QUEENSLAND SENTENCING GUIDE - February 2021
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QUEENSLAND SENTENCING GUIDE February 2021
Queensland Sentencing Guide © Queensland Sentencing Advisory Council 2021 This guide is licensed under a Creative Commons Attribution 4.0 International licence. In essence, you are free to copy, communicate and adapt this guide, as long as you attribute the work to the Queensland Sentencing Advisory Council, Queensland Sentencing Guide. To view a copy of this licence, visit www.creativecommons.org/licenses/by/4.0 First published June 2018 Second edition December 2019 Third edition February 2021 ISBN 978-0-6485965-0-9 This publication is available for download from the Council’s website: www.sentencingcouncil.qld.gov.au. Disclaimer: The content of this guide is for information only. If you have a legal problem, you should seek legal advice from a lawyer. The guide should not be relied upon as legal advice and if you have a specific legal problem, you should seek legal advice about your own particular circumstances. While all reasonable care has been taken in the preparation of this guide, no liability is assumed for any errors or omissions or any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in or omitted from this publication. This guide reflects the law as at 31 October 2020. Queensland Sentencing Advisory Council The Queensland Sentencing Advisory Council is established by section 198 of the Penalties and Sentences Act 1992 (Qld). Its functions are detailed in section 199 of the Penalties and Sentences Act 1992 (Qld). Further information: Queensland Sentencing Advisory Council GPO Box 2360, Brisbane Qld 4001 Tel: (07) 3738 9499 Email: info@sentencingcouncil.qld.gov.au
About the Queensland Sentencing Guide
The Queensland Sentencing Guide explains how Queensland courts sentence adult offenders.
This guide does not explore how courts sentence children and young people.
Children are sentenced under different legislation, namely the Youth Justice Act 1992 (Qld).
The Council intends to release a separate guide on the sentencing of children and young people
in 2021.
The focus of this guide is on sentencing undertaken by Queensland courts.
While some of what is described applies generally in other Australian states and territories, there
are significant differences in the detail.
QUEENSLAND SENTENCING GUIDE | 1
Contents
About the Queensland Sentencing Guide.....................................................................................1
What is sentencing?........................................................................................................................4
Responsibility for sentencing.........................................................................................................4
The sources of sentencing law.....................................................................................................................4
Parliament of Queensland............................................................................................................................5
Parliament of Australia..................................................................................................................................5
Courts.............................................................................................................................................................6
Courts and jurisdiction....................................................................................................................6
Categories of offences in Queensland...............................................................................................7
Magistrates Courts........................................................................................................................................7
District Court..................................................................................................................................................8
Supreme Court..............................................................................................................................................8
Other Queensland courts .............................................................................................................................9
Childrens Court (Magistrates Court).................................................................................................. 9
Childrens Court of Queensland (District Court)................................................................................ 9
Murri Court.......................................................................................................................................... 9
Specialist Domestic and Family Violence Court.............................................................................10
Drug and Alcohol Court....................................................................................................................10
Mental Health Court.........................................................................................................................10
National courts .......................................................................................................................................... 11
High Court of Australia......................................................................................................................11
Sentencing process in Queensland ........................................................................................... 12
Sentencing hearing.................................................................................................................................... 12
Role of the prosecutor........................................................................................................................... 12
Role of the defence................................................................................................................................ 12
Role of the judge or magistrate............................................................................................................ 13
The courtroom.................................................................................................................................... 13
Role of the victim.....................................................................................................................................14
Deciding what sentence to impose............................................................................................. 15
Sentencing purposes ................................................................................................................................ 15
Sentencing factors .................................................................................................................................... 15
Sentencing principles in case law..............................................................................................................16
Sentencing adults in Queensland.....................................................................................................16
Culpability.....................................................................................................................................................17
Mitigating and aggravating factors............................................................................................................17
Guilty plea .............................................................................................................................................18
Cooperation with law enforcement .....................................................................................................18
Maximum penalty....................................................................................................................................... 19
Life sentence.....................................................................................................................................19
Mandatory penalties.................................................................................................................................. 20
Serious violent offence (SVO) scheme............................................................................................21
Presumptive penalties ...............................................................................................................................21
Cumulative and concurrent sentences ....................................................................................................21
Remand ...................................................................................................................................................... 22
Recording a conviction............................................................................................................................... 22
QUEENSLAND SENTENCING GUIDE | 2
Penalty types................................................................................................................................. 23
Non-custodial sentencing orders ............................................................................................................. 23
Absolute discharge...........................................................................................................................23
Recognisance (good behaviour bond).............................................................................................23
