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

1Society is entitled to protect itself and its members from harm.

2The 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.

3Society may limit the liberty of members of society only to prevent harm to itself or other members of society.

4Society 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.

commission ...

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.

drug trafficking offence ...

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.

exposed, for a child in relation to domestic violence, see the Domestic and Family Violence Protection Act 2012, section 10.

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.

post-prison community based release ...

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—

1On 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.

2The 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

(ca)to recognise the harm done by the offender to a victim of the 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, antecedents, 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.

(3A)Subsections (3B) to (3D)—

(a) apply in sentencing an offender for an offence of a sexual nature if the offender is determined to be of good character; but

(b)apply in relation to the offender’s good character only to the extent the good character is based on 1 or more of the following—

(i)a character reference for the offender;

(ii)the offender’s standing in the community;

(iii)the offender’s contributions to the community.

(3B)The court may treat the offender’s good character as a mitigating factor only if the good character is relevant to the court’s consideration of—

(a)the offender’s prospects of rehabilitation; or

(b)the risk of the offender reoffending.

(3C)However, the court may decide not to treat the offender’s good character as a mitigating factor, having regard to the nature of the offence and how serious the offence was, including—

(a)any physical, mental or emotional harm done to the victim of the offence; and

(b)the vulnerability of the victim.

(3D)If subsection (4) also applies in sentencing the offender, subsections (3B) and (3C) are subject to subsection (6A).

(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), if the offender is determined to be of good character, the court must not treat the good character as a mitigating factor 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), if the offender is determined to be of good character, the court must not treat the good character as a mitigating factor 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.

(9BA)In determining the appropriate sentence for an offender convicted of an offence against the Criminal Code, section 349 or 352 committed against a child of 16 or 17 years, the court must treat the child’s age as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.

(9BB)For subsection (9BA), in deciding whether there are exceptional circumstances, the court may have regard to the closeness in age between the offender and the child.

(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—

1the victim of the offence has previously committed an act of serious domestic violence, or several acts of domestic violence, against the offender

2the 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.

(10C)In determining the appropriate sentence for an offender convicted of a domestic violence offence that was committed against a child when the offender was an adult, the court must treat the fact that it is an offence against a child as an aggravating factor.

(10D)In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that either of the following circumstances apply as an aggravating factor—

(a)during the commission of the offence a child was exposed to domestic violence;

(b)the offence committed was also—

(i)a contravention of any of the following under the Domestic and Family Violence Protection Act 2012—

(A)a domestic violence order;

(B)a police protection notice;

(C)release conditions;

(D)an interstate order;

(E)a New Zealand order; or

(ii)a contravention of another order of a court or of an injunction.

(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 1 of the following offences (each a relevant domestic violence offence)—

(i)a domestic violence offence;

(ii)a domestic violence offence committed against a child;

(iii)a domestic violence offence that exposed a child to domestic violence; 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 relevant domestic violence offence.

Example—

An indictment for a charge for an offence states the offence is also a domestic violence offence committed against a child. The offender is convicted of the offence. If a conviction is recorded in relation to the offence, it must also be recorded as a conviction for ‘a domestic violence offence committed against a child’.

(3)If no conviction is recorded in relation to the offence, the offence must be entered in the offender’s criminal history as a relevant 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 relevant 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 relevant domestic violence offence; or

(b)otherwise—be entered in the offender’s criminal history as a relevant 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 relevant 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 relevant domestic violence offence; or

(b)otherwise—be entered in the offender’s criminal history as a relevant domestic violence offence.

(9)Each of the following persons is not compellable as a witness in proceedings before the court to decide the application—

(a)a person against whom the relevant domestic violence offence was committed;

(b)for a relevant domestic violence offence that exposed a child to domestic violence—the child.

(10)If a court is satisfied an error has been made in recording or entering an offence as a relevant 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 relevant 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 ...

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.

(6)The court may, on an application under this section—

(a)give or review a guideline judgment for an offence under a Commonwealth Act only if the court considers giving or reviewing the guideline judgment is necessary for the purpose of determining a proceeding in relation to the offence; and

(b)pronounce the guideline judgment only by inclusion in the judgment for the proceeding.

15AF   Right of appearance in a guideline proceeding

(1)The following persons may appear in a guideline proceeding—

(a)the Attorney-General;

(b)the director of public prosecutions;

(c)the chief executive officer of Legal Aid Queensland.

(2)Also, for a guideline proceeding in which the court is giving or reviewing a guideline judgment relevant to an appeal before the court against the sentence of a convicted person, the convicted person may appear in the guideline proceeding.

(3)Without limiting subsection (1) or (2), a person who may appear under subsection (1) or (2) may—

(a)oppose or support the giving or reviewing of the guideline judgment by the court; and

(b)make submissions in relation to the framing of the guidelines to be contained in the guideline judgment; and

(c)inform the court of any relevant pending appeal against sentence; and

(d)assist the court in relation to any relevant matter.

15AG   Powers of Attorney-General or director of public prosecutions

(1)Nothing in the Director of Public Prosecutions Act 1984 or any Act or law prevents, or in any way limits, the exercise of a power conferred on the director of public prosecutions under section 15AE or 15AF.

(2)Without limiting subsection (1), in exercising a power conferred on the director of public prosecutions under this section, the director is not, despite the Director of Public Prosecutions Act 1984, section 10, responsible to, or subject to the direction of, the Attorney-General.

(3)Nothing in any Act or law prevents, or in any way limits, the performance of a function conferred on the Attorney-General under section 15AE or 15AF.

15AH   Relevant considerations before giving or reviewing guideline judgment

If the court is considering giving or reviewing a guideline judgment, the court must consider—

(a)the need to promote consistency of approach in sentencing offenders; and

(b)the need to promote public confidence in the criminal justice system.

15AI   Procedural requirements if court decides to give or review guideline judgment

(1)This section applies if the court decides to give or review a guideline judgment.

(2)The court must—

(a)for any guideline proceeding—notify the following persons of their right to appear before the court in the guideline proceeding—

(i)the Attorney-General;

(ii)the director of public prosecutions;

(iii)the chief executive officer of Legal Aid Queensland; and

(b)if the court is giving or reviewing a guideline judgment relevant to an appeal before the court against the sentence of a convicted person—notify the convicted person.

15AJ   Discretion of court preserved

(1)Nothing in this part—

(a)limits any power or jurisdiction of the court to give or review a judgment providing guidance on matters relating to sentencing that the court has apart from this part; or

(b)requires the court to give or review a guideline judgment if it considers giving or reviewing a guideline judgment inappropriate.

