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;
• other orders.
Home detention imprisonment orders are no longer available in Victoria.
A pre-sentence report includes information about the defendant that may be relevant to sentencing, including the defendant’s age, social history, medical history, education and employment history. The complete list is in section 8B of the Sentencing Act.
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, or a Youth Residential Centre order (s 8A(2)). The court may order a pre-sentence report in any other case (s 8A(1)).
The pre-sentence report must be filed with the court. Copies must be given to the prosecutor, the defence lawyer and (if the court directs) 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(D)).
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) (ss 113–113A) 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(1)). 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 certain offences contained in section 16(1A). These offences include default of a fine payment, offences committed by prisoners while in jail, and offence committed by “serious offenders”. Defendants who commit crimes while they are prisoners (s 16(3)) or while they are on parole (s 16(3B)) are generally required to serve their sentences cumulatively unless they can demonstrate that they have exceptional circumstances.
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)). There are other eligibility requirements for people seeking DTOs, which are outlined in section 18Z. 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 the defendant is not to serve unless the Drug Court makes an order activating the custodial part (ss 18ZC, 18ZE).
If a DTO is cancelled or breached, the defendant usually has to serve the custodial part in prison (s 18ZE).
The Victorian Drug Courts are located at the Melbourne and Dandenong Magistrates’ Courts. However, there are strict residential requirements for people seeking DTOs at these courts. For more information, contact the Drug Courts (see “Contacts”).
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. Magistrates can not impose suspended sentences for offences committed on or after 1 September 2014.
A Youth Justice Centre (YJC) order may be imposed for young defendants (aged over 15, but under 21 on the day of the court hearing) for a maximum period of 24 months (s 32).
A magistrate must make an order for a pre-sentence report to be prepared by the Victorian Government Department of Health and Human Services before making a YJC order (s 8A) (this often means an adjournment, which could result in the defendant being remanded in custody).
The magistrate must also believe that there are reasonable prospects for the rehabilitation of the defendant, who must be unsuitable for an adult prison (s 32(1)). Courts imposing YJC orders must also consider the nature of the offence, and the defendant’s age, character and past history (s 32).
The magistrate must not make a YJC order where the defendant has been found guilty of certain serious offences listed in the Sentencing Act, unless the magistrate is satisfied that exceptional circumstances exist (s 32(2C)–(2D)).
The community corrections order (CCO) is the only community based sentencing order available to magistrates. A CCO:
• can be ordered with or without convictions (s 7(1)(e));
• can only be for a maximum of two years for one offence, four years for two offences, or five years for three or more offences, if ordered in the Magistrates’ Court (s 38(1)(a));
• may require up to 600 hours of unpaid community work (s 48(4));
• requires a pre-sentence report unless the only condition is up to 300 hours of unpaid community work (s 8A(2)–(3));
• may require a drug and alcohol assessment report if the court is satisfied that the defendant’s use of drugs or alcohol contributed to the offence (s 8E);
• requires mandatory conditions, such as reporting new addresses and not leaving Victoria without permission from the authorities (s 45).
The magistrate may impose optional conditions:
• treatment and rehabilitation conditions (s 48D);
• restrictions on the use of alcohol or drugs (s 48J) (see “Alcohol exclusion orders”);
• restrictions on association with certain persons (s 48F);
• restrictions on where defendant may live (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 imprisonment of up to one year for one offence and up to five years for two or more offences, and a CCO (similar to the old CCTO). The CCO is to be completed following the defendant’s release from prison (s 44).
Fines may be imposed with or without a conviction (s 7(f)). A magistrate 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, a magistrate should take into account the defendant’s financial circumstances (including any compensation order) and the nature of the burden that paying the fine will impose (ss 52–53). If a magistrate is considering ordering a fine or a compensation order against a low-income defendant, they must give preference to the compensation order (s 53(2)).
Magistrates are 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” at the start of this book). The maximum fine the Magistrates’ Court can impose on a defendant is 500 pu (s 112A).
The magistrate may order the defendant 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 the fine to be paid back through unpaid community work (ss 64, 69D);
• a warrant can be issued for the arrest of a fine defaulter (s 69);
• 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 was 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 28 days – unless an order has been made for the unpaid fine to be converted to community work – a warrant may be issued (s 69). 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 69C).
Magistrates can – in certain circumstances and upon receiving an application from the defendant – make an order for the defendant to perform unpaid community work instead of paying the fine (s 64).
Defendants arrested on warrant for defaulting on paying a fine may receive an unpaid community work order, or an instalment order, or have their property seized by warrant, or get an adjournment for up to six months, or be imprisoned (s 69H).
A common penalty imposed for minor offences and for first offenders is the adjourned undertaking with or without conviction with certain conditions attached (e.g. good behaviour for the adjourned period or 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 is inappropriate to record a conviction or impose punishment, or to aid the rehabilitation of the offender.
