Thursday, 28 April 2011

(Some) suspended sentences to go

Some of the Sentencing Amendment Act 2010 (discussed last year here) commences operation on 1 May 2011 (see Special Gazette, S125, 19 Apr 2011), namely:
  • Section 3 (definitions) — except paragraphs (b) – (e) which repeal CSO, ICO and CCTO as part of the introduction of the proposed intensive correction management order
  • Section 12 (suspended sentences)
  • Section 27 (transitional provisions inserted into the Sentencing Act 1991)
  • Section 28 (amendment of Road Safety Act 1986 – offence to drive when disqualified)
Some of the Sentencing Further Amendment Act 2011 (discussed here back in March) commenced operation on 13 April 2011 (see Special Gazette, S117, 12 Apr 2011), namely:
  • Part 1 (preliminary)
  • Part 2 (amendment of the Sentencing Amendment Act 2010)
That means the amending act was itself amended, before it commenced and amended the Sentencing Act!

The effect is that from Sunday, there will be a new definition of significant offence. A significant offence is:
  • Recklessly causing serious injury (unless heard and determined summarily)
  • Aggravated burglary (unless heard and determined summarily)
  • Arson (unless heard and determined summarily)
  • Arson causing death
  • Trafficking in large commercial quantities of drugs
  • Trafficking in commercial quantities of drugs
Those last three offences can only be determined in the County or Supreme Courts.

From 1 May, the Sentencing Act 1991 s 27(2B) will provide:
(2B) Despite subsection (1), a court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence or for a significant offence.


A suspended sentence may be available for a serious offence or for a significant offence committed before the commencement of section 12 of the Sentencing Amendment Act 2010.
Serious offences are already defined in s 3 of the Sentencing Act, and are offences that can't be heard in the Magistrates' Court.

That means suspended sentences will still be available in the Magistrates' Court — at least for now.

While some may be expecting prisoner numbers to increase as a result of the amendments, that isn't the stated aim of the legislation. In his press release Robert Clark said,
Abolishing suspended sentences will put truth back into sentencing, so that jail will mean jail. If a judge thinks an offender should not go to jail, the judge will say so openly and put the offender on a community based sentence, instead of the law pretending the offender is being sent to jail.
The government intends abolishing all suspended sentences prior to the end of its first term, but at present there are no further Bills before Parliament for a further phase of reform.

1 May is also when mandatory suspended sentences for subsequent offences of driving while suspended or disqualified are abolished. Sentencing Amendment Act 2010 s 28 will amend the penalty portion of s 30(1) Road Safety Act 1986, which will read:
For a first offence, 30 penalty units or imprisonment for 4 months; For a subsequent offence, 240 penalty units or imprisonment for 2 years.
The new system of Intensive Correction Management Orders (ICMOs) in Sentencing Amendment Act 2010 s 13 (inserting ss 35A – 35ZQ in the Sentencing Act) is not commencing, so the existing system of ICOs and CBOs will apparently continue for some time yet.


Anonymous said...

Is this for all offence from today or just offences comiitted after today?

Dr Manhattan said...

Anon, my understanding is that the higher courts cannot impose suspended sentences for significant and serious offences committed on or after 1 May.

But the removal of mandatory imprisonment for disqualified driving applies regardless of when the offence occurred.

Tim said...

Hi there

I do not get why the prosecution would consent to having the charge hear summarily if they couldn't push for an actual term in the magistrates court? It's like straight out agreeing to a suspended sentence.

Isn't it?

Tim Dunstan

Kyle said...

Tim, the answer lies in s 29 of the Criminal Procedure Act. Not every offence potentially punishable by jail actually deserves jail in every instance. (Shoplifting is a good example (10 years), as is using indecent language (2 months).)

Similarly, in some cases involving serious offences the prosecution considers it appropriate to bring the charge in the Magistrates' Court despite even though the accused might well receive a suspended sentence. Don't forget that the Court must also consider it appropriate too.

annelouise said...

Is dangerous driving causing death a "serious offence" for which a suspended sentence can no longer be imposed?

Dr Manhattan said...

The lists of significant and serious offences are found at s 3 of the Sentencing Act (AustLII here and Vic Law Today here).

I can't see the offence at s 319 Crimes Act in either list.

annelouise said...