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Suspended Sentence (WA)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

A suspended sentence of imprisonment is a sentence of imprisonment where the offender remains living in the community on the condition that they do not commit a further offence. If the offender breaches the suspended sentence, they are generally ordered to serve the term of imprisonment in prison. Suspended sentences have been abolished in some Australian states, however in Western Australia they remain a sentencing option.

What is a suspended sentence?

A suspended sentence is a term of imprisonment where the offender does not have to immediately go to prison, but remains in the community on certain conditions. The term of imprisonment ‘hangs over’ the offender for a period of time specified by the court, but not for longer than 24 months. This is known as the suspension period. If the offender commits another offence punishable by imprisonment during the operational period, they will generally be ordered to serve the term in prison. If there are exceptional circumstances, an offender who has breached a suspended sentence may not be ordered to serve the sentence or may be ordered to serve only part of the sentence. If the suspension period elapses without a further offence being committed, the offender is discharged from the sentence.

When can a suspended sentence be imposed?

Section 76 of the Sentencing Act provides for the circumstances where a term of imprisonment may be suspended and those where it may not.

A suspended sentence can be imposed where:

  • A term of imprisonment is appropriate;
  • The term of imprisonment is 60 months or less;

Suspended imprisonment may not be imposed if:

  • The offence was committed while the offender was on an early release order (such as parole or home detention);
  • The offence was committed while the offender was serving a term of imprisonment.

Breaches of suspended sentences

In Western Australia, when an offender breaches a suspended sentence by committing an offence (in WA or elsewhere) that is punishable by imprisonment, the court must either:

  • Order the offender to serve the term suspended;
  • Order the offender to serve part of the term suspended
  • Substitute another suspension period for the period originally set;
  • Fine the offender up to $6,000.

The court must order the offender to serve the term suspended unless it would be unjust to do so in the circumstances. If the court does not order the offender to serve the term suspended, it must give written reasons.

Conditional suspended imprisonment (CSI)

A sentence of imprisonment may be suspended conditionally. The standard conditions imposed are:

  • That the offender must report to Community Corrections within 72 hours of being released;
  • That the offender must not leave Western Australia without permission;
  • That the offender must notify Community Corrections of any change of address or employment within two working days of the change.

A conditionally suspended sentence must contain a condition that the offender do one of the following:

  • Take part in a program to help them address their offending;
  • Submit to monitoring in the community and regular counselling for the purpose of rehabilitation or ensuring compliance with directions.
  • Be subject to a curfew to restrict their movements at particular times when there is a high risk of offending.

Breaches and amendments of CSIs

When a conditionally suspended sentence of imprisonment is breached, either by the commission of a further offence or by failure to comply with a CSI requirement, the Sentencing Act allows courts to order the offender to serve all or part of the term of imprisonment, substitute another suspension period or order the offender to pay a fine.

The offender, or a Community Corrections Officer, may apply for the amendment or cancelation of a CSI requirement. The court may amend or cancel the requirement if it is satisfied that the offender’s circumstances have altered or were wrongly presented to the court at sentencing.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.

 

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