Sentencing myths

The process of sentencing an offender can be confusing leading to myths and misconceptions about why offenders get the sentences they do. Here we explain the facts behind the myth.

Most people who go to court undergo a trial to determine whether or not they are guilty.

Three-quarters of people who appeared in court pleaded guilty and did not go to trial. In 2016–17, 168,499 defendants appeared in Queensland courts on criminal charges, and of these 126,435 pleaded guilty. (Australian Bureau of Statistics 2016–17 criminal courts data).

Juries decide an offender’s sentence.

A jury can only decide whether an offender is guilty or not. A judge or magistrate decides the appropriate sentence.

An offender who is not sent to jail faces no further consequences.

There are many non-custodial sentencing options, such as community service and probation which each place significant responsibilities on an offender. A court may also sentence an offender to prison but suspend all or part of the sentence. If the offender commits an offence punishable by imprisonment during the period the sentence is suspended for, they must serve the whole of the suspended sentence plus whatever penalty they receive for the new offence, unless the court finds it is unjust to do so.

An offender’s sentence begins after they are sentenced.

When a person is charged with an offence, they may be held in prison while waiting for their trial. This is called being on remand. If an offender is found guilty and sentenced to prison, the time they have spent on remand will usually be taken into account. For example, if an offender spends two years on remand and is then sentenced to two years and six months in prison, they have six months left to serve after they are sentenced.

Judges are not accountable to anyone when determining a sentence.

Judges and magistrates must take many factors into account when deciding a sentence. These include mandatory minimum or maximum sentences, previous sentences in similar cases, the nature and gravity of the offence, the offender’s previous character, whether the offender pleaded guilty, and any victim impact statement. If a judge or magistrate does not consider the relevant factors appropriately this can provide grounds for an appeal.

If the sentence involves time in prison, the sentencing judge or magistrate provides reasons for the sentence imposed. These reasons are recorded and are referred to as sentencing remarks.

Sentences may be appealed to a higher court, which may impose a different sentence if it believes an error was made.