Transcript You be the Judge VELS Causing Injury Notes

Causing serious injury
intentionally
VELS Level 6
1. What is sentencing?
Photo: John French / Courtesy of The Age
What laws guide a
judge when
sentencing?
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 between
three groups
Parliament
~ makes 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
Courts
~ interpret the laws ~
 Apply the law within the
framework set up by
parliament
 Set specific sentences for
individual offenders
Government
~ puts laws into operation ~
 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, 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.
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Types of sentences
Most severe
 imprisonment
 drug treatment order
 suspended sentence
 community correction order
 fine
 adjourned undertaking
Least severe
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2. Sentencing theory
What must a
judge consider
when deciding
what sentence
to impose?
Image source: Victorian Sentencing Manual, Judicial College of Victoria
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Purposes of sentencing
These are the ONLY
purposes for which
sentences might be given
Fair
punishment
Community
protection
Deterrence
PURPOSES OF
SENTENCING
Denunciation
Sentencing Act 1991, s 5(1)
Rehabilitation
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Principle of parsimony
Parsimony
~ taking extreme care in using resources ~
Judges should choose
the most straightforward
solution when sentencing
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)
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Factors that must be considered
Factors that must be considered when
sentencing
Maximum penalty
& current
sentencing
practice
Relevant Acts
of Parliament
& statistical
data
Type of offence
& how serious
Offender’s
degree of
responsibility
& culpability
Victim
Aggravating or
mitigating
factors
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
Sentencing Act 1991, s 5(2AC(2))
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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
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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
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Non-parole period
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
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3. The crime and the time
What is causing
serious injury
intentionally?
What is the
maximum penalty?
Photo: Trevor Poultney
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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
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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
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CSII – people sentenced
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CSII – sentence types
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CSII – age and 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
• 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
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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
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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
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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
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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
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5. The sentence
What sentence
would you give?
Photo: Department of Justice
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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?
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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
Roger, guilty of one count of
intentionally causing serious
injury, could receive:
• Penalty: Level 3 imprisonment
and/or fine
(maximum 20 years’
imprisonment and/or 2400
penalty units)
• possible maximum fine of 2400
penalty units
Crimes Act 1958, s 16
• possible maximum imprisonment
of 20 years
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What the trial judge decided
Roger Willett’s case, County Court
• Count 1
18 months’ imprisonment
• Non-parole period
12 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.’
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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
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