A REPORT ON SUSPENDED SENTENCES IN THE ACT
ACT Law Reform Advisory Council Report 1 31 October 2010
This Report is current as at 31 October 2010.
© Australian Capital Territory 2010
ACT Law Reform Advisory Council Reference: LRAC 1
The ACT Law Reform Advisory Council was established on 14 October 2008 by the ACT Attorney General, The Hon Simon Corbell MLA.
Contact details for Law Reform Advisory Council are: c/o ANU College of Law, Australian National University, ACT, 0200, Australia +61 (0)2 6125 7845 +61 (0)2 6125 0103 [email protected] www.lawreform.act.gov.au
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INDEX
Terms of Reference ...... 4
Acknowledgements...... 5
Summary ...... 6
Recommendations and observations ...... 8
A. Background to the current ACT regime for suspended sentences...... 11
A1. Pre-2006 ACT regime for suspended sentences ...... 11
A2. The 2005-6 ACT reforms ...... 12
A3. The ACT in context: suspended sentences in Australia ...... 18
B. Recent trends in the imposition of suspended sentences in the ACT...... 25
B1. Australian Bureau of Statistics (ABS) data ...... 25
C. Review of the 2005 reforms to the ACT regime for suspended sentences ...... 29
C1. Methodology...... 29
C2. Discussion ...... 30
C3. Observations ...... 41
C4. Conclusion...... 43
Appendix A: Legislative provisions governing suspended sentences in Australia...... 46
Appendix B: References...... 47
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Terms of Reference
On 12 May 2010 The Attorney General extended the terms of reference to include a review of reforms to the suspended sentence regime in the ACT as a result of the Crimes (Sentencing) Act 2005 (ACT) and the Crimes (Sentence Administration) Act 2005 (ACT).
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Acknowledgements Law Reform Advisory Council The ACT Law Reform Advisory Council (LRAC) was established by the ACT Attorney General the Hon Simon Corbell MLA to provide expert advice and recommendations to the Attorney General on terms of reference dealing with law reform matters referred to it. The LRAC operates as a collaborative undertaking between the ACT Government and the ANU College of Law at the Australian National University. Between them the ACT Government and the ANU College of Law provide the funds, resources, infrastructure and staff necessary for LRAC’s operation. Academic staff of the ANU College of Law contribute their expertise to inquiries conducted by LRAC. LRAC members Members of LRAC are appointed by the Attorney General for a period of up to three years, on the basis of their relevant experience and expertise. Members contribute to the work of LRAC on a voluntary basis. Members of LRAC during the period of the reference on suspended sentences were: Ms Carol Benda Assistant Commissioner Roman Quaedvlieg Mr Ron Cahill (to November 2009) (from September 2010) Mr Andrew Crockett Justice Richard Refshauge Ms Karen Fryar (from December 2009) Ms Agata Pukiewicz Mr John Hinchey (to May 2010) Professor Murray Raff Ms Kate McMullan Mr Simon Rice, OAM (Chair) Professor John McMillan, AO Mr John Roe (to February 2010) Mr Athol Opas Mr Peter Sutherland Deputy Commissioner Michael Phelan Ms Helen Watchirs, OAM Mr Stuart Pilkinton Ms Veronica Wensing Mr Jon White
Conduct of the reference The suspended sentence reference was led by Simon Rice under the oversight of the Council as a whole. Principal Research Officer for the reference was Dr Lorana Bartels. Mr Arjuna Dibley was Research Assistant. Ms Wendy Kukulies-Smith of the ANU College of Law provided expert advice and comments. We are grateful to Professor Kate Warner of the University of Tasmania and the Tasmanian Law Reform Institute, and Mr George Zdenkowski for their advice. We received willing and invaluable assistance from Ms Annie Glover, ACT Supreme Court Registrar; Ms Gaeleen Curley, ACT Supreme Court List Clerk, and Mr Rick Clarke, ACT DPP Librarian. We are grateful to Mr Jon White for making available internal research conducted by the office of the ACT DPP. Staff of the ACT Department of Justice and Community Safety, and of the ANU College of Law, provided administrative and technical support. The report was written by Dr Lorana Bartels and Simon Rice.
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Summary 2005 amendments to the suspended sentences regime in the ACT The regime for suspended sentences in the ACT is relatively recent, having been the subject of amendment in 2006 as a result of the Crimes (Sentencing) Act 2005 (ACT) Crimes (Sentence Administration) Act 2005 (ACT). The nature of those amendments is described in more detail in Part A. The terminology used for sentencing has been modernised and simplified, replacing recognisance with ‘good behaviour order’ (GBO). The legislation requires a GBO to be made for at least the period for which the sentence is suspended (though it can be longer). The legislation specifies how the sentencing option should be applied and what conditions could attach to the GBO. As well, the legislation specifies how a court can deal with a breach of a GBO associated with a suspended sentence. The rate of imposition of fully suspended sentences in the ACT Supreme Court declined from 31% in 2001-2 to 21% in 2004-5. It increased significantly in 2005-6, before the new Act came into effect. That level in the rate of fully suspended sentences has been maintained. The ACT Magistrates Court deals with a large number of minor offences, and a sentence of imprisonment would be appropriate in very few such matters. The rate of imposition of fully suspended sentences in the ACT Magistrates Court almost halved between 2003-4 and 2004-5 and has been in gradual but steady decline since then. Suspended sentences in the ACT, in an Australian context The regime for suspended sentences in the ACT is different on a number of counts from that in most other Australian jurisdictions. The ACT regime, and how it compares to other Australian jurisdictions, is set out in more detail in Part A. The ACT’s approach to suspended sentences is consistent with most Australian jurisdictions in reflecting the common law principle that imprisonment is a sentence of last resort. The ACT does not set out any test for the imposition of a suspended sentence. This is also the case in NSW, Tasmania and Western Australia. In Queensland, Northern Territory, South Australia the test is effectively when the court considers it appropriate. Only in Victoria are there mandatory factors to which the court must have regard. The ACT and Tasmania do not impose any restrictions on the availability of a suspended sentence. Other jurisdictions limit the length of the sentence and the period for which the sentence is suspended (see Appendix A). Suspended sentences are available for all offences in the ACT. In Victoria, the Northern Territory and South Australia they are not available for prescribed serious offences. Suspended sentences in the ACT must be accompanied by a good behaviour order (GBO), as is the case in NSW and South Australia. The ACT does not limit the conditions which can be attached to the GBO, except that they must not be inconsistent with the sentencing legislation. In Queensland, Victoria and Western Australia, the only condition which can be attached to a suspended sentence is the requirement that the offender not commit a further imprisonable offence during the operational period of the sentence. In the Northern Territory, a suspended sentence may be made ‘subject to such conditions as the court thinks fit’. In Tasmania there are mandatory conditions to be attached to all suspended sentences.
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The ACT does not limit the orders which may be ordered in combination with a suspended sentence. In Victoria a fine is the only sentencing order which may be combined with a suspended sentence for a single offence, although this restriction does not apply when sentencing an offender for multiple offences. In NSW, a community service order cannot be imposed in combination with a suspended sentence. The ACT does not have a presumption that the originally imposed suspended sentence will be activated on a breach of the conditions of the GBO associated with the suspended sentence. The only other jurisdiction in Australia to not have such a presumption is Tasmania, although unproclaimed legislation will change this. In all other Australian jurisdictions except the Commonwealth there is a presumption that the originally imposed suspended sentence will be activated on a breach of any conditions which were imposed, although the terms of the legislation differ. Australian Bureau of Statistics (ABS) data The ABS figures show a return in 2008/9 to the rate of suspended sentences in the ACT in preceding years: 36%. The rate of 43.7% in 2007/8 may have been anomalous. To get a better idea of the pattern of suspended sentencing in the ACT, it is appropriate to wait until ABS figures are available in early 2011 for 2009/2010. The ABS data are only as accurate as the source data. Our research raises concerns about the accuracy of the ACT data. We found significant coding errors in recording the sentencing data in the Supreme Court Registry. As well as this miscoding, our analysis of the ACT sentencing remarks indicates some inconsistency in how sentences are understood and, therefore, recorded. Further, it appears that essential aspects of the court’s decision are not being recorded at all. The errors in coding are not surprising in light of a number of factors we identified in the recording of the data: limited resources, shortness of time, dependence on the record made by a judge’s associate, limited access to judicial remarks on sentence, and different forms of judicial expression. Similar inconsistencies apply in other jurisdictions, making it impossible to conduct any reliable comparison between the rates of use of fully suspended sentences as reported by the ABS. Recommendations to improve data collection are set out in the following section. Review of the 2005 reforms of the ACT regime for suspended sentences The researchers obtained sentencing remarks for all cases of fully suspended sentences imposed by the Supreme Court for two periods before the legislative amendments came into effect: January-June 2004 (‘2004a’) and July-December 2004 (‘2004b’), and two periods following the legislative amendments: January-June 2007 and January-June 2010. The data under discussion are drawn from sample periods, the numbers of cases in which (especially for 2004a) are small. The sample periods are snapshots of activity and not a quantitative representation of any larger period. The researchers are not aware, however, of any factors which distinguish the sample periods from other comparable periods, ie periods before the reforms for the 2004 period, and periods after the reforms for the 2007 and 2010 periods. The following discussion proceeds on this basis. Observations on the data are set out in the following section.
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Recommendations and observations
Recommendations on data collection and reporting For sound policy development within the ACT, it is essential that notice be taken of the flawed basis on which the ABS sentencing data are collected and reported. It should be a matter of priority to rectify this issue in order to maintain the integrity of the data. Accordingly we recommend that 1. The Supreme Court Registry be resourced to take urgent steps to establish sound administrative systems which ensure that sentencing data are recorded accurately and comprehensively, and in a manner that is consistent with ABS reporting requirements. In particular we recommend the use of a template to record sentences, and standardised forms of expression in sentencing. 2. The Supreme Court Registry staff and staff of the judicial officers be resourced to undertake regular training on the accurate collection and reporting of sentencing data, including on ABS coding. 3. The Supreme Court Registry be resourced to maintain data collection and recording software that is compatible with ABS requirements. 4. The Supreme Court Registry be resourced to establish an electronic database of remarks made on sentencing, to be made publicly available on the Court website and/or through the AustLI website
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Sentence characteristics Most suspended sentences follow guilty pleas before trial. It is not possible to infer, from the data or the judges’ remarks, what different weighting might be given to the fact that a guilty plea was ‘early’ and not at or during trial. Since the 2005 reforms, some shorter suspended sentences (from six months) are being imposed, although there is no clear pattern in terms of the mean length of sentences. In the absence of a legislative limit on the length of suspended sentences, ACT courts seem to be assessing a period of imprisonment appropriate to the particular circumstances of the offender. There is no apparent pattern in the periods for which sentences are suspended, although it appears that it would be rare for a sentence to be suspended for less than one year or more than five. The rate of imposition of recognisances has decreased since the reforms, probably attributable to the mandatory imposition of a GBO and the greater range of options available to the sentencing judge. The making of a reparations order is very rare. Most offenders are subject to the supervision of Corrective Services, as was the case prior to the 2005 reforms. Although obligatory, GBOs were recorded as having been made only in the 2007 sample period, and only in relation to three offenders. It is likely is that there is an error in data recording. It seems that since the 2005 amendments judicial officers have more clearly crafted sentences to the circumstances of the individual offender. Since the reforms, a fully suspended sentence is almost invariably accompanied by a range of conditions on the behaviour of the offender in addition to accepting supervision of Corrective Services; see ‘Effectiveness’ below’. Judicial officers usually cite a broad collection of factors in each case, which reflects the policy in the 2005 reforms to more readily tailor sentences to the individual offender. Greater regard is had to factors in the offender’s current circumstances which indicate a low likelihood of re-offending than is had to factors in the offender’s personal history which might explain their having committed the current offence. But the absence of consistent recording of judicial remarks on sentencing make it impossible to report with certainty on the rate at which different factors are relied on when imposing a suspended sentence. It also means that there is no significant body of jurisprudence on suspended sentences under the 2005 reforms. Effectiveness of suspended sentences The effectiveness of suspended sentences could be assesses by analysing the extent, nature an timing of breaches of the conditions oh the associated GBO. The current data cannot support a breach analysis. A limited breach analysis undertaken recently within the ACT DPP provides a partial picture of what actually happens with suspended sentences, and further research could more comprehensively investigate this issue. Policy implications for further inquiry Policy questions which arise are recorded in detail in the body of the report, and are summarised here: 1. Should suspended sentences be a sentencing option in the ACT? 2. What should be the consequences of the breach of a condition of the GBO associated with a suspended sentence?