Fine....................................................................................................................................................24
Probation order.................................................................................................................................24
Community service order.................................................................................................................24
Graffiti removal order........................................................................................................................25
Driver licence disqualification..........................................................................................................25
Custodial sentencing orders...................................................................................................................... 25
Rising of the court.............................................................................................................................25
Combined prison and probation order............................................................................................25
Intensive correction order................................................................................................................25
Suspended sentence of imprisonment...........................................................................................25
Imprisonment ...................................................................................................................................26
Imprisonment with court-ordered parole....................................................................................26
Imprisonment with a parole eligibility date ................................................................................26
Indefinite sentence ..........................................................................................................................26
Combining sentencing orders....................................................................................................................27
Other orders and the offender levy............................................................................................. 27
Additional orders.........................................................................................................................................27
Restitution or compensation order .................................................................................................27
Driver licence disqualification .........................................................................................................27
Non-contact order ............................................................................................................................27
Banning order ...................................................................................................................................28
Control order ....................................................................................................................................28
Passport order ..................................................................................................................................28
Offender levy............................................................................................................................................... 28
Parole............................................................................................................................................. 29
Types of parole............................................................................................................................................ 29
Court ordered parole....................................................................................................................29
Board ordered parole....................................................................................................................29
Exceptional circumstances parole...............................................................................................29
Parole conditions........................................................................................................................................ 29
Breach of parole......................................................................................................................................... 29
Sentence appeals......................................................................................................................... 30
Magistrates Court sentence ..................................................................................................................... 30
Higher court sentence ............................................................................................................................... 30
Test on appeal ........................................................................................................................................... 30
High Court of Australia ...............................................................................................................................31
Pardon .........................................................................................................................................................31
Commonwealth offences............................................................................................................. 31
Appendix: Examples of maximum penalties ............................................................................. 33
Glossary......................................................................................................................................... 37
Further information...................................................................................................................... 50
Endnotes....................................................................................................................................... 51
QUEENSLAND SENTENCING GUIDE | 3
What is sentencing? Government departments and agencies (or
Executive Government) administer or give
Sentencing is the process of determining and effect to sentences that have been imposed.
applying the appropriate penalty for a person
For example, Queensland Corrective Services
who has committed an offence.
(QCS) manages adult offenders both in prison
It is a complex exercise that involves a court and in the community. Decisions about parole
taking into account a range of factors including: after the person has been sentenced are made
by the Parole Board Queensland.
• the maximum penalty for the offence
• the nature and circumstances of the offence
and its seriousness, including any harm
caused to a victim The sources of sentencing law
• the extent to which the offender is to blame
There are 2 sources of sentencing law in
for the offence;
Queensland:
• the character, age, intellectual capacity
Statute law — legislation made by Parliament.
and any mitigating factors in relation to the
Statute law defines what behaviour constitutes
offender
an offence, establishes penalties, lists the
• sentences imposed for similar cases available sentences, and sets out the rules
committed in similar circumstances. and considerations courts must apply when
sentencing.
Case law — decisions made by courts when
Responsibility for sentencing and decisions about how legislation
sentencing should be interpreted or applied. Case law is
also known as common law.
In Queensland, responsibility for sentencing
is shared between Parliament, the courts,
and government.
Parliament makes written laws (legislation) that
guide sentencing, including laws about what Learn how laws are made:
types of sentencing orders courts can make www.qld.gov.au/about/how-
and the principles that courts must apply in government-works/legislation/how-
deciding the sentence. laws-made
Parliament also makes laws about what
conduct constitutes an offence and the
maximum penalty courts can impose (and,
in some cases, the minimum penalty or
mandatory penalty that applies).
Courts interpret these laws and decide the
sentence to impose on a person found guilty of
an offence in an individual case.
Sentencing decisions made by the courts form
part of the law (also known as case law, or
common law).
QUEENSLAND SENTENCING GUIDE | 4
Parliament of Queensland These and other Acts define what activities and
behaviour are against the law.
The Queensland Parliament makes laws for They set the highest sentence (known as the
the peace, welfare and good government of maximum penalty) that courts may impose on
Queensland.1 Only Parliament can make and a person convicted of an offence.
change laws, subject to the limits set out in the
Commonwealth Constitution. In some cases, these Acts also set out a
minimum or mandatory penalty that courts
In practice, the 3 levels of government — must apply when sentencing.
federal, state, local — all help make laws, by-
laws and regulations in Queensland. The main legislation that guides sentencing in
Queensland is:
The Queensland Parliament consists of the
Governor (as the Queen’s representative) and • Penalties and Sentences Act 1992 (Qld) —
the Legislative Assembly (the elected Members for adult offenders
of Parliament who form the Lower House). • Youth Justice Act 1992 (Qld) — for child
Unlike other Australian states, there is no offenders.
Upper House or Senate in Queensland.
