Legislation and guidelines

Contributor: Peter Lynch

The Sentencing Act 1991 (Vic) sets out both the “purpose” and “factors to be considered” in sentencing in the Magistrates’ Court of Victoria. For young offenders, rehabilitation is the principle consideration in sentencing.

Sentencing Act

The Sentencing Act 1991 (Vic) (“Sentencing Act”) governs sentencing guidelines and penalties available in Victorian Magistrates’ Courts for people found guilty of offences by Victorian courts (except the Children’s Court (s 4), which has its own sentences; see The Children’s Court).

The Sentencing Act is subject to regular legislative changes. For example, the Summary Offences and Sentencing Amendment Act 2014 (Vic) provides for the new sentence of an alcohol exclusion order for persons convicted of alcohol related violent offences). Another examples is the penalties of home detention orders and suspended sentences are no longer available as sentences in the Magistrates’ Court (seeSuspended sentence”).

All the following references to legislation are to the Sentencing Act 1991 (Vic), unless otherwise stated.

Sentencing guidelines

Section 5(1) of the Sentencing Act sets out the purposes of sentencing, which are:

just punishment;

deterrence of the defendant and others from committing similar offences;

the establishment of conditions for the rehabilitation of the defendant;

denunciation of the defendant’s conduct; and

the protection of the community from the defendant,

or a combination of the above.

Section 5(2) requires magistrates making sentencing orders to consider:

the maximum penalty for the offence;

current sentencing practices;

the nature and gravity of the offence;

the defendant’s culpability and degree of responsibility for the offence;

whether the defendant has pleaded guilty and at what stage such a plea was indicated;

the defendant’s previous character;

the presence of aggravating or mitigating factors;

the impact of the offence on the victim and the victim’s personal circumstances;

any injury, loss or damage resulting directly from the offence; and

whether the offence was motivated (wholly or partly) by hatred for, or prejudice against, a group of persons with common characteristics to the victim.

Courts are also directed to not impose a more severe penalty if a less severe penalty can achieve the sentencing purpose (s 5(3)–(7)). For example, the court should consider imposing a community corrections order before imprisonment (seeSentencing orders available to the court”).

Sentence discounts and sentence indications

Section 6AAA of the Sentencing Act provides for the court to allow specific sentencing discounts for guilty pleas.

In addition, magistrates can be requested to give an indication of the sentence that could be imposed on a defendant if they plead guilty to an offence. If a magistrate provides a sentence indication, and a plea of guilty results, then the magistrate cannot impose a more severe sentence than the one indicated (ss 60, 61 Criminal Procedure Act 2009 (Vic)).

Legal advice should be obtained about the merits of (and the procedures surrounding) sentence indications and discounts.

Non-conviction orders

Courts can make the following non-conviction orders:

a charge adjourned without conviction for up to 60 months (seeAdjournment without conviction”);

a fine without conviction (seeFine”); or

a community correction order (s 7(1)(e)).

Courts, in determining whether or not to record a conviction, must consider the nature of the offence, the defendant’s character and past history, and the impact a conviction would have on the defendant’s economic or social wellbeing and employment prospects (s 8 Sentencing Act). Generally speaking, without conviction penalties are only ordered for less serious offences or for defendants with no prior criminal history.

Contacts and resources