NUMBER 29 – NOVEMBER 2003
Suspended Sentences in New South Wales
Senior Research Officer (Special Projects)
The sanction of suspended sentence set out under s 12 of the Criminal (Sentencing Procedure) Act 1999 was introduced as a sentencing option on 3 April 2000 following a recommendation of the NSW Law Reform Commission. The recommendation found that suspended sentences were very useful in situations where the seriousness of an offence was ameliorated by mitigating circumstances justifying the offender’s conditional release.1 Suspended sentences, it was said, were appropriate in circumstances where other forms of conditional release did not allow for a sufficient element of denunciation of the offence.
Prior to 1974, a form of suspended sentence had existed but it only applied in circumstances where the offender had not previously been convicted of an indictable offence and had been convicted of a minor offence and sentenced to a term of imprisonment.2 That penalty was abolished in 1974 following a recommendation of the NSW Criminal Law Committee, which concluded that the common law bond was a superior sentencing sanction for first time offenders and that the breach provisions of suspended sentences were too restrictive.3
Sufficient time has now elapsed since the reintroduction of the suspended sentence to allow meaningful examination of this sanction.
This paper is divided into two parts. Part I examines the law and use of suspended sentences in New South Wales (NSW) courts.4 Part II undertakes a statistical analysis and focuses on five main questions:
1. How often are suspended sentences imposed in the Local, higher and Children’s Courts of NSW?
2. What types of offences attract suspended sentences most often in the Local and higher courts?
3. What is the most common duration of suspended sentences imposed by the Local and higher courts?
4. What has been the impact of suspended sentences on sentencing patterns in the Local and higher courts?
PART I: LAW AND PRACTICE
What is a suspended sentence?
A suspended sentence is a sentence of imprisonment that has been imposed but not executed. Although the term of imprisonment is specified to be of certain duration, the offender is permitted to remainin the community for the whole of the sentence provided he or she enters into a good behaviour bond and abides by the conditions set down by the court.
Under NSW law, the authority to impose a suspended sentence is contained in s 12 of the Crimes (Sentencing Procedure Act) 1999. It provides as follows:
“(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.
In summary, a court that imposes a sentence of two years imprisonment or less may make an order suspending the sentence on condition that the offender enters into a good behaviour bond for a period not exceeding the term of the sentence, provided the offender is not subject to another sentence of imprisonment.
Imposing a suspended sentence
Two essential steps are involved in imposing a suspended sentence. Initially the court must determine whether a sentence of imprisonment is warranted. Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 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.” Once the sentencing option of imprisonment is selected the court must then determine the length of the sentence.5The determination of the length is made without consideration of the manner in which the sentence will be served.6 Where the term is two years or less, the sentencer decides whether or not the sentence ought to be suspended.7
IT IS IMPORTANT TO KEEP THE TWO STAGES IN THE IMPOSITION OF A SUSPENDED SENTENCE SEPARATE. FIRST, THE TERM OF IMPRISONMENT MUST BE SPECIFIED, AND SECOND, THE TERM MAY BE SUSPENDED WHERE IT IS LEGALLY AND FACTUALLY JUSTIFIED.8 IN R V FOSTER,9 the NSW Court of Criminal Appeal described the process involved in imposing a suspended sentence as follows:
“Once a Judge has decided that a term of imprisonment is appropriate the Act opens up various sentencing options. If the sentence imposed does not exceed three years, the Court may make a periodic detention order, …if the appropriate term of imprisonment does not exceed 18 months, the Court may make a home detention order, …and if the appropriate sentence to be imposed does not exceed two years, the Court may make an order under section 12 suspending execution of the sentence. The process clearly involves two stages.”
Therefore a suspended sentence is not an alternative to the imposition of a term of imprisonment because the sentence cannot be suspended until the term of imprisonment has been imposed.10
This two-step reasoning process has attracted criticism on the ground that the factors the court is required to take into account in imposing a suspended sentence — such as prospects of rehabilitation, prior convictions, age, employment and good character — are the same as those taken into account in deciding whether a sentence of imprisonment is justified.11 The discretion to suspend a sentence is not confined to the effect the suspended sentence will have on the offender’s rehabilitation.12
The Canadian Supreme Court, referring to an equivalent form of sentence, has termed the process a “penalogical paradox” suggesting in R v Proulx13that:
“It is unrealistic to believe that a judge would consider the objectives and principles twice or make a clear distinction in his or her mind between the application of ss 718 to 718.2 in the first stage and in the second stage. Even if this could be done, it could lead to a `penalogical’ paradox as described by J Gemmell [citation omitted]:
`…the judge must first determine that imprisonment is the only reasonable sanction in the circumstances then decide whether the offender should nevertheless serve that sentence in the community. The decision to impose a conditional release sentence is almost a kind of reductio ad absurdum of the original decision that called for imprisonment.’ [footnote omitted.]
This second step of the analytical process would effectively compromise the principles of sentencing that led to the imposition of a sentence of imprisonment in the first place.”
Australian commentators, prosecutors and courts have also identified the paradox that exists in the process outlined above.14 That is, the tension between the decision to imprison, having been satisfied that no penalty other than imprisonment is appropriate,15 and the decision to suspend.16 THE NSW COURT OF CRIMINAL APPEAL ATTEMPTED TO RESOLVE THIS PERCEIVED INCONSISTENCY IN R V JCE, by stating that a sentence of imprisonment that is suspended is nonetheless a sentence of imprisonment.17
SETTING A NON-PAROLE PERIOD
WHEN SUSPENDED SENTENCES WERE FIRST INTRODUCED, S 12 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 PROVIDED THAT WHERE A COURT MADE AN ORDER SUSPENDING A SENTENCE OF IMPRISONMENT IT WAS REQUIRED TO SET THE TERM OF THE SENTENCE THAT WAS SUSPENDED. THE COURT WAS NOT REQUIRED TO SET A NON-PAROLE PERIOD FOR THAT SENTENCE. THE NON-PAROLE PERIOD WAS SET UNDER S 99 IN THE EVENT OF A BREACH OF THE GOOD BEHAVIOUR BOND RESULTING IN THE REMOVAL OF THE SUSPENSION OF THE SENTENCE. SECTION 12(3) WAS AMENDED BY THE CRIMES (SENTENCING PROCEDURE) AMENDMENT (STANDARD MINIMUM SENTENCING) ACT 2002. SECTION 12(3) PROVIDES:
“Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence.”
The explanatory note to the Bill records that previously a court which suspended a sentence of imprisonment or a control order was not required to set the non-parole period. The note continues:
“The proposed amendments will make it clear that a Court is to set a non-parole period for a sentence or control order that is to be suspended.”
SOME OF THE KEY PROVISIONS OF PART 4 FOR PRESENT PURPOSES ARE:
- S 44, COURT TO SET NON-PAROLE PERIOD
- S 45, COURT MAY DECLINE TO SET NON-PAROLE PERIOD
- S 46, COURT NOT TO SET NON-PAROLE PERIOD FOR SENTENCE OF 6 MONTHS OR LESS
- S 47, COMMENCEMENT OF SENTENCE
- S 48, INFORMATION ABOUT RELEASE DATE
The language of the new s 12(3) can be construed narrowly or broadly. The narrow view is that where s 12(3) speaks of Part 4 not applying “…except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence” it only refers to s 44. That is, a court which suspends a term of imprisonment is to set a non-parole period. This view is reinforced by the use of the term “already” in s 99(1)(c)(ii):
“If a court revokes a good behaviour bond in the case of a bond referred to in section 12 the order under section 12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and Part 4 applies to the sentence, except to the extent to which it has already applied in relation to setting the non-parole period and the balance of the term of the sentence.” [emphasis added]
The narrow view would not allow the court to revisit the setting of the non-parole period at the time of revocation. This is, in part, because of the use of the term “already” in s 99(1)(c)(ii) quoted above. All this raises the practical problem that a court must anticipate whether special circumstances apply at the time of the suspension of the sentence rather than at the time of the revocation.
The broad reading of s 12(3) is that all of the provisions in Part 4 which, in the words of s 12(3), “… deals with setting the non-parole period and the balance of the term of the sentence” apply. Thus, although s 44 requires the court to set a non-parole period, it may decline to set the non-parole period for any of the reasons in s 45(1)(a), (b) and (c) and set a fixed term. Section 45(1)(c) refers to “… any other reason that the court considers sufficient”, for example, a decision that an offender will not benefit from a parole period.
There is another more obvious reason why s 12(3) cannot only be referring to s 44. Section 46 provides that where a court imposes a sentence of imprisonment of six months or less it is not to set a non-parole period. Section 46 must still apply to suspended sentences of imprisonment as well as full-time sentences of imprisonment. No doubt the Court of Criminal Appeal will resolve these difficult issues in due course.
IMPOSITION IN CONJUNCTION WITH OTHER SENTENCES
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 OF THE CRIMES (ADMINISTRATION OF SENTENCES) ACT 1999 (NSW) PROVIDES THAT AN OFFENDER RELEASED ON PAROLE CONTINUES TO SERVE THE SENTENCE DURING THE PAROLE PERIOD.19
IN R V FINNIE,20 THE NSW COURT OF CRIMINAL APPEAL UNANIMOUSLY HELD THAT THE WORDING OF S 12(2) AND THE REASONING OF R V EDIGAROV21 PRECLUDED THE IMPOSITION OF A SUSPENDED SENTENCE WHILE THE OFFENDER WAS SUBJECT TO PAROLE. HOWEVER, HOWIE J (WITH WHOM SPIGELMAN CJ AGREED), RESERVED THE QUESTION OF WHETHER THE SECTION PROHIBITS THE IMPOSITION OF A SUSPENDED SENTENCE BEFORE THE IMPOSITION OF ANY OTHER SENTENCE OF IMPRISONMENT, NOTING THAT HE WAS NOT AWARE OF ANYTHING IN THE ACT WHICH PROHIBITED SUCH A COURSE:22
“I can envisage a case where a court might believe it to be appropriate to impose a suspended sentence for one offence, and at the same time impose a short sentence for another offence even if that sentence were to be served in a custodial situation. Provided that the custodial sentence is imposed after the suspended sentence, section 12 would not appear to prevent such a course.
