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The benefits of imprisonments are very few has an individual has a much higher chance of re-offending again. Not only this but there is also a higher chance of negative influence from other inmates that could potentially worsen the individuals mind set and offense. Imprisonment also has an impact on the younger individuals and children within the offenders family or community that could lead to a cycle of offense from the younger ones who are coming up. It can also take the breed-winner of the family making circumstance more difficult for the individuals family. 

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The benefits of imprisonments are very few has an individual has a much higher chance of re-offending again. Not only this but there is also a higher chance of negative influence from other inmates that could potentially worsen the individuals mind set and offense. Imprisonment also has an impact on the younger individuals and children within the offenders family or community that could lead to a cycle of offense from the younger ones who are coming up. It can also take the breed-winner of the family making circumstance more difficult for the individuals family. 

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-Blessing

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In the Sentencing Advisory Council Tasmania’s: Mandatory Treatment for Drug and Alcohol Offenders Research Paper No.2, under 2.4.1 EFFECTIVENESS OF DRUG AND ALCOHOL REHABILITATION PROGRAMS they state

‘Evidence indicates that community-based drug abuse treatment can reduce drug use and offending, with research indicating that drug courts are effective in reducing recidivism for adult offenders.’

‘Therapeutic communities in the prison context are where a group is separated from the general prison population’ These sorts of programs can take 6-12 months, the model aims to address the larger psychological problems beyond their drug dependence.

In summary they state ‘Therapeutic communities have been found to reduce reoffending upon release and also to reduce drug use. Community-based therapeutic communities have been effective in reducing criminal behaviour.’

Source:

https://www.sentencingcouncil.tas.gov.au/__data/assets/pdf_file/0016/400147/SAC-Research-Paper-No.-2-Mandatory-treatment-for-alcohol-and-drug-affected-offenders.pdf

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Problem-solving programs are becoming an effective tool in the legal system. While Australia seems to be spending $16 billion a year on criminal justice, it is not having the effect the money should be buying. Programs such as Court Mandated Drug Diversion program, Diversion List, Family Violence List and Young Justice Specialist List are all programs used to rehabilitate, support and care and from both offenders and victims. While criminals of the justice system should be punished for their actions, imprisonment is not the only option and does not always better the community, victims or offender. DTO’s are a perfect example of an alternative sentencing option to assist those with drug addictions that contribute to significant reoffending. MHDL which focusses on mental illness, intellectual disability or acquired brain injury who appear in lower courts. The Youth Court is also an effective and therapeutic measure used to approach young offenders and help assist and refer them to relevant services (e.g. education and family support services). Family Violence Lists are another therapeutic approach in dealing with family violence, that support the offender and the victim. -Alayna

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There are concerns regarding the difficulties in implementing a more therapeutic approach to justice as there may be limited treatment and support resources within the community, therefore referring people in these cases to treatment or support will not be beneficial nor effective if the necessary resources are not available to assist the offender. However, a particular approach to this issue includes identifying a personnel member who can follow up on finding appropriate service providers for an offender and asking them to facilitate any referrals. For example, a lawyer, and as an sidenote, it is important to include a lawyer in a therapeutic approach as Magistrates run the potential risk of deskilling lawyers if the magistrate or the court does too much. 

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There are concerns regarding the difficulties in implementing a more therapeutic approach to justice as there may be limited treatment and support resources within the community, therefore referring people in these cases to treatment or support will not be beneficial nor effective if the necessary resources are not available to assist the offender. However, a particular approach to this issue includes identifying a personnel member who can follow up on finding appropriate service providers for an offender and asking them to facilitate any referrals. For example, a lawyer, and as an sidenote, it is important to include a lawyer in a therapeutic approach as Magistrates run the potential risk of deskilling lawyers if the magistrate or the court does too much. 

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One effective type of therapeutic treatment order is a home detention. A home detention may be for a period up to 18 months, and are imposed under certain conditions. These include submitting to drug/alcohol testing and electric monitoring, engaging in required counselling or treatment, permit the police to search the premises, and comply with probation officers. This sentence allows the offender to get their lives back on track, whilst still showing denunciation and protection to the community.
- Poppy

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Home detention orders allow courts to impose custodial sentences that allow offenders to get their lives on track and become productive members of society.

What does home detention entail?

A home detention order may be made for a period of up to 18 months. A home detention order is subject to certain core conditions. These are:

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Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

In December 2018, the Tasmanian government passed legislation allowing courts to sentence offenders to home detention orders. Under Part 5A of the Sentencing Act 1997, an offender can now be ordered to be at a specified premise and to comply with strict conditions including electronic monitoring.

Home detention orders allow courts to impose custodial sentences that allow offenders to get their lives on track and become productive members of society.

What does home detention entail?

A home detention order may be made for a period of up to 18 months. A home detention order is subject to certain core conditions. These are:

* Not to commit an offence punishable by imprisonment;
* To reside at the home detention premises;
* Be at those premises at the times specified by the order;
* Permit police or probation officers to enter those premises;
* Permit the police to search the premises, conduct a frisk search of the offender and take a sample of a substance found at the premises or on the offender's person;
* Comply with the reasonable and lawful directions of probation officers;
* Submit to electronic monitoring;
* Submit to drug/alcohol testing as required;
* Engage in personal development training, counselling and treatment as directed.

If the court makes a home detention order and does not require the offender to submit to electronic monitoring, it must specific in the order the reasons the offender is not required to be electronically monitored. A home detention order may also impose special conditions, such as to abstain from alcohol or to take prescribed medication.

When is it ok not to be at the premises?

The Sentencing Act provides that an offender may not be at the premises of the home detention order if:

* They are seeking urgent medical treatment;
* They are avoiding serious injury or death;
* They have the approval of their probation officer.

Who can be sentenced to home detention?

