Disbelieving Suspense: Suspended Sentences of Imprisonment and Public Confidence in the Criminal Justice System

Date01 April 2009
AuthorArie Freiberg,Victoria Moore
Publication Date01 April 2009
VOLUME 42 NUMBER 1 2009 PP. 101–122
Address for correspondence: Professor Arie Freiberg, Faculty of Law, Monash University, PO
Box 12, Clayton VIC 3800, Australia. E-mail: Arie.Freiberg@law.monash.edu.au
Disbelieving Suspense: Suspended
Sentences of Imprisonment and Public
Confidence in the Criminal Justice System
Arie Freiberg and Victoria Moore
Sentencing Advisory Council, Australia
This article examines the ambivalent nature of suspended sentences
of imprisonment and public reactions to them. In Australia, and
elsewhere, they have created confusion, have been in and out of political
and judicial favour and have been repeatedly modified. The article
discusses the Victorian Sentencing Advisory Council’s review of sus -
pended sentences, with particular reference to public perceptions of the
sentence and the council’s various proposals for reform. It examines, in
particular, four issues relating to this sanction:(1) the meaning of punish-
ment, (2) the severity of punishment, (3) truth in sentencing and the
nature of substitutional sanctions and (4) the appropriateness of the
sanction for specific offences. The article concludes with a discussion as to
whether public perceptions matter in the broad sentencing context and
notes that public perceptions are only one of a number of factors driving
sentencing reform.
Keywords: suspended sentences, public confidence, sentencing
There are a number of sanctions that strongly divide communities. Capital punish-
ment, corporal punishment and mandatory sentencing are amongst the most
controversial. Suspended sentences appear to especially polarise opinion and
provoke high emotion. Views are widely divergent and strongly held. Unlike
sanctions such as imprisonment, fines, probation and community service, suspended
sentences have been in and out of favour in many jurisdictions over time, partly for
criminological reasons (such as their impact upon prison populations), but often
because of public perceptions about their role in the sentencing hierarchy.
This article reports on an inquiry conducted by the Victorian Sentencing
Advisory Council between 2004 and 2008 into suspended sentences that arose from
public concerns over a suspended sentence of imprisonment imposed for the offence
of rape in 2004 (R v Sims [Unreported, County Court of Victoria, April 1, 2004]). It
examines the role of the Sentencing Advisory Council in the political/criminologi-
cal discourse in Victoria and the relationship between suspended sentences and
public opinion.
The Background: A Public Outcry
In Melbourne in April 2004, a young man was convicted of one count of aggravated
burglary, two counts of lingual and digital rape and one count of indecent assault
and was given a sentence of 2 years and 9 months imprisonment suspended for 3
years. On appeal against the leniency of the sentence (Director of Public Prosecutions
v Sims [2004] VSCA 129), judgment in which was delivered in July 2004, the
Victorian Court of Appeal upheld the sentence by a 2:1 majority. The sentence was
condemned in the popular press. A public protest by nearly 10,000 people on the
steps of the Victorian Parliament House called for mandatory minimum sentences
and the restriction or abolition of suspended sentences.1
The Response
The political response was a reference by the Attorney-General to the Victorian
Sentencing Advisory Council (SAC) under section 108C(1)(f) of the Sentencing
Act 1991 (Vic) requesting advice on the current use of suspended sentences and
whether ‘reported community concerns about their operation’ indicated a need for
reform, and if so, what those reforms might be. The Attorney expressed particular
interest in the views of the community, including victims of crime, on this issue.
This was significant not only because of the overt reference to the community’s
angst over what was perceived by some to be an inadequate sentence, but the refer-
ence to the council was consistent with its role as a mechanism for incorporating
community views into the development of sentencing policy both through its
membership, which is diverse,2and its consultative processes.
The Victorian Sentencing Advisory Council (SAC) was established in July
2004 to ‘bridge the gap between the community, the courts and government by
informing, educating and advising on sentencing issues’ and was a product of a
reformist government that was keen to project itself as responsive to community
concerns (Freiberg, 2008). The Council has a legislative mandate to ‘gauge public
opinion’ and involving the community in the development of sentencing policy was
one of the reasons the council was established.
The remainder of this article examines the problematic nature of suspended
sentence, the role of the Council in the Victorian political landscape and questions
whether suspended sentences undermine public confidence in the justice system.
This latter question concerns not only the relationship between the courts and the
public, but also the relationships between different forms of punishment, between
punishment and offenders and between the various purposes of punishment.
A Volatile and Paradoxical Sanction
The suspended sentence of imprisonment forms part of a constellation of sanctions
or processes that include conditional and deferred sentences.
A suspended sentence of imprisonment3is a sentence of imprisonment that is
imposed but not executed, with or without supervision and with various degrees and
levels of conditionality. It can vary in length, in its operational period,4the options
available to a court on breach and as to whether it can be wholly or partly suspended,
that is, whether it follows a period of actual imprisonment.

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