Sentencing in Victoria
Sentencing in Victoria is governed by legislation (laws made by parliament) and common law (laws made by the courts). Parliament defines what an offence is and the maximum penalty that can be imposed on a person convicted of an offence. The courts are independent of parliament, and they interpret and apply law within the framework determined by parliament.
Administrative entities involved in sentencing include agencies that run correctional services, such as prisons and youth detention centres. Correctional services are also responsible for the supervision of offenders sentenced to community correction orders. The Adult Parole Board and Youth Parole Board are independent of Parliament and the courts and decide whether a person should be released on parole and supervise those who are granted parole.
A person in Victoria may be charged and convicted under Victorian and Commonwealth law, and Victorian courts can sentence both Victorian and Commonwealth offences. When sentencing for a Commonwealth offence, a Victorian court is required to apply the Commonwealth sentencing framework under part 1B of the Crimes Act 1914 (Cth).
The most important aspects of sentencing are addressed in the Sentencing Act 1991, including:
Principles & Purposes of Sentencing
Principles
Sentencing decisions are based on the following principles established in legislation and common law:
- Parsimony – the sentence must be no more severe than necessary to meet the purposes of sentencing
- Proportionality – the overall punishment must be proportionate to the gravity of the offending behaviour
- Parity – the sentence should be consistent with sentences imposed for similar offences committed in similar circumstances
- Totality – when sentencing for multiple offences, the total or aggregate sentence must be just and appropriate for offending behaviour as a whole.
Purposes
When sentencing adults, the only purposes for which a sentence may be imposed, as specified in section 5(1) of the Sentencing Act 1991, are:
- Just punishment – to punish the offender to an extent that is just in all the circumstances
- Deterrence – to deter the offender (specific deterrence) or others (general deterrence) from committing offences of the same or a similar character
- Rehabilitation – to establish conditions that the court considers will enable the offender’s rehabilitation
- Denunciation – to denunciate, or condemn, both individually and publicly, the type of conduct in which the offender engaged
- Community protection – to protect the community from the offender.
While just punishment and denunciation focus on the gravity of an offender’s past conduct, rehabilitation, deterrence and community protection, address the likelihood of future behaviour.
Sentencing Factors
The Sentencing Act 1991 (Vic) lists a broad range of sentencing factors that must be considered in determining what sentencing purposes should take priority in a case and what sentence should be imposed to achieve those purposes.
Section 5(2) sets out the following sentencing factors:
- 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 offender’s culpability and degree of responsibility for the offence
- whether the crime was motivated by hatred or prejudice
- the impact of the offence on any victim of the offence
- the personal circumstances of any victim of the offence
- any injury, loss or damage resulting directly from the offence
- whether the offender pleaded guilty to the offence
- the offender’s previous character
- any aggravating or mitigating factors.
Sentence Types
A range of sentencing types (sentencing orders) are available under the Sentencing Act 1991 (Vic) for adults and young people found guilty of an offence.
Sentencing types for adults
For adults in Victoria, sentences available to the courts include:
- imprisonment
- drug and alcohol treatment order
- community correction order
- fine
- adjourned undertaking
- dismissal or discharge.
Diversion programs and non-convictions may be available in some circumstances, and if the offence occurred before 2014, a suspended sentence may be available.
Sentencing types for young people
For children and young people aged between 10 and 21, available sentences include:
- youth justice centre order or youth residential centre order
- youth attendance order
- youth supervision order
- probation order
- fine
- good behaviour bond
- dismissal and undertaking
- ropes.
The law distinguishes between child and young offenders, though the terms are often used interchangeably.
Orders in addition to sentence
The court may also impose orders in addition to sentence (or ancillary orders). Such orders include:
- restitution orders
- compensation orders
- asset confiscation and forfeiture
- driver licence suspension or disqualification
- alcohol interlock conditions
- sex offender registration.
