Deferral of Sentence
The article Deferral of Sentence is written by Doogue + George Defence Lawyers.
Doogue + George are experts in criminal law and have been involved in thousands of criminal matters and defended clients in hundreds of jury trials and thousands of other criminal cases. Our experienced lawyers have unparalleled experience in criminal law.
There are many sentencing options available to a Judge or Magistrate when a person pleads guilty to criminal offences in Court. The sentencing process itself involves the consideration and weighing of many factors,1 and often competing principles and purposes.2 Frequently, Sentencing Courts will be presented with a number of factors – both those that are aggravating (tending to increase the seriousness of the offending or culpability of the offender) and mitigating (tending to reduce offence seriousness and offenders’ moral culpability). This balancing act makes it no easy task to formulate a sentence which strikes the appropriate balance among all factors.
Deferral of Sentence
One tool available to the Magistrates’ Court and County Court which can assist in striking this balance is a deferral of sentence. On a finding of guilt, deferral of sentence enables Courts to postpone sentencing for a period of up to 12 months. To do so, the Court must be of the opinion that deferral is in the interest of the person pleading guilty and the person must consent.
Available in the Magistrates’ Court since 2000 and in the County Court since 2012, the power to order a deferral is found at s.83A of the Sentencing Act 1991 and is a broad and discretionary one allowing a deferral for the following purposes:
- Assessing a person’s capacity and prospects for rehabilitation.
- Demonstrating the person’s rehabilitation.
- Participation by the person in programs aimed to address underlying causes of the offending or impacts of their offending upon the victim.
- Or, for any other purpose the court considers appropriate when having regard to the person and circumstances of the case.
During the deferral period, the Court may order that the person subject to the deferral return to Court for a review of their progress and that pre-sentence reports be prepared. Upon the return of the deferral and in determining an appropriate sentence, the Court must have regard to the person’s behaviour during the period of deferral and any pre-sentence report, as well as any other relevant matters. These may include the person’s rehabilitation, participation in programs, treatment, counselling, and other pro-social factors such as housing, family, and the ability to avoid reoffending.
Through this process, deferrals offer an opportunity for people to engage in rehabilitation and education, participate in restorative justice programs, and demonstrate their capacity for reformation, recovery, and treatment. In doing so, it provides a unique opportunity that would otherwise not be available when sentenced at first instance. It also provides the Courts with valuable information and mitigatory material which must be considered.
Benefits of a Deferral
Deferrals of sentence are an invaluable sentencing tool, providing benefits not only to our clients but also to victims and the wider community. In the right circumstances, deferrals have been proven exceptionally effective, though remained vastly underutilised by both the Magistrates’ and County Courts, with only 0.4% of sentences recording a deferral between 2012-2019.
Benefits to Clients
An integral benefit of deferrals is the flexibility and opportunity they offer our clients for rehabilitation and diversion from the criminal justice system. By prioritising rehabilitation, deferrals create an opportunity for Courts to intervene and circumvent offending behaviours whilst allowing clients to remain within the community and connected with established support networks. This flexibility in permitting our clients to rehabilitate and stabilise their lives in structured and familiar environments can be instrumental in their reformation, demonstrating capacity for change, rehabilitation, and ability to remain in the community without reoffending.
Further, by allowing our clients the time, opportunity, and support to address the underlying issues of their offending, deferrals can avoid an escalation in the sentencing hierarchy and the further entrenching of clients in the criminal justice system. By doing so under purview of the Court, clients are more accountable and responsive to rehabilitation, empowered to demonstrate to the Court their capacity to reform and address underlying offending issues; in turn, allowing the Court to better tailor suitable and appropriate sentences. This is also applicable to those assessed as higher risk or deemed to be a higher risk of more serious offending, with deferrals providing appropriate Court supervision and intervention to address risk and compliance concerns, whilst facilitating rehabilitation.
Benefits to Community and Victims
However, deferral of sentencing is not only of benefit to people pleading guilty to criminal offences. The rehabilitative intervention of deferrals is often critical in rerouting people away from criminal activity and recidivism. By providing an opportunity to prove that they will not reoffend, and receiving support for offending factors, deferrals can address the behaviours and causes of crime, preventing future and more serious offending; in turn, contributing to safer communities overall.
Equally, a deferral’s ability to facilitate participation in programs about the impacts of offending upon victims creates space for restorative justice. Restorative justice permits victims to meaningfully participate in the criminal justice process, providing a framework for addressing and preventing harm and promoting healing. These processes serve to improve victims’ experiences by placing victims and the community at the forefront of positive justice, ultimately aiming to reduce victims’ anxieties, trauma, and feelings of powerlessness.
Criminal Justice System
On a broader level, deferrals also further play a vital role in addressing the disproportionate impacts the criminal justice system has upon low-socioeconomic and vulnerable clients, First Nations Peoples, and clients with disabilities and mental health or substance misuse issues. By taking a step back from the rigidity of the criminal justice system and sentencing process, a deferral allows for an effective and flexible sentencing option which promotes rehabilitation, empowers clients by offering control and participation in the trajectory of their futures, and provides an opportunity for reformation and rehabilitation.
Recently, a client of Doogue + George Defence lawyers was afforded the benefit of a deferral of sentence. Our client had pleaded guilty to multiple charges across multiple matters. At the time of the offending, our client was a victim of family violence and struggled with substance misuse and dependency. The Court offered a four-month deferral to allow our client to engaged with appropriate services and commence a claim through the Victims of Crime Tribunal for the violence they had suffered. Upon the return of the matter, the Court considered the progress made and evidence was provided for this, ultimately assisting our client to avoid a term of imprisonment.
Though sentencing is a complex exercise, there are many and variable options available to the Courts that can achieve just and fair outcomes for our clients. Deferrals of sentence are a prime example of this. The benefits of a deferral of sentence are numerous and wide reaching, achieved through their promotion of rehabilitation, restorative justice, and empowerment of offenders to prove that they can reform and avoid recidivism. Yet unfortunately, they are underutilised by Courts. Given these clear benefits, practitioners should be encouraged to raise and advocate for deferrals for their clients where possible.