Suspended sentences and preventive sentences: illusory evils and disproportionate punishments mirko bagaric

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I. Introduction

A suspended sentence threatens future harm for criminal conduct that has already occurred. It is a term of imprisonment, the execution of which is wholly or partly suspended. Ostensibly, it is a heavy sanction. Available in most Australian jurisdictions and in the United Kingdom, it is frequently employed to punish serious breaches of the criminal law. For example, in 1996 there were over five thousand suspended sentences imposed in Victoria alone.1 During this period, in the County and Supreme Courts of Victoria (which have jurisdiction over the most serious criminal offences) the suspended sentence was the second most commonly imposed sanction, comprising about 30 per cent of all sanctions.2 On the face of it, such figures are unremarkable and are unlikely to prompt consternation, since the popularity of the suspended sentence among sentencers is matched by the enthusiasm for them among recipients. It has been noted that “a defendant who has committed an offence so serious as to merit imprisonment but who has had that sentence wrongly suspended is obviously more likely to be out celebrating than dashing to the Court of Appeal”.3 It will be argued that there is good reason for offenders’ enthusiasm towards suspended sentences; they do not constitute a recognisable form of punishment at all.

This paper considers the nature of the suspended sentence, particularly the pragmatic and conceptual difficulties with it. Following an analysis of the concept of punishment, it is contended that the suspended sentence is merely an illusory unpleasantness and should therefore be abolished as a sentencing option. Further, recent recommendations to reintroduce suspended sentences as a sentencing option in New South Wales,4 the only jurisdiction in Australia where it is presently unavailable, should be rejected.

The suspended sentence will then be compared with the preventive (or protective)5 sentence, which, it is argued, is the logical converse of the suspended sentence. A preventive sentence inflicts immediate harm on an ‘offender’, normally in the form of imprisonment, on account of threatened future criminal conduct; while the suspended sentence threatens a future evil (in the form of restoration of the term of imprisonment which has been suspended) for criminal conduct that has already occurred. Suspended and preventive sentences are also alike in that both violate the principle of proportionality, which forms another basis on which suspended sentences should be abolished. Despite this symmetry, suspended sentences are generally widely accepted, while preventive sentences are almost universally condemned.

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