Myth of Consent in Probation (From Probation - Current Position and New Directions, P 13-20, 1981, C R Bevan and A J Watt, ed. - See NCJ-86660)

• NCJ Number: 86662
• Author(s): I Potas
• Date Published: 1981
• Length: 8 pages
• Sale Source: Australian Institute of Criminology; National Institute of Justice/
• Language: English
• Country: Australia

Annotation

In Australia, probation should cease to be viewed as a consensual rehabilitative arrangement between the offender and the court in lieu of a punitive sentence and be instituted as a sentence itself that does not involve consent, so that probation may be on a more realistic basis.

Abstract

Probation by way of recognizance is the usual form of probation in New South Wales, South Australia, in all the Territories, and also under Commonwealth law. Under such a structure, the court is empowered to release the offender conditionally upon his/her entering into a recognizance after conviction but before sentence is imposed. Conditions are set for the recognizance, and it is specified that the offender must consent to the conditions before the recognizance can be instituted. Although ethical considerations may require informed consent to be obtained where therapeutic considerations are involved, in the majority of orders there are no such ethical issues. The consent is virtually meaningless, since the offender knows that the consequences of refusal to accept the conditions of release on recognizance will most likely be harsher than the recognizance conditions. Probation should be established as a sentence like other sentences that do not require the consent of the offender, and violations of the conditions of probation should have specified sanctions rather than bringing the offender again to the court for a deferred sentence for the original offense. This does not in any way deprive probation supervision of its service or helping elements but does eliminate the unrealistic concept of an offender's consent to the probation conditions and the holding over the head of the offender the possibility of a deferred sentence should the probation conditions be violated. Seven footnotes are listed.