SUSPENDED SENTENCES – A JUDICIAL PERSPECTIVE

SUSPENDED SENTENCES – A JUDICIAL PERSPECTIVE∗ LORANA BARTELS The suspended sentence is a widely used but often misunderstood sentencing disposition. This article presents the findings of in-depth interviews with Tasmanian judges and magistrates on their use of suspended sentences. These interviews provide an invaluable source of information on judicial views on a range of issues pertaining to the use of such sentences. The findings reveal inconsistent views on the main objective of suspended sentences and the difficulty experienced in applying the two-stage process for suspending the sentence. Issues with explaining and communicating the sentence and the role of public opinion and the media are explored. The appropriate response to breaches of sentences is discussed and the policy and reform implications of the research are considered. I INTRODUCTION The suspended sentence is a controversial sentencing disposition currently available in all Australian jurisdictions.1 The availability of such sentences was recently restricted in Victoria, with provisional recommendations for abolition,2 while the recent sentencing review by the Tasmania Law Reform Institute (TLRI) has advocated numerous changes in respect of their use in Tasmania, based in part on the research findings reported in ∗  1 2 An earlier version of this paper was presented on 8 February 2008 at the Sentencing Conference hosted by the National Judicial College of Australia in Canberra and is based on research conducted for my PhD, Sword or Feather? The Use and Utility of Suspended Sentences in Tasmania. The research was undertaken at the University of Tasmania with funding from the Australian Research Council (LP0349240). BA LLB LLM Grad Dip Leg Prac PhD, Criminology Research Council Research Fellow, Australian Institute of Criminology. Email: . The comments of Professor Kate Warner, Professor Arie Freiberg, Professor Julian Roberts, Magistrate George Zdenkowski and Terese Henning on earlier drafts of the research reported in this article are gratefully acknowledged. The views contained in this article and all errors are the author’s own. Note that there is considerable variation in the legislation and case law regulating suspended sentences in Australia and this article should be read in that context. For background, see L Bartels, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Criminal Law Journal 113. The Sentencing Advisory Council recently completed a long-term review of suspended sentences. In the first part of its final report, the Sentencing Advisory Council recommended phasing out suspended sentences in Victoria by 2009: Sentencing Advisory Council, Suspended Sentences: Final Report - Part 1 (2006) Recommendation 1. However, the Council subsequently revised its position to suggest that the power to impose suspended sentences should be reviewed following other recommendations to intermediate sanctions as set out in the second stage of its final report: Sentencing Advisory Council, Suspended Sentences and Intermediate Sentencing Orders, Suspended Sentences Final Report—Part 2 (2008) [2.107]-[8] and Recommendation 2-1. 44 Vol 9 No 1 (QUTLJJ) Suspended Sentences - A Judicial Perspective this article and other related research.3 In light of the ambivalent nature of suspended sentences and public reactions to such sentences,4 this article presents a timely and vital contribution to better understanding this sentencing disposition and sentencing generally. This article presents the findings of face-to-face interviews with 16 Tasmanian judicial officers on their use of suspended sentences. The interviews were conducted between August 2006 and March 2007. The interview questions focussed principally on wholly suspended sentences and were designed to enable respondents to express their views on a broad range of topics relating to such sentences. In particular, the discussion presented here examines some of the key arguments surrounding the use of such sentences, including: • the purposes and objectives of suspended sentences; • the process for imposing a suspended sentence; • whether the use of suspended sentences contributes to sentence inflation by judicial officers increasing the term of the sentence; • the role of information and communication with offenders, the court and the public; • the role of public opinion; and • difficulties in dealing with breaches. II PREVIOUS JUDICIAL RESEARCH ON SENTENCING Almost as much appears to have been written on the dearth of information on judicial views on sentencing as on the findings of such research,5 with some even arguing that there is in fact little to be gained from such research.6 Mackenzie observed in her recent book, How Judges Sentence, that ‘[w]hat judges think about sentencing and how they approach this task are largely missing links in sentencing research’,7 suggesting that ‘[t]he voices of those who actually sentence offenders are rarely heard, despite the fact that they have much to add to the knowledge and debate in the area’.8 Ashworth has similarly stated that: 3 4 5 6 7 8 See Tasmania Law Reform Institute (TLRI), Sentencing, Final Report No 11 (2008) 151-73. For background information, see Bartels, ‘The Use of Suspended Sentences in Australia’, above n 1; L Bartels, Sword or Feather? The Use and Utility of Suspended Sentences in Tasmania, Unpublished PhD Thesis, University of Tasmania (2008); L Bartels, ‘The Weight of the Sword of Damocles: A Reconviction Analysis of Suspended Sentences in Tasmania’ (2009) Australian and New Zealand Journal of Criminology 72; L Bartels, ‘Suspended Sentences in Tasmania: Key Research Findings’, Trends and Issues in Criminal Justice, Australian Institute of Criminology (in press); L Bartels, ‘To Suspend or Not to Suspend – A Qualitative Analysis of Sentencing Decisions in the Supreme Court of Tasmania’, University of Tasmania Law Review (in press). See A Freiberg and V Moore, ‘Disbelieving Suspense: Suspended Sentences of Imprisonment and Public Confidence in the Criminal Justice System’ (2009) Australian and New Zealand Journal of Criminology 101. See for example R Hood, Race and Sentencing (Oxford University Press, 1992) 37; A Ashworth et al, Sentencing in the Crown Court: Report of an Exploratory Study (Centre for Criminological Research, University of Oxford, 1984) 5; A Ashworth, ‘The Role of the Sentencing Scholar’ in C Clarkson and R Morgan (eds), The Politics of Sentencing Reform (1995) 251, 263; A Ashworth, ‘European Sentencing Traditions’ in C Tata and N Hutton (eds), Sentencing and Society (2002) 219, 232. See J Pierce, ‘Research Note: Interviewing Australia’s Senior Judiciary’ (2002) 27 Australian Journal of Political Science 131, 132; M Heumann, ‘Interviewing Trial Judges’ (1989-90) 73 Judicature 200. G Mackenzie, How Judges Sentence (Federation Press, 2005) 2. Ibid 11. 45 BARTELS (2009) the social importance of sentencing is a powerful (...truncated)