Arson Case study for VELS

2 Sentencing Advisory Council, What is sentencing? What laws guide a judge when sentencing? Photo: John French / Courtesy of The Age Chief Justice Marilyn Warren of the Supreme Court of Victoria

3 Sentencing Advisory Council, 2015 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

4 Sentencing Advisory Council, 2015 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

5 Sentencing Advisory Council, 2015 Types of sentences  Imprisonment  Drug treatment order  Community correction order  Fine  Adjourned undertaking Most severe Least severe

6 Sentencing Advisory Council, Sentencing theory What must a judge consider when deciding what sentence to impose? Source: Victorian Sentencing Manual, Judicial College of Victoria

7 Sentencing Advisory Council, 2015 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 Rehabilitation Denunciation Just punishment

8 Sentencing Advisory Council, 2015 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 fine or a community correction order, a fine should be imposed provided it meets the purposes of sentencing

9 Sentencing Advisory Council, 2015 Factors that must be considered Sentencing Act 1991 s 5(2) Aggravating or mitigating factors Maximum penalty & current sentencing practices Type of offence & how serious Circumstances of the offender Victim Relevant Acts of Parliament & previous court decisions Factors making the crime worse, intention, effects, method, motive, weapons, role the offender played Prior offences, age, character, & mental state. Alcohol, drug, or gambling addiction. 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 Factors that must be considered when sentencing

10 Sentencing Advisory Council, 2015 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

11 Sentencing Advisory Council, 2015 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

12 Sentencing Advisory Council, 2015 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

13 Sentencing Advisory Council, The crime and the time What is arson? What is the maximum penalty? Photo: Trevor Poultney

14 Sentencing Advisory Council, 2015 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 penalty The 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 is 10 years’ imprisonment and/or 1,200 penalty units) Crimes Act 1958 s 197(1) (6) & (7)

15 Sentencing Advisory Council, 2015 Arson – people sentenced

16 Sentencing Advisory Council, 2015 Arson – sentence types

17 Sentencing Advisory Council, 2015 Age & gender of people sentenced

18 Sentencing Advisory Council, 2015 Total effective sentence & non-parole period

19 Sentencing Advisory Council, The case What are the facts of this case?

20 Sentencing Advisory Council, 2015 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

21 Sentencing Advisory Council, 2015 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

22 Sentencing Advisory Council, 2015 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

23 Sentencing Advisory Council, 2015 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

24 Sentencing Advisory Council, The sentence What sentence would you give? Photo: Department of Justice & Regulation

25 Sentencing Advisory Council, 2015 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?

26 Sentencing Advisory Council, 2015 The maximum penalty Arson Intentionally 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 Theft Dishonestly appropriating property belonging to another. Penalty: 10 years’ imprisonment and/or 1,200 penalty units Burglary Entering any building with intent to steal or damage anything. Penalty: 10 years’ imprisonment and/or 1,200 penalty units Obtaining financial advantage Dishonestly 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

27 Sentencing Advisory Council, 2015 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

28 Sentencing Advisory Council, 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