Imprisonment orders are to be served in full; however, time held in custody before sentencing will usually be deducted from time 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 such 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 these sentences cumulatively on any other sentence of imprisonment. Similarly, the penalty for a breach of a combined custody and treatment order (CCTO) (s.18W(8)), a breach of an ICO (s.26(4)), or a breach of suspended sentence (s.31(6)) must generally be served cumulatively on the original sentence.

An ICO is designed to impose a severe punishment just short of imprisonment but more severe than a community-based order (CBO). It is generally aimed at offenders who would otherwise receive short-term imprisonment orders (e.g. repeat drink drivers).

ICOs can be imposed where the court believes that imprisonment of up to 12 months is appropriate, a favourable pre-sentence report is obtained from Corrections Victoria (see s.96 Sentencing Act), and the defendant consents to the ICO (s.19).

An ICO will be imposed like a prison sentence (e.g. six months), but without the defendant going to prison during this period. ICOs impose stringent conditions, with at least two weekly visits from a corrections officer and a maximum of 12 hours of supervision per week (ss.20 & 21).

Defendants who breach an ICO will be sentenced to serve the term of imprisonment in custody, unless there are exceptional circumstances (s.26(3B)), and the sentence must generally be served cumulatively on the original sentence (s.26(4)). See: "Breach of Sentencing Order", below, for further details on breach of an ICO.

A CCTO will be ordered for defendants whose alcohol or drug addiction contributed to their offending and where the sentence of imprisonment is no more than 12 months. A CCTO requires the defendant to serve a sentence of custodial imprisonment of six months and then serve the remainder of the sentence in the community, undergoing drug treatment under the supervision of Community Corrections (s.18Q Sentencing Act). A CCTO should be imposed only where the court believes an ICO (see above) is inappropriate (s.5(4A)).

A breach of a CCTO when the defendant has been released from custody will involve return to prison unless there are exceptional circumstances (s.18W) (see: "Breach of Sentencing Order", below). This sentence must generally be served cumulatively on the sentence for the original offence (s.18W(8)).

ICMO is a new penalty introduced by the 2010 Act which will replace ICO and CCTO by the end of 2011.

ICMO are designed to rehabilitate defendants in the community who would otherwise be considered for imprisonment S35E. ICMO which can be made without conviction are of two types; general (S35B) and drug and alcohol (S35C).

ICMO can only be made if the Court is considering imprisonment, a pre sentence report is obtained and the defendant consents S35D.

Also in the case of drug and alcohol ICMO defendants must be dependent on drugs/alcohol which contributed to their offending and there must be a risk of further offending S35C.

ICMO may be for a maximum period of two years in the Magistrates Court S35F(1) with supervision period allocated if the sentence is six months or more S35G.

The ICMO may require defendants to comply with certain conditions including unpaid community work.

A court sentencing a defendant for up to 12 months imprisonment may order it to be served by way of home detention (s.26M Sentencing Act). However, defendants charged with certain offences or with a history of certain offending (e.g., sexual offences, firearm offences, breach of IO or stalking offences) are ineligible for a HDO (ss.26N & 260).

HDOs are subject to a satisfactory home detention assessment (HDA), which will include whether they are approved premises and a suitable placement is available. The views of the defendant's co-residents will also be considered. A HDA will usually take six weeks to prepare and the defendant will usually be bailed during this period.

HDOs are limited to persons whose residence is within 40kms of Melbourne CBD. At the time of writing this chapter the government is proposing to abolish HDOs in their current form.

A 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 some injury to the victim: s.18Z Sentencing Act) to be supervised by the Victorian Drug court. A DTO will only be ordered after a detailed assessment by the Drug Court team of the defendant's suitability (s.18ZQ).

A DTO has two parts:

If the DTO is cancelled or breached, the custodial part will usually have to be served by the defendant 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 Dandenong Drug Court, provided this is done prior to the plea of guilty. However, to be eligible for a DTO defendants must live within defined suburbs near the Dandenong Court or be without a fixed residence. For further enquiries contact the Drug Court of Victoria.

Suspended sentences are ordered when a court believes that although the offence or offences are serious enough to warrant imprisonment, they are not to be totally served in prison. Courts may impose sentences of imprisonment, which may be suspended in the following two ways.

CBOs may be imposed for a period of up to 24 months for any offence punishable by imprisonment or a fine of up to $500 (s.36 Sentencing Act). Generally, they require the defendant's consent and a favourable report on the defendant's suitability for the CBO from Corrections Victoria (which is usually, but not always, provided on the date of court hearing) (see also: s.96). However, a CBO may be ordered by the court without a pre-sentence report, if the only CBO condition is that the defendant serve up to 300 hours (previously 250) of unpaid community work (s.36(7)).

CBOs are a less intensive form of ICMO, and usually require the defendant to perform unpaid community work, attend supervision and counselling as required, and attend drug/alcohol testing or counselling, if appropriate (for other conditions, see: ss.37–41).

CBO can now be ordered in addition to imprisonment for three months S36(2A).

For details about defendants who breach a CBO see: "Breach of Sentencing Orders", below.

A YJC order may be imposed for young offenders (aged 18 or more but under 21 at the day of the court hearing) for a maximum period of up to 24 months (s.32 Sentencing Act).

The court may order a YJC order only after it has received a pre-sentence report on the defendant from the Department of Human Services (DHS) (s.96(3)) (which often means an adjournment and a possible remand in custody for the defendant), and where the court believes that there are reasonable prospects for the rehabilitation of the defendant, who must also be unsuitable for an adult prison (s.32). Courts imposing YJC orders must also have regard to the nature of the offence and the age, character and past history of the defendant (s.32).

Fines, the most common penalty imposed for Magistrates' Court offences, may now be imposed with or without a conviction (s.7 Sentencing Act). The court may impose a single fine for multiple offences which 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) (s.50(3)) 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.50(5)).

Fines in offence penalty sections are usually defined in terms of penalty units: prior to 2004 one penalty unit equalled $100. From 2004 penalty units are indexed annually by amounts fixed by the Treasurer (s.110). As a result of section 112A of the Sentencing Act the maximum fine that the Magistrates' Court can impose upon a defendant is 500 penalty units. 

If the court considers ordering a fine or a compensation order against a poor defendant, it must give preference to the compensation order (s.50(4)).

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 for psychiatric treatment) (s.75 Sentencing Act). The conditional adjournment under section 75 and fine without conviction (see: "Fine", above) are now commonly sought orders in the Magistrates' Court since the Sentencing Act came into operation, 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 character and past history of the defendant, and the impact of a conviction on the defendant (s.8). The court may also dismiss any charge without conviction (s.76).

See: "Breach of Sentencing Orders", below, regarding a breach of adjournment with undertaking.

Prior to 2011, the Sentencing Act provided for deferral of sentence for up to six months for defendants under the age of 25, although Magistrates sometimes deferred sentencing for persons 25 or over for a good reason (eg drug counselling).

Now S83(1) allows Magistrates to defer sentences for up to 12 months for suitable defendants regardless of age.

S83(1A) sets out the purpose of deferral which is essentially the defendant's rehabilitation and it also provides for defendants to participate in certain programs.

The JLA Act has introduced standard provisions for defendants who breach a CTO, ICO, CBO, HDO and adjournment with undertaking (the original sentence). There are two forms of breach:

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.

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.

Contravention proceedings can be issued (for breach offences) within six months of the offence or two years of the sentence finishing (whichever the latter), otherwise for general non-compliance not involving offending, within 12 months.