(2)If, on an application under section 15AE, the court decides not to give or review a guideline judgment, the court must give reasons for its decision.

15AK   Use of evidence in giving or reviewing guideline judgments

Nothing in the Criminal Code, section 671B limits the evidence or other matters the court may take into consideration in giving or reviewing a guideline judgment and the court may inform itself in the way it considers appropriate.

Example of matter court may consider—

any written views of the council about giving or reviewing a guideline judgment

15AL   Relationship between guideline judgments and other sentencing matters

A guideline in a guideline judgment—

(a)is additional to anything else required under part 2; and

(b)does not limit or otherwise affect any requirement under that part.

Part 3    Releases, restitution and compensation

Division 1 Orders to release certain offenders

Subdivision 1 Interpretation

15B   Definitions for div 1

In this division—

approved provider see section 15F.

attend, for a drug assessment and education session, means attend all of the session.

DAAR condition see section 19(2B).

disqualifying offence see section 15E.

drug assessment and education session, for an offender, means a single session provided by an approved provider involving assessment of the offender’s drug use, drug education and identification of any appropriate treatment options for the offender.

drug diversion condition see section 19(2A).

drug diversion court means a court prescribed under a regulation for this definition.

eligible drug offence see section 15D.

eligible drug offender see section 15C.

15C   Meaning of eligible drug offender

(1)An eligible drug offender is a person charged with an eligible drug offence who has pleaded guilty to the offence.

(2)The person is not an eligible drug offender if—

(a)a charge against the person for a disqualifying offence is pending in a court; or

(b)the person has, at any time, been convicted of a disqualifying offence; or

(c)2 diversion alternatives have previously been given to the person.

(3)For subsection (2)(b), a conviction of a disqualifying offence does not include a conviction in relation to which the rehabilitation period has expired, and not been revived, under the Criminal Law (Rehabilitation of Offenders) Act 1986.

(4)For subsection (2)(c)—

(a)a diversion alternative has been given to the person if—

(i)a court has made an order in relation to the person under section 19(1)(b) that includes a drug diversion condition; or

(ii)the offender has, at any time, agreed to an offer under the Police Powers and Responsibilities Act 2000, section 379AA to participate in a drug diversion assessment program; or

(iii)the person has been given a prescribed diversion alternative under a law of another State or the Commonwealth; and

(b)for counting the number of diversion alternatives given to the person, a diversion alternative—

(i)is counted even if it was given for an offence committed before the diversion alternative counted as the first diversion alternative was given; and

(ii)is not counted if it was given on the same day as the diversion alternative counted as the first diversion alternative was given.

(5)In this section—

conviction see the Criminal Law (Rehabilitation of Offenders) Act 1986, section 3.

prescribed diversion alternative means circumstances prescribed under a regulation for this definition that are similar to the circumstances mentioned in subsection (4)(a)(i) or (ii).

rehabilitation period see the Criminal Law (Rehabilitation of Offenders) Act 1986, section 3.

revived see the Criminal Law (Rehabilitation of Offenders) Act 1986, section 3.

15D   Meaning of eligible drug offence

(1)An eligible drug offence is—

(a)an offence by a person against the Drugs Misuse Act 1986, section 9 of unlawfully having possession of a dangerous drug if—

(i)each dangerous drug mentioned in the charge for the offence is a prescribed dangerous drug; and

(ii)for each dangerous drug mentioned in the charge, the total quantity of the substances, preparations, solutions and admixtures in the person’s possession containing the dangerous drug is not more than the prescribed quantity in relation to the dangerous drug; and

Example—

Assume the charge mentioned prescribed drugs X and Y. The prescribed quantity in relation to X is 1.0g and the prescribed quantity in relation to Y is 0.2g. The person had—

•0.2g of a preparation containing X and Y; and

•0.7g of a preparation containing X; and

•0.1g of an admixture containing Y.

The total quantity of the preparations in the person’s possession containing X is 0.9g (0.2 + 0.7) which is not more than the prescribed quantity in relation to X (1.0g).

The total quantity of the preparation and admixture in the person’s possession containing Y is 0.3g (0.2 + 0.1) which is more than the prescribed quantity in relation to Y (0.2g).

Subsection (1)(a)(ii) is not satisfied.

(iii)the court considers each dangerous drug mentioned in the charge was for the person’s personal use; or

(b)an offence against the Drugs Misuse Act 1986, section 10(1), if the court considers the possession of each thing mentioned in the charge was related to its personal use by the person in connection with the commission of the offence; or

(c)an offence against the Drugs Misuse Act 1986, section 10(2), (4) or (4A).

(2)In this section—

dangerous drug see the Drugs Misuse Act 1986, section 4.

prescribed dangerous drug means a dangerous drug prescribed under a regulation for this definition.

prescribed quantity means a quantity prescribed under a regulation for this definition.

15E   Meaning of disqualifying offence

(1)A disqualifying offence is—

(a)an offence of a sexual nature; or

(b)an offence against the Drugs Misuse Act 1986, section 5, 6, 8 or 9, other than an offence dealt with, or to be dealt with, summarily; or

(c)an indictable offence involving violence against another person, other than an offence charged under any of the following provisions of the Criminal Code—

•section 335

•section 340(1)(a), but only if the offence is the assault of another with intent to resist or prevent the lawful arrest or detention of the person or of any other person

•section 340(1)(b).

Note—

Under the Acts Interpretation Act 1954, schedule 1—

indictable offence includes an act or omission committed outside Queensland that would be an indictable offence if it were committed in Queensland.

(2)A reference to a provision in subsection (1) or (4) includes a reference to a law of another State or the Commonwealth that corresponds to the provision.

(3)A reference in subsection (1)(c) to an indictable offence includes a reference to an indictable offence dealt with summarily.

(4)In this section—

offence of a sexual nature means an offence defined in the Criminal Code, section 210, 213, 215, 216, 217, 218, 219, 221, 222, 227, 228, 229B, 323A, 323B, 363A or chapter 32.

15F   Meaning of approved provider

(1)An approved provider is an entity approved by the chief executive (health) by gazette notice to provide drug assessment and education sessions.

(2)In this section—

chief executive (health) means the chief executive of the department in which the Medicines and Poisons Act 2019 is administered.