These Acts set out the types of penalties
Ministers (Members of Parliament appointed available to the court (for example, fines,
to Cabinet) are responsible for developing and probation, community service orders and
administering laws relating to their area of imprisonment) and the purposes, principles,
responsibility (known as their ‘portfolio’). and factors that courts must consider when
The Parliament makes legislation by enacting deciding an appropriate sentence.
an Act, which is a document of provisions
containing statements and rules.2
A draft Act is called a Bill. Bills are introduced
Parliament of Australia
into Parliament for discussion, debate, and
The Parliament of Australia (also known as
possible amendment. If the Legislative
the Commonwealth Parliament or Federal
Assembly votes and passes a Bill, it also
Parliament) makes national legislation,
must be given royal assent. On assent by the
including for criminal matters.
Governor, the Bill becomes an Act.
Queensland courts can hear cases and
With no house of review (Upper House), a
impose sentences for some Commonwealth
Bill becomes law in Queensland without
(federal) offences, such as terrorism offences
having to pass through a second chamber.
and drug importation.
However, following the introduction of a Bill
into Queensland Parliament, it will generally There are differences between the sentencing
be referred to a portfolio Parliamentary law for Commonwealth offences and for
Committee for detailed review prior to debate Queensland offences.
by Parliament.
For Commonwealth offences, national laws
Common Queensland offences and their define the nature of the offence, the maximum
maximum penalties are found in the following penalty and the available sentencing options.
Queensland legislation: Such Acts include the Crimes Act 1914 (Cth)
• Criminal Code (Qld) and the Criminal Code Act 1995 (Cth).
• Drugs Misuse Act 1986 (Qld) See Commonwealth offences for
more information.
• Domestic and Family Violence Protection
Act 2012 (Qld)
• Summary Offences Act 2005 (Qld)
• Transport Operations
(Road Use Management) Act 1995 (Qld).
QUEENSLAND SENTENCING GUIDE | 5
Courts Courts and jurisdiction
Case law (or common law) is made by
the courts. It includes past decisions on
sentencing, and on how to interpret or
apply legislation.
Sometimes cases will set out legal principles
that courts must apply when sentencing
in similar cases, or when considering
particular sentencing issues. For example, the
Queensland Court of Appeal has accepted
that a mental disorder short of insanity may
lessen the moral culpability of a person and
so reduce the relevance of the sentencing
principles of general and personal deterrence
when sentencing. All Queensland courts are
guided by this when considering what sentence
may be appropriate for a person with a mental
illness or impairment.
Case law can be overruled by later decisions
of courts of the same or higher authority, or by
Parliament passing legislation.
Knowing what sentences have been imposed
in cases involving the same or a similar
offence, committed in circumstances that may
be similar or different to the current offence,
also helps judges and magistrates determine
an appropriate sentence.
While no 2 cases are alike, consistency, that
is, the principle that like offenders should
receive similar punishment for like offences, Find your local courthouse:
is fundamentally important to sentencing as www.courts.qld.gov.au
it promotes public confidence in sentencing
courts. However, because each case is unique,
the law promotes consistency of approach3
rather than requiring the same sentence to be
In Queensland, judges or magistrates are
imposed in every case.
responsible for determining the sentence to be
When sentencing an offender for an offence, imposed on people who have pleaded guilty or
the court may consider other sentences that been found guilty of an offence.
have been given for that offence in other
Queensland has 3 tiers of courts for the
cases and must also consider the purposes,
sentencing of adults:
principles and factors set out in legislation and
in case law. • Magistrates Courts
The prosecutor and defence lawyer will typically • District Court
present the judge or magistrate with relevant • Supreme Court.
examples of sentences given in other similar
cases and may suggest to the court what they These courts hear both criminal and civil
think the appropriate sentence or sentencing cases; however, this guide is focused on
range is. However, the judge or magistrate criminal matters only.
makes the decision.
QUEENSLAND SENTENCING GUIDE | 6
The type of court a person is sentenced Categories of offences in Queensland
by depends on the type of offence the person
is charged with and the seriousness of
the charge (and in some cases, whether
Offences Queensland Criminal Code s 3
the person elects to have a trial or has
pleaded guilty).
Generally, the more serious the offence is, the
higher the court that will hear it. For example, Criminal Regulatory
murder and manslaughter cases can only be
heard in the Supreme Court.
In Queensland, there are 2 types of offences —
regulatory offences and criminal offences:4 Indictable Simple
Regulatory offences are less serious forms of
offences (for example, unauthorised dealing
with shop goods, known as shoplifting, leaving
Crimes
a hotel or other venue without paying, and
damage to property where the value of the
damage or loss caused is less than $250).5
These offences provide police with an Misdemeanours
alternative to charging a person with a criminal
offence. The maximum penalty that can be
imposed is a fine, probation, or a community
Source: Adapted from Heather Douglas, Malcolm Barrett and Emma
service order (imprisonment is not an option). Higgins, Criminal Process in Queensland (2nd ed, 2017) 114.
They are generally only dealt with in
Magistrates Courts.
Criminal offences comprise summary
offences (also known as simple offences), Magistrates Courts
misdemeanours, and crimes.
