The Weight of the Sword of Damocles: A Reconviction Analysis of Suspended Sentences in Tasmania
| Date | 01 April 2009 |
| Published date | 01 April 2009 |
| Author | Lorana Bartels |
| DOI | 10.1375/acri.42.1.72 |
| Subject Matter | Articles |
72 THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 42 NUMBER 1 2009 PP. 72–100
Address for correspondence: Dr Lorana Bartels, Research Fellow, Criminology Research
Council based at the Australian Institute of Criminology, GPO Box 2944, Canberra ACT
2601, Australia. E-mail: lorana.bartels@aic.gov.au
The Weight of the Sword of Damocles:
A Reconviction Analysis of Suspended
Sentences in Tasmania
Lorana Bartels
Australian Institute of Criminology
Suspended sentences are a widely used but controversial sentencing
disposition. This ar ticle presents reconviction rates for all sentences
imposed over a 2-year period in the Tasmanian Supreme Court, as well as
examining different outcomes on the basis of key sentencing variables,
including offence type and prior record. The results demonstrate that
suspended sentences have comparatively low reconviction rates. The study
examines the relative frequency and seriousness of offending, thereby
overcoming a common criticism of reconviction studies that they are an
‘all-or-nothing’ measure, which does not take into account changes in
offending patterns. The study also avoids the common error of misattribut-
ing reconviction rates to incidences of offending that occurred prior to
the imposition of the relevant sentence by excluding pseudoreconvictions,
and the findings indicate the extent to which pseudoreconvictions can
skew reconviction results. In addition, the use of suspended sentences in
combination with other orders, and the reconviction outcomes of such
sentences, is analysed. The article concludes with a discussion of the impli-
cations of my findings for the further use of suspended sentences, and for
future research.
Keywords: suspended sentences, recidivism, pseudo-reconvictions
Suspended sentences are currently available in all Australian jurisdictions and are a
common but often controversial sentencing disposition. The so-called Sword of
Damocles is said to carry ‘a clear warning to the offender which he disregards at his
peril’ (Ashworth, 1983, p. 243). One of the core principles underpinning the use of
suspended sentences is that they are an effective deterrent because the consequences of
reoffending during the period of the sentence are known to the offender (Ancel, 1971;
Ashworth, 1983; Bottoms, 1981). This article explores this proposition by examining
reconviction patterns following different sentencing dispositions for all offenders
convicted in the Tasmanian Supreme Court over a 2-year period. The study makes a
number of methodological advances and considers the implications of my finding
s.
Literature Review
THE (F)UTILITY OF RECONVICTION STUDIES
Brody (1976) has observed that the ‘crudest way to test the effectiveness of a sentenc-
ing measure is to determine what proportion of persons do not offend again’ (p. 10),
but suggests that such statistics must be interpreted with caution. The assessment of
recidivism by reconviction rates has been criticised as simplistic and problematic for
assessing the effectiveness of sentences (Mair, 1995), while Friendship et al. (2004)
argue that there are major difficulties in using aggregate reconviction data to assess
sentence effectiveness. Other common criticisms are that reconviction rates are an
undercount of actual offending, are an all-or-nothing measure, are affected by changes
in police and prosecution practice and do not account for severity or frequency of
offence (Brody, 1976; Carcach & Leverett, 1999; Friendship, Beech, & Browne, 2002;
Harper & Chitty, 2005; Lloyd, Mair, & Hough, 1994; Mears, 1998; Moxon, 1998;
Shepherd & Whiting, 2006; Spicer & Glicksman, 2004).
There have been numerous reconviction studies and meta-analyses published
in recent years (e.g., Broadhurst & Maller, 1990; Brody, 1976; Brownlee, 1995;
Drabsch, 2006; Hayes, 2005; Holland, Pointon, & Ross, 2007; Jones et al., 2006;
Kinner, 2006; Lievore, 2004; MacKenzie, Browning, Skroban, & Smith, 1999;
Moxon, 1998; Prendergast et al., 2004; Soothill, Francis, & Ackerley, 1997; Spicer
& Glicksman, 2004; Spohn & Holleran, 2002; Tait, 2001; Triggs, 2005; Wilson,
Picheca, & Prinzo, 2007). There is some debate, however, over the value of compar-
ing reconvictions of different sentencing dispositions as a measure of effectiveness.
Broadhurst and Maller (1990), for example, considered it unclear whether differ-
ences in recidivism rates between custodial and noncustodial penalties are due to
selection factors or the utility of the noncustodial program. Goldblatt (1998) in
turn concluded that such studies have consistently indicated that any apparent
differences between reoffending rates are largely the result of other factors, such as
age and prior record, rather than the sentence itself.
In an extensive study by Lloyd, Mair and Hough (1994), published by the Home
Office in England, a follow-up of some 18,000 offenders found no clear correlation
between reconviction rates and penalty type. The Home Office recently declared
that although reoffending rates vary considerably by type of disposal, the disposal
given depends upon the characteristics of the offender that will also affect their
chances of reoffending. Accordingly, the relationship between reoffending and
disposal is complex (Cunliffe & Shepherd, 2007; Shepherd & Whiting, 2006).
Ancel wrote what is considered by many as the definitive text on suspended
sentences. He argued (1971) that the effectiveness of the suspended sentence
cannot be deduced from a simple statistical comparison of the recidivism rate of
those who have served their sentence, compared to those whose sentence has been
suspended. He went on to explain that because suspension is granted by reason of a
combination of favourable circumstances of the offence and the offender, there is
little value in a general comparison of the application of suspended sentences.
Notwithstanding the limitations of reconviction studies referred to above,
several commentators have concluded that reconviction rates are an appropriate
measure for assessing the ‘success’ of sentencing dispositions (e.g., Borzycki, 2005;
Brody, 1976; Friendship, Beech, & Browne, 2002; May, 1999; Hedderman &
73
RECONVICTION ANALYSIS OF SUSPENDED SENTENCES IN TASMANIA
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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