Subdivision 2 Orders

16   Court may make order under this division if it does not record conviction

Subject to section 20(2), if a court makes an order under section 19, it must not record a conviction.

17   Making of order

(1)If a court considers that it is appropriate that no punishment or only a nominal punishment should be imposed on an offender, the court may make an order under section 19.

(2)Despite subsection (1), a drug diversion court may make an order under section 19(1)(b) that includes a drug diversion condition if the matters mentioned in section 19(2A)(b) and (c) are satisfied.

18   Matters to which court must have regard

Before making an order under section 19, the court must have regard to—

(a)the offender’s character, age, health and mental condition; and

(b)the nature of the offence; and

(c)circumstances (if any) under which the offence was committed that make the offence less serious than what it would be if it had been committed under other circumstances; and

(d)anything else to which the court considers it proper to have regard.

19   Order of court

(1)The court may make an order—

(a)releasing the offender absolutely; or

(b)that the offender be released if the offender enters into a recognisance, with or without sureties, in such amount as the court considers appropriate, on the conditions that the offender must—

(i)be of good behaviour; and

(ii)appear for conviction and sentence if called on at any time during such period (not longer than 3 years) as is stated in the order.

(2)In making an order under subsection (1)(b), the court may impose any additional conditions that it considers appropriate.

(2A)Without limiting subsection (2), the court may impose a condition that the offender must participate in a drug assessment and education session by a stated date (a drug diversion condition) if—

(a)the court is a drug diversion court; and

(b)the offender is an eligible drug offender; and

(c)the offender consents to participating in a drug assessment and education session.

(2B)Also, without limiting subsection (2) or (2A), if the offender consents to completing a DAAR course, the court may impose a condition (a DAAR condition) that the offender complete a DAAR course by a stated day.

(3)If a court makes an order under subsection (1), the court may also make any other order for payment of compensation or restitution that the court could have made had the offender been convicted.

(4)In this section—

DAAR course see the Bail Act 1980, section 11AB(6).

Note—

DAAR stands for Drug and Alcohol Assessment Referral. See the Bail Act 1980, section 11AB(6), definition DAAR.

20   Contravention of order

(1)If a court that makes an order under section 19(1)(b), or a court of like jurisdiction, is satisfied that the offender has contravened a condition of the offender’s recognisance, the court may—

(a)forfeit the recognisance; and

(b)issue a warrant directed to all police officers to arrest and bring the offender before the court.

(1A)Also, without limiting subsection (1), if the offender contravenes a relevant condition of the offender’s recognisance, the proper officer of the court may bring the offender back before the court by giving notice to the offender that the proceeding for the offence is to be heard by the court on a stated day.

(2)When the offender appears before the court, whether under the warrant issued under subsection (1)(b) or under a notice given under subsection (1A), the court may—

(a)record a conviction and sentence the offender for the offence with which the offender was originally charged; or

(b)make any other order that the court could have made;

as if the offender had not been released on recognisance.

(3)In this section—

relevant condition means—

(a)a drug diversion condition; or

(b)a DAAR condition.

21   Termination of recognisance

A recognisance entered into under this division is terminated—

(a)at the end of its period; or

(b)if it is forfeited under section 20(1)(a); or

(c)if the offender appears before the court under section 20(2); or

(d)if a court orders that it is terminated;

whichever is the first to happen.

Division 2 Recognisances for property related offences

22   Court may make order under this division if it does not record conviction

Subject to section 27(2), if a court acts under this division, it must not record a conviction.

23   When court may act under this division

If an offender is convicted of an offence relating to property and the court considers it appropriate to do so, the court may act under this division.

24   Adjournment and release of offender if recognisance entered into

(1)A court may—

(a)adjourn the sentencing of the offender to a time and place ordered by the court; and

(b)release the offender if the offender enters into a recognisance, with or without sureties, in such amount as the court considers appropriate, on the condition that the offender must appear before the court—

(i)to be sentenced at the time and place ordered by the court; or

(ii)if called on before the time ordered by the court for the purposes of section 25.

(2)The adjournment under subsection (1)(a) must not be longer than 6 months after the offender is convicted.

25   Offender may be called on to do certain things

The offender may be called on with a view to the offender taking steps to—

(a)restore property, to which the offence relates, to the person aggrieved by the offence; or

(b)reinstate property to the satisfaction of the court or the person aggrieved by the offence; or

(c)compensate the person aggrieved by the offence for damage caused to the person’s property; or

(d)comply in all respects with any other order the court may make.

26   Offender may be called on for sentence

(1)If it is made to appear to the court that convicted the offender, or a court of like jurisdiction, that the offender should be called on to appear and be sentenced for the relevant offence before the time ordered under section 24(1)(a), the court may direct that the offender be called on to appear to be sentenced at a time and place ordered by the court.

(2)In sentencing the offender, the court may have regard to whether the offender has taken the steps mentioned in section 25 that are appropriate to the offender’s case.

27   Offender failing to appear under recognisance or when called

(1)If the offender—

(a)fails to appear at the time and place ordered under section 24(1)(a); or

(b)is called on under section 24(1)(b)(ii) or 26(1) and fails to appear at the time and place called on or ordered by the court;

the court, or a court of like jurisdiction, may—

(c)forfeit the recognisance; and

(d)issue a warrant directed to all police officers to arrest and bring the offender before the court.

(2)When the offender appears before the court that issued the warrant under subsection (1)(d), the court may—

(a)record a conviction and sentence the offender for the offence for which the offender was originally charged; or

(b)make any other order that the court could have made;

as if the offender had not been released on recognisance.

28   Termination of recognisance

A recognisance entered into under this division is terminated if the offender—

(a)appears at the time and place ordered under section 24(1)(a); or

(b)is called on under section 24(1)(b)(ii) or 26(1);

whichever is the first to happen.

Division 3 Release on entering into recognisance

29   Court may act under this division whether or not it records conviction

A court may act under this division whether or not it records a conviction.

30   Recognisance—conviction on indictment

(1)An offender convicted on indictment may, in addition to, or instead of, any sentence to which the offender is liable, be ordered—

(a)to be released if the offender enters into a recognisance, with or without sureties, in such amount as the court considers appropriate, conditioned that the offender keep the peace and be of good behaviour for a period fixed by the court; and

(b)to be imprisoned until the recognisance mentioned in paragraph (a) is entered into.

