Suspended sentences

[5-700] Section 12 Crimes (Sentencing Procedure) Act 1999

Suspended sentences were reintroduced as a sentencing option in NSW on 3 April 2000. Although s 12 is found in Pt 2 Div 3 Crimes (Sentencing Procedure) Act 1999 under the general heading, “Non-custodial alternatives”, a suspended sentence is not an alternative to imprisonment, as referred to in s 5: R v JCE (2000) 120 A Crim R 18 at [15]. It is a form of imprisonment. This is because under s 12 a sentence cannot be suspended until it has actually been imposed: R v Zamagias [2002] NSWCCA 17 at [25]. It is only the execution of the sentence that is suspended. However, for the purposes of s 54C (court to give reasons for imposing “a non-custodial sentence” for a standard non-parole period offence), “non-custodial sentence” includes a suspended sentence: R v Thawer [2009] NSWCCA 158 at [38].

In the Second Reading Speech for the Crimes (Sentencing Procedure) Bill 1999, NSW, Legislative Council, Debates, 28 October 1999, p 2326, the then Attorney General (NSW), the Hon RJ Debus said:

The primary purpose of suspended sentences is to denote the seriousness of the offence and the consequences of re-offending, whilst at the same time providing [offenders] an opportunity, by good behaviour, to avoid the consequences. Their impact on the offender is, however, weightier than that of a bond.

The provisions governing suspended sentences have been amended a number of times since April 2000.

Section 12 Crimes (Sentencing Procedure) Act provides:

(1) 

A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:

(a) 

suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and

(b) 

directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.

(2) 

An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.

(3) 

Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section.

(4) 

An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment.

[5-710] Availability and length

Section 12(1)(a) provides that the order suspending a sentence of imprisonment may be made in respect of the whole (as opposed to part) of a sentence of imprisonment of up to 2 years. It is no longer possible to partially suspend a sentence of imprisonment for a State offence (see previously, R v Gamgee (2001) 51 NSWLR 707). This is to be contrasted with s 20(1)(b) Crimes Act 1914 (Cth).

[5-720] Commencement and setting non-parole period

Section 12(3) provides that, subject to s 99(1), Pt 4 does not apply to a sentence of imprisonment the subject of a s 12 order: R v Egan [2013] NSWCCA 196 at [82]; Amado v R [2011] NSWCCA 197 at [11]. Part 4 includes, inter alia, Div 1 “Setting terms of imprisonment” and Div 2 “Concurrent and consecutive sentences”. A court should not specify a commencement date when suspending a sentence because that date will be determined if, and when, a court revokes the bond under s 99(1)(c) in which case, by reason of s 99(1)(c)(ii), Pt 4 of the Act operates: R v JW (2010) 199 A Crim R 486 at [218]. A form of order (subject to the later amendment by the court where the commencement date is deleted) can be found in R v JW at [204].

The non-parole period is set after the good behaviour bond is revoked. This allows the sentencer at breach proceedings to consider the issue of special circumstances under s 44(2) Crimes (Sentencing Procedure) Act, and anything the offender has done since the suspended sentence was imposed. (As to previous practice, see Barrett v DPP [2006] NSWCCA 210 at [10]–[13].)

[5-730] Prohibition against backdating, post-dating consecutive sentences and suspending limiting terms

There is no power to backdate or post-date the commencement of a s 12 bond: R v Croaker [2004] NSWCCA 470 at [22] citing R v Tolley [2004] NSWCCA 165 at [26]; Pulitano v R [2010] NSWCCA 45 at [9]; R v Egan [2013] NSWCCA 196 at [82]. Nor is it is possible for a court to impose a consecutive, or partly consecutive, suspended sentence at the time of its imposition: R v JW (2010) 199 A Crim R 486 at [218]; R v Egan at [82]. The power to do so only arises on revocation of the s 12 bond when Pt 4 has application to the sentencing exercise: s 99(1)(c)(ii).

