1. Armed robbery Case study for VCE

2. 2 Sentencing Advisory Council, 2015 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, 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)  (4), 5(6)  (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 Maximum penalty & current sentencing practices Type of offence & how serious Circumstances of the offender Victim Aggravating or mitigating factors 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 Sentencing Act 1991 s 5(2) 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 really? Cumulative or concurrent? 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 A non-parole period is set by the court. It is the part of the sentence that must be served in prison before the offender may apply to be released on parole If a prison sentence of two years or longer is imposed, the court must set a non-parole period Courts have a choice of whether or not to set a non-parole period for prison sentences of one to two years A non-parole period cannot be set for prison sentences of less than one year 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)

13. 13 Sentencing Advisory Council, 2015 3. The crime and the time What is armed robbery? What penalties does it bring?

14. 14 Sentencing Advisory Council, 2015 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 Maximum penalty The maximum penalty for armed robbery is Level 2 imprisonment (maximum 25 years’ imprisonment) and/ or a Level 2 fine (3,000 penalty units) The maximum penalty for attempted armed robbery is Level 3 imprisonment (maximum 20 years’ imprisonment) and/or a Level 3 fine (2,400 penalty units) Crimes Act 1958 s 75A(1), (2)

15. 15 Sentencing Advisory Council, 2015 Armed robbery  people sentenced

16. 16 Sentencing Advisory Council, 2015 Armed robbery – sentence types

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

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

19. 19 Sentencing Advisory Council, 2015 What are the facts of this case? 4. The case

20. 20 Sentencing Advisory Council, 2015 The offender Sam Kerr is a 30 year old man He pleaded guilty and was convicted on three counts: – one x armed robbery – two x attempted armed robbery

21. 21 Sentencing Advisory Council, 2015 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, 2015 The crime 2 The next day, Sam walked into another service station at about 5.00 p.m. 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 9.00 p.m. 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, 2015 Factors for consideration Sam 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, 2015 5. The sentence What sentence would you give? Photo: Department of Justice & Regulation

25. 25 Sentencing Advisory Council, 2015 You decide … 1.What sentence would you impose for each of the three counts? 2.If imprisonment: –What would be the total effective sentence? –What would be the non-parole period?

26. 26 Sentencing Advisory Council, 2015 The maximum penalty A person found guilty of armed robbery is liable to Level 2 imprisonment (maximum 25 years) and/or fine (3,000 penalty units) A person guilty of attempted armed robbery is liable to Level 3 imprisonment (maximum 20 years) and/or fine (2,400 penalty units) Crimes Act 1958 ss 75A(2), 321P

27. 27 Sentencing Advisory Council, 2015 What the trial judge decided Sam Kerr’s case, County Court Count 1: two years’ imprisonment Count 2: one year’s imprisonment Count 3: one year’s imprisonment Cumulation: six months of Counts 2 and 3 served cumulatively on each other and on Count 1 Total: three years’ imprisonment Non-parole period: 15 months 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, 2015 6. The appeal What grounds might there be to appeal against the sentence? Photo: Department of Justice & Regulation Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria

29. 29 Sentencing Advisory Council, 2015 Grounds for 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 argued that Sam’s actions were a significant mitigatory consideration that should have led to a lesser sentence on Count 2 compared with Count 3

30. 30 Sentencing Advisory Council, 2015 What the Court of Appeal decided Kerr v The Queen, Supreme Court, Court of Appeal Count 1: 18 months’ imprisonment Count 2: six months’ imprisonment Count 3: nine months’ imprisonment Cumulation: sentence on Count 2 to be served concurrently, and three months of Count 3 served cumulatively with Count 1 Total: 21 months’ imprisonment Non-parole period: 10 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, 2015 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 & Regulation