CONDITIONING SENTENCING TO PREVENT DOUBLE PUNISHMENT OF OFFENDERS WHO COMMIT OFFENCES WHILE ON CONDITIONAL LIBERTY.

• Date: 01 December 2022
• Author: Anderson, John

CONTENTS I Introduction II Overview of Existing Law A Overview of the Sentencing System B The Relevance of Breach of Conditional Liberty to Sentencing 1 The Framework: Consequence of Committing an Offence while on Conditional Liberty 2 Legal Approach to Aggravating Penalty Severity for Offending while on Conditional Liberty III Rationales for the Current Approach to Aggravating Penalties for Offenders on Conditional Liberty IV Evaluation of the Current Approach to Punishing Offenders on Conditional Liberty and Reform Proposals A Abuse of Freedom/Breach of Trust/Contempt of Court B Discrediting the Criminal Justice System C Specific Deterrence D Rehabilitation E Protection of Society V Double Punishment, Proportionality and Reform A When the Breach of Conditional Liberty Is a Separate Criminal Offence B When the Breach of Conditional Liberty Is Not a Separate Criminal Offence and Results in Incidental Punishment 1 Proportionality as the Guiding Principle 2 Incidental Punishment as a Consideration in the Penalty Severity Limb of the Proportionality Thesis 3 When the Breach of Conditional Liberty Is Not a Separate Criminal Offence and Does Not Result in Incidental Punishment VI Conclusion I INTRODUCTION

Conditional liberty is an order which requires a defendant to comply with specified behavioural requirements during the term of the order. Historically, the common law empowered a judicial officer to make orders binding the person to keep the peace and be of good behaviour. (1) While Australia received the common law and associated statutes, the position in Australia is that the general framework for conditional liberty is statutory. (2) Common forms of conditional liberty are bail, probation, bonds, community correction orders, suspended sentences, and intensive correction orders. A universal requirement of conditional liberty is for defendants not to commit an offence. Thousands of defendants each year breach this requirement. (3) Hence, the manner in which breaches of conditional liberty are dealt with by the criminal justice system impacts a large number of defendants. The established approach is that committing an offence while on conditional liberty is an aggravating factor in sentencing for that offence. The result is that defendants who commit offences while on conditional liberty are often punished more severely than other offenders who are otherwise similarly placed but who were not on conditional liberty at the time of the offence.

In addition to receiving a harsher sanction for the offence which was committed while on conditional liberty, the breach of conditional liberty can also trigger other hardships. These come in two main forms. First, committing an offence while on conditional liberty is often a discrete offence for which offenders receive a separate penalty. (4) These offences (such as committing an indictable offence while on bail) are often referred to as secondary offences. Second, the breach of conditional liberty by committing an offence may result in the cancellation or revocation of the underlying order, such as bail, parole or an intensive correction order, with the consequence that the offender is imprisoned--this is so even where the breaching offence is a separate offence.

While the rationale for aggravating penalties on account of a breach of conditional liberty has not been carefully considered, it is most typically grounded in the breach of trust that is supposedly involved in committing offences on conditional liberty. (5) In a similar vein, such a breach may be equated with disobedience of court orders as a form of contempt. (6) It has also been asserted that additional punishment is justified in these circumstances for reasons of specific deterrence, protection of the community and limited prospects of rehabilitation. (7) Intuitively, this is a sound approach. However, examined more closely, the doctrinal underpinnings for treating breach of conditional liberty as an aggravating consideration are dubious.

In this article, we discuss and evaluate the rationales for punishing offenders who commit offences while on conditional liberty more severely. The rationales in favour of aggravating penalty for committing offences are challenged by the fact that most of these offenders already receive additional punishment in some form for violating their conditional liberty. This is most obvious in circumstances where the breach constitutes a distinct criminal offence. Many offenders are in fact sentenced to prison for the separate offence of breaching bail or parole or contravening an intensive correction order. (8) To aggravate their penalty for violating their conditional liberty potentially infringes the proscription against double punishment. Moreover, considerations such as specific deterrence and community protection can be fully reflected in the penalty for the secondary offence. The potential for double punishment is not as manifest in circumstances when the breaching offence does not constitute a distinct offence, but there is still a risk of this occurring given that often the breach will be the catalyst for cancellation of the relevant order and the imposition of a prison term: for example, in cases of suspended sentences, intensive correction orders, bail and parole.

