vels level 6 causing serious injury intentionally

VELS Level 6

Causing serious injury intentionally

2 Sentencing Advisory Council, 2012

1. What is sentencing?

What laws guide a judge when sentencing?

Pho

to: J

ohn

Fre

nch

/ Cou

rtes

y of

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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?

Image source: Victorian Sentencing Manual, Judicial College of Victoria


Purposes of sentencing

These are the ONLY purposes for which sentences might 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


3. The crime and the time

What is causing serious injury intentionally?

What is the maximum penalty?

Photo: Trevor Poultney



Maximum penalty

• A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence

• Penalty: Level 3 imprisonment (20 years maximum)

Crimes Act 1958, s 16


What does ‘injury’ mean?

• ‘injury’ includes:

– unconsciousness

– hysteria

– pain

– any substantial impairment of bodily function

• ‘serious injury’ includes a combination of injuries



CSII – people sentenced

109 94 86 98 99

139

126

104

116111

0

50

100

150

2006-07 2007-08 2008-09 2009-10 2010-11

Nu

mb

er o

f p

eop

le

People sentenced Immediate custodial sentence


CSII – sentence types

8673 71 76 83

2126

1719 12

17

79

14 10

15

20

7

76

0

50

100

150

2006-07 2007-08 2008-09 2009-10 2010-11

Nu

mb

er o

f p

eop

le

Imprisonment Wholly/partially suspended

Youth training centre order Other


CSII – age and gender of people sentenced

56

86 83

43

2031

180

1

62

2155388

200

50

100

150

200

15-17 18-19 20-24 25-29 30-34 35-39 40-44 45-49 50+

Age group (years)

Nu

mb

er o

f p

eop

le

Male Female


Total effective sentence & non-parole period

14 13

30 41

15 54

15 49 18

21 10

17 6

10 8

5 4

1

1

No NPP

<1

2

3

4

5

6

7

8

9

10

<1 2 3 4 5 6 7 8 9 10 11 12 13

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

• 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

• The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment


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


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


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


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


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


• 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 2400 penalty units)

Roger, guilty of one count of intentionally causing serious injury, could receive:

• possible maximum imprisonment of 20 years

• possible maximum fine of 2400 penalty units



What the trial 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.’


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

vels level 6 causing serious injury intentionally

Documents

sentencing hearinghow

sentencing theorywhat

crimes act

purposes of sentencing

victorian sentencing

consideredsentencing

givensentencing act

imposedsentencing act