(2)Imprisonment ordered under subsection (1)(b)—

(a)must not be longer than 1 year; and

(b)together with any other imprisonment that is ordered for the offence, must not be longer than the longest term of imprisonment for which the offender might be sentenced to be imprisoned without fine.

31   Recognisance—summary conviction

An offender convicted summarily may, instead of being sentenced to punishment to which the offender is liable, be released if the offender enters into a recognisance, with or without sureties, in such amount as the court considers appropriate, on the conditions that the offender keep the peace and be of good behaviour for a period (not longer than 1 year) fixed by the court.

(1)The definition offence of a sexual nature in section 15E(4) applies as if the reference to the Criminal Code, section 208 included a reference to the Criminal Code, section 209 as in force at any time before its repeal by the Criminal Code and Other Acts Amendment Act 2008.

(2)The Criminal Code items in the schedule apply as if the reference in the item mentioned in column 1 to the provision of the Criminal Code mentioned in column 2 included a reference to the provision of the Criminal Code mentioned in column 3 as in force at any time before the commencement of this section.

Column 1	Column 2	Column 3
2	61	63
5	208	209
23	319	319A

217   Transitional provision for Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Act 2010

(1)Section 9(7B) and amended part 10, other than new sections 172D and 174 to 174C, apply to the sentencing of an offender and to a review under that part no matter when the relevant offence happened or happens.

(2)However, section 9(7B) and amended part 10, other than new sections 172D and 174 to 174C, only apply if the conviction for the offence took place after the date of assent of the amending Act.

(3)New sections 172D and 174 to 174C apply to an offender on whom a finite sentence has been imposed no matter when the relevant offence or conviction happened or happens, or when the finite sentence was made.

(4)Subsections (1) and (3) apply despite the Acts Interpretation Act 1954, section 20C.

(5)In this section—

amended part 10 means part 10 as amended under the amending Act.

amending Act means the Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Act 2010.

new sections 172D and 174 to 174C means those numbered sections of the post-amended Act, as affected by any relevant definitions under the post-amended Act.

post-amended Act means this Act as amended by the amending Act.

218   Transitional provision for Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010

On the commencement of this section, section 152A, as amended by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010, has effect in relation to a proceeding, regardless of when the proceeding was commenced.

219   Transitional provision for the Justice and Other Legislation Amendment Act 2010

This Act as amended by the Justice and Other Legislation Amendment Act 2010, part 25 applies to a sentence imposed after the commencement of part 25, whether the offence was committed before or after the commencement of part 25.

220   Transitional provision for Liquor and Other Legislation Amendment Act 2010

(1)Part 3B, as inserted by the Liquor and Other Legislation Amendment Act 2010, section 55 applies in relation to an offence only if the offender was convicted for the offence after the commencement of this section.

(2)For subsection (1), it is irrelevant whether the act or omission constituting the offence happened before or after the commencement.

Division 2 Transitional provisions for Criminal Law Amendment Act 2012

221   Transitional provision for s 171

(1)For section 171(2)(a)(i) as inserted by the amendment Act, the period of time an offender must have served before the offender’s indefinite sentence must be reviewed for the first time continues to be 20 years if—

(a)the Criminal Code, section 305(2) as amended by the amendment Act does not apply on sentence; but

(b)that section as it existed before the commencement applies on sentence.

(2)Section 171(2)(a)(iii), as inserted by the amendment Act, only applies to an offender who is serving an indefinite sentence for an offence of murder committed after the commencement.

(3)In this section—

amendment Act means the Criminal Law Amendment Act 2012.

commencement means the commencement of the amendment Act, section 16.

222   [Repealed]

Division 3 Transitional provision for Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012

223   Transitional provision for s 161E

(1)For applying section 161E, it does not matter whether the previous offence was committed, or the offender was convicted of the previous offence, before or after the commencement.

(2)For a previous offence mentioned in subsection (1) as having been committed before the commencement, a reference in schedule 1A to the provision to which the offence relates is taken to be a reference to the provision as in force at any time before the commencement.

(3)This section applies despite the Acts Interpretation Act 1954, section 20C(3) and the Criminal Code, section 11.

(4)In this section—

commencement means the commencement of this section.

previous offence, for applying section 161E, means an offence mentioned in section 161E(1)(b).

Division 4 Transitional provisions for Penalties and Sentences and Other Legislation Amendment Act 2012

224   Retrospective application of s 179C in particular circumstances

(1)Section 179C applies in relation to an offence for which the offender is sentenced after the commencement, even if the offence was committed, or the offender was charged with or convicted of the offence, before the commencement.

(2)In this section—

commencement means the commencement of section 179C.

sentenced does not include resentenced as defined under section 179D.

225   [Repealed]

Division 5 Transitional provision for Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Act 2013

226   Retrospective application of pt 9C in particular circumstances

(1)Part 9C applies in relation to a serious drug offence if the offender is charged with the offence on or after the commencement, regardless of whether the offence was committed before or after the commencement.

(2)In this section—

commencement means the commencement of this section.

Division 6 Transitional provisions for expiry of Drug Court Act 2000

227   Definitions for div 6

In this division—

Drug Court Act means the Drug Court Act 2000 as in force before its expiry.

intensive drug rehabilitation order means an order made under the Drug Court Act, section 19.

228   Application of div 6

This division applies from 1 July 2013.

229   Continuation of warrants

(1)This section applies to a warrant issued under the Drug Court Act, section 40, for an offender before 30 June 2013—

(a)but not enforced; or

(b)enforced but not returned before a drug court magistrate before that day.

(2)The warrant is taken to be a warrant—

(a)issued by a magistrate; and

(b)that authorises any police officer to arrest the offender and bring the offender before a magistrate.

230   Dealing with offences after enforcement of warrant

(1)This section applies if—

(a)an offender is arrested on a warrant mentioned in section 229; and

(b)the offender is brought before a magistrate.

(2)The magistrate must—

(a)order that the record of the conviction for the offence be revoked; and

Note—

For the effect of not recording a conviction, see section 12.

(b)vacate the offender’s intensive drug rehabilitation order; and

(c)deal with the offender according to law.

(3)Also, the magistrate must, under the Justices Act 1886, section 113, commit the offender to the District Court for sentence if—

(a)the offence, in relation to which the intensive drug rehabilitation order for the offender was made, is a prescribed drug offence under the Drug Court Act; or

(b)the magistrate is satisfied, under the Criminal Code, section 552D, the offender, if dealt with under subsection (2)(c), may not be adequately punished on summary conviction.

