The last portions of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 commenced operation today. Section 2(5) of that Act provides:

(5) If a provision referred to in subsection (4) does not come into operation before 1 September 2014, it comes into operation on that day.

The most significant change is the abolition of suspended sentences of imprisonment.

The Act repeals Sentencing Act 1991 Part 3, Div 2, subdiv (3). This is the subdivision titled ‘Suspended sentences of imprisonment’, and which contained sections 27 and 29.

There are two relevant transitional provisions to bear in mind.

Section 149C (inserted by s 7 of the amending Act) provides that suspended sentences may still be imposed by higher courts for offences committed before or partly before suspended sentences were abolished in the higher courts from 1 September 2013.

Section 149D (inserted by s 22 of the amending Act) similarly provides suspended sentences may still be imposed by higher courts for offences committed before or partly before suspended sentences were abolished in all courts from 1 September 2014.

I discussed the amending Act back here, when the Bill was first introduced. (The changes were initially slated for 1 December 2013 and 2014, but brought forward when the Act was passed.)

It seems from the second reading speeches and the media announcements at the time that the government wants to restrict the meaning of ‘jail’ to sentences where the offender actually goes into custody.

Any other sentence where the offender walks out the front door of a court house won’t be called ‘jail’.

It’s not entirely clear if sentences that used to receive jail sentences that were then served by suspended sentence or, even earlier, by intensive corrections order now must receive immediate imprisonment, or can still receive another sentence, except that it won’t be labelled ‘jail’.

The Sentencing Advisory Council clearly thinks community corrections orders are a replacement for suspended sentences when a court thinks immediate imprisonment is unnecessary: see its CCO Monitoring Report Feb 2014 and also the Suspended Sentences and Intermediate Sentencing Orders Final Report Part 2 April 2008.

I think that’s consistent with what the Attorney-General said in the second reading speech I discussed in my earlier post.

But it’s not a view universally accepted by the Courts.

Part of the reason is probably because of the Sentencing Act itself, and the Courts doing their best to obey the Sentencing Act.

Section 5 of the Sentencing Act relevantly provides:

(3) A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

(4) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

The now-repealed s 27(1) used to provide (before the 2013 amendments commenced):

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.

Section 27(1A) then listed the criteria for determining if a suspended sentence was appropriate.

And section 27(3) provided:

(3) A court must not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act.

These provisions produced the odd result that a Court had to conclude that nothing other than jail would achieve the purposes of sentencing necessary in the case, and yet, it was appropriate to not send the offender to jail.

Turning to my trusty Fox & Freiberg on Sentencing, I see that the Kirby J grappled with this in Dinsdale v The Queen (2000) 202 CLR 321 at [74], [76], [79] – [81].

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

[76] Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified. 

[79] The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point … is 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. It follows that imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court with the responsibility of sentencing is “not quite certain what to do”. 

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

[81] A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis.

Once the sentencing range for some offences was established as jail — even though it might sometimes be suspended — it became very difficult to suggest that it now ought not be jail. It seems to me this is the problem that comes about because of the current government’s desire to label only actual jail as jail. That’s not necessarily a bad thing, and seems to be a lot more logical and intellectually honest about what’s happening in the sentencing process. But it suggests that the effect of the change either wasn’t fully appreciated when the changes were made, or the government didn’t mind that it might mean more people go to jail. IMHO, that’s not a good thing. Jail really should be an option of last resort, rather than a default because there’s no other option permitted to the courts because of the way the legislation is structured. (No matter what your philosophical approach might be to jail, if the purpose of it is to stop people reoffending — whether because they are deterred, or rehabilitated — then it seems it’s not so effective. Combine that with the bad side effects of jail, and it’s worth asking if there should be an alternative in appropriate cases.)

I think the government did mean for CCOs to occupy some of the ground previously occupied by ICOs and suspended sentences, but because the legislation doesn’t say that in those precise terms, it’s open to argument.

Presumably, this would mean that a Court would have to consider the maximum sentence available for a CCO — say, 5 years for recklessly causing injury — and conclude that would still be inadequate before it could then go up the sentencing hierarchy to consider a jail sentence. But again, that’s open to argument as well.

It seems that some courts have accepted this might be the case. The Age reported last year that one offender received a 10-year CCO. But that case, and two others, are before the Court of Appeal after the DPP asked for the first ever guideline judgment in Victoria on the scope and limits of CCOs. I understand those cases were argued on 31 Jul and 1 Aug, and the Court has reserved its decision on whether it will give a guideline judgment, and if it does, what that judgment will be.

Hopefully the Court will provide a guideline judgment, because it seems this is an area ripe for such direction. And hopefully it will agree with the view of the Sentencing Advisory Council. With the abolition of suspended sentences, there is a real need for an intermediate sentencing option that allows for serious punishment without all the brutalising effects of jail. There are some offenders who really are terrified just at the thought of being before a Court, and who truly do suffer significant punishment and experience deterrence without being locked up. On the other hand, there are some offenders who do need to be locked up. Ideally, our justice system should allow out courts to adequately deal with both.