If you receive a suspended sentence, you will serve your time in jail while living in the community. In Victoria, suspended sentences are no longer possible unless the crime occurred before 1 September 2014. If you break the law after this date, you will not receive a suspended jail sentence.
Regarding Commonwealth charges, you can still receive something akin to a suspended term. This is known as a recognisance release order. Historical crimes can still receive suspended terms, but it depends on when the crime occurred and what type of crime it was.
In Victoria, you can still get a suspended sentence for some crimes, but the new rule might make it hard to figure out which crimes you can get this sentence for. You can get good legal help and information from the experienced lawyers at Josh Smith Legal during this process.
How A Suspended Sentence In Victoria Works
For a certain period (called the "operational period"), a court can suspend all or part of a prison term by using suspended sentences. The offender is free to live in the community during this time as long as they do not commit any further offences that would result in imprisonment.
If the offender breaches this condition, the suspended prison term will commence unless there are compelling reasons not to. The offender will also receive a term for the new crime. As of 16 January 2012, the Sentencing Amendment (Community Correction Reform) Act 2011 (Vic) abolished intensive correction orders, combined custody and treatment orders, community-based orders, and home detention as sentencing or post-sentencing options.
If someone broke the law after 16 January 2012, these orders could no longer be used to punish them:
- People who received intensive correction orders had to spend up to a year in jail in the community while following certain rules.
- Combined custody and treatment orders involved prison time (up to six months), followed by controlled treatment in the community (up to twelve months).
- Community-based orders allowed individuals to serve their terms outside of jail as long as they met certain requirements.
- Home detention required individuals to remain confined at home for a period (up to a year).
Section 27 of the Sentencing Act 1991 (Vic) outlines the situations in which a Magistrate or Judge can impose a suspended jail sentence.
A Magistrate or Judge who imposes a suspended sentence seeks to balance demonstrating the seriousness of the crime (or the likelihood of reoffending) with offering the individual an opportunity for rehabilitation by not sending them to jail. The victim impact statement is also a crucial consideration in the sentencing process, as it reflects the real-life consequences of the crime on the individuals affected.
The sentencing authority decides on a prison term and then specifies its commencement and duration. For example, "I order that you serve six months' imprisonment, wholly suspended for a period of eighteen months."
If someone commits a new offence punishable by jail time, they must first serve the suspended term unless they can demonstrate that exceptional circumstances have arisen since the suspension that make enforcing the sentence and ordering the person to serve it unfair.
The authority imposing this sentence must be confident in their decision as it involves jail time. Courts consider it very challenging to prove "exceptional circumstances." The circumstances claimed to be "exceptional" must have occurred after the sentence was suspended.
In the case of R v Stegall [2005] VSCA 278, the Victorian Court of Appeal stated that there must be situations so unusual that they were "beyond reasonable contemplation or expectation." However, it remains very difficult to persuade a Magistrate or Judge not to reinstate a suspended term. Exceptional circumstances do not have to be "beyond reasonable contemplation or expectation."
Proving "exceptional circumstances" will not rely on just one factor. One argument your criminal defence lawyer might present is that exceptional circumstances exist. These could include a delay in the prosecution case, a different type of breaching offence, recent rehabilitation, health setbacks, or a serious mental health condition that was not known at the time of the original sentence.
Order of Recognisance and Release
When someone has been sentenced to jail but given a "recognisance release order," they can be released on the condition that they adhere to certain rules, such as maintaining "good behaviour." These orders are only possible for Commonwealth offences. This means you must have been charged under a Commonwealth law, not a state law.
Conclusion
While Victoria has mostly done away with suspended sentences for crimes committed after 1 September 2014, they are still an important part of the sentencing system for crimes that happened before that date and for some Commonwealth crimes. People who are on recognisance release or have their sentences suspended must follow strict rules and show special circumstances to avoid having their sentences reinstated. The end of alternatives to jail time, such as intensive correction orders and home detention, shows a move towards harsher punishments. In the end, the goal of the justice system is to balance the severity of the crime with the opportunity for rehabilitation. This way, justice is served while maintaining the chance for change under close supervision.
