Sentencing is the part of the criminal justice system the public is most likely to argue about and least likely to read about in detail. Newspaper coverage tends to be a single number — the sentence imposed — with very little of the architecture that produced it. The architecture is what determines whether the number was ever going to be larger or smaller, and it is set out in legislation and decades of case law.
This is our plain-English guide to how Victorian judges actually decide a sentence, what the available options are, and where the system has tried to standardise outcomes through standard sentences and guideline judgments.
The Sentencing Act 1991
The governing statute is the Sentencing Act 1991 (Vic), supplemented by case law from the Victorian Court of Appeal and, where relevant, the High Court of Australia. The Act sets out the purposes of sentencing, the range of orders a court may make, the factors a court must consider, and the procedural rules for hearing a sentencing matter.
Section 5(1) of the Act sets out the only purposes for which a sentence may be imposed. Those purposes are exhaustive — a sentence cannot be imposed for any other reason.
The five purposes of sentencing
The Act identifies five purposes, and a sentencing judge must consider each.
- Just punishment — the sentence should be a punishment proportionate to the offending, reflecting community standards.
- Deterrence — both general deterrence (deterring others from committing similar offences) and specific deterrence (deterring this offender from reoffending).
- Rehabilitation — the sentence should, where possible, support the offender’s prospects of becoming a contributing member of the community.
- Denunciation — the sentence should publicly denounce the conduct as conduct the community condemns.
- Community protection — the sentence should protect the community from the offender, where the offender presents a risk.
These purposes pull in different directions. A sentence that maximises deterrence may not be the sentence that maximises rehabilitation. A sentence focused on community protection may exceed what just punishment alone would require. The judge weighs them against the facts of the case. That weighing is the heart of sentencing discretion.
Maximum penalties and standard sentences
Each criminal offence has a maximum penalty set out in the legislation that creates it. The maximum is reserved for the worst category of cases. The High Court has repeatedly held that the maximum is a yardstick, not a starting point, and that the sentence imposed in any individual case must reflect the gravity of the actual offending, not the gravity of the worst hypothetical version.
For a defined list of serious offences, Victoria also operates a standard sentence regime under Part 2AA of the Sentencing Act, introduced in 2018. A standard sentence is the sentence that would be imposed for an offence in the middle of the range of objective seriousness. It is not a starting point or a presumptive sentence in the strict sense, but it is a guidepost to which the sentencing judge must have regard. The standard sentences cover offences such as murder, certain sexual offences against children, and aggravated home invasion.
The Court of Appeal has cautioned that standard sentences must not be treated mechanically. The individual circumstances of the offender and the offending still matter.
The plea discount and parsimony
Two principles deserve specific mention because they explain a lot about why sentences look the way they do.
The discount for a plea of guilty is set out in section 6AAA of the Sentencing Act. A sentencing court that has imposed a less severe sentence than it otherwise would have, on account of the plea, must declare what the sentence would have been but for the plea. The discount reflects two things: the utilitarian value of the plea (the saving of court time, the avoidance of trauma to victims and witnesses) and the offender’s acceptance of responsibility.
The parsimony principle is the rule that the sentence imposed should be no more severe than is necessary to achieve the relevant purposes. Where two sentencing options would each adequately serve those purposes, the court should impose the less severe. Parsimony is not leniency — it is a discipline that requires the court to justify the severity of the sentence chosen.
The sentencing options
Victorian courts have a graduated list of sentencing options. The most commonly imposed are these.
- Without conviction outcomes — including dismissal, adjourned undertakings and good behaviour bonds. Used where conviction itself would be disproportionate.
- Fines — the most common sentence in the Magistrates’ Court for summary offending.
- Community Correction Orders (CCOs) — orders served in the community, with mandatory and optional conditions. Conditions can include unpaid community work, supervision, treatment for substance abuse or mental health, residence restrictions, curfews and judicial monitoring. CCOs are the most flexible mid-range sentence in the Victorian toolkit.
- Drug and Alcohol Treatment Orders — available through the Drug Court divisions of the Magistrates’ and County Courts. They combine a custodial sentence that is suspended on entry to a treatment program with intensive judicial supervision and graduated sanctions for non-compliance.
- Imprisonment — reserved for offending where no other sentence is appropriate. The court must specify a head sentence and, where applicable, a non-parole period.
Suspended sentences were abolished in Victoria from 2014 and are no longer available. Home detention does not exist in its old form. The CCO has, by design, taken the place of both as the major mid-range alternative to imprisonment.
Aggravating and mitigating factors
The factors a sentencing court considers run to dozens. The most commonly weighed are these.
On the aggravating side: prior convictions for similar offending, the use of a weapon, the vulnerability of the victim, breach of trust, the seriousness of the harm caused, the planning involved, offending while on bail or parole, and offending motivated by hatred or prejudice towards a protected characteristic.
On the mitigating side: youth, prior good character, evidence of genuine remorse, an early plea of guilty, cooperation with authorities, mental impairment that contributed to the offending (in the manner permitted by the Verdins principles), the offender’s prospects of rehabilitation, and the circumstances of significant hardship that any sentence would impose on dependants.
Each factor is weighed in the context of the offence. Mental impairment that bears on moral culpability may reduce the role of general deterrence and raise the role of rehabilitation; the same impairment, in a different case, may instead raise the relevance of community protection.
The Sentencing Advisory Council
The Sentencing Advisory Council (SAC) is the independent statutory body that publishes data on sentencing outcomes in Victoria, conducts research, advises the Attorney-General and contributes to public understanding of sentencing. The SAC publishes the Sentencing Snapshots series, which sets out median and range data for sentences imposed for specific offences over recent years.
For any reader who wants to understand whether a particular sentence in a particular case is unusually harsh or unusually lenient, the SAC’s data is the right starting point. A single sentence in a single case is rarely informative on its own. The distribution of sentences across hundreds of cases is.
Appeals against sentence
Both the offender and the Director of Public Prosecutions may appeal a sentence to the Court of Appeal. The offender may argue that the sentence is manifestly excessive. The DPP may argue that it is manifestly inadequate. The Court of Appeal will not interfere merely because it would have imposed a different sentence; the test is whether the sentence is outside the range of sentences reasonably open to the sentencing judge.
That standard is one reason that appeals against sentence are often unsuccessful, and one reason that public criticism of an ‘inadequate’ sentence sometimes does not translate into a successful DPP appeal.
The honest summary
Sentencing in Victoria is not a system that produces a single right answer. It produces a range of defensible answers, and the work of the sentencing judge is to pick a defensible answer that best serves the statutory purposes given the facts of the case. Reasonable people, including the Court of Appeal, can and do disagree about where in that range a particular sentence ought to sit. That is not a flaw of the system. It is the system working.
If you are a victim of crime affected by a sentencing outcome, the Victims of Crime Helpline is available on 1800 819 817. The Sentencing Advisory Council publishes accessible data on sentencing at sentencingcouncil.vic.gov.au. For free legal information about an appeal or any sentencing matter, contact Victoria Legal Aid on 1300 792 387. In an emergency call 000.
