Sentencing Options for Adult Offenders

If an accused is found guilty at the conclusion of a hearing or trial, or if the defendant pleads guilty to the charge, the court is then required to “sentence” the person for the offence.

The options open in sentencing for any offence are found within the Penalties and Sentences Act. There are a number of sentences which can be imposed on an offender, either individually or in combination.

Together with any punishment to be imposed, the court must also consider whether to record a conviction against the offender. As can be seen below, this will sometimes depend on the punishment imposed.

Good Behaviour Order

The effect of such order is to obtain from the offender a written promise that the offender will behave and not violate the law for the period of the order. The order can be for a period of up to one year. If the offender commits a further offence during the period of the order, then when subsequently sentencing, the court can have regard to the fact that an order was in place and was breached by the commission of a new offence. Generally this will mean a heavier punishment than if there had not been a good behaviour order in place at the time of the new offence. When a good behaviour order is made, usually no conviction is recorded against the offender.

Fine

A fine can only be ordered if the court is satisfied the offender has the capacity to pay the fine. The court must examine the resources available and determine whether the offender can pay. A fine can be paid over a nominated period of time, for example, by instalments. If the offender does not pay the fine, then it is possible for the fine order to be cancelled and the offender to be ordered to perform unpaid community service.

The court has a discretion whether or not to record a conviction when ordering a fine to be paid.

Probation

An offender can be ordered to perform probation as supervised by the Department of Corrective Services. Probation is essentially a period of government monitoring or supervision, usually by way of regular visits. An offender must consent to being on probation before it will be imposed. The probation period can be for up to three years for most offences.

A probation order normally contains conditions concerning the residence, employment and future behaviour of the offender. The order can also contain special conditions such as insisting the offender submit to medical or psychological treatment, and drug or alcohol rehabilitation or counselling.

The sentencing magistrate or judge has a discretion whether or not to record a conviction when imposing probation.

Community Service

An offender can be ordered to perform community service as part of a sentence for an offence. Community service can only be imposed if the offender consents. It is simply unpaid work in the community and a variety of types of work are available. The court can order that the offender perform unpaid community work of a minimum of 40 hours up to 240 hours.  Generally the community service has to be completed within a year.

Though a conviction may be imposed with an order of community service, the magistrate or judge has a discretion not to record a conviction.

Intensive Corrections Orders

An Intensive Corrections Order (ICO) is granted under the Penalties &Sentences Act 1992. The court can:

  • make an order for up to 12 months; and
  • order that the offender serve the remainder of their sentence in prison if they are found to have contravened the requirements of their order; and
  • specify the amount of hours per week (up to a maximum of 12 hours) of community service and program attendance.

Suitability

  • Offenders who have not yet been sentenced to imprisonment, or who may have served several short sentences, or
  • First or second time offenders convicted of more serious offences, or
  • Offenders with a high risk of reoffending.
General requirements

The offender must:

  • not commit another offence during the period of the order;
  • report to an authorised corrective services officer on admission and thereafter report and/or receive visits at least twice a week;
  • take part in counselling, attend programs and perform community service for up to 12 hours per week;
  • reside if directed at a nominated community residential facility for up to seven days;
  • notify every change of employment or residence within two business days;
  • not leave Queensland without permission, and only under exceptional circumstances, and
  • must comply with every reasonable direction of an authorised corrective services officer.

Intensive Drug Rehabilitation Orders

The Drug Rehabilitation (Court Diversion) Act 2000 empowers the Drug Court to divert offenders from imprisonment to treatment by making an intensive drug rehabilitation order (IDRO).  The order involves frequent appearances before the Drug Court for assessment of progress, as well as attending and completing rehabilitation programs and treatment as directed.

Regular drug testing also assists in monitoring abstinence. Each offender’s sentence is reviewed on conclusion of his or her drug rehabilitation program. Drug courts are located at Beenleigh, Southport, Ipswich, Townsville and Cairns.

Suitability for an IDRO may exist for offenders who:

  • are dependent on illicit drugs;
  • have an offence that does not involve physical violence or sexual aspects;
  • have no outstanding warrants or charges for physical or sexual assault;
  • have pled guilty to the offences;
  • are facing a possibility of imprisonment;
  • are not currently serving a period of imprisonment; in custody or on parole;
  • show a willingness to participate in the program; and
  • live within the area defined by the jurisdiction of the drug court.

General requirements:

  • conviction recorded;
  • suspended prison sentence imposed;
  • must not re-offend during the period of the order;
  • must notify change of residence or employment within two business days;
  • must not leave Queensland without permission;
  • must comply with all reasonable directions;
  • must perform community service as directed; and
  • must submit to urinalysis as directed.

Rehabilitation program requirements are divided into three phases and individually tailored for each offender, and may include:

  • abstinence from non-prescribed drugs and prescribed drugs unless currently medically required;
  • residence requirements;
  • drug counselling;
  • Regular attendance at case management appointments with QCS and Queensland Health;
  • attendance at drug court to present weekly journal;
  • attendance at specified programs;
  • ‘no-go-zones’;
  • person bans;
  • restitution;
  • detoxification; and
  • residential rehabilitation.

Imprisonment

Suspended Sentences

If a court sentences you to a term of imprisonment (jail) for 5 years of less, the court can suspend your sentence for up to 5 years. The court may suspend your sentence immediately so you do not go to jail at all or partially, after you serve a period of time in jail.

If you are charged with an offence while on a suspended sentence, you should seek legal advice immediately.

Court Ordered Parole

Court ordered parole provides an offender with a fixed parole release date for offenders sentenced to three years imprisonment or less, who were not convicted of a sex offence or an offence declared to be a serious violent offence.

Requirements:

  • there should only be one parole release date or parole eligibility date in existence for an offender;
  • only offenders serving a period of three years imprisonment or less are entitled to court ordered parole; and

If an offender is sentenced to actual imprisonment for offences committed during a Parole Order, the Parole Order is automatically cancelled.

Parole Eligibility Date only

Where an offender is sentenced to a term of imprisonment of more than 3 years, the court may only set a Parole Eligibility Date. This means that an offender will need to make an Application for Parole to the Department of Corrections. Applications for parole can take between 4 to 6 months to be considered. It is therefore usually prudent to submit an application at least 4 months prior to the Parole Eligibility Date.

Restitution and Compensation

The court can also order that a child pay restitution and/or compensation. A child may be ordered to pay restitution when he or she has damaged, broken, or stolen property from a victim. Compensation may be ordered when the child has caused personal injury.

If you have any questions or would like to speak with one of our solicitors, please contact us.

September 16th, 2015 See more in: Criminal Law