Victoria’s Sentencing Advisory Council has proposed expanding the reasons a judge can delay sentencing an offender to an immediate term of imprisonment to include a much wider array of reasons.
At present, courts can impose a pause of up to 12 months to allow people convicted of a crime to focus on rehabilitation, but the Council believes it’s time to also consider the impact on prisoners’ families, victims and the community.
Currently, five purposes exist under the Sentencing Act; four are directly focused on rehabilitation.
These include: so offenders and victims can take part in restorative justice; so offenders can have medical treatment or surgery; if a delay is in the best interest of the offender’s dependent child; for reasons linked to an Aboriginal person’s cultural background; and to allow young offenders to access rehabilitation programs.
This would provide a “more balanced approach,” the report claims.
Attachment Is Important: Council
The Sentencing Advisory Council believes delaying prison terms for pregnant women would be better for the child compared to immediate sentencing.The Council’s director, Professor Marilyn McMahon, said it was important to encourage attachment between prisoners and their children, as any child denied this is at risk of growing up particularly vulnerable, disadvantaged, and at risk of complex trauma.
“Making it clear that these are appropriate reasons to defer sentencing has the potential to reduce harm to children and improve their long-term outcomes and to protect the community by interrupting the cycle of intergenerational offending,” Ms. McMahon said.
“If prison is inevitable, sentence deferral can also enable parents to make caring arrangements for their children and settle them into their new environment first.”
Best Interests of the Child Should Be Considered: Aboriginal Legal Service
The reform proposal is supported by the Victoria Aboriginal Legal Service’s (VALS), which recommended in its submission to the 2022 Inquiry into Children of Imprisoned Parents that the judiciary “should examine the possibility of a reasonable suspension of pre-trial detention or the execution of a prison sentence and their possible replacement with community sanctions or measures.”“Where a custodial sentence is being contemplated, the rights and best interests of any affected children should be taken into consideration and alternatives to detention be used as far as possible and appropriate, especially in the case of a parent who is a primary caregiver,” the VALS submission said.
The Sentencing Council also called for the duration of deferrals to be increased to 18 months in some circumstances, and to add the Supreme Court to those bodies which have the power to order delays. Currently, such orders are only permitted in magistrates’ and county courts.
The report says most of the people given delayed sentences are young adults, and the tactic is most effective when an offender is “on the cusp” of a punishment that doesn’t involve prison, such as community correction orders or sentences without convictions.
“For someone facing a likely prison sentence, performing well during deferral could be the tipping point that keeps them out of prison and halts their offending pathway,” it said.
