PENALTIES AND SENTENCES ACT 1992 - SECT 9
Sentencing guidelines
PENALTIES AND SENTENCES ACT 1992 - SECT 9
Sentencing guidelines
9 Sentencing guidelines
(1) The only purposes for which sentences may be imposed on an offender are—
(a) to punish the offender to an extent or in a way that is just in all the
circumstances; or
(b) to provide conditions in the court’s order that the
court considers will help the offender to be rehabilitated; or
(c) to deter
the offender or other persons from committing the same or a similar offence;
or
(d) to make it clear that the community, acting through the court,
denounces the sort of conduct in which the offender was involved; or
(e) to
protect the Queensland community from the offender; or
(f) a combination of 2
or more of the purposes mentioned in paragraphs (a) to (e) .
(2) In
sentencing an offender, a court must have regard to—
(a) principles that—
(i) a sentence of imprisonment should only be imposed as a last resort; and
(ii) a sentence that allows the offender to stay in the community is
preferable; and
(b) the maximum and any minimum penalty prescribed for the
offence; and
(c) the nature of the offence and how serious the offence was,
including—
(i) any physical, mental or emotional harm done to a victim,
including harm mentioned in information relating to the victim given to the
court under section 179K ; and
(ii) the effect of the offence on any child
under 16 years who may have been directly exposed to, or a witness to, the
offence; and
(d) the extent to which the offender is to blame for the
offence; and
(e) any damage, injury or loss caused by the offender; and
(f)
the offender’s character, age and intellectual capacity; and
(g) the
presence of any aggravating or mitigating factor concerning the offender; and
(ga) without limiting paragraph (g) , whether the offender was a participant
in a criminal organisation—
(i) at the time the offence was committed; or
(ii) at any time during the course of the commission of the offence; and
(h)
the prevalence of the offence; and
(i) how much assistance the offender gave
to law enforcement agencies in the investigation of the offence or other
offences; and
(j) time spent in custody by the offender for the offence
before being sentenced; and
(k) 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; and
(l)
sentences already imposed on the offender that have not been served; and
(m)
sentences that the offender is liable to serve because of the revocation of
orders made under this or another Act for contraventions of conditions by the
offender; and
(n) if the offender is the subject of a community based
order—the offender’s compliance with the order as disclosed in an oral or
written report given by an authorised corrective services officer; and
(o) if
the offender is on bail and is required under the offender’s undertaking to
attend a rehabilitation, treatment or other intervention program or
course—the offender’s successful completion of the program or course; and
(p) if the offender is an Aboriginal or Torres Strait Islander person—any
submissions made by a representative of the community justice group in the
offender’s community that are relevant to sentencing the offender,
including, for example—
(i) the offender’s relationship to the
offender’s community; or
(ii) any cultural considerations; or
(iii) any
considerations relating to programs and services established for offenders in
which the community justice group participates; and
(q) anything else
prescribed by this Act to which the court must have regard; and
(r) any other
relevant circumstance.
(2A) However, the principles mentioned in
subsection (2) (a) do not apply to the sentencing of an offender for any
offence—
(a) that involved the use of, or counselling or procuring the use
of, or attempting or conspiring to use, violence against another person; or
(b) that resulted in physical harm to another person.
(3) In sentencing an
offender to whom subsection (2A) applies, the court must have regard
primarily to the following—
(a) the risk of physical harm to any members of
the community if a custodial sentence were not imposed;
(b) the need to
protect any members of the community from that risk;
(c) the personal
circumstances of any victim of the offence;
(d) the circumstances of the
offence, including the death of or any injury to a member of the public or any
loss or damage resulting from the offence;
(e) the nature or extent of the
violence used, or intended to be used, in the commission of the offence;
(f)
any disregard by the offender for the interests of public safety;
(g) the
past record of the offender, including any attempted rehabilitation and the
number of previous offences of any type committed;
(h) the antecedents, age
and character of the offender;
(i) any remorse or lack of remorse of the
offender;
(j) any medical, psychiatric, prison or other relevant report in
relation to the offender;
(k) anything else about the safety of members of
the community that the sentencing court considers relevant.
