Suspended Sentences
Proportionality and denunciation may require short terms of imprisonment, however short periods of imprisonment have been criticised as they are:
'most unlikely to have any rehabilitative effect. On the other hand it is potentially harmful; it may introduce [the offender] to hardened criminals whom he might not otherwise meet and to hard drugs and it may subject him to the risk of injury or degrading conduct' R v Hamilton [2000] QCA 286 at [19].
As such, the suspended sentence was born. This is an alternative way to serve a period of imprisonment.
In ordering a suspended sentence Kirby J explained the approach as involving two distinct steps:
'The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise.' Dinsdale v The Queen (2000) 202 CLR 321 at 346.
Under the Penalties and Sentences Act (Qld) 1992: Convictions are mandatory if a suspended sentence is made (s143).
Suspended sentences are only possible if the order of imprisonment is for 5 yrs or less (s144).
There are a number of relevant periods when considering suspended sentences:-
•the initial period of imprisonment/head sentence (that is how much gaol time they have been given)
•the “operational period” (that is the period for which the offender must stay out of trouble - this can be from the period of the head sentence up to 5 years)
•the period after which the imprisonment is suspended. That is, it can be suspended: wholly - for eg. 12 month sentence, suspended immediately for an operational period of 3 years; or partly - for eg. 18 month sentence, suspended after three months for an operational period of 2 years.
A breach of suspended sentence occurs if an offender is convicted of an offence (committed during the operational period) “for which imprisonment may be imposed” (s146).
Once the offender is before the correct court, the court can deal with the breach in the following ways (s 147):-
•order the operational period be extended (for not more than 1 yr); or
•order the whole or part of the initial period of imprisonment/head sentence be served.
Courts must order that the offender serve the whole period of imprisonment unless it would be unjust to do so (s 147(2)). To determine whether it is unjust the court considers (s 147(3)):-
•whether the breaching/subsequent offence is trivial (having regard to a number of factors);
•the seriousness of the original offence; and
•any other special circumstances.
Generally orders to serve the period of imprisonment are made concurrent to any other imprisonment (s148) but they can be made cumulatively (R v Gander [2005] QCA 45).