The Law Handbook 2024

32 Section 1: Understanding our laws and courts 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. Sentencing orders available to the court A summary of sentencing orders Sentencing orders can be grouped into the following categories: • imprisonment; • drug treatment orders; • Youth Justice Centre orders; • community corrections orders; • fines; • adjourned undertakings with or without conviction; • deferral of sentences; • cancelling or suspending driver licences and permits; • alcohol exclusion orders; • sex offender registration; • other orders. Home detention imprisonment orders are no longer available in Victoria. Imprisonment Imprisonment orders are to be served in full; however, time held in custody before sentencing will usually be deducted from time to be served. Magistrates may sentence a defendant for up to two years for a single offence (provided the maximum penalty is two years or more) (ss 113– 113A) and five years for aggregate offences (s 113B). Magistrates may impose one aggregate sentence of imprisonment for offences based on the same facts or which are of a similar character (s 9). Defendants ordered to serve more than one term of imprisonment shall, unless otherwise ordered, serve the sentences concurrently (i.e. at the same time) (s 16(1)). However, courts may order that the sentences be served cumulatively (e.g. a second sentence starts after the first sentence is completed). Cumulative sentences are imposed for certain offences contained in section 16(1A). These offences include default of a fine payment, offences committed by prisoners while in jail, and offences committed by ‘serious defendants’. Defendants who commit crimes while they are prisoners (s 16(3)) or while they are on parole (s 16(3B)) are generally required to serve their sentences cumulatively unless they can demonstrate that they have exceptional circumstances. Drug treatment orders A drug treatment order ( DTO ) may be ordered for defendants with a drug or alcohol problem (which contributed to the offence) who plead guilty to offences heard in the Magistrates’ Court (other than sexual charges or assault charges involving injury to the victim (s 18Z)). There are other eligibility requirements for people seeking DTOs, which are outlined in section 18Z. DTOs are supervised by the Victorian Drug Court. A DTO is only ordered after a detailed assessment by the Drug Court team of the defendant’s suitability (s 18ZQ). A DTO has two parts: 1 a treatment and supervision part (that usually lasts for two years), which consists of conditions addressing the defendant’s drug or alcohol dependency; and 2 a custodial part, which is a term of imprisonment of up to two years that the defendant is not to serve unless the Drug Court makes an order activating the custodial part (ss 18ZC, 18ZE). If a DTO is cancelled or breached, the defendant usually has to serve the custodial part in prison (s 18ZE). The Victorian Drug Court is located at the Ballarat, Dandenong, Melbourne and Shepparton Magistrates’ Courts. There are residential requirements for people seeking DTOs at these courts (see www. mcv.vic.gov.au/about_us/drug-court) .