The Sentencing Act includes guidelines to allow a defendant to demonstrate remorse in a manner agreed to by the court (s 70(1)(ba)).
After the defendant is convicted of an offence, the magistrate may order the case to be adjourned for up to five years, with the defendant to be released after giving an undertaking to attend court if called on to do so, and to be of good behaviour for the period of the adjournment, and to observe any special conditions (e.g. payments to charitable organisations) (s 72). A defendant may also be convicted and discharged for any offence (s 73).
The magistrate may, after finding a defendant guilty of an offence, adjourn, without conviction, the hearing for up to five years 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).
A conditional adjournment (s 75) and a fine without conviction (see “Fines”) are now commonly sought orders in the Magistrates’ Court, as both penalties avoid conviction.
In deciding whether or not to record a conviction, the magistrate 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 magistrate may also dismiss any charge without conviction (s 76).
The Sentencing Act has standard provisions for defendants who contravene a CCO and adjournment with undertakings (the original sentence).
There are two forms of contravention:
1 offending during the period of sentence; or
2 generally not complying with the condition(s) of the sentence.
If the defendant is before the court (usually for further offences that breach the original CCO or adjournment with undertaking) then the court can resentence on the original offences that have been breached or transfer the matter to the court that imposed the original sentence (s 83AJ).
A contravention summons or warrant to arrest may be issued to bring the defendant before the court for breach of the sentence (s 83AI).
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).
Following a finding of guilt, a magistrate may make an order for a deferral of sentence for up to 12 months if the court is satisfied that it is in the defendant’s interest and the defendant agrees (s 83A). The purpose of the deferral is for the defendant to demonstrate their rehabilitation; the deferral allows the defendant to participate in certain programs. However, the courts have broad discretion in making this order (s 83A(1A)(e)).
Section 89A, provides magistrates with additional powers to suspend or cancel drivers’ licences or permits for any offence.
This is a general power and does not apply to offences under the Road Safety Act 1986 (Vic) or to serious motor offences (e.g. car theft under s 89(3)–(4) of the Sentencing Act), which have their own penalty provisions (s 89A(4)).
Defendants disqualified under section 89A must apply to the Magistrates’ Court for their licence to be restored (s 89A) (for further information, see Driving offences).
If a person is charged with a relevant offence, the police may make an application for an alcohol exclusion order (AEO) (s 89DD). The magistrate must grant this order if the defendant is convicted of certain violent offences, and the magistrate is satisfied that the defendant was intoxicated when they committed the offence(s), and the intoxication significantly contributed to the violent offence(s) (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 “Community corrections orders”).
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).
Defendants convicted of certain sex offences may be registered as sex offenders (Sex Offenders Registration Act 2004 (Vic)) (see Sexual offences).
For information about prohibition orders for sex offenders, see Sexual offences.
The court may order a defendant (who possesses 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). 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 be for pain and suffering, and/or for actual costs incurred (e.g. medical bills) (s 85B). These applications must be made by the victim, or on behalf of the victim, and must be made at the time of the hearing or within 12 months (s 85C).
Magistrates 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 magistrate 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?).
Sections 84S and 84T of the Road Safety Act 1986 (Vic) provide for a sentencing order of impoundment and immobilisation for up to three months, or forfeiture of a defendant’s motor vehicle for certain repeat driving offences. (For further information, see Driving offences.)
Certain defendants may be able to participate in the Diversion Program. The major benefit of this program is that, if successfully completed, the defendant avoids receiving a criminal record. A magistrate can adjourn proceedings for up to 12 months to allow a person charged with a criminal offence to take part in the Diversion Program.
In contrast to adjournment without conviction (which may occur after a person has pleaded guilty to a criminal offence), a defendant avoids a guilty plea and any finding of guilt, if they are found to be suitable to take part in the program and they complete it successfully (s 59 CP Act).
For a defendant to be eligible to participate in the Diversion Program, the following must occur:
1 the defendant must acknowledge responsibility for the offence;
2 the magistrate considers the Diversion Program to be appropriate; and
3 both the prosecution and the defence consent to the defendant participating in the Diversion Program (s 69(2) CP Act).
The Diversion Program is not available to defendants who have committed offences that have a fixed or minimum penalty, including where there is a mandatory licence suspension or disqualification penalty (s 59(1) CP Act).
Conditions of the Diversion Program may include the defendant:
• writing a letter of apology to the victim;
• attending counselling;
• completing an education course;
• making a donation.
If a defendant fails to complete the Diversion Program, they may be subsequently sentenced for the offence for which they origianlly participated in the program. For more information, contact the clerk responsible for diversion programs at your local Magistrates’ Court, or seek legal advice.