Will I go to jail?

One of the first questions a criminal lawyer is often asked by a client that has been charged with a criminal offence is whether or not they will be required to spend time in custody at the conclusion of their matter.

It is a fair and reasonable question to ask a criminal lawyer, however it is not always a simple question to answer.  The answer which is often provided is “it depends”, and that is indeed the case. Where or not a person is required to spend time in actual custody depends on a number of factors. The first is whether a person is found guilty or not guilty of an offence. Here we will look at some of the factors considered by Queensland courts determining the appropriate penalty for anyone convicted of a criminal offence, either by way of a plea of guilty or after being found guilty after a trial.

What will the court consider?

For the majority of criminal offences, the Court must have regard to a fundamental principle that a sentence of imprisonment should only be imposed as a last resort, and that it is preferable for an offender to remain in the community following conviction.  That does not guarantee the offender will escape imprisonment. In addition to that principal the court also considers:-

• The maximum and minimum penalty of the offence;
• The nature and seriousness of the offence;
• Any damage, loss or injury that has been caused;
• The offender’s level of culpability;
• The offender’s character, criminal history and age;
• The prevalence of the offence;
• Sentences imposed for similar offending; and
• The offender’s acceptance of responsibility (in other words, whether the offender pleaded guilty or not guilty to the offence).

Will a different approach be taken if the offending involves violence?

Yes, the court does not need to consider imprisonment as a last resort option. In other words, despite an offender with no criminal history whatsoever, a sentence involving actual time in custody could be a very real possibility. These offences include:

• Assault occasioning bodily harm
• Grievous bodily harm 
• Dangerous operation of a motor vehicle causing grievous bodily harm

If sentenced for these offences, the court will consider:-

• The risk of physical harm to the public if a sentence of imprisonment were not imposed;
• The need to protect members of the community from risk of physical harm;
• The personal circumstances of any victims;
• The circumstances of the offence, including death of or injury sustained as a result of the offending;
• The nature and extent of violence used, or intended to be used;
• The offender’s criminal history;
• Any previous rehabilitative attempts;
• The offender’s character and age;
• Any remorse, or lack of remorse, shown by the offender; and
• Any medical or psychiatric report in relation to the offender.

 

What if I am convicted of a sexual offence against a child under 16?

If an offender is convicted of a sexual offence relating to a child under 16 (such as indecent treatment or rape), or a child exploitation material offence (either, possessing, distributing or making child exploitation material), the court must sentence the offender to a term of imprisonment unless there are “exceptional circumstances” which would make it unjust to do so.

Determining exceptional circumstances will depend on the facts and circumstances of each case. The Court may also consider the closeness in age between the person found guilty of the offence and the complainant when deciding whether there are exceptional circumstances. The Court will also consider:-

• The effect of the offence on the child;
• the need to protect the child, or other children, from the risk of reoffending;
• Any relationship between the offender and child;
• The need to deter similar behaviour by other offenders to protect children; and
• The prospects of rehabilitation.

Why does all of this matter?

If an offender is found guilty, whether that be after contesting a charge or pleading guilty, it is critical that they’re aware of what factors the Court will consider before deciding the appropriate penalty in the circumstances. It is also important to be aware of the things that can be done which may reduce the penalty ultimately imposed.

Our lawyers give detailed advice in terms of obtaining mitigating material for the Court’s consideration. This material can include character references from people who know the person well, as well as medical material from psychiatrists and psychologists. This material can be a significant factor for the court if there are major, underlying medical conditions which contributed to the offending in question. We review and discuss this material with clients at length prior to sentence so that they’re aware of the arguments we will make to obtain the best possible outcome.

Most importantly, when the sentence arrives, the offender needs to be aware of the best- and worst-case possibilities and needs to be confident that their lawyer is putting the best case forward.

Our team are preparing for and making submissions on behalf of our clients on a daily basis. If you’re charged with a criminal offence, don’t hesitate to reach out to Potts Lawyers.