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Bill, Emily; Bartels, Lorana --- "Suspended Sentences in Tasmania: An Analysis of the Impact of Recent Breach Reforms" [2015] UTasLawRw 11; (2015) 34(2) University of Tasmania Law Review 6


Suspended Sentences in Tasmania: An Analysis of the Impact of Recent Breach Reforms

EMILY BILL[#] AND LORANA BARTELS[*]

Abstract

This article examines the impact of recent legislative and administrative reforms for dealing with breaches of fully suspended sentences imposed in the Supreme Court of Tasmania. Our findings indicate that the recent reforms have led to a significant improvement in the rate at which breach proceedings were instituted, from 5 per cent to 55 per cent. An additional improvement is the increased speed with which breach proceedings are now instituted. However, no breach action was taken in nearly half of the cases where an offender committed an imprisonable offence in breach of their sentence. Furthermore, the recently introduced legislative presumption of activation on breach does not appear to have been effective. The failure to activate the sentence in almost half of breach actions suggests that the punitive nature of this sentencing measure remains somewhat illusory, which may contribute to public perceptions of leniency. This article demonstrates the measurable impact of past legislative reforms, while highlighting some areas for further improvement in relation to responses to breaches of suspended sentences; these may in turn enhance the credibility of and public support for this sentencing option.

I INTRODUCTION

A suspended sentence is a term of imprisonment where the execution is partly or fully suspended upon certain conditions for a specified period of time (the operational period). At law, a suspended sentence is the penultimate punishment, a severe sanction that expresses strong community denunciation.[1] Freiberg and Moore have suggested that there is no sentencing order as controversial as the suspended sentence, which has historically had the ability to ‘strongly divide communities’.[2] More recently, Warner and Spiranovic noted that such sentences are ‘commonly on the law reform agenda’ in Australia, due to their ‘contentious’ use and value.[3]

Suspended sentences are currently available in all Australian jurisdictions except for Victoria, which successively restricted their availability and ultimately abolished them in September 2014.[4] In 2013, the New South Wales Law Reform Commission (NSWLRC) recommended abolishing suspended sentences in New South Wales (NSW), subject to the creation of a community detention order,[5] while South Australia recently removed them as a sentencing option in a range of circumstances.[6]

In the lead-up to the 2014 Tasmanian state election, the Liberal Party, then in Opposition, made abolishing suspended sentences a key component of its election campaign.[7] Upon forming government in March 2014, it reiterated its commitment to abolishing suspended sentences.[8] The Tasmanian Government’s proposal has reignited debate over the State’s use of this sentencing measure, with extensive media coverage both for and against the proposal.[9] In this context, however, Warner and Spiranovic’s research with Tasmanian jurors ‘challenge[d] the poor public image of suspended sentences and provide[d] further evidence that informed judgement on sentencing issues reveals a public that is not as punitive as is commonly portrayed’.[10]

In July 2014, the Tasmanian Attorney-General, Dr Vanessa Goodwin MLC, announced that she had referred the issue to the Tasmanian Sentencing Advisory Council (TSAC). The terms of reference for the inquiry required, inter alia, an examination of Tasmania’s current use of suspended sentences, including breach rates and sentencing practices on breach. It is against this background that the present research was undertaken. Specifically, this article presents the findings of a breach analysis of suspended sentences imposed in the Supreme Court of Tasmania (‘the Supreme Court’), following amendments introduced by the Justice and Related Legislation (Further Miscellaneous Amendments) Amendment Act 2009 (Tas), which came into effect on 1 January 2011 (hereafter referred to as the 2011 reforms).[11] This study considers the impact of these reforms in addressing the rate at which suspended sentences are breached and the rate at which breach proceedings are instituted, as well as the subsequent sentencing outcomes.

In August 2015, the TSAC released the Phasing Out of Suspended Sentences – Consultation Paper[12] and Phasing Out of Suspended Sentences – Background Paper.[13] The research presented here formed the basis of the breach analysis in the TSAC Background Paper.[14] The TSAC is due to provide its final report in early 2016.[15]

II SENTENCING AND SUSPENDING SENTENCES IN TASMANIA

Sentencing in Tasmania is governed by the Sentencing Act 1997 (Tas) (the Act) and the common law. An unusual feature of Tasmanian sentencing law is the significant degree of judicial discretion. This is due in part to the fact that the Criminal Code 1924 (Tas) imposes a general maximum penalty of 21 years for all indictable offences except for murder and treason,[16] rather than setting a range of legislative maximum penalties, consistent with other Australian jurisdictions. Statutory direction on sentencing matters generally is minimal, with an absence of both a statutory sentencing hierarchy and a list of relevant sentencing considerations in the Act.[17]

Tasmania was one of the first Australian jurisdictions to introduce suspended sentences. They are currently available under s 24(1) of the Act, which provides:

If a court makes an order suspending the whole or a part of a sentence of imprisonment, the order is subject to the condition that the offender does not commit another offence punishable by imprisonment during the period the order is in force.

Section 27(1) of the Act relates to breaches and provides:

If it appears to an authorised person that, during the period an order suspending a sentence of imprisonment is in force in relation to an offender, the offender has breached a condition of the suspended sentence, the authorised person may apply to the court, which made the order suspending the sentence of imprisonment, for an order under this section.

Under s 27(4A), breaches of sentences imposed in the Supreme Court may be heard in the Magistrates Court (and vice versa) or the application can be adjourned to the court that originally imposed the sentence. Under s 4 of the Act, an ‘authorised person’ means the Director of Public Prosecutions (DPP) or a legal practitioner acting on the DPP’s behalf; a police officer; a legal practitioner with responsibility for enforcing the Police Offences Act 1935 (Tas) or a probation officer. In practice, the DPP has the discretion whether to take action in respect of breaches of orders imposed in the Supreme Court.

Suspended sentences are a frequently utilised sanction in Tasmania.[18] In 2013-2014, 38 per cent of offenders sentenced in the Supreme Court received a fully suspended sentence as their principal penalty, compared with a national average of 17 per cent.[19] In the Magistrates Court, the figures were 10 per cent and 4 per cent respectively.[20] Earlier research by the Tasmania Law Reform Institute (TLRI) found that most prison sentences were fully suspended.[21]

In 2008, the TLRI completed an extensive review of sentencing in Tasmania and made a number of recommendations in relation to the operation of suspended sentences.[22] These recommendations were informed by Bartels’ doctoral research on this issue, including interviews with judicial officers and reconviction and breach analyses.[23]

Inter alia, Bartels found that 41 per cent of the 229 offenders who received a fully suspended sentence in the Supreme Court over a two-year period (n=94) breached their sentence by committing a further imprisonable offence. However, only five per cent of these offenders (n=5) were subject to breach proceedings. Two of these offenders had their sentence activated in full or part, giving an apparent activation rate of 40 per cent of those subject to breach proceedings, but only two per cent of offenders actually in breach.[24] For completeness, it should be noted that Bartels also followed up 81 offenders on a partly suspended sentence, of whom 40 per cent (n=32) breached their sentence. Breach proceedings were taken in six per cent of these cases (n=2). Both of these sentences were then activated, giving an apparent activation rate of 100 per cent, but an actual activation rate of six per cent. As Bartels noted, ‘[t]he activation rate overall was therefore only 3% and the total imprisonment rate – that is, the proportion of offenders in receipt of a suspended sentence who were ultimately required to serve time in custody – was a mere 1%’.[25]

The TLRI described Bartels’ findings as ‘startling’,[26] recognising that this failure to prosecute breaches undermined the deterrent effect of suspended sentences. To address this problem, the TLRI recommended a statutory presumption in favour of activation on breach[27] and improvements to administrative procedures to follow-up breaches, including legislative provisions to facilitate these measures.[28]