Nor is there anything of which I am aware at the present time, which would prohibit a court from imposing a custodial sentence on an offender who was serving a suspended sentence at the time of sentencing by the second court.”
WHERE DO THEY FIT IN THE SENTENCING HIERARCHY?
IN THE HIERARCHY OF PENALTIES AVAILABLE TO THE COURTS A SUSPENDED SENTENCE FALLS BETWEEN A NON-CUSTODIAL AND A CUSTODIAL SANCTION. MORE SPECIFICALLY IT APPEARS TO BE MORE SEVERE THAN A COMMUNITY SERVICE ORDER (CSO) AND LESS SEVERE THAN IMPRISONMENT SERVED BY WAY OF PERIODIC DETENTION. CERTAINLY, A SUSPENDED SENTENCE SHOULD NOT BE IMPOSED IF A NON-CUSTODIAL SENTENCE SUCH AS A COMMUNITY SERVICE ORDER IS APPROPRIATE.23 IN THIS REGARD, THE NSW COURT OF CRIMINAL APPEAL IN R V ZAMAGIAS SAID:24
“…the imposition of a sentence of imprisonment is a grave step for a court to take whether or not the offender’s liberty is immediately removed or curtailed. …[the] restrictions upon the power of a court to impose a sentence of imprisonment apply even if the sentence is suspended. A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended: JCE at , R v Foster at …That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive.”
WHEN IS A SUSPENDED SENTENCE APPROPRIATE?
IN R V JCE,25 FITZGERALD JA (WITH WHOM THE OTHER JUDGES AGREED) DISCUSSED THE CONSIDERATIONS RELEVANT WHEN IMPOSING A SUSPENDED SENTENCE OF IMPRISONMENT:
“Broadly stated, as Kirby J pointed out in Dinsdale, the material considerations are the objective features of the offence and the personal considerations applicable to the offender including considerations of rehabilitation and mercy.
HIS HONOUR WENT ON TO SAY THAT ALTHOUGH A SENTENCING JUDGE MUST EXPLAIN HIS OR HER DECISION, IT IS UNNECESSARY FOR EVERY SENTENCING OPTION TO BE DISCUSSED. FOR INSTANCE, IT WOULD NOT BE NECESSARY TO DISCUSS WHY COMMUNITY SERVICE WAS NOT AN APPROPRIATE SENTENCE FOR SOMEONE CONVICTED OF MURDER. MOREOVER, AS FITZGERALD JA SAID IN R V JCE THE ULTIMATE DECISION AS TO THE APPROPRIATE LENGTH OF THE SENTENCE OFTEN ENTAILS A SUBJECTIVE JUDGMENT WHICH CANNOT BE PRECISELY COMPREHENSIVELY ARTICULATED.27
SUSPENDED SENTENCES AND THE PURPOSES OF SENTENCING
IN ASSESSING THE ROLE OF SUSPENDED SENTENCES IT IS USEFUL TO REFER TO THE PURPOSES OF SENTENCING. THESE ARE PRESCRIBED BY S 3A OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999, WHICH COMMENCED OPERATION ON 1 FEBRUARY 2003. THE SECTION SETS OUT SEVEN PURPOSES:
- PROTECTION OF THE COMMUNITY
- PROMOTION OF REHABILITATION
- MAKING THE OFFENDER ACCOUNTABLE
- RECOGNITION OF HARM DONE TO THE VICTIM AND THE COMMUNITY
WHAT THEN IS THE MAIN PURPOSE OF USING A SUSPENDED SENTENCE? IN DINSDALE V THE QUEEN,28 KIRBY J (WITH WHOM GAUDRON AND GUMMOW JJ AGREED) REFERRED TO A LINE OF AUTHORITY IN AUSTRALIAN COURTS WHICH SUGGESTED THAT THE PRIMARY CONSIDERATION IN IMPOSING A SUSPENDED SENTENCE WAS THE REHABILITATION OF THE OFFENDER.29 HOWEVER, GLEESON CJ AND HAYNE J HELD THAT THE DISCRETION TO IMPOSE A SUSPENDED SENTENCE IS NOT CONFINED BY CONSIDERATIONS OF REHABILITATION. SIMILARLY, GAUDRON AND GUMMOW JJ, AGREEING WITH KIRBY J, ALSO SUGGESTED THAT THE POWER TO SUSPEND A SENTENCE “…IS NOT CONFINED BY REFERENCE WHOLLY, MAINLY OR SPECIALLY” TO THE EFFECT THAT SUSPENSION WOULD HAVE ON THE REHABILITATION OF THE OFFENDER.30
IT SEEMS THAT “DENUNCIATION OF THE OFFENDER’S CONDUCT” IS ALSO AN APPROPRIATE PURPOSE OF SUSPENDED SENTENCES. IT ACHIEVES THIS BECAUSE THE COURT HAS FOUND THAT THE OBJECTIVE CIRCUMSTANCES OF THE OFFENCE WARRANTS FULL-TIME CUSTODY. THE PRINCIPLES OF DETERRENCE AND PROTECTION OF THE COMMUNITY CAN ALSO BE SERVED BECAUSE SUCH A SENTENCE SIGNALS A STRONG WARNING TO THE OFFENDER AND TO THE COMMUNITY THAT THE OFFENDER IS UNDER NOTICE.31
IN THIS REGARD IN R V ZAMAGIAS, THE COURT OBSERVED: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, THE NSW COURT OF CRIMINAL APPEAL HAS 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,33 A CASE INVOLVING A ROBBERY, WOOD CJ AT CL HELD THAT A FULL-TIME CUSTODIAL ORDER WAS NECESSARY TO ADEQUATELY REFLECT THE ELEMENT OF GENERAL DETERRENCE WHICH HAD PARTICULAR SIGNIFICANCE BECAUSE OF THE PREVALENCE OF THAT PARTICULAR CRIME AND THE FACT THAT THE VICTIMS ARE MOST OFTEN THE AGED AND INFIRM. WOOD CJ AT CL SAID:34
“I am of the view that the sentence imposed in this case was manifestly lenient. It provided some measure of personal deterrence in that the respondent did serve a brief period of pre-sentence custody, which may have provided a short sharp lesson for him, and in that he remains subject to a suspended sentence which will see his return to gaol if he re-offends in any way. However, it provides very little, if anything, by way of general deterrence.”
SIMILARLY, IN R V HINTON,35 A CASE WHERE A S 20(1)(B) COMMONWEALTH SUSPENDED SENTENCE OF TWO AND A HALF YEARS WAS IMPOSED BY THE TRIAL JUDGE FOR 16 COUNTS OF DEFRAUDING THE COMMONWEALTH, THE NSW COURT OF CRIMINAL APPEAL ALLOWED A CROWN APPEAL AGAINST SENTENCE AND SUBSTITUTED A SENTENCE OF TWO YEARS TWO MONTHS PERIODIC DETENTION, WITH A NON-PAROLE PERIOD OF 14 MONTHS. HOWIE J SAID:36
“I am persuaded that in this particular case a suspended sentence was inappropriate punishment to denounce the criminality of the respondent particularly in light of the period over which the offences were committed and the breach of trust involved…the leniency involved in a suspended sentence could not in this case adequately reflect the objective seriousness of the offences committed or the need for general deterrence.”
FROM THE PRECEDING ANALYSIS IT SEEMS THAT THE EXERCISE OF THE DISCRETION TO SUSPEND A SENTENCE OF IMPRISONMENT MUST NOT LOSE SIGHT OF THE OBJECTIVE CIRCUMSTANCES OF THE OFFENCE. THEN THERE MUST BE A FINE BALANCING OF THE VARIOUS PURPOSES OF PUNISHMENT WITH PARTICULAR BUT NOT ALWAYS EXCLUSIVE CONSIDERATION OF THE COMPETING PRINCIPLES OF REHABILITATION (OFTEN SEEKING TO JUSTIFY SUSPENSION) AND GENERAL DETERRENCE (OFTEN WORKING AGAINST SUSPENSION).
SECTION 99(1) OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 SETS OUT THE PROVISIONS THAT APPLY WHEN THE GOOD BEHAVIOUR BOND ATTACHING TO A SUSPENDED SENTENCE IS BREACHED. THE COURT MUST REVOKE THE BOND UNLESS THE FAILURE TO COMPLY WITH THE BOND WAS TRIVIAL OR THERE WAS GOOD REASON FOR EXCUSING THE OFFENDER’S FAILURE TO COMPLY.37
SECTION 99 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, except to the extent to which it has already applied in relation to setting the non-parole period and the balance of the term of the sentence, and
(iii) subject to the requirements of Part 4 having been complied with, the sentence takes effect.
(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 (disregarding any part that has already been served) is to be served by way of periodic detention or home detention.”