It is not permissible to suspend a limiting term: Warren v R [2009] NSWCCA 176 at [20]. The language of s 23 Mental Health (Forensic Provisions) Act 1990 is specific and does not contemplate alternative forms of imprisonment. If the court determines that it would have imposed a sentence of imprisonment, its only option is to nominate a limiting term. Nor can a court impose an aggregate suspended sentence: see further Suspended sentences and multiple offences at [5-760].

[5-740] Terms and conditions

The terms and conditions attaching to a suspended sentence will include those applying to a good behaviour bond: Pt 8 Crimes (Sentencing Procedure) Act.

[5-750] Steps involved in imposing a suspended sentence

It is more accurate to describe the process of imposing an alternative form of imprisonment as a three-stage process, even though it has been referred to as two-staged: Douar v R (2005) 159 A Crim R 154 at [69]–[72] and see Dinsdale v The Queen (2000) 202 CLR 321 at [79]; R v Foster [2001] NSWCCA 215. The three steps have been described by Basten JA as being unrealistic (a view not supported by the other Justices in the case): Amado v R [2011] NSWCCA 197 at [5].

Step 1

Initially the court must determine whether a sentence of imprisonment is warranted. Section 5(1) Crimes (Sentencing Procedure) Act provides:

A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

Although a sentencing judge must explain his or her decision, it is unnecessary for every sentencing option to be discussed: R v JCE (2000) 120 A Crim R 18. For instance, it would not be necessary to discuss why community service was not an appropriate sentence for someone convicted of murder. It is transparent enough to refer to this step as an “antecedent issue” to signify that the terms of s 5 have been taken into account: O’Brien v R [2013] NSWCCA 197 at [33].

Step 2

Once the sentencing option of imprisonment is selected, the court must determine the length of the sentence. The determination of the length is made without consideration of the manner in which the sentence of imprisonment will be served: R v Zamagias [2002] NSWCCA 17 at [26]. It is impermissible to shorten the length of the sentence which has been determined “to make it qualify for suspension”: R v Ryan (2006) 167 A Crim R 241 at [2], [4]. The corollary of this principle is that it is impermissible to lengthen the duration of a suspended sentence because of the leniency of the sentencing option or as Wood CJ at CL put it: “it is inappropriate to compensate for the leniency”: R v Stephen [2003] NSWCCA 377 at [23]; R v Ngo [2005] NSWCCA 107 at [33]. Either way it is error to decide that the term of imprisonment should be suspended before determining its length: Burnard v R (2009) 193 A Crim R 23 at [114]–[116].

A sentencer is not required to expressly state that these first two steps have been taken before the sentence is suspended: R v Eckermann [2013] NSWCCA 188 at [52]. A failure to do so, however, may lead an appellate court to carefully examine the judge’s findings: R v Zamagias at [30]. But the mere fact that a judge asked whether the sentence should be suspended before announcing the term of imprisonment, does not necessarily indicate error: R v Eckermann at [52].

Step 3

Where the term of imprisonment is 2 years or less, the court decides whether or not the sentence ought to be suspended: Dinsdale v The Queen (2000) 202 CLR 321 at [79]; R v Foster [2001] NSWCCA 215. Justice Howie said in R v Zamagias [2002] NSWCCA 17 at [28]:

… the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B.

It is important to keep the stages in the imposition of a suspended sentence separate. In Dinsdale v The Queen, Kirby J said at [79]:

The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court with the responsibility of sentencing is “not quite certain what to do”.

To treat a suspended sentence as an unavailable result, when it is within range, is an error capable of being remedied on appeal: Kutchera v R [2007] NSWCCA 121 at [43].

In exceptional circumstances a court may impose a suspended sentence in order to recognise extreme hardship to third parties: R v MacLeod [2013] NSWCCA 108 at [43], [45], [54]. The facts in R v MacLeod did not warrant the imposition of a suspended sentence.

[5-760] Suspended sentences and multiple offences

A court sentencing an offender for multiple offences is required to give consideration to questions of totality and to what extent the sentences for different offences should be made concurrent or cumulative, before making any decision to suspend the execution of any of the sentences: Burnard v R (2009) 193 A Crim R 23 at [111]; R v Egan [2013] NSWCCA 196 at [83]. The court must determine what would be appropriate sentences for all of the offences, before determining whether any of the sentences should be suspended.

