In this section I explore sentencers’ views on the appropriate means of dealing with breaches. There was a strong desire to see more a proactive approach by the prosecuting authorities and better management of breaches was the area which attracted the greatest level of dissatisfaction with the status quo amongst both judges and magistrates.105 One of the key findings is that there is currently very little
knowledge about the process for monitoring and dealing with breached sentences.106
In fact, the comments suggest that judicial officers – unsurprisingly – generally infer that offenders who are not brought back for breach have complied with their order, whereas my data in Chapter 7 suggest that breach applications are made in only a very small number of cases of apparent breach.107 Accordingly, it would seem that
judicial officers are currently sentencing on the basis of flawed and overly optimistic assumptions.108
Do you receive any information/feedback on the success rate of suspended sentences. If so, what is it and is it adequate? (Q8)
It quickly became apparent that judicial officers receive no formal empirical information about the success rate of suspended sentences,109 which J4 criticised,
while J6 thought that having such information available ‘would be a good idea’. This lack of information is by no means unique to Tasmania. A recent English study found sentencers received no feedback on probation, with the authors finding that ‘[t]here was general support for the principle of improving feedback, although no real consensus as to whether this should be in the form of information on individual cases, aggregated statistics, or both’.110 In Canada, researchers described the absence
of reliable statistical information about conditional sentencing outcomes as ‘sentencing in the dark’ and declared that judges should have better information about:
• the level of supervision of conditional sentence orders;
• the ‘failure’ or ‘success’ rate of conditional sentence orders;
105 It is interesting in this context to note a recent appeal against a statement by a magistrate that ‘my
experience in this jurisdiction [is] that the breaches are very rarely brought before the court when they should be’. The offender appealed against the unsuspended sentence he received, arguing, inter alia,
that the magistrate ‘erred in fact and/or law in finding that persons in breach of suspended sentences in Tasmania are very rarely brought before the court’. Evans J stated, dismissing the appeal, that it was not an error for the magistrate to refer ‘to his experience in relation to the manner in which a breach of suspended sentence was handled’: see Turner v Driver [2005] TASSC 85.
106 For details of this process, see
[7.2].
107 See
[7.5.1].
108 This misunderstanding was also noted by the DPP, who commented on the small number of breach
applications taken that ‘of course that reinforces [the judges’] idea that it’s such a great thing to do’: Meeting with DPP, n 97.
109 The lack of information gathered on the use and success of suspended sentences was confirmed by
the DPP, who added that his office was ‘waiting for a new add-on to our system where we can track these a little better’: ibid.
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• the kinds of non-statutory conditions that are imposed;
• the conditions most likely to be associated with a breach hearing;
• the pattern of judicial response to substantiated allegations of breaches; and
• the recidivism rate of offenders who have served conditional sentence orders (compared to offenders sentenced to serve terms of custody in a provincial correctional facility).111
The effect of the lack of empirical information is that sentencers are likely to draw inaccurate conclusions on the basis of their own experience.112 Although J2 feared
that ‘re-offending goes undetected’, J3 regarded the fact that ‘roughly once a year one will come back’ as ‘a fair indication’ and ‘enough information’. J6 in turn had examined the 38 suspended sentences personally imposed over the previous year, of which only two cases had been brought back for breach. J6 regarded this outcome as ‘surprising’, but suggested it was evidence ‘that the system must be working’ adding however that ‘maybe applications are not made in every case of a breach’.
Most of the magistrates agreed ‘we don’t receive anything’ (M1), ‘not statistically’ (M4), while M9 mentioned ‘anecdotal’ feedback, where an offender has ‘got a job and he’s had another kid and going along well’. M2 observed that ‘all we get I suppose is the history of a person when they come up again and we can note whether they seem to have complied with provisions in the past’, meaning that ‘it is difficult to gauge, except in isolated cases, whether the suspended sentence’s motivations are working, because all we’re seeing are the ones that re-offend’. It was also suggested that by virtue of not seeing an offender back before the court, one would assume the sentence had been successful (M7; M10), but M6 acknowledged that if ‘people have not been detected offending, or the police have chosen not to prosecute for a detected offence, then the court will not know about it’.
Do you think your use of suspended sentences as a sentencing option would change if you had more information about the efficacy of a suspended sentence in each case? (Q8)
J3 was emphatic that his use of suspended sentences would not change in the face of additional information ‘because I’ve got enough [information]’. However all the other judges were keen to see such information, and most thought it would have an effect on their individual sentencing practice. J2, for example, said ‘if the effect was very different from what I expected and offenders weren’t performing as well it might cause me to reconsider my use of suspended sentences’, while J1 felt that ‘if somebody said, look, you imposed 20 suspended sentences last year and of those 20 offenders, 15 of them re-offended, then I’d be thinking pretty seriously about whether I’d continue to use them’. One judge was uncertain about how much feedback should be given, adding:
111 Roberts and Manson, n 16, 18. When judges were asked ‘Of those cases where there might have
been a substantial violation of terms of conditions, what proportion have been brought back to court?’, 49% responded that they didn’t know: Roberts, Doob and Marinos, n 13, Q17 and Table 2.17.