IN R V HYDE,38 THE NSW COURT OF CRIMINAL APPEAL HELD THAT WHERE A SUSPENDED SENTENCE HAS BEEN BREACHED, THE SENTENCE OF IMPRISONMENT SUBSEQUENTLY IMPOSED CANNOT EXCEED THE PORTION OF THE ORIGINAL SENTENCE THAT HAD BEEN SUSPENDED. THE SENTENCING JUDGE IN THAT CASE HAD SUSPENDED ONLY PART OF THE SENTENCE, AND IT WAS ONLY THAT PART OF THE SENTENCE WHICH COULD BECOME OPERATIVE FOLLOWING THE REVOCATION OF THE BOND. SUCH A SITUATION WOULD BE RARE TODAY SINCE PARTIAL SUSPENSION OF A SENTENCE IS PRECLUDED BY S 12(1)(A), AND IS ONLY AVAILABLE FOR COMMONWEALTH OFFENCES.
A LIMITATION OF THE CURRENT PROVISIONS ON SUSPENDED SENTENCES RELATES TO THE TERM OF THE GOOD BEHAVIOUR BOND. IN THE AUTHORS’ OPINION, IT IS DEBATEABLE WHETHER RESTRICTING THE TERM OF THE BOND TO THE LENGTH OF THE PERIOD OF SUSPENSION IS A DESIRABLE POLICY. PARTICULARLY IN RELATION TO SHORT TERM SUSPENDED SENTENCES THERE WOULD APPEAR TO BE NO GOOD REASON FOR NOT GIVING COURTS POWER TO EXTEND THE BOND BEYOND THE TERM OF THE SUSPENDED SENTENCE OF IMPRISONMENT. SUCH AN EXTENDED BOND WOULD PROVIDE FOR THE POSSIBILITY OF INCREASING THE PROBATIONARY PERIOD AND THEREFORE IMPROVE THE PROSPECTS OF REHABILITATION OF THE OFFENDER AS WELL AS PROVIDE FOR INCREASED LEVELS OF COMMUNITY PROTECTION. A MORE FLEXIBLE FORM OF SUSPENDED SENTENCE WOULD ALSO INVITE GREATER USE OF THIS DISPOSITION.
THE POWER TO IMPOSE A SUSPENDED SENTENCE EXISTS FEDERALLY AND IN EVERY STATE AND TERRITORY JURISDICTION.39 THE JURISDICTIONS VARY IN RELATION TO THE MAXIMUM PERIOD FOR WHICH A SENTENCE CAN BE SUSPENDED, WHETHER SUSPENDED SENTENCES CAN BE IMPOSED AT THE SAME TIME AS SOME OTHER FORM OF IMPRISONMENT, AND THE RAMIFICATIONS OF A BREACH DURING THE SUSPENSION PERIOD. IN RELATION TO COMMONWEALTH OFFENCES, S 20(1)(B) OF THE CRIMES ACT 1914 (CTH) PROVIDES FOR THE CONDITIONAL RELEASE OF AN OFFENDER EITHER FORTHWITH OR AFTER HE OR SHE HAS SERVED A SPECIFIED PERIOD OF IMPRISONMENT.40 THIS MEANS THAT PARTIALLY SUSPENDED SENTENCES MAY BE IMPOSED FOR COMMONWEALTH OFFENCES BUT NOT FOR STATE OFFENCES IN NSW. AGAIN, THE LOSS OF THE ABILITY TO PARTIALLY SUSPEND A SENTENCE OF IMPRISONMENT FOR STATE OFFENCES REDUCES THE FLEXIBILITY OF THIS SENTENCE.
PERCEIVED LENIENCY OF SUSPENDED SENTENCES
IN HIS SECOND READING SPEECH TO THE CRIMES (SENTENCING PROCEDURE) BILL 1999, THE HONOURABLE MR DEBUS MP SAID:41
“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 [an offender who is subject to this sanction] an opportunity, by good behaviour, to avoid the consequences. Their impact on the offender is, however, weightier than that of a bond.”
THEY HAVE BEEN DESCRIBED AS HANGING OVER THE HEAD OF THE OFFENDER, LIKE THE SWORD OF DAMOCLES, WHICH WILL FALL AND ACTIVATE THE SENTENCE SHOULD THE OFFENDER FAIL TO OBSERVE ITS CONDITIONS. ONLY GOOD BEHAVIOUR AND OBSERVANCE OF THE BOND THAT ATTACHES TO THE SUSPENDED SENTENCE CAN PREVENT THE OFFENDER’S INCARCERATION.42
KIRBY J OPINED THAT THE REINTRODUCTION OF THE SUSPENDED SENTENCE AS A SANCTION IN NSW IS “A MEASURE OF THE FAVOUR WITH WHICH SUSPENDED SENTENCES ARE COMMONLY VIEWED”.43 HOWEVER, THEIR REINTRODUCTION WAS NOT WITHOUT OPPOSITION.44
“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 rhetoric, such sentences are seen by some not to constitute much punishment at all.”
BAGARIC46 EXPRESSES THEORETICAL OBJECTIONS TO SUSPENDED SENTENCES AND QUESTIONS THEIR PUNITIVE IMPACT. HE SAYS:
“Given that the avoidance of unpleasantness for those undergoing suspended sentences is totally within their control, during the period of `sentence’ they are in the identical position as the rest of the community, in so far as being subject to criminal sanction is concerned. The equation is the same: offend and risk jail; abide by the law and suffer no unpleasantness.”
THIS REASONING IS SIMPLISTIC AND ASSUMES THAT A SUSPENDED SENTENCE IS NO PUNISHMENT AT ALL. HOWEVER, THE OFFENDER HAS BEEN PROSECUTED, CONVICTED AND HAS FACED THE SENTENCING PROCESS WITH THE REAL THREAT OF GOING TO PRISON. THE ARGUMENT ALSO SEEMS TO ASSUME THAT THE SENTENCE IS SUSPENDED WITHOUT ANY RESTRICTIONS ATTACHED TO THE GOOD BEHAVIOUR BOND, SUCH AS PROBATIONARY SUPERVISION. IT ALSO DOES NOT ACKNOWLEDGE THE STIGMA OF HAVING SUCH A SENTENCE ENTERED ON THE OFFENDER’S RECORD.
HOWEVER, A CANADIAN COURT HAS QUESTIONED THE SEVERITY OF THE SUSPENDED SENTENCE DESCRIBING THE SWORD OF DAMOCLES AS A “BUTTER KNIFE”:47
“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.”
IT MAY BE INTERESTING TO SPECULATE ON HOW MEMBERS OF THE COMMUNITY VIEW THE SUSPENDED SENTENCE. DO THEY APPRECIATE ITS INTENT AND PURPOSE OR DO THEY SEE IT AS A “LET OFF.” A SURVEY IN ENGLAND HAS DEMONSTRATED THAT, DESPITE SUSPENDED SENTENCES BEING RANKED SECOND ONLY TO IMMEDIATE FULL-TIME IMPRISONMENT IN TERMS OF SEVERITY IN THE SENTENCING HIERARCHY, THE PUBLIC PERCEIVED SUSPENDED SENTENCES AS ONE OF THE LEAST PUNITIVE SANCTIONS, EVEN MORE LENIENT THAN A SMALL FINE.48 A REPORT GAUGING PERCEPTIONS OF SEVERITY OF COMMUNITY-BASED SANCTIONS IN SOUTH AUSTRALIA FOUND THAT WHILE JUDICIAL OFFICERS RANKED SUSPENDED SENTENCES AS THE NEXT MOST SEVERE AFTER HOME DETENTION, VICTIMS OF CRIME RANKED IT AS THE LEAST SEVERE.49 A SIMILAR ATTITUDE WAS EXPRESSED IN THE NSW MEDIA FOLLOWING THE IMPOSITION OF A SUSPENDED SENTENCE WHEN RADIO COMMENTATOR JOHN LAWS WAS CONVICTED FOR SOLICITING INFORMATION FROM A JUROR50 AND ALSO IN VICTORIA WHERE AN OFFENDER WAS GIVEN A SUSPENDED SENTENCE FOR KILLING HIS SON IN AN ARGUMENT OVER THE SON’S DRUG USE.51
IN CONTRAST, COURTS HAVE CONSISTENTLY EMPHASISED THAT A SUSPENDED SENTENCE IS A SENTENCE IN ITS OWN RIGHT AND CANNOT BE REGARDED AS NO PUNISHMENT AT ALL.52
IN ELLIOTT V HARRIS (NO 2)53 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.”
FURTHERMORE IN R V DAVEY,54 THE FEDERAL COURT CONSIDERED THE QUESTION OF WHETHER SUSPENDED SENTENCES WERE INHERENTLY LENIENT. MUIRHEAD J SAID:
“In my view it is erroneous to treat the suspension of a sentence of imprisonment as merely an exercise in leniency. Such an order is made in the community interest and is generally designed to prevent re-offending — which a prison sentence, standing alone, seldom does.”
IT IS FAIR TO SAY THAT SUSPENDED SENTENCES GENERATE A DEGREE OF CONTROVERSY AND A CONFLICT SEEMS TO EXIST BETWEEN JUDICIAL PERCEPTIONS AND THOSE OF THE PUBLIC.55 ON THE ONE HAND, THE LEGISLATURE AND SOME JUDGES APPEAR TO REGARD THE SUSPENDED SENTENCE AS A SEVERE SANCTION, WHILE OTHERS SEEM TO REGARD IT AS A SOFT OPTION.56 WHEREVER IN THE SCALE OF SEVERITY IT LIES, THIS SENTENCING OPTION REMAINS A SANCTION THAT WARNS, OR PUTS ON NOTICE, TO THE MAXIMUM EXTENT POSSIBLE, THAT THE CUSTODIAL TERM EMBODIED IN THE ORDER MAY BE ACTIVATED IF THE OFFENDER DOES NOT COMPLY WITH ITS TERMS. IN THIS RESPECT ITS FORCEFULNESS AND REPUTATION DEPENDS ON THE CAREFUL SELECTION OF CASES AND ON THE EXTENT TO WHICH THE COURTS ENSURE A TOUGH APPROACH TO ANY BREACHES THAT MAY OCCUR.
