Can I get a suspended sentence?

12 April 2024

A suspended sentence is when a custodial sentence is given, but is suspended over a period of time. This means that provided no further offences are committed during the period of suspension, the offender will not have to serve any time in prison. The maximum period of suspension is 2 years. Conditions can be attached to suspended sentence orders, such that the offender can engage in punishment and rehabilitation in the community during the period of suspension.

When could I get a suspended sentence? 

Suspended sentences can only be imposed where the custody threshold is passed: the offence or offence must be so serious that neither a fine or a community sentence can be justified. However, the custodial term deemed appropriate by the sentencing Judge must be 2 years imprisonment or less. As such, we are able to argue for any sentence to be suspended if, after credit and mitigation, the likely sentence is 2 years imprisonment or less.  

We frequently argue that sentences should be suspended, with reference to the suspended sentence guidelines. These guidelines state that factors tending against a suspended sentence are:

  1. The offender presents a risk/danger to the public;
  2. The appropriate punishment can only be achieved by immediate custody; and
  3. The offender has a history of poor compliance with Court orders.

As such, repeat offenders who have breached community or suspended sentence orders in the past and dangerous offenders are less likely to receive a suspended sentence. In consideration of whether an offender is dangerous, the history and nature of offending will be considered. For example, the Court might consider an offender dangerous if they have a history of weapon-related offending, domestic violence offending, or escalating violent offending. In addition, there are some offences which have a starting point of immediate imprisonment for public interest reasons. These include, but are not limited to:

  • Intentional strangulation
  • Counterfeit currency
  • Conveying prohibited items into prison

Some offences also carry mandatory sentences of imprisonment.

Factors that go into the decision

The sentencing guidelines also set out factors tending towards a sentence being suspended:

  1. A realistic prospect of rehabilitation;
  2. Strong personal mitigation; and
  3. Where immediate custody will result in a significant harmful impact on others.

As such, when arguing that a sentence should be suspended we take detailed mitigation from our clients. If they do not have a long history of offending and are engaging with services (such a mental health treatment or drug rehabilitation), we can argue that the offender has a realistic prospect of rehabilitation. Frequently, we submit to the Court that a period of imprisonment will only set the offender back, and disrupt their progress.

Strong personal mitigation can include a myriad of factors.  We may rely on medical records, social care records and character references to demonstrate strong personal mitigation. Likewise, evidence from an offender’s family about the impact a custodial sentence may have on young children or other dependents can help us establish that imprisonment will significantly harm others.

When assessing whether you can get a suspended sentence, the starting point is to consider whether custody is appropriate and whether the custodial term will be under 2 years. If you qualify for a suspended sentence, the likelihood of obtaining one will then depend on the nature and your personal mitigation and circumstances, the nature of the offence, and any history of offending.

Contact us for further advice about whether this could apply to your case.

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Phoebe Coleman

Solicitor

Phoebe qualified as a solicitor in March 2022, and gained her duty solicitor qualification in March 2024. She is a highly intelligent, thorough, and empathetic solicitor.

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