In Australia, both State and Federal Parliament make criminal laws. For example, theft is a state offence under the Victorian Crimes Act 1958
Whereas engaging in a terrorist act is a federal offence under the Commonwealth Criminal Code Act 1995. People in Victoria can be tried under both state and Commonwealth laws.
If an individual commits an offence and the police have gathered sufficient evidence, they can then charge that individual with a criminal offence. Under the Victoria law, after the charge has been laid, the police must bring the accused person to court as soon as possible.
Victorian courts can hear both state and federal matters. When sentencing an offender for a state crime, the Victorian courts apply the powers found in the Sentencing Act 1991 and the Children, Youth and Families Act 2005. When sentencing an offender for a federal matter, the Victorian courts apply the sentencing powers found in the Commonwealth Crimes Act 1914
A person coming before a court is asked if they are guilty or not guilty of the offence. If the person pleads guilty, they are considered to have been found guilty by the court.
If a person pleads not guilty, the court will hear all the evidence and make a decision about whether the person is guilty or not guilty. In the Magistrates’ Court, this decision is made by a magistrate. In the higher courts, this finding is usually made by a jury.
A person who is found not guilty is said to have been acquitted. A person who is acquitted is free to go.
Sentencing occurs after a person is found guilty of, or pleads guilty to, an offence. In complex cases, a sentencing judge may need to consider a large number of relevant concerns when deciding a sentence. Sentencing purposes and factors are weighed up according to their relevance to the circumstances of the case at hand. No one purpose or factor has a predetermined value. The judge balances (or synthesises) the purposes and factors in order to determine the most appropriate sentence.
Sometimes sentencing can take place in the absence of an offender, as in ex parte hearings in the Magistrates’ Court. For most matters, sentencing cannot take place without the offender being present. Where an offender fails to appear before a court, the judge or magistrate may issue a warrant for the offender’s arrest.
In Victoria, an appeal may be made by the defence or prosecution against conviction, sentence, or conviction and sentence. An appeal is made to a court higher than the original sentencing court. The Criminal Procedure Act 2009 governs the process of appeals against sentences in the Magistrates’, County and Supreme Courts.
If an appeal is successful, the appeal court can set the original sentence aside and impose a new sentence. Alternatively, the court can send the matter back to the original sentencing court for the offender to be resentenced.