You Be the Judge VCE Teacher Guide 2015

You be the Judge Years 11 & 12 Teacher Guide VCE Legal Studies

Sentencing Advisory Council February 2015 You be the Judge Years 11 & 12 Teacher Guide 2

About You be the Judge

The Sentencing Advisory Council of Victoria has created You be the Judge as part of its community education function. The purpose of You be the Judge is to raise awareness and address community concerns about sentencing.

This Teacher Guide uses case studies based on real cases. Names and some details have been changed.

You be the Judge is designed for VCE Legal Studies in Victorian schools. It provides an engaging way for students to discuss, consider, and apply the principles of sentencing. Students will be required to weigh and balance the same factors in sentencing that judges do, and so learn about how the boundaries of the law, current sentencing practices, and community values affect criminal sentencing in Victoria.

The Sentencing Advisory Council of Victoria is an independent statutory body established in 2004 under amendments to the Sentencing Act 1991 (Vic). The functions of the Council are to:

 provide statistical information on sentencing, including information on current sentencing practices

 conduct research and disseminate information on sentencing matters

 gauge public opinion on sentencing

 consult on sentencing matters

 advise the Attorney-General on sentencing issues

 provide the Court of Appeal with the Council’s written views on the giving, or review, of a guideline judgment.

Sentencing attracts a lot of community interest and concern. It often divides opinion. Perceived inconsistencies between the sentences imposed in different cases of the same kind of offence provide compelling stories for news and current affairs media, as does the anger of crime victims and their families at the perceived leniency of a sentence. Some commentators also regularly criticize the courts for being soft on crime.

There is widespread misunderstanding of the purposes of sentencing and the meaning of key elements such as parole and statutory maximum penalties.

By informing, advising, and educating, the Council aims to bridge the gaps in opinion that sentencing can provoke between the courts, the government, and the community.

The case studies in You be the Judge concentrate on the sentencing phase of the legal process. There is no mystery about the outcome of the trials in these case studies. Each defendant has been found guilty, so the focus is entirely on the factors that must be taken into account in sentencing the offender.

The case studies are presented as slide shows with accompanying teachers notes, including discussion points and suggested activities. This Teacher Guide also provides links to relevant curriculum and preparation for teachers presenting the case studies. You be the Judge Years 11 & 12 Teacher Guide 3

Curriculum links and student learning outcomes

Victorian Certificate of Education: Legal Studies

You be the Judge is a useful resource in VCE Legal Studies, specifically in Units 1 and 4. It provides excellent opportunities for students to learn about and evaluate the criminal sanctions available to the courts and to appreciate the ways judges go about applying such sanctions.

You be the Judge includes specific content related to the key knowledge areas of trends in sentencing and purposes of criminal sanctions in the 2011–2017 Legal Studies curriculum.

Teachers can also use You be the Judge for aspects of Unit 3, considering how individuals and groups influence legislative change. As a law-reform body, the Sentencing Advisory Council engages the community in developing recommendations for sentencing legislative reform.

Teachers should note that You be the Judge is only concerned with sentencing, and does not directly cover court procedures or trials. However, because it is based around real criminal cases, teachers can easily introduce broader themes.

The following table outlines the key knowledge areas addressed in the You be the Judge material.

Unit Area of study Key knowledge

Unit 1 AOS 2 – Criminal Law  sanctions under criminal law and their effectiveness  trends in crime, sentencing, and recidivism  a comparison of one aspect of sentencing in Victoria with that of an international jurisdiction  the impact of criminal acts on individuals and society

Unit 1 AOS 3 – The Criminal  the distinction between summary offences and Courtroom indictable offences  reasons for a court hierarchy  an overview of the criminal jurisdiction of courts in the Victorian court hierarchy  role of court personnel

Unit 3 AOS1 – Parliament and  principles of the Australian parliamentary system: the Citizen representative government, responsible government, and the separation of powers  the structure of the Victorian Parliament and the Commonwealth Parliament and the roles played by the Crown and the Houses of Parliament in law-making  the means by which individuals and groups influence legislative change, including petitions, demonstrations, and use of the media You be the Judge Years 11 & 12 Teacher Guide 4

Unit 3 AOS 3 – Role of the  the ability of judges and courts to make laws Courts in Law-Making  the operation of the doctrine of precedent  reasons for interpretation of statutes by judges  effects of statutory interpretation by judges  strengths and weaknesses of law-making through the courts  the relationship between courts and parliament in law making

Unit 4 AOS 1 – Dispute  the reasons for a court hierarchy resolution methods  original and appellate jurisdictions of the Victorian Magistrates’ Court, County Court, and Supreme Court (Trial Division and Court of Appeal)

Unit 4 AOS 2 – Court  general purposes of criminal sanctions Processes and Procedures, and  an overview of three types of sanctions and their Engaging in Justice specific purpose  recent changes and recommendations for change in the legal system designed to enhance its effective operation

Extracted with permission from Legal Studies: Victorian Certificate of Education Study Design 2010, Victorian Curriculum and Assessment Authority .