Magistrates Courts are the first level of the
-- Summary offences are generally minor Queensland court system and deal with the vast
offences that must be prosecuted within majority of sentencing events (approximately
12 months of the matter arising6 and are 95 per cent of cases).8 Most criminal cases
usually heard in a Magistrates Court. are first heard in these courts in some form.
Examples include driving offences, Magistrates Courts can hear cases in about 130
public nuisance offences, trespassing, locations across Queensland.
and minor drug offences.7 A person charged with a criminal offence must
In some circumstances, a judge of a be brought before a Magistrates Court after
higher court may hear a simple offence. being charged. All matters in a Magistrates
Court are heard and decided by a magistrate.9
-- Misdemeanours and crimes are
indictable offences. An indictable A magistrate can make decisions about
offence may be dealt with in the whether:
Supreme or District Court. • a person is to be released on bail or
Generally, crimes are more serious remanded in custody;
than misdemeanours. Some indictable • for an offence that must be dealt with in
offences can or must be dealt with the Magistrates Court or that is proceeding
summarily, which means they are dealt summarily — whether the person is guilty,
with by a Magistrates Court, rather than and the penalty.
by a higher court.
QUEENSLAND SENTENCING GUIDE | 7
Unlike trials in the Supreme and District The District Court sits in 32 locations across
Courts, trials in Magistrates Courts are heard Queensland, with some judges travelling to
by a magistrate without a jury. In most cases, regional and remote locations.11
defendants charged with an offence plead
In the District Court, matters are presided
guilty meaning there is no need for a trial.
over by a judge, and criminal trials are usually
The Magistrates Courts deal with regulatory heard with a jury, although in very rare
offences, simple offences, and some indictable circumstances, a judge can hear a trial without
offences that can proceed summarily, such a jury.
as some forms of burglary, unlawful use of a
motor vehicle, fraud, and assault occasioning
bodily harm.
What is a jury trial?
When a jury trial is held, 12 people
Some indictable offences must be dealt with
selected at random will determine whether
summarily.
the defendant is guilty or not guilty based on
As a general guide, indictable offences that the facts of the case presented at trial.
must be heard summarily are those that carry
The judge does not decide on guilt but
a maximum penalty of not more than 3 years,
ensures the trial is conducted fairly and
but other prescribed offences with a higher
makes all other decisions, including the
maximum penalty can also be heard in a
sentence if the defendant is convicted.
Magistrates Court if the prosecution decides to
proceed this way, or if the defendant decides If a criminal trial is held without a jury, the
not to have a jury trial.10 judge decides whether the defendant is guilty.
The maximum sentence that can be
imposed in the Magistrates Court is 3 years’ Supreme Court
imprisonment (although a sentence of up to
4 years’ imprisonment can be imposed by The Supreme Court is the third and highest
a Magistrates Court sitting as the Drug and court in Queensland, comprising the trial
Alcohol Court). division and the Court of Appeal.12
However, a magistrate must not deal with an The Supreme Court trial division sits in 11
indictable offence if satisfied that if convicted, regional courthouses and, as with the District
the defendant may not be adequately punished Court, judges travel to hear matters in regional
on summary conviction because of the nature and remote areas.
or seriousness of the offence, or any other
Matters in the trial division are presided over
relevant consideration.
by a judge and the process for a criminal trial
In the case of more serious indictable offences (with or without a jury) is the same as for the
such as rape, armed robbery, and murder, District Court.
a Magistrates Court determines if there is
The difference between the Supreme and
enough evidence to refer the case for trial in
District Courts is the type of offence that can
the District or Supreme Courts. This is called
be heard and decided.
a committal hearing.
The Supreme Court deals with the most
District Court serious criminal cases including murder,
manslaughter, and the most serious drug
The District Court is the second highest offences.
Queensland court and deals with serious
criminal offences such as rape and most other The Court of Appeal hears and decides appeals
sexual offences, armed robbery, and grievous against sentences imposed in the District Court
bodily harm offences. The District Court and the Childrens Court of Queensland.
also hears appeals against sentences from The Court of Appeal is discussed in
Magistrates Courts. Sentence appeals on page 30.
QUEENSLAND SENTENCING GUIDE | 8Other Queensland courts The CCQ also hears sentence reviews (similar
to an appeal) from sentences imposed in the
Queensland has a number of courts that have Childrens Court.
been established to hear specific types of The Supreme Court hears cases involving
cases. Some of these courts deal with people children charged with the most serious criminal
charged with criminal offences. offences, such as murder and the most serious
In Queensland, where a child (a person forms of drug trafficking.13
17 years old or younger) is alleged to have The rules regarding open court, identification,
committed a criminal offence, cases can be and publication are like those in the CCQ.
