Sentencing principles have developed through legislation and court decisions (common law). They form the basis of sentencing decisions. These principles include:
- parsimony – the sentence must be no more severe than is necessary to meet the purposes of sentencing
- proportionality – the overall punishment must be proportionate to the gravity of the offending behaviour
- parity – similar sentences should be imposed for similar offences committed by offenders in similar circumstances
- totality – where an offender is to serve more than one sentence, the overall sentence must be just and appropriate in light of the overall offending behaviour.
Section 5(1) of the Sentencing Act 1991 sets out the only purposes of sentencing an adult in Victoria. These purposes are:
- just punishment – to punish the offender to an extent and in a way that is just in all the circumstances
- deterrence – to deter the offender (specific deterrence) or other people (general deterrence) from committing offences of the same or a similar character
- rehabilitation – to establish conditions that the court considers will enable the offender’s rehabilitation
- denunciation – to denounce, condemn, or censure the type of conduct engaged in by the offender
- community protection – to protect the community from the offender
- a combination of two or more of these purposes.
For young offenders, rehabilitation is the principal consideration in sentencing. Section 362(1) of the Children, Youth and Families Act 2005 outlines the considerations that must be taken into account when sentencing a young offender:
- the need to strengthen and preserve the relationship between the child and the child’s family
- the desirability of allowing the child to live at home
- the desirability of allowing the education, training, or employment of the child to continue without interruption or disturbance
- the need to minimise the stigma to the child resulting from a court determination
- the suitability of the sentence to the child
- if appropriate, ensuring the child is aware of the need to take responsibility for any action that is against the law
- if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
Section 5(2) of the Sentencing Act 1991 sets out the factors that must be taken into account when sentencing an adult in Victoria. These factors include:
- the maximum penalty for the offence
- current sentencing practices
- the nature and gravity of the offence
- the offender’s culpability (blameworthiness), that is, the degree to which they should be held responsible for the offence
- whether the crime was motivated by hatred or prejudice
- the impact of the offence on any victim of the offence
- the personal circumstances of any victim of the offence
- any injury, loss, or damage resulting directly from the offence
- whether the offender pleaded guilty to the offence
- the offender’s previous character
- the presence of any aggravating or mitigating factors.
When weighing up the nature and gravity of the offence, the considerations a judge or magistrate might take into account include:
- the offender’s intention
- the consequences of the offence
- the use of weapons
- any breach of trust
- the offender’s history of offending
- the offender’s response to previous court orders
- alcohol or drug addiction.
Aggravating factors increase the seriousness of the offence or the offender's culpability. Mitigating factors reduce the seriousness of the offence or the offender’s culpability.
The law allows courts to reduce a sentence if a person pleads guilty. If the court gives a discount for a plea of guilty, the judge or magistrate must state what the sentence would have been without the guilty plea.
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