Sentencing Act 1991

The Act binds all courts except the Children’s Court (s 4). It directly governs the sentencing of every natural person and body corporate convicted or found guilty of an offence under Victorian law (other than Commonwealth offences). “Offender” is defined broadly in s 3(1) and includes young offenders (under 21 at sentence). Special regimes apply to:

• Serious sexual, violent, drug, and arson offenders (Part 2A);
• Continuing criminal enterprise offenders (Part 2B);
• Mentally ill offenders (Part 5);
• Drug or alcohol dependent offenders (Subdiv 1C of Div 2 of Part 3 and s 18X ff);
• Young offenders (Subdiv 4 of Div 2 of Part 3 and s 32 ff);
• Victims of crime (Div 1C of Part 3, Div 2 of Part 4);
• Bodies corporate (s 55, s 69Y, s 113D);
• Emergency workers, custodial officers, and youth justice custodial workers (ss 10AA, 10AE, 317AC–317AF of the Crimes Act 1958 as incorporated).

Secondary effects extend to the Adult Parole Board, the Secretary to the Department of Justice and Community Safety (administration of CCOs), Victoria Police (breach proceedings), the Director of Public Prosecutions (appeals under s 291 of the Criminal Procedure Act 2009), and emergency service agencies (cost recovery under Div 2B of Part 4).

The Act does not apply to the Children’s Court when exercising criminal jurisdiction (s 4), but the Children, Youth and Families Act 2005 cross-references many of its principles. Commonwealth offences are sentenced under the Crimes Act 1914 (Cth) Part 1B, although Victorian courts apply the Sentencing Act where not inconsistent.

Courts are subject to a hierarchy of duties. The paramount duty is to impose a sentence no more severe than necessary to achieve its purpose (s 5(3)). A sentence of imprisonment may be imposed only if no other sentence can achieve that purpose (s 5(4)). Before imposing a CCO, the court must be satisfied that a fine alone cannot achieve the purpose (s 5(6)); before a fine, that a dismissal or discharge cannot (s 5(7)). Standard sentence offences attract additional reasoning obligations (s 5B).

Offenders have rights to:

• Pre-sentence reports before a CCO, youth justice centre order, or youth residential centre order (s 8A(2));
• Explanation of any order and its consequences (s 95);
• Deduction of pre-sentence custody (ss 18, 35);
• Review or variation of CCOs (s 48M), fines orders (ss 61, 67), and justice plan conditions (s 82);
• Appeal against sentence (via the Criminal Procedure Act 2009).

Victims have rights to:

• Make a victim impact statement (s 8K) containing admissible material only (s 8L(3)–(6));
• Be examined or call witnesses on the statement (ss 8O–8P);
• Read the statement aloud or have it read by the prosecutor (s 8Q), with alternative arrangements for vulnerable victims (s 8R);
• Receive compensation under ss 85B or 86.

The Secretary to the Department of Justice and Community Safety has duties to prepare pre-sentence reports (s 8A(4)), supervise CCOs, give directions under ss 45(1)(f) and 46, and review justice plans (s 81). Data controllers must annotate or remove expunged historical homosexual convictions (s 105K).

The Sentencing Advisory Council must be consulted before guideline judgments (s 6AD) and may provide statistical and research material (Part 9A).

Penalties are structured by the penalty scale (s 109). Level 1 imprisonment is life; level 2 is 25 years; levels descend to level 12 (1 penalty unit). Fines are scaled similarly, with bodies corporate liable to five times the natural-person maximum (s 113D). Mandatory minimum non-parole periods apply to category 1 and 2 offences (ss 5(2G)–(2I), 10–10AE, 10A), with “special reasons” exceptions (s 10A).

Breach of a CCO is an offence (s 83AD) carrying up to 3 months’ imprisonment. The court may vary the order, activate the custodial part, or resentence (s 83AS). The Secretary may direct up to 16 additional hours of unpaid community work or increase curfew hours for less serious non-compliance (ss 83AU, 83AV). Fine default triggers warrants to arrest (s 69), fine default unpaid community work orders (s 69D), or imprisonment (s 69N: one day per penalty unit, maximum 24 months).

