If you are convicted of any traffic or criminal offence in Queensland, you will be sentenced by either a Magistrate (in a Magistrates Court) or a Judge (in a District or Supreme Court). This simply means that you will be given some form of punishment by the court.
Judges and Magistrates have a wide range of powers when it comes to deciding what punishment or penalty should be imposed. They do however have to take into account a number of important factors when deciding what is the appropriate penalty.
Some of these include:
- The offender’s character, age or intellectual capacity;
- How common the offence is;
- Any damage, injury or loss caused by the offender; and
- The period of time that the offender may have already spent in prison before being sentenced.
A full list of the factors that must be taken into account by a Judge or Magistrate can be found in section 9 of the Penalties and Sentences Act.
If you are facing the prospect of being sentenced in a Queensland court, it is important that you have a good understanding about what the different penalties are and how they can impact you. Some penalties might be nothing more than a mere inconvenience whereas other penalties could impact your life forever.
You can jump to any of the following sections to find out more about each punishment:
- Restitution or Compensation
- Good Behaviour Bond
- Fines
- Community Service
- Probation
- Intensive Correction Order
- Imprisonment
- Recording of a Conviction
Restitution or Compensation
If you have caused any harm or financial loss to another person, you may be ordered to pay for that harm or loss. This sentence can be in addition to any other penalty that might be imposed.
You may be ordered to pay restitution if you caused someone to suffer from a financial loss due to, for example, stealing or wilful damage. The idea of a restitution order is that you are meant to restore that person to the same financial position they were in before you committed the offence causing the loss.
If however your actions injured a person (not just the actual victim), you can be ordered to pay compensation to that person. An order for compensation is meant to provide some form of relief to the injured person.
Orders for resitution and/or compensation will specify (at a minimum) the following details:
- The amount that has to be paid;
- The person or organisation that will be receiving the payment; and
- The timeframe within which the payment must be made.
It is important to note that if you fail to pay restitution or compensation, you can be arrested and resentenced for the original offence. If you are struggling to pay a restitution or compensation order, you may be able to have it referred to the State Penalties Enforcement Registry, SPER debt and repayment help so that you can make payments over time.
Good Behaviour Bond
A good behaviour bond is essentially a promise to the court that you will not break the law for a period of time. You enter into the bond by signing a “recognisance” which sets out the conditions of the bond and your obligations throughout the bond period.
There are three types of good behaviour bonds in Queensland.
For example, the court can impose a bond which results in the absolute or conditional discharge of the offender. The court will place a person on this bond if they believe that the offence warrants no punishment or only a nominal punishment. These types of bonds are rare and are only offered for the most minor offences.
A court can also place an offender on a bond which requires them to attend a Drug Diversion Program. As long as the offender attends an appointed counselling session and does not commit any further offences during the bond period, they will have satisfied the conditions of the bond.
Good behaviour bonds are important because if a person is able to comply with the bond, no conviction is recorded and generally there is no requirement to pay a fine. For this reason, they are perhaps the best outcome that can be expected from a court.
If a person fails to comply with a good behaviour bond, it can be forfeited and they can be required to pay a financial penalty. The court can also resentence that person for the original offence and also record a conviction. It is therefore in everyone’s best interests to comply with a good behaviour bond.
Fines
A financial penalty (commonly referred to as just a “fine”) is the most common form of punishment imposed by the courts in Queensland.
Fines are expressed in penalty units for convenience and at the time of writing, a penalty unit is worth $121.90.
When deciding how much the fine should be, Judges and Magistrates should (when possible) take into account the offender’s ability to pay the fine and the impact that the fine might have on that person. The court will provide a period of time during which the fine must be paid and a failure to pay the fine during this period can result in a jail sentence. It would therefore be unfair to impose a fine that is so excessive that a jail sentence is unavoidable.
If a person has been ordered to pay a fine but they are unable to do so, they can apply for a “fine option order” which allows the person to perform unpaid community service instead of paying the fine. The application can either be made immediately after the fine order is made or during the period set for payment of the fine.
