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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
PENALTIES AND
SENTENCES BILL 1992
Queensland
PENALTIES AND SENTENCES BILL 1992
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3 Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5 Meaning of penalty unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6 Application to children and certain courts . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7 Sentences under this Act are sentences for purposes of Chapter
67 of the Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8 Construction of references to court that made order . . . . . . . . . . . . . . . . . . . 15
PART 2--GOVERNING PRINCIPLES
9 Sentencing guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10 Court's reasons to be stated and recorded . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11 Matters to be considered in determining offender's character . . . . . . . . . . . 18
12 Court to consider whether or not to record conviction . . . . . . . . . . . . . . . . . 19
13 Guilty plea to be taken into account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14 Preference must be given to compensation for victims . . . . . . . . . . . . . . . . 21
15 Information on sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
PART 3--RELEASES, RESTITUTION AND COMPENSATION
Division 1--Orders to release certain offenders
16 Court may make order under this Division if it does not record
conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
17 Making of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
18 Matters to which court must have regard . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2
Penalties and Sentences
19 Order of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
20 Contravention of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
21 Discharge of recognisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Division 2--Recognisances for property related offences
22 Court may make order under this Division if it does not record
conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
23 When court may act under this Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
24 Adjournment and release of offender if recognisance entered into . . . . . . . 24
25 Offender may be called on to do certain things . . . . . . . . . . . . . . . . . . . . . . 25
26 Offender may be called on for sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
27 Offender failing to appear under recognisance or when called . . . . . . . . . . 25
28 Discharge of recognisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Division 3--Release on entering into recognisance
29 Court may act under this Division whether or not it records conviction . . . 26
30 Recognisance--conviction on indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
31 Recognisance--summary conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
32 Recognisance instead of imposing any other sentence . . . . . . . . . . . . . . . . 27
33 Discharge of recognisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Division 4--Orders for restitution and compensation
34 Court may act under this Division whether or not it records conviction . . . 28
35 Order for restitution or compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
36 What order may state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
37 Limit on imprisonment under s.36(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
38 Extension of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
39 Directions for enforcing order of imprisonment . . . . . . . . . . . . . . . . . . . . . . . 29
40 Failing to appear as directed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
41 Instalments--failing to pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
42 Payment of restitution or compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
43 Division does not limit operation of other provisions . . . . . . . . . . . . . . . . . . 30
PART 4--FINES
Division 1--General
44 Court may impose fine whether or not conviction recorded . . . . . . . . . . . . . 31
45 Power to fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3
Penalties and Sentences
46 Fine limitations of certain courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
47 Lesser fine than provided may be imposed . . . . . . . . . . . . . . . . . . . . . . . . . . 32
48 Exercise of power to fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
49 Single fine for 2 or more offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
50 Instalment order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
51 Time to pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 2--Fine option orders
52 Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
53 Application for order if offender before court . . . . . . . . . . . . . . . . . . . . . . . . 34
54 If offender not before Court written notice of right to apply for
fine option order to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
55 Application for order generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
56 Application to clerk of court for order after end of time allowed
for payment of fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
57 Application to Supreme or District Court for order after end of
time allowed for payment of fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
58 Matters to be considered on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
59 Determination of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
60 Application may be granted or refused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
61 Making of order by clerk of the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
62 Effect of fine option order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
63 No liability if warrant executed in good faith and without negligence . . . . 40
64 Order to be in writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
65 Release from custody when order is made . . . . . . . . . . . . . . . . . . . . . . . . . . 40
66 Requirements of fine option orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
67 Directions under fine option order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
68 Extension of 1 year in s.66(b) may be made . . . . . . . . . . . . . . . . . . . . . . . . . 41
69 Maximum number of hours . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
70 Fine reduced proportionate to imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . 42
71 Community service to be performed cumulatively . . . . . . . . . . . . . . . . . . . . 42
72 Performance of community service to be credited against fine . . . . . . . . . . 43
73 Payments and application of payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
74 Failing to comply with a requirement of an order . . . . . . . . . . . . . . . . . . . . . 43
4
Penalties and Sentences
75 Matter may be heard and determined in offender's absence . . . . . . . . . . . . 45
76 Court to determine hours of community service . . . . . . . . . . . . . . . . . . . . . . 45
77 Failing to comply not question for jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
78 Effect of revoking order under s.74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
79 Revocation of fine option order other than under s.74 . . . . . . . . . . . . . . . . . 46
80 Offender may be re-sentenced on revocation of order under s.79 . . . . . . . . 46
81 Application for revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
82 Imprisonment to be reduced proportionate to amount of fine paid
or community service performed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
83 Court to notify court that imposed fine option order . . . . . . . . . . . . . . . . . . . 50
84 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
85 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
86 Hearing and determination of appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
87 Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
88 Discharge of fine option order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
89 Original order discharged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
PART 5--INTERMEDIATE ORDERS
Division 1--Probation orders
90 Court may make probation order whether or not conviction recorded . . . . . 53
91 Making of an order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
92 Effect of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
93 General requirements of probation order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
94 Additional requirements of probation order . . . . . . . . . . . . . . . . . . . . . . . . . . 55
95 Probation order to be explained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
96 Offender to agree to making or amending of order . . . . . . . . . . . . . . . . . . . . 56
97 Multiple offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
98 Application of s.32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
99 Discharge of probation order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 2--Community service orders
100 Court may make order only if conviction not recorded . . . . . . . . . . . . . . . . 57
101 Making of an order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
102 Effect of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
103 General requirements of community service order . . . . . . . . . . . . . . . . . . . . 58
5
Penalties and Sentences
104 Requirements relating to restitution and compensation . . . . . . . . . . . . . . . . 59
105 Community service order to be explained . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
106 Offender to agree to making or amending of order . . . . . . . . . . . . . . . . . . . . 60
107 Multiple offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
108 Discharge of community service order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Division 3--General
109 Court may make probation order and community service order for
an offender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
110 Appeal against probation order or community service order . . . . . . . . . . . . 61
PART 6--INTENSIVE CORRECTION ORDERS
111 Court may make order only if it records conviction . . . . . . . . . . . . . . . . . . . 62
112 Making of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
113 Effect of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
114 General requirements of intensive correction order . . . . . . . . . . . . . . . . . . . 62
115 Additional requirements of intensive correction order . . . . . . . . . . . . . . . . . 63
116 Intensive correction order to be explained . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
117 Offender to agree to making or amending of order . . . . . . . . . . . . . . . . . . . . 65
118 Multiple offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
119 Discharge of intensive correction order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
PART 7--OTHER PROVISIONS RELATING TO COMMUNITY
BASED ORDERS
Division 1--Amendment and revocation of orders
120 Amendment and revocation of community based order . . . . . . . . . . . . . . . . 66
121 Offender may be re-sentenced on revocation of order . . . . . . . . . . . . . . . . . 66
122 Application for amendment or revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Division 2--Contravention of orders
123 Offence to contravene requirement of community based orders . . . . . . . . . 67
124 Proceeding for offence may be brought in any Magistrates Court . . . . . . . . 68
125 Powers of Magistrates Court that convicts offender of offence
against s.123(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
126 Powers of Supreme Court or District Court to deal with offender . . . . . . . . 69
127 Additional power of courts in relation to an intensive correction orders . . . 71
128 Summons or warrant for contravention of single community based
order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
6
Penalties and Sentences
129 Summons or warrant for contravention of multiple orders made by
courts of different jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
130 Discharge of multiple community based orders where
contravention taken into account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
131 Contravention of requirements of order--judge to determine . . . . . . . . . . . 73
132 Proceedings after end of period of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Division 3--General
133 Authorised Commission officers subject to direction of court . . . . . . . . . . . 74
134 Requirements of order have effect despite appeal . . . . . . . . . . . . . . . . . . . . 74
135 Directions under community based order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
136 Notifications following making of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
137 Facilitation of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
138 Application of Justices Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
139 Court may order summons or warrant for offender's appearance . . . . . . . . . 76
140 Power of Magistrates Court under s.128(2), 129(2) or 139(2) . . . . . . . . . . . 77
141 Community service under intensive correction order cumulative
with any other community service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
142 Offence against this Part--complainant . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
PART 8--ORDERS OF SUSPENDED IMPRISONMENT
143 Court not to act without recording a conviction . . . . . . . . . . . . . . . . . . . . . . 78
144 Sentence of imprisonment may be suspended . . . . . . . . . . . . . . . . . . . . . . . . 78
145 Effect of suspended imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
146 Consequences of committing offence during operational period . . . . . . . . . 78
147 Power of court mentioned in s.146 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
148 Imprisonment to be served immediately . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
149 Reasons not stated--order still valid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
150 Bail Act applies if offender not dealt with immediately . . . . . . . . . . . . . . . 81
151 General provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
PART 9--IMPRISONMENT
152 Court must record conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
153 Imprisonment--liability to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
154 Calculation of term of imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
155 Imprisonment to be served concurrently unless otherwise ordered . . . . . . . 82
7
Penalties and Sentences
156 Cumulative orders of imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
157 Eligibility for parole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
158 Imprisonment to have effect from arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
159 Term of imprisonment does not run while prisoner at large . . . . . . . . . . . . . 85
160 Term of imprisonment if none prescribed . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
161 Time held in presentence custody to be deducted . . . . . . . . . . . . . . . . . . . . 85
PART 10--INDEFINITE SENTENCES
162 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
163 Indefinite sentence--imposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
164 Counsel for prosecution to inform court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
165 Attorney-General's consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
166 Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
167 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
168 Court to give reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
169 Onus of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
170 Standard of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
171 Review--periodic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
172 Review--application by offender imprisoned . . . . . . . . . . . . . . . . . . . . . . . . 91
173 Indefinite sentence discharged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
174 Re-integration programs for offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
175 Remissions not to be allowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
176 Registrar of court to give report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
177 Appeals--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
178 Appeals--Attorney-General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
179 Hearings--offender to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
PART 11--GENERAL
180 Effect of alterations in sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
181 Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
182 Enforcement of order for penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
183 Imprisonment unless penalty paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
184 Imprisonment unless act done . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
185 Scale of imprisonment for non-payment of penalty . . . . . . . . . . . . . . . . . . . 97
8
Penalties and Sentences
186 Reduction of imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
187 Disqualification from holding driver's licence . . . . . . . . . . . . . . . . . . . . . . . 99
188 Supreme or District Court may reopen proceeding to correct
sentencing errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
189 Outstanding offences may be taken into account in imposing sentence . . 100
190 Magistrates Court may release offender . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
191 Effect of order under s.190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
192 Magistrates Court to assess value of property . . . . . . . . . . . . . . . . . . . . . . . 103
193 Payment of value or amount assessed under s.192 . . . . . . . . . . . . . . . . . . . 103
194 Restoration of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
195 Passport orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
196 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
PART 12--TRANSITIONAL
197 Repeal of Ch.64A of Criminal Code and continuation of s.659D
for certain purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
198 Offenders detained under CH.64A of Criminal Code . . . . . . . . . . . . . . . . . 106
199 Matters for consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
200 Supreme Court to be advised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
201 Sentence of offender mentioned in s.198(1) . . . . . . . . . . . . . . . . . . . . . . . . 108
202 Application of Part 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
203 Supreme Court may give directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
PART 13--MISCELLANEOUS
204 General transitional provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
205 Transitional regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
206 Repeal of Penalty Units Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
207 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . 110
CONSEQUENTIAL AND OTHER AMENDMENTS
ACTS INTERPRETATION ACT 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
CORONERS ACT 1958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
CORRECTIVE SERVICES ACT 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
CRIMINAL CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
JUSTICES ACT 1886 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
9
Penalties and Sentences
JUVENILE JUSTICE ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
VAGRANTS, GAMING AND OTHER OFFENCES ACT 1931 . . . . . . . . 121
1992
A BILL
FOR
An Act to consolidate and amend the law relating to sentencing of
offenders
12
Penalties and Sentences
WHEREAS-- 1
(1) Society is entitled to protect itself and its members from harm; 2
(2) The criminal law and the power of courts to impose sentences on 3
offenders represent important ways in which society protects 4
itself and its members from harm; 5
(3) Society may limit the liberty of members of society only to 6
prevent harm to itself or other members of society; 7
BE IT THEREFORE ENACTED by the Queen's Most Excellent Majesty, 8
by and with the advice and consent of the Legislative Assembly of 9
Queensland in Parliament assembled, and by the authority of the same, as 10
follows. 11
PART 1--PRELIMINARY 12
title 13
Short
Clause1. This Act may be cited as the Penalties and Sentences Act 1992. 14
15
Commencement
Clause2. This Act commences on a day to be fixed by proclamation. 16
urposes 17
P
Clause3. The purposes of this Act include-- 18
(a) collecting into a single Act general powers of courts to sentence 19
offenders; and 20
(b) providing for a sufficient range of sentences to balance protection 21
of the Queensland community with appropriate punishment for, 22
and rehabilitation of, offenders; and 23
(c) promoting consistency of approach in the sentencing of 24
offenders; and 25
(d) providing fair procedures-- 26
13
Penalties and Sentences
(i) for imposing sentences; and 1
(ii) for dealing with offenders who contravene the conditions of 2
their sentence; and 3
(e) providing sentencing principles that are to be applied by courts; 4
and 5
(f) making provision so that offenders are not imprisoned for 6
non-payment of fines without the opportunity of obtaining a fine 7
option order; and 8
(g) promoting public understanding of sentencing practices and 9
procedures; and 10
(h) generally reforming the sentencing laws of Queensland. 11
12
Definitions
In this Act-- 13
Clause4.
"approved form" means a form approved by the Commission for the 14
relevant purpose; 15
"authorised Commission officer" means an officer of the Commission 16
authorised by the Commission for the relevant purpose; 17
"Commission" means the Queensland Corrective Services Commission; 18
"community based order" means any community service order, intensive 19
correction order or probation order; 20
"community service" has the same meaning as in the Corrective Services 21
Act 1988; 22
"community service order" means a community service order in force 23
under Division 2 of Part 5; 24
"conviction" means a finding of guilt, or the acceptance of a plea of guilty, 25
by a court; 26
"fine option order" means a fine option order made under Division 2 of 27
Part 4; 28
"intensive correction order" means an intensive correction order in force 29
under Part 6; 30
14
Penalties and Sentences
"offender" means a person who is convicted of an offence, whether or not 1
a conviction is recorded; 2
"operational period", of a term of imprisonment suspended under section 3
144(1), means the period stated under section 144(5) in relation to the 4
term; 5
"penalty" means any fine, compensation, restitution or other amount of 6
money; 7
"prison" means a prison within the meaning of the Corrective Services Act 8
1988; 9
"probation order" means a probation order in force under Division 1 of 10
Part 5; 11
"proper officer" means-- 12
(a) in relation to an order made by the Supreme Court, the sheriff; or 13
(b) in relation to an order made by a District Court, the registrar; or 14
(c) in relation to an order made by a Magistrates Court, the clerk of 15
the court; 16
"re-integration program" means a program under the Corrective Services 17
Act 1988 that is designed to assist an offender to re-integrate into the 18
community, and includes leave of absence, home detention and parole; 19
"sentence" means any penalty or imprisonment ordered to be paid or 20
served, or any other order made, by a court after an offender is 21
convicted, whether or not a conviction is recorded; 22
"term of imprisonment" means the duration of imprisonment imposed 23
for a single offence, and includes the imprisonment an offender is 24
serving, or is liable to serve-- 25
(a) for default in payment of a single fine; or 26
(b) for failing to comply with a single order of a court. 27
of penalty unit 28
Meaning
For the purposes of this or another Act, the value of a penalty 29
Clause5.(1)
unit is $60. 30
15
Penalties and Sentences
(2) If an Act expresses a penalty or other matter as a number (whether 1
whole or fractional) of penalty units, the monetary value of the penalty or 2
other matter is the number of dollars obtained by multiplying the value of a 3
penalty unit by the number of penalty units. 4
(3) If an order of a court expresses a penalty or other matter as a 5
monetary value, the number of penalty units is to be calculated by dividing 6
the monetary value by the value of a penalty unit as at the time the order is 7
made. 8
to children and certain courts 9
Application
Clause6.(1) This Act does not apply to-- 10
(a) Aboriginal Courts constituted under the Community Services 11
(Aborigines) Act 1984; or 12
(b) Island Courts constituted under the Community Services (Torres 13
Strait) Act 1984; 14
except to the extent allowed by that Act. 15
(2) This Act does not apply to-- 16
(a) a child within the meaning of the Juvenile Justice Act 1992; or 17
(b) a Childrens Court; 18
except to the extent allowed by the Juvenile Justice Act 1992. 19
under this Act are sentences for purposes of Chapter 67 of 20
Sentences
the Criminal Code 21
For the purposes of Chapter 67 of the Criminal Code, a sentence 22
Clause7.
under this Act is taken to be a sentence imposed on conviction whether or 23
not a conviction is recorded. 24
of references to court that made order 25
Construction
A reference in this Act to the court that made a community 26
Clause8.(1)
based order or fine option order or an original order within the meaning of 27
section 52 includes-- 28
16
Penalties and Sentences
(a) if the order was made by the Supreme Court--any sittings of the 1
Supreme Court in its criminal jurisdiction at any place in 2
Queensland; or 3
(b) if the order was made by a District Court--any sittings of a 4
District Court in its criminal jurisdiction at any place in 5
Queensland; or 6
(c) if the order was made by a Magistrates Court--any Magistrates 7
Court sitting at any place in Queensland. 8
(2) Subsection (1) applies even though the judge, magistrate or justices 9
constituting the court did not make the order in the first place. 10
PART 2--GOVERNING PRINCIPLES 11
guidelines 12
Sentencing
The only purposes for which sentences may be imposed on an 13
Clause9.(1)
offender are-- 14
(a) to punish the offender to an extent or in a way that is just in all the 15
circumstances; or 16
(b) to provide conditions in the court's order that the court considers 17
will help the offender to be rehabilitated; or 18
(c) to discourage the offender or other persons from committing the 19
same or a similar offence; or 20
(d) to make it clear that the community, acting through the court, 21
does not approve of the sort of conduct in which the offender was 22
involved; or 23
(e) to protect the Queensland community from the offender; or 24
(f) a combination of 2 or more of the purposes mentioned in 25
paragraphs (a) to (e). 26
(2) In sentencing an offender, a court must have regard to-- 27
(a) principles that-- 28
17
Penalties and Sentences
(i) a sentence of imprisonment should only be imposed as a last 1
resort; and 2
(ii) a sentence that allows the offender to stay in the community 3
is preferable; and 4
(b) the maximum and any minimum penalty prescribed for the 5
offence; and 6
(c) the nature of the offence and how serious the offence was, 7
including any physical or emotional harm done to a victim; and 8
(d) the extent to which the offender is to blame for the offence; and 9
(e) any damage, injury or loss caused by the offender; and 10
(f) the offender's character, age and intellectual capacity; and 11
(g) the presence of any aggravating or mitigating factor concerning 12
the offender; and 13
(h) the prevalence of the offence; and 14
(i) how much assistance the offender gave to law enforcement 15
agencies in the investigation of the offence or other offences; and 16
(j) time spent in custody by the offender for the offence before being 17
sentenced; and 18
(k) sentences imposed on, and served by, the offender in another 19
State or a Territory for an offence committed at, or about the 20
same time, as the offence with which the court is dealing; and 21
(l) sentences already imposed on the offender that have not been 22
served; and 23
(m) sentences that the offender is liable to serve because of the 24
revocation of orders made under this or another Act for 25
contraventions of conditions by the offender; and 26
(n) if the offender is the subject of a community based order--the 27
offender's compliance with the order as disclosed in a report 28
given by an authorised Commission officer; and 29
(o) anything else prescribed by this Act to which the court must have 30
regard; and 31
(p) any other relevant circumstance. 32
18
Penalties and Sentences
(3) A court may impose a sentence only if the court, after having 1
considered all available sentence options, is satisfied that the sentence-- 2
(a) is appropriate in all circumstances of the case; and 3
(b) is no more severe than is necessary to achieve the purposes for 4
which the sentence is imposed. 5
(4) A court may impose a sentence of imprisonment on an offender who 6
is under the age of 25 years and has not previously been convicted only if 7
the court, having-- 8
(a) considered all other available sentences; and 9
(b) taken into account the desirability of not imprisoning a first 10
offender; 11
is satisfied that no other sentence is appropriate in all circumstances of the 12
case. 13
reasons to be stated and recorded 14
Court's
If a court imposes a sentence of imprisonment, including a 15
Clause10.(1)
suspended sentence of imprisonment, it must-- 16
(a) state in open court its reasons for the sentence; and 17
(b) cause the reasons to be-- 18
(i) recorded in the transcript that is to be kept in the registry 19
with the indictment; or 20
(ii) recorded in writing and kept in the office of the clerk of the 21
court with the charge sheet; and 22
(c) cause a copy of the reasons to be forwarded to the Commission. 23
(2) A sentence is not invalid merely because of the failure of the court to 24
state its reasons as required by subsection (1)(a), but its failure to do so may 25
be considered by an appeal court if an appeal against sentence is made. 26
to be considered in determining offender's character 27
Matters
In determining the character of an offender, a court may 28
Clause11.