A court can make a home detention order if:

* It has convicted the person of an offence;
* It would have sentenced the person to imprisonment if home detention were not available;
* It considers a home detention order is appropriate;
* It has considered a pre-sentence report as to whether the offender is suitable for home detention;
* The offender consents to the home detention order;
* The offender has suitable premises to reside at during a home detention order;
* Every adult who resides at the premises has consented to a home detention order being made in relation to the offender;
* The offender has not been found guilty of a family violence offence, a violent offence or a sexual offence against a person who resides at the premises;
* There is no serious risk that the offender will commit a family violence offence, a violent offence or a sexual offence during the period of the order.

A home detention order can be made in relation to an offender who has a community service order or a probation order in force. An offender can be on more than one home detention order at the same time.

Breaches of home detention orders

Where a person on a home detention order breaches the conditions of the order, the prosecution can apply to have the court deal with the breach. If the court finds the offender has breached the order, it must:

* Confirm the order; or
* Vary the order; or
* Cancel the order and deal with the offender in any way that the court could deal with an offender who had just been found guilty of the offence/s.

Where a person on a home detention order breaches the order by committing a new offence, the prosecution can apply to have the court deal with the breach. If the new offence is an offence that is not punishable by imprisonment, the court can take any of the actions listed above in relation to the breach.

If the new offence is an offence punishable by imprisonment, the court must:

* Cancel the home detention order; and
* Impose any sentence (other than home detention) that the court could have imposed for the original offence/s.

However if the new offence is an offence which carries a penalty of imprisonment and the court is satisfied that there are exceptional circumstances, it may confirm or vary the home detention order.

Electronic monitoring

The Monitoring and Compliance Unit of the Department of Corrective Services provides 24- hour monitoring of offenders of home detention. Offenders who are made subject to electronic monitoring are fitted with a GPS ankle band, which can track their movements and verify that they are at the home detention premises when they are supposed to be.

The Monitoring and Compliance Unit responds to breaches of home detention orders and ensures conditions are observed.

GPS ankle bands are also used to monitor people who are excluded from entering certain areas by the conditions of a Family Violence Order.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.

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Written by Fernanda Dahlstrom Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory.

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Seen as the second most server sentence on the hierarchy of sentencing in Tasmania, Suspended sentences are a beneficial and effective method of punishment. Meeting all purposes of criminal sanctions, the main idea of suspended sentences is to provide offenders who are found guilty with a second chance. This second chance allows for the offender to undertake in rehabilitation and become a responsible member of the community whilst being deterred from re-offending due to the sentencing be suspended. Often those who are given a suspended sentence are less likely to re-offend providing beneficial outcomes for the community as well as the courts as it saves time and resources. - Chelsea

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The most recent Annual Report of the Magistrates’ Court of Tasmania makes the following comments about the therapeutic jurisdiction relating to activities in the areas of problem-solving justice.  This approach to justice requires courts to acknowledge that rather than simply processing cases, the court system should be concerned with taking approaches in an attempt to address the problems that lead to a person’s appearance in court, and work to change offender behaviour and improve public safety where appropriate.

Currently the Magistrates Court takes this approach in the following areas:

Court Mandated Drug Diversion (CMD) program;

Diversion List (DL);

Family Violence Lists;

Youth Justice Specialist List.

The Court continues to work to improve collaboration between participants in these problem-solving justice approaches, learning from and building on what has been achieved in previous years.

The Court relies on the support and expertise of other organisations to ensure the success of the problem-solving courts.   In particular, assistance is provided by Community Corrections, Forensic Mental Health Services, the Defendant Health Liason Service, Youth Justice, Legal Aid Commission of Tasmania, specialist Police prosecutors, and non-government support services.

More background is below

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During the reporting year the Court continued its activities in the areas of problem-solving justice. This approach to justice requires courts to acknowledge that rather than simply processing cases, the court system should be concerned with taking approaches in an attempt to address the problems that lead to a person's appearance in court, and work to change offender behaviour and improve public safety where appropriate.

Currently the Court takes this approach in the following areas:

Court Mandated Drug Diversion (CMD) program;

Diversion List (DL);

Family Violence Lists;

Youth Justice Specialist List.

The Court continues to work to improve collaboration between participants in these problem-solving justice approaches, learning from and building on what has been achieved in previous years.

The Court relies on the support and expertise of other organisations to ensure the success of the problem-solving courts. In particular, assistance is provided by Community Corrections, Forensic Mental Health Services, the Defendant Health Liason Service, Youth Justice, Legal Aid Commission of Tasmania, specialist Police prosecutors, and non-government support services.

Court Mandated Drug Diversion Program

Individual counselling;

Group counselling;

Random illicit drug testing;

Residential rehabilitation;

Case management;

Detoxification (via the State Alcohol and Drug Service).

The Court Mandated Drug Diversion Program (CMD) was introduced in 2007 to divert people, whose offending behaviour is linked to illicit drug use, into drug treatment interventions. The CMD program has capacity for approximately 80 defendants statewide. Referral to the program under a Drug Treatment Order can involve a range of treatment options depending on what is most suitable for an offender's needs, but may include some or all of the following:

The program is very intensive; particpants may be on it for up to 2 years. CMD has been successful in diverting a large group of offenders away from prison into community-based treatment and has had some positive impacts on delaying relapse or a return to crime.

This year the Court and other organisations who are involved in the program celebrated the 10 th anniversary of the program with an event held at the Court and co-hosted by Community Corrections.

Diversion List

Another key offender diversion program operated in the Court is the Diversion List (DL). This May marked the 10 th anniversary of the list, for which a function was held at the Court, attended by Her Excellency Professor the Honourable Kate Warner, AC, Governor of Tasmania. The DL began in Hobart and has now become a permanent feature of Court operations in all registry locations. At present, the DL sits twice a month in Hobart and once a month in Launceston, Burnie and Devonport, and is presided over by specialist magistrates (who also preside over general lists). The Hobart Diversion List also includes persons with acquired brain injuries or cognitive disabilities who commit summary offences.

