This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Deferred Sentence Orders
A Deferred Sentence Order can be imposed by the court if it wants to give an offender a chance to address their criminal behaviour, and the factors contributing to it, before being sentenced.
Definition
Section 27 of the Crimes (Sentencing) Act 2005 provides for the making of a Deferred Sentence Order. The order requires the offender to appear in court at a certain time and place to be sentenced. An order can be made if:
- an offender has been convicted or found guilty of an offence punishable by imprisonment; and
- the offender has not been sentenced; and
- the offender is neither serving, nor liable to serve, a prison term for another offence; and
- the court considers the offender should be allowed to address their criminal behaviour, and contributing factors, before sentencing; and
- the offender can be released on bail under the Bail Act 1992.
The maximum period of the order is 12 months, and the order can include conditions such as drug and alcohol testing, and non-association conditions. Under a Deferred Sentence Order, the court must release the offender on bail.
Eligibility for Deferred Sentence Order
Section 116 of the Act 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.
Suitability for Deferred Sentence Order
Section 117 of the Act provides that in deciding whether to make a Deferred Sentence Order, the court must consider:
- 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 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 an 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 will not invalidate a Deferred Sentence Order.
Will I get an indication of my sentence?
Yes. Section 118 of the Act 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.
Explanation and official notice
If the Court makes a Deferred Sentence Order, the Court must ensure that reasonable steps are taken to explain clearly to the offender:
- the nature and conditions of the order and the offender’s bail;
- the offender’s obligations; and
- the consequences if the offender breaches the obligations.
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 earlier if cancelled by the court under its powers of review.
What happens if I breach the order?
Section 124 of the Act provides that a police officer can arrest an offender suspected of breaching an order. The police officer must bring the offender before the sentencing court, or, if it is not sitting, a magistrate. Section 125 provides that the judge or magistrate can issue a warrant for the offender’s arrest if a breach is suspected.
Court can review order
The sentencing court can 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 Department of Public Prosecution. Written notice of a proposed review must be given to all parties, and it must set out the reasons for the review, and the time and place of the review.
Court’s powers on review – amendment and cancellation
After reviewing the offender’s Deferred Sentence Order, the sentencing Court can:
- take no action;
- warn the offender about the need to comply with obligations of the order (including any bail conditions);
- amend any conditions;
- cancel the order.
If the court amends the conditions of a Deferred Sentence Order, or cancels the order, it must record its reasons for the decision. Bail is automatically revoked on the making of the cancellation order and the court must sentence the offender for all offences.
For advice or representation in any legal matter, please contact Armstrong Legal.