In Tasmania, when a court sentences an offender to a term of imprisonment, it can order that the term of imprisonment be suspended in whole or in part. When a person is given a suspended sentence, they are allowed to live in the community and do not have to serve the term provided they abide by the conditions of the suspended sentence. Suspended sentences are governed by Division 4 of the Tasmanian Sentencing Act.
What is a suspended sentence?
A suspended sentence is a term of imprisonment that ‘hangs over’ the offender. The order is subject to the condition that the offender does not commit a further offence that is punishable by imprisonment during the operational period of the suspended sentence. A suspended sentence can have additional conditions attached to it, such as:
- That the offender must perform a certain number of hours of community service;
- That the offender be supervised by a probation officer;
- That the offender undertake a rehabilitation program.
Variation of a suspended sentence
Under Section 26 of the Sentencing Act a court that has made an order for a suspended sentence may vary or cancel the order upon application by the offender or by the prosecution.
Before the court varies or cancels the order it has to be satisfied that the offender’s circumstances have materially altered since the order was made or that the offender is no longer willing to comply with the order.
If the court cancels the suspended sentence order, it may deal with the offender in any manner that it could have had the offender just been convicted.
Breach of a suspended sentence
Under Section 27, if the prosecution or a probation officer believes that an offender has breached a condition of their suspended sentence, they may apply to the court for an order in relation to the breach.
Breach by further offending
If the court finds the offender guilty of a further offence punishable by imprisonment, it must order the offender to serve the term of imprisonment that was suspended unless such an order would be unjust.
If an order for the restoration of the suspended term of imprisonment would be unjust in the court’s view, it may:
- Activate part of the sentence;
- Order a substituted sentence instead of the suspended sentence;
- Vary the conditions of the suspended sentence, including extending the operation period until a date up to 12 months from the date that the offender was found guilty of the new offence; or
- Make no order.
If the court does not order the restoration of all of the suspended sentence it must state its reasons.
Breach of conditions
If the court finds the offender has breached the conditions of the suspended sentence (other than by further offending), it may:
- Activate all of part of the suspended term of imprisonment;
- Order a substituted sentence in place of the suspended sentence;
- Vary the conditions of the suspended sentence including
- Extending the operation period until a date up to 12 months from the date that the offender was found guilty of the breach; or
- Make no order.
There was a recent push by the Tasmanian Liberal government to abolish suspended sentences as part of a ‘tough on crime’ approach to offending designed to ‘restore community confidence in our justice system’. However, this plan was modified and legislation was passed introducing home detention orders and community corrections orders as sentencing alternatives. These changes took effect in late 2018, with a plan for parliament to review sentencing practices in another two years and make a decision as to whether to retain suspended sentences. The Tasmanian Liberals continue to support the abolition of suspended sentences.
Criticism of the leniency of suspended sentences has led to their abolition in Victoria and New South Wales in the last few years.
Tasmanian lawyers have spoken out in support of suspended sentences, saying they allow courts to give offenders custodial sentences but have them remain in the community, working and contributing to society and thus offer better prospects for rehabilitation than actual imprisonment.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.