CRIMINAL SANCTIONS Purposes Types Factors in sentencing Reforms – Community Correction Orders

Sanctions If the accused is found guilty, the judge or magistrate must decide on an appropriate sanction. The courts are guided in determining a sentence by principles set out in Acts of Parliament. These principles attempt to ensure that sanctions: express the disapproval of the community for the actions of the offender match the culpability of the offender provide for rehabilitation. These are the purposes of sanctions.

Imprisonment is a last resort. The Sentencing Act Just punishment – to punish the offender in a manner that is just. Deterrence – to deter the offender or others from committing the same or a similar offence. Rehabilitation – to establish the conditions that would alter or modify the behaviour of individuals. Denunciation – to demonstrate the court’s condemnation of the particular type of behaviour. Community protection – to protect the community. Imprisonment is a last resort.

Factors in sentencing In determining an appropriate sanction, the court should take the following into account: the maximum penalty for the offence – which is set out in the Act where the particular offence is defined current sentencing practices the nature and gravity of the offence – the types of factors a judge or magistrate might consider when weighing up the nature and gravity of the offence include: circumstances of aggravation the offender’s intention and the consequences of the offence method motive use of weapons any breach of trust how common the offence is

Factors in sentencing cont. the offender’s culpability and degree of responsibility for the offence – in this area a judge or magistrate may consider the offender’s: history of prior offending age, gender and cultural background response to previous court orders mental disorders, if relevant alcohol or drug addiction gambling problems personal crises the impact of the offence on any victim of the offence the personal circumstances of any victim of the offence any injury, loss or damage resulting directly from the offence whether the offender pleaded guilty to the offence the presence of any aggravating or mitigating factors the offender’s previous character.

Sentencing guidelines The Sentencing (Amendment) Act 2003 empowers the Court of Appeal to give guideline judgements for sentencing. A guideline judgement sets out guidelines for other courts to consider in sentencing an offender. The Sentencing (Amendment) Act 2003 also established the Sentencing Advisory Council. The Sentencing Advisory Council provides advice to the Court of Appeal on guideline judgements. The Sentencing Advisory Council also conducts research into community attitudes on sentencing and reports on sentencing statistics.

Hierarchy of sentencing Most serious Imprisonment Suspended sentence (limitation) Drug Treatment Order Community Correction Order Fine, with or without recording a conviction Release the offender, adjourning the hearing and imposing conditions, with or without recording a conviction Discharge, dismiss or adjournment Least serious

FINES Fines are the most common penalty imposed for any offence. A fine imposes a monetary penalty on an offender. A court can impose a fine either with or without recording a conviction. In determining the amount of the fine and costs, the court must take into consideration, among other things, the financial circumstances of the offender. Usually an Act sets a maximum fine or penalty. Fines are expressed as a number of penalty units.

Community Correction Orders (CCOs) A CCO is a flexible order served in the community. The order can also include up to three months in jail or a fine. From early 2012, the Community Correction Order will replace a number of sentencing orders, such as intensive correction orders and community-based orders. A CCO can be imposed for a maximum of two years. In the higher courts, a CCO can be imposed for up to the statutory maximum term of imprisonment for that offence.

CCOs cont. Offenders sentenced to a CCO must abide by basic conditions, such as not reoffending, not leaving Victoria without permission, and abiding by any order of the Secretary of the Department of Justice. Each CCO will also include at least one other ‘optional’ condition chosen according to the purposes of sentencing for that offender and that offence.

CCOs cont. Optional conditions that may be attached to a CCO for all or part of its duration can require the offender to: undertake medical treatment or other rehabilitation remain free of alcohol and/or drugs not enter, remain within or consume alcohol in a licensed premise (hotel, club, restaurant) complete unpaid community work up to a total of 600 hours be supervised, monitored and managed by a corrections worker abstain from contact or association with particular people (e.g. their co-offenders) live (or not live) at a specified address stay away from nominated places or areas abide by a curfew, remaining at a specified place for two to 12 hours each day be monitored and reviewed by the court to ensure compliance with the order pay a bond – a sum of money that may be forfeited wholly or partly if the offender fails to comply with any condition imposed.

CCOs cont. Intensive compliance Justice plans An offender who breaches the conditions of their CCO may be re-sentenced for the original offence and face an additional three months imprisonment or a fine of 30 penalty units. Optional conditions may be imposed for only part of a CCO. The court may fix a part of the total length of the CCO as an ‘intensive compliance period’ during which one or more of the conditions must be completed. Intensive compliance If a court imposes a Community Correction Order of six months or longer, the court can set an intensive compliance period for part of the order. For example, if a Community Correction Order is imposed for one year, an intensive compliance period might be fixed for a lesser period, such as six months. The court will order that one or more of the conditions attached to the Community Correction Order must be completed during this intensive compliance period. Justice plans For intellectually disabled offenders, the court may also attach a ‘justice plan’ as a condition of sentence. Justice plans are prepared by the Department of Human Services, specifying treatment services recommended to reduce the chances of reoffending. 

SUSPENDED SENTENCES Record a conviction and suspend a sentence of imprisonment. Requires the offender to be of good behaviour and not reoffend during the period of the suspension. If the offender complies with the conditions, the term of imprisonment does not have to be served. If the offender fails to meet the conditions, the original sentence and an additional penalty may be imposed. A sentence can be suspended for up to two years in the Magistrates’ Court and three years in the County or Supreme Courts. A sentence can either be wholly or partly suspended. Cannot be used in some serious offences.

SUSPENDED SENTENCES cont. Changes to the law in late 2010 and early 2011 now mean that suspended sentences cannot be given in the Supreme or County Court for 'serious' or 'significant' offences committed after 1 May 2011. Serious and significant offences include: murder and manslaughter rape and other serious sexual offences intentionally causing serious injury and recklessly causing serious injury armed robbery aggravated burglary arson and arson causing death commercial drug trafficking.

IMPRISONMENT Imprisonment removes an offender from the community and denies them their liberty. This is considered to be the most severe sanction. The Sentencing Act recognises that imprisonment should be used as a last resort. Prison is seen as a way to protect the community as well as punish the offender. Some would argue that imprisonment also acts as a deterrent. Programs offered within prison aim to provide for the rehabilitation of offenders. The Sentencing Act 1991 establishes levels of imprisonment.

TYPES OF PRISON SENTENCES Concurrent sentences A concurrent sentence means that where the offender has committed more than one offence, the sentence for each offence can be served at the same time. Cumulative sentences Cumulative sentences are usually applied only for serious offences and if the offender has a long history of offending. A cumulative sentence means that each term of imprisonment is added together to form a total period of imprisonment. Serious offenders A serious offender includes an offender who has repeatedly committed arson, or a serious drug or sexual offence. When sentencing a serious offender the court will consider the protection of the community from the offender as the principal purpose for which the sentence is imposed. To achieve that purpose, the court may impose a longer sentence. Serious sex offenders Serious sex offenders must serve multiple jail terms consecutively, except in exceptional circumstances. A serious sex offender is defined as anyone sentenced to jail for two or more sex offences. Indefinite detentions Indefinite jail sentences can be imposed for offences such as murder, manslaughter or sex offences. The offenders serves their full sentence, after which their sentence is reviewed by a judge. If the judge decides at this stage that the offender is still a danger to the community, the offender will be returned to jail for another three years. After this time has elapsed the case is reviewed once more.