ABOUT sentencing

NON-CUSTODIAL SENTENCES

Non-custodial sentences are penalties that don’t include prison. Some of these sentence options can be added together by the Court.

ABSOLUTE RELEASE – Release without a recorded conviction or any further penalty.

GOOD BEHAVIOUR BONDS – A promise of good behaviour for a set period, which may include a surety (agreement to pay an amount of money if you breach) and other conditions.

RESTITUTION OR COMPENSATION ORDER – An order for you to pay for property you’ve taken or damaged, or to compensate someone for an injury.

NON-CONTACT OR BANNING ORDER – A ban on you contacting the victim of the offence or another person, or from going to particular places (such as licenced premises) for a set time.

FINE – An order to pay a fine as punishment for the offence. The amount depends on the type of offence and matters relevant to you.

If you can’t pay the fine (in lump sum or by instalments), you can apply to change it to unpaid community service.

COMMUNITY SERVICE ORDER – An order for you to do unpaid community service and comply with reporting and other conditions.

PROBATION – An order allowing you to remain in the community and report regularly to a probation officer.

DRUG COURT

The Drug Court also has the option to order intensive drug rehabilitation instead of time in prison. To be eligible, you must plead guilty and have no outstanding charges for sexual offences or offences involving physical violence. This order involves a suspended prison sentence of up to 4 years, with accompanying conditions and a rehabilitation program.

When the rehabilitation program ends, the Court must reconsider the initial sentence, discontinue the current order and impose a final sentence. If you have successfully completed the order you will normally avoid actual jail time.

In some areas of concern the government has introduced special laws to target a particular type of crime and this may make bring other factors into relevance in the sentencing process.

VIOLENT OFFENCES

In Queensland, violent offences are subject to stricter sentencing principles than many other types of offences.

The following sentencing philosophies (which apply to most offences) do not apply for violent offences:

• A sentence of imprisonment should only be imposed as a last resort
• A sentence that allows the offender to stay in the community is preferable

When sentencing for violent offences the Court will have primary regard to the following matters:

• The risk of physical harm to any members of the community if a custodial sentence were not imposed on the offender
• The need to protect any members of the community from that risk
• The personal circumstances of any victim of the offence
• The circumstances of the offence, including whether death or injury was caused to a member of the public or any loss or damage resulting from the offence
• The nature or extent of the violence used (or intended to be used) in the commission of the offence
• Any disregard by the offender for the interests of public safety
• The past record of the offender, including any rehabilitation and whether there are previous convictions
• The offender’s antecedents, age, and character
• Any remorse or lack of remorse shown by the offender
• Any medical, psychiatric, or other relevant report
• Anything else about the safety of members of the community that the Court considers relevant

Some particularly serious offences can lead to a “Serious violent offence” declaration. Depending on the level of seriousness of the offence, these orders can either be mandatory or discretionary (i.e. the Court “must” or “may”) make the declaration. If the Court makes such a declaration, it must impose a sentence of imprisonment and the sentence must not allow release from prison before 80% of the term of imprisonment, or 15 years (whichever is lesser), has been served. Rawlings Criminal Law is often able to assist in these precarious situations through either charge negotiation (see above) or argument in sentencing.

DOMESTIC VIOLENCE OFFENCES

Sentencing laws require the Court to treat the fact that the offence is a domestic violence offence as an aggravating factor (making the punishment worse) when deciding the appropriate sentence (unless there are exceptional circumstances not to do so).

It should also be borne in mind that choking offences are indictable only (meaning that they are considered too serious for the Magistrate’s Court and must proceed in the District Court).

SEXUAL OFFENCES

This general category of offences covers a wide range of criminal conduct, including:

• Exposing yourself in public (called performing an indecent act);
• Inappropriate touching of another person without their consent (called sexual assault)
• Having sexual intercourse with another person without their consent (called rape)
• Prohibited pornography (called child exploitation material)
• Photographing or videoing someone’s genitals without their consent (called recording in breach of privacy)
• Child sexual offences (this itself is a broad category)

Sexual offences are treated particularly seriously under Queensland law and they all attract a maximum penalty of imprisonment. Indeed, the most serious of these offences carry a maximum penalty of life imprisonment. Conviction on many such offences means automatic inclusion on a Sexual Offenders Register which requires, among other things, the person to keep police notified of their address, workplace, vehicle, internet connections, tattoos, interaction with children, and travel intentions.

Some sexual offences can lead to a “Serious violent offence” declaration. Depending on the level of seriousness of the offence, these orders can either be mandatory or discretionary (i.e. the Court “must” or “may”) make the declaration. If the Court makes such a declaration, it must impose a sentence of imprisonment and the sentence must not allow release from prison before 80% of the term of imprisonment, or 15 years (whichever is lesser), has been served. Rawlings Criminal Law is often able to assist in these precarious situations through either charge negotiation (see above) or argument in sentencing.

If you have been charged with a sexual offence it is imperative that you obtain expert legal advice as soon as possible.