Parts of the Sentencing Amendment (Emergency Workers) Act 2014 commenced operation yesterday — see SG 330/2014 — including Part 5.
Part 5 amends the Sentencing Act 1991, and answers some of the questions I posed a few weeks back when discussing the abolition of suspended sentences.
Can CCOs take the place of suspended sentences?
It seems the answer to this is now, “Yes!”
A new s 5(4C) provides:
(4C) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.These conditions are, respectively:
- residence restriction or exclusion
- place or area restriction or exclusion
- alcohol exclusion
(2) Without limiting when a community correction order may be imposed, it may be an appropriate sentence where, before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended in whole that sentence of imprisonment.
This seems to address the dilemma where the established range for certain offences was jail, even if suspended, and jail was only an option where no other sentence would meet the purposes of sentencing in s 5(2) of the Sentencing Act. It begged the question, how could a court now impose something less than jail? It seems the simply answer is now, “Because the Parliament says so."
CCOs available in addition to up to 2 years’ jail
Section 44(1) and (1A) of the Sentencing Act now read:
(1) When sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.
(1A) When sentencing an offender in respect of one, or more than one, offence to which clause 5 of Schedule 1 applies, a court may make a community correction order in addition to imposing any sentence of imprisonment.
(The reference to Sch 1, cl 5 is to an arson offence.)
The explanatory memorandum points out that the 2-year-jail-plus-CCO option is available where a court fixes a non-parole period, because a court may fix a non-parole period for sentences between 12 and 24 months.
I believe part of the reason the Court of Appeal had not yet delivered any judgment in the possible first-ever guideline judgment, dealing with CCOs as an alternative for offences that would previously have receives suspended jail sentences, was in anticipation of the commencement of these provisions. I’m not certain how they might affect the interpretation of the law as it stood when those sentences were imposed, but my guess is that if the Court of Appeal is going to give a guideline judgment, it wants to say something about the current law as well, so it can provide useful guidance to sentencers for now.
Part 8 of the Justice Legislation Amendment (Confiscation and Other Matters) Bill 2014 proposes further tweaks to the Sentencing Act, which will allow for Magistrates’ Courts to impose CCOs for a cumulative maximum of 5 years in any one case — mirroring the current jurisdictional cumulative cap of 5 years’ jail.
The last sitting day scheduled for Parliament this year is 16 October 2014. Because the election then follows on 29 November, any Bills not passed will lapse, so this amendment may not become law, either this year or perhaps ever. Stay tuned!
Hat-tip to Jono Miller for the good oil on both of these Bills.