Compensation orders (ss 85B, 86) are enforceable as judgment debts (ss 85M, 87). Superannuation orders (Part 3D) may divest employer-financed benefits. Emergency service agencies may recover response costs (Div 2B of Part 4).

Enforcement against bodies corporate uses warrants to seize property (s 69Y). The Magistrates’ Court may not impose more than 5 years’ cumulative imprisonment (s 113B) or a fine exceeding the statutory maximum for the offence when heard summarily (s 112A).

The Act is not a code. It expressly cross-references the Crimes Act 1958 (serious offences, standard sentences, category 1/2 offences), Corrections Act 1986 (administration of CCOs, parole), Mental Health and Wellbeing Act 2022 (Court Secure Treatment Orders), Confiscation Act 1997 (forfeiture to be taken into account under s 5(2A)), Fines Reform Act 2014 (infringement enforcement), and the Criminal Procedure Act 2009 (appeals, course-of-conduct charges).

Guideline judgments under Part 2AA bind sentencing courts but do not limit instinctive synthesis (s 6AG). The standard sentence scheme (ss 5A–5B) requires regard to the legislated standard but does not displace current sentencing practices for non-standard-sentence offences.

Section 5(2BA)–(2BE) prohibit regard to post-sentence supervision or detention orders under the Serious Offenders Act 2018 or former Serious Sex Offenders (Detention and Supervision) Act 2009 when fixing sentence, but permit regard to their conditions if relevant to the sentence structure.

Expungement of historical homosexual convictions (Part 8) affects character evidence, licensing decisions, and official records. The Act prevails over common-law bonds (s 71) but preserves the royal prerogative of mercy (s 106).

Interaction with the Infringements Act 2006 and Fines Reform Act 2014 is preserved by s 69ZG; infringement penalties are enforced under that scheme, not Part 3B.

The most significant recent changes are:

• Mandatory treatment and monitoring orders for certain category 1 offences where impaired mental functioning reduces culpability (s 5(2GA)–(2GC), inserted 2018, amended 2020);
• Expansion of category 1 and 2 offences and removal of the “substantial and compelling circumstances” exception for some (ss 3(1), 5(2G)–(2I), 10A, inserted/amended by Justice Legislation Miscellaneous Amendment Act 2018 and Sentencing Amendment (Emergency Worker Harm) Act 2020);
• Refinements to CCOs including electronic monitoring (s 48LA), confidentiality of personal information (s 48LB), and the bond condition (s 48JA);
• Standard sentence scheme (2017) and its interaction with non-parole periods (s 11A);
• Expungement of historical homosexual convictions (Part 8, 2014);
• Cost recovery for emergency services (Div 2B of Part 4, 2001, expanded 2014);
• Validation and transitional provisions responding to litigation (e.g., Sch 4 validating certain CCOs with bond conditions).

These changes reflect policy responses to high-profile cases (e.g., “coward’s punch” manslaughter), concerns about leniency for emergency-worker assaults, the need for structured therapeutic options for drug-dependent offenders, and the Royal Commission into Institutional Responses to Child Sexual Abuse. The abolition of suspended sentences for serious offences (2013) and home detention (2011) narrowed judicial discretion in pursuit of greater certainty and community safety. The 2020 amendments to ss 5 and 10A tightened the “special reasons” gateway for impaired mental functioning defences in response to perceived overuse.

Key cases illustrate ongoing tensions.

In DPP v Leys (2012) 44 VR 1 the Court of Appeal held that a CCO could not be combined with a term of imprisonment exceeding the two-year limit then in s 44. The legislature responded with the Road Safety and Sentencing Acts Amendment Act 2012, validating pre-existing orders and clarifying the power. The High Court refused special leave, leaving the statutory validation intact.

