Sentencing Purposes
The Sentencing Act 1991 (Vic) defines the five purposes of sentencing an adult. Victorian courts can only impose a sentence for one of those five purposes, or a combination of two or more of them.
Section 5(1) of the Sentencing Act 1991 (Vic) sets out the five purposes, which are:
- just punishment – to punish the offender to an extent and in a way that is appropriate in all the circumstances
- deterrence – to deter the offender (specific deterrence) or other people (general deterrence) from committing similar offences
- rehabilitation – to try and rehabilitate the offender, that is, address the reasons why they committed the crime and reduce the risk of them reoffending
- denunciation – to denounce, condemn or censure the offending
- community protection – to protect the community from the offender.
For children, rehabilitation is the principal consideration. Other purposes, like general deterrence, are not considered appropriate purposes for sentencing children.
Section 362(1) of the Children, Youth and Families Act 2005 (Vic) outlines the considerations that must be taken into account when sentencing a child:
- 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 promotion of the child’s access to education, training or employment with minimal interruption or disturbance
- the need to minimise the stigma to the child resulting from a court decision
- the suitability of the sentence to the child
- if appropriate, the need to ensure the child is aware of their 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.
Sentencing Principles
Courts must follow a number of sentencing principles. These principles have developed through legislation and common law (court decisions). They 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.
Sentencing Factors
The Sentencing Act includes considerations that courts (magistrates and judges) must take into account when sentencing someone for an offence. These considerations are often called sentencing factors.
These factors are listed in section 5(2) of the Sentencing Act and can include:
- the maximum penalty for the offence
- the standard sentence, if any, for the offence
- current sentencing practices
- the nature and gravity of the offence
- the offender’s culpability and degree of responsibility 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
- any aggravating or mitigating factors.
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