Sentence Indications in the Higher Courts

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Lachie DavineSophie ParsonsThe article Sentence Indications in the Higher Courts is written by Sophie Parsons and Lachie Davine of Doogue + George Defence Lawyers.

Sophie is a Partner, In-House Counsel and Accredited Criminal Law Specialist at Doogue + George. She is experienced in a broad range of criminal law matters including serious indictable offences heard in the higher courts. Sophie also provides advice and representation at the charge and pre-charge stages of proceedings and assists with disciplinary investigations related to criminal offences.

Lachie is based at our Sunshine and Melbourne offices. He was previously a Judge’s Associate in the County Court of Victoria where he assisted with a broad range of hearings including matters listed in the County Court’s specialist lists including Koori Court, Drug & Alcohol Treatment Court. He appears regularly on behalf of clients at the Sunshine Magistrates’ Court as well as other courts across Melbourne.


Lawyer Getting Sentence Indications in the Higher Courts Before a JudgeIt is possible for a person charged with criminal offences to apply for a sentence indication in the County and Supreme Courts in Victoria.

Sentence indications provide an opportunity for a person charged with criminal offences to be given an indication of the sentence a Judge would likely impose if they pleaded guilty.

The Judge hears the summary of alleged facts and submissions in mitigation, considers relevant material, and then indicates what penalty would be imposed if the person was to plead guilty. The person can then make an informed decision about whether to accept the sentence indication and plead guilty or contest the charges at a trial before judge and jury.

Sentence indications are also available in the Magistrates’ Courts.

Procedure

In the higher courts, an accused person may apply for a sentence indication at any time after the indictment has been filed with the court (an indictment is the court document that sets out the criminal charges).

Defence is required to make a formal application, and both defence and prosecution are subject to strict filing requirements and deadlines. This is designed to streamline the hearings given the complexity often involved in serious indictable matters heard in the higher courts.

Once an indication is given by a Judge, an accused person may either accept or reject the indication. An accused person is usually provided a reasonable amount of time to notify the court of their decision to ensure a considered decision is made.

If an indication is accepted, a plea hearing is listed before the same Judge who provided the sentence indication. This is due to familiarity with the matter and to avoid additional judicial resources being allocated to a matter which has progressed in a substantial way and is nearing finalisation.

If an indication is rejected, the court may make further case management efforts subject to the circumstances of the case. If there are no prospects for resolution after a sentence indication has been given and rejected, it is likely the matter will be set down for trial.

Legislative Framework

Prior to the 2022 legislative amendments, the higher courts were only able to provide an indication regarding whether imprisonment will or will not be imposed, should a plea of guilty be entered by the accused person. However, the legislation was amended in 2022 to enable Judges in higher courts to indicate:

  • a specific maximum total effective sentence; and/or
  • a specific sentence type, such as a Community Correction Order.

The amendments were enacted to assist in reducing the backlog of criminal cases in Victoria caused by the COVID-19 pandemic.

Key Safeguard of the Sentence Indication Scheme

Once a sentence indication is provided, and the accused person enters a plea of guilty to a charge or charges which formed that indication, the court cannot impose a more severe sentence than the sentence type or maximum total effective sentence indicated.1 That is, if a Judge indicates a maximum total effective sentence of 12 months’ imprisonment, this figure cannot increase following the plea hearing at the time of sentence. This is a key safeguard of the sentence indication scheme which provides for greater certainty.

Relevant Case Law: The Power to Impose a Less Severe Sentence Than Previously Indicated

Encouragingly, the legislative framework was supplemented by the 2024 County Court case of DPP v Taylor, in which the court discussed the power to impose a less severe sentence than previously indicated. His Honour Judge Dempsey stated:

[The] indication was accepted, with the caveat that if more material became available between the SIH and the formal plea and sentence, it would be raised with and considered by me.2

The plea was formally listed before me on 16 February 2024 and indeed further information was presented that caused me to revisit the issue of what the appropriate sentence ought to be. The sentence I impose will be lower than that stated in the SIH.3

The effect of this case is that Judges may impose a sentence lower than the sentence indicated in certain circumstances. The principle was also affirmed by the Court of Appeal in DPP v Tran.4

For such an outcome to be possible, the court would require further information to revisit relevant issues raised previously.

Practical Tips

It is helpful to be aware of the following matters when considering whether to apply for a sentence indication in the higher courts.

  1. Courts may refuse to provide a sentence indication where there is a lack of information provided to the court regarding the impact of the offence on the victim.5 This impediment cannot always be quickly remedied – causing delay.
  2. The benefits of the sentence indication scheme may prove useful in weighing up whether to contest charges at trial, as there is no admission of guilt involved thereby keeping all avenues open to accused persons.
  3. The fact that an accused person has applied for and been given a sentence indication cannot be used against them if the matter proceeds to trial.
  4. In order to obtain a second or subsequent sentence indication, circumstances must have changed such that they would be likely to materially affect the first indication given.6
  5. Judges may be inclined to put the issue of remorse aside in a sentence indication hearing as taking it into account may prove to be an artificial exercise.
  6. There are occasions when new or additional material may become available between a sentence indication and plea hearing and amounts to additional matters in mitigation on the plea (that follows the sentence indication). In this scenario, further submissions or a subsequent indication may be required. The kinds of mitigatory matters that may arise include:
    • extra-curial punishment by way of delay and other factors.
    • deterioration in pre-existing mental and physical health issues and/or more recent diagnoses.
    • evidence of a further change in circumstances in the community which may bode well for the accused’s prospects of rehabilitation.
    • evidence of progress in rehabilitative treatment in the community or in custody relating to a substance addiction or mental health issue.

The Benefits of Sentence Indications in the Higher Courts

There are many pragmatic benefits to sentence indications in the higher courts. Sentence indications give people facing criminal charges with a degree of autonomy in the justice system and reduce the shock or surprise they may experience before a sentence is imposed by a Judge. Sentence indications also provide an opportunity for a person to make necessary arrangements before serving a custodial sentence.

Sentence indications are an effective case management tool reducing delay in finalising matters and it is not surprising that sentence indications are increasingly being utilised in the higher courts.

It is important that anyone facing criminal charges in the higher courts is informed to ensure that the most favourable outcomes can be achieved in a timely way.
 
 


[1] Criminal Procedure Act 2009 (Vic) s209(1).
[2] [2024] VCC 172, [68].
[3] Ibid, [69], [186]-[187].
[4] [2024] VSCA 16, [21].
[5] Criminal Procedure and Sentencing Acts Amendment (Victims of Crime) Act 2012, No. 49/2012.
[6] Criminal Procedure Act 2009 s208(3A).

 
 
Date Published: 15 May 2024
 
 

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