Queensland: Penalties and Sentences Act 1992 (Qld)

Penalties and Sentences Act 1992 An Act to consolidate and amend the law relating to sentencing of offenders and to impose a levy on offenders on sentence Preamble 1 Society is entitled to protect itself and its members from harm. 2 The criminal law and the power of courts to impose sentences on offenders represent important ways in which society protects itself and its members from harm. 3 Society may limit the liberty of members of society only to prevent harm to itself or other members of society. 4 Society is entitled to recover from offenders funds to help pay for the cost of law enforcement and administration. Part 1 Preliminary 1 Short title This Act may be cited as the Penalties and Sentences Act 1992. 3 Purposes The purposes of this Act include— (a) collecting into a single Act general powers of courts to sentence offenders; and (b) 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 (c) encouraging particular offenders to cooperate with law enforcement agencies in proceedings or investigations about major criminal offences; and (d) promoting consistency of approach in the sentencing of offenders; and (e) providing fair procedures— (i) for imposing sentences; and (ii) for dealing with offenders who contravene the conditions of their sentence; and (f) providing sentencing principles that are to be applied by courts; and (g) making provision so that offenders are not imprisoned for non-payment of fines without the opportunity of obtaining a fine option order; and (h) promoting public understanding of sentencing practices and procedures; and (i) generally reforming the sentencing laws of Queensland; and (j) providing for the imposition of an offender levy. 4 Definitions In this Act— approved form means a form approved by the chief executive for the relevant purpose. approved provider, for part 3, division 1, see section 15F. attend, for part 3, division 1, see section 15B. Attorney-General, for part 2A, see section 15AA. authorised corrective services officer see section 4A. authorised officer, for part 9C, means the director of public prosecutions, a deputy director of public prosecutions, or a lawyer appointed to assist the director of public prosecutions in the performance of the functions of the director of public prosecutions under part 9C. banning order, for part 3B, see section 43I. benefit, for part 9D, see section 161N. board guidelines means guidelines under the Corrective Services Act 2006, section 242E. category A offence see section 161F. category B offence see section 161F. category C offence see section 161F. chief executive officer of Legal Aid Queensland, for part 2A, see section 15AA. commissioner, for part 9D, see section 161N. community based order means any community service order, graffiti removal order, intensive correction order or probation order. community justice group, for an offender, means— (a) 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 (b) 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— (i) information to a court about Aboriginal or Torres Strait Islander offenders; (ii) diversionary, interventionist or rehabilitation activities relating to Aboriginal or Torres Strait Islander offenders; (iii) other activities relating to local justice issues; or (c) a group of persons made up of elders or other respected persons of the offender's community. community service has the same meaning as in the Corrective Services Act 2006. community service order means a community service order in force under part 5, division 2. control order, for part 9D, see section 161N. conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court. core conditions, of the rehabilitation part of a treatment order, see section 151R(1). corrective services facility see the Corrective Services Act 2006, schedule 4. corresponding control order, for part 9D, see section 161N. council means the Queensland Sentencing Advisory Council established under section 198. court— (a) for part 2A—see section 15AA; or (b) for part 8A—see section 151B; or (c) for part 9D, division 3, subdivision 5—see section 161ZV. criminal organisation see section 161O. Crown prosecutor includes— (a) the Attorney-General; and (b) the director of public prosecutions; and (c) another person, other than a police officer, appearing for the State. current parole eligibility date, for part 9, division 3, see section 160. current parole release date, for part 9, division 3, see section 160. custodial part, of a treatment order, see section 151N(2). DAAR condition, for part 3, division 1, see section 19(2B). dangerous prisoners application means an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 for a continuing detention order, interim detention order, supervision order or interim supervision order. director of public prosecutions, for part 2A, see section 15AA. disqualifying offence, for part 3, division 1, see section 15E. domestic violence offence see the Criminal Code, section 1. drug and alcohol treatment order, for part 8A, see section 151B. drug assessment and education session, for part 3, division 1, see section 15B. drug diversion condition, for part 3, division 1, see section 19(2A). drug diversion court, for part 3, division 1, see section 15B. eligible drug offence, for part 3, division 1, see section 15D. eligible drug offender, for part 3, division 1, see section 15C. eligible offence, for part 8A, see section 151B. fine, for part 4, division 2, see section 52. fine option order means a fine option order made under part 4, division 2. finite sentence, for part 10, see section 173(1)(b). finite term, for a provision about a finite sentence, means the term of the sentence. graffiti offence means— (a) an offence against the Criminal Code, section 469 that is punishable under section 469, clause 9; or (b) an offence against the Summary Offences Act 2005, section 17(1). graffiti removal order means a graffiti removal order in force under part 5A. graffiti removal service means— (a) the removal of graffiti; or (b) work related or incidental to the work mentioned in paragraph (a); or (c) other work related to or incidental to the clean up of public places