Welcome Return Of Drug Court To Queensland Courts

Law BooksIn acknowledging the link between addiction and the commission of criminal offences, the Queensland government has reinstated the Drug Court in Queensland.  This court recognises that rehabilitation is often the best way of achieving the objective of keeping the community safe from recidivist offenders, who might otherwise be unable to give up their drug and/or alcohol addiction.

On 24 October, the Queensland parliament passed the Penalties and Sentences (Drug and Alcohol Treatment Orders) and Other Legislation Amendment Bill 2017.  This bill is not only re-established the previous regime but expands it to include alcohol as a relevant drug.

In her August 10 Media Release, the Attorney General said that the bill introduces  “a new sentencing option that allows a court to place a Drug and Alcohol Treatment Order on those whose offending is directly linked to their severe drug or alcohol use, which will help put them back on the right path in life, away from re-offending in the long term.”

The primary policy objective of the legislation is to insert a new sentencing option into the Penalties and Sentences Act 1992 to respond to those offenders whose offending is linked to their severe drug or alcohol use.

The legislation follows 2016, Drug and Specialist Courts Review.  The drug court is aimed at addressing severe substance abuse.  The Review’s Final Report was tabled in the Queensland Legislative Assembly on 13 June 2017 and included 39 key recommendations.

 

Mrs D’Ath in her 24 October media release said the new Drug and Alcohol Court pilot in Brisbane should be operational in November.

Creation of a Drug and Alcohol Treatment Order

The Bill will insert a new part 8A into the Penalties and Sentences Act to provide for the establishment, imposition and management of a new sentencing order in Queensland called a Drug and Alcohol Treatment Order (treatment order).

New part 8A of the Penalties and Sentences Act will provide for the making of a treatment order.  The order is designed to facilitate the rehabilitation of offenders by providing judicial supervision combined with therapeutic treatment, to reduce the offender’s substance use.  The previous drug court demonstrated that this regime reduced the level of criminal activity associated with addiction.

Eligibility for a drug court treatment order

A treatment order may only be made for an offender if the offender has a severe substance use disorder and the disorder has contributed to the commission of an offence.

Severe substance use disorder

“Severe substance use disorder” is defined as a disorder prescribed by Regulation, or if not prescribed, as a substance use disorder estimated to be severe under the Diagnostic and Statistical Manual of Mental Disorders 5th Edition, as published by the American Psychiatric Association in 2013.

This ensures that the legislation will be able to adapt to any developments in the science surrounding the recognition and classification of disorders associated with the use of drugs or alcohol.

Types of offences

An offender may proceed through the drug court in respect of either:

  1. a summary offence; or
  2. an indictable offence, that is dealt with summarily.

Included offences

Offences involving violence may be subject to a drug court treatment order, however, as the person will be released back into the community as part of the sentence, the court must not make a treatment order if it is satisfied that the offender would pose an unacceptable risk to the safety and welfare of community members.

Excluded offences

  1. sexual assault offences,
  2. offenders who are subject to a parole order; or
  3. offenders who are serving a term of imprisonment

Balance of treatment order

A drug court treatment order comprises of two parts:

Custodial part – A term of imprisonment of up to four years which is suspended for a designated period of up to five years;

Rehabilitation part  – A period of at least two years that requires compliance with core conditions including:

  1. not commit another offence,
  2. appear before the court as and when directed;
  3. report any change in residence;
  4. report any change in employment;
  5. report to a review team member or an authorised corrective services officer as required; and
  6. to comply with every reasonable direction given by the court, a review team member, or an authorised corrective services officer.

Consequence of non-compliance with treatment order

The court must have regard to a number of considerations, including:

  1. the extent of the offender’s general compliance,
  2. the nature and seriousness of the non-compliance; and
  3. any other consideration that would make the particular order unjust in the circumstances.

Where the court is satisfied that the offender has demonstrated non-compliance with the rehabilitation part of the treatment order the court may:

  1. impose further conditions to achieve the purpose of the treatment order;
  2. require the offender to perform community service; order the person serve a period of the suspended sentence of up to seven days; or
  3. revoke the rehabilitation part of the treatment order and order that the offender serve all or part of the suspended sentence.