consider-- 29
19
Penalties and Sentences
(a) the number, seriousness, date, relevance and nature of any 1
previous convictions of the offender; and 2
(b) any significant contributions made to the community by the 3
offender; and 4
(c) such other matters as the court considers are relevant. 5
to consider whether or not to record conviction 6
Court
A court may exercise a discretion to record or not record a 7
Clause12.(1)
conviction as provided by this Act. 8
(2) In considering whether or not to record a conviction, a court must 9
have regard to all circumstances of the case, including-- 10
(a) the nature of the offence; and 11
(b) the offender's character and age; and 12
(c) the impact that recording a conviction will have on the 13
offender's-- 14
(i) economic or social wellbeing; or 15
(ii) chances of finding employment. 16
(3) Except as otherwise expressly provided by this or another Act-- 17
(a) a conviction without recording the conviction is taken not to be a 18
conviction for any purpose; and 19
(b) the conviction must not be entered in any records except-- 20
(i) in the records of the court before which the offender was 21
convicted; and 22
(ii) in the offender's criminal history but only for the purposes 23
of subsection (4)(b). 24
(4) A conviction without the recording of a conviction-- 25
(a) does not stop a court from making any other order that it may 26
make under this or another Act because of the conviction; and 27
(b) has the same result as if a conviction had been recorded for the 28
purposes of-- 29
20
Penalties and Sentences
(i) appeals against sentence; and 1
(ii) proceedings for variation or contravention of sentence; and 2
(iii) proceedings against the offender for a subsequent offence; 3
and 4
(iv) subsequent proceedings against the offender for the same 5
offence. 6
(5) If the offender is convicted of a subsequent offence, the court 7
sentencing the offender may disregard a conviction that was ordered not to 8
be recorded but which, under subsection (3)(b)(ii), is entered in the 9
offender's criminal history. 10
(6) If-- 11
(a) a court-- 12
(i) convicts an offender of an offence; and 13
(ii) does not record a conviction; and 14
(iii) makes a probation order or community service order for the 15
offender; and 16
(b) the offender is subsequently dealt with by a court for the same 17
offence in any way in which it could deal with the offender if the 18
offender had just been convicted by or before it of the offence; 19
the conviction for the offence must be recorded by the second court. 20
plea to be taken into account 21
Guilty
In imposing a sentence on an offender who has pleaded guilty 22
Clause13.(1)
to an offence, a court-- 23
(a) must take the guilty plea into account; and 24
(b) may reduce the sentence that it would have imposed had the 25
offender not pleaded guilty. 26
(2) A reduction under subsection (1)(b) may be made having regard to 27
the time at which the offender-- 28
(a) pleaded guilty; or 29
21
Penalties and Sentences
(b) informed the relevant law enforcement agency of his or her 1
intention to plead guilty. 2
(3) When imposing the sentence, the court must state in open court that it 3
took account of the guilty plea in determining the sentence imposed. 4
(4) A court that does not, under subsection (2), reduce the sentence 5
imposed on an offender who pleaded guilty must state in open court-- 6
(a) that fact; and 7
(b) its reasons for not reducing the sentence. 8
(5) A sentence is not invalid merely because of the failure of the court to 9
make the statement mentioned in subsection (4), but its failure to do so may 10
be considered by an appeal court if an appeal against sentence is made. 11
must be given to compensation for victims 12
Preference
Clause14. If a court considers-- 13
(a) that it is appropriate-- 14
(i) to make an order for compensation (whether under this or 15
another Act); and 16
(ii) to impose a fine or make another order for payment of an 17
amount of money; and 18
(b) that the offender cannot pay both the compensation and the fine 19
or amount; 20
the court must give preference to making an order for compensation, but 21
may also impose a sentence other than that of imprisonment. 22
on sentence 23
Information
In imposing a sentence on an offender, a court may receive any 24
Clause15.
information, including a report mentioned in section 201 of the Corrective 25
Services Act 1988, that it considers appropriate to enable it to impose the 26
proper sentence. 27
22
Penalties and Sentences
PART 3--RELEASES, RESTITUTION AND 1
COMPENSATION 2
Division 1--Orders to release certain offenders 3
may make order under this Division if it does not record 4
Court
conviction 5
Subject to section 20(2), if a court makes an order under section 6
Clause16.
19, it must not record a conviction. 7
of order 8
Making
If a court considers that it is appropriate that no punishment or 9
Clause17.
only a nominal punishment should be imposed on an offender, the court 10
may make an order under section 19. 11
to which court must have regard 12
Matters
Before making an order under section 19, the court must have 13
Clause18.
regard to-- 14
(a) the offender's character, age, health and mental condition; and 15
(b) the nature of the offence; and 16
(c) circumstances (if any) under which the offence was committed 17
that make the offence less serious than what it would be if it had 18
been committed under other circumstances; and 19
(d) anything else to which the court considers it proper to have 20
regard. 21
of court 22
Order
Clause19.(1) The court may make an order-- 23
(a) releasing the offender absolutely; or 24
23
Penalties and Sentences
(b) that the offender be released if the offender enters into a 1
recognisance, with or without sureties, in such amount as the 2
court considers appropriate, on the conditions that the offender 3
must-- 4
(i) be of good behaviour; and 5
(ii) appear for conviction and sentence if called on at any time 6
during such period (not longer than 3 years) as is stated in 7
the order. 8
(2) In making an order under subsection (1)(b), the court may impose 9
any additional conditions that it considers appropriate. 10
(3) If a court makes an order under subsection (1), the court may also 11
make any other order for payment of compensation or restitution that the 12
court could have made had the offender been convicted. 13
of order 14
Contravention
If a court that makes an order under section 19(1)(b), or a 15
Clause20.(1)
court of like jurisdiction, is satisfied that the offender has contravened a 16
condition of the offender's recognisance, the court may-- 17
(a) forfeit the recognisance; and 18
(b) issue a warrant directed to all police officers to arrest and bring 19
the offender before the court. 20
(2) When the offender appears before the court under the warrant issued 21
under subsection (1)(b), the court may-- 22
(a) record a conviction and sentence the offender for the offence with 23
which the offender was originally charged; or 24
(b) make any other order that the court could have made; 25
as if the offender had not been released on recognisance. 26
of recognisance 27
Discharge
Clause21. A recognisance entered into under this Division is discharged-- 28
(a) at the end of its period; or 29
24
Penalties and Sentences
(b) if it is forfeited under section 20(1)(a); or 1
(c) if the offender appears before the court under section 20(2); or 2
(d) if a court orders that it is discharged; 3
whichever is the first to happen. 4
Division 2--Recognisances for property related offences 5
may make order under this Division if it does not record 6
Court
conviction 7
Subject to section 27(2), if a court acts under this Division, it 8
Clause22.
must not record a conviction. 9
court may act under this Division 10
When
If an offender is convicted of an offence relating to property and 11
Clause23.
the court considers it appropriate to do so, the court may act under this 12
Division. 13
and release of offender if recognisance entered into 14
Adjournment
A court may-- 15
Clause24.(1)
(a) adjourn the sentencing of the offender to a time and place ordered 16
by the court; and 17
(b) release the offender if the offender enters into a recognisance, 18
with or without sureties, in such amount as the court considers 19
appropriate, on the condition that the offender must appear before 20
the court-- 21
(i) to be sentenced at the time and place ordered by the court; or 22
(ii) if called on before the time ordered by the court for the 23
purposes of section 25. 24
(2) The adjournment under subsection (1)(a) must not be longer than 6 25
months after the offender is convicted. 26
25
Penalties and Sentences
may be called on to do certain things 1
Offender
The offender may be called on with a view to the offender taking 2
Clause25.
steps to-- 3
(a) restore property, to which the offence relates, to the person 4
aggrieved by the offence; or 5
(b) reinstate property to the satisfaction of the court or the person 6
aggrieved by the offence; or 7
(c) compensate the person aggrieved by the offence for damage 8
caused to the person's property; or 9
(d) comply in all respects with any other order the court may make. 10
may be called on for sentence 11
Offender
If it is made to appear to the court that convicted the offender, 12
Clause26.(1)
or a court of like jurisdiction, that the offender should be called on to appear 13
and be sentenced for the relevant offence before the time ordered under 14
section 24(1)(a), the court may direct that the offender be called on to appear 15
to be sentenced at a time and place ordered by the court. 16
(2) In sentencing the offender, the court may have regard to whether the 17
offender has taken the steps mentioned in section 25 that are appropriate to 18
the offender's case. 19
failing to appear under recognisance or when called 20
Offender
Clause27.(1) If the offender-- 21
(a) fails to appear at the time and place ordered under section 22
24(1)(a); or 23
(b) is called on under section 24(1)(b)(ii) or 26(1) and fails to appear 24
at the time and place called on or ordered by the court; 25
the court, or a court of like jurisdiction, may-- 26
(c) forfeit the recognisance; and 27
(d) issue a warrant directed to all police officers to arrest and bring 28
the offender before the court. 29
26
Penalties and Sentences
(2) When the offender appears before the court that issued the warrant 1
under subsection (1)(d), the court may-- 2
(a) record a conviction and sentence the offender for the offence for 3
which the offender was originally charged; or 4
(b) make any other order that the court could have made; 5
as if the offender had not been released on recognisance. 6
of recognisance 7
Discharge
A recognisance entered into under this Division is discharged if 8
Clause28.
the offender-- 9
(a) appears at the time and place ordered under section 24(1)(a); or 10
(b) is called on under section 24(1)(b)(ii) or 26(1); 11
whichever is the first to happen. 12
Division 3--Release on entering into recognisance 13
may act under this Division whether or not it records 14
Court
conviction 15
A court may act under this Division whether or not it records a 16
Clause29.
conviction. 17
on indictment 18
Recognisance--conviction
An offender convicted on indictment may, in addition to, or 19
Clause30.(1)
instead of, any sentence to which the offender is liable, be ordered-- 20
(a) to be released if the offender enters into a recognisance, with or 21
without sureties, in such amount as the court considers 22
appropriate, conditioned that the offender keep the peace and be 23
of good behaviour for a period fixed by the court; and 24
(b) to be imprisoned until the recognisance mentioned in paragraph 25
(a) is entered into. 26
(2) Imprisonment ordered under subsection (1)(b)-- 27
27
Penalties and Sentences
(a) must not be longer than 1 year; and 1
(b) together with any other imprisonment that is ordered for the 2
offence, must not be longer than the longest term of 3
imprisonment for which the offender might be sentenced to be 4
imprisoned without fine. 5
conviction 6
Recognisance--summary
An offender convicted summarily may, instead of being 7
Clause31.
sentenced to punishment to which the offender is liable, be released if the 8
offender enters into a recognisance, with or without sureties, in such 9
amount as the court considers appropriate, on the conditions that the 10
offender keep the peace and be of good behaviour for a period (not longer 11
than 1 year) fixed by the court. 12
instead of imposing any other sentence 13
Recognisance
Subject to section 98, if an offender is convicted, the court may, 14
Clause32.
instead of imposing another sentence, release the offender if the offender 15
enters into a recognisance, with or without sureties, in such amount as the 16
court considers appropriate, on the conditions that-- 17
(a) the offender must appear before the court to be sentenced at a 18
future sittings of the court or if called on within a period stated by 19
the court; and 20
(b) the offender must in the meantime keep the peace and be of good 21
behaviour. 22
of recognisance 23
Discharge
Clause33. A recognisance entered into under this Division is discharged-- 24
(a) at the end of its period; or 25
(b) if the offender keeps the peace and is of good behaviour for the 26
period fixed by the court; or 27
(c) if required by the recognisance, the offender appears as required 28
by the recognisance to be sentenced; or 29
28
Penalties and Sentences
(d) if the offender fails to appear as required by section 32(a). 1
4--Orders for restitution and compensation 2
Division
may act under this Division whether or not it records 3
Court
conviction 4
Subject to section 36(3), a court may act under this Division 5
Clause34.
whether or not it records a conviction. 6
for restitution or compensation 7
Order
Clause35.(1) The court may order that the offender-- 8
(a) make restitution of property-- 9
(i) in relation to which the offence was committed; or 10
(ii) taken in the course of, or in connection with, the commission 11
of the offence; and 12
(b) pay compensation to a person for any loss or destruction of, or 13
damage caused to, property-- 14
(i) in relation to which the offence was committed; or 15
(ii) in the course of, or in connection with, the commission of 16
the offence; and 17
(c) pay compensation for personal injury suffered by a person 18
(whether or not the person is the victim against whom the offence 19
was committed) because of the commission of the offence. 20
(2) An order may be made under subsection (1) in addition to any other 21
sentence to which the offender is liable. 22
(3) If an offence is taken into account under section 189 in imposing 23
sentence on an offender for another offence, the court may make an order 24
under subsection (1). 25
(4) If a court makes an order under subsection (1) because of subsection 26
(3), then, despite section 189(8), the offender has the same right of appeal 27
as if the court had convicted the offender of the offence in relation to which 28
the order was made. 29
29
Penalties and Sentences
order may state 1
What
Clause36.(1) An order made under section 35(1) may state-- 2
(a) the amount to be paid by way of restitution or compensation; and 3
(b) the person to whom the restitution is to be made or the 4
compensation is to be paid; and 5
(c) the time within which the restitution is to be made or the 6
compensation is to be paid; and 7
(d) the way in which the restitution is to be made or the 8
compensation is to be paid. 9
(2) When making an order under section 35(1), the court may also order 10
that the offender is to be imprisoned if the offender fails to comply with the 11
order. 12
(3) The court may make an order under subsection (2) only if it records a 13
conviction. 14
on imprisonment under s.36(2) 15
Limit
Imprisonment ordered under section 36(2) must not be longer 16
Clause37.
than-- 17
(a) if the order is made on indictment--1 year; or 18
(b) if the order is made on summary conviction--6 months. 19
of time 20
Extension
A court that makes an order under section 35(1), or a court of 21
Clause38.(1)
like jurisdiction, may extend the time stated in the order within which the 22
restitution is to be made or the compensation is to be paid. 23
(2) The court that grants an extension of time under subsection (1) may 24
vary the extended time. 25
for enforcing order of imprisonment 26
Directions
In making an order under section 36(2), the court may give 27
Clause39.(1)
such directions as it considers appropriate for the enforcement of the order 28
30
Penalties and Sentences
of imprisonment. 1
(2) A direction mentioned in subsection (1) may include a direction that 2
the offender must appear-- 3
(a) before the court, or a court of like jurisdiction, at a time and place 4
stated in the direction; or 5
(b) if called on by notice given to the offender; 6
to show cause why the imprisonment should not be enforced because of the 7
failure to comply with the order. 8
to appear as directed 9
Failing
Clause40. If the offender fails to appear as required by a direction mentioned 10
in section 39(2), the court may issue a warrant directed to all police officers 11
to arrest and bring the offender before the court, or a court of like 12
jurisdiction, to show cause as required by the direction. 13
to pay 14
Instalments--failing
If compensation is ordered to be paid by instalments and an 15
Clause41.
instalment is not paid, the same proceedings may be taken as if the original 16
order had directed that the unpaid instalments be paid in a single amount 17
and the amount had not been paid. 18
of restitution or compensation 19
Payment
A court may order that restitution or compensation must be 20
Clause42.
made, directly or indirectly, to the proper officer of the court. 21
does not limit operation of other provisions 22
Division
Clause43. This Division does not limit the operation of another provision of 23
this Act that provides for the making of restitution or the payment of 24
compensation. 25
31
Penalties and Sentences
PART 4--FINES 1
1--General 2
Division
may impose fine whether or not conviction recorded 3
Court
Clause44. A court may impose a fine whether or not it records a conviction. 4
to fine 5
Power
An offender may be fined. 6
Clause45.(1)
(2) The fine may be in addition to, or instead of, any other sentence to 7
which the offender is liable. 8
(3) The maximum fine that a court may impose is-- 9
(a) the appropriate maximum applicable to the offence under a 10
provision of this or another Act relating to the offence; or 11
(b) if there is no such maximum--the maximum mentioned in 12
section 46. 13
(4) This section has effect subject to a specific provision of another Act 14
relating to the offence. 15
limitations of certain courts 16
Fine
If an Act creates an offence and does not provide a sentence, 17
Clause46.(1)
the maximum fine that a court may impose for a single offence is-- 18
(a) if the court is a Magistrates Court and the offender is-- 19
(i) an individual--165 penalty units; or 20
(ii) a corporation--835 penalty units; or 21
(b) if the court is a District Court and the offender is an 22
individual--4175 penalty units. 23
(2) If an Act creates an offence and does not provide a sentence, there is 24
no limit on the fine that the court may impose for a single offence if-- 25
(a) the court is a District Court and the offender is a corporation; or 26
32
Penalties and Sentences
(b) the court is the Supreme Court. 1
fine than provided may be imposed 2
Lesser
Unless an Act otherwise provides, a court may impose a lesser 3
Clause47.
fine than the fine stated in the Act. 4
of power to fine 5
Exercise
If a court decides to fine an offender, then, in determining the 6
Clause48.(1)
amount of the fine and the way in which it is to be paid, the court must, as 7
far as practicable, take into account-- 8
(a) the financial circumstances of the offender; and 9
(b) the nature of the burden that payment of the fine will be on the 10
offender. 11
(2) The court may fine the offender even though it has been unable to 12
find out about the matters mentioned in subsection (1)(a) and (b). 13
(3) In considering the financial circumstances of the offender, the court 14
must take into account any other order that it or another court has made, or 15
that it proposes to make-- 16
(a) providing for the confiscation of the proceeds of crime; or 17
(b) requiring the offender to make restitution or pay compensation. 18
(4) If the court considers that-- 19
(a) it would be appropriate both to impose a fine and to make a 20
restitution or compensation order; and 21
(b) the offender has not enough means to pay both; 22
the court must, in making its order, give more importance to restitution or 23
compensation, though it may also impose a fine. 24
(5) In fixing the amount of a fine, the court may have regard to, among 25
other matters-- 26
(a) any loss or destruction of, or damage caused to, a person's 27
property because of the offence; and 28
33
Penalties and Sentences
(b) the value of a benefit received by the person because of the 1
offence. 2
fine for 2 or more offences 3
Single
Clause49.(1) If an offender is found guilty of 2 or more offences-- 4
(a) that are founded on the same facts; or 5
(b) that form, or are part of, a series of offences of the same or a 6
similar kind; 7
the court may impose a single fine for all the offences. 8
(2) A fine imposed under subsection (1) must not be more than the total 9
of the maximum fines that could be imposed for each of the offences. 10
order 11
Instalment
If a court fines an offender, it may order that the fine be paid by 12
Clause50.
instalments. 13
to pay 14
Time
If a court does not make an instalment order, it may, at the time 15
Clause51.
of imposing the fine, order that the offender be allowed time to pay the fine. 16
2--Fine option orders 17
Division
18
Definition
In this Division-- 19
Clause52.