Hulme v DPP (2010) 21 VR 119 confirmed that pre-sentence custody declarations under s 18 must be made whenever the offender was held in relation to the offence, even if also held for other reasons. The 1997 amendments had already broadened s 18, but the case reinforced the duty.

The standard sentence scheme has generated controversy. In Director of Public Prosecutions v Dalgliesh (2017) 262 CLR 428 the High Court held that the scheme does not require “two-stage” sentencing; instinctive synthesis remains. Subsequent decisions have emphasised that the standard sentence is one factor only and does not displace current sentencing practices for non-standard offences.

Serious offender provisions (Part 2A) have been upheld but narrowly construed. In R v Trowsdale (2011) 31 VR 473 the Court of Appeal confirmed that the “protection of the community” purpose under s 6D is the principal (but not sole) purpose when sentencing serious offenders.

Alcohol exclusion orders (Div 4 of Part 4) introduced in 2014 have been criticised for breadth and enforcement difficulty. Early data showed low breach prosecution rates, leading to calls for better inter-agency information sharing.

The mandatory minimum non-parole periods for emergency-worker offences (s 10AA) have been challenged on constitutional grounds but upheld as within legislative power. Controversies persist about the “special reasons” exception (s 10A), particularly the weight to be given to impaired mental functioning that is not self-induced.

Expungement of historical homosexual convictions (Part 8) has been broadly welcomed but criticised for the administrative burden on applicants and the narrow test in s 105G(1)(b)(ii).

Most practitioners are aware of the standard sentence scheme and mandatory minimums, but several less obvious traps remain.

First, the interaction between s 5(4B) and drug and alcohol treatment orders is frequently overlooked. A court must not impose imprisonment unless satisfied that a drug and alcohol treatment order cannot achieve the sentencing purposes. This creates a statutory hierarchy that can trap the unwary when a short custodial term appears attractive.

Second, the “remaining length” calculation for activation of the custodial part of a CCO under s 18ZE is not intuitive. The court must first deduct pre-sentence custody and any secure custody facility time already served, then reduce further if the total of remaining custody plus time already spent on the treatment and supervision part exceeds the original custodial term. Errors here have led to unlawful activations.

Third, the confidentiality obligation in s 48LB is absolute except for expressly permitted disclosures. Many agencies still inadvertently breach it when sharing monitoring data with non-authorised third parties.

Fourth, the validation schedule (Sch 4) and the transitional provisions in Sch 3 are not merely historical curiosities. They continue to govern the enforcement of pre-2012 CCOs with bond conditions and pre-2013 suspended sentences. Failure to appreciate that an “old” order is still governed by the pre-amendment regime can produce jurisdictional error.

Fifth, the “special reasons” test in s 10A(2)(c)(i) excludes impaired mental functioning caused substantially by self-induced intoxication (s 10A(2A)). The Court of Appeal in R v Tran (2019) 59 VR 110 emphasised that the exclusion is strict; even partial causation by intoxication defeats the exception. Many pleas have foundered on this point.

Sixth, the Sentencing Advisory Council must be consulted before a guideline judgment (s 6AD(1)(a)). Failure to do so renders the guideline invalid. The procedural requirements in Part 2AA are strictly enforced.

Seventh, when a CCO is made in addition to a term of imprisonment (s 44), the CCO commences on release from custody. Any subsequent breach proceeding must carefully calculate the “remaining length” under s 18ZE, taking into account the exact number of days served in prison. Courts have quashed activations that activated more than the lawful remainder.

Eighth, the prohibition on regard to post-sentence supervision orders (s 5(2BD)) is absolute when fixing the head sentence, but the conditions of such an order may be taken into account when fixing the non-parole period if relevant. The distinction is subtle and frequently overlooked.

Ninth, the expungement regime (Part 8) creates a statutory fiction that the conviction “never occurred” for most purposes. However, it does not affect civil proceedings for damages arising out of the same conduct, nor does it create a right to compensation (s 105S). Practitioners advising on licensing or employment must carefully explain the residual effects.

