Sentencing in criminal law, as is well known, is a matter for the discretion of the sentencing Judge. A discretion in the law means that rather than ‘hard and fast’ (inflexible) rules determining the outcome, the judge is to exercise their own judgment in each case after considering all relevant factors. As the majority of the High Court of Australia observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32:
In Queensland, criminal sentencing of adult offenders must be in accordance with the Penalties and Sentences Act 1992 (Qld).
1. The purposes of Sentencing
Section 9(1) of the Penalties and Sentences Act 1992 provides that:
(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).
2. Guilty plea must be taken into account
A plea of guilty is a mitigating factor because it saves the state the expense of a trial and witnesses such as victims from having to turn up to Court and give evidence about events that are often traumatic for them. Furthermore, such a plea, if given at an early stage, can be indicative of remorse, which is another mitigating factor.
Section 13 of the Penalties and Sentences Act 1992 provides that:
(1) In imposing a sentence on an offender who has pleaded guilty to an offence, a court—
(a) must take the guilty plea into account; and
(b) may reduce the sentence that it would have imposed had the offender not pleaded guilty.
(2) A reduction under subsection (1) (b) may be made having regard to the time at which the offender—
(a) pleaded guilty; or
(b) informed the relevant law enforcement agency of his or her intention to plead guilty.
(3) When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.
3. Imprisonment as a last resort
Section 9(2) of the Penalties and Sentences Act 1992 provides that:
In sentencing an offender, a court must have regard to—
(a) principles that—
(i) a sentence of imprisonment should only be imposed as a last resort; and
(ii) a sentence that allows the offender to stay in the community is preferable.
However, these principles do not apply to the sentencing of an offender for any offence:
(a) that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or
(b) that resulted in physical harm to another person.
Furthermore, these principles also do not apply to any offence of a sexual nature committed in relation to a child under 16 years. For those offences, the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.
4. Types of Sentences of imprisonment
The Penalties and Sentences Act provides for the following types of imprisonment:
→ suspended sentences
→ intensive correction orders
→ sentences served on parole
→ actual terms of imprisonment.
An actual term of imprisonment means a term of imprisonment served wholly or partly in a corrective services facility. Only an actual term of imprisonment requires that jail time must be served. Even so, offenders will normally be released on parole prior to the expiry of their sentence.
Section 144 of the Penalties and Sentences Act 1992 provides that if a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended. Section 145 says that “An offender for whom an order under section 144 is made has to serve the suspended imprisonment only if the offender is ordered to do so under section 147”.
Section 112 of the Penalties and Sentences Act 1992 provides that:
“If a court sentences an offender to a term of imprisonment of 1 year or less, the court may make an intensive correction order for the offender.”
Section 113 of the Penalties and Sentences Act 1992 provides that the effect of such an order “is that the offender is to serve the sentence of imprisonment by way of intensive correction in the community and not in a prison”.
5. Imprisonment terms are concurrent unless otherwise ordered
Section 155 of the Penalties and Sentences Act 1992 provides that:
Unless otherwise provided by this Act, or the court imposing imprisonment otherwise orders, if—
(a) an offender is serving, or has been sentenced to serve, imprisonment for an offence; and
(b) is sentenced to serve imprisonment for another offence; the imprisonment for the other offence is to be served concurrently with the first offence.
6. Time held in presentence custody to be deducted
Time spent on remand is normally counted as part of the sentence of imprisonment.
Section 159A of the Penalties and Sentences Act 1992 provides that:
(1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.
7. Parole release v parole eligibility
Section 160 of the Penalties and Sentences Act 1992 defines the following terms:
“parole eligibility date” , for an offender, means the date fixed under section 160B (2) , (4) or (7) , 160C (2) , (3) or (5) , 160D (2) or (3) or 213 as the date the offender is eligible for parole.
“parole release date” , for an offender, means the date fixed under section 160B (3) as the date the offender is to be released on parole.