Note—

For the maximum penalty for indictable offences dealt with summarily, see the Criminal Code, section 552H.

(4)Subsection (3) applies even though the magistrate has not addressed the defendant as required under the Justices Act 1886, section 104(2).

(5)To remove any doubt, it is declared that—

(a)the Bail Act 1980 applies to the offender; and

(b)the offender has pleaded guilty to the offence under the Drug Court Act, section 19(c).

231   Sentencing an offender after enforcement of warrant

(1)This section applies if a magistrate sentences an offender to whom section 230 applies.

(2)In sentencing the offender, the magistrate must have regard to the initial sentence contained in the offender’s intensive drug rehabilitation order.

(3)To remove any doubt, it is declared that, in applying section 159A to a sentence for a term of imprisonment imposed on an offender under this section, time spent in custody under the Drug Court Act, other than under section 32(1)(f) of that Act, is taken to be imprisonment already served under the sentence.

Division 7 Transitional provision for Justice and Other Legislation Amendment Act 2013

232   Transitional provision for sch 1

Schedule 1, as amended by the Justice and Other Legislation Amendment Act 2013, is taken to have had effect on and from 13 August 2013.

Division 8 Transitional provision for Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013

233   Application of amended s 15A

Section 15A, as amended by the Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013, applies to the sentencing of an offender for an offence whether the proceeding for the offence was started before, on or after the commencement of this section.

Division 9 Transitional provision for Youth Justice and Other Legislation Amendment Act 2014

234   Sentencing guidelines

This Act applies to the sentencing of an offender convicted after the commencement of this section even if 1 or both of the following happened before the commencement—

(a)the commission of the offence the subject of the conviction;

(b)the start of the proceeding for the offence.

Division 10 Transitional provisions for Criminal Law Amendment Act 2014

235   Application of s 13B

(1)Section 13B applies to the sentencing of an offender for an offence on or after the commencement, even if—

(a)the proceeding for the offence was started before the commencement; or

(b)some or all of the offender’s cooperation with a law enforcement agency occurred before the commencement.

(2)In this section—

commencement means the commencement of section 13B.

Division 11 Transitional provisions for Safe Night Out Legislation Amendment Act 2014

236   Sentencing guidelines

Section 9(9A) applies to the sentencing of an offender if the offender is convicted of the offence after the commencement of this section, even if the offence was committed, or the offender was charged with the offence, before the commencement of this section.

237   Banning orders

A court may make a banning order under section 43I, as amended by the Safe Night Out Legislation Amendment Act 2014, if the offender is convicted of the offence after the commencement of this section, even if the offence was committed, or the offender was charged with the offence, before the commencement of this section.

238   Community service orders required under s 108B

Section 108B does not apply to an offence committed before the commencement of that section.

Division 12 Transitional provision for Tackling Alcohol-Fuelled Violence Legislation Amendment Act 2016

239   Imposition of DAAR condition

(1)Section 19(2B), as inserted by the amending Act, applies to an order made under section 19(1)(b) in relation to an offender on or after the commencement.

(2)For subsection (1), it is irrelevant whether the act or omission constituting the offence for which the order is made happened, or the proceeding for the offence was started, before or after the commencement.

(3)In this section—

amending Act means the Tackling Alcohol-Fuelled Violence Legislation Amendment Act 2016.

Division 13 Transitional provision for Criminal Law (Domestic Violence) Amendment Act 2016

240   Sentencing submissions

The amendments made to section 15 by the Criminal Law (Domestic Violence) Amendment Act 2016 apply in relation to sentencing an offender even if the offence or conviction happened before the commencement.

Division 14 Transitional provision for Youth Justice and Other Legislation Amendment Act (No. 1) 2016

241   Sentencing guidelines

Section 9, as amended by the Youth Justice and Other Legislation Amendment Act (No. 1) 2016, applies to the sentencing of an offender after the commencement whether the offence or conviction happened before or after the commencement.

Division 15 Transitional provision for Health and Other Legislation Amendment Act 2016

242   Offence of a sexual nature taken to include references to Criminal Code, ss 208 and 209

The definition offence of a sexual nature in section 15E(4) applies as if the reference to the Criminal Code, section 215 included a reference to—

(a)the Criminal Code, section 208 as in force at any time before its repeal by the Health and Other Legislation Amendment Act 2016; and

(b)the Criminal Code, section 209 as in force at any time before its repeal by the Criminal Code and Other Acts Amendment Act 2008.

Division 16 Transitional provisions for Serious and Organised Crime Legislation Amendment Act 2016

Subdivision 1 Transitional provisions for repeal of Vicious Lawless Association Disestablishment Act 2013

243   Definitions for subdivision

In this subdivision—

commencement means the commencement of the Serious and Organised Crime Legislation Amendment Act 2016, part 35.

repealed VLAD Act means the Vicious Lawless Association Disestablishment Act 2013 repealed by the Serious and Organised Crime Legislation Amendment Act 2016, part 35.

244   Application of subdivision

This subdivision applies if a court has in, or in connection with, a criminal proceeding, including, for example, a proceeding on appeal, sentenced a person as a vicious lawless associate for a declared offence under the repealed VLAD Act, section 7.

245   Application to Supreme Court to reopen sentencing proceedings

(1)The person may apply to the Supreme Court to reopen the proceeding to the extent the court imposed on the person either or both of the following—

(a)a further sentence of 15 years imprisonment served wholly in a corrective services facility under the repealed VLAD Act, section 7(1)(b);

(b)a further sentence of 10 years imprisonment served wholly in a corrective services facility under the repealed VLAD Act, section 7(1)(c).

(2)The application must be made within 3 months after the commencement.

(3)The court may, at any time, extend the period mentioned in subsection (2).

(4)The court must give a copy of the application to the director of public prosecutions.

(5)Within 10 business days after the making of the application, the court must give directions to enable the application to be heard.

246   Supreme Court may reopen sentencing proceedings

(1)On the hearing of an application under section 245, the Supreme Court may reopen the proceeding to the extent mentioned in section 245(1).

(2)The Supreme Court may also, at any time, reopen the proceeding to the extent mentioned in section 245(1) if a court reopens the proceeding under section 188.

(3)If the Supreme Court reopens the proceeding under subsection (1) or (2), the court must—

(a)give the parties an opportunity to be heard; and

(b)if the person was sentenced under the repealed VLAD Act, section 7(1)(a) to a sentence other than life imprisonment or an indefinite sentence—resentence the person to a further sentence as if the law applicable to the further sentence were the law mentioned in section 161R(2)(b); and

(c)if the person was sentenced under the repealed VLAD Act, section 7(1)(a) to life imprisonment or an indefinite sentence—resentence the person to a further sentence as if the law applicable to the further sentence were the Corrective Services Act 2006.

