What is a sentence?
A sentence is a punishment for a crime, any crime – from murder to drink driving. If a judge or a magistrate (“the court”) gives you the penalty it is a sentence. Fines, community service orders, probation orders – all of these are sentences, and the ability to hand down one of these sentences is contained in the Sentencing Act. Where someone receives a fine for drink driving or driving without a license, it can be a relatively easy process of sentencing, but the process of sentencing is not always an easy one. Crime is complicated and sentencing is complicated because of the nature of crime. The more serious the offence, the more serious the penalty – the deprivation of liberty through a sentence of imprisonment is the most serious penalty.
Under the Sentencing Act, there are a number of possible sentences or ‘sentencing orders’ (section 7). There is also an option to record a conviction or non-conviction (section 9). Sentencing orders can be combined (section 8). There is also the possibility of imposing a ‘global’ sentence, which means one sentence for many crimes without the need for the court to stipulate what each offence attracted as a penalty. Here are listed possible sentencing orders under section 7 of the Act, with explanations of the sentencing order:
- A term of imprisonment with a maximum of 21 years in Tasmania
- Wholly or partially suspended term of imprisonment
- A drug treatment order
- A community service order
- A probation order
- A fine
Terms of Imprisonment
While the maximum penalty for an offence is 21 years, there are exceptions. Where the offence is murder or treason, there is no maximum penalty. There are also orders called ‘dangerous criminal declarations’, which can be applied for by the Crown and permit indefinite detention. These are only granted in exceptional cases. A dangerous criminal order can only be made where the offender has been convicted for a crime involving violence, has at least one prior conviction for a crime involving violence, is over the age of 17 years, and the judge is of the opinion that the declaration is necessary for the protection of the public. The onus is on the party seeking the declaration. However, once the declaration is in place, the applicant must satisfy the court that the declaration is no longer warranted for the protection of the public. Mark ‘Chopper’ Reid was the subject of a dangerous criminal declaration. He also successfully applied for a discharge of the declaration. See Division 3, particularly sections 19 and 20.
Suspended sentences, while often viewed as a lighter option, can be reactivated if during the suspension period, a person is caught offending. Courts can make either a wholly suspended sentencing order, or a partially suspended order. Wholly suspended is usually for first time offenders.
Remissions can apply for sentences over 3 months in length. The standard is generally:
No remissions for sentences up to and including 3 months. However, for sentences over 3 months, remissions work out that for every 2 weeks served 1 week comes off after 3 months has gone past. But note, this is to a maximum of 3 months off. This is the maximum amount of time remitted by the courts.
3 months = no remission
6 months = 1 months remission to serve 5 months
9 months = 2 months remission to serve 7 months
12 months = 3 months remission to serve 9 months
Drug treatment orders
Drug treatment orders are restricted to offences that do not involve sexual offences or bodily harm that was not, in the court’s opinion, minor. They are a means of diversion from the justice system. A number of conditions have to be met. Firstly, that the offence was not sexual or occasioned more than minor bodily harm. Secondly, there is demonstrable history of illicit drug use and that drug use contributed to the commission of the imprisonable offence or offences. Thirdly, that the court would have sentenced the offender to a term of imprisonment if not for the making of a drug treatment order. In order to make a drug treatment order, the court must have received and considered a drug treatment order assessment report on the offender. On the offender’s part, the offender cannot be subject to a current sentencing order, parole order, or another drug treatment order. See Division 3A of the Sentencing Act. For conditions under which a Court may make a drug treatment order see section 27B.
Community Service Orders
Interestingly, Tasmania was the first jurisdiction in Australia to introduce community service orders. Once an alternative to imprisonment, they are now more generally available as an option in addition to imprisonment. Community service orders are not simply confined to the performance of unpaid work. Section 32 of the Sentencing Act takes account of probation officer directed attendance at educational or other programs as time performing community service hours (section 32). If a person breaches a condition of a community service order, the courts can cancel the order and resentence the offender as though just finding the offender guilty, increase the number of community service hours, or confirm the order as originally made. In determining how to deal with the offender, the court must take account of the extent to which the offender has complied with the order before committing the breach (section 36). See Part 4 of the Sentencing Act.
Probation orders have a number of restrictive conditions that must be followed by an offender. Not least among these is the requirement not to commit an offence punishable by imprisonment. Reporting and supervision conditions apply, including notification of change of address or employment (section 37(1)). Other special conditions include:
- Attendance at education or other programs
- Assessment and treatment for drug or alcohol dependency
- Testing for drug or alcohol use
- Medical, psychological or psychiatric assessment or treatment (section 37(2))
The maximum length of a probation order is 3 years. If an offender breaches a probation order the order may be confirmed, varied in its special conditions, increased in its length, or resentence the offender as though just finding the offender guilty. As with community service orders, the extent to which the offender has complied with the probation order must be considered by the court in dealing with the breach.
Fines are measured in ‘penalty units’. Penalty units are increased at the beginning of each financial year..