The DL is a "problem solving court" program that diverts eligible defendants to mental health disability and other welfare services to address the underlying issues of their criminal behaviour. Using provisions within the Bail Act 1994 and the Sentencing Act 1997, the DL seeks to provide an alternative to traditional criminal sanctions where mental illness is causative of the offending behaviour.

Family Violence Lists

Upon the commencement of the Family Violence Act 2004, the Court has been listing separate court sessions for family violence matters to improve its responses and co-ordination with support agencies including specialist police prosecutors, safe families co-ordination unit, legal aid, and court support and liaison services.

Contest Mention System

The contest mention mechanism is a process which enables a defendant, if they are going to plead guilty to an offence heard in the Magistrates Court, to do so at the earliest possible stage of the pre-trial proceedings. For matters that are not resolved by a guilty plea at contest mention the process is designed to reduce the number of issues in dispute, which should reduce the hearing time.

An evaluation of the contest mention system was completed in November 2012. The evaluation report presented information relating to the effectiveness of the system as a pre-trial hearing for summary offences or indictable offences triable summarily, which aims to facilitate early guilty pleas and narrow the issues in dispute.

Youth Justice Court

The Youth Justice Court continues to operate as a specialised court state-wide. A dedicated magistrate in each registry hears all youth justice cases in which the court promotes a therapeutic strength-based approach.

Deferred sentencing options under the Youth Justice Act 1997 continue to provide an opportunity to defer a sentence for some young people for the purpose of assessing the young person's capacity and prospects for rehabilitation or participation in an intervention plan, and for the purpose of allowing the young person to demonstrate what rehabilitation has occurred or to allow them to participate in an intervention plan.

The Youth Court continues to be supported by and acknowledges the invaluable assistance of Tasmania Police who provide dedicated prosecutors and early intervention officers, and the Director of Legal Aid who provides dedicated legal practitioners.

The Court also acknowledges the Education Department who now provide Education Liaison Officers state wide who aim to re-engage young people appearing before the court with education. This is a vital part of youth court as many of the young people appearing have dis-engaged from education.

The Court also acknowledges the commitment of government and non-government bodies who have assisted in building a more integrated team approach which is working towards better outcomes for young offenders.

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Magistrates Court : Problem-Solving Courts

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During the reporting year the Court continued its activities in the areas of problem-solving justice. This approach to justice requires courts to acknowledge that rather than simply processing cases, the court system should be concerned with taking approaches in an attempt to address the problems that lead to a person's appearance in court, and work to change offender behaviour and improve public safety where appropriate.

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Prisoners who are only in for a short time often aren’t eligible for rehabilitation programs, but they still get the negative effects of going to prison. This results in their imprisonment time being unproductive in terms of rehabilitation and provides the example of where suspended sentences provide the same amount of retribution and deterrence to the offender as prison time looms over their head but gives them time and opportunity to seek rehabilitation. - Katie

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- The link provides a quick summary of drug treatment orders, from the long version on the the Tasmanian Legislature site.
Drug treatment orders are a great therapeutic sentencing option for offenders who have issues surrounding drug useage. The primary aim of drug treatment orders is to improve the lives of offenders and rehabilitate them back into society.

Drug treatment orders are a great way to keep offenders out of the judicial system. But a lot of time, effort and resources has to be put into them for drug treatment orders to work. Housing has to be offered, regular court appearances employment services, councelling etc. etc.
- JAMES

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You might be sent into treatment for your drug use, instead of into prison. This is called the Court Mandated Diversion Program, and involves drug treatment orders.

It's done to address the issues behind your drug use and offending - and therefore hopefully help you break the link between your drug use and offending, and improve your life.

This is a strict program with many requirements that will take up a lot of your time. It is not an easy option.

Eligibility

You are eligible if you:

plead guilty, or are found guilty

have a history of drug use and offending linked to your drug use

are 18 years or over

are willing to participate in the program

You are not eligible if you:

have a current or outstanding sexual or significant violent offence

are subject to a Supreme Court Order or Parole Order

Court diversion officers

A court diversion officer will assess your suitability by asking about your previous and current drug use, criminal activity, and lifestyle.

The court diversion officer will also:

be your case manager throughout the program and help you meet your goals and make sure you get the most suitable treatments

give regular progress reports to the Magistrate

Drug treatment orders

A drug treatment order:

can last for 24 months

has a sentence attached, which means if you don't successfully complete it, you could serve time in prison

Essentially, your sentence is 'on hold' while you take part in the program:

if you don't successfully complete or comply with the program, you could be imprisoned or do community service

if you do successfully complete the program, your sentence could be cancelled or reduced

The program in detail

These restrictions are designed to help you recover from drug use and break the drug-crime cycle.
You must abstain from all illicit drug use.
Usually, you must also:

have regular, random urinalysis

go to regular face-to-face meetings with your court diversion officer

go to regular court reviews with a Magistrate

go to individual counselling and group programs

You may be offered residential rehabilitation and medically-supervised withdrawal.

You'll also be offered services to help you improve your life skills, such as:

lessons in literacy and numeracy

programs addressing anger and family violence, gambling, parenting

employment services

There are three phases to the program:

Phase 1: Stabilisation (6 to 12 months)

Weekly case management

Weekly counselling

Random drug testing (at least once a week)

Regular court appearances

Phase 2: Consolidation (4 to 7 months)

Fortnightly case management

Fortnightly counselling

Random drug testing (at least once a fortnight)

Reduced court appearances

Phase 3: Re-integration (3 to 5 months)

Monthly case management

Monthly counselling

Random drug testing (at least once a month)

Reduced court appearances

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You might be sent into treatment for your drug use, instead of into prison. This is called the Court Mandated Diversion Program, and involves drug treatment orders. It's done to address the issues behind your drug use and offending - and therefore hopefully help you break the link between your drug use and offending, and improve your life.