(4)The court may have regard to—

(a)relevant material admitted before the court during the previous trial and sentence of the person; and

(b)any other material relevant to the further sentence.

(5)If the previous sentencing court reduced, under section 13A, the further sentence imposed under the repealed VLAD Act, section 7(1)(b) or (c), the court must have regard to the material placed on the court file under section 13A(7)(c).

(6)Subsection (5) does not—

(a)affect an order prohibiting publication that has been made in relation to the material under section 13A(8); or

(b)limit the reopening of a proceeding under section 188.

(7)Also, if the Supreme Court reopens the proceeding under subsection (2), and the court that reopened the proceeding under section 188 was a court other than the Supreme Court, the Supreme Court may remit the resentencing of the person under subsection (3)(b) or (c) to the other court.

(8)In this section—

indefinite sentence means an indefinite sentence under part 10.

247   Appeals

If a further sentence is imposed under section 246, the person, and the Attorney-General, have the same rights to appeal against the further sentence as if it were the further sentence originally imposed on the person.

248   No cause of action

No cause of action may be started or continued against the State in relation to any period of imprisonment the person may have actually served that is more than the period of imprisonment the person would have served if originally sentenced to the further sentence imposed under section 246.

Subdivision 2 Other transitional provisions

249   Making of control order for offender convicted of committing indictable offence before commencement

Section 161W applies to the sentencing of an offender convicted of an indictable offence after the commencement whether the offence was committed before or after the commencement.

250   Application of amended s 187

Section 187, as amended by the Serious and Organised Crime Legislation Amendment Act 2016, applies to the sentencing of an offender for an offence after the commencement whether the proceeding for the offence was started before or after the commencement.

251   Application of s 161Q to particular prescribed offences

(1)This section applies if—

(a)an offender is convicted of an offence against—

(i)the Criminal Code, section 218B, 229B or 229HB; or

(ii)the Drugs Misuse Act 1986, section 5 or 9D; or

(iii)the Weapons Act 1990, section 65; and

(b)the offence is committed partly, but not wholly, after the commencement.

(2)Section 161Q applies in relation to the offence only if, at a time after the commencement, the offender—

(a)was a participant in a criminal organisation; and

(b)knew, or ought reasonably to have known, a matter mentioned in section 161Q(1)(b).

Division 17 Transitional provision for Criminal Law Amendment Act 2017

252   Warrant for arrest of offender failing to enter into recognisance under order made before commencement

Part 3, division 3AA applies in relation to an original order whether the order was made before or after the commencement.

Division 18 Transitional provision for Victims of Crime Assistance and Other Legislation Amendment Act 2017

253   Victim impact statements

(1)Part 10B applies to the sentencing of an offender after the commencement whether the offence or conviction happened before or after the commencement.

(2)A victim impact statement given under the Victims of Crime Assistance Act 2009, repealed section 15(5) before the commencement, including a statement given electronically, is taken to have been given under section 179L.

(3)In this section—

repealed section 15(5), of the Victims of Crime Assistance Act 2009, means section 15(5) of that Act as it was in force from time to time before its repeal by the Victims of Crime Assistance and Other Legislation Amendment Act 2017.

Division 19 Transitional provision for Liquor and Other Legislation Amendment Act 2017

254   Banning orders

A court may make a banning order under section 43J if the offender is convicted of an offence mentioned in section 43J(1)(a)(i) or (ii) after the commencement, even if the offence was committed, or the offender was charged with the offence, before the commencement.

Division 20 Transitional provision for Justice Legislation (Links to Terrorist Activity) Amendment Act 2019

255   Application of s 160B to sentencing offenders after commencement

Section 160B, as amended by the Justice Legislation (Links to Terrorist Activity) Amendment Act 2019, applies in relation to the sentencing of an offender after the commencement whether the offence or conviction happened before or after the commencement.

Division 21 Transitional provisions for Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020

256   Sentencing guidelines

Section 9, as amended by the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020, applies to the sentencing of an offender after the commencement whether the offence or conviction happened before, or happens after, the commencement.

257   Application of s 195E

Section 195E applies to a court sentencing an offender after the commencement—

(a)whether the offence or conviction happened before, or happens after, the commencement; and

(b)even if the sentence is imposed on appeal or reopening of sentencing proceedings under section 188.

Division 22 Transitional provision for Justice and Other Legislation Amendment Act 2020

258   Application of ss 9 and 159A to sentencing offenders after commencement

Sections 9 and 159A, as amended by the Justice and Other Legislation Amendment Act 2020, apply in relation to the sentencing of an offender after the commencement whether the offence or conviction happened before or after the commencement.

Division 23 Transitional provisions for Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024

259   Sentencing guidelines

Section 9, as amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, applies to the sentencing of an offender after the commencement whether the conviction happened before or after the commencement.

260   Convictions for offences relating to domestic violence

Section 12A, as amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, applies only in relation to convictions for relevant domestic violence offences committed from the commencement.

Division 24 Transitional provision for Criminal Code (Decriminalising Sex Work) and Other Legislation Amendment Act 2024

261   Particular offences continue as prescribed offences

On the commencement, repealed sections 229G, 229H, 229HB, 229K and 229L of the Criminal Code continue to be prescribed offences for part 9D.

Division 25 Transitional provision for Respect at Work and Other Matters Amendment Act 2024

262   Application of s 9 to sentencing offenders after commencement

Section 9, as amended by the Respect at Work and Other Matters Amendment Act 2024, applies to the sentencing of an offender after the commencement whether the offence or conviction happened before or after the commencement.

Division 26 Transitional provisions for Penalties and Sentences (Sexual Offences) and Other Legislation Amendment Act 2025

263   Definition for division

In this division—

amendment Act means the Penalties and Sentences (Sexual Offences) and Other Legislation Amendment Act 2025.

264   Application of s 9 to sentencing offenders after commencement

Section 9, as amended by the amendment Act, applies to the sentencing of an offender after the commencement whether the offence or conviction happened before or after the commencement.

265   Application of s 179K to sentencing offenders after commencement

Section 179K, as amended by the amendment Act, applies to the sentencing of an offender after the commencement whether the offence or conviction happened before or after the commencement.

