View
42
Download
0
Category
Preview:
DESCRIPTION
VCE case study. Culpable driving causing death. 1. Sentencing origin and range. What is the origin and range of sentences available to a judge in Victoria?. Photo: John French / Courtesy of The Age. Chief Justice Marilyn Warren of the Supreme Court of Victoria. - PowerPoint PPT Presentation
Citation preview
VCE case study
Culpable driving causing death
2 Sentencing Advisory Council, 2012
1. Sentencing origin and range
What is the origin and range of sentences available to a judge in Victoria?
Pho
to:
John
Fre
nch
/ C
our
tesy
of
The
Age
Chief Justice Marilyn Warren of the Supreme Court of Victoria
3 Sentencing Advisory Council, 2012
Who is responsible for sentencing?
In Australia, responsibility for sentencing is spread between
three groups
Parliament ~ makes the laws ~
Government~ puts laws into operation ~
Courts ~ interpret the laws ~
Creates offences and decides what the maximum penalties will be
Makes the rules the courts must apply to cases
Sets up punishments for judges and magistrates to use
Apply the law within the framework set up by Parliament
Set specific sentences for individual offenders
Correctional authorities (e.g. prisons) – control offenders after sentencing
Adult Parole Board – supervises offenders who are on parole
4 Sentencing Advisory Council, 2012
Where is sentencing law found?
• Sentencing Act 1991
• Children, Youth and Families Act 2005
• Common law – previous court judgements
• Various Acts and Regulations creating particular offences, e.g.:
–Crimes Act 1958 deals with a range of crimes including injury offences
–Road Safety Act 1986 deals with offences related to driving under the influence of drugs or alcohol.
5 Sentencing Advisory Council, 2012
Types of sentences
imprisonment
drug treatment order (max 2 years)
suspended sentence of imprisonment (max 3 years – higher courts; 2 years – Magistrates’ Court)
community correction order
fine
adjourned undertaking
Most severe
Least severe
6 Sentencing Advisory Council, 2012
2. Sentencing theory
What must a judge consider when deciding what sentence to impose?
Source: Victorian Sentencing Manual, Judicial College of Victoria
7 Sentencing Advisory Council, 2012
Purposes of sentencing
These are the ONLY purposes for which sentences might be given
Sentencing Act 1991, s 5(1)
PURPOSES OF SENTENCING
Protect the community Deterrence
RehabilitationDenunciate
Fair punishment
8 Sentencing Advisory Council, 2012
Principle of parsimony
Sentencing Act 1991, ss 5(3), 5(4), 5(6), 5(7)
Judges should choosethe most straight-forwardsolution when sentencing
Parsimony~ taking extreme care in using resources ~
If a choice of punishmentexists a judge should take care to choose the least
severe option that will achieve the purposes of sentencing
Example If there is a choice between imposing a fine or a community correction
order, a fine should be imposed
9 Sentencing Advisory Council, 2012
Factors that must be considered
Maximum penalty& current sentencing
practice
Type of offence& how serious
Offender’sdegree of
responsibility& culpability
VictimAggravating or
mitigatingfactors
Relevant Actsof Parliament& statistical
data
Factors making the crime worse, intention, effects, method, motive,
weapons,role the offender
played
Prior offences,age, gender,race, culture,
character, mentalstate, alcohol,
drugs, gambling,personal crisis,
guilty plea
Impact of crimeon victim (e.g.psychological
or physicaltrauma), materialor financial loss
Factors thatincrease orlessen the
seriousnessof the crime
Victim impactstatement
Sentencing Act 1991, s 5(2AC(2))
Factors that must be considered when sentencing
10 Sentencing Advisory Council, 2012
Victim impact statements
• If a court finds a person guilty, a victim of the offence may make a victim impact statement
• A victim impact statement contains details of any injury, loss or damage suffered by the victim as a direct result of the offence
• A person who has made a VIS can request that it be read aloud during the sentencing hearing
11 Sentencing Advisory Council, 2012
How long is a sentence really?
Cumulative or concurrent?• Cumulative sentences are sentences for two or more
crimes that run one after the other e.g. 2 x 5-year prison sentences served cumulatively = 10 years in prison
• Concurrent sentences are sentences for two or more crimes that run at the same time e.g. 2 x 5-year prison sentences served concurrently = 5 years in prison
• The head sentence is the sentence given for each crime before a non-parole period is set
• The total effective sentence (TES) is the total sentence for all crimes once they have been made cumulative or concurrent
12 Sentencing Advisory Council, 2012
Non-parole period
• Non-parole period is set by the court and is the part of the sentence the offender has to serve in prison before being eligible for parole
• A non-parole period must be fixed for sentences of 2 years or more
• A non-parole period may be fixed for sentences of 1–2 years
• A non-parole period cannot be fixed for sentences of less than 1 year
• Parole is the release of a prisoner before the end of a sentence, subject to certain conditions (e.g. regular reporting to parole officer), to help him or her settle back into the community
13 Sentencing Advisory Council, 2012
3. The crime and the time
What is ‘culpable driving causing death’ and what
penalties does it bring?