The 2011 reforms gave effect to these recommendations. In particular, s 27(4B) of the Act now provides that if a court

is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it.[29]

However, s 27(4C) provides that if such an order would be unjust, the court may instead:

(a) activate the suspended part of the sentence that is held in suspense and order the offender to serve it; or

(b) order that a [substituted] sentence ... take effect in place of the suspended sentence; or

(c) ...vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or

(d) make no order in respect of the suspended sentence.[30]

This amendment brought Tasmania in line with all other Australian states and territories except the Australian Capital Territory (ACT) (which does not have a statutory presumption of activation on breach), and clarified judicial uncertainty about the status of the common law on this point.[31]

The TLRI also adopted Bartels’ suggestion that there be closer liaison between the DPP, Police Prosecutions, Department of Justice, Community Corrections and the Supreme and Magistrates Court to develop protocols for dealing with breaches and computer software to automatically notify apparent breaches.[32] The DPP’s 2009 annual report indicated that changes to breach protocols had been instigated.[33]

In addition, the TLRI recommended conducting a review to determine whether the processes introduced to address ‘the neglect in instituting breach proceedings have been successful’.[34] The present study fulfils this final recommendation.

III METHODOLOGY

This study sought to answer three key questions regarding responses to breaches of suspended sentences in Tasmania, namely:

• What is the rate of breach for fully suspended sentences imposed in the Supreme Court between 1 January and 31 December 2011?

• What is the rate at which breach proceedings are instituted in cases of breach?

• What are the subsequent sentencing outcomes for such cases?

The methodological design of this study is based on the methods employed by Bartels in her breach analysis of fully and partly suspended sentences imposed in the Supreme Court between 1 July 2002 and 30 June 2004. That study was ‘the first Australian research to examine all breaches of suspended sentences, not only those cases where the offender is brought back to court.’[35] As discussed above, it formed the basis for the TLRI recommendations and subsequent reforms to the Act discussed above. Adopting a similar approach provides continuity between the studies to accurately assess the impact of the 2011 reforms.

As discussed by Bartels, this approach also avoids the pitfalls inherent in earlier breach analyses.[36] Specifically, previous breach studies concentrated on actioned breaches, only measuring the rate at which breached sentences were activated or subject to breach proceedings, rather than the rate at which sentences were breached by the offender committing an imprisonable offence or other condition of the suspended sentence.[37] For example, in its 2005 research, the Victorian Sentencing Advisory Council (VSAC) described outcomes for all breached cases. This suggests that the reported rate of breach in that study in fact only related to cases in which breach proceedings were instituted.[38] Similarly, in Tait’s study,[39] there was no distinction between instances where an offender had breached their sentence by committing an imprisonable offence and whether that breach was actioned. By conflating these separate stages, Tait under-represented the rate of breach as the number of offenders subject to breach proceedings.

To rectify this weakness, Bartels[40] considered whether offenders had committed an imprisonable offence during the operational period, and then compared this figure with the number of breach proceedings that were instituted. The present study uses the same measures for breach and breach action.

A Sample Selection

The dataset of offenders subject to fully suspended sentences was obtained from the TLRI Sentencing Database, which collates comments on passing sentence (COPS) from the Supreme Court of Tasmania. The sample population comprised offenders who received a fully suspended sentence in the Supreme Court during 2011 and had operational periods that expired by 25 September 2014 (n=128).[41] The incidence of breach and breach processes was determined by examining the criminal records of offenders through the Supreme and Magistrates Court databases maintained by Tasmania Police.[42] Sentencing outcomes were also analysed by reference to the offenders’ criminal records, supplemented by reference to judgments and COPS, where available.

The study was restricted to sentences imposed in the Supreme Court due to difficulties obtaining accurate information for the Magistrates Court. This was consistent with Bartels’ method.[43] For reasons of time constraints and simplicity, only fully suspended sentences were considered. However, it is unlikely that the outcomes for partly suspended sentences would have been very different: as set out above, Bartels found that 40 per cent of offenders on partly suspended sentences breached their sentence, compared with 41 per cent of offenders on fully suspended sentences. Furthermore, her reconviction analysis found that 44 per cent of offenders on a partly suspended sentence were reconvicted within two years, compared with 42 per cent of offenders on a fully suspended sentence.[44] By contrast, reconviction rates for offenders on unsuspended sentences and non-custodial orders were 62 per cent and 52 per cent respectively, suggesting partly suspended sentences are much more like fully suspended sentences than unsuspended prison sentences or non-custodial orders in this regard.

B Measure of Breach

Prior to the 2011 reforms, there had been some confusion about the conditions and obligations attached to a suspended sentence.[45] Amendments to s 24 clarified this, specifying that all offenders subject to this order must not commit an imprisonable offence.[46] In this study, a breach was taken to have occurred if the offender had committed an imprisonable offence.[47] This has been interpreted to be punishable by imprisonment in law.[48] Because the standard of proof for the breach activity is beyond reasonable doubt,[49] an appropriate measure is where an offender is found guilty of an imprisonable offence. This improves on the method employed in Bartels’ study, which did not distinguish between a finding of guilt and recording of a conviction,[50] thereby failing to recognise instances where a conviction was not recorded. However, using the commission of an imprisonable offence as the measure of breach is consistent with Bartels’ study, and therefore provides an appropriate comparator.[51]

C Length of Follow-up

As set out above, the 2011 reforms came into force on 1 January 2011, making the 2011 calendar year a suitable time frame for examination; this allowed for the longest possible follow-up period for sentences imposed after the 2011 reforms had taken effect. Overall, offenders were followed up for between 33 and 45 months. A longer follow-up period would have improved the accuracy of this study, but this was regrettably not possible in the present circumstances, due to the time limitations for the research, that is, the TSAC’s inquiry into suspended sentences. As a result, 14 offenders sentenced in 2011 were excluded because their operational period had not yet expired,[52] while the operational period of 18 offenders included in the study had only expired within the last six months. It is possible that some of these 18 offenders had breached their sentences, but their records did not yet reflect this at the time of our analysis, due to delay between offending, a finding of guilt for that offence, and any ensuing breach proceedings.

In her breach analysis, which followed up offenders for up to 54 months, Bartels found that for the seven cases in which breach action was taken, it took between 14 and 51 months from the imposition of the suspended sentence to the time when action was taken, with a median period of 35 months and a mean period of 32 months. This led Bartels to suggest that adopting a five-year (60 month) follow-up period, as the VSAC did in its study, would capture all instances of offending in breach of the suspended sentence, as well as judicial action in respect of such breaches.[53] We endorse this suggestion, although it was not possible in the present circumstances. In any event, our study is more likely to understate the proportion of actioned breaches, rather the incidence of breach.

IV RESULTS AND DISCUSSION

In this section, we present the findings of our breach analysis (‘2011’), with reference to Bartels’ earlier research (‘2002-2004’). The 2011 offenders (n=128) were generally similar to those sentenced in 2002-2004 (n=229). For example, the distribution of sentence length and operational periods was similar overall, although offenders in 2002-2004 were more likely to have received sentences of three to six months (37 per cent versus eight per cent) and less likely to have received sentences of six to nine months (24 per cent versus 31 per cent). In addition, the 2002-2004 offenders were more likely than those sentenced in 2011 to have received their sentence for violence (25 per cent versus 16 per cent), property (35 per cent versus 11 per cent) or ‘other’ offences (18 per cent versus 10 per cent). There were less likely to be sentenced for sex (six per cent versus 12 per cent) or drug (11 per cent versus 47 per cent) offences. Robbery accounted for seven and five per cent of offences respectively.

