Division 2 of the Sentencing Act 1991 (Vic) deals with custodial orders of which immediate imprisonment is one such order.
It is a well accepted rule of statutory interpretation that the period of imprisonment prescribed for a particular crime reflects the maximum penalty available to the sentencer.
For example, the offence of intentionally cause serious injury (section 16 of the Crimes Act 1958 (Vic), prescribes a maximum penalty of 20 years. The maximum penalty reflects the worst possible example of that type of offence. For common law offences it is harder to find the applicable maximum. However, Section 320 of the Crimes Act 1958 (Vic) sets out various penalties for many common law criminal offences.
A term of imprisonment can be ordered to be served immediately, or may be partially or wholly suspended.
Where a term of imprisonment is to be served immediately several related sentencing concepts come into play. Where a term of imprisonment is 2 years or more the sentence must impose a a non-parole period. A non-parole period is the period of the sentence that must be completed in prison, whereas the parole period refers to a supervised release of the offender into the community. The sentence may impose a non-parole period for sentences of 12 months or more.
What a non-parole period means is a period of time before which the Parole Board can consider releasing you. So if they give you two years imprisonment with a one year non-parole period that would mean that you serve one year in prison before becoming eligible for parole.
Thus the fixing of a non-parole period is significant as it represent the earliest possible release date for a term of immediate imprisonment. In some cases the Court will fix a non-parole date that is earlier than might otherwise be the case as to enhance an offender’s rehabilitation in the community, rather than a custody setting. The Judge or Magistrate can also impose a period of straight imprisonment (i.e no parole), which could conceivably be a term of less than 2 years imprisonment. Where an offender has committed multiple offences a Magistrate or Judge can impose different period of imprisonment to reflect the gravity of offending. The sentence may decide to order all sentences to run together, or may decide to cumulate the sentences (one term of imprisonment ends, and then another one begins until all sentences have been served).
Imprisonment is considered to be a measure of last resort (the parsimony principle). That said, a few offences are considered so serious that despite a defendant’s lack of prior history, the Court must impose a term of immediate imprisonment. The offence of intentionally causing serious injury (section 16 of the Crimes Act 1958 (Vic), carries a maximum of 20 years imprisonment, and usually upon a plea of guilty or a finding of guilty will result in a term of immediate imprisonment to be served.
The maximum period of imprisonment a Magistrate can order is 2 years imprisonment for a single offence, and 5 years for multiple offences, whereas a Judge (operating in the County or Supreme Court) does not have these restrictions. Where the seriousness of the offence in question, is not at the upper range, considerations then flow to a person’s court history, in particular the types of sentencing orders they have had previously, and the extent to which the defendant has complied with those orders.
In most cases, the discretion not to imprison exists, and it remains your defence lawyer’s task to persuasively argue against the imposition of immediate jail. For this reason, and where a term of immediate imprisonment hangs in the balance, it is crucial to instruct an experienced criminal defence lawyer.
To ensure that you receive the lowest possible penalty, contact Doogue + George on 03 9670 5111.
Some cases may still end up getting a term of imprisonment as a criminal sentence. This will depend on a lot of factors and the circumstances surrounding an allegation. Feel free to check the following case studies:
