Penalties and Sentencing
In Queensland, sentencing of offenders is governed by the Penalties & Sentences Act 1992 which sets out the types of penalties that can be imposed for offences and the considerations which a court must take into account in imposing them. This section of the website contains information about all the types of penalties which can be imposed for criminal offences in this state and includes information about how a person can avoid a criminal conviction in some circumstances.
Imprisonment (Jail – Full Time)
Even though it is not a sentence of last resort (as it is in some other states), imprisonment is the most serious penalty which a court can impose upon a person. At its most severe a sentence of imprisonment means that a person must spend a specified period of time within a correctional facility, also called a prison, a jail or a gaol.
A person who is sentenced to a term of imprisonment will not always spend the whole of their sentence in a prison. A court has the power to reduce the time a person actually spends inside a jail by making a number of particular orders:
Parole is an arrangement through which a person who has been sentenced to a term of imprisonment can be released before the end of their sentence. Sometimes they are even released on parole without ever setting foot in a jail.
A court can fix a parole release date which is a set date on which a person is to be released from prison on parole. A court can also choose to set a parole eligibility date which simply sets a date on which a person will be eligible to be released on parole. The decision about whether a person is actually released on parole after becoming eligible is, in that case, a matter for the Department of Corrective Services.
Parole requirements can be onerous and normally include things like regular reporting to a parole officer and participation in counselling or training courses. There is always a general “good behaviour” condition attaching to a parole release meaning that, if a person commits a criminal offence while on parole, their parole can be revoked and the person returned to prison to continue serving their sentence. Being returned to prison for breaching parole is something that happens automatically, it does not require a specific court proceeding as with, for example, breaching a suspended sentence.
A court can suspend a sentence of imprisonment, meaning that a person does not have to remain in jail beyond the date of suspension. Often times a term of imprisonment is suspended with immediate effect, meaning no time is actually served inside a prison.
The effect of a suspended sentence is to make a person subject to the possibility of being incarcerated for a set period of time if they commit further offences during what is called an “operational period”. For example, a person might be sentenced to 12 months imprisonment wholly suspended with an operational period of 2 years. A sentence like this means that the person does not go into prison but is released immediately and will only have to serve the 12 months imprisonment if they commit an offence in the next 2 years.
A court decides whether or not a person who has committed an offence during the operational period of a suspended sentence must serve their term of imprisonment. Unlike a breach of parole, a breach of a suspended sentence must be dealt with by a court, imprisonment is not an automatic consequence.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is, technically, a form of imprisonment but which is served wholly in the community. This means that a person who is made subject to an ICO will not spend any time in prison but will, instead, be required to adhere to requirements ordered by a court. The standard requirements of an ICO include not committing an offence during the period of the order; reporting to, and obeying the directions of, an authorised corrective services officer (almost always an officer from a probation and parole office near where the person lives); and participating in community service, counselling or other programs as directed by that officer.
As with a parole order, or a suspended sentence, any offending during the term of an ICO will be a breach of that order and will more than likely result in action being taken. Failing to comply with directions given by an authorised officer will also likely constitute a breach of the order. If an ICO is breached, a court has the power to commit a person to prison for any “unexpired period” of the order. For example, if a person was sentenced to a 12-month ICO and breached it after 2 months they could be sent to prison for the remaining 10 months.
Community Based Orders
A court can make a Probation Order either by itself, meaning the whole of the sentence is probation, or as a component of a sentence of imprisonment, meaning that a person is ordered to serve a period of time (not longer than 1 year) in prison and is then subject to a probation requirement upon release.
Probation requires a person to be under the supervision of an authorised corrective services officer (just as a Parole Order or an Intensive Corrections Order do) and it also contains, as a default general requirement, an obligation that a person not commit an offence during the period of the order.
The key difference between a Probation Order and a Parole Order is what happens if a person breaches it. Unlike a Parole Order, if a person breaches a Probation Order (for example by committing an offence) they will not be immediately sent to prison but, rather, a court will have the option to re-sentence them for their original offence (though the court is not bound to do this, it has a discretion).
A Probation Order can be, and often is, made alongside a Community Service Order.
Community Service Order
As the name implies, a Community Service Order (CSO) is an order which requires a person to perform unpaid work, normally at some kind of community facility, for a stated number of hours (to a maximum of 240) within a nominated time (usually 6 or 12 months).
A CSO always contains a requirement that a person not commit any offences while the order is in force and, just as with a Probation Order, a breach of the order does not result in immediate imprisonment but it does give a court the power to re-sentence a person for the original offence.
The most common way in which a CSO is breached is through non-completion of the required hours within the stated time or a failure to attend for work.
A CSO can be, and often is, made alongside a Probation Order.
A recognisance is a promise which a person makes to be of good behaviour for a stated period of time. A court is empowered to release a person who enters into a recognisance, either with a surety, which is a sum of money which the person agrees to pay if they breach the recognisance, or without one.
If a person fails to be of good behaviour by committing an offence, they can forfeit any surety which they have given and/or be dealt with for their original offence as if the recognisance had never been made.
Non Conviction Orders
There are two ways in which a person can avoid a criminal conviction for an offence dealt with in a Queensland court. The first is if the court makes an order under s 19 of the Act and the second is if the court simply declines to record a conviction for the offence pursuant to s12 of that same Act.
Section 19 order
A court can discharge a person absolutely, or upon them entering into a recognisance, without recording a conviction against them, if it is satisfied that it is appropriate to do so. When deciding if it is appropriate to make a s19 order the court must consider:
- the age, character and health and mental state of the person;
- the nature of the offence;
- the circumstances under which the offence was committed which make it less serious than it might otherwise seem.
A s 19 order is a nominal punishment and is reserved for offences which a court is persuaded are trivial or otherwise do not deserve anything more than a nominal penalty. It is important that, if a person is sentenced for an offence, they provide the court with as much relevant information as possible, as clearly as possible, to enable it to consider whether a s19 order might be appropriate.
For advice or representation in any legal matter, please contact Armstrong Legal.