Content area
Full Text
Defendants in criminal matters can be placed on numerous forms of conditional liberty, including bail, parole and community-based orders. Committing offences while on conditional liberty is regarded as an aggravating sentencing consideration. This results in heavier penalties often being imposed on this cohort of offenders. While this is a well-established sentencing principle, its doctrinal rationale remains unclear and, in some instances, seemingly flawed. In certain circumstances, committing an offence while on conditional liberty is a separate offence. In other situations, the breach of conditional liberty results in incidental punishment, such as revocation of bail or parole. Thus, increasing sanction severity for offenders who commit offences while on conditional liberty can result in doublepunishment. We propose a principled doctrinal approach for dealing with offences which are committed while on conditional liberty which would inject doctrinal clarity and fairness into the sentencing process.
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...