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3. What can be done to enhance consistency and predictability in the imposition of suspended sentences? 4. Does the terminology that is used adequately convey the nature of a suspended sentence?
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A. Background to the current ACT regime for suspended sentences
A1. Pre-2006 ACT regime for suspended sentences A1.1 Legislative provisions 1. Prior to 2 June 2006, courts in the ACT had a discretion to ‘sentence the [convicted] person to a term of imprisonment’ but to release an offender on a recognisance, on their giving a security, either immediately or after having served a specified part of the sentence (s 403(1)(b) Crimes Act 1900 (ACT)). No term was specified for the maximum term of imprisonment which could be dealt with in this way, or for the part of the sentence which had to be served before an offender could be released on recognisance. 2. The court had a discretion (s 403(1)(a)(ii)) to make the release conditional on the offender, for the relevant period:
being of good behaviour
complying with any specified conditions (except performing unpaid community work), including that they . be supervised on probation . obey all reasonable directions of the probation supervisor . comply with a reparation order; and
paying any specified penalty. 3. In deciding whether a suspended sentence was appropriate, the court had regard to the nature and severity of the conditions that could be imposed (s 343(2)). 4. On a breach of the condition of release, the court could activate the original sentence of imprisonment, or ‘make any order’ that the court would be empowered to make if the offender was then being sentenced for the offence with which he or she was originally charged (s 404(4)(e)). Observations on their operation 5. Jon Stanhope, the Chief Minister and then Attorney-General, presented an exposure draft of the Crimes (Sentencing) Bill 2004 to the Legislative Assembly on 3 August 2004. The circumstances surrounding the Bill’s introduction are discussed further below. 6. When introducing the Bill, he observed, inter alia, that: The terminology used for sentencing is modernised and simplified. For example, ‘recognisance’ will become ‘good behaviour bond’...An order suspending a sentence currently made under section 403(1)(6) of the Crimes Act will be called a ‘suspended sentence order’.1
1 Jon Stanhope, Legislative Assembly for the ACT, Hansard (3 August 2004), p3293. http://www.hansard.act.gov.au/HANSARD/2004/week08/3293.htm
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7. In his Second Reading Speech on 7 April 2005, Mr Stanhope noted that the Bill ‘creates good behaviour orders, which will replace recognisances and options available currently under section 403 of the Crimes Act 1900’.2 8. The only other mention of suspended sentences or recognisances in the debates on the Bill were when Bill Stefaniak, then Shadow Attorney-General, observed that People have often asked me why someone got three years for an armed robbery in New South Wales when, over here for an almost identical offence, that person might well get off with a suspended sentence and not go to jail at all. I stress it is important to ensure that what our courts do – especially the Supreme Court – is consistent with other states...3
A2. The 2005-6 ACT reforms A2.1 Legislative provisions 9. According to advice recently provided by the ACT Department of Justice and Community Safety,4 the impetus for the 2005-6 reforms was that in 2001 the Labor Government had an election platform to review sentencing procedures and the criteria used by the judiciary when setting sentencing. In early 2002, a full sentence review was announced by the Government, and a Sentencing Review Working Group was formed in the Policy and Regulatory Division of the ACT Department of Justice and Community Safety. In 2002, an Issues Paper was released which set out the function of the Review, which took several years and looked at all aspects of sentencing.5 10. Suspended sentences were identified as one of 16 different types of non-custodial sentencing options. The Issues Paper sought views about the ‘use of non-custodial sentencing options and the purpose of sentencing’.6 11. A large number of written and oral submissions from key stakeholders were received. Broad stakeholder and community consultation occurred and exposure drafts of the proposed legislation were formally tabled and made publically available for comment. As a result of the review, a major law reform project on sentencing was undertaken with a broad purpose of consolidating existing sentencing laws, introducing new sentencing options and providing greater flexibility in existing sentencing options within the ACT in order to maximise sentencing effectiveness. 12. The current section 12 of the Crimes (Sentencing) Act 2005 was the reform relevant to suspended sentences, made as part of reforms to sentencing across the board. For instance, under the old sentencing legislation, suspended sentences were dealt with under s 403, which used the terminology “recognisances”. This required modernisation and presentation in language more likely to be understood by defendants – thus the change to “good behaviour orders” (GBOs).
2 Jon Stanhope, Legislative Assembly for the ACT, Hansard, (7 April 2005), p1506. http://www.hansard.act.gov.au/hansard/2005/week05/1506.htm 3 Bill Stefaniak, Legislative Assembly for the ACT, Hansard, (15 November 2005), p 4092. http://www.hansard.act.gov.au/HANSARD/2005/week13/4092.htm 4 Personal communication with Nicole Mayo, Senior Manager, Criminal Law Group, Legislation and Policy Branch, 7 June 2010. 5 Sentencing Review Working Group, Sentencing Review ACT: Issues Paper, Australian Capital Territory, September, 2002. 6 Sentencing Review ACT: Issues Paper, pp 6-11.
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13. In addition, all the sentencing options were modernised and streamlined for consistency with a view to providing greater certainty whilst providing greater flexibility simultaneously. Restrictions relating to the combination of sentencing options were removed. Section 12, and the creation of distinct suspended sentence orders, also sought to particularise how the sentencing option should be applied and what conditions should attach. It had been identified that, under the previous provisions of s 403, there was no consistent application of how the orders would operate; that is, a suspended sentence could be imposed with or without a GBO, with or without conditions etc. The new section requires a GBO to be made for at least the period for which the sentence is suspended (though it can be longer). Accordingly, it provides for greater confidence in the criminal justice system around the expectations and use of suspended sentence orders. 14. Under the Crimes (Sentencing) Act 2005, if an order is made for ‘suspension of a sentence of imprisonment’, section 12 governs the imposition of that suspended sentence. The following are the key provisions of s 12: A suspended sentence enables a court to sentence an offender to a term of imprisonment and then suspend the execution of that imprisonment on the basis that the offender complies with conditions set by the Court. A suspended sentence can be ordered only if the offender is both convicted of an offence and sentenced to imprisonment. The Court may suspend all or part of the imprisonment. The offender will be imprisoned for the period of time not suspended by the Court. The tool for setting conditions in the Act is the GBO. A GBO imposed under s 12 is subject to the provisions governing GBOs in s 13 and Chapter 6, and imprisonment in Chapter 5, and to Chapter 6 of the Crimes (Sentencing Administration) Act 2005 which sets out ‘core conditions’ for a GBO. The GBO must be made for the period of the suspended sentence, and can be made for longer if the Court determines. In making a GBO in conjunction with the suspended sentence the Court will impose conditions upon the offender that the Court requires the offender to meet to prevent the execution of the sentence. If the offender breaches a condition of the GBO, the Court has the power to impose the original sentence or to re-sentence the offender. 15. The following is a brief summary, and not an exhaustive account, of the provisions in Crimes (Sentencing) Act 2005 and the Crimes (Sentence Administration) Act 2005 relating to GBOs. 16. A GBO requires an offender to sign an undertaking to comply with their good behaviour obligations, and may include one or more conditions which the court considers appropriate subject to their not being inconsistent with the sentencing legislation. Some conditions are prescribed in s 13 – for example, giving a surety, undertaking community service, and participating in a rehabilitation program – and s 13 gives an indicative list of other possible conditions, such as undertaking medical treatment and supervision, attending educational programs or counselling, and not driving or consuming alcohol. Core conditions of the GBO set out in s 85 of the Crimes (Sentence Administration) Act 2005 include such requirements as reporting any change to home or work address and complying with the lawful direction of a corrections officer.
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17. Importantly, although a GBO must be made when a court orders a suspended sentence, deciding the terms and conditions of a GBO is a separate exercise from deciding to suspend a sentence. First the court decides to suspend a sentence of imprisonment. Having done so, the court is required by s 12 to impose a GBO, and the question is what conditions, if any, will be included in that GBO. A2.2 Breaches of a GBO 18. A breach of a GBO comes to a court in a number of ways (Crimes (Sentence Administration) Act 2005, ss 102, 103, 106):
if a corrections officer believes, on reasonable grounds, that an offender has breached a good behaviour obligation, they must report their belief to the sentencing court
if a police officer believes, on reasonable grounds, that an offender has breached a good behaviour obligation, they may arrest the offender, and if they do so, they must then bring the offender before the sentencing court or a magistrate
if a judge or magistrate is satisfied, by information on oath, that there are reasonable grounds for suspecting that the offender has breached, or will breach, a good behaviour obligation, they may issue a warrant for an offender’s arrest, or
if information alleging that an offender has breached a good behaviour obligation is before the offender’s sentencing court, that court may issue a summons directing the offender to appear before the court. 19. If the Supreme Court finds an offender guilty of an offence committed during the term of the offender's GBO, it will deal with the offender for that breach of the GBO, whether it was imposed by the Supreme Court or Magistrates Court. If the Magistrates Court finds an offender guilty of an offence committed during the term of the offender's GBO, it will commit the offender to the Supreme Court to deal with the breach if the GBO was imposed or varied by the Supreme Court, but will otherwise deal with the breach itself. 20. If a court is satisfied the offender has breached any of the conditions of a GBO imposed with a suspended sentence, it must cancel the GBO. As well, it must either impose the suspended sentence or re-sentence the offender for the original offence. As discussed further below, the legislation does not presume that the originally imposed suspended sentence will be activated on a breach of the GBO associated with the suspended sentence. Because the Crimes (Sentencing) Act applies to re- sentencing in the same way that it applies to sentencing, the full range of sentencing options are available. 21. The Crimes (Sentence Administration) Act 2005 gives the following example of the operation of s 110: The Magistrates Court convicted Desmond of an offence. The court sentenced Desmond to imprisonment for 6 months for the offence and made a suspended sentence order for the entire sentence of imprisonment. The court also made a good behaviour order for the 6-month period. Desmond breaches the order. In re-sentencing Desmond, the court may impose a sentence of imprisonment to be served by periodic detention.
