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:
- the legislature (parliament)
- the judiciary (courts)
- the executive (including the public service).
Parliament makes the legislation that defines what an offence is and the maximum penalty that can be imposed on someone convicted of the offence.
Courts are independent of parliament but they must interpret and apply laws within the framework that parliament sets.
The executive arm of government (including the public service) runs correctional services, such as prisons and youth detention centres, and the adult and youth parole boards. Parole boards decide whether a person should be released on parole and supervise those who are granted parole. Parole boards are independent of parliament and the courts.
Community correctional services supervise offenders who have been sentenced to community correction orders.
Legislation Relating to Sentencing
The most important piece of legislation affecting sentencing in Victoria is the Sentencing Act 1991. It sets out:
- the purposes and principles of sentencing
- the considerations a court must take into account in sentencing
- the hierarchy of sentencing options.
A number of sentencing principles in this Act have been established in common law (case law). These principles guide and limit the type and severity of sentence that can be imposed.
When sentencing a person, judges and magistrates must consider the sentences that have been imposed in other relevant cases.
People in Victoria can be charged and tried under both state and Commonwealth laws. Victorian courts can deal with both state and Commonwealth offences.
Most indictable (serious) offences in Victoria are set out in the Crimes Act 1958. Most summary (less serious) offences are set out in the Summary Offences Act 1966. Some offences are set out in other legislation. For example, the Drugs, Poisons and Controlled Substances Act 1981 sets out drug-related offences and their maximum penalties, and the Road Safety Act 1986 sets out driving offences.
When sentencing an offender under state law, Victorian courts apply the powers they have under the Sentencing Act 1991 (when sentencing an adult), and the Children, Youth and Families Act 2005 (when sentencing a child).
When sentencing an offender for a Commonwealth offence, Victorian courts generally apply the powers they have under the Commonwealth Crimes Act 1914.
Victorian Legislation and Parliamentary Documents
The following list of legislation includes Victorian Acts relating to sentencing matters. Links take you to the relevant act on the Victorian Legislation and Parliamentary Documents website:
- Children, Youth and Families Act 2005
- Confiscation Act 1997
- Corrections Act 1986
- Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
- Crimes Act 1958
- Criminal Procedure Act 2009
- Drugs, Poisons and Controlled Substances Act 1981
- Family Violence Protection Act 2008
- Monetary Units Act 2004
- Road Safety Act 1986
- Sentencing Act 1991
- Serious Sex Offenders Monitoring Act 2005
- Sex Offenders Registration Act 2004
- Summary Offences Act 1966
Information about Commonwealth legislation can be found on the Federal Register of Legislation.
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