When a Queensland court finds an offender guilty of a crime, it will then proceed to sentence the person. If the court considers a term of imprisonment to be the appropriate penalty, tt will then consider whether to suspend all or part of that term. Suspended sentences are a sentencing order where the offender can live in the community but must comply with the conditions attached to the suspended sentence. A person on a suspended sentence must not commit any further offences punishable by imprisonment during the operational period of the suspended sentence. If such an offence is committed, or if the conditions of the suspended sentenced are breached, the offender may be ordered to serve all or part of the term that has been suspended in prison.
How do suspended sentences work?
Under Part 8 of the Penalties and Sentencing Act 1992, a term of imprisonment of five years or less may be suspended. If the sentence is partly suspended, the offender must serve part of the term in prison but then is released on conditions. If a sentence is wholly suspended, the offender does not serve any time in prison unless the conditions attached to the order are breached.
The length of time for which a sentence is suspended is referred to as the operational period. If the decision-maker orders a term of imprisonment to be wholly suspended, then the offender is free to live in the community for the operational period provided they adhere to the conditions.
A partially suspended sentence means the offender must serve some of the term of imprisonment in custody, following which the remainder of the term is suspended and the offender lives in the community for the operational period. An offender on a suspended sentence is free to work and mix with the community and continue with their normal life to the extent permitted by the conditions of the sentence, which may include abstaining from alcohol and drugs or abiding by a curfew. There may be other conditions such as that the offender undergo counselling, or drug rehabilitation, or report to the police regularly. Some offenders may not be able to travel during the operational period of the sentence due to conditions that make travel impossible.
When will courts impose suspended sentences?
Section 9 of the Act sets out the purposes for which a sentence may be imposed. These are:
- to punish the offender;
- to help the offender to rehabilitate;
- to deter the offender and/or other members of the community from committing similar offences;
- to denounce the offending to the community; and
- to protect the community.
When sentencing an offender, courts must consider factors such as the seriousness of the crime; any damage or injuries caused; the offender’s character and capacity; the offender’s co-operation with police; and other factors listed under Section 9(2) of the Act. When sentencing a young offender, the rehabilitation of the young person must be the paramount consideration.
A term of imprisonment is a sentence of last resort and must only be imposed on a person if no other sentencing option is appropriate. Other sentencing options include recognisance orders, community service and probation. A person’s legal representative can make submissions to the court, arguing for a suspended sentence.
What are the requirements?
The court can only suspend a sentence if the term of imprisonment imposed is five years or less. The operational period of a suspended sentence must not exceed five years and starts on the day of sentencing. The operational period must be at least as long as the term of imprisonment. If a court imposes a suspended sentence, it must record a conviction. During the operational period, the offender must not commit any offence punishable by imprisonment.
Section 146 of the Act provides that if an offender is found guilty of an offence that carries imprisonment while they are on a suspended sentence, the court can order them to serve the suspended term of imprisonment in custody as well as sentencing them for the new offence.
Under section 146A, if a police officer or a corrections officer forms a suspicion on reasonable grounds, that a person has committed an offence while on a suspended sentence, they may apply to a magistrate for a summons or a warrant.
Under section 147, where a breach has occurred, the court can extend the operational period or issue a further suspended sentence and order the offender to serve all or part of the term that was suspended. The court must consider many factors when deciding how to respond to a breach, including the nature of the subsequent offence, any special circumstances, any efforts the offender has made at rehabilitation, and the offender’s criminal history. The court must state the reasons for its decision.
Benefits and criticisms
When a court imposes a suspended sentence, it is recognising the seriousness of the crime, while showing mercy and allowing the offender to remain in the community on a conditional basis. Research has shown that suspended sentences are an effective deterrent and that it is less likely an offender will re-offend than if they serve jail time.
Suspended sentences reduce the prison population and the strain that incarceration places on the taxpayer, because the offender must provide for themselves while living in the community. Offenders sentenced to immediate imprisonment often have problems reintegrating after their release. Suspending a sentence avoids the need to readjust to living in the community after the sentence is complete.
However, a suspended sentence is sometimes thought to be a “soft option” that does not adequately punish the offender for serious crimes. It is also sometimes considered to be “setting the offender up to fail” because offenders who are in trouble regularly with the police may be unable to comply with the conditions and may find themselves serving the time in prison anyway.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal.