arson case study for vels. 2 sentencing advisory council, 2015 1. what is sentencing? what laws...
TRANSCRIPT
Arson
Case study for VELS
2 Sentencing Advisory Council, 2015
1. What is sentencing?
What laws guidea judge when sentencing?
Pho
to: J
ohn
Fre
nch
/ Cou
rtes
y of
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Age
Chief Justice Marilyn Warren of the Supreme Court of Victoria
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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
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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
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Types of sentences
Imprisonment
Drug treatment order
Community correction order
Fine
Adjourned undertaking
Most severe
Least severe
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2. Sentencing theory
What must a judge consider when deciding what sentence to impose?
Source: Victorian Sentencing Manual, Judicial College of Victoria
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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
RehabilitationDenunciation
Just punishment
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Principle of parsimony
Sentencing Act 1991 ss 5(3) (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 fineor a community correction order, a fine should be imposed
provided it meets the purposes of sentencing
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Factors that must be considered
Sentencing Act 1991 s 5(2)
Aggravating ormitigating
factors
Maximum penalty& current sentencingpractices
Type of offence& how serious
Circumstancesof the offender
Victim
Relevant Actsof Parliament
& previouscourt decisions
Factors making the crime worse, intention, effects, method, motive,
weapons,role the offender
played
Prior offences,age, character,& mental state.
Alcohol, drug, orgambling addiction.
Personal crisis, guilty plea
Impact of crimeon victim (e.g.psychological
or physicaltrauma), materialor financial loss
Factors thatincrease orlessen the
seriousnessof the crime
Victim ImpactStatement
Factors that must be consideredwhen sentencing
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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
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How long is a sentence?
• 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
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Non-parole period
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)
A non-parole period:• is set by the court• is the part of the sentence that must be served in prison• must be set by the court for sentences of two years or
more• may or may not be set for sentences of one to two years• is not set if the sentence is less than one year
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3. The crime and the time
What is arson?
What is the maximum penalty?
Photo: Trevor Poultney
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Arson
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
Maximum penaltyThe maximum penalty for arson is Level 4 imprisonment (maximum 15 years’ imprisonment) and/or a fine of 1,800 penalty units
(The maximum penalty for each of the other counts is10 years’ imprisonment and/or 1,200 penalty units)
Crimes Act 1958 s 197(1) (6) & (7)
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Arson – people sentenced
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Arson – sentence types
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Age & gender of people sentenced
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Total effective sentence & non-parole period
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4. The case
What are the facts of this case?
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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, and one count of arson
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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 five or six 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
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The crime 2
• They went home to find a cigarette lighter and returned to light a fire
• The fire caught hold so quickly that 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
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Factors for consideration
• Henry pleaded guilty at the earliest opportunity and offered to give evidence against Caleb
• Henry 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
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5. The sentence
What sentence would you give?
Photo: Department of Justice & Regulation
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You decide …
What sentence would you give?
• If imprisonment, what would be the total effective sentence and non-parole period?
• If a community correction order, what would be the length of the order? What conditions?
• If a fine, what would be the amount of the fine?
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The maximum penalty
ArsonIntentionally and without lawful excuse destroying or damaging any property belonging to another by setting it on fire. Penalty: 15 years’ imprisonment and/or 1,800 penalty units
TheftDishonestly appropriating property belonging to another. Penalty: 10 years’ imprisonment and/or 1,200 penalty units
BurglaryEntering any building with intent to steal or damage anything. Penalty: 10 years’ imprisonment and/or 1,200 penalty units
Obtaining financial advantageDishonestly 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 1,200 penalty units
Henry Thomas is guilty of one count of burglary, two counts of theft, one count of dishonestly obtaining financial advantage, and one count of arson. He could receive:
• possible maximum imprisonment of 55 years
• possible maximum fine of 6,600 penalty units
Crimes Act 1958 ss 197, 74, 76, 82
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What the judge decided
Henry Thomas’s case, County Court • Count 1 (burglary): two years’ imprisonment
• Count 2 (theft): two years’ imprisonment
• Count 3 (theft): one month’s imprisonment
• Count 4 (financial advantage): 14 days’ imprisonment
• Count 5 (arson): four years’ imprisonment
• Cumulation: six months from count 1 to be served cumulatively with the four years imposed on count 5
Total effective sentence: four years and six months’ imprisonment
Non-parole period: two years and 10 months
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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