Recognition of compliance with a treatment order

The court may cancel either the whole or part of a rehabilitation part of the treatment order if it considers that the offender has complied or substantially complied with the treatment program and that continuation of the rehabilitation part is not necessary to achieve the purpose of the treatment order.

The court may amend the rehabilitation part by amending the conditions of the treatment order, including amending the type or frequency of alcohol or drug testing.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

 

Proposed penalties for driving offences leading to death or serious injury

The Queensland government is currently considering introducing a new mid-range driving offence between the existing Criminal Code offence of Dangerous Driving, and the TORUM offence of Driving without Due Care and Attention offence.  The proposed offence will include a circumstance of aggravation for offending drivers who cause death or grievous bodily harm in the commission of the offence of Driving without Due Care and Attention, where they were driving whilst unlicensed or their license was suspended, or disqualified.  The proposal follows the Coroners recommendations in the matter of Audrey Anne Dow.

Inquest into the death of Audrey Anne Dow

Audrey Anne Dow passed away at Mackay Base Hospital on 31 July 2013, from injuries sustained in a motor vehicle accident. The collision occurred when Aaron John Kite crossed over the continuous double centre line and collided head-on with Ms Dow’s vehicle. Mr Kite was disqualified from driving at the time of the collision.  Mr Kite was fined $4000 for the offence of driving without due care and attention.  He was again disqualified from holding or obtaining a drivers license.

The Coroner David O’Connell examined whether the available offences applicable to the circumstances of the incident should be reviewed.  He delivered his findings of inquest on 6 March 2015.

In particular the Coroner O’Connell determined that:

Clearly the law in Queensland needs to change to allow for a mid-range offence. In addition it may be appropriate that the present driving laws be amended to have a specific circumstance of aggravation for driving without due care and attention where the offending driver causes grievous bodily harm or death; and where they were driving while either unlicensed, suspended, or disqualified.

Careless Driving

The offence of careless driving of motor vehicles, is less serious than the criminal offence of Dangerous Operation of a motor vehicle. In order to make out the offence, the prosecution must prove that a person drove without due care and attention or without reasonable consideration for other road users.

It is suggested that effect could be given to the coroner’s recommendation by amending section 83 of the TORUM to create a circumstance of aggravation (punishable by a higher maximum penalty) where the careless driving caused the death of or the grievous bodily harm to another person.

A further aggravated penalty could apply where the driving caused the death of or the grievous bodily harm to another person and at the time of the driving, the offender had been disqualified from driving or was unlicensed to hold a driver license.

Proposed mandatory minimum licence disqualification

The changes include proposed mandatory minimum licence disqualification periods and an increase to the maximum penalty for offences causing death or grievous bodily harm.

Careless Driving causing death or GBH

  • Current max penalty – $5,046 or 6 months imprisonment (3 demerit points).
    • No minimum licence disqualification period.
  • Proposed max penalty – $10,092 or 12 months imprisonment (3 demerit points) and
    • Minimum licence disqualification period of at least 6 months.
  • Proposed max penalty (with circumstances of aggravation) – $20, 184 or 2 years imprisonment and
    • minimum licence disqualification of at least 6 months.

Dangerous Driving causing death or GBH

  • Current max penalty – 10 years imprisonment; and
    • minimum licence disqualification period 6 months
  • Proposed max penalty -10 years imprisonment; and
    • minimum licence disqualification period of at least 12 months
  • Current max penalty (with circumstances of aggravation) – 14 years imprisonment; and
    • minimum licence disqualification period 6 months
  • Proposed max penalty (with circumstances of aggravation) -14 years imprisonment; and
    • minimum licence disqualification period of at least 12 months.

