A number of serious offences are subject to sentencing schemes. A court must take the sentencing schemes into account when sentencing these serious offences.
Sentencing schemes include:
- standard sentences
- Category 1 and 2 offences (mandatory and presumptive sentencing)
- Category A and B serious youth offences
- minimum terms of imprisonment and non-parole periods
- serious offenders.
Our Guide to Sentencing Schemes in Victoria contains further details about the operation of these schemes.
Standard Sentences
Standard sentences are numerical guideposts for courts when sentencing 13 serious offences. The offences are:
- murder
- homicide by firearm
- rape
- culpable driving causing death
- trafficking in a large commercial quantity of a drug of dependence
- eight different sexual offences involving children.
The maximum penalty has long been one guidepost for courts when sentencing. It represents the most serious type of offending for an offence. Introduced in 2018, the standard sentence is intended as another guidepost. It represents the middle of the range of seriousness when just considering the offending and no other factors (such as the offender’s circumstances, prior offending history or guilty plea).
The standard sentence for most of the 13 offences is set at 40% of the maximum penalty. For example, the maximum sentence for rape is 25 years’ imprisonment, making the standard sentence for that offence 10 years’ imprisonment.
Courts are required to consider the standard sentence alongside all other relevant sentencing principles and factors. They must also explain how the sentence imposed relates to the relevant standard sentence.
Category 1 and 2 Offences (Mandatory and Presumptive Sentencing)
In March 2017, Victorian legislation came into effect defining certain serious offences as Category 1 offences or Category 2 offences. When sentencing these offences, courts are required to:
- impose a mandatory sentence of adult or juvenile detention or
- at least make a sentence of detention the presumptive (default) sentence.
The number of Category 1 and 2 offences isn’t fixed. New or existing offences may be also classed as Category 1 or 2 offences.
Category 1 Offences
For Category 1 offences, courts must impose a sentence of imprisonment if the offender was aged 18 or over when they committed the offence. An exception only applies in a narrow set of circumstances.
The following offences are classed as Category 1 offences if they were committed on or after 20 March 2017:
- murder
- causing serious injury intentionally in circumstances of gross violence
- causing serious injury recklessly in circumstances of gross violence
- trafficking in a large commercial quantity of a drug of dependence
- cultivation of a large commercial quantity of a narcotic plant
- rape
- rape by compelling sexual penetration
- incest with child, lineal descendant or step-child (if victim under 18)
- sexual penetration of a child under 12
- persistent sexual abuse of a child under 16.
The following offences are classed as Category 1 offences if they were committed on or after 28 October 2018:
- causing serious injury intentionally to an emergency worker, custodial officer or youth custodial officer
- causing serious injury recklessly to an emergency worker, custodial officer or youth custodial officer
- causing injury intentionally or recklessly to an emergency worker, custodial officer or youth justice custodial worker
- aggravated home invasion
- aggravated carjacking
- intentionally exposing an emergency worker, custodial officer or youth justice custodial worker to risk by driving (where injury caused).
Category 2 Offences
For Category 2 offences, courts must impose a sentence of imprisonment if the offender was aged 18 or over when they committed the offence. This is unless the offender has impaired mental functioning or has assisted the authorities.
The following offences are classed as Category 2 offences if they were committed on or after 20 March 2017:
- manslaughter
- child homicide
- causing serious injury intentionally
- kidnapping
- arson causing death
- trafficking in a commercial quantity of a drug of dependence
- cultivation of a commercial quantity of a narcotic plant
- providing documents or information facilitating terrorist acts.
The following offences are classed as Category 2 offences if they were committed on or after 28 October 2018:
- intentionally exposing an emergency worker, custodial officer or youth justice custodial worker to risk by driving
- armed robbery (where a firearm was used, a victim suffered injury or the offence was committed in company)
- home invasion
- carjacking
- culpable driving causing death
- dangerous driving causing death.
In addition, the new offence of homicide by firearm is classed as a Category 2 offence if it was committed on or after 1 July 2020.
