Statutory minimum sentences and non-parole periods
For specified offences committed by an offender aged 18 or over, a court must impose a statutory minimum sentence or non-parole period unless a special reason exists (under section 10A of the Sentencing Act 1991 (Vic)).
Minimum non-parole period offences
Sections 9B to 10AE of the Sentencing Act 1991 require specific lengths of custodial sentences or non-parole periods for the following offences.
- Manslaughter:
- Offences against protected officials (s 10AA);
- Gross violence offences (s 10); and
- Aggravated home invasion or carjacking offences (s 10AC and s 10AD).
Mandatory minimum sentences also apply to breaches of supervision orders in certain circumstances under the Serious Offenders Act 2018 (s 10AB).
Offences against protected officials
The Sentencing Act 1991 specifies minimum non-parole periods for offences against certain protected officials, including emergency workers, custodial officers and youth justice custodial workers.
The statutory minimum non-parole period does not apply if:
- the offender’s involvement was only minor (s 10AA(6)(a));
- the offender was under 18 at the time of the offence (s 10AA(6)(b)); or
- the court finds a special reason for not applying the statutory minimum (s 10AA(1)).
The minimum non-parole periods for offences against protected officials vary depending on the offence, as follows:
Offence | Category of offence | Statutory minimum non-parole period |
Intentionally causing serious injury in circumstances of gross violence (victim being an on duty emergency worker, a custodial officer or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 15A; Sentencing Act 1991 (Vic) s 10AA, Sch 1) | Category 1 | 5 years |
Recklessly causing serious injury in circumstances of gross violence (victim being an on duty emergency worker, a custodial officer or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 15B; Sentencing Act 1991 (Vic) s 10AA, Sch 1) | Category 1 | 5 years |
Causing serious injury intentionally (victim being an on duty emergency worker, a custodial officer or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 16; Sentencing Act 1991 (Vic) ss 3, 10AA, Sch 1) | Category 1 | 3 years |
Causing serious injury recklessly (victim being an on duty emergency worker, a custodial officer or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 17; Sentencing Act 1991 (Vic) ss 3, 10AA, Sch 1) | Category 1 | 2 years |
Intentionally or recklessly causing injury (victim being an on duty emergency worker, a custodial officer or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 18; Sentencing Act 1991 (Vic) ss 3, 10AA) | Category 1 | 6 months |
If special reasons for not applying the statutory minimum are found in respect of an offender charged with intentionally causing serious injury, recklessly causing serious injury or intentionally or recklessly causing injury, the court must sentence in accordance with section 5(2GA). That is, the court must impose either a custodial order or make a therapeutic order (see below).
Therapeutic orders under section 5(2GA)
In sentencing an offender for a category 1 offence against a protected official where the court has found under section 10A that a special reason exists and having regard to the Parliament’s intention set out in section 10A(3)(aa) to (b), a court must make either—
- a custodial order referred to in subsection (2G); or
- a mandatory treatment and monitoring order (whether or not a sentence of imprisonment is imposed under section 44), a residential treatment order or a Court Secure Treatment Order if—
- the offender proves on the balance of probabilities that, at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender‘s culpability; and
- the court is satisfied that a mandatory treatment and monitoring order, a residential treatment order or a Court Secure Treatment Order, as the case requires, is appropriate (s 5(2GA)).
Before making a therapeutic order under subsection (2GA) a court must—
- have received a report addressing the matters in subsection (2GA)(b)(i) by a psychiatrist or a registered psychologist who has examined the offender in relation to the offending; and
- have regard to that report and any other evidence that the court considers relevant (s 5(2GB)).
Exposing an emergency worker to risk by driving
A person convicted for intentionally exposing an emergency worker to risk while driving (Crimes Act 1958 s 317AC or 317AD) must be sentenced to imprisonment with a non-parole period of at least two years if, in the commission of the offence, the protected official was injured (s 10AE(1)).
The statutory minimum non-parole period does not apply if:
- the offender was under 18 at the time of the offence; or
- the court finds a special reason for not applying the statutory minimum (s 10AE(2)).
If a special reason for not applying the statutory minimum is found under section 10A, the court must either impose a sentence of imprisonment (without a CCO) or make a therapeutic order.
The conditions for imposing a therapeutic order are the same as described for offences against protected officials (ss 5(2GA)-(2GB).
Gross violence offences
A person convicted for intentionally or recklessly causing serious injury in circumstances of gross violence (not against a protected official) must be sentenced to a minimum non-parole period of 4 years.
This minimum non-parole period does not apply if:
- Provisions for offences against protected officials apply under section 10AA(1) (s 10(2));
- The accused was involved in the commission of the offence (such as by intentionally directing, assisting or encouraging the offence) within the meaning of section 323(1)(a) or (b) of the Crimes Act 1958 (s 10(2));
- At the time of the offence, the offender was under 18 (s 10(2));
- The court finds special reasons for not applying the statutory minimum (s 10(1)).
Aggravated home invasion and carjacking
A person sentenced for aggravated home invasion or aggravated carjacking must receive a term of imprisonment and a non-parole period of at least three years (ss 10AC(1) or 10AD(1).
The statutory minimum non-parole period does not apply if:
- at the time of the offence, the offender was under 18 (ss 10AC(2), 10AD(2)); or
- special reasons are found by the court for not applying the statutory minimum (ss 10AC(1), 10AD(1)).
Contravening supervision orders
A sentence of imprisonment of at least 12 months must be imposed when sentencing an offender for breaching a supervision or interim supervision order under section 169 of the Serious Offenders Act 2018 (Vic) unless special reasons apply (s 10AB(1)).
Section 10AB(1) only applies if the court is satisfied beyond reasonable doubt that the offender intentionally or recklessly contravened a restrictive condition of the supervision order or interim supervision order (s 10AB(2)).
‘Special Reasons’ under section 10A
The mandatory minimum sentence provisions provide an exception where the court finds special reasons apply under section 10A.
A court may find a special reason not to apply a statutory minimum sentence if:
- The offender has assisted or given an undertaking to assist, after sentencing, authorities in the prosecution or investigation of an offence (s 10A(2)(a)); or
- The offender proves on the balance of probabilities that:
- At the time of committing the offence, the offender had impaired mental functioning that is causally linked to their offending and ‘substantially and materially’ reduced the offender’s culpability (s 10A(2)(c)(i)) (does not apply if the impairment was substantially caused by self-induced intoxication (s 10A(2A)); or
- The offender has impaired mental functioning, which would result in them being subject to substantially and materially greater than ordinary burden or risks of imprisonment (s 10A(2)(c)(ii);
- The court proposes to make a Court Secure Treatment Order or Residential Treatment Order for the offender (s 10A(2)(d)); or
- There are substantial and compelling circumstances that are exceptional and rare that justify doing so (s 10A(2)(e)).
