The Law Handbook 2024

Chapter 1.3: Sentencing in the Magistrates’ Court 33 Suspended sentences Suspended sentences are ordered when a court believes that although the offence(s) are serious enough to warrant imprisonment, the sentence of imprisonment is not to be totally served in prison. Magistrates cannot impose suspended sentences for offences committed on or after 1 September 2014. Youth Justice Centre orders A Youth Justice Centre ( YJC ) order may be imposed for young defendants (aged over 15, but under 21 on the day of the court hearing) for a maximum period of 24 months (s 32). Amagistrate must make an order for a pre-sentence report to be prepared by the Victorian Government Department of Health before making a YJC order (s 8A) (this often means an adjournment, which could result in the defendant being remanded in custody). The magistrate must also believe that there are reasonable prospects for the rehabilitation of the defendant, who must be unsuitable for an adult prison (s 32(1)). Courts imposing YJC orders must also consider the nature of the offence, and the defendant’s age, character and past history (s 32). The magistrate must not make a YJC order where the defendant has been found guilty of certain serious offences listed in the Sentencing Act, unless the magistrate is satisfied that exceptional circumstances exist (s 32(2C)–(2D)). Community corrections orders The community corrections order ( CCO ) is the only community based sentencing order available to magistrates. A CCO: • can be ordered with or without a conviction (s 7(1)(e)); • can be for a maximum of two years for one offence, four years for two offences, or five years for three or more offences, if ordered in the Magistrates’ Court (s 38(1)(a)); • may require up to 600 hours of unpaid community work (s 48C(4)); • requires a pre-sentence report unless the only condition is up to 300 hours of unpaid community work (s 8A(2)–(3)); • may require a drug and alcohol assessment report if the court is satisfied that the defendant’s use of drugs or alcohol contributed to the offence (s 8E); • requires mandatory conditions, such as reporting new addresses and not leaving Victoria without permission from the authorities (s 45). Optional conditions The magistrate may impose optional conditions: • treatment and rehabilitation conditions (s 48D); • restrictions on the use of alcohol or drugs (s 48J) (see ‘Alcohol exclusion orders’, below); • restrictions on association with certain persons (s 48F); • restrictions on where defendant may live (s 48G); • curfew restrictions (s 48I); • judicial monitoring conditions, which may include the requirement that the defendant attend court during the period of the CCO and answer a magistrate’s questions regarding the defendant’s ongoing treatment (ss 48K, 48L); • an intensive compliance period: if the CCO is for six months or more, the court may order an intensive compliance period during which the defendant is to do certain things within this period (s 39); • a sentence of imprisonment and a CCO: the court may also order imprisonment of up to one year for one offence and up to five years for two or more offences, and a CCO (similar to the old CCTO). The CCO is to be completed following the defendant’s release from prison (s 44). Fines Fines may be imposed with or without a conviction (s 7(f)). A magistrate may impose a single fine for multiple offences that are similar, but this fine should not exceed the sum of the maximum fines that can be imposed for each offence (s 51). When imposing the amount and method of payment of a fine, a magistrate should take into account the defendant’s financial circumstances (including any compensation order) and the burden that paying the fine will impose (ss 52–53). If a magistrate is considering ordering a fine or a com­ pensation order against a low-income defendant, they must give preference to the compensation order (s 53(2)). Magistrates must also take into account any destruction or loss of property and any benefit the defendant may have derived from the offence (s 54).