Jurors’ views of suspended sentences
| Date | 01 April 2014 |
| Author | Kate Warner,Caroline Spiranovic |
| DOI | 10.1177/0004865813497731 |
| Published date | 01 April 2014 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
2014, Vol. 47(1) 141–159
!The Author(s) 2013
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DOI: 10.1177/0004865813497731
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Article
Jurors’ views of suspended
sentences
Kate Warner and Caroline Spiranovic
University of Tasmania, Australia
Abstract
This article examines jurors’ views on sentencing from trials returning guilty verdicts where
the offender has been sentenced to a wholly suspended sentence or where jurors have
suggested a wholly suspended sentence as the most appropriate sentencing outcome. It
challenges the poor public image of suspended sentences and provides further evidence
that informed judgement on sentencing issues reveals a public that is not as punitive as is
commonly portrayed. However, rather than claiming that the findings support the intrinsic
worth of wholly suspended sentences, it is suggested that they indicate a desire to avoid
immediate prison sentences in many cases. In other words it shows there is considerable
support for non-custodial options in the kinds of cases that attract wholly suspended
sentences, even in the case of some crimes of violence.
Keywords
jurors’ perceptions, jury studies, public opinion, sentencing, suspended sentence
Introduction
Versions of suspended sentences have been used in Europe since the nineteenth century
(Ancel, 1971: 13–14) and later they travelled to common law jurisdictions including
Australia, the United Kingdom, the United States, Canada and New Zealand
(Freiberg and Moore, 2009: 103). However, they have had a chequered history
(Freiberg and Moore, 2009: 103). They were abolished in New Zealand in 2002, a
decade after their introduction. Canada introduced conditional sentences of imprison-
ment in 1996 and then in 2007 limited their use in relation to serious offences (Freiberg
and Moore, 2009: 103). In the United Kingdom suspended sentences have been a sen-
tencing option in some form or other since 1967. Restrictions on their use in all but
exceptional circumstances were removed with the introduction of suspended sentence
orders in 2005 (Ashworth, 2010: 301).
In Australia, suspended sentences were introduced earlier than in most other common
law countries. They are currently available in all states and territories although their use
and value is contentious. For this reason they are commonly on the law reform agenda.
Corresponding author:
Kate Warner, University of Tasmania, Private Bag 89, Hobart 7001, Australia.
Email: Kate.Warner@utas.edu.au
In Victoria they were abolished (in 1958) reintroduced (in 1986) and then modified a
number of times. Their abolition or gradual phasing out was recommended by the
Sentencing Advisory Council in 2006 but, in the final stage of the reference, this recom-
mendation was deferred until reform in relation to intermediate sanctions has been
implemented and tested (Sentencing Advisory Council, 2008: 45–46). Currently they
cannot be given in the case of certain serious offences.
1
In New South Wales they
were abolished in 1974 and reintroduced in 2000 following the recommendation of the
New South Wales Law Reform Commission (Sentencing Council, 2011: 7). Their use
was reviewed by the Sentencing Council in 2011. In South Australia their availability in
relation to sex offences is under consideration. In Tasmania, the Tasmania Law Reform
Institute’s Sentencing Report reviewed the use of suspended sentences and recommended
their retention with a number of modifications, including giving the sanction more puni-
tive bite and reforming breach proceedings (Tasmania Law Reform Institute, 2008). In
the Australian Capital Territory, suspended sentences were the first reference of the ACT
Law Reform Advisory Council (2010). In responding to the report the Government
resolved to retain them as a sentencing option (Legislative Assembly for the ACT, 2011).
Suspended sentences seem to have a poor public image
Suspended sentences have attracted academic criticism on the grounds they are confus-
ing and involve double counting of mitigating factors (Thomas, 1979: 244). They have
also been described as: a ‘legal paradox’ (Sanders and Roberts, 2000: 199); ‘volatile and
contradictory’ (Freiberg and Moore, 2009: 103); inherently susceptible to ‘malfunction’
(Ashworth, 2010: p. 302); and even an ‘illusory evil’ (Bagaric, 1999). This is largely
because of the disjunction between the legal view of suspended sentences and the
public view. From the legal perspective a wholly suspended sentence of imprisonment
is a sentence of imprisonment and a significant penalty. In Australia, the High Court has
determined that deciding upon a suspended sentence involves a three-step process:
determining that no sentence other than imprisonment is appropriate, determining
what the appropriate term of imprisonment is, and only then deciding whether or not
to suspend it.
2
The UK Sentencing Council’s guideline requires a similar reasoning
sequence (Sentencing Guidelines Council, 2004: 25). So the legal position is that a sus-
pended sentence is a custodial sentence. It is not merely another non-custodial senten-
cing option; rather it is the penultimate penalty known to the law.
In stark contrast to the legal position, a common perception of suspended sentences is
that they are a let-off with no serious consequences for many offenders (Ashworth, 2010:
301). The media commonly represent the offender as ‘walking free’ or ‘getting off’ when
a sentence of imprisonment is wholly suspended (Freiberg and Moore, 2009: 109). When
broadcaster John Laws was given a suspended sentence for contempt, one commentator
described him as ‘being thrashed with a feather’ (Warner, 2000: 362). British studies
which have asked respondents to rank suspended sentences in a penalty scale consist-
ently rank suspended sentences as a lenient sentencing option (Sebba and Nathan, 1984;
Walker and Marsh, 1988: 60). In a South Australian study which explored victims’
views on suspended sentences, victims ranked suspended sentences as the least severe
community-based sentencing option (Pearson and Associates, 1999: 40, cited by
Freiberg, 2002: fn 139). The Victorian Sentencing Advisory Council’s reference on
142 Australian & New Zealand Journal of Criminology 47(1)
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