As noted above, the primary inquiry of our study was to determine whether the 2011 reforms were successful in addressing the gulf between the rate of breach and the rate at which breach proceedings are instituted. As of 30 September 2014, 44 of the 128 offenders examined (34 per cent) had breached their sentence by committing an imprisonable offence. This represents a decrease from 41 per cent in Bartels’ study, but remains higher than in Victoria (28 per cent)[54] and NSW (22 per cent).[55]

The next section presents our findings on breached sentences and some key sentencing variables associated with breach, followed by an examination of the action taken in respect of such breaches.

A Nature of Breach

1 Frequency of Offending

In 2011, 75 per cent of offenders who breached their fully suspended sentence committed multiple offences. It is difficult to make a direct comparison with the 2002-2004 data, as Bartels aggregated both fully and partly suspended sentences,[56] although a decrease in multiple breaches can be observed: in Bartels’ study, 92 per cent of offenders who breached their sentence committed multiple offences. This is further illustrated by the fact that 41 per cent of offenders breached their sentence only once or twice in the present study, compared with 13 per cent in Bartels’ study. Similarly, very high frequency offending (more than 20 offences committed in breach) decreased, from 17 to five per cent.

2 Offence Seriousness

The seriousness of offences is determined by reference to the National Offence Index (NOI),[57] which groups all offences into three broad categories according to their Australian and New Zealand Standard Offence Classification code,[58] and is frequently used in crime and offending research.[59] Under this ranking, the most serious offence is murder, ranked first, with miscellaneous regulatory offences ranked at 155. Examples of serious, moderate and minor offences include non-aggravated sexual assault (11), theft of a motor vehicle (71) and breach of bail (112) respectively.

The data were classified by reference to the most serious breach offence committed by each offender. In our study, 41 per cent of offenders breached their sentence by committing serious offences. This can be contrasted with Bartels’ finding of 31 per cent. Moderate offences remained relatively steady, at 27 per cent, compared with 25 per cent in 2002-2004, while 32 per cent of offenders in our study committed only minor offences in breach, compared with 44 per cent in 2002-2004.

3 Time Until Breach

The time between the imposition of the sentence and the first breach offence can illuminate the efficacy of suspended sentences as a specific deterrent and rehabilitative measure. It took offenders between three and 1010 days to breach their sentence, with mean and median times of 278 and 173 days respectively. Half of the offenders (50 per cent) breached their sentence within 150 days, while seven per cent first breached their sentence after 600 days. This decrease cannot be explained by the expiration of the operational period, the vast majority of which were for two years. However, it is difficult to identify a trend, as the risk of breach did not fall steadily as time passed, with a drop at 151–300 days (five per cent) and a spike at 301–450 days (18 per cent); 20 per cent breached after 451-600 days. Bartels did not distinguish between imprisonable and non-imprisonable offences when calculating time to reoffend, but had similar results, with a range of four to 953 days, an average of 152 days and median of 236 days.[60]

B Analysis By Key Sentencing Variables

Table 1: Breaches, By Index Offence Type and Sentence Length, 2002-2004 and 2011


2002-2004 (n=229)
2011 (n=128)

Number of offenders
Proportion in breach (%)
Number of offenders
Proportion in breach (%)
Index offence type
Violence
56
43
20
55
Sexual Assault
13
33
15
13
Robbery
15
40
6
67
Property
79
42
14
0
Drugs
26
33
60
35
Other
40
25
13
46
Sentence length
0-6 months
112
22
59
54
6–12 months
82
68
57
21
12–18 months
27
26
10
0
18–24 months
7
33
1
0
24+ months
0
N/A
1
0

1 Index Offence

Table 1 demonstrates that suspended sentences originally imposed for robbery and violent offences were most likely to be breached, at 67 and 55 per cent respectively. These breach rates are higher than in Bartels’ study, at 40 per cent and 43 per cent respectively. However, the apparent increase in the breach rate for robbery may be explained by the fact that there were only six such sentences imposed in 2011.

Those sentenced for drug offences were less likely to breach (35 per cent) and this rate had remained steady, with 33 per cent in 2002-2004 also breaching. This lower rate of breach for drug offences may be partly explained by the fact that 94 per cent of sentences imposed for this offence type were for trafficking or sale offences (rather than personal use).

No offender sentenced in 2011 for property offences breached their sentence. By contrast, 42 per cent of property offenders in Bartels’ study did so. This apparent improvement may be due in part to the significantly smaller number of offenders who received a fully suspended sentence for this category of offence in 2011 (14 versus 79 in 2002-2004).

Sentences imposed for sexual offences were also unlikely to be breached, at only 13 per cent, although the small number of cases (n=2) must be acknowledged. By contrast, the breach rate for such sentences in 2002-2004 was 33 per cent. The fact that sentences imposed for sexual offences were unlikely to be breached suggests that any community concern about recidivism[61] is unjustified.

2 Sentence Length

It is clear from the data in Table 1 that fully suspended sentences are commonly used for short sentences of imprisonment in Tasmania: 49 and 46 per cent respectively of fully suspended sentences imposed in 2002-4 and 2011 were zero to six months long. It is beyond the scope of this article to consider the merits or otherwise of imposing what are nominally prison sentences in such circumstances. However, the 2011 data in Table 1 suggest that the longer the suspended sentence, the less likely it is to be breached. Sentences of three months or less were most likely to be breached (64 per cent), while 54 per cent of sentences of up to six months were breached.[62] By contrast, only 21 per cent of sentences of between six and 12 months were breached, while no sentences exceeding 12 months were breached. This can partially be explained by the fact that only two sentences exceeding 18 months were imposed in 2011, while sentences exceeding 12 months accounted for only nine per cent of sentences imposed in 2011. However, a negative relationship between sentence length and breach has also been found in Victoria[63] and NSW.[64] These findings suggest that the weight of the blade of the Sword of Damocles is relevant to the deterrent effect. Conversely, it was difficult to identify a trend in Bartels’ study.

3 Length of Operational Period

The length of the operational period dictates how long the offender is ‘at risk’ of breaching their sentence. It is therefore reasonable to assume that the longer the operational period, the higher the risk of breach. In our study, only one of the 17 sentences with an operational period of less than two years was breached (six per cent). By contrast, 39 per cent of sentences with an operational period of two years and 31 per cent of sentences with an operational period of more than two years were breached. A significantly higher breach rate for operational periods of two years and over was also found in Victoria,[65] while Poynton and Weatherburn found the reverse,[66] and Bartels observed no correlation between the length of the operational period and breach.[67]

C Breach Proceedings

As discussed above, Bartels found that breach action was only taken in relation to five out of 94 breached fully suspended sentences (five per cent). A key finding of this study is that 24 of the 44 offenders who breached their sentence were subject to breach proceedings. This reveals a clear increase in the rate at which breach proceedings are instituted, to 55 per cent. Although this is a substantial achievement, it is acknowledged that actioned cases still only represent a slim majority and that there is ample room for further improvement. Factors which may have influenced the decision not to take breach action are discussed further below. Overall, breach action was taken in respect of 19 per cent of fully suspended sentences imposed in 2011, compared with two per cent of sentences imposed between 2002 and 2004. The relatively low rate of imprisonment may indicate that suspended sentences are effective in diverting offenders from prison.

1 Characteristics of Actioned Cases
(a) Offence Frequency

Perhaps unsurprisingly, we found that high frequency offenders were significantly more likely to be subject to breach proceedings: 80 per cent of offenders who breached their sentence six to 10 times and 82 per cent of those who breached their sentence 11 or more times were subject to breach proceedings. This can be contrasted with Bartels’ findings, in which the five most prolific offenders had no breach action taken. At the other end of the spectrum, offenders who breached their sentence once or twice were less likely to be subject to breach proceedings, at 36 per cent and 29 per cent respectively.

