The state government has reaffirmed its commitment to phasing out suspended jail sentences, despite bulging prisons and the embrace of alternative sentencing options by Tasmanian courts over an 18 month trial period.
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In 2014 the Liberal party promised to progressively phase out suspended sentences so that "Tasmanians feel safe and so that sentencing reflects the gravity of the crime committed".
"Criminals see a suspended jail sentence as effectively no punishment at all, which is why we went to the election promising to phase them out and implement a greater range of alternatives," Attorney General Matthew Groom said in 2017.
Tasmania uses suspended sentences more than all other Australian jurisdictions.
The Legislative Council amended the Sentencing Amendment (Phasing Out Of Suspended Sentences) Bill 2017 in December 2018 effectively deferring the phase out of suspended sentences to allow an 18-month trial of alternative options of home detention and community correction orders.
Since then there have been 114 home detention orders and 1478 community correction orders handed down by judges and magistrates.
Attorney-General Elise Archer said the review would be conducted by the Sentencing Advisory Council of the present sentencing options from May, 2020.
"The Tasmanian majority Liberal government strongly believes suspended sentencing is fundamentally flawed and remains committed to phasing out suspended sentences," Ms Archer said.
"The review is to commence no sooner than 18 months after the commencement of home detention orders and community corrections orders in December 2018."
Suspended sentences were phased out in Victoria in 2014 and in New South Wales in 2018.
The state government's plan to phase out suspended sentences were initially opposed by the Law Society of Tasmania in 2014.
"The Law Society opposed the phasing out of suspended sentencing which it saw as a valuable sentencing option," president Crystal Garwood said.
"Suspended sentences are a useful mechanism that can operate as a deterrent to further offending which in turn increases the chances of rehabilitation of the individual."
Ms Garwood said the Law Society had been supportive of the introduction of a further range of alternate sentencing options, including home detention and community correction orders.
"These options can, in appropriate circumstances, provide protection to the community, reduce the pressure on the current resources within the prison system, and encourage individual rehabilitation prospects along with positive reintegration into the community," she said.
"It is relatively early days in the operation of the new sentencing alternatives and indications are that those new sentencing options are fulfilling the above aims.
"The society will be undertaking further research of its members to assist the review to evaluate the level of success."
The Sentencing Advisory Council is an advisory body formed to provide the Attorney-General with high level, independent advice on sentencing in Tasmania.
SAC Senior Legislative and Policy officer Sonia Weidenbach said the terms of reference for the review were currently being developed.
"The terms of reference must be brought to Parliament before the review can commence. Once the terms of reference are finalised and a formal request is made to the council, the council will engage a consultant to undertake the review," Ms Weidenbach said.
Despite significant use of the alternatives, suspended sentences are still being frequently used in the Magistrates and Supreme Courts in Launceston:
- A woman whose negligent driving resulted in the death of a 69 -year-old woman at Lebrina received a suspended three month jail sentence.
- A man convicted of Criminal Code assault received a wholly suspended ten month jail sentence.
- A 22-year-old man who unlawfully burnt a car received a wholly suspended eight month jail sentence and a two year Community Correction Order.
Offenders sentenced to a home detention order may be required to wear an ankle bracelet for electronic monitoring and submit to drug and alcohol testing.
A magistrate recently imposed a six-month home detention order for a man with a poor driving record who was found to be a suitable candidate.
While the 38-year-old had a good industrial record, he had fallen foul of drink-driving laws on a number of occasions including a two year excessive drink driving notice.
A Sentencing Advisory Council review in Tasmania in 2015 defined a suspended sentence as one in which the "sentence of imprisonment is not executed at the time when it is imposed by the court".
A fully suspended sentence, where the whole sentence is not activated, means the offender is immediately released into the community.
The SAC review found that suspended sentences were "seen as having an important place in the sentencing hierarchy for first-time offenders or offenders with limited criminal histories who had committed serious offences".
But the SAC said a public perception of leniency of suspended sentences may have resulted because only 55 per cent of sentences were activated after being breached.
"The failure to institute proceedings in almost half of all breached cases [45 per cent] continues to undermine the legitimacy of this sentencing measure," a review of sentencing between 2011-2014 found.
It would cost up to $50.9 million to fully replace suspended sentences the SAC found.
