Week 11 Notes — Sentencing under the Queensland PSA 1992

Sentencing – Queensland ( PSA 1992 )

  • Note: These notes summarize Week 11 content from Foundations of Public and Criminal Law (Bond University), focusing on the Purposes and Principles of Sentencing under the Penalties and Sentences Act 1992 (Qld or PSA 1992), types of sentences, effectiveness, and appeals. All statutory references are cited as PSA sections and case authorities where relevant.

What is Sentencing?

  • Sentencing = determining the correct punishment for an accused person who has either pleaded guilty or been found guilty of a criminal offence or offences.
  • It is conceptually tricky because it is a:
    • Discretionary process (only a judge can impose a sentence).
    • Balancing act: weigh the seriousness of the offence against the circumstances of the offender and the rights of the victim to achieve a just punishment.
  • It is based in the Rule of Law: Legislature enacts laws and max penalties; the Executive investigates and applies laws; the Judiciary determines the punishment for breaches.
  • Quote (captured in slide): “Legal interpretation takes place on a field of pain and death” – Robert Cover.

The Discretion of the Judge

  • Discretion in law = the power or authority of a decision maker to choose between alternatives (or to choose no alternative).
  • Discretion is usually confined by statute (here, the PSA 1992 (Qld)), which identifies:
    • reasons a sentence is given, relevant information, and available punishments.
  • High Court: House v The King (1936) 55 CLR 499 is a leading case on when discretion can miscarry.
  • Controlling Judicial Discretion:
    • The government controls sentencing outcomes by setting maximum penalties for offences.
    • Some statutes impose mandatory maximums and minimums, which can remove judicial discretion.

Types of Sentences that May be Imposed

  • Intensive Correction Order (s112–s113 PSA): conviction must be recorded for these orders.
    • Focus: punishment; nature of the offence; criminal history; protection of community; deterrence.
  • Compensation orders (s35 PSA).
  • Fines (s45 PSA).
  • Combinations of these orders.
  • In each type, the judge may decide to record a conviction or not, depending on rehabilitation aims and offender circumstances.
  • Focus on rehabilitation, offender circumstances such as age, remorse, cooperation.

Consequences that are not ‘Sentences’

  • Some consequences or actions are not sentences per se (e.g., barring a prisoner from voting).
  • Leading authority: Roach v Electoral Commissioner (2007) 233 CLR 162.

Role of Counsel in Sentencing

  • The PSA authorises information or submissions for sentence:
    • In imposing sentence, a court may receive information (e.g., a report under the Corrective Services Act 2006, section 344) or a sentencing submission from a party.
    • The court may also receive information or submissions to decide on control orders under Part 9D, Division 3.
  • Limitations:
    • An authorised corrective services officer must not recommend against a fine option order or community-based order merely due to disability, sex, educational level, or religious beliefs.
  • A "sentencing submission" is a submission stating the sentence or range of sentences the party considers appropriate.
  • Reference: Barbaro v The Queen [2014] HCA 2 (illustrates role of information and submissions).

Sentencing Regime – Queensland (Overview)

  • PSA 1992 enacted to guide judges when sentencing; it codifies many common law principles.
  • Section 9 (s9) is the central provisions identifying considerations/factors for sentencing, depending on the offence.
  • Key subsections include:
    • s9(1): The only reasons a sentence may be imposed.
    • s9(2): General sentencing considerations (e.g., imprisonment as a last resort).
    • s9(2A) and (3): Specific considerations for violent offences.
    • s9(4)–(6): Considerations for sexual offences against children under 16.
    • s9(9A): Relevance of intoxication on sentence.
    • s9(10): Relevance of prior convictions on sentence.
  • Section 9 is supplemented by case law such as Veen (No 2) and R v McNaughton on proportionality and purpose overlap.