(b) Offence Seriousness

The seriousness of the breach offences was also an indicator of whether breach proceedings were instituted: 83 per cent of serious breach offences and 50 per cent of moderate breach offences were actioned, whereas only 21 per cent of minor breach offences were subject to breach proceedings.

(c) Index Offence Type

The nature of the index offence was also relevant. All offenders who breached sentences imposed for robbery (n=4) or ‘other’ offences (n=6) were subject to breach proceedings. In addition, 73 per cent of offenders who breached sentences imposed for violent offences (n=8) were subject to breach action, whereas offenders who breach sentences imposed for drug offences were much less likely to have breach action taken (24 per cent; n=5).[68]

(d) Time to Breach

It is interesting to note that offenders who breached within 150 days of their sentence were most likely to be subject to breach proceedings (with 67 per cent of those in breach). However it is difficult to ascertain a trend, as the group next most likely to be subject to breach proceedings were those who committed an offence after 451 to 600 days (60 per cent) or 301 to 450 days (50 per cent).

2 Time Until Breach Proceedings Instituted

Table 2 below represents the period of time between the initial finding of guilt for an imprisonable offence and the institution of breach proceedings. It took between zero days (ie, contemporaneous with proceedings for the breach offence(s)) and 874 days for proceedings to be brought, with an average delay of 196 days and a median delay of 76 days.[69] Bartels found that it took between 41 and 1148 days from conviction for a first offence until the hearing of breach proceedings, with an average of 334 days. While our data are not directly comparable, as Bartels did not distinguish between imprisonable and non-imprisonable offences in calculating delay, this nonetheless indicates that breach proceedings are being instituted more quickly than before.[70]

Table 2: Time From First Finding of Guilt to Breach Proceedings, 2011


Number of offenders (n=24)
Proportion of actioned cases (%)
0 days
11
46
1–150 days
3
13
151–300 days
5
21
300–450 days
2
8
450–600 days
0
0
600+ days
3
13

Almost half of the breach proceedings (46 per cent) were instituted concurrently with the finding of guilt for an imprisonable offence. This constitutes a significant improvement, as the previous study considered a delay of 41 days to be expeditious.[71] This can be partly attributed to the 2011 reforms discussed above, which allow the prosecution to make an oral breach application during proceedings for a breach offence. Oral applications were made in respect of seven of the 11 instances of instantaneous breach proceedings. However, it should nevertheless be noted that in three cases (13 per cent), it took more than 600 days for breach proceedings to be instituted. This indicates that there is still room for improvement in ensuring breach action is taken in a timely fashion.

3 Characteristics of Non-actioned Cases

Ultimately, breach action was still only taken in 55 per cent of breached cases. The failure to institute proceedings in almost half of all breached cases (45 per cent) continues to undermine both the legitimacy of this sentencing measure and the potency of the legislative presumption of breach activation.[72]

We acknowledge that it would be impractical and cumbersome to action all breach incidents, particularly where the breach offence is isolated and trivial. It is therefore plausible that the exercise of prosecutorial discretion can account for some of the 20 cases of breach in which no action was taken. This is supported by the consistency with which incidents involving high frequency breaching and serious breach offences were targeted for breach action (80 per cent and 79 per cent respectively), in comparison with the average breach case (55 per cent). This indicates that prosecutorial discretion in breach matters may have been deliberately exercised, rather than breach cases being randomly selected. This finding is a significant improvement on the ad hoc manner in which breach proceedings were previously instituted, as five of the most prolific offenders in Bartels’ study were not subject to breach proceedings.

An example of an appropriate exercise of prosecutorial discretion is in the matter of BR.[73] BR received a fourmonth suspended sentence for drug trafficking offences. He breached the order 23 months into the 24 month operational period by drink driving and failing to appear in respect of that charge. We believe that it is reasonable that no proceedings were instituted, considering the lack of similarity between the original and breach offences, the relatively minor and isolated nature of the offence and the fact that his reoffending occurred so late in the operational period.

However, prosecutorial discretion cannot explain the failure to initiate breach proceedings in all 20 cases. For example, LO was one of three offenders who committed serious offences in breach, but was not the subject of breach proceedings. LO received a six-month sentence for two counts of unlawfully setting fire to property and one count of motor vehicle stealing. He was convicted of 25 separate imprisonable offences during his two-year operational period, including assaulting a police officer and negligent driving. The serious and prolific nature of his offending is a matter that we believe ought to have resulted in breach action.[74]

There are a number of borderline cases in which it is difficult to determine whether failure to prosecute was deliberate or accidental. For example, JG received a three-month suspended sentence for drug offences. She breached the order 13 times, but all were minor and unrelated offences. In another matter, GW received a five-month suspended sentence for drug offences and breached the order three times by committing minor drug offences. Neither offender was subject to breach proceedings, which was arguably appropriate, given the minor nature of the breach offences. Alternatively, perhaps the prolific nature of JG’s offending and the similarity of GW’s breaches to the original offence ought to have enlivened prosecutorial discretion. This also highlights an important issue around whether the discretion to act on apparent breaches should lie with the prosecution or the court. Two arguments in favour of the latter are the public and therefore transparent nature of court proceedings, and the fact that a suspended sentence is an order of the court, and violations of it should therefore be dealt with in that forum.

Notwithstanding these instances where no breach action was taken, our findings indicate a marked improvement in the case management of breach matters. Nevertheless, the controversial nature of suspended sentences suggests that it is in the public interest to action all but trivial and unrelated breaches. Relevant considerations of time, expense and resources in breach proceedings have been largely addressed by the introduction of oral applications, which has facilitated simultaneous applications.[75] As such, prosecutorial discretion can only conclusively explain nine of the non-actioned cases.[76] The remaining 11 cases indicate that this discretion is perhaps exercised leniently and/or there continue to be instances where breaches are not identified. To rectify this, it is suggested that, pending the proposed abolition of suspended sentences, the DPP employ a clear policy to action all breaches, unless it would not be in the interests of justice to do so. We also support the TLRI’s original recommendation to implement computer software to automatically notify law enforcement agencies of breaches, if this is not already in operation.

4 Sentencing Outcomes For Actioned Breaches

As noted above, since 2011, there has been a statutory presumption that breached suspended sentences will be activated. Of the 24 actioned cases, ten (42 per cent) were activated in full and three (13 per cent) were activated in part or had lesser terms of imprisonment substituted. Together, this gives an activation rate of 54 per cent; although there was no presumption of activation at the time of Bartels’ study, this represents a small decline down from 57 per cent and is also lower than in NSW (68 per cent to 79 per cent)[77] and Victoria (66 per cent).[78] The disparity between Tasmania and Victoria may be explained by the fact that, at the time, Victoria had a strict presumption in favour of activation in all but ‘exceptional circumstances’.[79] The high activation rate in NSW is likewise also due to the strict wording of the legislation, which requires activation unless the breach was trivial in nature or there were good reasons for excusing the offender’s behaviour.[80]

However, comparison with interstate jurisdictions indicates that a higher rate of imprisonment may have been anticipated as a result of the 2011 reforms and this does not appear to have occurred. Overall, 13 of the 128 offenders (10 per cent) sentenced to a fully suspended sentence in 2011 ultimately served a term of imprisonment in relation to this sentence. This figure is clearly much higher than in Bartels’ study, where only one per cent of offenders who received a fully or partly suspended sentence served time in relation to that sentence. This is notable, considering the decrease in the rate of breach (from 41 per cent to 33 per cent).[81] Furthermore, 30 per cent of offenders who breached their sentence (i.e., 13 out of 44) were required to serve time in custody, compared with only three per cent in Bartels’ study (four out of 126).

