Penalties and Sentences Act 1992

Courts exercising criminal jurisdiction in Queensland are the primary actors under the Act. This includes the Supreme Court, District Court, and Magistrates Courts. The Act imposes specific obligations on each level of court, including duties to state reasons for sentences of imprisonment under section 10, to consider whether to record a conviction under section 12, and to apply the sentencing guidelines in section 9.

Offenders are directly affected by every provision of the Act. The definition of "offender" in section 4 encompasses any person convicted of an offence, regardless of whether a conviction is recorded. This means the Act applies to all persons who are found guilty or plead guilty, from those receiving the most serious indefinite sentences to those being released without conviction.

Victims are increasingly recognised within the Act. Section 9(2)(c)(i) requires courts to have regard to any physical, mental or emotional harm done to a victim, including harm mentioned in information given to the court under section 179K. Part 10B provides a framework for victim impact statements, with section 179K permitting a victim to give the prosecutor details of harm caused for the purpose of informing the sentencing court. Section 179M allows victims to request that all or part of a victim impact statement be read aloud before the court, subject to the court's discretion.

Prosecutors, including the director of public prosecutions, Crown prosecutors, and police officers acting as prosecutors in Magistrates Courts, have specific roles under the Act. Section 15(3) defines a "sentencing submission" made by a party as a submission stating the sentence or range of sentences the party considers appropriate. The prosecution may apply for control orders under part 9D, for amendment or revocation of various orders, and must provide presentence custody certificates under section 159A(4A).

Corrective services officers, particularly "authorised corrective services officers" as defined in section 4A, supervise offenders subject to community based orders, fine option orders, and control orders. They prepare reports for courts, give directions to offenders, and may apply for revocation or amendment of orders.

Legal practitioners advising offenders must understand the full range of sentencing options, the mandatory considerations under section 9, and the provisions for cooperation discounts under sections 13A and 13B. The Act also affects community justice groups for Aboriginal and Torres Strait Islander offenders, who may make submissions under section 9(2)(p).

The Act imposes extensive duties on sentencing courts. Section 9(1) limits the purposes for which sentences may be imposed to punishing the offender in a way that is just in all the circumstances, providing conditions to help rehabilitate the offender, deterring the offender or others, recognising harm done to a victim, denouncing the conduct, protecting the Queensland community, or a combination of these purposes.

Section 9(2) requires courts to have regard to a comprehensive list of matters when sentencing. These include the principle that imprisonment should only be imposed as a last resort and that a sentence allowing the offender to stay in the community is preferable, the maximum and any minimum penalty prescribed, the nature and seriousness of the offence including harm done to a victim and the effect on any child under 16 who may have been directly exposed to or witnessed the offence, the extent of the offender's blame, any damage or loss caused, the offender's character, antecedents, age and intellectual capacity, hardship the sentence would have on the offender having regard to characteristics including age, disability, gender identity, parental status, race, religion, sex, sex characteristics and sexuality, and the probable effect on persons for whom the offender is the primary caregiver or in an informal care relationship.

Section 9(2A) disapplies the last resort and community preference principles for offences involving the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person, or that resulted in physical harm to another person. For such offenders, section 9(3) requires the court to have regard primarily to community safety considerations.

Section 9(4) imposes special requirements for sexual offences committed in relation to a child under 16 or child exploitation material offences. The court must have regard to sentencing practices applicable when the sentence is imposed rather than when the offence was committed, the last resort principles do not apply, and the offender must serve an actual term of imprisonment unless there are exceptional circumstances. Section 9(6) sets out the primary considerations for such offenders, including the effect on the child, the age of the child, the nature of the offence, and the need to protect children.

Section 9(9A) provides that voluntary intoxication by alcohol or drugs is not a mitigating factor. Section 9(9B) requires the court to treat a child's defencelessness and vulnerability as an aggravating factor in manslaughter of a child under 12 years. Section 9(10) requires the court to treat each previous conviction as an aggravating factor if it can reasonably be treated as such having regard to its nature, relevance, and the time elapsed.

Section 9(10A) requires the court to treat a domestic violence offence as an aggravating factor unless exceptional circumstances exist. Section 9(10B) requires the court to treat as a mitigating factor the effect of domestic violence on an offender who is a victim of domestic violence. Section 9(10C) requires the court to treat a domestic violence offence committed against a child by an adult as an aggravating factor.