Section 9(1) – Reason for Sentencing (Purposes)

  • The purposes include (non-exhaustive):
    • (a) Punish the offender to a just extent in all circumstances.
    • (b) Provide conditions to assist rehabilitation.
    • (c) Deter the offender or others from offending.
    • (d) Denounce the offender’s conduct to the community.
    • (e) Protect the Queensland community from the offender.
    • (f) A combination of two or more purposes.
  • Expressed as a set of aims to guide sentencing decisions.
  • Presented in s9(1) terms, but can be achieved through various combinations of the listed purposes.

Sentencing Purposes in Veen (No 2)

  • Veen v R (No 2) (1988) 164 CLR 465: Sentencing is not a purely logical exercise; purposes overlap and are guideposts.
  • Core purposes identified: protection of society, deterrence, retribution, and reform.
  • Lessons:
    • The purposes overlap; none can be considered in isolation when determining the sentence.
    • They guide the judge but can pull in different directions depending on the case.

Proportionality and Denunciation

  • Just punishment must be proportionate to the gravity of the offence and the circumstances.
  • Proportionality: The overall level of penalty should not be disproportionate to the magnitude of the offending behaviour.
  • Key quote: R v McNaughton (2006) 66 NSWLR 566 – common law principle of proportionality requires a sentence not to exceed what is proportionate to the crime’s gravity and the objective circumstances.
  • Considerations for proportionality include:
    • OFFENCE CONSIDERATIONS: Gravity of the offence, maximum penalty, harm caused, role of the offender.
    • OFFENDER CONSIDERATIONS: Character, age, intellectual capacity; aggravating/mitigating factors; prior convictions; but mere risk of recidivism cannot justify increasing the sentence.

Factors to Consider for Proportionality

  • OFFENCE CONSIDERATIONS (gravity):
    • A sentence should be proportionate to the gravity of the offence (Veen (No 2))
    • Maximum penalty applies to worst cases; not all cases with worst-case features require maximum penalties unless truly in the worst category.
  • OFFENDER CONSIDERATIONS: Character, age, intellectual capacity (s9(2)(f)); prior convictions (see s11 for evaluating character and prior history);
  • Aggravating or mitigating factors concerning the offender (e.g., emotional stress, health) are relevant (s9(2)(g)).
  • However, the mere risk of recidivism cannot justify a higher sentence (Veen No 2).

Rehabilitation in Sentencing (s9(1)(b))

  • Rehabilitation is an important objective, with particular emphasis on:
    • Young offenders: generally a greater chance and desirability of rehabilitation without imprisonment; there are exceptions where serious conduct requires imprisonment.
    • Intellectually disabled or mentally ill offenders may be rehabilitated if there is no ongoing danger to the community.
  • Not limited to disadvantaged offenders; rehabilitation as an objective applies broadly (Vartzokas v Zanker; Kynaston).

Deterrence (s9(1)(c))

  • Specific deterrence: deter the offender from future offending; particularly relevant for persistent re-offenders.
  • General deterrence: deter the community from this type of behaviour; relevant for offences that are prevalent or involve vulnerable victims.
  • Examples:
    • R v Aston (No 2) – antecedent criminal history informs moral culpability and deterrence needs.
    • Hammond (1997) – deterrence as a significant factor in armed robbery sentencing due to vulnerability of victims.
  • Other contexts where deterrence is relevant:
    • Offences of concern to the community (e.g., sexual offences against children) – high community outrage justifies considering deterrence (R v H (1993));
    • Offences involving breach of trust or difficult to detect (R v Corrigan; R v Adams).
    • Offences of street violence and weapons offences; note some debates that deterrence is not always effective.

Denunciation in Sentencing (s9(1)(d))

  • The community delegates to the court the task of weighing outrage and revulsion a responsible public would feel toward criminal conduct.
  • The court must take this into account in sentencing (Inkson v The Queen (1996) 88 A Crim R 334).
  • Examples:
    • Online predatory conduct toward youths (R v Burdon (2005) 153 A Crim R 104).
    • Denunciation can influence sentence length but does not always require imprisonment (R v Stephens [2006] QCA 123).
  • Denunciation is a factor that signals societal condemnation of the conduct.