It appears that the Court found that it would be unjust to activate the sentence in the remaining 11 cases (46 per cent). Four cases (17 per cent) had the operational period extended, no order was made in two cases (8 per cent), one application was dismissed (4 per cent) and one was withdrawn (4 per cent). It can be inferred that the remaining three cases (13 per cent) were re-suspended, as judicial action upon breach was solely represented as ‘previous order varied or revoked’.[82]

Sentencing remarks were unavailable for the 13 cases actioned in the Magistrates Court and for five of the 11 cases actioned in the Supreme Court. The absence of these records is problematic in two ways. Firstly, it precludes detailed analysis of the sentencing decisions. Secondly, the failure to record Supreme Court COPS is particularly unusual in three breach matters where the operational period was extended or no order was imposed in light of the statutory requirement to provide reasons for refusing to activate a sentence in full.[83] Although the absence of records does not mean that an explanation was not provided, the controversial nature of the sentencing order means it is in the interests of justice that COPS for breach applications are made publicly available.

The purpose of the presumption in favour of activation was, inter alia, to create certainty in relation to sentencing outcomes on breach, in order to ensure effective specific deterrence, while ensuring just outcomes.[84] The leading interpretation of s 27(4B) is that of Wood J in Tanner v Brown.[85] In that case, her Honour considered previous breach principles and detailed a range of factors relevant to determining whether it would be unjust to activate the sentence. These include:

• the nature and circumstance of the original offence;

• the nature and gravity of the breach and whether activation would be disproportionate;

• the lapse of time before the sentence was breached; and

• evidence of reform and rehabilitation.[86]

These factors are largely the same considerations that were relevant to activating a sentence prior to the reforms,[87] and are broadly consistent with parallel ‘unjust’ breach provisions in Queensland, Western Australia and the Northern Territory.[88] Of the 14 cases in which the presumption was rebutted and the sentence not activated, 10 can be explained by reference to the lack of similarity between the original and breach offences, the minor nature of the breach offence(s) and/or the delay between the original sentence and breach offence, as discussed below. The individual circumstances of the offender, especially youth, may have explained a finding that it would be unjust to activate the sentence in the remaining four cases.

The following discussion considers some of the factors that appear most likely to result in a decision not to activate the breached sentence. However, we note that it would be reasonable to expect some ‘teething problems’ in implementing the new provisions. This appears to have been the case in relation to RJD, who received an eight-month suspended sentence for drug offences and subsequently breached the order four times, including two counts of assaulting a police officer. The operational period of the sentence was extended for a further two years, even though s 27(4C)(c) provides that the operational period cannot be extended for more than 12 months after a finding of guilt for the breach offence.[89]

(a) Nature of the Offence

The sentence was most likely to be activated where the breach offence was serious and of a similar character to the original offence. This is demonstrated in, for example, the matter of AF. AF received a ten-month suspended sentence for serious drug trafficking offences. Over a year into the operational period, the offender breached the sentence by committing a further trafficking offence. Tennent J remarked that the offender had ‘clearly not learned from the suspended sentence and it would devalue that sentence completely were it not to be activated’. The similarity of the offences was seen as a significant consideration, and her Honour activated the sentence in full, to be served cumulatively with a sentence of 14 months imposed for the breach offence.

Conversely, where the breach offence was trivial and dissimilar to the original offence, the Court was inclined to consider activation in full to be unjust. This was the case in the matter of NR, where NR received a seven-month sentence for drug offences and subsequently breached the sentence five times with four minor vehicle offences and one charge of ‘giving particulars likely to mislead’. Although the COPS were unavailable in this case, we infer that the lack of similarity with the original conviction and the minor nature of the breach offences were relevant factors in finding that it would be unjust to activate the sentence in full, although the offender’s age of 22 years was also a likely consideration. The Court accordingly re-suspended the sentence.

Despite the similarity between the original and breach offences, it was presumably seen as unjust to activate the sentence in full for offenders LB and RA. LB received an 11-month sentence for drug trafficking offences. He subsequently breached this 13 times by committing eight different drug offences (two of which were serious), four firearm offences and one vehicle offence. The sentence was first breached one and a half months after the sentence was imposed, and the most serious drug offence occurred within a year. The offender received a substituted sentence of four months’ imprisonment and also received a nine-month fully suspended sentence in relation to the breach offences. Although the personal circumstances of the offender are not known, as this case was heard in the Magistrates’ Court, youth cannot be an explanation for the finding that it would be unjust to activate the sentence in full. However, it is possible that the principle of totality led the Court to only activate the sentence in part.[90]

A similar circumstance and sentencing outcome occurred in the matter of RA, where RA received a five-month sentence for assault. The sentence was breached six times, including one charge of assault, vehicle offences, a breach of bail conditions and property damage. The first breach offence occurred just over a month after the sentence was imposed and the most serious offence of assault was committed within the year. Instead of activating the sentence in full, the Court substituted a sentence of three months.[91] Although records for the decision are unavailable and any observations on these cases should only be regarded as tentative, it is possible that this was justified on the basis of the offender’s youth, as he was only 20 years old at the time. However, the cases of LB and RA may indicate some confusion regarding the nature of the presumption, which is to activate the sentence in full, and not in part.

(b) Time Factors

The lapse of time between the original sentence and the breach offence may provide an indication of any rehabilitative progress made by the offender and point to the specific deterrent effect of a suspended sentence. The speed with which the sentence was breached was a significant factor in the case of GB, who received a six-month suspended sentence for aggravated assault. The sentence was breached only nine days later, with 12 breaches (including aggravated burglary) by the date of breach proceedings. In activating the sentence in full, Wood J remarked: ‘this offending... reveal(s) how completely unsuccessful the suspended sentences and probation were in terms of achieving his rehabilitation’.

The importance of time factors in determining sentencing outcomes can also be illustrated by the comparison of offenders MF and AG. Both received a four-month suspended sentence with an operational period of 24 months. MF was sentenced for drug offences and AG was sentenced for assault. Both breached their sentences once by driving without holding a licence. However, AG committed this offence just over three months into the operational period, whereas MF committed the same offence after approximately 23 months. Due to the trivial nature of the breach offence, it was considered in both cases to be unjust to activate the whole sentence, however AG was required to serve 74 days of the sentence, whereas no order was made in relation to MF.[92] The two-year delay between the breach offence and breach action may explain the decision to dismiss the application in the matter of JE, who was sentenced to a five month suspended sentence for assault and breached the sentence seven times, including by assault.

(c) Circumstances of the Offender

A prominent criticism of suspended sentences is that the process of reasoning allows mitigating factors to be considered multiple times.[93] Bartels noted that the mitigating circumstances of an offender might also be considered a third time in breach proceedings.[94] The duplication of mitigating factors is addressed in other Australian breach provisions, which specify consideration only of circumstances that have arisen after the original sentence.[95] The absence of this requirement in Tasmania means it is possible that the same circumstances personal to the offender that justified a suspended sentence in the first place will be a factor in determining whether it would be unjust to activate the sentence.

CR is an interesting case because it had characteristics that would usually warrant activation. CR received a nine-month sentence for robbery and breached the sentence 15 times, the first of which occurred less than four three months after the sentence was imposed. The most serious offence committed was dangerous driving, but other breach offences included stealing, possession of illicit substances, breach of bail and a number of minor vehicle offences. An additional factor in favour of activation was the offender’s failure to comply with the condition of probation. Instead of activating the sentence, Wood J extended the operational period by six months. Her Honour justified this primarily on the basis of mitigating circumstances that had arisen since the imposition of the suspended sentence. This indicates that despite the lack of legislative direction on this point, courts may seek to avoid duplication of mitigating factors.[96] Her Honour noted that because CR was currently serving a lengthy term of imprisonment and finding it difficult, the original suspended sentence would now have the appropriate deterrent effect. Her Honour also observed that he had good prospects of rehabilitation, due to family support, good employment prospects and his youth. A further consideration was that the sole offence of a similar character to the original offence was a conviction for stealing property that was valued at only seven dollars.

