Suspended sentences were reintroduced into the New South Wales legal system in 2000, in order to provide judges with more flexibility during the sentencing process. In introducing the bill, then Attorney General of NSW, Robert John Debus stated that “The primary purpose of suspended sentences is to denote the seriousness of the offence and the consequences of re-offending, whilst at the same time providing [offenders] an opportunity, by good behaviour, to avoid the consequences.” Suspended sentences allow judges and magistrates to impose a sentence of imprisonment on a convicted offender to convey the severity of the offence, but at the same time encourage their rehabilitation. Research by the Australian Institute of Criminology found that suspended sentences were an effective method of deterring and denunciating offenders, with offenders on a wholly suspended sentence having lower reconviction rates than those facing full-time imprisonment or partially suspended sentences. However, the paper also found that the failure to consistently prosecute breaches of suspended sentences reduced their effectiveness at deterrence, as well as potentially undermining the sentencing option’s legitimacy in the eyes of the wider community.
The legislation in New South Wales
Suspended sentences are prison sentences where the sentence for the convicted offender is partly or wholly suspended subject to certain conditions. However, it is important to understand that suspended sentences should not be perceived as an alternative to custodial sentences. This is because under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) a sentence cannot be suspended until it has actually been imposed, as it is only the execution of that sentence that is suspended. The primary legislation governing suspended sentences in New South Wales is section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The section states that:
(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:
(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and
(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.
(2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.
(3) Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section.
(4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment.
A court that imposes a sentence of imprisonment on an offender of a period less than two years, has the option of making an order suspending the whole of that sentence for the duration of its term. The court must then specify in the order that as a condition of their release from custody, the offender must enter into a good behavior bond for the term of the sentence, to prevent the sentence of imprisonment coming into effect. It should be noted that unlike Commonwealth offences, it is not possible to receive a partially suspended sentence of imprisonment for a State offence in New South Wales.
Breach of suspended sentence bonds
Where a convicted offender breaches the good behaviour bond for their suspended sentence, the court has an obligation under section 98(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to revoke it. It will do so unless it is satisfied that the failure to comply with the conditions of the bond was relatively trivial in nature, or that there are good reasons for excusing that failure such as extenuating circumstances.
If you have any questions about suspended sentences or just need any further information, please contact us.
Barclay Churchill Solicitors and Barristers
111 Elizabeth Street
Sydney NSW 2000