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22. This is not a helpful example. To be clear: the order which Desmond breaches is the GBO. In re-sentencing Desmond, the court may either impose the original sentence of six months imprisonment which had been suspended, or impose any other sentence, of which a sentence of imprisonment to be served by periodic detention is one. So too, for example, is a fine, or a further suspended sentence. 23. If the conduct which breaches a GBO associated with a suspended sentence is itself an offence for which a sentence of imprisonment can be imposed, the court deals with both the offence and the breach of the GBO. A2.3 Changes in policy and court practice 24. There are procedural and technical differences between the previous and current regimes for imposing and dealing with suspended sentences (eg the change of terminology from ‘recognisance’ to ‘suspended sentence’). We do not however address those differences in this report. This section sets out the substantive differences in policy and practice between the current and previous regimes. 25. The following tables and figures illustrate the changes in the rate of suspended sentences over time. The vertical line on the figures shows the timing of the reforms. ACT Supreme Court Table 1: Proportion of sentences which were fully suspended sentences in the ACT Supreme Court, 2001-2009 2001-2 2002-3 2003-4 2004-5 2005-6 2006-7 2007-8 2008-9 30.8 28.9 22.5 21.0 38.1 35.7 43.7 36.2 Source: ABS, Criminal Courts 2008-9. 4513.0 (2009), Table 2.14 26. The rate of imposition of fully suspended sentences in the ACT Supreme Court declined from 31% in 2001-2 to 21% in 2004-5. It increased significantly in 2005-6, before the new Act came into effect. 27. The Crimes (Sentencing) Act 2005 came into effect on 2 June 2006. As offenders were sentenced under the old regime for offences committed up to that date,7 the full effect of the new legislation would not have become apparent until well into 2006-7. It seems, therefore, that the increase in the rate of fully suspended sentences in 2005-6, which has been maintained since, was not due to the legislative reforms, although we can speculate that it may have been to some degree a response to the prospect of such changes. ACT Magistrates Court Table 2: Proportion of sentences which were fully suspended sentences in the ACT Magistrates Court, 2001-2009 2003-4 2004-5 2005-6 2006-7 2007-8 2008-9 16.4 8.8 8.2 9.1 7.1 6.2 Source: ABS, Criminal Courts 2008-9. 4513.0 (2009), Table 3.14
7 See Crimes (Sentencing) Act 2005 (ACT), s 140(2), which provides that the old sentencing law continues to apply to an offender in relation to an offence if the offender was charged with the offence before the commencement of this section.
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28. The rate of imposition of fully suspended sentences in the ACT Magistrates Court almost halved between 2003-4 and 2004-5 (which was a period where their use was stable in the Supreme Court). Since 2004-5, the rate has been relatively constant, with a gradual but steady decline since 2006-7 to the current reported rate of 6%. There is no pattern in the rate that is clearly related the implementation of the Act, but a further reduction in the rate for 2009-10 (not reported until about March 2011) might suggest that the legislation has been a factor resulting in a persistent decline in the rate of fully suspended sentences for the Magistrates Court. 29. It should be remembered that the ACT Magistrates Court deals with a large number of minor offences, and a sentence of imprisonment would be appropriate in very few such matters. This explains the lower rate of imposition of suspended sentences, and suggests as well that changes in patterns of offending and charging will affect the rate of imposition of suspended sentences. Imposing the sentence 30. Under the current regime, there is no requirement that the court suspend the sentence only if it ‘thinks fit’. Instead, the current regime simply gives the court the power: it ‘may’ make such an order (Crimes (Sentencing) Act 2005, s 12(2)). Conditions and combinations for suspended sentences 31. Under the previous regime, the court had a discretion whether to order a GBO when imposing a suspended sentence; under the current regime it must do so (Crimes (Sentencing) Act 2005, s 12(3)). This is a significant policy shift, addressing the perception that offenders who receive a suspended sentence are getting off ‘scot free’. 32. The previous regime was not specific about the period of any GBO. Under the current regime, if the court makes a suspended sentence order, it must also make a GBO for the period during which the sentence is suspended or for any longer period that the court considers appropriate. 33. The only conditions which could be imposed under the previous regime were giving security, accepting probation supervision, obeying all reasonable directions, and/or complying with a reparation order. In addition, the court was not allowed to make an order for the offender to perform unpaid community work. Under the current regime, the court may impose a condition of community service (ie unpaid community work) and/or a rehabilitation program, and may impose a condition prescribed by the regulation and any other condition not inconsistent with the relevant law ‘that the court considers appropriate’ (Crimes (Sentencing) Act 2005, s 13(3)). The legislation cites the following as examples which the court might consider appropriate (s 12): that the offender undertake medical treatment and supervision (eg by taking medication and cooperating with medical assessments) that the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling that the offender not drive a motor vehicle or consume alcohol or non- prescription drugs or medications, and/or that the offender regularly attend alcohol or drug management programs.
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34. As at 31 October 2010, the following were listed in the Crimes (Sentencing) Regulation 2006 as rehabilitation programs: programs to treat adults and children for sexual behaviour that is unlawful or inappropriate; programs that impart self-management and social skills to enable offenders to deal with difficult situations in ways that do not involve the criminal behaviour; programs for people who have committed a domestic violence offence; and alcohol or drug rehabilitation programs provided by a appropriate entity. 35. Under the current regime, the court may also make a number of orders in combination with the suspended sentence, including an order of imprisonment to be served by full-time or periodic detention in a correctional centre; a fine; a driver licence disqualification order; and a non-association or place restriction order. Options on breach 36. Under the previous regime, the court had the power to deal with an offender for breach if it was satisfied that an offender had, during the period of good behaviour, failed to comply with a condition specified in the order, failed to pay the penalty for the payment of which s/he had given security, or had been convicted (inside or outside the ACT) of an offence – whether an imprisonable offence or not – committed during the period of good behaviour. At common law the power can be triggered if the offender engaged in other behaviour such as contempt of court.8 The current legislation provides simply that the court has the power to deal with an offender if it is satisfied the offender has breached any of their GBO obligations; conviction for a further offence is such a breach. 37. When acting on breach under the previous regime, the court had a discretion to impose a term of imprisonment up to the unserved balance of the original sentence, or to make any order that the court could have made when the offender was originally sentenced (Crimes Act 1900, s 440(4)(e)). Under the current regime, the court, when it is satisfied of a breach, must cancel the GBO and may then either impose the original sentence which was suspended, or resentence the offender. If it re-sentences the offender, the Crimes (Sentencing) Act 2005 applies in the same way that it applies to the sentencing of an offender on conviction for the offence. In addition, the current legislation expressly gives the court the power to deal with any security under the GBO (Crimes (Sentence Administration) Act 2005, s 110). 38. The previous regime envisaged the offender serving a term not exceeding the balance of the sentence; for example, if the offender had completed five months of a six month suspended sentence before breaching, the most the court could have ordered was that the person serve the remaining month in prison. The current regime appears to permit this only if it resentences the offender.
8 Moore-McQuillan v Registrar of The Supreme Court [2009] SASC 265.
17 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
A3. The ACT in context: suspended sentences in Australia A3.1 Policy justification for suspended sentences generally 39. The following reasons are commonly cited in support of suspended sentences:9 they have a symbolic effect, as they enable the seriousness of the offence to be recognised through the formal imposition of a prison sentence, while allowing the court to deal with the offender in merciful way; they provide a useful sentencing tool and have an important place in the sentencing hierarchy, especially for first time offenders who have not committed serious offences; they are an effective specific deterrent against the further commission of crime; this argument has been supported by recent recidivism analyses;10 they enable offenders to avoid prison sentences, especially short sentences, which is expected to have a protective effect against reoffending; and their availability may reduce the size of the prison population and associated expenditure on corrections, as well as providing an incentive for offenders to plead guilty. 40. The principal arguments against suspended sentences are that they are seen as not amounting to ‘real’ punishment, and are regarded as a ‘let- off’ by the public and offenders; there are difficulties with the process for imposing the sentence and dealing with breaches; they cause net-widening and violate the proportionality principle; and they favour middle-class offenders.11 A3.2 Types of suspended sentencing regimes in Australia 41. Appendix A sets out the principal features of the legislation governing how suspended sentences currently operate in each Australian jurisdiction.
9 For a fuller discussion, including analysis of the strength of these arguments, see Lorana Bartels, ‘An Examination of the Arguments For and Against the Use of Suspended Sentences’, (2010) 12 Flinders Law Journal 119. See also Victorian Sentencing Advisory Council, Suspended Sentences in Victoria – A Preliminary Information Paper, Melbourne (2005). 10 See Don Weatherburn and Lorana Bartels, ‘The Recidivism of Offenders Given Suspended Sentences in New South Wales, Australia’ (2008) 48 British Journal of Criminology 667; Lorana Bartels, ‘The Weight of the Sword of Damocles: A Reconviction Analysis of Suspended Sentences in Tasmania’ (2009) 42 Australian and New Zealand Journal of Criminology 72; Rohan Lulham, Don Weatherburn and Lorana Bartels, The Recidivism of Offenders Given Suspended Sentences: A Comparison with Full- time Imprisonment, Crime and Justice Bulletin no. 136. Sydney: NSW Bureau of Crime and Justice Statistics. 11 See further Lorana Bartels, ‘An Examination of the Arguments For and Against the Use of Suspended Sentences’, (2010) 12 Flinders Law Journal 119.
18 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
A3.3 Principles for imposing a suspended sentence 42. The leading common law Australian authority in relation to suspended sentences is the High Court case of Dinsdale v The Queen, where Kirby J, with whom Gaudron and Gummow JJ agreed, emphasised the need to recognise that two distinct steps are involved. 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.12 43. This two-stage test has usually been followed by the ACT courts.13 44. In Dinsdale, Kirby J considered what factors will determine whether a suspended sentence will be imposed, noting that ‘the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term’. This makes it ‘necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender’, notwithstanding the fact that this necessitates the attribution of ‘double weight’ to all of the factors relevant to the offence and offender which may influence the decision to suspend the sentence.14 Imprisonment as a last resort 45. Under s 10 of the Crimes (Sentencing) Act 2005, an ACT court may sentence an offender to imprisonment if satisfied, ‘having considered possible alternatives, that no other penalty is appropriate’. A sentence of imprisonment must be served by full- time detention at a correctional centre, unless ‘the court orders otherwise’, and the Crimes (Sentencing) Act cites a suspended sentence order as an example of where ‘the court orders otherwise’. 46. It is widely accepted that the principle of ‘last resort’ refers to a sentence of imprisonment even though it is to be suspended; legislation in Victoria, Western Australia and the Northern Territory spells out this principle of last resort, stating that a suspended sentence can be imposed only when the sentence of imprisonment, if unsuspended, would be otherwise appropriate. 15 47. The ACT’s approach to suspended sentences is consistent with most Australian jurisdictions in reflecting the common law principle that imprisonment is a sentence of last resort.16
12 Dinsdale v The Queen (2000) 202 CLR 321, [79]. For discussion, see Lorana Bartels, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Criminal Law Journal 131. 13 See Kennewell v Rand [2006] ACTCA 10, [39]; Znotins v Heazlewood [2008] ACTSC 35, [12]-[13]; R v Taylor (No 2) [2008] ACTSC 97, [22] and Lukatela v Birch (No 2) [2008] ACTSC 148, [43]. 14 Dinsdale v The Queen (2000) 202 CLR 321, [84]. 15 Sentencing Act 1991 (Vic), s 27(3), Sentencing Act 1995 (WA), s 76(2), Sentencing Act 1995 (NT), s 40(3). 16 Dinsdale v The Queen (2000) 202 CLR 321. For the relevant legislation in each jurisdiction, see Crimes Act 1914 (Cth), s 17A; Criminal Law (Sentencing) Act 1988 (SA), s 11; Sentencing Act 1991 (Vic), s 5(4); Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(i); Sentencing Act 1995 (WA), s 6(4); Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1); Crimes (Sentencing) Act 2005 (ACT), s 10(2). There is no comparable provision in the Sentencing Act 1995 (NT) or Sentencing Act 1997 (Tas). For further
19 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
Criteria for suspending a sentence 48. In company with the legislation in NSW, Tasmania and Western Australia, the legislation in the ACT does not set out any test for the imposition of a suspended sentence. In Queensland, a court may impose a suspended sentence if ‘satisfied that it is appropriate to do so in the circumstances’ and in the Northern Territory, ‘the court may suspend a sentence where it is satisfied that it is desirable to do so in the circumstances’. In South Australia, the test for imposing a suspended sentence is whether the court ‘thinks that good reason exists for doing so’.17 49. Under s 20 of the Crimes Act 1914 (Cth), a court, if ‘it thinks fit’, may make a ‘recognisance release order’, a term which the Australian Law Reform Commission (ALRC) has recommended be replaced with ‘terminology that reflects its nature as a conditional suspended sentence’.18 50. In Victoria, the court must be ‘satisfied that it is desirable to [impose a suspended sentence] in the circumstances’, but the court must have regard to the following factors in making this decision: (a) the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting directly from the offence, to ensure that the sentence— (i) adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and (ii) adequately deters the offender or other persons from committing offences of the same or a similar character; and (iii) reflects the gravity of the offence; and (b) any previous suspended sentence of imprisonment imposed on the offender and whether the offender breached the order suspending that sentence; and (c) without limiting paragraph (b), whether the offence was committed during the operational period of a suspended sentence of imprisonment; and (d) the degree of risk of the offender committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended.19 Restrictions on imposing a suspending a sentence 51. The legislation in the ACT and Tasmania does not impose any restrictions on the availability of a suspended sentence. There do not appear to be any legislative
discussion see Lorana Bartels, ‘To Suspend or Not to Suspend - A Qualitative Analysis of Sentencing Decisions in the Supreme Court of Tasmania’ (2009) 28 University of Tasmania Law Review 23 and Lorana Bartels, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Criminal Law Journal 113. 17 Penalties and Sentences Act 1992 (Qld), s 144(2), Sentencing Act 1995 (NT) s 40(1), Criminal Law (Sentencing) Act 1988 (SA), s 38(1); for commentary on the meaning of these standards, see Lorana Bartels, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Criminal Law Journal 113. 18 Australian Law Reform Commission, Same Crime, Same Time, Report 103, Canberra (2006) [7.45], Rec 2-3. 19 Sentencing Act 1991(Vic), s 27(1A). For discussion of the background to this provision, which was introduced in 2006, see Victorian Sentencing Advisory Council, Suspended Sentences in Victoria: Monitoring Report, Melbourne (2010).
