There are a number of things you can do to help improve your sentencing options. The best place to start is to speak with an experienced lawyer at the earliest opportunity.
The sentencing options available to a Magistrate or Judge differ depending on which court your matter is heard in, how old you are, and the maximum and minimum penalties for the offence.
The sentence that you ultimately receive will be impacted by a number of factors including the nature of the offending, your personal circumstances, and rehabilitative prospects.
Set out below are the main sentencing options available to the courts. Not every sentence option will be available or realistic in a particular set of circumstances. If you are facing criminal charges and would like to learn more about the likely outcome of your matter the best place to start is to speak to an experienced lawyer.
To speak with one of our lawyers please call us on 1300 616 183.
Conviction and non-conviction
If you plead or are found guilty of a criminal offence you will be sentenced. Your sentecne will be either with or without conviction. However, a without conviction outcome is only available with the less severe sentencing options. This is briefly explained below. Our lawyers will be happy to explain further via telephone or in person.
First time offenders and persons charged with offences on the lower end of scale are eligible for non-conviction sentences. A sentence without conviction means that if the person is later asked (e.g. by an employer or on a visa application) if they have ever been convicted of an offence, they may answer ‘no’.
A police record check can still show that the offender was found guilty of the particular offence but will show that the finding was made without conviction.
Persons charged with more serious offences or with prior criminal history will usually be sentenced with conviction.
Diversion is a process by which the court will discharge the charge(s) upon you entering into and completing an agreed diversion plan.
Successfully completing a diversion plan will allow you to avoid having a finding of guilt recorded against your name. This means that you will not have a criminal record and the matter will not show up on a police check.
How do you get a diversion?
First time offenders who have been charged with low-end offences are eligible for diversion. Although the legislation does not state that diversion is only for first time offenders, it is rare for an offender with a prior criminal history to be granted diversion.
To be eligible for diversion:
- You must have a case before the Magistrates’ Court. It must be a summary offence or an indictable offence that can be heard in the Magistrates’ Court.
- You must take full responsibility for the offending and acknowledge the accuracy of the summary of offending. The summary can be negotiated with police if you do not initially agree with aspects of it.
- The offence with which you are charged must not carry a minimum or fixed sentence
- The police officer who has charged you must recommend or agree to recommend diversion. The recommendation will be authorized by a prosecutor or sergeant. This does not mean, however, that your application for diversion will automatically be approved by a Magistrate.
What is the diversion process?
- The police officer who has charged you must agree to recommend diversion. They will complete a Diversion Notice, which is filed with the Prosecution and the Court.
- Any conditions of diversion that the informant deems appropriate will be stipulated in the Diversion Notice. Common conditions include:
- writing a letter of apology to the victim;
- writing a letter of gratitude to the police;
- making a donation to charity; and
- completing an appropriate course or program, e.g. a defensive driving course or anger management.
- Once the Diversion Notice is filed with the court your file will be allocated to the Diversion Coordinator. The Diversion Coordinator will contact the victim (if relevant) and determine their attitude toward the offending and diversion application.
- You will need to attend an appointment at court with the Diversion Coordinator. Prior to the appointment you will be given a form to complete. The form will detail your personal history and confirms your understanding of the process.
- The Diversion Coordinator will discuss the charges and surrounding circumstances. You will have an opportunity to provide documents that you wish to be considered in your favour, such as character reference letters and psychological reports. You may have your lawyer present.
- Following your appointment the Diversion Coordinator will discuss your file with the Magistrate. This is not done in open court and neither you nor your lawyer will be present. The Magistrate will then decide whether you should be granted diversion The Diversion Coordinator will advise you of the Magistrate’s decision. In some cases, the Magistrate may want to hear from you or your lawyer in court before making a decision.
- If diversion is granted you will go into court where the Magistrate will formally approve and explain your diversion plan. If you comply with the conditions of your diversion plan your charge(s) will be discharged on a later date.
- If the Magistrate refuses to grant you diversion your matter will be returned to the mention court for hearing. If diversion is sought but refused you are entitled to plead not guilty if you want.
