Transcript You be the Judge Armed robbery case study
Armed Robbery
VCE case study
1. Sentencing origin and range
Chief Justice Marilyn Warren of the Supreme Court of Victoria
What is the origin and range of sentences available to a judge in Victoria?
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Who is responsible for sentencing?
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 In Australia, responsibility for sentencing is spread between three groups
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 are on parole – supervises offenders who Sentencing Advisory Council, 2012
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Where is sentencing law found?
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Sentencing Act 1991
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Children, Youth and Families Act 2005
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Common law – previous court judgements
•
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
(max 2 years)
suspended sentence of imprisonment
(max 3 years – higher courts; 2 years – Magistrates’ Court)
community correction order
fine Least severe
adjourned undertaking
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2. Sentencing theory
Source: Victorian Sentencing Manual, Judicial College of Victoria
What must a judge consider when deciding what sentence to impose?
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Purposes of sentencing
These are the ONLY purposes for which sentences might be given
Fair punishment Protect the community
PURPOSES OF SENTENCING
Deterrence Denunciate Rehabilitation Sentencing Advisory Council, 2012
7 Sentencing Act 1991, s 5(1)
Principle of parsimony
Parsimony
~ taking extreme care in using resources ~ Judges should choose the most straight-forward 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 Advisory Council, 2012
8 Sentencing Act 1991, ss 5(3), 5(4), 5(6), 5(7)
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 Factors making the crime worse, intention, effects, method, motive, weapons, role the offender played Offender’s degree of responsibility & culpability Prior offences, age, gender, race, culture, character, mental state, alcohol, drugs, gambling, personal crisis, guilty plea Victim Impact of crime on victim (e.g.
psychological or physical trauma), material or financial loss
Sentencing Act 1991, s 5(2AC(2))
Aggravating or mitigating factors Factors which increase or lessen the seriousness of the crime
Victim impact statement
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Victim impact statements
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If a court finds a person guilty, a victim of the offence may make a victim impact statement
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A victim impact statement contains details of any injury, loss or damage suffered by the victim as a direct result of the offence
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A person who has made a VIS can request that it be read aloud during the sentencing hearing Sentencing Advisory Council, 2012
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How long is a sentence really?
Cumulative or concurrent?
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Cumulative
prison 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 •
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
sentence for all crimes once they have been made cumulative or concurrent (TES) is the total Sentencing Advisory Council, 2012
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Non-parole period
•
Non-parole period
is set by the court and is the part of the sentence the offender has to serve in prison before being eligible for parole • • • A non-parole period must be fixed for sentences of 2 years or more A non-parole period may be fixed for sentences of 1 –2 years • A non-parole period cannot be fixed for sentences of 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 Sentencing Advisory Council, 2012
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3. The crime and the time What is ‘armed robbery’ and what penalties does it bring?
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Armed robbery
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A person is guilty of armed robbery if he or she commits any robbery and at the time has with him or her a firearm, imitation firearm, offensive weapon, explosive or imitation explosive.
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A person guilty of armed robbery is guilty of an indictable offence and is liable to level 2 imprisonment (25 years’ maximum).
Sentencing Advisory Council, 2012
14 Crimes Act 1958, s 75A(1) and (2)
Armed robbery - People sentenced
300 200
211 197 176 183 168
100 0
150 137
2004-05 2005-06 People sentenced
149 133 133
2006-07 2007-08 2008-09 Immediate custodial sentence Sentencing Advisory Council, 2012
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Armed robbery – Sentence types
300 200 100
25 31 115
0 2004-05
16 25 110 24 21 124 19 29 109 13 21 111
2005-06 2006-07 2007-08 2008-09 Imprisonment Youth justice centre order Wholly/partially suspended Other Community-based order Sentencing Advisory Council, 2012
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People sentenced by age and gender
300
261
Male Female 200 100 0
11 1
17
187 139 13
18-19
100 19 24 11 81 11 72 5
20-24 25-29
Age (years)
30-34 35-39 40+ Sentencing Advisory Council, 2012
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Total effective sentence & non-parole period
9 8 3 2 1 5 4 7 6 <1
13 33 89 29 46 92 5 17 62 10 5 41 17 31 16 11 11 6 5
0 1 2 3 4 5 6 7
Total effective sentence (years)
8 9 10 11 Sentencing Advisory Council, 2012
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4. The case What are the facts of this case?
