Specified Sentence Discount
One of the many factors a judicial officer (judge or magistrate) must consider when sentencing is whether the offender pleads guilty, or indicates that they intend to plead guilty, to the offence, and when this occurs in the proceedings.
A person charged with an offence may plead guilty at any point in the proceedings. The courts usually treat an early plea of guilty as a mitigating factor in sentencing, reducing the severity of the sentence.
Amendments to the Sentencing Act 1991 from March 2008 require Victorian courts, when sentencing an offender who pleads guilty, to provide a specified sentence discount.
The specified sentence discount is when a judicial officer:
- imposes a less severe sentence because the offender has pleaded guilty to a charge
- states what sentence would have been imposed had the offender not pleaded guilty.
The specified sentence discount scheme applies to the following sentences in Victorian courts:
- adult jurisdiction (the higher courts and Magistrates’ Court): all custodial orders, fines of 10 penalty units or more, aggregate fines of 20 penalty units or more
- Children’s Court: youth attendance order, youth residential centre order, youth justice centre order.
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 it would have imposed for each individual charge.
In the Children’s Court, however, the magistrate must specify the sentence that would have been imposed for each individual charge.
The specified sentence scheme is provided for in section 6AAA of the Sentencing Act 1991 and section 362A of the Children, Youth and Families Act 2005.
Sentence indications allow offenders to obtain a broad indication of the sentence that they would likely face if they pleaded guilty to the offences. As with specified sentence discounts, sentence indication schemes have been available in Victorian Courts since 2008.
There are differences in the schemes that operate in the higher courts (County and Supreme Courts) and the Magistrates’ Court.
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 prosecutor consents. The higher courts sentence indication scheme is provided for in Part 5.6 of the Criminal Procedure Act 2009.
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.
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 and 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.
The sentence indication and specified sentence schemes were both introduced following the Council’s 2007 advice in its Sentence Indication and Specified Sentence Discounts: Final Report. Originally a pilot, the higher courts sentence indication scheme was continued permanently on the Council’s 2010 advice in its Sentence Indication: A Report on the Pilot Scheme.
The Council has examined the rate of guilty pleas and the use of the specified sentence discount scheme in the higher courts.
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