PART II: STATISTICAL ANALYSIS OF TRENDS
IN THIS PART WE EXAMINE A NUMBER OF QUESTIONS RELATING TO SUSPENDED SENTENCES, INCLUDING HOW OFTEN ARE THEY BEING IMPOSED, WHICH OFFENCES ATTRACT THE MOST SUSPENDED SENTENCES, WHAT IS THE MOST COMMON DURATION FOR THEM, WHAT IMPACT HAVE THEY HAD ON SENTENCING PATTERNS, AND HAVE THEY PRODUCED A “NET-WIDENING EFFECT”?
THE TIME FRAME
SUSPENDED SENTENCES BECAME AVAILABLE AS A PENALTY OPTION IN THE LOCAL AND HIGHER COURTS ON 3 APRIL 2000 AND THE FOLLOWING ANALYSIS EXAMINES SENTENCING DATA SPANNING FIVE AND A HALF YEARS — APPROXIMATELY TWO YEARS AND NINE MONTHS IN EACH BEFORE57 AND AFTER58 PERIOD.
THE DATA AND ITS LIMITATIONS
THE DATA WERE COLLECTED FROM THE LOCAL AND HIGHER COURTS OF NEW SOUTH WALES, PROVIDED BY THE BUREAU OF CRIME STATISTICS AND RESEARCH AND CONTAINED IN JIRS.59 IN ADDITION, THE CHILDREN’S COURT DATA WERE PROVIDED BY THE NSW DEPARTMENT OF JUVENILE JUSTICE.
THE DATA CONSISTED OF FIRST INSTANCE SENTENCING OUTCOMES AND ARE BASED ON THE PRINCIPAL OFFENCE. THE PRINCIPAL OFFENCE IS THE OFFENCE ATTRACTING THE SEVEREST PENALTY IN A GROUP OF OFFENCES FOR WHICH AN OFFENDER HAS BEEN CONVICTED. IN ADDITION, HIGHER COURT DATA WERE AMENDED TO TAKE INTO ACCOUNT OUTCOMES OF DECISIONS OF THE NSW COURT OF CRIMINAL APPEAL.60 PARTIALLY SUSPENDED SENTENCES FOR BOTH NSW AND COMMONWEALTH OFFENCES WERE COUNTED AS CUSTODIAL RATHER THAN SUSPENDED SENTENCES. CONVERSELY, WHERE THE OFFENDER WAS RELEASED FORTHWITH FOR A COMMONWEALTH OFFENCE, THESE WERE INCLUDED WITH THE NSW SUSPENDED SENTENCE CASES.61
IN ORDER TO MAKE MORE MEANINGFUL COMPARISONS, 20.5% OF LOCAL COURT OFFENCES WERE EXCLUDED FROM THE ANALYSIS BECAUSE IMPRISONMENT OR AN ALTERNATIVE TO FULL-TIME CUSTODY WAS NOT AN AVAILABLE PENALTY FOR THESE OFFENCES. AS A RESULT, IN OUR STUDY:
- THE RATE OF SUSPENDED SENTENCES APPEARS HIGHER (4.2% COMPARED TO 3.4% WHEN ALL OFFENCES ARE INCLUDED)
- THE RATE OF IMPRISONMENT APPEARS HIGHER (8.3% COMPARED TO 6.7% WHEN ALL OFFENCES ARE TAKEN INTO ACCOUNT)
- THE RATE OF NON-CONVICTION PENALTIES APPEARS LOWER (15.3% COMPARED TO 16.6% WHEN ALL OFFENCES ARE TAKEN INTO ACCOUNT)
THE ANALYSIS ALSO INCLUDES SOME OFFENCES WHERE A TERM OF IMPRISONMENT IS AVAILABLE ONLY FOR AN AGGRAVATED FORM OF THE OFFENCE OR FOR A SUBSEQUENT OFFENCE.62
THE ANALYSIS EXAMINES THE TEN MOST COMMON OFFENCES FOR WHICH A SUSPENDED SENTENCE WAS IMPOSED. WHERE APPLICABLE EACH OFFENCE INCLUDES INCHOATE OFFENCES (SUCH AS ATTEMPT, CONSPIRACY, ETC) AND COMPLICITY OFFENCES (SUCH AS ACCESSORY BEFORE THE FACT AND AID AND ABET). THE EXCEPTION IS ACCESSORY AFTER THE FACT WHICH USUALLY CARRIES A LOWER STATUTORY MAXIMUM PENALTY.63 IT SHOULD BE NOTED THAT THE SUBSTANTIVE OFFENCE ACCOUNTS FOR THE MAJORITY OF CASES WITHIN EACH OFFENCE GROUP.
RESULTS OF ANALYSIS
OVERALL, IN THE PERIOD FROM 3 APRIL 2000 TO 31 DECEMBER 2002, THERE WERE 9,278 INSTANCES WHERE A SUSPENDED SENTENCE WAS IMPOSED IN THE LOCAL COURT, ACCOUNTING FOR 4.2% OF ALL PENALTIES HANDED DOWN. THE MEDIAN TERM WAS NINE MONTHS AND THE MOST COMMON TERM WAS 12 MONTHS (26.3%), CLOSELY FOLLOWED BY SIX MONTHS (25.9%). SUPERVISION BY THE PROBATION AND PAROLE SERVICE (PPS) WAS A CONDITION OF THE BOND IN JUST OVER A HALF (53.9%) OF ALL SUSPENDED SENTENCES.
THERE WAS A HIGHER RATE OF SUSPENDED SENTENCES IMPOSED IN THE HIGHER COURTS (894 OR 11.7% OF ALL PENALTIES). THE MEDIAN TERM WAS 18 MONTHS AND THE MOST COMMON TERM WAS 24 MONTHS— ALMOST HALF (44.6%) THE SUSPENDED SENTENCES IMPOSED WERE FOR THIS DURATION. TERMS OF 12 MONTHS (19.9%) AND 18 MONTHS (19.1%) WERE ALSO COMMONLY IMPOSED. NOT SURPRISINGLY, A GREATER PROPORTION OF SUSPENDED SENTENCES IN THE HIGHER COURTS REQUIRED SUPERVISION BY THE PPS (68.0%).
OFFENCES COMMONLY ATTRACTING SUSPENDED SENTENCES
TABLES 1 AND 2 PRESENT THE TEN MOST COMMON OFFENCES FOR WHICH A SUSPENDED SENTENCE WAS IMPOSED IN THE LOCAL COURTS AND HIGHER COURTS RESPECTIVELY. IT SHOULD BE NOTED THAT THE TOP TEN OFFENCES DO NOT REPRESENT THE OFFENCES MOST LIKELY TO BE GIVEN A SUSPENDED SENTENCE.
IN THE LOCAL COURTS, THE TEN MOST COMMON OFFENCES ACCOUNT FOR ALMOST TWO-THIRDS (63.7%) OF ALL SUSPENDED SENTENCES IMPOSED. THE MOST COMMON OFFENCE WAS DRIVE WHILST DISQUALIFIED WITH 1,348 INSTANCES (14.5%), FOLLOWED BY COMMON ASSAULT (926 OR 10.0%) AND LARCENY (841 OR 9.1%).
IN THE HIGHER COURTS, THE TEN MOST COMMON OFFENCES ACCOUNT FOR MORE THAN HALF (56.8%) OF ALL SUSPENDED SENTENCES IMPOSED. THE MOST COMMON OFFENCE WAS, BY FAR, SUPPLY LESS THAN A COMMERCIAL QUANTITY OF A PROHIBITED DRUG WITH 174 INSTANCES (19.5%). ROBBERY, BEING ARMED OR IN COMPANY, WAS THE NEXT MOST COMMON OFFENCE (82 OR 9.2%), FOLLOWED BY ROBBERY OR STEAL FROM THE PERSON (54 OR 6.0%).
