Courts in Victoria have some sentencing options other than imprisonment for offenders who choose to admit guilt
Punishment for a criminal offence in Victoria can range from incarceration to a fine to no punishment at all. When an offender takes responsibility for an offence by admitting guilt, the offender may be allowed to remain in the community, with or without a criminal conviction being recorded.
Sentencing laws were changed in Victoria between 2011 and 2014. Some sentencing options, such as suspended sentences, were abolished. Other sentencing options were added or amended.
Punishments are determined by the judge assigned to the case, although negotiations between the prosecutor and the offender’s lawyer can result in favourable sentencing recommendations. Also, negotiations can result in an agreement that an offender should avoid a conviction.
The harshest penalties are usually imposed for the most serious crimes. The offender’s criminal history and character traits will also influence the judge’s choice of punishment. First offenders and offenders with stable employment, a history of public service, and a demonstrated commitment to family have the best opportunity to receive a lenient punishment.
Incarceration punishment
When a judge in Victoria sentences an offender to imprisonment, the judge must follow the principle of parsimony. That means the judge should not impose a longer sentence than is necessary to accomplish the purposes of sentencing. Those purposes are:
- Protection of the community
- Rehabilitation of the offender
- Deterrence of the offender and others from committing similar crimes
- Making a public statement that condemns the offender’s behaviour
The judge has the discretion to impose any sentence between the maximum and minimum that parliament established for the crime. In Victoria, it is rare for parliament to set a minimum sentence.
A life sentence in Victoria can only be imposed by the supreme court.
In most cases, the court will set a non-parole period, which is the minimum amount of time the offender can serve before being released on parole. Whether the judge can or should set a parole period depends on the length of the sentence:
- If the sentence is for less than 1 year, the court cannot set a non-parole period. The offender must serve the entire sentence.
- If the sentence is between 1 and 2 years, whether to set a non-parole period is up to the judge.
- If the sentence is longer than 2 years, the court should set a non-parole period unless the judge explains why a non-parole period would be inappropriate.
The length of the non-parole period is for the judge to decide, but it must be at least 6 months shorter than the full sentence. When the crime involves gross violence, however, the non-parole period must be at least 4 years.
Drug treatment orders
Drug treatment orders are not an available option for certain violent offences. When the court imposes a drug treatment order, it first imposes a sentence of incarceration of up to 2 years. It then suspends that sentence and orders the offender to participate in a treatment program.
Offenders who are subject to a drug treatment order must obey a number of conditions. They usually report to the court on a regular basis so that the court can get an update on their treatment progress. They are also required to submit to drug testing.
When offenders miss treatment sessions or test positive for drug use, the suspension may counsel. The offender then serves a sentence previously imposed. Whether to lift the suspension or to give the offender another chance (perhaps with additional conditions) is up to the court. Offenders who complete the program successfully are not required to serve a sentence.
A Community Corrections Order
A Community Corrections Order (CCO) allows the sentenced offender to remain in the community, subject to strict supervision and other conditions. A requirement to perform community service is a common condition. Offenders may also be required to participate in drug or alcohol treatment and counselling programs.
Restrictions placed on an offender who is subject to a CCO may include:
Home confinement during nonworking hours
Curfew
Stay out of places that serve alcohol
Stay out of designated neighbourhoods
Stay away from designated people
No consumption of alcohol
The maximum term of a CCO is the same as the maximum term for the crime that the court is authorised to impose. An offender who breaches the terms of a CCO may be returned to court for sentencing on the original offence.
A fine as the sole punishment
A judge or magistrate can impose a fine as the sole punishment or in addition to another punishment. The court can select any amount up to the maximum fine that has been authorised by the legislature for the particular crime. A court might be inclined to impose a fine rather than a CCO if the offender convinces that court that a CCO would interfere with employment or the offender’s other obligations.
Courts must take an offender’s ability to pay into account when they assess a fine. An offender who is seeking a fine instead of any other punishment should disclose finances available to the court so that an appropriate fine can be set.
Convicted and discharged
In some cases, the court will decide that the conviction itself is sufficient punishment. In those cases, the court has the option to impose no sentence.
A good behaviour bond
Rather than entering a criminal conviction, a court in Victoria can adjourn sentencing and allow an offender to make a promise (known as an “undertaking”) not to commit any new offence for a period of up to 5 years. While the undertaking is in effect, the offender remains at liberty in the community. If the offender reoffends, however, the conviction will be entered and the offender will be sentenced. The offender can also be charged with a new offence of Breaching a Good Behaviour Bond.
A good behaviour bond can be entered with or without recording a conviction. Courts can attach conditions, such as restitution, to a good behaviour bond. Another common condition requires offenders to make a charitable donation.
