YBTJ Years 11 and 12 Case Study - Culpable Driving - V - generate a . V. ... The value of a penalty unit changes every financial year. ... YBTJ Years 11 and 12 Case Study - Culpable

You be the Judge Years 11 and 12 – Culpable Driving Sentencing Advisory Council |

Slide 1

About these notes

You be the Judge is a program offered by the Sentencing Advisory Council of Victoria to raise awareness of the aims, methods, and complexities of sentencing. The most common source of information about sentencing is the media. You be the Judge gives students an opportunity to examine background information on sentencing and to consider a specific case before making up their own minds. Working individually and in groups, students discuss, investigate, and evaluate aspects of sentencing, including their own and community values. Students draw on a range of resources to articulate and defend their own opinions on sentencing and to determine what is a fair sentence.

Teachers should read these notes in conjunction with:

the Teacher Guide, which provides links to the Victorian Certificate of Education Legal Studies curriculum. This particular case study has been developed for use with Years 11 and 12 Legal Studies students

A Quick Guide to Sentencing, which is a plain-language overview for teachers and students of the ‘what, when, where, how, and why’ of sentencing in Victoria. The Quick Guide is available on the Council’s website.

About the caseThe case used in this presentation is based on a real case from the County Court of Victoria.

The case study is divided into seven sections:

1. Sentencing origin and range2. Sentencing theory3. The crime and the time4. The case5. The sentence6. The appeal7. Conclusion.


WarningAs this case study is based on a real-life case, sensitivity is necessary when using the case study in the classroom. Fictitious names are used, but the places and events are real. Sensitivity will also be necessary if, for example, particular students have been affected by a similar case or have a parent or close relative who has been involved in such a situation.

Alternative order of presentationIt is up to teachers to decide the order in which the slides are presented. The order presented in these notes is only a suggestion. Teachers may prefer to ask students to sentence the offenders earlier (see ‘When to ask students to consider a sentence’ in the Teacher Guide for a discussion of this issue). If you choose to ask students to sentence earlier in the program, it may be worthwhile to ask them to reconsider their sentence at the end. Students could then have small group discussions to consider why their sentences may have altered.

Suggested student activitiesInformation for teachers and suggested student activities are supplied in these notes. If you wish students to keep a journal to record their feelings, knowledge, and opinions, initiate this before beginning to show the slides.

The suggested student activities include two components:

Discussion

Questions that may be considered or activities that may be undertaken during the slide show.

Extension

Activities that require additional time and resources to conduct.

The symbol is used to indicate activities that require student use of a computer and the internet.


Slide 2

There are title slides at the beginning of each section of this case study. When displaying these title slides, take the opportunity (through general questioning) to collect student predictions in answer to the question posed.

Differences and/or similarities between the facts as presented and the opinions expressed by students will provide opportunities for lively debate. Findings will serve to underline the results of any pre-testing/prior knowledge work undertaken at the beginning of the program.

The first section of slides concerns the origin and range of sentences available to judges in Victoria:

the responsibilities of the executive, the parliament, and the judiciary in the realm of sentencing

a list of the various laws that affect sentencing the hierarchy of sentences from the most to the least severe.

Activities in this section focus on what sentences are and what students consider to be more and less severe. There are opportunities for students to explain how the Australian Constitution affects their lives. Students use a range of appropriate strategies for reasoning and analysis to compare their own values with community values, as reflected in available sentences and examples of sentences reported in the media.

Inform students that they will be exploring sentencing in the Victorian court system and that they will be examining one case in particular. They will be looking at some background material on sentencing and the particular crime that is involved in the case. They will then have a chance to decide on a sentence for the crime and compare it with the actual sentence given by the judge or magistrate.


Slide 3

In Australia, responsibility for governing is guided by the separation of powers principle. This means that the power to govern is spread among three groups legislature, judiciary, executive (government) with each group checking the power of the other two. This slide represents the separation of powers as it works for sentencing:

legislative power is in the hands of parliament judicial power is in the hands of the courts executive power is in the hands of government through its agencies.