20 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
restrictions on the availability of suspended sentences in NSW, Western Australia or Queensland on the basis of offence type, but there are limitations as to the length of the sentence and operational period, that is, the period for which the sentence is held in suspense, which can be imposed, as set out in Appendix A. There are also limitations as to the length of sentence and/or operational period in the Northern Territory, South Australia, Victoria and the Commonwealth (see Appendix A). 52. In Victoria, a court must not fully suspend a sentence for a serious offence unless it is satisfied, having regard to the factors cited above, that making such an order is appropriate because of the existence of exceptional circumstances and in the interests of justice;20 a ‘serious offence’ includes murder, manslaughter, intentionally causing serious injury, and certain sexual offences.21 As well, a court may not partly or wholly suspend a sentence imposed on a person who carried a firearm when committing an indictable offence or carried an offensive weapon when committing a sexual offence.22 53. In the Northern Territory, wholly suspended sentences are not available for offenders convicted of sexual offences or of violent offences where the offender has previously been convicted of a violent offence, and when an offender is convicted of an aggravated property offence, the court may only impose a wholly suspended sentence if the offender enters into a home detention order.23 54. In South Australia, suspended sentences are not available for murder or treason or when an Act expressly prohibits a reduced sentence, and suspended sentences are generally not available where the sentence is to be served cumulatively on another term or concurrently with another term currently being served or about to be served.24 55. Only for federal offences is there a statutory presumption in favour of making an order for a suspended sentence. When the court imposes a sentence of between six months and three years, it must make a ‘recognisance release order’ (as opposed to setting a non-parole period) unless satisfied that it is not appropriate to do so, having regard to the nature of the offence and the offender’s antecedents.25 The ALRC has recommended that this provision be repealed and that instead the court should have a ‘discretion to suspend a federal offender’s sentence of imprisonment either wholly or partially, regardless of the length of the sentence’.26 Abolition of suspended sentences 56. Suspended sentences were abolished in NSW in 1974, and were reintroduced in 2000.27 57. In May 2010, the Victorian Government announced that it will abolish suspended sentences and that, as an interim measure, it will abolish suspended sentences for serious crimes (including murder, rape and armed robbery) from July 2011. Abolition
20 Sentencing Act 1991 (Vic), s 27(2B). 21 See Sentencing Act 1991 (Vic), s 3. 22 See Crimes Act 1958 (Vic), ss 31A(2)(b), 60A(2)(b). 23 Sentencing Act 1995 (NT), ss 78BA, 78BB, 78B(3). 24 Criminal Law (Sentencing) Act 1988 (SA), ss 37(1), 38(2), 38(2a). 25 Crimes Act 1914 (Cth), s 19AC. 26 Australian Law Reform Commission, Same Crime, Same Time, Report 103, Canberra (2006), Rec 7-7. 27 See New South Wales Law Reform Commission, Sentencing, Discussion Paper 33, Sydney (1996); Sentencing, Report 79, Sydney (1996).
21 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
was recommended in a 2002 Sentencing Review Report,28 but the Government rejected the recommendation and the Attorney-General was vehemently opposed, arguing that courts should have more, not fewer, sentencing options.29 In 2005, the Victorian Sentencing Advisory Council recommended restricting the availability of suspended sentences, which was implemented through legislative amendments. Monitoring indicates that the amendments have not reduced the rate of imposition of suspended sentences,30 suggesting that they are an option that the courts like to have available to them. The Opposition and Government have both announced they will abolish suspended sentences if elected at the next election, to be held in November 2010.31 Restrictions on conditions attached to a suspended sentence 58. Suspended sentences in the ACT, as in NSW and South Australia, are accompanied by a GBO. The ACT legislation does not, however, limit the conditions which can be attached to the GBO, except that they must not be inconsistent with the sentencing legislation. 59. In Queensland, Victoria and Western Australia, the only condition which can be attached to a suspended sentence is the requirement that the offender not commit a further imprisonable offence during the operational period of the sentence.32 60. In the Northern Territory, a suspended sentence may be made ‘subject to such conditions as the court thinks fit’. A similarly broad discretion has applied to date in Tasmania, but recent changes to the Tasmanian Sentencing Act 1997 introduced mandatory conditions to be attached to all suspended sentences, namely, that the offender: not commit another offence punishable by imprisonment; report to a probation officer; remain in the State unless given permission to do otherwise; and give notice of change in residence or employment. 61. Provisions in Tasmania enabling the discretionary imposition of a requirement to perform community service have not yet come into effect. Restrictions on the orders which may be imposed in combination with a suspended sentence 62. The ACT does not limit the orders which may be ordered in combination with a suspended sentence. Some jurisdictions do. In Victoria, for example, a fine is the only sentencing order which may be combined with a suspended sentence for a single offence, although this restriction does not apply when sentencing an offender
28 Arie Freiberg, Pathways to Justice: Sentencing Review, Department of Justice, Melbourne (2002). 29 'Sentencing in the Dock', Lawyers Weekly, 24 August 2001, 1. 30 Victorian Sentencing Advisory Council, Suspended Sentences in Victoria: Monitoring Report, Melbourne (2010). 31 Reid Sexton, ‘Brumby in Backflip on Suspended Sentences’, The Age, 14 May 2010 http://www.theage.com.au/victoria/brumby-in-backflip-on-suspended-sentences-20100513- v1rh.html 32 See Sentencing Act 1991 (Vic), s 31; Penalties and Sentences Act 1992 (Qld), Part 8 and Sentencing Act 1995 (WA), s 77. Cf the Conditional Sentence of Imprisonment available in the Perth Drug Court pursuant to Part 12 of the Sentencing Act 1995 (WA).
22 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
for multiple offences. In NSW, a community service order cannot be imposed in combination with a suspended sentence.33 Activation of the suspended sentence on a breach 63. The legislation in the ACT does not have a presumption that the originally imposed suspended sentence will be activated on a breach of the conditions of the GBO associated with the suspended sentence. The only other jurisdiction in Australia to not have such a presumption is Tasmania, however this will be amended if and when amendments under the Justice and Related Legislation (Further Miscellaneous Amendments) Act 2009, which received royal assent on 11 December 2009, come into effect. The amendments create a statutory presumption of activation on breach, although the court will retain the discretion to decide whether it would be unjust to activate a suspended sentence in view of any exceptional circumstances which have arisen since the order suspending the sentence was made. The provisions essentially reflect the current position in Victoria.34 64. In all other Australian jurisdictions except the Commonwealth, there is a presumption that the originally imposed suspended sentence will be activated on a breach of any conditions which were imposed. In South Australia, if an offender breaches a condition of his or her GBO, the court must activate the original sentence unless satisfied that the breach was trivial or there were good reasons for the offender failing to comply with the bond, although the court has the power to reduce the term where there are special reasons for doing so.35 In NSW, the court must revoke the GBO (on which basis the sentence is suspended) unless satisfied the breach was trivial or there was good reason for the breach.36 65. The provisions on breach in Western Australia, Queensland and the Northern Territory require the court to activate the suspended sentence unless it would be unjust to do so, taking into account all the circumstances that have arisen or become known since the suspended sentence was imposed.37 66. The provisions in relation to recognisance release orders for federal offences do not create a presumption in favour of activation, but do prevent the court from substituting a shorter sentence of imprisonment or ordering only part of the sentence to be served.38 The ALRC has made recommendations to enhance the court’s options on breach.39 ACT: differences from and similarities with other jurisdictions 67. If and when the Tasmanian amendments creating a statutory presumption of activation on breach come into effect, the ACT will be the only state or territory which does not have such a presumption.
33 Sentencing Act 1991 (Vic), s 49(1); Crimes (Sentencing Procedure) Act 1999 (NSW), s 13. 34 See Sentencing Act 1991 (Vic), s 31(5A). 35 See Criminal Law (Sentencing) Act 1988 (SA), ss 58. 35 Criminal Law (Sentencing) Act 1988 (SA), s 58(4). The court may order the sentence to be served cumulatively: s 58(4)(c). 36 See Crimes (Sentencing Procedure) Act 1999 (NSW), s 98(3). 37 See Sentencing Act 1995 (WA), s 80; Penalties and Sentences Act 1992 (Qld), s 147(2) and Sentencing Act 1995 (NT), s 43(7) respectively. 38 See Crimes Act 1914 (Cth), s 20A(5)(c). 39 Australian Law Reform Commission, Same Crime, Same Time, Report 103, Canberra (2006), Rec 17- 1.
23 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
68. The ACT is similar to NSW, Tasmania and Western Australia in that it does not set out any legislative test for imposing a suspended sentence; it is also like these jurisdictions, and Queensland, in that it does not impose any legislative restrictions (eg in relation to offence type), on the availability of a suspended sentence. 69. The ACT and Tasmania are the only two jurisdictions which set no restrictions as to the length of sentence which can be suspended or operational period for which the sentence can be suspended. As set out in Appendix A, South Australia and the Commonwealth do not set any limits on the maximum term of sentence which can be suspended. 70. The only restriction in the ACT on the type and combination of conditions of the GBO which must be imposed when ordering a suspended sentence, is that the conditions not be inconsistent with the Crimes (Sentence Administration) Act 2005. This leaves the courts a very wide discretion as to the conditions to be imposed. In this respect, it is similar to South Australia, where a suspended sentence is accompanied by a GBO, which may be subject to conditions, and the Northern Territory, where a suspended sentence may be subject to such conditions as the court thinks fit. The ACT differs, however, from Queensland, Victoria, Western Australia where the only condition which can be ordered is that the offender not commit a further imprisonable offence, and NSW and Victoria which limit the combination of orders which may be imposed.
