Chapters

The Sentencing Act 1997 (Tas) (s7) sets out the sentencing options which courts can impose.

Imprisonment

The Criminal Code 1924 (Tas) does not set out specific penalties for particular crimes. Section 389 of the Code provides for the punishment of any crime by a period of imprisonment of up to 21 years or by fine. In practice, the courts have developed an informal scale of penalties for particular crimes. In a case of murder a life sentence is the maximum penalty. The Supreme Court can also impose any other penalties available under the Sentencing Act such as probation, community service orders and suspended sentences.

Where the court does not state the commencing date of a sentence, it takes effect from the day on which it is passed by the judge. The judge will be told what date the accused was first taken into custody, and normally orders that the sentence commence from that date.

If an accused is convicted of more than one offence, there are separate sentences for each offence and the judge generally orders that the sentences be served at the same time (‘concurrently’). The judge may, however, increase the time the accused will spend in prison by directing that the sentences be served one after the other (‘cumulatively’).

The court may (although it is rare) declare a person, with previous convictions, who has been convicted of a violent crime, to be a dangerous criminal. That person is then to be detained during the Governor's pleasure (Sentencing Act, s19).

Normally the section of the Act which creates an offence, also lays down the maximum period of imprisonment. The magistrate is able to impose a lesser period of imprisonment than this maximum (which is normally reserved for the worst type of conduct which could constitute the offence). Generally, magistrates are dealing with Acts that only allow them to impose up to one year's imprisonment for a first offence (five years for a second or subsequent offence). Exceptions are drug cases and indictable offences dealt with summarily under the Justices Act, where up to two years' imprisonment can be imposed by magistrates. Three years imprisonment can be imposed in cases of motor vehicle stealing.

The magistrate may direct that a sentence of imprisonment not commence until the defendant has completed a term of imprisonment which is already being served.  Sentences of imprisonment may be either concurrent (to be served at the same time) or consecutive or cumulative (to be served one after the other).

Adjournments with Conditions

Under the Sentencing Act (s7(f)) a court may release a defendant and adjourn the proceedings for a period up to five years on the defendant’s giving an undertaking with conditions attached.  Conditions for adjournments are:

  • that the offender must appear before the court during the period of the adjournment if called on to do so and, if the court so specifies, at the time to which the further hearing is adjourned;
  • that the offender must be of good behaviour during the period of the adjournment;
  • that the offender must observe any conditions imposed by the court (s59).

If the person doesn’t comply with the conditions, they will be called up before the court and the original matter will be reconsidered. At the hearing of the breach the prosecution will have to prove both the fact of the original offence, as well as proving the breach. After hearing evidence of the breach and any evidence that the defendant may call, the magistrate may decide either to take no action, or to impose a sentence for the original offence.

Suspended Sentences/Combined Sentences

Where a sentence of imprisonment has been imposed, this may be suspended with conditions.  If the conditions of a suspended sentence are breached, the most usual course is for the court to order that the sentence take effect, but a shorter term of imprisonment or any other sentence that could have been imposed for the original offence may be imposed (though not a longer sentence than the one suspended) (Sentencing Act, s27).

Probation

A probation order places the defendant under the supervision of a probation officer for up to three years. This means that a probation officer will maintain contact with the person to ensure that their living and work arrangements and other aspects of that person's life are satisfactory. The defendant should tell the probation officer of changes of address, work and such like circumstances.

Conditions of probation orders are similar to those for community service orders.

In addition, the offender must if directed to by the court or probation officer: attend educational and other programs; undergo assessment and treatment for alcohol or drug dependency; submit to testing for alcohol or drug use; and submit to medical, psychological or psychiatric assessment or treatment. Breaches of a probation order are similar to those for breaches of a community service order.

Community Service Orders

Instead of sentencing a defendant to prison, a magistrate may order that the defendant carry out some unpaid work, service or activity, up to a maximum of 240 hours (10 days). These are known as ‘community service orders’ or ‘work orders’. This sentencing option is only available where an officer from the Community Corrections Service reports that work is available in the defendant's area, and that the defendant is a suitable person for such an order.

The conditions for a community order are that:

  • the person must not commit any offences punishable by imprisonment while on the order;
  • they must report within a day to a probation officer or supervisor;
  • they must satisfactorily perform the community service and comply with the reasonable directions of a probation officer or supervisor;
  • they must give notification to a probation officer of any change of address or employment within two clear working days;
  • they mustn’t leave Tasmania without permission;
  • they must attend educational and other programs as directed by a probation officer (time spent on any such program is counted towards the community service) (Sentencing Act, s28).

Failure to comply with a community service order can lead to a fine being imposed not exceeding 10 penalty units or imprisonment not exceeding 3 months. In addition the community service order might be increased or the person may be re-sentenced for the original offence

Fines

Fines, restitution orders and compensation orders can all be imposed, although the court will look at the offender’s ability to pay before imposing all of these (Sentencing Act, s43).
Fines are collected by the Magistrates Court (including those imposed by the Supreme Court) (Sentencing Act, s45). Time will usually be allowed to pay or the fine may be paid through instalments.

If the fine is not paid when it is due, the fine may be treated like a civil debt by the Magistrates Court (Civil Division) which means that the person’s assets may be seized (Sentencing Act, s53).

Alternatively a warrant might be issued and when the person is brought before the court, a range of other sentencing options may be looked at. One option is imprisonment and if the person fails to pay the fine, they may be imprisoned for one day for each penalty unit of the fine. In this case they will be brought before the court on a warrant of apprehension. Continued failure will mean that a warrant of commitment is issued. This means the person goes straight to jail to serve out the fine unless they can pay off the fine on the spot.

However it is usual for fine defaulters to be given a further chance to pay the fine before being jailed. The fine may be changed into a community service order at the rate of 7 hours for each prescribed unit. A defendant who is having difficulty paying a fine should ask for time to pay at the Monetary Penalties Enforcement Unit or apply to the Clerk of the Court at the court where the fine was imposed. The Monetary Penalties Enforcement Unit can be contacted on 1300 366 776 or by email at fines@justice.tas.gov.au.

No Conviction Recorded

Where the court thinks that a charge is proved, but considers that the offender, because of their character, antecedents, age, health or mental condition (or because of the trivial nature of the offence, or its extenuating circumstances) should not be punished or be only nominally punished, the magistrate may, without proceeding to a conviction, make an order either dismissing the charge or adjourn the case with conditions (see above) (Sentencing Act, s7(h)). Such a finding is very important, because it does not have the effect of a conviction.

Restitution

A magistrate may order a defendant to restore stolen goods to the victim, either that person’s goods or the equivalent money value (s65). Similarly the court may order the defendant to pay compensation for injury or loss sustained by a person through the defendant's act of burglary, stealing or damage to property (s68).

Area Restriction Order

An area restriction order is an order of the court that a person must not loiter in an area during such times as are specified in the order.

Court Costs

Court costs are usually imposed on a defendant if they plead, or are found guilty, of an offence. These may be 'remitted' in case of especially needy circumstances. Where a charge is brought by a private person (including an officer from a government department), the defendant may have to pay legal costs if found guilty.

A defendant, whether convicted or successful in their defence, may also apply for an order of costs against the prosecutor under the Costs in Criminal Cases Act 1976 (Tas). A certificate may be given if the magistrate finds that on or before the commencement of proceedings, the prosecution had sufficient material available to indicate that it was not reasonable to proceed, and that any act or omission of the defendant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances. If these costs are not paid, the informant can be imprisoned for one day for each penalty unit of costs ordered. This is particularly relevant to private prosecutions.

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