Contributor: Peter Lynch
Taking into consideration all the circumstances of the case – including the impact upon the victims of the crime and the accused’s personal situation – the court has numerous options available when considering the penalty. Many sentences can be imposed with or without conviction.
A summary of sentencing orders
Sentencing orders can be grouped into the following categories:
•drug treatment order;
•Youth Justice Centre order;
•community corrections order;
•conviction and adjournment or discharge;
•non-conviction conditional adjournment with an undertaking or dismissal;
•deferral of sentence for defendants;
•cancelling or suspending driver’s licences and permits;
•alcohol exclusion order;
•prohibition orders for registered sex offenders;
In 2012, four orders (the intensive corrections order, the combined custody and treatment order, the community-based order, and the intensive corrections management order) were replaced with one community order: the community corrections order. Also in 2012, the home detention order was abolished as a sentence that can be imposed in the Magistrates’ Court. Also, suspended sentences are no longer available for Magistrates’ Court offences committed on or after 1 September 2014.
The Magistrates’ Court must order a pre-sentence report before imposing a community corrections order (unless the only condition is that the defendant serve up to 300 hours of unpaid community work) or a Youth Justice Centre order, and may order such a report in any other case (s 8A). The pre-sentence report must be filed with the court, and copies of the report must be given to the prosecutor, the defence lawyer and (if the court consents) to the defendant (s 8(c)).
The prosecutor or defence lawyer may file with the court a notice of intention to dispute the pre-sentence report. This allows evidence to be called and cross-examined on the report (s 8(c)).
Imprisonment orders are to be served in full; however, time held in custody before sentencing will usually be deducted from time to be served.
Magistrates may sentence a defendant for up to two years for a single offence (provided the maximum penalty is two years or more) (s 113A Sentencing Act) and five years for aggregate offences (s 113B). Magistrates may impose one aggregate sentence of imprisonment for offences based on the same facts or which are of a similar character (s 9).
Defendants ordered to serve more than one term of imprisonment shall, unless otherwise ordered, serve the sentences concurrently (i.e. at the same time) (s 16(1A)). However, courts may order that the sentences be served cumulatively (e.g. a second sentence starts after the first sentence is completed).
Cumulative sentences are imposed for imprisonment in default of fine payment, for a prison offence and for escape offences (s 16(1A)). Also, defendants imprisoned for offences committed while on bail (s 16(3B)) or on parole (s 16(3C)) are generally required to serve their sentences cumulatively. Similarly, the penalty for a contravention of a community corrections order or a contravention of a suspended sentence (s 831 AR(6)) must generally be served cumulatively with the original sentence.
A drug treatment order (DTO) may be ordered for defendants with a drug or alcohol problem (which contributed to the offence) who plead guilty to offences heard in the Magistrates’ Court (other than sexual charges or assault charges involving injury to the victim (s 18Z Sentencing Act)). DTOs are supervised by the Victorian Drug Court. A DTO is only ordered after a detailed assessment by the Drug Court team of the defendant’s suitability (s 18ZQ).
A DTO has two parts:
1 a treatment and supervision part (that usually lasts for two years), which consists of conditions addressing the defendant’s drug or alcohol dependency; and
2 a custodial part, which is a term of imprisonment of up to two years that is suspended upon the defendant entering a DTO (s 18ZC).
If a DTO is cancelled or breached, the defendant will usually have to serve the custodial part in prison (s 18ZE).
The Victorian Drug Court is located at the Dandenong Magistrates’ Court. It is possible for defendants suitable for DTOs who have charges listed at other Magistrates’ Courts to have the charges transferred to the Dandenong court, provided this is done before a guilty plea is entered. However, to be eligible for a DTO, defendants must live near the Dandenong Magistrates’ Court or be without a fixed residence. For further enquiries, contact the Drug Court of Victoria.