whether or not it relates to the removal of graffiti. guideline judgment means a judgment that— (a) is declared to be a guideline judgment by the Court of Appeal; and (b) contains guidelines to be taken into account by courts in sentencing offenders, being guidelines applying— (i) generally; or (ii) to a particular court or class of court; or (iii) to a particular offence, or class of offence, including under a Commonwealth Act; or (iv) to a particular penalty or class of penalty; or (v) to a particular class of offender. guideline judgment for an offence under a Commonwealth Act, for part 2A, see section 15AA. guideline proceeding, for part 2A, see section 15AA. harm, for part 10B, see section 179I. honorary member, of an organisation, for part 9D, see section 161N. impose, a term of imprisonment on an offender for an offence, for part 9, division 3, see section 160. indefinite sentence, for part 10, see section 162. intensive correction order means an intensive correction order in force under part 6. licence, for part 3B, see section 43G. licensed premises, for part 3B, see section 43G. licensee, for part 3B, see section 43G. major criminal offence see section 161S(5). most serious related offence see section 161G. nominal sentence, for part 10, see section 162. non-contact order means a non-contact order in force under part 3A. offender means a person who is convicted of an offence, whether or not a conviction is recorded. offender levy see section 179C. offender's community means the offender's Aboriginal or Torres Strait Islander community, whether it is— (a) an urban community; or (b) a rural community; or (c) a community on DOGIT land under the Aboriginal Land Act 1991 or the Torres Strait Islander Land Act 1991. office holder, of an organisation, for part 9D, see section 161N. operational period— (a) for a term of imprisonment suspended under section 144(1)—means the period stated under section 144(5) in relation to the term; or (b) for the custodial part of a treatment order under part 8A—see section 151B. original order— (a) for part 3, division 3AA—see section 33AA(a); or (b) for part 4, division 2—see section 52. parole means parole under a parole order granted under the Corrective Services Act 2006. parole eligibility date, for an offender, for part 9, division 3, see section 160. parole release date, for an offender, for part 9, division 3, see section 160. participant, in a criminal organisation, see section 161P. penalty includes any fine, compensation, restitution or other amount of money but does not include an offender levy. period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether— (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment. police banning notice, for part 3B, see section 43G. prescribed offence— (a) for part 5, division 2, subdivision 2—see section 108A; or (b) for part 9D—see section 161N. prison means a prison within the meaning of the Corrective Services Act 2006. probation order means a probation order in force under part 5, division 1. proper officer means— (a) for an order made or certificate issued by the Supreme Court—the sheriff; or (b) for an order made or certificate issued by the District Court—any registrar; or (c) for an order made or certificate issued by a Magistrates Court—any clerk of the court. proper officer of the court, for an offender levy, for part 10A, see section 179B. property includes electricity. prosecutor, for section 12A and parts 3A, 3B and 9D, means— (a) in the context of a proceeding before, or an application to, a Magistrates Court—a police officer or Crown prosecutor; or (b) otherwise—a Crown prosecutor. prospective member, of an organisation, for part 9D, see section 161N. public place— (a) for part 3B, see section 43G; or (b) for part 5, division 2, subdivision 2, see section 108A. qualifying offence, for part 10, see section 162. Queensland board means the Parole Board Queensland established under the Corrective Services Act 2006. Queensland driver licence see the Transport Operations (Road Use Management) Act 1995, schedule 4. registered corresponding control order, for part 9D, see section 161N. registrar, for part 9D, division 3, subdivision 5, see section 161ZV. rehabilitation part, of a treatment order, see section 151Q(2). re-integration program means a program under the Corrective Services Act 2006 that is designed to assist an offender to re-integrate into the community, and includes parole. related offences see section 161G. remove, in relation to graffiti, includes the following— (a) repair; (b) conceal; (c) cover; (d) attempt to remove. Example— painting over graffiti respondent, for part 9D, division 3, subdivision 5, see section 161ZY(1)(b). review, a guideline judgment, for part 2A, see section 15AA. review team, for part 8A, see section 151B. senior police officer, for part 9D, see section 161N. sentence— (a) 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 (b) for part 10A—includes an order made by a court to deal with the offender for an offence instead of passing sentence. serious child sex offence see section 161D. serious criminal activity, for part 9D, see section 161N. serious drug offence means a category A offence, category B offence or category C offence. serious drug offence certificate see section 161G. serious harm means any detrimental effect of a serious nature on a person's emotional, physical or psychological wellbeing, whether temporary or permanent. serious organised crime circumstance of aggravation see section 161Q. serious violent offence means a serious violent offence of which an offender is convicted under section 161A. severe substance use disorder, for part 8A, see section 151B. sexual offence, for part 9, division 3, see section 160. SPE Act means the State Penalties Enforcement Act 1999. SPER means the State Penalties Enforcement Registry established under the SPE Act. suitability assessment report, for part 8A, see section 151B. term of imprisonment means the duration of imprisonment imposed for a single offence and includes— (a) the imprisonment an offender is serving, or is liable to serve— (i) for default in payment of a single fine; or (ii) for failing to comply with a