Suspended Sentences : Some Common Questions

by Andrew Haesler SC
Public Defender

Section 12 Crimes (Sentencing Procedure) Act S. 33 (1B) Children (Criminal Proceedings) Act is in similar terms. (the Sentencing Act) continues still to vex magistrates, judges and advocates. The 2003 amendments, which followed the introduction of standard non-parole periods, together with some recent decisions of the Court of Criminal Appeal, have, if anything, added to the confusion. What I try to do in this paper is answer some of the common questions that arise in considering suspended sentences.

At present the section reads:

Where did suspended sentences come from?
Until 1974, courts in NSW could suspend sentences (ss.558 to 562 Crimes Act 1900). The sections were repealed as it was felt that bonds could achieve the same aims much more simply. The Commonwealth and all States and territories allow the courts an option of suspending a sentence.

In 1996 the NSW Law Reform Commission reviewed the law of sentencing LRC Report 79 (1996)'Sentencing', Recommendation 20, para. 4.20. and recommended the reintroduction of suspended sentences.

The Sentencing Act commenced in April 2000. One rationale for the new Act was to introduce the recommendations of the Law Reform Commission. As with most reforms however there was a catch! The government ignored the recommendation that the restriction on judicial discretion to fix flexible non-parole periods be removed. Special circumstances remained. If partial suspension of sentences were allowed courts could effectively avoid the usual 3:1 ratio between the non-parole and parole period by structuring their sentences to have a short time in gaol with the balance suspended. It was also felt that for a suspended sentence to operate as a real deterrent there had to be a risk that the whole of the sentence would have to be served on breach. Hence the rather convoluted wording of sections 12 and 99.

Why suspend the sentence?
The Sentencing Act allows a court a number of diverse options. There is simply no reason not to allow the court the flexibility of suspending a sentence. A suspended sentence occupies a space in the sentencing hierarchy as the least onerous of the sentences of imprisonment. It can be thus be a useful tool to both ensure compliance with a regime of rehabilitation and, by the imposition of a gaol term, send a signal to the offender and the community that the offence has been treated seriously.
It is sometimes forgotten that mercy can play a part in sentencing- in an appropriate case a suspended sentence allows for this virtue to be displayed.

In R v Laws, (2000) 116 A Crim R 70 Wood CJ CL explained that the purpose of suspension was, ' to convey the seriousness of the offence and the consequences of re-offending to the offender, while also providing him or her with an opportunity to avoid the consequences by displaying good behaviour and by not repeating the relevant breach of the law or any similar breach of the law.'(At 79.) See also Howie J in R v Zamagias [20020 NSWCCA 17 at [23] -[32].

The suspended sentence is particularly suited to that class of offender whose crime deserves gaol but who can demonstrate a special need to remain at liberty, say to care for a child or sick relative, to complete study or a rehabilitation program or to work and pay compensation. Effectively used, it could give those looking at gaol for the first time or those at the 'cross-roads' a last chance to show they can change and rehabilitate while at the same time allowing the court to publicly denounce their conduct.

Why not suspend the sentence?
There was a fear, expressed to the LRC By the DPP N Cowdery QC, the LAC, the Probation and Parole Officer's Association and the Corrective Services Department. See also L Bartels, 'Suspended Sentences in NSW' in (2001) Crim LN 8 p.81. that suspended sentences would simply mean more people would end up in prison ('net-widening'). That fear has been justified by recent research 'Suspended Sentences in NSW' Sentencing Trends & Issues No 29 (2003) Judicial Commission NSW., which shows that suspended sentences have done little to reduce the prison population and that courts are imposing suspended sentences instead of non-custodial options.

Suspended sentences have been criticised as being designed for 'middle class offenders' and their conditions as simply requiring what we all are required to do - obey the law. To an extent the 'middle class' criticism is true. If you are acting for someone who because of their race, lifestyle or background (or all three) regularly comes into contact with the police you must ask, ' Am I setting up my client for worse if I ask for and get a suspended sentence?" You must be realistic. If your client is likely to breach his or her bond isn't it better that they serve their time now? We all know who these clients are. And we all know some of our clients are simply incapable of compliance with conditional release. Despite all the law that says that they should not, most Magistrates and Judges do tend to adjust upwards the term of their sentences to reflect the in built leniency of suspension. On breach this can mean longer in gaol than if the client had gone straight there.