"fine" includes court costs; 20
"original order" means an order of a court-- 21
(a) that imposes a fine on an offender, whether or not it also requires 22
the payment of another penalty; and 23
34
Penalties and Sentences
(b) that directs that in default of payment of the fine or other penalty 1
either immediately or within a fixed time, the offender is to be 2
imprisoned for a period ordered by the court. 3
for order if offender before court 4
Application
If an offender is before a court when the court makes an 5
Clause53.(1)
original order for the offender, the court must explain to the offender that he 6
or she may immediately verbally apply to the court for a fine option order. 7
(2) If the application is made, the court-- 8
(a) must proceed to determine the application immediately; and 9
(b) may make a fine option order. 10
(3) The explanation mentioned in subsection (1) must be made in 11
language or in a way likely to be readily understood by the offender. 12
offender not before Court written notice of right to apply for fine 13
If
option order to be given 14
If the offender is not before the court when the court makes an 15
Clause54.
original order for the offender, the court must cause written notice to be 16
given to the offender informing the offender of his or her right to apply for 17
a fine option order. 18
for order generally 19
Application
Clause55.(1) If a court makes an original order for an offender, the offender 20
may apply to the court for a fine option order. 21
(2) If the original order directs that the offender is to pay the fine or other 22
penalty-- 23
(a) immediately--the application may be made on the day on which 24
the order is made; or 25
(b) within a fixed time--the application may be made at any time 26
before the end of the fixed time. 27
(3) The application must-- 28
(a) be in the approved form; and 29
35
Penalties and Sentences
(b) state the particulars that are relevant having regard to the matters 1
of which the court is required to be satisfied under section 58(1); 2
and 3
(c) be signed by the applicant; and 4
(d) be lodged-- 5
(i) if the court is the Supreme Court or a District Court--in the 6
registry of that court; or 7
(ii) if the court is a Magistrates Court--with the clerk of the 8
court. 9
(4) On the lodging of the application, the original order is suspended so 10
far as it requires the payment of a fine. 11
(5) Section 8 does not apply to this section. 12
to clerk of court for order after end of time allowed for 13
Application
payment of fine 14
Clause56.(1) This section applies to an offender-- 15
(a) for whom an original order has been made by a Magistrates 16
Court (whether before or after the commencement of this 17
section); and 18
(b) who has not applied for a fine option order under section 55 in 19
the time allowed by section 55(2)(b). 20
(2) Before a warrant may be issued for the commitment to prison of the 21
offender mentioned in subsection (1), the clerk of the court for the 22
Magistrates Court that made the order for a fine option order must-- 23
(a) send by post an application for a fine option order to the offender 24
at the offender's address last known to the clerk of the court; and 25
(b) advise the offender that if the offender fails to make application 26
for a fine option order within 10 business days after its receipt by 27
the offender a warrant may issue for the commitment of the 28
offender to prison for failing to pay the penalty. 29
36
Penalties and Sentences
(3) Subject to section 62, the offender may, even though a warrant of 1
commitment has been issued or executed in relation to the original order, 2
apply to the clerk of the court for the Magistrates Court that made the order 3
for a fine option order. 4
(4) The application must-- 5
(a) be in the approved form; and 6
(b) state the particulars that are relevant having regard to the matters 7
of which the clerk of the court is required to be satisfied under 8
section 58(1); and 9
(c) be signed by the applicant. 10
(5) Section 8 does not apply to this section. 11
to Supreme or District Court for order after end of time 12
Application
allowed for payment of fine 13
Clause57.(1) This section applies to an offender-- 14
(a) for whom an original order has been made by the Supreme Court 15
or a District Court (whether before or after the commencement of 16
this section); and 17
(b) who has not previously made an application under this Division 18
in relation to the original order. 19
(2) If the offender is before the Supreme Court or a District Court under 20
section 182, the court must inform the offender that he or she may 21
immediately verbally apply to the court for a fine option order in relation to 22
the original order. 23
(3) If the application is made, the court-- 24
(a) must immediately proceed to hear the application; and 25
(b) may make a fine option order. 26
to be considered on application 27
Matters
A court or clerk of the court may make a fine option order for 28
Clause58.(1)
an offender only if the court or clerk of the court is satisfied that-- 29
37
Penalties and Sentences
(a) the offender is unable to pay the fine in accordance with the 1
original order or, if the offender were to pay the fine in 2
accordance with the original order, the offender or the offender's 3
family would suffer economic hardship; and 4
(b) the offender is a suitable person to perform community service 5
under a fine option order. 6
(2) A court or clerk of the court may adjourn the application for the 7
purpose of obtaining any information, notification or report from an 8
authorised Commission officer for the purposes of subsection (1). 9
of application 10
Determination
Clause59.(1) The court to which an application is made under section 55, or 11
the clerk of the court to whom an application is made under section 56, 12
must cause written notice to be given to the offender of the time and place at 13
which it is proposed to determine the application. 14
(2) The offender may appear before the court or clerk of the court at the 15
time and place mentioned in the notice unless the applicant is in lawful 16
custody at that time. 17
(3) If the offender does not appear before the court or clerk of the court at 18
the time and place mentioned in the notice, the application may be 19
determined in the offender's absence. 20
(4) In determining whether to grant or refuse the application, 21
consideration must be given to-- 22
(a) the information contained in the application; and 23
(b) the information relating to the offender, and the offence to which 24
the application relates, that was before the court when the original 25
order was made. 26
may be granted or refused 27
Application
If an application is granted, the court or clerk of the court 28
Clause60.(1)
must-- 29
(a) make a fine option order for the offender; and 30
(b) explain to the offender, in language or a way likely to be readily 31
38
Penalties and Sentences
understood by the offender-- 1
(i) the purpose and effect of the order; and 2
(ii) what may follow if the offender fails to comply with the 3
order; and 4
(iii) the offender's right under section 73 to pay the fine, or any 5
part of the fine, to which the fine option order relates and 6
how that section requires the payment to be applied. 7
(2) If a court refuses an application under section 55-- 8
(a) any suspension of the original order to which the application 9
relates ceases to have effect; and 10
(b) the court must cause written notice to be given to the applicant-- 11
(i) of the refusal; and 12
(ii) that any suspension of the original order has ceased to have 13
effect. 14
(3) If a clerk of the court refuses an application, the clerk of the court 15
must-- 16
(a) give written notice to the applicant of the refusal and the reasons 17
for the refusal; and 18
(b) give written notice to the court that made the original order that 19
the application was made and refused. 20
of order by clerk of the court 21
Making
The clerk of the court may make a fine option order, but the 22
Clause61.(1)
offender must not be released under section 65 if-- 23
(a) the original order requires the payment of a part of the fine to the 24
complainant, and directs that in default of payment the offender is 25
to be imprisoned for a period, unless-- 26
(i) that part of the fine has been paid; or 27
(ii) the offender has served a period of imprisonment that bears to 28
the default period of imprisonment, as nearly as possible, the 29
same proportion as that part of the fine bears to the total fine; 30
or 31
39
Penalties and Sentences
(b) the original order requires, in addition to the imposition of a fine, 1
the payment of another penalty, and directs that in default of 2
payment the offender is to be imprisoned for a period, unless-- 3
(i) the amount of the penalty has been paid; or 4
(ii) the offender has served a period of imprisonment that bears 5
to the default period of imprisonment, as nearly as possible, 6
the same proportion as the amount of the penalty bears to the 7
total amount required to be paid by the order. 8
(2) The clerk of the court may make a fine option order only if the 9
offender has not previously made an application under this Division in 10
relation to the original order. 11
of fine option order 12
Effect
Clause62.(1) If a court makes a fine option order-- 13
(a) on an application under section 53 or 57 or on appeal under 14
section 85--it may suspend the original order so far as it requires 15
the payment of a fine; or 16
(b) on an application under section 55--the suspension of the 17
original order so far as it requires the payment of a fine is 18
continued. 19
(2) If a clerk of the court makes a fine option order under section 20
60(1)(a), the original order to which it relates is suspended so far as it 21
requires the payment of a fine. 22
(3) If an original order requires the payment of a fine and another 23
penalty, then, for the period for which the order is suspended so far as it 24
requires the payment of the fine, the default period of imprisonment stated 25
in the order is taken to have been reduced by a period that bears to the 26
period stated, as nearly as possible, the same proportion as the amount of 27
the fine bears to the total amount of the fine and other penalty required to be 28
paid by the order. 29
(4) If-- 30
(a) a warrant of commitment is issued because of an offender's 31
failure to comply with an original order; and 32
40
Penalties and Sentences
(b) the warrant has not been executed at the time of the making of a 1
fine option order for the original order; 2
the warrant, so far as it relates to the payment of a fine, stops being in force 3
on the making of the fine option order. 4
liability if warrant executed in good faith and without negligence 5
No
If-- 6
Clause63.
(a) a warrant of commitment stops being in force because of 7
subsection 62(4); and 8
(b) a police officer in good faith and without negligence purports to 9
execute the warrant; 10
liability at law does not attach to the police officer, the person in charge of a 11
prison or the State because of the purported execution of the warrant. 12
to be in writing 13
Order
A court or clerk of the court that makes a fine option order for an 14
Clause64.
offender must-- 15
(a) immediately reduce the order to writing in the approved form; 16
and 17
(b) give a copy of the order to the offender; and 18
(c) give to the Commission-- 19
(i) a copy of the order; and 20
(ii) a copy of the original order to which the order relates; and 21
(iii) details of the offence for which the original order was made. 22
from custody when order is made 23
Release
If an offender for whom a fine option order is made is in lawful 24
Clause65.
custody when the order is made merely because of the offender's failure to 25
comply with the original order, the offender must be released immediately. 26
41
Penalties and Sentences
of fine option orders 1
Requirements
Clause66. A fine option order must contain requirements that the offender-- 2
(a) must report to an authorised Commission officer at the place, and 3
within the time, stated in the order; and 4
(b) must, within 1 year from the making of the order or such further 5
time as the court allows, perform in a satisfactory way for the 6
number of hours stated in the order the community service that 7
an authorised Commission officer directs; and 8
(c) must comply with every reasonable direction of an authorised 9
Commission officer; and 10
(d) must report to, and receive visits from, an authorised 11
Commission officer as directed by the officer; and 12
(e) must notify an authorised Commission officer of every change of 13
the offender's place of residence or employment within 2 14
business days after the change happens; and 15
(f) must not leave or stay out of Queensland without the permission 16
of an authorised Commission officer. 17
under fine option order 18
Directions
A direction given by an authorised Commission officer under a 19
Clause67.
requirement of a fine option order must, as far as practicable, avoid-- 20
(a) conflicting with the offender's religious beliefs; and 21
(b) interfering with any times during which the offender usually 22
works or attends a school or other educational or training 23
establishment; and 24
(c) interfering with the offender's family responsibilities. 25
of 1 year in s.66(b) may be made 26
Extension
Clause68. The 1 year mentioned in section 66(b) may be extended-- 27
(a) by a court or clerk of the court--on the application of an 28
authorised Commission officer-- 29
42
Penalties and Sentences
(i) when the order is made; or 1
(ii) at any time before the end of the 1 year; or 2
(b) by a court under section 74(4)(a). 3
number of hours 4
Maximum
The number of hours for which an offender may be required 5
Clause69.(1)
to perform community service under a requirement of a fine option order 6
must be such number as, in the opinion of the court or clerk of the court, 7
satisfies the justice of the case. 8
(2) The number mentioned in subsection (1) must not be more than 10 9
hours for each penalty unit, or part of a penalty unit, that was imposed as a 10
fine under the original order. 11
reduced proportionate to imprisonment 12
Fine
If, when the fine option order is made for the offender, the 13
Clause70.
offender is serving a term of imprisonment because of the non-payment of 14
the fine to which the order relates, the fine is taken to have been reduced by 15
an amount that bears to the fine, as nearly as possible, the same proportion 16
as the number of days for which the offender has been imprisoned bears to 17
the term of imprisonment. 18
service to be performed cumulatively 19
Community
All community service required to be performed by an 20
Clause71.(1)
offender under a fine option order is to be performed cumulatively with any 21
community service not performed by the offender is required to perform 22
under a community service order or fine option order. 23
(2) If 2 or more fine option orders that require an offender to perform 24
community service are in force at the same time, the community service is 25
to be performed in the same chronological sequence as the sequence in 26
which the orders were made. 27
43
Penalties and Sentences
of community service to be credited against fine 1
Performance
Clause72.(1) If an offender performs community service under a fine option 2
order, the amount of the fine is to be reduced by an amount that bears to the 3
amount of the fine, as nearly as possible, the same proportion that the 4
number of hours of community service performed by the offender under 5
the order bears to the number of hours of community service that the 6
offender is required to perform under the order. 7
(2) For the purposes of section 186, an amount credited against the 8
amount of a fine under subsection (1) is taken to be payment of an amount 9
in part satisfaction of a court order. 10
and application of payments 11
Payments
Subject to subsection (3) and despite a suspension of an 12
Clause73.(1)
original order so far as it requires the payment of a fine, the fine or a part of 13
the fine may be paid. 14
(2) A fine or part of a fine must be paid, directly or indirectly, to the 15
proper officer of the court in which the original order was made. 16
(3) If, after a fine option order is made-- 17
(a) payment of part of the amount originally required to be paid by 18
the original order is made--the payment must be applied-- 19
(i) firstly, to the amount of a penalty (other than the fine) 20
required to be paid by the original order; and 21
(ii) then, to the amount of the fine; or 22
(b) a payment is applied to the amount of the fine to which the fine 23
option order relates--the number of hours of community service 24
required to be performed by an offender under a requirement of 25
the order must be reduced by a number that bears to the number 26
of hours, as nearly as possible, the same proportion that the 27
amount of the payment bears to the amount of the fine. 28
to comply with a requirement of an order 29
Failing
If, during the time that a fine option order is in force for an 30
Clause74.(1)
offender, the offender fails to comply with a requirement of the order, an 31
44
Penalties and Sentences
authorised Commission officer, or a person authorised for the purpose of 1
this section by the Commission, may give the offender a notice in the 2
approved form. 3
(2) The notice must-- 4
(a) set out particulars of the failure; and 5
(b) require the offender to appear before the court that made the 6
original order to which the fine option order relates at the time 7
and place stated in the notice. 8
(3) The court must at the time and place stated in the notice, or at a time 9
and place to which it adjourns the matter-- 10
(a) consider evidence given on behalf of the Commission and 11
evidence (if any) given by or on behalf of the offender; and 12
(b) determine whether or not the offender has failed to comply with 13
the requirement. 14
(4) If the court determines that the offender failed to comply with the 15
requirement, it may-- 16
(a) admonish the offender and, if necessary, extend or further extend 17
the 1 year mentioned in section 66(b); or 18
(b) revoke the order. 19
(5) A notice under subsection (1) may relate to 2 or more fine option 20
orders, whether or not the community service that is required to be 21
performed by an offender under any of the orders is to be performed-- 22
(a) at the same time as community service is to be performed by the 23
offender under another of the orders; or 24
(b) after community service required to be performed under any of 25
the orders has been performed by the offender. 26
(6) If a court determines that the offender has failed to comply with a 27
requirement of any of the orders mentioned in subsection (5), the court may 28
revoke all or any of the orders. 29
(7) If a court (other than the court that originally sentenced the offender) 30
acts under subsection (4), the first court must notify the court that originally 31
sentenced the offender of the action taken under the subsection. 32
45
Penalties and Sentences
may be heard and determined in offender's absence 1
Matter
Clause75.(1) If, at the time and place-- 2
(a) stated in the notice given under section 74(1); or 3
(b) to which the matter is adjourned; 4
the offender fails to appear, the court may proceed to hear and determine the 5
matter in the offender's absence. 6
(2) The court may proceed under subsection (1) only if it is satisfied that 7
the offender has been given-- 8
(a) a notice under section 74(1); or 9
(b) notice of the adjournment. 10
(3) If a court revokes a fine option order in the absence of the offender 11
for whom the order was made, it must cause notice of the revocation to be 12
given to the offender. 13
to determine hours of community service 14
Court
If a court proposes to revoke a fine option order, it must 15
Clause76.
determine the number of hours (if any) for which the offender performed 16
community service under the order. 17
to comply not question for jury 18
Failing
In a proceeding arising out of section 74, a question about 19
Clause77.
whether an offender failed to comply with a requirement of a fine option 20
order is not a question for determination by the jury. 21
of revoking order under s.74 22
Effect
Clause78.(1) If a court revokes a fine option order under section 74-- 23
(a) the original order for which the fine option order was made is 24
wholly reinstated; and 25
(b) any time that was allowed for the payment of the amount 26
originally required to be paid by the original order must be 27
disregarded; and 28
46
Penalties and Sentences
(c) any directions in the original order that the amount is to be paid 1
by instalments must be disregarded; and 2
(d) any default imprisonment mentioned in the original order takes 3
effect immediately and is to be reduced under section 82 if that 4
section applies. 5
(2) If-- 6
(a) a fine option order is revoked by a court under this Part; and 7
(b) the court is not the court that made the fine option order; 8
the court mentioned in paragraph (a) must cause notice of the revocation to 9
be given to the court that made the order. 10
of fine option order other than under s.74 11
Revocation
The court that makes a fine option order may, on application 12
Clause79.
