Maximum penalties

A maximum penalty is the most severe penalty that can be imposed for an offence and are only given for the worst or most serious examples of an offence.

Here we explore what a maximum penalty is and the purposes of them, and we explain what a life sentence means.

You can also discover examples of more commonly used Queensland offences and the maximum penalties that apply under the Criminal Code (Qld), the Drugs Misuse Act 1986 (Qld) and the Transport Operations (Road Use Management) Act 1995 (Qld).

Except where a mandatory penalty of a fixed duration and type applies (such as a life sentence for murder), a judge or magistrate decides the sentence. He or she can choose to impose a sentence up to the maximum penalty, based on what happened in the particular case.

Maximum penalties are set by Parliament in legislation. This is how politicians (and the community who elects them) make clear their views about offence seriousness. For example, in Queensland the maximum penalty for common assault is 3 years’ imprisonment, while it is 14 years for the more serious offence of grievous bodily harm.

Maximum penalties are important to sentencing. They:

  • show the legal limit of the court’s sentencing power
  • set out the most severe possible consequence for a particular offence
  • indicate society’s views, and give courts guidance, about the seriousness of an offence compared to other offences
  • set an upper limit of punishment that is fair for the offence — reserving the maximum penalty for the worst example, by the worst offender.

A life sentence is the most severe penalty possible. Several serious offences have a maximum penalty of life in Queensland. Examples are:

  • murder
  • attempted murder
  • manslaughter
  • rape
  • armed robbery
  • arson.

For some, a life sentence is also mandatory (see Mandatory penalties). This means the judge must give this sentence for the offence, every time. For example, the judge must sentence adults convicted of murder and repeat serious child sex offences to life imprisonment unless an indefinite sentence is imposed instead (see indefinite sentence).

Where life imprisonment is the maximum penalty but is not mandatory, the judge decides the most appropriate sentence based on the facts of that case. Important points include whether:

  • that offence is in the worst category of its kind
  • the person is likely to commit similar offences in future, judging by their history or the nature of the offence
  • any reoffending may be particularly harmful to other people
  • the punishment fits the crime – it is ‘proportionate’ to that offending.

The purposes of sentencing must also be considered. These are:

  • deterrence (discouraging other people or that offender from offending in future)
  • community protection
  • punishment
  • denunciation (making clear society’s strong disapproval of the person’s criminal conduct)
  • rehabilitation (working on fixing problems the offender has that cause offending).

When a person is sentenced to life imprisonment, the minimum time they must spend in prison is set by legislation. This is called the mandatory minimumnon-parole period. It cannot be reduced by the court. It depends on the kind of offence. It is:

  • 30 years — murder of more than one person or by a person with a previous murder conviction
  • 25 years — murder of a police officer
  • 20 years — murder other than listed above, or for a repeat serious child sex offence
  • 15 years — any other life sentence imposed for another offence, for example rape.

A judge cannot set an earlier parole eligibility date. A judge can increase it, by setting a later parole eligibility date.

A prisoner is not eligible to be released on parole until they have served the mandatory non-parole period or longer period set by the court. Being eligible does not mean release on parole is guaranteed. The prisoner applies for parole to the Parole Board Queensland. The Board makes the decision.

A prisoner serving a life sentence will remain on parole for the rest of his or her life. They must comply with parole conditions for the rest of their life, and can be returned to prison at any time if parole is suspended or cancelled by the Parole Board Queensland.

The information on this webpage relates to sentencing adult offenders. There are differences in the law for child offenders.

The Youth Justice Act 1992 (Qld) sets different maximum detention periods for children. These depend on the level of the sentencing court and seriousness of the offence. For instance, a Childrens Court magistrate can usually impose detention of no more than 1 year.

The maximum sentence available to higher courts is generally lower than for adults. A higher court can sentence a child to life imprisonment for a ‘life offence’ if it involved violence and was particularly serious (‘heinous’).

Also, mandatory minimum penalties applying to adults do not apply to children. A mandatory fixed penalty set for adults is treated as the maximum penalty for children instead.

There are different Acts of Parliament (written laws, also known as ‘legislation’) that create offences and set the maximum penalties that apply.

There is also procedural legislation (discussed below). It can mean that the actual penalty available to a court is below the maximum penalty. For example, for cases sentenced in the Magistrates Courts, a 3-year limit generally applies.

