Transcript You be the Judge Culpable driving case study

Culpable driving
causing death
VCE case study
Photo: John French / Courtesy of The Age
1. Sentencing origin and range
What is the origin
and range of
sentences
available to a
judge in Victoria?
Chief Justice Marilyn Warren of the
Supreme Court of Victoria
Sentencing Advisory Council, 2012
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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
Sentencing Advisory Council, 2012
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Where is sentencing law found?
• Sentencing Act 1991
• Children, Youth and Families Act 2005
• 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.
Sentencing Advisory Council, 2012
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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
 adjourned undertaking
Least severe
Sentencing Advisory Council, 2012
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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
Sentencing Advisory Council, 2012
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Purposes of sentencing
These are the ONLY
purposes for which
sentences might be
given
Fair
punishment
Protect the
community
Deterrence
PURPOSES OF
SENTENCING
Denunciate
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 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 Act 1991, ss 5(3), 5(4), 5(6), 5(7)
Sentencing Advisory Council, 2012
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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))
Sentencing Advisory Council, 2012
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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
• A victim impact statement 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
Sentencing Advisory Council, 2012
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How long is a sentence really?
Cumulative or concurrent?
• 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 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 ‘culpable
driving causing
death’ and what
penalties does it
bring?
Photo: Trevor Poultney
Sentencing Advisory Council, 2012
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Culpable driving causing death
• Any person who by the culpable driving of a
motor vehicle causes the death of another person
shall be guilty of an indictable offence
• Penalty: Level 3 imprisonment (20 years
maximum) or a level 3 fine or both
• Culpable driving includes causing the death of
another person while driving
– recklessly
– negligently
– under the influence of alcohol or drugs
Crimes Act 1958, s 318(1) and (2)
Sentencing Advisory Council, 2012
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People sentenced
30
28
Number of people
25
20
19
18
15
10
27
17
23
16
15
0
2005-06
2006-07
People sentenced
2007-08
2008-09
2009-10
Immediate custodial sentence
Sentencing Advisory Council, 2012
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Sentence types
30
Number of people
6
3
20
3
10
21
19
14
15
15
2008-09
2009-10
0
2005–06
2006–07
2007–08
Imprisonment
Youth justice centre order
Wholly/partially suspended
Other
Sentencing Advisory Council, 2012
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Total effective sentence & non-parole period
11
10
Non-parole period (years)
9
8
7
6
6
5
4
4
16
3
6
2
9
1
7
3
5
9
3
0
1
2
3
4
5
6
7
8
9
Total effective sentence (years)
10
11
12
13
14
Sentencing Advisory Council, 2012
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Average imprisonment length by gender
84
72
Months
60
74
65
64
63
60
48
36
24
12
72
72
60
72
0
2005–06
2006–07
2007–08
Male
2008-09
2009-10
Female
Sentencing Advisory Council, 2012
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4. The case
What are
the facts
of this
case?
Sentencing Advisory Council, 2012
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The offender
• Annie Owther is a 39 year old woman
• She has pleaded guilty to one count of culpable
driving causing death, one of negligently causing
serious injury and one of driving whilst
disqualified
• The maximum penalty for culpable driving is 20
years’ imprisonment and for negligently causing
serious injury, 5 years’ imprisonment
Sentencing Advisory Council, 2012
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The crime 1
• Annie spent most of New Year’s day with her
friend Bob Winkle
• She drank two cans of beer at home, six cans at
a hotel (they walked there and back) and then
two more at home
• At about 7pm Annie drove Bob to buy some
cigarettes
• Annie lost control of the car, which slid across the
road and collided with a car coming in the
opposite direction
• Bob was killed instantly
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The crime 2
• A man and his two children in the other car were
injured
• Annie suffered serious injuries and had no
recollection of the collision
• It was estimated that Annie’s car was travelling at
110 kph in a 70 kph zone
• Her blood alcohol content was 0.14 one hour
later
Sentencing Advisory Council, 2012
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Factors for consideration
• Annie has one prior conviction for driving over 0.05. She
has never been in prison
• She was unlicensed when this collision happened
• Annie is divorced with 2 children aged 11 and 8. Her
husband was violent and abused her
• Her parents were alcoholics and she had been sexually
abused by her father
• She started drinking at the age of 8 and was made a
ward of the state
• She expressed remorse and has sought help for her
drinking problem
• Annie pleaded guilty to the charges
Sentencing Advisory Council, 2012
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5. The sentence
What sentence
would you give?
Photo: Department of Justice
Sentencing Advisory Council, 2012
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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?
Sentencing Advisory Council, 2012
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The maximum penalty
Culpable driving
• Any person who by the culpable driving of a
motor vehicle causes the death of another person
shall be guilty of an indictable offence
• Penalty: Level 3 imprisonment and/or fine
(Maximum - 20 years and/or 2400 penalty units)
Crimes Act 1958, ss 318A(1) and (2)
Sentencing Advisory Council, 2012
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What the trial judge decided
Annie Owther’s case, County Court
• Count 1
6 years’ imprisonment
(Culpable driving)
• Count 2
(Negligently cause serious injury)
3 years’ imprisonment
(1 year cumulative)
• Total effective sentence
7 years’ imprisonment
• Non-parole period
4 years & 7 months
Sentencing Advisory Council, 2012
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Photo: Department of Justice
6. The appeal
What grounds
might there be
to appeal
against the
sentence?
Deputy Chief Magistrate Dan Muling sitting in
the Magistrates’ Court of Victoria
Sentencing Advisory Council, 2012
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Appeal
Defendant’s Appeal
• Manifestly excessive sentence
• Traumatic childhood, depression and alcoholism
not given sufficient weight as mitigating factors
• Insufficient weight given to the delay in charging
Annie
• Error in concluding no positive prospects for
rehabilitation
Sentencing Advisory Council, 2012
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What the Court of Appeal decided
•
•
•
•
Count 1
Count 2
Total effective sentence
Non-parole period
6 years imprisonment
3 years (1 year cumulative)
7 years’ imprisonment
4 years’ imprisonment
Decision
• Circumstances of offence and offender’s driving history call for punishment
which significantly reflects specific and general deterrence.
• Childhood abuse does not lessen legal or moral culpability, but there are
prospects of rehabilitation.
• Self-induced addiction to drugs and alcohol not a mitigating factor.
• Fact that she was driving whilst disqualified is an aggravating factor.
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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
Sentencing Advisory Council, 2012
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