What Is a Suspended Sentence in Queensland?
Being sentenced to imprisonment does not always mean you will immediately go to prison. In Queensland, a court can suspend all or part of a prison sentence, allowing an offender to remain in the community subject to the requirements of the suspended sentence.
A suspended sentence is still a sentence of imprisonment. It is not the same as having no conviction recorded, receiving a good behaviour bond or being placed on probation. Instead, the court imposes a term of imprisonment but postpones the requirement to serve that imprisonment, provided the requirements of the suspended sentence are met.
In this article, we explain what a suspended sentence means in Queensland, when a court can impose one, the difference between a wholly and partly suspended sentence, what an operational period is, and what can happen if you commit another offence while your sentence is suspended.
What is a suspended sentence?
A suspended sentence is a sentence of imprisonment that the court decides not to require the offender to serve immediately.
Under section 144 of the Penalties and Sentences Act 1992 (Qld), a court can suspend a sentence of imprisonment where the term imposed is 5 years or less. The court can suspend either the whole sentence or only part of it.
For example, a court might sentence someone to:
- 12 months’ imprisonment, wholly suspended for 2 years; or
- 3 years’ imprisonment, with part of the sentence suspended.
In the first example, the person does not go to prison immediately. Instead, they remain in the community during the operational period. If they do not commit another offence punishable by imprisonment during that period, they may never have to serve the suspended 12 months.
The important point is that the court has imposed a prison sentence. The imprisonment has simply been suspended.
Does a suspended sentence mean you have no conviction?
No.
A suspended sentence should not be confused with an outcome where no conviction is recorded.
Section 143 of the Penalties and Sentences Act 1992 provides that a court cannot make a suspended imprisonment order unless it records a conviction.
This means a person who receives a suspended sentence has been convicted and sentenced to imprisonment, even though they may not have to enter prison immediately.
This distinction can be important when considering employment, professional licensing, travel, immigration or other circumstances where a person’s criminal history may be relevant.
If you are concerned about whether a conviction will be recorded in your particular case, it is important to obtain legal advice about the sentencing options available.
How does a suspended sentence work in Queensland?
There are several important components to understand.
1. The court imposes a prison sentence
First, the court determines the appropriate sentence for the offence.
The court must be satisfied that imprisonment is appropriate in the circumstances. It cannot simply impose a suspended sentence because the person would prefer not to go to prison. Section 144 specifically provides that a court must not suspend imprisonment if it considers that the offender should instead serve the term imposed.
A suspended sentence therefore sits within the range of sentencing outcomes available to a court where imprisonment is otherwise appropriate.
2. The court suspends all or part of the sentence
The court can suspend:
- the whole sentence, known as a wholly suspended sentence; or
- part of the sentence, known as a partly suspended sentence.
For example, a person might receive a sentence of 2 years’ imprisonment that is wholly suspended.
Alternatively, a person might receive a sentence involving a period of actual imprisonment followed by a suspended portion.
The circumstances of the individual offence and offender will determine whether a suspended sentence is appropriate.
3. The court sets an operational period
The court must also specify an operational period.
This is the period during which the offender must not commit another offence punishable by imprisonment if they are to avoid being dealt with under the suspended sentence provisions.
The operational period:
- begins when the suspended sentence is imposed;
- must be at least as long as the term of imprisonment imposed; and
- cannot be more than 5 years.
For example, if someone receives a 12-month prison sentence suspended for 2 years, the operational period is 2 years.
During those 2 years, the person must be extremely careful not to commit another offence punishable by imprisonment.
What is a wholly suspended sentence?
A wholly suspended sentence means the entire term of imprisonment is suspended.
For example, suppose a court imposes:
12 months’ imprisonment, wholly suspended for 2 years.
The person does not go to prison as a result of that sentence.
However, the 12-month prison sentence remains in place. If the person subsequently commits an offence punishable by imprisonment during the operational period, the court can be required to deal with the suspended sentence.
A wholly suspended sentence therefore provides an offender with an opportunity to remain in the community, but it comes with a significant consequence if they reoffend.
What is a partly suspended sentence?
A partly suspended sentence means that only part of the prison sentence is suspended.
