Types of Sanctions (VCE SSCE Legal Studies): Revision Notes
Types of sanctions
When an offender pleads guilty or is found guilty of a crime, it is the court's role to impose a sanction (penalty). In Victoria, approximately 90% of sentencing occurs in the Magistrates' Court, as most crimes committed are minor offences.
Understanding sanctions in Victoria
When legislation creates a criminal offence, it sets out the maximum penalty that can be imposed for that crime. For example, threatening to kill another person carries a maximum penalty of 10 years' imprisonment under the Crimes Act 1958 (Vic).
Sanctions are divided into two broad categories:
- Custodial sentences: The offender is removed from society and placed in an institution (e.g. prison)
- Non-custodial sentences: The offender serves the sentence in the community
The Sentencing Act 1991 (Vic) establishes a hierarchy of sentencing options, with imprisonment being the most serious sanction and a sanction of last resort.
The sentencing hierarchy
Victoria's sentencing hierarchy ranges from most to least severe:
The sentencing hierarchy provides courts with a range of options to match the severity of the sanction to the seriousness of the offence and the circumstances of the offender. This flexibility allows for more appropriate and individualized sentencing outcomes.
Most severe:
- Imprisonment with conviction
- Court secure treatment order with conviction
- Drug and alcohol treatment order with conviction
- Youth justice centre order with conviction (for offenders aged 15+)
- Youth residential centre order with conviction (for offenders under 15)
- Community correction order with or without conviction
- Fine with or without conviction
Least severe:
- Adjournment with or without conviction
- Discharge with conviction
- Dismissal without conviction
This chapter focuses on three key sanctions: fines, community correction orders, and imprisonment.
Fines
A fine is a monetary penalty paid by the offender to the state of Victoria (not to the victim). Fines are a common sanction for less serious offences.
Key features of fines
Fines are expressed in penalty units rather than specific dollar amounts. This system allows the government to adjust the monetary value of fines across all offences and statutes annually without changing individual laws. Fines can range from one penalty unit to 3000 penalty units.
The penalty unit system is a flexible mechanism that ensures fines maintain their financial impact over time. As the value of money changes due to inflation, the government can update the dollar value of a penalty unit without needing to amend hundreds of individual laws.
When can a fine be imposed?
A fine can be imposed either as a standalone sanction or in addition to another sentence. When deciding whether to impose a fine and determining the amount, courts consider:
- The financial circumstances of the offender
- Any loss, destruction, or damage to property resulting from the offence
- The value of any benefit the offender received from committing the offence
- Any forfeiture, compensation, or restitution orders already imposed
Conditions of fines
Courts have flexibility in how fines are paid:
- The court can order payment by instalments
- If the offender defaults on payments, the court may:
- Issue an arrest warrant
- Order the offender to perform community work
- Allow additional time to pay, depending on circumstances
Fines are commonly imposed on companies and businesses, particularly because corporate entities cannot personally serve prison time.
Case Study: Crane Failure Results in a Fine
A company imported and erected a new crane at a Melbourne development site in Box Hill. In September 2018, the crane failed while carrying a heavy load, causing it to go into freefall. The failure resulted from a missing or improperly fitted 'split pin' that should have prevented a rope from unwinding.
The incident caused:
- The death of one worker
- Serious injury to another worker (who became paraplegic)
- Injuries to a third worker
The outcome: The company was found guilty by a jury of failing to ensure, so far as reasonably practicable, that equipment supplied was safe and without health risks. The maximum penalty was 9000 penalty units (approximately $1.5 million).
The County Court judge noted that the company had taken steps after the incident to address the risk and now conducts thorough inspections. This demonstrated a reduced need for specific deterrence. However, recognizing the significance of the health and safety breach, the judge imposed a fine of $400,000 with conviction.