The difference between the two is that a parole release date means that the offender will be released on parole on a particular date, unless they are held in custody in respect of other charges, whilst a parole eligibility date means that the offender can only be released on parole if granted parole by the parole board.
Which one an offender receives depends on the discretion of the sentencing Judge, subject to the following provisions.
Section 160D of the Penalties and Sentences Act 1992 provides that for a serious violent offence or sexual offence:
“If the offender had a current parole eligibility date or current parole release date, the court must fix the date the offender is eligible for parole.”
Section 160B of the Penalties and Sentences Act 1992 applies to sentences of 3 years or less and that are not for a serious violent offence or sexual offence. It provides that:
“If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006 , section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.”
However, if section 160C or 160D apply, the court must instead fix a date for the offender to be released on parole.
Section 160G of the Penalties and Sentences Act 1992 provides that if the court must fix a parole release date, the court may fix any day of the offender’s sentence as the offender’s parole release date. This provision makes it clear that the Court may release an offender on parole on the day of sentence, thereby avoiding the requirement for them to serve any actual time under the sentence.
8. Whether or not a conviction is recorded
Section 12 of the Penalties and Sentences Act 1992 grants the sentencing Court a discretion to record or not record a conviction.
Subsection 12(2) of the Penalties and Sentences Act 1992 provides that:
“In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—
(a) the nature of the offence; and
(b) the offender’s character and age; and
(c) the impact that recording a conviction will have on the offender’s—
(i) economic or social wellbeing; or
(ii) chances of finding employment.”
Under Section 16 of the Penalties and Sentences Act 1992, when making an order releasing the offender absolutely; or that the offender be released if the offender enters into a recognisance, the Court must not record a conviction.
However, for sentences of imprisonment, the Court must record convictions: see Sections 111, 143 and 152 of the Penalties and Sentences Act 1992. So in such cases, the discretion of whether to record a conviction does not arise.
9. Totality
When a defendant is being sentenced for multiple offences, the overall sentence must be moderated, rather than each sentence being added together.
In the High Court case of Mill v R [1988] HCA 70; (1988) 166 CLR 59 at p 62-63, in a joint judgment, the court wrote:
“8. The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):
‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong(‘); ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
As the Court of Appeal observed in R v Schmidt [2011] QCA 133, “That principle has been an element of sentencing practice in Australia for a number of years”.
10. De Simoni
In the High Court case of R v De Simoni (1981) 147 CLR 383, the defendant had broken into what he believed was an empty house and was surprised in the dark by the occupant. He believed the occupant was a young man and he was in danger. He defended himself and only afterward did he find out the occupant was an elderly lady. He then showed immediate remorse by helping the elderly lady into a chair, apologising to her and brought her a glass of water and a telephone so she could call someone to assist her before he fled the scene.
De Simoni was subsequently charged and pleaded guilty to Robbery. However, the Fact Sheet alleged that he had ‘wounded’ the victim which amounted to a more serious offence of Robbery in Circumstances of Aggravation. The sentencing judge took the wounding into account and effectively sentenced De Simoni for the more serious offence even though he had not been charged with it.
The High Court held that the sentencing judge had erred and should not have accepted Agreed Facts that amounted to a more serious offence than what had been charged. An offender can only be sentenced for the offence of which he is convicted.
There are numerous examples of where an offender cannot be sentenced on the basis of facts that would amount to a more serious offence:
→ an offender being sentenced for manslaughter on the basis that they intended to commit grievous bodily harm
→ an offender being sentenced for possession of tainted thing on the basis that they stole the thing
→ an offender being sentenced for unlawful use of a motor vehicle on the basis that they stole they vehicle.
In which case, such a basis would amount to a more serious offence, and therefore should not be taken into account for sentence.
While criminal law sentencing is a discretion, there are a number of principles in Qld which apply and must be correctly followed by the sentencing judge. Many of those principles are imposed by the Penalties and Sentences Act 1992, but some are the product of case law. Such principles are aimed at ensuring fairness to a convicted defendant, as well as ensuring some degree of consistency in how Courts sentence offenders.
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