At the time of writing (30 June 2016), it is proposed that a Drug Court start operating at Melbourne Magistrates’ Court. Like the Drug Court in Dandenong, people must live near the Melbourne Magistrates’ Court to be eligible to access the Drug Court.
Victorian Drug Court
Dandenong Magistrates’ Court
Cnr Foster and Pulteney Streets, Dandenong Vic 3175
Tel: 9767 1344
Suspended sentences are ordered when a court believes that although the offence(s) are serious enough to warrant imprisonment, the sentence of imprisonment is not to be totally served in prison. Imprisonment sentences can be suspended either wholly or partially.
Magistrates will not be able to impose suspended sentences for offences committed on or after 1 September 2014. Therefore, the provisions for suspended sentences set out below only apply to Magistrates’ Court offences committed prior to 1 September 2014 (irrespective of the court hearing).
Partially or wholly suspended sentence
A Magistrates’ Court may suspend a sentence of imprisonment of up to 24 months (s 27). This may be a partially suspended sentence (i.e. the defendant serves part of the term of imprisonment) or a wholly suspended sentence (i.e. the defendant does not go to prison unless they commit further offences during the operational period of the suspended sentence) (see “Contravention of suspended sentence”).
This is governed by section 83AR of the Sentencing Act (which replaced section 31).
The term “breach of suspended sentence” has been replaced by the term “contravention of suspended sentence”.
A defendant who commits offences during the operational period of a suspended sentence may be dealt with by the court by:
•the restoration of part or all of the suspended sentence;
•an extension of the operational period of the suspended sentence treatment period for up to 12 months; or
•no order at all (s 83AR(1)).
The normal practice is to fully restore the suspended sentence for offences committed during the operational period. Defendants who contravene a suspended sentence by further offending are to be imprisoned, unless the court believes that it would be unjust in view of exceptional circumstances that have arisen since the suspended sentence was made (s 83AR(2)). The prison sentence must generally be served cumulatively on the sentence imposed for the contravention offence (s 83AR(3)). Also for defendants contravening suspended sentences, there is an additional penalty of up to three months imprisonment.
However, if the defendant is under 21 years and contravenes a suspended sentence, they may serve the sentence in the Youth Justice Centre (s 83AR(4)) provided the court is satisfied that this is appropriate.
All the above provisions on suspended sentences were repealed on 1 September 2014, except for suspended sentences imposed for offences committed prior to 1 September 2014 for which the above enforcement provision will still apply (s 149D).
A Youth Justice Centre (YJC) order may be imposed for young offenders (aged over 18, but under 21 on the day of the court hearing) for a maximum period of 24 months (s 32 Sentencing Act).
The court may impose a YJC order only after it has received a pre-sentence report on the defendant from the Department of Health and Human Services (s 96(3)) (this often means an adjournment, which could result in the defendant being remanded in custody). The court must also believe that there are reasonable prospects for the rehabilitation of the defendant, who must be unsuitable for an adult prison (s 32). Courts imposing YJC orders must also consider the nature of the offence, and the defendant’s age, character and past history (s 32).
The community corrections order (CCO) has replaced the intensive corrections order, the combined custody and treatment order, the community-based order, and the intensive corrections management order. The CCO is now the only community-based sentencing order available to magistrates.
•can be ordered with or without convictions (s 7(1)(c));
•can only be for a maximum or two years if ordered in the Magistrates’ Court (s 38(1));
•may require up to 600 hours of unpaid community work;
•requires a pre-sentence report unless the only condition is up to 300 hours of unpaid community work (s 8A(3));
•requires a drug and alcohol assessment (s 8E);
•requires mandatory conditions, such as reporting new addresses and notifying authorities when moving interstate.
