Disbelieving Suspense: Suspended Sentences of Imprisonment and Public Confidence in the Criminal Justice System

Article excerpt

This article examines the ambivalent nature of suspended sentences of imprisonment and public reactions to them. In Australia, and elsewhere, they have created confusion, have been in and out of political and judicial favour and have been repeatedly modified. The article discusses the Victorian Sentencing Advisory Council's review of suspended sentences, with particular reference to public perceptions of the sentence and the council's various proposals for reform. It examines, in particular, four issues relating to this sanction: (1) the meaning of punishment, (2) the severity of punishment, (3) truth in sentencing and the nature of substitutional sanctions and (4) the appropriateness of the sanction for specific offences. The article concludes with a discussion as to whether public perceptions matter in the broad sentencing context and notes that public perceptions are only one of a number of factors driving sentencing reform.

Keywords: suspended sentences, public confidence, sentencing

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There are a number of sanctions that strongly divide communities. Capital punishment, corporal punishment and mandatory sentencing are amongst the most controversial. Suspended sentences appear to especially polarise opinion and provoke high emotion. Views are widely divergent and strongly held. Unlike sanctions such as imprisonment, fines, probation and community service, suspended sentences have been in and out of favour in many jurisdictions over time, partly for criminological reasons (such as their impact upon prison populations), but often because of public perceptions about their role in the sentencing hierarchy.

This article reports on an inquiry conducted by the Victorian Sentencing Advisory Council between 2004 and 2008 into suspended sentences that arose from public concerns over a suspended sentence of imprisonment imposed for the offence of rape in 2004 (R v Sims [Unreported, County Court of Victoria, April 1, 2004]). It examines the role of the Sentencing Advisory Council in the political/criminological discourse in Victoria and the relationship between suspended sentences and public opinion.

The Background: A Public Outcry

In Melbourne in April 2004, a young man was convicted of one count of aggravated burglary, two counts of lingual and digital rape and one count of indecent assault and was given a sentence of 2 years and 9 months imprisonment suspended for 3 years. On appeal against the leniency of the sentence (Director of Public Prosecutions v Sims [2004] VSCA 129), judgment in which was delivered in July 2004, the Victorian Court of Appeal upheld the sentence by a 2:1 majority. The sentence was condemned in the popular press. A public protest by nearly 10,000 people on the steps of the Victorian Parliament House called for mandatory minimum sentences and the restriction or abolition of suspended sentences. (1)

The Response

The political response was a reference by the Attorney-General to the Victorian Sentencing Advisory Council (SAC) under section 108C(1)(f) of the Sentencing Act 1991 (Vic) requesting advice on the current use of suspended sentences and whether 'reported community concerns about their operation' indicated a need for reform, and if so, what those reforms might be. The Attorney expressed particular interest in the views of the community, including victims of crime, on this issue. This was significant not only because of the overt reference to the community's angst over what was perceived by some to be an inadequate sentence, but the reference to the council was consistent with its role as a mechanism for incorporating community views into the development of sentencing policy both through its membership, which is diverse, (2) and its consultative processes.

The Victorian Sentencing Advisory Council (SAC) was established in July 2004 to 'bridge the gap between the community, the courts and government by informing, educating and advising on sentencing issues' and was a product of a reformist government that was keen to project itself as responsive to community concerns (Freiberg, 2008). …