This article was written by Fernanda Dahlstrom - Content Editor - Brisbane
Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.
Imprisonment (Vic)
Imprisonment is the most severe penalty that Victorian courts can impose. A term of imprisonment must be imposed on a person only as a last resort when no lesser sentencing option is appropriate. Victoria has both privately operated and publicly operated prisons, including remand centres, minimum security prisons and maximum security prisons.
How are terms of imprisonment determined?
When a court sentences a person to imprisonment, it determines the length of the term by reference to the maximum and minimum terms legislated for the offence. The court must not impose a sentence that is harsher than is necessary to achieve the sentencing objectives of the case.
The principles which govern sentencing in Victoria are:
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- Punishment, to the extent that is justified;
- Deterrence, meaning the offender and others are deterred from committing similar offences;
- Rehabilitation, meaning the sentence facilitates and encourages the offender to overcome their offending behaviour;
- Community protection;
- Denunciation, meaning the sentence sends a message to the community that the offending is not acceptable.
Mandatory sentencing
Victoria has a mandatory sentencing regime in relation to a number of offences. Courts must impose custodial sentences for certain offences committed after 20 March 2017, including murder, rape, serious drug offences, child sex offences and recklessly or intentionally causing serious injury. For offences committed after 28 October 2018, mandatory sentencing also applies to other offences involving the risk of injury, including aggravated home invasion and aggravated carjacking.
Victorian courts must impose imprisonment in respect of manslaughter, intentionally causing serious injury, child homicide, kidnapping, arson causing death and some serious drug and terrorism offences unless there is a particular reason for not doing so where the offence occurred after 20 March 2017.
Where the offence occurred after 28 October 2018, these rules also apply to offences of car jacking, home invasion, culpable or dangerous driving causing death, armed robbery and offences involving exposing an emergency worker to risk
Life imprisonment
When a term of life imprisonment is imposed, this means the offender remains in prison for the rest of their natural life. However, the court can set a non-parole period which is a date on which the offender can apply for parole. Only the Supreme Court can sentence a person to life imprisonment in Victoria. The court may refuse to set a non-parole period in a case where it is not appropriate. This means the offender will remain in prison until they die.
Suspended sentences
Suspended sentences have now been abolished in Victoria. This means that when a court is sentencing a person for an offence committed after 1 September 2014, a suspended sentence is not an available sentencing order. However, Victorian courts can still impose suspended sentences for offences committed before 1 September 2014, but this power is subject to limitations.
Suspended sentences are terms of imprisonment where the offender is allowed to live in the community provided they do not commit an offence punishable by imprisonment and abide by certain other conditions. If the offender breaches their suspended sentence, they are generally ordered to serve the term of imprisonment that has been suspended unless there are exceptional circumstances.
Indefinite sentences
If the court believes an offender is a serious danger to the community, it can impose a term of imprisonment with no set end date. The offender is then released only if the court is satisfied that they are not any longer a serious danger to the community.
Continuing detention
The Supreme Court can make an order for the continuing detention of a sex offender if it believes that the person poses an unacceptable risk of committing further sexual offences. A continuing detention order must be reviewed at least once a year.
Terms of imprisonment and young offenders
In Victoria, courts can order young offenders aged under 21 to serve their custodial sentence in youth detention rather than in an adult facility. This is known as the dual-track system and is designed to prevent vulnerable young people from entering the adult prison system.
The court can make such an order if it is convinced that the young person has reasonable prospects of rehabilitation or if it believes that the young person is particularly impressionable, immature or likely to be adversely influenced by adult prison.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal.