The process of sentencing an offender is complex and can be confusing. This understandably leads to a lot of myths and misconceptions. Let’s take a closer look.
Myth #1 - Sentences are getting softer, and fewer people are being sent to prison
The rate of imprisonment in Queensland – the number of prisoners per 100,000 adult population – has increased by 44% between 2012 and 2018. Sentencing data shows that the use of imprisonment as a penalty is going up, not down.
Most people reach conclusions about sentencing based on media reports. But journalists have to condense lengthy, complex trials into concise news stories. This means they cannot cover all the facts of a case, and it can be difficult for an outsider to judge whether a sentence is too harsh or too lenient. If you’d like to know more about a specific case, some sentencing remarks can be found on the Supreme Court Library Queensland’s website.
Myth #2 – Juries should be sending these criminals to jail
A jury can only decide whether an offender is guilty or not. They do not decide the sentence. A judge or magistrate decides the appropriate sentence.
Myth #3 – Judges just don’t get it. They’re out of touch
Media reports by definition do not have the time and space to explain all the circumstances of a case.
Judges and magistrates must weigh up all the facts of the case (See Myth #4), including any aggravating factors or mitigating factors. You can see some specific examples of these in our Sentencing Guide. Judges and Magistrates live in the community. They have families and friends and participate in a vast range of community activities. In the sentencing process, they are exposed at times to horrific crimes and have vast experience in the worst aspects of humanity as represented in the criminal courts.
Judges and magistrates also consider the harm caused to the victim, whether it was intended, and previous sentences for similar offences, to ensure consistency and a just and proportionate sentence.
Judges and magistrates are also assisted by submissions made by prosecutors and lawyers representing the person being sentenced.
It is not a simple process; you might like to try out our online courtroom Judge for Yourself and see how you’d fare, or whether you change your mind after hearing all the circumstances.
Myth #4 - Judges are not accountable to anyone when determining a sentence
Sentencing judges and magistrates must provide reasons for the sentence imposed. These reasons are recorded and are referred to as sentencing remarks.
If a judge or magistrate does not consider the relevant factors appropriately this can provide grounds for an appeal to a higher court.
The Attorney-General has a right to appeal, while a person who has been sentenced must seek leave to appeal their sentence. The court hearing the appeal must determine if a legal error has been made, thereby making the sentence unjust. If the court finds an error it may impose a different sentence.
Only a very small number of matters are appealed every year, and of those an even smaller number have the original decision changed.
Myth #5 - Criminals who aren’t jailed just “walk free” from court
News reports will often say a person “walked free from court” if they’ve been convicted of a crime but are not sent to jail. The only time someone could genuinely “walk free” from court is when they are either acquitted – that is, when they are found not guilty – or when they receive an absolute discharge.
When a person is charged with an offence, if they are denied bail (or don’t apply for it) they will be held in prison while waiting for their trial or sentence. This is called being on remand. If an offender is sentenced to prison, the time they have spent on remand will usually be taken into account as time already served. In some cases, a person won’t serve any further time in custody because of the time they’ve already spent in prison prior to being sentenced.
Even if a person isn’t sent to prison, they may face many restrictions on their freedoms. Many non-custodial sentencing options, such as community service and probation, include requirements to report to and receive visits from a corrective services officer, and not leave Queensland without permission.
Myth #6 – Defendants get off scot-free by pleading guilty
A guilty plea is a mitigating factor when it comes to sentencing. Judges and magistrates must take a guilty plea into account and may reduce the sentence. Generally, more weight will be given to a guilty plea the earlier it is made. There are several reasons why courts may reduce a sentence due to a guilty plea:
- It can be traumatic for a victim or a witness to give evidence in court – especially in sexual assault cases, crimes involving children and for elderly victims. A guilty plea saves them from that process, and means the offender is convicted and sentenced more quickly than if the matter goes to trial (that is, if the alleged offender pleads not guilty)
- A guilty plea may indicate remorse
- A guilty plea saves time and costs for the criminal justice system, freeing up police and court resources to focus on the most difficult cases.
A guilty plea is just one factor a judge must consider. However, the more serious the offence, the less significance a plea of guilty will carry in terms of the final sentence ordered. A guilty plea does not stop a conviction being recorded, or a judge imposing a jail term.
Myth #7 – Judges have to reflect community standards in sentencing
This is both right and wrong.
On one hand, a judge is not entitled to allow public responses to influence their decision. This is important because every case is different and courts should sentence on the basis of the facts in an individual case.
On the other hand, judges understand that public confidence in the administration of justice is important and that imposing sentences which are too lenient or too severe risks undermining public confidence in the system. In fact, one of the important sentencing purposes in Queensland is to make clear the community’s disapproval (known as ‘denunciation’). In that way, the community view is directly taken into account as one of the purposes of sentence. Judges must take into account the views of the victim, if that is available, which is another important way in which sentencing will be affected by community expectations.
Myth #8 – The only way to ensure offenders pay the price is to have mandatory jail terms
“Mandatory” effectively means a fixed, compulsory penalty, where the individual circumstances of the case cannot change the sentencing outcome.
In Queensland, there are different forms of mandatory penalties – some spell out the length of a sentence, others, the type of sentence or both. For example, in Queensland there is a mandatory sentence of life imprisonment for murder. In another example, in Queensland a person who commits a sexual offence against a child must serve actual time in prison, unless there are exceptional circumstances.
Mandatory sentences are commonly criticised on the basis that they do not allow judges to consider the individual circumstances of a specific case. This need for discretion was an important factor for the Council when it made recommendations from the recent review of sentencing for child homicide. You can read that report here.
Myth #9 – They’ve done the crime, they should do the time
Some offences rightly deserve jail, but prison sentences aren’t appropriate for every crime and many are best dealt with in other ways.
Jail is also an incredibly expensive option (although this is not a consideration in sentencing). The Report on Government Services (2018) has reported that it costs about $105,000 to house a prisoner for a year, with many of these offenders serving time for non-violent offences.
The Queensland Productivity Commission is currently conducting an inquiry into imprisonment and recidivism. Its draft report found: “Imprisonment benefits the community where it incapacitates and deters offenders, particularly where it prevents high-harm offences. However, preliminary analysis suggests that for a material portion of Queensland’s prison population, the costs of imprisonment outweigh the benefits to the community.”
We’ve outlined some of the many non-custodial sentencing options, such as community service and probation, in the answer to Myth #5 above. Our current Terms of Reference from the Attorney-General involve reviewing the effectiveness of some of these options.
Myth #10 – Parole is automatic
When sentencing an offender to a term of imprisonment, a judge may refer to a “parole eligibility date”. This can be misconstrued as an automatic, early release date. In reality, this is the earliest possible date the person is eligible to apply for parole and could possibly be considered for release.
In Queensland, the independent Parole Board Queensland must weigh up a variety of factors before deciding whether a prisoner is suitable to release on parole. Parole is not a privilege or an entitlement; it is a method developed to prevent re-offending and the Board’s highest priority is community safety.
Ministerial guidelines outline the factors the Board must consider when deciding the risk the prisoner may pose to the community, including:
- criminal history
- likelihood of reoffending
- offence’s seriousness
- behaviour in custody
- support in the community
- progress through rehabilitation
You can find out more about the independent Parole Board Queensland and its work here.