V CONCLUSION

This article has sought to inform the debate on suspended sentences in Tasmania by providing a breach analysis of suspended sentences imposed in the Supreme Court in 2011. More broadly, it has pointed to the impact of legislative reform on sentencing practices and identified some areas where legislative changes have failed to meet their objectives. Our findings indicate that nearly two-thirds of offenders subject to a fully suspended sentence were not convicted of an imprisonable offence committed within the operational period of the sentence. We also found a decrease in the rate at which suspended sentences were breached (from 41 per cent to 34 per cent), which may indicate that the Supreme Court has improved targeting of suspended sentences to appropriate offences and offenders.

The data also reveals that when offenders breach their sentence, they are most likely to breach multiple times, to do so within the first six months of the operational period, and to commit at least one serious breach offence. These results are largely comparable with Bartels’ findings, although there was an increase in the proportion of offenders whose breach offences were serious (from 31 per cent to 41 per cent). This does not mean, however, that the majority of breaches themselves were serious, as many offenders committed multiple minor or moderate breaches and a sole serious offence. Regardless, the fact that a greater proportion of the more recent cohort of offenders committed a serious breach offence may call into question the ability of this sentencing measure to deter and rehabilitate offenders.

The primary finding of this study is the notable improvement in the rate at which breach proceedings were instituted, from five per cent to 55 per cent. Aligning the rate of breach and the rate at which breaches are actioned ensures that the punitive consequences of suspended sentences can be realised. It also addresses public perceptions of leniency in this regard.[97] These findings indicate that the case management of breach proceedings has improved significantly.

An additional improvement is the increased speed with which breach proceedings are now instituted. On average, breach action occurred nearly twice as quickly as previously (six and a half months versus 11 months). More significantly, almost half of the breach proceedings were instituted concurrently with a finding of guilt for the breach offence. Celerity addresses the objective of specific deterrence by ensuring that the offender correlates the punishment with the crime.[98] This is particularly important for fully suspended sentences, because the most significant punitive element (imprisonment) is deferred. Instances where breach proceedings occurred simultaneously with a finding of guilt for a breach offence can be partly attributed to the introduction of oral applications to activate the sentence.[99] Eight instances of oral applications were recorded, of which seven were instituted concurrently with the breach offence. This not only indicates that the case management of breach matters has improved, but also minimises potential unfairness to the offender where there is a significant delay.[100]

The increase in breach proceedings and the speed with which they were generally instituted may also explain the lower rate of high frequency offending, as offenders will be prevented from committing further breaches where the sentence is activated. Additionally, a deterrent effect can be observed where an offender’s sentence is actioned, but not activated. The process of being dealt with for breach can impress on the offender the seriousness of the suspended sentence and deter future breaches.[101] In our study, only one offender who was subject to breach proceedings, but did not have their sentence activated, committed further breaches.[102] In any event, an offender’s opportunity to commit further breaches may be constrained where there is minimal delay between the breach and breach action, highlighting the need for celerity in dealing with breaches.

Finally, we considered sentencing outcomes in relation to breach matters brought back to court. If the purpose of the presumption was to ensure that most breached cases are activated in full, then this reform has not yet been successful. However, we note that the Tasmanian legislature, on the TLRI’s recommendation, made a deliberate choice to implement a lower threshold of ‘unjust to activate’ instead of the ‘exceptional circumstances’ test that applies in some other jurisdictions.[103] Although our research was limited by the difficulty in obtaining sentencing remarks, the principles summarised in Tanner v Brown[104] appear to be applied consistently. Our analysis indicates that the presumption has been largely successful in balancing certainty of sentencing outcomes with flexibility for individual circumstances. However, as the rate of activation is lower than anticipated, it is recommended that all COPS for breach applications be made publicly available to further illuminate the judicial decision-making process.

The failure to activate the sentence in almost half of breach actions suggests that the punitive nature of this sentencing measure remains somewhat illusory, which may contribute to public perceptions of leniency. However, a stricter presumption would increase the imprisonment rate, as has recently been found to be the case in NSW.[105] The rate at which sentences were activated does not necessarily undermine the efficacy of the sentencing measure, as the certainty of being detected is said to have a greater deterrent effect than the severity of punishment.[106] It is for this reason that we have made a number of suggestions that focus on the rate at which breach proceedings are instituted, rather than the rate at which breached sentences are activated.

As discussed above, suspended sentences are a highly controversial sentencing disposition. Victoria recently abolished the sentencing order and the Tasmanian Government has made an election commitment to follow suit. The NSWLRC has also recommended abolition and South Australia has moved to restrict the availability of such sentences.[107] As part of the Tasmanian reform process, the TSAC is currently inquiring into the use of suspended sentences, including practices in relation to breach. The present article formed the basis of the TSAC’s research on breaches and may also inform changes to policy and practice in other jurisdictions. It further demonstrates the measurable impact of past legislative reforms, while highlighting some areas for further improvement in relation to responses to breaches of suspended sentences. This may in turn enhance the credibility of and public support for this sentencing option.


[#] BA/LLB (Hons I) (UTas).

[*] BA/LLB LLM (UNSW) PhD (UTas). Associate Professor, University of Canberra; Honorary Associate Professor, University of Tasmania. Email: lorana.bartels@canberra.edu.au.

The research reported in this article was undertaken as part of the first author’s Honours thesis, supervised by Professor Kate Warner (as she then was). The second author was engaged by the Tasmanian Sentencing Advisory Council (TSAC) to undertake research on its review of suspended sentences.

The authors are indebted to Her Excellency Professor the Honourable Kate Warner AM, Emeritus Professor Arie Freiberg and Dr Jeremy Prichard for their incisive comments on earlier drafts of this article.

This project was granted ethics approval by the Tasmania Social Science Human Ethics Research Committee at the University of Tasmania.

[1] See generally, Lorana Bartels, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Criminal Law Journal 113, 114.

[2] Arie Freiberg and Victoria Moore, ‘Disbelieving Suspense: Suspended Sentences of Imprisonment and Public Confidence in the Criminal Justice System’ (2008) 42 Australian and New Zealand Journal of Criminology 101, 101. For discussion, see Lorana Bartels, ‘An Examination of the Arguments For and Against the Use of Suspended Sentences’ (2010) 12 Flinders Law Journal 119.

[3] Kate Warner and Caroline Spiranovic, ‘Jurors’ Views of Suspended Sentences’ (2014) 47 Australian and New Zealand Journal of Criminology 141, 141.

[4] For recent discussion, see Victorian Sentencing Advisory Council (VSAC), Community Correction Orders Monitoring Report (24 February 2014); VSAC, Community Correction Orders Second Monitoring Report (Pre-Guideline Judgment) (10 September 2015); Tasmanian Sentencing Advisory Council (TSAC), Phasing Out of Suspended Sentences Consultation Paper (August 2015) 28–31.

[5] NSWLRC, Sentencing, Report No 139 (2012) Recommendation 10.1. Suspended sentences were reintroduced in NSW in 2000, having been abolished in 1974. To date, the NSW Government has not responded to the NSWLRC’s recommendations.

[6] Statutes Amendment (Serious Firearm Offences) Act 2012 (SA); Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013 (SA); Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2014 (SA). For discussion, see Lorana Bartels, ‘Sentencing Review 2014-15’ (2015) 39 Criminal Law Journal 326, 331–333. See also Evan Smith, ‘Modern Diversion or Colonial Hangover? The History and Development of Suspended Sentences in South Australia’ (2015) Australian and New Zealand Journal of Criminology <http://anj.sagepub.com/content/early/2015/02/24/0004865815570679.full.pdf+html> .