single order of a court; and (b) for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender's finite term. treatment order, for part 8A, see section 151B. treatment order agency, for part 8A, see section 151B. treatment program, for part 8A, see section 151B. unpaid service means— (a) community service required to be performed under a community service order; or (b) graffiti removal service required to be performed under a graffiti removal order. unperformed graffiti removal service, for an offender, means graffiti removal service that the offender— (a) is required to perform under a graffiti removal order; and (b) has not performed. unperformed unpaid service, for an offender, means unpaid service that the offender— (a) is required to perform under a community service order or a graffiti removal order; and (b) has not performed. victim, for part 10B, see section 179I. victim impact statement, for part 10B, see section 179I. 4A Meaning of authorised corrective services officer (1) An authorised corrective services officer means a person who— (a) is— (i) a corrective services officer under the Corrective Services Act 2006; or (ii) an employee of a person or body engaged under that Act, section 272; and (b) is authorised by the chief executive (corrective services) for the relevant purpose. (2) In this section— chief executive (corrective services) does not include an engaged service provider under the Corrective Services Act 2006. 5 Meaning of penalty unit (1) The value of a penalty unit is— (a) 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)— (i) the amount prescribed under section 5A; or (ii) if no amount is prescribed—$110; or (b) 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 (c) 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— (i) the amount prescribed under section 5A; or (ii) if no amount is prescribed—$110; or (d) 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 (e) in any other case, for this Act or another Act— (i) the amount prescribed under section 5A; or (ii) if no amount is prescribed—$110. (2) 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. (2A) 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. Example— If the prescribed amount of a penalty unit under subsection (1)(a)(i) is $115.25 and an infringement notice prescribes a fine of 3 penalty units, the monetary value of the fine is $345, rounded down from $345.75. (3) 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. (4) 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. Example— 'Maximum penalty—10 penalty units' means the offender is liable to a maximum fine of 10 penalty units. (5) In this section— Alcan agreement means the agreement made under the Alcan Queensland Pty. Limited Agreement Act 1965. infringement notice means an infringement notice under the SPE Act. 5A Prescribed value of particular penalty unit (1) A regulation may prescribe the same monetary value of a penalty unit for section 5(1)(a)(i), (c)(i) and (e)(i). (2) The amount prescribed must not be more than the amount last prescribed under this section increased by— (a) 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 (b) otherwise—3.5%. Examples— 1 On 31 March 2015, the Treasurer publishes a 3% change in the value of a penalty unit. On 30 June 2015 the amount of the penalty unit is $115. The amount prescribed by regulation on 1 July 2015 may be $118.45. 2 The Treasurer has not, on or before 31 March 2015, published a percentage change in the value of a penalty unit. On 30 June 2015, the amount of the penalty unit is $115. The amount prescribed by regulation on 1 July 2015 may be $119. (3) 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. (4) For subsection (2), if an amount has not been prescribed under this section, the amount last prescribed is taken to be $110. (5) A regulation may only prescribe 1 increase for an amount for a financial year. 6 Application to children and certain courts This Act does not apply to— (a) a child; or (b) a Childrens Court; except to the extent allowed by the Youth Justice Act 1992. 7 Sentences under this Act are sentences for purposes of the Criminal Code , ch 67 For the purposes of the Criminal Code, chapter 67, a sentence under this Act is taken to be a sentence imposed on conviction whether or not a conviction is recorded. 8 Construction of references to court that made order (1) 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— (a) 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 (b) 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 (c) if the order was made by a Magistrates Court—any Magistrates Court sitting at any place in Queensland; or (d) if the order was made by a Wardens Court—any Wardens Court sitting at any place in Queensland. (2) Subsection (1) applies even though the judge, magistrate, warden or justices constituting the court did not make the order in the first place. 8A Delegation of powers by proper officer (1) 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. (2) If the proper officer is— (a) the sheriff—the powers may be delegated to an officer employed in the sheriff's office or Magistrates Court registry; or (b) the registrar—the powers may be delegated to an officer employed in the District Court registry or Magistrates Court registry; or (c) the clerk of the court—the powers may be delegated to an officer employed in the Magistrates Court registry. Part 2 Governing principles 9 Sentencing guidelines (1) The only purposes for which sentences may be imposed on an offender are— (a) to punish the offender to an extent or in a way that is just in all the circumstances; or (b) to provide conditions in the court's order that the court considers will help the offender to be rehabilitated; or (c) to deter the offender or other persons from committing the same or a similar offence; or (d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or (e) to protect the Queensland community from the offender; or (f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e). (2) In sentencing an offender, a court must have regard to— (a) principles that— (i) a sentence of imprisonment should only be imposed as a last resort; and (ii) a sentence that allows the