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The offender
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Sam Kerr is a 30-year-old man
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He has been found guilty of one count of armed robbery and two of attempted armed robbery, after pleading guilty to all three counts
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The maximum penalty for armed robbery is 25 years’ imprisonment
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The maximum penalty for attempted armed robbery is 20 years’ imprisonment Sentencing Advisory Council, 2012
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The crime 1
• In the early hours of Saturday morning, Sam walked into a service station with a sharp piece of fence paling • He slammed the paling on the counter and demanded money • The attendant gave him $120, and Sam ran out of the store Sentencing Advisory Council, 2012
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The crime 2
• The next day, Sam walked into another service station at about 5.00pm • He went up to the counter holding a sharp object and said, ‘
I'll give you ten seconds to give me $250’
• The attendant locked himself in the console and threatened to call the police. Sam left the store empty handed • At about 9.00pm that night he tried the same thing in another service station, but again left empty handed when a customer walked in Sentencing Advisory Council, 2012
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Factors for consideration
• • • • Sam is 30 years old and he has no prior convictions He pleaded guilty to all offences • The first attempted armed robbery was not reported to police. Sam was only charged with this offence because he told the police what had happened • He had recently been retrenched from his job and needed $250 to pay his rent Sam has a congenital disorder which means he only has 5% vision in one of his eyes Because of the disorder, he was bullied a lot in school, and ended up leaving after year 9 Sentencing Advisory Council, 2012
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5. The sentence What sentence would you give?
Photo: Department of Justice
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You decide …
1.
What sentence would you impose for each individual count?
2.
What total sentence would you impose?
3.
If imprisonment: – – What would be the head sentence?
What would be the non-parole period?
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The maximum penalty
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A person found guilty of armed robbery is liable to level 2 imprisonment and/or fine. (Maximum - 25 years and/or 3000 penalty units)
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A person guilty of attempted armed robbery is liable to level 3 imprisonment and/or fine. (Maximum - 20 years and/or 2400 penalty units) Sentencing Advisory Council, 2012
26 Crimes Act 1958, ss 75A(2) and 321P
What the trial judge decided
Sam Kerr’s case, County Court • Count 1 2 years’ imprisonment • • • • • Count 2 Count 3 Cumulation TOTAL 1 year imprisonment 1 year imprisonment 6 months of Counts 2 and 3 served cumulatively on each other and on Count 1 3 years’ imprisonment Non-parole period 15 months imprisonment Trial judge’s comment
[I have reached the sentence by] weighing the competing sentencing considerations and, in particular, focusing on the need for deterrence, punishment and denunciation, but ameliorating the sentence to take into account your good prospects of rehabilitation and prior good character.
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6. The appeal
Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria
What grounds might there be to appeal against the sentence?
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Appeal
The defence appealed the sentence on the ground that the sentencing judge: •
had not made any allowance for the fact that the offending in Count 2 was voluntarily disclosed by Sam to the police. Otherwise this offence would have gone unreported.
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The defence suggested that Sam’s actions were a significant mitigatory consideration which should have led to a lesser sentence on Count 2 compared to Count 3.
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Sentencing Advisory Council, 2012
What the Court of Appeal decided
• • • •
The Queen v Kerr, Supreme Court, Court of Appeal
Count 1 Count 2 Count 3 18 months’ imprisonment 6 months’ imprisonment 9 months’ imprisonment Cumulation • • TOTAL Non-parole period Sentence on Count 2 to be served concurrently, and 3 months of Count 3 served cumulatively with Count 1 21 months’ imprisonment 10 months’ imprisonment
Appeal judge’s comment
Armed robbery is, indeed, a serious crime and will generally warrant a significant period of imprisonment; however the sentence imposed must be proportionate to the gravity of the particular crime considered in the light of the objective circumstances. In this case, each of the offences clearly falls into the lowest range of armed robbery and attempted armed robbery offences. The mitigatory considerations are powerful, particularly that of the appellant’s previous good character, the prospects of rehabilitation and clear remorse for his conduct.
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7. 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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