Isn't there something paradoxical about saying gaol is required and then not sending someone to gaol?
In Dinsdale v The Queen (2002) 202 CLR 321 the High Court explained that proper approach (and one required by s.12) involves two stages: First, a decision that only a custodial sentence will do: And secondly, that that sentence should be suspended. This involves what others have described as a penological paradox. Bartels op.cit. All of the relevant sentencing factors require gaol but when those very same factors are revisited, a decision is made that gaol is not required and the sentence suspended!

It is only a paradox if a very narrow view of how a judge or magistrate approaches their task is taken. As Chief Justice Gleeson remarked in Wong v The Queen (2001) 207 CLR 584, ' Judges are generally capable of entertaining two or more ideas at the one time.'(At [12].) One should never presume that an assessment of sentencing factors involves a strictly mathematical approach. It does not. AB v The Queen (1998) 198 CLR 111 and Weininger v The Queen (2003) 212 CLR 629 at [22]-[24]. Nor should it be assumed that where a sentencing factor is given a value for one purpose it has the same value throughout. Different considerations apply to both stages. An example is the setting of a non-parole period. The objective seriousness of an offence must be taken into account when fixing the full term of a sentence but it is of less importance when assessing the non-parole period. Bugmy v The Queen (1990) 169 CLR 525 at 532. The factors, which operate to reduce the term of a sentence, can also operate to when deciding to suspend it. This is not double counting. R v JCE [2000] NSWCCA 498 at [14]. Dinsdale at [85] per Kirby J.

Should suspended sentences be exceptional?
For some offences, which ordinarily call for full time imprisonment such as commercial drug supply or robbery the option to suspended the sentence must be seen as requiring exceptional circumstances.

However for most other types of crime suspension does not require exceptional circumstances to justify the option. In Victoria in 1996, 30% of all sanctions were suspended sentences. Suspended sentences in Victoria - Sentencing Advisory Council of Victoria Table 2. In South Australian in 2003/04, 38% of terms of imprisonment in the higher courts were suspended. The national average was 18%, with NSW coming in at 14%.

Suspension is unusual simply because there must be a series of specific factors present before suspension can be contemplated. If a conditional bond, fine or Community Service will suffice -why suspend? If the objective seriousness of the offence is high - why opt for leniency? If the client will have trouble meeting the conditions of the bond- why set them up to fail?

As (or if ever) courts come to question the utility of custodial sentences, particularly for offences that do not involve violence, suspended sentences could become a more popular option. In the United Kingdom for example a Guideline Judgment has recommended against gaol terms for non-violent offences for the purely practical reason that it will avoid gaol overcrowding. Kefford v R [2002] EWCA 512 (Crim).

Does the original sentence have to have a non-parole period?
As originally drafted in 1999 the legislation required a court to set only the total term of the sentence and leave the fixing of a non-parole period until breach. With the introduction of standard non-parole periods in 2003 came a reversion to the requirement that the non-parole period be set out first (bottom up sentencing). This it was said required a change to s.12. Section 12(3) now says that Part 4 of the Sentencing Act does not apply, ' except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence'. On a broad view all the provisions of Part 4 that deal with, 'setting the non-parole period and the balance of the term of the sentence' apply at this initial stage. Thus, if no parole period is fixed then the resulting sentence is a fixed term imposed pursuant to section 45 and 46. It must include both s.45 as a decision not to have non- parole period is a decision about, 'setting the non-parole period and the balance of the term of the sentence' and s.46 as sentences of 6 months and under cannot be split into parole and non-parole periods. A court cannot revisit a matter that has ' already' See s. 99(1) (c)(ii) Sentencing Act. been determined. Therefore on breach the Crown, and I suspect the court, would say the Part 4 determination having already been made, it cannot be made again and the fixed term stands.

The above approach has not yet been set in stone by the CCA. It could be argued that if the court does not initially fix the non-parole period it retains the option of doing so on breach. If this is so a court can decline to fix a non-parole period for the reason that it is best to wait until breach. It can be argued that if the court has not engaged Part 4 initially, on breach as it has not 'already' done so, it can fix a non-parole period - allowing what was not done, to be done. The main problem with this approach is that by not initially, fixing a non-parole period or a fixed term, it can be submitted that the court has not properly sentenced the offender and thus fallen into error.

