Mandatory penalties

Here we highlight what mandatory penalties are, their different forms, and explain the serious violent offence scheme.

A mandatory (fixed) penalty is one set by Parliament.

The most common type of mandatory penalty sets a minimum sentence. A court can still impose a harsher penalty up to, and including, the maximum penalty where it thinks this is appropriate.

Usually, when sentencing a person, judges and magistrates can decide what penalty to impose based on what happened in that case and the person’s individual circumstances. They do not have to impose a particular type of penalty, or sentence. This is called discretionary sentencing.

In Queensland there are different types of mandatory penalties. Examples include:

  • Where both the penalty type and length or amount are mandatory:
    • Mandatory life imprisonment for murder (see Life sentence).
    • Mandatory driver licence disqualification periods for certain traffic offences.
  • Where the penalty type is mandatory, but not the amount:
    • Example: If a person commits some offences in a public place while drunk or on drugs, a court must make a community service order. This is in addition to any other penalty the court can impose (e.g. imprisonment, probation or a fine).
      The court still can decide how many hours of community work the person must perform when making the order. The mandatory penalty does not apply if the court is satisfied the person being sentenced cannot comply with the order because of a physical, intellectual or psychiatric disability.
  • Where the period a person must serve in prison before they can apply for parole is mandatory:
    • Example: A person declared convicted of a serious violent offence (SVO) must serve 80 per cent of the sentence or 15 years, whichever is less, in prison before they can apply for parole. A court may still set a longer non-parole period, but not a shorter one.

Sometimes, it is also mandatory for a court to order that prison sentences be served one after the other (cumulatively), not at the same time (concurrently).

If a court declares a person convicted of a serious violent offence (SVO), they have to serve 80 per cent of their sentence (or 15 years, whichever is less) in prison before being able to apply for parole.

The SVO scheme can apply to certain listed offences (‘prescribed’ offences) if they are sentenced in the District or Supreme Courts. The scheme and offences are set out in Part 9A and Schedule 1 of the Penalties and Sentences Act 1992 (Qld). The offences include:

  • violent offences (such as manslaughter, grievous bodily harm, torture, robbery, dangerous operation of a vehicle, serious assault, and assault occasioning bodily harm)
  • sexual offences (such as rape, maintaining a sexual relationship with a child, incest, and indecent treatment of children under 16)
  • drug offences (such as trafficking, supplying or producing a dangerous drug).

Being convicted of one of these offences does not always mean the sentence is one under the SVO scheme. There are two ways it can apply.

  1. An offender sentenced to 10 years or more for a listed offence is automatically convicted of a serious violent offence. The legislation makes this mandatory. Judges are required to declare the conviction to be a conviction of a serious violent offence as part of the sentence.
  2. Judges have discretion to make an SVO declaration when the sentence of imprisonment is either:
    • 5 years or more but less than 10 years for a listed offence
    • of any length, provided that the offence involved the use or attempted use of serious violence against another person or resulted in serious harm to another person.

Presumptive penalties

Presumptive penalties are set by Parliament in legislation. They provide guidance to courts about what type of penalty they should usually impose when sentencing a person for a particular kind of offence.

Judges and magistrates can still decide what sentence to impose in an individual case if special circumstances apply.

For example, section 9(4) of the Penalties and Sentences Act 1992 (Qld) requires an actual term of imprisonment to be imposed on offenders convicted of any:

  • sexual offence relating to a child under 16 years
  • child exploitation material (pornography) offence.

However, the sentencing judge or magistrate can order a different penalty if there are special reasons (called ‘exceptional circumstances’). An example of exceptional circumstances might be that the offender had no criminal history, pleaded guilty at an early stage, was elderly with health issues and displayed genuine remorse, combined with extremely low level offending (a case that explains this is R v Theohares [2016] QCA 51).

This information is not intended to provide legal advice and has been prepared for the purposes of providing information only. While all reasonable care has been taken in the preparation of this information, no liability is assumed for any errors or omissions.