Suggested student activitiesDiscussion

In Australia, responsibility for governing is guided by the separation of powers principle, meaning that the power to govern is spread among three groups: parliament, courts, and government.

Brainstorm using the DOVE* guidelines about why it is important that the three groups are independent. Also, why is it important that the three separate groups are involved in different areas of sentencing?

Imagine a situation where Joe Bloggs has just been found guilty of a major theft. Why might it not be a good idea to allow parliament to decide Joe’s punishment?

*D - Defer judgment on anyone else’s ideas or comments

O - Opt for the unusual and creative

V - generate a Vast number of ideas

E - Expand on the ideas by piggy-backing off others.


Slide 4

Common law is a system of law, originally developed in England, that is derived from judges’ decisions, rather than from legislation (which is derived from the parliament).

Suggested student activitiesExtension

Work cooperatively with a partner to research some Acts of Parliament to find examples of maximum sentences (maximum penalties) for three specific crimes (for example, theft, burglary, and murder). Decide what specific tasks need to be undertaken (such as researcher, collator, presenter) and decide who is going to undertake each one. Decide on the best search terms to find information and to help you locate relevant sentences.

(Teacher: collate all groups’ information on the board to build a list of maximum sentences for a range of offences in Victoria.)


Slide 5

The adult sentencing orders listed above are described in detail in A Quick Guide to Sentencing.

Imprisonment – the offender is held in prison. There are three types of prison: high, medium, and low security. Corrections Victoria (not the court) decides which type of prison an offender is sent to, based on the risks they may face in prison, and the risks they may pose to other people.

Community correction order – the offender is released into the community under conditions that are set by the court. Conditions may include unpaid community work, drug testing and treatment, or restrictions on where the offender can go, where they live, or who they can spend time with. A sentence of imprisonment can be combined with a community correction order.

Fine – a financial penalty (money) payable to the state.

Adjourned undertaking – sentencing is held off for up to 5 years. During this time the offender has to obey certain conditions set by the court (e.g. pay a bond or attend a behaviour change program).


What values of our community are reflected by this diagram?

In your opinion, does the sentencing hierarchy correspond with increasing levels of severity generally?

Extension

What ‘sentences’ exist for misbehaviour at your school? Draw a scale like the one in the slide to show the range of these ‘sentences’ from the lowest to the highest level. Compare your scale with scales drawn by other students and discuss any similarities and differences.


Slide 6

The next group of slides concerns the theory behind sentencing and the sorts of things a judge must or can take into account when imposing a sentence:

the purposes of sentencing the principles of parsimony the factors that must be taken into account Victim Impact Statements and pre-sentence reports cumulative and concurrent sentences non-parole periods.

Activities focus on the constraints placed on sentencing judges and the extra information judges can draw on to ensure the sentence they impose is appropriate. Some emphasis is placed on public reaction to sentences and the importance of informed opinions.

Take the opportunity to collect student predictions in answer to the question posed on this slide.

Encourage students to return to the slides in this section (or provide appropriate printouts) when it is time for them to decide on the sentences they will impose in Section 5.


Slide 7

These are the only purposes for which sentences can be imposed, not suggestions or examples.

Section 5(1) of the Sentencing Act 1991:

(1) The only purposes for which sentences may be imposed are:

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances

(b) to deter the offender or other persons from committing offences of the same or a similar character

(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated

(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged

(e) to protect the community from the offender or (f) a combination of two or more of those purposes.

Ask students to keep a record of their experiences and findings when completing the final activity for this slide. The records will be useful resources to revisit once students have undergone the experience of deciding on a sentence themselves.


Rewrite the five purposes in the slide in your own words. Ensure that you clearly explain what is supposed to be achieved by sentencing.

Working individually or in small groups, sort out which of the sentence types listed on Slide 5 would be likely in most cases to achieve each purpose listed on this slide. For example, which sentence type would best achieve denunciation? You can allocate more than one sentence type to each purpose. Compare and discuss your results with other students.