made under section 81, revoke the order if the court is satisfied-- 13
(a) that the offender is not able to comply with the order because the 14
offender's circumstances have materially altered since the order 15
was made; or 16
(b) that the circumstances of the offender were wrongly stated or 17
were not accurately presented to the court; or 18
(c) that the offender is no longer willing to comply with the order. 19
may be re-sentenced on revocation of order under s.79 20
Offender
Subject to subsection (2), if a fine option order is revoked 21
Clause80.(1)
under section 79, the court that made the original order must-- 22
(a) confirm the original order; or 23
(b) vary the original order; or 24
(c) revoke the original order and re-sentence the offender for the 25
offence for which the order was made in a way in which the court 26
could deal with the offender if the offender had just been 27
convicted by or before it of the offence. 28
47
Penalties and Sentences
(2) In determining how to re-sentence the offender, the court must take 1
into account the extent to which the offender had complied with the order 2
before its revocation. 3
for revocation 4
Application
Clause81.(1) An application under section 79 must be made-- 5
(a) by-- 6
(i) the offender; or 7
(ii) an authorised Commission officer; or 8
(iii) the Director of Prosecutions; and 9
(b) while the fine option order is in force; and 10
(c) in the approved form. 11
(2) Notice of an application made by the offender must be given by the 12
court to the Commission and-- 13
(a) if the court that made the fine option order was the Supreme 14
Court or a District Court--to the Director of Prosecutions; or 15
(b) if the court that made the fine option order was a Magistrates 16
Court--to the prosecutor before that court. 17
(3) Notice of an application by an authorised Commission officer must 18
be given to the offender and the Director of Prosecutions. 19
(4) Notice of an application by the Director of Prosecutions must be 20
given to the offender and the Commission. 21
to be reduced proportionate to amount of fine paid or 22
Imprisonment
community service performed 23
Subject to subsection (3), if an original order is wholly 24
Clause82.(1)
reinstated under section 78(1)(a), the period of the default imprisonment in 25
relation to the fine mentioned in the order is the period calculated in 26
accordance with the following formula-- 27
DF = AF X DP 28
AP 29
48
Penalties and Sentences
(2) In subsection (1)-- 1
"AF" (amount of fine) means the total amount of the fine under the order; 2
"AP" (amount of penalty) means the total amount of the penalty under the 3
order; 4
"DF" (default fine) means the default imprisonment for failing to pay the 5
whole of the fine mentioned in the order; 6
"DP" (default penalty) means the default imprisonment for failing to pay 7
the whole of the penalty mentioned in the order. 8
Example-- 9
Original order-- 10
AF ( Fine $450.00 11
( Costs of court $50.00 12
$500.00 13
14
Restitution $500.00 15
________ 16
AP Penalty $1 000.00 17
18
DP Default Imprisonment 10 weeks 19
20
DF = AF X DP 21
AP 22
= 500 X 10 23
1000 24
= 5 weeks 25
NOTE: This is a hypothetical example only and should not be 26
construed to imply any relevance of the values used. 27
(3) Subsection (4) applies if-- 28
(a) the fine mentioned in the original order has been paid in part; or 29
(b) the offender has performed part of the community service 30
required to be performed by the relevant fine option order. 31
49
Penalties and Sentences
(4) If this subsection applies, the period of default imprisonment is to be 1
the period calculated in accordance with the following formula-- 2
PDI = DF [ DF X ( PP + HP ) ] 3
[ (AF HCS ) ] 4
(5) In subsection (4)-- 5
"AF" has the meaning given by subsection (2); 6
"DF" has the meaning given by subsection (2) (and is calculated in 7
accordance with subsection (1)); 8
"HCS" (hours of community service) means the number of hours for 9
which the offender is required to perform community service under 10
the fine option order; 11
"HP" (hours performed) means the number of hours for which 12
community service has been performed by the offender under the fine 13
option order; 14
"PDI" (period of default imprisonment) means the period of the default 15
imprisonment that still has to be served; 16
"PP" (part payment) means the amount of the part of the fine that has been 17
paid. 18
50
Penalties and Sentences
Example-- 1
If the fine converted to fine option order for 90 hours (HCS) and the 2
offender has paid $200.00 (PP) and performed 18 hours of community 3
service (HP)-- 4
PDI = DF [ DF X ( PP + HP ) ] 5
[ ( AF HCS ) ] 6
7
= 5 [5 X (200 + 18 )] 8
[ (500 90 )] 9
10
= 5 [5 X (2 + 1)] 11
[ (5 5)] 12
13
= 5 [5 X 3] 14
[ 5] 15
16
= 5 3 17
18
= 2 weeks 19
NOTE: This is a hypothetical example only and should not be 20
construed to imply any relevance of the values used. 21
(6) If the original order requires the payment of restitution or 22
compensation, the default imprisonment that relates to the non-payment of 23
the restitution or compensation is not affected by this section. 24
(7) Subsection (1) does not apply so far as the original order makes 25
provision for default imprisonment if the whole, or part of, the fine is not 26
paid. 27
(8) For the purpose of determining the results of any calculation made 28
under this section, a part of any hour, day, week or month (a "unit") is to 29
be rounded to the nearest whole number and, in the case of a half of a unit, 30
the unit is to be rounded up to the nearest whole number. 31
to notify court that imposed fine option order 32
Court
If a court that acts under section 79 or 80 is not the court that 33
Clause83.
51
Penalties and Sentences
imposed the fine option order, the first court must notify the court that 1
imposed the fine option order. 2
3
Certificates
A certificate under the seal of the Commission, or purporting 4
Clause84.(1)
to be signed by an authorised Commission officer, stating-- 5
(a) that the offender named in the certificate has performed 6
community service under a fine option order for the number of 7
hours stated; or 8
(b) that the offender named in the certificate has failed to perform 9
community service under a fine option order; or 10
(c) that the fine, or part of the fine, to which an original order relates, 11
has been paid; 12
is evidence of the matters. 13
(2) When, in the Commission's opinion, a fine option order is 14
discharged, it must forward a certificate stating the opinion, and the reasons 15
for the opinion, to-- 16
(a) if a clerk of the court made the order--the court in which the 17
original order was made; or 18
(b) in any other case--the court that made the fine option order. 19
20
Appeals
An offender who is aggrieved by a decision of a clerk of the 21
Clause85.(1)
court refusing an application by the offender under section 56 may appeal to 22
the Magistrates Court exercising jurisdiction at the place where the clerk of 23
the court holds office. 24
(2) The appeal must be instituted-- 25
(a) within 20 business days after the offender receives notice of 26
refusal; and 27
(b) by filing a notice of appeal in the approved form with the clerk of 28
the court. 29
52
Penalties and Sentences
(3) The court must-- 1
(a) give a copy of the notice of appeal to the Commission; and 2
(b) advise the appellant and the Commission of the time and date for 3
the hearing of the appeal. 4
and determination of appeals 5
Hearing
The hearing of the appeal is not limited to the material on 6
Clause86.(1)
which the decision appealed against was made. 7
(2) The appellant may appear before the Magistrates Court-- 8
(a) personally or by agent, counsel or solicitor; or 9
(b) if the appellant is in lawful custody at the time--by agent, counsel 10
or solicitor only. 11
(3) In determining the appeal, the Magistrates Court may-- 12
(a) affirm the decision appealed against; or 13
(b) set aside the decision appealed against and make a fine option 14
order for the appellant. 15
(4) The Magistrates Court must not make a fine option order under 16
subsection (3)(b) unless it is satisfied about the matters mentioned in 17
section 58(1). 18
of court 19
Rules
The power to make rules of court governing the practice of 20
Clause87.(1)
Magistrates Courts includes power to make rules for the hearing of appeals 21
by a Magistrates Court under section 86. 22
(2) Until such rules of court are made or so far as the rules made do not 23
extend to a particular case, the Magistrate hearing an appeal may give such 24
directions about the hearing as the Magistrate considers appropriate. 25
of fine option order 26
Discharge
Clause88.(1) A fine option order made for an offender is discharged if-- 27
(a) the offender finishes performing community service for the 28
53
Penalties and Sentences
number of hours stated in the order; or 1
(b) the fine is paid; or 2
(c) so much of the fine as has not been notionally paid by the 3
performance by the offender of community service is paid; or 4
(d) community service is performed by the offender for the number 5
of hours left after deducting HP from HCS; or 6
(e) the order is revoked under section 74(4)(b) or 79. 7
(2) In subsection (1)-- 8
"fine" includes the reduced amount of a fine calculated under section 70; 9
"HCS" (hours of community service) means the number of hours for 10
which the offender is required to perform community service under 11
the fine option order; 12
"HP" (hours performed) means the number of hours for which 13
community service has notionally been performed by the offender by 14
payment of part of the fine. 15
order discharged 16
Original
The discharge of a fine option order under section 88 also 17
Clause89.
discharges the original order in relation to which the fine option order was 18
made so far as the original order requires the payment of a fine. 19
PART 5--INTERMEDIATE ORDERS 20
Division 1--Probation orders 21
may make probation order whether or not conviction recorded 22
Court
Subject to section 91, a court may make a probation order 23
Clause90.
whether or not it records a conviction. 24
54
Penalties and Sentences
of an order 1
Making
If a court convicts an offender of an offence punishable by 2
Clause91.
imprisonment or a regulatory offence, the court may-- 3
(a) whether or not it records a conviction--make for the offender a 4
probation order mentioned in section 92(1)(a); or 5
(b) if it records a conviction--make for the offender a probation 6
order mentioned in section 92(1)(b). 7
of order 8
Effect
Clause92.(1) The effect of a probation order is-- 9
(a) that the offender is released under the supervision of an 10
authorised Commission officer for the period stated in the order; 11
or 12
(b) that the offender-- 13
(i) is sentenced to a term of imprisonment for not longer than 6 14
months; and 15
(ii) at the end of the term of imprisonment the offender is 16
released under the supervision of an authorised Commission 17
officer for the remainder of the period stated in the order. 18
(2) The period of the probation order starts on the day the order is made 19
and must be-- 20
(a) if the order is made under subsection (1)(a)--not less than 6 21
months or more than 3 years; or 22
(b) if the order is made under subsection (1)(b)--not less than 9 23
months or more than 3 years. 24
(3) The requirements of a probation order made under subsection (1)(a) 25
start on the day the order is made. 26
(4) The requirements of a probation order made under subsection (1)(b) 27
start-- 28
(a) immediately the offender is released from prison; or 29
(b) if the offender is released to a re-integration program--at the end 30
of the program. 31
55
Penalties and Sentences
requirements of probation order 1
General
The probation order must contain requirements that the 2
Clause93.(1)
offender-- 3
(a) must not commit another offence during the period of the order; 4
and 5
(b) must report to an authorised Commission officer at the place, and 6
within the time, stated in the order; and 7
(c) must report to, and receive visits from, an authorised 8
Commission officer as directed by the officer; and 9
(d) must take part in counselling and satisfactorily attend other 10
programs as directed by the court or an authorised Commission 11
officer during the period of the order; and 12
(e) must notify an authorised Commission officer of every change of 13
the offender's place of residence or employment within 2 14
business days after the change happens; and 15
(f) must not leave or stay out of Queensland without the permission 16
of an authorised Commission officer; and 17
(g) must comply with every reasonable direction of an authorised 18
Commission officer. 19
(2) In subsection (1)-- 20
"offence" does not include an offence against section 123(1). 21
requirements of probation order 22
Additional
The probation order may contain requirements that the 23
Clause94.(1)
offender-- 24
(a) submit to medical, psychiatric or psychological treatment; and 25
(b) comply, during the whole or part of the period of the order, with 26
the conditions that the court considers are necessary-- 27
(i) to cause the offender to behave in a way that is acceptable to 28
the community; or 29
(ii) to stop the offender from again committing the offence for 30
which the order was made; or 31
56
Penalties and Sentences
(iii) to stop the offender from committing other offences; and 1
(c) make restitution of property-- 2
(i) in relation to which the offence was committed; or 3
(ii) taken in the course of, or in connection with, the commission 4
of the offence; and 5
(d) pay compensation to a person for any loss or destruction of, or 6
damage caused to, property-- 7
(i) in relation to which the offence was committed; or 8
(ii) in the course of, or in connection with, the commission of 9
the offence; and 10
(e) pay compensation for personal injury suffered by a person 11
(whether or not the person is the victim against whom the offence 12
was committed) because of the commission of the offence. 13
(2) The order must state when the restitution is to be made or the 14
compensation is to be paid. 15
(3) The amount must be paid, directly or indirectly, to the proper officer 16
of the court that made the probation order. 17
order to be explained 18
Probation
Before making the probation order, the court must explain, or 19
Clause95.(1)
cause to be explained, to the offender-- 20
(a) the purpose and effect of the order; and 21
(b) what may follow if the offender contravenes the requirements of 22
the order; and 23
(c) that the order may be amended or revoked on application of the 24
offender, an authorised Commission officer or the Director of 25
Prosecutions. 26
(2) The explanation must be made in language or in a way likely to be 27
readily understood by the offender. 28
57
Penalties and Sentences
to agree to making or amending of order 1
Offender
The court may make or amend the probation order only if the 2
Clause96.
offender agrees to the order being made or amended and also agrees to 3
comply with the order as made or amended. 4
offences 5
Multiple
A court may make 1 or more probation orders for an offender 6
Clause97.(1)
convicted of 2 or more offences. 7
(2) The court may include the orders in a single form of order that 8
specifies each offence for which a probation order is made. 9
of s.32 10
Application
A court must not deal with an offender under section 32 if the 11
Clause98.
court is of the opinion that it is appropriate to release the offender on 12
probation under this Part. 13
of probation order 14
Discharge
Clause99.(1) A probation order is discharged-- 15
(a) at the end of its period; and 16
(b) if the order contains a requirement that the offender make 17
restitution or pay compensation--when the restitution is made or 18
the compensation is paid. 19
(2) A probation order is discharged-- 20
(a) if the offender is sentenced or further sentenced for the offence 21
for which the order was made; or 22
(b) if the order is revoked under section 120(1). 23
2--Community service orders 24
Division
58
Penalties and Sentences
may make order only if conviction not recorded 1
Court
A court may make a community service order whether or not it 2
Clause100.
records a conviction. 3
of an order 4
Making
If a court convicts an offender of an offence punishable by 5
Clause101.
imprisonment or a regulatory offence, the court may make a community 6
service order for the offender. 7
of order 8
Effect
Clause102. The effect of the order is that the offender is required to perform 9
unpaid community service for the number of hours stated in the order. 10
requirements of community service order 11
General
The community service order must contain requirements that 12
Clause103.(1)
the offender-- 13
(a) must not commit another offence during the period of the order; 14
and 15
(b) must report to an authorised Commission officer at the place, and 16
within the time, stated in the order; and 17
(c) must report to, and receive visits from, an authorised 18
Commission officer as directed by the officer; and 19
(d) must, within 1 year from the making of the order or such further 20
time as the court allows, perform in a satisfactory way for the 21
number of hours stated in the order the community service that 22
an authorised Commission officer directs; and 23
(e) must notify an authorised Commission officer of every change of 24
the offender's place of residence or employment within 2 25
business days after the change happens; and 26
(f) must not leave or stay out of Queensland without the permission 27
of an authorised Commission officer; and 28
(g) must comply with every reasonable direction of an authorised 29
59
Penalties and Sentences
Commission officer. 1
(2) The total number of hours stated in the order must not be less than 40 2
and not be more than 240. 3
(3) In subsection (1)-- 4
"offence" does not include an offence against section 123(1). 5
relating to restitution and compensation 6
Requirements
The community service order may contain requirements that 7
Clause104.(1)
the offender-- 8
(a) make restitution of property-- 9
(i) in relation to which the offence was committed; or 10
(ii) taken in the course of, or in connection with, the commission 11
of the offence; and 12
(b) pay compensation to a person for any loss or destruction of, or 13
damage caused to, property-- 14
(i) in relation to which the offence was committed; or 15
(ii) in the course of, or in connection with, the commission of 16
the offence; and 17
(c) pay compensation for personal injury suffered by a person 18
(whether or not the person is the victim against whom the offence 19
was committed) because of the commission of the offence. 20
(2) The order must state when the restitution is to be made or the 21
compensation is to be paid. 22
(3) The amount must be paid, directly or indirectly, to the proper officer 23
of the court that made the community service order. 24
service order to be explained 25
Community
Before making the community service order, the court must 26
Clause105.(1)
explain, or cause to be explained, to the offender-- 27
(a) the purpose and effect of the order; and 28
(b) what may follow if the offender contravenes the requirements of 29
60
Penalties and Sentences
the order; and 1
(c) that the order may be amended or revoked on application of the 2
offender, an authorised Commission officer or the Director of 3
Prosecutions. 4
(2) The explanation must be made in language or in a way likely to be 5
readily understood by the offender. 6
to agree to making or amending of order 7
Offender
The court may make or amend the community service order 8
Clause106.
only if the offender agrees to the order being made or amended and also 9
agrees to comply with the order as made or amended. 10
offences 11
Multiple
A court may make 1 or more community service orders for 12
Clause107.(1)
an offender convicted of 2 or more offences. 13
(2) If a court makes 2 or more community service orders, the number of 14
hours of community service ordered must not, when added together, total 15
more than 240. 16
(3) A court may make 1 or more further community service orders for 17
an offender who is subject to an existing community service order. 18
(4) The number of hours of community service that the offender has not 19
performed under the existing order, and the number of hours of community 20
service ordered to be served under the orders made under subsection (3), 21
must not, when added together, total more than 240. 22
(5) Unless the court that makes the community service order directs that 23
the community service that the offender is required to perform under the 24
order is to be performed cumulatively with another community service 25
order, the first community service is to be performed concurrently with 26
community service being performed under the other community service 27
order. 28
61
Penalties and Sentences
of community service order 1
Discharge
Clause108.(1) A community service order is discharged when-- 2
(a) the offender performs community service in accordance with the 3
requirements of the order for the number of hours stated in the 4
order; and 5
(b) if the order contains a requirement that the offender make 6
restitution or pay compensation--the restitution is made or the 7
compensation is paid. 8
(2) A community service order is discharged-- 9
(a) if the offender is sentenced or further sentenced for the offence 10
for which the order was made; or 11
(b) if the order is revoked under section 120(1). 12
3--General 13
Division
may make probation order and community service order for an 14
Court
offender 15
If an offender is before a court for sentence after being 16
Clause109.(1)
convicted of an offence punishable by a term of imprisonment or a 17
regulatory offence, the court may make for the offender a probation order 18
mentioned in section 92(1)(a) and also a community service order. 19
(2) If a court makes a probation order and a community service order 20
under subsection (1), the court-- 21
(a) must make separate orders; and 22
(b) must not impose an order as a requirement of the other order. 23
(3) If an offender for whom a probation order and a community service 24
order are made under subsection (1) contravenes a requirement of either 25
order and is dealt with for the original offence in relation to the order, the 26
other order is discharged. 27
62
Penalties and Sentences
against probation order or community service order 1
Appeal
An offender aggrieved by the making of a probation order or 2
Clause110.
community service order may appeal under the Justices Act 1886 or 3
Chapter 67 of the Criminal Code. 4
ART 6--INTENSIVE CORRECTION ORDERS 5
P
may make order only if it records conviction 6
Court
A court may make an intensive correction order only if it 7
Clause111.
records a conviction. 8
of order 9
Making
If a court sentences an offender to a term of imprisonment of 10
Clause112.
