Sentencing is a complicated area of law in Victoria. There are a large variety of different factors which a Court must take into account when imposing a sentence, including but not limited to the nature and gravity of the offence itself, the previous character of the person being sentenced, and the maximum penalty for that offence.
In February 2018 the sentencing laws in Victoria changed, to add another factor which a Court must consider in passing sentence, being the “standard sentence” for that offence if there is one.
Certain legislation which either creates an offence, or specifies a maximum penalty for an offence, may specify a particular period as the standard sentence for that offence. For example, section 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) sets out the punishment for trafficking in a large commercial quantity of a drug of dependence, and section 71(2) of that Act provides that the standard sentence for that offence is 16 years imprisonment.
A “standard sentence” period is a sentence which, when a Court takes into account only the objective factors affecting the relative seriousness of the offence that is before it, is in the middle of the range of seriousness. So, if an offender came before the Court to be sentenced for trafficking a large commercial quantity of a drug of dependence, and the Court decided, looking only at objective factors (for example the exact amount of the “large commercial quantity” that was trafficked), that this particular case was in the middle of the range of seriousness, the Court would have bear in mind that 16 years’ imprisonment is the period that Parliament intended offenders be sentenced to for that offence when they decide what penalty to impose.
This does not mean that a Court must consider only that period of imprisonment when deciding what penalty to impose. The Court must also take into account all other relevant considerations in the Sentencing Act before deciding on the penalty. Some of those factors might mitigate (or reduce) the penalty that is ultimately imposed, and some of those factors might aggravate (or increase) that penalty. This can have serious implications for an offender, and it is therefore crucial that an individual who has been charged with an offence seek experienced legal representation to ensure the best possible outcome.
There are 12 different offences which carry a standard sentence in Victoria, and will fall under these new sentencing laws. Those offences and the associated standard sentence for each of them are:
If the person murdered was a custodial officer or emergency worker on duty, and the accused at the time of the act causing death knew that or was reckless as to that fact – 30 years. In any other case – 25 years.
Trafficking in a large commercial quantity of a drug of dependence
16 years, if the offence is not made out by an attempt to traffic in the drug of dependence.
Sexual penetration of a child under the age of 12
Persistent sexual abuse of a child under the age of 16
Sexual penetration by an accused of the accused person’s child or lineal descendant
10 years, if at the time of the offence the accused person’s child or lineal descendant is under the age of 18
Sexual penetration of a step-child
10 years, if at the time of the offence the step-child is under the age of 18
Culpable driving causing death
Sexual penetration of a child under the age of 16
Sexual assault of a child under the age of 16
Sexual activity in the presence of a child under the age of 16
Causing a child under the age of 16 to be present during sexual activity
If you have been charged with a criminal offence and are concerned about the outcome it may have upon you, contact Paul Vale Criminal Law now on (03) 9870 1959.