24 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
B. Recent trends in the imposition of suspended sentences in the ACT
B1. ABS data 71. The ABS figures below show that after a spike in 2007/8, there was a return in 2008/9 to the 2005/6 and 2006/7 rate of suspended sentences in the ACT. In light of the pattern of figures in the ACT since the reforms to suspended sentences came into effect in 2006, it appears that the spike in 2007/8 may have been anomalous. To get a better idea of the pattern of suspended sentencing in the ACT, it is appropriate (subject to what we say below about accuracy of the data) to wait until ABS figures are available in early 2011 for 2009/10. Figure 1: Proportion of sentences which were fully suspended sentences in the ACT Supreme Court, 2001-2009 as reported by the ABS
50
45 43.7
40 38.1 36 35 35.7
30 30.8 28.9
25 22.5 21 20
15
10 2001/2 2002/3 2003/4 2004/5 2005/6 2006/7 2007/8 2008/9
Commencement of Crimes (Sentencing) Act 2005 (ACT)
B1.1 Accuracy of the ACT data 72. The ABS data replicate data provided to it by the ACT. The ABS data are only as accurate as the source data. Our research raises concerns about the accuracy of the ACT data. 73. We examined the judicial sentencing remarks and/or court order in 125 of the 126 cases for 2007-8 (one could not be located) , to check for accuracy of coding according to the ABS categories. We discovered a consistent inaccuracy in the way data are recorded. Table 3 below sets out the ABS coding for all cases and our assessment of what the correct coding should have been. It is assumed that if the
25 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
only additional condition is that the offender enter into a recognisance / surety / security, this is still correctly coded as a fully suspended sentence, not an intensive corrections order. 74. As the cases have actually been coded, the numbers are broadly correct for: non- custodial orders, orders of imprisonment with a determined term, partially suspended sentences, and periodic detention. However the cases which have been coded as ‘fully suspended sentence orders’ are almost entirely comprised of what should properly have been coded as intensive corrections orders (ie, ‘custody in the community’). Our examination of the physical files, retrieved for us by the Supreme Court Registry, showed that instead of there being 54 fully suspended sentences as was recorded, there were in fact only six such orders made, and instead of there being ‘nil or rounded to zero’ intensive corrections orders made, there were in fact 50 such orders. 75. The ACT has not been not alone in making this coding error, as attested by the published annotations in the ABS report 4513.0 Criminal Courts. Table 3: Principal sentences in ACT higher courts 2007-8: actual and correct ABS coding Order (ABS code) Number of Number of orders as orders if actually correctly coded coded Imprisonment with a determined term (1121) 38 35 Imprisonment with a partially determined term (1122) 8 7 Periodic detention (1130) 6 8 Juvenile detention with determined term (1141) 0 1 Intensive corrections order (1210) 0 50 Fully suspended adult sentence (1310) 54 6 Community services order (2110) 1 0 Fine (2210) 2 2 Good behaviour bond/recognisance order (2910) 8 9 Nominal penalty (2940) 8 7 Total 125 125
76. As well as this miscoding, our analysis of the ACT sentencing remarks indicates some inconsistency in how sentences are understood and, therefore, recorded. When offenders receive a custodial sentence which is backdated to take into account time spent on remand, and the offender is released immediately on being sentenced, this appears usually to have been coded as a fully suspended sentence, but at times is coded as a partly suspended sentence. 77. Further, as we note below at [115] in relation to the recording of the imposition of GBOs, it appears that through oversight, essential aspects of the court’s decision are not being recorded at all. B1.2 Observations on errors in the ACT data 78. This report is not critical of the ACT Supreme Court, and we are indebted to the Court Registry for its assistance in this research, even when it became clear that the research would reveal errors in the Court’s data. The errors in coding are not surprising in light of a number of factors we identified in the recording of the data.
26 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
79. The Court has limited resources for managing the data, and little time in which to ensure that an offender’s order has been accurately recorded. To determine the actual order made, Court staff are dependent on the record made on the file by a judge’s associate, but it was at times difficult even for the experienced research team to determine what the actual order was. 80. Referring to judicial remarks on sentence can help clarify the orders made. The Supreme Court does not currently have an electronic database of all sentencing remarks. In several cases, we were not able to access the judicial remarks on sentence because there were none on the court file; in such cases judicial remarks on sentence were kindly provided to us by the library of the Director Public Prosecutions. As we observe below at [142], there is a risk that the ACT will fail to develop jurisprudence, with the associated consistency in sentencing, unless reasons for sentencing are recorded and reported. 81. We note that different forms of judicial expression may have unintended consequences in the collection of data. Where Judge A might order a suspended and then say ‘in addition, I order that you get treatment for your drinking problem’, this would correctly be coded as a fully suspended sentence. The counselling order would be coded as a treatment order (ABS code 2130), which falls under fully suspended sentences in the coding hierarchy and therefore would not be included (given that only the principal sentence is reported to the ABS). If Judge B, by contrast, imposed a fully suspended sentence and then said ‘and as a condition of that sentence, I order that you get treatment for your drinking problem’, this should be coded as an intensive corrections order. 82. It is known that similar inconsistencies apply in other jurisdictions, making it impossible to conduct any reliable comparison between the rates – as reported by the ABS – of use of fully suspended sentences in the ACT and other Australian jurisdictions. B1.3 Recommendations on data collection and reporting 83. For sound policy development within the ACT, it is essential that notice be taken of the flawed basis on which the ABS sentencing data are collected and reported. It should be a matter of priority to rectify this issue in order to maintain the integrity of the data. 84. Accordingly we recommend that 1. The Supreme Court Registry be resourced to take urgent steps to establish sound administrative systems which ensure that sentencing data are recorded accurately and comprehensively, and in manner that is consistent with ABS reporting requirements. In particular we recommend the use of a template to standardise the manner of expression of sentencing, and the collection and reporting of sentencing data. 2. The Supreme Court Registry staff and staff of the judicial officers be resourced to undertake regular training on the accurate collection and reporting of sentencing data, including on ABS coding. 3. The Supreme Court Registry be resourced to maintain data collection and recording software that is compatible with ABS requirements. 4. The Supreme Court Registry be resourced to establish an electronic database of remarks made on sentencing, to be made publicly available on the Court website and/or through the AustLI website
27 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
5. The Attorney-General consider taking advantage of the opportunity created by systematic and reliable collection of sentencing data to make that data public on a regular basis.
28 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
C. Review of the 2005 reforms to the ACT regime for suspended sentences
C1. Methodology 85. In order to conduct this assessment, the researchers obtained sentencing remarks for all cases of fully suspended sentences imposed by the Supreme Court for two periods before the legislative amendments came into effect: January-June 2004 (‘2004a’) and July-December 2004 (‘2004b’), and two periods following the legislative amendments: January-June 2007 and January-June 2010. The assistance of the Supreme Court and Office of the Director of Public Prosecutions in providing access to this information is gratefully acknowledged. 86. There were five cases in 2004a, 14 in 2004b, 19 in 2007 and 15 in 2010. The following data were extracted from the sentencing remarks: 1. date of sentence 2. name of offender 3. offences committed (by name and Australian Standard of Classification code as set out by the ABS) 4. judicial officer 5. age at date of sentence 6. gender 7. plea 8. prior criminal record 9. conditions of suspended sentence imposed 10. whether any sentence other than the fully suspended sentence was imposed 11. sentence length (months) 12. operational period (months) 13. whether the sentence was the original sentence or imposed on appeal 14. whether the matter was a resentence for a breach of a previous suspended sentence 15. mitigating factors cited 16. any comments on suspended sentence policy, law or practice 17. any other relevant factor. 87. In determining the seriousness of an offender’s prior criminal record, an assessment was made on the basis of the number of prior offences, the seriousness of those offences and any relevant comments by the sentencing judge. It is acknowledged that this is something of a subjective assessment and what one judicial officer regards as significant might be regarded by another as minor. 40 88. The data under discussion are drawn from sample periods, the numbers of cases in which (especially for 2004a) are small. The sample periods are snapshots of activity and not a quantitative representation of any larger period. The researchers are not aware, however, of any factors which distinguish the sample periods from other comparable periods, ie periods before the reforms for the 2004 period, and periods
40 For discussion, see Lorana Bartels, Sword or Feather: The Use and Utility of Suspended Sentences in Tasmania, Unpublished PhD thesis, University of Tasmania, Hobart (2008), 187. http://eprints.utas.edu.au/7735/
29 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
after the reforms for the 2007 and 2010 periods. The following discussion proceeds on this basis.
C2. Discussion C2.1 Number of judicial officers 89. The sentences in 2004a were imposed by three different judges, the 2004b sentences by four judges, those in 2007 by six and those in 2010 by four. Due to the small number of cases it is not appropriate to draw any inferences about each judge and their likely sentencing practices. C2.2 Offence type 90. The most common offences for which a suspended sentence was imposed in the sample periods were: in 2004a, assault and theft equally (two offenders each) in 2004b, burglary (five out of 14 offenders) and assault (four offenders) in 2007, assault (seven out of 19 offenders) and robbery (four offenders) in 2010, assault (three out of 15 offenders) and burglary (four offenders). 91. It is not possible on the basis of these small numbers to determine whether the kinds of cases for which suspended sentences are being imposed are more or less serious since the reforms, but it is clear that assault dominates as the offence type for which such sentences are imposed. C2.3 Mean age of offenders Figure 2
50
40
30
20 Mean age of offender: years 10
0 2004a 2004b 2007 2010 sample sample sample sample
92. The ages of offenders in the sample periods ranged from 24-51 years in 2004a (5 offenders) 20-63 years in 2004b (14 offenders) 19-50 years in 2007 (19 offenders) 18-71 years in 2010 (15 offenders). 93. The mean age of offenders was 36 in 2004a, 30 in 2004b, and 31 in both 2007 and 2010. The incidence of one offender aged 71 in 2010 has slightly inflated the mean age for that period.
30 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
94. It is not possible on the basis of these small numbers to determine the extent to which an offender’s age was a factor in imposing a suspended sentence. C2.4 Sex of the offender Figure 3
100 90 80 70 60 50 Proportion male 40 30 Proportion female 20 10 0 2004 2004b 2007 2010 sample sample sample sample
95. Women accounted for one out of five offenders (20%) who received a fully suspended sentence in 2004a, none of the 14 offenders finalised in 2004b, and one out of 19 (5%) in 2007. In 2010, there were 14 men and one offender whose sex was not recorded, suggesting that women comprised either 0% or 7% of offenders who received a fully suspended sentence in 2010. 96. In the absence of data on the proportion of women who were sentenced for imprisonable and comparable offences in the relevant periods it is not possible to state the e extent to which an offender’s sex was a factor in imposing a suspended sentence. C2.5 Plea 97. In 2004a, 2004b and 2007, all of the suspended sentences followed guilty pleas. In 2010, 13 of 15 did, while two of the 15 sentences followed guilty verdicts after trial. 98. As noted below, an early plea of guilty is often cited as a mitigating factor in support of the imposition of a suspended sentence, but the data from 2010 demonstrate that a suspended sentence is still regarded as an appropriate sentencing option for an offender who is convicted at trial. It is not possible to say whether this represents any general shift in policy or practice in relation to the imposition of suspended sentences since the reforms. It could be that the ‘individualised’ nature of suspended sentencing as a result of the reforms has created more scope for the court to consider imposing a suspended sentence after conviction at trial.
