Five factors help our judges decide on an appropriate penalty – just punishment, rehabilitation, deterrence, denunciation and community protection.
Laws about sentencing have been made by Parliament. The judge's job is to interpret sentencing laws and decide the actual sentence to be imposed on each offender in the particular circumstances of each case. Government departments and agencies, such as Corrections Victoria, then administer the sentences.
This is when a judge hears arguments (known as submissions) from prosecutors (the Crown) and defence lawyers about what they think the sentence should be. It is sometimes called a plea in mitigation or a plea hearing.
The Crown and defence provide information about:
A Victim Impact Statement may be read out at a sentencing hearing, either by the victim or by the prosecution on the victim's behalf.
Most sentencing hearings are open to the public.
There are two sources of sentencing law:
Statute law and case law together create a framework our Judges must follow when sentencing offenders.
Ultimately, each sentence is based on the facts of the particular case and the particular offender. There is no single, correct or automatic sentence we impose for any type of offence, although Judges' sentencing discretion is subject to mandatory non-parole periods for certain serious offences, and the Standard Sentencing Scheme legislation.
Sentencing decisions have five purposes:
No one purpose is more important than another. For each case, Judges look at the features of the offending and the offender, and decide on the purpose or combination of purposes that apply.
Each sentence we impose must take the following principles into account:
In assessing a sentence we take into account how much blame the offender has for the offence, and for the harm they caused. We consider factors such as whether an offender was in control of their actions, if they had knowledge of the likely consequences of their actions, whether they were provoked or if they were in possession of a weapon. More culpable offenders tend to get more severe sentences.
Mitigating factors are details about the offender and their offence that tend to reduce the severity of their sentence. Aggravating factors are the reverse – they are details about the offence and the offender that tend to increase their culpability and the sentence they receive.
Mitigating factors might include:
Aggravating factors might include:
When sentencing an offender for multiple sentences, Judges will make an order for concurrency or cumulation of the sentences.
Concurrent sentences are served at the same time.
Cumulative sentences are served one after the other.
In doing so, we apply the principle of totality and avoid a crushing sentence. We also have the option of partial cumulation.
At the end of a sentencing hearing, the Judge summarises the case, imposes a sentence and explains the reasons for giving the sentence.
Sentencing remarks are made in open court unless a closed court order has been made.
For summaries of our sentencing decisions, visit the sentencing overview tables.
For more information, visit the Sentencing Advisory Council.