1.4 The case for suspended sentences
1.5.2 Suspended sentences are seen as a ‘let off’
1.5.2.1 Public and media perceptions
The foregoing section examines whether suspended sentences amount to real punishment at law. There is also what Ancel described as a ‘threat to the suspended sentence’, ‘that uncontrollable factor, public opinion and its panic reaction to certain types of offence’.155 Suspended sentences appear to be regarded by the media,
members of the public and victims,156 as a ‘let-off’, while the offender is commonly
perceived as ‘walking free’ or having received a slap on the wrist.157 Tonry has
151 Roberts, n 2, 4. 152
Elliott v Harris (No 2) (1976) 13 SASR 516.
153 See for example
R v JCE (2000) 120 A Crim R 18 (NSW CCA); Latham v The Queen (2000) 117
A Crim R 74 (WA CCA); Humphrey v Police [2000] SASC 391; R v Foster (2001) 33 MVR 565; R v Zamagias [2002] NSWCCA 17; R v Y (2002) 36 MVR 328; R v Temby [2003] SASC 230; Peart v Police (2003) 229 LSJS 194; R v Whelan (2004) 42 MVR 541; R v Suri [2004] SASC 80; Sumner v Police [2004] SASC 158; DPP (Vic) v Oversby [2004] VSCA 208; DRI (a child) v Read (2004) 42
MVR 566 (WA CCA); R v Errigo (2005) 92 SASR 562, [27] and DPP (Vic) v Gany (2006) 163 A
Crim R 322.
154
R v Brady (1998) 121 CCC (3d) 504, cited in R v Tolley [2004] NSWCCA 165.
155 Ancel, n 3, 24.
156 Michael Dawson, 'Sentencing: The Victims' Verdict' (2002) 23(2)
Victims' Voice 1, 1; SAC Interim
Report, n 67, [2.10]; [2.28] and Julian Roberts and Kent Roach, 'Conditional Sentencing and the Perspectives of Crime Victims: A Socio-Legal Analysis' (2005) 9 Queen's Law Journal 560, 567-8.
Roberts and Roach found great confusion amongst victims about the meaning of conditional sentences. The victims in their study were also ‘unanimous’ in their desire to have a copy of the reasons for sentence and the conditional sentence order imposed and several were also keen to have the sentence ‘interpreted’ by a lawyer or victims’ representative as it was ‘full of legal jargon’.
157 Freiberg DP, n 91, 60 and Freiberg, n 96, 120. See also Morris, n 92, 139;
Crime, Justice and Protecting the Public, n 91, [3.20] and Kate Warner, 'Sentencing Review 1999' (2000) 24 Criminal Law Journal 355, 362.
28
commented that the perceived leniency of intermediate sanctions is ‘the most difficult obstacle’ to their greater implementation.158
This poor public image is sometimes acknowledged by the courts. Over 30 years ago, the South Australian Court of Criminal Appeal observed:
If, as has been suggested, persons convicted and members of the public take a light- hearted view of a sentence which is suspended then time will, we believe, prove them to be wrong. If the convicted person does not take seriously the warning that any breach of his recognizance during its term will lead to the serving of the suspended sentence, he is likely to appreciate its truth if he is convicted of even a minor offence. The public will learn the truth about suspended sentences only if it takes the trouble to inquire what a suspended sentence really means. In this connection the news media could be of assistance.159
More recently, Perry J suggested that ‘it is abundantly clear that many members of the public do not regard a suspended sentence as any sort of a penalty at all’.160
Justice Parker of the Western Australian Court of Criminal Appeal similarly observed in Latham161 that because in ‘most cases a suspended sentence involves neither custodial nor coercive consequences’, it is understandable ‘that the community’s perception and the reality of this sentencing option is quite different from that of a sentence of a term of imprisonment to be served immediately’.
Recent examples of suspended sentences being imposed to the indignation of the media and the community include NSW radio broadcaster John Laws’ sentence for contempt.162 One commentator described the sentence as the equivalent of being
thrashed with a feather,163 while another described Laws as ‘[t]oo prominent for
prison and too flush to fine’.164 In Victoria, the imposition of a wholly suspended
sentence on an offender convicted of sexual assault in rather unusual circumstances165 led to public condemnation, with a demonstration of some 10,000
protesters held on the steps of the Victorian Parliament and speakers calling for an end to the fiction of prison when the offender remained free. The outcry resulted in the issue of suspended sentences being referred to the then newly established
158 Michael Tonry,
Sentencing Matters, Oxford University Press, New York (1996), 4.
159
R v Weaver (1973) 6 SASR 265, 267.
