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Sentence Indications (Vic)

In a criminal matter, the defence will sometimes ask the court for a sentence indication. This is an estimate of the sentence the accused would receive if they were to plead guilty to the offences and be sentenced based on the material currently before the court. This article deals with sentence indications in Victoria.

Sentence indications in the Magistrates Court

Under section 60 of the Criminal Procedure Act 2009, the Magistrates Court may provide a sentence indication at any time during a criminal proceeding. A sentence indication in the Magistrates Court (summary jurisdiction) can include an indication of: 

  1. Whether the court would be likely to impose an immediate custodial sentence; or 
  2. The type of sentence the court would likely impose. 

Importantly, the court may choose not to give a sentence indication if it believes that there is insufficient information before the court on the impact of the offence on any victim (section 60(2), Criminal Procedure Act 2009). 

When do you get a sentence indication?

A sentence indication is usually sought by the accused’s legal representative where the accused is willing to resolve the matter should the outcome be suitable to them. Quite often, clients find themselves in a position where they either cannot afford to continue defending the charges. They may also simply be exhausted from continued involvement in the court process. This is when they typically instruct their legal representatives to seek a sentence indication from the court. 

A sentence indication involves a magistrate hearing the summary of alleged facts which is presented by the prosecution. The magistrate is also informed of the prior history of the accused. Following this, the magistrate will hear submissions on behalf of the accused. They will then indicate what penalty they are going to impose.

No plea is entered prior to sentence indication

Importantly, a sentence indication is requested and given by a magistrate without a formal plea of guilty being entered. Once the magistrate has provided the sentence indication, it becomes a matter for the accused as to whether they enter a plea of guilty or whether they want to proceed to a contested hearing. If the penalty indicated in the sentence indication is low, the accused may opt for finalizing the matter by pleading guilty. If a high penalty is indicated, they may consider it worthwhile to contest the matter and incur the further costs and delays associated with doing so. 

Sentence indications In the County and Supreme Court

The County Court and Supreme Court also provide an avenue for an accused to seek a sentence indication, however, the requirements for obtaining one are stricter in the higher courts. Under section 208(1)(a) of the Criminal Procedure Act, a sentence indication will only be provided in the County Court or Supreme Court upon an application by the accused, and this application can only be made with the consent of the prosecutor. 

If the presiding judge agrees to provide a sentence indication, they will be provided with an agreed summary of the facts and any other relevant material. The judge then indicates whether they would be likely to impose an immediate custodial sentence if the accused pleads guilty at that point. 

Sentence indications in the County Court and Supreme Court:

  1. Do not bind the court on any hearing before the court constituted by a different judge;
  2. A decision to give or not to give a sentence indication is final and cannot be appealed;
  3. An application for a sentence indication is not admissible in evidence against the accused in any proceeding; and 
  4. Sentence indications do not affect a right to appeal. 

Seek legal advice prior to sentence indication 

Whilst any involvement in the court process may be daunting for an accused, a sentence indication provides an accused with an opportunity to make an informed decision as to whether or not to plead guilty rather than proceeding to a contested hearing. 

It is extremely important that you do not rush into a sentence indication without seeking legal advice and adequate representation. This is because the decision to give or refuse a sentence indication is final and conclusive, meaning there is no right of appeal against that decision. With adequate representation, you are more likely to receive an indication which you are willing to accept, and your representative will be able to portray mitigating factors on your behalf in pursuit of a favourable indication. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Adam Elbob - Senior Associate - Werribee

This article was written by Adam Elbob - Senior Associate - Werribee

Adam Elbob holds a Bachelor of Laws and Bachelor of Arts with a major in criminology and a minor in policy studies. He completed his Practical Legal Training at the College of Law. Adam is admitted to practise law in the Supreme Court of Victoria and the High Court of Australia. Adam brings with him an array of experience in...

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