Courts have a duty under section 10 to state in open court reasons for any sentence of imprisonment, including suspended sentences, and to cause the reasons to be recorded. Section 13 requires courts to take a guilty plea into account and may reduce the sentence accordingly, with the court required to state in open court that it took the plea into account. If the court does not reduce the sentence, it must state that fact and its reasons.

Section 12 gives courts a discretion to record or not record a conviction. Section 12(2) requires the court to have regard to all circumstances including the nature of the offence, the offender's character and age, and the impact on the offender's economic or social wellbeing or chances of finding employment.

Section 14 requires courts to give preference to compensation for victims where both compensation and a fine or other payment order are appropriate and the offender cannot pay both.

Section 48 requires courts determining a fine amount to take into account the financial circumstances of the offender and the nature of the burden, as far as practicable. Section 48(4) requires courts to give more importance to restitution or compensation if the offender has not enough means to pay both.

The Act provides for a wide range of sentencing options. Fines are governed by part 4. Section 45 permits a fine in addition to or instead of any other sentence. Section 46 sets maximum fines where an Act creates an offence without providing a sentence: for a Magistrates Court, 165 penalty units for an individual and 835 penalty units for a corporation; for a District Court, 4,175 penalty units for an individual, with no limit for a corporation; and no limit for the Supreme Court.

Section 49 permits a single fine for two or more offences that are founded on the same facts or form part of a series of offences of the same or a similar kind, but the single fine must not exceed the total of the maximum fines for each offence.

Fine option orders under part 4 division 2 allow offenders who are unable to pay a fine to perform community service instead. Section 57(1) requires the court or proper officer to be satisfied the offender is unable to pay or would suffer economic hardship and is a suitable person to perform community service. Section 69 limits the hours to not more than 5 hours for each penalty unit imposed.

Community based orders include probation orders under part 5 division 1, community service orders under division 2, and graffiti removal orders under part 5A. Probation orders under section 92 may be either release under supervision for 6 months to 3 years, or a term of imprisonment of not more than 1 year followed by supervision for the remainder of a period of 9 months to 3 years. Community service orders under section 103 require 40 to 240 hours of unpaid service to be performed within 1 year. Graffiti removal orders under section 110C require not more than 40 hours.

Intensive correction orders under part 6 allow an offender sentenced to 1 year or less imprisonment to serve the sentence in the community. Section 114 requires reporting at least twice weekly, counselling, community service, and possible residence at community residential facilities for up to 7 days at a time.

Suspended imprisonment under part 8 applies to sentences of 5 years or less. Section 144 requires the court to state an operational period during which the offender must not commit another offence punishable by imprisonment. The operational period must be not less than the term imposed and not more than 5 years. Section 147 gives the court power on breach to extend the operational period, further suspend the sentence, or order the offender to serve the whole or part of the suspended imprisonment.

Drug and alcohol treatment orders under part 8A combine a custodial part (imprisonment of 4 years or less, suspended) with a rehabilitation part of up to 2 years including a treatment program. Section 151E requires the offender to have pleaded guilty to an eligible offence, reside within the court district, and have a severe substance use disorder that contributed to the offence.

Indefinite sentences under part 10 may be imposed for qualifying offences where the offender is a serious danger to the community. Section 163 requires the court to state a nominal sentence, being the term that would have been imposed had an indefinite sentence not been imposed. Section 170 requires the court to be satisfied by acceptable, cogent evidence to a high degree of probability.

The offender levy under part 10A imposes a levy on every offender sentenced for an offence, whether or not a conviction is recorded. Section 179C(3) provides that only one levy is payable for all offences sentenced in the same proceeding. The levy is not a sentence and is additional to any sentence imposed.

Enforcement of fines and other monetary penalties may be through the State Penalties Enforcement Registry (SPER). Section 50 permits a court to order that the proper officer give particulars of a fine to SPER for registration. Section 179F requires the proper officer to give particulars of the offender levy to SPER for registration.

Imprisonment for default in payment of a penalty is limited by section 182A to not more than 14 days imprisonment for each penalty unit ordered to be paid. Section 185 provides a scale of imprisonment for non-payment of penalty, with the term not more than 14 days for each penalty unit.

