Victorian Consolidated Legislation

Sentencing Act 1991 - SECT 5

PART 2 GOVERNING PRINCIPLES

Sentencing guidelines

5. Sentencing guidelines



(1) The only purposes for which sentences may be imposed are-

   (a)  to punish the offender to an extent and in a manner which is just in
        all of the circumstances; or

   (b)  to deter the offender or other persons from committing offences of the
        same or a similar character; or

   (c)  to establish conditions within which it is considered by the court
        that the rehabilitation of the offender may be facilitated; or

   (d)  to manifest the denunciation by the court of the type of conduct in
        which the offender engaged; or

   (e)  to protect the community from the offender; or

   (f)  a combination of two or more of those purposes.

(2AA) Despite anything to the contrary in this Act, in sentencing an offender
a court must not have regard to1-

   (a)  any possibility or likelihood that the length of time actually spent
        in custody by the offender will be affected by executive action of any
        kind; or

   (b)  any sentencing practices arising at any time out of section 10 of this
        Act as in force at any time before its expiry.



(2AB) If, in sentencing an offender, a court imposes a less severe sentence
than it would otherwise have imposed because of an undertaking given by the
offender to assist, after sentencing, law enforcement authorities in the
investigation or prosecution of an offence, the court must announce that it is
doing so and cause to be noted in the records of the court the fact that the
undertaking was given and its details.

(2AC) Nothing in subsection (2AB) requires a court to state the sentence that
it would have imposed but for the undertaking that was given.

(2) In sentencing an offender a court must have regard to-

   (a)  the maximum penalty prescribed for the offence; and

   (b)  current sentencing practices; and

   (c)  the nature and gravity of the offence; and

   (d)  the offender's culpability and degree of responsibility for the
        offence; and

   (daaa) whether the offence was motivated (wholly or partly) by hatred for
        or prejudice against a group of people with common characteristics
        with which the victim was associated or with which the offender
        believed the victim was associated; and

   (daa) the impact of the offence on any victim of the offence; and



   (da) the personal circumstances of any victim of the offence; and



   (db) any injury, loss or damage resulting directly from the offence; and



   (e)  whether the offender pleaded guilty to the offence and, if so, the
        stage in the proceedings at which the offender did so or indicated an
        intention to do so; and

   (f)  the offender's previous character; and

   (g)  the presence of any aggravating or mitigating factor concerning the
        offender or of any other relevant circumstances.

(2A) In sentencing an offender a court-





   (a)  may have regard to a forfeiture order made under the
        Confiscation Act 1997 in respect of property-

   (i)  that was used in, or in connection with, the commission of the
        offence;

   (ii) that was intended to be used in, or in connection with, the commission
        of the offence;

   (iii) that was derived or realised, or substantially derived or realised,
        directly or indirectly, from property referred to in subparagraph (i)
        or (ii);

   (ab) if it is satisfied that property was acquired lawfully, may have
        regard to automatic forfeiture under the Confiscation Act 1997 in
        respect of property-

   (i)  that was used in, or in connection with, the commission of the
        offence;

   (ii) that was intended to be used in, or in connection with, the commission
        of the offence;

   (iii) that was derived or realised, or substantially derived or realised,
        directly or indirectly, from property referred to in subparagraph (i)
        or (ii);

   (b)  must not have regard to a forfeiture order made under that Act in
        respect of property that was derived or realised, or substantially
        derived or realised, directly or indirectly, by any person as a result
        of the commission of the offence;

   (c)  may have regard to a pecuniary penalty order made under that Act to
        the extent to which it relates to benefits in excess of profits
        derived from the commission of the offence;

   (d)  must not have regard to a pecuniary penalty order made under that Act
        to the extent to which relates to profits (as opposed to benefits)
        derived from the commission of the offence;

   (e)  subject to paragraph (ab), must not have regard to any property
        forfeited under automatic forfeiture or a pecuniary penalty order made
        in relation to a Schedule 2 offence under that Act.



(2B) Nothing in subsection (2A) prevents a court from having regard to a
forfeiture order or civil forfeiture order made under, or automatic forfeiture
occurring by operation of, the Confiscation Act 1997 as an indication of
remorse or co-operation with the authorities on the part of the offender.

(2BA) In sentencing an offender, a court-





   (a)  must not have regard to the fact that the offender is subject to an
        extended supervision order or interim extended supervision order under
        the Serious Sex Offenders Monitoring Act 2005 but, if relevant to the
        conditions of any sentence imposed by it, may have regard to the
        conditions of that order and the terms of any current directions or
        instructions given by the Adult Parole Board under section 16 of that
        Act;



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(2BB) For the purposes of subsection (2BA)(a), the court may request the
Secretary within the meaning of the Serious Sex Offenders Monitoring Act 2005
to provide it with a report setting out-

   (a)  the conditions of the extended supervision order or interim extended
        supervision order to which the offender is subject under that Act; and

   (b)  the terms of any current directions or instructions given by the Adult
        Parole Board under section 16 of that Act in relation to that order.

(2BC) In sentencing an offender a court must not have regard to any
consequences that may arise under the Sex Offenders Registration Act 2004 or
the Working with Children Act 2005 from the imposition of the sentence.

(2BD) In sentencing an offender, a court-

   (a)  must not have regard to the fact that the offender is subject to an
        order made under the Serious Sex Offenders (Detention and Supervision)
        Act 2009 but, if relevant to the conditions of any sentence imposed by
        it, may have regard to the conditions (if any) imposed on that order
        and the terms of any current directions or instructions given by the
        Adult Parole Board under section 119, 120(2) or 121 of that Act;

   (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) For the purposes of subsection (2BD)(a), the court may request the
Secretary to the Department of Justice to provide it with a report setting
out-

   (a)  the conditions of the supervision order or interim supervision order
        to which the offender is subject under that Act; and

   (b)  the terms of any current directions or instructions given by the Adult
        Parole Board under section 119, 120(2) or 121 of that Act in relation
        to that order.

(2C) In sentencing an offender a court may have regard to the conduct of the
offender on or in connection with the trial or hearing as an indication of
remorse or lack of remorse on his or her part.





(2D) In having regard to the conduct of the offender under subsection (2C),
the court may consider the extent to which the offender complied with, or
failed to comply with, a requirement imposed on the offender by or under the
Part 5.5 of Chapter 5 of the Criminal Procedure Act 2009.





(2E) An offender who pleads guilty to an offence after the determination by
the Court of Appeal2 of a question of law reserved under section 302(2) of the
Criminal Procedure Act 2009 is to be taken to have pleaded guilty immediately
after arraignment.





(3) A court must not impose a sentence that is more severe than that which is
necessary to achieve the purpose or purposes for which the sentence is
imposed.

(4) A court must not impose a sentence that involves the confinement of the
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 of the offender.

(4A) A court must not impose a combined custody and treatment order unless it
considers that the purpose or purposes for which the sentence is imposed
cannot be achieved by a drug treatment order.





(4B) A court must not impose a drug treatment order unless it considers that
the purpose or purposes for which the sentence is imposed cannot be achieved
by an intensive correction order.

(5) A court must not impose an intensive correction order unless it considers
that the purpose or purposes for which the sentence is imposed cannot be
achieved by a community-based order.

(6) A court must not impose a community-based order unless it considers that
the purpose or purposes for which the sentence is imposed cannot be achieved
by imposing a fine.

(7) A court must not impose a fine unless it considers that the purpose or
purposes for which the sentence is imposed cannot be achieved by a dismissal,
discharge or adjournment.



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