1. Murder Case study for VCE

2. 2 Sentencing Advisory Council, 2015 1. Sentencing origin and range Photo: John French / Courtesy of The Age Chief Justice Marilyn Warren of the Supreme Court of Victoria What is the origin and range of sentences available to a judge in Victoria?

3. 3 Sentencing Advisory Council, 2015 Who is responsible for sentencing? In Australia, responsibility for sentencing is spread among three groups Parliament ~ makes the laws ~ Government ~ puts laws into operation ~ Courts ~ interpret the laws ~  Creates offences and decides what the maximum penalties will be  Makes the rules 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

4. 4 Sentencing Advisory Council, 2015 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

5. 5 Sentencing Advisory Council, 2015 Types of sentences  Imprisonment  Drug treatment order  Community correction order  Fine  Adjourned undertaking Most severe Least severe

6. 6 Sentencing Advisory Council, 2015 2. Sentencing theory What must a judge consider when deciding what sentence to impose? Source: Victorian Sentencing Manual, Judicial College of Victoria

7. 7 Sentencing Advisory Council, 2015 Purposes of sentencing These are the ONLY purposes for which sentences can be given Sentencing Act 1991 s 5(1) PURPOSES OF SENTENCING Community protection Deterrence Rehabilitation Denunciation Just punishment

8. 8 Sentencing Advisory Council, 2015 Principle of parsimony Sentencing Act 1991 ss 5(3)  (4), 5(6)  (7) 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

9. 9 Sentencing Advisory Council, 2015 Factors that must be considered Maximum penalty & current sentencing practices Type of offence & how serious Circumstances of the offender Victim Aggravating or mitigating factors 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 Act 1991 s 5(2) Factors that must be considered when sentencing

10. 10 Sentencing Advisory Council, 2015 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

11. 11 Sentencing Advisory Council, 2015 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

12. 12 Sentencing Advisory Council, 2015 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)

13. 13 Sentencing Advisory Council, 2015 3. The crime and the time What is murder? What is the maximum penalty? Photo: Trevor Poultney

14. 14 Sentencing Advisory Council, 2015 Murder A person who intentionally causes the death of another person is guilty of the indictable offence of murder. Maximum penalty Level 1 imprisonment (life) or imprisonment for such other term as is fixed by the court Crimes Act 1958 s 3

15. 15 Sentencing Advisory Council, 2015 Murder - People sentenced

16. 16 Sentencing Advisory Council, 2015 Length of imprisonment

17. 17 Sentencing Advisory Council, 2015 Baseline sentencing – current median

18. 18 Sentencing Advisory Council, 2015 Baseline sentencing – baseline sentence

19. 19 Sentencing Advisory Council, 2015 Average total effective sentence & non-parole period

20. 20 Sentencing Advisory Council, 2015 4. The case What are the facts of this case?

21. 21 Sentencing Advisory Council, 2015 The offender Tony Prior is a 22 year old man  he was 20 at the time of the offence He is described as placid and easygoing Over three to four years, Prior became morbidly obsessed about death and committing murder He has a verbal IQ of 71 and failed at school Since leaving school, he has been a successful cabinet maker He has been found guilty of one count of murder

22. 22 Sentencing Advisory Council, 2015 The crime 1 Tony Prior and his good friend Brook Tanner were drinking beer at a mutual friend’s place Prior produced a hunting knife that he had earlier stolen and told his friends that he needed it for protection Soon after, Prior and Tanner returned to their own flat In an unprovoked attack, Prior stabbed Tanner a number of times Tanner broke free and staggered out onto the road where passers-by administered first aid and called an ambulance Meanwhile Prior slashed his own throat and wrists and stabbed himself in the chest

23. 23 Sentencing Advisory Council, 2015 The crime 2 Prior then called 000, saying that he needed serious help and that he had tried killing a friend with a knife Prior showed no concern for the fate of his friend but concentrated on his own predicament Meanwhile, police and ambulance had arrived in response to the calls of passers-by Tanner died in hospital an hour later Prior was treated for his wounds in hospital and underwent psychiatric examinations

24. 24 Sentencing Advisory Council, 2015 Factors for consideration Prior pleaded guilty as soon as it was determined that he was not mentally impaired From the age of 15, Prior downloaded grotesque and depraved images and materials from the internet At all times, Prior frankly admitted responsibility for his actions and never blamed alcohol or drugs for his actions Despite his difficulties at school, Prior’s teachers found him polite and easy to deal with Prior is single and has a full-time job He has no previous convictions He has expressed remorse, albeit qualified, for his actions

25. 25 Sentencing Advisory Council, 2015 5. The sentence What sentence would you give? Photo: Department of Justice & Regulation

26. 26 Sentencing Advisory Council, 2015 You decide … 1.What sentence would you impose? 2.If imprisonment: –What would be the total effective sentence? –What would be the non-parole period?

27. 27 Sentencing Advisory Council, 2015 The maximum penalty A person who intentionally causes the death of another person is guilty of the indictable offence of murder, which carries the maximum penalty of: Level 1 imprisonment (life) or imprisonment for such other term as is fixed by the court Tony Prior is guilty of one count of murder and could receive a possible maximum of life imprisonment Crimes Act 1958 s 3

28. 28 Sentencing Advisory Council, 2015 What the trial judge decided Tony Prior’s case, Supreme Court Count 1 (Murder): 20 years’ imprisonment Non-parole period: 15 years Already served: the 671 days Prior had already spent in prison are to be reckoned as served under the sentence Trial judge’s comment ‘...it is important that the sentence that is imposed on you be sufficient to constitute an appropriate denunciation by this Court of your crime, and to properly uphold the sanctity of human life in our community. It is also necessary that the sentence which is imposed on you be of sufficient magnitude to deter other like-minded persons from resorting to lethal violence to satisfy their violent impulses. In addition, it is necessary to impose a sentence which will be sufficiently long to enable you, hopefully, to gain appropriate insight into your wrongdoing, and into the underlying causes which precipitated you into the events of that fateful night.’

29. 29 Sentencing Advisory Council, 2015 6. Conclusion Effective sentencing achieves a balance between the interests of society, the concerns of the victim, and the best interests of the offender The more information society has about crimes and the people involved in them, the more reasonable it is in its demands about sentencing Photo: Department of Justice & Regulation