Appealing a Sentence- Can I get my sentence suspended?

By Alex Panousakis


Pursuant to section 38(1) of the Criminal Law Sentencing Act 1988 (“Sentencing Act”), where a court thinks that the offence for which an offender is being sentenced is serious enough to warrant imprisonment, or where the applicable offence is such that a term of imprisonment must be imposed in any event, a court may wholly or partially suspend any sentence of imprisonment to be imposed if it considers that there are good reasons to do so. The term “good reasons” is a necessarily vague one, both generally and in the criminal law context, and with good reason: it indicates the wide discretion that sentencing Judges and Magistrates have to take into account circumstances unique, peculiar and relevant to a particular offender when deciding whether or not to suspend a given sentence of imprisonment. Factors to be taken into account by judicial officers when deciding whether or not to suspend sentences are many and varied, and include the offender’s health and employment history, their past good character, their prospects of rehabilitation and their access to family and community support, any contrition and remorse shown by the offender and their antecedent criminal history.

Failure to suspend a sentence where good reasons exist to do so can constitute an appellable error by a judicial officer in the sentencing process. In those circumstances, it is said that (and the ground of appeal to be complained of is) that the discretion being exercised by the the relevant Judge or Magistrate in relation to suspension has miscarried. In South Australia, appeals against sentence (including appeals against sentences which have not been suspended) are heard: (i) by a single Judge from a decision of a Magistrate (except in respect of major indictable offences, in which case an appeal lies to the Full Court) or (ii) to the Court of Criminal Appeal with the permission of that Court against sentences handed down in the District and Supreme Courts.

In South Australia, sentencing standards are set by the Court of Criminal Appeal. To that end, there are and will always be offences considered to be too serious to warrant suspending a suspended except in truly exceptional circumstances (e.g. child pornography offences: see R v Padberg), even in the case of first time offenders and particularly where the offender has relied on or taken advantage of his good character and standing in the community to enable or procure the commission of the offence in question, which are the very factors that would otherwise have spoken strongly in favour of suspending any sentence (e.g. historical or non-historical child sexual offences, in which and where an offender has abused a position of trust or authority, and also certain offences of dishonesty or fraud).

There are also certain offences in respect of which the Parliament has enacted laws to severely limit or curtail entirely the discretion of judicial officers to  suspend sentences. For example, a court may not suspend more than four-fifths of a sentence of imprisonment if the person is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence (manslaughter or causing serious harm: Sentencing Act 1988 s 38(2)(b). Also, unless exceptional circumstances exist (in which case certain limitations apply), a court may not suspend the sentence if the person is being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence and, during the five year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence (see further the Sentencing Act sections 38(2)(c), 38(2)(d), 38(2)(ba) and 38(2c)).

Where a judge has declined to suspend a suspend a sentence of imprisonment imposed in one of the above instances, any appeal to the Supreme Court or Court of Criminal Appeal against the failure to suspend will necessarily be difficult. However, in respect of most other offending, where good reasons particular to the offender in question exist to justify doing so, it is not uncommon for wholly or partially suspended sentences to be imposed in respect of very serious offending and even, rarely, in respect of extremely serious crimes (e.g. manslaughter).

It must be remembered at all times that a suspended sentence is nevertheless a sentence of imprisonment and not a “soft option” or “no penalty at all”, as some have chosen to describe it.

We would be pleased to advise as to the prospects and merits of an appeal against any immediate custodial sentence which has not been suspended. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance. Call 0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033. For a free review of your matter, please make a booking here and one of our solicitors will be in touch within 24 hours.