Protection of the Community (s9(1)(e))

  • At common law this is viewed as a primary objective of punishment for violent offences.
  • The 1997 changes signalled a hardening intolerance of serious violent offending; sentencing must acknowledge and respect this (De Jersey CJ in R v Bryan (2003) 137 A Crim R 489).
  • Sexual offences against children are especially emphasized under this objective.

Individualisation and Consistency/Parity (Common Law Principles)

  • Individualisation:
    • The sentence should be appropriate to all features of the individual case, taking into account offence-specific facts and offender-relevant facts (mitigating/aggravating factors, personal circumstances).
    • In practice, these considerations are now largely encompassed by many PSA factors.
  • Consistency/Parity:
    • Consistency: Like cases should be treated in like manner; sentence should align with precedents (Gleeson CJ in Wong v R [2001] HCA 64).
    • Parity: Consistency in sentencing co-offenders is important (R v Nagy [2004] 1 Qd R 63).
    • However, offender-specific factors may require adjustments to avoid a justifiable sense of grievance.

Other Key Considerations from s9

  • s9(2)(a) – (i):
    • Imprisonment should be a last resort and community-based orders preferable (subject to s9(2A)).
    • Factors relevant to the offence include nature/seriousness, maximum penalty, and harm caused (s9(2)(b)–(e)).
    • Offender factors: aggravating/mitigating factors (s9(2)(f)–(g)); prevalence (s9(2)(h)); assistance to authorities (s9(2)(i)).
  • s9(2)(n) and (o): offender’s compliance with previous community-based orders and bail; s9(2)(p): ATSI considerations.
  • Note: s9(3) relates to offences of violence; s9(4)–(6) relate to sexual offences against children; s9(9A) relates to voluntary intoxication; s9(10) relevance of prior convictions; s9(10A) domestic violence.

Guilty Pleas and Plea Deals (s13 PSA)

  • A guilty plea MUST be taken into account and MAY reduce the sentence (s13 PSA).
  • The timing of the plea matters: earlier pleas are generally more favorable.
  • Often, pleas affect parole considerations more than the head sentence; discounts are based on offender-specific factors (remorse, cooperation, etc.) rather than purely utilitarian time-saving reasons.
  • Leading authorities:
    • Cameron v R (2002) 209 CLR 339 – emphasis on remorse and cooperation in discounting.
    • Barbaro v R (2014) 253 CLR 58 – court retains ultimate control; prosecution may propose recommendations but court decides.

Types of Sentences (Summary)

  • Sentences may include:
    • Suspended sentence (where applicable)
    • Intensive Correction Order (ICO)
    • Community Service Orders
    • Compensation orders
    • Fines
    • Combinations of the above
  • Conviction may be recorded or not depending on discretion and rehabilitation considerations.
  • Focus generally on rehabilitation and offender circumstances (age, remorse, cooperation).

The Effectiveness of Sentences

  • Key considerations:
    • Consequences of conviction
    • Rehabilitation prospects
    • Use of community-based orders vs. suspended sentences
    • Parole implications

Approach for a Sentencing Question (Practical Framework)

  • Steps to approach a sentencing problem:
    • Identify the offence(s) involved and review the relevant sections of the PSA; note maximum penalties and aggravating factors.
    • Determine FACTS RELEVANT TO THE OFFENCE.
    • Determine FACTS RELEVANT TO THE OFFENDER.
    • Use the PSA s9 framework to structure submissions:
    • Offence-related submissions (nature/seriousness; max penalties; harm; offender role) – e.g., s9(2)(c), s9(1)(a).
    • Offender-related submissions (rehabilitation prospects, personal circumstances) – e.g., s9(1)(b), s9(2)(f).
    • Propose an appropriate penalty (imprisonment, probation, ICO, community-based order, etc.) balancing sentencing principles.
    • Prepare for potential appeals or review considerations (see Appeals section).