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Rehabilitation does not take place when imprisonment is sentenced due to factors within the prison and once they leave. 54% of offenders exit prison into homelessness, and 78% exit into unemployment. If offenders haven’t reached a point of rehabilitation while in prison, exiting into homelessness and unemployment will not encourage rehabilitation either. - Katie

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Why do we need diversionary programs?

Why do we need drug courts? We note and endorse the following findings of the recently released report, Australia's Criminal Justice Costs: An International Comparison.

·       The report, released by conservative think tank the Institute of Public Affairs (IPA) on 8 August 2017, concluded that despite spending an estimated $16 billion a year on our criminal justice system, Australians feel less safe than the citizens of many comparable countries.

·       Author Andrew Bushnell said his research indicated that Australian prisons, despite being the fourth most expensive among 29 OECD countries, were ineffective in correcting criminal behaviour. The Australian prison population of 36,000 is up 39% from a decade ago.

·       The report advocates evidence-based reforms, including locking up only the most dangerous criminals and dealing with non-violent, low-risk offenders by way of home detention, community service, fines, and restitution orders.
Source

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Drug Diversion programs in Tasmania allow a Magistrate to divert an eligible offender into a drug treatment program that address their drug issues. It is available at all Magistrates Courts in Tasmania and the laws that govern the program are in the Sentencing Act 1997. Programs like these focus on treatment and support; they assist people in addressing mental health or cognitive disability that contribute to their relation in breaking the law, they also help improve community safety and attempt to reduce reoffending. - Alayna

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Whilst imprisonment is effective in the means of protection of the community and denunciation, it has proven to do little for the rehabilitation of an offender, meaning they are likely to reoffend when they are released. In fact, studies have shown that imprisonment increases the likelihood of one reoffending. It is also common for inmates to become homeless when released as they commonly lose housing and their job whilst being in prison. Imprisonment is also not a deterrent for committing crimes as it is committing is usually impulsive and of irrational decision making. - Poppy

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It’s important to note that in this case we are talking about the ineffectiveness of prison as promoting rehabilitation. Imprisonment is effective in fulfilling protection of the community/incapacitation which is a purpose of sanctions, but in fulfilling rehabilitation, another purpose of sanctions, imprisonment falls short. - Katie

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Here is the document that I summarised that is at the bottom of the Self Paced Learning Module 2
Therapeutic and diversionary sentencing in Tasmania.docx
I hope that works

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The purpose of sentencing is to promote consistency of approach in sentencing and to provide fair procedures when imposing sanctions. Taking into consideration the purposes of criminal sanctions which are punishment, rehabilitation, deterrence, protection, and denunciation imposing a sentence such as imprisonment does not meet all purposes of criminal sanctions (although in some cases it may be suitable for the crime committed.) When found guilty of committing a crime often imprisonment is seen as the last resort. Although imprisonment can punish the accused, protect the community, cause both general and specific deterrence as well as denunciation it does not allow for rehabilitation. By not providing rehabilitation programs whilst in prison often influences of other prisoners can lead to further crimes. In Tasmania, statistics show that when sentenced to imprisonment the likeliness of re-offending extremely high. Therefore, imprisonment is not always a suitable conviction as it is often more ineffective than effective when sending someone to prison. - Chelsea

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Imprisonment has a high reoffending rate which means a lot of money and time is wasted in criminals who will often be reconvicted. Furthermore, imprisonment does little for the offender as rehabilitation is rarely served and criminals will often learn from one another and leave prison worse than they started. Imprisonment not only affects the lives of the offender, but also their families and wider community. Imprisonment is expensive, and in 2015 the average Australian prisoner costed $100,000 per year. Many, but not all, prisoners would be better suited to rehabilitation and other forms of ‘punishment’, that allows them for a second chance and also to rebuild and improve their lives as well as their community - Alayna

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Some sentencing options in Tasmania include a collaberation between a drug treatment order and a suspended term of imprisonment, so the court can impose a sentence of years in imprisonment but can defer the term of imprisonment while the offender undergoes treatment\supervision. This option is particular useful as the suspended sentence gives the offender an appropriate warning and is a way of dealing with offenders who breach the conditions of sentences.      -Emily

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A suspended sentence is beneficial to our justice system as it delays a sentence until they commit another crime. This is beneficial to the offender as it gives them a second chance, and further motive to not commit another crime. It gives incentive to stay out of future trouble and to distance themselves from bad influences. It also benefits the court as it saves costs and resources on imprisonment when it is often unnecessary. The court may issue a suspended sentence if it is the offender's first offence and it is not likely they will offend again. Studies have shown that offenders who receive suspended sentences are less likely to reoffend than those who go straight to prison. - Poppy

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This is some research about suspended sentencing in Tasmania with some facts about who gets them, and some assessments about how they could be better utilized. The research is 2007, so it's a bit outdated, but still relevant in terms of how suspended sentences could be changed for better. The research mainly shows how suspended sentences are used, results show that suspended sentences are the result of more than 50% of cases where the offender has no priors or has previously received a non-custodial order. Surprisingly for offenders who have previously received a suspended sentence results from this research show that almost 50% get another suspended sentence as a result of the case. The research as well shows the re conviction rates of  different types of sentences given.                     -  imprisonment 78% reoffend 21% do not                                                                                                                                           - any type of suspended sentence (e.g partly or wholly) 51% reoffend 49% do not                                                                     - non-custodial order 31% reoffend 69% do not                                                                                                         this research shows that orders focused on rehabilitation work best at keeping prisoners in line and out of the judicial system. but obviously some offenders need to be sentenced with custodial orders to uphold the aims of sanctions, punishment, detterance and denunciation, but where possible suspended sentences and imprisonments should be avoided. The research also shows that suspended sentences aren't as efficient as they should be, with 50% reoffending, this means suspended sentences are keeping criminals on the streets and putting the public in danger. - JAMES