offender to stay in the community is preferable; and (b) the maximum and any minimum penalty prescribed for the offence; and (c) the nature of the offence and how serious the offence was, including— (i) 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 (ii) 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 (d) the extent to which the offender is to blame for the offence; and (e) any damage, injury or loss caused by the offender; and (f) the offender's character, age and intellectual capacity; and (fa) 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 (fb) regardless of whether there are exceptional circumstances, the probable effect that any sentence imposed would have on— (i) a person with whom the offender is in a family relationship and for whom the offender is the primary caregiver; and (ii) a person with whom the offender is in an informal care relationship; and (iii) if the offender is pregnant—the child of the pregnancy; and (g) the presence of any aggravating or mitigating factor concerning the offender; and (ga) without limiting paragraph (g), whether the offender was a participant in a criminal organisation— (i) at the time the offence was committed; or (ii) at any time during the course of the commission of the offence; and (gb) without limiting paragraph (g), the following— (i) whether the offender is a victim of domestic violence; (ii) whether the commission of the offence is wholly or partly attributable to the effect of the domestic violence on the offender; (iii) the offender's history of being abused or victimised; and (h) the prevalence of the offence; and (i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and (j) time spent in custody by the offender for the offence before being sentenced; and (k) 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 (l) sentences already imposed on the offender that have not been served; and (m) 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 (n) 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 (o) 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 (oa) 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 (p) 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— (i) the offender's relationship to the offender's community; or (ii) any cultural considerations, including the effect of systemic disadvantage and intergenerational trauma on the offender; or (iii) any considerations relating to programs and services established for offenders in which the community justice group participates; and (pa) the principle that the court should not refuse to make a community based order for the offender merely because of— (i) a physical, intellectual or psychiatric disability of the offender; or (ii) the offender's sex, educational level or religious beliefs; and (q) anything else prescribed by this Act to which the court must have regard; and (r) any other relevant circumstance. (2A) However, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for any offence— (a) that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or (b) that resulted in physical harm to another person. (3) In sentencing an offender to whom subsection (2A) applies, the court must have regard primarily to the following— (a) the risk of physical harm to any members of the community if a custodial sentence were not imposed; (b) the need to protect any members of the community from that risk; (c) the personal circumstances of any victim of the offence; (d) 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; (e) the nature or extent of the violence used, or intended to be used, in the commission of the offence; (f) any disregard by the offender for the interests of public safety; (g) the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed; (h) the antecedents, age and character of the offender; (i) any remorse or lack of remorse of the offender; (j) any medical, psychiatric, prison or other relevant report in relation to the offender; (k) anything else about the safety of members of the community that the sentencing court considers relevant. (4) 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— (a) 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 (b) the principles mentioned in subsection (2)(a) do not apply; and (c) the offender must serve an actual term of imprisonment, unless there are exceptional circumstances. (5) 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. (6) In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to— (a) the effect of the offence on the child; and (b) the age of the child; and (c) the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and (d) the need to protect the child, or other children, from the risk of the offender reoffending; and (e) any relationship between the offender and the child; and (f) the need to deter similar behaviour by other offenders to protect children; and (g) 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 (h) the offender's antecedents, age and character; and (i) any remorse or lack of remorse of the offender; and (j) any medical, psychiatric, prison or other relevant report relating to the offender; and (k) anything else about the safety of children under 16 the sentencing court considers relevant. (6A) However, for subsection (6)(h), the court must not have regard to the offender's good character if it assisted the offender in committing the offence. (7) In sentencing an offender for a child exploitation material offence, the court must have regard primarily to— (a) 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 (aa) 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 (ab) the offender's conduct or behaviour in relation to the material, doll, robot or other object that the offence involved; and (ac) 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 (b) the need to deter similar behaviour by other offenders to protect children; and (c) 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 (d) the offender's antecedents, age and character; and (e) any remorse or lack of remorse of the offender; and (f) any medical, psychiatric, prison or other relevant report relating to the offender; and (g) anything else about the safety of children under 16 the sentencing court considers