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Abolition of suspended sentencing will jail the wrong people - Fascism alive and well

Tony had never been in trouble with the law but briefly lost his cool in a racist road rage incident he regrets. He'd been under stress, working long hours to keep up with his mortgage. His wife had just had their first baby and was a full-time mum. If Tony went to jail he'd lose his job and his family would be left totally without support. The court gave him a suspended sentance, which allowed him just one more chance. Come September 2014 the option of a suspended sentence will cease to exist in Victoria.

New shipping container cells being installed at Dhurringile Prison (www.abc.net.au)

Michael Challinger The Age 14 August 2014

A few months ago I appeared in court for a client facing road rage charges. A car had tried to squeeze into his lane and he wouldn't give way. At the next red light the drivers traded insults and gave each other the finger. Finally the other driver made a racial taunt and Tony snapped.

He stormed over to the other car and threw a single punch. It broke the victim's cheek bone. Tony was charged with assault and causing injury.

Whatever the provocation, the incident called for a jail sentence. For one reason, nothing less than jail reflected the gravity of the victim's injury. For another, road rage is so prevalent courts have to impose stiff sentences to deter others.

Tony, though, had never been in trouble before. He'd briefly lost his cool and immediately regretted it. He'd been under stress, working long hours to keep up with his mortgage. His wife had just had their first baby and was a full-time mum. If Tony went to jail he'd lose his job and his family would be left totally without support.

Was he worth one last chance? Did he merit a suspended sentence? The court thought so. It sentenced him to three months imprisonment, suspended for a year

That meant Tony had three months jail hanging over him. If he committed an offence in the next year he'd trigger the sentence and serve the three months. If he stayed out of trouble he wouldn't go to jail at all.

Come September the option of a suspended sentence will cease to exist in Victoria. Suspended sentences were closed off to the higher courts last year. On 1 September 2014 they'll be abolished altogether. Someone in Tony's position will go to jail.

Suspended sentences are available in every other jurisdiction in Australia and most countries that share our common law system: Britain, New Zealand, Canada, the United States.

They are being abolished in Victoria as part of a campaign for truth in sentencing. Critics argued that a jail sentence wasn't a jail sentence if the offender didn't have to serve it.

These Victorian Police squads, along with further back-ups, were ordered to play havoc with peaceful protesters in the 2011 occupy rallies, simply triggered by a phone call from the city council Mayor.

They also argued a suspended sentence was a soft option - though it was not as soft as you might think. The jail term appears on a person's criminal record and stays there for all time. And if the offender breaches it, the sentence comes into effect almost automatically. A suspended sentence is designed to prevent reoffending – which a prison sentence alone often fails to do.

If you think Tony deserved immediate jail, consider another example.

Nathan, a drug-user, committed a dozen burglaries and served 18 months jail for them. On his release he turned his life around and stayed out of trouble for a year. Then DNA evidence turned up one last burglary he'd committed years before.

What do you do with him? Send him back to jail? The court gave Nathan a suspended sentence too.

You might disagree with suspended sentences in particular cases. You might argue that they were overused. But the issue is whether they should remain as a sentencing option at all.


'Operation Bastards'
(Michael Leunig)

Almost every criminal lawyer in Victoria thinks it's a mistake to remove them entirely from the range of sentences a court can impose. So do most magistrates and judges. In fact, I don't know of any who support their abolition – nor any police prosecutors for that matter. We all think suspended sentences have their place.

They give offenders one last chance, while ensuring that if they put a foot wrong they go to jail. The idea of “one last chance” is one most parents are familiar with.

Without suspended sentences, people like Tony and Nathan will end up doing time. They'll lose their freedom, their jobs and perhaps their homes and family. They'll rejoin the rest of us having spent months rubbing shoulders with criminals at public expense.

So what will happen after September 1? The best guess is that many offenders the courts think shouldn't go to jail will end up doing so. How many remains to be seen. The Sentencing Advisory Council warns of the risk of “a substantial and unsustainable increase in the prison population”.

Still, maybe the government actually knows what it's doing. It's busy selling off schools and building prisons!

Michael Challinger is a Melbourne barrister.
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