From last Sunday, only Magistrates’ Courts can now imposed suspended sentences of imprisonment, subject to some exceptions. Division 2 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 abolishes suspended sentences in the County and Supreme Courts.
There’s no specified commencement date yet for the abolition of suspended sentences in the Magistrates’ Court other than the default date of 1 September 2014.
There are three exceptions to the new regime:
- The County Court may impose a suspended sentence when deciding an appeal from the Magistrates’ Court: Sentencing Act 1991 s 27(11) and Criminal Procedure Act 2009 s 256. (The Austlii version of the Sentencing Act isn’t up to date, so that hyperlink will take you to the Victorian legislation website version.)
- The County and Supreme Courts may still impose suspended sentences for offences that were committed before 1 September 2013: Sentencing Act 1991 s 149C. (Although that transitional provision doesn’t expressly say anything about the operation of the previous restrictions for serious and significant offences, there’s nothing to suggest those provisions are affected for pre-1 Sep 2013 offending.)
- The County and Supreme Court may still impose suspended sentences for serious and significant offences committed before 1 May 2011, by virtue of Sentencing Act 1991 ss 27(2B) and sub-ss 143(6) and (7), and (9) and (10), in conjunction with s 149C. (1 May 2011 was the commencement date of Sentencing Amendment Act 2010 s 12, which introduced the prohibition on suspended sentences for serious or significant offences committed on or from that day.)
- Section 27(2AB) provides that Magistrates’ Courts can’t impose suspended sentences for proceedings transferred from the County Court back to the Magistrates’s Court, under Criminal Procedure Act 2009 ss 168, 242 or 243. This was intended to overcome the effect of DPP v Batich, when the County Court considered an offender should receive a suspended sentence for a significant offence (recklessly causing serious injury), but because it could not do so, returned the case to the Magistrates’ Court, which could impose a suspended sentence.
- Section 27(10) provides that the County and Supreme Courts can’t impose suspended sentences for related summary offences dealt with under Criminal Procedure Act 2009 ss 242 and 243 and Sentencing Act 1991 s 83AM.