Category A and B Serious Youth Offences
In 2018, Victorian legislation came into effect defining certain serious offences committed by young offenders as Category A and Category B serious youth offences. Under the Sentencing Act 1991 (Vic), a young offender is a person aged under 21 at the time of sentencing.
Category A and B serious youth offences can affect:
- the jurisdiction in which the matter is heard
- the type of sentence that the court can impose.
Category A Serious Youth Offences
Some Category A serious youth offences must be heard in the higher courts:
- murder
- attempted murder
- manslaughter
- child homicide
- homicide by firearm
- arson causing death
- culpable driving causing death.
Other Category A serious youth offences should normally be heard in the higher courts if the offender is aged 16 or over. These offences include:
- causing serious injury intentionally in circumstances of gross violence
- aggravated home invasion
- aggravated carjacking
- certain Victorian and Commonwealth terrorism offences.
This is unless compelling reasons exist. For example, the court may consider that the sentencing options under the Children, Youth and Families Act 2005 (Vic) are adequate for the offending.
The court may consider that a custodial sentence is appropriate when sentencing a young offender (aged under 21) under the Sentencing Act 1991 (Vic) for a Category A serious youth offence. When this happens, the court must not make a youth justice centre order or a youth residential centre order (under dual track) and instead sentence the young person to adult prison. This is unless the court is satisfied that exceptional circumstances exist.
Category B Serious Youth Offences
Category B serious youth offences include:
- causing serious injury recklessly in circumstances of gross violence
- rape
- rape by compelling sexual penetration
- home invasion
- carjacking.
If an offender aged 16 or over commits a Category B serious youth offence, the court must consider whether the case should be heard in the higher courts.
The court may consider that a custodial sentence is appropriate when sentencing a young offender (aged under 21) under the Sentencing Act 1991 (Vic) for a Category B serious youth offence. When this happens, the court can make a youth justice centre order or a youth residential centre order (under dual track).
However, if the young offender has previously been convicted of another Category A or Category B serious youth offence, the court must sentence the young person to adult prison. This is unless exceptional circumstances exist.
Further details about Category A and B serious youth offences are included in our Guide to Sentencing Schemes in Victoria.
Minimum Terms of Imprisonment and Non-Parole Periods
The Victorian Parliament has set out statutory minimum terms of imprisonment and non-parole periods for a number of serious offences. Where a statutory minimum applies, the duration of the sentence or non-parole period must be no shorter than the statutory minimum, unless a special reason exists.
The following table lists the offences that are subject to a minimum term of imprisonment or a minimum non-parole period.
Table: Offences with statutory minimum imprisonment sentences and non-parole periods in Victoria
Offence | Minimum imprisonment sentence | Minimum non-parole period |
---|---|---|
Manslaughter in circumstances of gross violence | – | 10 years |
Manslaughter by single punch or strike | – | 10 years |
Causing serious injury intentionally or recklessly in circumstances of gross violence to an on-duty emergency or custodial worker | – | 5 years |
Causing serious injury intentionally or recklessly in circumstances of gross violence | – | 4 years |
Causing serious injury intentionally to an on-duty emergency or custodial worker | – | 3 years |
Aggravated carjacking | – | 3 years |
Aggravated home invasion | – | 3 years |
Causing serious injury recklessly to an on-duty emergency or custodial worker | – | 2 years |
Intentionally exposing on-duty emergency or custodial worker to risk by driving | – | 2 years |
Contravening a supervision order | 12 months | – |
Causing injury intentionally or recklessly to an on-duty emergency or custodial worker | 6 months | – |
Serious Offenders
Serious offenders are defined in Part 2A of the Sentencing Act 1991 (Vic). They include:
- serious sexual offenders
- serious arson offenders
- serious drug offenders
- serious violent offenders.
When sentencing a serious offender to imprisonment for more than one offence, the court must order each sentence to be served cumulatively (one after the other), unless it directs otherwise.
The courts must regard community protection as the primary purpose of sentencing serious offenders. For this reason, the court may impose a longer prison sentence on a serious offender than is proportionate to the gravity of the offence.
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