23. Deferral of sentencing

Section 7(eb) of the Sentencing Act 1997 provides:

A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence –

… adjourn the proceedings, grant bail under the Bail Act 1994 and, by order, defer, in accordance with Division 1 of Part 8, sentencing the offender until a date specified in the order;

The Sentencing Advisory Council, in its report of 6 March 2016 “Phasing out Suspended Sentences”, recommended that deferred sentencing should be available to offenders sentenced under the Act as well as those sentenced under the Youth Justice Act 1997 (this had been available for some time).

Typically the purpose of a deferral is to allow an offender to address the causes of his or her offending and rehabilitation. With the sentencing hearing adjourned for a period of time after which sentence will be passed.

The framework for the deferral of sentencing is contained within ss57A-E and 7A of the Act.

Ordinarily, proceedings may not be adjourned for more than two years from the date the order is made subject to s57C(3) which may see, in certain circumstances, the sentence deferred for no more than 30 months.

Section 57A provides:

(1) A court may adjourn proceedings in relation to an offender under section 7(eb) so as to defer, in accordance with this Division, sentencing the offender.

(2) The court may, for any one or more of the following purposes, defer, in accordance with this Division, sentencing an offender:

• (a) to allow for the assessment of the offender's capacity, and prospects, for rehabilitation;
• (b) to allow the offender to demonstrate that the offender is being, or has been, rehabilitated;
• (c) to allow the offender to participate in a pre-sentence program;
• (d) for any other purpose that the court considers appropriate having regard to the offender and the circumstances of the offending.

Therefore, it is incumbent upon defence to provide evidence supporting one or more of those purposes could be met during a period of deferral. This means reports will need to be critically analysed by prosecutors and, where appropriate, independent verification may be sought. Bearing in mind that a court may only defer sentencing if:

• an offender is not serving a term of imprisonment, and
• it is satisfied it may grant the offender bail, and
• it defers sentencing the offender for all offences whether or not the offences are punishable by imprisonment.

A court must provide reasons for deferring sentence.

Bail granted under s7(eb) has effect for the period for which sentence is deferred unless revoked and can be subject to conditions (s57B(2)).

Section 57D provides that the order deferring sentence may be revoked. This can occur by a court of its own motion or on an application by the offender or prosecutor. The application is to be in writing and needs to be served at least seven days before the hearing of the application. If the order deferring sentence is revoked the court may proceed to sentence under s7 of the Act.

In relation to making an application for revocation of an order for deferral of sentence, approval from the Committee will be required, accompanied by a short memorandum. Matters such as non-compliance with the proposed program, further offending of a serious nature or absconding from the jurisdiction would be grounds for instituting such proceedings. Bear in mind s57E(1). If an offender who is on a deferred sentence imposed by the Supreme Court or Court of Criminal Appeal appears before a magistrate on another offence, the magistrate has the discretion to re-remand the offender to reappear in the Supreme Court.