The Invisible Sanction: Suspended Sentences in Victoria 1985–1991
| Author | David Tait |
| DOI | 10.1177/000486589502800202 |
| Published date | 01 June 1995 |
| Date | 01 June 1995 |
| Subject Matter | Articles |
The Invisible Sanction:
Suspended Sentences in Victoria
1985-1991*
David Taitt
Do suspended prison sentences keep down the prison population? This
objective lay behind the introduction of this measure to Victoria in 1985.
British literature on suspended sentences suggests that this objective is
unrealistic, and that precisely the opposite happened in Britain: a(lagged)
blow-out in the prison population when suspended sentences became
activated. The initial and longer-term impact of suspended sentences is
tested with available data from magistrates courts, higher courts and prison
censuses. The evidence from these sources confirms that adecline in the
use of immediate imprisonment coincided with agrowth in the use of
suspended sentences. Some of this decline was temporary, as orders were
breached and prison sentences activated. However, the net effect was a
drop in the use of imprisonment. The avoidance of alagged increase in the
prison population was achieved by acombination of factors: short
operational periods, alow breach rate, and extensive use of discretion in
re-sentencing. Despite the apparent success of this sanction, it is largely
invisible from the public debate and its place in the range of sentencing
options is largely unacknowledged.
The year 1986 was a time of turmoil for the sentencing system in Victoria. In
1983 the Victorian prison population was reported to have risen 'dramatically'
from the previous year (Neilson and Associates cited in Starke 1988:3). The
length of prison sentences was under attack in the media (Starke 1988:34),
prison overcrowding was reported to be at an 'acute level', and the judiciary
were unhappy about the state of sentencing legislation and penalty structures
(Starke 1988:37). This was summed up by the Sentencing Committee which
was set up to deal with the problem:
Thus in 1985 the Victorian Government was faced with a situation where there was
strident criticism of the State's sentencing system from all quarters of the criminal
justice process. That criticism was bringing the existing sentencing practices into
disrepute with the public and the key participants in that system since expectations
that each segment had about the sentencing process were not being met (Starke
1988:35).
In 1986 another small and hardly remarked change was introduced.
Sections 20 to 24 of the Penalties and Sentences Act 1985 came into effect,
re-introducing suspended sentences as an option for the judiciary. It was
located between immediate imprisonment and the old probation and
community service orders now grouped together as Community Based Orders.
Meanwhile weekend detention was dropped. The option to suspend prison
sentences had been in the 1915 CrimesAct and retained in the 1928Act, but
*Received: February 21, 1994; accepted in revised form, 2 November 1994
tDepartment of Criminology, University of Melbourne, Parkville, Vic 3052
143
144 (1995) 28 The Australian and New Zealand Journal of Criminology
it had somehow been dropped from the 1958 Act. In the old Crimes Act,
sentences
of
up to 3 years could be suspended if the person had
not
been
previously convicted and there were other extenuating circumstances (Starke
1988:340). In the Penalties and Sentences Act 1985, the period of
imprisonment which could be suspended was somewhat shorter than in the old
legislation: prison sentences of up to 12 months for each offence could be
suspended. There was a presumption of concurrency, 1so in practice this meant
that 12 months was also the maximum sentence which could be suspended for
any offender.
The court could suspend the whole prison sentence, or part of it (between
aquarter and three-quarters: s 21(1)); and the sentence had to be in line with
what would have been appropriate if the sentence was not suspended: s 21(2).
If an offender committed another imprisonable offence within a specified
operational period of the suspended sentence, this was considered a breach.
There were no 'technical breaches' as there were no administrative
requirements to be met, such as reporting to correctional officials." The
operational period could be up to 12 months. The breach of the order was 'to
go back to the original court and the court was expected to restore the original
sentence 'unless it would be unjust to do so in view of all the circumstances
which have arisen since the suspended sentence was passed, including the
facts
of
the subsequent offence' (s 23(3)).
Judges and magistrates had the choice of restoring the sentence in whole or
in part, not restoring it, or imposing a fine. (Restoring meant activating the
prison sentence). Since the reason for the breach was re-conviction for further
offences, the sentencer could take into consideration information about the
new offences in determining an appropriate mix of penalties. The presumption
was that the original prison sentence would be activated unless it 'would be
unjust to do so' (s 23(3)).
This paper examines the impact of the re-introduction of suspended
sentences into the Victorian sentencing system. In particular, what impact did
the revived sentence have on the use of other sanctions, such as prison or
fines? And what impact did it have on the prison population? The Victorian
Sentencing Committee were concerned that in England there was a 'net
widening effect
...
under which suspended sentences were used as an
alternative to non-custodial options rather than imprisonment' . The
Committee argued that the Victorian approach 'did attempt to overcome some
of the problems that the English system had produced' (Starke 1988:322). So
was Victoria successful in avoiding the peril of net widening, while reducing
the use of imprisonment?
Weatherbum takes a fairly gloomy view about the possibility
of
intermediate sanctions making much of a dint in the prison population. His
analysis is focused on community-based orders but the argument would apply
equally well to suspended sentences. He argues that alternatives to prison
would divert, at best, only those likely to receive very short prison sentences;
thus the effect on the stock of prisoners (mostly with medium and longer-term
sentences) would be very small, At worst, and here his concern is shared with
the Sentencing Committee, it could increase the range of people considered
for custodial sentences (Weatherburn 1991:64). Previous studies of the
Victorian magistracy showed they made extensive use of their discretion
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