31 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
C2.6 Prior criminal record Figure 4
100
80
60 Proportion first offence 40 Proportion significant prior 20 record 0 2004 2004b 2007 2010 sample sample sample sample
No prior record 99. In 2004a and 2004b, none of the offenders who received suspended sentences was a first offender. In 2007, by contrast, four offenders who received suspended sentences (24%) are known to have had no prior record, and in 2010 two offenders who received suspended sentences (15%) are known to have had no prior record. 100. It is unsurprising that first offenders receive a suspended sentence, although it can at times be controversial.41 If the suspended sentence was properly regarded as a serious punishment, just short of incarceration, then it could be inferred that the offence for which the first-time offender was being sentenced was serious. It is not possible to say without further research what proportion of all offenders with no prior record received a suspended sentence. It would be a different but worthwhile exercise to examine consistency in the way that first-time offenders are sentenced and the appropriateness of the imposition of suspended sentences in the circumstance of each case. Significant prior record 101. In 2004a, four offenders (80%) had significant prior records, while nine offenders (64%) did so in 2004b. In 2007, there were 11 offenders (66%) known to have had moderate or significant prior records and in 2010, four offenders (30%) are known to have had a significant prior record. 102. On the basis of these data, it would appear that having a significant prior record does not preclude the imposition of a suspended sentence. The data suggest that the reforms may have led to a significant prior record being a greater obstacle to receiving a suspended sentence than was the case previously. Future research could consider the relevance of prior record to the imposition and effectiveness of suspended sentences in the ACT.
41 See Lorana Bartels, Suspended Sentences in Tasmania: Key Research findings, Trends and Issues in Crime and Criminal Justice No 377, Australian Institute of Criminology, Canberra (2009).
32 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
C2.7 Length of sentence Figure 5
20
15
10 Mean length of sentence: months 5
0 2004 2004b 2007 2010 sample sample sample sample
103. In 2004a, four out of five sentences were for 12 months and one was for 36 months, with a mean of 17 months. In 2004b, sentences ranged from nine to 48 months, with a mean of 18 months. In 2007 sentences ranged from six to 36 months, with a mean of 19 months, and in 2010 the range was from six to 24 months, with a mean of 14 months. 104. It would appear that since the legislative amendments, some shorter suspended sentences (from six months) are being imposed, although there is no clear pattern in terms of the mean length of sentences. 105. In this sample, there was only one instance (out of 53 sentences) of sentences in excess of three years being imposed. This is an interesting finding, given that the ACT does not set any legislative limit on the length of a sentence which can be suspended. This parallels research findings in Tasmania, which similarly does not set a maximum and where suspended sentences very rarely exceed two years.42 In NSW, by contrast, suspended sentences are not permitted to exceed two years43 and a very high proportion of all such sentences are for exactly two years,44 suggesting that judicial officers in NSW are consciously or subconsciously fettered by this restriction, and tend to impose the longest possible period of imprisonment when suspending the sentence. 106. A legislative limit on the maximum term of a sentence which can be suspended seems to affect judicial behaviour. The data from the sample periods suggest that in the absence of such a limit in the ACT, the courts are assessing the appropriate period of imprisonment in the particular circumstances of the offender. Accordingly, there is no need for legislative amendment to prescribe legislative maximum terms.
42 Tasmania Law Reform Institute, Sentencing, Report 11, Hobart (2008). 43 Crimes (Sentencing Procedure) Act 1999 (NSW), s 12(1). 44 Patrizia Poletti and Sumitra Vignaendra, Trends in the Use of Section 12 Suspended Sentences, Sentencing Trends and Issues, No 34, Judicial Commission of New South Wales, Sydney (2005).
33 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
C2.8 Length of operational period of the suspension Figure 6
35 30 25 20 15 Mean operational period: 10 months 5 0 2004 2004b 2007 2010 sample sample sample sample
107. In 2004a, the period for which the sentence was suspended – the operational period – ranged from 18 to 48 months, with a mean of 35 months. In 2004b, operational periods ranged from six to 48 months, with a mean of 25 months. In 2007, the range was 12 to 60 months, with a mean of 25 months, while in 2010 the range was 18-36 months, again with a mean of 25 months. 108. The data from the sample periods suggest that operational periods in the ACT are generally just over two years. There is no clear pattern in the periods for which sentences are suspended, although it appears that it would be rare for a sentence to be suspended for less than one year or more than five, with such an instance occurring only once in the 53 cases studied. 109. As we noted above at [32], the court may make a GBO for a longer period than the period for which the sentence is suspended, if it considers it appropriate to do so. Ordinarily the period of the GBO is co-extensive with the period of suspension of the sentence. There is however an unresolved issue as to what would transpire if a GBO was imposed for a longer period than the period of suspension, and that order was breached at a time after the period of suspension of the sentence expired. C2.9 Conditions of sentence Recognisance Figure 7
100
80
60
40 Proportion receiving a recognisance 20
0 2004 sample 2007 sample (mandatory)
110. A recognisance attempts to reduce re-offending by threatening a sanction; the imposition of conditions, by contrast, attempts to reduce re-offending by dealing with possible causative factors (eg drug use).
34 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
111. In the 2004a period, each offender was placed on a recognisance, as were 11 out of 14 offenders in 2004b. In the 2007 sample, a recognisance was ordered for only four of 19 offenders (21%), and for only two of 15 offenders (13.3%) in the 2010 sample. 112. Clearly the rate of imposition of recognisances has decreased since the reforms, probably attributable to the mandatory imposition of a GBO and the greater range of options available to the sentencing judge. Reparations order Figure 8
100
80
60 Proportion receiving a 40 reparations order
20
0 2004 sample (mandatory) 2007 sample 2010 sample
113. A reparations order was made against two of the five offenders in the 2004a sample period, but not at all in the 2004b, 2007 and 2010 samples. 114. This is a surprising result, as there is no necessary connection between reforms to the suspended sentencing regime, and the extent to which regard would be had by the sentencing court to the victim’s need for reparation. The data may be explained by the random nature of the sampling, a reparations order having been made in other periods, and the futility of a making a reparations order in some circumstances. Good behaviour order 115. Under the 2005 reforms, s 12(3) of the Crimes (Sentencing) Act 2005 requires the imposition of a GBO when a sentence is suspended. Despite this, GBOs were recorded as having been made only in the 2007 sample period (and then only in relation to three offenders) and not at all in relation to the 15 offenders in the 2010 period. It is unlikely but possible that a sentence was suspended but no GBO was imposed. More likely is that the fact of the imposition of the GBO was not recorded, raising questions about data recording, collection and management discussed in Part B above.
35 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
Supervision order Figure 9
100
80
60
40 Proportion under Corrections supervision 20
0 2004 2007 sample sample
116. In the 2004a period, all five offenders (100%) were subject to the supervision of Corrective Services, as were 11 out of 14 offenders (79%) in 2004b. In the 2007 sample, of the 17 offenders known to have been subject to conditions other than or in addition to a GBO, 12 (71%) were subject to the supervision of Corrective Services, and in 2010 were 14 out of 15 offenders (93%)were subject to supervision. The order to be under the supervision of Corrective Service at times included the explicitly stated requirement that the offender submit to all reasonable directions. Other conditions 117. In 2007, sentencing judges imposed a broad range of conditions on the offender, including that they undertake urinalysis (for four offenders), undertake counselling (one), undertake drug treatment (one), undertake an anger management course (one), receive mental health treatment (two), undertake a cognitive skills program (one) undertake a men’s program (one), abstain from drug use (one), take medication (one), and/or register as a sex offender (one), with multiple conditions imposed in the majority of cases. 118. Similarly in 2010, a broad range of conditions was imposed: abstain from drug use (for four offenders), participate in drug screening and/or programs (four), undertake urinalysis (four), undertake a community service order (three), undertake a cognitive skills program (one), undertake a sex offenders program (one) and/or undertake counselling (one). 119. Part of the rationale for the 2005 amendments was a desire to make explicit to judicial officers their powers in relation to crafting sentences tailored to the individual offender. The legislation certainly appears to have met its objectives in this regard. There had however been a trend in this direction shortly before the reforms: in 2004b, which was the period during which the reforms were introduced as a Bill to parliament, the Court imposed number of conditions particular to the offender’s circumstances: obtaining counselling/treatment (for seven offenders), urinalysis (for three offenders), and abstaining from drugs, undertaking education, and receiving residential treatment (one each). 120. The data make clear that the imposition of a fully suspended sentence in the ACT is rarely an instance where the offender simply ‘gets off’ without some ‘bite’ to the sentence. In only two of the 51 sentences for which the conditions of sentence could be determined was the offender required only to submit to a GBO. In the significant majority of cases after the 2005 amendments, offenders were required to meet a range of conditions in addition to accepting supervision of Corrective Services.
36 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
121. The likely intention in imposing conditions such as these is to assist the offender in dealing with factors in their lives that may lead them into future criminal conduct (criminogenic factors). At the same time, it has been suggested that imposing a number of conditions on offenders can set them up for failure.45 Extensive further research would be needed to report on the rate of compliance with the conditions and the recidivism rate among offenders who had been subject to such conditions. C2.10 Mitigating factors cited (multiple factors possible)46 122. In the ACT, a sentencing judge will usually make explicit reference to some of the factors that have informed their decision to impose a suspended sentence (or any other sentence). Although the assessment of an appropriate sentence is not a mechanical calculation,47 a sentencing judge should explicitly state the factors taken into account in sentencing. Unless they do so there is no transparency to the sentencing discretion. 48 It is then almost impossible for an appellate court to determine if the exercise of the discretion miscarried. Further, the lack of transparency makes it impossible to report with certainty on the rate at which different factors arise in decisions to impose a suspended sentence, only on the rate at which sentencing judges volunteer such information. Guilty plea 123. The fact of an ‘early’ guilty plea was cited as a factor for imposing a suspended sentence for four of the five offenders in the 2004a sample period, three of the 11 offenders for whom mitigating factors were cited in 2004b and for three of 15 offenders in 2010. The fact of a guilty plea, without describing it as ‘early’, was cited as a factor for one of 19 offenders in the 2007 sample period. As we noted above, among all 53 suspended sentences in the sample periods, only two (in 2010) followed guilty verdicts after trial; it is likely therefore that a guilty plea was a relevant factor in imposing a suspended sentence, but simply not remarked on. It is not possible to infer, from the sample periods or the judges’ remarks, what different weighting might be given to the fact that a guilty plea was ‘early’. Other factors 124. An effect of the 2005 reforms was to enable the court to better tailor a sentence to the circumstances of the offender. In the 2007 and 2010 sample periods there was a increase over 2004a in the rate at which factors were referred to by the sentencing judges, although by 2004b, when the proposed reforms had been introduced into parliament, the Court was already citing a greater number of subjective factors when imposing a suspended sentence.