The Act expressly provides for its relationship with other legislation. Section 6 states that the Act does not apply to a child or a Childrens Court except to the extent allowed by the Youth Justice Act 1992. This means that sentencing of juvenile offenders is primarily governed by the Youth Justice Act, but the Penalties and Sentences Act may apply where the Youth Justice Act permits.

Section 7 provides that for the purposes of the Criminal Code chapter 67 (which deals with appeals), a sentence under the Act is taken to be a sentence imposed on conviction whether or not a conviction is recorded. This ensures appeal rights are not affected by the court's decision not to record a conviction.

The Act interacts extensively with the Corrective Services Act 2006. Section 4 defines "parole" as parole under a parole order granted under the Corrective Services Act 2006. Section 4A defines an "authorised corrective services officer" by reference to the Corrective Services Act. Part 9 division 3 on parole uses concepts from the Corrective Services Act, including the definition of "sexual offence" in section 160 which adopts the meaning under the Corrective Services Act 2006. Section 160A(5) provides that a court cannot fix a date under sections 160B to 160D that reduces the minimum period of imprisonment an offender must serve under specified provisions of the Corrective Services Act.

The Act interacts with the Domestic and Family Violence Protection Act 2012. Section 9(10A) requires courts to treat domestic violence offences as aggravating factors. Section 9(10B) requires courts to treat the effect of domestic violence on an offender who is a victim as a mitigating factor. Section 43B(3) provides that a court must not make a non-contact order if an order may be made under the Domestic and Family Violence Protection Act 2012 section 42. Section 12A provides for recording convictions for domestic violence offences in the offender's criminal history.

The Act interacts with the State Penalties Enforcement Act 1999 (SPE Act). Section 5 defines the value of a penalty unit for the SPE Act. Sections 50, 51, and 179F provide for registration of fines and the offender levy with SPER. Section 179F(3) provides that the SPE Act applies to the levy and the offender as it applies to an unpaid fine, with specified exclusions.

The Act interacts with the Drugs Misuse Act 1986. Part 9C (serious drug offences) creates categories of offences defined by reference to the Drugs Misuse Act. Section 151B defines "eligible offence" for drug and alcohol treatment orders by reference to the Drugs Misuse Act, noting that under section 13A of that Act, proceedings for particular indictable offences may be taken summarily if a treatment order is sought.

The Act interacts with the Criminal Code. Section 161A defines serious violent offences by reference to schedule 1, which lists Criminal Code provisions. Part 9D (serious and organised crime) defines prescribed offences by reference to schedule 1C, which includes Criminal Code provisions. Section 180A provides that a provision stating the maximum penalty may be a fine or imprisonment means the court may order a fine, imprisonment, or both.

The Act also interacts with the Transport Operations (Road Use Management) Act 1995. Section 187 provides for disqualification from holding or obtaining a Queensland driver licence. Section 126A provides that a court may not change or revoke a period of disqualification imposed for an offence when dealing with an offender for a community based order contravention.

The Act has been amended frequently, with the purposes section 3 noting amendments in 1997, 2012, and 2016. The most substantial recent additions include part 8A (drug and alcohol treatment orders) inserted in 2017, part 9D (serious and organised crime) inserted in 2016, and part 10B (victim impact statements) inserted in 2017.

Part 8A creates a specialist sentencing option for offenders with severe substance use disorders. Section 151C states the purpose is to facilitate rehabilitation through a judicially supervised, therapeutically oriented integrated treatment regime, to reduce the offender's severe substance use disorder and associated criminal activity, to reduce health risks, and to assist with community integration. This reflects a policy shift towards therapeutic jurisprudence and addressing the underlying causes of offending.

Part 9D was inserted by the Serious and Organised Crime Legislation Amendment Act 2016. It creates a framework for mandatory minimum terms for offenders convicted of prescribed offences with a serious organised crime circumstance of aggravation, imposing a mandatory component of the lesser of 7 years or the maximum penalty. It also creates control orders that can restrict offenders' activities for up to 5 years after release. This responds to concerns about organised crime groups and the limitations of traditional sentencing in disrupting their activities.

