Suspended Sentences – Soon to be No More

201410.21
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The Sentencing Act 1991 empowers the Magistrates’ Court to order the full or partial suspension of a State sentence of imprisonment, for a specified period (s27(1)).This order is not available in federal sentencing.

The Suspended Sentence is being progressively abolishedIt has been abolished as an available sentencing order in the Supreme and County Courts, although those courts may impose a suspended sentence for an offence (other than a serious or significant offence), where that offence was committed before 1 September 2013. Further, a suspended sentence may be available for a serious offence or significant offence where that offence was committed prior to 1 May 2011.

On an appeal from the Magistrates’ Court, the County Court may impose a suspended sentence if that sanction was available to the Magistrates’ Court for the particular offence (s27(11))

Within the duration limitations, the test for suspension is whether or not the order is ‘desirable in all the circumstances of the case’ (s27(1)). In sentencing for offences committed on or after 1 November 2006, the ‘desirability’ of the order must be assessed according to mandatory considerations described in s27(1A).

Additional limits on the availability of a suspended sentence may apply when sentencing offenders for ‘serious’ or ‘significant’ offences, as defined by s3 of the Act:

Sentencing an offender for a defined ‘serious offence’ committed between 1 November 2006 and 1 May 2011, the availability of orders wholly suspending a sentence of imprisonment is further limited by an exceptional circumstances test (s27(2B) as previously enacted));

Sentencers are completely precluded from suspending a sentence of imprisonment (whether wholly or partially) for defined ‘serious’ or ‘significant offences’ committed after 1 May 2011 (s27(2B) as now enacted).

The suspended period of the sentence is only to be served if the order is contravened. A contravention is committed if the offender commits another offence punishable by imprisonment during the operational period of the suspension (s83AB).

On a hearing for a contravention, the sentencer must restore the originally suspended part of the sentence unless the court is satisfied there are fresh exceptional circumstances (s83AR) .A suspended sentence of imprisonment may only be imposed if, in the hypothetical absence of the option to suspend, the underlying sentence of imprisonment would itself have been appropriate (s27(3)).

For many offences the power to suspend a sentence is primarily limited by restrictions on the length of sentence that can be suspended. A magistrate can only suspend a sentence of imprisonment of two years or less (s27(2)).

Within the duration limitations, the test for suspension is whether or not the order is ‘desirable in all the circumstances of the case’ (s27(1)). In sentencing for offences committed on or after 1 November 2006, the ‘desirability’ of the order must be assessed according to mandatory considerations described in s27(1A).

Additional limits on the availability of a suspended sentence may apply when sentencing offenders for ‘serious’ or ‘significant’ offences, as defined by s3 of the Act:

In sentencing an offender for a defined ‘serious offence’ committed between 1 November 2006 and 1 May 2011, the availability of orders wholly suspending a sentence of imprisonment is further limited by an exceptional circumstances test (s27(2B) as previously enacted));

Magistrates and Judges are completely precluded from suspending a sentence of imprisonment (whether wholly or partially) for defined ‘serious’ or ‘significant offences’ committed after 1 May 2011 (s27(2B) as now enacted). 

http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#16974.htm
http://www.liv.asn.au/