Are you facing charges relating to dangerous driving or careless driving? Contact the traffic law experts at Gatenby Criminal Law today on  (07) 5580 0120 or contact us online.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Industrial Manslaughter Offence Introduced to Queensland

Drink Driving OffenceOn 12 October 2017, the Minister for Employment and Industrial Relations, Grace Grace, announced the introduction of “Tough new industrial manslaughter laws” in Queensland.  With maximum penalties of 20 years imprisonment for an individual, and a maximum fine of $10 million for a corporate offender, the new Industrial Manslaughter laws are significant.

The new Industrial Manslaughter laws were prompted by the 2016, workplace fatalities at Dreamworld, where four people lost their lives on the Thunder River Rapids Ride; and at Eagle Farm, where two workers were crushed when a precast concrete slab toppled over.  These incidents prompted the Government to engage Tim Lyons to review the Workplace Health and Safety Laws.  His report, “Best Practice Review of Workplace Health and Safety Queensland” was completed on 3 July 2017.

The Work Health and Safety and Other Legislation Amendment Bill 2017, creates two new offences: a senior officer offence and a corporate offence, where conduct negligently causes the death of a worker. The existing standard for criminal negligence is proposed to be applied, with a maximum penalty for an individual of 20 years imprisonment and a maximum fine of 100,000 penalty units, or $10 million for a body corporate.

The Bill introduces a new part 2A titled “Industrial Manslaughter” into the Work Health and Safety Act 2011.  The legislation defines in section 34A two classes of people:

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

senior officer, of a person conducting a business or undertaking, means—

(a)if the person is a corporation—an executive officer of the corporation; or

(b)otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions.

Offence

(1) A person conducting a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

Maximum penalty—

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

Conduct

A persons conduct causes death if the conduct substantially contributes to the death.  Further the Act provides that conduct includes not only a positive act but an omission to do an act.  It is imperative that employers are aware of their obligations to ensure that workplace undertakings are not conducted negligently.

Negligence

While the existing standard of proof in Queensland for criminal negligence will be applied industrial manslaughter offences, the new charge is for behaviour and attitudes that exceed that of recklessness under category 1 offences.

The guidelines for industrial manslaughter prosecutions are identical to those for manslaughter under the Criminal Code.

Defences

It is a defence to the charge to demonstrate that the accused is a volunteer.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

State Penalties Enforcement Amendment Bill 2017

GCL Dollar1

Criminal Lawyer, Sam Rigby explains the introduction of the State Penalties Enforcement Amendment Bill 2017 into the Queensland Parliament

The SPER registry oversees and manages debts, amounting to $1.17 billion. The management of such debts has been scrutinised over the past few years in dealing with the structure of debts, dealing with people who are suffering financial hardship or disadvantage and when an infringement should be referred to SPER.

Like many of our clients who appear before the court, their penalties are often referred to SPER. These fines can range in expense and if Sentenced more than once, the amount of debt can add up quickly. The bill introduces other non-monetary methods to pay these debts.

People who are eligible, falling into certain categories such as those who suffer domestic violence, homelessness, substance abuse or financial hardship have a variety of other options now. These options include and are not limited to unpaid community work, drugs and alcohol treatment and other forms of counselling.

The current system, for example, imposes fees for each debt referred to SPER and additional late fees making payment of their fine/s more difficult. The bill will introduce other systems which provide incentives for early payment, fees will now be applied to your SPER debt as a whole and it has included a better debt management process. The system, as it stands, is reliant on people having no more than two outstanding debts at a time. If you go beyond this, it becomes an uphill battle resulting in greater financial hardship. The bill introduces a system where SPER will review your debt as a whole rather than individually.

Day to day we are instructed by clients, who appear before the court in relation to driving offences, that they did not receive a letter from SPER informing of an outstanding account or issuing an infringement. People who rent or move residential addresses frequently face this problem more than most. The court abides by the ‘postal acceptance rule’ whereby if SPER have sent a letter to your most recent residential address it is accepted that the person has received the same. The new amendment provides for better ways to contact each individual. Now SPER correspondence can be sent to a residential address, postal boxes and email addresses. Not only will this allow infringements to be paid more efficiently it will also reduce disputes about whether or not the correspondence has been received. 