What is the present state of the law?
1. A suspended sentence is a sentence of imprisonment. Dinsdale v The Queen (2000) 202 CLR 321 It is not a soft option.
2. A suspended sentence is intrinsically less severe than immediate full-time gaol R v Zamagias [2002] NSWCCA 17 at [29] and R v Montesinos (2002) 135 A Crim R 417. but on breach its consequences are just as severe.
3. A suspended sentence cannot be partially suspended. S. 12 (1)(a) was amended to overturn the effect of the decision of the CCA in R v Gamgee [2001]NSWCCA 251.
4. A suspended sentence cannot be imposed if the offender is already subject to some other form of imprisonment even if serving the balance of parole. R v Edigaraov [2001] NSWCCA 436 and R v Finnie [2002] NSWCCA 533
5. This provision may be able to be circumvented if a suspended sentence is imposed first and then immediately after the court imposes a short custodial sentence. R v Finnie, at [82] -[84] per Howie J with whom Spigelman CJ specifically reserved this question.
6. There is nothing to stop a court imposing a custodial sentence on someone who is already serving a custodial sentence. R v Finnie, at [82] -[84] Obviously this will achieve little if the new sentence involves a matter which breaches the bond.
7. The bond commences on the day it is imposed. It cannot be post or backdated or accumulated on another suspended sentence. R v Abdullah, unreported Hulme J. November 2004, R v Croaker [2004] NSWCCA 470.
8. The factors, which operate to reduce the term of a sentence, can also operate to when deciding to suspend it. This is not double counting. R v JCE [2000] NSWCCA 498 at [14]. Dinsdale at [85] per Kirby J.
9. It is necessary to set out both a non-parole and parole period when the sentence is first imposed. See ss. 3, 44 and 99 Crimes (Sentencing Procedure) Act 1999 particularly the definition of 'sentence'.
10. On breach, the whole of the sentence initially imposed must be served. R v Tolley [2004] NSWCCA165 and R v G Graham [2004] NSWCCA 420. A suspended sentence represents the sword of Damocles hanging over a person.
11. Only on breach can a suspended sentence be backdated to take account of time served prior to the imposition of the initial bond. Section 24 Crimes (Sentencing Procedure) Act 1999.
12. On breach, home detention and period detention remain options S. 99 Crimes (Sentencing Procedure) Act 1999.
13. The overall sentence is not to be increased because it is being suspended. See R v Sing [2002] NSWCCA 20, R v Zamiagias [2002] NSWCCA 17.
14. A fine can be imposed as an additional penalty but not as a condition of the bond. S. 15 Crimes (Sentencing Procedure) Act 1999

How is the suspended sentence to be imposed?
I have found the easiest way to avoid error is to encourage the sentencing court to ask the following questions. In Dinsdale v The Queen the High Court spoke of a two- stage approach. Given the NSW requirement that the ratio between the parole and non-parole periods must be considered there are in fact three stages, although the second two must be undertaken simultaneously.
1. Should a custodial sentence be imposed? If 'yes', ask, 'what should the total sentence period be'? (If it is longer than 2 years the sentence cannot be suspended).
2. If the answer is 'yes', ask, 'Is there a case for special circumstances?' Section 44(2) Crimes (Sentencing Procedure) Act 1999. If I am to suspend and thinking ahead, will the offender need longer on parole if there is a breach, what will be the appropriate non-parole and parole periods? The process of determining the non-parole period and making a finding in relation to special circumstances did not involve two steps, or a sequential process of reasoning but may be taken simultaneously. R v Way at [111] & [112] and R v Hampton (1998) 44 NSWLR 729. Remember, these questions can be asked simultaneously. R v Way (2004) 60 NSWLR 168 at [111] -[113]. Remember too, the overall sentence is not to be increased because it is being suspended
3. Should the sentence be suspended? Ask, 'Am I setting up the offender to fail? Am I being too lenient? Am I being too severe? Is a bond more appropriate? Is gaol really the only option if the Bond is breached?'
4. Finally, ask 'Should the bond be the same length as the total sentence or shorter?'It cannot be longer.
All that then remains is to announce the non-parole and parole periods, the fact of suspension and the length of the bond and explain to the offender the consequences of breach - 'You will go to gaol. You will serve the non-parole period.' The bond commences on the date it is entered.

When should we appeal?
If the initial sentence is too severe, appeal immediately. The time limit for lodging a Notice of Severity Appeal an appeal to the Court of Criminal Appeal is 28 days. The Notice gives you 6 months within which to file grounds and submissions. The 28 days however can be extended with the leave of the court. If the justice of case demands it there may be no effective limitation on a right to appeal the original sentence R v G Graham[2004] NSWCCA 420. Appeals from the Local Court are a different proposition. Again there is 28 day appeal period however leave to appeal out of time can only be granted if the appeal is lodged with 3 months of imposition. See s.13 Crimes (Local Courts Appeal and Review) Act 2001. The DPP can also appeal - s.23. If you wait until breach it could be too late.