Is revenge an appropriate purpose for a sentence? Suggest a reason for your answer.

Arrange the various sentencing purposes in order of what you consider to be most important to least important. Present your point of view on the hierarchy of sentencing purposes. Do your classmates agree with you? Where appropriate, contest their opinions. Why might it be hard to get total agreement?


Slide 8

Parliament and the courts have set rules (known as ‘principles’) that guide how a court must sentence. These principles include:

Parsimony – the sentence must not be more severe than is needed to achieve the purposes of sentencing the offender. For example, a sentence of imprisonment should not be imposed unless the purpose or purposes of sentencing the offender cannot be achieved without confinement.

Proportionality – the punishment must fit the crime. This means that a more serious example of an offence gets a more serious sentence than a less serious example of that offence. It also means that there should be no excessive punishment without a good reason.

Parity – If two or more offenders are involved in an offence, their sentences should be similar, unless there is a good reason that the offenders’ sentences should be different.

Totality – the sentence must reflect the overall seriousness of the offences, and not be so severe that the offender has no chance of rehabilitation.


Look up parsimony in a thesaurus to find words with a similar meaning. Explain the principle of parsimony in your own words.

In what ways might the principle of parsimony affect the decision of a judge or a magistrate?

What would the opposite of the principle of parsimony force a judge to do?


Extension

Develop a role play in which a supporter of the principle of parsimony and a recent crime victim meet on a TV chat show. A third person plays the part of the TV interviewer. Complete the task within the set timeframe, prioritising your time and using appropriate resources. The victim wants offenders to receive the heaviest penalties for their crimes. During the role play, the audience notes the strong and weak points made by each character. At the end of the role play, choose one of the following statements as being best supported by the arguments: ‘Sentences should be the least severe the law allows’ or ‘Sentences should be as harsh as the law allows’. Using the ‘Purposes of sentencing’ diagram, make notes for each purpose to support your argument.

Construct a continuum bar with the following divisions: Agree strongly, Agree, Don’t know, Disagree, Disagree strongly. Ask people to read your explanation of the principle of parsimony and then indicate their attitude on the continuum. Decide the size of the sample and make predictions about the results you will get. Compare your predictions with the actual results. Combine findings from the whole class, and graph these using a spreadsheet. Then decide on a creative way to report the public’s attitude towards the principle of parsimony.


Slide 9

Maximum penalty – set out in relevant Acts of Parliament

Current sentencing practices – sentences given in previous court decisions

Nature and gravity of the offence – the seriousness of the offence, the role the offender played, the consequences of the offence, the relationship between the offender and the victim

Culpability – the intent, motive, and circumstance that determine how much the offender should be held accountable

Victim impact – physical and/or psychological trauma, material and/or financial loss

Guilty plea – offenders who plead guilty to an offence can generally expect to receive a sentence discount

Aggravating factors – things about the offender or the offending that make the offending more serious (e.g. previous convictions, elderly victim)

Mitigating factors – things about the offender or the offending that make the offending less serious (e.g. first offence, young offender)

The Sentencing Act 1991 states that these factors must be taken into account when an offender is being sentenced. Sentencing is decided on a case-by-case basis. Judges examine the facts and circumstances surrounding the particular case in determining the sentence.

Later in this case study, students may be asked to consider the factors relating to the offender and decide which are aggravating and which are mitigating. It may be useful, therefore, to spend some time now getting students to define these terms for themselves.



Look up aggravating and mitigating in a thesaurus or dictionary and come up with your own definition of these words.

Are any factors in the diagram more important than others? What might make it hard to get general agreement among your class about this question?

Are we all equal before the law? How could an offender’s race, culture, age, or gender affect how responsible he or she is for an offence? These personal characteristics of the offender might be relevant for which purpose of sentencing?

