1. VCE case study Armed Robbery

2. 2 Sentencing Advisory Council, 2012 1. Sentencing origin and range What is the origin and range of sentences available to a judge in Victoria? Photo: John French / Courtesy of The Age Chief Justice Marilyn Warren of the Supreme Court of Victoria

3. 3 Sentencing Advisory Council, 2012 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

4. 4 Sentencing Advisory Council, 2012 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.

5. 5 Sentencing Advisory Council, 2012 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

6. 6 Sentencing Advisory Council, 2012 2. Sentencing theory What must a judge consider when deciding what sentence to impose? Source: Victorian Sentencing Manual, Judicial College of Victoria

7. 7 Sentencing Advisory Council, 2012 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 Rehabilitation Denunciate Fair punishment

8. 8 Sentencing Advisory Council, 2012 Principle of parsimony Sentencing Act 1991, ss 5(3), 5(4), 5(6), 5(7) Judges should choose the most straight-forward solution when sentencing Parsimony ~ taking extreme care in using resources ~ 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

9. 9 Sentencing Advisory Council, 2012 Factors that must be considered Maximum penalty & current sentencing practice Type of offence & how serious Offender’s degree of responsibility & culpability Victim Aggravating or mitigating factors Relevant Acts of Parliament & statistical data 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 which increase or lessen the seriousness of the crime Victim impact statement Sentencing Act 1991, s 5(2AC(2)) Factors that must be considered when sentencing

10. 10 Sentencing Advisory Council, 2012 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

11. 11 Sentencing Advisory Council, 2012 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

12. 12 Sentencing Advisory Council, 2012 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

13. 13 Sentencing Advisory Council, 2012 3. The crime and the time What is ‘armed robbery’ and what penalties does it bring?

14. 14 Sentencing Advisory Council, 2012 Armed robbery 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. A person guilty of armed robbery is guilty of an indictable offence and is liable to level 2 imprisonment (25 years’ maximum). Crimes Act 1958, s 75A(1) and (2)

15. 15 Sentencing Advisory Council, 2012 Armed robbery - People sentenced

16. 16 Sentencing Advisory Council, 2012 Armed robbery – Sentence types

17. 17 Sentencing Advisory Council, 2012 People sentenced by age and gender

18. 18 Sentencing Advisory Council, 2012 Total effective sentence & non-parole period

19. 19 Sentencing Advisory Council, 2012 What are the facts of this case? 4. The case

20. 20 Sentencing Advisory Council, 2012 The offender Sam Kerr is a 30-year-old man He has been found guilty of one count of armed robbery and two of attempted armed robbery, after pleading guilty to all three counts The maximum penalty for armed robbery is 25 years’ imprisonment The maximum penalty for attempted armed robbery is 20 years’ imprisonment

21. 21 Sentencing Advisory Council, 2012 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

22. 22 Sentencing Advisory Council, 2012 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

23. 23 Sentencing Advisory Council, 2012 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

24. 24 Sentencing Advisory Council, 2012 5. The sentence What sentence would you give? Photo: Department of Justice

25. 25 Sentencing Advisory Council, 2012 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?

26. 26 Sentencing Advisory Council, 2012 The maximum penalty A person found guilty of armed robbery is liable to level 2 imprisonment and/or fine. (Maximum - 25 years and/or 3000 penalty units) A person guilty of attempted armed robbery is liable to level 3 imprisonment and/or fine. (Maximum - 20 years and/or 2400 penalty units) Crimes Act 1958, ss 75A(2) and 321P

27. 27 Sentencing Advisory Council, 2012 What the trial judge decided Sam Kerr’s case, County Court Count 12 years’ imprisonment Count 21 year imprisonment Count 31 year imprisonment Cumulation6 months of Counts 2 and 3 served cumulatively on each other and on Count 1 TOTAL3 years’ imprisonment Non-parole period15 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.

28. 28 Sentencing Advisory Council, 2012 6. The appeal What grounds might there be to appeal against the sentence? Photo: Department of Justice Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria

29. 29 Sentencing Advisory Council, 2012 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. 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.

30. 30 Sentencing Advisory Council, 2012 What the Court of Appeal decided The Queen v Kerr, Supreme Court, Court of Appeal Count 118 months’ imprisonment Count 26 months’ imprisonment Count 39 months’ imprisonment CumulationSentence on Count 2 to be served concurrently, and 3 months of Count 3 served cumulatively with Count 1 TOTAL21 months’ imprisonment Non-parole period10 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.

31. 31 Sentencing Advisory Council, 2012 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