Sentencing procedure has been significantly amended with the introduction of the Youth Justice and Other Legislation Amendment Bill 2014. The act amends section 9 (Sentencing guidelines) by omitting and excluding the sentencing principle that prison is a sentence of last resort. That is imprisonment is not a sentence of last resort, and is now a starting point in the sentencing process.
This means that in sentencing any offender for any offence punishable by imprisonment, the court must not have regard to any principle, whether under statute or at law, that a sentence of imprisonment should only be imposed as a last resort. Any other Act, law or principle is overridden by this provision.
This amendment impacts on the rights and liberties of individuals, as it represents a fundamental shift to the current purposes of sentencing in Queensland.
While the extent of the impact that this will have cannot be measured in advance, the removal of the sentencing principle will more than likely result in greater rates of actual imprisonment. This will become apparent, as the starting point of sentencing that allows the offender to stay in the community, is no longer preferable.
Furthermore, the omission of this principle applies in the sentencing of any person convicted after commencement, including where the offence was committed or the proceeding started before commencement.
The Youth Justices Act 1992 sees an amendment in the same respect. The Bill abolishes section 208 which required a court to be satisfied that no other sentence was appropriate in the circumstance before making a detention order for an offender under 17 years old. The Bill also inserts a provision overriding any contrary Act or law, which will prevent any conflicting principles.
In introducing the Bill to Parliament, the Attorney General said the amendments are: “critical to respond to the escalating seriousness and devastation currently being caused by young criminals.” These concerns are conflicting with reported evidence from the Queensland Law Society.
The justification for removing these sentencing principles is on the basis that they otherwise prevent the courts in making sentencing orders which appropriately reflect the severity of offending and fail to hold offenders properly accountable for their behavior. The new reform is aimed at reflecting the community’s view of serious offending. The removal is intended to empower courts to use sentencing more effectively for the purposes of punishing, denouncing and deterring offending, and protecting the community. It is intended to better promote the community’s safety and protection from criminal behavior.
In determining appropriate sentences, the courts will still be required to have regard to a range of prescribed mitigating and aggravating factors such as: the wellbeing and rehabilitation of the offender; the seriousness of their offending; the offender’s accountability for their actions; and the interests of victims. How these factors are balanced will continue to be a matter for the courts on a case-by-case basis.
These reforms however, have been labeled as “misguided” and “counter-productive”. Many fear that they are unlikely to have effect on the problems they are intended to resolve and that they are just a “trend to an ever-increasing level of mandatory consequence”.