.[17]IncountriessuchasAustralia, suspended sentences also appear to have been introducedontheassumptiontheyweremore effective in deterring the offender from committing further offences than other non-custodial options.[18]
The purposes of suspended sentences are broadly:
to convey the seriousness of the offence and the consequences of re-offending to the offender, while alsoprovidinghimorherwithanopportunity to avoid the consequences by displaying good behaviour and by not repeating the relevant breach of the law or any similar breach of the law.[19]
Thesuspendedsentenceallowsdenunciationof the offender’s conduct to first take place through theformalimpositionoftheprisonsentence. Factors such as the offender’s prospects for rehabilitation may then come into play in deciding whether an order should be made to suspend the term of imprisonment. An order to suspend is therefore often used where the court determines that a sentence of imprisonment is appropriate based on the nature of the offence and the circumstances,butdecidesitwouldbe inappropriate to send the offender (often a first-time offender) to prison.[20]
The leading Australian case on suspended sentences is the High Court decision in R v Dinsdale.[21] The High Court, considering an appeal on the Western Australian suspended sentence provisions,advocatedatwostepprocessfora court in applying a suspended sentence. The judge should first decide on the appropriate sentence to beimposed.Havingdecidedthatthisisagaol term,ofaparticularlength,thejudgecanthen make an order to suspend the gaol term for a set period of time.
The High Court also found that rehabilitation is not the only factor that should be taken into account, but that all matters relevant to the circumstances of the offence (including the objective gravity) as well as those personal to the offender should be taken into consideration.
Sentencing Options in Victoria
Suspended sentences are just one of several sentencing orders available to Victorian courts under the Sentencing Act 1991. Some of the commonly used sentencing orders are listed in Table 1.
Table 1: Sentencing Orders in Victoria[22]
Disposition / DescriptionImprisonment / Custodial term set is subject to the maximumpenalty for the offence. The accused must first be convicted of an offence.
- Indefinite custody where the offender is deemed a danger to society (is reviewed by the court after a set period)
- Cumulative prison terms for serious offences*
- If the offender is under 21 but at least 17, they may be ordered to be detained in a Youth Training Centre
Combined Custody and Treatment Order / Combination of prison term followed bysupervised drug rehabilitation treatment while living in the community. The accusedmust first be convicted of an offence.
Drug TreatmentOrder[Drug Court Division of the Magistrates’ Court only—Pilot Program] / A two part order consisting of: (1) atreatment and supervision part and (2) a custodial part. The order can only be madeby the Drug Court and the accused must first be convicted of an offence. The offendermust consent and comply with a number of mandatory core conditions, including reporting to a community corrections centre and participating in treatment.
Home DetentionOrder / Prison sentence served by way of homedetention. The offender must consent and agree to comply with requirements of any conditions imposed. The accused must first be convicted of an offence
Intensive CorrectionOrder / Prison sentence served in the community,combining strictly supervised treatment, education and unpaid work. The accused must first be convicted of an offence.
Suspended sentence / Prison term which is suspended as a ‘lastchance’, subject to conditions to be of good behaviour (ie. not re-offend). The accusedmust first be convicted of an offence.
Youth Training Centre and Youth Residential Centre Orders / A sentence requiring a young offender (< 21yrs) to be detained in a Youth Training Centre (if 15yrs or >) or Youth Residential Centre (if < 15yrs). Maximum term is 3 yrs(Supreme or County Court) or 2 yrs (Magistrates’ Court). [Note: there is no power to suspend these orders]
Community BasedOrder / Supervised non-custodial sentence, with orwithout a conviction, with conditions combining treatment and work undertaken in the community.
Fine / Monetary penalty (can be in addition to orinstead of another order and with or without a conviction).
Undertaking / Release (unsupervised) with or withoutconviction on conditions relating to good behaviour, proceedings adjourned for up to 5 yrs.
Dismiss/Discharge / Release into the community followingcharges being dismissed, or following conviction.
*The court must apply cumulative prison terms to recidivist offenders found guilty of serious offences (arson, drug, violent and sexual offences), unless it considers it inappropriate to do so. In these cases, the principal purpose of imposing the sentence must be the protection of the community.