less than 1 year, the court may make an intensive correction order for the 11
offender. 12
of order 13
Effect
The effect of the order is that the offender is to serve the 14
Clause113.(1)
sentence of imprisonment by way of intensive correction in the community 15
and not in a prison. 16
(2) The provisions of an Act relating to remission of sentence do not 17
apply to the offender in relation to a sentence or part of a sentence served by 18
way of intensive correction in the community. 19
(3) For the purposes of the provisions of an Act providing for 20
disqualification for, or loss of, office or the forfeiture of benefits, the 21
offender is taken not to have been sentenced to a term of imprisonment. 22
requirements of intensive correction order 23
General
Clause114.(1) The intensive correction order must contain requirements that 24
the offender-- 25
63
Penalties and Sentences
(a) must not commit another offence during the period of the order; 1
and 2
(b) must report to an authorised Commission officer at the place, and 3
within the time, stated in the order; and 4
(c) must report to, and receive visits from, an authorised 5
Commission officer at least twice in each week that the order is in 6
force; and 7
(d) must take part in counselling and satisfactorily attend other 8
programs as directed by the court or an authorised Commission 9
officer during the period of the order; and 10
(e) must perform in a satisfactory way community service that an 11
authorised Commission officer directs during the period of the 12
order; and 13
(f) must reside at community residential facilities for periods (not 14
longer than 7 days at a time) that an authorised Commission 15
officer directs during the period of the order; and 16
(g) must notify an authorised Commission officer of every change of 17
the offender's place of residence or employment within 2 18
business days after the change happens; and 19
(h) must not leave or stay out of Queensland without the permission 20
of an authorised Commission officer; and 21
(i) must comply with every reasonable direction of an authorised 22
Commission officer. 23
(2) An authorised Commission officer must not direct the offender to 24
attend programs or perform community service for more than 12 hours in 25
any week. 26
(3) In subsection (1)-- 27
"offence" does not include an offence against section 123(1). 28
requirements of intensive correction order 29
Additional
Clause115.(1) The intensive correction order may contain requirements that 30
the offender-- 31
(a) submit to medical, psychiatric or psychological treatment; and 32
64
Penalties and Sentences
(b) comply, during the whole or part of the period of the order, with 1
conditions that the court considers are necessary-- 2
(i) to cause the offender to behave in a way that is acceptable to 3
the community; or 4
(ii) to stop the offender from again committing the same type of 5
offence for which the order was made; or 6
(iii) to stop the offender from committing other offences; and 7
(c) make restitution of property-- 8
(i) in relation to which the offence was committed; or 9
(ii) taken in the course of, or in connection with, the commission 10
of the offence; and 11
(d) pay compensation to a person for any loss or destruction of, or 12
damage caused to, property-- 13
(i) in relation to which the offence was committed; or 14
(ii) in the course of, or in connection with, the commission of the 15
offence; and 16
(e) pay compensation for personal injury suffered by a person 17
(whether or not the person is the victim against whom the offence 18
was committed) because of the commission of the offence. 19
(2) The order must state when the restitution is to be made or the 20
compensation is to be paid. 21
(3) The amount must be paid, directly or indirectly, to the proper officer 22
of the court that made the intensive correction order. 23
correction order to be explained 24
Intensive
Before making the intensive correction order, the court must 25
Clause116.(1)
explain, or cause to be explained, to the offender-- 26
(a) the purpose and effect of the order; and 27
(b) what may follow if the offender contravenes the requirements of 28
the order; and 29
(c) that the order may be amended or revoked on application by the 30
65
Penalties and Sentences
offender, an authorised Commission officer or the Director of 1
Prosecutions. 2
(2) The explanation must be made in language or a way likely to be 3
readily understood by the offender. 4
to agree to making or amending of order 5
Offender
The court may make or amend the intensive correction order 6
Clause117.
only if the offender agrees to the order being made or amended and also 7
agrees to comply with the order as made or amended. 8
offences 9
Multiple
If-- 10
Clause118.(1)
(a) a court sentences an offender to 2 or more terms of 11
imprisonment at the same time; and 12
(b) the total period that the offender is sentenced to serve is longer 13
than 1 year; 14
the court must not make an intensive correction order for any of the 15
offences. 16
(2) If-- 17
(a) a court sentences an offender to 2 or more terms of 18
imprisonment at the same time; and 19
(b) the total period that the offender is sentenced to serve is not 20
longer than 1 year; 21
the court may make intensive correction orders for each of the offences. 22
(3) The court may include the orders in a single form of order that 23
specifies each offence for which an intensive correction order is made. 24
of intensive correction order 25
Discharge
Clause119.(1) An intensive correction order is discharged-- 26
(a) at the end of its period; and 27
(b) if the order contains a requirement that the offender make 28
66
Penalties and Sentences
restitution or pay compensation--when the restriction is made or 1
the compensation is paid. 2
(2) An intensive correction order is discharged-- 3
(a) if the offender is sentenced or further sentenced for the offence 4
for which the order was made; or 5
(b) if the order is revoked under section 120(1); or 6
(c) if the offender is committed to prison under section 127(1). 7
ART 7--OTHER PROVISIONS RELATING TO 8
P
COMMUNITY BASED ORDERS 9
Division 1--Amendment and revocation of orders 10
and revocation of community based order 11
Amendment
The court that made a community based order may, on 12
Clause120.(1)
application under this Division, amend or revoke the order if the court is 13
satisfied-- 14
(a) that the offender is not able to comply with the order because the 15
offender's circumstances have materially altered since the order 16
was made; or 17
(b) that the circumstances of the offender were wrongly stated or 18
were not accurately presented to the court; or 19
(c) that the offender is no longer willing to comply with the order. 20
(2) If a court other than the court that imposed the community based 21
order amends or revokes the order, the first court must notify the original 22
court of the amendment or revocation. 23
may be re-sentenced on revocation of order 24
Offender
Subject to subsection (2), if a community based order is 25
Clause121.(1)
revoked, the court that made the order may re-sentence the offender for the 26
67
Penalties and Sentences
offence for which the order was made in any way in which the court could 1
deal with the offender if the offender had just been convicted by or before it 2
of the offence. 3
(2) In determining how to re-sentence the offender, the court must take 4
into account the extent to which the offender had complied with the order 5
before its revocation. 6
for amendment or revocation 7
Application
Clause122.(1) An application under this Division must be made-- 8
(a) by-- 9
(i) the offender; or 10
(ii) an authorised Commission officer; or 11
(iii) the Director of Prosecutions; and 12
(b) while the community based order is in force; and 13
(c) in the approved form. 14
(2) Notice of an application made by the offender must be given by the 15
court to the Commission and-- 16
(a) if the court that made the community based order was the 17
Supreme Court or a District Court--to the Director of 18
Prosecutions; or 19
(b) if the court that made the community based order was a 20
Magistrates Court--to the prosecutor before that court. 21
(3) Notice of an application by an authorised Commission officer must 22
be given to the offender and the Director of Prosecutions. 23
(4) Notice of an application by the Director of Prosecutions must be 24
given to the offender and the Commission. 25
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Penalties and Sentences
Division 2--Contravention of orders 1
to contravene requirement of community based orders 2
Offence
An offender who contravenes, without reasonable excuse, a 3
Clause123.(1)
requirement of a community based order commits an offence. 4
Maximum penalty--10 penalty units. 5
(2) Subsection (1) applies-- 6
(a) whether or not the contravention is an offence against another Act 7
or law; and 8
(b) whether the contravention happens in or out of Queensland. 9
for offence may be brought in any Magistrates Court 10
Proceeding
Subject to section 128 or 129, proceeding for an offence against 11
Clause124.
section 123(1) may be brought in any Magistrates Court. 12
of Magistrates Court that convicts offender of offence against 13
Powers
s.123(1) 14
This section applies if a Magistrates Court convicts the 15
Clause125.(1)
offender of an offence against section 123(1). 16
(2) The court may, in addition to, or instead of, dealing with the offender 17
under section 123(1), admonish and discharge the offender or make 1 or 18
more of the following orders-- 19
(a) an order-- 20
(i) requiring payment of an amount that was required to be paid 21
by the community based order concerned and has not been 22
paid; and 23
(ii) for the enforcement of payment of the amount as if it were 24
then making the community based order; 25
(b) with the offender's consent, an order to increase the number of 26
hours for which the offender is required by the order to perform 27
community service; 28
69
Penalties and Sentences
(c) an order extending the period of 1 year allowed for the offender 1
to perform community service. 2
(3) The imposition of a fine under section 123(1) or the making of an 3
order mentioned in subsection (2) does not affect the continuation of the 4
community based order. 5
(4) The court may also-- 6
(a) if the community based order was made by a Magistrates 7
Court--deal with the offender for the offence for which the 8
community based order was made in any way that it could deal 9
with the offender if the offender had just been convicted by it of 10
the offence; or 11
(b) if the community based order was made by the Supreme Court 12
or a District Court (the "sentencing court")-- 13
(i) commit the offender into custody to be brought before the 14
sentencing court; or 15
(ii) grant bail to the offender on the condition that the offender 16
must appear before the sentencing court. 17
(5) If the offender is subject to 2 or more community based orders that 18
were made by courts of different jurisdictions, an order under subsection 19
(4)(b) may be made that the offender be brought or appear before 20
whichever of the courts is the court of highest jurisdiction. 21
(6) In taking action under subsection (4)(a), the court must have regard 22
to-- 23
(a) the making of the community based order; and 24
(b) anything done to comply with the requirements of the order. 25
of Supreme Court or District Court to deal with offender 26
Powers
Clause126.(1) This section applies if-- 27
(a) the community based order to which the offender is subject was 28
made by the Supreme Court or a District Court; and 29
(b) the offender is before the court or, if the order was made by a 30
District Court, before the Supreme Court; and 31
70
Penalties and Sentences
(c) the court is satisfied that the offender committed an offence 1
against section 123(1) in relation to the community based order. 2
(2) The court may, in addition to, or instead of, dealing with the offender 3
under section 123(1)-- 4
(a) admonish and discharge the offender; or 5
(b) make an order-- 6
(i) requiring payment of an amount that was required to be paid 7
by the community based order and has not been paid; and 8
(ii) for the enforcement of the payment of the amount as if it 9
were then making the community based order. 10
(3) The imposition of a fine under section 123(1) or the making of an 11
order mentioned in subsection (2) does not affect the continuation of the 12
community based order. 13
(4) The court may also deal with the offender for the offence for which 14
the community based order was made in any way in which it could deal 15
with the offender if the offender had just been convicted before it of the 16
offence. 17
(5) If the offender is before the court-- 18
(a) under an order made under subsection (7) or section 125(5); or 19
(b) under a summons or warrant issued under section 128 or 129; or 20
(c) has just been convicted by the court of another offence committed 21
during the period of the community based order and the offender 22
also is the subject of community based orders made by courts of 23
lower jurisdiction; 24
the court may deal with the offender under this section as if the court had 25
made all the community based orders. 26
(6) In taking action under subsection (4), the court must have regard to-- 27
(a) the making of the community based order; and 28
(b) anything done to comply with the requirements of the order. 29
(7) If the offender is the subject of a community based order made by the 30
Supreme Court and is convicted before a District Court of another offence 31
committed during the period of the community based order, the court 32
71
Penalties and Sentences
may-- 1
(a) commit the offender to custody to be brought before the Supreme 2
Court; or 3
(b) grant bail to the offender on the condition that the offender must 4
appear before the Supreme Court. 5
(8) In subsections (5) and (7)-- 6
"offence" does not include an offence against section 123(1). 7
power of courts in relation to an intensive correction 8
Additional
orders 9
A court that, under this Part, deals with the offender for the 10
Clause127.(1)
offence for which an intensive correction order was made may, whether or 11
not the order is still in force, do so by revoking the order and committing 12
the offender to prison for the portion of the term of imprisonment to which 13
the offender was sentenced that was unexpired on the day the relevant 14
offence against section 123(1) was committed. 15
(2) The committal of the offender to imprisonment under subsection (1) 16
does not affect the offender's eligibility to a re-integration program. 17
(3) Unless the court otherwise orders, the offender must serve the 18
imprisonment-- 19
(a) immediately; and 20
(b) subject to section 33 of the Bail Act 1980, concurrently with any 21
other term of imprisonment previously imposed on the offender 22
by that or another court. 23
or warrant for contravention of single community based 24
Summons
order 25
A justice, to whom it is made to appear on complaint by an 26
Clause128.(1)
authorised Commission officer that an offender has committed an offence 27
against section 123(1), may issue a summons requiring the offender to 28
appear before a court. 29
(2) If-- 30
72
Penalties and Sentences
(a) a complaint under subsection (1) is in writing and on oath; and 1
(b) the justice is satisfied that the offender will not appear in answer 2
to a summons; 3
the justice may, instead of issuing a summons, issue a warrant directed to 4
all police officers to arrest the offender and bring the offender before a 5
court. 6
(3) A court mentioned in subsection (1) or (2) may be-- 7
(a) the court that made the community based order, if it was not a 8
Magistrates Court; or 9
(b) a Magistrates Court. 10
(4) In exercising a discretion under subsection (1) or (2), the justice must 11
have regard to-- 12
(a) the way in which the offender has contravened a requirement of 13
the community based order; and 14
(b) the original offence concerned; and 15
(c) whether the authorised Commission officer intends to 16
recommend to the court before which the offender appears, or is 17
brought, if the offender is convicted, that the offender be dealt 18
with as if the offender had just been convicted of the offence for 19
which the community based order was made. 20
or warrant for contravention of multiple orders made by 21
Summons
courts of different jurisdictions 22
Clause129.(1) If an offender is the subject of community based orders made 23
by courts of different jurisdictions, a justice, to whom it is made to appear 24
by complaint by an authorised Commission officer that the offender has 25
committed an offence against section 123(1), may issue a summons 26
requiring the offender to appear before a court. 27
(2) If-- 28
(a) a complaint under subsection (1) is in writing and on oath; and 29
(b) the justice is satisfied that the offender will not appear in answer 30
to a summons; 31
73
Penalties and Sentences
the justice may instead of issuing a summons, issue a warrant directed to all 1
police officers to arrest the offender and bring the offender before the court 2
of highest jurisdiction. 3
(3) The court mentioned in subsection (1) or (2) may be-- 4
(a) the court that made the community based order; or 5
(b) a Magistrates Court. 6
(4) In exercising a discretion under subsection (1) or (2), the justice must 7
have regard to-- 8
(a) the way in which the offender has contravened a requirement of 9
the community based order; and 10
(b) the original offence concerned; and 11
(c) whether the authorised Commission officer intends to 12
recommend to the court before which the offender appears, or is 13
brought, if the offender is convicted, that the offender be dealt 14
with as if the offender had just been convicted of the offence for 15
which the community based order was made. 16
of multiple community based orders where contravention 17
Discharge
taken into account 18
If a court-- 19
Clause130.
(a) deals with an offender under section 125 or 126 for an offence 20
for which a community based order was made; and 21
(b) under section 189, takes into account contraventions of the 22
requirements of other community based orders; 23
all the community based orders are discharged. 24
of requirements of order--judge to determine 25
Contravention
Clause131. If, in a matter under this Division before the Supreme Court or a 26
District Court, a question arises whether an offender has contravened, 27
without reasonable excuse, a requirement of a community based order, the 28
question is to be determined by the judge. 29
74
Penalties and Sentences
after end of period of order 1
Proceedings
A proceeding for a contravention of a requirement of a 2
Clause132.
community based order may be taken, and the offender dealt with, under 3
this Division for the contravention even though the order has been 4
discharged or revoked. 5
3--General 6
Division
Commission officers subject to direction of court 7
Authorised
In relation to community based orders, authorised Commission 8
Clause133.
officers are subject to the directions of the court that made the order. 9
of order have effect despite appeal 10
Requirements
If an offender appeals against a community based order, the 11
Clause134.(1)
order has effect and the requirements of the order are to be complied with 12
until the appeal is finally determined. 13
(2) If a requirement of the community based order is that the offender 14
make restitution or any compensation, the proper officer of the court must 15
not pay out any amount paid under the requirement-- 16
(a) until the time for making an appeal is ended; or 17
(b) if an appeal is made--until the appeal is finally determined. 18
under community based order 19
Directions
A direction given by an authorised Commission officer under a 20
Clause135.
requirement of a community based order must, as far as practicable, 21
avoid-- 22
(a) conflicting with the offender's religious beliefs; and 23
(b) interfering with any times during which the offender usually 24
works or attends school or another educational or training 25
establishment; and 26
(c) interfering with the offender's family responsibilities. 27
75
Penalties and Sentences
following making of order 1
Notifications
A court that makes a community based order, or makes an 2
Clause136.(1)
order amending or revoking a community based order, must make it in the 3
approved form and must cause a copy of the order to be given to-- 4
(a) the offender; and 5
(b) the person in charge of an institution in which the order requires 6
the offender to reside; and 7
(c) the Commission, together with details of the offence in relation to 8
which the order was made. 9
(2) If an offender is required or permitted by a community based order to 10
reside in another State or a Territory, the Commission must cause-- 11
(a) a copy of the order; and 12
(b) other relevant documents and information; 13
to be forwarded to the proper authority in that State or Territory. 14
of proof 15
Facilitation
Clause137.(1) If an offender is before a court with a view to being dealt with 16
for contravening a requirement in a community based order, then, subject to 17
subsection (2), the presumptions mentioned in subsection (3) are to be 18
made. 19
(2) A presumption mentioned in subsection (3) may be made only if 20
there is before the court-- 21
(a) a complaint; or 22
(b) a statement purporting to be that of a person authorised by the 23
Commission to make the statement; 24
that particularises matters relevant to the offender being so dealt with in the 25
case in question. 26
(3) Until the contrary is proved, it must be presumed-- 27
(a) that, under subsection (1), the community based order alleged in 28
the complaint or statement mentioned in subsection (2) was made 29
as alleged for the offender before the court; and 30
76
Penalties and Sentences
(b) if the offender is before the court under subsection (1)--that the 1
offender contravened the requirement, as alleged in the complaint 2
or statement. 3
of Justices Act 4
Application
The Justices Act 1886 applies to a complaint, summons, 5
Clause138.(1)
warrant or penalty under this Part with all necessary modifications and any 6
modifications prescribed by regulation. 7
(2) For the purposes of the application mentioned in subsection (1)-- 8
(a) a complaint is taken to be a complaint for an offence; and 9
(b) a summons is taken to be a summons to answer a complaint; and 10
(c) a penalty imposed under section 121 may be enforced by an 11
order that might be made by the adjudicating justices under the 12
Justices Act 1886 so as to enforce the payment of a penalty 13
imposed on a conviction for an offence under an Act that does 14
not expressly provide for enforcement of the payment. 15
(3) Despite section 43(2) or (3) of the Justices Act 1886, if 2 or more 16
matters are properly joined in a single complaint made for the purposes of 17
Division 2 because the matters of complaint-- 18
(a) are alleged to be constituted by the same act or omission; or 19
(b) are founded on substantially the same facts; 20
it is not necessary to set out each matter of complaint in a separate 21
paragraph. 22
(4) Objection cannot be taken to the complaint mentioned in subsection 23
(3) on the ground that each matter of complaint is not set out in a separate 24
paragraph. 25
may order summons or warrant for offender's appearance 26
Court
The court to which an authorised Commission officer makes 27
Clause139.(1)
application under section 122 may order that a summons issue, directed to 28
the offender, requiring the offender to appear at the time and place stated in 29
the summons to be dealt with according to law. 30
77
Penalties and Sentences
(2) If the offender to whom a summons under subsection (1) or section 1
128 or 129 is directed fails to appear in answer to the summons, the court 2
may, on proof of the service of the summons on the offender, order that a 3
warrant issue, directed to all police officers, to arrest the offender and bring 4
the offender before the court to be dealt with according to law. 5
of Magistrates Court under s.128(2), 129(2) or 139(2) 6
Power
If-- 7
Clause140.(1)
(a) a warrant issued under section 128(2), 129(2) or 139(2) directs 8
that an offender be brought before the Supreme Court or a 9
District Court; and 10
(b) the offender cannot be brought before the court because no 11
sittings are being held at the time; 12
the warrant has effect as if it directed that the offender be brought before a 13
Magistrates Court. 14
(2) On an offender's appearance before a Magistrates Court under 15
subsection (1), the court must-- 16
(a) commit the offender to custody to be brought; or 17
(b) grant bail to the offender on the condition that the offender 18
appear; 19
before the Supreme Court or a District Court. 20
service under intensive correction order cumulative with 21
Community
any other community service 22
Community service that an offender is required to perform 23
Clause141.
under an intensive correction order is to be performed cumulatively with 24
any other community service the offender is required to perform under this 25
or another Act. 26
against this Part--complainant 27
Offence
Proceedings for an offence against a community based order, if 28
Clause142.
not initiated by a court, must be started by complaint made by a person 29
78
Penalties and Sentences
authorised by the Commission in that behalf, either generally or in a 1
particular case. 2
PART 8--ORDERS OF SUSPENDED 3
IMPRISONMENT 4
not to act without recording a conviction 5
Court
A court may make an order under section 144(1) only if it 6
Clause143.
records a conviction. 7
of imprisonment may be suspended 8
Sentence
Clause144.(1) If a court sentences an offender to imprisonment for less than 9
5 years, it may order that the term of imprisonment be suspended. 10
(2) An order under subsection (1) may be made only if the court is 11
satisfied that it is appropriate to do so in the circumstances. 12
(3) An order under subsection (1) may suspend the whole or a part of the 13
term of imprisonment. 14
(4) A court must not suspend a term of imprisonment if it is satisfied, 15
having regard to the provisions of this Act, that it would be appropriate in 16
the circumstances that the offender be imprisoned for the term of 17
imprisonment imposed. 18
(5) The court must state a period of less than 5 years from the making of 19
the order during which the offender must not commit another offence 20
punishable by imprisonment if the offender is to avoid being dealt with 21
under section 146 for the suspended imprisonment. 22
of suspended imprisonment 23
Effect
An offender for whom an order under section 144 is made has 24
Clause145.
to serve the suspended imprisonment only if the offender is ordered to do 25
so under section 147. 26
79
Penalties and Sentences
of committing offence during operational period 1
Consequences
Clause146.(1) A court must proceed under this section if it-- 2
(a) convicts an offender of an offence for which imprisonment may 3
be imposed; and 4
(b) is satisfied that the offence was committed during the operational 5
period of an order made under section 144. 6
(2) If the court mentioned in subsection (1) has like jurisdiction to, or is 7
of higher jurisdiction than, the court that made the order, the first court may 8
deal with the offender under section 147 for the suspended imprisonment. 9
(3) If-- 10
(a) the order was made by a court other than a Magistrates Court; 11
and 12
(b) the court mentioned in subsection (1) is a Magistrates Court; 13
the Magistrates Court must proceed under subsection (4). 14
(4) The Magistrates Court mentioned in subsection (3) must-- 15
(a) commit the offender to custody to be brought; or 16
(b) grant bail to the offender conditioned to appear; 17
before a court of like jurisdiction to the court that made the order. 18
(5) If-- 19
(a) the order was made by the Supreme Court; and 20
(b) the court mentioned in subsection (1) is a District Court; 21
the District Court must proceed under subsection (6). 22
(6) The District Court mentioned in subsection (5) must-- 23
(a) commit the offender to custody to be brought before the Supreme 24
Court; or 25
(b) grant bail to the offender conditioned that the offender appear 26
before the Supreme Court. 27
(7) If the offender comes before a court under subsection (4) or (6), the 28
court must deal with the offender under section 147 for the suspended 29
imprisonment. 30
80
Penalties and Sentences
of court mentioned in s.146 1
Power
A court mentioned in section 146(2), (4) or (6) that deals 2
Clause147.(1)
with the offender for the suspended imprisonment may-- 3
(a) if the imprisonment was partly suspended--order the offender to 4
serve the suspended part of the imprisonment; or 5
(b) if the imprisonment was wholly suspended-- 6
(i) extend the operational period for not longer than 1 year from 7
the making of the order under this subsection; or 8
(ii) order the offender to serve the whole of the imprisonment; 9
or 10
(iii) order the offender to serve such part of the imprisonment as 11
the court orders. 12
(2) The court must make an order under subsection (1)(a) or (b)(ii) 13
unless it is of the opinion that it would be unjust to do so in view of all the 14
circumstances that have arisen since the suspended imprisonment was 15
imposed. 16
(3) If the court is of the opinion mentioned in subsection (2), it must state 17
its reasons. 18
to be served immediately 19
Imprisonment
If, under section 147(1)(b)(i), the court orders the offender to 20
Clause148.
serve imprisonment, then, unless the court otherwise orders, the 21
imprisonment must be served-- 22
(a) immediately; and 23
(b) subject to section 33 of the Bail Act 1980, concurrently with any 24
other imprisonment previously imposed on the offender by that 25
or another court. 26
not stated--order still valid 27
Reasons
An order under section 147 is not invalid merely because of the 28
Clause149.
failure of the court to state its reasons as required by section 147(3), but its 29
failure to do so may be considered by an appeal court if an appeal against 30
81
Penalties and Sentences
the order is made. 1
Act applies if offender not dealt with immediately 2
Bail
If it is not possible for a court to deal with an offender under 3
Clause150.
section 147 immediately, then, for the purposes of granting bail, the Bail 4
Act 1980 applies-- 5
(a) as if a reference to a person on a charge of, or in connection with, 6
an offence were a reference to the offender; and 7
(b) with any other necessary modifications and any modifications 8
prescribed by regulation. 9
provisions 10
General
For the purposes of appeal against sentence, imprisonment 11
Clause151.(1)
partly suspended under section 144 is taken to be a sentence of 12
imprisonment for the whole term of imprisonment ordered by the court. 13
(2) Imprisonment wholly suspended under section 144 is taken to be a 14
sentence of imprisonment for all purposes other than provisions of an Act 15
that provide for remission to be granted to offenders sentenced to 16
imprisonment. 17
(3) If suspended imprisonment or part of suspended imprisonment is 18
ordered to be served under section 147(1), the offender is taken for the 19
purposes of the provisions mentioned in subsection (2), to have been 20
convicted on the day on which the order was made under section 144. 21
(4) If, under section 147(1), an offender is ordered to serve the whole or 22
a part of imprisonment wholly suspended, the offender is taken to have 23
been sentenced to imprisonment on the day on which the order was made 24
under section 144. 25
(5) Imprisonment partly suspended under section 144 is taken to be a 26
sentence of imprisonment for the whole term ordered by the court for all 27
purposes other than provisions of an Act that provide for remission to be 28
granted to offenders sentenced to imprisonment. 29
(6) The exception mentioned in subsection (5) applies only in relation to 30
the time from the making of the order under section 144 until the day on 31
which a court makes an order under section 147(1) that the offender serve 32
82
Penalties and Sentences
the suspended imprisonment. 1
PART 9--IMPRISONMENT 2
must record conviction 3
Court
A court may make an order of imprisonment only if it records a 4
Clause152.
conviction. 5
to 6
Imprisonment--liability
An offender liable to imprisonment for life, or for any other 7
Clause153.(1)
period, may be sentenced to imprisonment for any lesser period. 8
(2) An offender liable to imprisonment may be sentenced to pay a fine 9
not exceeding the limits prescribed in section 46 in addition to, or instead of, 10
the imprisonment. 11
of term of imprisonment 12
Calculation
Except as provided in sections 156(1) and 159 and subject to an 13
Clause154.
order being made under section 158, a term of imprisonment-- 14
(a) on conviction on indictment--starts on the day the court imposes 15
imprisonment on the offender; and 16
(b) on a summary conviction--starts at the beginning of the 17
offender's custody for the imprisonment. 18
to be served concurrently unless otherwise ordered 19
Imprisonment
Unless otherwise provided by this Act, or the court imposing 20
Clause155.
imprisonment otherwise orders, if-- 21
(a) an offender is serving, or has been sentenced to serve, 22
imprisonment for an offence; and 23
(b) is sentenced to serve imprisonment for another offence; 24
83
Penalties and Sentences
the imprisonment for the other offence is to be served concurrently with the 1
first offence. 2
orders of imprisonment 3
Cumulative
If-- 4
Clause156.(1)
(a) an offender is serving, or has been sentenced to serve, 5
imprisonment for an offence; and 6
(b) is sentenced to serve imprisonment for another offence; 7
the imprisonment for the other offence may be directed to start from the end 8
of imprisonment for the first offence. 9
(2) Subsection (1) applies whether the imprisonment for the first offence 10
is being served concurrently or cumulatively with imprisonment for another 11
offence. 12
for parole 13
Eligibility
Clause157.(1) In this section-- 14
"period of imprisonment" means the unbroken duration of imprisonment 15
that an offender is to serve for 2 or more terms of imprisonment, 16
whether-- 17
(a) ordered to be served concurrently or cumulatively; or 18
(b) imposed at the same time or different times; 19
"non-parole period" means the part of a term of imprisonment or period 20
of imprisonment that an offender must serve before the offender is 21
eligible to apply for parole. 22
(2) If a court imposes a term of imprisonment on an offender, it may 23
recommend that the offender be eligible for release on parole after having 24
served such part of the term of imprisonment as the court specifies in the 25
recommendation. 26
(3) If a court imposes another term of imprisonment on an offender who 27
is already serving imprisonment for an offence, the court must-- 28
(a) if it is a court of like jurisdiction or higher jurisdiction to the court 29
that last made a recommendation of a non-parole period for an 30
84
Penalties and Sentences
offender--make a fresh recommendation for parole relating to 1
the period of imprisonment that the offender must serve; or 2
(b) if it is a court of lesser jurisdiction to the court that last made a 3
recommendation of a non-parole period for the offender and the 4
existing non-parole period-- 5
(i) has not ended--recommend a non-parole period in relation 6
to the total period of imprisonment; or 7
(ii) has ended--recommend a non-parole period in relation to the 8
fresh term of imprisonment imposed by the court. 9
(4) In making a new recommendation under subsection (3)(a), the 10
court-- 11
(a) must have regard to all the facts known to the court; and 12
(b) must ensure that the non-parole period is not less than that 13
mentioned in subsection (2). 14
(5) A new recommendation made under subsection (3)(a)-- 15
(a) revokes previous recommendations made by courts in relation to 16
a non-parole period for an offender; and 17
(b) commences on the day it is made. 18
(6) If a recommendation is made under subsection (3)(b)(i), the non- 19
parole period in relation to the total period of imprisonment is the total of all 20
non-parole periods that are in force. 21
(7) If a recommendation is made under subsection (3)(b)(ii), the non- 22
parole period in relation to the fresh term of imprisonment-- 23
(a) commences on the day the recommendation is made; and 24
(b) must not be longer than the term of imprisonment imposed on 25
the offender. 26
to have effect from arrest 27
Imprisonment
If-- 28
Clause158.
(a) an offender-- 29
(i) is convicted of an offence; and 30
85
Penalties and Sentences
(ii) has been in custody continuously since arrest on a charge of 1
the offence and for no other reason; and 2
(b) the court sentences the offender to imprisonment for the offence; 3
the court may order that the term of the imprisonment is to have effect on 4
and from the day the offender was arrested. 5
of imprisonment does not run while prisoner at large 6
Term
An offender who commits an offence against section 142 of the 7
Clause159.
Criminal Code, on being returned to lawful custody, must serve the 8
imprisonment that the offender would have served if the offender had not 9
escaped in addition to any punishment imposed for the offence. 10
of imprisonment if none prescribed 11
Term
If an offender is convicted of an offence punishable by 12
Clause160.
imprisonment, but the maximum term of imprisonment is not prescribed 13
by law, the maximum term that can be imposed is-- 14
(a) if the conviction is on indictment--5 years; or 15
(b) if the conviction is not on indictment--2 years. 16
held in presentence custody to be deducted 17
Time
If an offender is sentenced to a term of imprisonment for an 18
Clause161.(1)
offence, any time that the offender was held in custody in relation to 19
proceedings for the offence and for no other reason must be taken to be 20
imprisonment already served under the sentence, unless the sentencing 21
court otherwise orders. 22
(2) Subsection (1) does not apply to-- 23
(a) a period of custody of less than 1 day; or 24
(b) imprisonment of less than 1 day; or 25
(c) imprisonment that has been wholly suspended; or 26
(d) the suspended part of imprisonment partly suspended. 27
(3) If an offender was held in custody in circumstances to which 28
86
Penalties and Sentences
subsection (1) applies, the sentencing court must-- 1
(a) declare the time held in presentence custody to be imprisonment 2
already served under the sentence; and 3
(b) cause to be noted in the records of the court-- 4
(i) the fact that the declaration was made and its details; and 5
(ii) unless the court otherwise orders under subsection (1), the 6
fact that the declared time was taken into account by it in 7
imposing sentence; and 8
(c) cause the Commission to be advised of the declaration and its 9
details. 10
(4) If-- 11
(a) an offender is charged with a series of offences committed on 12
different occasions; and 13
(b) the offender has been in custody continuously since arrest on 14
charges of the offences and for no other reason; 15
the time held in presentence custody must be taken, for the purposes of 16
subsection (1), to start when the offender was arrested even if the offender 17
is not convicted of the offence for which the offender was first arrested or 18
any other offences in the series. 19
(5) If the sentencing court is satisfied that the time declared under 20
subsection (3) was not correct, it must-- 21
(a) declare the correct time; and 22
(b) amend the sentence accordingly; and 23
(c) cause the Commission to be advised of the amendment. 24
(6) An application for a declaration under subsection (3) or (5), may be 25
made by the offender or-- 26
(a) if the sentencing court was the Supreme Court or a District 27
Court--the Director of Prosecutions; or 28
(b) if the sentencing court was a Magistrates Court--the prosecutor. 29
87
Penalties and Sentences
ART 10--INDEFINITE SENTENCES 1
P
2
Definitions
In this Part-- 3
Clause162.
"indefinite sentence" means a sentence of imprisonment for an indefinite 4
term that-- 5
(a) must be reviewed under this Part; and 6
(b) is to continue until a court orders that the indefinite term of 7
imprisonment is discharged; 8
"nominal sentence" has the meaning given by section 163(2); 9
"violent offence" means-- 10
(a) an indictable offence-- 11
(i) that, in fact, involves the use, or attempted use, of violence 12
against a person; and 13
(ii) for which an offender may be sentenced to imprisonment 14
for life; or 15
(b) an offence against section 208, 215 or 337 of the Criminal Code 16
for which an offender may be sentenced to imprisonment for life; 17
or 18
(c) an offence against section 216(3)(a) or 348 of the Criminal Code. 19
sentence--imposition 20
Indefinite
A court may, instead of imposing a fixed term of 21
Clause163.(1)
imprisonment, impose an indefinite sentence on an offender convicted of a 22
violent offence on-- 23
(a) its own initiative; or 24
(b) an application made by counsel for the prosecution. 25
(2) In imposing sentence under subsection (1), the court must state in its 26
order the term of imprisonment (the "nominal sentence") that it would 27
have imposed had it not imposed an indefinite sentence. 28
88
Penalties and Sentences
(3) Before a sentence is imposed under subsection (1), the court must be 1
satisfied-- 2
(a) that Part 4 of the Mental Health Act 1974 does not apply; and 3
(b) that the offender is a serious danger to the community because 4
of-- 5
(i) the offender's antecedents, character, age, health or mental 6
condition; and 7
(ii) the severity of the violent offence; and 8
(iii) any special circumstances. 9
(4) In determining whether the offender is a serious danger to the 10
community, the court must have regard to-- 11
(a) whether the nature of the offence is exceptional; and 12
(b) the offender's antecedents, age and character; and 13
(c) any medical, psychiatric, prison or other relevant report in relation 14
to the offender; and 15
(d) the risk of serious physical harm to members of the community 16
if an indefinite sentence were not imposed; and 17
(e) the need to protect members of the community from the risk 18
mentioned in paragraph (d). 19
(5) Subsection (4) does not limit the matters to which a court may have 20
regard in determining whether to impose an indefinite sentence. 21
for prosecution to inform court 22
Counsel
If counsel for the prosecution intends to make an application 23
Clause164.(1)
under section 163(1)(b), counsel must inform the court after the offender 24
has been convicted of the offence. 25
(2) The application must be made within 7 business days after the 26
conviction. 27
(3) The court must allow any necessary adjournment to allow a consent 28
under section 165(1) to be obtained. 29
89
Penalties and Sentences
(4) On being informed under subsection (1), the court must remand the 1
offender in custody and must not admit the offender to bail. 2
consent 3
Attorney-General's
An application under section 163(1)(b) may be made only if 4
Clause165.(1)
the Attorney-General has consented, in writing, to the making of the 5
request. 6
(2) Consent must not be given under subsection (1) before the offender 7
is convicted of the violent offence. 8
9
Adjournment
A court may impose an indefinite sentence on the offender only 10
Clause166.
if-- 11
(a) the offender is advised at, or shortly after, the time of conviction 12
that the court may consider imposing an indefinite sentence on-- 13
(i) its own initiative; or 14
(ii) an application made by counsel for the prosecution; and 15
(b) the court has, after advising the offender under paragraph (a), 16
adjourned the offender's sentencing for not less than 20 business 17
days from the day of conviction of the violent offence so that 18
evidence on sentence may be called by the prosecution and the 19
offender. 20
21
Evidence
Subject to the admissibility of the evidence, before a court 22
Clause167.(1)
imposes an indefinite sentence it must-- 23
(a) hear evidence called by the prosecution; and 24
(b) hear evidence given or called by the offender, if the offender 25
elects to give or call evidence. 26
(2) Subject to subsection (3), ordinary rules of evidence apply to 27
evidence given or called under subsection (1). 28
(3) In proving the severity of the violent offence, the transcript of the trial 29
90
Penalties and Sentences
and submissions made on sentence are admissible if the transcript is 1
certified as correct by the Director, State Reporting Bureau. 2
to give reasons 3
Court
Clause168.(1) If a court imposes an indefinite sentence, it must give detailed 4
reasons for imposing the sentence. 5
(2) The reasons must be given at the time the indefinite sentence is 6
imposed. 7
nus of proof 8
O
The prosecution has the onus of proving that an offender is a 9
Clause169.
serious danger to the community. 10
of proof 11
Standard
A court may make a finding that an offender is a serious danger 12
Clause170.
