What is a sentence?
The sentence is the penalty imposed by a court on a person after they have been convicted of an offence, either by pleading guilty to the offence or being found guilty of the offence at trial.
During a sentencing hearing both the prosecution and the defense make submissions to the sentencing judge on factors the judge should take into consideration when determining the appropriate penalty and ultimately what the appropriate penalty is in their view. The prosecution and defense will refer to previous sentences given for similar offences in order to support their view of what the ultimate penalty should be.
Firstly there is a formal process where the details of the charges and the conviction are read to the defendant. If the defendant is pleading guilty to the charge, the plea is formally entered at this stage.
The prosecution will read a summary of the relevant facts of the offence to the court (this will usually be a version of events that has been agreed upon in advance by the prosecution and defense) and provide the court with a copy of the defendant’s criminal history. The prosecution will then use cases to support its ultimate submission on penalty. In doing so they will point out similarities between the cases being referred to and the circumstances of the offence before the court. The prosecution may also refer to cases they know the defense will be using to support their submission on penalty and point out any relevant differences between these cases and the circumstances of the current offence. Finally the prosecution will make their ultimate submission on penalty.
The defense will then hand the Judge/Magistrate any character references or other relevant documents they are relying on. The defense submissions focus on any mitigating factors present in the circumstances. Mitigating factors are circumstances because of which the penalty given to the offender should be reduced. The defense will also support their submissions with cases they believe are similar to the circumstances of the current offence. The defense may also respond to the cases relied on by the prosecution and point out any relevant differences between these cases and circumstances of the offence before the court. The defense will then make their ultimate submission on penalty to the court.
After the prosecution and defense have made their submissions to the court the sentencing Judge or Magistrate can either state their decision straight away or adjourn the court to consider their decision. When handing down the sentence the Judge or Magistrate will outline the factors they took into account when arriving at their decision and then state the sentence they are imposing on the offender.
Factors considered during sentencing
Section 9 of the Penalties and Sentences Act 1992 sets out factors which a Judge/Magistrate must take into account when giving a sentence.
Section 9 (1) sets out what are known as the principles of sentencing:-
(1) The only purposes for which sentences may be imposed on an offender are—
(a) to punish the offender to an extent or in a way that is just in all the circumstances; or
(b) to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or
(c) to deter the offender or other persons from committing the same or a similar offence; or
(d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or
(e) to protect the Queensland community from the offender; or (f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).
Section 9 (2) sets out a non-exhaustive list of factors the court must take into account when sentencing an offender. These range from the damage, injury or loss caused by the offender to the prevalence of the offence, the offenders character, age and intellectual capacity and the assistance given by the offender to law enforcement agencies. Section 9 (2) (r) states the Judge/Magistrate may also take into account any other circumstance they deem relevant.
Factors required to be considered can be either aggravating (against the offender) or mitigating (in favor of the offender). Aggravating factors increase the sentence an offender will receive while mitigating factors reduce the sentence an offender will receive.
Examples of Mitigation
(a) A person charged with a drink driving offence undertakes a traffic offenders program before being sentenced. This indicates to the court the person’s genuine remorse and desire to facilitate their own rehabilitation.
(b) A person charged with a Fraud offence makes restitution by repaying the amount of money fraudulently acquired before sentence. Once again this indicates genuine remorse to the court as well as a desire to limit the damage caused by the offending.
Courts in Queensland have a variety of penalties they can impose on an offender. These range in severity from a fine to imprisonment and are all designed to meet specific sentencing aims.
1: Fines & Restitution
In serious matters, it is not uncommon that a fine is imposed in addition to one of the other penalties. The amount of the fine cannot be greater than the maximum penalty for the offence.
If your offence involved financial loss to some other person, the Court may order that you pay restitution to that person for the full amount or a partial amount of their loss. This can also be in addition to a fine.
The court will order that you pay any fine and/or restitution within a specified time. However you can make application to the court at the time of sentencing to have your fine and/or restitution referred to the State Penalties and Enforcement Registry (SPER) where a longer payment schedule can be arranged.
2: Community Service Order
A Community Service Order (CSO) involves unpaid work in the community at a place specified by the Corrective Services Officer. You will be required to complete at least 40 hours, but no more than 240 hours of community service within 1 year. The exact number of hours between these two figures is at the discretion of the Court.
The Court may order that you complete both a Community Service Order and Probation Order, see below.
A Probation Order involves being released under the supervision of a corrective services officer. Probation can be ordered as an alternative to imprisonment or in addition to imprisonment upon release. The period of your probation will be no longer than 3 years.
