1. Culpable driving causing death
You be the Judge: Culpable driving causing death VCE case study
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 societal 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 VCE Legal Studies students
A Quick Guide to Sentencing, which is a short, 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 case
The 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:
Sentencing origin and range
Sentencing theory
The crime and the time
The case
The sentence
The appeal
Conclusion.
Warning
As 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 presentation
It 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 activities
Information 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.
Culpable driving causing death
Case study for VCE

2. 1. Sentencing origin and range
You be the Judge: Culpable driving causing death VCE case study
1. Sentencing origin and range
What is the origin and range of sentences available to a judge in Victoria?
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 societal 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.
Photo: John French / Courtesy of The Age
Chief Justice Marilyn Warren of the Supreme Court of Victoria
Sentencing Advisory Council, 2015

3. Who is responsible for sentencing?
You be the Judge: Culpable driving causing death VCE case study
Who is responsible for sentencing?
In Australia, responsibility for sentencing is spread among three groups
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 activities
Discussion
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.
Parliament
~ makes the laws ~
Courts
~ interpret the laws ~
Government
~ puts laws into operation ~
Creates offences and decides what the maximum penalties will be
Makes the rules that 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
Sentencing Advisory Council, 2015

4. Where is sentencing law found?
You be the Judge: Culpable driving causing death VCE case study
Where is sentencing law found?
Sentencing Act 1991
Children, Youth and Families Act 2005
Common law – previous court judgments
Various Acts and Regulations creating particular offences, for example:
Crimes Act 1958 deals with a range of crimes, including injury offences
Road Safety Act 1986 deals with a range of driving offences, including drink driving and drug driving
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 activities
Extension
 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.]
Sentencing Advisory Council, 2015

5. Types of sentences Most severe Least severe Imprisonment
You be the Judge: Culpable driving causing death VCE case study
Types of sentences
Most severe
Imprisonment
Drug treatment order
Community correction order
Fine
Adjourned undertaking
The adult sentencing orders listed above are described in detail in A Quick Guide to Sentencing.
Abolition of Suspended sentences
Suspended sentences were phased out between November 2006 and September 2014, starting with serious and significant offences sentenced in the higher courts then gradually extending to all offences, including offences sentenced in the Magistrates’ Court.
Previously, a prison term could be suspended wholly or in part for a specified time (i.e. the offender would not actually go to prison), subject to the condition to be of good behaviour (i.e. not reoffend).
Suspended sentences are not available in the higher courts for any offence committed on or after 1 September 2013 and in the Magistrates’ Court for any offence committed on or after 1 September 2014.
Suggested student activities
Discussion
What values of our society 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.
Least severe
Sentencing Advisory Council, 2015

6. What must a judge consider when deciding what sentence to impose?
You be the Judge: Culpable driving causing death VCE case study
2. Sentencing theory
What must a judge consider when deciding what sentence to impose?
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 principle 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 print-outs) when it is time for them to decide on the sentences they will impose in Section 5.
Source: Victorian Sentencing Manual, Judicial College of Victoria
Sentencing Advisory Council, 2015

7. Purposes of sentencing
You be the Judge: Culpable driving causing death VCE case study
Purposes of sentencing
These are the ONLY purposes for which sentences can be given
PURPOSES OF SENTENCING
Community protection
Deterrence
Rehabilitation
Denunciation
Just punishment
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.
Suggested student activities
Discussion
Rewrite the purposes in the five boxes in the slide in your own language. Ensure that you clearly explain what is supposed to be achieved by sentencing.
Working individually or in small groups, sort out which of the five 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?
Sentencing Advisory Council, 2015
Sentencing Act 1991 s 5(1)

8. Principle of parsimony
You be the Judge: Culpable driving causing death VCE case study
Principle of parsimony
Parsimony
~ extreme care when imposing punishment ~
Where a choice of punishment exists, the 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 provided it meets the purposes of sentencing
Sentences should be no more severe than required to achieve the purpose or purposes for which the sentence is imposed: Sentencing Act 1991 s 5(3).
A sentence of imprisonment should not be imposed unless the purpose or purposes for which the sentence is imposed cannot be achieved without confinement: Sentencing Act 1991 s 5(4).
If there is a choice between imposing a fine or a community correction order, a fine should be imposed (provided the fine will meet the purposes intended for sentencing that offender for that offence): Sentencing Act 1991 s 5(6).
A fine should not be imposed if the purpose or purposes for which the sentence is imposed can be achieved by dismissal, discharge, or adjournment: Sentencing Act 1991 s 5(7).
Suggested student activities
Discussion
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 members of the community 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.
Sentencing Advisory Council, 2015
Sentencing Act 1991 ss 5(3)(4), 5(6)(7)