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Foreword | Although there are numerous arguments for and against the use of suspended sentences, improving our knowledge of how this sentencing disposition is applied in practice will help inform the debate. This paper provides an overview of the use of suspended sentences in the Supreme Court of Tasmania, as well as an analysis of reconviction and breach rates for those placed on such an order. It was found that those offenders serving suspended sentences had the lowest reconviction rates compared to those who received non-custodial and unsuspended sentences and this held true irrespective of prior criminal history. Young offenders had particularly low reconviction rates post a suspended sentence, but the paper warns of the risk that those offenders who are reconvicted may attract inappropriate, more severe sentences, as those who had previously been given a suspended sentence were found to be more likely to receive a subsequent (and more serious) unsuspended sentence, regardless of offence severity. An additional finding was that only five to six percent of offenders who were in breach of a suspended sentence were returned to court for a breach action. The paper stresses the need to improve the management of breaches and for readily accessible and up-to-date sentencing information, as well as arguing that offence- or length-based restrictions on suspended sentences is unnecessary.
Judy Putt
General Manager, Research
A suspended sentence is a prison sentence which is partly or wholly suspended on certain conditions. It has been described as a Sword of Damocles hanging over an offender's head (eg R v Locke and Paterson (1973) 6 SASR 298). As set out by the High Court in Dinsdale v The Queen (2000) 202 CLR 321, imposing a suspended sentence involves two key steps, namely, imposing a fixed term of imprisonment and then ordering that all or part of the term be held in suspense for a specified period ('the operational period'), subject to certain conditions. Suspended sentences are currently available in all Australian jurisdictions, although there have been moves to abolish them in Victoria (Bartels 2007).

The principal arguments in favour of suspended sentences are that they are an effective form of denunciation and deterrence; they are a valuable tool for those handing down sentences; they enable offenders to avoid prison, especially for short sentences; and they reduce the size of the prison population.

However, there are also compelling arguments against suspended sentences, namely, that they do not amount to real punishment at law and are regarded as a 'let-off' by the public and offenders; there are difficulties with the process for imposing the sentence and dealing with breaches; they cause net-widening and violate the proportionality principle; and they favour middle-class offenders.

As noted by the VSAC in its extensive review on this issue:

The philosophical differences between those who accept that a suspended sentence is more severe than other non-custodial orders and who believe it to be an appropriate substitute for immediate prison time, and those who question the internal logic, position and continued need for such an order are fundamental and unlikely ever to be satisfactorily resolved (2006: vii).

This paper does not endeavour to reconcile these arguments. Instead, it reports on some key findings of recently completed research on the use of suspended sentences in Tasmania in an attempt to promote a greater understanding of the use of this controversial sentencing disposition.

This paper presents key findings of a quantitative analysis of offenders sentenced in the Tasmanian Supreme Court and reconviction and breach analyses of those offenders.

Methodology

There were three datasets for the sentencing, reconviction and breach analyses.

Original dataset

The data for the original dataset (DS1) were obtained by examining all cases where an offender was sentenced at first instance in the Supreme Court of Tasmania between 1 July 2002 and 30 June 2004 (n=838). Cases where the offender was dealt with for a breach, life redetermination or pursuant to a dangerous-offender application were excluded (n=24).

In this study, offenders' records were coded as nil, minor or significant on the basis of the sentencing judge's comment, which was in turn based on an assessment of the number and seriousness of prior offences. It is acknowledged that this approach is a subjective assessment and future research should seek to refine this measure.

Reconviction dataset

The data for the reconviction dataset (DS2; n=588) were collected in January 2007 from the Tasmania Police Intrepid Centralised Enquiry (ICE) database of offenders' criminal records. The Department of Correctional Services provided information on the dates of release of offenders who served their sentence in custody. Offenders were included in DS2 if:

they were 18 years or over at the time of their original sentence

their original sentence was a non-custodial order or a custodial sentence of two years or less

they had been released from custody by 1 July 2004.

Offenders were followed up for two years from the date of sentence (for wholly suspended sentences or non-custodial orders) or release from custody (unsuspended and partly suspended sentences). Pseudo-reconvictions were excluded from the analysis (see Bartels 2009a).

A multiple-logistic regression model was constructed to control for the main variables affecting reconviction (see Hosmer & Lemeshow 2000; O'Connell 2006). The model included the following explanatory variables: gender, age, prior record, offence type and seriousness, and sentencing judge and disposition. All of these variables except gender and sentencing judge indicated statistically significant bi-variate relationships with reconviction; the latter two variables were retained in the regression model because of their policy significance.

Breach dataset

The data for the breach dataset (DS3; n=310) comprised offenders from DS2 who had received a partly suspended sentence or wholly suspended sentence.

To date, most breach analyses have only examined court action taken in respect of alleged breaches (eg Tait 1995), not instances where the suspended sentence was apparently breached but no court action was taken. In the present study, a breach was taken to have occurred where an offender had been convicted of an offence punishable by imprisonment that had been committed during the operational period of the sentence.

Offenders were followed up for between two and a half and four and a half years.

Results and discussion

Original dataset

Unsuspended sentences were the most commonly imposed disposition (44% of all sentences), followed by wholly suspended sentence (29%). Partly suspended sentence and non-custodial orders accounted for 13 percent and 14 percent of all sentences respectively.

Sentence length

Unlike most Australian jurisdictions, there is no legislative maximum in Tasmania on the length of sentence which can be suspended (Bartels 2007). It has been suggested that placing a limit on the length of sentence that can be suspended would prevent the use of such sentences 'in the most controversial cases' (TLRI 2008: [3.3.17]).