TABLE 1: MOST COMMON OFFENCES IN THE LOCAL COURTS WHERE A SUSPENDED SENTENCE WAS IMPOSED
(3 APRIL 2000 – 31 DECEMBER 2002)
||Drive whilst disqualified||Road Transport (Driver Licensing) Act 1998, s 25A(1)
|| Common assault
||Crimes Act 1900, s 61
||Crimes Act 1900, s 117||841
|| Knowingly contravene AVO
||Crimes Act 1900, s 562I||664
|| Assault occasioning actual bodily harm
||Crimes Act 1900, s 59(1)||608
|| Break, enter and steal
||Crimes Act 1900, s 112(1)||514
|| High range PCA
||Road Transport (Safety and Traffic Management) Act 1999, s 9(4)||297
|| Supply prohibited drug
||Drug Misuse and Trafficking Act 1985, s 25(1)
|| Assault with intent on certain officers
||Crimes Act 1900, s 58
|| Drive whilst refused/cancelled
||Road Transport (Driver Licensing) Act 1998, s 25A(3)
| Total for top ten offences
| All remaining offences
TABLE 2: MOST COMMON OFFENCES IN THE HIGHER COURTS WHERE A SUSPENDED SENTENCE WAS IMPOSED
(3 APRIL 2000 – 31 DECEMBER 2002)
|| Supply prohibited drug <commercial qualitya
||Drug Misuse and Trafficking Act 1985, s 25(1)
|| Robbery etc, being armed or in company
||Crimes Act 1900, s 97(1)||82
|| Robbery or steal from the person
||Crimes Act 1900, s 94||54
|| Assault occasioning actual bodily harm
||Crimes Act 1900, s 59(1)||43
|| Malicious wounding or inflict grievous bodily harm
||Crimes Act 1900, s 35(1)||41
|| Break, enter and commit serious indictable offence
||Crimes Act 1900, s 112(1)||37
|| Supply prohibited drug on an ongoing basis
||Drug Misuse and Trafficking Act 1985, s 25A||24
|| Aggravated break, enter and commit serious indictable offence
||Crimes Act 1900, s 112(2)||22
|| Use or possess weapon to resist arrest, etc
||Crimes Act 1900, s 33B(1)||16
|| Aggravated robbery or steal from the person
||Crimes Act 1900, s 95||15
| Total for top ten offences
| All remaining offences
WHAT HAS BEEN THE IMPACT OF SUSPENDED SENTENCES ON SENTENCING PRACTICE IN THE LOCAL AND HIGHER COURTS?
IN ORDER TO MAKE MEANINGFUL COMPARISONS IN THE PRE AND POST SUSPENDED SENTENCE PERIODS, THE TEN OFFENCES WITH THE MAJORITY OF SUSPENDED SENTENCES IMPOSED IN EACH JURISDICTION WERE SELECTED FOR SPECIAL ANALYSIS.
PENALTIES WERE GROUPED INTO THREE CATEGORIES:
- PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES IN THE HIERARCHY OF PENALTIES. THESE INCLUDE S 10 DISMISSALS AND GOOD BEHAVIOUR BONDS AND S 9 BONDS UNDER THE CRIMES (SENTENCING PROCEDURE) ACT 1999, S 19B DISMISSALS AND RECOGNISANCES AND S 20(1)(A) RECOGNISANCES UNDER THE CRIMES ACT (CTH) 1914, RISE OF THE COURT, FINES AND COMMUNITY SERVICE ORDERS.
- SUSPENDED SENTENCES UNDER S 12 CRIMES (SENTENCING PROCEDURE) ACT 1999 AND S 20(1)(B) CRIMES ACT (CTH) 1914.
- PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES IN THE HIERARCHY OF PENALTIES, INCLUDING PERIODIC DETENTION, HOME DETENTION AND FULL-TIME CUSTODY.
TABLE 3 COMPARES THE TRENDS IN PENALTIES IMPOSED IN THE PRE (5 JULY 1997 TO 2 APRIL 2000) AND POST (3 APRIL 2000 TO 31 DECEMBER 2002) SUSPENDED SENTENCE PERIODS IN THE LOCAL COURTS.
AS ALREADY MENTIONED, SUSPENDED SENTENCES IN THE LOCAL COURTS ACCOUNTED FOR 4.2% OF ALL PENALTIES IMPOSED WHERE IMPRISONMENT WAS AN AVAILABLE PENALTY. AS TABLE 3 SHOWS, THESE APPEAR TO HAVE BEEN USED AT THE EXPENSE OF LESS SEVERE PENALTIES WITH A DROP OF 3.6% (FROM 89.3% TO 85.7%) COMPARED TO A DROP OF 0.5% (10.7% TO 10.2%) IN MORE SEVERE PENALTIES.
ALL TEN OFFENCES IDENTIFIED IN TABLE 3 SHOWED A DROP IN THE PROPORTION OF CASES WHERE A PENALTY LESS SEVERE THAN A SUSPENDED SENTENCE WAS IMPOSED. FURTHER, ALL OFFENCES, WITH THE EXCEPTION OF ASSAULT WITH INTENT TO COMMIT A SERIOUS INDICTABLE OFFENCE ON CERTAIN OFFICERS, SHOWED A GREATER DECREASE IN THE USE OF PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES THAN IN THOSE MORE SEVERE THAN SUSPENDED SENTENCES.
THE OFFENCE WITH THE GREATEST DROP IN THE USE OF PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES WAS SUPPLY PROHIBITED DRUG. SUSPENDED SENTENCES ACCOUNTED FOR 16.3% OF ALL PENALTIES IMPOSED FOR THIS OFFENCE. INTERESTINGLY, ALL OF THOSE SUSPENDED SENTENCES APPEAR TO HAVE COME FROM PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES (FROM 65.1% PRE TO 48.8% POST).
SUSPENDED SENTENCES WERE IMPOSED FOR 13.3% OF BREAK, ENTER AND STEAL OFFENCES. THE MAJORITY OF THESE APPEAR TO HAVE COME FROM PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES WITH A DROP OF 12.3% (FROM 49.5% PRE TO 37.2% POST). AT THE OTHER END OF THE SCALE, THERE WAS ONLY A SMALL DROP (1.0%) IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES (FROM 50.5% PRE TO 49.5% POST).
DRIVE WHILST DISQUALIFIED — WHERE AROUND ONE IN TEN OFFENDERS (10.7%) RECEIVED A SUSPENDED SENTENCE — SHOWED A SIMILAR DROP (12.7%) IN THE USE OF PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES (FROM 76.5% PRE TO 63.8% POST). AT THE SAME TIME, THERE WAS A SLIGHT INCREASE (2.0%) IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES (FROM 23.5% PRE TO 25.5% POST). THE ONLY OTHER TOP TEN OFFENCE WHICH EXPERIENCED AN INCREASE IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES WAS DRIVE WHILST REFUSED OR CANCELLED (1.3% FROM 2.9% PRE TO 4.2% POST). A POSSIBLE EXPLANATION IS THAT OUR DATA FOR THESE DRIVING OFFENCES CANNOT DISTINGUISH BETWEEN FIRST AND SUBSEQUENT OFFENDERS, THE LATTER OF WHICH ARE SUBJECT TO AND MORE LIKELY TO RECEIVE HARSHER SENTENCES.
FIGURE 1: TRENDS IN OVERALL PENALTY TYPES IN THE LOCAL COURTS PRE (5 JULY 1997 – 2 APRIL 2000) AND POST (3 APRIL 2000 – 31 DECEMBER 2002) SUSPENDED SENTENCES
TABLE 3: TRENDS IN PENALTIES IN THE LOCAL COURTS PRE (5 JULY 1997 – 2 APRIL 2000) AND POST (3 APRIL 2000 – 31 DECEMBER 2002) SUSPENDED SENTENCES
||Drive whilst disqualified
||Knowingly contravene AVO||Pre||7,247
||Assault occasioning actual bodily harm
||Break, enter and steal
||High range PCA
||Supply prohibited drug
||Assault with intent on certain officers
||Drive whilst refused/cancelled
A PENALTY LESS SEVERE THAN SUSPENDED SENTENCE: INCLUDES S 10 OR S 19B (CTH) DISMISSALS AND S 10 OR S 19B (CTH) RECOGNISANCES, RISE OF COURT, FINES, S 9 BONDS OR S 20(1)(A) (CTH) RECOGNISANCES AND COMMUNITY SERVICE ORDERS.
B PENALTY OF SUSPENDED SENTENCE: INCLUDES S 12 SUSPENDED SENTENCES OR S 20(1)(B) (CTH) RECOGNISANCES.
C PENALTY MORE SEVERE THAN SUSPENDED SENTENCE: INCLUDES PERIODIC DETENTION, HOME DETENTION AND FULL-TIME CUSTODY.
D THE RELATIVELY FEWER NUMBER OF CASES IN THE PRE PERIOD CAN BE EXPLAINED BY THE MOVEMENT OF THESE OFFENCES FROM THE TRAFFIC ACT 1909 TO THE ROAD TRANSPORT (DRIVER LICENCING) ACT 1998 AND THE ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) ACT 1999. THESE OFFENCES COMMENCED ON 1 DECEMBER 1999.
TABLE 4: TRENDS IN PENALTIES IN THE HIGHER COURTS PRE (5 JULY 1997 – 2 APRIL 2000) AND
POST (3 APRIL 2000 – 31 DECEMBER 2002) SUSPENDED SENTENCES
||Supply prohibited drug <commercial quantity
||Robbery etc, being armed or in company
||Robbery or steal from the person
||Assault occasioning actual bodily harm
||Malicious wounding or inflict grievous bodily harm
||Break, enter and commit serious indictable offence
||Supply prohibited drug on an ongoing basis
||Aggravated break, enter and commit serious indictable offence
||Use or possess weapon to resist arrest, etc
||Aggravated robbery or steal from the person
B PENALTY OF SUSPENDED SENTENCE: INCLUDES S 12 SUSPENDED SENTENCES OR S 20(1)(B) (CTH) RECOGNISANCES.
C PENALTY MORE SEVERE THAN SUSPENDED SENTENCE: INCLUDES PERIODIC DETENTION, HOME DETENTION AND FULL-TIME CUSTODY.
D THE RELATIVELY FEWER NUMBER OF CASES IN THE PRE PERIOD CAN BE EXPLAINED BY THE FACT THAT THIS OFFENCE COMMENCED ON 7 AUGUST 1998. THE FIRST CASE WAS FINALISED ON 16 DECEMBER 1998, THE SECOND CASE WAS FINALISED ON 28 MAY 1999 AND THEN MORE FREQUENTLY.
