Imprisonment is the harshest sentence available to Queensland courts to punish offenders and to deter others from committing similar offences. Some crimes are so serious that the court will impose imprisonment even for a first offence and regardless of the offender’s otherwise good character. In other cases, the court will only use imprisonment as a last resort, and usually because other types of punishment have not been sufficient to deter the offender from re-offending. Somewhere in the middle are cases that would otherwise require the offender to be imprisoned but, because of the overall circumstances in which the offence was committed, the court thinks that it would be unjust to send them into custody.
Because of this wide variety of cases, the courts have some latitude in deciding how sentences of imprisonment may be structured. In short, the courts have 3 main ways to impose imprisonment: (1) wholly suspended sentences; (2) immediate release onto parole; and (3) actual imprisonment with a requirement to serve time.
The purpose of this article is to explain briefly each of these 3 types of sentences to help you understand the options the court has should you find yourself facing a potential term of imprisonment.
Wholly Suspended Sentences
Sentences that are wholly suspended could be described as nominal sentences of imprisonment, owing to the fact that they do not require you to spend any actual time in custody. Instead, the force of the punishment consists of a threat of being imprisoned at a future time should you commit any further offences.
The court determines how long you are subject to this threat of future imprisonment. It may be for as long as the suspended sentence itself, or for a longer period (up to a maximum of 5 years). Because of this feature, suspended sentences have 2 timeframes: the period of the nominal imprisonment (the “sentence” itself) and the “operational period” of the sentence (how long the sentence hangs over you as a threat of future punishment). Usually, the operational period is proportionate to the length of the sentence.
It is best to understand suspended sentences by way of an example. Suppose you are convicted of a serious offence. The court decides that the appropriate punishment is to imprison you for 12 months. However, the court also decides that it should wholly suspend the imprisonment. It then decides that the operational period of the suspension is 2 years. What does this mean?
In short, it means that you do not serve any actual time in custody. It also means that you are subject to the threat of 12 months’ imprisonment for 2 years, starting from the date of sentence. It also means that, if (during those 2 years) you are convicted of any offence that attracts imprisonment as a possible punishment, the court ought to make you serve the 12 months’ imprisonment in addition to any other punishments you may face for the new offending.
The court acts on the presumption that it should activate the suspended sentence unless it is unjust to do so. In other words, should you commit another offence during the operational period of a suspended sentence, you face an uphill battle convincing the court not to send you to prison.
Imprisonment with Immediate Release onto Parole
Like wholly suspended sentences, imprisonment with immediate release onto parole does not require you to spend any actual time in custody. Similarly, immediate release onto parole comes with the threat of future imprisonment should you be convicted of any further offence while subject to parole.
However, unlike wholly suspended sentences, you spend the period of imprisonment under a form of supervision in the community. This supervision comes in the form of reporting to your nearest Probation and Parole office at a frequency decided by your parole officer. Your parole officer also has the authority to make you undergo regular alcohol and / or drug testing (if appropriate), alcohol and drug intervention courses, counselling, or other meetings. The purpose of these conditions to help you address any underlying issues which may have caused you to offend in the first place. There is a risk that you may continue to commit offences if these issues are not resolved.
Other, standard conditions of parole include:
- Not committing any other offence during the period that you are on parole;
- Updating Probation and Parole of any change of address, or change of employment within 48 hours of the change;
- Receiving home visits from Probation and Parole, as directed;
- Not leaving the State of Queensland without the prior permission of Probation and Parole; and
- Complying with any other lawful direction given to you by Probation and Parole.
Should you breach any of these conditions, Probation and Parole may take action to prevent you from committing any further breaches. Such actions may include adding further conditions to your parole, or issuing a verbal or written warning. However, if the breach is serious enough, Probation and Parole may suspend your parole and issue a warrant for your arrest. In this case, you will be put in custody for up to 28 days. In an extreme case, Probation and Parole may refer you to the Parole Board, who has the power to cancel your parole completely.
Should you be convicted of any further offences, and sentenced to another period of imprisonment (however served), your existing parole is automatically cancelled.
Serving Actual Time
A sentence of imprisonment requiring you to serve a period of time in actual custody is the most serious form of imprisonment in Queensland. The very day that you are sentenced to imprisonment involving actual time, you are taken immediately from the courtroom and into the custody of Correctional Services. You remain in custody until the end of the period of imprisonment set by the court.
You generally do not serve the entire period of imprisonment. Similar to suspended sentences, there are 2 timeframes involved in sentences of imprisonment: the total period for which imprisonment is ordered (often referred to as the “head” sentence) and the amount of time you are required to serve in actual custody.
As a general rule, you only serve approximately one-third of the entire sentence if you plead guilty. If you are found guilty at the end of a trial, you can expect to serve up to one-half of the head sentence. While these are general rules, it is ultimately up to the court to decide how much of the head sentence you must serve in actual custody. Any exceptional features of your case may convince the court to order that you serve less time in actual custody if those features are in your favour. Of course, you may be required to serve more time in custody if those exceptional features are not in your favour.
However, there are some legislated exceptions. For example, if you are convicted of a “serious violent offence”, you must remain in prison for either 80% of the head sentence or 15 years, whichever is the lesser period of time. There are similar rules for those sentenced to “life” imprisonment, those convicted of drug trafficking and who are members of criminal organisations, etc.
Once you have served the required amount of time in prison, the remainder of the sentence may be suspended. If this occurs, the remaining time under the head sentence hangs over you in precisely the same way as a wholly suspended sentence. It is more likely, however, that you will be released onto parole.
How you are released onto parole depends on the length of the head sentence. If you are sentenced to imprisonment for 3 years or less, the court determines the date you will be released onto parole. This means that, when that date arrives, you are automatically released from prison. However, if you receive a sentence of more than 3 years, then the court is permitted to determine only the date you are eligible to apply for parole. This means that this is the earliest date that you may apply to the Parole Board to determine whether you are suitable to be released onto parole. It may take several weeks, or even several months, for the Parole Board to make a decision about your application. You remain in custody until this decision is made. You will also remain in prison if the Parole Board decides to reject your application for parole.
Your parole date or parole eligibility date is automatically cancelled if you are convicted of a another offence and sentenced to a further period of imprisonment.
Once you are released onto parole, you are subject to the usual parole conditions described above, including conditions that you undertake drug and alcohol testing, attend counselling, programmes, or meetings, etc.
You remain on parole until the end of the head sentence.
Recording of Conviction(s)
If you are sentenced to any form of imprisonment (however you are ordered to serve it), the court must formally record conviction(s) for the offence(s). The court has no discretion not to record convictions once it sentences you to prison (even if it ultimately decides that you should not serve any actual time).
This means that these conviction(s) will appear on any police / criminal background checks.
Conclusion
Sentences of imprisonment are not straight-forward punishments. The courts take these types of punishments seriously and do not hand them out lightly. On the other hand, the courts are not hesitant to use their power to imprison once if they consider doing so warranted in the circumstances. To balance these competing considerations, the law has developed a certain level of flexibility (and complexity) within sentences of imprisonment, such that, even though you are sentenced to the harshest punishment under Queensland law, you may not necessarily spend any time at all behind bars.
Because of this, it is crucial that you get expert legal advice if you think that you might be at risk of being sentenced to prison.