9. Factors that must be considered
You be the Judge: Culpable driving causing death VCE case study
Factors that must be considered
Factors that must be considered when sentencing
Maximum penalty
& current
sentencing
practices
Type of offence
& how serious
Circumstances of the offender
Victim
Aggravating or
mitigating
factors
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. One of the following activities asks students to find definitions of these words. If this is not possible in the classroom, teachers might choose to provide these (or their own) definitions to students:
Aggravating: increasing the intensity or severity of anything, making worse or more severe (Macquarie Dictionary)
Mitigating: lessening in force or intensity, moderating the severity of something (Macquarie Dictionary).
Suggested student activities
Discussion
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 have been found guilty of driving under the influence of alcohol. Use a concept map to help plan your story.
Relevant Acts
of Parliament
& previous court decisions
Factors making
the crime worse,
intention, effects,
method, motive,
weapons,
role the offender
played
Prior offences,
age, character, & mental state. Alcohol, drug, or gambling addiction.
Personal crisis, guilty plea
Impact of crime
on victim (e.g.
psychological
or physical
trauma), material
or financial loss
Factors that
increase or
lessen the seriousness of the crime
Victim Impact
Statement
Sentencing Advisory Council, 2015
Sentencing Act 1991 s 5(2)

10. Victim Impact Statements
You be the Judge: Culpable driving causing death VCE case study
Victim Impact Statements
If a court finds a person guilty, a victim of the offence may make a Victim Impact Statement (VIS)
A VIS 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
Victim Impact Statements provide vital information for a sentencing judge, ensuring that the judge has a broad picture of how the crime has impacted on the people involved.
Suggested student activities
Discussion
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.
You can find the Victim Impact Statement form used by victims at:
Sentencing Advisory Council, 2015

11. How long is a sentence really?
You be the Judge: Culpable driving causing death VCE case study
How long is a sentence really?
Cumulative or concurrent?
Cumulative  sentences for two or more crimes that run one after the other, e.g. two x five-year prison sentences served cumulatively = 10 years in prison
Concurrent  sentences for two or more crimes that run at the same time, e.g. two x five-year prison sentences served concurrently = five years in prison
The total effective sentence (TES) (or head sentence)  the total imprisonment sentence for all offences within a case, after orders making sentences cumulative or concurrent
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.
Suggested student activities
Discussion
Work out the total effective sentence (TES) in each of the following cases:
Case 1: two years’ imprisonment for each of three counts of assault served concurrently and one year’s imprisonment for assault served cumulatively (answer: three years)
Case 2: six years’ imprisonment on each of two counts of culpable driving with three years of the second count cumulated (answer: nine years).
Sentencing Advisory Council, 2015

12. You be the Judge: Culpable driving causing death VCE case study
Non-parole period
A non-parole period is set by the court. It is the part of the sentence that must be served in prison before the offender may apply to be released on parole
If a prison sentence of two years or longer is imposed, the court must set a non-parole period
Courts have a choice of whether or not to set a non-parole period for prison sentences of one to two years
A non-parole period cannot be set for prison sentences of less than one year
Parole is the prisoner’s release from prison before the end of his or her total possible prison sentence, subject to conditions (e.g. regular reporting to a parole officer)
The non-parole period (NPP) specifies the period during which an offender must remain in custody. The NPP must be at least six 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.
The Sentencing Act 1991 s 11 says a court must set a NPP for any sentence of imprisonment of two 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.
NPP for baseline offences
Parliament has set the minimum NPP (as a percentage of the total effective sentence) for seven baseline offences:
murder
trafficking in a large commercial quantity of a drug of dependence
culpable driving causing death
sexual penetration of a child under 12 years
persistent sexual abuse of a child under 16 years
incest with a child, step-child, or lineal descendant (under 18 years)
incest with the child, step-child, or lineal descendant (under 18 years) of a de facto spouse.
These set minimum NPPs are:
30 years if the total effective sentence (TES) is a term of life imprisonment
70% of the TES  if the TES is 20 years or more
60% of the TES  if the TES is less than 20 years.
Suggested student activities
Extension
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.
Sentencing Advisory Council, 2015

13. What is culpable driving causing death?
You be the Judge: Culpable driving causing death VCE case study
3. The crime and the time
What is culpable driving causing death?
What penalties does it bring?
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, which are available at:
Sentencing Advisory Council, 2015
Photo: Trevor Poultney

