Custodial Sentence & Imprisonment
Imprisonment is a significant aspect of the criminal justice system. Custodial sentences are a punitive measure primarily provided for in legislation. Imprisonment is considered a penalty of last resort and is the harshest penalty available in Victoria.
When a court sentences an offender to imprisonment, the sentence can be structured in two parts. An initial non-parole period, which must be served in prison, and the parole period, during which the prisoner is eligible for release on parole to serve the remainder of the sentence in the community.
The court may order a non-parole period for terms of imprisonment of more than 12 months. However, the court must fix a non-parole period for life sentences or terms of imprisonment of 2 years or more.
As the Sentencing Act 1991 (Vic) (the Act) makes clear, a sentence requiring confinement cannot be imposed unless the purpose or purposes for which the sentence is being imposed cannot be achieved by any other sentence (the Act ss 5(4)-(4C)). However, despite this principle, there are categories of offences for which a court must impose a mandatory sentence of imprisonment or a minimum non-parole period unless an exception applies.
Talk to our criminal defence lawyers today for further information about imprisonment and non-parole periods.
Incarceration statistics
In 2021-22, imprisonment was the most frequently imposed sentence in the County and Supreme Courts (the higher courts) (72.2%). In the 18 years to June 2022, the percentage of cases sentenced to imprisonment increased from 39.6% in 2004-05 to 72.2% in 2021-22 (see Sentencing Advisory Council). In 2020-21, imprisonment was imposed in 12.3% of cases in the Magistrates’ Court. This percentage increased from 4.9% in 2004-05 (see Sentencing Advisory Council).
The legislation
Sentencing Act 1991 (Vic)
(1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Act—
(a) record a conviction and order that the offender serve a term of imprisonment
Section 11 Fixing of non-parole period by sentencing court
(1) If a court sentences an offender to be imprisoned in respect of an offence for—
(a) the term of his or her natural life; or
(b) a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.
(2) If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole.
(2A) However, a court must not fix under subsection (2) a non-parole period as part of a sentence of imprisonment if the court, in accordance with section 44, makes a community correction order in respect of the offender in addition to imposing the sentence of imprisonment.
(3) A non-parole period fixed under subsection (1) or (2) must be at least 6 months less than the term of the sentence.
(4) If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under subsection (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed.
Maximum penalty
Maximum penalties are a component of the Victorian sentencing framework, which set the highest sanction a court can impose on a person found guilty of an offence, subject to exceptions for indefinite sentencing.
The Sentencing Act 1991 (Vic) (the Act) contains a scale of maximum penalties for imprisonment, which range from level 1 (life imprisonment) to level 9 (6 months imprisonment).
Maximum penalties for offences are set by Parliament and are informed by the rule of law and the principle of proportionality (or ‘just punishment’). A maximum penalty:
sets a legally defined upper limit on the court’s sentencing power for an offence, providing ‘space’ for sentencing the worst example of an offence by the worst offender; and
indicates Parliament’s (and therefore the community’s) views on the gravity or relative seriousness of an offence compared to other criminal offences.
In Victoria, the maximum penalty for an offence is typically expressed as being of a certain ‘level’ or subject to specific penalty ‘units’. The levels of maximum terms of imprisonment are defined in the Act s 109. The Commonwealth does not use penalty levels to describe maximum terms of imprisonment.
The maximum penalty for an offence is of primary importance in the sentencing process (DPP v Aydin & Kirsch [10]-[12]). However, it is just one sentencing factor in a broad range of sentencing factors under section 5(2) of the Act 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.
Other factors include current sentencing practices (i.e. sentences imposed for past examples of an offence), the nature and gravity of the offence, the offender’s level of responsibility and moral culpability, the offender’s previous character, and any aggravating or mitigating circumstances (the Act s 5(2)).
Actual sentences imposed are often quite divergent from the maximum penalties provided for in statute due to the culmination of factors brought to bear in the sentencing framework.
Maximum penalty in the Magistrates’ Court
In Victoria, the Magistrates’ Court has criminal jurisdiction limited to summary offences and indictable offences triable summarily. For a person convicted of a summary offence, regardless of the maximum penalty specified, the maximum term of imprisonment that may be imposed is two years for that offence (the Act s 313A).
Similarly, for indictable offences triable summarily, the maximum term of imprisonment that may be imposed in the Magistrates’ Court is two years for a single offence (the Act s 313). Furthermore, the Magistrates’ Court cannot generally impose a cumulative term of imprisonment exceeding five years when sentencing multiple offences (the Act s 313B).
Maximum penalties for commonwealth offences triable summarily
Commonwealth indictable offences punishable by up to 10 years imprisonment may be tried summarily with consent, and offences relating to property up to a value of $5000 may be triable summarily upon the request of the prosecutor (Cth Crimes Act s 4J(1),(4)). However, Commonwealth indictable offences related to advocating terrorism or violence, treason or espionage are not triable summarily (Cth Crimes Act 4J(7)).
