What is the difference between a trial and a sentencing hearing?
The simplest way to put it is that a trial answers “did you do it?” and a sentencing hearing answers “what should happen now?”. They are separate stages with separate jobs, separate rules, and often separate decision makers, and confusing the two is one of the most common misunderstandings people bring to court. A trial is about proving guilt, while a sentencing hearing, which the courts and the Sentencing Advisory Council call the plea hearing, is about deciding the penalty once guilt is no longer in question.
The table below sets out the core differences.
| Feature | Trial | Sentencing hearing |
| Question decided | Guilt or not guilty | The penalty |
| When it happens | Before any finding of guilt | After a guilty plea or verdict |
| Who decides | Jury or magistrate | Judge or magistrate, no jury |
| Standard of proof | Beyond reasonable doubt | Different, depending on the fact |
| Defence focus | Testing the evidence | Mitigation and outcome |
What does a trial decide?
A trial decides one thing: whether the prosecution can prove the charge. The accused is presumed innocent, and the prosecution carries the burden of proving every element of the offence beyond reasonable doubt, which is the highest standard in law. In the County Court or Supreme Court that decision is usually made by a jury, while in the Magistrates’ Court a contested hearing is decided by a magistrate.
If the prosecution fails to reach that standard, the person is acquitted and there is no sentencing at all, because there is nothing to sentence. A verdict of not guilty is not a finding that you are innocent in some positive sense, it simply means the prosecution did not meet its burden, and that is enough, because the whole system is built around the presumption of innocence. In a jury trial the verdict must generally be unanimous, and the accused never has to prove anything or even give evidence, since the obligation to prove the case rests on the prosecution from start to finish.
Preparing and running a contested case is demanding work, which is part of why some people who feel out of their depth representing themselves in the Magistrates’ Court struggle at the guilt stage.
What does a sentencing hearing decide?
A sentencing hearing decides the penalty, and only the penalty, because guilt has already been established. It happens in two situations: after a person pleads guilty, or after they are found guilty at a trial. By the time a matter reaches this stage the question of “did you do it?” is settled, so the entire focus shifts to what the appropriate sentence should be. This is a crucial point that people often miss, because it means a guilty plea does not end your ability to influence what happens, it simply moves the contest from guilt to outcome, a shift our guide on changing your plea after pleading guilty also touches on.
What actually happens at a sentencing hearing?
Both sides put material before the court, and the balance of the hearing tips toward the defence. The prosecution goes first, summarising the facts of the offending, tendering any prior convictions, and presenting any victim impact statements, which describe how the crime affected the victim and are given at this stage, not at trial.
The defence then delivers the plea in mitigation, the heart of the hearing, putting forward character references, evidence of remorse, steps toward rehabilitation, medical or psychological reports, and personal circumstances that call for leniency. A well-prepared plea can genuinely change an outcome, which is why the material gathered before the hearing matters so much.
In many cases the facts are set out in an agreed summary, which avoids a dispute, but where the parties cannot agree, the hearing can involve evidence about the disputed facts. The court may also call for reports, such as an assessment of a person’s suitability for a community based order, before deciding, and in some matters a sentence indication can give an accused a sense of the likely penalty before they commit to a plea. All of this is geared toward giving the court an accurate and complete picture of both the offending and the person in front of it.
Who decides, and is there a jury?
A judge or magistrate decides the sentence, and there is never a jury at this stage. Even where a jury found the person guilty at trial, the jury’s job ends with the verdict, and sentencing is entirely a matter for the judge. In the Magistrates’ Court the same magistrate who hears the plea imposes the sentence. This is a key structural difference from a trial, because the audience your lawyer is persuading at a sentencing hearing is a single legally trained decision maker, not a panel of citizens, and the submissions are pitched accordingly.
How does the standard of proof differ?
The standard changes once guilt is settled, and this catches people out. At a trial, everything turns on proof beyond reasonable doubt. At a sentencing hearing, the facts are often agreed, but where they are disputed, a different approach applies: any fact that would make the sentence heavier, an aggravating fact, must still be proven by the prosecution beyond reasonable doubt, while a fact that would help the offender, a mitigating fact, need only be established on the balance of probabilities.
This split matters in practice, because it means a disputed detail about how serious the offending was is held to a high standard before it can count against you, and a careful defence will hold the prosecution to it. Take a simple example: if the prosecution says a weapon was used but you say it was not, and that fact would lift your sentence, the court cannot act on it unless it is proven beyond reasonable doubt. If instead you want the court to accept that you were remorseful, or acting under pressure, you only need to persuade it that this is more likely than not. The two standards pulling in different directions is one of the subtler but more important features of a sentencing hearing.
What is the court trying to achieve at sentencing?
The court is applying a defined framework, not simply picking a number. Under section 5 of the Sentencing Act 1991 (Vic), a sentence may only be imposed for one or more of five purposes: just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
In deciding the sentence, the court must weigh a list of factors, including the nature and gravity of the offence, the offender’s culpability, the impact on any victim, any injury, loss or damage, the offender’s previous character, a guilty plea and its timing, and any aggravating or mitigating factors. Principles of proportionality and parsimony run through it all, meaning the sentence must match the seriousness of the offending and be no more severe than necessary. Understanding this framework is what allows a lawyer to build a plea that speaks directly to the things a court is required to consider.
Why does the difference matter to you?
Because knowing which contest you are in changes how you fight it. If your real prospects lie in disputing guilt, the trial is where the case is won, and every effort goes into testing the evidence. If guilt is not realistically in doubt, the sentencing hearing becomes the decisive stage, and the work shifts to mitigation, rehabilitation, and outcome. Many people waste their strongest opportunity by treating a plea hearing as a formality, when in truth it is often where the most tangible difference to a person’s life is made. Seeing where each stage sits in the wider process helps you put your energy where it counts. It is also worth remembering that not every matter runs all the way to a full trial or a contested plea, because some resolve earlier, through negotiation or because a magistrate can dismiss weak charges early, and knowing which outcomes are realistically open to you is part of choosing where to fight.
Can you challenge a sentence you think is too harsh?
Yes, a sentence is not always the final word. If a sentencing hearing produces a penalty that is out of step with the offending, there is a right to appeal, and the choice between challenging the finding of guilt and challenging only the penalty is an important one that our guide on an appeal against conviction versus sentence works through.
Appeals run to strict deadlines, so the time to think about them is immediately after the sentence, not weeks later, and experienced criminal appeals advice early can preserve options that a delay would close off. Knowing this stage exists is also a reason to get the sentencing hearing itself right the first time, because a strong plea reduces the need to appeal at all.
What should you do before a sentencing hearing?
Prepare as if the outcome depends on it, because it often does. Get advice early on whether to plead guilty at all, work out whether the facts are agreed or will be disputed, and start gathering your mitigation, character references, proof of rehabilitation, and any medical material, well before the date.
The more complete that picture is, the more a court has to work with when it decides your penalty, and the less you leave to chance. If you have a trial or a sentencing hearing coming up in Victoria, get advice as early as you can, so the right stage gets the preparation it deserves and nothing that could help you is left on the table.
