Criminal Law and ProcedureLWB 232

Week 13 - Sentencing dispositions

Sentencing dispositions: Non-custodial ordersUnconditional discharges - Pt 3 Div 1

– s 19(1)(a)

– Conviction must not be recorded: s 16

– See s 18 and matters to which court must have regard

Recognisance on condition that offender be of good behaviour - Pt 3 Div 1

– s 19(1)(b) (+ matters above apply)

– See also recognisances for property offences: Div 2

Cf recognisances under s 32 - court has discretion whether to record conviction - see R v Fullalove

FinesPart 4 Can be in addition to, or instead of other sentence Conviction is discretionary Can pay by instalments: s 50, or time to pay: s 51 Imprisonment in default of payment: s 182A Penalties

and Sentences Act 1992 (Qld) (note change from Justices Act)

Penalty units - s 5(1) PSA $75 - subject to change Fine option orders - community service - See Pt 4 Div 2

Note new fine enforcement

State Penalties Enforcement Act 1999 due to come into effect in late 2000

Applies to give alternative enforcement methods for payment of fines - trying to keep fine defaulters from going to prison.

Probation ss 90 - 99 PSA Conviction discretionary Released under supervision of Corrective Services

Commission officer Must be not less than 6 mths, not more than 3 yrs Can also include up to 6 mths imprisonment Offender must report and receive visits, also special

conditions eg psychiatric help, restitution and compensation

Community service ss 100 - 108 Conviction discretionary Performs unpaid community service under supervision

of Commission officer at times specified by officer Total hours not less than 40, not more than 240 Must be performed within one year of order Can order probation plus community service Can contain special conditions including restitution

and compensation

Intensive correction orders - Pt 6 Must order conviction May make order if offender sentenced to jail for 1 year

or less Serves sentence by way of intensive correction in

community Receives visits twice a week from Commission officer Must reside at community residential facilities if

directed, plus other conditions including restitution and compensation

Breach of community based orders Part 7 Order can be revoked: s 120 Offender may then be re-sentenced: s 121 -

court then takes into account extent of compliance

Part 7 Div 2 - Offence to contravene community based order - see s 123(1)

Disqualification of driver’s licence See s 187 PSA Offence must be in connection with, or arising out

of, the driving of a mv by the offender: s 187(1)(a) Satisfied in the interests of justice that offender be

disqualified See Nhu Ly - disqualification set aside

Orders of suspended imprisonment Part 8 Court must record a conviction Section 144:

– applies if court sentences to 5 yrs jail or less– may suspend all or part– court must state operational period - not less than

term of imprisonment imposed; not more than 5 yrs Breached if commits offence punishable by

imprisonment during operational period

Custodial sentences - Imprisonment Part 9 Recall s 9(2)(a) - last resort; and s 10 - Judge must give

reasons Must record a conviction - s 152 May be sentenced to lesser period than specified in offence Served concurrently unless ordered s 158: if offender in custody from arrest, court may order

sentence has effect from then s 161: time held in presentence custody to be deducted

Concurrent/Cumulative sentences Concurrent unless otherwise ordered: s 155 PSA Cumulative: s 156 Clements:

– apply totality principle - overall impact– usually concurrent where related offences over short

time span– cumulative only when clear and compelling reason

for additional penalty(also s 156A)

Indefinite detention Part 10 Cf fixed term imprisonment s 163: applies where convicted of “violent

offence”, see def s 162 Court must state nominal sentence: s 163(2) Offender must be “serious danger to community”:

s 163(3) - See R v Wilson (per Pincus JA only) Court must review sentence after 50% of nominal

sentence served, or 13 yrs if life was nominal sentence, then twice yearly

Serious Violent Offences (SVO) New Part 9A - Introduced July 1997 3 ways of declaring offender convicted of serious

violent offence:– (1) Convicted of offence in Schedule AND sentenced

to 10 years jail or more (automatic) (s 161A(a))

– (2) Convicted of offence in Schedule AND 5-10 years jail (discretion) (s 161B(3))

– (3) convicted of offence involving “serious violence” or “serious harm”and sentenced to imprisonment (discretion) (s 161B(4))

Discretion in s 161B(3)

Court should exercise discretion by using general principles in s 9(2) (not s 9(4)): R v Collins (18/9/98).

NB: This approach was recently approved in R v Robinson, ex parte Attorney-General (28/5/99)

SVO - remissions and parole

No remissions: s 161D (normally 1/3 sentence) s 166(1)(c) Corrective Services Act: cannot apply

for parole until served the lesser of 80% of sentence or 15 years. Cannot be reduced: s 157(7) Penalties and Sentences Act 1992 (Qld)

Parole Court can recommend early release on parole - s 157(2) - Qld

Community Corrections Board not obliged to follow Eligibility to apply: s 166 (1)

– life sentence 15 years (20 years for multiple murder)

– Other: after served 50% of sentence

– SVO: 80% Released under supervision of correctional officer If breach may suspend parole Cf remissions: may be entitled one third of sentence for good

behaviour (not SVO: s 161D) NB: new Corrective Services Bill 2000

Criminal compensation Part 3 Div 4 PSA

– Conviction optional– Compensation and restitution can be ordered even if

no additional penalty– Offender can be ordered to make restitution of

property, or pay compensation for loss to property or personal injury.

See also Criminal Offence Victims Act 1995 - criminal compensation for victims of crime (personal injury/death)

Other matters

Juveniles Confiscation of proceeds of crime Drug Rehabilitation (Court Diversion) Act

2000

See notes in Study Guide on these issues.

How to approach a sentencing question (1) If an appeal, discuss s 668D/668E or 669A and

establish grounds for appeal (2) Go through question issue by issue, discussing

applicable PSA provision and any relevant cases, reach conclusion on each point. Start with the issue not the law.

(3) Do NOT discuss all sentencing principles in s 9(2) and/or s 9(4), whether or not applicable. See point (3) above.

How to approach a question (cont) (4) Students are not required to have detailed

knowledge of how long a jail term should be etc. - emphasis is on principles.

(5) Do not discuss other issues such as criminal compensation, parole etc unless asked to do so