Deferral of Sentence – Section 11 Crimes (Sentencing Procedure) Act 1999

Section 11 of the Crimes (Sentencing Procedure) Act 1999 gives the Court the power to defer the sentencing proceedings for the purpose of assessing the defendant’s capacity to participate in and prospects for rehabilitation or an intervention program. 

What is a Deferred Sentence?

A deferred sentence is a process available pursuant to Section 11 of the Crimes (Sentencing Procedure) Act 1999 which allows the Court to adjourn the proceedings and defer sentencing for up to 12 months to allow the offender to participate in rehabilitation, intervention programs or for other purposes as the Court considers appropriate.

Proceedings must not be adjourned unless bail for the offence has been granted or dispensed with meaning a Section 11 order is not available for offenders remanded in custody unless the Court formally grants the offender bail. 

Legislation:

When is a Deferred Sentence Not Available?

Section 348(1) of the Criminal Procedure Act 1986 provides that generally the offences for which an intervention program may be conducted are summary offences or indictable offences that may be dealt with summarily. 

The Criminal Procedure Act 1986 does include a list of offences which exclude the ability to be subject to an intervention program being:

• Malicious wounding or infliction of grievous bodily harm (pursuant to Section 35 of the Crimes Act 1900) and maliciously cause dog to inflict grievous bodily harm (pursuant to Section 35A of the Crimes Act 1900),
• Offences under Division 10 and Division 15 of Part 3 of the Crimes Act 1900 relating to rape, other sexual acts, child prostitution or child pornography, 
• Offences of stalking or intimidation with intent to cause fear of physical or mental harm pursuant to Section 13 of the Crimes Domestic and Personal Violence Act 2007 and Sections 545AB and Section 562AB of the Crimes Act 1900, 
• Offences under Sections 91H, 578B and 578(2A) of the Crimes Act 1900 relating to production, possession or dissemination of child pornography, 
• Any offence involving the use of a firearm or an intimidation firearm within the meaning of Firearms Act 1996, 
• An offence under Sections 23(1)(b) or (2)(b), Section 25 and Section 25A of the Drug Misuse and Trafficking Act 1985. 

Conditions of Deferred Sentence:

When deferring sentence pursuant to Section 11 the Court may impose terms or conditions that are in accordance with the Bail Act 2013. 

The conditions that can be imposed for a Section 11 order include:

• Conduct Requirement – Requires the accused to do or refrain from doing anything – This may include a condition that the offender abstain from consuming alcohol or illicit drugs for the duration of the deference of sentence or a condition that the offender continue receiving counselling or mental health support. 
• Security Requirement pursuant to Section 26 of the Bail Act 2013 – This may include the offender or a responsible person providing a financial surety to the Court, 
• Accommodation Requirement – Requires that suitable arrangements be made for accommodation of the offender – This may involve the offender being ordered to reside at a residential rehabilitation facility,
• Accompaniment Requirement – Requires that the offender is released into the care or company of another specified person.
• Enforcement Condition – Requires the person to comply with one or more kinds of Police directions (given for the purpose of monitoring or enforcing compliance). 

Principles and Considerations of a Deferred Sentence:

In considering whether to make a Section 11 order, the Court must be satisfied that the delay that will result from the deferred sentence is wholly justified in order to ensure a proper exercise of the sentencing discretion. 

The rationale behind a Section 11 order and allowing an offender to complete rehabilitation before sentencing was discussed in the case of R v Trindall where the Court explained:

“Often a court experiences difficulty when sentencing an offender in determining the offender’s prospects of rehabilitation and whether the foreshadowed rehabilitation will occur. In many instances it will be of great assistance to the sentencing judge if there is an adjournment to enable the offender to demonstrate that rehabilitation has taken place or is well on the way. That was the present case. It is so much better for the court to have evidence of what has actually taken place than to have to base its decision on the opinions of experts, assertions by the offender and what has happened over a short period of time, that is, since the commission of the offence or the offender’s arrest.” 

Consequences of Breaching a Section 11 Order:

When an offender breaches a condition of their Section 11 order it is treated as a breach of bail which vests the Court with powers under the Bail Act 2013 including to issue a warrant for the arrest of the offender. When the offender is before the Court on the breach of their Section 11 order, the Court may proceed to sentence immediately or re-release the offender on bail to continue with the intended rehabilitation under the Section 11 order.