For a Commonwealth offence with a penalty of up to 5 years imprisonment, the Magistrates’ Court may impose a sentence of imprisonment not exceeding 12 months or a fine of up to 60 penalty units, or both (Cth Crimes Act s 4J(3)(a)). Where the Commonwealth offence is punishable by imprisonment for a period from 5 to 10 years, a sentence not exceeding two years, or a fine not exceeding 120 penalty units, or both, may be imposed (Cth Crimes Act s 4J(3)(b)).
Indefinite sentences
Under the Sentencing Act 1991 (Vic) (the Act), a court may impose an indefinite sentence for a person (other than for a young person) convicted by the Supreme Court or the County Court for a ‘serious offence’ where the court is satisfied the offender is a serious danger to the community (the Act s 18A-B). In these circumstances, an indefinite sentence applies regardless of any maximum penalty set for a particular offence (the Act s 18A(6)), and the court must not fix a non-parole period (the Act s 18A(2)).
The exercise of this power is limited to exceptional cases and, before imposing such a sentence, the court must be satisfied that the offender is not suffering from a mental illness that requires treatment and that the offender is a serious danger to the community (R v Carr (1996) 1 VR 585, 590). The second assessment is based on such factors as the offender’s criminal history, character, age, health or mental condition, the severity of the offence and any other special circumstances (R v Carr, 590).
An indefinite sentence may be imposed by the court on its own initiative, or by application by the Director of Public Prosecutions (the Act s 18A(5)). However, as an indefinite sentence is a form of preventative detention and is at odds with the fundamental sentencing principle of proportionality, the power is reserved for exceptional cases (Carolan v The Queen, 106 [54]).
Sentencing multiple offences
Unless the court is imposing an aggregate sentence, a court must impose a sentence for each offence. These are referred to as individual sentences. In cases where multiple periods of imprisonment are sentenced, the total term is known as the ‘head sentence’ or ‘total effective sentence’ and is determined by making orders for cumulation or concurrency. The term ‘head sentence’ is not defined in statute but is used to distinguish the total custodial term from other parts of the sentence, such as the non-parole period.
The sentence for each should reflect the criminality of the specific offence and must be appropriate for the gravity of each charge (GJW v The Queen, [11], [15]). However, when imposing a term of imprisonment on a large number of charges, a ‘broad-brush’ approach to fixing a sentence may be adopted in limited cases.
For example, this approach may be appropriate in cases involving an ongoing fraudulent course of conduct or where criminal behaviour was of a similar and repetitive nature (Hoy v The Queen, [17]). In such circumstances, the sentences imposed only need to be roughly proportional to the gravity of the offending and any amounts taken (Hoy v The Queen, [18], [21]).
In Victoria, a total effective sentence is generally achieved by imposing individual sentences for each offence before making an order for concurrency or cumulation of all or part of those sentences. Under the Commonwealth scheme, the total effective sentence is reached by imposing individual sentences for each offence before making differential orders for commencement. In both cases, the imposition of an aggregate sentence may circumvent these formalities.
Aggregate sentences
An aggregate sentence of imprisonment arises when a court imposes a single prison sentence on multiple criminal offences rather than a separate prison sentence for each offence.
A court may impose an aggregate sentence of imprisonment when sentencing an offender for ‘two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character’ (the Act s 9(1); R v Grossi, 510 [39]).
However, under section 9(1A) of the Act a court must not impose an aggregate sentence of imprisonment if:
(a) the offender is a ‘serious offender’ within the meaning of Part 2A and any of the offences of which the offender is convicted is a relevant offence within the meaning of that Part; or
(ab) the offences comprise at least one offence that is a standard sentence offence; or
(b) the offences comprise at least one offence committed by the offender while released under a parole order and one offence committed at another time.
The term of an aggregate sentence of imprisonment imposed must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences if the court had imposed a separate sentence of imprisonment in respect of each of them (the Act s 9(2)).
If a court proposes to impose an aggregate sentence of imprisonment, it must announce the decision and the reasons for doing so, and the effect of the proposed aggregate sentence (the Act s 9(3)). However, the court is not required to identify separate events giving rise to specific charges or to announce the sentences it would have imposed for each offence had separate sentences been imposed, or whether those sentences would have been imposed concurrently or cumulatively (the Act s 9(4)).
Non-parole period
The non-parole period is a crucial component of a sentence of imprisonment. It represents the minimum term that a court determines must be served by the offender before they are eligible for release on parole (DPP (Vic) v Josefski (2005) 13 VR 85, 94 [43], 103 [79]). The Crimes Act 1914 (Cth) establishes a system separate from the Victorian regime for setting non-parole periods for Commonwealth offences.
