At the end of a sentencing hearing, the judge or the magistrate summarises the case, imposes a sentence, and (especially for cases in the higher courts) outlines the reasons for the sentence. The judge or the magistrate makes his or her sentencing remarks in open court for anyone in the court (including media) to hear.
What Do Sentencing Remarks Contain?
Sentencing remarks often include:
- a summary of the offence, including aggravating and mitigating circumstances
- relevant factors about the offender, including his or her background and prospects for rehabilitation
- reference to the impact of the offence on any victim(s)
- reference to the purpose or purposes that the judge or magistrate intends the sentence to achieve.
When sentencing an offender who has pleaded guilty, the judge or the magistrate will usually include a statement indicating what the sentence would have been had the offender not pleaded guilty. Such statements are required under section 6AAA of the Sentencing Act 1991 (Vic).
Using plain language, judges and magistrates must explain the purpose of any order containing conditions that require the offender to consent or give an undertaking (such as a community correction order). Judges and magistrates must also make clear to the offender what the consequences will be if the offender breaches the order.
What Is the Purpose of Sentencing Remarks?
Judges and magistrates use sentencing remarks to explain the reasons for the sentence to those involved in a case. The remarks help offenders to understand why they have received a particular sentence. The remarks help the community, particularly the victim, to understand the process of sentencing. Giving reasons also enables the defence and prosecution to see how much their arguments have been understood and accepted as the basis for the judge’s or the magistrate’s decision.
Reasons for a sentence help in ascertaining how similar cases might be decided in future. In this way, reasons for a sentence promote consistency in sentencing. Finally, the reasons for a sentence help an appellant court determine if any errors were made in the sentencing process.
Are Sentencing Remarks Made Available to the Public?
Judges in the higher courts give their sentencing remarks verbally at the sentencing hearing. The sentencing remarks are recorded and transcribed. Some judges may make written copies available at the hearing and may distribute these to the parties involved.
Supreme Court sentencing remarks are usually published as judgments on the Supreme Court website and the Australasian Legal Information Institute (AustLII) website.
Significant sentences or sentences of public interest from the County Court are posted on the County Court website. Some County Court sentencing remarks are published on Austlii and the Jade collection of Australian legal judgments and decisions. Sentencing remarks can be obtained directly from the court upon application.
Legislation, suppression orders, or other restrictions may mean that some sentencing remarks cannot be published. Where sentencing remarks are available, a court may remove personal data or identifying information at its discretion.
For some high-profile cases, the higher courts will stream sentencing remarks via their respective websites, so that media and interested members of the community can hear the judge’s sentencing remarks delivered in court.
In the Magistrates’ Court, sentencing remarks are recorded to audio but not transcribed. Recordings are retained for 12 months from the date of the hearing. Digital copies of recordings are available from the Magistrates’ Court for a fee. The Magistrates’ Court will consider all applications for recordings in line with the court’s protocols.
Sentencing remarks in the Children’s Court are given verbally at the time of the sentencing hearing. No transcripts are published but the remarks are recorded to audio, and any party to the proceeding may apply for a copy. However, release of a recording requires the signed authorisation of a judicial officer and payment of a fee.
How Does the Sentencing Advisory Council Use Sentencing Remarks?
The Council uses sentencing remarks prepared in the higher courts to undertake its research. Analysis of sentencing remarks supplements the sentencing data the Council receives from Courts Services Victoria, providing greater insights into current sentencing practices.
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