An application for a fine option order is not automatically granted. First, the court must be convinced that:
- The offender is unable to pay the fine or payment of the fine would cause the offender or the offender’s family to suffer economic hardship; and
- The offender is a suitable person to perform community service.
The number of hours that a person will need to perform under the fine option order cannot be more than five hours for each penalty unit. For example, a person ordered to pay a fine worth 4 penalty units cannot be required to perform more than 20 hours of community service (4 penalty units x 5 hours per unit).
If a person fails to comply with their fine option order, the order can be revoked and the person will be liable to serve a period of imprisonment.
Fine option orders can also be revoked for other reasons, such as the person no longer being willing to comply with the order. In this case, the court may choose to re-sentence the offender however the court in that case must take into account the extent that the offender complied with the fine option order.
If a Judge or Magistrate imposes a fine, they have the discretion whether to record a conviction or not.
Community Service
A community service order is a “community-based order” which requires an offender to perform unpaid community service. This punishment is often seen by the courts as a way for the offender to repay the community for their actions as it involves physical work that directly contributes the community.
Importantly, a court cannot make a person do community service. An offender needs to be willing to engage in community service and willing to consent to the conditions that may apply to the community service order.
Therefore before a court will impose a community service order, they must be satisfied of the following three things:
- the offender must be a suitable person to perform community service;
- community service must be available in the area where the person lives, or readily accessible by transport; and
- the offender must agree to comply with the community service order.
There are a number of standard conditions that apply to every community service order. Such an order will require the offender to:
- not commit another offence during the period of the order;
- report to an authorised corrective services officer at the place and within the time specified in the order;
- report to and receive visits from an authorised corrective services officer as directed by the officer;
- perform in a satisfactory way community service directed by an authorised corrective services officer for the number of hours stated in the order and at the times directed by the officer;
- notify an authorised corrective services officer of every change of the offender’s place of residence or employment within two business days after the change happens;
- must not leave or stay out of Queensland without the permission of an authorised corrective services officer; and
- comply with every reasonable direction of an authorised corrective services officer.
Also, the order must require that the offender performs no less than 40 hours and no more than 240 hours of community service.
If a person breaches a community service order, the order can be cancelled and that person will be brought to court. The Judge or Magistrate can then either impose a fine, order that the person continue performing community service or re-sentence the person for the original offence.
If a Judge or Magistrate sentences a person to community service, they have the discretion whether to record a conviction or not.
Probation
Similar to Community Service Orders, a probation order is also considered to be a “community-based order”.
Probation does not require a person to perform community service however it does require an offender to remain under the supervision of a corrective services officer and to comply with certain conditions which are either set out in the probation order or directed by the corrective services officer.
An offender must consent to being placed on a probation order which means they cannot be made to perform probation.
All probation orders contain standard conditions which must be complied with. These conditions require the offender to:
- not commit another offence during the period of the order;
- report to an authorised corrective services officer at the place and within the time specified in the order;
- report to and receive visits from an authorised corrective services officer as directed by the officer;
- take part in counselling and satisfactorily attend other programs as directed by the court or an authorised corrective services officer during the period of the order;
- notify an authorised corrective services officer of every change of the offender’s place of residence or employment within two business days after the change happens;
- must not leave or stay out of Queensland without the permission of an authorised corrective services officer; and
- comply with every reasonable direction of an authorised corrective services officer.
The probation order cannot be for less than six months or more than three years.
If a person breaches a probation order, the order will be cancelled and that person will be brought to court. The Judge or Magistrate can then either impose a fine, order that the person continue engaging in probation or resentence the person for the original offence.
If a Judge or Magistrate sentences a person to probation, they have the discretion whether to record a conviction or not.
Intensive Correction Order
A Judge or Magistrate may decide that an offender should be sentenced to a period of imprisonment however, due to circumstances, it would be best for that person to serve that prison sentence in the community. In this case, they can be sentenced to an Intensive Correction Order (“ICO”).
An ICO can only be ordered if the prison sentence is for 1 year or less.