Extension

Demonstrate creativity in exploring ideas about sentencing. Turn a well-known character from literature into an offender. Write a short story in which you establish the crime, then use the list on this slide to establish the character’s responsibility and degree of blame. For example, Macbeth could be sentenced after a trial for the murder of King Duncan, or Josephine from Looking for Alibrandi could be found guilty of driving under the influence of alcohol. Use a concept map to help plan your story.


Slide 10

Victim Impact Statements provide vital information for a sentencing judge, ensuring that the judge has a broad picture of how the crime has affected the people involved.


In small groups, discuss the following questions and then share with the class. Group members are to support each other in contributing their thoughts and/or opinions on the questions asked:

Why might a victim write a Victim Impact Statement? What kind of information would you expect to find in a Victim Impact Statement of a

victim in a case of culpable driving causing death?

Extension

Students create a Victim Impact Statement. This may help students to think about how crimes affect members of the public. It may help students empathise with others and acknowledge the diversity of individuals.

Choose a crime that has been reported in the media where a victim has been injured. Use appropriate search techniques to find an article from the internet. Using the Victim Impact Statement form as a template, imagine that you are a victim and write a Victim Impact Statement. Remember that the aim of the statement is to show the effect that the crime has had on you and the harm it has brought you.

http://www.victimsofcrime.vic.gov.au/utility/for+professionals/order+publications/victim+impact+statement+interactive+form

http://www.victimsofcrime.vic.gov.au/utility/for+professionals/order+publications/victim+impact+statement+interactive+form


Slide 11

The concepts of cumulative (served one after the other) and concurrent (served at the same time) sentences are not well understood by the public and can cause confusion when sentences are published in the media.

While it is enough to draw students’ attention to this concept at this stage, it might be necessary to return to it once they begin to consider their own sentencing decision and to read the sentence imposed by the judge.

The term total effective sentence (TES) is used in the graphs later in this presentation, so this definition may assist in interpreting that data.

These concepts are explained in more detail in the Council’s A Quick Guide to Sentencing.


Work out the total effective sentence (TES) in each of the following cases:

Case 1: 2 years’ imprisonment for each of three counts of assault served concurrently and 1 year’s imprisonment for assault served cumulatively (answer: 3 years)

Case 2: 6 years’ imprisonment on each of two counts of culpable driving with 3 years of the second count cumulated (answer: 9 years).


Slide 12

The non-parole period (NPP) specifies the period during which an offender must remain in custody. The non-parole period must be at least 6 months less than the term of the prison sentence.

When offenders have served their non-parole period, the Adult Parole Board determines if they will be released on parole and what the conditions of that release will be. Parole is a form of supervised release for offenders sentenced to a term of imprisonment. Offenders on parole are still serving their sentence. If they breach the conditions of their parole, they can be returned to prison. The aim of parole is to ensure that offenders get help in the transition from prison into the community, while still being subject to supervision.

Section 11 of the Sentencing Act 1991 says a court must set a non-parole period for any sentence of imprisonment of 2 years or more, unless it is not appropriate to do so because of the nature of the offence or the past history of the offender. For sentences of 12 to 24 months, it is up to the court to decide whether or not to fix a non-parole period. For sentences of less than 12 months, a non-parole period is not possible.

Suggested student activitiesExtension

Design a pamphlet using an appropriate software program (e.g. MS Word, MS Publisher) to educate the general public about parole. Use pictures and graphs to make it creative, informative, and suitable for the audience.

If you were a sentencing judge, what characteristics would make you a fair, effective, and just judge? Write a small job advertisement for a sentencing judge, including the most relevant characteristics.

Look up the words objective and subjective in your dictionary. List all the factors mentioned so far that a judge has to take into account when sentencing and divide the factors into three groups – those that are objective, those that are subjective, and those you can’t decide on. Compare your findings with the findings of others. After discussion, allocate all the undecided items to one of the other two headings.


Slide 13

Take the opportunity to collect student predictions in answer to the questions in this slide and reflect on prior learning.

This section concerns:

the description from the Crimes Act 1958 of the crime involved in this case study statistics for the sentences imposed for culpable driving causing death in recent

years.

