Part 1 - Preliminary; Part 2 - Governing Principles Flashcards
S1 - Purposes
The purposes of the Act are—
● (a) Promote consistency of approach in sentencing of offenders
● (b) House within one Act all general provisions dealing with powers of courts to sentence offenders
● (c) Provide fair procedures for:
○ (i) Imposing sentences; and
○ (ii) Dealing with offenders who breach sentencing terms/conditions
● (d) Prevent crime and promote respect for the law by providing for sentences that —
(i) Are intended to deter offender/other people from engaging in similar behaviour
○ (ii) Facilitate the rehab of offenders
○ (iii) Allow for denunciation of the type of conduct in which offender engaged
○ (iv) Ensuring that offenders are only punished to extent justified by —
■ (A) Nature and gravity of their offences
■ (B) Their culpability and degree of responsibility for their offences
■ (C) Presence of any aggravating or mitigating factor concerning the offender and any other relevant circumstance
○ (v) Promoting public understanding of sentencing practices and procedures
● (e) Provide sentencing principles to be applied by courts in sentencing offenders
● (g) Provide for the sentencing of special categories of offender
● (h) Set out the objectives of various sentencing and other orders
● (i) Ensure victims of crime receive adequate compensation and restitution
● (j) Provide a framework for the setting of max penalties
● (k) Vary penalties that may be imposed under the Crimes Act
● (l) Generally to reform the sentencing laws of Victoria
s 5 — Sentencing Guidelines - (1)-(2)
(1) The only purposes for which sentences may be imposed are:
● (a) to punish offender to extent and in manner which is justified in the circumstances
● (b) Deter offender/other persons from committing offences of same/similar character
● (c) Establish conditions within which it’s considered by the court that the rehab of the offender may be facilitated; or
● (d) Manifest the court’s denunciation of type of conduct in which offender engaged
● (e) protect the community from the offender
● (f) Combination of two+ of the above offences.
(2AA) Despite anything to the contrary in this Act, in sentencing, a Court may not have regard to: (a) Any possibility/likelihood that the length of time actually spent in custody will be affected by executive action of any kind (b) pre-1997 sentencing practices
(2AB) Undertakings given to assist law enforcement authorities in investigation/prosecution of offence — if Court imposes less severe sentence for this reason crt must announce it’s doing so and cause fact of undertaking and its details to be entered into the records of the Court
(2AC) The foregoing doesn’t mean court has to state sentence that would otherwise have been given but for the undertaking
s 5 — Sentencing Guidelines - (2A)-(2BD)
(2A) Relevance of forfeiture orders etc – in sentencing an offender, a court:
● (a) May have regard to a forfeiture order made under the Confiscation Act in respect of property that (i) was used in or in connection with the commission of the offence; (ii) that was intended to be so used; or (iii) that was (substantially) derived or realised directly or indirectly from property referred to above
● (ab) If its satisfied that the property was acquired lawfully, may have regard to automatic forfeiture under Divs 2 or 3 of Pt 3 of the Confiscation Act in respect of property (i)-(ii)-(iii) (…same as above)
● (b) Must not have regard to forfeiture order made under the Confiscation Act in relation to property that was (substantially) derived or realised, directly or indirectly, by any person as a result of the commission of the offence (as opposed to property being used in offence’s commission)
● (c) May have regard to a pecuniary penalty order made under that Act to the extent it relates to benefits in excess of profits derived from the commission of the offence
● (d) Mustn’t have regard to pecuniary penalty order made under that Act to extent it relates to profits (as opposed to benefits) derived from commission of offence
● (e) Subject to (ab), must not have regard to automatic property forfeiture under Div 2 / 3 of Pt 3 or pecuniary penalty order made under that Act in relation to sch 2 offence
● (f) Must not have regard to the automatic forfeiture of property under Div 4 of Pt 3 of that ACt re a serious drug offence
(2B) nothing above prevents court from having regard to one of those orders as an indication of remorse or cooperation with the authorities on part of offender.
