Sentencing adult offenders
A sentence is a penalty a court imposes on a person once they plead, or are found, guilty of a criminal offence.
In sentencing, judges and magistrates must take into account legislation (laws made by Parliament) and case law (law established through past cases) as these apply to the individual circumstances of the case.
The types of penalties a court can impose when sentencing an offender are set out in the Penalties and Sentences Act 1992 (Qld).
The purposes under Queensland law for which a sentence may be imposed are:
- punishment — to punish the offender to an extent or in a way that is just in all the circumstances
- rehabilitation — to establish conditions to help the offender be rehabilitated
- deterrence — to deter the offender or other members of the community from committing the same or a similar offence
- denunciation — to denounce (indicate disapproval of) the offending behaviour
- protection — to protect the Queensland community from the offender, or
- a combination of these purposes.
By law, courts must take into account a number of principles and factors when sentencing an adult offender, including:
- imprisonment should only be imposed as a last resort — a sentence that allows the offender to stay in the community is preferable (exceptions include where the offence involves violence or is a sexual offence committed in relation to a child under 16 years)
- the maximum and any minimum penalty for the offence
- the nature and seriousness of the offence, including any physical, mental or emotional harm to a victim and effect on any child who may have been exposed to, or a witness to, the offence
- how much the offender is to blame for the offence
- whether — and how early — the offender pleaded guilty or indicated his or her intention to plead guilty
- any damage, loss or injury caused
- the offender’s character (including the number, seriousness, date, relevance and nature of any previous convictions and any significant contributions made to the community by the offender)
- the offender’s age and intellectual capacity
- any other factors tending towards a harsher penalty being imposed (aggravating factors) or a less severe penalty being ordered (mitigating factors)
- how common/prevalent the offence is
- how much help the offender gave to law enforcement agencies in investigating the offence or other offences
- time already spent by the offender in custody while awaiting sentence
- if the offender is already on a community-based order, whether the offender has complied with the order
- the successful completion of a program or course imposed as a condition of bail
- if the offender is Aboriginal or Torres Strait Islander, any submissions by a representative of a community justice group in the offender’s community.
Some factors by law cannot be taken into account to reduce the sentence, such as if an offender was voluntarily intoxicated or under the effect of drugs when they committed the offence.
The court is also not allowed to give a sentence disproportionate to the seriousness of the current offence. Courts may take into account sentences given in similar cases to make sure the sentence reflects the seriousness of the offence and is just in all the circumstances.
In Queensland, sentences are imposed by three levels of court:
The vast majority of cases (around 95%) are heard in the Magistrates Court.
The Court of Appeal is a division of the Supreme Court and hears appeals from the Supreme and District Courts. Appeals from Magistrate Court cases are generally heard by the District Court, but sometimes by the Court of Appeal.
When sentencing an offender, the court must decide whether to record a conviction, which gives the offender a criminal record for the offence. This is separate decision to deciding what sentence to give.
In making this decision, the court must look at all the circumstances of the case, including the offender’s character and age, the nature of the offence and whether recording a conviction will have any impact on the offender’s economic or social wellbeing, or chances of finding employment.
A conviction must be recorded in some cases, such as if imprisonment is imposed, or if the court is resentencing an offender after revoking a community service order or probation order which the offender has breached.
There are two broad types of sentencing orders:
- non-custodial orders, that do not involve the offender being sentenced to imprisonment (such as a fine, good behaviour bond or probation), and
- custodial sentencing orders, that involve the offender being sentenced to imprisonment.
Release without a conviction being recorded and without any further penalty.
Rising of the court (no conviction recorded)
An order to remain in the courtroom until dismissed.
Good behaviour bond/recognisance
A promise to appear before a court if called to do so and to ‘be of good behaviour’ (not to break the law) for a set period (up to 3 years), which requires the person and anyone acting as a ‘surety’ to pay an amount of money if the offender breaks the law or does not comply with other conditions of the order. Other conditions that may be ordered include attending a drug or alcohol assessment, education and referral session.
Restitution or compensation order
An order to pay for property taken or damaged, or compensate for loss or damage to property or for any personal injury suffered by a person. This order can be made in addition to any other sentence given.
