This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Penalties and Sentencing
If you plead guilty or are found guilty, the magistrate or judge will consider the facts presented by the police and the submissions made by your lawyer when deciding what penalty to impose.
The court can choose from a range of penalties, depending on the seriousness of the offence. The maximum penalty that you can get is set out in laws made by parliament. In some cases, the court also has discretion whether or not a conviction will be recorded against you. In other cases the court must record a conviction.
Imprisonment (Jail – Full Time)
This is the most serious penalty a court can impose and is considered a last resort. Normally a period of imprisonment will be expressed as time to serve plus a further time on supervised parole. The Court must have considered alternatives and be satisfied that no other penalty is appropriate. A Magistrate can impose a sentence up to five years depending on the offences committed. County Court and Supreme Court Judges are limited by the statutory maximum (what the law says the maximum penalty is). In many cases, time that you have spent in jail before you are sentenced will be counted as already served.
The Court also has the power to order a term of gaol and a Community Correction Order upon being released from gaol.
Suspended Sentence
This is a jail sentence that is ‘suspended’ for up to two years. You do not go to jail unless you commit another offence during the period set by the court. Suspended sentences may be suspended in whole or in part. They only are available for jail sentences of up to two years.
Note: Suspended sentences have been abolished as a penalty in Victoria. They are not available in any court for offences committed on or after 1 September 2014. Please ask one of our lawyers for more information.
Community Corrections Orders
Community Corrections Orders (CCOs) allow you to serve your penalty in the community. They can have one or more conditions attached, such as: unpaid work, supervision, treatment and rehabilitation, bans on going to certain places and/or attending court for the magistrate to check on your progress. If you do not comply with the conditions of the order you may be charged with contravening a CCO, an offence that carries a maximum penalty of three months jail.
The court may record a conviction against you if it imposes a CCO.
Penalty Units
Maximum fines for individual offences are described in ‘Penalty Units’. Currently, one penalty unit is about $161.19.
To convert the amount in penalty units into a dollar amount, simply multiply $161.19 by the number of penalty units. For example, if the maximum penalty is 5 penalty units: 5 x $161.19 = $805.95
Therefore, a fine of 5 penalty units would amount to a fine of $805.95.
The court may record a conviction against you if it imposes a fine.
Adjourned Undertaking
An adjourned undertaking is an order of the court that requires you to be of good behavior (not commit any offences) for a certain amount of time. The court may also impose conditions that you will have to obey during this time such as: seeing a counselor, completing a course and/or making a charitable donation. The maximum duration of an adjourned undertaking is five years.
The court may record a conviction against you if it imposes an adjourned undertaking.
If you comply with the conditions of the undertaking then you are not required to return to court. The court will discharge your case without a further hearing.
Discharge
A discharge is where the court, after finding you guilty, does not impose any penalty. However, a conviction is recorded against you.
Dismissal
A dismissal is where the court, after finding you guilty, does not impose any penalty and does not record a conviction against you.
Diversion: avoid a criminal record
Diversion programs are a way to deal with your case out of the court system and for you to avoid having a criminal record altogether. They are usually only available to people who have no prior criminal history and where the offence is relatively minor. The prosecution must agree that your case is suitable for diversion.
Other Penalties and Orders
Compensation and Restitution Orders
Compensation and restitution are orders of the court that you pay money to someone who has suffered physical, emotional or financial injury or loss because of your offence.
Forfeiture Orders
Forfeiture is an order of the court that an item found in your possession by police be disposed of or destroyed by the State. These orders are commonly made in relation to things like drugs, firearms and stolen property.
Drug Treatment Orders
These are only available if your case is heard in the Drug Court, which is located at the Dandenong Magistrates’ Court. Cases heard in the Drug Court must meet pre-conditions, including that you plead guilty, that you are dependent on drugs or alcohol and this dependency contributed to the offence, and the court is satisfied a sentence of imprisonment would have otherwise been appropriate. You must also live in an area serviced by the Drug Court.
Forensic Procedure Applications
Upon being found guilty of an offence, the police may make an application to the court for a forensic procedure application. The police will normally make this application upon charging a person with an offence, but may also make an application up to 6 months after the completion of the matter in court.
Typically the application will request that you provide a sample of DNA by way of buccal swab to the police. The police will then put the DNA on a database as a resource for criminal law investigations.
In determining whether the application should be granted, the court must consider:
- the seriousness of the circumstances of the offence; and,
- that the making of the order is justified.
The court may also require evidence to be given on oath or affirmation.