to the community only if it is satisfied-- 13
(a) by acceptable, cogent evidence; and 14
(b) to a high degree of probability; 15
that the evidence is of sufficient weight to justify the finding. 16
17
Review--periodic
Clause171.(1) A court that imposes an indefinite sentence, or a court of like 18
jurisdiction-- 19
(a) must for the first time review the indefinite sentence within 6 20
months after an offender has served-- 21
(i) 50% of the offender's nominal sentence; or 22
(ii) if the offender's nominal sentence is life imprisonment--13 23
years of the nominal sentence; and 24
(b) must review the indefinite sentence at subsequent intervals of not 25
more than 2 years from when the last review was made. 26
91
Penalties and Sentences
(2) Subject to section 172, the Director of Prosecutions must make any 1
application that is required to be made to cause the reviews mentioned in 2
subsection (1) to be carried out. 3
by offender imprisoned 4
Review--application
An offender imprisoned on an indefinite sentence may apply 5
Clause172.(1)
to the court for the indefinite sentence to be reviewed at any time after the 6
court makes its first review under section 171(1)(a) if a court gives leave to 7
apply on the ground that there are exceptional circumstances that relate to 8
the offender. 9
(2) The court must immediately forward a copy of the application to the 10
Director of Prosecutions. 11
(3) Within 10 business days after the making of the application, the court 12
must give directions to enable the application to be heard. 13
(4) Subject to any directions given by the court, the application must be 14
heard within 20 business days from the day on which it is made. 15
sentence discharged 16
Indefinite
Unless it is satisfied that the offender is still a serious danger 17
Clause173.(1)
to the community when a review is made under section 171 or 172, the 18
court must-- 19
(a) order that the indefinite sentence is discharged; and 20
(b) sentence the offender under this Act for the violent offence for 21
which the indefinite sentence was imposed. 22
(2) If a court does not make an order under subsection (1)(a), the 23
indefinite sentence continues in force. 24
(3) A sentence imposed under subsection (1)(b)-- 25
(a) is taken to have started on the day the indefinite sentence was 26
originally imposed; and 27
(b) takes the place of the indefinite sentence; and 28
(c) must be not less than the nominal sentence. 29
92
Penalties and Sentences
programs for offenders 1
Re-integration
An offender sentenced under section 173(1)(b) may apply to 2
Clause174.(1)
be released to a re-integration program. 3
(2) If the offender is released to a re-integration program, the offender 4
must be under the authority of the Queensland Community Corrections 5
Board and the supervision of an authorised Commission officer for not less 6
than 5 years from the offender's release to a re-integration program. 7
(3) If a term of imprisonment imposed under section 173(1)(b) ends 8
within 5 years after the offender's release to a re-integration program, the 9
term of imprisonment is taken, for the purposes of subsection (2), to extend 10
until the end of the 5 years. 11
(4) However, the offender may apply to the Queensland Community 12
Corrections Board to be discharged from the offender's re-integration 13
program at any time after the end of the term of imprisonment imposed 14
under section 173(1)(b). 15
not to be allowed 16
Remissions
Clause175. The sentence of an offender under section 173(1)(b) must not be 17
remitted under the Corrective Services Act 1988. 18
of court to give report 19
Registrar
On the hearing of a review under section 171 or 172, the 20
Clause176.(1)
court may direct the registrar of the court to give to the court-- 21
(a) reports provided by the Commission or a Regional Health 22
Authority within the meaning of the Health Services Act 1991 or 23
such other similar persons or bodies as the court considers 24
appropriate; and 25
(b) such other reports as the court considers appropriate. 26
(2) A person who is requested by the registrar to give to the registrar 27
reports mentioned in subsection (1) must comply with the request. 28
(3) Reports mentioned in subsection (1)(a) are to be relevant to the period 29
from the time the indefinite sentence was imposed on the offender or the 30
last review was made by the court. 31
93
Penalties and Sentences
(4) Section 5.1(1) of the Health Services Act 1991 does not apply to an 1
officer, employee or agent of a Regional Health Authority who gives a 2
report or gives information to a court or the registrar of the court for the 3
purposes of this Part. 4
(5) Reports mentioned in subsection (1) are in addition to any other 5
evidence that may be placed before the court. 6
(6) The offender is entitled to-- 7
(a) cross examine the persons who made reports mentioned in 8
subsection (1) and any other witnesses; and 9
(b) call evidence in rebuttal of the reports and any other evidence. 10
11
Appeals--general
Clause177. For the purposes of Chapter 67 of the Criminal Code-- 12
(a) an indefinite sentence imposed under section 163; and 13
(b) if a court, on making a review under section 171 or 172-- 14
(i) refuses to act under section 173--the refusal; or 15
(ii) acts under section 173--the sentence imposed; 16
is taken to be a sentence imposed on conviction. 17
18
Appeals--Attorney-General
The Attorney-General may appeal to the Court of Appeal 19
Clause178.
against-- 20
(a) the making of an order under section 173(1)(a); and 21
(b) a sentence imposed under section 173(1)(b). 22
to be present 23
Hearings--offender
Subject to this section, the offender must be present during 24
Clause179.(1)
the hearing of-- 25
(a) evidence under section 167; and 26
(b) an application made under section 171 or 172. 27
94
Penalties and Sentences
(2) A court may order that, at the time evidence under section 167 is to 1
be heard, the person in charge of the place where the offender is imprisoned 2
or detained bring the offender before the court. 3
(3) On the hearing of an application made under section 171 or 172, the 4
court may order the person in charge of the place where the offender is 5
imprisoned or detained to bring the offender before the court. 6
(4) If the offender acts in a way that makes the hearing of the evidence or 7
application in the offender's presence impracticable, the court may order 8
that-- 9
(a) the offender be removed; and 10
(b) the hearing of the application continue in the offender's absence. 11
(5) If the court is satisfied that the offender is unable to be present during 12
the hearing of the evidence or application because of the offender's illness 13
or another reason, the court may allow the offender to be absent during the 14
whole or a part of the hearing if it is satisfied that-- 15
(a) the offender's interests will not be prejudiced by the hearing 16
continuing in the offender's absence; and 17
(b) the interests of justice require that the hearing should continue in 18
the offender's absence. 19
ART 11--GENERAL 20
P
of alterations in sentences 21
Effect
Clause180.(1) If a provision of this or another Act increases the sentence, or 22
the maximum or minimum sentence, for an offence, the increase applies 23
only to offences committed after the commencement of the provision. 24
(2) If a provision of this or another Act reduces the sentence, or the 25
maximum or minimum sentence, for an offence, the reduction-- 26
(a) extends to offences committed before the commencement of the 27
provision; but 28
(b) does not affect any sentence imposed before the commencement. 29
95
Penalties and Sentences
1
Corporations
If under this Act or another Act a penalty or forfeiture is 2
Clause181.(1)
payable to a party aggrieved, it is payable to a corporation if the corporation 3
is the party aggrieved. 4
(2) If-- 5
(a) an Act provides that the punishment for an offence against a 6
provision of the Act is imprisonment only; and 7
(b) a body corporate is convicted of having committed the offence; 8
the court by or before which the body corporate is convicted may impose a 9
fine on the body corporate determined under subsection (3). 10
(3) The fine mentioned in subsection (2) may be-- 11
(a) if the imprisonment is not more than 6 months--not more than 12
415 penalty units; or 13
(b) if the imprisonment is more than 6 months but not more than 1 14
year--not more than 835 penalty units; or 15
(c) if the imprisonment is more than 1 year but not more than 2 16
years--not more than 1 660 penalty units; or 17
(d) if the term of imprisonment is more than 2 years--an unlimited 18
amount. 19
(4) If a body corporate is convicted of an offence, the court may impose 20
a fine prescribed by subsection (5) on the body corporate. 21
(5) The maximum fine the court may impose under subsection (4) is an 22
amount equal to 5 times the maximum fine that could be imposed on an 23
individual convicted of the same offence. 24
(6) Subsection (2) does not apply to an offence if the Act concerned 25
provides another way of enforcing the punishment mentioned in subsection 26
(2)(a) against a body corporate. 27
(7) Subsection (5) does not apply to an offence if the Act concerned 28
prescribes a maximum fine for the offence for a body corporate that is 29
different from the maximum fine prescribed for the offence for an 30
individual. 31
96
Penalties and Sentences
of order for penalty 1
Enforcement
If an offender fails to pay a penalty, or an instalment of a 2
Clause182.(1)
penalty, that a court ordered the offender to pay, the prosecution may apply 3
to the court for the offender to be further dealt with for the offence 4
according to law. 5
(2) Notice may be served on the offender requiring the offender to appear 6
before the court at the time and place mentioned in the notice for the hearing 7
of the application mentioned in subsection (1). 8
(3) The court may issue a warrant directing that the offender be arrested 9
and brought before the court or a justice to be dealt with according to law-- 10
(a) in the first instance instead of proceeding by way of notice 11
mentioned in subsection (2); or 12
(b) if the offender fails to appear as required by the notice. 13
(4) If an offender is brought before a justice under a warrant issued under 14
subsection (3), the justice may commit the offender to prison or may 15
remand the offender on bail to be brought before the court that ordered the 16
penalty to be paid. 17
(5) Subject to section 57(2), on the hearing of an application under 18
subsection (1), if the court is satisfied that the offender failed to pay the 19
penalty, or an instalment of the penalty, it may-- 20
(a) set aside the sentence imposed for the offence and deal with the 21
offender in a way in which the court could have dealt with the 22
offender if the offender had just been convicted by or before it of 23
the offence; or 24
(b) dismiss the application. 25
unless penalty paid 26
Imprisonment
If-- 27
Clause183.
(a) an Act under which a penalty is ordered to be paid does not 28
provide for default in payment of the penalty; and 29
(b) an offender ordered to pay the penalty does not pay the penalty; 30
and 31
97
Penalties and Sentences
(c) the proper officer of the court has made the offender aware of the 1
provisions of Division 2 of Part 4; 2
the offender may be imprisoned for a period prescribed by section 185. 3
unless act done 4
Imprisonment
Unless an Act otherwise provides, if an offender who is ordered 5
Clause184.
by a court to do an act fails to do the act, the court may order the offender to 6
be imprisoned for a term not longer than 2 years. 7
of imprisonment for non-payment of penalty 8
Scale
If-- 9
Clause185.(1)
(a) an offender is ordered to pay a penalty; and 10
(b) the court may order imprisonment of the offender or execution 11
against the property of the offender if the penalty is not paid; and 12
(c) either of the following subparagraphs apply-- 13
(i) the penalty is not paid; 14
(ii) execution to recover the amount of the penalty is to be 15
against property of the offender and execution does not 16
satisfy the amount; and 17
(d) the proper officer of the court has made the offender aware of the 18
provisions of Division 2 of Part 4; 19
the court may order the offender to be imprisoned for a term calculated 20
under subsection (2)(a). 21
(2) The term of imprisonment-- 22
(a) must be-- 23
(i) such as, in the court's opinion, will satisfy the justice of the 24
case; but 25
(ii) not more than 14 days imprisonment for each penalty unit, or 26
part of a penalty unit, that the offender was ordered to pay; 27
and 28
98
Penalties and Sentences
(b) must be served cumulatively with imprisonment the offender is 1
serving, or has been sentenced to serve, unless the court 2
otherwise orders. 3
(3) This section has effect subject to the provisions of the Act under 4
which the penalty is ordered to be paid. 5
of imprisonment 6
Reduction
If it appears to the proper officer of the court that the amount 7
Clause186.(1)
of the penalty has been reduced by the offender who was ordered to pay the 8
penalty by-- 9
(a) payment of part of the penalty; or 10
(b) an amount realised by execution against the property of the 11
offender; 12
the imprisonment for which the offender may be committed to prison must 13
be reduced by a number of days that bears, as nearly as is possible, the 14
same proportion to the number of days for which the offender might have 15
been imprisoned if the original amount of the penalty had not been reduced 16
by the payment mentioned in paragraph (a), or the amount mentioned in 17
paragraph (b), bears to the original amount of the penalty. 18
(2) If-- 19
(a) an offender is imprisoned for failing to pay a penalty; and 20
(b) an amount is paid to the person in charge of the prison in 21
satisfaction or part satisfaction of the penalty; 22
the term of imprisonment to which the offender is subject must be reduced 23
by a number of days that bears, as nearly as is possible, the same 24
proportion to the number of days for which the offender was imprisoned as 25
the amount mentioned in paragraph (b) bears to the penalty. 26
(3) The person in charge of the prison-- 27
(a) must-- 28
(i) accept payment of all amounts tendered under subsection 29
(2); and 30
(ii) pay every amount tendered to the proper officer of the court; 31
and 32
99
Penalties and Sentences
(b) must release the offender from custody when the penalty is fully 1
paid, unless the offender is in custody for another matter. 2
from holding driver's licence 3
Disqualification
If-- 4
Clause187.(1)
(a) an offender is convicted of an offence in connection with, or 5
arising out of, the driving of a motor vehicle by the offender; and 6
(b) the court by or before which the offender is convicted is satisfied 7
having regard to the nature of the offence, or to the circumstances 8
in which it was committed, that the offender should, in the 9
interests of justice, be disqualified from holding or obtaining a 10
driver's licence; 11
the court may, in addition to any sentence that it may impose, order that the 12
offender is, from the time of the conviction, disqualified absolutely, or for 13
such period as is ordered by the court, from holding or obtaining a driver's 14
licence. 15
(2) The proper officer of the court must send a copy of the order to the 16
chief executive of the department that administers the Traffic Act 1949. 17
(3) In subsection (1)-- 18
"conviction" includes a conviction that is not recorded; 19
"driver's licence" means a driver's licence within the meaning of the 20
Traffic Act 1949. 21
or District Court may reopen proceeding to correct 22
Supreme
sentencing errors 23
Clause188.(1) This section does not apply to Magistrates Courts. 24
(2) If a court has in, or in connection with, a criminal proceeding 25
(including a proceeding on appeal)-- 26
(a) imposed a sentence that is not in accordance with the law; or 27
(b) failed to impose a sentence that the court legally should have 28
imposed; 29
100
Penalties and Sentences
the court (whether or not differently constituted) may reopen the 1
proceeding. 2
(3) If a court reopens a proceeding, it-- 3
(a) must give the parties an opportunity to be heard; and 4
(b) may impose a sentence that is in accordance with the law; and 5
(c) may amend any relevant conviction or order to the extent 6
necessary to take into account the sentence imposed under 7
paragraph (b). 8
(4) The court may reopen the proceeding-- 9
(a) on its own initiative at any time; or 10
(b) on the application of a party to the proceeding made within-- 11
(i) 20 business days after the day the sentence was imposed; or 12
(ii) such further time as the court allows. 13
(5) Application for leave to make an application under subsection 14
(4)(b)(ii) may be made at any time. 15
(6) Subject to subsection (7), this section does not affect any right of 16
appeal. 17
(7) For the purposes of an appeal under any Act against a sentence 18
imposed under subsection (3)(b), the time within which the appeal must be 19
made starts from the day the sentence is imposed under subsection (3)(b). 20
(8) This section applies to a sentence imposed, or required to be 21
imposed, whether before or after the commencement of this section. 22
offences may be taken into account in imposing sentence 23
Outstanding
A court that sentences an offender for an offence may 24
Clause189.(1)
proceed under this section if-- 25
(a) the prosecution consents; and 26
(b) it is satisfied that-- 27
(i) there has been lodged in court a form that includes, or has 28
attached, a list of other offences with which the offender has 29
been charged but not convicted; and 30
101
Penalties and Sentences
(ii) a copy of the form has been given to the offender; and 1
(iii) in all the circumstances of the case it is proper to do so. 2
(2) The court may take all or any of the offences contained in the list 3
mentioned in subsection (1)(b)(i) into account if the offender-- 4
(a) is represented by counsel or a solicitor; and 5
(b) pleads guilty to the offences; and 6
(c) asks that they be taken into account by the court in imposing 7
sentence for the offence of which the person has been convicted. 8
(3) The court must not impose a sentence that is more than the 9
maximum sentence that may be imposed for the offence of which the 10
person has been convicted. 11
(4) The court must certify on the form mentioned in subsection (1)(b)(i) 12
the offences mentioned in the list that have been taken into account in 13
imposing sentence on the offender. 14
(5) Subject to subsection (6), proceedings or further proceedings for 15
offences contained in the certification mentioned in subsection (4) cannot be 16
taken against the offender. 17
(6) Proceedings or further proceedings mentioned in subsection (5) may 18
be taken if the court's decision is quashed or set aside. 19
(7) If the court's decision is quashed or set aside, an admission of guilt 20
for an offence made by the offender for the purposes of this section is not 21
admissible in evidence-- 22
(a) in proceedings or further proceedings taken against the offender; 23
or 24
(b) in proceedings or further proceedings for the offence if the 25
offence was not taken into account under this section in imposing 26
sentence. 27
(8) Subject to section 35(4), an offence taken into account under this 28
section in imposing sentence on an offender for another offence must not, 29
because it was taken into account, be regarded for any purpose as an offence 30
of which the offender has been convicted. 31
(9) If, under this section, an offence is taken into account in imposing 32
sentence on an offender for another offence, then, in criminal proceedings-- 33
102
Penalties and Sentences
(a) if reference may lawfully be made to the fact that the person was 1
convicted of the other offence--reference may also be made to 2
the fact that the first offence was taken into account; and 3
(b) if evidence may lawfully be given of the fact that the offender 4
was convicted of the other offence--evidence may also be given 5
of the fact that the first offence was taken into account. 6
(10) The fact that an offence was taken into account may be proved in the 7
same way as the conviction for the offence in relation to which it was taken 8
into account may be proved. 9
(11) Subsection (8) has effect despite subsection (9). 10
Court may release offender 11
Magistrates
If a Magistrates Court convicts an offender of an offence 12
Clause190.(1)
relating to property, it may release the offender without imposing any 13
sentence if the offender pays to the person entitled to the property the 14
amount that the court orders. 15
(2) The amount mentioned in subsection (1)-- 16
(a) is to be for damages assessed by the court; and 17
(b) may include costs. 18
of order under s.190 19
Effect
If an offender mentioned in section 190(1) pays the amount 20
Clause191.(1)
ordered by the court, the person aggrieved cannot take civil proceedings 21
against the offender for damages arising out of a cause of action that gave 22
rise to the damages mentioned in section 190(2)(a). 23
(2) The order made is taken to be a sentence for the purposes of-- 24
(a) section 7; and 25
(b) an Act that gives a right of appeal from an order made by a 26
Magistrates Court. 27
103
Penalties and Sentences
Court to assess value of property 1
Magistrates
If a Magistrates Court imposes a penalty for an offence on the 2
Clause192.
