Last updated 23 September 2024

There are several factors the court must consider when deciding on an appropriate sentence, including (s 9(2) Penalties and Sentences Act 1992 (Qld) (Penalties and Sentences Act)):

  • the principle that a sentence of imprisonment should only be imposed as a last resort, and that a sentence that allows an offender to stay in the community is preferable
  • the maximum and minimum penalty prescribed for an offence
  • the nature of an offence and seriousness of the harm caused
  • the extent to which an offender is to blame for an offence
  • any damage, injury or loss caused by an offender
  • the offender’s age, character and intellectual capacity
  • the presence of any aggravating or mitigating factors concerning an offender (e.g. whether the offender was a participant in a criminal organisation at the time the offence was committed, or whether the offender is a victim of domestic violence)
  • the prevalence of an offence
  • how much assistance an offender gave to law enforcement agencies in the investigation of an offence or other offences
  • time already spent in custody by an offender for an offence before being sentenced
  • sentences already imposed on an offence that have not yet been served
  • sentences that an offender is liable to serve because of the revocation of a previous order because of the offenders’ contravention of certain conditions
  • if an offender is the subject of a community-based order, the offender’s compliance with the order as disclosed in a report given by an authorised corrective services officer
  • if an 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
  • the principal that the court should not refuse to make a community-based order merely because of a physical, intellectual or psychiatric disability suffered by an offender, or an offender’s sex, education level or religious beliefs
  • any other relevant circumstances.

If the offence involved violence, the above factors do not apply (s 9(2A) Penalties and Sentences Act). Instead, the sentencing court must consider (s 9(3) Penalties and Sentences Act):

  • the risk of physical harm to any members of the community if a custodial sentence were not imposed
  • the need to protect any members of the community from the risk of physical harm
  • the personal circumstances of any victim of an offence
  • the circumstances of an offence, including the death or injury to any member of the public or any loss or damage caused by the offence
  • the nature and extent of the violence used, or intended to be used, in the commission of an offence
  • an offender’s disregard for public safety
  • an offender’s past record, including any attempted rehabilitation and their number of previous offences of any type
  • an offender’s age, character and antecedents
  • an offender’s remorse (or lack of remorse)
  • any medical, psychiatric, prison or other relevant report in relation to an offender
  • anything else about the safety of the members of the community that the court considers relevant.

When sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 years, the court must order that the offender serve a term of imprisonment, unless there are exceptional circumstances (s 9(4) Penalties and Sentences Act).

An offender’s voluntary intoxication by drugs or alcohol is not a mitigating factor that the court may have regard to when sentencing an offender (s 9(9A) Penalties and Sentences Act).

The court is required to treat each of an offender’s previous conviction as an aggravating factor if it is reasonable to do so (s 9(10) Penalties and Sentences Act). Whether it is reasonable to do so may depend upon how much time has elapsed between each conviction and whether similar offences were involved, however, the sentence that is imposed must not be disproportionate to the seriousness of the current offence (s 9(11) Penalties and Sentences Act).

The court must treat the fact that an offence is a domestic violence offence as an aggravating factor when determining the appropriate sentence for the offender, unless exceptional circumstances of the case exist (s 9(10A) Penalties and Sentences Act). Conversely, if an offender is themselves a victim of domestic violence, the court must treat, as a mitigating factor:

  • the effect of the domestic violence on the offender (unless the court considers it not reasonable to do so because of the exceptional circumstances)
  • if an offence can be wholly or partly attributed to the effect of domestic violence on the offender.

The age of the offender is a relevant consideration for the court to take into account in sentencing. Youthful offenders will often be given sentences that allow them the opportunity for rehabilitation (see R v Lovell [1999] 2 Qd R 79). In some cases, the court may consider that an elderly person (perhaps with disabilities or with a previously unblemished record) would receive a more lenient sentence that they otherwise might have in similar circumstances.

The courts must also take into account whether the offender has pleaded guilty (s 13 Penalties and Sentences Act) or has cooperated with law enforcement agencies (s 13A Penalties and Sentences Act). Additionally, if the court convicts an offender of a personal offence (i.e. an offence committed against another person), it may also make a non-contact order that the offender not contact the victim or an associate, or that the offender not go to a stated place for a stated period of time (pt 3A Penalties and Sentences Act).