Modern diversion or colonial hangover? The history and development of suspended sentences in South Australia
| Published date | 01 June 2016 |
| DOI | 10.1177/0004865815570679 |
| Date | 01 June 2016 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
2016, Vol. 49(2) 240–257
Modern diversion or colonial
! The Author(s) 2015
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hangover? The history and
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DOI: 10.1177/0004865815570679
development of suspended
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sentences in South Australia
Evan Smith
School of International Studies, Flinders University, Adelaide, Australia
Abstract
Suspended sentences, although controversial, are used in most jurisdictions across Australia
in some form, with most states and territories having introduced this sentencing option in the
1980s and 1990s. However, South Australia’s legislation concerning suspended sentences is
much older (having been introduced in 1969) and is also based on sentencing legislation that
existed in the Victorian and Edwardian eras. This article will argue that because the legislation
concerning suspended sentences in South Australia is much older (and based on even older
legislation), the way that this sentencing option operates is much different from other
Australian jurisdictions. Based on Victorian probation legislation, suspended sentences have
a flexibility in South Australia, which has meant that other forms of alternative sentencing
(such as community orders and home detention) are not used in the State.
Keywords
Colonial legislation, legal history, probation, sentencing laws, South Australia, suspended
sentences
Over the past few years, there has been a concern in Australia, particularly at state
government level and in the mainstream media, about violent repeat offenders in the
community who have been able to continue to commit crimes while on parole, home
detention or a suspended sentence. This caused several state governments to push for a
revision of their parole and sentencing systems, including South Australia, Victoria and
Tasmania. The Victorian government abolished the option of suspended sentences for all
offences prosecuted in the Supreme and County Courts in 2011 (McDonnell & Farrell
2012, pp. 239–240), and in September 2014, suspended sentences were also abolished in
Victorian Magistrates Courts (The Guardian, 1 September 2014). In July 2014, the
Tasmanian Attorney-General also announced that the State’s Sentencing Advisory
Council would investigate the abolition of suspended sentences and options for
Corresponding author:
Evan Smith, School of International Studies, Flinders University, GPO Box 2100, Adelaide, SA 5001, Australia.
Email: evan.smith@flinders.edu.au
Smith
241
alternative forms of non-custodial sentencing, after the Tasmanian state government
committed to their abolition at the last election (The Mercury, 16 July 2014).
Meanwhile, in 2013, the South Australian government chose to abolish the option
for suspended sentences for ‘a serious and organised offence’ or ‘if an adult offender
is being sentenced for a serious offence of violence’ and received a suspended sen-
tence for a similar offence in the previous three years, except in ‘exceptional circum-
stances’ (Hansard, House of Assembly, 5 June 2013, p. 5888) – although this was
extended to a five year period in the final version of the Criminal Law (Sentencing)
(Suspended Sentences) Amendment Act 2013. The South Australian Attorney-
General, John Rau, argued in Parliament that the term ‘exceptional circumstances’
was inserted to replace the term ‘good reason’ to create a ‘higher threshold for the
offender to meet’ (Hansard, House of Assembly, 5 June 2013, p. 5889).1 Despite these
reforms, the Liberal opposition declared that if elected in 2014, they would ‘look at a
much broader reform of suspended sentences’ (Hansard, House of Assembly, 24 July
2013, p. 6605), reflecting a shift amongst the Liberals at state level nationwide
towards a ‘tough on crime’ approach. Warner and Spiranovic (2014, p. 141) have
noted that across Australia suspended sentences are ‘commonly on the law reform
agenda’ due to their ‘contentious’ use and value. Notwithstanding the recent criti-
cisms from both sides of government, suspended sentences have remained as a sen-
tencing option in South Australia since 1969, with no indication that they will be
completely abolished in the near future.
For the past 40 years, the suspended sentence has been a constant yet controversial
feature in sentencing across all Australian jurisdictions. Freiburg and Moore (2009, p.
101) have stated that, historically, suspended sentences have had the ability to ‘strongly
divide communities’, and quite often due to the public’s perception of their use, ‘sus-
pended sentences have been in and out of favour in many jurisdictions over time’.