National Educational Goals

The Adelaide Declaration on National Goals for Schooling in the Twenty-First Century (1999) and the Melbourne Declaration on Educational Goals for Young Australians (2008) affirm the need to enable young Australians to engage effectively with an increasingly complex world and to become active and informed so they can exercise their rights and responsibilities as citizens.

The You be the Judge program strongly reflects the goals of these Declarations, especially:

 having ethical integrity

 exercising judgment and responsibility in matters of morality

 needing to be active and informed citizens with a commitment to the national values of democracy, equity, and justice

 being willing to participate in Australia’s civic life.

The Commonwealth’s The Shape of the Australian Curriculum (2009) emphasises the importance of educating young Australians to function responsibly as individuals, citizens, and workers in a rapidly changing world.

You be the Judge goes further than the subject area of Legal Studies, and so is ideally suited to bridge discipline boundaries, providing opportunities to teach thinking skills. You be the Judge Years 11 & 12 Teacher Guide 5

Key concepts and understandings

You be the Judge works by providing students with the tools necessary to understand the aims, principles, and practice of sentencing in Victoria.

It requires students to apply this knowledge to a real life case where they must make an informed decision about the appropriate penalty to impose on an offender. To do this effectively, students must gain knowledge of the range of penalties available for a particular crime, and understand the purposes, principles, and factors that influence sentencing.

As students go through the sentencing process for themselves, it will become clear that some degree of subjectivity is involved in sentencing. Just as for real-life judges and magistrates, students will find that sentencing an offender requires not just an understanding of the law, but also some reflection on personal values and societal attitudes. These values and attitudes can be explored in many of the activities suggested within the teaching materials.

The teaching materials should be read alongside A Quick Guide to Sentencing (available on the Council’s website). The Quick Guide is a short, plain-language overview for teachers and students of the ‘what, when, where, how, and why’ of sentencing in Victoria. You be the Judge Years 11 & 12 Teacher Guide 6

You be the Judge case studies

Caution

Be discreet. Each of the case studies presented in You be the Judge is based on a real- life case. Names and some details have been changed. Victims and offenders alike have families, and some of these may be among your students. Unless there is a good reason to do so, resist suggestions to track down the actual case.

Be sensitive. Some of the offences and the details covered in You be the Judge could be traumatic for some students, especially those who have been involved in a similar case, are involved with the legal system, or have a parent or close relative in prison.

Each of the You be the Judge case studies has a set of slides and notes. Relevant statistics and information about sentencing for the crimes featured in the cases are provided on the slides.

Comments, extra information, suggested activities, and possible assessment tasks are provided in the notes that accompany the slides.

Before beginning a case study with your class, it is important that you read the slides and the accompanying notes in conjunction with the Teacher Guide. Decide which slides to emphasise and which activities to set for your students. There are many different suggested activities included in the notes to the slides, and there are further suggestions for individual and group activities elsewhere in this guide.

There is more material provided in here than you will have time to cover in class. This is to allow a choice of activities so you can design the most relevant, interesting, and appropriate set of lessons for your students.

The suggested student activities comprise two components:

 discussion: questions that may be considered or activities that may be undertaken in class during the case study

 extension: activities that require additional time and resources to conduct.

You be the Judge was originally designed to run in four sessions each of 50 minutes:

 two sessions spent laying the foundation using slides in Sections 1–3

 one session on the crime and sentence (Sections 4–5)

 a final session on sentence review and conclusion (Sections 6–7).

However, you should not be constrained by this. Many teachers feel that the skills employed are important enough to justify spending longer on the program. You be the Judge Years 11 & 12 Teacher Guide 7

Before you begin, it is helpful to find out what knowledge and experience your students already have of the law, courts, sentencing, and human rights. Read more about this below in ‘Indicators of student achievement’.

Preparation for You be the Judge

After you have made yourself familiar with the material here, you may find it useful to prepare some resources to suit your particular approach to You be the Judge. Resources that could help to deliver the program include:

 a selection of recent newspaper clippings dealing with examples of the kind of offence featured in the case study

 a copy of the relevant Sentencing Snapshot (available from the Sentencing Advisory Council website)

 sentencing statistics and offender characteristics for the offence dealt with in the chosen case study (available from SACStat, the Council’s online sentencing statistics tool)

 handouts to assist students in understanding the ideas about sentencing introduced in the slides and for reference when students are considering their own sentences. Such handouts could include:

o descriptions of the various sentences available

o relevant extracts from the Crimes Act 1958 (Vic), such as a description of the offence

o relevant extracts from court transcripts as provided in the notes to the slides

o the glossary from this guide.

