Suspended Sentence

A suspended sentence is a form of imprisonment, however, the execution of the sentence (i.e. sending the offender to gaol) is suspended.

Why suspend a sentence? According to the NSW Parliament, a suspended sentence is a heavier penalty than if the offender were to enter into a bond. A suspended sentence imputes the seriousness of the offence committed and there are serious consequences should the offender re-offend, so they encourage the offender to be on their best behaviour.

Before deciding whether an offender should receive a suspended sentence, the court must consider the following :

  1. The court has no option but to sentence the offender to imprisonment – i.e. does the offence committed in the circumstances of the accused warrant a gaol term; and
  2. How long the sentence should be – the judge will not turn their mind to the manner in which the sentence is to be served at this point;
  3. If the term of imprisonment is less than 2 years, should the sentence be suspended?

These steps must all be undertaken individually, the court cannot just jump straight to a suspended sentence.

A suspended sentence will not be available to an offender who has been imprisoned and is currently on parole. It is also not available to an offender who has been sentenced to imprisonment for a period longer than 2 years or an offender who has committed multiple offences and the totality of their offences is more than 2 years. The court will consider what sentence is appropriate for all of the offences before they will turn their mind to whether the sentence should be suspended or not.

The court is unlikely to grant an offender a suspended sentence where they are being punished for an offence that the court considers there should be general deterrence. A suspended sentence is not a lenient sentencing option. It imposes a serious obligation on the offender and the consequences for

There is an interesting metaphor in relation to suspended sentences, they have previously been described as a "Sword of Damocles" hanging by a thread over the head of the offender whilst they are serving the suspended sentence. However, a judge in Canada has said they are not a "sword" a suspended sentence is a "butter knife" hanging over the head of the accused. The reason behind this metaphor is that the only person who can cut the rope from which the sword/butter knife is hanging from over their head is the offender themselves. The offender has control of whether they abide by the conditions of the suspended sentence or not and it is only them who can breach it, hence it is a butter knife rather than a sword.

If you breach the conditions of the suspended sentence the court is forced to revoke the order and the gaol sentence originally imposed will commence and the offender is imprisoned. However, if the breach is trivial or there are good reasons for the breach then the court can opt not to revoke the suspended sentence.