Appeals Against Sentence

  • Can be made by the prosecution (Attorney-General) or the defence – under the Criminal Code, ss669A and s668D(1)(c).
  • Grounds for appeal:
    • Error of principle or reasoning by the sentencing judge.
    • The sentence is manifestly inadequate or manifestly excessive.
    • Too little or too much weight given to one or more sentencing principles.
  • If the appeal is by the defence and the court intends to increase the sentence, the defence must be given notice and can withdraw the appeal (Neal v The Queen (1982) 149 CLR 305).
  • Outcomes:
    • On defence appeal: court may quash the original sentence and substitute a new sentence or dismiss the appeal (s668E(3)).
    • On AG appeal: court may vary the sentence in unfettered discretion (s669A(1)).
  • Approach to appeals: focus on error of principle or reasoning and on the overall balance of sentencing principles against the facts.

Approach for an Appeals Question (Practical Framework)

  • When appealing a sentence, consider:
    • Identify issues of unfairness such as whether the sentence is manifestly inadequate or excessive, or whether weight given to principles is improper.
    • Use the facts to argue whether the judge erred in determining an appropriate sentence under the various sentencing principles.
    • Consider the appropriate order under s668E(3) or s669A(1).

Quick Reference: Key Stakeholders and Authorities

  • PSA 1992 – the framework and main guiding statute.
  • Key cases cited in these slides:
    • House v The King (1936) 55 CLR 499 – discretion and miscarriages of discretion.
    • Veen v R (No 2) (1988) 164 CLR 465 – purposes and proportionality; overlapping purposes.
    • R v McNaughton (2006) 66 NSWLR 566 – proportionality principle.
    • R v Aston (No 2) [1991] 1 QdR 375 – specific deterrence and antecedent history.
    • Hammond [1997] 2 Qd R 195 – general deterrence in armed robbery.
    • R v H (1993) 66 A Crim R 505 – deterrence for sexual offences against children.
    • R v Corrigan [1994] 2 Qd R 415; R v Adams [2006] QCA 312 – deterrence and trust/breach contexts.
    • Inkson v The Queen (1996) 88 A Crim R 334 – denunciation.
    • R v Burdon (2005) 153 A Crim R 104 – internet predation and denunciation.
    • R v Bryan (2003) 137 A Crim R 489 – signalled hardened stance against violent offending.
    • Cameron v R (2002) 209 CLR 339; Barbaro v R (2014) 253 CLR 58 – plea and sentencing framework.

Appendices: Quick Reference to PSA 1992 Provisions (Key Sections)

  • s9(1) – Purposes for sentencing (punish, rehabilitate, deter, denounce, protect, or a combination).
  • s9(2) – General considerations (imprisonment as last resort; preferences for community-based orders where appropriate).
  • s9(2A) and s9(3) – Violence-specific considerations.
  • s9(4)–s9(6) – Sexual offences against children considerations.
  • s9(9A) – Voluntary intoxication relevance.
  • s9(10) – Prior convictions relevance.
  • s9(2)(f), s9(2)(g) – Offender-related factors (character, aggravating/mitigating factors).
  • s9(2)(n), s9(2)(o) – Compliance with community orders and bail.
  • s9(p) – ATSI considerations.
  • s13 – Guilty pleas and discounts.
  • Other provisions – various subsections referenced in the overview (e.g., s9(3), s9(4)-(6), s9(9A), s9(10), s9(10A)).

Final Practical Note

  • The notes above are intended to be used as a comprehensive study aid for Week 11 topics on Sentencing under the PSA 1992 (Qld): purposes, discretion, types of sentences, rehabilitation, deterrence, denunciation, proportionality, individualisation, consistency/parity, guilty pleas, and appeals.