However, as Bartels (2007, p. 113) points out, suspended sentences are seen as useful
by many in the system as they ‘enable the court to denounce the seriousness of an offence
through the formal imposition of a sentence of imprisonment, while allowing for a
merciful response to the circumstances of the offender.’ In South Australia, the sus-
pended sentence has existed as a sentencing option for courts since 1970 and, in practice,
has been implemented by the courts in a fairly distinct way when compared with other
states and territories.
But the suspended sentence also has a much longer history in South Australia, being
first introduced into South Australian legislation in 1886 and existing as a sentencing
option until 1913. This preceding colonial legislation is partially the reason why when
the Steele Hall government reintroduced the suspended sentence in 1969 that it was
inserted into the legislation in a way that differed from all other states and territories.
This paper will examine how the concept of the suspended sentence developed in South
Australia since the colonial era and how it differs in operation than suspended sentences
in other Australian jurisdictions. It will argue that the suspended sentence was placed in
a distinct section of the sentencing legislative framework by the South Australian gov-
ernment, which differed from other Australian states when they reintroduced suspended
sentences in the 1980s and 1990s, and that this distinction was based on how suspended
sentences had operated historically since their introduction as a form of probation in the
late Victorian era.
242
Australian & New Zealand Journal of Criminology 49(2)
Victorian era criminal justice and the Offenders Probation
Act: 1887–1913
As Foucault (1991, p. 131) has argued, the ‘enlightened’ reforms of the criminal justice
system in the 19th century did not necessarily mean a more ‘gentle’ form of punishment.
Torture (technically prohibited in the UK since 1709) and the arbitrary infliction of pain
upon the offender were replaced with other forms of ‘physical exercise of punishment’,
namely imprisonment, isolation and hard labour. Vanstone (2008, p. 744–745) has
shown that an antidote to this harsh reality of prison life in the late Victorian era was
the development of the idea of probation and ‘the potential for reform in first offenders
and the young’. White (1983) has demonstrated that the mid-1880s saw penal reform
embrace this idea of probation across the British Empire and English-speaking world,
with Massachusetts, New Zealand, Queensland, South Australia and New South Wales
all introducing similar legislation. Vanstone (2008, p. 735) similarly wrote, ‘[b]etween
1878 and 1920, probation was placed upon the statute books in countries of
North and South America, Europe, Africa and Asia.’ This paper is concerned with a
particular form of probation – the suspended sentence – and how it was applied in
another area not mentioned in Vanstone’s introduction, Australia, particularly South
Australia.
While the few references in the literature on suspended sentences in Australia acknow-
ledge that the sentencing option was introduced into the Offenders Probation Amendment
Act (SA) by legislation in 1969 (Dengate 1978; Daunton-Fear 1980a, 1980b), it is rarely
acknowledged that South Australia first introduced the idea of the suspended sentence in
1887 with the first Offenders Probation Act. This demonstrates that at this time, the
concept of the suspended sentence was seen as a form of probation. This idea of pro-
bation often incorporated both what would be considered now as good behaviour bonds
(also known as recognizances) and suspended sentences and was primarily concerned
with reforming first time offenders (White 1983, p. 137).
Section 3 of the Offenders Probation Act 1887 stated that for a person convicted of a
minor offence for the first time and where the sentence of imprisonment was more than
three months, there were two options:
. For males under the age of 16, the offender could be whipped up to three times, with
no more than 25 strokes at each whipping (section 3 (1)).
. For all other offenders, the offenders could have their sentence suspended and enter
into a recognizance with the Court (section 3 (2)).
This subsection of the Act stated that a suspended sentence and recognizance depended
upon the good behaviour of the offender for the length of the sentence or, where the
sentence of imprisonment was between three and six months, then the recognizance was
to be six months. Section 5 required the offender to report at least once every three
months to the principal police officer in the area where they were convicted and section 6
outlined the conditions that constituted a breach of the recognizance:
. Failure to report to the police
. Providing a false name or address to the authorities
Smith
243
. Conviction of any offence...
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