dealt with by:
• the Childrens Court, a special court at the Murri Court
Magistrates Court level
Murri Court is a specialist court within the
• the Childrens Court of Queensland (CCQ), a Magistrates Courts that aims to encourage
special court at the District Court level participation from the Aboriginal and Torres
• the Supreme Court, dealing with offences Strait Islander community, deliver a culturally
categorised as ‘Supreme Court offences’ appropriate court process, link defendants
under the Youth Justice Act 1992 (Qld). to support services, and assist magistrates
to understand a defendant’s personal and
cultural circumstances.14
Childrens Court (Magistrates Court)
Cultural and support services aim to
The Childrens Court deals with summary
assist Aboriginal and Torres Strait Islander
offences and less serious offences.
defendants to make changes in their lives and
All Childrens Court proceedings are heard in a prevent reoffending.
closed court. This means only people directly
Elders and Respected Persons from the
involved in the case can be present and no
community are present in the courtroom.
information identifying a child defendant can
Their role is to guide and encourage
be published.
defendants to access appropriate services,
In addition to hearing criminal cases, the including counselling, education and training,
Childrens Court can hear child protection attending a men’s or women’s group, support
applications and adoption matters. for alcohol and drug misuse, or receiving
assistance to find accommodation.
A Specialist High Risk Youth Court (HRYC)
commenced in Townsville in February 2017. Although Murri Court is less formal than a
The HRYC provides regular judicial monitoring mainstream court, defendants are still held
by a dedicated magistrate to hold a young accountable for their actions.
person to account while bringing together
Murri Courts are located in the Magistrates
appropriate supports to address the
and Childrens Courts in 15 locations. In some
underlying causes of the young person’s
locations, Australian South Sea Islander
offending behaviour.
defendants are able to participate in
Murri Court.
Childrens Court of Queensland
(District Court) Visit the Queensland Sentencing Advisory
The Childrens Court of Queensland (CCQ) deals Council’s website to learn more about the
with all children charged with serious criminal Murri Court as part
offences. of the Council’s
Matters in the CCQ are usually heard in an Doing Justice
open court; however, the judge may order Differently
the court be closed. Unless the court orders video series.
otherwise, no information identifying an
accused child may be published. www.sentencingcouncil.qld.gov.au
QUEENSLAND SENTENCING GUIDE | 9Specialist Domestic and Family The Drug and Alcohol Court uses a special
Violence Court sentencing order called a drug and alcohol
treatment order.17 The treatment order is a
Specialist Domestic and Family Violence prison sentence that is suspended while the
(DFV) Courts generally deal exclusively with offender participates in intensive rehabilitation
all civil and criminal DFV matters. Specialist programs under supervision in the community.
DFV courts currently operate at Southport,
Beenleigh, Townsville, Mount Isa and While on the treatment order, the person
Palm Island.15 is supported and managed by a team of
specialists led by the Drug and Alcohol Court
Specialist DFV Courts offer: magistrate, including court staff, health
• a dedicated magistrate with expertise in clinicians, QCS staff, police prosecutors, Legal
DFV issues Aid Queensland lawyers, and an Aboriginal and
Torres Strait Islander court liaison officer.
• a court coordinator to oversee court
operations, including stakeholder Offenders who breach the conditions of their
engagement drug treatment order return to the Drug and
Alcohol Court.
• a specialist registry with court staff to offer
support and information The Court can impose different types of
consequences, including ordering the person
• dedicated prosecutors
to serve short periods in prison. Repeated
• duty lawyers to provide legal advice and breaches can lead to the order being revoked
representation for both parties and the person being re-sentenced or ordered
• court support workers for the aggrieved to serve the whole or part of the suspended
(or in criminal matters, the victim) sentence of imprisonment.
• support/liaison workers for respondents The Drug and Alcohol Court features as part of
(or in criminal matters, defendants) the Queensland Sentencing Advisory Council’s
• QCS representatives who provide expert Doing Justice
advice to the magistrate about suitability Differently
assessments for community-based video series.
supervision
• access to DFV perpetrator programs
for respondents Learn more at:
• specialist DFV registry training. www.sentencingcouncil.qld.gov.au
In addition to the establishment of DFV Mental Health Court
Courts, Queensland Courts have implemented
statewide specialist court responses for the The Mental Health Court is a specialist court
way DFV proceedings are dealt with. which decides the state of mind of people
charged with criminal offences.
Drug and Alcohol Court A criminal case can be referred to the Mental
The Queensland Drug and Alcohol Court is Health Court if it’s believed that the defendant
a specialist court operating in Brisbane. It is or was mentally ill or has an intellectual
provides an intensive and targeted response to disability. The Mental Health Court decides
adults with a severe substance use disorder.16 whether the person:
The Court aims to improve community safety • was of unsound mind at the time of the
by rehabilitating offenders through supervision, offence
treatment, and program intervention during • is currently fit for trial, or
their sentence, which addresses drug and
• if charged with murder, will instead stand
alcohol dependency, so that offenders can
charged with manslaughter by reason of
reintegrate into the community as productive
diminished responsibility.18
members of society.
