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Chapter 11: Sentencing

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Much of the material in this chapter is also relevant to other Victorian courts.

This chapter commences with a discussion of sentencing principles, including the distinction between the sentencing of persons under the Sentencing Act 1991 and the sentencing of children under the Children, Youth and Families Act 2005 [‘CYFA’]. Referencing case law it discusses the general sentencing principles of proportionality and totality. The sentencing orders and sentencing hierarchy in the CYFA are detailed as are ancillary orders for restitution, compensation, costs, disqualification & forfeiture. The four community supervisory orders available under the CYFA are compared. Orders for a forensic procedure upon a finding of guilt are reviewed as are the sentencing of children for Commonwealth offences and the sentencing powers of the Supreme Court and the County Court. Some case law on the requirement to afford procedural fairness in a sentencing hearing is discussed as is the relevance to sentencing of the United Nations Convention on the Rights of the Child.

The chapter continues with a discussion of a large number of cases on various aspects of sentencing, including parity, double jeopardy, the effect of a guilty plea, the Verdins’ principles, the effect of a deprived/disadvantaged background, ill health, age or delay and the relevance of Aboriginality, addiction or hardship on the offender’s family. A large number of examples of sentencing for various offences follows, including manslaughter, murder, culpable driving, causing serious injury, drug trafficking, armed robbery, aggravated home invasion or carjacking, aggravated burglary, rape, property damage, child homicide and terrorism.

There follows a discussion of some mechanics of sentencing, the material admissible in sentencing hearings under the CYFA, deferral of sentencing, group conferences and breaches of sentencing orders made under the CYFA. Victorian, Australian and world youth sentencing statistics are detailed and compared. Parole, remissions and temporary leave from detention are discussed as are transfers between custodial institutions. The MAPPS program is illustrated by relevant case law. The chapter concludes with some examples of sentencing of adults for child abuse, sentencing for child sexual abuse committed as a child, sentencing of adults for offences against protective workers and discussion of the relevance of the prospect of deportation and the ‘standard sentence’ scheme under the Sentencing Act 1991.

Download Chapter 11 here

Author: former Magistrate Peter Power
Place of Publication: Melbourne, Australia
Publisher: Children's Court of Victoria
Date of Publication: 21 February 2023 
Number of Pages: 356 
Copyright: State of Victoria, 2021