Diversion and alternatives to imprisonment in Queensland

What the court is trying to achieve

Before choosing a penalty, a court weighs the purposes of sentencing in section 9 of the Penalties and Sentences Act 1992 (Qld). Those purposes are to punish the offender to an extent that is just, to deter both the offender and others, to denounce the conduct, to protect the community, and to rehabilitate.

Those purposes are balanced against the facts of the offence and the circumstances of the person being sentenced. That framework is the starting point for every discussion about alternatives to imprisonment.

Section 9 also contains a general principle that a sentence of imprisonment should be a last resort, and that a sentence allowing an offender to stay in the community is preferable. That principle does not apply to every offence, and it is expressly modified for offences involving violence and some other categories.

Community based orders

Public sentiment does not always agree, but community based orders are not a let-off. They are sentences with enforceable conditions, supervised by Queensland Corrective Services, and breaching them can put you back before the court and into custody.

Probation

A probation order places you under supervision for a set period. The core conditions are prescribed by section 93 of the Act and include:

• not committing another offence during the period of the order;
• reporting to and receiving visits from a corrective services officer;
• attending programs or counselling as directed;
• notifying your officer of any change of address or employment within two business days;
• not leaving Queensland without permission; and
• complying with every reasonable direction.

Probation is often combined with another penalty such as a fine, and the court can add further conditions. It suits cases where rehabilitation prospects are genuine and the risk can be managed in the community.

Community service orders

A community service order requires unpaid work for an approved organisation, expressed as a number of hours to be completed within a set period, usually 12 months.

The court can impose one whether or not it records a conviction. Conditions cover reporting, completing the hours in time and obeying directions. Community service is used where punishment, reparation and structured supervision are appropriate but imprisonment is not called for.

Intensive correction orders

An intensive correction order is a sentence of imprisonment of 12 months or less, served in the community rather than in a prison. The Act describes it as serving the term by way of intensive correction in the community and not in a prison.

Requirements typically include not reoffending, reporting more frequently than under probation, participating in programs and complying with directions. You must consent to an ICO before one can be made.

If an ICO is breached, the court can revoke the order and require you to serve the outstanding term in custody. ICOs are generally reserved for cases where a short term of imprisonment would otherwise be imposed but close supervision and programs are a better way to manage the risk.

Suspended sentences

For a term of imprisonment of five years or less, a court may suspend all or part of the term for an operational period. You serve nothing, or serve part and have the balance suspended.

If you commit an offence punishable by imprisonment during the operational period, the court can activate some or all of the suspended term. A suspended sentence sits between immediate custody and a wholly community based order. It records that imprisonment was warranted while giving you the chance to stay offence free.

Drug and alcohol diversion

Queensland has two diversion programs connected to the Magistrates Courts, plus a police diversion pathway. They are designed to address low level drug use behind offending, reduce reoffending and in some cases avoid a conviction being recorded.

• Police Drug Diversion Program. For eligible minor possession matters, police can offer a legislated diversion instead of prosecution. You must complete an assessment or education session.
• Illicit Drugs Court Diversion Program. For eligible minor drug offences dealt with in the Magistrates Court, including for young people, the court may refer you to a brief education or intervention session instead of imposing a traditional penalty.
• Drug and Alcohol Assessment and Referral. Available to adults in the Magistrates Court where alcohol or other drug use contributed to the offending. It can be offered up to twice in five years, and where it is completed under a recognisance, a conviction is typically not recorded for the minor drug offence.

Eligibility rules for each program are specific. Whether you qualify depends on the charge, the quantity, your history and whether you have used the program before.

Adult restorative justice

Queensland offers adult restorative justice conferencing in appropriate matters. A trained convenor brings together the person who offended and the person harmed, where the victim wants to take part, to discuss what happened, the impact and what can be done to make amends.

Outcomes can include an apology, a commitment to counselling or other agreed action. Participation is voluntary on both sides and it is not suitable for every matter.

Courts consider restorative justice because it can address what a victim actually wants, produce genuine accountability and reduce the likelihood of reoffending, which aligns with the section 9 purposes.

How a court chooses

Every case turns on its facts. Common considerations include:

• the seriousness of the offence and any statutory constraints on the available penalty, including mandatory components;
• the offender’s personal circumstances, criminal history and rehabilitation prospects;
• a suitability assessment by corrective services, which is required for some orders; and
• consent, where the order requires it.

Getting a community based order made usually requires more than asking for one. The court needs material: a suitability assessment, evidence of treatment engagement, employment or study, references, and a plan that makes the order workable.

What happens if you breach

Breaching a community based order by missing appointments, failing to complete hours, ignoring directions or reoffending brings you back before the court.

The Act gives courts powers ranging from amending the conditions, to revoking the order and resentencing you for the original offence. Where an ICO is revoked, that can mean serving the remaining term in custody.

For a suspended sentence, committing a fresh offence punishable by imprisonment during the operational period may result in part or all of the suspended term being activated. The court must activate the whole term unless it would be unjust to do so, which is a real hurdle.

Where this leaves you

Queensland courts do not default to prison, particularly for lower level offending where treatment, education and supervision will protect the community better in the long run.

These are still real sentences with real consequences, and they need to be earned with evidence. If you have a sentence date coming up and want to know whether probation, community service, an intensive correction order or a diversion program is realistically available, speak to our criminal law team well before the date.