Sentencing and the purposes of punishment in Queensland: QCE Legal Studies

What this dot point is asking

QCAA wants you to know why offenders are punished, the penalty options available to a Queensland court, and the factors that shape a sentence. Expect a 3-5 mark short response in IA1.

The answer

The purposes of punishment

Sentencing in Queensland pursues five recognised purposes, set out in the Penalties and Sentences Act 1992 (Qld) s 9(1).

• Punishment. The offender is punished to an extent that is just in all the circumstances (retribution).
• Rehabilitation. Helping the offender to reintegrate into the community and not reoffend.
• Deterrence. Discouraging the offender (specific deterrence) and others (general deterrence) from committing similar offences.
• Denunciation. Making clear that the community condemns the conduct.
• Protection of the community. Protecting the community from the offender, where necessary.

These purposes can pull in different directions. A court must balance them in light of the seriousness of the offence and the circumstances of the offender.

The types of penalty

The Penalties and Sentences Act 1992 (Qld) provides a range of penalties, from least to most severe:

• Good behaviour bond / release on recognisance (s 19);
• Fine (Part 4);
• Probation order (Part 5);
• Community service order (Part 5);
• Intensive correction order served in the community (Part 6);
• Suspended sentence of imprisonment (Part 8);
• Imprisonment (Part 9), the most serious penalty.

For murder, the Criminal Code Act 1899 (Qld) s 305 imposes a mandatory penalty of life imprisonment.

Sentencing factors

When deciding a sentence, the court must consider the factors in the Penalties and Sentences Act 1992 (Qld) s 9, including:

• the maximum and any minimum penalty;
• the nature and seriousness of the offence, including any harm to a victim;
• the offender's character, age and intellectual capacity;
• the presence of any aggravating or mitigating factors;
• any time already spent in custody;
• the prevalence of the offence;
• the principle that imprisonment is a sentence of last resort (s 9(2)(a)), although this principle is qualified for certain violent and sexual offences.

Mitigating and aggravating factors

• Mitigating factors reduce the sentence: an early guilty plea (the court must take a guilty plea into account under s 13), genuine remorse, cooperation with authorities, youth, no prior convictions, prospects of rehabilitation.
• Aggravating factors increase the sentence: prior convictions, breach of trust, use of a weapon, vulnerability of the victim, and offences motivated by hatred or prejudice (s 9(10A)).

Youth sentencing

Children are sentenced under the Youth Justice Act 1992 (Qld), which has a stronger emphasis on rehabilitation and diversion. Detention of a child is a measure of last resort and for the shortest appropriate period. Diversionary options include cautions, restorative justice conferencing, and youth justice conferencing.

The Victims of Crime Assistance Act 2009 (Qld)

Victims may provide a victim impact statement to the court describing the harm suffered. The Victims of Crime Assistance Act 2009 (Qld) sets out a charter of victims' rights and a financial assistance scheme.

Examples in context

Example 1. An early guilty plea to assault. A first-time offender pleads guilty to assault occasioning bodily harm at the earliest opportunity. The court must take the guilty plea into account under the Penalties and Sentences Act 1992 (Qld) s 13. Combined with genuine remorse, no prior convictions and good rehabilitation prospects, the court may impose a probation order or a community service order rather than imprisonment, applying the last-resort principle in s 9(2)(a).

Example 2. A mandatory life sentence for murder. A person convicted of murder under the Criminal Code Act 1899 (Qld) s 302 must be sentenced to life imprisonment under s 305. Here the court has no discretion as to the head sentence; the five purposes of punishment, especially denunciation and community protection, are reflected in the mandatory penalty fixed by Parliament.

Try this

Q1. State and briefly explain the five purposes of sentencing under the Penalties and Sentences Act 1992 (Qld). [5 marks]

• Cue. Punishment (retribution), rehabilitation, deterrence (specific and general), denunciation, and protection of the community (s 9(1)).

Q2. List three penalty types available to a Queensland court, from least to most severe. [3 marks]

• Cue. For example: fine; probation or community service order; imprisonment (imprisonment being a last resort under s 9(2)(a)).

Q3. Explain how mitigating and aggravating factors affect a sentence, giving one example of each. [4 marks]

• Cue. Mitigating factors reduce the sentence (early guilty plea, remorse, no priors). Aggravating factors increase it (prior convictions, use of a weapon, vulnerability of the victim).