The Penalties and Sentences Act of 1994, governs every aspect of Queensland’s sentencing process and is one of our most important pieces of legislation; implementing a completely impartial justice sentencing system. This act attempts to establish a balance between punishments and positive outcomes for all the key stakeholders, but has come under scrutiny of recent times for supposedly being “soft on crime” (Judicial Conference of Australia, 2014). A considerable number of Queenslanders believe however, that the current legislation can also be inconsistent and weak; this debate has grabbed the attention of people in other Australians jurisdictions. They argue however, the best way to deter and reduce crime is a judicially ‘tailored’ process of sentencing, balancing positive outcomes for the victims and the community with what is appropriate for the convicted individual. Because of this the Discretionary provisions should not be diminished or removed. If this system of discretionary sentencing is reduced or abolished completely there will be no benefit for any stakeholder and in fact the ridiculously harsh and unjust substitute of mandatory sentencing would create injustice.

The Penalties and Sentences Act of 1994 is the current legislation relevant to sentencing in Queensland. Without it, there wouldn’t be any consideration of mitigating or aggravating factors, nor would offenders be punishable to an extent or way that is in accordance of any circumstances (USQ Australia, 2014 – Penalties and Sentences Act 1992). The Penalties and Sentences Act clearly states, 9.1) “The only purpose for which sentences may be imposed on an offender are – a) to punish the offender to an extent or in a way that is just in all the circumstances” (Queensland Government Legislation, 1992 – Penalties and Sentences Act 1992). According to 9 (1) a-e) of this act, theories of punishment are to be considered to offenders when sentenced. This means that offenders can only be punishable for a crime that has the same weighting as the offence itself. Similarly, 9 (2) a-q) acknowledges that there must be an examination of any other circumstances that is relevant to a case before a sentence can be made (Queensland Government Legislation, 1992). The benefit of this is that sentences become flexible where the theories of punishment of 9 (1) a-e) allow the judicial system to evaluate more than one possible outcome for an offender (according to the act, there must be a combination of 2 or more theories when providing a sentence) (Austlii, 1992).

The intentions of the elements of the Penalties and Sentences Act’s discretionary provisions are to assist the judicial system to sentence appropriately, aiming to pursue justice with minimal harm to stakeholders, making it exceedingly beneficial in comparison to a more mandatory approach. This discretionary approach appropriately accommodates each and every offender, the general community, the victims of crime as well as any other directly affected stakeholder. Despite the fact that Discretionary Sentencing is perceived by some as being lenient or weak, it does offer a wide variety of sentencing options as opposed to mandatory sentencing. The case of R v Wurramara in Western Australia is a fine example of how involving discretionary sentencing as opposed to mandatory sentencing can create indefinitely contrasting results. In the Northern Territory, where the three strikes policy is currently being used, sentencing provisions apply for crimes relating to theft. Jamie Wurramara was charged, on his third offence, for stealing $23 worth of food supplies in 1998. Rather than imposing a fine or checking the factors and circumstances associated with this offence, Wurramara was imprisoned for 12 months because it was his third offence. Had he committed the crime in Queensland the sentencing would have been very different. Considering the situation Wurramara would have been sentenced according to 9 (1) a-b) of the