One of the many factors a judge or magistrate must consider when sentencing is a guilty plea. This includes whether the offender has pleaded guilty to the offence, or indicated that they intended to plead guilty, and at what stage of the proceedings. The earlier in the proceedings the offender pleads guilty, the greater the reduction they will receive in their sentence.
When sentencing an offender who pleads guilty, Victorian courts are almost always required to state what sentence they would have imposed if the offender had not pleaded guilty. This is provided for in section 6AAA of the Sentencing Act 1991 (Vic) and section 362A of the Children, Youth and Families Act 2005 (Vic).
Courts in the adult jurisdiction have to do this for all custodial sentences, fines of 10 penalty units or more and aggregate fines of 20 penalty units or more. The Children’s Court also has to do this for all youth justice centre orders or youth residential centre orders, and for youth attendance orders.
For adult offenders, the court only needs to indicate the sentence that it would have imposed (but for the guilty plea) in relation to the overall sentence and any non-parole period. If the offender is sentenced for more than one offence at the same time, the court does not need to indicate the sentence that would have been imposed for each individual charge.
In the Children’s Court, the magistrate must specify the sentence that would have been imposed for each individual charge.
We examined the effects of guilty pleas on sentencing outcomes in Victoria in our Guilty Pleas in the Higher Courts: Rates, Timing, and Discounts (2015).
Sentence indications allow offenders to obtain a broad indication of the sentence that they would likely face if they pleaded guilty to the offences.
There are differences in the sentence indication schemes that operate in the higher courts (County and Supreme Courts) and the Magistrates’ Court.
Sentence Indication in the Higher Courts
In the higher courts, an accused can apply for a sentence indication at any point in the proceedings after filing of an indictment (written charges). The accused can only apply for a sentence indication if the prosecution consents.
The higher courts sentence indication scheme is provided for in Part 5.6 of the Criminal Procedure Act 2009 (Vic).
If the judge agrees to give a sentence indication, they are given an agreed summary of the facts and any other relevant material. The judge then indicates whether they would be likely to impose an immediate custodial sentence if the accused pleads guilty at that point.
Sentence Indication in the Magistrates’ Court
The Magistrates’ Court sentence indication scheme is broader than the scheme in the higher courts.
In the Magistrates’ Court, a sentence indication may be given at any time during proceedings. This includes an indication of:
- whether or not the court would be likely to impose an immediate sentence of imprisonment
- the type of sentence that the court would be likely to impose (for example, a community correction order).
The Magistrates’ Court sentence indication scheme is provided for in Division 3 of Part 3.3 of the Criminal Procedure Act 2009 (Vic).
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