Intensive Correction Orders are extremely onerous and therefore are not often imposed by the courts. An ICO will require that you:
- Report at least twice each week to a Probation and Parole officer;
- Follow all reasonable directions given to you by your officer;
- Report to and receive visits from your officer as directed;
- Undergo drug and/or alcohol testing as required;
- Attend programs or counselling as directed;
- Complete up to 12 hours of community service each week; and
- Notify any changes to your employment and/or place of residence.
As can be seen, an ICO is therefore similar to a combination of probation and community orders as you not only need to report to a Probation and Parole officer but you also need to carry out community service.
If you fail to comply with an ICO, you can be taken to court for breaching the order. The consequences of breaching the order can be simply a small fine or could be as serious as being required to actually serve the remaining period of the ICO in prison.
If a Judge or Magistrate sentences a person to an ICO, a conviction must be recorded.
Imprisonment
Generally, imprisonment is regarded as the “last resort” when it comes to sentencing offenders in Queensland courts. For this reason, an offender will usually have a fairly lengthy traffic or criminal history before they are sentence to a period of imprisonment.
There are, however, some offences which are so serious that a court has no option but to sentence the offender to imprisonment (such as murder).
If a person is sentenced to imprisonment, they will be taken to a correctional facility – more commonly known as a prison or jail. They will then be under the care and direction of Queensland Corrective Services for the duration of the prison sentence.
Prison sentences can be extremely complicated as there are a number of factors that must be taken into account when imprisonment imposed, such as:
- How long should the prison sentence be?
- Should it be served at the same time as other prison sentences or in addition to those sentences?
- How long should a person actually spend in prison before they are released on parole?
- Has the person already served some of their prison sentence while waiting for their case to finish?
It is also important to note that a prison sentence does not necessarily mean that an offender will actually go to jail.
A prison sentence can be wholly suspended which means that the prison sentence is suspended for a period of time determined by the court. If the offender does not commit any further offences during that suspended period, the prison sentence will expire and the offender will have avoided going to jail. If the person does commit a further offence during this time, they may be required to serve part or all of the prison sentence that was originally imposed.
A person can also be granted immediate parole which is effectively when a person is released from prison before their sentence expires, however they are released immediately from court. In this case, the person serves their prison sentence in the community which requires them to report to a corrective services officer and to comply with other strict conditions. If the person commits an offence while on parole, the parole order can be cancelled and the person will need to serve the balance of the sentence actually in prison.
Prison sentences are devastating for not just the offender but their families, friends and employers as well. Even after a person is released from prison, it can have negative consequences for the rest of the person’s life. Therefore if you are facing a potential jail sentence, it is important that you seek legal advice immediately.
If a Judge or Magistrate sentences a person to a period of imprisonment, a conviction must be recorded.
Recording of a Conviction
If a person is convicted of an offence in Queensland, the Judges and Magistrates generally have a discretion whether to record a conviction for that offence or not.
As a general rule, a conviction will be recorded unless there are compelling reasons why the conviction should not be recorded. It is therefore important that a strong argument for no conviction is presented to the court as the consequences of a recorded conviction can be highly damaging. It can prevent a person from obtaining employment or could severely restrict their ability to travel. It is therefore best to avoid a recorded conviction at all costs.
When deciding whether to record a conviction, the courts must look at all the circumstances of the case however s12 Penalties and Sentences Act the following specific considerations:
- The nature of the offence;
- The offender’s character and age; and
- The impact that a recorded conviction may have on the offender.
If a Judge or Magistrate agrees to not record a conviction, the conviction should not be entered into any records other than the court where the person was sentenced and the person’s criminal history, but only for the purposes of future court proceedings. This means that if a conviction is not recorded, a person can lawfully say that they do not have any convictions and a public search of that person’s criminal history should not reveal the conviction.
It is important to note however that, in some circumstances, the courts do not have any discretion whether to record the conviction. The most common example is where a person has been sentenced to a period of imprisonment – in this case, a conviction must be recorded.