QUEENSLAND SENTENCING GUIDE | 10The Court is constituted by a Supreme National courts
Court judge and is advised by 2 assisting
psychiatrists who examine material and There are national courts that hear non-
provide expert advice to the Court about criminal matters, such as family matters,
clinical evidence and issues relating to the commercial and financial matters, employment
person’s treatment and detention needs.19 matters, and human rights matters.
The Court investigates the connection These courts are the:
between a person’s mental illness and the
alleged offences. • Family Court of Australia20
It considers a wide range of material, including • Federal Court of Australia21
reports by police and experts, advice from • Federal Circuit Court of Australia.22
the assisting psychiatrists, and submissions
Given the areas of law these courts consider,
from the Office of the Director of Public
they hold limited relevance to sentencing
Prosecutions, the Director of Mental Health,
for criminal offences, which is the focus of
and the person’s legal representatives.
this guide.
The Court has the power to order the
defendant to submit to an examination by High Court of Australia
a court-nominated psychiatrist or health
practitioner. The High Court of Australia is the highest court
in the Australian judicial system. Decisions
The Mental Health Court also hears appeals of the High Court are binding on all other
from the Mental Health Review Tribunal and Australian courts.
inquiries into the lawfulness of a patient’s
detention in authorised mental health facilities. The functions of the High Court are to:
To do this the Court has special inquiry and • interpret and apply the law of Australia
investigation powers.
• decide cases of special federal significance,
such as challenges to the constitutional
validity of laws
• hear and decide applications for special
leave and appeals, from federal, state, and
territory courts.23
The High Court can hear the whole range of
Australian law, such as constitutional, contract,
company, criminal and criminal procedure,
insurance, tax, property, and family law.
For more information, including what The High Court can also hear and decide an
hearings are open to the public, visit appeal against sentence from the Queensland
the Mental Health Court’s website: Court of Appeal. This process is discussed in
www.courts.qld.gov.au/courts/mental- the section Sentence Appeals on page 30.
health-court/hearings-in-the-court/
what-happens-in-a-hearing The High Court is based in Canberra. Registry
services for the Court in Brisbane are provided
by staff of the Federal Court of Australia.
QUEENSLAND SENTENCING GUIDE | 11Sentencing process in Role of the prosecutor
Queensland During the sentencing hearing the prosecutor
provides the judge or magistrate with:
A sentence can only be imposed when a • all the facts and circumstances of
person has been found guilty of an offence. the offence/s, in particular any
An accused person can be found guilty of an aggravating factors
offence in 2 ways: • the offender’s criminal history, highlighting
• they plead guilty to the offence charged, or relevant prior offending
• is found guilty following a trial. • submissions about the impact of the
offending on the victim/s, such as a victim
To be found guilty at trial, the magistrate, judge impact statement
(for judge-alone trials), or jury must be satisfied
beyond reasonable doubt that the person is • submissions about relevant case law and
guilty of the offence as charged. legislation, including associated sentencing
principles
Sentencing hearing • submissions on the appropriate sentence
or range of sentences.
When a person has been found guilty of
an offence, the court holds a sentencing Role of the defence
hearing. At the sentencing hearing the
State (represented by the prosecutor) and During the sentencing hearing, the defence
the offender (represented by their defence provides the judge or magistrate with:
lawyer or themselves) each present important • information about the offender’s personal
information to help the judge or magistrate circumstances and any character
determine the appropriate sentence. references
The victim can participate through the making • background or any contextual information
of a victim impact statement and may also about the offence/s, in particular any
attend the sentencing hearing, but does not mitigating factors
have to. • submissions about the steps an offender
In Queensland the sentencing hearing is has taken towards rehabilitation
usually held immediately after the person has • submissions about relevant case law and
pleaded guilty or been found guilty, but it can legislation, including associated sentencing
also take place at a later date. principles
Sentencing hearings for the sentencing of adult • submissions on the appropriate sentence
offenders are usually held in open court which or range of sentences.
means that anyone can attend (including the
media), unless the judge or magistrate orders An offender’s role in the sentencing hearing is
the court to be closed. to listen to the court’s decision and to agree
or disagree to any orders that require consent
There are some circumstances where the court (such as probation).
must be closed. These include cases where a
person has agreed to provide assistance to law If the offender does not agree to an order that
enforcement authorities if oral submissions requires them to consent to it, the judge or
are to be made, or evidence is to be brought magistrate will generally either:
before the court to support a reduction in the • briefly adjourn the matter (‘stand it down’)
person’s sentence (see Cooperation with law to allow the defence lawyer time to talk with
enforcement on page 18).24 their client
• make another sentencing order.
