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