Purposes of fines
Fines serve several sentencing purposes:
- Punishment: The offender must pay money as a consequence of their actions
- Specific deterrence: The financial burden aims to deter the offender from reoffending
- General deterrence: Fines deter the wider community from committing similar crimes
- Denunciation: If sufficiently high, a fine demonstrates the court's disapproval of the crime
Limitations: Fines are less likely to achieve rehabilitation unless the offender changes their behavior as a result (for example, companies improving workplace safety). Fines do not directly protect the community unless combined with other sanctions.
Effectiveness of fines
Whether a fine achieves its purposes depends on several factors:
| Factor | Impact on effectiveness |
|---|---|
| Financial circumstances of the offender | The fine must be high enough to burden the offender and achieve punishment and deterrence. If the offender has substantial financial resources, these purposes may not be achieved. If the offender has no resources, they may be unable to pay. |
| Amount of the fine | The fine must impose a meaningful burden relative to the offender's circumstances and the offence type. Larger fines are more likely to achieve denunciation. |
| Whether the fine is paid | If the fine is never paid or enforced, punishment and deterrence are not achieved. |
| Public awareness | If the fine receives media attention and publicity, this increases general deterrence and denunciation. |
| Offender's behavioral changes | If the offender addresses their behavior (e.g. improves workplace safety), this may demonstrate rehabilitation and provide greater community protection. |
Community correction orders
A community correction order (CCO) is a flexible, non-custodial sanction that allows an offender to remain in the community while serving their sentence. The offender must comply with certain mandatory (core) conditions and at least one optional condition.
CCOs are seen as flexible sentencing options suitable for a wide range of crimes. They can be combined with either a fine or imprisonment of one year or less.
When can a CCO be imposed?
A CCO can be imposed when:
- The offence is punishable by more than five penalty units, and
- The offender consents to the making of a CCO
Restrictions on CCOs
CCOs cannot be imposed for 'category 1' offences (including murder).
CCOs cannot be imposed for 'category 2' offences (including manslaughter and kidnapping) unless special circumstances exist (e.g. impaired mental functioning).
Maximum duration:
- In the Magistrates' Court: Up to five years for three or more offences (or two years for one offence)
- In the County or Supreme Court: Up to five years
Conditions of community correction orders
All CCOs include two types of conditions:
Mandatory (core) conditions - Apply to every offender:
- Must not commit an offence punishable by imprisonment during the order period
- Must report to and receive visits from the community corrections officer
- Must report to the community corrections centre within two working days of the order
- Must notify any change of address or employment
- Must not leave Victoria without permission
- Must comply with any direction given
Optional conditions - At least one must be attached:
- Unpaid community work: Perform up to 600 hours of unpaid community work
- Treatment and rehabilitation: Undergo treatment and rehabilitation programs
- Supervision: Be supervised, monitored, and managed
- Non-association: Must not contact or associate with particular persons
- Residence restriction: Must live at a particular place
- Place or area exclusion: Must not enter specified places or areas (e.g. Melbourne Cricket Ground, licensed venues)
- Curfew: Must remain at a particular place during specified hours
- Alcohol exclusion: Must not enter licensed premises or consume alcohol there
- Bond: Pay money as a bond that is forfeited for non-compliance
- Judicial monitoring: Be monitored by the court
- Electronic monitoring: Wear a monitoring device
- Justice plan: For intellectually disabled offenders, participate in specified services
The flexibility of CCOs allows courts to tailor sanctions to individual offenders and their circumstances. By selecting appropriate optional conditions, courts can address the specific factors that contributed to the offending behavior while still holding the offender accountable.
Case Study: Drugs and the Bitcoin Millionaire
In December 2022, the Magistrates' Court heard a case involving a well-known cryptocurrency millionaire facing seven charges, including drug trafficking, drug possession, and dealing with proceeds of crime.
The circumstances:
- The drug trafficking charges related to 2012 offending when the offender was 21 years old
- The remaining charges related to 2021 offending
- The offender was alleged to have dealt with bitcoin using proceeds from drug trafficking
The sentence: The magistrate imposed:
- An adjourned undertaking without conviction (good behavior bond) for the drug trafficking and possession charges
- A 20-month CCO with conviction for dealing with proceeds of crime
The CCO conditions: The CCO included two optional conditions:
- Perform 180 hours of community work
- Be assessed and treated for drug dependency
The reasoning: The magistrate considered that the offender was suitable for a CCO, had no prior convictions, had a low risk of reoffending, and had experienced significant psychological impact from media attention on the case.