QUEENSLAND SENTENCING GUIDE | 12Role of the judge or magistrate The magistrate’s or judge’s reasons for
their sentencing decision are called
The information given in a sentencing hearing sentencing remarks.
helps the judge or magistrate to decide on an
appropriate sentence. In Queensland, these reasons are often
delivered ex tempore — which means the
During the sentencing hearing the judge magistrate or judge delivers them verbally at
or magistrate can ask questions to seek the end of the sentencing hearing, rather
information and clarify issues. than preparing written reasons delivered at a
How judges and magistrates determine later date.
a sentence is a complex process and is Some sentencing remarks transcripts are
discussed in detail on page 15 in published by the Supreme Court Library
Deciding what sentence to impose. Queensland and are available on their website.
The types of penalties a court can impose
when sentencing an offender as an adult are
set out in the Penalties and Sentences Act
1992 (Qld). See Penalty Types on page 23 for
more information.
When a judge or magistrate makes an order
involving conditions as part of the sentence
— for example, an order of probation — the
judge or magistrate must ensure the offender
understands the conditions imposed and
agrees to the order being made.
However, a court can impose imprisonment
(including suspended imprisonment) without
the person being sentenced agreeing to this.
The courtroom
This diagram depicts a typical
Magistrates Court courtroom.
In the District and Supreme Court, docks
are generally located behind the bar
table and all defendants (whether on bail
or remand) sit in the dock.
QUEENSLAND SENTENCING GUIDE | 13Role of the victim It might include details of:
Queensland legislation protects the interests of • the difference in the victim’s life before and
victims during sentencing. When determining after the crime
an appropriate sentence, the court must • physical or emotional injuries and how
consider any physical, mental or emotional these affect the victim
harm done to a victim because of the offence.
The court must also consider the effect of the • financial loss and how this affects the victim
crime on any child under 16 years who may • if the case is about the death of a loved
have been directly exposed to or witnessed the one, details about the loved one’s life.
offence.
The victim can provide their victim impact
One of the ways the victim can bring this harm statement to either the arresting police officer
to the attention of the court is through a victim or the Victim Liaison Officer from the Office of
impact statement. A victim impact statement the Director of Public Prosecutions.
is an opportunity for a victim to participate in
the criminal justice process by communicating A victim may also be offered the opportunity to
to the court the impact the crime has had read their victim impact statement aloud
including any physical, social, financial, or in court.
psychological effects. If a victim is provided the opportunity to do so,
the court may make special arrangements to
assist the victim (for example, obscuring the
Find out how to make a victim impact
victim’s view of the offender).
statement:
www.qld.gov.au/law/crime-and-police/ A victim has certain rights in criminal justice
victims-and-witnesses-of-crime/court- proceedings, outlined in the Victims of Crime
support-for-victims-of-crime Assistance Act 2009 (Qld).
A victim impact statement is a written
statement made by a victim — or the victim’s
family — that states the harm experienced Find out about victim rights:
from the offence. www.qld.gov.au/victimsrights
It may include attachments such as medical
reports, photographs, and drawings.
This statement helps to inform the sentencing
judge or magistrate about the impact of a
crime on the victim; however, providing one
is not mandatory and is always the choice of
the victim.
If a victim or victim’s family chooses not Victim Assist Queensland provides assistance
to provide an impact statement, this does
not mean the court will assume the offence
to victims of violent crime, including all forms of
caused little or no harm to the victim or domestic and family violence in Queensland, to
the family. help people recover from the effects of the crime
The victim impact statement should focus on
and get their lives back on track.
the impacts of the crime, not the crime itself.
It must be accurate and relevant only to the Learn more at:
crime the person has been found guilty of.
Victim Assist Queensland
www.qld.gov.au/victims
QUEENSLAND SENTENCING GUIDE | 14Deciding what sentence Sentencing factors
to impose By law, courts must take into account a
number of principles and factors when
Determining an appropriate sentence is a
sentencing an adult for an offence including:
complex process in which a sentencing judge
or magistrate must balance a range of factors • the maximum and any minimum penalty
in accordance with the law. Judges and for the offence (see Maximum penalty and
magistrates take into account the submissions Mandatory penalties pages 19 and 20)
made by the prosecution and the defence, as
well as legislation and case law as they apply to • the nature and seriousness of the offence,
the individual circumstances of a case. including any physical, mental or emotional
harm to a victim and effect on a child who
This process of reaching a sentence in an may have been exposed to, or a witness to,
individual case by balancing all of the relevant the offence
factors is known as instinctive synthesis.
• how much the offender is to blame for the
Sentencing purposes offence (see Culpability page 17)
• whether — and how early — the offender
The only purposes under Queensland law for pleaded guilty or indicated they would
which an adult offender can be sentenced are: plead guilty (see Guilty plea page 18)
• punishment — to punish the offender to • any damage, loss or injury caused
an extent or in a way that is just in all the
circumstances • the offender’s character (including the
number, seriousness, date, relevance, and
• rehabilitation — to create conditions that nature of any previous convictions and
help the offender to be rehabilitated any significant contributions made to the
• deterrence — to deter the offender (known community by the offender)
as personal or specific deterrence) • the offender’s age and intellectual capacity
or other people (known as general
deterrence) from committing the same or • any aggravating or mitigating factors
a similar offence relating to the offender (see Mitigating
and aggravating factors page 17)
• denunciation — to denounce or condemn
the offender’s behaviour (that is, make • how common/prevalent the offence is
it clear that the community strongly • how much help the offender gave to law
disapproves of what the offender did) enforcement agencies, such as police, in
• community protection — to protect the investigating the offence or other offences
Queensland community from the offender (see Cooperation with law enforcement
page 18)
• a combination of these purposes.