relevant. (7AA) However, for subsection (7)(d), the court must not have regard to the offender's good character if it assisted the offender in committing the offence. (7A) Also, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender under part 9D, division 2. (8) If required by the court for subsection (2)(p), the representative must advise the court whether— (a) any member of the community justice group that is responsible for the submission is related to the offender or the victim; or (b) 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. (9) In sentencing an offender, a court must not have regard to the following— (a) the offender levy imposed under section 179C; (b) whether or not the offender— (i) may become, or is, the subject of a dangerous prisoners application; or (ii) may become subject to an order because of a dangerous prisoners application. (9A) 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. (9B) 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. (9C) 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. (10) 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— (a) the nature of the previous conviction and its relevance to the current offence; and (b) the time that has elapsed since the conviction. (10A) 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. Examples of exceptional circumstances— 1 the victim of the offence has previously committed an act of serious domestic violence, or several acts of domestic violence, against the offender 2 the offence is manslaughter under the Criminal Code, section 304B (10B) In determining the appropriate sentence for an offender who is a victim of domestic violence, the court must treat as a mitigating factor— (a) 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 (b) 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. (10E) Subsection (10F) applies if— (a) the court is sentencing an offender to whom subsection (2A) applies; and (b) 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. (10F) 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. (10G) 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— (a) in a relationship of employment; or (b) under a contract for services; or (c) under an appointment; or (d) on a voluntary or unpaid basis. (11) Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence. (12) In this section— actual term of imprisonment means a term of imprisonment served wholly or partly in a corrective services facility. child exploitation material offence means any of the following offences— (a) 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; (b) an offence against any of the following provisions of the Classification of Films Act 1991— (i) section 41(3) or 42(3) or (4); (ii) section 43 if the offence involves a child abuse publication under the Act; (c) an offence against the Criminal Code, section 228A, 228B, 228C, 228D, 228DA, 228DB, 228DC, 228I or 228J. domestic violence see the Domestic and Family Violence Protection Act 2012, section 8. family relationship has the meaning given by the Domestic and Family Violence Protection Act 2012, section 19. informal care relationship has the meaning given by the Domestic and Family Violence Protection Act 2012, section 20. relevant serious offence means an offence against— (a) the following provisions of the Criminal Code— (i) sections 302 and 305; (ii) sections 303 and 310; (iii) section 320; (iv) section 323; (v) section 328A; (vi) section 339; and (b) the Transport Operations (Road Use Management) Act 1995, section 83. 10 Court's reasons to be stated and recorded (1) If a court imposes a sentence of imprisonment, including a suspended sentence of imprisonment, it must— (a) state in open court its reasons for the sentence; and (b) cause the reasons to be— (i) recorded in the transcript that is to be kept in the registry with the indictment; or (ii) recorded in writing and kept in the office of the clerk of the court with the charge sheet; and (c) 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). (2) 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. (3) The court need not comply with subsection (1)(b) if the reasons are recorded under the Recording of Evidence Act 1962. 11 Matters to be considered in determining offender's character (1) In determining the character of an offender, a court may consider— (a) the number, seriousness, date, relevance and nature of any previous convictions of the offender; and (b) the history of domestic violence orders made or issued against the offender, other than orders made or issued when the offender was a child; and (c) any significant contributions made to the community by the offender; and (d) such other matters as the court considers are relevant. (2) If oral submissions are to be made to, or evidence is to be brought before, the court about the history of domestic violence orders made or issued against the offender, the sentencing judge or magistrate may close the court for that purpose. (3) In this section— domestic violence order means— (a) any of the following under the Domestic and Family Violence Protection Act 2012— (i) a domestic violence order; (ii) a police protection notice; (iii) an interstate order; (iv) an order that corresponds to an interstate order made under a repealed law of another State; (v) a New Zealand order; or (b) a domestic violence order under the repealed Domestic and Family Violence Protection Act 1989. 