The purpose of fixing a non-parole period is to provide for mitigating considerations or rehabilitation, which may make it undesirable for an offender to serve the entire term in prison (Josefski 94 [43]). At the end of the non-parole period, the jurisdiction of the Parole Board to decide whether an offender will be released from custody is enlivened (R v Chan (1994) 76 A Crim R 252, 255).
Fixing non-parole periods
A court sentencing an offender to two years or more imprisonment must fix a non-parole period unless the court considers that the nature of the offence or past history of the offender make the fixing of such a period inappropriate (the Act s 11(1)).
When setting non-parole periods, courts must consider several special factors. These include community corrections orders, parole eligibility, and prior sentences. The process for fixing a non-parole period is also outlined in the legislation, and there are significant implications if a court fails to fix a non-parole period.
The Sentencing Act 1991 (Vic) (the Act) sets out several restrictions on setting non-parole periods. For instance, a court cannot impose a non-parole period if the total sentence is less than 12 months imprisonment. Additionally, the non-parole period must be at least six months less than the total sentence.
If the term of imprisonment imposed is less than two years but more than one year, the court may fix a non-parole period under s 11(2) unless it also intends to impose a community corrections order, in which case it may not do so (the Act s 11(2A)).
If a court sentences an offender to imprisonment for more than one offence, the non-parole period fixed must be in respect of the aggregate period of imprisonment the offender must serve for the offences (the Act s 11(4)).
Restrictions on setting a non-parole period
The Sentencing Act 1991 (Vic) (the Act) sets out several restrictions on how a court may set a non-parole period:
A court must not impose a non-parole period for a sentence of less than 12 months imprisonment (s 11(2));
A court must fix a non-parole period for a sentence of imprisonment of 2 years or more unless the court deems the nature of the offending makes the fixing of such a period inappropriate (s 11(1)).
A court may fix a non-parole period for a sentence less than 2 years but more than 1 year (s 11(2). However, if the sentence is combined with a community corrections order, the court must not fix a non-parole period (s 11(2A)).
The non-parole period must be at least 6 months less than the total term of imprisonment (s 11(3)).
When sentencing a standard sentence offence, or multiple offences, including a standard sentence offence, a court must (unless not in the interests of justice to do so) fix a non-parole period of at least (s 11A):
30 years if the sentence is life imprisonment
70% of the term of imprisonment if it is 20 years or more
60% of the term of imprisonment if it is 20 years or less.
When sentencing for multiple offences, the non-parole period imposed applies to the aggregate period of imprisonment that the offender is liable to serve for all the sentences imposed (s 11(4)).
Mandatory minimum non-parole period offences
In addition to the requirement that courts impose a sentence of imprisonment for Category 1 and Category 2 offences under the Mandatory Sentencing regime, for some offences, subject to certain exceptions, a court must impose a minimum non-parole period (or mandatory minimum sentence) for certain offences. Categories of minimum non-parole period offences include:
manslaughter offences;
gross violence offences;
violence offences against protected officials;
driving offences against protected officials; and
aggravated home invasion or carjacking offences.
The Sentencing Act 1991 (Vic) also sets a mandatory minimum sentence of imprisonment for breaches of supervision orders under the Serious Offenders Act 2018 (Vic).
See Mandatory Sentencing for more on violence offences against protected officials.
Prior sentences
Further considerations apply to courts fixing a non-parole period for an offender who, at the time of sentencing, is serving the non-parole period of a prior sentence of imprisonment. In these circumstances, if the court intends to impose a further term of imprisonment, the court must fix a new single non-parole period in respect of all the sentences the offender is to serve (the Act s 14(1),(2).
The new non-parole period fixed at the time of the further sentence supersedes any previous non-parole period and must not render the offender to become eligible for release on parole earlier than if the new sentence had not been imposed (the Act s 14(2)).
However, the requirement to fix a new non-parole period does not apply to an offender serving a prior sentence that was without potential eligibility for parole (R v Droste [2009] VSCA 102, [40]) or to an offender who has completed the prior non-parole period (R v Bradley [2010] VSCA 70, [16]). In other words, there must be an unexpired non-parole period for the requirement to set a new non-parole period to apply.
Pre-sentence custody and remand
A person held in custody may be either sentenced or unsentenced. This article has focused on offenders who have either pleaded guilty or have been found guilty for an offence, have been sentenced to a term of imprisonment and who are required to serve that term of imprisonment. An unsentenced prisoner, however, refers to a person who is held in custody (on remand) pending the resolution of criminal proceedings.
Section 18 of the Sentencing Act 1991 (Vic) requires that if an offender is sentenced to a term of imprisonment or detention, the time spent in pre-sentence custody, after being charged, must be taken into account as time already served for that offence (s 18(1), (4)). When a sentence of imprisonment is equal to the time that a person has already spent in custody, this is known as a ‘time served prison sentence’.