On the basis of the data obtained in this study, there appears to be little need to alter the current position: fewer than seven percent of wholly suspended sentence were longer than 12 months and there were no such sentences exceeding two years, with the same results for the suspended portion of partly suspended sentence. More recent data indicate that there were no wholly suspended sentence in the Supreme Court exceeding two years between 2001 and July 2007, with the suspended portion of a partly suspended sentence only exceeding two years in two cases (TLRI 2008:[3.3.27]). Based on the present findings, the TLRI opposed the introduction of length-based restrictions on the use of suspended sentences (2008: Rec 10).

Offence type

Many Australian jurisdictions have legislative restrictions on the kinds of offences for which suspended sentences are available. In 2006, the Victorian Government enacted legislation to provide that a court may not impose a wholly suspended sentence for a serious offence unless satisfied that doing so is 'appropriate because of the existence of exceptional circumstances in the interests of justice' ( Sentencing (Suspended Sentences) Act 2006 (Vic), s. 4(2)).

Between 1 July 2002 and 30 June 2004, there was one suspended sentence imposed in the Supreme Court of Tasmania for manslaughter and another for assisting another to commit suicide. There were also three partly suspended sentence and two wholly suspended sentence imposed for rape. The fact that suspended sentences appear to be only rarely imposed for very serious offences suggests there is no need for offence-based restrictions on the circumstances in which such sentences may be imposed. The TLRI reached a similar conclusion, stating that 'there is no evidence that wholly suspended sentences are being used inappropriately for serious crimes in Tasmania' (2008: [3.3.29]) and accordingly opposed the introduction of offence-based restrictions on the power to order suspended sentences (TLRI 2008: Rec 10).

Prior criminal record

Prior criminal record is generally regarded as a relevant factor in sentencing (see eg ALRC 2006: [6.51]). There were statistically significant differences in sentencing disposition on the basis of the seriousness of the offender's prior record (even after controlling for the offender's age and gender, the seriousness of the offence and the sentencing judge and the seriousness of the original offence (p<0.01)).

The likelihood of receiving a suspended sentence, especially a wholly suspended sentence, is inversely correlated with previous convictions, while unsuspended sentences are most likely for offenders with significant previous offending. Whereas only nine percent of offenders with a significant prior record received a wholly suspended sentence, this rose to 39 percent of first offenders and 41 percent of those with a minor record. Somewhat unexpectedly, however, first offenders were much more likely to receive a wholly suspended sentence (39%) than a non-custodial order (24%), which they were, in turn, only slightly more likely to receive than an unsuspended sentence (23%).

This finding does not appear to conform with the parsimony principle, which

operates to prevent the imposition of a sentence that is more severe than is necessary to achieve the purpose or purposes of the sentence (ALRC 2006: [5.9]).

The common law requirement that the court is only to impose a suspended sentence where imprisonment would be appropriate in absence of the power to suspend should be borne in mind in this context.

It would appear on the basis of these data that judges are treating wholly suspended sentence as a low-level form of non-custodial order. While judicial officers may perceive their actions as lenient, the result is a nominal imprisonment rate of 76 percent for first-time offenders. This would appear to represent little genuine attempt to use imprisonment as a sanction of last resort and suggests that net-widening may be occurring. This would not be a concern if the offending of first offenders was more serious than that of more seasoned offenders, but this was not the case: 74 percent of offences committed by first offenders were serious, compared with 87 percent for offenders with a minor record and 90 percent for offenders with a significant prior record.

Table 1 reveals another important aspect to this discussion. The offender's prior most severe sentence was classified as nil, non-custodial order, suspended sentence or custody in DS1. When a judge noted that an offender had previously served time in custody, it was not generally stated whether this was an unsuspended sentence or partly suspended sentence. References to a previous suspended sentence were, unless stated otherwise, assumed to be a wholly suspended sentence.

When sentences were analysed by the previous most severe sentence, there was a highly significant difference in the subsequent sentence received (p<.001). Put simply, a previous suspended sentence is a strong predictor of a subsequent unsuspended sentence. This makes sense in terms of an offender receiving an increasingly severe penalty to reflect the fact that they have failed to respond to previous more lenient dispositions. However, when coupled with the information above about wholly suspended sentence being imposed very widely as a penalty for first offenders, it leads to the disquieting inference that offenders may find themselves receiving a custodial sentence even for a minor offence on their second conviction (for comment see Roberts 2004: 29; Victorian Sentencing Advisory Council 2005: 21).

In particular, it is relevant to note that the likelihood of receiving an unsuspended sentence is more than four times higher for someone who has previously had a suspended sentence than someone with a previous non-custodial order (55% vs 13%). In addition, the chance of receiving a subsequent non-custodial order is equal for offenders who have previously served time in prison as for those who have had a suspended sentence (3%). Ironically, the chance of spending some time in prison, either by way of an unsuspended sentence or partly suspended sentence, is in fact higher for first offenders (37%) than for an offender who has previously received a non-custodial order (27%), while 74 percent of offenders before the court who are reported to have previously received a suspended sentence were subsequently sent to prison on an unsuspended sentence or partly suspended sentence.

These findings suggest that there may be an inappropriate approach being taken in respect of prior criminality. Offenders who have previously been given a suspended sentence may be treated as much more serious offenders than those with a previous non-custodial order, even when the former received a suspended sentence for their first offence. Caution should be exercised to ensure that offenders are not artificially elevated to the second-highest rung on the sentencing ladder, especially for minor or moderate offences.

Reconviction dataset

Sentencing disposition

Numerous studies have examined the relationship between sentencing disposition and reoffending (eg Spier 2001; Spohn & Holleran 2002; Tait 2001). In the present study, there was a highly significant difference in reconviction rates on the basis of sentencing disposition (χ 2=17.4, df=3, p<.001). Somewhat unexpectedly, suspended sentences had the lowest reconviction rates: 42 percent of offenders on a wholly suspended sentence and 44 percent of those on a partly suspended sentence were reconvicted, compared with 52 percent of offenders on a non-custodial sentence and 62 percent of those in receipt of an unsuspended sentence (see Bartels 2009a). These statistically significant differences were maintained after controlling for gender, age, prior record, offence type and seriousness, and sentencing judge and disposition (p<.05) and suggest that sentencing disposition is a significant predictor of reconviction. Furthermore, of the offenders who were reconvicted, those on a wholly suspended sentence were the group most likely to be reconvicted only of a minor offence.

