Sentencing considerations in Queensland and what the court can impose

Recently the Queensland Justice system has been thrusted into the spotlight with a focus on crime rates and the medias perception that Queensland courts are handing down soft sentences. However, the fact of the matter is that when a matter comes to sentencing there are a raft of principles and considerations that need to be considered.

Principles of Sentencing

Three main principles make up the framework for sentencing, that being punishment, rehabilitation, deterrence and to protect the community from the offender.  From a punishment perspective, the punishment must fit the crime, which means that the sentence must be proportionate as well as being consistent. From a rehabilitation and deterrence perspective, the two principles work in conjunction by trying to address the issue or issues of the individual. The aim is to correct the individual’s behaviour which should lead to deterring the individual, and the community generally, from engaging in anti-social behaviour. However, when the courts hand down a sentence, they are guided by many other factors that must be considered to produce a fair and just punishment.

Section 9 of the Penalties and Sentencing Act 1992 (Qld) outlines the framework of what factors the courts must consider., including but not limited to:

1. The nature and seriousness of the offence;
2. the offenders age and character;
3. Thephysical and mental harm caused to a victim and whether it is a domestic violence offence;
4. indigeneity and any criminal associations;
5. Any assistance with law enforcement;
6. the maximum and minimum penalty available, and if relevant, the amount of time already spent in custody.

The list of considerations is extensive and is assessed on a case-by-case basis andwhich demonstrates the complexities of sentencing.  However, the most important consideration is the risk posed to the community and the risk posed to the victims, which ultimately holds a higher threshold when those types of offences are concerned.

Custodial sentences

The sentencing guidelines provide that a term of imprisonment should only be imposed as a last resort and that a sentence that allows the offender remain in the community is preferrable. However, this does not apply to any offences that involve actual, attempted or procured violence against another, or if any physical harm to another has occurred.

Further, the most severe offences, such as homicide or manslaughter, will attract a mandatory sentence which requires the offender to serve a specific amount of time before being eligible for parole. The offender of serious violent offences will requires them to be declared a serious violent offender. Currently, mandatory sentences require a serious violent offender to serve 80% of the sentence or fifteen years, whichever is less. Once an offender has served the required amount of time of a custodial sentence they can apply for parole, which is not guaranteed and is considered by the Parole Board. A Serious Violent Offender declaration is made in the following circumstances:

1. Automatically if the offender is sentenced to 10 years of more for a listed offence, including but not limited to, violence offences, sexual offences, drug offences;
   
2. Or by judicial discretion by the sentencing Judge or Justice.

Another type of custodial sentence that generally receives community debate is suspended sentences. To receive a suspended sentence, the sentence must not be more than five years and must be served amongst the community. This allows the offender to remain in the community, provided they do not commit any further offences punishable by imprisonment during the operational period set by the Court. If that occurs, the offender is required to appear before the Court for breaching the suspended sentence, in addition to answering the further charge. On conviction for the further offence, the legislation provides that a Court must order that the offender serve the whole of the suspended sentence, unless it is unjust to do so. Alternatively, they can extend the operational period of the suspended sentence by no more than 1 year.

The Court can also impose periods of imprisonment with release on parole. The offender would then be subject to a parole order in the community, which requires them to be supervised, in addition to an array of other conditions. Parole can either be immediate on the day of sentence or can be set at a later date. In sentences where the offender is already on parole, or the head sentence is 5 years or more, the Court can only set an eligibility date for parole. This means that the offender will not be immediately released, rather, they must apply to the parole board for release.

Due to the need to correct an individual’s criminality and detention being the last resort, the courts can impose an intensive correction order, however, these types of orders are reserved for sentences that are less than one year and are supervised by correction staff in the community with a requirement that the individual participants in mandatory counselling or community service programs.

Non-custodial sentences

Non-custodial sentences are reserved for offences that are less severe which can include:

1. Convicted and not further punished for the offencel
2. Good behaviour orders with a recognisance, which requires the individual to make a promise to the court stating that they will not become before the court during the length of the order;
3. monetary fines;
4. compensation orders;
5. probation;
6. community service; and
7. disqualification of drivers licences.

There are many different types of sentences and orders that can be imposed and many different types of circumstances that lead clients of the justice system. Just as vexed as those issues are, the role of sentencing is one that requires careful consideration of all factors.