12 Court to consider whether or not to record conviction (1) A court may exercise a discretion to record or not record a conviction as provided by this Act. (2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including— (a) the nature of the offence; and (b) the offender's character and age; and (c) the impact that recording a conviction will have on the offender's— (i) economic or social wellbeing; or (ii) chances of finding employment. (3) Except as otherwise expressly provided by this or another Act— (a) a conviction without recording the conviction is taken not to be a conviction for any purpose; and (b) the conviction must not be entered in any records except— (i) in the records of the court before which the offender was convicted; and (ii) in the offender's criminal history but only for the purposes of subsection (4)(b). (3A) Despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender's legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative. (4) A conviction without the recording of a conviction— (a) does not stop a court from making any other order that it may make under this or another Act because of the conviction; and (b) has the same result as if a conviction had been recorded for the purposes of— (i) appeals against sentence; and (ii) proceedings for variation or contravention of sentence; and (iii) proceedings against the offender for a subsequent offence; and (iv) subsequent proceedings against the offender for the same offence. (5) If the offender is convicted of a subsequent offence, the court sentencing the offender may disregard a conviction that was ordered not to be recorded but which, under subsection (3)(b)(ii), is entered in the offender's criminal history. (6) If— (a) a court— (i) convicts an offender of an offence; and (ii) does not record a conviction; and (iii) makes a probation order or community service order for the offender; and (b) the offender is subsequently dealt with by a court for the same offence in any way in which it could deal with the offender if the offender had just been convicted by or before it of the offence; the conviction for the offence must be recorded by the second court. (7) Despite subsection (6), the second court is not required to record the conviction for the offence if— (a) the offender is the subject of a community service order or probation order; and (b) the reason the court is dealing with the offender for the same offence is because the offender has applied for a revocation of the community service order or probation order; and (c) the offender has not breached the community service order or probation order. 12A Convictions for offences relating to domestic violence (1) Subsections (2) to (4) apply if— (a) a complaint or an indictment for a charge for an offence states the offence is also a domestic violence offence; and (b) the offender is convicted of the offence. (2) If a conviction is recorded in relation to the offence, it must also be recorded as a conviction for a domestic violence offence. (3) If no conviction is recorded in relation to the offence, the offence must be entered in the offender's criminal history as a domestic violence offence. (4) However, a matter must not be recorded or entered under subsection (2) or (3) in relation to the offence if the court makes an order to the effect it is not satisfied the offence is also a domestic violence offence. Note— See the Evidence Act 1977, section 132C, which provides for the sentencing judge or magistrate in any sentencing procedure in a criminal proceeding to act on allegations of fact. (5) If a court convicts an offender of an offence for which a matter must be recorded or entered under subsection (2) or (3) or of an offence against the Domestic and Family Violence Protection Act 2012, part 7, the prosecution may apply to the court for an order that an offence, stated in the application, of which the offender has previously been convicted (a previous offence)— (a) for a previous offence for which a conviction was recorded—also be recorded as a conviction for a domestic violence offence; or (b) otherwise—be entered in the offender's criminal history as a domestic violence offence. (6) The application— (a) may be made in writing or orally; and (b) must include enough information to allow the court to make a decision about whether it is appropriate to make the order. (7) The court may ask the prosecutor for further information for it to decide whether to make an order under subsection (8). (8) If, after considering the application, the court is satisfied a previous offence is a domestic violence offence, the court must order that the offence— (a) for a previous offence for which a conviction was recorded—also be recorded as a conviction for a domestic violence offence; or (b) otherwise—be entered in the offender's criminal history as a domestic violence offence. (9) A person against whom the domestic violence offence was committed is not compellable as a witness in proceedings before the court to decide the application. (10) If a court is satisfied an error has been made in recording or entering an offence as a domestic violence offence, the court may, on an application or its own initiative, correct the error. (11) For this section, proof that an offence is a domestic violence offence lies on the prosecutor. (12) To remove any doubt, it is declared that this section does not require a matter to be recorded or entered in an offender's traffic history under the Transport Operations (Road Use Management) Act 1995. 13 Guilty plea to be taken into account (1) In imposing a sentence on an offender who has pleaded guilty to an offence, a court— (a) must take the guilty plea into account; and (b) may reduce the sentence that it would have imposed had the offender not pleaded guilty. (2) A reduction under subsection (1)(b) may be made having regard to the time at which the offender— (a) pleaded guilty; or (b) informed the relevant law enforcement agency of his or her intention to plead guilty. (3) When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed. (4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court— (a) that fact; and (b) its reasons for not reducing the sentence. (5) A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made. 13A Cooperation with law enforcement authorities to be taken into account—undertaking to cooperate (1) This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding. (2) Before the sentencing proceeding starts, a party to the proceeding— (a) must advise the relevant officer— (i) that the offender has undertaken to cooperate with law enforcement agencies; and (ii) that written or oral submissions or evidence will be made or brought before the court relevant on that account to the reduction of sentence; and (b) may give to the relevant officer copies of any proposed written submissions mentioned in paragraph (a)(ii). (3) After the offender is invited to address the court— (a) the offender's written