We suggest that to coherently and fairly deal with offending which involves a breach of conditional liberty, the net punishment imposed on the offender must remain proportionate to the gravity of the offence. This entails that breaching conditional liberty should not be an aggravating consideration when it constitutes a separate offence or results in a significant additional hardship being imposed on the offender, such as revocation of an order which has the effect of the defendant being imprisoned. Committing an offence while on conditional liberty should only aggravate penalty when the defendant experiences no other apparent adverse hardships stemming from the breach. We contend that this approach is consistent with the entrenched and fundamental sentencing principle of proportionality and avoids the prospect of sentencing errors and unfairness arising out of double punishment.

II OVERVIEW OF EXISTING LAW

A Overview of the Sentencing System

As a federal system, Australian sentencing law is shaped by state-based legislation and established principles in the general law. There are local variations in legislation but many of the purposes of sentencing are broadly similar, (9) including retribution, denunciation, specific and general deterrence, protecting the community (and victims) from the offender, and the rehabilitation of the offender. (10)

The sentence ordered by a court is the result of a consideration and application of relevant factors and principles drawn from statute and general law. These include the maximum penalty for the offence, the objective seriousness of the offence, the subjective features of the offender, and specific aggravating and mitigating factors. Ultimately the judicial officer is guided by a process of 'instinctive synthesis' to reach a sentence proportionate to the gravity of the offence and culpability of the offender to achieve individualised justice. (11) There is an extensive range of mitigating and aggravating elements that may be involved in a particular sentencing determination, (12) with more than 200 aggravating and mitigating factors identifiable from Australian sentencing jurisprudence. (13)

B The Relevance of Breach of Conditional Liberty to Sentencing

1 The Framework: Consequence of Committing an Offence while on Conditional Liberty

Conditional liberty refers to situations where defendants are released into the community with restrictions placed upon them, often with the prospect of being imprisoned if they breach any of the stipulated conditions. An order placing an offender on conditional liberty can occur in three main settings. The first is at the pre-trial stage. Bail is a common form of conditional liberty while an offender awaits trial. (14) The second is the sentencing stage when an offender is placed on a sanction which involves express behavioural requirements or restrictions, such as community-based orders, suspended sentences and intensive correction orders. (15) Finally, conditional liberty is also an aspect of parole when an offender is released from prison back into the community after having served the custodial portion of their sentence. (16) The restrictions or requirements which can be imposed in these contexts vary, sometimes markedly, but a universal condition is to desist from committing any offences for the duration of the order. (17) If this condition is breached, the breach is an aggravating factor in sentencing the offender for the breaching offence. (18)

To be clear, breach of conditional liberty operates as an aggravating factor when two key criteria are satisfied. The first is that the offender commits an offence, for example a theft, while at conditional liberty in relation to an earlier offence or offences. This is termed the 'breaching' offence. Second, the offender has been previously placed on an order by the criminal justice system as a result of being convicted of an offence, being proven to have committed an offence or being suspected of committing an offence, such as a robbery. This is termed the 'foundational offence'. Aggravation attaches to the breaching offence (theft) because it was committed while the offender was on conditional liberty for the foundational offence (robbery). Depending on the form of conditional liberty, the offender may also be liable for re-sentencing for the foundational offence (robbery) as a result of the breach.

At the outset, it is important to emphasise that committing an offence while on conditional liberty often has a number of detrimental consequences for the defendant. The first is, as noted above, aggravation of the sentence for the breaching offence. Second, the breaching offence...