Penalties and Sentences Act 1992

collecting into a single Act general powers of courts to sentence offenders; and

providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration; and

encouraging particular offenders to cooperate with law enforcement agencies in proceedings or investigations about major criminal offences; and

promoting consistency of approach in the sentencing of offenders; and

providing fair procedures—

for imposing sentences; and

for dealing with offenders who contravene the conditions of their sentence; and

providing sentencing principles that are to be applied by courts; and

making provision so that offenders are not imprisoned for non-payment of fines without the opportunity of obtaining a fine option order; and

promoting public understanding of sentencing practices and procedures; and

generally reforming the sentencing laws of Queensland; and

providing for the imposition of an offender levy.

a community justice group established under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984, part 4, division 1, for the offender’s community; or

a group of persons within the offender’s community, other than a department of government, that is involved in the provision of any of the following—

information to a court about Aboriginal or Torres Strait Islander offenders;

diversionary, interventionist or rehabilitation activities relating to Aboriginal or Torres Strait Islander offenders;

other activities relating to local justice issues; or

a group of persons made up of elders or other respected persons of the offender’s community.

for part 2A—see section 15AA; or

for part 8A—see section 151B; or

for part 9D, division 3, subdivision 5—see section 161ZV.

the Attorney-General; and

the director of public prosecutions; and

another person, other than a police officer, appearing for the State.

an offence against the Criminal Code, section 469 that is punishable under section 469, clause 9; or

an offence against the Summary Offences Act 2005, section 17(1).

the removal of graffiti; or

work related or incidental to the work mentioned in paragraph (a); or

other work related to or incidental to the clean up of public places whether or not it relates to the removal of graffiti.

is declared to be a guideline judgment by the Court of Appeal; and

contains guidelines to be taken into account by courts in sentencing offenders, being guidelines applying—

generally; or

to a particular court or class of court; or

to a particular offence, or class of offence, including under a Commonwealth Act; or

to a particular penalty or class of penalty; or

to a particular class of offender.

an urban community; or

a rural community; or

a community on DOGIT land under the Aboriginal Land Act 1991 or the Torres Strait Islander Land Act 1991.

for a term of imprisonment suspended under section 144(1)—means the period stated under section 144(5) in relation to the term; or

for the custodial part of a treatment order under part 8A—see section 151B.

for part 3, division 3AA—see section 33AA(a); or

for part 4, division 2—see section 52.

ordered to be served concurrently or cumulatively; or

imposed at the same time or different times;

for part 5, division 2, subdivision 2—see section 108A; or

for part 9D—see section 161N.

for an order made or certificate issued by the Supreme Court—the sheriff; or

for an order made or certificate issued by the District Court—any registrar; or

for an order made or certificate issued by a Magistrates Court—any clerk of the court.

in the context of a proceeding before, or an application to, a Magistrates Court—a police officer or Crown prosecutor; or

otherwise—a Crown prosecutor.

for part 3B, see section 43G; or

for part 5, division 2, subdivision 2, see section 108A.

repair;

conceal;

cover;

attempt to remove.

means a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded; and

for part 10A—includes an order made by a court to deal with the offender for an offence instead of passing sentence.

the imprisonment an offender is serving, or is liable to serve—

for default in payment of a single fine; or

for failing to comply with a single order of a court; and

for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term.

community service required to be performed under a community service order; or

graffiti removal service required to be performed under a graffiti removal order.

is required to perform under a graffiti removal order; and

has not performed.

is required to perform under a community service order or a graffiti removal order; and

has not performed.

An authorised corrective services officer means a person who—

is—

a corrective services officer under the Corrective Services Act 2006; or

an employee of a person or body engaged under that Act, section 272; and

is authorised by the chief executive (corrective services) for the relevant purpose.

In this section—

The value of a penalty unit is—

for the SPE Act or an infringement notice, other than an infringement notice for an offence against a law mentioned in paragraph (b), (c) or (d)—

the amount prescribed under section 5A; or

if no amount is prescribed—$110; or

for a local law, or an infringement notice for an offence against a local law, made by a local government prescribed under a regulation—$75; or

for a local law, or an infringement notice for an offence against a local law made by a local government to which paragraph (b) does not apply or made under clause 35 of the Alcan agreement—

the amount prescribed under section 5A; or

if no amount is prescribed—$110; or

for the Work Health and Safety Act 2011, the Electrical Safety Act 2002, the Safety in Recreational Water Activities Act 2011 or an infringement notice for an offence against any of those Acts—$100; or

in any other case, for this Act or another Act—

the amount prescribed under section 5A; or

if no amount is prescribed—$110.

If an Act expresses a penalty or other matter as a number (whether whole or fractional) of penalty units, the monetary value of the penalty or other matter is the number of dollars obtained by multiplying the value of a penalty unit by the number of penalty units.

However, if the monetary value of the penalty obtained under subsection (2) for an infringement notice is not a multiple of $1, the amount is rounded down to the nearest multiple of $1.

If an order of a court expresses a penalty or other matter as a monetary value, the number of penalty units is to be calculated by dividing the monetary value by the value of a penalty unit as at the time the order is made.