ASSAULT WITH INTENT TO COMMIT A SERIOUS INDICTABLE OFFENCE ON CERTAIN OFFICERS, WAS THE ONLY TOP TEN OFFENCE WHERE THERE WAS A GREATER DECREASE IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES (3.9% FROM 13.5% PRE TO 9.6% POST) THAN IN THOSE LESS SEVERE THAN SUSPENDED SENTENCES (1.0% FROM 86.5% PRE TO 85.5% POST).
FIGURE 1 DISPLAYS THE FULL RANGE OF SENTENCES IMPOSED FOR ALL OFFENCES IN THE LOCAL COURT FOR THE PRE AND POST PERIODS. SINCE SUSPENDED SENTENCES BECAME AVAILABLE AS A PENALTY OPTION THERE HAS BEEN A VERY SLIGHT DECREASE IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES. THE USE OF FULL-TIME CUSTODY AND PERIODIC DETENTION HAVE FALLEN ONLY MARGINALLY (0.2% FROM 8.5% PRE TO 8.3% POST AND 0.3% FROM 1.9% PRE TO 1.6% POST RESPECTIVELY).
AT THE OTHER END OF THE SCALE, THE FIGURE CLEARLY SHOWS A GREATER REDUCTION IN THE USE OF PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES. SPECIFICALLY, FINES ACCOUNTED FOR THE LARGEST DROP (5.2% FROM 51.7% PRE TO 46.5% POST), FOLLOWED BY COMMUNITY SERVICE ORDERS (1.1% FROM 7.1% PRE TO 6.0% POST). INTERESTINGLY, THERE HAS BEEN AN INCREASE IN THE USE OF NON-CONVICTION DISMISSALS AND BONDS (2.8% FROM 12.5% PRE TO 15.3% POST). A POSSIBLE EXPLANATION MAY BE THAT MAGISTRATES ARE USING THIS OPTION MORE OFTEN TO AVOID IMPOSING HARSH OR MANDATORY PENALTIES FOR CERTAIN OFFENCES, INCLUDING AUTOMATIC LICENCE DISQUALIFICATION PERIODS.
TABLE 4 COMPARES THE TRENDS IN PENALTIES IMPOSED IN THE PRE (5 JULY 1997 TO 2 APRIL 2000) AND POST (3 APRIL 2000 TO 31 DECEMBER 2002) SUSPENDED SENTENCE PERIODS IN THE HIGHER COURTS.
JUST OVER ONE IN TEN OFFENDERS (11.7%) IN THE HIGHER COURTS RECEIVED A SUSPENDED SENTENCE. SURPRISINGLY, TABLE 4 SHOWS THAT RATHER THAN PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES DECREASING, THEY HAVE IN FACT INCREASED SLIGHTLY (1.1% FROM 72.9% PRE TO 74.0% POST) WHILST PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES HAVE SUBSTANTIALLY DECREASED (12.8% FROM 27.1% PRE TO 14.3% POST).
AS WITH LOCAL COURTS, SINCE THE REINTRODUCTION OF SUSPENDED SENTENCES, ALL TEN OFFENCES IDENTIFIED IN TABLE 4 SHOWED A DROP IN THE PROPORTION OF CASES WHERE A PENALTY LESS SEVERE THAN A SUSPENDED SENTENCE WAS IMPOSED. ON THE OTHER HAND, THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES VARIED ACCORDING TO THE TYPE OF OFFENCE — SOME INCREASED, SOME DECREASED AND SOME WERE UNCHANGED.
THE OFFENCE WITH THE GREATEST USE OF SUSPENDED SENTENCES WAS SUPPLY LESS THAN COMMERCIAL QUANTITY OF A PROHIBITED DRUG (21.8%). FOR THIS OFFENCE GROUP, IT APPEARS THAT SUSPENDED SENTENCES HAVE BEEN DRAWN FROM PENALTIES LESS SEVERE (11.8% FROM 32.9% PRE TO 21.1% POST) AND MORE SEVERE (10.0% FROM 67.1% PRE TO 57.1% POST). THIS TYPE OF OFFENCE ALSO HAD THE HIGHEST DROP IN PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES.
THE OFFENCE WITH THE GREATEST DROP IN THE USE OF PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES WAS ASSAULT OCCASIONING ACTUAL BODILY HARM. SUSPENDED SENTENCES ACCOUNTED FOR 18.9% OF ALL PENALTIES IMPOSED FOR THIS OFFENCE. INTERESTINGLY, ALMOST ALL OF THOSE SUSPENDED SENTENCES APPEAR TO HAVE COME FROM PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES (18.8% FROM 57.1% PRE TO 38.3% POST), WITH LITTLE CHANGE IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES. AGGRAVATED ROBBERY OR STEAL FROM THE PERSON AND ROBBERY BEING ARMED OR IN COMPANY FOLLOWED A SIMILAR PATTERN.
USE OR POSSESS WEAPON TO RESIST ARREST, ETC WHERE APPROXIMATELY ONE IN TEN OFFENDERS (10.7%) RECEIVED A SUSPENDED SENTENCE, SHOWED EVEN A GREATER DROP (15.4%) IN THE USE OF PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES (FROM 28.1% PRE TO 12.7% POST) THAN THE PROPORTION OF SUSPENDED SENTENCES IMPOSED. CONSEQUENTLY, THERE WAS AN INCREASE IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES (4.8% FROM 71.9% PRE TO 76.7% POST). SIMILARLY, BREAK, ENTER AND COMMIT A SERIOUS INDICTABLE OFFENCE EXPERIENCED AN INCREASE IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES (4.5% FROM 76.8% PRE TO 81.3% POST).
SUPPLY PROHIBITED DRUG ON AN ONGOING BASIS WAS THE ONLY TOP TEN OFFENCE WHERE THE NUMBER OF SUSPENDED SENTENCES IMPOSED (9.9%) SEEMED TO BE DRAWN MAINLY FROM PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES (9.3% FROM 93.6% PRE TO 84.3% POST). THIS IS UNDERSTANDABLE GIVEN THE HIGH PROPORTION OF OFFENDERS RECEIVING A TERM OF FULL-TIME CUSTODY OR AN ALTERNATIVE SENTENCE TO FULL-TIME CUSTODY FOR THIS OFFENCE.
FIGURE 2 DISPLAYS THE FULL RANGE OF SENTENCES IMPOSED FOR ALL OFFENCES IN THE HIGHER COURTS FOR THE PRE AND POST PERIODS. AS ALREADY DISCUSSED, SINCE THE AVAILABILITY OF SUSPENDED SENTENCES AS A PENALTY OPTION, THERE HAS BEEN A SLIGHT INCREASE IN THE USE OF PENALTIES MORE SEVERE THAN SUSPENDED SENTENCES. IN PARTICULAR, THE USE OF FULL-TIME CUSTODY HAS INCREASED (3.4% FROM 63.8% TO 67.2%) WHILE PERIODIC DETENTION AND HOME DETENTION HAVE FALLEN MARGINALLY (2.0% FROM 8.4% PRE TO 6.4% POST AND 0.3% FROM 0.7% PRE TO 0.4% POSTRESPECTIVELY).
AT THE OTHER END OF THE SCALE, THE FIGURE CLEARLY SHOWS A GREATER REDUCTION IN THE USE OF PENALTIES LESS SEVERE THAN SUSPENDED SENTENCES. SPECIFICALLY, BONDS (6.3% FROM 15.0% PRE TO 8.7% POST) AND COMMUNITY SERVICE ORDERS (6.3% FROM 10.5% PRE TO 4.2% POST) SEEM TO ACCOUNT FOR MOST OF THIS REDUCTION.
FIGURE 2: TRENDS IN OVERALL PENALTY TYPES IN THE HIGHER COURTS PRE (5 JULY 1997 – 2 APRIL 2000) AND POST (3 APRIL 2000 – 31 DECEMBER 2002) SUSPENDED SENTENCES
THE CHILDREN’S COURT
SECTION 33(1B) WAS INSERTED INTO THE CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987 IN 2000.64 IT PROVIDES FOR SUSPENSION OF THE EXECUTION OF A CONTROL ORDER FOR A SPECIFIED PERIOD (NOT EXCEEDING THE TERM OF THE ORDER) ON CONDITION THAT THE OFFENDER ENTER A GOOD BEHAVIOUR BOND. SINCE THE INTRODUCTION OF SUSPENDED CONTROL ORDERS, 189 HAVE BEEN IMPOSED OUT OF 11,917 CASES, REPRESENTING 1.7% OF ALL PENALTIES IMPOSED IN THE CHILDREN’S COURT.65 OF THOSE 189 SUSPENDED CONTROL ORDERS IMPOSED, 187 REQUIRED SUPERVISION. THE MEDIAN TERM WAS EIGHT MONTHS AND THE MOST COMMON TERM WAS SIX MONTHS (22%), HOWEVER TERMS OF 12 MONTHS (20.4%) AND NINE MONTHS (19.9%) WERE ALMOST AS COMMON.
