The Law Handbook 2024

31 NOTE The law in this chapter is current as at 1 September 2023. 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. NOTE The references to legislation in this chapter are to the Sentencing Act 1991 (Vic), unless otherwise stated. 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 com­ mitting 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 respons­ ibility 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 sen­ tencing purpose (s 5(3)–(7)). For example, the court should consider imposing a community corrections order 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 (ss 60, 61 Criminal Procedure Act 2009 (Vic) (‘ CP Act ’)). 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 (s 60(2) CP Act). Non-conviction orders Upon a defendant being found guilty of an offence, the magistrate has the power to make an order without conviction (s 7 Sentencing Act). 1.3 Sentencing in the Magistrates’ Court Contributors: Peter Lynch, Barrister & Solicitor and Madeleine Lynch, Solicitor, Fitzroy Legal Service