14. Culpable driving causing death
You be the Judge: Culpable driving causing death VCE case study
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. Culpable driving includes causing the death of another person while driving:
recklessly or
negligently or
under the influence of alcohol or drugs
Maximum penalty
The maximum penalty for culpable driving causing death is Level 3 imprisonment (maximum 20 years’ imprisonment) and/or a Level 3 fine (2,400 penalty units)
Definitions
Culpable: 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
Levels of imprisonment/fines: scale of penalties as set out in the Sentencing Act 1991.
Suggested student activities
Discussion
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?
Sentencing Advisory Council, 2015
Crimes Act 1958 ss 318(1)(2)

15. Culpable driving causing death  people sentenced
You be the Judge: Culpable driving causing death VCE case study
Culpable driving causing death  people sentenced
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 2012.
An immediate custodial sentence in this graph includes any sentence that involves a period of immediate imprisonment – sentences of imprisonment and partially suspended sentences.
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.
Suggested student activities
Discussion
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)?
Sentencing Advisory Council, 2015

16. Length of imprisonment
You be the Judge: Culpable driving causing death VCE case study
Length of imprisonment
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 2012.
The graph shows that the most common prison sentence imposed was between five and six years.
Suggested student activities
Discussion
At a glance (without making calculations), what would you say is the ‘average’ prison sentence length for culpable driving causing death?
Sentencing Advisory Council, 2015

17. Baseline sentencing – current median
You be the Judge: Culpable driving causing death VCE case study
Baseline sentencing – current median
Median
When all sentences imposed for an offence within a given time period are ranked from lowest to highest, the median sentence is the middle value, so that half of all sentences imposed are lower than the median and half are higher.
Here, the median is about 5.5 years. Of the 64 people imprisoned for culpable driving causing death in the five years to 30 June 2012, half received less than 5.5 years and half received more than 5.5 years.
Suggested student activities
Discussion
Do you think the median sentence for culpable driving causing death is what it should be? Consider the following:
culpable driving causing death is an offence that causes serious harm to other people: victims, their families, and the community
people convicted of culpable driving causing death are often young and have no prior convictions.
Discussions can be held in groups before students report back to the class.
Sentencing Advisory Council, 2015

18. Baseline sentencing – baseline sentence
You be the Judge: Culpable driving causing death VCE case study
Baseline sentencing – baseline sentence
Baseline sentencing
Baseline sentences are the specified prison sentences that the Victorian Parliament intends as the median sentence for seven nominated baseline offences.
Victorian courts must sentence a charge of a baseline offence in accordance with that intention if the offence was committed on or after 2 November 2014.
Baseline sentencing requires judges to sentence baseline offences so that, over time, the median sentence is equal to the baseline sentence.
Culpable driving causing death has a baseline sentence of nine years. It is parliament’s intention that, where a charge of culpable driving causing death would have previously received a sentence equal to the median value of around 5.5 years, the charge should now receive a sentence of nine years.
Baseline Offences
The seven baseline offences and their corresponding baseline sentences of imprisonment are:
murder – 25 years
trafficking in a large commercial quantity of a drug of dependence – 14 years
culpable driving causing death – nine years
sexual penetration of a child under 12 years – 10 years
persistent sexual abuse of a child under 16 years – 10 years
incest with a child, step-child, or lineal descendant (under 18 years) – 10 years
Incest with the child, step-child, or lineal descendant (under 18 years) of a de facto spouse – 10 years.
Suggested student activities
Discussion
Why do you think the government introduced baseline sentencing for culpable driving causing death? Why was baseline sentencing introduced for the six other offences?
In setting the new baseline sentences, parliament has made clear its intention to increase the overall severity of sentences for these offences: ‘These changes will see significant increases in the patently inadequate average sentences currently being imposed for some of the most serious of crimes’ – Former Attorney-General, Robert Clark.
Sentencing Advisory Council, 2015

19. Age & gender of people sentenced
You be the Judge: Culpable driving causing death VCE case study
Age & gender of people sentenced
This graph shows the age and gender of people sentenced for culpable driving causing death in the five years to 30 June 2012.
Suggested student activities
Discussion
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.
Sentencing Advisory Council, 2015

20. Total effective sentence & non-parole period
You be the Judge: Culpable driving causing death VCE case study
Total effective sentence & non-parole period
This cluster 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 It shows the total effective sentence (TES) and non-parole period (NPP) for each individual person. The centre of each bubble on the chart represents a combination of imprisonment length and non-parole period, while the size of the bubble 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 six years with a non-parole period of four years (11 people as represented by the largest bubble on the chart). The length of imprisonment ranged from three years with a non-parole period of one year to 13 years with a non-parole period of 10 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.
Suggested student activities
Discussion
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 spend in prison if sentenced for this crime?
Explain how a graph like this could be helpful to a judge or a magistrate?
Sentencing Advisory Council, 2015

