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”) provides sentencing guidelines and lists the 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 Sex Offenders Registration Amendment Act 2016 (Vic) provides for probation orders to be made in relation to registered sex offenders (seeProhibition orders for sex offenders”). Another example is that suspended sentences are no longer available in the Magistrates’ Court (seeSuspended sentence”).

The references to legislation in this chapter 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;

deterring the defendant and others from committing similar offences;

establishing conditions for the defendant’s rehabilitation;

denouncing the defendant’s conduct; and

protecting the community from the defendant,

or a combination of the above.

Section 5(2) of the Sentencing Act 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 people 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 first, before considering imprisonment (seeSentencing orders available to the court”).

Sentence discounts and sentence indications

Section 6AAA of the Sentencing Act allows the court to apply specific sentencing discounts when a defendant pleads guilty.

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 the defendant then pleads guilty, 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 (see Legal services that can help).

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.