Sentencing

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.

Sentencing hearing

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:

  • the facts of the case
  • the offender's circumstances (for example, the prosecution might point out the offender's criminal history, while the defence might point out the offender has shown remorse)
  • relevant sentencing principles
  • the type of sentence the offender deserves (for example, imprisonment or a community correction order)
  • examples of sentences in similar cases.

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.

Sentencing law

There are two sources of sentencing law:

  1. Statute law – law in legislation made by the Victorian or Commonwealth Parliament. Statute laws define crimes, establish penalties, list the available sentences and set out the rules courts must apply when sentencing.
  2. Case law – also known as common law, these are the decisions made by the Court when sentencing, and decisions about how statutes should be interpreted or applied.

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.

The purpose of sentencing

Sentencing decisions have five purposes:

  1. Just punishment – to punish the offender in a way that is fair in all the circumstances.
  2. Deterrence – to discourage the offender (also known as specific deterrence) or other people (general deterrence) from committing the same or similar offences.
  3. Rehabilitation – to create conditions that help the offender lead a law-abiding life in the future.
  4. Denunciation – to denounce, condemn or censure the offender’s behaviour (that is, make it clear to the community the behaviour is wrong).
  5. Community protection – to protect the community from the offender.

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.

Principles of sentencing

Each sentence we impose must take the following principles into account:

  • Proportionality – the severity of the sentence must fit the seriousness of the crime.
  • Parsimony – the sentence imposed must be no more severe than is necessary.
  • Parity – co-offenders who are jointly involved in the same criminal behaviour usually receive similar sentences.
  • Totality – when an offender faces more than one sentence, the total sentence must be just and appropriate to the offender's overall criminal behaviour.
  • Crushing sentences – we avoid imposing a sentence so severe that it crushes any hope the offender will lead a useful life after release from custody. However, in some circumstances, such a sentence may still be imposed if it is just and appropriate.

Culpability

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 and aggravating factors

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:

  • the offender's age (imprisonment might be inappropriate if they are young or elderly)
  • a person's disadvantaged background
  • the offender's previous good character
  • the likely effects of prison on the offender (for example, if the offender has a medical condition that would be hard to manage in prison).

Aggravating factors might include:

  • pre-planning the crime (pre-meditation)
  • committing the crime as part of a group against an outnumbered victim
  • use of a weapon or artificial weapon
  • a breach of trust by the offender towards the victim (for example, where a teacher commits a crime against a student).

Cumulation and concurrency

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.

Imposing sentence and making sentencing remarks

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.

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Page last updated: 8 September 2020