When a person is convicted of a criminal offence, the courts have the power to impose prison or custodial sentences in Australia. Governed by the Penalties and Sentences Act 1992, the purpose of imposing a prison sentence is to punish the offender to an extent that is just, rehabilitate the offender, denounce the offending behaviour, protect the community from the offender, or deter others from committing a similar offence. A prison sentence can be structured as actual jail time or as time spent in the community. Here are the potential prison sentences you might face in Australia.
Key Factors for Prison Sentences in Australia
Under section 9 of the Penalties and Sentences Act 1992, the courts must take into account the following principles when sentencing an offender:
- A prison sentence should only be imposed as a last resort;
- The maximum and minimum penalty prescribed for the offence;
- The nature and seriousness of the offence, including any physical, mental or emotional harm to the victim;
- The extent to which the offender is to blame;
- Any damage, injury or loss caused;
- The offender’s age, character, intellectual capacity;
- The presence of any aggravating or mitigating factors concerning the offender;
- The prevalence of the offence;
- How much assistance the offender gave to law enforcement agencies in the investigation of the offence;
- Time spent in custody by the offender before being sentenced;
- Sentences already imposed on the offender that have not been served;
- If the offender is the subject of a community-based order;
- If the offender is on bail and is required under the offender’s undertaking to attend a rehabilitation;
- If the offender is Aboriginal or Torres Strait Islander – any submissions made by a representative of the community justice group in the offender’s community; and
- Any other relevant circumstances.
Types of Prison Sentences in Australia
Here are five potential prison sentences that could apply to your unique situation in Australia.
Imprisonment should only be used as a last resort in Australia. When an offender is sentenced to prison, the term must be more than the minimum period set by the legislation and not more than the maximum period. The maximum prison terms ultimately depends on the crime committed. Under Queensland legislation, offences that carry a life prison sentences as the maximum penalty in Australia include murder, attempted murder, manslaughter and rape. Legislation also states the minimum non-parole periods for these offences. Section 305 of the Criminal Code Act 1899 states that a minimum prison sentence of 25 years, and potentially 30 years, must be served before a potential release from imprisonment.
Imprisonment With Parole
When an offender is sentenced to a term of imprisonment, the Court may be required to set a parole release or eligibility date, on which a prisoner may apply for release to parole by a Parole Board. If no parole date is set by the Court, a prisoner may apply for parole after serving half of their sentence, or 80% of their sentence for serious violent offences. An offender is entitled to a court-ordered parole if they are sentenced to three years in prison or less.
Intensive Correction Order (ICO)
An ICO is a court sentence that allows a person to serve their prison sentence in the community under close supervision and strict conditions. This type of prison sentence is applicable to offenders sentenced to jail for one year or less. Conditions and obligations that must be met under an Intensive Correction Order include not breaking the law during the period of order, taking part in counselling and other programs as directed by the Court, and reporting to a corrections officer within the time stated in the ICO. If any conditions or obligations are breached, the offender may have to spend time in prison instead of the community.
When an offender is sentenced to prison for five years or less, the Court may choose to suspend all or part of the sentence for a set period of up to five years. The suspension period can commence immediately or after the offender spends some time in jail. If the offender commits another offence punishable by imprisonment during the suspended sentence period, they will be ordered to serve the term of imprisonment that was suspended.
Combined Prison and Probation Order
With this prison sentence, the Court can impose a term of imprisonment of one year or less, followed by a probation period in the community.
Do You Require Legal Advice Regarding Prison Sentences in Australia?
If you have been accused of a crime that may result in one of these prison sentences in Australia, it is best to seek legal advice and representation as soon as possible. Our team of specialised criminal lawyers are experienced in all areas of criminal law, including prison sentences, and can help you understand your rights. Please get in touch with our team to see how we can help you.