The court may impose optional conditions (many of which are new) including:
•treatment and rehabilitation conditions (s 48D);
•restrictions on use of alcohol or drugs (s 48J) (see Alcohol exclusion orders);
•restrictions on association with certain persons (s 48F);
•restrictions on where defendant may reside (s 48G);
•curfew restrictions (s 48I);
•judicial monitoring conditions, which may include the requirement that the defendant attend court during the period of the CCO and answer a magistrate’s questions regarding the defendant’s ongoing treatment (ss 48K, 48L);
•an intensive compliance period – if the CCO is for six months or more, the court may order an intensive compliance period during which the defendant is to do certain things within this period (s 39);
•a sentence of imprisonment and a CCO – the court may also order a sentence of imprisonment of up to three months and a CCO (similar to the old CCTO) (s 44).
A CCO cannot be ordered in addition to a suspended sentence for offences heard on the same date (s 44(2)).
Fines – the most common penalty imposed for Magistrates’ Court offences – may be imposed with or without a conviction (s 7 Sentencing Act). The court may impose a single fine for multiple offences that are similar, but this fine should not exceed the sum of the maximum fines that can be imposed for each offence (s 51).
When imposing the amount and method of payment of a fine, the court should take into account the defendant’s financial circumstances (including any order as to compensation) and the nature of the burden that payment of the fine will impose (s 50(1)). The court is also required to take into account the destruction or loss of property (if any) and the value of any benefit the defendant may have derived from the offence (s 54).
Fines in offence penalty sections are usually defined in terms of penalty units (pu) (see “A note about penalty units”). The maximum fine the Magistrates’ Court can impose on a defendant is 500 pu (s 112A Sentencing Act).
If the court considers ordering a fine or a compensation order against a low-income defendant, it must give preference to the compensation order (s 50(4)).
A defendant may apply to pay their fines over a fixed term (e.g. three months) (s 59) or by instalments (e.g. $40 per month) (s 56). For further details, a defendant should contact the registrar’s office at the court where the fine was imposed.
Unpaid fines can be dealt with in a number of ways:
•a defendant can apply to the court for a fine conversion order (s 66);
•a warrant can be issued for the arrest of fine defaulter (s 69);
•a court can make a fine default unpaid community work order (s 69D);
•a court can reduce or discharge a fine if it is satisfied there is a material change in circumstances or the defendant’s circumstances were wrongly stated when the fine is imposed (s 69G);
•a court may make an imprisonment order (s 69N).
A defendant with unpaid fines should contact their local Magistrates’ Court for information about alternatives to payment.
If a fine remains unpaid for more than one month – unless a defendant has consented to the unpaid fine being converted to community work – a warrant may be issued (s 62(1)). However, the defendant must be given seven days before the warrant is executed. During this time they can apply for an instalment order, or for time to pay, or consent to the court’s ordering them to perform unpaid community work (s 62(7)).
Magistrates can make fine default unpaid community work orders for all unpaid fines (s 62A).
Defendants who are arrested on warrant for fine default may be dealt with by a unpaid community work order, an instalment order, having their property seized by warrant, adjournment for up to six months, or by being imprisoned (s 62(10)). Imprisonment for fine default is considered a last resort for people who wilfully refuse to pay when they are able (s 63). Imprisonment for unpaid fines is to be served cumulatively with any other sentence (s 16(2A)).
A common penalty imposed for minor offences and for first offenders is the adjournment of the charge with or without conviction with certain conditions attached, such as being of good behaviour for the adjourned period and also making a contribution to the court fund.
Section 70(1) of the Sentencing Act sets out the circumstances in which these penalties should be considered. These include exceptional circumstances; or when the offence is so trivial it’s inappropriate to record a conviction or impose punishment, or to aid the rehabilitation of the offender.
The Act includes guidelines to allow a defendant to demonstrate remorse in a manner agreed to by the court (s 70(1)(ba)).
A defendant may be convicted of an offence, have their case adjourned for up to 60 months, and be released after giving an undertaking to be of good behaviour in the meantime and to observe any special conditions in the interim (s 72 Sentencing Act). A defendant may also be convicted and discharged for any offence (s 73).
