In this article, we discuss how sentence indications feature in the criminal justice process in Victoria.
Table of Contents
Background
In August 2005, the Attorney General of Victoria tasked the Sentencing Advisory Council to provide a report as to whether a sentence indication scheme could be implemented into Victoria's criminal justice system.
In their report 'Sentence indication: a report on the pilot scheme' the Sentencing Advisory Council observed that "Late pleas complicate the management of criminal proceedings and can result in over-listing (in anticipation of some cases resolving), which can cause some cases to not proceed on the appointed day.
Late pleas could also have a negative impact on the victim as he or she would be expecting to be called to give evidence right up until the beginning fo the trial."
As a means of rectifying inefficiencies in the management of criminal cases, having regard to the problem of late pleas, a sentence indication scheme was recommended and ultimately implemented into law, by virtue of the Criminal Procedure Act 2008 (Vic).
What Types of Matters Can Attract a Sentence Indication?
The Criminal Procedure Act 2008 (Vic) provides that a sentencing indication may be given for both summary hearings (Magistrates' Court) and trial hearings (County & Supreme Court). Consequently, a sentence indication may be available for indictable or summary offences.
Magistrates' Court (Summary hearings or indictable hearings heard summarily)
Section 60 of the CPA, provides that:
(1) At any time during a proceeding for a summary offence or an indictable offence that may be heard and determined summarily, the Magistrates' Court may indicate that, if the accused pleads guilty to the charge for the offence at that time, the court would be likely to impose on the accused—
(a) a sentence of imprisonment that commences immediately; or
(b) a sentence of a specified type.
(2) Without limiting its discretion under subsection (1), the Magistrates' Court may decide not to give a sentence indication under subsection (1) if the Magistrates' Court considers there is insufficient information before it of the impact of the offence on any victim of the offence.
Often, a Court may decide not to give a sentence indication, unless the victim has been given the opportunity to provide a victim impact statement.
The effect of s sentence indication is detailed under section 61 of the CPA:
(1) If -
(a) the Magistrates' Court gives a sentence indication under section 60; and
(b) the accused pleads guilty to the charge for the offence at the first available opportunity—
the court, when sentencing the accused for the offence, must not impose a more severe type of sentence than the type of sentence indicated.
(2) If -
(a) the Magistrates' Court gives a sentence indication under section 60; and
(b) the accused does not plead guilty to the charge for the offence at the first available opportunity -
the court that hears and determines the charge must be constituted by a different magistrate unless all the parties otherwise agree.
(3) A sentence indication does not bind the Magistrates' Court on any hearing before the court constituted by a different magistrate.
(4) A decision to give or not to give a sentence indication is final and conclusive.
(5) An application for a sentence indication and the determination of the application are not admissible in evidence against the accused in any proceeding.
(6) This section does not affect any right to appeal against a sentence.
County Court or Supreme Court of Victoria
The process for sentence indications as they apply to trial proceedings in the higher courts is provided for under Part 5.6 of the Criminal Procedure Act 2008 (Vic).
Section 207 (of Part 5.6) provides:
At any time after the indictment is filed, the court may indicate that, if the accused pleads guilty to the charge on the indictment at that time or another charge, the court would or would not (as the case may be) be likely to impose on the accused a sentence of imprisonment that commences immediately.
Section 208 provides:
(1) A sentence indication under section 207—
(a) may be given only on the application of the accused; and
(b) may be given only once during the proceeding, unless the prosecutor otherwise consents.
(2) An application under subsection (1)(a) may be made only with the consent of the prosecutor.
(3) If an application under subsection (1)(a) is made in respect of a charge that is not on the indictment, the accused must specify the charge in the application.
(4) The court may refuse to give a sentence indication under section 207.
New proposed changes to sentence indications as they relate to hearings in the County and Supreme Courts.
Sentence Indication Can Be Given More Than Once
As of February 2022, the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill 2021 is being debated in the legislative council of Victoria having passed through the legislative assembly with various amendments being proposed.
Currently, under the Criminal Procedure Act (section 208) where a proceeding is before either the County or Supreme Court, a sentence indication may only be given once during the proceeding unless the prosecutor otherwise consents.
A new proposed subsection (3A), provides that:
"A second or subsequent sentence indication may be given if there has been a change in circumstances since the previous sentence indication that is likely to materially affect the sentence indication previously given"
Acceptance of a sentence indication does have clear benefits but must be carefully considered.
It is commonplace for sentence indications to be offered at the contest mention stage of criminal proceedings in the Magistrates' Court. In fact, most sentence indications are given in the Magistrates' Court.
A sentence indication is often a means of avoiding a protracted and expensive defence of a criminal allegation.
There is however a balance to be struck between the attractiveness of finalising a case on the basis of a favourable sentence indication, and the right of an accused to defend the allegations at a contested hearing, and require the prosecution to prove their guilt beyond a reasonable doubt.
Sometimes a sentence indication may be offered by a Magistrate' despite an accused having a viable defence to the allegations.
Accepting a sentence indication is for all intents and purposes a plea of guilty.
For this reason, informed advice about their prospects of successfully defending the allegation at a contested hearing must be carefully considered before instructions are given to accept a sentence indication however attractive the indication may be.
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