Schedule 1 Serious violent offences

sections 156A(1)(a), 161A(a), 161B(3)(a) and 161C(1)(c) and (d)

Criminal Code

   

2section 61 (Riot)

3section 75 (Threatening violence)

4section 142 (Escape by persons in lawful custody)

7section 210 (Indecent treatment of children under 16)

7Asection 210A (Sexual acts with a child aged 16 or 17 under one’s care, supervision or authority)

8section 213 (Owner etc. permitting abuse of children on premises)

9section 215 (Engaging in penile intercourse with child under 16)

10section 216 (Abuse of persons with an impairment of the mind)

11section 217 (Procuring young person etc. for penile intercourse)

11Asection 217A (Obtaining commercial sexual services from person who is not an adult)

11Bsection 217B (Allowing person who is not an adult to take part in commercial sexual services)

11Csection 217C (Conduct relating to provision of commercial sexual services by person who is not an adult)

12section 218 (Procuring sexual acts by coercion etc.)

12Asection 219 (Taking child for immoral purposes)

13section 222 (Incest)

14section 229B (Repeated sexual conduct with a child)

14Bsection 236(2) (Misconduct with regard to corpses)

15sections 303 (Definition of manslaughter) and 310 (Punishment of manslaughter)

16section 306 (Attempt to murder)

16Asection 309 (Conspiring to murder)

17section 313 (Killing unborn child)

18section 315 (Disabling in order to commit indictable offence)

19section 316 (Stupefying in order to commit indictable offence)

20section 317 (Acts intended to cause grievous bodily harm and other malicious acts)

21section 317A(1) (Carrying or sending dangerous goods in a vehicle)

22section 318 (Obstructing rescue or escape from unsafe premises)

23section 319 (Endangering the safety of a person in a vehicle with intent)

25section 320 (Grievous bodily harm)

26section 320A (Torture)

27section 321 (Attempting to injure by explosive or noxious substances)

28section 321A (Bomb hoaxes)

29section 322 (Administering poison with intent to harm)

30section 323 (Wounding)

30Asection 324 (Failure to supply necessaries)

31section 326 (Endangering life of children by exposure)

32section 328A (Dangerous operation of a vehicle)

32Asection 334C (Coercive control)

33section 339 (Assaults occasioning bodily harm)

34section 340 (Serious assaults)

35section 349 (Rape)

36section 350 (Attempt to commit rape)

37section 351 (Assault with intent to commit rape)

38section 352 (Sexual assaults)

39section 354 (Kidnapping)

40section 354A (Kidnapping for ransom)

40Asection 364 (Cruelty to children under 16)

41section 411(1) (Punishment of robbery)

42section 411(2) (Punishment of robbery)

43section 412 (Attempted robbery)

43Asection 417A (Taking control of aircraft)

44section 419(1) (Burglary), if section 419(3)(b)(i) or (ii) applies

Criminal Code (Provisions repealed by Criminal Law Amendment Act 1997)

   

1section 208 (Unlawful anal intercourse)

2section 221 (Conspiracy to defile)

3section 222 (Incest by man)

4section 223 (Incest by adult female)

5section 318 (Preventing escape from wreck)

Criminal Code (Provision repealed by Health and Other Legislation Amendment Act 2016)

   

1section 208 (Unlawful sodomy)

Criminal Code (Provision repealed by Criminal Code (Decriminalising Sex Work) and Other Legislation Amendment Act 2024)

   

1section 229G(1) (Procuring engagement in prostitution), if section 229G(2) applies

Corrective Services Act 2006

   

1section 122(2) (Unlawful assembly, riot and mutiny)

2section 124(1)(a) (Other offences)

Corrective Services Act 2000 (Provisions repealed by Corrective Services Act 2006)

   

1section 92(2) (Unlawful assembly, riot and mutiny)

2section 94(a) (Other offences)

Drugs Misuse Act 1986

   

1section 5 (Trafficking in dangerous drugs), if the offender is sentenced for the offence on or after the commencement of the Serious and Organised Crime Legislation Amendment Act 2016, section 164, whether the offence or conviction happened before or after that commencement

2section 6 (Supplying dangerous drugs), if the offence is one of aggravated supply as mentioned in that section

3section 8 (Producing dangerous drugs), if the circumstances mentioned in paragraph (a) or (b) of the penalty apply

Schedule 1A Serious child sex offences

section 161D

Criminal Code

Section	Section heading or description of offence
213	Owner etc. permitting abuse of children on premises
215	Engaging in penile intercourse with child under 16
219	Taking child for immoral purposes
222	Incest
229B	Repeated sexual conduct with a child
349	Rape
352	Sexual assaults

Criminal Code (Provisions repealed by Criminal Law Amendment Act 1997)

Section	Section heading
208	Unlawful anal intercourse
222	Incest by man

Criminal Code (Provisions amended, renumbered or repealed by Criminal Law Amendment Act 2000)

Section	Section heading
215	Carnal knowledge of girls under 16
337	Sexual assaults
347	Rape

Criminal Code (Provision repealed by Health and Other Legislation Amendment Act 2016)

Section	Section heading
208	Unlawful sodomy

Schedule 1B Serious drug offences

section 161F

Drugs Misuse Act 1986

Part 1    Category A offences

Column 1	Column 2
Section	Section heading
5	Trafficking in dangerous drugs

Part 2    Category B offences

Column 1	Column 2	Column 3
Section	Section heading	Relevant circumstance
6(1)	Supplying dangerous drugs	The quantity of the dangerous drug is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 in respect of that drug.
7	Receiving or possessing property obtained from trafficking or supplying
8	Producing dangerous drugs	The circumstances mentioned in paragraph (a), (b), (c) or (d) of the penalty apply.
10B	Possession of a prohibited combination of items

Part 3    Category C offences

Column 1	Column 2	Column 3
Section	Section heading	Relevant circumstance
8	Producing dangerous drugs	The circumstances mentioned in paragraph (e) of the penalty apply and the court has made a finding of fact that the offender committed the offence with a commercial purpose.Note— See the Evidence Act 1977, section 132C.
9	Possessing dangerous drugs	The circumstances mentioned in paragraph (a), (b) or (c) of the penalty apply and the court has made a finding of fact that the offender committed the offence with a commercial purpose.Note— See the Evidence Act 1977, section 132C.

