Sentencing Law in Victoria | Sentencing Council

Sentencing in Victoria is governed by a combination of legislation (laws made by parliament) and common law (laws made by the courts). Three arms of government are involved in sentencing:

parliament (the legislature)
courts (the judiciary)
government departments and agencies (the executive).

Parliament

Parliament makes the legislation that defines what an offence is and the maximum penalty that can be imposed for the offence. Parliament also makes laws that courts must apply when deciding how to sentence someone for an offence.

Indictable offences (serious offences) in Victoria are mostly set out in the Crimes Act 1958 (Vic). Summary offences (less serious offences) are mostly set out in the Summary Offences Act 1966 (Vic). More offences are included in other legislation, such as the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Road Safety Act 1986 (Vic).

The Sentencing Act 1991 (Vic) is the most important piece of legislation affecting sentencing in Victoria. It sets out:

the purposes and principles of sentencing
the factors a court must take into account in deciding a sentence
the sentencing options for adults.

The legislation used to sentence adults can depend on whether a person commits a Victorian or Commonwealth (federal) crime. Victorian courts can sentence both Victorian and Commonwealth offences:

Victorian courts sentence Victorian offences using the powers under the Sentencing Act 1991 (Vic)
Victorian courts generally sentence Commonwealth offences using the powers under the Crimes Act 1914 (Cth).

In Victoria, children are sentenced under the Children, Youth and Families Act 2005 (Vic). This Act is soon to be replaced by the new Youth Justice Act 2024 (Vic).

Legislation about Sentencing

Victorian Acts relating to sentencing include:

Victorian legislation is available on the Victorian Legislation website. Commonwealth legislation is available on the Federal Register of Legislation.

Courts

Courts interpret and apply the laws that parliament makes.

Adult Courts

In Victoria, adults are sentenced in one of three courts: Magistrates’ Court, County Court and Supreme Court.

The Magistrates’ Court deals with summary offences, such as unlicensed driving and drug possession. The Magistrates’ Court also deals with some indictable offences, such as burglary and intentionally causing injury. Over 95% of sentencing in Victoria occurs in the Magistrates’ Court.

The County Court deals with most indictable offences, such as culpable driving causing death, rape and armed robbery. The Supreme Court deals with the most serious offences, such as murder and manslaughter. Together, the County Court and the Supreme Court are known as the higher courts. About 2% of sentencing in Victoria occurs in the higher courts.

Children’s Court

Children and young people are usually sentenced in the Children’s Court. For certain serious crimes, children and young people will be sentenced in adult courts. About 2% of sentencing in Victoria occurs in the Children’s Court.

Government Departments and Agencies

Government departments and agencies are responsible for people who are under sentence. This arm of government includes the agencies that run correctional services, such as prisons and youth detention centres. Correctional services also supervise offenders who have been sentenced to community correction orders.

The adult and youth parole boards are also part of the executive arm of government. Parole boards decide whether a person should be released on parole and supervise people who are granted parole.

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