160
Nicholls v Police [2003] SASC 303, [39]. See also R v Lord [2001] NSWCCA 533, [35] and Whelan v Police (2003) 229 LSJS 93, [21]. Similar views were expressed by the Tasmanian judges
and magistrates in their interviews with me: see [3.4.5].
161
Latham v The Queen (2000) 117 A Crim R 74, [31].
162
R v Laws (2000) 116 A Crim R 70 (NSWSC).
163 Ackland, Richard, 'Thrashed with a Legal Feather',
Sydney Morning Herald, Sydney, 8 September
2000. See also Warner, n 157, 362 and 'Separate Law for Laws', Courier Mail, Brisbane, 9 September
2000. It is in this context interesting to note Roberts’ suggestion that wealthy offenders be required to serve conditional sentences in a residential halfway house instead of in their own homes: Roberts, n 2, 166.
164 O'Regan, Mick, 'Media Report',
Radio National, ABC Radio, 7 September 2000,
http://www.abc.net.au/rn/talks/8.30/mediarpt/stories/s172985.htm.
165 See
DPP (Vic) v Sims [2004] VSCA 129. For discussion, see Thérèse McCarthy, 'A Perspective on
the Work of the Victorian Sentencing Advisory Council and its Potential to Promote Respect and Equality for Women' in Arie Freiberg and Karen Gelb (eds), Penal Populism: Sentencing Councils and Sentencing Policy, The Hawkins Press, Sydney (2008) 165, 174.
29
Sentencing Advisory Council.166 Shortly thereafter, a female school teacher who had
had a consensual sexual relationship with one of her male students also received a wholly suspended sentence, which caused a ‘strong reaction’ in Melbourne newspapers and on talkback radio.167 The Victorian Attorney General was also
recently required to defend the decision of a County Court judge who had imposed a three year wholly suspended sentence after calls that the judge be ‘sacked because the sentence showed his priorities were out of step with the community’s’.168 The
judge imposed the wholly suspended sentence on a former refugee who drove into the wall of a primary school while under the influence of alcohol, injuring five children, commenting that ‘I defy anyone to regard your past without a twinge of sadness’. Perhaps unusually, the following comments by the sentencing judge were also reported in the media:
A suspended sentence is not always the soft option as it is characterised by the media and others. Indeed, for some it is a very hard, demanding and controlling sentence. A man convicted of a suspended sentence does not ‘go free’. No, he goes away bearing a considerable burden. He may walk out of the court but he does not leave behind the embrace of the law.169
166 For background on the Sentencing Advisory Council (SAC), see Arie Freiberg, 'The Victorian
Sentencing Advisory Council: Incorporating Community Views into the Sentencing Process' in Arie Freiberg and Karen Gelb (eds), Penal Populism: Sentencing Councils and Sentencing Policy, The
Hawkins Press, Sydney (2008) 148. The referral of this issue to the SAC resulted in the recommendation that suspended sentences ‘should be phased out in Victoria by December 2009’: Sentencing Advisory Council, Suspended Sentences: Final Report - Part 1, Melbourne (2006) (SAC
Final Report), Rec 1. The Victorian government has stated that it is ‘considering the Council’s recommendation to abolish suspended sentences for all cases and [is] waiting on a report from the Council on proposed new sentencing orders’: Office of the Attorney-General, Victoria, 'No More Suspended Sentences for Serious Crimes' (Press Release, 22 August 2006). This report is expected to
be released by the SAC in March 2008. For further discussion of suspended sentences in Victoria, see [2.2].
167 Moncrief, Marc, 'Media Blamed in Teacher Sex Case',
The Age (Melbourne), 11 November 2004,
http://www.theage.com.au/news/National/Media-blamed-in-teacher-sex-case/2004/11/11/
1100131106680.html?from=top5. The sentence was increased on appeal to a sentence of two years and eight months, suspended after six months: DPP (Vic) v Ellis (2005) 11 VR 287. Special leave to
appeal to the High Court was refused: Ellis v DPP (Vic) [2005] HCATrans 751. See also 'Teacher
Escapes Jail for Sex with Student', Sydney Morning Herald (Sydney), 1 March 2006,
http://www.smh.com.au/news/national/teacher-escapes-jail-for-sex-with-student/2006/03/01/
1141095782248.html, which reported on a female teacher who had sex three times with a 15-year-old male student. Barnett J took into account ‘the extent of shame’ the offender had already suffered and imposed a wholly suspended sentence for two years and four months. The sentence caused the South Australian Premier to call for a report on the sentence: see 'Anger at Sex Teacher's Light Sentence',
Sydney Morning Herald (Sydney), 2 March 2006, http://www.smh.com.au/news/national/ anger-at-
sex-teachers-light-sentence/2006/03/02/ 1141191777497.html and Hough, Andrew, 'Family's Torment: Judge Lets Sex Teacher Go Free', The Advertiser (Adelaide), 2 March 2006,
http://www.theadvertiser.news.com.au/common/story_page/0,5936,18320020%255E910,00.html.