The Magistrates’ Court also has the power to defer sentencing a young offender aged 17 or over, but under 25 years,[23] and adjourn the proceedings for uptosixmonthstoenabletheoffenderto demonstrate their rehabilitation. Orders in additiontosentencewhichmay bemadeundertheAct includerestitutionorders,compensationorders, and the cancellation or suspension of a driver’s licence.
A different range of sentencing orders apply in the case of juvenile offenders sentenced in the Children’s Court under the Children and Young Persons Act 1989. Suspended sentences are not available under this legislation.
Where do Suspended Sentences Fit in the Sentencing Hierarchy?
In the current hierarchy of sentencing options in Victoria, suspended sentences fall between other custodial sanctions, such as imprisonment, a combined custody and treatment order, a drug treatment order, a home detention order and an intensivecorrectionorder,andnon-custodial orders, such as community-based orders.
How Common are Suspended Sentences in Victoria?
Following their re-introduction in 1986, suspended sentences have emerged as a relatively common sentencing option in the Victorian criminal justice system.In 2003–04, 5,417 gaol terms were suspended by Victorian criminal courts.This represents 7% of all defendants proven guilty in Victoria (either by a guilty plea or guilty verdict) (refer Table 2). This compares with New South Wales where suspended sentences account for around 4% of penalties handed down by all New South Wales courts,[24]and New Zealand where prior to their abolition, the proportion of suspended sentences was between 3% and 4%.[25]
Table 2: Victorian Criminal Courts—Defendants Proven Guilty by Sentence Type 2003–04[26]
Sentence type / Number / PercentageCustody in Corrections / 5,721 / 7%
Custody in Community / 1,307 / 2%
Fully Suspended Sentence / 5,417 / 7%
Non-custodial orders(includes monetary orders) / 64,488 / 83%
Sentence Unknown / 679 / 1%
Defendants Proven Guilty / 77,612 / 100%
Refer to footnote 27 for a description of sentence type classifications used for the following analysis and employed by the ABS.[27]
Suspended sentences are relatively more common in Victoria’s higher courts (refer Figure 1 and 2). This is because suspended sentences are intended as an alternative to custodial penalties and the higher courts deal with more serious crimes punishable by higher maximumpenalties.
In 2003–04, fully suspended sentences were the third most common sentence handed down by the Victorian Magistrates’ Court and the second most common sentence in the Victorian higher courts (refer Figure 1 and 2).Approximately 6% or 4,897 defendants proven guilty in the Magistrates’ Court received a fully suspended term of imprisonment.
Figure1:VictorianMagistrates’Court—Defendants Proven Guilty by Sentence Type 2003–04[28]
[Graph with five vertical bars, each representing a sentence type (in order from left to right): monetary orders, non-custodial orders, fully suspended sentences, custody in corrections, and custody in the community. The height of each bar indicates the percentage of offenders receiving each order in the Magistrates’ Court: just over 50% for monetary orders, just over 30% for non-custodial orders, less than 10% for fully suspended sentences, less than 10% for custody in corrections, and under 5% for custody in the community.]
In the higher courts in 2003–04, 23% or 520 defendants had their imprisonment term fully suspended (refer Figure 2). This compares with 14% of all defendants proven guilty in New South Wales higher courts, and a national average of 18% across all state and territory higher criminal courts.[29]
Figure 2: Victorian Higher Courts—Defendants Proven Guilty by Sentence Type 2003–04[30]
[Graph with four vertical bars, each representing a sentence type (in order from left to right):custody in corrections, fully suspended sentence, non-custodial orders, and custody in the community. The height of each bar indicates the percentage of offenders receiving each order in the higher courts: over 50% for custody in corrections, over 20% for fully suspended sentences, over 15% for non-custodial orders, and less than 5% for custody in the community.]
Across all states and territories in 2003–04, Victorian higher courts suspended the third highest proportion of imprisonment terms, with South Australia suspending the highest proportion (38% or 231 imprisonment terms) and Tasmania suspending the second highest (25% or 94 imprisonment terms) (refer Table 3).