There was no statistically significant difference in reconviction rates between partly suspended sentence and wholly suspended sentence, even though one might expect partly suspended sentence (which are a form of custodial sentence served immediately) to have a similar reconviction rate to unsuspended sentences. It is always assumed that prison exacerbates criminality but these figures may suggest otherwise, with offenders on a partly suspended sentence having similar reconviction rates to those on a wholly suspended sentence. This may suggest that the very fact of suspension may influence reconviction rates, rather than whether an offender serves time in a carceral environment. However, there may be other factors involved. For example, judges may only select the 'best' cases for partial suspension, or the same factors which compelled the judge to suspend a sentence also have a protective influence against further offending.

Prior criminal record

It is widely acknowledged in the recidivism literature that prior criminal record is strongly associated with reconviction (eg see Makkai et al 2004; Ross & Guarnieri 1996) and this was confirmed by this study. Only 35 percent of offenders with no prior convictions at the time of the original sentence were reconvicted, compared with 52 percent of those with a minor record and 76 percent of those with a significant prior record. These differences were highly significant (p<.001) and remained so in the regression model.

Table 2 sets out the proportion of offenders reconvicted by prior record and sentencing disposition. This demonstrates that for offenders with no prior record, sentences where the offender is required to serve time in custody-unsuspended sentence and partly suspended sentence-were in fact less likely to result in reconviction, at 26 percent and 25 percent respectively, than wholly suspended sentence (32%) or non-custodial orders (47%). This finding contradicts conventional wisdom that a wholly suspended sentence is particularly appropriate for first offenders, in order to keep them from the supposedly corrupting influences of prison. Indeed, these findings may support the view that prison can function as an effective deterrent for a first-time offender.

Offenders with a minor record, by contrast, appeared to perform comparatively better on suspended sentences, with 45 percent of those on a partly suspended sentence and 49 percent on wholly suspended sentence reconvicted, compared with 63 percent for non-custodial orders and 58 percent for unsuspended sentences. There was a poor outcome for all sentencing dispositions for offenders with a significant record, but those on a wholly suspended sentence in fact performed best of all, with 68 percent reconvicted.

Age

Perhaps even more significantly, none of the offenders aged 55 years or over at the time of the original sentence were reconvicted, compared with almost two-thirds (66%) of the 18-24 years group. The differences in these rates were highly significant (χ 2=78.2, df=4, p<.001) and the regression model supports this finding (χ 2=33.1, df=4, p<.001).

As set out in Table 3, offenders aged 18-24 years performed much better on wholly suspended sentence (53% reconvicted) and partly suspended sentence (55%) than on unsuspended sentences (86%) or non-custodial orders (72%). For offenders aged 25-34 years, unsuspended sentences had a worse outcome (72%) but there was little difference between the other sentencing dispositions (46-48%). There were no statistically significant differences in reconviction outcomes for offenders aged 35 years and over (p>.05) and no offenders aged 55 years and over were reconvicted.

Breach dataset

Section 27(1) of the Tasmanian Sentencing Act 1997 (the Act) provides that a suspended sentence may be breached by committing an imprisonable offence or breaching a condition of the suspended sentence during the operational period of the sentence. Where a breach appears to have occurred, the Director of Public Prosecutions (DPP) or a police or probation officer may apply to the court for an order, although, in practice, breaches of sentences imposed in the Supreme Court will be dealt with by the DPP. Section 27(4) provides that if the court is satisfied that the offender has breached the condition of the suspended sentence without reasonable excuse or committed a new offence, the court may order the suspended sentence to take effect, order a substituted sentence to take effect instead, or vary the conditions on which the execution of the sentence was suspended.

Breach rates and actioned cases

The findings reveal that 40 percent of offenders on a partly suspended sentence (32 out of 81) and 41 percent of offenders on a wholly suspended sentence (94 out of 229) breached their sentence by committing one or more offences punishable by imprisonment during the operational period of their sentence. However, breach action was taken in respect of only seven offenders: two on a partly suspended sentence and five on a wholly suspended sentence. This means that only six percent and five percent of offenders respectively who were in breach were brought back to court for breach action.

In the TLRI's Sentencing Issues Paper, it was noted that there are 'concerns that breach proceedings are neglected and many offenders breach without proceedings being initiated' (Warner 2002: 71). The data in this study confirm that there are indeed numerous instances of breached suspended sentences which are not coming to the attention of the relevant authorities.

Of the seven actioned cases, the sentence was activated in both partly suspended sentence cases and two out of the five wholly suspended sentence cases. The remaining three suspended sentences were continued. Accordingly, three percent of breached sentences were activated and only one percent of offenders in receipt of a suspended sentence were ultimately required to serve time in custody. Keeping offenders out of prison and reducing the size of the prison population are key arguments in favour of suspended sentences (Ancel 1971). Nevertheless, a failure to prosecute breached sentences not only reduces the effectiveness of the sentence for offenders (who may be encouraged to continue offending in the absence of breach action), but also potentially contributes to the negative perception of suspended sentences and may thereby undermine the criminal justice system generally.

The TLRI has described this study's findings as 'startling', noting that while

failure to initiate breach proceedings is not an inherent flaw of the suspended sentence, such a failure merely fuels the public perception that such sentences are an ineffectual slap on the wrist and contributes to a lack of confidence in sentencing (2008: [3.3.12]).

