Legislation and guidelines

Sentencing Act

The Sentencing Act 1991 (Vic) (‘Sentencing Act’) provides sentencing guidelines and lists the penalties available in 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 1.4: The Children’s Court). The Sentencing Act is subject to regular legislative changes.

• 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;

  • the defendant’s rehabilitation;

  • denouncing the defendant’s conduct; and

  • protecting the community from the defendant.

  Section 5(2) of the Sentencing Act requires magistrates making sentencing orders to consider:

  • the maximum penalty for the offence;

  • the standard sentence (if any) 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 (CCO) first, before considering imprisonment (see ‘Sentencing orders available to the court’, below).

• Sentence discounts and indications

  The Sentencing Act (s 6AAA) allows magistrates to apply specific sentencing discounts when a defendant pleads guilty. For example, a person who pleads guilty at the earliest opportunity is eligible for a less severe penalty than might otherwise have been ordered.

  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 (Criminal Procedure Act 2009 (Vic) (‘CP Act’) ss 60, 61). However, a magistrate can refuse to give a sentence indication if the magistrate believes that there is insufficient information about the impact of the offence on the victim (CP Act s 60(2)).

• Non-conviction orders

  Upon a defendant being found guilty of an offence, the magistrate has the power to make an order without conviction (Sentencing Act s 7).

  Magistrates can make the following non-conviction orders:

  • the defendant to be released on an adjourned undertaking without conviction, but with conditions attached (s 7(1)(i)) (see ‘Adjourned undertakings without conviction’, below);

  • a fine without conviction (s 7(1)(f)) (see ‘Fines’, below); or

  • a community correction order (s 7(1)(e)).

  Magistrates, 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). Without conviction penalties are only ordered for less serious offences and/or for defendants with no prior criminal history.

Legislation and guidelines

Chapter: 1.3: Sentencing in the Magistrates’ Court

Contributors: Peter Lynch, Accredited Criminal Lawyer, and Madeleine Lynch, Lawyer, Fitzroy Legal Service

Current as of: 1 September 2024

Law Handbook Page: 29

Next Section: Sentencing orders available to the court