(2BA)(a) Must not have regard to extended supervision order/interim extended supervision order under the Serious sex offenders monitoring Act but can have regard to conditions of that order if relevant to any sentence imposed by it. (2BB) can get report from Secretary of that Act for this purpose — Court can request.
(2BC) Court must not have regard to any consequences that may arise under the Sex Offender Registration Act or the Worker Screening Act from the imposition of the sentence.
(2BD) must not have regard to fact offender is subject to a Serious offenders Act order but can have regard to conditions (if relevant to the sentence it will impose) AND (b) must not have regard to any possibility or likelihood of an application being made under that Act for an order in respect of the offender. (2BE) can request Secretary report re: conditions of any such order or the terms of any instructions and directions
s 5 — Sentencing Guidelines - (2C)-(2F)
(2C) can have regard to conduct of offender on or in connection with the trial as an indication of remorse or lack of remorse
(2CA) re: murder/manslaughter trial where body/remains of deceased victim not yet been located, court may have regard to whether offender has cooperated in investigation to identify (a) location (b) place of body.
(2D) In having regard to (2C), court may consider extent to which offender complied with/failed to comply with, requirement imposed on offender by or under Pt 5.5 of Ch 5 of the CPA (pre-trial procedure).
(2E) an offender who PG to offence after the determination by Court of Appeal of question of law reserved under s 302 of the CPA is taken to have PG immediately after arraignment.
(2F) — Sentencing for a course of conduct charge, Court:
● (a) Must impose a sentence that reflects the totality of the offending that constitutes the course of conduct;
● (b) Must not impose a sentence that exceeds the max penalty prescribed for the offence if charged as a single offence.
● Note: If jury finds person guilty of course of conduct charge, in making finding of facts relevant to sentencing the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced.
Category 1 offence (definition in Schedule)
What is a category 1 offence? (definitions in s 3)
● Any of the following committed by a person who was 18/ older at time of commission:
○ (a) Murder
○ (b) causing SI intentionally in circumstances of gross violence (15A)
○ (c) causing SI recklessly in circumstances of gross violence (15B)
○ (ca) Causing serious injury intentionally (16) if —
■ (i) Victim emergency worker, custodial officer, youth justice custodial worker (all on duty), and (ii) offender knew/reckless as to that fact
○ (cb) Causing serious injury recklessly (17) if —
■ (i) Victim emergency worker, custodial officer, youth justice custodial worker (all on duty), and (ii) offender knew/reckless as to that fact
○ (cc) Causing injury recklessly or intentionally (18) if —
■ (i) Victim emergency worker, custodial officer, youth justice custodial worker (all on duty), and (ii) offender knew/reckless as to that fact
○ (d) rape (38)
○ (e) Rape by compelling sexual penetration (39)
○ (f) Sexual penetration of child was under age of 12 (49A)
○ (g) Persistent sexual abuse of child was under age of 16 (49J)
○ (h) sexual penetration of child /lineal descendent if victim was under 18 (50C)
○ (i) sexual penetration of step-child if child was under 18 (50D)
○ (ia) Aggravated home invasion (77B)
○ (ib) Aggravated carjacking (79A)
○ (ic) intentionally exposing an emergency worker, a custodial officer or youth justice custodial worker to risk by driving (317AC), if emergency worker etc is injured in the commission of the offence
○ (id) intentionally exposing an emergency worker, a custodial officer or youth justice custodial worker to risk by driving (317AD), if emergency worker etc is injured in the commission of the offence
○ (j) Traffick large commercial quantity of drug(s) of dependence (71)
○ (ja) Traffick in drug(s) of dependence for the benefit of or at the direction of a criminal organisation — commercial quantity (71AA)
