Last updated 29 August 2016
Once a defendant has indicated a plea of guilty, the prosecutor will read out the facts contained in the QP9 that support the charge. The prosecution will also inform the magistrate of any previous convictions of the defendant and raise any other matters it considers relevant in fixing the penalty. The magistrate will ask if the defendant agrees with the facts or would like to say anything before sentence is passed.
The defendant or their legal representative can challenge any allegation of fact if necessary. If the defendant disagrees with essential facts presented by the prosecutor, the magistrate may refuse to accept the plea of guilty and change it to a plea of not guilty. The matter will then be adjourned for summary hearing at a later time. If the facts in dispute are not essential to proof of the charge, the prosecutor may either accept the defendant’s version or have the matter adjourned for a contested sentence so that evidence might be put before a court on the issues in dispute. Otherwise, if the facts are agreed, the sentence hearing proceeds.
The defendant has the opportunity to make submissions as to the sentence. Considerations relevant to the magistrate’s sentencing discretion are listed in s 9 of the Penalties and Sentences Act 1992 (Qld) (Penalties and Sentences Act). Submissions on these issues may include:
- an explanation of the circumstances that caused or led to the illegal behaviour
- features of mitigation that might exist to properly characterise the nature of the offence
- the defendant’s personal history, family background, education, work record, marital situation, dependants, financial circumstances, any medical condition, prior good character (independent documentary evidence of these matters should be tendered if possible, including references from others or medical, psychological or psychiatric reports where relevant)
- explanation of any previous criminal convictions, particularly similar offences. Section 9(10) of the Penalties and Sentences Act particularly requires a court to treat a previous conviction as an aggravating factor, subject to other diminishing factors that are set out in the section
- expression or evidence of remorse
- details of any cooperation with police
- the plea entered, and if a guilty plea, whether it was at the earliest opportunity
- any time spent in police custody
- the impact the proceedings have already had upon the defendant
- the likely impact upon the defendant of any penalty which may be imposed.
Submissions as to penalty based upon the legislation creating the offence, other case authorities and sentences imposed in other similar cases might also be useful.
A magistrate has discretion to not record a conviction (s 12 Penalties and Sentences Act), taking into account the nature of the offence, the person’s character and age and the impact a recorded conviction will have on the person’s economic or social wellbeing or chances of finding employment. This issue should be raised with the magistrate, and materials and facts relevant to those matters should be pointed out. The effect of a non-recorded conviction is that a person is entitled to state that they have not been convicted of the offence (although the record remains with police and the courts, and there are some legislative and other incursions upon this entitlement).
In some cases, particularly if a community-based order of probation is being considered, the magistrate may order a pre-sentence report to be prepared by Queensland Corrective Services to help in deciding what sentence should be imposed. If so, the court might adjourn the sentence to allow time for preparation of this report. If the defendant is already under the supervision of a community correctional officer, that officer will usually prepare a report to assist.
When a sentence is being imposed, the defendant should stand.
All penalties outlined in the Penalties and Sentences Act are available to a sentencing magistrate (see the Sentencing chapter). Fines are the most commonly imposed penalty in the Magistrates Court. The amount of a fine is to be determined by a magistrate taking into account the defendant’s financial circumstances (s 48 Penalties and Sentences Act). Also, reasonable time to pay the fine can be sought and should normally be permitted. The collection of fines is now the responsibility of the State Penalties Enforcement Registry, and if there is a difficulty in paying a fine, that office should be contacted.