Part 10B was inserted by the Victims of Crime Assistance and Other Legislation Amendment Act 2017. It provides a statutory framework for victim impact statements, replacing provisions that were previously in the Victims of Crime Assistance Act 2009. Section 179M allows victims to request that statements be read aloud, reflecting increased recognition of victims' rights in the sentencing process.

The sentencing guidelines in section 9 have been progressively expanded. Recent additions include section 9(2)(fa) requiring courts to consider hardship having regard to characteristics including age, disability, gender identity, parental status, race, religion, sex, sex characteristics and sexuality. Section 9(2)(fb) requires consideration of the effect on primary caregivers and persons in informal care relationships regardless of whether there are exceptional circumstances. Section 9(2)(oa) and (p) require consideration of cultural considerations and submissions from community justice groups for Aboriginal and Torres Strait Islander offenders, including the effect of systemic disadvantage and intergenerational trauma.

The source text does not contain references to specific court challenges. However, the Act contains several provisions that have been or could be subject to judicial consideration.

Section 188 provides a statutory mechanism for courts to reopen sentencing proceedings where a sentence is not in accordance with law, a sentence that should have been imposed was not imposed, a sentence was decided on a clear factual error of substance, or a parole date was not fixed as required. Section 188(2) also allows reopening where an offender who undertook to cooperate with law enforcement agencies fails to cooperate without reasonable excuse. This provision raises questions about the finality of sentencing and the circumstances in which reopening is appropriate.

Section 161E creates a mandatory sentence of life imprisonment for repeat serious child sex offences, which cannot be mitigated or varied under any law. Section 161E(2) provides that an offender convicted of a repeat serious child sex offence is liable to imprisonment for life, which cannot be mitigated or varied under any law, or is liable to an indefinite sentence under part 10. This "two strikes" provision represents a significant departure from ordinary sentencing principles and has been the subject of legal and policy debate.

Part 9D division 2 requires courts to impose a mandatory component of imprisonment for prescribed offences committed with a serious organised crime circumstance of aggravation. Section 161R(3)(c) provides that the mandatory component must not be mitigated or reduced under this Act or another Act or any law. This raises questions about judicial discretion and proportionality in sentencing.

Several provisions in the Act may operate in ways that practitioners might not anticipate.

The definition of "conviction" in section 4 as a finding of guilt or acceptance of a plea of guilty means that the court's discretion under section 12 to not record a conviction only arises after a conviction has been entered. The practical effect under section 12(3) is that where a conviction is not recorded, it is taken not to be a conviction for any purpose, but this does not prevent the court from making other orders under the Act or another Act because of the conviction, and it has the same result for appeals, variation or contravention proceedings, and subsequent offence proceedings.

Section 9(9A) provides that voluntary intoxication by alcohol or drugs is not a mitigating factor. This means that an offender who committed an offence while intoxicated cannot rely on that intoxication as a reason for a lesser sentence. However, this does not prevent the court from considering other factors that may be associated with intoxication, such as the offender's underlying addiction or mental health issues.

Section 9(10) requires the court to treat each previous conviction as an aggravating factor if it can reasonably be treated as such having regard to its nature, relevance, and the time elapsed. This means that the court must actively consider previous convictions as aggravating, not merely note them as part of the offender's history.

Section 48(3A) provides that in considering the financial circumstances of the offender, the court must not take into account the offender levy imposed under section 179C. This means the court cannot reduce a fine because the offender will also have to pay the levy.

Section 159A(2) provides that the requirement to deduct presentence custody from a sentence does not apply to a period of custody of less than 1 day, imprisonment of less than 1 day, imprisonment that has been wholly suspended, or the suspended part of imprisonment partly suspended. This means that short periods of presentence custody may not result in any reduction of sentence.

Section 160A(2) provides that sections 160B to 160D are the only law under which a court may, on sentence of an offender for an offence, make an order relating to a person's release on parole. Section 160A(3) expressly provides that a court cannot make a recommendation for a person's release on parole. This limits the traditional practice of courts making recommendations about parole eligibility.

Section 188(5) provides that the court may reopen a proceeding on its own initiative at any time, but for a reopening under section 188(1)(a), (b) or (c) on application of a party, the application must be made within 28 days after the day the sentence was imposed or any further time the court may allow on application at any time. For a reopening under section 188(1)(d) (failure to fix a parole date), the application may be made by the chief executive (corrective services). For a reopening under section 188(2) (failure to cooperate), the application may be made by the prosecution at any time.

