With the assent of the Sentencing Further Amendment Act 2011 (the “SFA Act”) on 12 April, the Victorian Government has taken its first step towards implementing its commitment to abolish suspended sentences. The SFA Act inserts the definition “significant offence” into the Sentencing Amendment Act 2010 (the “2010 Act”). The 2010 Act will commence on 1 May 2011, amending the Sentencing Act 1991 (the “Principal Act”) which means that from 1 May suspended sentences for serious crimes will be abolished.

The SFA Act abolishes suspended sentences for the following “significant offences”:

• recklessly causing serious injury;
• commercial drug trafficking;
• aggravated burglary; and
• arson.

In the opening line of his second reading speech, the Victorian Attorney-General, the Hon Robert Clark, explains the rationale behind the amendment: “Suspended sentences are a fiction that pretends offenders are serving a term of imprisonment, when in fact they are living freely in the community.” Hence the aim is for more transparency – if judges believe a jail sentence is not appropriate they can consider imposing a non-custodial sentence from the outset.

Old suspended sentences continue in force

The SFA Act directly amends the Sentencing Act 1991 to allow for the continuation of significant suspended sentence orders that were in force immediately before the commencement of the Sentencing Amendment Act 2010. Likewise, significant offences committed before the commencement of the new sentencing regime are not subject to the amendment, regardless of whether the offender is found guilty before or after the commencement.

The SFA Act also amends the Principal Act to expand the Board of Directors of the Sentencing Advisory Council. It will be mandatory for the Council to include a representative of victims of crime, and a member of the police force actively engaged in criminal law enforcement duties.

As the second reading speech makes clear, the Sentencing Further Amendment Act 2011 is intended to be the first in a suite of amendments aimed at abolishing suspended sentences for all offences. This will mark a major change to criminal sentencing in Victoria. A perusal of Victorian Court of Appeal judgments illustrates its extensive use as a sentencing option. The removal of the judicial discretion to suspend all or part of a sentence may cause Victorian judges to approach sentencing in an entirely different fashion. Time will tell.