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  • Suspended Sentences in Australia

    Usually, when the court finds a person guilty of the offence, it will proceed to sentence the offender with punishments up to what is stipulated in the law. However, in some cases, the court will suspend or exchange the sentencing for another program. Under the law, these programs or sentencing types are called suspended sentences.

    Since a suspended sentence does not cancel the original conviction, the offence for a suspended sentence shows up on a criminal record check certificate and is disclosed in accordance with the spent convictions scheme of Australia.

    What is a suspended sentence?

    If the court imposes a penalty, usually a sentencing term which it does not activate or exchange for another program. It could be;

    • Prescribing an imprisonment term on an offender, and,
    • Ordering a partial or whole suspension of their prison term for a set period ('the operational period').

    Depending on the peculiarity of the case, the sentencing can either be wholly suspended or partially suspended.

    The offender must maintain good behaviour (avoid getting another conviction) during this period.

    What are the two types of suspension sentences?

    The Magistrate/Judge can apply any of the suspension types to grant the offender a suspended sentence under the law.

    • Wholly suspended sentence

    When the court suspends the offender under a full suspension program, the offender will not serve the imprisonment term imposed on them. Instead, they will be released under some community corrections order or any other program imposed.

    • Partially suspended sentence

    The partial sentence suspension offers the offender only a partial exclusion from their sentencing. For such programs; the offender must serve for part of the imprisonment term and then be released to the community under Good Behaviour.

    Why does the Court impose a Suspended sentence?

    Suspended sentences help the court to impose alternative and less severe punishments where the case begs of one. Some cases include;

    • The person is a first-time offender and has shown remorse or contrition for the offence,
    • A young person that the law wants to protect from the effect of having a Criminal record and serves a suspended sentence instead,
    • Where the court believes imprisonment, the term will be harsh sentencing for the offence.

    Are all offences eligible to be suspended under the Law?

    The Crimes Act 1914 (Cth) stipulates that the court cannot impose a sentence more severe than necessary as relating to the offence. Therefore, the Judge or jury should only impose sentences that reflect the impact of the offence committed.

    A suspension order can only be issued where the court deems an imprisonment sentencing as one of the penalties it can impose.

    Therefore, the court must be satisfied that other programs, such as a fine or a community-based order, are less appropriate than an imprisonment term.

    Only if the Magistrate or Judge have imposed imprisonment terms for the offences, do they have the option to grant a sentence suspension. However, before a Judge or Magistrate can grant a sentence suspension, they must be satisfied that such was desirable for the circumstance.

    The High Court determines that in granting a suspension order, the court should consider circumstances personal to the offender, and the objective features in the offence.

    Can I get a sentence suspension?

    The court can grant you a sentence suspension; after it reviews your application and considers it to meet all conditions.

    For the court to grant you a sentence suspension, you must not have been sentenced to a term longer than 3 years in a higher court. And if you are sentenced in a Magistrate court, the term should not exceed 2 years.

    Furthermore, the operational period runs the same duration as the original term of imprisonment imposed. Else, for periods not exceeding 3 years, or 2 years in the case of the Magistrates' Court.

    What are the conditions that make the Suspended Sentence Valid?

    When the court grants to have your sentence suspended, it can issue further conditions that you must abide by.

    The basic condition for a suspended order to remain valid is that the offender should not get another conviction. It does not matter that the convictions are another offence or the punishments are for lesser offences.

    If a Magistrate or Judge suspends your imprisonment, they usually impose certain conditions. These conditions are relevant to the rehabilitation of the offenders and serve as corrections for the offence.

    • Community Corrections supervision

    The court can assign you to the supervision of a parole officer or a Community Corrections supervision. Such programs usually remain in place for as long as the court deems necessary.

    • Counselling

    The court can order that you attend a drug or alcohol abuse program as part of the conditions for your good behaviour bond.

    If the offender satisfies all the conditions, and other requirements (often with documented proof), the court cancels further penalty. However, defaulting from one or multiple conditions results in a court summon and re-sentencing on the original offence.

    • Forbidden from obtaining certain licenses

    When a person is under a Good behaviour program, they are usually disqualified from obtaining;

    • Firearm licenses,
    • Any part of ammunitions/explosives,
    • The offender may also be required to submit themselves for gunshot residue tests.

    If there is a breach of this condition;

    Offenders may be prosecuted for breach committed three years post-offence (even if the operational period has expired). In certain jurisdictions (but not in Victoria), courts can attach additional conditions to a Suspended Sentence Order.

    While under a suspended sentence (section 12 dismissal), the court demands you to be of good behaviours.

    An offender can void their Good Behaviour Programs by any of these actions;

    • Getting another conviction of any kind,
    • Failing to abide by the conditions set in the bond, including;
    • Refusal to attend counselling
    • Consistently skipping appointments with your Community corrections supervisor.

    Breaching the conditions for a suspended sentence, can make the court revoke the order, unless the defendant can prove that:

    • The charge of breach against the offender failure was "trivial"; or,
    • There were good reasons to excuse the offender's failure to comply with the conditions of the bond.

    Will a Suspended Sentence show up in my Australian Police Check?

    The police check is a legal assessment document that contains all the criminal records of a person. If a person has ever received a conviction in court, it will show up in their Police Check.

    Suspended sentences are disclosed on a police check. Since a suspended sentence only exchanges the offence without cancelling the conviction.

    So even after you satisfy the conditions of your suspended sentencing, it is still disclosed in a Police Check.