For example, a person could receive a sentence involving imprisonment where part of the term must actually be served and the remaining part is suspended.
If the suspended portion is later activated following a breach, the court can order the offender to serve the suspended part of the imprisonment.
The precise effect of a partly suspended sentence depends on the wording of the sentence imposed by the court.
What happens if you commit another offence while on a suspended sentence?
This is one of the most important aspects of a suspended sentence.
If a person is convicted of an offence punishable by imprisonment and the court is satisfied that the offence was committed during the operational period, the court must deal with the suspended sentence under section 147 of the Penalties and Sentences Act 1992.
The consequences can be serious.
For a wholly suspended sentence, the court can:
- extend the operational period in certain circumstances;
- order the offender to serve the whole of the suspended imprisonment; or
- order the offender to serve part of the suspended imprisonment.
Importantly, the legislation provides that the court must order the offender to serve the whole of the suspended imprisonment unless it considers that would be unjust.
This means a breach of a suspended sentence should never be treated as something minor or something that can simply be dealt with by paying a fine.
If you have been charged with another offence while subject to a suspended sentence, you should obtain legal advice as soon as possible.
Does every new offence mean you automatically go to prison?
Not necessarily, but the risk is significant.
The court must consider whether it would be unjust to require the offender to serve the whole of the suspended imprisonment.
When making that assessment, the legislation requires the court to consider matters including:
- whether the subsequent offence was trivial;
- the circumstances of the subsequent offence;
- the offender’s culpability;
- their antecedents and criminal history;
- whether they have made genuine efforts towards rehabilitation;
- how long they remained offence-free during the operational period;
- any community service performed;
- fines, compensation or restitution paid;
- the extent to which they have returned to criminal conduct;
- their motivation for the subsequent offence;
- the seriousness of the original offence and its impact on the victim; and
- any special circumstances that have arisen since the original sentence.
The court therefore looks at the circumstances of both the original offence and the subsequent offending.
However, you should not assume that a relatively minor new offence will have no consequences simply because it is less serious than the offence that resulted in the original suspended sentence.
Can a suspended sentence be extended?
In some circumstances, yes.
Section 147 allows the court dealing with a suspended sentence to extend the operational period for up to one additional year. There are also circumstances where a further operational period can be imposed after the original period has expired.
This is another reason why the end date of the operational period matters.
A person should know exactly:
- when their suspended sentence started;
- how long the operational period lasts;
- what sentence was imposed;
- whether the sentence was wholly or partly suspended; and
- what consequences could follow if they are convicted of another offence.
How is a suspended sentence different from probation?
A suspended sentence and probation are different sentencing options.
With a suspended sentence, the court has imposed a term of imprisonment but suspended all or part of that imprisonment.
Probation, on the other hand, is a community-based sentencing option involving supervision and conditions.
A suspended sentence does not simply mean that you are “on probation”. The two sentences have different legal effects and consequences.
In particular, the key feature of a suspended sentence is the underlying term of imprisonment that can potentially be activated if the requirements of the legislation are triggered.
How is a suspended sentence different from an intensive correction order?
An intensive correction order (ICO) is another alternative to serving a sentence of imprisonment in a corrective services facility.
An ICO allows a person to serve a prison sentence in the community under intensive supervision and with conditions that can include reporting, rehabilitation programs and community service.
A suspended sentence works differently.
With a suspended sentence, the imprisonment is suspended rather than being served under an intensive correction order.
The appropriate sentencing option depends on the offence, the offender’s circumstances and the sentencing principles applicable to the case.
What factors does the court consider when deciding whether to suspend a sentence?
There is no automatic entitlement to a suspended sentence.
The court must first determine the appropriate sentence for the offence and then consider whether suspending all or part of that imprisonment is appropriate in the circumstances.
The sentencing court may consider matters such as:
- the nature and circumstances of the offence;
- the seriousness of the offending;
- the offender’s criminal history;
- whether the offender has pleaded guilty;
- the timing of the guilty plea;
- remorse and acceptance of responsibility;
- rehabilitation efforts;
- the offender’s personal circumstances;
- the impact of the offending on any victim;
- the likelihood of rehabilitation;
- the need for punishment and deterrence; and
- whether immediate imprisonment is necessary.
