1. VELS Level 6 Arson

2. 2 Sentencing Advisory Council, 2012 1. What is sentencing? What laws guide a judge when sentencing? Photo: John French / Courtesy of The Age Chief Justice Marilyn Warren of the Supreme Court of Victoria

3. 3 Sentencing Advisory Council, 2012 Who is responsible for sentencing? In Australia, responsibility for sentencing is spread between three groups Parliament ~ makes the laws ~ Government ~ puts laws into operation ~ Courts ~ interpret the laws ~  Creates offences and decides what the maximum penalties will be  Makes the rules the courts must apply to cases  Sets up punishments for judges and magistrates to use  Apply the law within the framework set up by parliament  Set specific sentences for individual offenders  Correctional authorities (e.g. prisons) – control offenders after sentencing  Adult Parole Board – supervises offenders who are on parole

4. 4 Sentencing Advisory Council, 2012 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, e.g.: – Crimes Act 1958 deals with a range of crimes including injury offences – Road Safety Act 1986 deals with offences related to driving under the influence of drugs or alcohol.

5. 5 Sentencing Advisory Council, 2012 Types of sentences  imprisonment  drug treatment order  suspended sentence  community correction order  fine  adjourned undertaking Most severe Least severe

6. 6 Sentencing Advisory Council, 2012 2. Sentencing theory What must a judge consider when deciding what sentence to impose? Source: Victorian Sentencing Manual, Judicial College of Victoria

7. 7 Sentencing Advisory Council, 2012 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 Fair punishment

8. 8 Sentencing Advisory Council, 2012 Principle of parsimony Judges should choose the most straightforward solution when sentencing Parsimony ~ taking extreme care in using resources ~ If a choice of punishment exists a judge should take care to choose the least severe option that will achieve the purposes of sentencing Example If there is a choice between imposing a fine or a community correction order, a fine should be imposed Sentencing Act 1991, ss 5(3), 5(4), 5(5), 5(6), 5(7)

9. 9 Sentencing Advisory Council, 2012 Factors that must be considered Sentencing Act 1991, s 5(2AC(2)) Maximum penalty & current sentencing practice Type of offence & how serious Offender’s degree of responsibility & culpability Victim Aggravating or mitigating factors Relevant Acts of Parliament & statistical data Factors making the crime worse, intention, effects, method, motive, weapons, role the offender played Prior offences, age, gender, race, culture, character, mental state, alcohol, drugs, gambling, 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 Factors that must be considered when sentencing

10. 10 Sentencing Advisory Council, 2012 Victim Impact Statements When sentencing an offender, courts must consider the impact of the crime on any victim 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, 2012 How long is a sentence? Cumulative sentences are sentences for two or more crimes that run one after the other, e.g. 2 x 5-year prison sentences served cumulatively = 10 years in prison Concurrent sentences are sentences for two or more crimes that run at the same time, e.g. 2 x 5-year prison sentences served concurrently = 5 years in prison The head sentence is the sentence given for each crime before a non-parole period is set The total effective sentence (TES) is the total sentence for all crimes once they have been made cumulative or concurrent

12. 12 Sentencing Advisory Council, 2012 Non-parole period is set by the court is the part of the sentence the offender must serve in prison before being eligible for parole must be fixed for sentences of 2 years or more may be fixed for sentences of 1–2 years Is not given if the sentence is less than 1 year Parole is the release of a prisoner before the end of a sentence, subject to certain conditions (e.g. regular reporting to parole officer), to help him or her settle back into the community

13. 13 Sentencing Advisory Council, 2012 13 Sentencing Advisory Council, 2012 13 Sentencing Advisory Council, 2012 3. The crime and the time What is arson? What is the maximum penalty? Photo: Trevor Poultney

14. 14 Sentencing Advisory Council, 2012 Arson Maximum penalty A person who intentionally and without lawful excuse destroys or damages any property belonging to another by setting it on fire is guilty of an indictable offence Penalty: Level 4 imprisonment (15 years maximum) and/or fine of 1800 penalty units Crimes Act 1958, s 197(1) (6) & (7)

15. 15 Sentencing Advisory Council, 2012 Arson – people sentenced

16. 16 Sentencing Advisory Council, 2012 Arson – sentence types

17. 17 Sentencing Advisory Council, 2012 Arson – imprisonment by age

18. 18 Sentencing Advisory Council, 2012 Total effective sentence & non-parole period

19. 19 Sentencing Advisory Council, 2012 19 Sentencing Advisory Council, 2012 4. The case What are the facts of this case?

