Legal Q&A

Response by Volunteer Barristers for About Time

There are lots of reasons why people may get lighter or heavier sentences than someone else who has committed the same crime.

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Firstly, when a judge or magistrate decides what sentence to give someone for a crime, they have to balance lots of competing considerations and principles, including some that are explicitly listed in legislation like the Victorian Sentencing Act 1991 before deciding the penalty.

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Reasonable minds might have different opinions as to what the appropriate sentence is in a case. It is not as simple as a mathematical exercise, and we can’t know exactly how much weight they put on every factor.

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Secondly, the judge or magistrate has to think about the offending itself and the nature and seriousness of the crime before arriving at the sentence.

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Two different people might commit the same offence, such as assault, but this offence may have been carried out in different circumstances, which impacts the overall seriousness of the assault.

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Thirdly, the judge or magistrate has to consider the matters that relate to the offender. Each offender who is sentenced is unique, and that has to be taken into account. This includes things like any prior criminal history, age, personal circumstances and story, their prospects of rehabilitation and whether they have experienced childhood deprivation or are living with mental health conditions.

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When two people have committed the same crime together in the same case, the judge or magistrate might sentence them to different sentences because they had different roles in the crime and/or have different personal circumstances.

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For example, one offender may have a longer criminal history or may have contested the matter at trial, meaning they may receive a longer sentence. The other offender may have a shorter criminal history and may have pleaded guilty to the crime, meaning they would likely receive a shorter sentence.