Purposes of community correction orders
CCOs serve multiple sentencing purposes:
- Punishment: Conditions such as unpaid community work, curfews, or place exclusions impose burdens on the offender
- General deterrence: The conditions demonstrate to the community that offending has consequences
- Specific deterrence: The restrictions and requirements aim to deter the offender from reoffending
- Rehabilitation: Certain conditions (especially treatment and rehabilitation, or alcohol exclusion conditions) directly address the causes of offending behavior
- Protection: The community is protected if the offender is kept busy, prevented from entering certain areas, or must reside at specified places
Effectiveness of community correction orders
Whether a CCO achieves its purposes depends on several factors:
| Factor | Impact on effectiveness |
|---|---|
| Mandatory conditions imposed | Many mandatory conditions achieve punishment, specific deterrence, and general deterrence (e.g. requiring the offender to stay in Victoria). However, the impact depends on how the offender views these conditions. |
| Optional conditions imposed | Some optional conditions strongly restrict liberty and achieve punishment, protection, and deterrence (e.g. electronic monitoring). Others may be less impactful. |
| Restriction of liberty | Conditions that significantly restrict freedom (e.g. electronic monitoring, residence requirements) better achieve denunciation, punishment, protection, and deterrence. |
| Treatment conditions | Treatment-focused conditions (e.g. drug and alcohol treatment) better achieve rehabilitation by addressing underlying causes of offending. This requires appropriate conditions and active offender participation. Long-term protection is also increased. |
| Length of the CCO | Longer CCOs act as greater punishment, protection, and deterrent, and send a stronger message of denunciation. |
| Public awareness | If the CCO receives media attention and publicity, this increases general deterrence and denunciation. |
Imprisonment
Imprisonment is the most serious sanction that can be imposed. It involves removing the offender from society and placing them in a secured facility (jail or prison).
When can imprisonment be imposed?
Each offence has a maximum penalty set out in legislation. For example, the maximum penalty for murder is Level 1 imprisonment (life in prison). Maximum penalties are reserved for the worst examples of an offence, so it is rare for offenders to receive the maximum.
Sentencing levels (from the Sentencing Act 1991 (Vic)):
| Level | Maximum term of imprisonment |
|---|---|
| 1 | Life |
| 2 | 25 years |
| 3 | 20 years |
| 4 | 15 years |
| 5 | 10 years |
| 6 | 5 years |
| 7 | 2 years |
| 8 | 1 year |
| 9 | 6 months |
For 'category 1' offences (including murder), imprisonment is the only sentencing option available to the court.
Conditions of imprisonment
Parole
Parole is the supervised and conditional early release of a prisoner after they have served the minimum period of imprisonment. In certain situations (e.g. sentences of two years or more), the court must fix a non-parole period - the time an offender must serve in prison before applying for parole.
Being granted parole is not automatic. The offender must prove to the Parole Board that they are suitable to serve the remainder of their sentence in the community. This assessment considers factors such as the offender's behavior in prison, rehabilitation efforts, and risk to the community.
Concurrent and cumulative sentences
When an offender is guilty of multiple offences and receives multiple imprisonment terms, the court must specify whether sentences are:
- Concurrent sentences: Served at the same time (e.g. three years for burglary and one year for stealing = three years total)
- Cumulative sentences: Served successively, one after another (e.g. three years plus one year = four years total)
Most sentences are served concurrently.
Case Study: A Planned Attack That Went Too Far
In 2023, a Melbourne woman was sentenced to more than six years in prison for a plan that resulted in her partner's death.
