The Law Handbook 2024

Chapter 1.3: Sentencing in the Magistrates’ Court 37 Victims are allowed to make a victim impact statement – usually by means of a statutory declaration (and occasionally, by sworn evidence in court) – which contains details of their injury, loss or damage (s 8K). Magistrates are not allowed to decide that victim impact statements are inadmissible just because the statements contain subjective or emotional material. The victim impact statement will usually be made by the victim, or by another person if the victim is under 18 or incapable of making the statement. The statement will be provided to the court and to the defendant some time before the court case. The defendant, or their lawyer, may cross-examine the victim in court about the contents of their statement (s 8O). Victim impact statements must, at the request of the victim, be read aloud during the sentencing hearing (ss 8Q, 8R). The Sentencing Act provides for victim impact statements to have a medical report attached to them (which may include reports from psychiatrists, doctors, psychologists or dentists) (s 8M). Magistrates can, in addition to imposing penalties against a defendant, consider the victim impact statement and any attached reports and award compensation to the victim for pain and suffering, particularly in sexual assault cases (see ‘Compensation orders’ above and Chapter 10.6: Assistance for victims of crime). For further information on victim impact statements arising from charges of sex offences, see ‘Sentencing’ in Chapter 3.3: Sexual offences. Defendants with disabilities There is a special Assessment and Referral Court List ( ARC List ) at the Melbourne Magistrates’ Court to deal with defendants with mental health, intellectual or other disabilities who satisfy certain criteria, including diagnostic, functional and need criteria (s 4T Magistrates’ Court Act 1989 (Vic) (‘ MC Act ’)). Magistrates sitting in the ARC List have various powers to deal with such defendants, including adjourning the hearing for the preparation of an individual support plan (s 4U MC Act). Magistrates can also discharge a defendant without a finding of guilt if the defendant completes an individual support plan (s 4Y MC Act). Pleas of ‘not guilty’ are to be transferred out of the ARC List to a contested hearing in the court (s 4X MC Act). For more information about the ARC List, see www.mcv.vic.gov.au/about-us/assessment-and- referral-court-arc, and ‘Assessment and Referral Court’ in Chapter 8.3: Disability and criminal justice. Commonwealth offences The above provisions deal with sentencing for offences against Victorian law. These penalties do not generally apply to defendants sentenced for offences against Commonwealth law. The penalties applicable to Commonwealth offences can be found in the section creating the offence or in a general provision in the Act itself. For example, conviction for a social security fraud offence involves imprisonment or a fine if the matter is dealt with in the Magistrates’ Court. However, there are some penalties in the Crimes Act 1914 (Cth) (‘ Crimes Act (Cth) ’) that direct courts to penalties capable of general application to all Commonwealth offences. For example, non- conviction orders (i.e. adjournments with bonds) for Commonwealth offences may be made under section 19B of the Crimes Act (Cth). Section 20 of the Crimes Act (Cth) contains a provision similar to the adjourned undertakings option available to magistrates for state offences, in that a defendant may be released after being convicted, subject to conditions and undertakings. A Magistrates’ Court, when sentencing a defendant convicted of a Commonwealth offence, is able to impose a CCO (s 20AB). Unlike defendants against state law, defendants against Commonwealth law who receive a fine or CCO must receive a conviction. Contacts Drug Court of Victoria At the Ballarat Magistrates’ Court, 100 Grenville Street South, Ballarat Vic 3350 Tel: 7003 4113 Email: drugcourtballarat@courts.vic.gov.au