[7] Tasmania Liberals, ‘Abolishing Suspended Sentences: Election Policy 2014’ (2014) Tasmanian Liberals <https://www.tas.liberal.org.au/sites/default/files/policy/Abolishing%20suspended%20sentences.pdf>.

[8] Ellen Coulter, ‘Tasmania’s Attorney General Stands Firm On Suspended Sentences, Despite Legal Backlash’, ABC News (online), 15 April 2014 <http://www.abc.net.au/news/2014-04-14/tasmania27s-attorney-general-stands-firm-on-suspended-sentence/5389880> .

[9] See, eg, Calla Wahlquist, ‘Suspended Sentence Phase-out Slammed’, The Examiner (online), 31 January 2014 <http://www.examiner.com.au/story/2059673/suspended-sentence-phase-out-slammed/> Sally Glaetzer, ‘Suspended Sentences Have Let The Community Down, Says Tasmanian Attorney-General Vanessa Goodwin’, The Mercury (online), 22 April 2014 <http://www.themercury.com.au/news/tasmania/suspended-sentences-have-let-the-community-down-says-tasmanian-attorneygeneral-vanessa-goodwin/story-fnj4f7k1-1226891783083> Laura Beavis, ‘Outgoing Magistrate Tim Hill Criticises Tasmanian Government Plan To Abolish Suspended Sentences’, ABC News (online), 28 July 2014 <http://www.abc.net.au/news/2014-07-27/outoging-magistrate-joins-opposition-to-suspended-sentence-abol/5627302> Jane Ryan, ‘Plan To Scrap Suspended Sentences May Spark Rise in Disabled People Sent To Jail’, ABC News (online), 18 September 2014 <http://www.abc.net.au/news/2014-09-17/plan-to-scrap-suspended-sentences-may-see-more-disabled-inmates/5751654> .

[10] Warner and Spiranovic, above n 3, 141.

[11] Sentencing Act 1997 (Tas) ss 27(4A)(a), (4B).

[12] TSAC Consultation Paper, above n 4.

[13] TSAC, Phasing Out of Suspended Sentences – Background Paper (2015) (TSAC Background Paper). For media commentary, see ‘Non-custodial Sentence Options Needed to Avoid Tasmanian Prison Population Blow-out, Report Warns’, ABC News (online), 22 August 2015 <http://www.abc.net.au/news/2015-08-22/non-custodial-sentence-options-needed-in-tasmania-report-says/6716926> . See also Patrick Billings, “Labor Calls to Keep Suspended Sentences After Release of Sentencing Advisory Council Report”, The Mercury (online), 22 August 2015 <http://www.themercury.com.au/news/politics/labor-calls-to-keep-suspended-sentences-after-release-of-sentencing-advisory-council-report/story-fnpp9w4j-1227494363263> .

[14] TSAC Background Paper, above n 13, 47–53.

[15] Vanessa Goodwin, ‘Sentencing Advisory Council To Examine Alternative Sentencing Options’ (Media Release, 16 July 2014) <http://www.premier.tas.gov.au/releases/sentencing_advisory_council_ to_examine_alternative_sentencing_options> .

[16] Criminal Code 1924 (Tas) s 389(3). See also, Criminal Code 1924 (Tas) ss 56, 158. For discussion, see Kate Warner, Sentencing in Tasmania (Federation Press, 2nd ed, 2002) 3.

[17] Warner, above n 16, 4.

[18] For comprehensive recent data, see TSAC Background Paper, above n 13.

[19] Australian Bureau of Statistics (ABS), ‘Criminal Courts Australia 2013-2014’ (Cat No 4513.0, ABS, 2015).

[20] Ibid.

[21] Tasmania Law Reform Institute (TLRI), Sentencing, Final Report No 11 (2008) 106. See also Lorana Bartels, Sword or Feather: The Use and Utility of Suspended Sentences in Tasmania (Unpublished PhD Thesis, University of Tasmania, 2008).

[22] TLRI, above n 21.

[23] Bartels, above n 21.

[24] TLRI, above n 21, 283–4.

[25] Lorana Bartels, ‘Sword or Butter Knife? A Breach Analysis of Suspended Sentences in Tasmania’ (2009) 21 Current Issues in Criminal Justice 219, 228.

[26] TLRI, above n 21, 111.

[27] Ibid Recommendation 18.

[28] Ibid Recommendation 17.

[29] Sentencing Act 1997 (Tas) s 27(4B).

[30] Sentencing Act 1997 (Tas) s 27(4C).

[31] Bartels, above n 21, 99–106.

[32] TLRI, above n 21, Recommendation 16.

[33] Tasmanian Director of Public Prosecutions, Annual Report: 2008-2009 (2009) <http://www.crownlaw.tas.gov.au/__data/assets/pdf_file/0003/129486/ar2008-09.pdf> .

[34] TLRI, above n 21, Recommendation 15.

[35] Bartels, above n 25, 220.

[36] Bartels, above n 25, 222, 224.

[37] Ibid 224.

[38] See VSAC, Suspended Sentences: Discussion Paper (2005), which reported that 36 per cent of suspended sentences imposed by the higher courts were breached. It further reported that of this number, 76 per cent of offenders had their sentence reactivated and that the presumption in favour of activated was rebutted in the remaining 24 per cent, ie, amounting to 100 per cent of ‘breached’ cases.

[39] David Tait, ‘The Invisible Sanction: Suspended Sentences in Victoria 1985-1991’ (1995) 28 Australian and New Zealand Journal of Criminology 143, 154.

[40] Bartels, above n 25, 224.

[41] The Supreme Court imposed 143 fully suspended sentences this year, but one offender was subject to two fully suspended sentences. For this offender, only the first sentence was used, so the total number of offenders was 142. The 14 offenders whose operational periods had not expired by 25 September 2014 were excluded from our analysis.

[42] Access to the offenders’ criminal records was facilitated by the Department of Police and Emergency Management. We particularly acknowledge the assistance of Ben Young from that Department.

[43] Bartels, above n 21; Bartels, above n 25.

[44] Lorana Bartels, ‘The Weight of the Sword of Damocles: A Reconviction Analysis of Suspended Sentences in Tasmania’ (2008) 41 Australian and New Zealand Journal of Criminology 72.

[45] Bartels, above n 21, 280.

[46] Sentencing Act 1997 (Tas) s 24(1). The requirement to not commit an imprisonable offence is largely consistent with the condition of ‘good behaviour’ that was attached to the majority of suspended sentences prior to the reforms: see Bartels, above n 21, for discussion.

[47] Sentencing Act 1997 (Tas) s 24(1).

[48] Bartels, above n 25, 224.

[49] Warner, above n 16, 232.

[50] Bartels, above n 21, 282.

[51] The TLRI recommended that a review study consider all breaches of suspended sentences (ie, a breach of any conditions to which the sentence is subject), not just where a breach had occurred by commission of an imprisonable offence: see TLRI, above n 21, 119. Unfortunately, such a broad inquiry was beyond the scope of our research, due to time constraints and difficulty in ascertaining whether additional conditions had been breached.

[52] Bartels’ earlier research indicated that although operational periods ranged from three months to four years, the mean operational period was two years and one month, while the median period was two years: Bartels, above n 21, 174.

[53] Bartels, above n 25, 236.

[54] VSAC, Suspended Sentences and Immediate Sentencing Orders: Final Report – Part 2 (2008) 37.

[55] NSW Sentencing Council, Suspended Sentences: A Background Report (2011) 23.

[56] Bartels, above n 21, 286–7.

