What is a Sentence Indication?
Sentence indications are a legislated procedure that provides an opportunity for offenders to get a general understanding of the sentence they would likely receive if they entered a plea of guilty. The process was introduced to help reduce the back log of cases. It is important to note that although the mechanism is similar, the process for sentence indications in the Magistrate Court differs from that of the Supreme and County Courts.
Sentence Indications in the Magistrates Court
Section 60 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) outlines that at any time during a proceeding for a summary offence or an indictable offence being heard and determined summarily, the Magistrates’ Court may provide a sentence indication. This can entail an indication of –
- Whether or not the Court would be likely to impose an immediate custodial sentence; or
- The type of sentence the Court would likely impose (for example, loss of license, community corrections order, or fine etc).
It should be noted that s60(2) of the CPA specifies that a magistrate may choose not to give a sentence indication if the magistrate believes there is insufficient information regarding the potential impact to any victim.
There is a great deal of discretion in the Magistrates Court about what a magistrate may indicate during a sentencing indication. Some magistrates will simply indicate that they would not impose an immediate term of imprisonment on a plea of guilty, while others will indicate the specific sentence they would impose including any ancillary ramifications, such as licence loss etc.
Effect of Sentence Indications in the Magistrates Court
According to s61(1) of the CPA, if the presiding magistrate gives a sentence indication and the accused pleads guilty to the charge at the first available opportunity, the Court must not impose a more severe type of sentence than the type of sentence indicated during the course of the sentence indication.
Alternatively, s61(2) of the CPA provides that if the magistrate gives a sentence indication and the accused does not plead guilty to the charge at the first available opportunity, the Court that hears and determines the charge must be constituted by a different magistrate, unless all parties otherwise agree.
It should also be noted that –
- One magistrate is not bound by another magistrates sentence indication
- A decision to give or not give a sentence indication is final and conclusive, meaning there is no right of appeal against that decision.
- An application for a sentence indication and the determination of an application are not admissible in evidence against the accused in any proceeding
- Sentencing indications do not affect any right to appeal against a sentence, that is, you can accept a sentence indication from a magistrate but then still exercise your right to appeal the matter to the County Court.
Sentencing Indications in the County and Supreme Court
The major difference between obtaining a sentence indication in the Magistrates Court versus the superior court’s, is that you must seek the permission of the prosecution to list the matter for sentence indication in the superior courts.
Previously it was the case in the superior courts that the Court may only indicate whether it would impose an immediate custodial sentence on the accused if they pleaded guilty. That has now changed as of January 2022, per section 207 of the Criminal Procedure Act 2009, Judges can indicate the type of sentence they would imposed following receipt of a plea of guilty. This brings the power more inline with the powers available in the Magistrates Court.
Application for Sentencing Indications in the County and Supreme Court
Section 208(1)(a) of the CPA specifies that a sentence indication will only be provided in the County or Supreme Court upon application by the accused.
Moreover, s208(2) of the CPA adds that an application by the accused for a sentence indication in the County or Supreme Court can only be made with the consent of the prosecutor.
Finally, s208(4) of the CPA provides that the County or Supreme Court may refuse to give a sentence indication.
This all means that sentence indications are far more commonly utilised in the Magistrates Court as opposed to the superior courts.
Effect of Sentencing Indications in the County and Supreme Court
Section 209(1) of the CPA outlines that if a court indicates that it would not be likely to impose an immediate sentence of imprisonment, and the accused pleads guilty to the charge at the first available opportunity, the court cannot impose an immediate sentence of imprisonment.
Section 209(2) of the CPA provides that if the court gives a sentencing indication and the accused does not plead guilty at the first available opportunity, at trial the court must be constituted by a different judge unless all parties agree otherwise.
As is the case in the Magistrates Court, sentence indications in the County and Supreme Court –
- Do not bind the County or Supreme Court on any hearing before the court constituted by a different judge
- A decision to give or not give a sentence indication is final and conclusive and consequently cannot be appealed.
- An application for a sentence indication and the determination of the application is not admissible in evidence against the accused in any proceeding
- Sentencing indications do not affect any right to appeal against sentence
To summarise, at any stage during proceedings in the Magistrates Court, a magistrate can indicate whether or not the court would be likely to impose an immediate custodial sentence and this can be on the Courts own motion. The presiding magistrate can also provide information on what type of sentence would be imposed on the accused if they entered a plea of guilty. Alternatively, in the higher courts an accused can apply for a sentence indication at any time in the proceeding after the filing of an indictment but only with the prosecution’s consent. If the judge agrees to provide a sentence indication, the judge will indicate the type of sentence they would impose.