STATISTICAL FINDINGS IN VICTORIA
SUSPENDED SENTENCES ARE WIDELY USED IN VICTORIA, ACCOUNTING FOR 6% OF ALL SANCTIONS IMPOSED IN THE MAGISTRATE’S COURT AND 30% OF ALL SANCTIONS IMPOSED BY THE HIGHER COURTS (COUNTY AND SUPREME COURTS) IN 1996.66 THIS HAS BEEN CLAIMED TO RESULT IN A SIGNIFICANT REDUCTION IN THE PRISON POPULATION.67
A TOTAL OF 9,278 SUSPENDED SENTENCES HAVE BEEN IMPOSED IN THE LOCAL COURTS AND 894 IN THE HIGHER COURTS TO 31 DECEMBER 2002. THESE ACCOUNT FOR 4.2% OF ALL PENALTIES HANDED DOWN IN THE LOCAL COURTS WHERE IMPRISONMENT WAS AN AVAILABLE PENALTY,68 AND 11.7% OF PENALTIES IN THE HIGHER COURTS DURING THIS TIME PERIOD. THE HIGHER PROPORTIONAL USE IN THE HIGHER COURTS IS NOT UNEXPECTED SINCE SUSPENDED SENTENCES SHOULD BE IMPOSED AS AN ALTERNATIVE TO FULL-TIME CUSTODY, AND THE HIGHER COURTS DEAL WITH MORE SERIOUS CRIME ATTRACTING GREATER MAXIMUM PENALTIES. THE OFFENCES ATTRACTING SUSPENDED SENTENCES MOST OFTEN WERE DRIVE WHILST DISQUALIFIED IN THE LOCAL COURTS AND SUPPLY LESS THAN A COMMERCIAL QUANTITY OF A PROHIBITED DRUG IN THE HIGHER COURTS. IN THE LOCAL COURTS, MAGISTRATES MOST COMMONLY IMPOSE SENTENCES OF SIX OR 12 MONTHS DURATION, AND JUDGES IN THE HIGHER COURTS ARE MOST LIKELY TO IMPOSE TERMS OF 24 MONTHS DURATION. THE HIGHER COURTS ARE ALSO MORE LIKELY TO MAKE PROBATIONARY SUPERVISION A CONDITION OF SUSPENDED SENTENCES.
DESPITE THE FACT THAT THE LEGISLATION REQUIRES SUSPENDED SENTENCES TO BE STRICTLY IMPOSED AS AN ALTERNATIVE TO FULL-TIME CUSTODY, THE STATISTICS TEND TO SUGGEST THAT COURTS SOMETIMES IMPOSE SUSPENDED SENTENCES IN PLACE OF LESS SEVERE PENALTIES, SUCH AS COMMUNITY SERVICE ORDERS AND GOOD BEHAVIOUR BONDS. AS SUCH, THERE IS LITTLE EVIDENCE TO DATE TO INDICATE THAT SUSPENDED SENTENCES HAVE CONTRIBUTED TO ANY REAL REDUCTION IN THE PRISON POPULATION. IN FACT, OVER THE PERIOD STUDIED, THERE WAS A SLIGHT INCREASE IN THE USE OF FULL-TIME CUSTODY IN THE HIGHER COURTS AND A REDUCTION IN COMMUNITY SERVICE ORDERS AND BONDS.
IT IS INTERESTING TO OBSERVE THAT IN VICTORIA, THE INTRODUCTION OF THE SUSPENDED SENTENCE IN 1985 HAD A GREATER IMPACT ON SENTENCING PATTERNS THAN ANY OTHER NEWLY INTRODUCED PENALTY.69 WITHIN THREE YEARS OF ITS INTRODUCTION 14% OF OFFENDERS IN THE HIGHER COURTS WERE GIVEN A SUSPENDED SENTENCE, AND BY 1996 THEY WERE UTILISED IN 30% OF OFFENCES.70 IN REGARD TO NET WIDENING, THE VICTORIAN EXPERIENCE HAS DIFFERED FROM THAT IN NSW. EMPIRICAL EVIDENCE HAS INDICATED, IN THAT JURISDICTION, THAT MANY SUSPENDED SENTENCES ARE INAPPROPRIATELY IMPOSED AND THAT ALTHOUGH THEY ARE DIVERTING OFFENDERS FROM PRISON, THEY ARE ALSO BEING DIVERTED FROM BONDS AND FINES IN AN EQUAL MEASURE. SOME DIVERSION ALSO OCCURS FROM COMMUNITY BASED ORDERS.71 RATHER THAN ENCOURAGING THE USE OF SUSPENDED SENTENCES, COMMENTATORS IN VICTORIA HAVE ARGUED FOR ITS ABOLITION.72
NO SUCH EXPLOSION IN THE USE OF SUSPENDED SENTENCES HAS OCCURRED IN NSW AND MORE TIME IS NEEDED BEFORE THE EFFICACY OF THIS NEW DISPOSITION CAN BE EVALUATED IN THIS JURISDICTION. WHILE OUR STATISTICS ALSO SUGGEST NET WIDENING, IT IS IMPORTANT TO NOTE THAT SUCH SENTENCING PATTERNS MAY BE A RESULT OF OTHER FACTORS SUCH AS HARSHER SENTENCING PRACTICES GENERALLY, PARTLY FUELLED BY COMMUNITY EXPECTATIONS REGARDING SENTENCING FOR CERTAIN SERIOUS OFFENCES AND PARTLY BY AN INCREASE IN SERIOUS CRIME IN THE PERIOD SINCE SUSPENDED SENTENCES WERE REINTRODUCED. FURTHERMORE, THE IMPACT OF GUIDELINE JUDGMENTS ON SENTENCING PRACTICE MAY ALSO BE A CONTRIBUTING FACTOR. FOR THESE REASONS WE ARE UNABLE TO CONCLUDE THAT BUT FOR SUSPENDED SENTENCES THE RATE OF IMPRISONMENT WOULD BE EVEN HIGHER THAN IT IS. ON THE OTHER HAND, THE RELATIVELY SMALL USE OF THE SUSPENDED SENTENCE PENALTY MAY SUGGEST THERE IS SCOPE FOR INCREASING ITS USE, AND PERHAPS THEN A NOTICEABLE IMPACT ON IMPRISONMENT MAY BE DISCERNED.
1 NSW LAW REFORM COMMISSION, SENTENCING, 1996, DISCUSSION PAPER 33, P 353.
2 CRIMES ACT 1900, SS 562 AND 558 (REPEALED); SEE NSW LAW REFORM COMMISSION, OP CIT N 1, P 352.
3 NSW LAW REFORM COMMISSION, OP CIT N 1, PP 352–353.
4 THE STUDY INCLUDES NSW LOCAL AND HIGHER COURTS. REFERENCE TO HIGHER COURTS INCLUDES BOTH THE SUPREME AND DISTRICT COURTS.
5 SUBJECT TO THE REQUIREMENTS OF S 44 OF THE CRIMINAL (SENTENCING PROCEDURE) ACT 1999 DISCUSSED BELOW.
6 R V ZAMAGIAS  NSWCCA 17.
7 DINSDALE V THE QUEEN (2000) 202 CLR 321 AT ; R V FOSTER  NSWCCA 215; R V BLACKMAN AND WALTERS  NSWCCA 121.
8 DINSDALE V THE QUEEN (2000) 202 CLR 321 AT  PER KIRBY J AND R V FOSTER  NSWCCA 215 AT .
9  NSWCCA 215 AT .
10 R V JCE (2000) 120 A CRIM R 18 AT  AND R V ZAMAGIAS  NSWCCA 17 AT .
11 A FREIBERG, SENTENCING REVIEW: PATHWAYS TO JUSTICE, 2002, DEPARTMENT OF JUSTICE, MELBOURNE. IT HAS BEEN SAID THAT DOUBLE WEIGHING MITIGATING FACTORS FAVOURS WHITE COLLAR AND MIDDLE CLASS OFFENDERS: SEE K WARNER, SENTENCING, 2002, ISSUES PAPER NO 2, TASMANIA LAW REFORM INSTITUTE, PP 69–70.
12 DINSDALE V THE QUEEN (2000) 202 CLR 321 AT  PER KIRBY J.
13  1 SCR 61 AT –.
14 FOR EXAMPLE, KIRBY J IN DINSDALE V THE QUEEN (2000) 202 CLR 321 AT ; A FREIBERG, SENTENCING REVIEW: DISCUSSION PAPER, 2001, DEPARTMENT OF JUSTICE, MELBOURNE, P 121; AND R V JCE (2000) 120 A CRIM R 18 AT .
15 GOVERNED BY S 5(1) OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999.
16 GOVERNED BY S 12 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999.
17 R V JCE (2000) 120 A CRIM R 18 AT .
18 WHEN ORDERING A PARTIALLY SUSPENDED SENTENCE THE USUAL PRACTICE WAS TO ORDER THE CUSTODIAL PART OF THE SENTENCE TO BE SERVED BEFORE THE NON-CUSTODIAL PORTION: SEE R V GAMGEE (2001) 124 A CRIM R 469. ALTHOUGH S 12 DID NOT PROVIDE EXPRESSLY FOR THE SUSPENSION ORDER TO COMMENCE AT A FUTURE DATE, IN R V GAMGEETHE NSW COURT OF CRIMINAL APPEAL, BY MAJORITY, HELD THAT SUSPENSION OF PART OF THE TERM OF IMPRISONMENT IMPOSED WAS PERMISSIBLE UNDER THE SECTION. THE COURT, BY MAJORITY, EXPRESSED THE VIEW THAT PARTIAL SUSPENSION COULD BE OF AN INITIAL PORTION OF THE TERM OF IMPRISONMENT TO ENABLE SOME EVENT TO TAKE PLACE SUCH AS A PREGNANCY OR A COURSE OF STUDY. ALTERNATIVELY THEY AGREED, BY MAJORITY, THAT A PARTIAL SUSPENSION MAY ALSO OCCUR AT THE LATTER END OF THE TERM IMPOSED (AT ). AS WILL BE DISCUSSED, IF THE OFFENDER IS SENTENCED FOR A COMMONWEALTH OFFENCE, THE COURT CAN PARTIALLY SUSPEND THE SENTENCE IMPOSED: CRIMES ACT 1914 (CTH), S 20(1)(B).
