Criminal Law

Sentencing In Western Australia

Whether you are convicted of an offence by way of your own plea of guilty or you are found guilty following a trial the court then proceeds to sentencing. That involves a decision by the court on what penalty to put in place.

The following are the penalties that a sentencing court can impose in WA courts:

  • Financial Penalty
  • Community Based Order
  • Intensive Supervision Order
  • Suspended Imprisonment Order
  • Conditional Suspended Imprisonment Order
  • Immediate Imprisonment

Obviously, the most undesirable outcome for anyone being sentenced is a term of immediate imprisonment. However under the Sentencing Act WA a sentence of immediate imprisonment is a sentence of last resort and must not be imposed unless it is justified by the seriousness of the offence or the need to protect the community requires it.

At the other end of the scale there is a financial penalty, which, if certain criteria are met, can sometimes be accompanied with a spent conviction order. This means that the conviction will not be recorded against your name. In between there are various orders that the court may decide to put in place.

Community Based And Intensive Supervision Orders

A community based or intensive order is a mid level penalty designed to impose both punitive and rehabilitative measures on the offender. In achieving the rehabilitative aims under a community or intensive supervision based order the court will generally impose program and supervision requirements to which the offender is to comply.

Supervision Requirement

The supervision requirement of the order involves a series of appointments with the Department of Community Corrections. Community Corrections are assigned by the court to keep in touch with the offender and to speak to them about what’s going on in their life during the course of the order. Sometimes it might require the offender to be subject to urinalysis tests.

Program Requirement

The program requirement is more onerous. Community Corrections can send the offender off to any qualified person: a doctor, a psychologist, a psychiatrist, or a counselor. They can ensure that group counseling or one on one counseling takes place and any other form of therapy that is deemed appropriate in order for the offender to address any issues which previously acted as a precursor and catalyst to the offending.

In achieving punitive measures under a community or intensive based order the court may also attach conditions for the offender to complete unpaid work in the community.

Breach Of A Community Based Or Intensive Supervision Order

A community based or intensive supervision order may be breached in either of two ways. It can be breached by failing to comply with the conditions imposed or alternatively by way of reoffending during the course of the order. Either way will see the offender being brought back to the court to be re sentenced for the offence or offences for which the community or intensive supervision order was imposed.

Suspended Imprisonment Orders And Conditional Suspended Imprisonment Orders

A suspended imprisonment order is a term of imprisonment which is served in the community. The aim of a suspended sentence is to strike a balance between undermining the seriousness of the offending and allowing the offender to rehabilitate by not sending them to prison.

When a term of imprisonment is put in place the term of the imprisonment is announced followed by the length of the period in which the suspension is to operate. For example the court may impose 12 months imprisonment and order it to be wholly suspended for a period of 18 months.

Why Do Courts Impose Suspended Imprisonment?

Suspended terms of imprisonment are often imposed because the court considers that the community interests are likely to be better served in the long run by giving the offender the opportunity to serve their sentence in the community while maintaining employment and maintaining a relationship with their family rather than imposing immediate imprisonment and run the risk of undoing the efforts that the offender may have already made to rehabilitate.

Breach Of A Suspended Imprisonment Order:

If a person who is subject to a suspended imprisonment order commits an offence during the suspended period and the offence is potentially punishable by a term of imprisonment the offender is in breach of the suspended imprisonment order. In these circumstances the starting point is that the offender must serve the term of imprisonment that was suspended unless there are circumstances which would make it unjust for the court to do so.

Conditional Suspended Imprisonment:

The District and Supreme Courts often impose what is called a conditional suspended imprisonment order which is a suspended imprisonment order with program and supervision requirements and conditions attached similar to those described above in a community based or intensive supervision order.

Any non compliance with the conditions of a suspended imprisonment order will also result in a breach and the offender will then be resentenced for the offences for which the suspended imprisonment order was imposed. So if a person breaches the conditions of a suspended imprisonment order and they have not shown themselves to be genuine in their efforts to rehabilitate, then the odds on them being able to persuade the court not trigger or activate the suspended term are remote.

What You Need To Be Aware Of If You Are Placed On A Conditional Suspended Imprisonment Order:

For a person who is subject to a conditional suspended imprisonment order it boils down to two things. You need to stay out of trouble and you also need to comply with the program and supervision requirement.  And if you are able to do this it also means at the end of the period of suspension you are no longer at risk of having the term of imprisonment activated.

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