SENTENCING CONSIDERATIONS

It is an important sentencing principle that parity exist in sentences imposed for like offences.  In a diverse state such a Queensland, with three levels of Courts; Magistrates, District and Supreme, there needs to be an overriding set of guidelines to ensure that sentences imposed upon offenders are consistent.  The Penalties and Sentences Act sets out the parameters within which the courts must operate.

The legislation does this by setting out the purpose of imposing sentences and then establishes the principles that the Court is to apply in achieving those purposes.

The purpose of imposing a sentence can be classified as one or more of the following:

  1. To punish the offender to an extent or in a way that is just in all the circumstances;
  2. To provide conditions will help the offender to be rehabilitated;
  3. Deterrence, both personal and general;
  4. Denunciation of the offending conduct;
  5. Protection of the Queensland community from the offender;

In most non-violent offences the starting point in sentencing is that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.

The Court must also have regard to the maximum and any minimum penalty prescribed for the offence and how serious the offence was, including any physical, mental or emotional harm done to a victim.  Particular regard is to be had to the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence.  The court should also have regard to the prevalence of the offence.

Consideration is also had to the extent to which the offender is to blame for the offence and the presence of any aggravating or mitigating factors such as any damage, injury or loss caused by the offender.

Matters particular to the accused are also relevant such as the offender’s:

  1. character,
  2. age;
  3. intellectual capacity;
  4. assistance given to law enforcement agencies in the investigation of the offence or other offences.
  5. time spent in custody awaiting sentence;
  6. sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing;
  7. compliance with previous community based orders
  8. attendance at a rehabilitation, treatment or other intervention program or course while on bail.

Each of these principles is to be taken into account in determining the appropriate sentence.  What often becomes difficult for the sentencing court is to balancing the various competing interests.  An experienced criminal lawyer is able to highlight the positive features, and mitigate the sentence imposed.

OFFENDER LEVY

Defendants found guilty of offences in the Supreme, District and Magistrates Courts will pay an offender levy with recent amendments to the Penalties and Sentences Act 1992 (“the Act”).

The levy will apply as follows:

  • Supreme Court       $300.00
  • District Court          $300.00
  • Magistrates Court    $100.00

This levy will apply to all adult offenders; there are no exceptions regardless of the nature of the offence or the offender’s personal circumstances.

The offender levy is automatically imposed at the conclusion of sentencing as an administrative levy and is in addition to any other sentence imposed.

The levy must not form part of the sentence with the court prohibited under section 48 of the Act from taking the levy into account when considering the financial circumstances of an offender. Section 9 of the Act also precludes the court from considering the levy when imposing its sentence

The levy is payable per sentencing event regardless of the number of convictions or whether or not a conviction is recorded.

Defendants will need to be vigilant to ensure that summary matters associated with more serious offences are resolved at the same time. The practice of clearing up minor offences following sentence in a superior court would not seem to meet the definition of a sentencing proceeding and would attract a second offender levy.

No further levy is payable by the offender where the Court is called upon to resentence by:

  1. Substituting another sentence;
  2. Further deal with the offender including the making of a further order; or
  3. Confirming, varying or amending the sentence or order made on the original sentence.

If upon appeal all convictions that resulted in the imposition of the offender levy are quashed the proper officer must refund to the offender any amount paid to the proper officer for the offender levy.

The act is retrospective; that is the relevant date is conviction and not the offence date.  Therefore those convicted of an offence after 21 August 2012 will be required to pay the offender levy in addition to any other sentence imposed.

The Court is required to pass on the offender’s details to the State Penalties Enforcement Register (SPER). The proper officer of SPER is then required to collect the levy in the usual course of its business.  Caution will need to be exercised, as the recording of incorrect particulars with SPER will result in a default.  SPER has far reaching powers including the ability to suspend a persons Queensland Drivers Licence.

The Penalties and Sentences and Other Legislation Amendment Bill 2012 also included an increase to the value of the penalty unit from $100 to $110.

The penalty unit is the basic monetary value for most fines and penalty infringement notices issued by courts, police and other Queensland agencies.

TWO STRIKE LAW FOR SEX OFFENDERS

The Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012 amends the Penalties And Sentences Act 1992 to insert a new major Tory sentencing regime of life imprisonment for certain repeat child sex offenders and further amends the Corrective Services Act 2006 to prescribe a minimum non-parole period of 20 years imprisonment for an offender sentenced to mandatory life imprisonment under the new sentencing regime.

The new regime applies where:

  1. An adult offender is convicted of a relevant serious child sex offence (as defined in the Bill):
  2. Such offences committed after the commencement of the bill:
  3. The offender has a prior conviction as an adult for a relevant serious child sex offence stop paragraph the second offence is committed after the conviction of the first offence.

The court in sentencing the offender on that second occasion, must impose life imprisonment which cannot be mitigated or varied.

In our view the fettering of judicial discretion is unfair, unworkable and contrary to our international treaty obligations. Nonetheless the bill has now passed and mandatory periods of imprisonment apply or possession of weapons as categorised above.