Activities in this section focus on definitions of the crime itself and statistics for offending and sentencing in recent years. The statistics in this section of the presentation are taken from the Sentencing Advisory Council’s Sentencing Snapshots and SACStat.

http://www.sentencingcouncil.vic.gov.au/sacstat/home.html

http://www.sentencingcouncil.vic.gov.au/snapshot


Slide 14

DefinitionsCulpable: deserving of blame, worthy of condemnation

Indictable offence: a serious crime for which the trial is usually heard before a judge and a jury

Recklessly: driver consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his or her driving

Negligently: driver fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case

Under the influence of alcohol and/or drugs: to such an extent as to be incapable of having proper control of the motor vehicle


What legal terms would you want explained to you if you were accused of this crime? Work out definitions for these terms, then compare them with the definitions used in the Act. Why is it important to understand these terms? How can legal language exclude people?

Through discussion, clarify the differences between culpable driving causing death and dangerous driving causing death or serious injury. Refer to the Crimes Act 1958 ss 318-319.

Extension

What examples of this crime have been featured in the media recently? Use the internet to locate information. What degrees of offence seriousness in culpable driving cases can you identify from the articles you find? Why is it important that such degrees are identified?


Slide 15

A maximum penalty is the penalty set by parliament as the most severe possible sentence that a court can impose for a particular type of offence. Maximum penalties are sometimes referred to as statutory maximums because they are set out in legislation such as the Crimes Act 1958 (Vic).

The maximum penalty does not mean courts must impose that penalty on offenders convicted of the offence. It means that courts may not impose a penalty greater than the maximum set for the offence.

Maximum penalties have four important purposes in the sentencing system. They:

clearly set out the most severe consequences for an offender convicted of a particular offence

limit the court’s power to impose a sentence express parliament’s views on the seriousness of the offence and allow scope for the most severe punishment to be imposed for the worst example of

this offence (for example, one that is carefully planned, especially cruel, or motivated by prejudice or hatred).

Suggested student activities

Discussion

What is the maximum penalty for the offence of dangerous driving causing death? Do you think the maximum penalties for culpable driving causing death and dangerous driving causing death are appropriate?

Do you think maximum penalties deter people from committing offences?


Slide 16

This graph shows the number of people sentenced for culpable driving causing death and the number of people who received an immediate custodial sentence in the five years ending 30 June 2015.

In this graph, an immediate custodial sentence includes any sentence that involves a period of immediate imprisonment – sentences of imprisonment and partially suspended sentence (an order that is no longer available).

This graph and the ones following may be printed out and allocated to small groups to analyse and summarise trends. Have groups report back to the class on the findings. Then ask students to reflect on their learning by writing down three things they have learnt about sentencing.


Summarise the trends for the offence of culpable driving causing death illustrated in this graph.

Is there anything about the figures, proportions, or trends in the graph that surprises you? If so, why is it surprising?

A small number of people convicted of culpable driving causing death do not go to prison. What special circumstances might be involved in such cases (e.g. mitigating factors about the offender and the offence)?


Slide 17

This graph shows the number of people sentenced to imprisonment for culpable driving causing death by length of imprisonment term in the five years ending 30 June 2015.

The graph shows that the most common prison sentence imposed was 6 to less than 7 years.


At a glance (without making calculations), what would you say is the ‘average’ prison sentence length for culpable driving causing death?


Slide 18

This graph shows the age and gender of people sentenced for culpable driving causing death in the five years to 30 June 2015.


What generalisations can be made about the length of imprisonment given to men and to women for culpable driving causing death?

Is there anything about the figures, proportions, or trends that surprises you?

Considering what constitutes the crime of culpable driving causing death, do you think the average length of imprisonment adequately reflects the crime? Discuss your opinion with your classmates.


Slide 19

This tile graph shows the number of people sentenced for culpable driving causing death by length of imprisonment and non-parole period over the five years to 30 June 2015. It shows the total effective sentence (TES) and non-parole period (NPP) for each individual person. The centre of each tile on the graph represents a combination of imprisonment length and non-parole period, while the size of the tile reflects the number of people who received that particular combination.

