The Law Handbook 2024

36 Section 1: Understanding our laws and courts behalf of the victim, and must be made at the time of the hearing or within 12 months (s 85C). 2 Compensation for property loss Magistrates may order a defendant to pay compensation for the loss, destruction or damage of any property resulting from a criminal offence (s 86(1)). In making such orders, the magistrate may take into account the defendant’s financial circumstances (s 86(2)) and order payment to be made in instalments (s 86(4)). The order then becomes a judgment debt, which can be satisfied in the same way as a civil debt (see ‘Enforcement of court orders’ in Chapter 5.2: Are you in debt?). Orders about motor vehicles Sections 84S and 84T of the Road Safety Act 1986 (Vic) provide for a sentencing order of impoundment and immobilisation for up to three months, or forfeiture of a defendant’s motor vehicle for certain repeat driving offences. (For further information, see Chapter 6.8: Driving offences.) Diversion Certain defendants may be able to participate in the Diversion Program. The major benefit of this program is that, if successfully completed, the defendant avoids receiving a criminal record. A magistrate can adjourn proceedings for up to 12 months to allow a person charged with a criminal offence to take part in the Diversion Program. In contrast to adjournment without conviction (which may occur after a person has pleaded guilty to a criminal offence), a defendant avoids a guilty plea and any finding of guilt, if they are found to be suitable to take part in the program and they complete it successfully (s 59 CP Act). For a defendant to be eligible to participate in the Diversion Program, the following must occur: 1 the defendant must acknowledge responsibility for the offence; 2 the magistrate considers the Diversion Program to be appropriate; and 3 both the prosecution and the defence consent to the defendant participating in the Diversion Program (s 69(2) CP Act). The Diversion Program is not available to defendants who have committed offences that have a fixed or minimum penalty, including where there is a mandatory licence suspension or disqualification penalty (s 59(1) CP Act). Conditions of the Diversion Programmay include the defendant: • writing a letter of apology to the victim; • attending counselling; • completing an education course; • making a donation. If a defendant fails to complete the Diversion Program, they may be subsequently sentenced for the offence for which they originally participated in the program. For more information, contact the clerk responsible for diversion programs at your local Magistrates’ Court, or seek legal advice. Pre-sentence reports A pre-sentence report includes information about the defendant that may be relevant to sentencing, including the defendant’s age, social history, medical history, education and employment history. The complete list is in section 8B of the Sentencing Act. The Magistrates’ Court must order a pre-sentence report before imposing a community corrections order (unless the only condition is that the defendant serve up to 300 hours of unpaid community work), or a Youth Justice Centre order, or a Youth Residential Centre order (s 8A(2)). The court may order a pre- sentence report in any other case (s 8A(1)). The pre-sentence report must be filed with the court. Copies must be given to the prosecutor, the defence lawyer and (if the court directs) to the defendant (s 8(C)). The prosecutor or defence lawyer may file with the court a notice of intention to dispute the pre- sentence report. This allows evidence to be called and cross-examined on the report (s 8(D)). Victim impact statements The Sentencing Act provides that magistrates, in sentencing defendants, must consider the crime’s impact on the victim of the crime (s 5(2)(daa)).