There is no single factor that guarantees a suspended sentence.
Two people convicted of the same offence can receive very different sentences because the court must consider the particular circumstances of each offender and the offending.
Can a guilty plea help you get a suspended sentence?
A guilty plea can be an important part of a sentencing case.
The timing of a guilty plea can affect the sentencing outcome, and a guilty plea may demonstrate acceptance of responsibility and avoid the need for a contested trial.
However, pleading guilty does not guarantee a suspended sentence.
The court still needs to determine the appropriate sentence based on the offence and the circumstances of the offender.
This is why it is important to obtain legal advice before entering a plea. A lawyer can assess the evidence, advise you about your options and, where appropriate, prepare submissions addressing why a particular sentencing outcome should be considered.
What happens when the operational period ends?
If the operational period ends without the circumstances arising that would allow the court to deal with the suspended sentence, the suspended imprisonment is not served simply because it was originally imposed.
The person must still understand, however, that the original matter resulted in a conviction and a sentence of imprisonment.
The fact that the person did not physically enter prison does not change the nature of the original sentence.
Can a suspended sentence be appealed?
Like other sentencing outcomes, a suspended sentence may potentially be challenged through an appeal in appropriate circumstances.
Whether an appeal is available, and whether there are grounds to appeal, depends on the particular case.
Appeals can involve complex questions about whether the sentencing court made an error in applying sentencing principles or whether the sentence was manifestly excessive or otherwise affected by an appealable error.
If you believe your sentence was wrong, you should obtain advice about your appeal rights promptly because strict time limits can apply.
What should you do if you are facing sentencing?
If you are facing sentencing for a criminal offence, it is important not to assume that the only possible outcomes are a fine or immediate imprisonment.
Depending on the circumstances, the court may have a range of sentencing options available.
If imprisonment is a possibility, your lawyer can make submissions about the appropriate sentence and, where the circumstances support it, whether imprisonment should be suspended.
This can involve presenting evidence and submissions about matters such as:
- your personal circumstances;
- your employment and family responsibilities;
- your rehabilitation;
- treatment or counselling undertaken;
- your prospects of rehabilitation;
- your criminal history;
- the circumstances of the offending;
- your remorse and acceptance of responsibility; and
- your prospects of complying with a court order.
The preparation of a sentencing case can make a significant difference to the way your circumstances are presented to the court.
What should you do if you have breached a suspended sentence?
If you are charged with another offence while subject to a suspended sentence, obtain legal advice immediately.
Do not assume that the new offence can be dealt with independently of your existing sentence. If the requirements of the suspended sentence provisions are met, the court may also have to deal with the earlier suspended imprisonment.
Your lawyer will need to consider both matters, including:
- the original offence;
- the sentence imposed;
- the date the suspended sentence began;
- the operational period;
- the circumstances of the new allegation;
- your criminal history;
- your rehabilitation since the original sentence; and
- whether there are circumstances that may make activation of the suspended imprisonment unjust.
Early advice is particularly important because decisions made in the new matter can have consequences for the suspended sentence.
How Cridland & Hua can help
Cridland & Hua represents people facing criminal charges and sentencing proceedings throughout Queensland.
If you are preparing for sentencing, our lawyers can assess your circumstances, explain the sentencing options available and prepare submissions addressing the appropriate penalty.
Where imprisonment is a possibility, this can include making submissions about whether the sentence should be suspended rather than served immediately.
We can assist with:
- Guilty pleas and sentencing hearings
- Preparation of sentencing submissions
- Applications for appropriate sentencing outcomes
- Matters involving suspended sentences
- Breaches of suspended sentences
- Appeals against sentence
- Representation in the Magistrates, District and Supreme Courts
Our team understands that facing the possibility of imprisonment can be extremely stressful. We provide clear advice about your position and work towards achieving the best possible outcome in the circumstances.
Speak with Cridland & Hua
If you are facing sentencing in Queensland, or you have been charged with an offence while subject to a suspended sentence, it is important to understand your options before appearing in court.
Call Cridland & Hua on (07) 3211 3177 or contact us online for confidential advice.