• time already spent in custody by the
No one purpose is the main or dominant offender while waiting to be sentenced
purpose for sentencing in all cases. In each (see Remand page 22)
case the judge or magistrate will consider the
features of the offending and the offender, • sentences imposed on or served by the
and decide which purpose or combination of offender in another state or territory for an
purposes will apply. offence committed at, or about the same
time, as the offence the person is being
In addition to these purposes, there are sentenced for in Queensland, or sentences
sentencing principles and factors that apply to already imposed on the offender that have
the sentencing of adults. not been served
QUEENSLAND SENTENCING GUIDE | 15• if the offender is already on a community- Sentencing principles in case law
based sentencing order, whether they have
followed the conditions of the order and In addition to the purposes, principles and
have done what they agreed to do factors set out in legislation, courts must also
• the successful completion of a program or consider certain sentencing principles that
course imposed as a condition of bail have been developed under the common law.
These principles provide guidance to help
• if the offender is an Aboriginal or a Torres judges and magistrates reach a decision on
Strait Islander person, any submissions by the sentence to impose.
a representative of a Community Justice
Group in the offender’s community Proportionality means that the sentence must
be proportionate to the circumstances of the
• any other relevant circumstance. offence and seriousness of the offending (also
By law, some factors cannot be taken into incorporated within the sentencing purpose of
account to reduce the sentence, such as if the just punishment as discussed above).
offender was voluntarily intoxicated by alcohol
or drugs when committing the offence.
Sentencing adults in Queensland
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QUEENSLAND SENTENCING GUIDE | 16Parity means that co-offenders who are To determine an offender’s culpability, judges
jointly involved in the same criminal conduct and magistrates consider the offender’s
or activity should receive a similar penalty if intention, awareness and motivation for
the offence and circumstances are similar. committing the offence. The court will consider
However, differences in age, personal and factors such as whether the offence was:
criminal history, and culpability, may justify a • committed by a person in complete control
different sentence. of his or her own actions (or for example,
Parity is an aspect of ‘equal justice’ (that is, was the offender mentally disordered or
courts should treat same or similar offending intellectually disabled or acting under the
alike and different offending, differently).25 influence of alcohol or drugs?)
Totality means that when there is more than • committed with the person’s knowledge of
one sentence, the total sentence should reflect its consequences (or likely consequences),
the overall criminality of the offending. or only in careless (negligent) disregard of
the consequences
Totality may apply when there are a number of
offences committed over a short timeframe, or • provoked or unprovoked
where a person is already serving a sentence • planned in advance or committed on the
and the offences were committed before or spur of the moment
after that sentence was imposed.
• committed while in possession of a weapon.
The sentencing court may order a sentence
While differences in culpability are relevant
to be imposed concurrently or reduce a
to sentencing, they are also reflected in the
cumulative sentence to avoid imposing a
offences that people may be charged with or
‘crushing’ sentence (a sentence so severe that
convicted of. Using murder and manslaughter
it crushes any hope that the person will lead a
as an example:
useful life after release from custody).
• if a person has killed the victim with the
The De Simoni principle — A person should intention to kill or to cause serious harm
only be sentenced for an offence that he or she (grievous bodily harm), this is murder
has been found guilty of and not punished for
other criminal conduct. • if the person was suffering from a major
mental disorder (short of insanity) when
This means a judge or magistrate cannot take they killed the victim, they may instead be
into account circumstances that have not been convicted of manslaughter on the basis of
charged but would have warranted a conviction diminished responsibility.
for a different or more serious offence.26
A judge or magistrate may only consider Mitigating and aggravating factors
the person’s actions or omissions before or Mitigating factors are details about the
after an offence that may have been criminal offender and the offence that tend to reduce
but were not charged as contextual when the severity of the sentence.
sentencing (reasons for not charging may
include difficulty framing charges or lack of Aggravating factors are details about the
forensic evidence). offence, the victim, and/or the offender that
tend to increase the person’s culpability and
Culpability the sentence received.
Culpability is the extent to which an offender is The court will take these factors into account
responsible (blameworthy) for an offence and when determining an appropriate sentence.
for the harm he or she caused. Generally, the The following are examples of factors that can
more culpable a person is, the more serious mitigate a sentence:
the offence will be assessed to be and the
more severe the sentence. • the person suffers from a cognitive
impairment or mental illness
QUEENSLAND SENTENCING GUIDE | 17You can also read
