Criminal Law Sentencing in NSW Versus Victoria

In Australia, criminal matters and sentencing are dealt with differently between states. Each state has their own legislation that governs sentencing. As our firm provides legal services in both New South Wales and Victoria, we will look at sentencing in these two prominent states.

New South Wales

In New South Wales, the main legislation for sentencing is the Crimes (Sentencing Procedure) Act 1999 (NSW). This Act is the starting point for the court and outlines a range of available sentencing orders that the court may impose on adult offenders. The Act sets out:
• The purposes of sentencing
• Penalties that the court may be imposed
• Sentencing procedures

In New South Wales, most serious offences (otherwise known as indictable offences) are generally contained in the Crimes Act 1900 (NSW). Less serious offences (otherwise known as summary offences) are typically found in the Summary Offences Act 1988 (NSW). Other pieces of New South Wales’ legislation that sets out criminal offences include the Drug, Misuse and Trafficking Act 1985 (NSW), the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and the Road Transport Act 2013 (NSW).

Some sentencing outcomes an adults may receive from the commission of an offence, includes:
• Imprisonment
• Compulsory Drug Treatment Detention
• Intensive Corrections Order
• Community Corrections Order
• Fine
• Conditional Release Order
• Dismissal
• Discharge

Victoria

Victoria has a similar piece of legislation to New South Wales. In Victoria, the Sentencing Act 1991 (Vic) is the primary piece of legislation that affects sentencing for adult offenders. This Act sets out:

• The purposes and principles of sentencing
• The factors a court must consider in sentencing
• The hierarchy of sentencing options for adults

In Victoria, most indictable offences are contained in the Crimes Act 1958 (Vic). Most summary offences are contained in the Summary Offences Act 1966 (Vic). Some offences pieces of Victorian legislation that contains criminal offences include the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Road Safety Act 1986 (Vic).

In Victoria, some sentencing options that are available to an adult offender include:

• Imprisonment
• Drug and Alcohol Treatment Order
• Community Correction Order
• Fine
• Adjourned Undertaking
• Dismissal or Discharge
• Diversion

Mediation

Alternative Dispute Resolution has a critical place in the modern world of family law. Mediation is a common practice in the modern legal landscape, particularly in family law. So, what is mediation? How can it help?

Barrister’s lien

The recent case of Williamson & Williamson v Pay [2020] QSC 324 called into question whether, in a costs dispute between a solicitor and a barrister, a court can grant a barrister’s lien. This would allow a barrister to hold the property of a retaining solicitor pending payment of barrister’s fees. While the Supreme Court did not reject the possibility of a barrister’s lien, Justice Williams held that in principal a barrister’s lien does not differ from an equitable lien and granting of a barrister’s lien will wholly depend on the circumstances.

Cyber-harassment

With over half of the world having access to social media, there has been a rise in complaints of cyberbullying and harassment. But, is there any real legal protection if you receive harassing or inappropriate messages? Let’s discuss.

Family courts

In early October, Federal Circuit Court Justice Andrew Guy was tragically found dead in Brisbane after being reported missing for 5 days. The NSW Bar Association says that his suicide is a reminder of the stress, heavy workload and loneliness faced by the Australian judiciary. The NSW Bar Association’s President, Rebecca Treston, commented that in ‘the Family Court of Australia and the Federal Circuit Court of Australia in particular, the workloads are completely crushing and relentless’.

If you’ve ever put an application through an Australian court, you have most likely experienced a delay from application through to hearing. So, how long does a family law case take to progress from application through to trial? Well, it depends.

Given the backlog of cases experienced by the family courts, lawyers have reported that it may take up to four years for a final hearing in the Family Court. Similarly, in some cases, it can be difficult to get a date for interim orders. These delays are compounded by disruption caused by COVID-19 creating need for urgent revisions, unfilled judicial vacancies and inability to keep up with workloads.

How does the family law system attempt to address delays? Parties are always encouraged to reach an agreement at any point during proceedings. Parties can also create a Parenting Plan or a Binding Financial Agreement, and file consent orders for approval by the court. Parties in most cases also undertake mandatory Family Dispute Resolution (FDR). This legislative requirement was introduced in the aim of resolving matters before they go to court.

With appropriate risk assessment, the introduction of FDR can be useful to address the magnitude of family law matters before the courts by allowing parties to come up with their own agreement, only litigating as a last resort. However, given the crushing workload and lack of resources, urgent attention needs to be given to the judiciary if

Mental health and the courts

Mental health is a complex area of the law. Over half of the population of Australia has experienced some mental health condition during their life, and at least 15% of criminals have a diagnosed mental illness.

Aggravated assault, ABH, GBH

Common assault is one of the most prosecuted criminal offences in the Local and District Courts given its ability to cover a wide range of complaints. In fact, common assault can occur without touching at all. For example, threatening death or injury, spitting on someone or raising a hand to someone in anger.

Magistrate penalties on criminal offence

In NSW, the list of penalties that may be handed out in criminal offences are contained in the Crimes (Sentencing Procedure) Act 1999 (NSW). The penalty which is imposed depends on a range of factors, including:

The seriousness of your offence;
Which court your charge is heard in;
The charge which ultimately is sought by the police; and
How persuasive you or your lawyer are in court, including remorse.

Indictable Offense

If you have ever been summoned for a criminal charge, it is likely that you have seen the words summary or indictable on your court attendance notice (often abbreviated to “CAN”). Whether your offence is labelled a summary offence or indictable offence will determine factors such as:

Common assault

Did you know that threatening someone, pushing them or spitting on them may expose a person to the possibility of 2 years imprisonment or $2200 fine?

Common assault is one of the most prosecuted criminal offences in the Local Courts. Why? It is one of the broadest criminal charges in NSW. Facts supporting an assault charge may also contain circumstances which attract an offence of actual bodily harm (ABH), grievous bodily harm (GBH) or may attract ‘aggravated assault’. It is not unusual for the police to run several of these charges at once.