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 2 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010 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 3 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010 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). 4 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010 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. 5 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010 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. 6 ACT Law Reform Advisory Council, Report on Suspended Sentences, 31 October 2010 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