Although the bill introduces some more lenient features, as stated above, it has become more strict to those repeat offenders who do not pay the SPER debt. An example of added enforcement, vehicles can now be immobilised for a period of 14 days rather than the previous 5 days, garnishee orders can now be issued to those debtors who hold accounts with financial institutions, this includes the enhancement of current wage garnishee orders as well.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Reforms to Youth Justice Laws Brings Qld in Line With UN Convention

Youth Justice Reforms

Teenager under arrestQueensland’s 17 year old offenders are the only youths in the Country being sentenced outside the youth justice system.

By treating 17 year olds as adults in the criminal justice system, Queensland has been inconsistent not only with the rest of the country, but also in breach the United Nations Convention on the Rights of the Child.

Under proposed youth justice reforms, 17 year olds are to be considered children.  It is anticipated that all children under the age of 18 year will proceed through the Youth Justice System.  The proposed reforms are hoped to reduce the rate of recidivism by diverting the youths from the Adult system and providing assistance.

Benefits

It is well recognised amongst stakeholders that the youth justice system provides:

  1. Greater capacity for offenders to be diverted away from the Court system;
  2. Access to age appropriate education, training and programs;
  3. Age appropriate support and supervision in custody;
  4. Reduced access to the influence of adult offenders; and
  5. The benefit of sentencing principles with prioritise support and rehabilitation in the community.

Children who do not have their basic health and welfare needs being met are at a greater risk of re-offending.  Youth require greater levels of education, training and engagement in employment if they are to avoid the statistics of returning to custody. The youth justice system is better suited to meeting these needs.

Amendment to Youth Justice Act

On 15 September 2016, the Attorney General, Ms D’Ath introduced the Youth Justice and Other Legislation (inclusion of 17 year old Persons) Amendment Bill 2016.  The purpose of the Bill is to recognise that 17 year olds are youths and not adults.  Importantly 17 year olds are to be included in the upper age of a ‘child’ for the purposes of the Youth Justice Act.  The definition of a ‘child’ will now include a person under the age of 18 years.

Commencement

The Bill will commence by proclamation 12 months after passage.  The delay is to account for the need to ensure that necessary planning is undertaken to facilitate a safe and proper transition.

Application

It is envisaged that there will be broadly three categories of youth that the amendment will apply to:

  1. 17 year old charged after proclamation;
  2. 17 year olds subject to current proceedings; and
  3. 17 year olds currently serving a custodial sentence.

17 year olds yet to be charged

This group will be treated as a child for the purpose of the Act.  The traditional application of part 6, division 11 of the Act will continue to govern the principles where a juvenile offender turns 18 prior to the commencement of proceedings.

17 year olds subject to current proceedings

The Bill proposes that the Court will have a discretion as to how to deal with those who are turning 18 close the finalisation of their sentence. The new subsection 390(3) will provide a broad power for a court to make an order or give a direction of ensure that any unanticipated scenarios can be dealt with appropriately.

17 year olds service a sentence

The Bill does not interfere with Sentence Orders made prior to commencement.  It will however, provide for the administration of those orders as 17 year olds in the Youth Justice System rather than the adult system.

If a 17 year old was sentenced to an adult probation order, that order would continue. The supervision of the Order would however be administered as though it were a Youth Justice Probation Order.

Similarly, a 17 year old, sentenced to imprisonment would serve that term of imprisonment in a youth detention centre.  The detention would be subject to the relevant provisions of the Youth Justice Act.  The youth would be released on a Supervised Release Order in place of Parole and/or would transition to an adult corrective services facility on reaching a certain age.

Further Reading

Click here to read more about the Inclusion of 17- year-old Persons Amendment Bill 2016

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Domestic & Family Violence Protection Bill 2016

DV LAW SET TO BE STRENGTHENED AND PENALTIES INCREASED.

Domestic Violence Law

Domestic Violence LawOn 16 August 2016, the Minister for Child Safety and Minister for the Protection of Domestic and Family Violence introduced the Domestic and Family Violence and other Legislation Amendment Bill.  When introducing the new Domestic Violence Law the minister noted that during 2016, there had been 9 coronial investigations into the deaths that had occurred in domestic or family relationships in Queensland.

