Media Release
Embargoed until 00:01 a.m. (AEST) Tuesday 14 May 2024
Pregnant offenders could request a delay of their sentencing to give birth outside prison under a suite of reforms recommended by the Sentencing Advisory Council. In a new report published today, the Council makes 10 recommendations to change the way courts decide whether to defer (delay) sentencing an offender. Under the proposed reforms, parents and carers of newborn or dependent children could ask for time to take steps to reduce the impact of their prison sentence on their children (such as making caring arrangements).
Sentence deferral is an order under the Sentencing Act, which specifies how long a court can defer sentencing for, who is eligible for sentence deferral, and why a court can defer sentencing. There are currently five purposes of sentence deferral, most of them focusing on rehabilitation.
The Council has recommended five new purposes of sentence deferral to facilitate its use in a wider range of circumstances, including:
- for victims and offenders to participate in a restorative justice process
- if it would be in the best interests of an offender’s unborn, newborn or dependent child
- for the offender to receive or recover from medically necessary treatment or surgery
- for any reason relating to an Aboriginal person’s cultural background, responsibilities, particular needs or experience and
- for young adult offenders, especially if sentence deferral would help them access rehabilitation programs.
People will still face sentencing at the end of a deferral period. But in many cases, deferring sentencing provides an opportunity to tackle the factors that contributed to the offending behaviour and reduce the offender’s risk of reoffending, ultimately making the community safer.
Other recommended changes to sentence deferral include:
- expanding the availability of sentence deferral to the Supreme Court (deferral is currently only available in the Magistrates’ Court and County Court)
- clarifying that a sentence deferral can be ordered even if an offender is facing a prison sentence, as long as doing so is in the interests of justice, which would require courts to consider the seriousness of the offence and the effect of delay on any victims in the case and
- allowing an extension of deferral to 18 months in appropriate circumstances, for example, to make sure that an offender can finish a residential drug rehabilitation program.
Quotes Attributable to Sentencing Advisory Council Director, Professor Marilyn McMahon
‘The ultimate aim of sentence deferral is to protect the community by facilitating genuine rehabilitation for offenders. We heard repeatedly during our consultations that sentence deferral can be a highly effective and flexible tool in allowing offenders to access programs or other services that reduce their risk of reoffending, but also that it is currently under-utilised and that there are opportunities to increase its use.’
‘We know that the children of parents who are sentenced to prison are particularly vulnerable, disadvantaged, and at risk of complex trauma and institutional involvement. In appropriate cases, sentence deferral can give parents with newborn or dependent children the opportunity to develop important attachments. If prison is inevitable, sentence deferral can also enable parents to make caring arrangements for their children and settle them into their new environment first. Making it clear that these are appropriate reasons to defer sentencing has the potential to reduce harm to children and improve their long-term outcomes, and to protect the community by interrupting the cycle of intergenerational offending.’
The report will be available for download via the Council’s website. The consultation paper and written submissions that led to the recommendations are also available via the Council’s website.
About the Sentencing Advisory Council: the Council is an independent statutory body established in 2004. It has a number of legislative functions, including conducting research on sentencing, consulting on sentencing matters, publishing sentencing statistics, and advising the Attorney-General on sentencing matters.