45 See George Mair, Noel Cross and Stuart Taylor, The Use and Impact of the Community Order and Suspended Sentence Order, Community Sentence Series, Centre for Crime and Justice Studies, London (2007), 31. 46 For discussion of the factors cited here and other relevant factors cited in mitigation in suspended sentence cases, see Lorana Bartels, ‘To Suspend or Not to Suspend - A Qualitative Analysis of Sentencing Decisions in the Supreme Court of Tasmania’ (2009) 28 University of Tasmania Law Review 23. 47 see Markarian v The Queen (2005) 215 ALR 213 at [52] per McHugh J; Ryan v The Queen (2001) 206 CLR 267, 294 per Kirby J. 48 see Markarian v The Queen (2005) 215 ALR 213 at [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
37 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
125. It is usual in sentencing to group sentencing factors as follows: factors relevant to the offender (eg good character or youth), which usually ‘carry the most weight in determining whether a sentence should be suspended49 factors relevant to the offence (eg whether the offence was committed in company, impact on victim); offender’s response to the charges (eg remorse, guilty plea); effect of offence and sanction (eg hardship to offender or others). 126. In the 2004a period, factors referred to by the sentencing judges were mental health problems (for two offenders), the relative lack of seriousness of the offence (two), remorse (one), evidence of rehabilitation (one) and the potential adverse impact on family of actual incarceration (one). In 2004b, the most commonly cited factors cited were the offender’s (relatively) good record (for five offenders), evidence of rehabilitation (four), family support (four), the offender’s youth (three), mental health problems (three). Other factors included that the offence was relatively minor (two) or the offender played a minor role in it (two) and (one each) evidence of cooperation with authorities or restitution, the offender’s old age, employment and observation of the totality principle. 127. In the 2007 sample period the most common factors cited were evidence of rehabilitation (for six offenders), evidence of good character (five), having undertaken or currently undertaking drug/alcohol treatment (five), difficult childhood (four), family responsibilities (four), evidence of remorse (three), low level of seriousness of the offence (three), being in stable employment (two), being a first offender (two), mental health problems (two),and (one each) having pleaded guilty, having made restitution, presenting with a low risk of reoffending, being young, having been under the influence of co-offenders, and having lost employment as a consequence of the offence. 128. In the 2010 sample period the most common factors cited were: evidence of remorse (for six offenders), evidence of rehabilitation (five), the low level of seriousness of the offence (four), having pleaded guilty (three), having undertaken or undertaking drug/alcohol treatment (three), in stable employment (two), had been a delay in sentencing (two), had a stable family (two), had cooperated with police (two), and (one each) being a first offender, evidence of good character, studying, being young, being old, and having physical health problems. 129. In light of the observations made above concerning the discretionary manner in which sentencing judges cite reasons for their decision, it is difficult to extrapolate from the foregoing any clear pattern in the factors for the imposition of suspended sentences. It is possible however to say that judicial officers now usually cite a broad collection of factors in each case, which would appear to reflect a policy to more readily tailor sentences to the individual offender. As well, the samples suggest that greater regard is had to factors in the offender’s current circumstances that indicate a low likelihood of re-offending than to factors in the offender’s personal history which might explain their having committed the current offence. As a principal objective of suspended sentences is the offender’s rehabilitation, it is perhaps not surprising these factors are commonly cited.
49 R v Lelei [2001] NSWCCA 229, [30] (Badgery-Parker AJ
38 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
C2.11 Breaches of suspended sentences 130. Quite apart from being concerned about consistency and certainty in the practice of imposing suspended sentences, as the 2005 reforms were, it is possible to ask about the effectiveness of suspended sentences as a sentencing option. This question was not asked by the Sentencing Review Working Group in its 2002 Issues Paper, and was not said by the Government to have been a consideration in its reforms. 131. The effectiveness of suspended sentences as a sentencing option is a current issue in Victoria, and has been in other jurisdictions: see discussion of the abolition of suspended sentences at [56]-[57] above. A common way to attempt to evaluate suspended sentences is to conduct a ‘breach analysis’, asking how often a suspended sentence order is breached, indicating thereby its effectiveness in giving the offender what is often perceived as a ‘second chance’. 132. The data collected for this evaluation cannot support a breach analysis. Furthermore, we have reservations about whether a breach analysis can be usefully undertaken on the basis of the data currently available in the ACT, as we do not have sufficient data on reoffending patterns. A limited breach analysis was undertaken recently within the ACT DPP by an officer of the DPP, and the DPP has generously agreed to share that analysis. 133. The Supreme Court does not keep records on breaches of suspended sentences. It is notable that the ABS itself does not collect such data. The officer obtained data by searching: 1. a Supreme Court sentencing database for records in 2009 where suspended sentences came before the court for 'breach'; the officer acknowledges that alone, this method is flawed due to known errors and omissions in the data- base; 2. 2009 transcripts of ‘remarks on sentence’ for term 'breach', then reading the identified transcript to locate those which actually dealt with a suspended sentence coming before the court for 'breach', and 3. 2009 "completed files" at the ACT DPP. 134. This did not take account of breach charges before the Magistrates Court. The breaches which were identified occurred in 2009, but the date of the imposition of the original suspended sentence is not known. 135. On the basis of this research, the officer reports that in 2009, 23 breaches of fully suspended sentences came before the Supreme Court. Among those cases: 1. the original suspended sentence was activated, in whole or part, in 26% of cases 2. the original suspended sentence was not activated in 74% of cases 3. a further suspended sentences was imposed in 56% of cases 4. there was no action for the breach in 13% of cases. 136. The analysis is limited to those cases where the offender breached the terms of the suspended sentence and was not prosecuted for breach. It does not report on cases where the offender was not prosecuted for breach, either because of an exercise of discretion by the police or prosecutors or because of a failure in administrative processes for identifying breaches. In a recent breach analysis in Tasmania, these factors were found to account for a significant failure to bring breached sentences
39 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
back to court.50 Accordingly, we cannot say what proportion of all suspended sentences imposed in the Supreme Court over a specific period of time, or what proportion of all apparently breached sentences, is represented by the 23 cases reported on. 137. In addition, there are further considerations which would need to be identified and taken into account in analysing the breaches: the nature of the breaching conduct (for example, whether the offence was breached by further offending or by a failure to comply with conditions of supervision); the number of breaches (for example, whether the action was taken following a single instance of reoffending or after numerous such instances); and the times frames for reoffending or action (for example, did the offender breach early or late in the operational period? How long did it take for prosecution action to be taken?). 138. The ACT DPP analysis sheds some light on the prosecution of breaches of fully suspended sentences in the ACT. It provides only a partial picture of what actually happens with suspended sentences, and further research could more comprehensively investigate this issue. C2.12 Statements of significance as to legislation or policy 139. In light of reforms to the legislative regime for imposing suspended sentences in 2006, we looked for any relevant comments by sentencing judges. 140. In 2004a and 2010, there were no judicial statements as to the legislation or policy supporting suspended sentences. In 2004b, in one case it was observed that It is clearly the law, as understood by the Court of Appeal of New South Wales, that fully suspending a sentence of imprisonment for supply of a drug of dependence should only occur in what that court has described as exceptional circumstances. Now, our Court of Appeal has taken something of a different view in relation to exceptional circumstances and has reminded sentencing judges in this court that we must look at the full circumstances of every offender and go through the process that is set out in the Crimes Act, and that it would be wrong to limit circumstances warranting mercy to some sort of mathematical formula to say we can only apply them in exceptional circumstances, meaning a minority of cases. We need to look in every case at every circumstance. 141. In 2007, fairly soon after the reforms came into effect, remarks of this nature were made in three cases. In one case, the sentencing judge commented on how the reforms required the imposition of a GBO, but noted that they would have imposed one in any event. In the other two cases, there was a reference merely to ‘the law’ and to common sentencing practice. 142. As is the case with sentencing remarks noted above, a sentencing judge in the ACT is not obliged to comment on the legislative or policy context in which a sentence is imposed, or on the jurisprudence of sentencing. From the researchers’ examination of sentencing decisions more generally (not just in suspended sentence cases), it appears to be the case that ACT judges rarely refer to other similar cases or engage in analysis of the sentencing legislation. Compared with the practice in some other
50 See Lorana Bartels, ‘Sword or Butter knife? A Breach Analysis of Suspended Sentences in Tasmania’ (2009) 21 Current Issues in Criminal Justice 219.
40 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
jurisdictions (for example, NSW and Victoria51), ACT judges are more likely in their sentencing remarks to confine themselves to the facts of the case before them. A consequence of this is that no significant body of jurisprudence on suspended sentences under the 2005 reforms has developed; the absence of such jurisprudence has the potential to reduce sentencing consistency over time.
C3. Observations C3.1 Number of judicial officers 143. It is not appropriate on the basis of the small number of cases to draw any inferences about the sentencing practices of judges. C3.2 Offence type 144. In the sample periods, assault dominates as the offence type for which such sentences are imposed. C3.3 Mean age of offenders 145. The data do not suggest any pattern in an offender’s age as a factor in imposing a suspended sentence. C3.4 Sex of the offender 146. In the absence of data on the number of women who were sentenced for imprisonable and comparable offences in the relevant periods, a comparison between the rates at which men and women receive suspended sentences is inappropriate. C3.5 Plea 147. An early plea of guilty is often cited as a mitigating factor in support of the imposition of a suspended sentence. 148. The data show that a suspended sentence remains an appropriate sentencing option for an offender who is convicted at trial. C3.6 Prior criminal record 149. In the absence of data on the number of offenders with no prior record who were sentenced, it is not possible to say what proportion of offenders with no prior record received a suspended sentence. Future research could examine consistency in the way that first-time offenders are sentenced and the appropriateness of the imposition of suspended sentences in the circumstance of each case. 150. The data suggest that having a significant prior record does not preclude the imposition of a suspended sentence. The data suggest that the 2005 reforms may have led to a significant prior record being a greater obstacle to receiving a suspended sentence than was the case previously. Future research could consider
51 See for example Georgia Brignell and Patrizia Poletti, Suspended Sentences in New South Wales, Sentencing Trends and Issues, No 29, Judicial Commission of New South Wales, Sydney (2003); Victorian Sentencing Advisory Council, Suspended sentences: Discussion paper, Melbourne (2005); Lorana Bartels, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Criminal Law Journal 113.
41 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
the relevance of prior record to the imposition and effectiveness of suspended sentences in the ACT. C3.7 Length of sentence 151. Since the 2005 reforms, some shorter suspended sentences (from six months) are being imposed, although there is no clear pattern in terms of the mean length of sentences. 152. The data suggest that in the absence of a legislative limit on the length of suspended sentences, ACT courts are assessing a period of imprisonment appropriate to the particular circumstances of the offender. C3.8 Length of operational period of the suspension 153. The data do not suggest any clear pattern in the periods for which sentences are suspended, although it appears that it would be rare for a sentence to be suspended for less than one year or more than five. C3.9 Conditions of sentence Recognisance 154. The rate of imposition of recognisances has decreased since the reforms, probably attributable to the mandatory imposition of a GBO and the greater range of options available to the sentencing judge. Reparations order 155. The making of a reparations order is very rare. This may be explained by the random nature of the sampling, a reparations order having been made in other periods, and the futility of a making a reparations order in some circumstances. Good behaviour order 156. Although obligatory, GBOs were recorded as having been made only in the 2007 sample period, and only in relation to three offenders. It is likely is that there is an error in data recording, as discussed in Part B above. Supervision order 157. The data show that most offenders are subject to the supervision of Corrective Services, and were so prior to the 2005 reforms. Other conditions 158. The data show that since the 2005 amendments judicial officers have more clearly crafted sentences to the circumstances of the individual offender, although there had been a trend in this direction shortly before the reforms, in late 2004. 159. Since the reforms, a fully suspended sentence is almost invariably accompanied by a range of conditions on the behaviour of the offender in addition to accepting supervision of Corrective Services. Extensive further research would be needed to report on the rate of compliance with the conditions and the recidivism rate among offenders who had been subject to such conditions (see C3.11 below).
42 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
C3.10 Mitigating factors 160. The failure by sentencing judge to consistently state explicitly the factors taken into account in sentencing make it impossible to report with certainty on the rate at which different factors arise in decisions to impose a suspended sentence. Guilty plea 161. The data show that most suspended sentences follow guilty pleas before trial. It is not possible to infer, from the data or the judges’ remarks, what different weighting might be given to the fact that a guilty plea was ‘early’, ie not at or during trial. Other factors 162. The data do not suggest any clear pattern in the factors for imposing suspended sentences. Judicial officers do now, however, usually cite a broad collection of factors in each case, which reflects the policy in the 2005 reforms to more readily tailor sentences to the individual offender. 163. The data suggest that greater regard is had to factors in the offender’s current circumstances which indicate a low likelihood of re-offending than is had to factors in the offender’s personal history which might explain their having committed the current offence. C3.11 Breaches of suspended sentences 164. The data cannot support a breach analysis. A limited breach analysis undertaken recently within the ACT DPP sheds some light on the prosecution of breaches of fully suspended sentences in the ACT. It provides a partial picture of what actually happens with suspended sentences, and further research could more comprehensively investigate this issue. C3.12 Statements of significance as to legislation or policy 165. ACT judges rarely refer to other similar cases or engage in analysis of the sentencing legislation, and usually confine their sentencing remarks to the facts of the case before them. As a result, there has been no significant body of jurisprudence on suspended sentences under the 2005 reforms. A risk associated with this is that sentencing consistency will reduce over time.
