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Wednesday, 4 September 2013

Ending the suspense?

From last Sunday, only Magistrates’ Courts can now imposed suspended sentences of imprisonment, subject to some exceptions. Division 2 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 abolishes suspended sentences in the County and Supreme Courts.

I discussed this in May, and noted the default commencement was 1 December 2013. Since then, the relevant provisions were declared in the Gazette for commencement on 1 September 2013.

There’s no specified commencement date yet for the abolition of suspended sentences in the Magistrates’ Court other than the default date of 1 September 2014.

There are three exceptions to the new regime:

  1. The County Court may impose a suspended sentence when deciding an appeal from the Magistrates’ Court: Sentencing Act 1991 s 27(11) and Criminal Procedure Act 2009 s 256. (The Austlii version of the Sentencing Act isn’t up to date, so that hyperlink will take you to the Victorian legislation website version.)
  2. The County and Supreme Courts may still impose suspended sentences for offences that were committed before 1 September 2013: Sentencing Act 1991 s 149C. (Although that transitional provision doesn’t expressly say anything about the operation of the previous restrictions for serious and significant offences, there’s nothing to suggest those provisions are affected for pre-1 Sep 2013 offending.)
  3. The County and Supreme Court may still impose suspended sentences for serious and significant offences committed before 1 May 2011, by virtue of Sentencing Act 1991 ss 27(2B) and sub-ss 143(6) and (7), and (9) and (10), in conjunction with s 149C. (1 May 2011 was the commencement date of Sentencing Amendment Act 2010 s 12, which introduced the prohibition on suspended sentences for serious or significant offences committed on or from that day.)
I linked to the second reading speeches in my May post, but in case you need them, I’ve also downloaded the relevant parts of Hansard, and extracted just the pages dealing with the Sentencing Amendment (Community Correction Reform) Bill 2011 and Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013.

I reckon that the short version of the speeches is that offenders who previously might not have received an immediate jail sentence by receiving a suspended jail sentence might yet still not receive an immediate jail sentence, only now it will be called a community corrections order, and will involve restrictions upon them.

There are two new restriction on imposing suspended sentences:
  1. Section 27(2AB) provides that Magistrates’ Courts can’t impose suspended sentences for proceedings transferred from the County Court back to the Magistrates’s Court, under Criminal Procedure Act 2009 ss 168, 242 or 243. This was intended to overcome the effect of DPP v Batich, when the County Court considered an offender should receive a suspended sentence for a significant offence (recklessly causing serious injury), but because it could not do so, returned the case to the Magistrates’ Court, which could impose a suspended sentence.
  2. Section 27(10) provides that the County and Supreme Courts can’t impose suspended sentences for related summary offences dealt with under Criminal Procedure Act 2009 ss 242 and 243 and Sentencing Act 1991 s 83AM.

1 comment:

Jeremy Gans said...

NSW Law Reform Commission now recommends abolishing suspended sentences and replacing them with community 'detention' orders (which include aspects of home detention orders.): http://www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/_assets/lrc/m731654l10/report%20139.pdf