168 Medew, Julia, 'Mercy for Drink-driver Outrages Families'
The Age (Melbourne), 11 February 2006,
http://www.theage.com.au/news/national/mercy-for-drinkdriveroutrages-families/2006/02/10/ 1139542406276.html.
169 Caulfield, Christine, 'Mum's Anger as Drink-driver Walks',
Herald Sun (Melbourne), 11 February
2006, http://heraldsun.news.com.au/common/story_page/0,5478,18107305%255E2862,00.html. See also Crawford, Carly, 'Jail this Drunk', Herald Sun (Melbourne), 12 February 2006,
http://www.heraldsun.news.com.au/ common/story_page/0,5478,18118594%5E2862,00.html and Dowdell, Andrew, 'Senior Judge Defends Use of Suspended Sentences', The Advertiser (Adelaide), 18
30
In another high-profile case, a wholly suspended sentence was imposed on a 19-year- old member of a prestigious South Australian family who had been convicted of endangering life.170 The circumstances of the offence were somewhat unusual, in that
the offender shot at the victim because he erroneously believed the latter had been following two young women, who were allegedly in fear of being raped.The victim, a newsagent delivering papers, lost an eye as a result. The sentence gave rise to significant public outcry, condemnation of the sentence by the Premier, and a successful Crown appeal.171 Furthermore, even though the Premier did not call for his
resignation, the then DPP ultimately resigned his position as a result of the controversy.172
There has been extensive debate in recent years about the role of public opinion in sentencing,173 although the very notion of a ‘public opinion’ has been criticised by
some.174 There has also been significant discussion of the rise of ‘penal populism’, a
term used to describe penal policy determined as a political response which favours December 2007, http://www.news.com.au/adelaidenow/story/0,22606,22943274-2682,00.html?from= public_rss.
170
R v Nemer (2003) 87 SASR 168. The Director of Public Prosecutions accepted a plea to the offence
of endangering life, instead of attempted murder, which had originally been preferred.
171 Notwithstanding the fact that the DPP had not objected to the imposition of a suspended sentence,
the sentence was increased on appeal and an unsuspended sentence substituted. Special leave to appeal to the High Court was refused: Nemer v Holloway; Nemer v The Queen [2004] HCATrans 24.
172 For discussion, see Johnson, Anne, 'Stateline (South Australia)',
ABC Television, 1 August 2003,
http://www.abc.net.au/stateline/sa/content/2003/s915656.htm; Chris Finn and Ryan Maguire, 'Nemer and the DPP' (2004) 26(3) Bulletin 20; Karen Earle, Rick Sarre and John Tomaino, 'Introduction: The
Criminal Justice Process' in Rick Sarre and John Tomaino (eds), Key Issues in Criminal Justice,
Australian Humanities Press, Unley (2004) 1, 7-8; Jacobs, Michael, 'Conduct Unbecoming', Adelaide Review, December 2003, http://www.adelaidereview.com.au/archives/2003_12/issuesand
opinion_story4.shtml and Jacobs, Michael, 'Public Prosecution', Adelaide Review, May 2004,
http://www.adelaidereview.com.au/archives/2004_05/issuesandopinion_story6.shtml.
173 See eg Peter Sallman and John Willis,
Criminal Justice in Australia, Oxford University Press,
Melbourne (1984), 157; Alexis Durham, 'Public Opinion Regarding Sentences for Crime: Does it Exist?' (1993) 21 Journal of Criminal Justice 1; Kathleen Daly, 'Celebrated Crime Cases and the
Public's Imagination: From Bad Press to Bad Policy?' (1995) 28 Australian and New Zealand Journal of Criminology 6; Green, n 63, 115-6; Nigel Walker and Nicola Padfield, Sentencing: Theory, Law and Practice, Butterworths, London (2nd ed, 1996), 75; Stephen Parker, Courts and the Public,
Australian Institute of Judicial Administration, Melbourne (1998), 15; Stephen Shute, 'The Place of Public Opinion in Sentencing Law' [1998] Criminal Law Review 465; Francis Cullen, Bonnie Fisher
and Brandon Applegate, 'Public Opinion About Punishment and Corrections' (2000) 27 Crime and Justice 1, 3; Ulla Bondeson, Alternatives to Imprisonment: Intentions and Reality, Westview Press,
Boulder (2nd ed, 2002); Chief Justice Murray Gleeson, 'Public Confidence in the Judiciary' (2002) 14(7) Judicial Officers' Bulletin 1; Julian Roberts, 'Public Opinion and Sentencing Policy' in Sue Rex
and Michael Tonry (eds), Reform and Punishment: The Future of Sentencing, Willan Publishing,
Cullompton (2002) 18, 26; Crime, Courts & Confidence, n 143, Ch 4; David Indermaur and Lynne
Roberts, 'Perceptions of Crime and Justice' in Shaun Wilson et al (eds), Australian Social Attitudes: The First Report, UNSW Press, Sydney (2005) 141, 152; Mackenzie, n 63, Ch 5 and David Green,
'Public Opinion versus Public Judgment about Crime' (2006) 46 British Journal of Criminology 131.