It was said that the purpose of the amendment was to:

  1. Better protect and support victims of Domestic and Family Violence;
  2. Hold perpetrators of Domestic and Family Violence accountable; and
  3. Provide police and the Courts with improved tools to save lives and protect victims.

National Scheme

The Bill enables Queensland to participate in the National Domestic Violence Order Scheme. This scheme has been agreed to by COAG.  One of the Key findings from the Coronial Inquest into Luke Batty’s death was the failure by counsellors, police, courts, medical practitioners and others to share information.  This Bill seeks to enable the sharing of information between key Government and non-government entities.

Currently the Act provides that DVO made anywhere in Australia or New Zealand are recognised and enforceable in Queensland. Such recognition is provided that the Aggrieved manually registers their order with a Magistrate Court in Queensland. This requirement will be done away with.  The proposal is that all jurisdictions will:

  1. Enjoy automatic recognition of interstate orders;
  2. Treat the contravention of and interstate DVO as if it were a Queensland DVO;
  3. Recognise and interstate disqualification such as cancellation of a weapons licence;
  4. Allow for the exchange of information.

Section 169J of the new domestic violence law will override the existing principles and rights under the Criminal Law (Rehabilitation of Offenders) Act 1986. It shall enable information to be shared, notwithstanding the conviction having been spent.

Grounds for Protection Orders

Domestic Violence is defined in Section 8 of the Domestic and Family Violence Protection Act. It includes the phrase ‘has committed domestic violence‘.  It is believed that this has created a misapprehension that an act of physical violence must occur before a protection order can be obtained.  The new domestic violence law clarifies that a Court may issue a DV order on the basis that the victim has been threatened or has a fear that the Respondent will commit an act of domestic violence.

Police Protection Notices

The 2012 amendments to the Act introduced Police Protection Notices.  Currently the legislation permits only the alleged victim of Domestic and Family violence to be protected. The Bill expands police powers to include the victim’s children, relatives and other associated people on the Notice.

The new domestic violence law widens the operation of the notice. It expands the conditions which may be included.  Presently, police may only include two (2) conditions. They may do so only if, they are at the same location as the Respondent. The current domestic violence law permits conditions:

  1. that the Respondent not commit acts of Domestic Violence; and
  2. a 24 hour cool down condition.

Police will be able to include extra conditions.  Included is the power to:

  1. remove alleged offenders from the family home until a Court Hearing.
  2. prohibit the respondent from having contact with the victim;
  3. prohibit the respondent from having contact with their children.

Police Protection Orders are enforceable in the same way as Domestic Violence Orders.  Respondents will commit an offence if they breach a condition that the Police Officer has told them about.  The breach will occur, even if they have not been served with a copy of the Order.

The maximum penalty for breaching a Police Protection Order or Release Condition is to be increased to three years imprisonment or 120 penalty units.

Duration of Court Protection Orders.

Currently, under section 97 of the Domestic and Family Violence Protection Act, Protection Orders are made for a period of two years. The Bill expands the operational period by setting an expectation that orders will be for a minimum of five  years from the date the PO is made. A Court may only make a PO for a period of less than five (5) years if it is satisfied that there are reasons for doing so.

If the Court does not specify a time frame the PO is held to be in operation for a period of five (5) years from the date the PO is made.

Courts will continue to have to consider what conditions are necessary and desirable to protect the Applicant.

The new domestic violence law will make Queensland objectively the toughest, compared to other jurisdictions, which have the following periods:

  • South Australia – Indefinite Order or until discharged, must wait twelve (12) months before application;
  • New Zealand – Indefinite Order or until discharged;
  • ACT – Two (2) years unless exceptional circumstances require longer period;
  • NSW – Court to determine, or one (1) year if no determination;
  • Western Australia – Court to determine or two (2) years if no determination;
  • Victoria – Court to determine, nil default period;
  • Tasmania – Court to determine, nil default period;
  • Northern Territory – Court to determine, nil default period.

Compliance with ‘Voluntary’ Intervention Order.