For the purposes of this or another Act a reference to a penalty of a specified number of penalty units is a reference to a fine of that number of penalty units.

In this section—

A regulation may prescribe the same monetary value of a penalty unit for section 5(1)(a)(i), (c)(i) and (e)(i).

The amount prescribed must not be more than the amount last prescribed under this section increased by—

if, on or before 31 March in a year in which the regulation is made, the Treasurer publishes in the gazette a percentage change to the amount last prescribed—that percentage; or

otherwise—3.5%.

If the amount worked out under subsection (2) is not a multiple of 5 cents, the amount must be rounded down to the nearest multiple of 5 cents.

For subsection (2), if an amount has not been prescribed under this section, the amount last prescribed is taken to be $110.

A regulation may only prescribe 1 increase for an amount for a financial year.

a child; or

a Childrens Court;

A reference in this Act to the court that made a community based order or fine option order or an original order within the meaning of section 52 includes—

if the order was made by the Supreme Court—any sittings of the Supreme Court in its criminal jurisdiction at any place in Queensland; or

if the order was made by a District Court—any sittings of a District Court in its criminal jurisdiction at any place in Queensland; or

if the order was made by a Magistrates Court—any Magistrates Court sitting at any place in Queensland; or

if the order was made by a Wardens Court—any Wardens Court sitting at any place in Queensland.

Subsection (1) applies even though the judge, magistrate, warden or justices constituting the court did not make the order in the first place.

A proper officer may delegate the proper officer’s powers under this Act to an officer of the public service (an officer) mentioned in subsection (2) if the officer is a justice.

If the proper officer is—

the sheriff—the powers may be delegated to an officer employed in the sheriff’s office or Magistrates Court registry; or

the registrar—the powers may be delegated to an officer employed in the District Court registry or Magistrates Court registry; or

the clerk of the court—the powers may be delegated to an officer employed in the Magistrates Court registry.

The only purposes for which sentences may be imposed on an offender are—

to punish the offender to an extent or in a way that is just in all the circumstances; or

to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

to deter the offender or other persons from committing the same or a similar offence; or

to recognise the harm done by the offender to a victim of the offence; or

to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

to protect the Queensland community from the offender; or

a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).

In sentencing an offender, a court must have regard to—

principles that—

a sentence of imprisonment should only be imposed as a last resort; and

a sentence that allows the offender to stay in the community is preferable; and

the maximum and any minimum penalty prescribed for the offence; and

the nature of the offence and how serious the offence was, including—

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

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

the extent to which the offender is to blame for the offence; and

any damage, injury or loss caused by the offender; and

the offender’s character, antecedents, age and intellectual capacity; and

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

regardless of whether there are exceptional circumstances, the probable effect that any sentence imposed would have on—

a person with whom the offender is in a family relationship and for whom the offender is the primary caregiver; and

a person with whom the offender is in an informal care relationship; and

if the offender is pregnant—the child of the pregnancy; and

the presence of any aggravating or mitigating factor concerning the offender; and

without limiting paragraph (g), whether the offender was a participant in a criminal organisation—

at the time the offence was committed; or

at any time during the course of the commission of the offence; and

without limiting paragraph (g), the following—

whether the offender is a victim of domestic violence;

whether the commission of the offence is wholly or partly attributable to the effect of the domestic violence on the offender;

the offender’s history of being abused or victimised; and

the prevalence of the offence; and

how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

time spent in custody by the offender for the offence before being sentenced; and

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

sentences already imposed on the offender that have not been served; and

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

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

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

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

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—

the offender’s relationship to the offender’s community; or

any cultural considerations, including the effect of systemic disadvantage and intergenerational trauma on the offender; or

any considerations relating to programs and services established for offenders in which the community justice group participates; and

the principle that the court should not refuse to make a community based order for the offender merely because of—

a physical, intellectual or psychiatric disability of the offender; or

the offender’s sex, educational level or religious beliefs; and

anything else prescribed by this Act to which the court must have regard; and

any other relevant circumstance.

However, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for any offence—

that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or

that resulted in physical harm to another person.

In sentencing an offender to whom subsection (2A) applies, the court must have regard primarily to the following—

the risk of physical harm to any members of the community if a custodial sentence were not imposed;

the need to protect any members of the community from that risk;

the personal circumstances of any victim of the offence;

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;

the nature or extent of the violence used, or intended to be used, in the commission of the offence;

any disregard by the offender for the interests of public safety;

the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;

the antecedents, age and character of the offender;

any remorse or lack of remorse of the offender;

any medical, psychiatric, prison or other relevant report in relation to the offender;

anything else about the safety of members of the community that the sentencing court considers relevant.

Subsections (3B) to (3D)—

apply in sentencing an offender for an offence of a sexual nature if the offender is determined to be of good character; but

apply in relation to the offender’s good character only to the extent the good character is based on 1 or more of the following—

a character reference for the offender;

the offender’s standing in the community;

the offender’s contributions to the community.

The court may treat the offender’s good character as a mitigating factor only if the good character is relevant to the court’s consideration of—

the offender’s prospects of rehabilitation; or

the risk of the offender reoffending.