The court may, after finding a defendant guilty of an offence, adjourn the hearing for up to 60 months and release the defendant on their giving an undertaking to be of good behaviour and to undergo any special conditions ordered by the court (e.g. a contribution to the court fund, or attending a treatment program) (s 75 Sentencing Act).
A conditional adjournment (s 75) and a fine without conviction (see “Fine”) are now commonly sought orders in the Magistrates’ Court, as both penalties avoid conviction.
In deciding whether or not to record a conviction, the court must take into account the nature of the offence, the defendant’s character and past history, and the impact a conviction would have on the defendant (s 8). The court may also dismiss any charge without conviction (s 76).
A common condition of the two adjournment penalties was that the defendant had to make a financial contribution (e.g. $500) to the court fund or to a charitable organisation.
However, in the 2013 case of Brittain v Mansour, the Supreme Court ruled that such contributions cannot be made conditions of adjourned undertakings.
Section 8 of the Justice Legislation Amendment Act 2013 (Vic) has clarified this situation by providing that for section 72 (adjourned with conditions) and section 75 (adjourned without conditions) penalties, the court may set a condition requiring the defendant to pay financial contribution to a charitable organisation or to the court fund.
The new schedule 4 of the Act validates all previous orders regarding adjournment penalties with financial contribution conditions.
The JLA Act has introduced standard provisions for defendants who contravene a CCO and adjournment with undertaking (the original sentence).
There are two forms of contravention:
1 offending during the period of sentence; or
2 general non-compliance with the condition of sentence.
If the defendant is before the court (usually for breach offences) then the court that imposed the original sentence can resentence on the breach or transfer the matter to the court that imposed the original sentence (s 83A1).
If the defendant is not before the court, then a contravention summons or warrant to arrest may be issued to bring the defendant before the court for breach of the sentence (s 83AJ).
Contravention proceedings can be issued (for contravention offences) within six months of the offence, otherwise for general non-compliance not involving offending, within 12 months (s 83AH).
Section 83(1) of the Sentencing Act allows magistrates to defer sentences for up to 12 months for suitable defendants, regardless of age. The Act sets out the purpose of deferral (which is the defendant’s rehabilitation) and it provides for defendants to participate in certain programs.
When a defendant faces multiple offences, a magistrate may impose a CCO for some offences (with judicial monitoring) and defer the sentence for other offences for up to 12 months.
Section 89AB, provides magistrates with additional powers to suspend or cancel drivers’ licences or permits for any offence (s 89AB(1)).
This is a general power and does not apply to offences under the Road Safety Act 1986 (Vic) or to serious motor offences (such as car theft under the Sentencing Act), which have their own penalty provisions (s 89AB(2)).
Defendants disqualified under section 89AB must apply for their licence to be restored (s 89AE) (for further information, see Driving offences).
Under the Summary Offences and Sentencing Amendment Act 2014 (Vic), magistrates can make alcohol exclusion orders (AEO) for defendants convicted of certain violent offences while intoxicated, and where intoxication significantly contributed to the violent offence (s 89DE(1)). An AEO can prohibit defendants from attending certain specified licensed premises and some major events – this is similar to the conditions that can be imposed on a community corrections order (see above).
An AEO can be in force for two years but can only be made against a defendant who has not previously had an AEO. Breach of an AEO is an offence punishable by imprisonment for up to two years (s 89DF).
The normal practice before an AEO is made is for the police to make application prior to the court hearing, although an AEO can still be made by the magistrate even without a police application (s 89DD(4)).
In certain circumstances, a defendant can seek an exemption to the conditions of an AEO (s 89DE(5)) or apply for a variation of an AEO (s 89DG).
