Being told that a criminal matter is proceeding to sentence can immediately raise questions about fines, imprisonment, a criminal record and what the court will take into account. The sentence ultimately imposed depends on much more than the offence itself. Queensland courts weigh the legislation, the circumstances of the offending, the person's individual circumstances and a range of other factors before reaching a decision.

David Cole is a Queensland criminal lawyer who advises and represents clients facing sentencing in Queensland.

Key takeaways

• Sentencing occurs after a person pleads guilty or is found guilty of an offence.
• Queensland courts consider both the seriousness of the offence and the offender's individual circumstances.
• The maximum penalty for an offence does not necessarily indicate the sentence that will be imposed.
• A guilty plea, criminal history, remorse, rehabilitation and other mitigating or aggravating factors may be relevant to sentencing.
• Queensland courts have a range of sentencing options, and imprisonment is only one possible outcome, although different principles and requirements can apply to certain offences.
• Preparation before sentencing can matter, including obtaining appropriate supporting material and making submissions about relevant circumstances.

What is sentencing in Queensland?

Sentencing is the process by which a Queensland court decides the penalty for a person who has pleaded guilty to, or been found guilty of, an offence. It is a separate stage from being charged, and separate again from a trial or hearing where guilt is contested.

Sentencing only occurs once guilt has been established, either because the person pleaded guilty or because a magistrate, judge or jury found them guilty. The Penalties and Sentences Act 1992 (Qld) is the main Act governing Queensland's sentencing laws, alongside the legislation that creates the specific offence.

This article focuses on adult sentencing. Different laws and sentencing principles apply to children.

Adults are sentenced in the Magistrates Court, District Court or Supreme Court, depending on the offence. Most matters begin in the Magistrates Court, with more serious offences dealt with in the District or Supreme Court.

What is the purpose of sentencing?

Queensland legislation sets out the recognised purposes a court can pursue when sentencing someone. These are:

• punishment, to an extent that is just in the circumstances
• rehabilitation, through conditions intended to help the person avoid reoffending
• deterrence, both of the individual and of others who might consider similar conduct
• recognition of the harm done to a victim
• denunciation, formally expressing that the community regards the conduct as unacceptable
• protection of the community.

More than one purpose may be relevant to the sentence imposed, depending on the offence and the circumstances of the offender.

How does the sentencing process work in Queensland?

Once a person has pleaded guilty or been found guilty, sentencing generally proceeds through the following steps.

1. The plea of guilty is entered, or a finding of guilt is made following a hearing or trial.
2. The prosecution presents the facts relied on for sentencing and other relevant material, which may include the person's criminal history and information about harm caused to a victim.
3. The defence makes submissions on the person's behalf, including relevant personal circumstances and any supporting material.
4. The magistrate or judge considers the legislation, the relevant sentencing principles, and the individual circumstances of the case.
5. The court imposes a sentence and generally explains the reasons for it, particularly where a term of imprisonment is involved.

This article focuses on this part of the process rather than the earlier stages of a criminal matter, such as arrest, bail or trial.

What does the court consider when sentencing?

Queensland courts must weigh a wide range of sentencing factors, and the weight given to each depends on the individual case. These generally include:

• the nature and seriousness of the offence
• the circumstances surrounding the offending
• the harm or loss caused
• the maximum penalty and any applicable minimum or mandatory penalty
• the person's degree of responsibility for the offending
• previous criminal history
• age and character
• personal circumstances
• remorse
• whether, and when, the person pleaded guilty
• any cooperation with authorities
• prospects of rehabilitation
• relevant medical, psychological or other reports
• time already spent in custody before sentence, sometimes called pre-sentence custody.

No single factor is decisive on its own. The court also applies broader sentencing principles, including proportionality, parity and totality. These principles help ensure the sentence is proportionate to the offending, appropriately consistent with sentences imposed in comparable cases, and appropriate where multiple offences are being dealt with together.

The maximum penalty is an important reference point, but it is not a prediction of the sentence a particular person will receive. The court must consider the seriousness of the individual offending and the other circumstances relevant to sentence.

What are mitigating and aggravating factors?