What happens on breach?

Section 99 Sentencing Act relevantly provides that:

The Court of Criminal Appeal in Tolley made it clear that on breach a court does not re-sentence. All that happens is that, ' the order under section 12 (1) (a) ceases to have effect in relation to the sentence of imprisonment suspended by the order'. As there is no sentence, the appeal provisions in s. 99(5) do not apply, as the offender is not being, ' sentenced' ' under this section'. The court simply confirms the sentence already imposed, considers whether it should be served by home or periodic detention and fixes the commencement date of the sentence.

The commencement date of the sentence can be backdated- applying s. 47 (2) Sentencing Act Tolley [2004] NSWCCA 165 at [27] and [39]. as a court can take into account time served either prior to the original sentence or while a person is in custody awaiting being dealt with for the breach.

Appealing after breach
There is no right of appeal from the District Court to the Court of Criminal Appeal from the decision to breach the bond or any subsequent orders. In R v G. Graham Beasley JA for the court At [27]. made the point that section 99(5) of the Sentencing Act does not give an aggrieved person a right of appeal as they are not being ' sentenced'. If they are not being 'sentenced' the Criminal Appeal Act 1912 would not apply, as s.3 of that Act refers only to the 'sentence' that was suspended not the consequent orders. The CCA can however hear an appeal from the original sentencing order, so long as leave to appeal out of time is granted. R V G Graham.

There is however, subject to the 28-day and 3 month time limits, a right of appeal from the Local Court to the District Court against the revocation of the bond and subsequent orders. Section 11(2) Crimes (Local Court Appeal & Review) Act 2001 provides for an appeal from a sentence imposed in the Local Court. ' Any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence'.

Section 3 (a) of the Crimes (Local Court Appeal & Review) Act 2001 defines 'sentence' to mean: ' Any order made by a Local Court in respect of a person as a consequence of its having convicted the person of an offence...'

It includes a number of not presently relevant matters, listed as (a) to (g). These do not include s.12 breaches. This should not be interpreted as an exclusive list. Although s.99(4) does not apply there is nothing in the Sentencing Act to say that the appeal against consequential orders provided by the Crimes (Local Court Appeal & Review) Act 2001 doesn't apply. It must be given a purposive interpretation that favours the rights of the accused unless the contrary intention is made clear.

That being said, once it is established that there was a breach and that it was not trivial, the court must act unless there are, ' good reasons for excusing the offender's failure to comply with the conditions of the bond'. In R v Burrows [2004] NSWSC 433, Hidden J said that a court must focus in the circumstances of the offence that brings about the breach. Generalisations are not possible but a marked disproportion between the gravity of the offence and the consequences of the breach may do. It is not enough to rely on the offender's circumstances at the time of the breach. (At [24] &[25]). I doubt that, ' It wouldn't be a good idea to send my client to gaol' would qualify.

If the discretion to allow alternatives to full time imprisonment such as periodic detention or home detention miscarried in some way this decision could be appealed. Obviously the prerequisite of a favourable parole report would be required.


Where are suspended sentences going?
Following Tolley, proposals have been presented to the Attorney General suggesting changes the Sentencing Act to bring it more into line with the regimes that operate in other States. In both Tasmania and Victoria for example the courts have much more flexibility in the imposition of suspended sentences and how they are dealt with on breach, although in both States the option is presently under review. For example; why should the period of the Bond be restricted to the term of the sentence? Should the court have a power to extend the operational period of the bond? On breach why should the court have not have some flexibility as to the length of time a person must spend in custody to take into account all they have done in compliance with their now breached bond? Why shouldn't the court have the option of continuing the suspended sentence but for a longer period?

It makes no sense for a court to determine the proper non-parole period in advance of breach. Similarly, on breach a court should be in a position as occurs with all other breaches of bonds, to re-sentence. Here the court could take into account three important factors:
1. That the original sentencing court determined that a term of imprisonment was required.
2. That on breach re-sentencing should take into account anything done in furtherance of the bond and the time spent between sentence and breach, And,
3. That the original sentence must set the outer limit for any new sentence.

The Sentencing Council presently has a reference before it looking at suspended sentences. One of the questions under consideration is whether the Court of Criminal Appeal should give a Guideline Judgment which would set out the factors to be considered by a court in determining whether to suspend a sentence or not.

Andrew Haesler
March 2005