When an offender pleads guilty or is found guilty of a crime, he or she will proceed to be sentenced by the court. If the court imposes a term of imprisonment, it may choose to suspend that term either wholly or partially. When a term of imprisonment is suspended, the offender is free to live in the community provided they comply with the conditions of the suspended sentence. Offenders on suspended sentences must not commit any further offences punishable by imprisonment for the operational period of the suspended sentence.
How do suspended sentences work?
Suspended sentences are governed by Part 8 of the Penalties and Sentencing Act (Qld). A term of imprisonment may be suspended when the term is five years or less in duration. It may be partly suspended so that the offender serves part of the term in prison but is then conditionally released. Alternately, a sentence may be wholly suspended so that the offender does not serve any of the term in prison unless the conditions of the suspended sentence are breached.
The duration of the suspended sentence is referred to as the operational period. If the decision maker states the term of imprisonment is wholly suspended, then the offender is free to live in the community for the operational period provided the conditions are adhered to.
A partially suspended sentence means the offender serves some of the operational period in custody, following which the term is suspended and the offender lives at home for the operational period. The offender is free to work and mix with the community and continue with their every-day life. There may be conditions place don a suspended sentence, such as that the offender undergo counselling, drug rehabilitation, abstain from alcohol or report to the police regularly. Depending on these conditions, the offender may or may not be able to travel during the operational period of the sentence.
When will courts impose suspended sentences?
The purposes of any sentencing order are set out in Section 9 of the Penalties and Sentences Act. A sentence can be imposed to:
- Punish the offender in a way that is just;
- Help the offender to rehabilitee;
- Deter the offender and others in the community from committing similar offences;
- Denounce the offending to the community; and
- Protect the community.
When sentencing an offender, the decision maker must take into consideration many factors including the seriousness of the crime, any damage or injuries caused, the offender’s character and capacity, how much assistance the offender gave to law enforcement, and other factors listed under Section 9(2) of the Act.
A term of imprisonment is a sentence of last resort and should only be imposed if other sentencing options are not appropriate.
What are the requirements?
The court can only consider a suspended sentence if the term of imprisonment is five years or less. The court must state an operational period which is the period for which the term of imprisonment is suspended.
The operational period must not exceed five years and starts on the day the order is made. The operational period must not be shorter than the term of imprisonment. If a suspended sentence is imposed, the court must record a conviction.
During the operational period of a suspended sentence, the offender must not commit another offence punishable by imprisonment.
What happens if you breach a suspended sentence?
Under Section 146 of the Penalties and Sentences Act, if an offender is found guilty of an offence that carried a penalty of imprisonment whilst on a suspended sentence, the court can order the offender to serve the suspended term of imprisonment in custody as well as imposing a sentence for the new offence.
Under Section 146A, if a police officer or a corrective service officer suspects on reasonable grounds, that an offender has committed an offence during the operational period of a suspended sentence, they may apply for a summons or a warrant from a Magistrate.
Under Section 147, where a suspended sentence has been breached, the court has the power to extend the operational period of the suspended sentence or issue a further suspended sentence and order the offender to serve all or part of the suspended sentence. The court must take many factors into consideration when deciding how to respond to a breach of a suspended sentence, including the nature of the subsequent offence, any special circumstances that exist, any efforts the offender has made towards rehabilitation, the offender’s antecedents and any other relevant factors. The court must state the reasons for its decisiom.
Benefits and criticisms of suspended sentences
When a decision maker imposes a suspended sentence, they are recognising the seriousness of the crime, while also being merciful and allowing the offender to remain in the community on a conditional basis. Research has shown that suspended sentences are an effective deterrent, and there is less chance the offender will re-offend than if they were sentenced to actual jail. Suspended sentences are also better for offenders’ mental health.
Suspended sentences reduce the prison population and the strain incarceration places on the public purse as the offender must provide for themselves during the operational period. Offenders sentenced to actual jail often have problems reintegrating into the community. A suspended sentence means the offender does not have to readjust to living in the community after the sentence is complete.
However, suspended sentences are sometimes criticised as a ‘soft option’ that does not adequately punish offenders for serious crimes. They are also sometimes felt to be a sentencing order that ‘sets the offender up to fail’ as offenders who are regularly in trouble with the police may be unable to comply with the conditions of the suspended sentence and may find themselves serving the term in prison anyway.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.
By Cherisse Breese, Solicitor