A maximum sentence is the highest penalty that can be imposed on a person convicted of a particular offence. In Queensland, a life sentence is generally the highest maximum penalty available to a court.
Maximum sentences are set by Parliament through legislation. For example, in Queensland the maximum penalty for common assault is three years in prison, while the maximum penalty for grievous bodily harm is 14 years in prison.
A judge or magistrate decides the sentence to impose on an offender, up to and including the maximum, based on the circumstances of each individual case. The judge or magistrate is guided by legislation and Australian case law, which is referred to as sentencing precedents. Precedents inform us that maximum penalties should be reserved for the worst category of offences.
The four commonly accepted purposes of maximum penalties are to:
- set a clear, legally defined upper limit on the court’s sentencing power
- set out the maximum consequence a person will face if they commit a particular offence
- demonstrate the views of the Parliament and, by extension, the community and provide guidance to the judiciary about the seriousness of an offence compared to other criminal offences
- establish an upper limit of punishment proportionate to the offence — reserving the maximum sentence for the worst category of the offence.
In Queensland, sentencing an offender to a life sentence may be justified if the following all apply:
- the legislation which creates the offence sets life in prison as the maximum penalty
- the offence is in the worst category of its kind
- the nature of the offence or the offender’s history suggests the offender is of ‘unstable character’ and they are likely to commit such offences in future
- if such offences are committed in future, they will likely result in particularly serious injury to others.
A sentence must be proportionate to the gravity of the offence.
Various offences under Queensland legislation carry a life sentence as a maximum penalty. A sentencing judge retains discretion to determine the most appropriate penalty for individual cases. However, there is no discretion when sentencing for murder or a repeat serious child sex offence – adults convicted of these offences must be sentenced to life in prison or an indefinite sentence. Under these circumstances, a court cannot consider any penalty less than life.
The time spent in prison for a life sentence depends on any minimum non-parole period established by legislation, judicial discretion to increase the minimum non-parole period and subsequent decisions by a Queensland Parole Board. For example, the Corrective Services Act 2006 establishes the following minimum non-parole periods:
- 30 years — murder of more than one person or by an offender with a previous murder conviction
- 25 years — murder of a police officer
- 20 years — murder other than listed above or sentenced for a repeat serious child sex offence
- 15 years — any other life sentence imposed for another offence, e.g. rape.
A life sentence comprises a non-parole period in prison as well as any further time in prison until parole is granted.
An offender who has served their non-parole period can apply to the Queensland Parole Board to be released from prison. Section 200 of the Corrective Services Act 2006 sets conditions for parole orders. An offender with a life sentence who is granted parole will remain on parole with conditions for the rest of their life.
Section 163 of the Penalties and Sentences Act 1992, enables a court to impose an indefinite sentence instead of a fixed term for certain offences when an offender is considered a serious danger to the community. Determining whether an offender is a serious danger to the community requires the court to consider all of the following:
- whether the nature of the offence is exceptional
- an offender’s characteristics, including previous offending
- any relevant medical, psychiatric, prison or other reports about the offender
- any risk of serious harm to members of the community if the offender is not given an indefinite sentence
- the need to protect the community from the offender.
In these cases, the judge must specify the term of imprisonment that would have been imposed on the offender if they had not handed down an indefinite sentence.
Case study: Application of a maximum sentence
A couple held a 13-year-old girl captive for 15 hours, during which time she was drugged, tortured and repeatedly raped. The female offender was a 32-year-old mother of four children and the male offender was her 40-year-old partner, a father of two children.
Both offenders pleaded guilty to 30 offences, including rape, indecent treatment of a child under 16, torture and unlawful wounding. The female offender also pleaded guilty to the girl’s attempted murder.
Both offenders received a life sentence. Although both pleaded guilty, which may reduce the sentence handed down in some cases, the sentencing judge in this case chose not to reduce the sentence.
Both offenders appealed their life sentences on the grounds that each sentence was manifestly excessive. The Court of Appeal confirmed the offending of each applicant fell within the worst category of cases for which the maximum penalty is prescribed. The Court of Appeal further found that the offending in this case was more severe and depraved than other comparable cases.
The court upheld the woman’s life sentence but reduced the man’s sentence to 18 years, acknowledging he had cooperated with police and intervened to prevent his partner from murdering the girl.