Purposes, principles and factors of sentencing
When giving a person a sentence, a judge or magistrate usually has a choice about what sentence to give. However, they still have to follow the law when deciding on a fair sentence.
The Penalties and Sentences Act 1992 outlines the purposes (reasons) why a court can give a sentence to a person. That Act and the case law also identifies a wide range of other principles and factors the court has to think about. The court must balance these different purposes, factors and principles when deciding on the sentence.
The job of the judge or magistrate is to consider everything carefully and decide on a sentence that is fair. This means that two people could get different sentences for committing the same type of offence.
This is called discretion and it is an important part of how our legal system works.
In Queensland, the Penalties and Sentences Act 1992 says that there are 5 reasons why a court can sentence a person:
- Punishment — to punish the person in a way that is just (fair)
- Rehabilitation — to help a person change their behaviour so they don’t commit an offence again
- Deterrence — to discourage that person and other people from committing the same type of offence by showing them what might happen if they do
- Denunciation — to express in a formal public way that the person's behaviour is unacceptable to the community
- Protection — to keep the community safe
The court must give a sentence that meets one, some or all these purposes. What purposes apply and are most important depends on the type of offence the person has committed and their personal circumstances.
According to the Penalties and Sentences Act 1992, the court must also look at many other factors and principles when sentencing a person.
For example, it will look at how serious the offence was, and how much harm it caused to the victim. It will consider the maximum penalty and any minimum penalty that might apply for an offence, and how common the offence is.
It will also consider a person’s age, character (including their criminal history) and personal circumstances, whether and when the person pleaded guilty, if the person cooperated with police, and how much the person is to blame.
A court will also think about:
- the principle that prison should only be given as a last resort (exceptions include offences that involve violence/result in physical harm and sexual offences against children under 16)
- any other factors suggesting that a court should give a harsher sentence (aggravating factors) or a less severe sentence (mitigating factors)
- how much time a person has already spent in custody before the sentence
- sentences that the person has from other states or territories
- sentences that the person has yet to serve or will have to serve because their new offending means they have contravened another sentence order
- if the person is already on a community-based order, whether the person has followed the order’s conditions, or if they have completed a program or course done as a condition of bail
- if the person being sentenced is Aboriginal or Torres Strait Islander, any submissions by a representative of a community justice group in that person’s community.
When deciding on a fair sentence, a court will also think about some principles of sentencing that have developed from cases over time.
- the idea that the punishment must fit the offence. Courts may consider sentences given in similar cases to make sure the sentence is appropriate for the offence. This is called proportionality
- the idea that for fairness and equality before the law, the approach taken by courts when deciding sentences should be consistent . Within this is the narrower idea of parity, where people who commit an offence together should be given similar sentences. (The court must still consider differences, such as the person’s age and criminal history, and what part each person played in the offence, which can result in different sentences)
- the idea that, when a person is given more than one sentence, the total effect of the sentence must be appropriate and reflect the total criminality of the offending. For example, a court should not add multiple sentences together if it means a person would serve a disproportionately long sentence for the overall level of offending. This is called totality.
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.