When can a term of imprisonment be suspended by the courts?
Published in: September 2016
When a person has been found guilty of committing a criminal offence, depending on the individual circumstance, there may be instances where a term of imprisonment may be suspended. All jurisdictions in Australia grants courts the power to suspend terms of imprisonment, and this piece will take a look at what the considerations are when a sentence of imprisonment is suspended.
A suspended sentence is still punishment
One potential misconception about a suspended sentence is that it is not a punishment, however, this is definitely not the case as was noted by Fitzgerald JA, with whom the others agreed, in R v JCE (2000) 120 A Crim R (NSW CCA). Further context can be found in Elliot v Harris (No 2) (1976) 13 SASR 516 (CCA) where Bray CJ said (at 527):
“So far from being no punishment at all, a suspended sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest of breach of the terms of the bond during its currency.”
Additionally, a suspended sentence should not be used as a soft option as Kirby J noted in Dinsdale v The Queen (2000) 202 CLR 321; 175 ALR 315; 115 A Crim R (at 346; 334; 578 ):
“[A] suspended term of imprisonment should not be imposed as a “soft option” when the court with the responsibility of sentencing is “not quite certain what to do” (R v O’Keefe  2 QB 29 at 32).”
The consequences of a suspended sentence
It should be reiterated that not only is a suspended sentence punishment, but it also is a sentence of imprisonment, and a conviction is also recorded against the person, as Bray CJ observed in Elliot v Harris (at 527):
“So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves to the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency.”
What considerations are taken into account in relation to a suspended sentence?
Reference to rehabilitation is often cited as the reason behind the imposing of a suspended sentence as Kirby J noted in Dinsdale v The Queen (at 347; 335; 579 ):
“There is a line of authority in Australian courts that suggest that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is largely one of emphasis.”
Conditions and breach of suspended sentence
The courts have stated that conditions placed must relate to the crime, be certain, and not onerous. When a person breaches a suspended sentence, the legislative policy is quite clear of the result of a breach as King CJ said in R v Buckman (1988) 47 SASR 303 (CCA) (at 304):
“There is clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways.”
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