20. 20 Sentencing Advisory Council, 2012 The offender Henry Thomas is a 21 year old man He was 19 at the time of the offence He has been found guilty of one count of burglary, two counts of theft, one count of dishonestly obtaining financial advantage, one count of arson The maximum penalty for each of the first 4 counts is 10 years’ imprisonment and/or 1800 penalty units The maximum penalty for arson is 15 years’ imprisonment and/or 1800 penalty units

21. 21 Sentencing Advisory Council, 2012 The crime 1 Henry Thomas broke into a factory, looking for something to steal Deciding he needed help to steal computers from the factory he enlisted the help of his roommate Caleb Isaacs, offering to share the proceeds with him After 5 or 6 trips to the factory to remove computers and other equipment, the two returned a final time Henry made phone calls to expensive sex lines from the factory phone while Caleb trashed an office Worried that they might have left traceable evidence behind, Henry suggested they burn the place down Caleb spread shredded paper throughout the offices

22. 22 Sentencing Advisory Council, 2012 The crime 2 They went home to find a cigarette lighter and returned to light a fire The fire caught hold so quickly the men were forced to escape through a skylight Henry and Caleb enjoyed watching the fire from a distance, waiting for the fire trucks to arrive

23. 23 Sentencing Advisory Council, 2012 Factors for consideration Henry pleaded guilty at the earliest opportunity and offered to give evidence against Caleb He has 38 previous convictions from five court appearances but no previous custodial sentences At the time of the present offences, he was subject to both a community-based order and a good behaviour bond Henry is single and has a full-time job Henry has a troubled relationship with his family and lives in welfare-provided housing Henry has an IQ that puts him in the top 10% of society

24. 24 Sentencing Advisory Council, 2012 24 Sentencing Advisory Council, 2012 5. The sentence What sentence would you give? Photo: Department of Justice

25. 25 Sentencing Advisory Council, 2012 You decide … What sentence would you give? If imprisonment, what would be the head sentence and non-parole period? If a community correction order, what would be the length of the order? If a fine, what would be the amount of the fine?

26. 26 Sentencing Advisory Council, 2012 The maximum penalty Arson Intentionally and without lawful excuse destroying or damaging any property belonging to another by setting it on fire. Penalty: 15 years’ imprisonment and/or 1800 penalty units Theft Dishonestly appropriating property belonging to another. Penalty: 10 years’ imprisonment and/or 1200 penalty units Burglary Entering any building with intent to steal or damage anything. Penalty: 10 years’ imprisonment and/or 1200 penalty units Obtaining financial advantage Dishonestly obtaining financial advantage by deception [causing a machine to make a response that the person operating it is not authorised to cause it to make]. Penalty: 10 years’ imprisonment and/or 1200 penalty units Henry Thomas, guilty of one count of burglary, two counts of theft, one count of dishonestly obtaining financial advantage, one count of arson, could receive: possible maximum imprisonment of 55 years possible maximum fine of 6,600 penalty units Crimes Act 1958, ss 197, 74, 76, 82

27. 27 Sentencing Advisory Council, 2012 What the judge decided Henry Thomas’s case, County Court Count 1 (burglary)2 years’ imprisonment Count 2 (theft)2 years’ imprisonment Count 3 (theft)1 month’s imprisonment Count 4 (fin. advantage)14 days’ imprisonment Count 5 (arson)4 years’ imprisonment Cumulation6 months from count 1 to be served cumulatively with the 4 years imposed on count 5 Total effective sentence4 years 6 months imprisonment Non-parole period 2 years and 10 months

28. 28 Sentencing Advisory Council, 2012 28 Sentencing Advisory Council, 2012 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