Deferred Sentences and Suspended Sentences (ACT)

A recent decision of Acting Chief Justice Burns in the ACT Supreme Court demonstrates very clearly two sentencing options that are regular features in the ACT but are, in one case, now unavailable in NSW, and, in the other case, quite rare, in NSW. The 2020 ACT Supreme Court decision of R v Parker highlighted the two options of a suspended prison sentence (which was removed as a sentencing option in NSW in 2018) and a deferred sentence order, which is a legislated sentencing option in the ACT but is often referred to in other jurisdictions as a “Griffiths-style remand”.

What is a suspended sentence?

Section 12 of the ACT’s Crimes (Sentencing) Act 2005 provides that the court can impose a sentence of imprisonment but “suspend” the term and placing the offender on a Good Behaviour Order, often with significant conditions.

In the first place, the offence must have been so serious as to command a sentence of imprisonment. The court can then suspend that sentence wholly, or in part. If it suspends it in part, the offender spends some time in actual custody before being released to serve the remainder of the sentence on a suspended basis.

The accompanying Good Behaviour Order must be for as long as the period during which the sentence is suspended but can be for any longer period that the court considers appropriate.

A suspended sentence order may be part of a combination sentence together with other sentencing orders, perhaps including a fine, driver-licence disqualification, reparation, non-association and place restriction.

Breaching a suspended sentence

Offenders are generally told in ACT courts at the time of sentence that the court has only two options if a suspended prison sentence is breached. Those options are:

1. Impose the actual prison sentence and take the offender immediately into custody;
2. Resentence the offender.

A person who receives a suspended sentence needs to be aware that a breach can be alleged at any time during an order, potentially activating imprisonment. For example, the court might have imposed a suspended prison sentence of one year with a Good Behaviour Order for three years. If the offender were to be charged with a similar offence committed after two years and 11 months, they could still face going to prison for a full year if found guilty.

What is a deferred sentence?

Section 27 of the Crimes (Sentencing) Act provides an opportunity for an offender to address their criminal behaviour, and anything that has contributed to the behaviour before the court sentences the offender.

The section applies if the court has not sentenced an offender and the offender is neither serving nor liable to serve, a term of imprisonment for another offence and the court is satisfied that it may release the offender on bail.

Under a deferred sentence order, the offender is required to appear before the court at the time and place stated in the order to be sentenced for the offence. The maximum period of the order is generally 12 months.

A deferred sentence order applies to all offences for which the court may sentence an offender, whether or not they are punishable by imprisonment. Further, a deferred sentence order may include any condition the court considers appropriate.

The great benefit of a deferred sentence is that it can be something of a “stop valve” in the sentencing process, saving people from prison and giving them a chance to prove they can rehabilitate themselves to avoid re-offending.

R v Parker

In the decision of R v Parker, the defendant was a 20-year-old woman who was convicted of attempted aggravated robbery (maximum penalty 25 years imprisonment) and aggravated robbery (same maximum penalty). Her co-accused was her mother, who had a heroin habit, and, in Justice Burns’s words, “may be expected to have some degree of influence over the offender”.

Ms Parker was sentenced to 21 months imprisonment, suspended upon her entering a Good Behaviour Order for 24 months. Justice Burns had previously recorded convictions in both matters in February 2020 and then given the accused a year to seize the opportunity provided by a deferred sentence.

As might be expected with a co-accused mother with a drug habit, His Honour accepted that “there have been some bumps along the way but, generally, the result of the deferred sentence order that I have imposed over the last 13 months has been positive.

“I therefore propose to proceed by way of a suspended sentence of imprisonment.”

Robbery offences in the ACT and NSW

While there has been no option in NSW for a suspended sentence since 2018, statistics show a marked difference in sentencing patterns between NSW and ACT when it comes to robbery offences.

Since 24 September 2018 (when NSW abolished suspended sentences), almost 80 per cent of those convicted of aggravated robbery received a full-time custodial sentence, according to the Judicial Information Research System.

Just under 14 per cent received an Intensive Corrections Order, a prison sentence served in the community under stringent supervision and often with many conditions, chiefly including rehabilitation and community service.

Only 6.8 per cent did not receive a prison sentence.

Before the sentencing reforms, full-time custody was applied for 81 per cent of defendants – but 12.4 per cent received a suspended sentence.

Even in ACT terms, the sentences in Parker were on the more lenient side. The ACT Sentencing Database records that 75 per cent of those convicted of attempted aggravated robbery received immediate custodial sentences and the remaining 25 per cent received only partially suspended sentences.

For the aggravated robbery, two-thirds of ACT defendants were sentenced to full-time custody with one third sentenced to an Intensive Corrections Order.

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