Photo: Trevor Poultney
14 Sentencing Advisory Council, 2012
Culpable driving causing death
• Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence
• Penalty: Level 3 imprisonment (20 years maximum) or a level 3 fine or both
• Culpable driving includes causing the death of another person while driving
– recklessly– negligently– under the influence of alcohol or drugs
Crimes Act 1958, s 318(1) and (2)
15 Sentencing Advisory Council, 2012
People sentenced
27 17 23 16 15
28
19
25
18
15
0
10
20
30
2005-06 2006-07 2007-08 2008-09 2009-10
Nu
mb
er o
f p
eop
le
People sentenced Immediate custodial sentence
16 Sentencing Advisory Council, 2012
Sentence types
21
14
1915 15
6
3
3
0
10
20
30
2005–06 2006–07 2007–08 2008-09 2009-10
Nu
mb
er o
f p
eop
le
Imprisonment Youth justice centre order
Wholly/partially suspended Other
17 Sentencing Advisory Council, 2012
Total effective sentence & non-parole period
7
9 3
6 9
16 5
4 3
6
0
1
2
3
4
5
6
7
8
9
10
11
1 2 3 4 5 6 7 8 9 10 11 12 13 14
Total effective sentence (years)
No
n-p
aro
le p
erio
d (
year
s)
18 Sentencing Advisory Council, 2012
Average imprisonment length by gender
72 72 60 72
65 64 6360
74
0
12
24
36
48
60
72
84
2005–06 2006–07 2007–08 2008-09 2009-10
Mo
nth
s
Male Female
19 Sentencing Advisory Council, 2012
What are the facts of this case?
4. The case
20 Sentencing Advisory Council, 2012
The offender
• Annie Owther is a 39 year old woman
• She has pleaded guilty to one count of culpable driving causing death, one of negligently causing serious injury and one of driving whilst disqualified
• The maximum penalty for culpable driving is 20 years’ imprisonment and for negligently causing serious injury, 5 years’ imprisonment
21 Sentencing Advisory Council, 2012
The crime 1
• Annie spent most of New Year’s day with her friend Bob Winkle
• She drank two cans of beer at home, six cans at a hotel (they walked there and back) and then two more at home
• At about 7pm Annie drove Bob to buy some cigarettes
• Annie lost control of the car, which slid across the road and collided with a car coming in the opposite direction
• Bob was killed instantly
22 Sentencing Advisory Council, 2012
The crime 2
• A man and his two children in the other car were injured
• Annie suffered serious injuries and had no recollection of the collision
• It was estimated that Annie’s car was travelling at 110 kph in a 70 kph zone
• Her blood alcohol content was 0.14 one hour later
23 Sentencing Advisory Council, 2012
Factors for consideration
• Annie has one prior conviction for driving over 0.05. She has never been in prison
• She was unlicensed when this collision happened
• Annie is divorced with 2 children aged 11 and 8. Her husband was violent and abused her
• Her parents were alcoholics and she had been sexually abused by her father
• She started drinking at the age of 8 and was made a ward of the state
• She expressed remorse and has sought help for her drinking problem
• Annie pleaded guilty to the charges
24 Sentencing Advisory Council, 2012
5. The sentence
What sentence would you give?
Photo: Department of Justice
25 Sentencing Advisory Council, 2012
You decide …
1. What sentence would you impose for each individual count?
2. What total sentence would you impose?
3. If imprisonment:– What would be the head sentence?– What would be the non-parole period?
26 Sentencing Advisory Council, 2012
The maximum penalty
Culpable driving
• Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence
• Penalty: Level 3 imprisonment and/or fine(Maximum - 20 years and/or 2400 penalty units)
Crimes Act 1958, ss 318A(1) and (2)
27 Sentencing Advisory Council, 2012
What the trial judge decided
Annie Owther’s case, County Court• Count 1 6 years’ imprisonment
(Culpable driving)
• Count 2 3 years’ imprisonment(Negligently cause serious injury) (1 year cumulative)
• Total effective sentence 7 years’ imprisonment
• Non-parole period 4 years & 7 months
28 Sentencing Advisory Council, 2012
6. The appeal
What grounds might there be to appeal against the sentence?
Pho
to:
De
part
me
nt o
f Ju
stic
e
Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria
29 Sentencing Advisory Council, 2012
Appeal
Defendant’s Appeal
• Manifestly excessive sentence
• Traumatic childhood, depression and alcoholism not given sufficient weight as mitigating factors
• Insufficient weight given to the delay in charging Annie
• Error in concluding no positive prospects for rehabilitation
30 Sentencing Advisory Council, 2012
What the Court of Appeal decided
• Count 1 6 years imprisonment
• Count 2 3 years (1 year cumulative)
• Total effective sentence 7 years’ imprisonment
• Non-parole period 4 years’ imprisonment
Decision• Circumstances of offence and offender’s driving history call for punishment
which significantly reflects specific and general deterrence.
• Childhood abuse does not lessen legal or moral culpability, but there are prospects of rehabilitation.
• Self-induced addiction to drugs and alcohol not a mitigating factor.
• Fact that she was driving whilst disqualified is an aggravating factor.
31 Sentencing Advisory Council, 2012
7. Conclusion
Effective sentencing achieves a balance between the interests of society, the concerns of the victim and the best interests of the offender.
The more information society has about crimes and the people involved in them, the more reasonable it is in its demands about sentencing.
Photo: Department of Justice
Recommended