The criminal law in Queensland requires a Court to have regard to an offender’s character when sentencing the offender.
In determining the character of an offender, a Court may consider amongst other things, the criminal history of the offender as indicated by the number, seriousness, date relevance and nature of any previous convictions of the offender.
In addition to being a matter that may be the subject of consideration for every sentence, an offender’s criminal history may also render them liable to being sentenced to a greater penalty if they have previously committed the same offence or a similar type of offence, provided the prosecution have first given to the offender and the Court a document called a Notice of Intention to Allege Previous Convictions (“Notice”).
One such offence is contravening a Domestic Violence Order. The Domestic and Family Violence Protection Act provides that an offender is liable to 120 penalty units or 3 years imprisonment. However, if within five (5) years before the commission of an offence against this subsection, the offender has been previously convicted of a domestic violence offence then the offender is liable to a maximum penalty of 240 penalty units or five (5) years imprisonment.
If the Notice is not given or the relevant information contained in the Notice is not correct, the sentencing court is precluded from taking the greater penalty into account when sentencing the offender.
Taking the example of a contravention of Domestic Violence Order, if an offender was convicted of contravening a protection order in the previous five (5) years but a valid Notice is not given, a Court cannot impose a penalty greater than 120 penalty units or three (3) years imprisonment even though the prior conviction appears on their criminal record. Although the Court cannot impose a sentence greater than 120 penalty units or three (3) years imprisonment, the Court can still consider any previous convictions when deciding on the appropriate penalty.
As the issue of whether a valid Notice has been given to an offender or the Court can impact on the sentence that is imposed on a person, it is our strong recommendation that you contact our office for advice if you have been served with a Notice, or if you believe that a Notice will be given to you by the Police.