It is possible to see at a glance where a specific sentence fits in the overall picture. The most common combination of imprisonment length and non-parole period imposed was 6 years with a non-parole period of 4 years (11 people as represented by the largest tile on the graph). The length of imprisonment ranged from 4 years with a non-parole period of 1 year to 16 years with a non-parole period of 11 years.

Return to this slide after students have compared their sentences with those of the trial judge and the Appeal Court judge, as a basis for discussion about where the various sentences sit on the graph and the implications of this.


What are the most common total effective sentences and non-parole periods over the period for culpable driving causing death?

What does this tell you about the actual time someone is likely to spend in prison if sentenced for this crime?

Explain how a graph like this could be helpful to a judge or a magistrate.


Slide 20

CAUTIONThe case studies are based on real-life cases. Therefore, sensitivity is necessary when using the case studies in the classroom. Although fictitious names are used, the places and events are real, and it is possible that, during research, students could discover references to the actual case. Teachers should take precautions to ensure that no student is directly associated with the case. Sensitivity will also be necessary if, for example, particular students have been affected by a similar case or have a parent or close relative in prison.

Do not allow students to get bogged down in the detail of the crime – the outcome is already known and Annie is guilty as charged. Remind students that You be the Judge is concerned with sentencing only.

This section includes:

a description of the offender an outline of the charges laid a description of the crime relevant background information available to the court.

Extracts from the judge’s ruling are provided. These may be for teacher reference only or, if time permits, they can be read to or by students to provide a more detailed picture.


Slide 21

‘Annie Owther’ is not the real name of the offender and bears no relation to any person connected with the case.


Slide 22


Slide 23

Adapted from the appeal:

‘The occupants of the other car received injuries and were all taken to hospital. One received serious long term injuries to his leg. At the date of the plea, he was suffering ongoing pain and depression, and he had been unable to resume his former employment. The anger and frustration he has experienced have placed a strain on the whole family. The other occupants received less serious injuries, from which they have made a good recovery.

‘The appellant [Annie] received serious injuries and was taken to hospital, where she remained for twelve days. She has no recollection of the accident at all.

‘The evidence from the police engineer was that, if the other car was stationary at the time of impact, the speed of the appellant’s car at the time of loss of control was 110 kilometres per hour. On the night of the accident, it was raining and the road was wet. Traffic was not heavy. The appellant had passed a speed restriction sign (70 kph) 180 metres before impact. The collision occurred in what was a right hand bend for the appellant. The bitumen road surface is good. The road is well marked and laid out and flat.’


Slide 24

Information that was offered in mitigation at the trial includes:

Annie pleaded guilty to the charges at an early stage since the collision she had sought support and counselling for her alcohol problem.

Also consider that there was a 12-month delay in charging Annie, and the court found ‘no basis’ for concluding that she had positive prospects for rehabilitation.


Consider everything you know so far about Annie. Think, Pair, Share*. Do you think any factors (including gender, age, background, or motivation for committing the offence) are more important than others? What might make it hard to get general agreement among your class about this question?

Refer back to your definitions of aggravation and mitigation. In groups, discuss the factors outlined on the slides and nominate for each one whether a judge might consider it to be mitigating or aggravating when determining sentence.

*Think, Pair, Share

This is a structured process to share information efficiently:

1. Think (as individuals) – students think about the topic, take notes, or jot down ideas.2. Pair (in pairs) – pairs of students discuss their thoughts and ideas about the topic. 3. Share (pairs pair – groups of four) – groups then discuss their thoughts and ideas

about the topic, leading to greater knowledge and understanding, with groups presenting to the whole class.


Slide 25

This section includes the sentence handed down by the original trial judge.

Remind students that Annie is guilty and that their task is to impose a sentence. They must take into account the total sentence imposed and, if it involves imprisonment, they must also decide on the non-parole period.