Frequency of offending

It would be understandable to see a lack of prosecutorial action on breaches if offenders committed very few offences in breach, but this is not the case. In fact, only a small proportion of offenders in breach committed one (8%) or two (5%) offences. The greatest proportion (27%) committed three to five offences, while 40 percent of offenders in breach committed 11 or more offences.

Only one of the seven actioned cases involved an offender who had committed over 20 offences. Breach action was taken against an offender who had committed 32 offences, including aggravated burglary and stealing, although the suspended sentence was ultimately continued with an extended operational period. No breach action was taken against the five most prolific offenders, who committed between 44 and 83 offences.

Prior criminal record

Unsurprisingly, there were significant differences in breach rates on the basis of the offender's prior criminal record. An offender with a significant prior record was over four times more likely to breach their partly suspended sentence than a first offender (82% vs 19%), while first offenders for both types of sentence were least likely to breach. These findings generally conform with those of Oatham and Simon (1972), who found prior offending strongly associated with breaching: 11 percent of male first offenders breached, compared with 71 percent for men with five or more previous convictions.

Only two of the offenders against whom breach action was taken had significant prior records.

Conclusion

This paper provides a quantitative overview of the use of suspended sentences in the Supreme Court of Tasmania.

The findings from the original dataset support the conclusion that there is no need for offence- or length-based restrictions on the availability of suspended sentences in Tasmania. The data also indicate that a first offender was more likely to receive a wholly suspended sentence than a non-custodial order. Furthermore, analysis of sentencing dispositions by the previous most severe sentence suggests that a previous suspended sentence is a strong predictor of a subsequent unsuspended sentence, making it of vital importance that first offenders are not pushed prematurely up the sentencing ladder.

The key finding of the reconviction analysis is that offenders on a wholly suspended sentence have the lowest reconviction rates of the four sentencing options studied, followed by partly suspended sentence. This suggests that for some offenders, suspended sentences do in fact 'work'. Analysis by prior record indicated that first offenders were in fact less likely to be reconvicted following a sentence requiring them to serve time in custody than on a wholly suspended sentence or non-custodial order. This finding contradicts the conventional wisdom that a wholly suspended sentence is particularly appropriate for first offenders (Bartels 2009a). Young offenders performed particularly well on a suspended sentence.

The principal finding of the breach analysis is that there is an overwhelming lack of action taken by the prosecuting authorities in Tasmania in respect of breached sentences. In fact, breach action is taken in only a very small proportion of cases, with numerous examples of repeat and serious offending going unprosecuted. This failure to deal appropriately with breached sentences not only reduces the effectiveness of the individual sentence, but may undermine confidence in the criminal justice system as a whole (Bartels 2009b). These findings prompted the TLRI to make several recommendations to improve the management of breaches in Tasmania, observing that:

Quite clearly a situation in which only five percent of breached orders result in proceedings is unacceptable. It makes a farce of the suspended sentence (2008: [3.3.40]).

The findings in this paper also highlight the need for maintaining readily accessible and up-to-date sentencing information on suspended sentences, so that judicial officers, policymakers, the media and the public are able to inform themselves about the use and utility of this controversial sentencing option.

References

Ancel M 1971. Suspended sentence. London: Heinemann

Australian Law Reform Commission (ALRC) 2006. Same crime, same time. Report 103. Canberra: ALRC

Bartels L 2007. The use of suspended sentences in Australia: unsheathing the sword of Damocles. Criminal law journal 31: 113-131

Bartels L 2008. Sword or feather? The use and utility of suspended sentences in Tasmania. Unpublished PhD thesis

Bartels L 2009a. The weight of the sword of Damocles: a reconviction analysis of suspended sentences in Tasmania. Australian and New Zealand journal of criminology 42: 101-122

Bartels L 2009b. Sword or butter knife? A breach analysis of suspended sentences in Tasmania. Current issues in criminal justice. Under revision

Hosmer D & Lemeshow S 2000. Applied logistic regression, 2nd ed. New York: John Wiley & Sons

Oatham E & Simon F 1972. Are suspended sentences working? New society 21: 233

O'Connell A 2006. Logistic regression models for ordinal response variables. Thousand Oaks, CA: Sage Publications

Spier P 2001. Recidivism patterns for people convicted in 1995. Wellington, New Zealand: Ministry of Justice

Spohn C & Holleran D 2002. The effect of imprisonment on recidivism rates of felony offenders: a focus on drug offenders. Criminology 40: 329-358

Tait D 1995. The invisible sanction: suspended sentences in Victoria 1985-1991. Australian and New Zealand journal of criminology 28: 143-162

Tait D 2001. The effectiveness of criminal sanctions: a natural experiment. Report to the Criminology Research Council 33: 96-97. Canberra: Author

Tasmania Law Reform Institute (TLRI) 2008. Sentencing. Final report no. 11. Hobart: TLRI

Victorian Sentencing Advisory Council (VSAC) 2006. Suspended sentences final report-part 1. Melbourne: VSAC

Victorian Sentencing Advisory Council (VSAC) 2005. Suspended sentences-discussion paper. Melbourne: VSAC

Warner K 2002. Sentencing. Issues paper no. 2. Hobart: Tasmania Law Reform Institute

Acknowledgement

The author would like to acknowledge the University of Tasmania and the Australian Research Council in supporting the research reported in this paper.

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Suspended sentences in Tasmania: key research findings

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Although there are numerous arguments for and against the use of suspended sentences, improving our knowledge of how this sentencing disposition is applied in practice will help inform the debate. This paper provides an overview of the use of suspended sentences in the Supreme Court of Tasmania, as well as an analysis of reconviction and breach rates for those placed on such an order.

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The government is pushing ahead with abolishing suspended sentences despite advice from the Sentencing Council, magistrates, legal personnel so that the Government can be seen to be tough on crime to pander to the collective view of society that something must be done to make our community a safer place.

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The government will push ahead with a phase out of suspended jail sentences - something Tasmania uses more than all other Australian jurisdictions.