174 Shadd Maruna and Anna King, 'Public Opinion and Community Penalties' in Anthony Bottoms,
Sue Rex and Gwen Robinson (eds), Alternatives to Prison: Options for an Insecure Society, Willan
Publishing, Cullompton (2004) 83, 87-90. Edney and Bagaric, n 19, [15.3], suggest that public opinion should be ignored altogether in sentencing, arguing that ‘Seeking public views on sentencing is analogous to doctors basing treatment decisions on what the community thinks’. See also Bagaric and Edney, n 88, 133. For sentencers’ views on the role of public opinion in sentencing, see [3.4.5].
31
popularity over other policy considerations.175 There has also been considerable
discussion of the relevance of fear of crime,176 the role of the media in accurately
175 Julian Roberts et al,
Penal Populism and Public Opinion: Lessons from Five Countries, Oxford
University Press, Oxford (2003), 3. The authors pay homage to the classic text, Norval Morris and Gordon Hawkins, The Honest Politician's Guide to Crime Control, University of Chicago Press,
Chicago (1970) by setting out the ‘Honest Politician’s Guide to Responding to Penal Populism’, which proposes, inter alia, improving the measurement of public attitudes and the level of public
knowledge of crime and criminal justice; improving the quality of information available to the media and responding to the media; focusing on effective punishment in the community and improving the public face of the criminal justice system: 167.
For further discussion of the phenomenon of penal populism, also referred to as law and order politics and public or popular punitiveness, see: Anthony Bottoms, 'The Philosophy and Politics of Sentencing Reform' in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon
Press, Oxford (1995) 17, 40; Katherine Beckett, 'Political Preoccupation with Crime Leads, Not Follows, Public Opinion' (1997) 8(5) Overcrowded Times 1, 40; Ian Dunbar and Anthony Langdon, Tough Justice: Sentencing and Penal Policies in the 1990s, Blackstone Press, London (1998);Russell
Hogg and David Brown, Rethinking Law and Order, Pluto Press, Sydney (1998); Adam Sutton,
'Crime Prevention: A Viable Alternative to the Justice System?' in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney
(2000) 316, 328; Don Weatherburn, 'Law and Order Blues' (2002) 35(2) Australian and New Zealand Journal of Criminology 127; Arie Freiberg, 'Penal Populism and Public Opinion: Lessons from Five Countries - Book Review' (2003) 36 Australian and New Zealand Journal of Criminology 223;
Hough, Jacobson and Millie, n 94; Weatherburn, n 76; Rick Sarre and Darren Parker, 'Policy-Making Criminal Justice' in Rick Sarre and John Tomaino (eds), Key Issues in Criminal Justice, Australian
Humanities Press, Unley (2004) 297; Rob Allen, 'What Works in Changing Public Attitudes: Lessons from Rethinking Crime and Punishment' (2004) 1(3) Journal for Crime, Conflict and the Media 55;
John Pratt et al (eds), The New Punitiveness: Trends, Theories, Perspectives, Willan Publishing,
Oregon (2005); Neil Hutton, 'Beyond Populist Punitiveness?' (2005) 7 Punishment and Society 243;
Lyn Hinds, 'Challenging Current Conceptions of Law and Order' (2006) 10 Theoretical Criminology
203; Karen Gelb, Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing, Sentencing Advisory Council, Melbourne (2006), 4; David Brown, 'Time To Get Tougher
on Crime - Again', Sydney Morning Herald (Sydney), 4 January 2007, 11; David Brown, 'Popular
Punitiveness, the Rise of the "Public Voice" and Other Challenges to Judicial Legitimacy' (Paper presented at the Confidence in the Courts Conference, Canberra, 9-11 February 2007) and John Pratt,
Penal Populism, Routledge, London (2007).
