VCE Legal Studies Murder. 2 Sentencing Advisory Council, 2012 1. What is sentencing? What laws guide...

VCE Legal Studies

Murder

2 Sentencing Advisory Council, 2012

1. What is sentencing?

What laws guide a judge when sentencing?

What types of sentences can be given in Victoria?

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to: J

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Chief Justice Marilyn Warren of the Supreme Court of Victoria


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


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.


Types of sentences

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

Most severe

Least severe


2. Sentencing theory

What must a judge consider when deciding what sentence to impose?

Source: Victorian Sentencing Manual, Judicial College of Victoria


Purposes of sentencing

These are the ONLY purposes for which sentences might be given

Sentencing Act 1991, s 5(1)

PURPOSES OF SENTENCING

Protect the community Deterrence

RehabilitationDenunciate

Fair punishment


Principle of parsimony

Sentencing Act 1991, ss 5(3), 5(4), 5(6), 5(7)

Judges should choosethe most straight-forwardsolution when sentencing

Parsimony~ taking extreme care in using resources ~

If a choice of punishmentexists 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


Factors that must be considered

Maximum penalty& current sentencing

practice

Type of offence& how serious

Offender’sdegree of

responsibility& culpability

VictimAggravating or

mitigatingfactors

Relevant Actsof Parliament& statistical

data

Factors making the crime worse, intention, effects, method, motive,

weapons,role the offender

played

Prior offences,age, gender,race, culture,

character, mentalstate, alcohol,

drugs, gambling,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

Sentencing Act 1991, s 5(2AC(2))

Factors that must be considered when sentencing


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


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


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


3. The crime and the time

What is ‘murder' and what is the maximum

penalty?

Photo: Trevor Poultney


Murder

Maximum penalty

• A person who intentionally causes the death of another person is guilty of the indictable offence of murder

• Level 1 imprisonment (life)

• or imprisonment for such other term as is fixed by the court

Crimes Act 1958, s 3


Murder - People sentenced

37

23

19

25 251

1

0 1

1

0

20

40

2005-06 2006-07 2007-08 2008-09 2009-10

Nu

mb

er o

f p

eop

le

Male (n = 129) Female (n = 4)


Total effective sentence & non-parole period

19y 1m19y 5m

20y

19y 2m 22y 3m

15y 6m15y

16y 2m

14y 6m 18y 3m

0

48

96

144

192

240

288

2005–06 2006–07 2007–08 2008-09 2009-10

Mo

nth

s

Average TES length Average non-parole period


4. The case

What are the facts of this case?


The offender

• Tony Prior is a 22-year old man and was 20 at the time of the offence

• He is described as placid and easygoing

• Over 3-4 years Prior became morbidly obsessed about death and committing murder

• He has a verbal IQ of 71 and failed at school

• Since leaving school he has been a successful cabinet maker

• He has been found guilty of one count of murder


The crime 1

• Tony Prior and his good friend Brook Tanner were drinking beer at a mutual friend’s place

• Prior produced a hunting knife he had earlier stolen and told his friends that he needed it for protection

• Soon after Prior and Tanner returned to their own flat

• In an unprovoked attack, Prior stabbed Tanner a number of times

• Tanner broke free and staggered out onto the road where passers-by administered first aid and called an ambulance

• Meanwhile Prior slashed his own throat and wrists and stabbed himself in the chest


The crime 2

• He then called 000, saying that he needed serious help and that he had tried killing a friend with a knife

• Prior showed no concern for the fate of his friend but concentrated on his own predicament

• Meanwhile police and ambulance had arrived in response to the calls of passers-by

• Tanner died in hospital an hour later

• Prior was treated for his wounds in hospital and underwent psychiatric examinations


Factors for consideration

• Prior pleaded guilty as soon as it was determined that he was not mentally impaired

• From the age of 15 Prior downloaded grotesque and depraved images and materials from the internet

• At all times Prior frankly admitted responsibility for his actions and never blamed alcohol and drugs for his actions

• Despite his difficulties at school, Prior’s teachers found him polite and easy to deal with

• Prior is single and has a full-time job

• He has no previous convictions

• He has expressed remorse, albeit qualified, for his actions


5. The sentence

What sentence would you give?

Photo: Department of Justice


You decide …

What sentence would you give?• If imprisonment, what would be the head sentence and

non-parole period?

• If a partially suspended sentence, what would be the length of sentence and operational period?

• If a totally suspended sentence, what would be the length of sentence and operational period?


The maximum penalty

MurderA person who intentionally causes the death of another person is guilty of the indictable offence of murder, which carries the maximum penalty of:

• Level 1 imprisonment (life)

• or imprisonment for such other term as is fixed by the court

Tony Prior, guilty of one count of murder, could receive:

• a possible maximum of imprisonment for life

Crimes Act 1958, s 3


What the trial judge decided

Tony Prior’s case, Supreme Court • Count: Murder 20 years’ imprisonment

• Non-parole period 15 years

• Already served The 671 days Prior had already spent in prison are

to be reckoned as served under the sentence

Trial judge’s comment‘...it is important that the sentence that is imposed on you be sufficient to constitute an appropriate denunciation by this Court of your crime, and to properly uphold the sanctity of human life in our community. It is also necessary that the sentence which is imposed on you be of sufficient magnitude to deter other like-minded persons from resorting to lethal violence to satisfy their violent impulses. In addition, it is necessary to impose a sentence which will be sufficiently long to enable you, hopefully, to gain appropriate insight into your wrongdoing, and into the underlying causes which precipitated you into the events of that fateful night.’


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

VCE Legal Studies Murder. 2 Sentencing Advisory Council, 2012 1. What is sentencing? What laws guide...

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