Insight from our team of leading criminal lawyers: Maximum penalties for offences – what exactly does it mean?
Maximum penalties for offences – what exactly does it mean?
In an earlier article, we discussed the offences of murder and the less serious offences of manslaughter and unlawful striking causing death. We explained in that article that the maximum penalty for murder is life imprisonment and that that penalty is actually mandatory. This means that a sentencing judge is not able to use their discretion to impose anything less than that, even if the particular facts of the case warranted it.
In this article, we will explain the differences between a maximum penalty, a mandatory penalty and an indefinite sentence.
What is a maximum penalty?
A maximum penalty is the highest penalty that can be given to an offender convicted of a particular offence.
Maximum penalties are set out in the legislation defining the offence and are generally for the worst, most serious examples of an offence. In Queensland, the highest maximum penalty available is a life sentence.
Maximum penalties are set by Parliament through legislation and reflect Parliament’s views about the seriousness of an offence compared with other offences. For example, in Queensland, the maximum penalty for common assault is three years’ imprisonment, while for grievous bodily harm it is 14 years’ imprisonment.
Except where a mandatory penalty applies (such as murder), a judge or magistrate decides the sentence up to the maximum penalty based on the circumstances of each individual case. The judge or magistrate is guided by legislation, case law (law established through past cases), and sentences given in similar cases.
What is the purpose of a maximum penalty?
Maximum penalties serve a number of purposes, including:
- setting a clear, legally defined upper limit on the court’s sentencing power
- setting out the maximum consequence a person will face if they commit a particular offence
- indicating the views of Parliament and, by extension, the community and providing guidance to the judiciary about the seriousness of an offence compared to other criminal offences
- establishing an upper limit of punishment proportionate to the offence — reserving the maximum penalty for the worst example of the offence by the worst offender.
What is a life sentence?
A number of serious offences under Queensland legislation carry a life sentence as the maximum penalty, including the offences such as murder, attempted murder, manslaughter, rape, armed robbery and arson.
For adults convicted of murder and repeat serious child sex offences, the judge must sentence the offender to life imprisonment or an indefinite sentence.
For adults convicted of other offences with a maximum life imprisonment, the judge decides the most appropriate penalty based on the individual circumstances of the case.
Judges must consider a number of factors when deciding to impose a life sentence, such as:
- whether the offence falls within the worst category of that kind of offence
- whether the nature of the offence or the offender’s history suggests the offender is likely to commit similar offences in future and whether the consequences to others may be particularly harmful
- whether the punishment fits the crime and is proportionate to the offending
- the purposes of sentencing, including deterrence, community protection, punishment and rehabilitation.
What is a mandatory sentence?
The minimum time an offender sentenced to life imprisonment must spend in prison is set by legislation. The law establishes these mandatory minimum non-parole periods:
- 30 years — murder of more than one person or by an offender with a previous murder conviction
- 25 years — murder of a police officer
- 20 years — murder other than listed above, or repeat serious child sex offence
- 15 years — any other life sentence imposed for another offence, e.g. rape.
A judge can increase the non-parole period by setting a later parole eligibility date. A prisoner is not eligible to apply for parole until they have served the mandatory non-parole period or longer period set by the court. Release on parole is not guaranteed — it is a decision for the Parole Board Queensland.
Offenders have to comply with parole conditions until the end of their prison sentence. An offender who has received a life sentence will remain on parole for the rest of their life. The offender can be returned to prison at any time if parole is suspended or cancelled by the Parole Board Queensland.
A court can impose an indefinite sentence, instead of a sentence for a fixed term, when an offender is considered a serious danger to the community. This means the offender has no fixed date when they can apply for release on parole. The court must consider all of the following:
- whether the nature of the offence is exceptional
- an offender’s characteristics, including age and previous offending
- any relevant medical, psychiatric, prison or other reports about the offender
- any risk of serious harm to members of the community if the offender is not given an indefinite sentence
- the need to protect the community from that risk.
When giving an indefinite sentence, the judge must specify the nominal sentence they would have given if they had not imposed an indefinite sentence. The court must carry out periodic reviews once the offender has served the relevant non-parole period they would have otherwise been required to serve, which varies depending on the type of offence.
If the offender is still considered to be a serious danger to the community, the indefinite sentence continues. If not, the court must impose a finite sentence which cannot be less than the nominal sentence.
If you’re needing assistance with legal matters or determining your legal rights, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.