However, the court may decide not to treat the offender’s good character as a mitigating factor, having regard to the nature of the offence and how serious the offence was, including—

any physical, mental or emotional harm done to the victim of the offence; and

the vulnerability of the victim.

If subsection (4) also applies in sentencing the offender, subsections (3B) and (3C) are subject to subsection (6A).

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—

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

the principles mentioned in subsection (2)(a) do not apply; and

the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.

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.

In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to—

the effect of the offence on the child; and

the age of the child; and

the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and

the need to protect the child, or other children, from the risk of the offender reoffending; and

any relationship between the offender and the child; and

the need to deter similar behaviour by other offenders to protect children; and

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

the offender’s antecedents, age and character; and

any remorse or lack of remorse of the offender; and

any medical, psychiatric, prison or other relevant report relating to the offender; and

anything else about the safety of children under 16 the sentencing court considers relevant.

However, for subsection (6)(h), if the offender is determined to be of good character, the court must not treat the good character as a mitigating factor if it assisted the offender in committing the offence.

In sentencing an offender for a child exploitation material offence, the court must have regard primarily to—

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

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

the offender’s conduct or behaviour in relation to the material, doll, robot or other object that the offence involved; and

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

the need to deter similar behaviour by other offenders to protect children; and

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

the offender’s antecedents, age and character; and

any remorse or lack of remorse of the offender; and

any medical, psychiatric, prison or other relevant report relating to the offender; and

anything else about the safety of children under 16 the sentencing court considers relevant.

However, for subsection (7)(d), if the offender is determined to be of good character, the court must not treat the good character as a mitigating factor if it assisted the offender in committing the offence.

Also, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender under part 9D, division 2.

If required by the court for subsection (2)(p), the representative must advise the court whether—

any member of the community justice group that is responsible for the submission is related to the offender or the victim; or

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.

In sentencing an offender, a court must not have regard to the following—

the offender levy imposed under section 179C;

whether or not the offender—

may become, or is, the subject of a dangerous prisoners application; or

may become subject to an order because of a dangerous prisoners application.

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.

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.

In determining the appropriate sentence for an offender convicted of an offence against the Criminal Code, section 349 or 352 committed against a child of 16 or 17 years, the court must treat the child’s age as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.

For subsection (9BA), in deciding whether there are exceptional circumstances, the court may have regard to the closeness in age between the offender and the child.

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.

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—

the nature of the previous conviction and its relevance to the current offence; and

the time that has elapsed since the conviction.

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.

In determining the appropriate sentence for an offender who is a victim of domestic violence, the court must treat as a mitigating factor—

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

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.

In determining the appropriate sentence for an offender convicted of a domestic violence offence that was committed against a child when the offender was an adult, the court must treat the fact that it is an offence against a child as an aggravating factor.

In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that either of the following circumstances apply as an aggravating factor—

during the commission of the offence a child was exposed to domestic violence;

the offence committed was also—

a contravention of any of the following under the Domestic and Family Violence Protection Act 2012—

a domestic violence order;

a police protection notice;

release conditions;

an interstate order;

a New Zealand order; or

a contravention of another order of a court or of an injunction.

Subsection (10F) applies if—

the court is sentencing an offender to whom subsection (2A) applies; and

the offender committed the offence while the other person mentioned in subsection (2A) was performing, or because the person had performed, the functions of the person’s office or employment.

In determining the appropriate sentence for the offender, the court must treat the fact that the offender committed the offence while the other person was performing, or because the person had performed, the functions of the person’s office or employment as an aggravating factor, unless the court considers it is not reasonable to do so because of the exceptional circumstances of the case.

A reference in subsection (10E) or (10F) to a person performing the functions of the person’s office or employment includes a reference to a person performing work—

in a relationship of employment; or

under a contract for services; or

under an appointment; or

on a voluntary or unpaid basis.

Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.

In this section—

an offence against the Classification of Computer Games and Images Act 1995, section 28 if the objectionable computer game is a child abuse computer game under the Act;

an offence against any of the following provisions of the Classification of Films Act 1991—

section 41(3) or 42(3) or (4);

section 43 if the offence involves a child abuse publication under the Act;

an offence against the Criminal Code, section 228A, 228B, 228C, 228D, 228DA, 228DB, 228DC, 228I or 228J.

the following provisions of the Criminal Code—

sections 302 and 305;

sections 303 and 310;

section 320;

section 323;

section 328A;

section 339; and

the Transport Operations (Road Use Management) Act 1995, section 83.

If a court imposes a sentence of imprisonment, including a suspended sentence of imprisonment, it must—

state in open court its reasons for the sentence; and

cause the reasons to be—

recorded in the transcript that is to be kept in the registry with the indictment; or

recorded in writing and kept in the office of the clerk of the court with the charge sheet; and

if the chief executive (corrective services) requests a copy of the reasons—cause a copy of the reasons to be forwarded to the chief executive (corrective services).

A sentence is not invalid merely because of the failure of the court to state its reasons as required by subsection (1)(a), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.

The court need not comply with subsection (1)(b) if the reasons are recorded under the Recording of Evidence Act 1962.