The Sentencing Act 1991 (Vic) generally 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: Chapter 6*2 The Children's Court). The Sentencing Act is subject to regular legislative changes. For example, the Sentencing (Amendment) Act 2010 (the 2010 Act) made significant changes to sentencing law including the provision of a new penalty Intensive Correction Management Orders (see below). It is expected that the State Government may make further significant changes to sentencing law in 2011 and 2012 (e.g. the abolition of Home Detention Orders (see below)) and this chapter should be read accordingly.
All references to legislation following (e.g. s.6(4)) are references to the Sentencing Act 1991 (Vic) ("Sentencing Act"), unless otherwise stated.
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 two or more of the above.
Section 5(2) requires Magistrates making sentencing orders to have regard to:
- 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;
- injury, loss or damage resulting directly from the offence; and
- (from 2009) 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 not to 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 an intensive correction management order (ICMO) before imprisonment, and a community-based order (CBO) before an ICMO (see: "Sentencing orders", below).
Section 6AAA of the Sentencing Act provides for the court to allow specific sentencing discounts for pleas of guilty.
In addition, Magistrates can be requested to give an indication as to the sentence that could be imposed on a defendant if they plead guilty to an offence. If such a sentence indication is given and a plea of guilty results, then the Magistrate can not impose a more severe sentence than the one indicated (ss.60 & 61 Criminal Procedure Act 2009 (Vic)).
Legal advice should be obtained as to the merits of and the procedure for sentence indications and discounts.
Courts may now make the following non-conviction orders:
- a charge adjourned without conviction for up to 60 months (see: "Adjournment without conviction", below);
- a fine without conviction (see: "Fine", below); or
- a CBO without conviction (see: "Community-based order", below);
- as a result of the 2010 Act, an intensive correction management order S7.(1)(db).
Courts, in determining whether or not to record a conviction, must have regard to the nature of the offence, the character and past history of the defendant and the impact of conviction on the defendant's economic or social well-being and employment prospects (s.8 Sentencing Act).
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THE SENTENCING ACT 1991 :: Last updated: Thu Jul 1st 2010