[57] ABS, ‘National Offence Index’ (Cat No 1234.0.55.001, ABS, 2009).

[58] ABS, ‘Australian and New Zealand Standard Offence Classification (ANZSOC), 2011’ (Cat No 1234.0, ABS, 2011).

[59] See, eg, South Australian Office of Crime and Statistics Research (OCSAR), Impact of ICAN Flexible Learning Options on Participant Offending Behaviour (OCSAR, 2014) 7; Bartels, above n 21.

[60] Bartels, above n 21, 292.

[61] For discussion of public perceptions and recidivism data in this context, see Karen Gelb, Recidivism of Sex Offenders Research Paper (VSAC, 2007).

[62] Data are presented in this format to allow comparison with Bartels’ study; a more precise reporting of the rate of breach is: 0-3 mths (64 per cent); 3-6 mths (52 per cent); 6-9 mths (17 per cent); 9-12 mths (27 per cent).

[63] VSAC, above n 54, 56.

[64] Suzanne Poynton and Don Weatherburn, ‘Bonds, Suspended Sentences and Reoffending: Does the Length of the Order Matter?’ (Trends and Issues in Crime and Criminal Justice No 461, Australian Institute of Criminology, 2013).

[65] VSAC, above n 54, 58.

[66] Poynton and Weatherburn, above n 64. See also, Suzanne Poynton, Don Weatherburn and Lorana Bartels, ‘Good Behaviour Bonds and Re-offending: The Effect of Bond Length’ (2014) 47 Australian and New Zealand Journal of Criminology 25, in relation to good behaviour bonds.

[67] Bartels, above n 21, 291.

[68] Offenders who breached sentences imposed for sexual assault had a 50 per cent likelihood of being subject to breach proceedings; however, it should be noted that only two offenders breached the order and the non-actioned case regarded two minor offences.

[69] The average delay of about 6½ months indicates that the two offenders who had breached their sentence close to the end of the study period may subject to upcoming breach proceedings. This was the case for HM, whose criminal record revealed six breaches committed on 25 September 2014. The sentence was actioned and activated on 2 October 2014, but not included in the study as it was after 25 September 2014.

[70] Bartels, above n 21, 293.

[71] Bartels, above n 25, 236.

[72] Sentencing Act 1997 (Tas) s 27(4B).

[73] Due to the use of sensitive personal information, randomised initials are used in this discussion to conceal offenders’ identities. This approach complies with the ethics requirements for the study.

[74] Bizarrely, the offender was subject to breach proceedings in respect of suspended sentences imposed prior to 2011, but not in respect of the 2011 sentence. In another matter, an offender was subject to breach proceedings in regards to the 2011 suspended sentence, but not in regards to a sentence imposed in 2012, suggesting there may still be an element of arbitrariness in how breaches are processed.

[75] Tasmanian Director of Public Prosecutions, Prosecution Guidelines <http://www.crownlaw.tas.gov.au/dpp/prosecution_guidelines> .

[76] These offenders were all sentenced for drug offences and committed only one or two minor and unrelated offences: A1 committed a breach of bail after two months; B2 and breached after 15 months by drink driving; C3 breached bail 14 months into the operational period; D4 and E5 breached after 17 and 18 months respectively by each committing a minor traffic offence; F6 breached with a theft after more than 2 and a half years. See also BR, detailed above.

[77] NSW Sentencing Council, above n 55, 24.

[78] Nick Turner, Suspended Sentences in Victoria: A Statistical Profile Report (VSAC, 2007) 13.

[79] Sentencing Act 1991 (Vic) s 31(5A) (as it then applied).

[80] See Crimes (Sentencing Procedure) Act 1999 (NSW) ss 98(3), 99(1)(c).

[81] Bartels, above n 21, 284.

[82] It appears that ‘previous order varied or revoked’ in the absence of any further information on the court file indicates re-suspension, because cases where the offender was ordered to serve time (by partial or full activation of the sentence) or the operational period was extended were accompanied by a note to this effect on the court file. Unfortunately, the Supreme Court and Magistrates Court did not have records for these offenders, but this inference was confirmed by the Supreme Court librarian.

[83] Sentencing Act 1997 (Tas) s 27(4D). Remarks from the Magistrates Court are generally unavailable.

[84] Tasmania, Parliamentary Debates, House of Assembly, 19 May 2009, 15 (Lara Giddings).

[85] Tanner v Brown [2011] TASSC 59 [94]–[95]; followed in Jones v Clark [2014] TASSC 21; Chatwin v Godfrey [2013] TASSC 70; Cannell v Hughes [2014] TASSC 41.

[86] Tanner v Brown [2011] TASSC 59 as summarised in Cannell v Hughes [2014] TASSC 41.

[87] Bartels, above n 21, 294–5.

[88] Penalties and Sentencing Act 1992 (Qld) ss 147(1)(b), (2); Sentencing Act 1995 (WA) ss 80(1)(a), (3); Sentencing Act 1995 (NT) ss 43(5)(c), 43(7).

[89] This exact outcome was overturned in respect of another offender: Jones v Clark [2012] TASSC 21 [55].

[90] The totality principle requires that, when sentencing an offender for multiple offences, judicial officer should consider whether the whole of the sentence is just: see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. The principle applies to suspended sentences: Warner, above n 16, 204–41.

[91] This offender was also subject to an eight-month suspended sentence imposed after the breach offences, but in relation to four counts of assault that had occurred prior to the 2011 suspended sentence.

[92] Interestingly, the nature and timing of the breach offence committed by MF were precisely the example given in the Minister’s Second Reading speech to justify the ‘unjust’ rather than ‘exceptional circumstances’ presumption in the debate on the 2011 reforms: Giddings, above n 84, 15.

[93] Bartels, above n 2, 158-9.

[94] Bartels, above n 21, 300.

[95] Penalties and Sentencing Act 1992 (Qld) s 147(3)(c); Sentencing Act 1995 (WA) s 80(3); Sentencing Act 1995 (NT) s 43(7).

[96] It should also be noted that no weight was given to pre-existing mitigating factors in Cannell v Hughes [2014] TASSC 41.

[97] TLRI, above n 21, 111.

[98] For discussion of celerity generally, see Ronald L Akers, Criminological Theories: Introduction and Evaluation (Roxbury Publishing, 2nd ed, 1999) 17; Daniel Nagin and Greg Pogarksy, ‘Integrating Celerity, Impulsivity and Extra-legal Sanction Threats Into A Model of General Deterrence: Theory and Evidence’ (2001) 39 Criminology 865; Haley R Zettler et al, ‘Assessing the Celerity of Arrest on 3-year Recidivism Patterns in a Sample of Criminal Defendants’ (2015) 43(5) Journal of Criminal Justice 428.

[99] The TLRI anticipated this: see above n 21, 119. See also Sentencing Act 1997 (Tas) s 27(4)(a).

[100] See comments of Crawford CJ: TLRI, above n 21, 113.

[101] Bartels, above n 25, 228. For discussion generally of the criminal process constituting a form of punishment, see David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (Federation Press, 6th ed, 2015) 301–2.

[102] Others reoffended but not within the operational period.

[103] TLRI, above n 21, 119; Giddings, above n 84, 15.

[104] Tanner v Brown [2011] TASSC 59. See discussion at n 85 and accompanying text.

[105] See Patricia Menendez and Don Weatherburn, ‘The Effect of Suspended Sentences On Imprisonment’ (Issue Paper No 97, NSW Bureau of Crime and Statistics Research, 2014).

[106] Andrew Von Hirsch et al, Criminal Deterrence and Sentence Severity (Hart Publishing, 1999) 5–6, 47; VSAC, above n 54, 104.

[107] See Bartels, above n 6.


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