○ (k) Cultivation of narcotic plants - large commercial quantity (72)
○ (l) Now repealed sex offences:
■ (i) incest with the person’s child, other lineal descendant or step child if victim was, at the time of the offence, under the age of 18 (44(1))
■ (ii) incest with a child, other lineal descendant or step-child under the age of 18 of the person’s de facto spouse (44(2))
■ (iii) sexual penetration of child under 16 committed in circumstances of aggravation as then in force (45(1))
■ (iv) Persistent sexual abuse of child under age of 16 (47A(1))
What is a category 2 offence? (definitions)
● Any of the following committed by a person who was 18/older at time of commission:
○ (a) Manslaughter;
○ (b) Child homicide (under age of 6 – species of manslaughter) (5A)
○ (ba) Homicide by firearm (species of manslaughter) (5B)
○ (c) causing SI intentionally (16) other than a category 1 offence;
○ (d) Kidnapping (63A); (f) kidnapping under the common law
○ (da) Armed robbery (75A) if:
■ (i) offender Had firearm with them at the time of the offence, OR
■ (ii) Victim has suffered injury as a direct result of the offence, OR
■ (iii) Offence committed by the offender in company with one or more persons
○ (db) Home invasion (77A)
○ (dc) Carjacking (79(2))
○ (e) Arson causing death (197A)
○ (ea) Culpable driving causing death (318(1))
○ (eb) Dangerous driving causing death (319(1))
○ (g) Traffick commercial quantity of DOD (71AA)
○ (h) Cultivate commercial quantity of narcotic plants (72A)
○ (i) Providing documents or information facilitating terrorist acts (4B)
○ (j) Aggravated offence of intentionally exposing EW, CO, or YJCW to risk by driving (317AD), other than a category 1 offence
○ (k) Aggravated offence of recklessly exposing EW, CO, or YJCW to risk by driving (317AF)
○ (l) discharging a firearm reckless to safety of a police officer or a protective services officer (31C) in circumstances where the offender’s conduct created a risk to the physical safety of the victim or to any member of the public
○ (m) Common assault committed in circs referred to in s320A(1) or (2) of the CA if assault included direct application of force (offensive weapon, police etc)
Rules for sentencing Category 1 Offences
Rules for sentencing category 1 offences
Essentially, imprisonment (but not combined with CCO). There are exceptions for the EW, CO, YJCW Cat 1 offences. Can instead impose Mandatory treatment and monitoring order, residential treatment order or court secure treatment order if offender proves causal link between offending and impaired mental functioning (substantially and materially reduces culpability) and court is satisfied it is appropriate. Not available if impairment is caused substantially by self-induced intoxication.
s 5 — Sentencing Guidelines - (2G)-(2GC) - Sentencing for Category 1 Offences
(2G) Subject to (2GA), in sentencing an offender for a category 1 offence*, a court must make a custodial order other than a sentence of imprisonment combined with a CCO
(2GA) in sentencing an offender for one of the emergency worker Cat 1 offences (being (ca), (cb), (cc), (ic) or (id)) where the Court has found under 10A that a special reason exists, and having regard to Parliament’s intention set out in 10A(3)(aa) to (b), a court must either:
● (a) Make an (2G) order (being a custodial order not combined with CCO); or
● (b) Make an MTMO under s44, an RTO or a CSTO if —
○ Offender proves on BOP that:
■ (i) at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to commission of offence and substantially and materially reduces their culpability; and
■ (ii) the court is satisfied that an MTMO, an RTO or a CSTO, as the case requires, is appropriate.
○ (2GB) Before making such an order, the Court must (a) have received a report addressing the above matters by a psychologist or psychiatrist who has examined the offender in relation to the offending and (b) have regard to that report and any other relevant evidence
○ (2GC) Subsection (2GA) cannot apply to impaired mental functioning caused substantially by self-induced intoxication.