112 The TLRI has similarly observed on the basis of my findings in Chapter 7 that a ‘problem with the
failure to bring breach cases back to court is that judges and magistrates get no feed-back on their sentences and little opportunity to develop a feel for the type of offender who typically succeeds and the type who does not. Breach proceedings can provide an opportunity for sentencers to develop the experience to better target this measure’: TLRI, n 34, 30.
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J5: I’m not sure that I want feedback on every sentence I’ve given because it might weaken my faith but I wouldn’t mind some feedback saying…most them stay clear or, if they’ve got into trouble, it’s because they didn’t report to their probation officer. LB: So some kind of aggregate? You know, you gave 20 in 2006, 15 of them went
[well].
J5: I wouldn’t mind looking at that in three or four years time and saying, well, you made a complete dog’s breakfast. Or not. And…ones where you gave them partly suspended sentences seem to be working better than where you gave them all suspended or the other way round.
J4 felt that more feedback ‘would help the sentencing process’ and J6 wanted to have more information but couldn’t say whether it would have an effect ‘until I know what the feedback is’. Interestingly, J6 suggested that such information might have no effect in respect of young people because of the desire ‘to give them that last chance …so suspended sentences are often a desperate choice, hoping with this one, we will save him or her’.
The magistrates were also keen to see information of this nature and most thought it would have an impact on their sentencing practice, although there was a certain ambivalence about the benefit of this, because of the potential of such information to destroy their faith in suspended sentences and therefore lead to an increase in the use of immediate imprisonment. For example, M1 thought that if the data ‘said [suspended sentences] were useless, I’d use them less. If it said they were very good, I’d use them more’, while M10 agreed that ‘potentially it would [change my sentencing], obviously’. For M3,
I suppose there should be feedback for everything… If it’s wrong what I’m doing, then I should be told about it, but at the present time I feel that it’s right and if it’s empirically shown that everyone who gets suspended sentences within two or three months comes back to court, hold on, I’ll start doing something else.
According to M8, such information may change sentencing practices ‘for good or ill…I don’t know that getting the numbers would help you. Because you might end up imprisoning more people than you’d preferred’. M7 was also somewhat hesitant, stating: ‘I suppose I should say yes, although I don’t really want to’, but acknowledging that reliable and compelling information could change their sentencing practice. M2 thought the feedback would be ‘really positive’, even though
your faith in suspended sentences might be diminished if you knew that they weren’t working. And that’s a fair call for a sentencing officer or a judicial officer. There’s not much point in imposing a sentence if the odds are it won’t work, or won’t achieve the result that you want to achieve.
Four magistrates indicated that the information would not have an effect on their sentencing practice, although only M9 was not interested in receiving such information, arguing that because of ‘the vast numbers of matters that I deal with, it would be impracticable, really, for me to be getting feedback’. M4 and M6 both thought that being aware of general statistics would not affect whether a particular person should receive such a sentence. M5 suggested that it would be interesting to get an end report on an offender ‘but of course that’s not consistent with our role, which is of course as soon as we’ve sentenced, that’s the end of our role and we’re
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not sort of personally involved. We have this arm’s length role’. As to the impact of this information,
you can either take a cynical view of suspended sentences or you can take a positive view and I think you have to take a positive view and assume that in many cases they work…I think it would be most unfair to that particular individual to be cynical in your approach to that person and think that because x number of other people don’t
comply, you’re not going to. Everybody should be dealt with as individuals.113
When an offender is brought back to court for a breach, what factors influence your decision whether to order that the sentence take effect? (Q16)
In asking this question, I sought to determine whether there were common factors nominated by respondents in relation to breach proceedings. Interestingly, there was a difference in the approach taken to this question. Nine out of ten magistrates, but only two of the judges, set out specific factors,114 while the remaining respondent
gave a policy position that they would generally activate a breached sentence.
The following factors were listed as influencing the decision on whether a suspended sentence would be put into effect:
• The nature of the original/breaching offence (J1; J2; M1; M2; M3; M5; M6; M9);
• Time between suspension and breach (J1; J2; M1; M2; M3; M6; M8);
• Evidence of rehabilitation or compliance with conditions (J1; J2; M4; M5; M9);
• The circumstances of and aggravating/mitigating factors on breach (M5; M6; M8; M10);
• Changes in personal circumstances (J1; M1; M10);115 and
• The sentence imposed for the breaching offence (J2; M2; M4).
Four judges and three magistrates indicated that their general position was that breached suspended sentences would generally be put into effect.116 J5 would ‘more
often than not’ activate a sentence in its entirety because ‘that was the deal. You broke it’, although only part of the sentence might be activated where the breach was a case of not complying with the conditions, in which case, ‘you’ll probably get the same sentence again, you won’t get a lesser sentence. But you might get half off [resuspended]’. For one judge, it was ‘almost inevitable that it will take effect’, adding,
J3: I can only think of one instance where it didn’t take effect at all. LB: And what distinguished that case for you?
113 See
[3.4.4], (Q7) above about magisterial style and offenders’ perceptions on how they are treated in court having an effect on reoffending rates.
114 For further consideration of the factors relevant to the exercise of the judicia discretion on breach,
see [7.6.2.2].
115 Note that it was not specified at what point in time these circumstances are to be considered. Cf
DPP (NSW) v Cooke (2007) 168 A Crim R 379, which specifies that the court is to consider the
offender’s circumstances at the time of the breach, not at the time of breach proceedings.
116 On this point, note the observation of the DPP that judges are ‘probably living in a false sense of
security about it, because they can say, well, it’s almost always the case that when the review comes before me, the suspended sentence will be activated’, but that he only takes action in respect of serious breaches. He advised me that he did not see it as appropriate to ‘wast[e] everyone’s time’ taking minor matters before the Supreme Court: Meeting with DPP, n 97. For further discussion, see [7.2].
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J3: Short sentence and monumental delay in bringing the person back. Youth, minor breach and monumental delay.
LB: So for you, activation is the norm? J3: Oh yes, absolutely.
This sentiment was echoed by two other judges on the basis that otherwise the sentence will lose its force, although J6 would relax the rule if there had been only a minor breach of condition or he realised the conditions had been too broad.117
According to J4,
there will need to be really strong extenuating circumstances, and I don’t listen to all that usual stuff about pregnant girlfriend and deprived childhood because I got all that before. There may be some new particular thing, let’s just say, her husband died and she was distraught and depressed and her house burnt down and in the drama of it she got drunk one night and stole some money. Well, that sort of specific thing I might really relax it, but otherwise, you breach it, you go in. Otherwise they lose their efficacy. The word goes around I think. (J4)118
M10 said ‘I’m a bit sudden death on this. Primarily I look at it from the point of view of – you had your last warning last time, so there’s got to be something pretty convincing not to activate it’. M7 and M9 similarly said that because they do not suspend a sentence lightly, they would ‘normally’ and ‘highly probably’ activate any breached sentence. M8, by contrast, said ‘I start with no presumptions. Every day that I go into that court, I start with no presumptions about anything, and I listen to what’s being said’. This approach would seem to be tacitly adopted by the other respondents who listed the factors to be taken into account in determining this issue. In arriving at the decision, M5 refers back to the COPS, which
reveal my thinking at the time…If I’ve said, this is your last chance, I’ve got a record of that. And it would reveal whether it was a case where they were just right on the edge of getting actual jail and I was persuaded, just, to give them one last chance, or whether it was a case where, you know, there was an expectation that the future would be problematic but the person was having a go and was really trying.
The issue of the appropriate approach to be taken by the court in breach proceedings is somewhat complicated by the fact that there appears to be a misconception amongst some magistrates about the state of the law in this regard, as set out in the following interchange:
M4: I think in the main – the authorities are that the presumption is that it’s to be served.
LB: There’s no legal presumption here. In NSW essentially, there is no–
M4: Not a presumption, that might be a bad [term]. Which cases are there here that say that generally–
LB: There’s not a hell of a lot.
117 In this context, the DPP observed that because judges are ‘used to dealing with more major crime
than what you’d be seeing appended to each and every breach’, there may be an initial response of ‘what’s this doing before me?’. He also suggested that ‘the judges wouldn’t thank me’ for sending every minor matter back for breach proceedings: Meeting with DPP, ibid.
118 It is interesting to note this confidence that offenders would be aware of the judicial approach to
breached suspended sentences, with J5 similarly asserting that ‘the word by and large goes around the traps’. The data in Chapter 7, however, would give offenders cause to perceive a rather different message, namely that breaches of suspended sentences are rarely prosecuted.
139 M4: Isn’t there? I thought there was one.
LB: I can’t think of one off the top of my head. There’s not a strong – there are no statements which are as strong as in some of the other jurisdictions that they –
M4: There’s not? So it’s much more discretionary?
M5 similarly thought that ‘the proposition that’s outlined in the cases is that, generally speaking, the sentence should take effect’ while M1 stated that ‘there’s a whole lot of law on that’. Even though four out of the six current Supreme Court