Tenth, the power to reopen a proceeding under s 104B to correct a sentence imposed contrary to law is new (2015). It is not limited to patent errors; any sentence that is “contrary to law” (including one reached by erroneous reasoning that produces an unlawful result) may be corrected. The power is additional to, and does not affect, appeal rights. The High Court has not yet pronounced on its constitutional limits.

These “gotchas” justify the continuing need for specialist sentencing texts and regular continuing legal education. The Act’s layered amendments over three decades have created a statute that is deceptively familiar yet contains numerous hidden reefs.

Compliance for courts, prosecutors, defence counsel, and corrections officers requires a systematic approach.

For judicial officers

• Always begin with the purposes in s 5(1) and the hierarchy of restrictions in ss 5(3)–(7).
• For CCOs, obtain a pre-sentence report (s 8A(2)) unless the sole condition is unpaid community work of ≤300 hours.
• When considering a mandatory minimum non-parole period, explicitly consider whether “special reasons” exist under s 10A and record them (s 10A(4)).
• For standard sentence offences, state the standard sentence, explain how the imposed sentence relates to it, and give reasons (s 5B(4)–(5)).
• When making a CCO with a bond condition, ensure the offender’s financial circumstances support payment (s 48JA(3)).
• Explain every order in language the offender is likely to understand (s 95).

For prosecutors

• When seeking a custodial sentence for a category 1 or 2 offence, address the statutory presumption and the limited exceptions.
• For applications under s 87A or 87AB, file a statement of costs within 12 months and serve it on the offender.
• In identity crime cases, consider seeking a certificate under s 89F on the court’s own motion or on victim application.

For defence counsel

• Obtain and scrutinise pre-sentence and drug and alcohol reports.
• Where impaired mental functioning is relevant, obtain a psychiatric or psychological report addressing the causal link and effect on culpability (s 5(2GA)(b)).
• When a breach of a CCO is alleged, consider whether the Secretary’s directions under ss 83AU or 83AV were lawfully given and whether reasonable excuse exists.
• Advise clients that expungement under Part 8 does not create a right to compensation or erase the underlying conduct for civil purposes.

For corrections officers and the Secretary

• Directions under ss 45(1)(f) and 46 must be lawful, necessary, and given in accordance with the order.
• Electronic monitoring data must be handled in accordance with s 48LB; unauthorised disclosure is a criminal offence.
• When reviewing a justice plan (s 81) or considering variation of a CCO (s 48M), document the reasons and any consultation with the offender.
• For historical homosexual conviction applications, observe strict confidentiality (s 105O) and respond promptly to Secretary requests (s 105E).

Practical compliance checklist for CCOs

1. Ensure the court has received a pre-sentence report addressing suitability and recommended conditions.
2. Confirm the offender consents in writing.
3. Attach at least one condition from Div 4 of Part 3A.
4. Specify the intensive compliance period if the order exceeds 6 months (s 39).
5. Record whether the order commences immediately or on release from custody (s 44(3)).
6. Provide a copy of the order to the offender, the Secretary, and any treatment provider.
7. Monitor compliance; for less serious breaches, consider Secretary directions under ss 83AU–83AV before prosecuting.
8. When a breach proceeding is commenced, ensure the charge-sheet identifies the specific condition allegedly breached and the dates of non-compliance.

Compliance for fine enforcement

1. Before issuing a warrant under s 69, confirm that 28 days have elapsed since the due date and that no instalment or time-to-pay order is being complied with.
2. When making a fine default unpaid community work order, calculate the hours strictly in accordance with s 69O.
3. Serve the offender with a statement in the prescribed form explaining their rights.

Record-keeping and data protection

All official records relating to an expunged conviction must be annotated or rendered unsearchable within the prescribed period after notification by the Secretary (s 105K). Secondary electronic records held by Victoria Police or the Office of Public Prosecutions must be de-identified or removed. Unauthorised disclosure is a criminal offence.

By following these structured steps, practitioners can minimise the risk of jurisdictional error, unlawful activations, or successful appeals. The complexity of the current statute rewards meticulous preparation and regular reference to the text rather than memory.