undertaking to cooperate with law enforcement agencies must be handed up to the court; and (b) any party may hand up to the court written submissions relevant to the reduction of sentence. (4) The undertaking must be in an unsealed envelope addressed to the sentencing judge or magistrate. (5) If oral submissions are to be made to, or evidence is to be brought before, the court relevant to the reduction of sentence, the court must be closed for that purpose. (6) The penalty imposed on the offender must be stated in open court. (7) After the imposition of the penalty, the sentencing judge or magistrate must— (a) close the court; and (b) state in closed court— (i) that the sentence is being reduced under this section; and (ii) the sentence it would otherwise have imposed; and (c) cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court, including on an application to reopen the sentencing proceedings under section 188(2)— (i) the written undertaking; (ii) a record of evidence or submissions made relevant to the reduction of sentence and the sentencing remarks made under paragraph (b). (8) The sentencing judge or magistrate may make an order prohibiting publication of all or part of the proceeding or the name and address of any witness on his or her own initiative or on application. (9) In deciding whether to make an order under subsection (8), the judge or magistrate may have regard to— (a) the safety of any person; and (b) the extent to which the detection of offences of a similar nature may be affected; and (c) the need to guarantee the confidentiality of information given by an informer. (10) A person who contravenes an order made under subsection (8) commits an offence. Maximum penalty— (a) for an order made by a judge—5 years imprisonment; or (b) for an order made by a magistrate—3 years imprisonment. (11) In this section— relevant officer means— (a) for a proceeding before the Supreme or District Court—the sentencing judge's associate; or (b) for a proceeding before a Magistrates Court—the relevant clerk of the court. 13B Cooperation with law enforcement authorities to be taken into account—cooperation given (1) This section applies for a sentence if— (a) the sentence is to be reduced by the sentencing court because the offender has significantly cooperated with a law enforcement agency in its investigations about an offence or a confiscation proceeding; and (b) section 13A does not apply for the sentence. (2) For subsection (1), an offender has not significantly cooperated with a law enforcement agency in its investigations about an offence only because the offender has admitted guilt for the offence. (3) Before the sentencing proceeding starts, a party to the proceeding— (a) must advise the relevant officer— (i) that the offender has significantly cooperated with a law enforcement agency; and (ii) that written or oral submissions or evidence will be made or brought before the court relevant on that account to the reduction of sentence; and (b) may give the relevant officer copies of any proposed written submissions mentioned in paragraph (a)(ii). (4) After the offender is invited to address the court— (a) an affidavit, provided by a person representing the law enforcement agency, must be handed up to the court; and (b) any party may hand up to the court written submissions relevant to the reduction of sentence. (5) The affidavit must— (a) state the nature, extent and usefulness of the cooperation given to the law enforcement agency by the offender; and (b) be in an unsealed envelope addressed to the sentencing judge or magistrate. (6) If oral submissions are to be made to, or evidence is to be brought before, the court about the cooperation or the reduction of sentence, the court must be closed for that purpose. (7) The penalty imposed on the offender must be stated in open court. (8) After the imposition of the penalty, the sentencing judge or magistrate must cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court— (a) the affidavit; (b) a record of evidence or submissions made relevant to the reduction of sentence; (c) a record of the sentencing remarks relevant to the reduction of sentence, as opposed to the sentence imposed. (9) The sentencing judge or magistrate may make an order prohibiting publication of all or part of the proceeding or the name and address of any witness on his or her own initiative or on application. (10) In deciding whether to make an order under subsection (9), the judge or magistrate may have regard to— (a) the safety of any person; and (b) the extent to which the detection of offences of a similar nature may be affected; and (c) the need to guarantee the confidentiality of information given by an informer. (11) A person who contravenes an order made under subsection (9) commits an offence. Maximum penalty— (a) for an order made by a judge—5 years imprisonment; or (b) for an order made by a magistrate—3 years imprisonment. (12) In this section— relevant officer means— (a) for a proceeding before the Supreme or District Court—the sentencing judge's associate; or (b) for a proceeding before a Magistrates Court—the relevant clerk of the court. 14 Preference must be given to compensation for victims If a court considers— (a) that it is appropriate— (i) to make an order for compensation (whether under this or another Act); and (ii) to impose a fine or make another order for payment of an amount of money; and (b) that the offender can not pay both the compensation and the fine or amount; the court must give preference to making an order for compensation, but may also impose a sentence other than that of imprisonment. 15 Information or submissions for sentence (1) In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence. (1A) Also, without limiting subsection (1), in imposing a sentence on an offender, a court may receive any information, or a sentencing submission made by a party to the proceedings, that the court considers appropriate to enable it to decide— (a) whether it may make a control order for the offender under part 9D, division 3; or (b) the appropriate conditions of a control order it must, or may, make for the offender under part 9D, division 3. (2) An authorised corrective services officer must not, in any information or report, recommend that a fine option order or community based order should not be made for an offender merely because of— (a) any physical, intellectual or psychiatric disability of the offender; or (b) the offender's sex, educational level or religious beliefs. (3) In this section— sentencing submission, made by a party, means a submission stating the sentence, or range of sentences, the party considers appropriate for the court to impose. 