1. VELS Level 6 Causing serious injury intentionally

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? Image 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 might 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 3. The crime and the time What is causing serious injury intentionally? What is the maximum penalty? Photo: Trevor Poultney

14. 14 Sentencing Advisory Council, 2012 Causing serious injury intentionally Maximum penalty A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence Penalty: Level 3 imprisonment (20 years maximum) Crimes Act 1958, s 16

15. 15 Sentencing Advisory Council, 2012 What does ‘injury’ mean? ‘injury’ includes: – unconsciousness – hysteria – pain – any substantial impairment of bodily function ‘serious injury’ includes a combination of injuries Crimes Act 1958, s 15

16. 16 Sentencing Advisory Council, 2012 CSII – people sentenced

17. 17 Sentencing Advisory Council, 2012 CSII – sentence types

18. 18 Sentencing Advisory Council, 2012 CSII – age and gender of people sentenced

19. 19 Sentencing Advisory Council, 2012 Total effective sentence & non-parole period

20. 20 Sentencing Advisory Council, 2012 4. The case What are the facts of this case?

21. 21 Sentencing Advisory Council, 2012 The offender Roger Willett is a 20 year old man He was 19 at the time of the offence He has been found guilty of one count of intentionally causing serious injury The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment

22. 22 Sentencing Advisory Council, 2012 The crime 1 Roger Willett and two friends were drinking in a pub carpark after a party. As they drove out of the carpark, Roger (a passenger in the front seat of the car) commented to the others about the victim, Trent Beyer Trent Beyer had been drinking at the pub. He was now sitting at a bus stop drinking a beer stubby. Roger thought Trent was staring at them Trent ran after the car. He seemed as though he was about to throw a stubby. The car stopped. The three men got out Roger says he was threatened with the stubby and knocked it out of Trent’s hand There was an argument between the driver and Trent. Then Roger and Trent exchanged blows

23. 23 Sentencing Advisory Council, 2012 The crime 2 Roger grabbed Trent by the throat, punching him and causing him to fall backwards over a small fence Roger fell over the fence onto Trent and kicked him 10 times and punched him more than 20 times, even though Trent was unconscious after the first few punches. At first, Trent was kicking Roger back Roger’s friends pulled him off Trent and all three drove off, leaving Trent still unconscious inside the fence The three in the car did not offer the victim assistance. They talked about calling an ambulance but didn’t, and Trent was found by a passerby

24. 24 Sentencing Advisory Council, 2012 Factors for consideration Roger pleaded guilty Roger had been advised by his doctor against drinking because he was taking Tegretol to prevent epileptic seizures Roger knew he reacted badly to mixing alcohol and Tegretol Roger has six previous convictions for offences of dishonesty Roger is single and has a full-time job Roger was physically abused as a child and placed on a protection order Since the crime Roger’s older sister has taken him ‘under her wing’ and provided some supervision

25. 25 Sentencing Advisory Council, 2012 Victim Impact Statement Trent was in hospital for 13 days He had severe facial injuries including a foot imprint on the bones of the skull, severe bruising and swelling over the face, a deep cut to his left eye, a complex facial fracture and a fracture at the base of the skull Treatment was ongoing. He needed surgery and dental treatment after his initial stay in hospital He described suffering from fits of depression and nervousness at night He complained of balance problems and dizziness to such an extent that he had to quit his job as a window cleaner

26. 26 Sentencing Advisory Council, 2012 5. The sentence What sentence would you give? Photo: Department of Justice

27. 27 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?

28. 28 Sentencing Advisory Council, 2012 The maximum penalty Causing serious injury intentionally A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence Penalty: Level 3 imprisonment and/or fine (maximum 20 years’ imprisonment and/or 2400 penalty units) Roger, guilty of one count of intentionally causing serious injury, could receive: possible maximum imprisonment of 20 years possible maximum fine of 2400 penalty units Crimes Act 1958, s 16

29. 29 Sentencing Advisory Council, 2012 What the trial judge decided Roger Willett’s case, County Court Count 1 18 months’ imprisonment Non-parole period12 months Judge’s comments ‘… this sentencing task was difficult given the brutality of the attack by [the offender] for which he freely took responsibility, the seriousness of the offence and yet on the other hand [the offender’s] comparative youth, his lack of significant [prior offences], his genuine remorse and his very real chances of rehabilitation.’

30. 30 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