176 See eg Mike Hough and David Moxon, 'Dealing with Offenders: Popular Opinion and the View of
the Victims - Findings from the British Crime Survey' (1985) 24 Howard Journal of Criminal Justice
160, 171; Andrew von Hirsch, Past or Future Crimes, Manchester University Press, Manchester
(1986), 169; David Indermaur, 'Public Perception of Sentencing in Perth, Western Australia' (1987) 20
Australian and New Zealand Journal of Criminology 163, 178; Mike Hough, Helen Lewis and Nigel
Walker, 'Factors Associated with 'Punitiveness' in England and Wales' in Nigel Walker and Mike Hough (eds), Public Attitudes to Sentencing: Surveys from Five Countries, Gower, Aldershot (1988)
203, 210; Bottoms, ibid, 47; Don Weatherburn, Elizabeth Matka and Bronwyn Lind, Crime Perception and Reality: Public Perceptions of the Risk of Criminal Victimisation in Australia, Crime
and Justice Bulletin No 28, NSW Bureau of Crime Statistics and Research, Sydney (1996); Mark Brown and Kenneth Polk, 'Taking Fear of Crime Seriously: The Tasmanian Approach to Community Crime Prevention' (1996) 42 Crime and Delinquency 398; Jane Sprott and Anthony Doob, 'Fear,
Victimization and Attitudes to Sentencing, the Courts and the Police' (1997) 39 Canadian Journal of Criminology 275; Warwick Blood et al, Fear of Crime, Criminology Research Council, Canberra
(1998) ; John Irwin, James Austin and Chris Baird, 'Fanning the Flames of Fear' (1998) 44 Crime and Delinquency 32; Deborah Lupton, 'Dangerous Places and the Unpredictable Stranger: Constructions
of Fear of Crime' (1999) 32 Australian and New Zealand Journal of Criminology 1; Deborah Lupton,
'Part of Living in the Late Twentieth Century: Notions of Risk and Fear in Relation to Crime' (2000) 33 Australian and New Zealand Journal of Criminology 21; Zvekic, Ugljesa, Citizen's Appraisal of Security and Criminal Justice: An International Perspective, Resource Material Series, No 56,
UNAFEI, Tokyo (2000); John Pratt, 'Emotive and Ostentatious Punishment' (2000) 2 Punishment and Society 417; Arie Freiberg, 'Affective versus Effective Justice: Instrumentalism and Emotionalism in
Criminal Justice' (2001) 3 Punishment and Society 265, 269; Freiberg, n 96, 189; Roberts et al, ibid,
32
reporting sentencing decisions177 and the role of the court in promoting better
awareness of their decisions.178
Although I do not intend to examine the general literature in detail, I accept that public opinion does indeed play a role in sentencing, a view embraced by the public itself: in the recent Australian Survey of Social Attitudes, 63% of respondents agreed or strongly agreed that ‘Judges should reflect public opinion when sentencing’, with only 23% disagreeing.179 As Roberts observes, the criminal justice system cannot
function without public participation and the effectiveness of legislation can be dependent upon the degree of public support it attracts. In addition, if members of the public hold strongly negative views about the criminal justice system, they will be less likely to report crimes or serve as witnesses. Finally, the views of the public – or Oaks (2nd ed, 2004), 116; Weatherburn, n 76, 24; Brian Renauer, 'Reducing Fear of Crime: Citizen, Police, or Government Responsibility?' (2007) 10(1) Police Quarterly 41 and Murray Lee, Inventing Fear of Crime, Willan Publishing, Cullompton (2007).
Note that the Tasmanian Commissioner of Police, has suggested that ‘Community protection and
reducing the fear of crime ought to be the prime objective of all sentencing practice…The ‘sublimated
vengeance’ of punitive sentencing has no place in a liberal democracy’: Commissioner of Police, Richard McCreadie (Submission 2), Sentencing IP Responses, n 41.
177 Ivan Potas and John Walker,
Sentencing the Federal Drug Offender: An Experiment in Computer- Aided Sentencing, Australian Institute of Criminology, Canberra (1983), 11; David Brown, 'A
Changing Climate for Penal Reform' (1986) (July) Australian Society 24, 24; Anthony Doob and
Julian Roberts, 'Public Punitiveness and Public Knowledge of the Facts: Some Canadian Surveys' in Nigel Walker and Mike Hough (eds), Public Attitudes to Sentencing: Surveys from Five Countries,
Gower, Aldershot (1988) 111, 131; Peter Grabosky and Paul Wilson, Journalism and Justice, Pluto
Press, Sydney (1989); Philip Schlesinger and Howard Tumber, Reporting Crime: The Media Politics