If you are ordered to complete a Probation Order, you must meet with your corrective services officer as often as the order requires and comply with the officer’s reasonable directions. Such directions may include attending groups, courses and/or counseling, and submitting to medical, psychological and/or psychiatric treatment.
You must also comply with any other special conditions the Court imposes. Other conditions may include producing clean drug and alcohol tests. Further you must not commit any offences during the period of your probation.
If you fail to comply with your Probation Order, you will be required to appear before the court for re-sentencing.
The Court may order that you complete both a Community Service Order and a Probation Order.
4: Intensive Correction Order
An Intensive Correction Order involves you serving a term of imprisonment in the community and is only available where the court imposes a term of imprisonment for 1 year or less.
The order consists of the requirements of both a Community Service Order and Probation Order put together. Further, you will be required to meet with your corrective services officer on a more regular basis and will generally be required to spend a greater number of hours completing programs and community service. Specifically, you will be required to perform up to 12 hours per week of community service and attend a minimum of two meetings per week with the community corrections officers.
If a court makes an Intensive Correction Order against you, it has no option but to record your conviction.
5: Suspended Sentence
A suspended sentence is where the Court imposes a term of full time imprisonment upon an offender, but the sentence is immediately or partially suspended for an operational period of up to 5 years.
If you commit and offence (that has imprisonment as an available sentencing option) during the period of the suspended sentence, you will be resentenced and may be required to serve part or all of the period of imprisonment imposed.
6: Imprisonment and Parole
The court may order imprisonment with or without the option of early parole. If the court orders imprisonment without early parole, you must serve the period imposed or enter society under a Parole Order. However, in the event the court makes an order that you be eligible for parole after a certain period of the sentence is served, then you may be released earlier at the direction of the parole board.
The effect of parole is similar to that of an Intensive Correction Order, both involve strict conditions imposed on your ability to travel, your place of residence and your employment. You will be subject to the conditions of your Parole Order. A breach of this order will involve you being sent back to jail subject to the view of the parole board.
Discretion to Record Conviction
When sentencing an offender the court also has discretion whether or not to record the offenders conviction.
1: The Law
The relevant section that the Magistrate or Judge must consider when deciding whether or not to record a conviction is section 12 of the Penalties and Sentences Act.
In most instances the Court will order that your conviction is recorded and the Court must record a conviction if it sentences you with an Intensive Correction Order, Suspended Sentence or Imprisonment. If your conviction is recorded you are required to declare that conviction when requested to do so on formal documents.
In some limited cases the court may decide that no conviction be recorded in respect of a charge despite entering a plea of guilty. The Court is only obligated not to record a conviction if it imposes a good behavior bond as your penalty. If you are sentenced with a fine, community service or probation, the Court has discretion whether to record a conviction or not.
It is unlikely that the court will make an order that no conviction be recorded unless you are a first time offender. Even if you are a first time offender, the Court may still consider the circumstances of your matter are such that a conviction must be recorded.
It is important to note that the term ‘no conviction recorded’ is somewhat deceiving, as the charge will appear on your criminal history. Further, in some situations you may still be required to declare your conviction on formal documents. Accordingly, you should always seek advice from a solicitor if you are unsure whether you are required to declare your conviction or not, this is of particular concern in relation to employment in certain industries and overseas travel.
2: How long do I need to declare my conviction for?
The law considers a person to be rehabilitated 10 years after the date of their conviction, if that person has not been convicted of any other criminal offence or misdemeanor since their conviction. Once the rehabilitation period has passed, you will generally no longer be required to declare that conviction unless you have committed another criminal offence or a misdemeanor in the meantime.
However, note that you may still be required to declare all prior convictions, regardless of how long ago they occurred, in your application for a particular job or role. Accordingly, if you are unsure whether you are required to declare your conviction, you should seek legal advice or contact the authority in charge of the profession.
The relevant sections of the law are sections 6 and 9A of the Criminal Law (Rehabilitation of Offenders) Act Queensland.
If your offence is a traffic matter you may be subject to a license disqualification period on top of your penalty.
In most cases the discretion the Magistrate or Judge has regarding sentencing will be restricted by maximum and/or minimum penalties. These boundaries are put in as a ceiling or floor on the Magistrate or Judge’s sentencing discretion, they are not an indication to the sentencing Magistrate/ Judge of the penalty he should usually impose for that particular offence. Maximum penalties are referred to as the suitable penalty for the most serious form of the offence or the worst case scenario in terms of that particular offence.
For certain offences in Queensland the sentencing Judge or Magistrate’s discretion is restricted even further by mandatory sentencing requirements. This is limited to the most serious of offences. An example of a mandatory sentencing requirement in Queensland is the offence of Murder, which carried with it a mandatory life sentence.