1. Intentionally causing serious injury Case study for VELS

2. 2 Sentencing Advisory Council, 2015 1. 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. 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. 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. 5 Sentencing Advisory Council, 2015 Types of sentences  Imprisonment  Drug treatment order  Community correction order  Fine  Adjourned undertaking Most severe Least severe

6. 6 Sentencing Advisory Council, 2015 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, 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. 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. 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. 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. 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. 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. 13 Sentencing Advisory Council, 2015 3. The crime and the time What is intentionally causing serious injury? What is the maximum penalty? Photo: Trevor Poultney

14. 14 Sentencing Advisory Council, 2015 Intentionally causing serious injury A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence Maximum penalty The maximum penalty for intentionally causing serious injury is Level 3 imprisonment (maximum 20 years’ imprisonment) and/or a fine of 2,400 penalty units) Crimes Act 1958 s 16

15. 15 Sentencing Advisory Council, 2015 What does ‘injury’ mean? Physical injury: unconsciousness, disfigurement, or substantial pain infection with a disease impairment of bodily function Harm to mental health: psychological harm does not include an emotional reaction such as distress, grief, fear, or anger, unless this results in psychological harm Crimes Act 1958 s 15

16. 16 Sentencing Advisory Council, 2015 What does ‘serious injury’ mean? Serious injury means— an injury (including the cumulative effect of more than one injury) that — –endangers life or –is substantial and protracted or the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm

17. 17 Sentencing Advisory Council, 2015 Intentionally causing serious injury – people sentenced

18. 18 Sentencing Advisory Council, 2015 Intentionally causing serious injury – sentence types

19. 19 Sentencing Advisory Council, 2015 Length of imprisonment

20. 20 Sentencing Advisory Council, 2015 Age & gender of people sentenced

21. 21 Sentencing Advisory Council, 2015 Total effective sentence & non-parole period

22. 22 Sentencing Advisory Council, 2015 4. The case What are the facts of this case?

23. 23 Sentencing Advisory Council, 2015 The offender Roger Willett is a 20 year old man He was 19 at the time of the offence He has been found guilty of one count of intentionally causing serious injury

24. 24 Sentencing Advisory Council, 2015 The crime 1 Roger Willett and two friends were drinking in a pub carpark after a party. As they drove out of the carpark, Roger (a passenger in the front seat of the car) commented to the others about the victim, Trent Beyer Trent Beyer had been drinking at the pub. He was now sitting at a bus stop drinking a beer stubby. Roger thought Trent was staring at them Trent ran after the car. He seemed as though he was about to throw a stubby. The car stopped. The three men got out Roger says he was threatened with the stubby and knocked it out of Trent’s hand There was an argument between the driver and Trent. Then Roger and Trent exchanged blows

25. 25 Sentencing Advisory Council, 2015 The crime 2 Roger grabbed Trent by the throat, punching him and causing him to fall backwards over a small fence Roger fell over the fence onto Trent and kicked him 10 times and punched him more than 20 times, even though Trent was unconscious after the first few punches. At first, Trent was kicking Roger back Roger’s friends pulled him off Trent and all three drove off, leaving Trent still unconscious inside the fence The three in the car did not offer the victim assistance. They talked about calling an ambulance but didn’t, and Trent was found by a passerby

26. 26 Sentencing Advisory Council, 2015 Factors for consideration Roger pleaded guilty Roger had been advised by his doctor against drinking because he was taking Tegretol to prevent epileptic seizures Roger knew he reacted badly to mixing alcohol and Tegretol Roger has six previous convictions for offences of dishonesty Roger is single and has a full-time job Roger was physically abused as a child and placed on a protection order Since the crime, Roger’s older sister has taken him ‘under her wing’ and provided some supervision

27. 27 Sentencing Advisory Council, 2015 Victim Impact Statement Trent was in hospital for 13 days He had severe facial injuries including a foot imprint on the bones of the skull, severe bruising and swelling over the face, a deep cut to his left eye, a complex facial fracture, and a fracture at the base of the skull Treatment was ongoing. He needed surgery and dental treatment after his initial stay in hospital He described suffering from fits of depression and nervousness at night He complained of balance problems and dizziness to such an extent that he had to quit his job as a window cleaner

28. 28 Sentencing Advisory Council, 2015 5. The sentence What sentence would you give? Photo: Department of Justice & Regulation

29. 29 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? If a fine, what would be the amount of the fine?

30. 30 Sentencing Advisory Council, 2015 The maximum penalty Intentionally causing serious injury A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence Penalty: Level 3 imprisonment and/or fine (maximum 20 years’ imprisonment and/or 2,400 penalty units) Roger is guilty of one count of intentionally causing serious injury and could receive: possible maximum imprisonment of 20 years possible maximum fine of 2,400 penalty units Crimes Act 1958 s 16

31. 31 Sentencing Advisory Council, 2015 What the judge decided Roger Willett’s case, County Court Count 1: 18 months’ imprisonment Non-parole period: 12 months Judge’s comments ‘… this sentencing task was difficult given the brutality of the attack by [the offender] for which he freely took responsibility, the seriousness of the offence and yet on the other hand [the offender’s] comparative youth, his lack of significant [prior offences], his genuine remorse and his very real chances of rehabilitation’

32. 32 Sentencing Advisory Council, 2015 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 & Regulation