Victoria Legal Aid

Encouraging the use of deferrals - a flexible and people-centred approach to sentencing

Our submission to the Sentencing Advisory Council sets out the case for increasing and improving the use of sentence deferrals to support sentences that reflect the individual circumstances of each person and are appropriately tailored.

Wednesday 28 December 2022 12:03am

Key points

  • Deferrals are an effective and flexible sentencing option that can be effectively used to address the underlying causes of a person’s offending and support their journey of rehabilitation.
  • In our practice experience, and despite clear benefits, we see deferrals underused as a sentencing tool and often applied inconsistently.
  • To increase their use, we recommend improving access to support services, in rural and regional areas and providing culturally safe services.
  • To ensure the benefits of deferrals are understood, we also recommend boosting workforce training and expanding the legislative purposes eligibility criteria.
  • Reforming bail laws would reduce the negative impact on offenders on deferred sentences involving bail conditions by not automatically elevating them into a higher bail threshold.

Sentence deferrals are an effective but underused sentencing option that gives people time to rehabilitate in the community with available supports, avoid unnecessary entrenchment in the criminal justice system and can shift the trajectory of a person’s life.

In our public submission to the Sentencing Advisory Council’s consultation processExternal Link , we have outlined five recommendations to support the increase of use of deferrals.

‘Sentence deferrals help people address the underlying drivers of their offending while staying connected to their communities – it is a unique and holistic approach that works,’ said Madeline Ryan, Acting Program Manager, Summary Crime.

‘Our practice experience shows that deferrals give people the opportunity to demonstrate their commitment to rehabilitation, backed by the right support services, and ultimately to avoid a prison sentence and entrenchment into the system.’

Critically, they provide an important tool to address the disproportionate impacts of the criminal justice system, including for First Nations peoples, those from culturally and linguistically diverse backgrounds, people with disability and those with caring responsibilities.

Under the Sentencing Act 1991 (Vic), a deferral of up to 12 months may be ordered following a finding of guilt if the court is satisfied that the deferral is in the defendant’s best interests and they agree to it.

Deferrals can be administered through bail conditions or an undertaking, which appropriately moderate risk and can allow for people to remain in the community and engage with programs.

After the deferral period ends, the court is in a better position to understand the person’s rehabilitation prospects and craft an appropriate sentence.

A flexible solution to keep Johnny’s family together

Johnny (not his real name), 40, is the sole income earner of his family, including three children. Johnny was charged with recklessly causing serious injury over a fight in a parking lot. Considering Johnny’s strong connections to his church and lack of criminal history, the court agreed a Community Corrections Order (CCO) would be appropriate. Corrections Victoria advised that a CCO could not be administered outside of the state, given Johnny had moved interstate to find work because he had lost his job after being charged.

The non-availability of a CCO placed Johnny at risk of imprisonment.

Johnny’s lawyer successfully argued for a sentence deferral so that Johnny could demonstrate his capacity to rehabilitate himself. This was granted for six months, on the bail condition that he undertake an anger management course. Johnny completed the course and made positive contributions to the community during the deferral, in particular the youth centre connected to his church.

After the deferral, the magistrate accepted that a term of imprisonment was not appropriate and with a CCO still unavailable, Johnny was sentenced to a three-year adjourned undertaking, along with a fine.

The sentence deferral allowed Johnny to remain in his community, find a new job, support his family and continue his community service.

The Council’s final report with recommendations to the Attorney-General is due mid-2023.

More information

Read our full submission to the Sentencing Advisory Council: Reforming sentence deferrals in Victoria – consultation paper.External Link

Reviewed 28 December 2022