C4. Conclusion C4.1 Review of the 2005 reforms 166. In this part of the report we have reviewed the reforms to the suspended sentence regime in the Act resulting from the Crimes (Sentencing) Act 2005 (ACT) and the Crimes (Sentence Administration) Act 2005 (ACT). The reforms were introduced as part of a wider reforms to modernise language and to give courts greater flexibility in sentencing. 167. The data do not suggest any significant change since the 2005 reforms in the characteristics of offenders or offences in matters where suspended have been ordered. That is not surprising as the reforms were not intended to have any such effect. 168. The data show that the significant change in suspended sentences since the reforms is the focus by the sentencing court on the subjective circumstances of the
43 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
offender. This is evidenced by the wider range of conditions which are attached to the GBO and which are designed to positively affect the offender’s future behaviour. 169. Apart from this tailoring of the conditions of the GBO to the circumstances of the offender, the only other notable change in practice is the decline in the number of reparation orders. Further and detailed research would be necessary to determine the reasons for this decline, which could be explained by the circumstances of the matters which fell into the sampling periods. C4.2 Policy implications for further inquiry 170. In Part A.3.1, ‘Policy justification for suspended sentences generally’, we recorded common arguments for and against the use of suspended sentences, and in [56] and [57] we report on moves to abolish suspended sentences in other jurisdictions. The current regime for suspended sentences in the ACT was introduced in 2005, and the research undertaken for the current reference does not support an analysis of the desirability of suspended sentences. We report at Part C2.11 on the type of research that could support such an analysis. Consequently this report does not discuss or make recommendations regarding the future use of suspended sentences as a sentencing option in the ACT. 171. In the course of its deliberations, however, the Council noted a number of policy issues that are raised by the research, and we record them as possible matters for future inquiry: 1. Should suspended sentences be a sentencing option in the ACT? Two features of the regime for suspended sentences in the ACT raise the question of whether suspended sentences should be retained as a sentencing option. The two features are that it is mandatory to impose a conditional GBO with a suspended sentence, and that there is no presumption that a suspended sentences will be activated on a breach of the GBO. These features combine to suggest that the actual or effective sentence is the conditional GBO, not the suspended term of imprisonment. 2. What should be the consequences of the breach of a condition of the GBO associated with a suspended sentence? Related to the previous issue is the question of whether there should be in the ACT a presumption of activation of the suspended sentence on breach of a condition of the GBO. This is the case in NSW, South Australia, Victoria, Queensland, WA and NT, although the details of how the presumption operates vary. Tasmania, ACT and the Commonwealth do not have such a presumption. However the Tasmanian Law Reform Institute has recently recommended introducing a statutory presumption in favour of activation on breach. 3. What can be done to enhance consistency and predictability in the imposition of suspended sentences? The research has enabled us to recommend above at Part B1.3, and to comment at C3.12, that consistency and predictability will be enhanced through improved reporting of judicial reasons for and observations on the imposition of suspended sentences. A related policy question is whether the legislature should provide guidance as to the factors a sentencing court should have regard to in determining whether to suspend a sentence, as is currently the case, for example, in Victoria.
44 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
4. Does the terminology that is used adequately convey the nature of a suspended sentence? A so-called ‘suspended sentence’ is not the mere suspension of a sentence. It is the suspension of a sentence of imprisonment, and is subject to conditions. It may be that the term ‘suspended sentence’ does not sufficiently convey the gravity and conditional nature of the decision. There has been discussion in Canada and the United Kingdom about other possible descriptions, such as ‘suspended custodial sentence’ or ‘conditional suspension of custody’. . ______.
45 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010
Appendix A: Legislative provisions governing suspended sentences in Australia52
Jdn Legislation Max. term Operational period Can the ‘suspended sentence’ order be subject to conditions? Presumption of activation on breach NSW Crimes (Sentencing 2 years ‘not exceeding the term of the Yes. The offender must enter into a good behaviour bond, Yes – unless the breach was trivial or there Procedure) Act 1999, sentence’ which, subject to some restrictions, may contain ‘such other were good reasons for the offender failing to
ss 12, 95, 95A, 99 conditions as are specified in the order by which the bond is comply with the bond. imposed’ Vic Sentencing Act 1991, 3 years (higher Suspended term of imprisonment or No – only a general condition that the offender not commit Yes – unless unjust to do so in view of any ss 27, 29, 31 courts); 2 years 3 years (higher courts) or 2 years another offence punishable by imprisonment during the exceptional circumstances.
(Local Court) (Local Court), whichever is longer operational period of the order. SA Criminal Law None specified 3 years (term of bond under s 40) Yes. Suspension is conditional on the defendant entering into a Yes – unless the breach was trivial or there (Sentencing) Act bond, which may include conditions were good reasons for the offender failing to
1988, ss 38, 40, 42, 58 comply with the bond. Qld Penalties and 5 years Not less than the term of No – only a general condition that the offender not commit Yes – unless unjust to do so, taking into Sentences Act 1992, imprisonment imposed; not more another offence punishable by imprisonment during the account all the circumstances since the
ss 143-151A than 5 years operational period of the order. suspended sentence was imposed. WA Sentencing Act 1995, 5 years 2 years No – only a general condition that the offender not commit Yes – unless unjust to do so, taking into ss 76-80 another offence punishable by imprisonment during the account all the circumstances since the
operational period of the order. suspended sentence was imposed. Tas Sentencing Act 1997, None specified No period specified Yes. A suspended sentence may be made subject to such No, but legislation has been enacted which ss 7, 24-27 conditions ‘as the court considers necessary or expedient’. will introduce a presumption.
ACT Crimes (Sentencing) None specified No period specified Yes. A suspended sentence order is subject to a good behaviour No. Act 2005, ss 12, 13 bond which may contain one of a range of conditions.
NT Sentencing Act 1995, 5 years Not more than 5 years from the date Yes. A suspended sentence may be made ‘subject to such Yes – unless unjust to do so, taking into s 40-43 of the order (if fully suspended) or a conditions as the court thinks fit’. account all the circumstances since the
specified date (if partly suspended) suspended sentence was imposed. Cth Crimes Act 1914, ss None specified Not more than 5 years Yes. The offender is released upon giving a security and agreeing No. 20(1)(a), (b), 20A(5)(c) to abide by prescribed conditions and any other conditions
imposed by the court.
52 Adapted from Lorana Bartels, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31Criminal Law Journal 113; Victorian Sentencing Advisory Council, Discussion Paper: Suspended Sentences, Melbourne (2005); 23-34; 37-39.
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Appendix B: References
Articles and reports Australian Law Reform Commission, Same Crime, Same Time, Report 103, Canberra (2006) Bartels, Lorana, Suspended sentences in Tasmania: Key research findings, Trends and Issues in Crime and Criminal Justice No 377, Australian Institute of Criminology, Canberra (2009) Bartels, Lorana, ‘An Examination of the Arguments For and Against the Use of Suspended Sentences’, (2009) 12 Flinders Law Journal 119 Bartels, Lorana, ‘Sword or Butter knife? A Breach Analysis of Suspended Sentences in Tasmania’ (2009) 21 Current Issues in Criminal Justice 219 Bartels, Lorana, ‘The Weight of the Sword of Damocles: A Reconviction Analysis of Suspended Sentences in Tasmania’ (2009) 42 Australian and New Zealand Journal of Criminology 72 Bartels, Lorana, ‘To Suspend or Not to Suspend - A Qualitative Analysis of Sentencing Decisions in the Supreme Court of Tasmania’ (2009) 28 University of Tasmania Law Review 23 Bartels, Lorana, Sword or Feather: The Use and Utility of Suspended Sentences in Tasmania, Unpublished PhD thesis, University of Tasmania, Hobart (2008), 187 http://eprints.utas.edu.au/7735/ Bartels, Lorana, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Criminal Law Journal 113 Brignell, Georgia, and Patrizia Poletti, Suspended Sentences in New South Wales, Sentencing Trends and Issues, No 29, Judicial Commission of New South Wales, Sydney (2003) Freiberg, Arie, Pathways to Justice: Sentencing Review, Department of Justice, Melbourne (2002) Justice Bulletin no. 136. Sydney: NSW Bureau of Crime and Justice Statistics Lulham, Rohan, Don Weatherburn and Lorana Bartels, The Recidivism of Offenders Given Suspended Sentences: A Comparison with Full-time Imprisonment, Crime and Nicole Mayo, Senior Manager, Criminal Law Group, Legislation and Policy Branch, 7 June 2010, Personal communication Mair, George, Noel Cross and Stuart Taylor, The Use and Impact of the Community Order and Suspended Sentence Order, Community Sentence Series, Centre for Crime and Justice Studies, London (2007) New South Wales Law Reform Commission, Sentencing, Discussion Paper 33, Sydney (1996); Sentencing, Report 79, Sydney (1996) Poletti, Patrizia, and Sumitra Vignaendra, Trends in the Use of Section 12 Suspended Sentences, Sentencing Trends and Issues, No 34, Judicial Commission of New South Wales, Sydney (2005) Sexton, Reid, ‘Brumby in Backflip on Suspended Sentences’, The Age, 14 May 2010 http://www.theage.com.au/victoria/brumby-in-backflip-on-suspended-sentences-20100513- v1rh.html Stanhope, Jon, Legislative Assembly for the ACT, Hansard (3 August 2004), p3293 Stanhope, Jon, Legislative Assembly for the ACT, Hansard, (7 April 2005), p1506 'Sentencing in the Dock', Lawyers Weekly, 24 August 2001, 1
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Sentencing Review Working Group, Sentencing Review ACT: Issues Paper, Australian Capital Territory, September, 2002 Stefaniak, Bill, Legislative Assembly for the ACT, Hansard, (15 November 2005), p 4092 Tasmania Law Reform Institute, Sentencing, Report 11, Hobart (2008) Victorian Sentencing Advisory Council, Discussion Paper: Suspended Sentences, Melbourne (2005) Victorian Sentencing Advisory Council, Suspended Sentences in Victoria – A Preliminary Information Paper, Melbourne (2005) Victorian Sentencing Advisory Council, Suspended Sentences in Victoria: Monitoring Report, Melbourne (2010) Victorian Sentencing Advisory Council, Suspended sentences: Discussion paper, Melbourne (2005) Weatherburn, Don, and Lorana Bartels, ‘The Recidivism of Offenders Given Suspended Sentences in New South Wales, Australia’ (2008) 48 British Journal of Criminology 667
Legislation Crimes Act 1914 (Cth) Crimes (Sentencing) Act 2005 (ACT) Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing Procedure) Act 1999 (NSW) Sentencing Act 1995 (NT) Penalties and Sentences Act 1992 (Qld) Criminal Law (Sentencing) Act 1988 (SA) Sentencing Act 1997 (Tas) Crimes Act 1958 (Vic) Sentencing Act 1991 (Vic) Sentencing Act 1995 (WA)
Cases Dinsdale v The Queen (2000) 202 CLR 321. Kennewell v Rand [2006] ACTCA 10 Lukatela v Birch (No 2) [2008] ACTSC 148 Markarian v The Queen (2005) 215 ALR 213 Moore-McQuillan v Registrar of The Supreme Court [2009] SASC 265 R v Lelei [2001] NSWCCA 229 R v Taylor (No 2) [2008] ACTSC 97 Ryan v The Queen (2001) 206 CLR 267 Znotins v Heazlewood [2008] ACTSC 35
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