Diversion is increasingly difficult to obtain in Victoria. If you think you are eligible for diversion you should seek immediate legal advice to increase your chance of making a successful application.
Proven and dismissed
If a Magistrate is of the view that the offending is very minor or trivial they may find the charge/s proven but dismiss the case without any further penalty.
This type of sentence will still result in a criminal record, however any police check will show that apart from the finding of guilt, there was no further penalty.
It used to be the case that VicRoads would view fines dealt with in this manner as being withdrawn and would not impose the applicable demerit points. Unfortunately this is no longer the case. Currently, a speeding fine that is found proven and dismissed will still incur demerit points.
Adjourned Undertaking – Good Behaviour Bond
An adjourned undertaking is a sentencing option in which the Judge or Magistrate will release the offender upon a promise to comply with certain conditions within a specified period. The Court can impose whatever conditions it considers necessary, though the usual conditions are to
- be of good behaviour for a specified period;
- pay a sum of money into the Court Fund or charitable organisation, and
- continue a particular treatment regime, such as psychological counselling, for the duration of the undertaking.
The undertaking must be agreed to and signed in court.
An adjourned undertaking can be made for up to 5 years and can imposed with or without conviction.
Failure to comply with the conditions of an undertaking is a breach of the Court’s order and may result in the offender being re-sentenced for the original offending.
Many offences are punishable by way of a financial penalty.
A fine can be imposed with or without conviction.
The severity of the fine imposed will depend on a number of factors including any legislative limits, the nature and circumstances of the offending, and the accused’s financial circumstances.
If you are unable to pay the fine immediately you should ask to Magistrate to defer the due date. This is called requesting a stay. Most Magistrates’ will grant an initial stay of three months.
A fine can also be converted into unpaid community work or paid by way of monthly installments.
Community Corrections Order
If the court considers the offending too serious to be dealt with by a financial penalty it may consider imposing a Community Corrections Order [CCO].
A CCO is an order of the court that requires an accused comply with specified conditions under the supervision of a Case Manager employed by the Office of Corrections.
There are three main conditions of a CCO:
- Treatment and rehabilitation – engagement with medical practitioners, counselors, or education programs;
- Supervision – regular contact with a Case Manager employed by the Office of Corrections; and
- Unpaid community work.
However, the Court has a broad discretion as to what conditions to impose as part of a CCO and will be guided by the recommendations of the Office of Corrections. The conditions imposed will be tailored to address the underlying cause of the offender’s behaviour and promote rehabilitation.
A CCO can be imposed with or without conviction and can operate independently or following a period of imprisonment.
Written consent of the Office of Corrections is required in order to leave Victoria whilst subject to a CCO.
A suspended sentence is a term of imprisonment that does not need to be served unless the offender is found guilty of another offence (punishable by a term of imprisonment) within the operational period of the suspended sentence. A minor offence that is punishable only by a fine will not beach a suspended sentence.
For example. An offender is sentenced to three months imprisonment, wholly suspended for 12 months. The offender will not go to gaol unless he or she commits another offence within the 12 months and that offence is punishable by a term of imprisonment.
A suspended sentence must be imposed with conviction.
Suspended sentences are not available for offences committed on or after 1 September 2014.
Breach of a suspended sentence is punishable by up to three months imprisonment.
A term of imprisonment is the most serious penalty that can be ordered by the court.
The maximum term of imprisonment that can be ordered in the Magistrates’ Court is two years for a single offence or 5 years for multiple offences.
If the Court imposes a term of imprisonment of more than 12 months it may fix a non-parole period. If the Court imposes a term of imprisonment of 2 years or more it will usually fix a non-parole period.
Young people aged under 21 who are sentenced to a term of imprisonment may apply to serve their term in a Youth Justice Centre. In order to allow an offender to serve their term in a Youth Justice Centre the Court must also believe that there are reasonable prospects for rehabilitation and that the offender is unsuitable for detention in an adult prison. The Court will also consider factors such as the nature of the offence, and the offender’s age, character and prior criminal history.