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Sentencing & appeals

A person who pleads guilty, or who is found guilty, may wish to call evidence in mitigation of the penalty that is, to minimise the penalty. Maximum penalties are rarely given. There are a broad range of factors which may be taken into account at sentencing. Some of these include: age, good character, previous good record, employment, and the circumstances of the offence.

It is a good idea to obtain references addressed to the magistrate from "respectable people" who can say something about your good character, charitable work, employment prospects and so on. Two references will suffice.

If you have pleaded guilty, you are entitled to a discount from the ordinary sentence, for saving the prosecution and the court the trouble of proving a case against you. You may still appeal a decision and apply for a lighter sentence if you plead not guilty and are convicted.

Jail sentences are rarely given for a first or minor offence. If you receive a short jail sentence (less than 12 months), appeal bail is often given.

Possible penalties

In general the penalties which a court may give for criminal offences are set out in the Sentencing Act 1991 (Vic) as follows:

  • Dismissal of the charge with or without conviction (you essentially receive no penalty for the offence)
  • Fine with or without a conviction (you are required to pay money to the court)
  • Community-based order with or without a conviction (a specified number of hours of community work, possibly with other conditions such as counselling)
  • Detention in a youth training centre or youth residential centre (for persons under 21 years of age, this penalty involves detainment in centres which are specially set up to rehabilitate young offenders)
  • Conviction and a suspended sentence (a conviction is recorded against your name and you are sentenced to a period in jail, but you do not go to jail to serve that sentence unless you re-offend by committing an offence punishable by imprisonment within a prescribed time. A court can partially suspend a sentence, in which case you serve some time in jail and the remainder of the time is suspended)
  • Conviction and intensive correction order (a conviction will be recorded against your name and you will serve your sentence working in a prescribed manner in the community under strict supervision for 12 hours per week community work and appointments for a further three days per week. If you re-offend during the term of this order, you will be sent to serve the remainder of the term of the order in jail)
  • Conviction and a hospital security order (a conviction will be recorded against your name and, where the court has determined that you need treatment for a mental illness, your sentence will be served in a secured hospital while you are treated)
  • Conviction and a combined custody and treatment order (a conviction will be recorded against your name and your sentence will be satisfied by serving some time in jail and some time outside jail doing prescribed work in the community under strict supervision)
  • Conviction and a term of imprisonment (a conviction will be recorded against your name forever and you will be jailed for a period of time)

Appeals

Always appeal a bad court decision. This should be done promptly.

Almost every offence for which a person can be punished is capable of being appealed at least once to a higher court. In some cases you may consider the penalty too small to bother with the time and expense of an appeal. Consider also the desirability of removing a conviction from your police record. All states have provision where an offence can be "proven" but the court does not proceed to a conviction (Commonwealth matters: section 19B Crimes Act 1914 (Cth); section 75, Sentencing Act 1991 (Vic)). If there is to be no penalty and ultimately no conviction, it may be hard to justify the effort of appealing a bad decision.

In Victoria, there is a 28 day time period after the conviction, during which an appeal can be lodged. It is not impossible, but may be difficult, to appeal after this period. Lodge any appeal promptly. Appeals can be against penalty (severity appeals) or against conviction and penalty (all grounds appeals). Just ask the Magistrates' Court registrar for an appeal form. Prisons will also have appeal forms available.

An appeal from a Magistrates' Court in Victoria will be heard afresh before a single judge in the County Court. You should be aware that because these appeals are fresh hearings, there is also the potential for you to receive an increased sentence on appeal. Should you wish to abandon the appeal, you must do so within 30 days of lodging the appeal, or can judge can continue with it regardless of your wishes. An appeal from a jury conviction in the County Court will be heard by three judges in the Full Court of the Supreme Court. The High Court of Australia can review all the decisions of state Supreme Courts, but in criminal cases there is no right to appeal to the High Court. You have to seek leave to appeal, and it must be on a matter of important principle (that is, more important than your liberty!).

If you are acquitted (found not guilty), the police must destroy every copy of your fingerprints they have within one month. Police can, however, apply to the Magistrates' Court to extend the period within which they have to destroy the fingerprints. The police do not have to tell you that they are making such an application (section 464O Crimes Act 1958 (Vic)).