Review of suspended sentences

The Sentencing Advisory Council completed its review of the use of suspended sentences, drug treatment orders, and the new sentencing orders of Home Detention Order and Community Corrections Order in November 2021.

On 17 November 2021 the Council forwarded the final report to the Attorney-General.  The Attorney-General tabled the report in both Houses of Parliament on 25 November 2021, as required under the provisions of the Sentencing Amendment (Phasing Out Of Suspended Sentences) Act 2017.

The report examines home detention orders, community correction orders, drug treatment orders and the use of suspended sentences for specified sentences.  It provides information about the orders themselves, as well as the use and duration of the orders, and breaches of these orders.

The Council consulted with relevant stakeholders about the operation of these sentencing options, and their feedback was incorporated into the report.  A list of those consulted is included in the report.

It is noted that there were some substantial difficulties in providing meaningful responses to several of the questions posed in the Terms of Reference provided in the Notice to Conduct a review.  This was particularly the case in relation to the comparison of the duration of home detention orders, community correction orders, and drug treatment orders, and the outcome of breach applications for those orders with similar offending where suspended sentences were imposed.

This is due to the inherently different nature of the orders and the small number of offenders involved in each offence category (with similar offending), making it impossible to discern any reliable trend or attach any significant characteristics to the orders themselves. As the new orders had not been in operation for very long, the number of sentences under consideration was often too small to allow for statistical analysis.  However, all information discovered has been included in the report for reference.

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Review under Section 2 of the Sentencing Amendment (Phasing Out Of Suspended Sentences) Act 2017 (PDF, 3.2 MB)

Sentencing young offenders

The Sentencing Advisory Council released Research Paper 6: Sentencing Young Offenders on 10 November 2021.

The Research Paper is intended to provide an information resource on the operation of the sentencing principles, options and practices under the Youth Justice Act 1997, and the operation of the Magistrates Court (Youth Justice Division) and the sentencing of young offenders by the Supreme Court. This detailed research had not been included in the Council’s previous reports and was identified as a knowledge gap in sentencing information resources at the time.

The Paper also provides a statistical profile of offences heard and sentencing outcomes for the period 2007-2008 to 2018-2019.

The Research Paper is not a review of the youth justice system in Tasmania, and does not contain any recommendations. However, the research did reveal a number of findings and observation, such as:

• Most young people do not come into contact with the criminal justice system. In 2019-20 only 2% of young people aged 10-17 in Tasmania were proceeded against by police.
• Around 50% of matters dealt with by police were finalised by diversion (informal and formal cautions and community conferences).
• In the Youth division of the Magistrates Court, 90% of orders were non-custodial (undertakings or release on conditions).
• Most youth offenders do not progress to serious crime, and appear to stop offending without intervention.  A small number of youths, however, have repeated contact with the criminal justice system and are responsible for a disproportionate amount of crime and continue to offend into adulthood.
• An examination of the circumstances of a young offender often reveals a complex picture of multiple vulnerabilities. Identified factors associated with youth offending include gender, family factors, disengagement from education, disadvantage and poverty, homelessness, drugs and alcohol use, mental health and intellectual disability.  Further, the effect of trauma on youth offending is being increasingly recognised as important in sentencing considerations and the delivery of services to young offenders.
• Indigenous young people continue to be over-represented in the criminal justice system.

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Research paper 6: Sentencing  Young Offenders (PDF, 2.6 MB)

Sentencing for Non-Fatal Strangulation

The Sentencing Advisory Council released Research Paper 5: Sentencing for Non-Fatal Strangulation on 17 June 2021.

This paper was prepared following a request from the Attorney-General to provide information about sentencing for specific non-fatal strangulation offences in other Australian jurisdictions, as well as information about cases where non-fatal strangulation, choking or suffocation has been considered as a sentencing factor in Tasmania.  The specific terms of reference are:

1. In Tasmania, how many cases and in what circumstances has non–fatal strangulation, choking or suffocation been considered as a sentencing factor and in relation to which offences?  What were the sentencing outcomes in those cases?
2. In those jurisdictions that have introduced an offence of non-fatal strangulation (or cognate offence), what have been the sentencing outcomes and, where information is available, what factors have the courts considered in sentencing the offender?
3. In those  jurisdictions that have introduced an offence of non-fatal strangulation (or cognate offence) for what other offences was the offender also sentenced at the same court event?
4. Any other relevant observations.

The paper highlights a number of findings regarding recognition of the seriousness of non-fatal strangulation, particularly in the context of family violence, and the unique capacity of strangulation to be used as a means of coercion and control on a domestic relationship.

The paper also found that there is no noticeable difference between sentencing for non-fatal strangulation in the Supreme Court of Tasmania and sentencing in Queensland, the Australian Capital Territory, South Australia and New Zealand.

Based on its research, the Council makes three suggestions for legislative reform to the Sentencing Act 1997 (Tas) and the Family Violence Act 2004 (Tas) to provide that strangulation and suffocation are aggravating circumstances in relation to an offence, and to provide for the recording of non-fatal strangulation as a particular of an offence on a person’s criminal record.

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Research Paper No. 5: Sentencing for Non-Fatal Strangulation (PDF, 1.6 MB)