Mitigating factors

Mitigating factors are circumstances that may support a less severe sentence. They do not automatically reduce a sentence, and their relevance and weight depend on the individual case. Depending on the circumstances, possible examples can include an early guilty plea, genuine remorse, steps towards rehabilitation, cooperation with authorities, and relevant personal circumstances.

Aggravating factors

Aggravating factors are circumstances that may increase the seriousness of the offending or support a more severe sentence. Examples include the degree of planning involved, the victim’s vulnerability, or a person's relevant criminal history. Some offences also have specific aggravating circumstances set out in the legislation that creates them, so it is not possible to list every aggravating factor that might apply to a particular offence.

Does pleading guilty reduce your sentence in Queensland?

A guilty plea does not come with a guaranteed or fixed reduction in sentence. Under the Penalties and Sentences Act 1992 (Qld), a court must take a guilty plea into account, and may, but is not required to, reduce the sentence it would otherwise have imposed. The court must state in open court that it took the guilty plea into account.

The timing of a guilty plea can also be relevant, including whether it was entered early or only shortly before a hearing or trial. Because pleading guilty has significant consequences beyond sentencing, including the finding of guilt itself, it is important to obtain legal advice before entering a plea rather than after.

A plea has consequences that go beyond sentencing itself, so it is worth getting advice before you enter one rather than after. Speak with David Cole on 0407 322 955 or (07) 5630 4000.

What penalties can a Queensland court impose?

Imprisonment is not the only penalty available for criminal offences in Queensland. Depending on the offence and the circumstances, options can include the following.

Fines

A fine is a monetary penalty. The legislation for a particular offence generally sets out the maximum fine that can be imposed.

Probation

A probation order requires a person to comply with conditions, such as reporting requirements, for a set period rather than serving a custodial sentence.

Community service

A community service order requires a person to complete a set number of hours of unpaid work in the community.

Recognisances and other orders

A recognisance is an order requiring a person to promise to comply with certain conditions, sometimes with a financial amount at risk if they do not. Other sentencing orders may also be available depending on the circumstances, including orders relating to restitution or compensation. An offender levy may also be imposed in certain circumstances.

Suspended sentences

A suspended sentence involves the court imposing a term of imprisonment but suspending all or part of it. The court sets an operational period, starting on the day of sentencing, during which the person must not commit another offence punishable by imprisonment. If they do, the court may require them to serve all or part of the suspended sentence.

Intensive correction orders

An intensive correction order allows a person sentenced to imprisonment of one year or less to serve that sentence in the community under intensive supervision, subject to conditions, rather than in custody. Whether an intensive correction order is available depends on the circumstances and the applicable legislation.

Imprisonment

Imprisonment is a sentencing option for more serious offending. Whether it applies, and for how long, depends on the offence, the legislation, and the individual circumstances discussed throughout this article.

Does sentencing always result in a criminal conviction?

Being found guilty and having a conviction recorded are related but separate concepts. Under section 12 of the Penalties and Sentences Act 1992 (Qld), a court has discretion in many cases to decide whether to record a conviction, having regard to factors including the nature of the offence, the person's character and age, and the impact recording a conviction may have on their economic or social wellbeing and employment prospects. A conviction must be recorded where the court imposes certain types of sentences, including imprisonment. In other cases, the court may have discretion not to record a conviction, sometimes described as a “no conviction recorded” outcome.

Whether a conviction is recorded can matter well beyond the courtroom, including for employment and other areas of a person's life. This is a detailed topic in its own right, covered in a dedicated guide on criminal records and recorded convictions in Queensland.

What is mandatory sentencing in Queensland?

It is important to distinguish between three different concepts:

• a maximum penalty, which is the most severe sentence the law allows for an offence
• a minimum penalty, which sets the lowest penalty that can ordinarily be imposed for an offence or particular circumstance
• a mandatory sentence, which is one the legislation requires the court to impose for a particular offence or circumstance.

Mandatory sentencing does not apply generally across Queensland criminal offences. Examples include mandatory life imprisonment for murder and particular mandatory or minimum requirements that apply to certain other serious offences. These requirements vary according to the offence and circumstances, and should be checked against the current legislation.