The Criminal Code (Qld) creates all of Queensland’s most serious offences, except for drug offences. Drug offences are created by the Drugs Misuse Act 1986 (Qld). Examples of other Queensland Acts that contain specific offence types include the Weapons Act 1990 (Qld) (weapon offences) and the Transport Operations (Road Use Management) Act 1995 (Qld) (traffic offences).

The Criminal Code (Qld) generally sets maximum penalties at 1, 3, 5, 7, 10 and 14 years’ imprisonment, and life imprisonment for the most serious offences. There are some examples of (mostly sexual) offences that have 20 year and 25-year maximum penalties.

Many offences have several different maximum penalties, depending on whether or not ‘circumstances of aggravation’ apply. These can be additional facts that make the offence more serious. The offence of assaults occasioning bodily harm is an example.  The maximum penalty is 7 years’ imprisonment for the ‘simpliciter’ offence (without a circumstance of aggravation).  However, it is 10 years if the offender is, or pretends to be, armed with any dangerous or offensive weapon or instrument or is ‘in company’ with someone else (‘aggravating circumstances’).

Examples of maximum penalties

Find out more about some examples of more commonly used Queensland offences, and the maximum penalties that apply under the:

Criminal Code (Qld)

The Drugs Misuse Act 1986 (Qld)

The Transport Operations (Road Use Management) Act 1995 (Qld)

Yes. Names of Acts of Parliament also have the year that they were originally passed by the Parliament. For example, one of the oldest Acts, Queensland’s Criminal Code, is dated 1899 – and it formally became law in 1901.

However, Parliament often updates legislation so that offences, their details and the penalties that apply are up to date with community standards.

Parliament can also create new offences, too. For example, the offence of stalking commenced in the Criminal Code in 1993 (maximum: 5, 7 or 10 years). Choking, suffocation or strangulation in a domestic setting commenced in 2016 and has a 7-year maximum penalty.

Legislation sets the maximum penalties for each offence and also includes rules about what level of court can deal with different types of offences.

There are 3 different levels of Queensland courts that sentence adult offenders:

  1. Magistrates Courts (lowest level)
  2. District Court of Queensland
  3. Supreme Court of Queensland (highest level).

At the first level, the Magistrates Courts cannot impose a prison sentence of more than 3 years. There is an exception where the Court is sitting as the Queensland Drug and Alcohol Court, in which case the Court can impose a sentence of up to 4 years.

Almost all Criminal Code offences with a maximum penalty of 3 years or less must be sentenced in the Magistrates Courts.  A higher court can sentence these offences and other less serious offences (called ‘summary offences’) only where there are other indictable (more serious) charges being heard by that court, and other criteria, in section 651(2) of the Criminal Code, are met.

The District Court sits in the middle of the Queensland court hierarchy. It can try an adult  charged with an indictable (more serious) offence if the maximum penalty is more than 20 years.  However, the District Court of Queensland Act 1967 (Qld) states exceptions to this. Because of those exceptions,  the District Court sentences most of Queensland’s more serious Criminal Code offences that carry life imprisonment, and many very serious drug offences.

At the top of Queensland’s court hierarchy is the Supreme Court. It alone can sentence for murder, attempted murder, accessory after the fact to murder, manslaughter and the most serious forms of drug trafficking and supply.

When ‘more serious’ offences must still be sentenced by a magistrate

Many offences that carry maximum penalties of more than 3 years, must still be sentenced in the Magistrates Courts, with their 3-year sentence limit.

Procedural laws in the Criminal Code govern whether offences can be sentenced in Magistrates Courts or should instead be transferred to the District Court (which can impose the maximum penalty set in the offence provisions).

For some offences, the prosecution or defendant have the right to choose (‘elect’) which court deals with the offence. For other offences, criteria apply to make the decision for them.

For instance, receiving stolen property has maximum penalties of imprisonment of:

  • 7 years (simpliciter; without a circumstance of aggravation)
  • 14 years (aggravated).

The procedural laws say that either type of the offence must be dealt with in the District Court if the property is worth $30,000 or more, and the defendant does not plead guilty. Otherwise, the offence must be sentenced in a Magistrates Court.

The sentencing magistrate must still keep the maximum penalty in mind, even though they cannot impose it. A magistrate is not allowed to artificially reduce their sentence, to fit under three years.

If the appropriate sentence is more than 3 years’ imprisonment, then no matter what the procedural sections say, the magistrate must send the charge to a higher court (which can impose a sentence up to the maximum penalty that applies).

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.