The circumstances:
- The offender and the 39-year-old victim met on a dating website in September 2020 and formed a relationship
- The victim was a long-term methamphetamine user
- The offender met another man (SH) on a social networking website and complained about how her partner was treating her
- They developed a plan to 'bash' the victim
- However, SH went beyond the plan and attacked the victim so brutally that he died
The charges and sentence:
- SH was charged with murder
- The offender was also charged with murder due to her involvement, but eventually pleaded guilty to manslaughter
- She was sentenced to six years and three months in prison with a non-parole period of three years and three months
The sentencing purposes emphasized:
The Supreme Court judge emphasized multiple sentencing purposes:
General deterrence, denunciation, and punishment: The judge stated that people must understand that being complicit in an assault where an unlawful and dangerous act is probable will result in substantial prison time, even if death is unforeseen and even after a guilty plea.
Specific deterrence and protection: These purposes were considered less important given the offender's prior good character, guilty plea, remorse, and rehabilitation prospects.
Rehabilitation: The judge noted the offender's excellent rehabilitation prospects and emphasized that successful rehabilitation serves the community's interests by facilitating her eventual reintegration into society.
Purposes of imprisonment
Imprisonment serves multiple sentencing purposes:
- Protection: Removing the offender from the community protects society from further harm
- Punishment: Imprisonment denies the offender their liberty, which is a significant burden
- Deterrence: Both general deterrence (warning others) and specific deterrence (warning the offender) are typically achieved
- Denunciation: Imprisonment demonstrates the court's strong disapproval of the offender's actions
- Rehabilitation: This is less certain and depends on the offender's circumstances, the length of imprisonment, the prison conditions, and the offender's support network
The Challenge of Recidivism
The high rate of recidivism (re-offending) suggests imprisonment is not always effective for rehabilitation. In Victoria, approximately 44% of prisoners return to custody within two years of release.
Recidivism means returning to crime after having already been convicted and sentenced.
Effectiveness of imprisonment
Whether imprisonment achieves its purposes depends on several factors:
| Factor | Impact on effectiveness |
|---|---|
| Length of the prison sentence | Longer sentences act as stronger punishment, deterrent (general and specific), protection, and denunciation. However, even shorter sentences significantly impact offenders by depriving them of liberty. |
| The offender and their circumstances | Effectiveness depends on the individual. For example, a mentally disabled offender may not understand the sentence, limiting punishment and deterrence. |
| The conditions of the prison | Time in prison can sometimes normalize violence and reinforce negative behavior, potentially undermining specific deterrence and protection. |
| Whether the prisoner receives treatment | If prisoners are given opportunities for treatment and rehabilitation programs, this may achieve rehabilitation and enhance long-term community protection. |
Remember!
Key Points to Remember:
- Victoria has a sentencing hierarchy ranging from imprisonment (most severe) to dismissal without conviction (least severe)
- Fines are monetary penalties paid to the state, expressed in penalty units; their effectiveness depends on the offender's financial circumstances and whether the fine is actually paid
- Community correction orders (CCOs) are flexible, non-custodial sanctions with mandatory conditions and at least one optional condition; they allow offenders to serve sentences in the community
- Imprisonment is the most serious sanction and removes the offender from society; it serves as punishment, protection, and deterrence, but rehabilitation outcomes vary
- All sanctions aim to achieve one or more of five purposes: punishment, deterrence (specific and general), rehabilitation, protection, and denunciation
Key Terms:
- Sanction: A penalty imposed by the court on an offender
- Fine: A monetary penalty paid to the state
- Penalty unit: A standardized unit used to express fines, making it easier to adjust monetary amounts annually
- Community correction order (CCO): A flexible, non-custodial sanction with conditions attached
- Imprisonment: A custodial sanction involving removal from society and placement in prison
- Parole: Supervised and conditional early release from prison
- Recidivism: Re-offending after conviction and sentencing
- Concurrent sentences: Prison terms served at the same time
- Cumulative sentences: Prison terms served one after another
Critical Frameworks:
- Courts must consider the financial circumstances of offenders when imposing fines
- CCOs require offender consent and at least one optional condition in addition to mandatory conditions
- The effectiveness of any sanction depends on individual circumstances, implementation, and public awareness