15A Audiovisual link or audio link may be used to sentence (1) The court may allow anything that must or may be done in relation to the sentencing of an offender to be done over an audiovisual link or audio link, if the court considers use of the link is in the interests of justice. (2) However, the court may not make an order under subsection (1) if facilities mentioned in subsection (5)(a) are not available at the court or the place where the offender is present. (3) For subsection (1), in deciding whether use of an audio link is in the interests of justice, the court must have regard to the desirability of sentencing an offender over an audiovisual link, rather than an audio link, if an audiovisual link is available. (4) For sections 10(1) and 13(3) or (4), anything done, for an offender's sentencing, over an audiovisual link or audio link between the offender and the court sitting in open court is taken to be done in open court. (5) If an offender is sentenced over an audiovisual link or audio link and the offender's representative in the proceeding is at the place where the court is sitting— (a) the court and the place where the offender is present must make facilities available for private communication between the offender and the offender's representative; and (b) a communication between the offender and the offender's representative is as confidential and inadmissible in any proceeding as it would be if it took place between the offender and the offender's representative while in each other's presence. (6) Subsection (5)(b) does not limit any other protection applying to the communication. (7) The provisions of the Evidence Act 1977 relating to the use of an audiovisual link or audio link in criminal proceedings apply for, and are not limited by, subsection (1). Part 2A Guideline judgments 15AA Definitions for pt 2A In this part— Attorney-General includes the nominee of the Attorney-General. chief executive officer of Legal Aid Queensland includes the nominee of the chief executive officer of Legal Aid Queensland. court means the Court of Appeal. director of public prosecutions includes the nominee of the director of public prosecutions. guideline judgment for an offence under a Commonwealth Act means a guideline judgment to the extent it relates to an offence under a Commonwealth Act. guideline proceeding means— (a) that part of a proceeding relating to the giving or review of a guideline judgment under section 15AD; or (b) a proceeding, or part of a proceeding, under section 15AE on an application for the giving or review of a guideline judgment under that section. review, a guideline judgment, means— (a) confirm the guideline judgment; or (b) vary the guideline judgment; or (c) revoke the guideline judgment; or (d) substitute a new guideline judgment for the guideline judgment. 15AB Powers of court to give or review guideline judgments (1) The court may give or review a guideline judgment— (a) on its own initiative under section 15AD; or (b) on an application under section 15AE. (2) However— (a) a guideline judgment for an offence under a Commonwealth Act may be given or reviewed only in a proceeding where the guideline judgment relates to a matter in the proceeding; and (b) the court must comply with section 15AC. 15AC Limitations for guideline judgments (1) A guideline judgment, other than a guideline judgment for an offence under a Commonwealth Act, must be consistent with Queensland law. (2) A guideline judgment for an offence under a Commonwealth Act must— (a) be consistent with Commonwealth law; and (b) set out non-binding considerations to guide the future exercise of discretion and not purport to establish a rule of binding effect; and (c) articulate principles to underpin the determination of a particular sentence and not state the expected decisions in a future proceeding. 15AD Guideline judgments on own initiative (1) The court may, on its own initiative— (a) give or review a guideline judgment, other than a guideline judgment for an offence under a Commonwealth Act, in a proceeding and whether or not the court considers giving or reviewing the guideline judgment is necessary for the purpose of determining the proceeding; and (b) pronounce the guideline judgment separately or by inclusion in any judgment the court considers appropriate. (2) The court may, on its own initiative— (a) give or review a guideline judgment for an offence under a Commonwealth Act in a proceeding and only if the court considers giving or reviewing the guideline judgment is necessary for the purpose of determining the proceeding; and (b) pronounce the guideline judgment only by inclusion in the judgment for the proceeding. 15AE Guideline judgments on application (1) The following persons may apply to the court for a guideline judgment to be given or reviewed— (a) the Attorney-General; (b) the director of public prosecutions; (c) the chief executive officer of Legal Aid Queensland. (2) For subsection (1), the application is not required to be an application in a proceeding. (3) Also, on an appeal after a person is convicted, the person may apply to the court for review of a guideline judgment to the extent it contains a guideline that is relevant in the circumstances. (4) The application may include submissions in support of the application. (5) The court may, on an application under this section— (a) give or review a guideline judgment, other than a guideline judgment for an offence under a Commonwealth Act, whether or not this is necessary for the purpose of determining a proceeding; and (b) pronounce the guideline judgment separately or by inclusion in any judgment the court considers appropriate. (