Could I go to prison?

This is often one of the most significant concerns for someone facing a sentence. Whether imprisonment is a likely outcome depends on the offence, its seriousness, the applicable legislation, criminal history and the individual circumstances discussed throughout this article.

Queensland law generally provides that imprisonment should be imposed as a last resort, with a sentence that allows the person to remain in the community preferred where appropriate. However, this principle does not apply in the same way to certain offences, including particular offences involving violence or physical harm and certain sexual offences against children under 16. The applicable principles depend on the offence and the circumstances of the case. This article cannot predict what sentence any particular reader is likely to receive, as that depends entirely on the specific facts of the matter.

Concerned about the possibility of imprisonment or a recorded conviction?

Whether imprisonment or a recorded conviction is a realistic risk depends on the specific circumstances of your matter. David Cole can advise you about the issues likely to be relevant to sentence, on 0407 322 955 or (07) 5630 4000.

How can you prepare for a sentencing hearing?

Preparation before a sentencing hearing can be important, although what is appropriate depends on the particular matter. Potential preparation can include:

• obtaining legal advice as early as possible
• understanding the prosecution's version of events
• gathering appropriate character references
• obtaining evidence of rehabilitation or treatment, where relevant
• gathering relevant employment, family or personal information
• obtaining appropriate professional reports, where relevant
• ensuring relevant mitigating circumstances are properly identified
• preparing sentencing submissions.

Not every document will be relevant to every matter. The focus should be on material that helps the court understand circumstances that are genuinely relevant to sentence. A lawyer can help identify what should be obtained and how it should be presented.

Why legal representation matters at sentencing

An experienced criminal lawyer's role at sentencing can include:

• advising on the sentencing considerations likely to be relevant
• identifying mitigating circumstances
• advising on appropriate supporting material
• reviewing the prosecution's version of events
• preparing sentencing submissions
• addressing the court on the relevant sentencing principles
• making submissions about the appropriate penalty
• addressing whether a conviction should be recorded, where relevant.

The court still makes the final decision, and no lawyer can guarantee a particular sentencing outcome. Legal representation can help ensure the relevant circumstances, supporting material and sentencing principles are properly presented to the court.

If you have pleaded guilty, been found guilty, or are due to appear before a Queensland court for sentencing, contact David Cole on 0407 322 955 or (07) 5630 4000 to discuss your circumstances and preparation for sentence.

Frequently asked questions

What happens at a sentencing hearing in Queensland?

The prosecution presents the facts relied on for sentencing and other relevant material. The defence then makes submissions and may provide supporting material, before the magistrate or judge considers the relevant legislation, sentencing principles and circumstances and imposes a sentence.

Does pleading guilty reduce your sentence in Queensland?

A court must take a guilty plea into account and may, but is not required to, reduce the sentence it would otherwise impose. There is no fixed or guaranteed reduction, and the outcome depends on the circumstances.

Will I go to prison if I plead guilty?

Not necessarily. A guilty plea does not itself determine the type of sentence imposed. Whether imprisonment results depends on the offence, the applicable legislation, and the individual circumstances of the matter.

Does a previous criminal record affect sentencing?

Previous offending may be relevant to sentencing, but it does not automatically determine the outcome. The court considers criminal history alongside the other circumstances of the case.

Can a conviction not be recorded in Queensland?

In some circumstances, a court has discretion not to record a conviction, having regard to factors set out in the Penalties and Sentences Act 1992 (Qld). Whether this applies depends on the offence and the sentence being imposed. A dedicated guide on criminal records and recorded convictions in Queensland covers this in more detail.

What is the difference between a maximum penalty and the likely sentence?

A maximum penalty is the most severe sentence the law allows for an offence. It is not a prediction of the sentence someone is likely to receive, which depends on the individual circumstances of the offending and the offender.

Do I need a lawyer for a sentencing hearing?

Legal representation is not compulsory, but it can be valuable in identifying relevant sentencing considerations, preparing appropriate supporting material, and presenting submissions to the court on the person's behalf.