Types of penalties and sentences
Sentencing isn’t just about sending people to prison. In Queensland, there are many types of sentences and penalties that a court can give to an adult.
The Penalties and Sentences Act 1992 (Qld) tells courts what types of sentences they can give to an adult and when. The court still decides what sentence to give depending on the unique facts and circumstances of each case.
Not all sentences are recorded with a conviction. A court must decide in some cases whether to record a conviction when the person is sentenced because it will appear on a person’s criminal history. This can affect a person’s life in the future, for example, by making it more difficult to get a certain type of job or being able to travel to different countries.
Because of this, a court will consider things such as a person’s age, any offending they’ve done in the past, what offence they committed before recording a conviction and whether recording a conviction is likely to have a negative impact on the person’s wellbeing, including their chances of finding a job.
However, if a court chooses to not record a conviction, the person has still broken the law and been convicted of committing an offence. The difference here, though, is that it will appear on a person’s criminal history as having ‘no conviction recorded’, which may sometimes mean they do not have to tell people about their criminal history.
For more detail, see further information about criminal records.
A court must record a conviction for certain types of sentences, including prison sentences.
Types of sentences
Generally, a court can give two types of sentences – a custodial sentence, which includes prison, and a non-custodial sentence, which does not include prison.
There also are other orders that can be made in addition to the sentence. These orders are not part of the person’s sentence but can still place restrictions on the person or require them to do certain things.
Custodial (prison) sentences
Sentencing a person to prison – also called a custodial sentence, or a sentence of imprisonment – is the most severe sentence a court can order.
A court must record a conviction if it gives a person a prison sentence.
A court can also sentence a person to more than one prison sentence if they have committed more than one offence.
If this happens, the court can either order the person to serve all their prison sentences at the same time (‘concurrently’), or one after the other (‘cumulatively’).
When a person is sentenced to prison, they sometimes may serve their whole sentence in prison. But usually after the person has served some time in prison, they will be released into the community on parole until their sentence ends.
The aim of parole is to help a person get used to living back in the community to decrease their chances of reoffending. Its main purpose is to keep the community safe. A person must follow strict conditions on parole, otherwise their parole could be cancelled and they could go back to prison.
When a person is given a prison sentence of 3 years or less, the court usually tells them the date when they will be released on parole. This may be any date, including the day that the person is sentenced (meaning the person is released straight from court onto parole).
When a person is given a prison sentence of more than 3 years, or for any sexual offence or serious violent offence, the court can give them a date when they will be eligible for parole. If the court does not set a parole date, in most cases, the person can apply to be released on parole after serving half of their sentence. Some convictions for serious violent offences require the person to spend 80% of their sentence in prison before being eligible for parole. The Parole Board Queensland then decides if that person can be released on parole or must stay in prison. The Parole Board will always consider the safety of the community when deciding if the person should be given parole.
An indefinite sentence is a prison sentence with no fixed end date. A court can only give it to a person who commits certain offences (such as sexual, homicide and violent offences) if it decides that the community would be in serious danger if the person was released. A person cannot apply for parole if they are serving an indefinite sentence.
The court must review the person’s indefinite sentence to see if it still needs to apply at regular intervals.
A court can send a person to prison for a year or less, followed by a probation order of between 9 months and 3 years. This means the person will be supervised in the community and must follow certain conditions when they leave prison.
It’s easy to assume that person sentenced to prison will always go to prison. However, that’s not always the case. A court can decide to suspend a person’s prison sentence or order the person to serve their prison sentence in the community.
If a person is given a prison sentence of 5 years or less, a court can suspend the entire sentence straight away or after they have spent some time in prison. The court sets the period of time for which the sentence is suspended.
If the person commits an offence for which they could be sentenced to prison again during this time, a court can order them to serve all or part of their sentence in prison instead in addition to any other sentence they get for the new offence.
If a person is given a prison sentence of 1 year or less, the court can give them an intensive correction order. They will serve this sentence in the community being closely supervised by a corrective services officer.
In that time, the person is not allowed to break the law, and has to follow certain conditions, such as going to counselling or doing community service. If they don’t follow these conditions, the court can send the person to prison for the rest of their sentence.
This is a technical and temporary form of custodial sentence where the person is required to remain in the courtroom until the court is adjourned.
It is the only form of custodial sentence for which a conviction is not recorded.
Non-custodial (non-prison) sentences
The person is released without a conviction recorded and without any further penalty.
A bond or recognisance is a promise made to the court. The promise might be to come to court at a later date, to pay money, or to not break the law for a set period of time. Sometimes conditions can be attached to the recognisance, such as to attend a drug or alcohol assessment session. Also, the court can require that the person (or someone else who has agreed to) pay money should the person break the law or not follow the conditions,
For some types of recognisances, the court cannot record a conviction, for others it may.
A fine is an order to pay an amount of money, which goes to the Queensland Government. The maximum fine a person can get depends on what offence they committed and which court gave them the fine.
A court can also give a fine with another sentence. The court can give a fine with or without recording a conviction.
A person sentenced to a probation order must not break the law for a certain period of time (between 6 months and 3 years) and agree to follow other conditions. The person will serve this sentence in the community and be monitored by a community corrections officer.
The court can sentence a person to a probation order with or without recording a conviction.
A person sentenced to a community service order must complete between 40 and 240 hours of unpaid community service, usually within 12 months, as well as agree to follow other conditions.
For some offences, a community service order is mandatory – in other words, the court must give it.
The court can give a community service order with or without recording a conviction.
A person sentenced to a graffiti removal order must complete up to 40 hours of unpaid work to remove graffiti, usually within 12 months, as well as agree to follow other conditions.
A court must give this sentence if a person is convicted of a graffiti offence unless it is satisfied that the person cannot follow the order’s conditions because of a physical, intellectual or psychiatric disability.
The court can give a graffiti removal order with or without recording a conviction.
A driver licence disqualification order can be made for an offence connected to the operation of a motor vehicle.
A person may be disqualified from having or getting a Queensland driver licence for a certain period.
The court can make a licence disqualification order with or without recording a conviction.
There are also driver licence disqualification orders that can be made in addition to a sentence (see Additional Orders below).
Additional orders
A banning order stops a person from entering or being near a venue or event that serves alcohol, such as a nightclub or bar.
A driver licence disqualification order stops a person from having or getting a Queensland driver licence for a certain period.
Some traffic-related offences carry a mandatory minimum disqualification period that the court must impose.
This order is different from the driver licence disqualification order as a non-custodial sentencing order and can be made in addition to any other sentencing order.
A control order can be given to a person from a criminal organisation to place conditions on them with the aim of stopping them from being involved in serious crime. As part of the order, the person may have to tell police if they change address and be banned from being near certain places or talking to certain people.
This order prohibits a person from contacting another person, or going to a particular place, or within a particular distance of that place, for a set period of time.
If a person has been convicted of a domestic violence offence, the court can make a protection order between the sentenced person and the victim. A protection order sets out conditions that a person must follow to protect the victim.
If a person is convicted of an offence and the court records a conviction, a court can make a passport order. This means the court can order the person to stay in Australia or Queensland, that they must not apply for an Australian passport or must give up their passport for the length of their sentence.
A person is ordered to pay the victim for any property they stole, damaged, or to compensate the victim for any personal injury they caused them.