An order prohibiting contact with the victim or another person, or going to a particular place, or within a particular distance of that place, for a set period. This can be made for a serious (indictable) offence committed against a person. A non-contact order is separate to a protection order under the Domestic and Family Violence Protection Act 2012 (Qld) and can be made in addition to any other order made.
An order banning entering a certain licensed place (e.g. nightclub or bar) or entering a particular area near a licensed premises during certain hours, or attending a particular public event at which alcohol will be sold. Certain criteria must be met, including that the offence involved the use, threatened use or attempted use of unlawful violence to a person or property or an offence of drug trafficking or supply of a dangerous drug, and was committed in licensed premises or in a public place near licensed premises.
An order to pay an amount of money within a period of time. The maximum fine depends on the type of offence and the court hearing the matter. A fine can be ordered in addition to, or instead of, any other sentence.
An order between 6 months and 3 years served in the community with monitoring and supervision. The offender must agree to the order being made.
Community service order
An order to do unpaid community service for between 40 and 240 hours, usually within 12 months, and to comply with reporting and other conditions. The offender must agree to the order being made.
Graffiti removal order
An order of up to 40 hours to remove graffiti, usually within 12 months.
An order imposing conditions to protect the public by preventing, restricting or disrupting the offender’s involvement in serious criminal activity. Conditions may include the offender telling police if they change address, prohibiting association with a stated person or entering or being near a stated place. Control orders only can be made if an offender is a member of a criminal organisation.
A sentence of imprisonment can be served:
- in a correctional centre/prison — the court can set a parole eligibility or release date, depending on the type of offence and length of sentence. A prison term of 1 year or less can be combined with a probation order of between 9 months and 3 years for a single offence, as long as the prison term is not suspended
- in the community under an intensive correction order — if a prison term is 1 year or less the court can order the offender to serve the sentence in the community under supervision. Conditions include not committing another offence and reporting to and receiving visits from a corrective services officer, attending counselling programs and performing community service. If the offender does not comply with the conditions, a court may commit the offender to prison for the remainder of the order.
In Queensland there are three ways an offender can be sentenced to serve a period of imprisonment:
- an order imposing a term of imprisonment
- a suspended sentence of imprisonment
- as part of a combined prison and probation order.
Imprisonment with parole
In imposing a term of imprisonment, courts will generally be allowed or required to set either a parole release date or a parole eligibility date (a date when the prisoner is eligible to apply to the Parole Board Queensland for release on parole).
If the court has not declared a parole date, prisoners are eligible to apply for parole after completing half the period of imprisonment to which they have been sentenced.
However, there are some exceptions. In cases of convictions for a serious violent offence, the prisoner must serve 80% of their sentence of imprisonment or 15 years (whichever is less).
A sentence of imprisonment of 5 years or less suspended in whole or in part for a set period (operational period). If the offender commits further offences punishable by imprisonment during the operational period, they may be ordered to serve the whole or part of the original period of imprisonment imposed, plus any other sentence imposed for the new offence.
Combined prison and probation order
A sentence of imprisonment of 1 year or less, immediately followed by a period of probation in the community for up to 3 years.
A prison sentence for an indefinite period, usually for serious violent or sexual offences. The court must take into account the offender’s character and mental health, the level of danger to others and severity of the offence. The court is required to review indefinite sentences to see if the order is still needed.
The offender or prosecution can appeal against a Magistrates Court sentence to a District Court judge. The Attorney-General can also appeal (although if this happens, the appeal will be heard in the District Court if the offence was a ‘summary’ (less serious) offence, or the Court of Appeal if it was an ‘indictable’ (more serious) offence.
There is a further opportunity to seek leave to appeal from the District Court judge’s decision to the Court of Appeal.
Where the sentence was imposed in the District Court or Supreme Court, the offender or the Attorney-General can appeal against the sentence to the Court of Appeal.
The Attorney-General has a right to appeal, while offenders must seek the Court of Appeal’s leave to appeal against sentence. The appeal must be started within one month of the sentence being imposed, unless the appeal court allows an extension of time. Three judges sit on the Court of Appeal.
In both types of appeal, the Court of Appeal can:
- dismiss the appeal (which means the sentence being appealed stays)
- allow the appeal, and then increase, decrease or vary the sentence
The final appeal option is to seek leave to appeal to the High Court, Australia’s highest court. However, the High Court only deals with legal matters of wider public importance and is not a sentencing court.
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.