Sentencing myths

The process of sentencing is complex and can be confusing. This can lead to a lot of myths and misconceptions. Here we take a closer look at some of the common myths about sentencing in general.

Queensland’s imprisonment rate has increased by 53.5% over the last ten years from approximately 162 prisoners per 100,000 adult population in 2011 to 248 in 2021.

Sentencing data shows that generally the proportion of sentences of imprisonment has increased over the past 16 years.

Many people reach conclusions about sentencing based on media reports. But journalists have to condense lengthy, complex judgments into short 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.

Watch this video to see John Robertson, former Council Chair and judge, debunk this myth.

A jury can only decide whether a person is guilty or not. The jury does not decide the sentence. A judge or magistrate decides the appropriate sentence.

Media reports do not have the time and space to explain all the circumstances of a case. They may give the impression that judges don’t understand the seriousness of certain types of offending or the harm caused to a victim.

Judges and magistrates live in the community. They have families and friends and participate in a range of community activities. In their work they are sometimes exposed to horrific crimes such as homicides, rapes, sexual offences committed against children and other serious violent forms of offending. They know these types of offences can have a devastating impact on victims, victims’ families and friends and the broader community.

When they sentence someone, judges and magistrates can’t impose any sentence they like. They must apply the law. Judges and magistrates must weigh up all the purposes of sentencing and the facts of the case, including any aggravating factors or mitigating factors. You can see some specific examples of these in our Sentencing Guide . Judges and magistrates are assisted by submissions made by prosecutors and by the lawyer representing the person being sentenced. Judges and magistrates consider the harm caused to the victim , whether it was intended, and previous sentences for similar offences, to ensure consistency and a just sentence.

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.

Watch this video to see John Robertson, former Council Chair and judge, debunk this myth.

Sentencing judges and magistrates must provide reasons for the sentence imposed. These reasons are recorded and called sentencing remarks.

If a judge or magistrate does not consider the relevant factors appropriately or makes a mistake this can lead to an appeal to a higher court. The higher court then determines if the judge or magistrate made a mistake.

A very small number of matters are appealed every year, and of those an even smaller number have the original decision changed.

Watch this video to see John Robertson, former Council Chair and judge, debunk this myth.

Reports sometimes say that a person “walked free from court” when they’ve been convicted of a crime but are not sent to prison.

The only time someone could genuinely “walk free” from court is when they are found not guilty.

When a person is charged with an offence, if they do not get bail they will be held in custody while waiting for their trial or sentence. This is called being on remand . If an offender is sentenced to imprisonment, the time they have spent on remand will usually be taken into account as time already served. Sometimes 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 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.

A guilty plea is just one factor a court must consider. The more serious the offence, the less significance a plea of guilty will have to the final sentence. A guilty plea does not stop a conviction being recorded, or the court giving the person a prison sentence.

However, 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 person that offended against them is convicted and sentenced more quickly than if the matter goes to trial (that is, if the person charged 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.

Watch this video to see John Robertson, former Council Chair and judge, debunk this myth.

This is both right and wrong.

On one hand, judges and magistrates cannot allow public responses to influence their decision. Every case is different and courts should sentence on the basis of the facts in an individual case.

On the other hand, judges and magistrates understand that public confidence in the administration of justice is important and that sentences which are too lenient or too severe risk undermining public confidence in the system. One of the important sentencing purposes in Queensland is to make clear the community’s disapproval of the type of offending behaviour the person engaged in (known as ‘denunciation’). In that way, the community’s views are reflected as one of the purposes of sentence.

Also, in sentencing judges and magistrates are guided by the maximum penalties that are outlined in the legislation. These penalties are set by Parliament and indicate society’s views about the seriousness of an offence compared to other offences.

Mandatory sentencing involves a fixed, compulsory sentence, where the individual circumstances of the case cannot change the sentencing outcome.

In Queensland, there are different forms of mandatory sentences – 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, unless an indefinite sentence is imposed.

Mandatory sentences are commonly criticised as they do not allow the court to consider the individual circumstances of a specific case and may result in injustice. This need for discretion was an important factor for the Council when it made recommendations for the review of sentencing for child homicide and in the serious violence offences scheme review.

Watch this video to see John Robertson, former Council Chair and judge, debunk this myth.

Some offences rightly deserve imprisonment, but prison sentences aren’t appropriate for every offence and many are best dealt with in other ways.

Imprisonment is also a very expensive option (although this is not a consideration in sentencing).

The Queensland Productivity Commission conducted an Inquiry into Imprisonment and Recidivism. In that report it referred to the average cost to imprison someone in Queensland as $111,247 per year. The report found that ‘in many cases, custodial sentences are unlikely to provide a net benefit to the Queensland community. For many less serious offences, where punishment and incapacitation are less critical factors and rehabilitation is more likely to be beneficial, non-custodial sentences can be more effective (by better achieving the sentencing purposes) and/or more efficient (by achieving the sentencing purposes at a lower cost).’

The following link provides further information about non-custodial sentencing options, such as community service and probation. Our report on Intermediate sentencing options and parole reviewed the effectiveness of some of these options.

In certain circumstances, when sentencing an person (for less serious offences) a court can order a parole release date, which is the date on which a sentenced person will be released on parole. While on parole the person is supervised in the community by a corrective services officer. See here for further information.

On other occasions the court may refer to a “parole eligibility date”. This is not an automatic release date, it is the earliest possible date the person can be released on parole and could possibly be released.

In Queensland, the independent Parole Board Queensland weighs up a variety of factors before deciding whether a person is suitable to release on parole. Parole is not a privilege or an entitlement; its purpose is to keep the community safe from offending by reintegrating prisoners into the community to decrease their chance of re-offending.

In deciding if and when a prisoner should be released on parole, the Board’s highest priority is community safety.

Ministerial guidelines outline the factors the Board must consider when deciding the risk the person may pose to the community, including:

  • criminal history
  • likelihood of reoffending
  • offence type
  • behaviour in custody
  • support in the community
  • progress through rehabilitation.

Find out more about the independent Parole Board Queensland and its work.

Sentencing children

Children are treated differently to adults by the Queensland criminal justice system. Here we unpack some of the common myths about sentencing children in Queensland.