Section 195A provides that an offender is taken not to perform community service in a satisfactory way if the offender reports to perform community service under the influence of intoxicating liquor or a dangerous drug, is under such influence while performing community service, or unlawfully damages property supplied for or related to the community service.

Practitioners advising offenders must ensure that all relevant considerations under section 9 are addressed in submissions to the court. This requires gathering comprehensive information about the offender's circumstances, including character references, evidence of any domestic violence history, details of any caring responsibilities, and information about any cultural considerations for Aboriginal or Torres Strait Islander offenders.

Where a client has pleaded guilty, section 13 requires the court to take the plea into account. Practitioners should ensure the court is aware of the timing of the plea or indication of intention to plead guilty, as section 13(2) permits a reduction having regard to the time at which the offender pleaded guilty or informed the relevant law enforcement agency of the intention to plead guilty.

For clients who have cooperated with law enforcement agencies, sections 13A and 13B provide procedures for reducing sentence. Section 13A applies where the offender has undertaken to cooperate and requires the undertaking to be handed up to the court in an unsealed envelope, with the court to be closed if oral submissions are made. Section 13B applies where the offender has significantly cooperated and requires an affidavit from a person representing the law enforcement agency. Practitioners should ensure these procedures are followed strictly to preserve the cooperation discount.

For clients facing fines, the court must under section 48 consider the financial circumstances of the offender. Practitioners should provide evidence of the client's financial position. If the client cannot pay, a fine option order may be sought under section 53 or 55, allowing community service in lieu of payment.

For clients convicted of offences involving violence, the last resort principles in section 9(2)(a) do not apply, and the court must have regard primarily to community safety under section 9(3). Practitioners should address these factors directly in submissions.

For clients convicted of sexual offences against children under 16 or child exploitation material offences, section 9(4) requires the offender to serve an actual term of imprisonment unless there are exceptional circumstances. Practitioners should be prepared to argue any exceptional circumstances, including the closeness in age between the offender and the child under section 9(5).

For Aboriginal and Torres Strait Islander clients, practitioners should consider whether submissions from a community justice group are available under section 9(2)(p), and address cultural considerations including systemic disadvantage and intergenerational trauma under section 9(2)(oa).

For clients subject to domestic violence orders or with a history of domestic violence, practitioners should be aware that section 9(10A) requires the court to treat a domestic violence offence as an aggravating factor, but section 9(10B) requires the court to treat as a mitigating factor the effect of domestic violence on an offender who is a victim of domestic violence. Evidence of the client's status as a victim of domestic violence should be presented if relevant.

For clients sentenced to imprisonment, section 152A requires the proper officer of the court to give a record of the order committing the offender into custody to the chief executive (corrective services). Section 159A requires the court to declare any presentence custody as imprisonment already served, unless the court otherwise orders. The prosecuting authority must give the court a presentence custody certificate under section 159A(4A). Practitioners should ensure the certificate is accurate and that any time served is properly declared.

For clients subject to community based orders, section 136 requires the court to make the order in the approved form and give copies to the offender, any institution where the offender must reside, and the chief executive (corrective services). Practitioners should ensure the client understands the requirements of the order and the consequences of breach under section 123, which makes it an offence to contravene a requirement of a community based order without reasonable excuse, punishable by 10 penalty units.

For clients subject to suspended sentences, section 146 requires a court that convicts the offender of an offence punishable by imprisonment during the operational period to deal with the offender under section 147. The court must order the offender to serve the whole of the suspended imprisonment unless it would be unjust to do so, having regard to factors including whether the subsequent offence is trivial, the offender's antecedents and criminal history, and any genuine effort at rehabilitation. Practitioners should prepare submissions addressing these factors.

For victims seeking to provide a victim impact statement, section 179K(1) provides that a victim is to be permitted to give the prosecutor details of harm caused. The prosecutor must decide what details are appropriate to give to the sentencing court under section 179K(3). Section 179M allows a request for all or part of the statement to be read aloud, and section 179N allows for special arrangements including the offender being obscured from view and the courtroom being closed to other persons. Practitioners acting for victims should liaise with the prosecutor to ensure the statement is prepared and presented in accordance with the victim's wishes.