A court is prohibited from utilising the aggregate sentencing provisions in s 53A when imposing a suspended sentence: R v RM [2015] NSWCCA 4 at [53]–[57]. This is because s 53A is found in Pt 4. It does not apply to a sentence of imprisonment the subject of a s 12 order: s 12(3); R v Egan at [82]; R v RM at [54].

[5-770] Suspended sentences and prior imprisonment

Section 12(2) prohibits the imposition of a suspended sentence when the offender is subject to some other sentence of imprisonment. The phrase “some other sentence of imprisonment” refers to the non-parole and parole period, since s 132 Crimes (Administration of Sentences) Act 1999 provides that an offender released on parole continues to serve the sentence during the parole period: R v Edigarov (2001) 125 A Crim R 551 per Wood CJ at [29]–[32].

[5-780] Breaches and jurisdictional limits

Proceedings for a breach of a good behaviour bond can be dealt with by the court that imposed the suspended sentence, or “any court of like jurisdiction”, or “with the offender’s consent by any other court of superior jurisdiction”: s 98(1) Crimes (Sentencing Procedure) Act; R v Dinh (2010) 199 A Crim R 573 at [86]. The expression “any court of like jurisdiction” empowers the Local Court to deal with a breach of a s 12 bond which was imposed by the District Court following a successful sentence appeal (from the Local Court). Further, s 71(3) Crimes (Appeal and Review) Act 2001 (headed “Variation of sentences of Local Court”) provides: “Any sentence varied or imposed by an appeal court, and any order made by an appeal court under this Act, has the same effect and may be enforced in the same manner as if it were made by the Local Court.”

However, s 98(1) does not empower the Local Court to deal with a breach of a s 12 bond for matters dealt with on indictment in the District Court or Supreme Court including matters committed by the Local Court to those courts for sentence. This is because the Local Court is not a “court of like jurisdiction”.

Notwithstanding the specific scenario referred to in R v Dinh, a court of superior jurisdiction cannot deal with a suspected breach of bond imposed in an inferior court unless the offender has given express consent:Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653 at [43]. This rule applies where a bond imposed in Local Court is confirmed by the District Court following a severity appeal. The Local Court only has jurisdiction to deal with the call-up proceedings (unless consent has been given): Yates v The Commissioner of Corrective Services, NSW.

See the discussion at [4-770].

Section 98(3) provides:

In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied:

(a) 

that the offender’s failure to comply with the conditions of the bond was trivial in nature, or

(b) 

that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond.

The mandatory terms of s 98(3), “a court must revoke”, are to be contrasted with the terms of s 98(2), “ a court may”, which govern the revocation of a s 9 bond under the Crimes (Sentencing Procedure) Act: DPP (NSW) v Burrow [2004] NSWSC 433 at [23].

In DPP v Nouata [2009] NSWSC 72 at [6] and DPP (NSW) v Burrow [2004] NSWSC 433 at [12], it was held that the magistrate erred by failing to make findings referred to in s 98(3)(a)and (b) during call-up proceedings in which it was decided that no action would be taken on the breach of a s 12 bond.

[5-782] Decision whether to revoke s 12 bond

In DPP (NSW) v Cooke (2007) 168 A Crim R 379 at [15], the Court of Appeal held that when a sentencer is deciding whether “good reasons” exist within the terms of s 98(3)(b), the principal consideration is the conduct giving rise to the failure to comply with the conditions of the bond and whether that conduct can be excused. Good reasons may include extenuating circumstances which explain the behaviour giving rise to the breach: at [16].

The court held in DPP (NSW) v Cooke at [26] that the sentence to be imposed for the offence giving rise to the breach cannot be taken into account in determining whether to revoke the bond. The court may consider the seriousness of the behaviour giving rise to the breach and what that behaviour discloses about the attitude of the offender with regard to the obligations imposed by the bond. This will be relevant both to a determination of whether to revoke the bond and to an assessment of the sentence to be imposed for the offence giving rise to the breach.

