Why are suspended sentences increasing the prison population?

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Holding prison bars

Suspended sentences were reintroduced into NSW in the year 2000.

A suspended sentence is actually a good behaviour bond under section 12 of the Crimes (Sentencing Procedure) Act 1999.

You will only be eligible for a suspended sentence is you receive a prison sentence of 2 years or less.

This means that a preliminary step in the sentencing process will be for the court to decide the length of your prison sentence.

If it is 2 years or less, the court will then decide whether to suspend the sentence – which means that you are not sent to prison as long as you comply with the terms of the good behaviour bond, including the requirement that you do not commit any further criminal offences.

If you breach any of the terms of the bond, you will be called back to the court where a magistrate (in the Local Court) or judge (higher courts) will decide whether to revoke the bond and order that you serve a term of imprisonment.

In theory this sounds like a good way for people to avoid going behind bars and provides an incentive to behave.

Those who get the benefit of a suspended sentence will certainly know that their freedom is on the line if they reoffend.

The idea of is to warn people of how close they were to going to prison, while still giving them one last chance to keep their freedom and to prive that they can be productive members of society.

In theory, this approach would mean that those sentenced to short-term prison stints would not be corrupted by the jail culture, nor filling up the jails.

But in practice, suspended sentences may not be as successful as believed in so far as lowering our prison population is concerned.

The latest report from the Bureau of Crime Statistics and Research (BOCSAR) suggests that, counter-intuitively, suspended sentences may have actually increased the prison population, rather than decreasing it.

Don Weatherburn suspects that the reason is that suspended sentences are not always given appropriately.

Mr Weatherburn believes that they are instead given when people would have been given another non-custodial penalty, such as a community service order or intensive correction order.

Since there are increased amounts of suspended sentences given, there are also more breaches.

And breaches of good behaviour bonds don’t leave judges with a whole lot of leeway: the offender will normally have to go to prison unless they have a good excuse for breaching their bond.

According to section 98 of the Crimes (Sentencing Procedure) Act, when a good behaviour bond is broken, courts can: choose to do nothing; vary the conditions of the bond or revoke it.

But under section 98(3), the court has much less discretion when it comes to a suspended sentence.

That section directs that the bond must be revoked unless the breach was trivial or there are very good reasons for failing to comply.

This means that those who receive suspended sentences instead of, for example, community service, may have a high possibility of prison hanging over their head, when a suspended sentence may not have been the appropriate punishment to start with.

The statistics from BOCSAR suggest that going to prison for breaching a suspended sentence is common, and Mr Weatherburn believe that many people are being sent to prison when they would not have incurred such a harsh penalty if they had received the right (non custodial) sentence from the start.

BOCSAR found that for each additional ten people who were given suspended sentences, an addition three to four people ended up in prison.

This means that the more people who received a suspended sentence, the greater the number who ended up in prison.

This may also contribute towards explaining why the prison population is still growing despite crime rates generally declining.

Suspended sentences were scrapped in Victoria earlier this year on the back of a government initiative to ‘get tough on crime’.

The move seems to be a result of a perception that suspended sentences are no more than a ‘slap on the wrist’ for offenders.

Crimes that come with prison time, should equal prison time, according to the Victorian Attorney General, Robert Clark.

This view has resulted in non custodial options being rolled into one: a Community Correction Order which allows for a broad range of conditions including the power to supervise, to order community service, to impose curfews and compulsory treatment or rehabilitation.

While removing suspended sentences in NSW altogether may be a drastic step, allowing them to continue functioning in their current form may not be desirable, either.

Some might feel that a system designed to keep people out of the prison system that actually ends up creating more inmates is counterproductive and in need of reform.

What are your thoughts – are suspended sentences a good thing? Or is there a better way to go?

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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