21. What are the facts of this case?
You be the Judge: Culpable driving causing death VCE case study
4. The case
What are the facts of this case?
CAUTION
The 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.
Sentencing Advisory Council, 2015

22. The offender Annie Owther is a 39 year old woman
You be the Judge: Culpable driving causing death VCE case study
The offender
Annie Owther is a 39 year old woman
She has pleaded guilty to:
one count of culpable driving causing death
one count of negligently causing serious injury
one count of driving while disqualified
‘Annie Owther’ is not the real name of the offender and bears no relation to any person connected with the case.
Sentencing Advisory Council, 2015

23. You be the Judge: Culpable driving causing death VCE case study
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 (Annie and Bob walked there and back) and then two more at home
At about 7 p.m. 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
Sentencing Advisory Council, 2015

24. The crime 2 A man and his two children in the other car were injured
You be the Judge: Culpable driving causing death VCE case study
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 concentration was 0.14 one hour later
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.’
Sentencing Advisory Council, 2015

25. Factors for consideration
You be the Judge: Culpable driving causing death VCE case study
Factors for consideration
Annie has one prior conviction for driving over 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
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.
Suggested student activities
Discussion
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 for 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:
Think (as individuals) – students think about the topic, take notes, or jot down ideas.
Pair (in pairs) – pairs of students discuss their thoughts and ideas about the topic. 
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.
Sentencing Advisory Council, 2015

26. What sentence would you give?
You be the Judge: Culpable driving causing death VCE case study
5. The sentence
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 – print-outs 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.
What sentence would you give?
Sentencing Advisory Council, 2015
Photo: Department of Justice & Regulation

27. You decide … What sentence would you impose for each individual count?
You be the Judge: Culpable driving causing death VCE case study
You decide …
What sentence would you impose for each individual count?
What total sentence would you impose?
If imprisonment:
What would be the total effective sentence?
What would be the non-parole period?
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’.
Sentencing Advisory Council, 2015

28. You be the Judge: Culpable driving causing death VCE case study
The maximum penalty
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 2,400 penalty units)
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 2014 is $
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, 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), available at
Expect the sentences imposed by the students to reflect some of these research findings.
Sentencing Advisory Council, 2015
Crimes Act 1958 ss 318A(1)(2)

29. What the trial judge decided
You be the Judge: Culpable driving causing death VCE case study
What the trial judge decided
Annie Owther’s case, County Court
Count 1  culpable driving causing death: six years’ imprisonment
Count 2  negligently cause serious injury: three years’ imprisonment (one year cumulative)
Total effective sentence: seven years’ imprisonment
Non-parole period: four years and seven months
The offender was sentenced to seven years’ imprisonment with a non-parole period of four years and seven 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.
Note: The real life offence that this case study is based on occurred before baseline sentencing was introduced in November 2014, so the judge did not consider parliament’s intention that the median sentence for culpable driving be nine years.
Suggested student activities
Discussion
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 TES 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.
Sentencing Advisory Council, 2015

30. What grounds might there be to appeal against the sentence?
You be the Judge: Culpable driving causing death VCE case study
6. The appeal
What grounds might there be to appeal against the sentence?
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.
Photo: Department of Justice & Regulation
Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria
Sentencing Advisory Council, 2015

31. Grounds for appeal The defence appealed the sentence on these grounds:
You be the Judge: Culpable driving causing death VCE case study
Grounds for appeal
The defence appealed the sentence on these grounds:
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
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 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 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.’
Sentencing Advisory Council, 2015

32. What the Court of Appeal decided
You be the Judge: Culpable driving causing death VCE case study
What the Court of Appeal decided
Count 1: six years’ imprisonment
Count 2: three years’ imprisonment (one year cumulative)
Total effective sentence: seven years’ imprisonment
Non-parole period: four years’ imprisonment
Decision
Circumstances of the offence and the offender’s driving history call for punishment that 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 is not a mitigating factor
Fact that she was driving while disqualified is an aggravating factor
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.’
Suggested student activities
Discussion
What is your attitude towards the revised sentence? Do you think it is a fair decision?
Sentencing Advisory Council, 2015

33. You be the Judge: Culpable driving causing death VCE case study
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
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 28.
Suggested student activities
Discussion
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 public. 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.
Sentencing Advisory Council, 2015
Photo: Department of Justice & Regulation