The court also held in DPP (NSW) v Cooke that it was an error of law for the judge to take into account subjective matters relating to the offender that existed at the time of the breach proceedings, such as the offender’s need for rehabilitation rather than imprisonment. Subjective matters of the offender at the time of the breach proceedings are irrelevant to a determination under s 98(3)(b): at [15], [31], [34]. Subjective matters are relevant to setting the non-parole period following the revocation of the bond.

The court in DPP (NSW) v Cooke did not decide whether a court is permitted to take into account the impact of the revocation of the bond (as is the case in SA: see R v Marston (1993) 60 SASR 320). Even assuming that a court could, it would be a rare case where it would be appropriate to do so. The court doubted the suggestion in DPP (NSW) v Burrow [2004] NSWSC 433 that the decision of R v Marston (1993) 60 SASR 320 is applicable in NSW. There are differences in the SA legislation. Suspended sentences can be up to 3 years in SA. Other forms of imprisonment such as periodic detention (abolished as a sentencing option in NSW on 1 October 2010; see now Intensive correction orders (ICOs) at [3-600]) and home detention are not considered at the time of breach in SA.

Justice Howie said at [25]:

… the intention of Parliament, that is made clear from the special provisions made for bonds under s 12 and the need for “good reasons” to be found, [is] that in the ordinary case a failure to comply with the conditions of the bond will result in its revocation. The court does not determine the existence of good reasons in a vacuum. It does so in the context of the policy and purpose behind the suspended sentence regime and by recognising that by excusing the breach the implicit threat made to the offender at the date of the imposition of the suspended sentence will not be carried out. If the realisation of this threat is avoided in inappropriate cases, it can only result in the lowering of respect for the orders of the court by the offender and the public in general.

In DPP (NSW) v Cooke at [23], the court said:

… there is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison.

This passage has been cited with approval in Edwards v R [2009] NSWCCA 199 at [15]; R v Dinh (2010) 199 A Crim R 573 at [83]–[84]; and R v Nicholson [2010] NSWCCA 80 at [16].

[5-785] Timing of disposal of further or subsequent offences

According to R v Cooke [2007] NSWCCA 184 at [18], the revocation order should be made before any sentences are imposed for further offences committed after the imposition of the suspended sentence:

A Court exercising the jurisdiction to call an offender before it for breach of a good behaviour bond as provided for in s 98(1) should, if it determines to revoke the bond under s 98(2)(c) or s 98(3), make that order before determining what, if any, further order will be made consequent upon the revocation and before considering what, if any, penalty will be imposed for the conduct giving rise to the breach.

The court reasoned at [18]:

This has the virtue of making the exercise of discretion under s 99 a demarked and separate sentencing exercise, although we note that s 99(4) provides that this will be the effect of a sentence imposed under the section in any event. Sentencing for the breach first also allows for the principle of totality to operate in the event that both the breach and the conduct giving rise to it are punished by a term of imprisonment.

Principles distilled from R v Cooke are discussed further by Howie J in “Criminal law update 2007” (2007) 19(8) JOB 65.

The correct sequential approach is therefore to first revoke the suspended sentence bond or bonds pursuant to s 99 and then consider the appropriate sentence for the offence(s) for which the s 12 bond was imposed at the same time as considering the sentences to be imposed for any later offences: R v Taane [2014] NSWCCA 330 at [39]. This task is guided by the principle of totality: R v Taane at [39].

Outstanding s 12 bonds

A judge who is aware of an outstanding s 12 suspended sentence bond imposed in the Local Court should refuse to pass sentence for further offences until the respondent has been sentenced for the breach of the s 12 bond by the Local Court: R v Nicholson [2010] NSWCCA 80 at [14]. Justice Howie said in R v Nicholson at [16]:

… it appears that the prosecution and some District Court Judges are having insufficient regard to the fact that an offender, who is being sentenced, is subject to a bond in relation to a suspended sentence that has been breached by the offence for which sentence is being passed. It is the duty of the prosecutor to bring such a matter to the attention of the sentencing judge if action has not been taken to have the breach of the bond dealt with before sentencing.