It is a good idea to have relevant information from earlier in the program available for students to refer to – printouts of particular slides are most efficient as it is unreasonable to expect students to remember all the detail of sentencing theory and factors to take into account as well as the facts of the case.

Opportunities arise here for collaborative work in deciding on a sentence, and for discussion and debate once all students have decided on their sentence. This discussion and debate should occur before the actual sentence is revealed.


Slide 26

If imprisonment is chosen for more than one count, will this be served partly or wholly cumulatively (added up) or concurrently (at the same time)?

The total effective sentence (or head sentence) is the resulting sentence for the three offences:

after cumulation and concurrency has been factored in but before the non-parole period is imposed.

This activity can be conducted most effectively by having individual students making their own decisions, writing down their reasoning.

Students can then come together in small groups to discuss the various results and the reasons for arriving at them.

Later, whole class discussion will almost certainly reveal a wide range of sentences, providing an opportunity for reminding students about the pressure on judges to ‘get it right’.


Slide 27

This is a reminder slide to focus students while they are deciding on their sentence.

The value of a penalty unit changes every financial year. The value of a penalty unit as at 1 July 2016 is $155.46.

Before advancing beyond this slide, students must decide on a sentence to impose.

The Sentencing Advisory Council’s research into public attitudes towards sentencing has found the following:

In the abstract, the public thinks that sentences are too lenient. In the abstract, people tend to think about violent and repeat offenders when

reporting that sentencing is too lenient. People have very little accurate knowledge of crime and the criminal justice system. The mass media is the primary source of information on crime and justice issues. When people are given more information about the crime and the offender, their

levels of punitiveness drop dramatically. People with previous experiences of crime victimisation are no more punitive than the

general community. People with high levels of fear of crime are more likely to be punitive. Despite apparent punitiveness, the public favours increasing the use of alternatives

to imprisonment. Despite apparent punitiveness, the public believes that the most effective way to

control crime is via programs such as education and parental support, rather than via criminal justice interventions.

Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts.

Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gestures.

Source: Sentencing Advisory Council, Myths and Misconceptions: Public Opinion verses Public Judgment About Sentencing (2006).

Expect the sentences imposed by the students to reflect some of these research findings.

http://www.sentencingcouncil.vic.gov.au/publications/myths-and-misconceptions-public-opinion-versus-public-judgment-about-sentencing

http://www.sentencingcouncil.vic.gov.au/publications/myths-and-misconceptions-public-opinion-versus-public-judgment-about-sentencing


Slide 28

The offender was sentenced to 7 years’ imprisonment with a non-parole period of 4 years and 7 months. It may be necessary to remind students about concurrent and cumulative sentencing.

There is likely to be both strong agreement and strong disagreement with this sentence in the class. Discussion may need to be handled sensitively.


How do the sentences given by you and your classmates compare with the sentence imposed by the judge? Discuss any major differences and see if you can explain why these have occurred. In light of the information you now have, is it possible to come to a consensus about the sentence?

Extension

On a large sheet of paper, construct a column graph to represent the sentences decided on by students and the sentence imposed by the judge. Each student fills in a column using two colours one to represent the total effective sentence (TES) and one to represent the non-parole period. Work cooperatively so that the graph begins with the shortest total effective sentence and ends with the longest. Insert the judge’s sentence in the appropriate place.

Imagine that you are one of the following characters in the case: Annie Owther, Bob Winkle’s wife, the male driver who was injured in the other car. Write a short letter to a close friend describing the sentence and your opinion of it.


Slide 29

Through general questioning, collect student predictions in answer to this question. Differences and/or similarities between the facts of the case and students’ opinions will provide opportunities for debate. Compare any findings to the results of any pre-testing/prior knowledge work from the beginning of the program.

This section includes:

the grounds for appeal the revised sentence handed down from the Court of Appeal.

In this appeal, it is the sentence that is examined, not the verdict. Remind students of the nature of appeals and that the evidence is not revisited.

Before revealing the grounds of the appeal in the next slide, have students quickly jot down possible grounds and also any points a defence lawyer could make on behalf of the offender to counter the possible grounds.