19 SEE R V EDIGAROV  NSWCCA 436 AT – PER WOOD CJ AT CL.
20  NSWCCA 533.
21  NSWCCA 436 AT – PER WOOD CJ AT CL.
22  NSWCCA 533 AT –.
23 R V JCE (2000) 120 A CRIM R 18.
24  NSWCCA 17 AT .
25 (2000) 120 A CRIM R 18 AT –.
26 SEE ALSO R V SALDANERI  NSWCCA 480 AT  PER SPIGELMAN CJ.
27 (2000) 120 A CRIM R 18 AT .
28 (2000) 202 CLR 321.
29 R V PERCY  TAS SR 62 AT 74; R V CAUSBY  TAS R 54 AT 67; DAVIES V DEVERELL (1992) 1 TAS R 214 AT 220; R V GP (1997) 18 WAR 196 AT 234; R V LIDDINGTON (1997) 18 WAR 394 AT 398–399, 406.
30 DINSDALE V THE QUEEN (2000) 202 CLR 321 AT .
31 R V ZAMAGIAS  NSWCCA 17 AT .
33  NSWCCA 442.
34 IBID AT .
35  NSWCCA 405.
36 IBID AT .
37CRIMES (SENTENCING PROCEDURE) ACT 1999, S 98(3).
38  NSWCCA 154.
39 TASMANIA: SENTENCING ACT 1997, S 7(B) AND PT 3, DIV 4; WESTERN AUSTRALIA: SENTENCING ACT 1995, SS 76, 77, 78, 79 AND 80; VICTORIA: SENTENCING ACT 1991, SS 27, 29 AND 31; QUEENSLAND: PENALTIES AND SENTENCES ACT 1992, PT 8; SOUTH AUSTRALIA: CRIMINAL LAW (SENTENCING) ACT 1988, S 38; NORTHERN TERRITORY:SENTENCING ACT 1995, SS 40, 41, 42, 43; COMMONWEALTH: CRIMES ACT 1914, S 20(1)(B).
40 THEREFORE, ALTHOUGH THIS STUDY FOCUSES ON STATE RATHER THAN COMMONWEALTH OFFENCES, CONDITIONAL RELEASE ORDERS ARE SUSPENDED SENTENCES AND HAVE BEEN INCLUDED IN OUR ANALYSIS IN PART 2 OF THIS PAPER.
41 NEW SOUTH WALES PARLIAMENTARY DEBATES (HANSARD), LEGISLATIVE ASSEMBLY, 28 OCTOBER 1999, P 2326.
42 R V LOCKE AND PATERSON (1973) 6 SASR 298 AT 301; FREIBERG, 2002, OP CIT N 11, P 121; M BAGARIC, “SUSPENDED SENTENCES AND PREVENTATIVE SENTENCES” (1999) 22(2) UNSW LAW JOURNAL 535 AT 547.
43 DINSDALE V THE QUEEN (2000) 202 CLR 321 AT  PER KIRBY J.
44 NSW LAW REFORM COMMISSION, SENTENCING, 1996, REPORT 79, SYDNEY AT 4.21.
45 (2000) 202 CLR 321 AT .
46 BAGARIC, OP CIT N 42 AT 547–548.
47 R V BRADY  ABCA 7 (ALBERTA COURT OF APPEAL).
48 BAGARIC, OP CIT N 42 AT 549.
49 JENNY PEARSON AND ASSOCIATES PTY LTD, REVIEW OF COMMUNITY BASED OFFENDER PROGRAMS, FINAL REPORT, 1999, JUSTICE STRATEGY UNIT, ATTORNEY GENERAL’S DEPARTMENT, SOUTH AUSTRALIA, P 40. SEE FREIBERG, 2002, OP CIT N 11, P 121 AND WARNER, OP CIT N 11, P 69.
50 R V LAWS (2000) 116 A CRIM R 70: SEE, FOR EXAMPLE, “SUSPENDED SENTENCE”, ABC LATELINE, 5 SEPTEMBER 2000,
<HTTP://WWW.ABC.NET.AU/LATELINE/S172177.HTM> AND “SEPARATE LAWS FOR LAWS”, THE COURIER-MAIL, 9 SEPTEMBER 2000. RICHARD ACKLAND EVEN DESCRIBED THE LAWS AS BEING “THRASHED WITH A LEGAL FEATHER”: K WARNER, “SENTENCING REVIEW 1999” (2000) 24 CRIMINAL LAW JOURNAL 355 AT 362.
51 R V MAKIKE  VSC 340: SEE, FOR EXAMPLE, “SUSPENDED SENTENCE FOR MAN WHO KILLED SON IN DRUG ROW”, THE AGE, 27 AUGUST 2003.
52 R V JCE (2000) 120 A CRIM R 18 AT  AND _; R V ZAMAGIAS  NSWCCA 17 AT ; R V FOSTER  NSWCCA 215 AT .
53 (1976) 13 SASR 516. ELLIOT V HARRIS WAS CITED WITH APPROVAL IN R V FOSTER  NSWCCA 215 AT .
54 (1980) 50 FLR 57.
55 FREIBERG, 2002, OP CIT N 11, P 121.
56 SEE, FOR EXAMPLE, BAGARIC, OP CIT N 42.
57 5 JULY 1997 TO 2 APRIL 2002.
58 3 APRIL 2000 TO 31 DECEMBER 2002.
59 THE JUDICIAL INFORMATION RESEARCH SYSTEM.
60 IF A CONVICTION APPEAL RESULTED IN AN ACQUITTAL OR A NEW TRIAL, THE RECORD WAS REMOVED FROM THE DATA. ALL SENTENCE APPEALS WHICH WERE REMITTED TO THE LOWER COURT FOR RESENTENCING, WERE ALSO EXCLUDED FROM THE DATA. NEW PENALTIES FROM SUCCESSFUL SENTENCE APPEALS (SEVERITY AND INADEQUACY) REPLACED THE FIRST INSTANCE PENALTIES.
61 ONLY 24 OFFENDERS (2.7% OF ALL SUSPENDED SENTENCES) WERE IN THIS CATEGORY IN THE HIGHER COURTS. IN THIS PAPER, CONDITIONAL RELEASE ORDERS, WHERE PART OF THE SENTENCE IS SERVED IN CUSTODY, HAVE BEEN RECORDED AS FULL-TIME CUSTODY (148 CASES), RATHER THAN AS A SUSPENDED SENTENCE. IN THE LOCAL COURTS THERE WERE ONLY SIX CASES WHERE A CONDITIONAL RELEASE FORTHWITH WAS ORDERED.
62 FOR EXAMPLE, THE MAXIMUM PENALTY FOR AN OFFENCE UNDER S 114(1) OF THE LIQUOR ACT 1982 INCLUDES IMPRISONMENT WHERE THE OFFENCE IS AGGRAVATED, BUT NOT OTHERWISE. THE DATA DOES NOT ALLOW US TO DETERMINE WHETHER THE OFFENCE WAS AGGRAVATED AND SO THESE HAVE BEEN INCLUDED IN THE STUDY. SIMILARLY, S 9(1)(A) OF THEMOTOR DEALERS ACT 1974 AND S 6(1)(A) OF THE TRAFFIC ACT 1909 PROVIDE FOR IMPRISONMENT ONLY WHERE THE OFFENDER IS COMMITTED FOR A SECOND OR SUBSEQUENT OFFENCE.
63 SEE CRIMES ACT 1900, SS 347–350.
64 THIS SECTION WAS INSERTED BY THE CRIMES LEGISLATION AMENDMENT ACT 2000 AND COMMENCED ON 31 JULY 2000.
65 NO ATTEMPT HAS BEEN MADE TO OMIT OFFENCES THAT DO NOT ATTRACT A SENTENCE OF IMPRISONMENT OR AN ALTERNATIVE TO IMPRISONMENT. CHILDREN’S COURT DATA WAS ONLY AVAILABLE TO 30 JUNE 2002.
66 BAGARIC, OP CIT N 42 AT 542.
68 NOTE: THE LOCAL COURT DATA EXCLUDES 20.5% OF CASES, WHICH REPRESENT THOSE OFFENCES WHERE IMPRISONMENT OR AN ALTERNATIVE TO IMPRISONMENT IS NOT AN AVAILABLE PENALTY AND THE OFFENDER WAS NOT ELIGIBLE TO RECEIVE A SUSPENDED SENTENCE. THE EXCLUSION OF THESE OFFENCES RESULTS IN AN INCREASED RATE OF SUSPENDED SENTENCES IN THE STUDY (4.2%) COMPARED TO WHEN ALL OFFENCES ARE INCLUDED (3.4%).
ISSN 1036 4722
Published by the Judicial Commission of New South Wales
Location: Level 5, 301 George St, Sydney NSW 2000, Australia
Postal address: GPO Box 3634, Sydney NSW 2001
Telephone: 02 9299 4421
Fax: 02 9290 3194
This paper was prepared by officers of the Judicial Commission for the information of the Commission and for the information of judicial officers. The views expressed in the report do not necessarily reflect the views of the Judicial Commission itself but only the views of the officers of the Commission who prepared this report for the Commission.