    Other convictions history that shows in a national criminal history check are;

    • Sexual offences,
    • Assault and Affray cases,
    • Breach of Good Behaviour Bonds,
    • All convictions not considered spent,
    • Convictions against corporate bodies,
    • Pending Charges.

    What offences are not eligible for suspended sentencing?

    For certain offences, the court will refuse your application for a Good Behaviour Bond. These offences include cases where there was grievous injury.

    The impact of these offences can be physical, mental, psychological, emotional, and related.

    These offences are described in three categories under Australian laws;

    • Serious organised crime offences or specified offence against the police; or
    • A serious sexual offence; or
    • A designated offence and,

    Within the five years that precedes the date of offence, a court already grants a sentence suspension or imposes a period of detention for a designated offence.

    Examples of serious and organised crime offences include:

    • Participation in a criminal gang or group;
    • Blackmail, or abuse of public office, especially where the offence has aggravated circumstances through connection with a criminal organisation;
    • Offences concerning witnesses and jurors;
    • Trafficking and manufacturing of controlled drugs;
    • Including the selling, supplying or administering of such substances to children or in a school zone
    • Specific offences against police:
    • Attempted manslaughter/murder of a police officer; and causing serious harm to a police officer.

    Designated offences include:

    • Aiding suicide;
    • Unlawful threats and unlawful stalking;
    • Dangerous driving to escape a police pursuit;
    • Causing harm and causing serious injuries;
    • Firing at police officers;
    • Kidnapping;
    • Robbery;
    • Serious criminal acts; and,
    • Assault with intent to commit other crimes.

    Therefore, the court does not grant sentence suspension for serious offences like;

    • Rape cases;
    • Sexual manipulation;
    • Sexual abuse of a child;
    • Sexual exploitation of a vulnerable person;
    • Kidnap;
    • Procuring sexual acts;
    • Incest;
    • Illicit sexual intercourse;
    • Indecent assault and related offences;
    • Assisting of child exploitation through materials;
    • Procuring a child to commit an indecent act

    Various regulations under the States and Territories

    Getting your sentencing suspended in some States or Territories can be straightforward and easier than in the other Australian States or Territories. The legislation in these States does not set out any special test or condition before the court grants a suspended sentence.

    New South Wales,

    Tasmania,

    Western Australia.

    However, in Queensland, the suspension will only be granted if the court feels it is appropriate to do so depending on the circumstances.

    In the Northern Territory, the court will only suspend a sentence if it deems it desirable in the circumstances available.

    South Australia must believe that a good reason must exist before the courts are granted a suspension for their sentencing.

    The Crimes Act 1914 (Cth) stipulates that a court can grant a recognisance release order if it thinks it fit. However, the Australian Law Reform Commission (ALRC) recommends that it should be more of a reflection of the conditionally suspended sentence.

    The Victorian legislation concludes that the court must find a suspension sentence desirable before it imposes it. However, the court must consider some circumstances;

    1. It must be appropriate to the offence that the offender commits. The sentence should;
    • Be sufficient to the court prohibition and denunciation of the type of offence
    • Prevent the person from reoffending in the future
    • Reflects the gravity of the offence
    1. Whether the offender had a previous suspension order within a period or if they breached the order suspending that sentence.
    2. If the offence was committed during the operational period of the suspended sentence of imprisonment
    3. The degree of impact of having the offender back in the community. It includes how suspending the sentence will affect others or the state.

    Restrictions on imposing a sentence suspension

    In the ACT and Tasmania, the legislation does not give any restrictions whatsoever to the sentencing offence. Here the court can suspend depending on how they deem fit and until a period they think is appropriate.

    While legislation in NSW, WA, and Queensland are not restricted based on the type of offence, it limits the length of the sentencing and operation period. The restrictions are also similar in the Northern Territory, South Australia, Victoria.

    The legislation in Victoria also restricts the suspending of sentences in the interest of justice and community wellbeing. A court cannot fully suspend 'serious' offences, like; murder, manslaughter, and other offences intentionally causing injury.

    Also, a court can refrain from granting a sentence suspension imposed on a person who carried a firearm while committing an indictable offence or carried an offensive weapon when committing a sexual offence.

    The Northern Territory does not allow full suspensions for offenders convicted of sexual or other violent offences (subsequent offender). Where an offender is convicted of an aggravated property offence, the court can only grant a full sentence suspension if the offender enters into a home detention order.

    In South Australia, you cannot get suspended sentencing of the court commits you for;

    • Serious offences like; murder or treason, or
    • Where an Act expressly prohibits a reduced sentence in the offence,
    • Where this sentence must be served cumulatively on another term or concurrently with another term.

    Restrictions to conditions attached to a suspended sentence

    When the court gives a sentence suspension, they will usually impose some conditions or penalties. In the ACT, NSW, South Australia the conditions are set in Good Behaviour Orders.

    However, the only restriction in these states is that the Good Behaviour Order must not be inconsistent or differing from the sentencing legislation of the State.

    In Queensland, Victoria and Western Australia, the main condition attached to a suspended sentence is that the offender must not commit a further imprisonable offence during the operational period of the sentence.

    In the Northern Territory, a suspended sentence may get conditions that the court thinks is necessary for the type of offence. Some of these conditions have been introduced recently to Tasmania;

    • Not commit another offence punishable by imprisonment;
    • Report to their probation officer;
    • Remain in the State unless permitted to do otherwise; and
    • Give notice of change in residence or employment.

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