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Criminal Law and Procedure LWB 232

Criminal Law and Procedure LWB 232. Week 13 - Sentencing dispositions. Sentencing dispositions: Non-custodial orders. Unconditional discharges - Pt 3 Div 1 s 19(1)(a) Conviction must not be recorded: s 16 See s 18 and matters to which court must have regard

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Criminal Law and Procedure LWB 232

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  1. Criminal Law and ProcedureLWB 232 Week 13 - Sentencing dispositions

  2. Sentencing dispositions: Non-custodial orders Unconditional discharges - Pt 3 Div 1 • s 19(1)(a) • Conviction must not be recorded: s 16 • See s 18 and matters to which court must have regard Recognisance on condition that offender be of good behaviour - Pt 3 Div 1 • s 19(1)(b) (+ matters above apply) • See also recognisances for property offences: Div 2 Cf recognisances under s 32 - court has discretion whether to record conviction - see R v Fullalove

  3. Fines Part 4 • Can be in addition to, or instead of other sentence • Conviction is discretionary • Can pay by instalments: s 50, or time to pay: s 51 • Imprisonment in default of payment: s 182A Penalties and Sentences Act 1992 (Qld) (note change from Justices Act) • Penalty units - s 5(1) PSA $75 - subject to change • Fine option orders - community service - See Pt 4 Div 2

  4. Note new fine enforcement • State Penalties Enforcement Act 1999 due to come into effect in late 2000 • Applies to give alternative enforcement methods for payment of fines - trying to keep fine defaulters from going to prison.

  5. Probation • ss 90 - 99 PSA • Conviction discretionary • Released under supervision of Corrective Services Commission officer • Must be not less than 6 mths, not more than 3 yrs • Can also include up to 6 mths imprisonment • Offender must report and receive visits, also special conditions eg psychiatric help, restitution and compensation

  6. Community service • ss 100 - 108 • Conviction discretionary • Performs unpaid community service under supervision of Commission officer at times specified by officer • Total hours not less than 40, not more than 240 • Must be performed within one year of order • Can order probation plus community service • Can contain special conditions including restitution and compensation

  7. Intensive correction orders - Pt 6 • Must order conviction • May make order if offender sentenced to jail for 1 year or less • Serves sentence by way of intensive correction in community • Receives visits twice a week from Commission officer • Must reside at community residential facilities if directed, plus other conditions including restitution and compensation

  8. Breach of community based orders • Part 7 • Order can be revoked: s 120 • Offender may then be re-sentenced: s 121 - court then takes into account extent of compliance • Part 7 Div 2 - Offence to contravene community based order - see s 123(1)

  9. Disqualification of driver’s licence • See s 187 PSA • Offence must be in connection with, or arising out of, the driving of a mv by the offender: s 187(1)(a) • Satisfied in the interests of justice that offender be disqualified • See Nhu Ly - disqualification set aside

  10. Orders of suspended imprisonment • Part 8 • Court must record a conviction • Section 144: • applies if court sentences to 5 yrs jail or less • may suspend all or part • court must state operational period - not less than term of imprisonment imposed; not more than 5 yrs • Breached if commits offence punishable by imprisonment during operational period

  11. Custodial sentences - Imprisonment • Part 9 • Recall s 9(2)(a) - last resort; and s 10 - Judge must give reasons • Must record a conviction - s 152 • May be sentenced to lesser period than specified in offence • Served concurrently unless ordered • s 158: if offender in custody from arrest, court may order sentence has effect from then • s 161: time held in presentence custody to be deducted

  12. Concurrent/Cumulative sentences • Concurrent unless otherwise ordered: s 155 PSA • Cumulative: s 156 • Clements: • apply totality principle - overall impact • usually concurrent where related offences over short time span • cumulative only when clear and compelling reason for additional penalty(also s 156A)

  13. Indefinite detention Part 10 • Cf fixed term imprisonment • s 163: applies where convicted of “violent offence”, see def s 162 • Court must state nominal sentence: s 163(2) • Offender must be “serious danger to community”: s 163(3) - See R v Wilson (per Pincus JA only) • Court must review sentence after 50% of nominal sentence served, or 13 yrs if life was nominal sentence, then twice yearly

  14. Serious Violent Offences (SVO) • New Part 9A - Introduced July 1997 • 3 ways of declaring offender convicted of serious violent offence: • (1) Convicted of offence in Schedule AND sentenced to 10 years jail or more (automatic) (s 161A(a)) • (2) Convicted of offence in Schedule AND 5-10 years jail (discretion) (s 161B(3)) • (3) convicted of offence involving “serious violence” or “serious harm”and sentenced to imprisonment (discretion) (s 161B(4))

  15. Discretion in s 161B(3) • Court should exercise discretion by using general principles in s 9(2) (not s 9(4)): R v Collins (18/9/98). • NB: This approach was recently approved in R v Robinson, ex parte Attorney-General (28/5/99)

  16. SVO - remissions and parole • No remissions: s 161D (normally 1/3 sentence) • s 166(1)(c) Corrective Services Act: cannot apply for parole until served the lesser of 80% of sentence or 15 years. Cannot be reduced: s 157(7) Penalties and Sentences Act 1992 (Qld)

  17. Parole • Court can recommend early release on parole - s 157(2) - Qld Community Corrections Board not obliged to follow • Eligibility to apply: s 166 (1) • life sentence 15 years (20 years for multiple murder) • Other: after served 50% of sentence • SVO: 80% • Released under supervision of correctional officer • If breach may suspend parole • Cf remissions: may be entitled one third of sentence for good behaviour (not SVO: s 161D) • NB: new Corrective Services Bill 2000

  18. Criminal compensation • Part 3 Div 4 PSA • Conviction optional • Compensation and restitution can be ordered even if no additional penalty • Offender can be ordered to make restitution of property, or pay compensation for loss to property or personal injury. • See also Criminal Offence Victims Act 1995 - criminal compensation for victims of crime (personal injury/death)

  19. Other matters • Juveniles • Confiscation of proceeds of crime • Drug Rehabilitation (Court Diversion) Act 2000 See notes in Study Guide on these issues.

  20. How to approach a sentencing question • (1) If an appeal, discuss s 668D/668E or 669A and establish grounds for appeal • (2) Go through question issue by issue, discussing applicable PSA provision and any relevant cases, reach conclusion on each point. Start with the issue not the law. • (3) Do NOT discuss all sentencing principles in s 9(2) and/or s 9(4), whether or not applicable. See point (3) above.

  21. How to approach a question (cont) • (4) Students are not required to have detailed knowledge of how long a jail term should be etc. - emphasis is on principles. • (5) Do not discuss other issues such as criminal compensation, parole etc unless asked to do so

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