Rules for sentencing Category 2 Offences
Essentially, imprisonment not combined with CCO, but there are broader exceptions than for Category 1. These are: given assistance or given undertaking to give assistance, OR has proved on BOP that either causal link between IMF and commission OR IMF that would result in the offender being subject to substantially and materially greater burdens than the ordinary burden of imprisonment. OR court proposes to make CSTO or RTO. OR there are substantial and compelling reasons that are exceptional and rare that justify not making the order (see further for meaning below). Does not apply if IMF is caused substantially by self-induced intoxication.
s 5 — Sentencing Guidelines - (2H)-(2I) - Sentencing for Category 2 Offences
(2H) In sentencing an offender for a category 2 offence, a Court must impose custodial order (being a custodial order not combined with CCO) unless —
● (a) The offender has assisted or given undertaking to assist law enforcement authorities in investigation or prosecution of an offence; or
● (c) Offender proves on BOP that —
○ (i) subject to subsection (2HA), at the time of the commission of the offence, they had IMF that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or
○ (ii) they have IMF that would result in them being subject to substantially and materially burdens greater than the ordinary burden/risks of imprisonment; or
● (d) Court proposes to make a CSTO or RTO; or
● (e) There are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3
● (2HA) Does not apply to IMF caused substantially by self induced intoxication.
● (2HB) In subsections (2GA), (2GC), (2H) and (2HA), IMF has same meaning as in 10A; SII has same meaning as 322T(5)/(6) of the Crimes Act.
(2HC) In determining whether there are substantial and compelling circumstances under above, the Court:
● (a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
● (b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
● (c) must not have regard to—
○ (i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
○ (ii) an early guilty plea; or
○ (iii) prospects of rehabilitation; or
○ (iv) parity with other sentences.
● (2I) And the Court must have regard to:
○ (a) Parliament’s intention that in sentencing an offender for a category 2 offence, only order under Division 2 of Part 3 should ordinarily be made; and
○ (b) whether cumulative impact of the circumstances of the case would justify a departure from such a sentence.
s 5 — Sentencing Guidelines - (2J)ff - Miscellaneous
(2J) In sentencing a young offender aged 16 years or more but under 18 years at the time of the commission of an indictable offence, the SCV or CCV must have regard to any requirement in this Act that a specified minimum non-parole period of imprisonment be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult.
(3) Parsimony — subject to subsections (2G), (2GA) and (2H), court must not impose a sentence that’s more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed
(4) Confinement last resort — Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence involving confinement of offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement
→ court can’t impose, in following order (Subject to subsections (2G), (2GA) and (2H)):
● Confinement, unless considers purpose can’t be achieved by (4B) DATO (4C) CCO
● (5) DATO unless considers purpose cant be achieved by CCO
● (6) CCO unless considers purpose cant be achieved by imposing Fine
● (7) Fine unless considers purpose can’t be achieved by Dismissal, discharge or adjournment
S 6 Factors to be considered in determining offender’s character
In determining character of an offender a court may consider (among other things)—
● (a) Number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of offender
● (b) General reputation of offender
● (c) Any significant contributions made by the offender to the community
s6AAA — Sentence discount for guilty plea
s6AAA — Sentence discount for guilty plea
● (1) (a) If Court imposes a lesser sentence than otherwise would have because of plea of guilty, court must state the sentence and non-parole period, if any, it would have imposed but for the plea of guilty
● (b) Only applies re a sentence ultimately imposed that is:
○ (i)-(ia) Sentence of imprisonment
○ (iab) CCO for period of 2+ years
○ (ii) Fine exceeding 10 penalty units; OR
○ (iii) Aggregate fine exceeding 20 penalty units
● (2) If sentenced for multiple offences and (1)(a)/(b) apply, Court must state TES/NPP (if any) that would have been imposed in absence of PG, but court does not need to state those matters separately for each offence.
● (3) But court may still do so where (1)(b) inapplicable if wants to
● (4) Must cause foregoing statements to be recorded (whether in writing/another form)
● (5) For this section, an aggregate sentence imposed in respect of two or more offences is to be treated as a sentence imposed in respect of one offence