The AEO needs to be distinguished from the exclusion order (EO), which was also introduced by the Summary Offences and Sentencing Amendment Act 2014 (Vic). An AEO is a new sentence for persons convicted of violent offences while intoxicated. An EO is made against persons who have been the subject of a separate application by police for failure to move on as directed by the police, several times in a 12 month period. An EO does not require charges or conviction, and appears to be targeted at demonstrators (see Community activism), gangs or low-level drug offenders. However, this exclusion order law was repealed by 2015 legislation, which was brought in with the change in government.
Defendants who are convicted of certain sex offences may find themselves registered as sex offenders under the Sex Offenders Registration Act 2004 (Vic) (see Sexual offences).
As a result of the Sex Offenders Registration Amendment Act 2016 (Vic), police can apply for prohibition orders to be made for registered sex offenders (s 66D Sex Offenders Registration Act 2004 (Vic)).
Magistrates may make a prohibition order if satisfied on the balance of probabilities that a registered sex offender has engaged in certain behaviour that poses a risk to the sexual safety of the community (s 66I).
If made, a prohibition order may prevent the registered offender from certain acts, including attending certain locations, contacting certain people, engaging in certain behaviour (including engaging in employment and community activities) or using drugs or alcohol (s 66Q).
Police are given wide powers to enforce prohibition orders, including testing registered offenders for alcohol and drugs, and visiting and searching offenders’ premises.
A prohibition order may be interim (even ex parte) or final orders (up to five years). Interim orders must generally be listed for hearing as final orders as soon as practicable (s 66G).
Contravention of a prohibition order without reasonable excuse is a serious offence punishable by imprisonment or other sentencing order referred to in this chapter (s 662F).
The court may order a defendant (who has possession of stolen goods for which they have been found guilty) to deliver or restore the goods to the owner, or to pay to the owner money in the defendant’s possession when arrested (s 84 Sentencing Act). These orders can be enforced in the same manner as a judgment debt (s 85).
There are two types of compensation orders.
Magistrates can order compensation for victims who have suffered injury as a result of offences. The compensation can include pain and suffering, and can include paying expenses such as medical bills (s 85B). These applications should be made at the time of the hearing or within 12 months (s 85C).
The court may order a defendant to pay compensation for the loss, destruction or damage of any property resulting from a criminal offence (s 86(1)). In making such orders, the court may take into account the defendant’s financial circumstances (s 86(2)) and order payment to be made in instalments (s 86(4)). The order then becomes a judgment debt, which can be satisfied in the same way as a civil debt (see “Enforcement of court orders” in Are you in debt?).
The court can make orders for diagnosis, assessment and treatment for a period of up to three months. These orders can be made for any defendant found guilty of an offence who is suffering, in the court’s opinion, from a mental illness requiring treatment. The treatment is to be obtained by admission to a psychiatric in-patient service at a hospital with the appropriate facilities; this is for the defendant’s health or safety or for the protection of the community (s 91).
The court may order an assessment order, which is to be completed within 72 hours. The court may also (in appropriate cases) make hospital security orders (s 93A) and restricted involuntary treatment orders (s 93) for defendants with a mental illness charged with criminal offences. For more information, see “Mentally ill offenders” in Disability and criminal justice.
The Road Safety Act 1986 (Vic) provides for a sentencing order of impoundment, immobilisation for up to three months, or forfeiture of a defendant’s motor vehicle for certain repeat driving offences (ss 84S, 84T). (For further information, see Driving offences.)
It is possible for a magistrate to adjourn proceedings for up to 12 months to allow a person charged with criminal offences to take part in the Criminal Justice Diversion Program (for information about this program, see “Criminal Justice Diversion Program” in Disability and criminal justice).
In contrast to adjournment without conviction (which may occur after a person has pleaded guilty to a criminal offence), the program avoids a plea of guilty, or any finding of guilt against the defendant, if they are found suitable to take part in the program and complete it successfully (s 128A Magistrates’ Court Act 1989 (Vic) (“MC Act”)).
For more information, contact the clerk responsible for diversion programs at your local Magistrates’ Court, or seek legal advice.