If the prosecution discharges its duty the breach is properly dealt with before the proceedings for the further and subsequent offences: R v Dinh [2010] NSWCCA 74 at [85]. It is only then that a court can have proper regard to the issues of accumulation, concurrency and totality: R v Dinh at [85].

[5-790] Effect of revocation and commencement of the sentence

By the terms of ss 12 and 99 the suspended sentence of imprisonment commences on the date of the revocation of the bond. (See the discussion of previous problems with the sections in R v Tolley [2004] NSWCCA 165 at [26] and R v Graham (2004) 62 NSWLR 252 at [45].)

Section 99 of the Act provides:

(1)

If a court revokes a good behaviour bond:

(c) 

in the case of a bond referred to in section 12:

(i) 

the order under section 12 (1) (a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and

(ii) 

Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part.

(iii) 

(Repealed).

(2)

Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates is to be served by way of an intensive correction order or home detention.

(3)

An order made under subsection (2) is taken to be a home detention order made under section 6 or an intensive correction order made under section 7, as the case requires.

(4)

This Act applies to the sentencing or re-sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction.

(5)

An offender who under this section is sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence.

The effect of these provisions is that where the court revokes a good behaviour bond in respect of an order made under s 12(1)(a), the order under s 12(1) suspending its execution ceases to have effect in relation to the sentence of imprisonment: s 99(1). Pt 4 Crimes (Sentencing Procedure) Act applies to the sentence. That Part makes provision for the court to set a commencement date and to set a non-parole period or fixed term taking into account, under s 24(b)(i) and (ii), the fact that the person has been the subject of a bond and anything done by the offender in compliance with the offender’s obligations under the bond: s 99(1)(c)(ii).

Section 99(2) provides the court may, on revoking the s 12 bond, make an order directing that the sentence of imprisonment be served by way of an intensive correction order or home detention. Sentence proceedings can miscarry if a court fails to consider the options provided by s 99(2) where they are realistic sentencing outcomes: Lambert v R [2015] NSWCCA 22 at [46]. This is subject to Pts 5 and 6 Crimes (Sentencing Procedure) Act (relating to sentence procedures for an intensive correction orders and home detention, respectively): s 99(2). Any intensive correction order that is made under s 99(2) is taken to have been made pursuant to s 7 Crimes (Sentencing Procedure) Act. Any home detention order that is made in relation to s 99(2) is taken to have been made pursuant to s 6 Crimes (Sentencing Procedure) Act.

There is no prohibition on the court considering the form of imprisonment selected when determining whether it should decline to set a non-parole period under s 45 Crimes (Sentencing Procedure) Act: R v Dickinson [2005] NSWCCA 284 at [15]–[16]. In R v Dickinson at [16], the court said that this is:

… essential to an informed decision about whether there should be parole and when it should commence. Not to have regard to such matters would be contrary to common sense as well as sound sentencing practice.

A court cannot impose another suspended sentence after revocation

The task following the revocation of a s 12 bond does not entail re-sentencing the offender: R v Tolley [2004] NSWCCA 165 at [29]. If a court revokes a s 12 bond it is then presented with limited options. Section 99(2) restricts the sentencing options on revocation the court may make (other than full time imprisonment) to a sentence of imprisonment to be served by way of an intensive correction order or home detention: R v Tolley at [30] (interpreting a materially similar provision to the present regime). There is no power to consider other sentencing options such as a suspended sentence or a community service order. Further, the court cannot impose another suspended sentence on the basis that the decision(s) to be made following the revocation do not involve, in the terms of s 12(1), imposing “a sentence of imprisonment on an offender”. This has already occurred.

[5-800] Pre-sentence custody

Section 24(a) Crimes (Sentencing Procedure) Act requires the court to take into account any time for which the offender has been held in custody in relation to the offence. The question of when and how pre-sentence custody should be taken into account in the case of suspended sentences was discussed in White v R [2009] NSWCCA 118 and Pulitano v R [2010] NSWCCA 45. The following sets out two suggested approaches. The first approach involves time being taken into account at the time of the imposition of the suspended sentence. This can include reducing the sentence imposed and/or the manner in which it is to be served. The second approach involves taking pre-sentence custody into account at the time of revocation of the bond: Pulitano v R at [9]. There is no statutory power to later reduce the duration of the suspended sentence at the call-up proceedings (following the revocation of the s 12 bond). It is also not permissible to post-date or backdate a suspended sentence at the time of its imposition: Pulitano v R at [9]; R v Egan [2013] NSWCCA 196 at [82].