basis of-- 3
(a) the value of property taken, killed or destroyed; or 4
(b) the amount of damage done to property; 5
the value or amount must be assessed in money by the court. 6
of value or amount assessed under s.192 7
Payment
Clause193.(1) If the value or amount mentioned in section 192 is recovered, 8
it must be paid-- 9
(a) to the person aggrieved; or 10
(b) if the person aggrieved is unknown or the property is public 11
property--to the Consolidated Fund or to the relevant public 12
authority, as the case may be. 13
(2) If a Magistrates Court under section 192 imposes a penalty on several 14
offenders for a single offence-- 15
(a) the person aggrieved must not be paid more than the value or 16
amount assessed under section 192; and 17
(b) any amount that is left after paying the assessed value or amount 18
to the person aggrieved must be paid to the Consolidated Fund. 19
of property 20
Restoration
If an offender is convicted on indictment on a charge of 21
Clause194.(1)
which the unlawful obtaining of property by the offender is an element, 22
then, on the complaint of-- 23
(a) the owner of property; or 24
(b) a person who is legally entitled to possession of the property; 25
the court may order the property to be restored to the owner or person. 26
(2) The order-- 27
(a) may be enforced as a judgment; and 28
104
Penalties and Sentences
(b) is binding on the offender, and any person claiming through the 1
offender, as determining the ownership of the property; 2
but, as regards any other person, has the effect only of changing the 3
possession of the property, and does not affect any right of property or right 4
of action. 5
(3) In a case to which subsection (1) applies, the court may order that any 6
personal property-- 7
(a) that is found in the offender's possession; and 8
(b) that appears to the court to have been obtained, directly or 9
indirectly, from the unlawful obtaining mentioned in subsection 10
(1); 11
be delivered to the person who appears to the court to be entitled to the 12
personal property. 13
(4) This section does not apply to a valuable security if it appears that-- 14
(a) the security has been paid or discharged in good faith by a person 15
liable to make payment of the security; or 16
(b) if the security is a negotiable instrument--the security has been 17
taken or received by transfer or delivery in good faith by a person 18
for a valuable consideration without notice and the person did not 19
have reasonable cause to suspect that the security had been 20
unlawfully obtained. 21
(5) In subsection(4)-- 22
"valuable security" includes any document that-- 23
(a) is the property of any person; and 24
(b) is evidence of the ownership of any property or of the right to 25
recover or receive any property. 26
orders 27
Passport
Clause195.(1) If an offender is convicted of an offence and the court records 28
a conviction, it may make 1 or more of the orders mentioned in subsection 29
(2) in addition to any other order it may make under this Act. 30
105
Penalties and Sentences
(2) An order made under subsection (1) may order that the offender-- 1
(a) must remain in Australia or the State; or 2
(b) must not apply for, or obtain, an Australian passport; or 3
(c) must surrender any passport held by the offender. 4
(3) An offender who contravenes an order under subsection (1) commits 5
an offence. 6
Maximum penalty--imprisonment for 2 years. 7
(4) An order under subsection (1) stays in force for the duration of the 8
sentence (whether or not the sentence is one that involves, in whole or part, 9
a term of imprisonment). 10
(5) The court may, by order, amend an order under subsection (1). 11
(6) If the court makes an order under subsection (1) or (5), the proper 12
officer of the court must, as soon as practicable, give a copy of the order to 13
the Secretary to the department of the Commonwealth responsible for 14
matters arising under the Passports Act 1938 of the Commonwealth. 15
(7) If an order under subsection (1) states that the offender must 16
surrender any passport held by the offender-- 17
(a) the passport must be given to the proper officer of the court; and 18
(b) the proper officer must cause the passport to be kept in such 19
custody as the proper officer considers appropriate until-- 20
(i) the passport must be returned under subsection (8); or 21
(ii) the authority that issued the passport requests its return; 22
whichever happens first. 23
(8) If the passport is still in the custody of the proper officer of the court 24
when the order under subsection (1) finishes, the proper officer must cause 25
it to be returned to the offender. 26
(9) This section does not affect any other powers of the court. 27
28
Regulations
The Governor in Council may make regulations for the 29
Clause196.
purposes of this Act. 30
106
Penalties and Sentences
PART 12--TRANSITIONAL 1
of Ch.64A of Criminal Code and continuation of s.659D for 2
Repeal
certain purposes 3
Clause197.(1) Chapter 64A of the Criminal Code is repealed. 4
(2) Despite the repeal of Chapter 64A of the Criminal Code, section 5
659D of the Criminal Code continues to apply for the purpose only of being 6
authority for a person ordered to be detained under section 659D to continue 7
to be detained until finally dealt with under this Part. 8
(3) If, on the commencement of this section, an application has been 9
made under section 659G of the Criminal Code and not finally dealt with, 10
the applicant is to be sentenced under this Act for the offence for which the 11
person was declared to be an habitual criminal. 12
detained under CH.64A of Criminal Code 13
Offenders
Clause198.(1) If, on the commencement of this section, an offender-- 14
(a) is being; or 15
(b) at the expiry of the offender's sentence--is to be; 16
detained under Chapter 64A of the Criminal Code during Her Majesty's 17
pleasure the offender must be brought before the Supreme Court, and 18
sentenced under this Act, within 6 months after the commencement. 19
(2) A sentence under subsection (1)-- 20
(a) takes the place of the detention under section 659D of the 21
Criminal Code; and 22
(b) is in addition to any other sentence imposed under Chapter 64A 23
of the Criminal Code; and 24
(c) is to start at the end of any other sentence mentioned in paragraph 25
(b) that is being served at the commencement of this section. 26
(3) On a sentence being imposed under subsection (1), the person in 27
charge of the place where the offender is detained must release the offender 28
if, and as, directed by the Supreme Court. 29
107
Penalties and Sentences
for consideration 1
Matters
In determining whether to impose sentence under Part 10 or 2
Clause199.(1)
another provision of this Act on an offender mentioned in section 198(1), 3
the Supreme Court must consider whether the offender has reformed from 4
when sentence was imposed under Chapter 64A of the Criminal Code. 5
(2) The Supreme Court may direct that such persons as the court 6
considers necessary make inquiry to ascertain whether the offender has 7
reformed as mentioned in subsection (1). 8
(3) The inquiry is to be made-- 9
(a) in the way that is directed by the Supreme Court; and 10
(b) to find out whether the provisions of Part 4 of the Mental Health 11
Act 1974 apply; and 12
(c) by reference to-- 13
(i) the evidence before the court at the trial and sentence of the 14
offender or when the offender was declared to be an habitual 15
criminal; and 16
(ii) such other records relating to the offender as the persons 17
making the inquiry consider are necessary to refer. 18
(4) A report on the inquiry is to be made to the Supreme Court on oath 19
or affirmation. 20
(5) A report under subsection (4) is in addition to any other evidence that 21
may be placed before the Supreme Court. 22
(6) The offender is entitled to-- 23
(a) cross-examine the persons who made a report under subsection 24
(4) and any other witnesses; and 25
(b) call evidence in rebuttal of their report and any other evidence. 26
(7) Section 5.1(1) of the Health Services Act 1991 does not apply to an 27
officer, employee or agent of a Regional Health Authority within the 28
meaning of the Health Services Act 1991 who gives a report or gives 29
information to the Supreme Court for the purposes of this Part. 30
108
Penalties and Sentences
Court to be advised 1
Supreme
Within 2 months after the commencement of section 198, the 2
Clause200.
Commission must advise the Supreme Court of the names and full 3
particulars of offenders who are being detained during Her Majesty's 4
pleasure under section 659D of the Criminal Code. 5
of offender mentioned in s.198(1) 6
Sentence
The Supreme Court may sentence an offender mentioned in 7
Clause201.
section 198(1) under this Act as if the court had just convicted the offender 8
of the offence for which the offender was declared to be an habitual 9
criminal. 10
of Part 10 11
Application
If a sentence under Part 10 may be, or is, imposed on an 12
Clause202.
offender mentioned in section 198(1), Part 10 applies to the offender with 13
the modifications that the Supreme Court considers just and appropriate. 14
Court may give directions 15
Supreme
The Supreme Court may give directions that it considers are 16
Clause203.
necessary for the purposes of section 198 to-- 17
(a) the Director of Prosecutions; and 18
(b) the Commission; and 19
(c) if an offender mentioned in that section is granted legal aid for the 20
purposes of that section--the Legal Aid Commission. 21
PART 13--MISCELLANEOUS 22
transitional provisions 23
General
This Act applies to any sentence imposed after the 24
Clause204.(1)
commencement of this section, irrespective of when the offence was 25
109
Penalties and Sentences
committed. 1
(2) An offender in relation to whom a sentence is in force immediately 2
before the commencement of this section continues to be subject to the 3
requirements of the sentence in all respects as if this Act had not been 4
enacted. 5
(3) A sentence mentioned in subsection (2) may be amended, and any 6
failure to comply with it may be dealt with, under this Act as it if were a 7
sentence imposed after the commencement of this section. 8
(4) Subsections (2) and (3) do not apply to an offender mentioned in 9
section 198(1). 10
(5) For the purposes of this section, a sentence imposed by an appeal 11
court after the commencement of this section, on setting aside a sentencing 12
order made before the commencement, is taken to have been imposed at the 13
time the original sentencing order was made. 14
regulations 15
Transitional
The Governor in Council may make regulations with respect to 16
Clause205.
any matter for which-- 17
(a) it is necessary or convenient to facilitate the transition from the 18
operation of the Acts repealed or amended by this Act to the 19
operation of this Act; and 20
(b) this Act does not make provision or sufficient provision. 21
of Penalty Units Act 22
Repeal
Clause206. The following Acts are repealed-- 23
Penalty Units Act 1985; 24
Penalty Units Amendment Act 1988. 25
amended 26
Acts
The Acts mentioned in the Schedule are amended as set out in 27
Clause207.
the Schedule. 28
110
Penalties and Sentences
CHEDULE 1
¡S
ONSEQUENTIAL AND OTHER AMENDMENTS 2
C
section 207 3
CTS INTERPRETATION ACT 1954 4
´A
1. Section 20(3)-- 5
omit, insert-- 6
`(3) This section does not affect the operation of-- 7
(a) section 11 of the Criminal Code in its application to punishments 8
on charges in the provisions of the Code; or 9
(b) section 180 of the Penalties and Sentences Act 1992.'. 10
2. Section 46-- 11
omit, insert-- 12
`Bodies corporate 13
`46. A provision of an Act relating to offences punishable on indictment 14
or summary conviction applies to bodies corporate as well as individuals.'. 15
CORONERS ACT 1958 16
´
1. Section 7(1)(a)(viii)-- 17
omit. 18
111
Penalties and Sentences
SCHEDULE (continued)
ORRECTIVE SERVICES ACT 1988 1
´C
1. Long title-- 2
omit `, the making of probation orders, community service orders and 3
fine option orders'. 4
2. Section 10 (definition "community service order")-- 5
omit `made under Part 5', 6
insert `within the meaning of the Penalties and Sentences Act 1992'. 7
3. Section 10 (definition "fine option order")-- 8
omit `made under Part 5', 9
insert `within the meaning of the Penalties and Sentences Act 1992'. 10
4. Section 10 (definition "probation order")-- 11
omit `made under Part 5', 12
insert `within the meaning of the Penalties and Sentences Act 1992'. 13
5. Section 10 (definition "probation period")-- 14
omit. 15
6. Section 10 (definition "probationer")-- 16
omit. 17
7. Section 90(1) after `detention'-- 18
insert `under this Act or the Penalties and Sentences Act 1992'. 19
112
Penalties and Sentences
SCHEDULE (continued)
8. Section 165(1)-- 1
omit, insert-- 2
`(1) Subject to section 166, the Queensland Community Corrections 3
Board may, by written order, direct that-- 4
(a) a prisoner who-- 5
(i) is serving a term of imprisonment (including a term of 6
imprisonment for life); or 7
(ii) is serving a term of imprisonment imposed under section 8
173(1)(b) of the Penalties and Sentences Act 1992; or 9
(b) a prisoner who is being detained in an institution for a period 10
fixed by a Judge under Part 4 of the Criminal Law Amendment 11
Act 1945; 12
be released on parole on the date specified in the order. 13
`(1A) Subject to section 166, a regional community corrections board 14
may, by written order, direct that a prisoner who is serving a term of 15
imprisonment not longer than 5 years be released on the date specified in 16
the order. 17
`(1B) A prisoner in relation to whom a parole order is made under 18
subsection (1) or (1A) must be released on the date specified in the order.'. 19
9. Section 165(2)-- 20
omit `referred to in paragraph (a)(i) of subsection (1)', 21
insert `mentioned in subsection (1)(a)(i)'. 22
10. Section 165(3)-- 23
omit `act pursuant to paragraph (b) of subsection (1)', 24
insert `make a parole order in relation to a prisoner'. 25
113
Penalties and Sentences
SCHEDULE (continued)
11. Section 166(1)-- 1
omit `Subject to subsections (3) and (4), a prisoner to whom paragraph 2
(a)(i) of section 165(1) refers', 3
insert `Subject to subsection (4) of this section and section 157 of the 4
Penalties and Sentences Act 1992, a prisoner mentioned in section 5
165(1)(a)(i)'. 6
12. Section 166(2)-- 7
omit, insert-- 8
`(2) A prisoner mentioned in section 165(1)(b) is not eligible for release 9
on parole until the prisoner has been detained for 50% of the period for 10
which the prisoner was directed to be detained.'. 11
13. Section 166(3)-- 12
omit 13
14. Section 166(4) (first sentence)-- 14
omit `referred in paragraph (a)(i) of section 165(1)', 15
insert `mentioned in section 165(1)(a)'. 16
15. Section 166(4) (second sentence)-- 17
omit `referred in paragraph (b) of section 165(1)', 18
insert `mentioned in section 165(1A)'. 19
16. Section 175(1)(a)(i)-- 20
omit, insert-- 21
`(i) be under the supervision of a community correctional 22
officer-- 23
114
Penalties and Sentences
SCHEDULE (continued)
(A) if the prisoner is a prisoner mentioned in section 1
165(1)(a)--for such period, that does not go past the 2
end of the prisoner's term of imprisonment, as is 3
determined by the board making the order; or 4
(B) if the prisoner is a prisoner mentioned in section 5
165(1)(b)--for the period that the prisoner was directed 6
to be detained; and'. 7
17. Part 5 (other than sections 251, 255 and 256)-- 8
omit. 9
18. Before section 251-- 10
insert-- 11
`PART 6--MISCELLANEOUS'. 12
19. Section 251-- 13
renumber as section 197. 14
20. Section 255 after `Act'-- 15
insert `or of Division 2 of Part 4 or Part 5 or 7 of the Penalties and 16
Sentences Act 1992'. 17
21. Section 255-- 18
renumber as section 198. 19
22. Section 256(1)(b) after `under'-- 20
insert `this Act or'. 21
115
Penalties and Sentences
SCHEDULE (continued)
23. Section 256-- 1
renumber as section 199. 2
24. After section 261 (heading `PART VI--MISCELLANEOUS')-- 3
omit. 4
25. Section 262-- 5
renumber as section 200. 6
26. Section 263-- 7
renumber as section 201. 8
27. Section 264-- 9
renumber as section 202. 10
28. Section 265-- 11
renumber as section 203. 12
29. Section 266-- 13
renumber as section 204. 14
30. Section 267(1)-- 15
omit, insert-- 16
`(1) This Act does not affect the royal prerogative of mercy.'. 17
31. Section 267-- 18
renumber as section 205. 19
116
Penalties and Sentences
SCHEDULE (continued)
32. Section 268-- 1
renumber as section 206. 2
33. Section 269-- 3
renumber as section 207. 4
34. Section 270-- 5
renumber as section 208. 6
CORRECTIVE SERVICES (ADMINISTRATION)ACT 7
1988 8
1. Section 61(3)-- 9
omit `Offenders Probation and Parole Act 1980', 10
insert `Penalties and Sentences Act 1992;'. 11
CRIMES (CONFISCATION OF PROFITS) ACT 1989 12
1. Section 3(2)(a)-- 13
omit, insert-- 14
`(a) the person has been convicted of the offence (whether or not 15
under section 12 of the Penalties and Sentences Act 1992 the 16
conviction is recorded);'. 17
117
Penalties and Sentences
SCHEDULE (continued)
CRIMINAL CODE 1
´
1. Chapter 4-- 2
omit, insert-- 3
`CHAPTER 4--ROYAL PREROGATIVE OF 4
MERCY 5
`Royal prerogative of mercy 6
`18. This Code does not affect the royal prerogative of mercy.'. 7
2. Section 37-- 8
omit `section nineteen of this Code', insert `this Code or any other law or 9
is liable to an indefinite sentence under Part 10 of the Penalties and 10
Sentences Act 1992'. 11
3. Section 54A-- 12
omit `section 19 of this Code', insert `this Code or any other law or is 13
liable to an indefinite sentence under Part 10 of the Penalties and Sentences 14
Act 1992'. 15
4. Section 81-- 16
omit `section nineteen of this Code', insert `this Code or any other law or 17
is liable to an indefinite sentence under Part 10 of the Penalties and 18
Sentences Act 1992'. 19
5. Section 82-- 20
omit `section nineteen of this Code', insert `this Code or any other law or 21
is liable to an indefinite sentence under Part 10 of the Penalties and 22
Sentences Act 1992'. 23
118
Penalties and Sentences
SCHEDULE (continued)
6. Section 145-- 1
omit. 2
7. Section 299-- 3
omit. 4
8. Section 305-- 5
omit `section nineteen of this Code', insert `this Code or any other law or 6
is liable to an indefinite sentence under Part 10 of the Penalties and 7
Sentences Act 1992'. 8
9. Section 328C-- 9
omit. 10
10. Section 650 (second sentence)-- 11
omit. 12
11. Section 651-- 13
omit. 14
12. Section 656-- 15
omit. 16
13. Section 657-- 17
omit. 18
119
Penalties and Sentences
SCHEDULE (continued)
14. Section 657A-- 1
omit. 2
15. Section 658-- 3
omit. 4
16. Section 668 (last sentence)-- 5
omit. 6
17. Section 670-- 7
omit `The operation', insert `Subject to section 134 of the Penalties and 8
Sentences Act 1992, the operation'. 9
18. Section 685-- 10
omit. 11
19. Section 685A-- 12
omit. 13
JUSTICES ACT 1886 14
´
1. Section 161-- 15
omit `the Penalty Units Act 1985', 16
insert `the Penalties and Sentences Act 1992'. 17
120
Penalties and Sentences
SCHEDULE (continued)
2. Section 163-- 1
omit `the Penalty Units Act 1985', 2
insert `the Penalties and Sentences Act 1992'. 3
3. Section 163A-- 4
omit `the Penalty Units Act 1985', 5
insert `the Penalties and Sentences Act 1992'. 6
4. Section 165-- 7
omit. 8
5. Section 166-- 9
omit. 10
6. Section 167-- 11
omit `the Penalty Units Act 1985', 12
insert `the Penalties and Sentences Act 1992'. 13
7. Section 173-- 14
(1) omit `1 penalty unit', insert `165 penalty units'. 15
(2) omit `the Penalty Units Act 1985', 16
insert `the Penalties and Sentences Act 1992'. 17
121
Penalties and Sentences
SCHEDULE (continued)
UVENILE JUSTICE ACT 1992 1
´J
1. Section 5 (definition "penalty unit")-- 2
omit `Penalty Units Act 1985', insert `Penalties and Sentences Act 3
1992'. 4
2. After section 98(2)-- 5
insert-- 6
`(3) Section 188 of the Penalties and Sentences Act 1992 applies in 7
relation to a Childrens Court Judge.'. 8
3. Section 117(2)-- 9
omit `Section 651 of the Criminal Code', 10
insert `Section 189 of the Penalties and Sentences Act 1992'. 11
AGRANTS, GAMING AND OTHER OFFENCES 12
´V
ACT 1931 13
1. Section 50-- 14
omit. 15
2. Section 51-- 16
omit. 17
© State of Queensland 1992
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