(4) Also, in
sentencing an offender for any offence of a sexual nature committed in
relation to a child under 16 years—
(a) the principles mentioned in
subsection (2) (a) do not apply; and
(5)
For subsection (4) (b) , in deciding whether there are exceptional
circumstances, a court may have regard to the closeness in age between the
offender and the child.
(6) In sentencing an offender to whom subsection (4)
applies, the court must have regard primarily to—
(a) the effect of the
offence on the child; and
(b) the age of the child; and
(c) the nature of
the offence, including, for example, any physical harm or the threat of
physical harm to the child or another; and
(d) the need to protect the child,
or other children, from the risk of the offender reoffending; and
(e) the
need to deter similar behaviour by other offenders to protect children; and
(f) the prospects of rehabilitation including the availability of any medical
or psychiatric treatment to cause the offender to behave in a way acceptable
to the community; and
(g) the offender’s antecedents, age and character;
and
(h) any remorse or lack of remorse of the offender; and
(i) any medical,
psychiatric, prison or other relevant report relating to the offender; and
(j) anything else about the safety of children under 16 the sentencing court
considers relevant.
(6A) Also, the principles mentioned in subsection (2)
(a) do not apply to the sentencing of an offender for the following
offences—
(ii) section 12 ,
13 , 15 , 16 or 17 if the offence involves a child abuse publication under the
Act ;
(d) an offence against the Criminal Code , section 228A , 228B , 228C
, 228D , 228DA , 228DB or 228DC .
(7) In sentencing an offender to whom
subsection (6A) applies, the court must have regard primarily to—
(a) the
nature of any image of a child that the offence involved, including the
apparent age of the child and the activity shown; and
(b) the need to deter
similar behaviour by other offenders to protect children; and
(c) the
prospects of rehabilitation including the availability of any medical or
psychiatric treatment to cause the offender to behave in a way acceptable to
the community; and
(d) the offender’s antecedents, age and character; and
(e) any remorse or lack of remorse of the offender; and
(f) any medical,
psychiatric, prison or other relevant report relating to the offender; and
(g) anything else about the safety of children under 16 the sentencing court
considers relevant.
(7A) Also, the principles mentioned in subsection (2)
(a) do not apply to the sentencing of an offender under part 9D , division 2
.
(8) If required by the court for subsection (2) (p) , the representative
must advise the court whether—
(a) any member of the community justice group
that is responsible for the submission is related to the offender or the
victim; or
(b) there are any circumstances that give rise to a conflict of
interest between any member of the community justice group that is responsible
for the submission and the offender or victim.
(9) In sentencing an offender,
a court must not have regard to the following—
(a) the offender levy imposed
under section 179C ;
(b) whether or not the offender—
(i) may become, or
is, the subject of a dangerous prisoners application; or
(ii) may become
subject to an order because of a dangerous prisoners application.
(9A)
Voluntary intoxication of an offender by alcohol or drugs is not a mitigating
factor for a court to have regard to in sentencing the offender.
(9B) In
determining the appropriate sentence for an offender convicted of the
manslaughter of a child under 12 years, the court must treat the child’s
defencelessness and vulnerability, having regard to the child’s age, as an
aggravating factor.
(10) In determining the appropriate sentence for an
offender who has 1 or more previous convictions, the court must treat each
previous conviction as an aggravating factor if the court considers that it
can reasonably be treated as such having regard to—
(a) the nature of the
previous conviction and its relevance to the current offence; and
(b) the
time that has elapsed since the conviction.
(10A) In determining the
appropriate sentence for an offender convicted of a domestic violence offence,
the court must treat the fact that it is a domestic violence offence as an
aggravating factor, unless the court considers it is not reasonable because of
the exceptional circumstances of the case.
Examples of exceptional
circumstances—
1 the victim of the offence has previously committed an act
of serious domestic violence, or several acts of domestic violence, against
the offender
2 the offence is manslaughter under the Criminal Code ,
section 304B
(11) Despite subsection (10) , the sentence imposed must not
be disproportionate to the gravity of the current offence.
(12) In this
section—
"actual term of imprisonment" means a term of imprisonment served wholly or
partly in a corrective services facility.