1. At the time of revocation of the bond

The sentencer imposes the suspended sentence but does not at that stage reduce it for any pre-sentence custody. Once the bond is revoked the sentencer backdates the sentence of imprisonment — either the non-parole period or fixed term — to take into account pre-sentence custody. In addition, s 99(1)(c)(ii) Crimes (Sentencing Procedure) Act requires the court to also take into account anything done in compliance with the bond while it was on foot: s 24. This approach of backdating at the time of revocation ensures that pre-sentence custody is deducted from the non-parole period rather than the term of sentence. This is fairer where the sentencer finds special circumstances: R v Youkhana [2005] NSWCCA 231 at [10]; R v McCabe (2006) 164 A Crim R 344 at [28]–[29].

2. At the time of the imposition of the suspended sentence

In the article by L Wells, “Crimes and Courts Legislation Amendment Act 2006” (2006) 18(11) JOB 91, the Crown Prosecutor and Director of the Criminal Law Review Division argues that a difficulty with the above approach:

… is that an offender is in effect subjected to a longer s 12 bond than is appropriate as his or her time served is not taken into account when the bond is initially imposed.

She advocates an alternative approach of reducing the suspended sentence:

… by the quantum of the pre-sentence custody at the time the s 12 bond is imposed, and if the bond is revoked, to take this initial reduction into account when setting a non-parole period. This course reflects the special nature of suspended sentences, in which the “sentence” at law is imposed at the time of imposing the s 12 bond.

The sentencing judge in White v R [2009] NSWCCA 118 at [15]–[18] gave effect to 9 weeks pre-sentence custody by imposing a sentence of less than 2 years duration and by suspending it. The applicant subsequently breached the bond and was called up. The second judge refused to take into account pre-sentence custody on the basis that the applicant had already been given credit for it when the suspended sentence was first imposed: White v R at [17]. The court held that there was no error in the approach taken. A similar approach was taken by the judge in Pulitano v R at [9], “albeit not explicitly”: at [15].

One of the problems faced by the sentencer in the call-up proceedings — at least in the Local Court where remarks on sentence are unlikely to be available — is knowing how the first sentencer dealt with pre-sentence custody.

[5-810] Appeals against revocations

Previously there were no rights of appeal from the revocation of a s 12 bond: Barrett v DPP [2006] NSWCCA 210 at [10]–[13]; R v Graham (2004) 62 NSWLR 252 at [45]. The Crimes and Courts Legislation Amendment Act 2006 amended s 99 to create appeal rights for s 12 bond revocations. It amended the definition of “sentence” in the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912 to clarify that the revocation of a good behaviour bond, and any orders made subsequent to revocation, are “sentences” as defined in those Acts. They are subject to appeal in the same way as any other sentence.

[5-820] Perceived leniency and the purposes of punishment

The discussion which follows collects the pertinent judicial statements on the subject. It is important to keep in mind that statutory schemes between States can vary considerably. A suspended sentence has often been described as a “Sword of Damocles” hanging by a thread over the head of the offender while the period of the bond is current. In R v Brady [1998] ABCA 7, the Alberta Court of Appeal of Canada questioned the severity of the suspended sentence, describing at [46] the Sword of Damocles metaphor commonly used for suspended sentences as a “butter knife”:

This metaphor exaggerates the severity of a conditional sentence. Even if a conditional sentence could be equated to a sword, it does not hang by a thread, but by a rope. And the only way this rope can break is if the offender himself cuts it. No one else can do so. This is within the exclusive and sole control of the offender. And with each passing day of the sentence, the “sword” shrinks until finally it becomes a butter knife.

The butter knife reference in R v Brady was picked up by Howie J in R v Tolley [2004] NSWCCA 165 at [22], in the context of a discussion of the breach provisions.