Schedule 1C Prescribed offences

section 161N, definition prescribed offence

Criminal Code

•section 61 (Riot)

•section 87 (Official corruption)

•section 92A (Misconduct in relation to public office)

•section 119B (Retaliation against or intimidation of judicial officer, juror, witness etc.)

•section 122 (Corruption of jurors)

•section 127 (Corruption of witnesses)

•section 140 (Attempting to pervert justice)

•section 210 (Indecent treatment of children under 16)

•section 210A (Sexual acts with a child aged 16 or 17 under one’s care, supervision or authority)

•section 213 (Owner etc. permitting abuse of children on premises)

•section 215 (Engaging in penile intercourse with child under 16)

•section 217 (Procuring young person etc. for penile intercourse)

•section 217A (Obtaining commercial sexual services from person who is not an adult)

•section 217B (Allowing person who is not an adult to take part in commercial sexual services)

•section 217C (Conduct relating to provision of commercial sexual services by person who is not an adult)

•section 218 (Procuring sexual acts by coercion etc.)

•section 218A (Using internet etc. to procure children under 16)

•section 218B (Grooming child under 16 years or parent or carer of child under 16 years)

•section 219 (Taking child for immoral purposes)

•section 228A (Involving child in making child exploitation material)

•section 228B (Making child exploitation material)

•section 228C (Distributing child exploitation material)

•section 228D (Possessing child exploitation material)

•section 228DA (Administering child exploitation material website)

•section 228DB (Encouraging use of child exploitation material website)

•section 228DC (Distributing information about avoiding detection)

•section 228I (Producing or supplying child abuse object)

•section 228J (Possessing child abuse object)

•section 229B (Repeated sexual conduct with a child)

•sections 302 (Definition of murder) and 305 (Punishment of murder)

•sections 303 (Definition of manslaughter) and 310 (Punishment of manslaughter)

•section 306 (Attempt to murder)

•section 307 (Accessory after the fact to murder)

•section 308 (Threats to murder in document)

•section 309 (Conspiring to murder)

•section 314A (Unlawful striking causing death)

•section 317 (Acts intended to cause grievous bodily harm and other malicious acts)

•section 317A (Carrying or sending dangerous goods in a vehicle)

•section 320 (Grievous bodily harm)

•section 320A (Torture)

•section 321 (Attempting to injure by explosive or noxious substances)

•section 339 (Assaults occasioning bodily harm), if the offence is committed in circumstances where the offender is liable to imprisonment for 10 years

•section 340(1)(b) (Serious assaults), if the offence is committed in circumstances where the offender is liable to imprisonment for 14 years

•section 349 (Rape)

•section 350 (Attempt to commit rape)

•section 351 (Assault with intent to commit rape)

•section 352 (Sexual assaults)

•section 354 (Kidnapping)

•section 354A (Kidnapping for ransom)

•section 359 (Threats), if the offence is committed in circumstances where the offender is liable to imprisonment for 10 years

•section 359E (Punishment of unlawful stalking, intimidation, harassment or abuse)

•section 398 (Punishment of stealing), if item 14 (Stealing firearm for use in another indictable offence) or 15 (Stealing firearm or ammunition) applies

•section 408C (Fraud), if the offence is committed in circumstances where the offender is liable to imprisonment for 14 or more years

•section 408D (Obtaining or dealing with identification information)

•sections 409 (Definition of robbery) and 411(1) or (2) (Punishment of robbery)

•section 412 (Attempted robbery)

•section 415 (Extortion)

•section 419(1), but only if section 419(3) applies, or 419(4) (Burglary)

•section 433 (Receiving tainted property)

Criminal Proceeds Confiscation Act 2002

•section 250 (Money laundering)

Drugs Misuse Act 1986

Note—

See the Evidence Act 1977, section 132C in relation to findings of fact on sentencing.

•section 5 (Trafficking in dangerous drugs)

•section 6 (Supplying dangerous drugs), if the offence is committed with a commercial purpose

•section 7 (Receiving or possessing property obtained from trafficking or supplying)

•section 8 (Producing dangerous drugs), if the offence is committed with a commercial purpose

•section 9B (Supplying relevant substances or things), if the offence is committed with a commercial purpose

•section 9C (Producing relevant substances or things), if the offence is committed with a commercial purpose

•section 9D (Trafficking in relevant substances or things)

Weapons Act 1990

•section 50B (Unlawful supply of weapons), if either of the following applies—

•the penalty, paragraph (a), (b) or (c)(i) or (ii)

•the penalty, paragraph (c)(iii) for a category A or B weapon or category M crossbow

•section 65 (Unlawful trafficking in weapons)

Schedule 2 Qualifying offences

section 162, definition qualifying offence, paragraph (a)

Criminal Code

Section	Section heading or description of offence
54A	Demands with menaces upon agencies of government
210	Indecent treatment of children under 16
213	Owner etc. permitting abuse of children on premises
215	Engaging in penile intercourse with child under 16
216	Abuse of persons with an impairment of the mind
217	Procuring young person etc. for penile intercourse
218	Procuring sexual acts by coercion etc.
219	Taking child for immoral purposes
221	Conspiracy to defile
222	Incest
229B	Repeated sexual conduct with a child
302, 305	Murder
303, 310	Manslaughter
306	Attempt to murder
309	Conspiring to murder
311	Aiding suicide
313	Killing unborn child
314A	Unlawful striking causing death
315	Disabling in order to commit indictable offence
317	Acts intended to cause grievous bodily harm and other malicious acts
320A	Torture
321	Attempting to injure by explosive or noxious substances
322	Administering poison with intent to harm
349	Rape
350	Attempt to commit rape
351	Assault with intent to commit rape
352	Sexual assaults
411(2)	Robbery with circumstance of aggravation
412	Attempted robbery

Criminal Code (Provisions repealed by Criminal Law Amendment Act 1997)

Section	Section heading
208	Unlawful anal intercourse
221	Conspiracy to defile
222	Incest by man
223	Incest by adult female

Criminal Code (Provisions amended, renumbered or repealed by Criminal Law Amendment Act 2000)

Section	Section heading
215	Carnal knowledge of girls under 16
336	Assault with intent to commit rape
337	Sexual assaults
347	Rape
349	Attempt to commit rape

Criminal Code (Provision repealed by Criminal Code and Other Acts Amendment Act 2008)

Section	Section heading
209	Attempted sodomy

Criminal Code (Provision repealed by Health and Other Legislation Amendment Act 2016)

Section	Section heading
208	Unlawful sodomy