Deferred Sentence Orders


A Deferred Sentence Order can be imposed by the Court if it wants to give an offender a chance to address his or her criminal behaviour, and the factors contributing to it, before being finally sentenced, hopefully to a more lenient outcome than the Court had originally envisaged.

Definition

Section 27 of the Crimes (Sentencing) Act 2005 provides for the making of Deferred Sentence Orders.

The Court may make an order requiring the offender to appear before the Court at the time and place stated in the order to be sentenced for the offence, and it may make such an order if—

  • an offender has been convicted or found guilty by a Court of an offence punishable by imprisonment; and
  • the Court has not sentenced the offender for the offence; and
  • the offender is neither serving, nor liable to serve, a term of imprisonment for another offence; and
  • the Court considers the offender should be given an opportunity to address his or her criminal behaviour, and anything that has contributed to the behaviour, before the Court sentences the offender for the offence; and
  • the Court is satisfied that it may release the offender on bail under the Bail Act 1992.

The maximum period of the order is 12 months.

If the Court makes a Deferred Sentence Order for the offender, the Court must release the offender on bail.

A Deferred Sentence Order applies to all offences for which the Court may sentence the offender, whether or not they are punishable by imprisonment.

A Deferred Sentence Order may include any condition the Court considers appropriate. This can include drug and alcohol testing, non-association conditions and a condition to come back to court for “bail progress reports” before the final sentence date, among others.

Eligibility for Deferred Sentence Order

Section 116 of the Crimes (Sentencing) Act 2005 provides that the Court must not make a Deferred Sentence Order unless it considers that—

  • releasing the offender on bail would allow the offender to address his or her criminal behaviour and anything that has contributed to the behaviour; and
  • if the offender were to comply with the order, and any bail conditions, the Court might not impose as severe a sentence for the offence.

The Court may make a Deferred Sentence Order whether or not it considers that the seriousness of the offence justifies a sentence of imprisonment.

Suitability for Deferred Sentence Order

Section 117 of the Crimes (Sentencing) Act 2005 provides that in deciding whether to make a Deferred Sentence Order, the Court must consider the following:

  • any pre-sentence report about the offender;
  • any evidence given by the person who prepared a pre-sentence report for the offender;
  • any evidence given by a Corrections officer about the offender.

The Court may make, or decline to make, a deferred sentence order despite—

  • any recommendation in any pre-sentence report about the offender’s suitability for a Deferred Sentence Order; or
  • any evidence given by the person who prepared any pre-sentence report for the offender or a Corrections officer.

The Court must record reasons for its decision to make a Deferred Sentence Order if—

  • any pre-sentence report recommends that the offender is suitable but the Court decides not to make a Deferred Sentence Order; or
  • any pre-sentence report recommends that the offender is not suitable but the Court decides to make the order.

However, failure to give reasons does not invalidate a Deferred Sentence Order.

Will I get an indication of my sentence?

Yes. Section 118 of the Crimes (Sentencing) Act 2005 provides that if the Court makes a Deferred Sentence Order, the Court must state, in general terms—

  • the penalty that the offender might receive if the offender complies with the order and any bail conditions; and
  • the penalty that the offender might receive if the offender does not comply with the order or a bail condition.

What will be expected of me?

Section 120 of the Crimes (Sentencing) Act 2005 provides that an offender’s obligations while subject to a Deferred Sentence Order are—

  • to comply with the order (including any conditions of the order); and
  • to comply with the offender’s bail conditions.

Explanation and official notice

If the Court makes a Deferred Sentence Order, the Court must ensure that reasonable steps are taken to explain to the offender in general terms (and in language the offender can readily understand)—

  • the nature and conditions of the order and the offender’s bail under the Bail Act 1992; and
  • the offender’s obligations under the order and the Bail Act 1992; and
  • the consequences if the offender breaches the obligations.

As soon as practicable after the Court makes the Deferred Sentence Order, the Court must ensure that written notice of the order, together with a copy of the order, is given to the offender. The offender must also be given written notice of any bail conditions. For an offender under 18 years old, the notice and order must also be given to a parent or person with parental responsibility. However, failure to give notice does not invalidate the order.

Duration of order

A Deferred Sentence Order must not state a sentencing time that is more than 12 months after the day the order is made.

A deferred sentence order starts on the day it is made and ends at the sentencing time or, if the order is earlier cancelled by the Court under its powers of review, on the day the court cancels it.

What happens if I breach the order?

Section 124 of the Crimes (Sentencing) Act 2005 provides that a police officer may arrest an offender without a warrant if he or she believes, on reasonable grounds, that the offender has breached the offender’s deferred-sentence obligations.

The police officer must bring the offender before the sentencing court, or, if it is not sitting, a magistrate.

Section 125 provides that, if a judge or magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that the offender has breached, or will breach, the offender’s deferred-sentence obligations, the judge or magistrate may issue a warrant for the offender’s arrest.

If a police officer arrests the offender under this section, the police officer must, as soon as practicable, bring the offender before the sentencing court, or, if it is not sitting, a magistrate.

Court can review order

The sentencing Court may review the offender’s Deferred Sentence Order and/or bail at any time.

This can be done on the Court’s own initiative, or on application by the offender, Corrections or the DPP.

Section 127 of the Crimes (Sentencing) Act provides that the sentencing Court must give a written notice of a proposed review of the offender’s Deferred Sentence Order to the offender, Corrections and the DPP.

The notice must set out the reasons for the review and the time and place fixed for the review.

Court’s powers on review – amendment and cancellation

After reviewing the offender’s Deferred Sentence Order, the sentencing Court may do any of:

  • take no further action;
  • give the offender a warning about the need to comply with the offender’s deferred-sentence obligations (including any bail conditions);
  • amend any of the order’s conditions;
  • cancel the order if the offender has applied for its cancellation or if the Court is satisfied that the offender has breached the offender’s deferred-sentence obligations.

If the Court amends the conditions of a Deferred Sentence Order, it must record its reasons for the decision. The amendment order must state when it takes effect, which is the date when the sentencing court gives the offender written notice of the amendment order or, if a later date of effect is stated in the amendment order, the date stated.

As soon as practicable after the Court makes the amendment order, it must ensure that written notice of the order, together with a copy of the order, is given to the offender, Corrections and the DPP. For an offender under 18 years old, the notice and order must also be given to a parent or person with parental responsibility, but failure to give notice does not invalidate the amendment order.

If the Court cancels an order, again it must record its reasons. The cancellation order takes effect on the day it is made. The same notice provisions apply.

Bail is automatically revoked on the making of the cancellation order and the Court must sentence the offender for all offences for which the court may sentence the offender, whether or not they are punishable by imprisonment.

What happens if my bail is revoked?

An offender’s Deferred Sentence Order is automatically cancelled if the offender’s bail in relation to which the order was made is revoked.

 

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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