The proposed domestic violence law clarifies the weight that a Court is to attribute to an Offenders participating in a voluntary intervention order.  Presently, Courts are required to take into account such participation in deciding whether to make an Order and its duration.  Under the amendment the Court will still be entitled to take into account a Respondents compliance with an Intervention program, but the Court must not refuse to make an Order, or vary an Order merely because the Respondent has complied.

Conversely the Court is required to specifically take into account a Respondents failure or non-compliance while on the Intervention program.

The Bill will remove the word ‘voluntary’ from the definition. This will reflect that Intervention Orders are not voluntary and carry the weight of a Court Order.

Further Information

To read the new Bill click on the attached link Domestic Violence Law 2016 or to discuss how these changes may apply to your situation, contact our lawyers experienced in domestic violence cases today.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Penalty Unit set to rise from $117.80 to $121.90

On 28 April 2016 the Governor approved the Penalties and Sentences Amendment Regulation (No.1) 2016(the PSR Amendment). It commences on 1 July 2016 and amends the Penalties and Sentences Regulation 2015 (the PSR) to prescribe a new penalty unit value of $121.90

From 1 July 2016, penalty unit values will increase from $117.80 to $121.90.

Drug Convictions for Offences at Stereosonic

Party DrugsMore than 120 revellers face criminal convictions for drug offences following last weekends Stereosonic concert in Fortitude Valley.

A total of 123 people were arrested and charged with 127 offences including supplying a dangerous drug, possession of dangerous drugs and other associated drug and property related charges.

Drug convictions can significantly impact on employment prospects and prohibit overseas travel. In some circumstances a Court has the power not to record a conviction

It is imperative that anyone appearing in Court for drug charges, request that no conviction is recorded. For help or advice contact our Brisbane office on (07) 3303 0248

IMPRISONMENT NOT A SENTENCE OF LAST RESORT

Sentencing

imprisonment no longer a sentence of last resort.

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”.

Online Plea Of Guilty

Minor Traffic offences commenced by way of a complaint and summons, can now be resolved by way of an online plea of guilty.  The days of attending the bulk traffic call over and waiting to have minor traffic offences determined by a Magistrate can be avoided.  The new online guilty plea form allows the Court to take into account your timely plea of guilty and other relevant factors without the need to attend in person.

Anyone wishing to plead guilty online should give thought to using the process.  They need to be cautious however as to the consequences of pleading guilty before a Magistrate as many of the Hooning provisions are triggered once a plea of guilty is heard by a Magistrate.

What can proceed online?

The following offences are currently allowed for the online service:

  • vehicles used on roads must be registered
  • disobeying the speed limit
  • driving without a licence
  • drive without due care and attention.

When can the matter not proceed online?

Currently an online guilty plea is not allowed if the person has received a Notice to Appear and has not yet appeared in court.  More serious offences that are to proceed upon indictment are also not allowed.  The Court does not have a capacity to disqualify a driver licence if the person is not present.  Accordingly if the Court considers that a  licence disqualification is required they will not proceed to sentence, but instead order that you personally appear at a further date.

Offender Levy

If you are sentenced in the Magistrates Court, whether you appear or not, you are still liable for payment of the Offender Levy.  The offender levy is not part of the sentence, it is imposed in addition to any fine or sentence imposed.

The online form is located here https://www.qld.gov.au/law/court/going-to-court/submit-your-guilty-plea/

Which Courts have an online capacity?

The following magistrate courts currently have this function:

  • Beaudesert Magistrates Court
  • Beenleigh Magistrates Court
  • Brisbane Magistrates Court
  • Cleveland Magistrates Court
  • Coolangatta Magistrates Court
  • Goondiwindi Magistrates Court
  • Holland Park Magistrates Court
  • Ipswich Magistrates Court
  • Pine Rivers Magistrates Court
  • Redcliffe Magistrates Court
  • Richlands Magistrates Court
  • Sandgate Magistrates Court
  • Southport Magistrates Court
  • Stanthorpe Magistrates Court
  • Warwick Magistrates Court
  • Wynnum Magistrates Court