However, the court has consistently emphasised that a suspended sentence is a sentence in its own right and cannot be regarded as no punishment at all: R v JCE (2000) 120 A Crim R 18 at [15], [24]–[25]; R v Zamagias [2002] NSWCCA 17 at [31]; R v Foster [2001] NSWCCA 215 at [36].

In R v Zamagias [2002] NSWCCA 17, the court observed at [32]:

… a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment.

It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.

However, it has also been held that a suspended sentence is not an appropriate penalty where the court declares that the offence for which the offender is being sentenced is one where the element of general deterrence is of particular importance.

In R v Taylor [2000] NSWCCA 442, a case involving a robbery, Wood CJ at CL held that a full-time custodial order was necessary to reflect adequately the element of general deterrence. A suspended sentence “… provides very little, if anything, by way of general deterrence”: at [49].

Similarly, in R v Hinton (2002) 134 A Crim R 286 (a case where a s 20(1)(b) Crimes Act 1914 (Cth) suspended sentence of 2½ years was imposed by the trial judge for 16 counts of defrauding the Commonwealth), a suspended sentence was regarded as an “inappropriate punishment to denounce the criminality of the respondent” and did not adequately reflect “the need for general deterrence”: per Howie J at [35].

In Dinsdale v The Queen (2000) 202 CLR 321, Kirby J observed at [74]:

The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The “[c]onceptual [i]ncongruity” involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all.

His Honour at [80] further spoke of the leniency of, and community attitude toward, suspended sentences:

The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves.

In Amado v R [2011] NSWCCA 197, Basten JA at [5] questioned whether courts followed the steps in the process of imposing a suspended sentence:

If, after earnestly making the determinations required at steps one and two, the Court, as step three, then suspends the execution of the sentence, so the person is under no immediate liability to serve the specified period in custody, the result appears incongruous. Even such an appearance tends to undermine the purposes of sentencing set out in s 3A of the Sentencing Procedure Act. The incongruity, however, is not merely an appearance, but a reality. Furthermore, it is unrealistic to suppose that the Court actually reaches its conclusion by proceeding mechanically from step one to step three.

In Elliott v Harris (No 2) (1976) 13 SASR 516, Bray CJ said:

So far as being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future … A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.

As to where in the hierarchy of sentencing options the suspended sentence sits, Hidden J in R v Remilton [2001] NSWCCA 546 said at [11]:

This is not the occasion to express in any authoritative way the position which the suspended sentence occupies in the hierarchy of sentencing options now available in this State … The suspended sentence does have a denunciatory effect and certainly some deterrent effect …

Howie J commented at [28]–[29] in R v Remilton:

This case … raises the question of where in the hierarchy of sentencing options a suspended sentence stands.

Neither the philosophy that I can perceive behind the Act or the structure of the provisions of the Act assists in the answer to the conundrum highlighted by this case in which her Honour came to the view that other non-custodial options or alternatives to full-time custody would not adequately reflect the objective seriousness of this offence but that a suspended sentence would.

[5-825] Recidivism and suspended sentences

A NSW Bureau of Crime Statistics and Research study found that suspended sentences are as effective as a sentence of full-time imprisonment in reducing the risk of further offending: R Lulham, D Weatherburn and L Bartels, “The recidivism of offenders given suspended sentences: A comparison with full-time imprisonment” (2009) 136 Crime and Justice Bulletin 1.

[5-830] Proposed contingent abolition of suspended sentences

The NSW Law Reform Commission issued Report 139 “Sentencing” in July 2013 which states at p 230:

Recommendation 10.1: Abolition of suspended sentences:

1. 

If a revised Crimes (Sentencing) Act makes a community detention order (CDO) available as a sentencing option, suspended sentences should be abolished.

2. 

If suspended sentences are not abolished, they should be amended as set out in Recommendations 10.2–10.5.

In Victoria, the power to impose a suspended sentence was curtailed by the Sentencing Amendment Act 2010 (Vic) and the Sentencing Further Amendment Act 2011 (Vic) following recommendations of the Sentencing Advisory Council. A court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence or for a significant offence: s 27(2B) Sentencing Act 1991 (Vic).