The activity in this section focuses on the revised sentence and students’ feelings about its fairness.


Slide 30

Adapted from the Appeal:

‘Important statements of principle emphasise the duty of the sentencing court to pay careful attention to the personal circumstances of the offender and to the potential significance of deprivation, abuse or disadvantage in early life as explaining the offending or – as in the present case – as explaining an addiction.

‘The fatal accident occurred on 2 November 2004. The appellant was not, however, charged until almost 12 months later. The plea of guilty was entered within a matter of weeks, on 14 December 2005. Sentencing did not take place until June 2006.

‘It was contended that his Honour erred in concluding that there was ‘no basis’ for the positive view about the appellant’s prospects of rehabilitation. Apart from recent driving offences, the appellant had no criminal history. She had been a licensed driver for some 16 or 17 years before these offences were committed. Reliance was also placed on the following (unchallenged) matters:

the appellant’s remorse; the significant reduction in the appellant’s alcohol intake, her seeking of

assistance and her willingness to undertake further counselling; the fact that she had pleaded guilty at the earliest opportunity; and the fact that she had not re-offended in the 18 months between the fatal

accident and the plea.’


Slide 31

Adapted from the Appeal:

‘This was, in my view, a very serious instance of culpable driving. I have already concluded that the appellant’s culpability – in deciding to drive while drunk and disqualified, and in driving at a dangerous speed – is not reduced by the traumatic circumstances of her childhood or the long-term depression and alcoholism which ensued. To the contrary, the offending was made the more serious by the fact that the appellant had only one month earlier been disqualified for driving while over the limit.

‘I take into account the remorse which the appellant has expressed; her entry of guilty pleas at the very earliest opportunity; and her otherwise clear record. I also take into account the fact that the appellant sustained serious injuries in the accident. I take into account the effect on the appellant of the delay, and the unchallenged evidence about her prospects for, and efforts towards, rehabilitation.

‘It was submitted on the appeal, as it had been on the plea, that the deceased was complicit in the culpable driving offence. This was said to be so because he had been drinking with the appellant during the day and must, when he got into her car as a passenger, have been aware that she was affected by alcohol. I proceed on the basis that this is not a case involving an ‘innocent’ victim. What would otherwise be an aggravating factor is not present.

‘Where I would depart from the course adopted by the sentencing judge is in relation to the non-parole period. Unlike his Honour, I accept that the appellant has good prospects of rehabilitation. I acknowledge the efforts she has made, and continues to make, towards her own rehabilitation. Nothing can undo the terrible consequences of the appellant’s criminal conduct but her efforts at rehabilitation demonstrate genuine remorse, and a commitment to ensure that no such thing will ever happen again. They also provide a real basis for optimism that the appellant, when she is released, will resume what had until October 2004 been a blameless life.


‘I would fix a non-parole period of four years. The appellant will thus have a lengthy period of parole supervision, which should enable her to consolidate her rehabilitation.’


Slide 32


What is your attitude towards the revised sentence? Do you think it is a fair decision?


Slide 33

This slide contains two statements that should reflect the thoughts of students at the conclusion of You be the Judge. It provides an opportunity to focus on the importance of informed opinion and to recap the research into public attitudes towards sentencing referred to in the notes for Slide 27.


Discuss the two statements in this slide and compare your understanding of the statements with other students.

Extension

Reflect on what you have learnt while working through this You be the Judge case study and consider the extent to which these two statements sum up your own feelings.

Write your own short statements to sum up any other important ideas that you have formed while participating in this program.

Synthesise your thoughts and knowledge on the sentencing process and present these to the class. Depending on whether you are working individually or in a group, you may choose to use one of the following formats: essay, PowerPoint presentation/slide show, wall chart, video, drama production.

Documents

YBTJ Years 11 and 12 Case Study - Culpable Driving - V - generate a . V. ... The value of a penalty unit changes every financial year. ... YBTJ Years 11 and 12 Case Study - Culpable