arson

VELS Level 6

Arson

2 Sentencing Advisory Council, 2012

1. What is sentencing?

What laws guidea judge when sentencing?

Pho

to: J

ohn

Fre

nch

/ Cou

rtes

y of

The

Age

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 judgments

• 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

suspended sentence

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 can be given

Sentencing Act 1991, s 5(1)

PURPOSES OF SENTENCING

Community protection Deterrence

RehabilitationDenunciation

Fair punishment


Principle of parsimony

Judges should choosethe most straightforwardsolution 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

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


Factors that must be considered

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

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

Factors that must be considered when sentencing


Victim Impact Statements

• When sentencing an offender, courts must consider the impact of the crime on any victim

• 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


How long is a sentence?

• 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

• is the part of the sentence the offender must serve in prison before being eligible for parole

• must be fixed for sentences of 2 years or more

• may be fixed for sentences of 1–2 years

• Is not given if the sentence is 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


13Sentencing Advisory Council, 2012


3. The crime and the time

What is arson?

What is the maximum penalty?

Photo: Trevor Poultney


Arson

Maximum penalty

• 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

• Penalty: Level 4 imprisonment (15 years maximum) and/or fine of 1800 penalty units

Crimes Act 1958, s 197(1) (6) & (7)


Arson – people sentenced

39

2827

21

25

16 15 11 13 170

10

20

30

40

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

Nu

mb

er o

f p

eop

le

People sentenced Immediate custodial sentence


Arson – sentence types

12 10 10 12 12

14

7 88

4

6

6 4

2

7

5 5

7

0

10

20

30

40

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

Nu

mb

er

of

pe

op

le

Imprisonment Wholly/partially suspended

Community-based order Other


Arson – imprisonment by age

35%

59%

50%

36%

31%

0%

20%

40%

60%

< 25(n=32)

25-29(n=26)

30-34(n=22)

35-39(n=18)

40+(n=42)

Age group (years)

Per

cen

t im

pri

son

men

t


Total effective sentence & non-parole period

1

4 4

13

3

9 3

5

2

1

1

5

4

3

2

<1

No NPP

<1 2 3 4 5 6 7

Total effective sentence (years)

No

n-p

aro

le p

erio

d (

year

s)



4. The case

What are the facts of this case?


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, one count of arson

• The maximum penalty for each of the first 4 counts is 10 years’ imprisonment and/or 1800 penalty units

• The maximum penalty for arson is 15 years’ imprisonment and/or 1800 penalty units


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 5 or 6 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


The crime 2

• They went home to find a cigarette lighter and returned to light a fire

• The fire caught hold so quickly 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


Factors for consideration

• Henry pleaded guilty at the earliest opportunity and offered to give evidence against Caleb

• He 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



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 community correction order, what would be the length of the order?

• If a fine, what would be the amount of the fine?


The maximum penalty

ArsonIntentionally and without lawful excuse destroying or damaging any property belonging to another by setting it on fire. Penalty: 15 years’ imprisonment and/or 1800 penalty units

TheftDishonestly appropriating property belonging to another. Penalty: 10 years’ imprisonment and/or 1200 penalty units

BurglaryEntering any building with intent to steal or damage anything. Penalty: 10 years’ imprisonment and/or 1200 penalty units

Obtaining financial advantageDishonestly 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 1200 penalty units

Henry Thomas, guilty of one count of burglary, two counts of theft, one count of dishonestly obtaining financial advantage, one count of arson, could receive:

• possible maximum imprisonment of 55 years

• possible maximum fine of 6,600 penalty units

Crimes Act 1958, ss 197, 74, 76, 82


What the judge decided

Henry Thomas’s case, County Court • Count 1 (burglary) 2 years’ imprisonment

• Count 2 (theft) 2 years’ imprisonment

• Count 3 (theft) 1 month’s imprisonment

• Count 4 (fin. advantage) 14 days’ imprisonment

• Count 5 (arson) 4 years’ imprisonment

• Cumulation 6 months from count 1 to be served

cumulatively with the 4 yearsimposed on count 5

Total effective sentence 4 years 6 months imprisonmentNon-parole period 2 years and 10 months



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

arson

Documents

sentencing hearinghow

sentencing theorywhat

crimes act

purposes of sentencing

victorian sentencing

consideredsentencing

givensentencing act

imposedsentencing act