Before commencing You be the Judge, you could consider administering a preconceptions/misconceptions survey such as a quiz (see sample quiz below).

When to ask students to consider a sentence

The slides present basic sentencing theory first, before the details of the case are revealed. Only then are students asked to fix an appropriate sentence for the crime. This format helps ensure that students retain an open mind while learning about the facts of the case.

If details of the case are presented before students learn about the basic sentencing theory, they may be less likely to consider sentences other than the one they arrived at in an initial knee-jerk reaction to the facts of the case.

Delivering You be the Judge case studies

The slides are divided into six or seven sections where applicable: 1. Sentencing origin and range 2. Sentencing theory 3. The crime and the time You be the Judge Years 11 & 12 Teacher Guide 8

4. The case 5. The sentence 6. The appeal 7. Conclusion

Suggested student activities

You will see that there is a question posed on the title slide at the beginning of sections. Use general questioning to collect student predictions of the answer to these questions. Differences and similarities between student opinions and the facts of the case provide opportunities for lively discussion and debate.

1. Sentencing origin and range

The first section of slides concerns the origin and range of sentences available to judges in Victoria – where sentences originate and the range and hierarchy of sentences.

Suggested student activities Activities here focus on the separation of powers, what sentences are, and what students consider to be more and less severe sentences. Students use reasoning and analysis to compare their own values with societal values as reflected in available sentences and the examples of sentences reported in the media.

2. Sentencing theory

This section deals with the principles and purposes of sentencing and the factors that must be taken into account by judges when sentencing offenders.

Suggested student activities There are many opportunities for student discussion and debate during this part of You be the Judge. However, it may be helpful to have only a brief discussion early in the program and return to the more popular or controversial issues after the details of the case have been described.

A continuum (points on a line) exercise can be used to measure students’ attitudes towards a sentencing principle (e.g. any or all of the five purposes of sentencing, the principle of parsimony, parole and non-parole periods) both before and then after a detailed discussion about the facts, definitions, and application of that issue.

Students could also discuss their observations of public attitudes to the application of a given sentencing principle, for example, by identifying from news reporting any recent case that reflects the public’s understanding of, support for, or rejection of the principle.

3. The crime and the time

This section outlines the specific crime emphasised in the case study – its description in law and the maximum penalty allowed under the law. There is also a series of graphs that show recent sentencing trends for the particular crime. You be the Judge Years 11 & 12 Teacher Guide 9

Suggested student activities Student discussion can focus on the case being considered in You be the Judge, or on comparing this case with others from recent news media.

4. The case

Now it is time to consider the circumstances of the offence and the offender portrayed in the case study. Slides contain an outline description of the offender, a précis of the events that occurred during the offence, and other information that the judge would have at his or her disposal at the point of imposing sentence.

Where the case involves an appeal, there may be adaptations of extracts from the hearing in the notes. It would be prudent to remind students that there is no question of guilt or innocence here – the trial has been conducted and the accused has been found guilty. It is only the sentencing that is the focus of the case study. Reiterating this point will help to avoid irrelevant, time-wasting discussion.

5. The sentence

At this stage, students consider an appropriate sentence for the offence.

Suggested student activities Students must choose the total sentence to be imposed. If it involves imprisonment, students must also decide on the non-parole period. Students should articulate and defend their opinion on what is an appropriate sentence for the offence in the particular case.

Students must refer to:

 the legal principles

 the circumstances of the offender

 the circumstances of the offence.

They should use specialised and appropriate legal terminology in defending their opinions.

This activity can be conducted effectively by having individual students make their own decisions, noting down their reasoning, and then coming together in small groups to discuss their results and their reasons for arriving at them.

For effective, collaborative learning in groups, students should assume designated roles, such as manager, timekeeper, recorder, and reporter. These roles can be negotiated within the group or allocated by you. Later, whole class discussion will almost certainly reveal a wide range of sentences, providing an opportunity for reminding students about the pressure on judges to ‘get it right’.

Students can identify what other information may help the judge to come to a fair decision. What factors could have had a bearing on the sentence but were not mentioned in the earlier slides? Students may identify personal characteristics such as the age, gender, and personal circumstances of the judge, or the gender or cultural background of the offender and speculate about the effect these have on the offence or sentence. Such observations provide an opportunity to talk about the fact that judges are human, but emphasise the importance for consistency in You be the Judge Years 11 & 12 Teacher Guide 10 sentencing of having some sentencing guidelines for judges to work within, such as those outlined in the Sentencing Act 1991 (Vic).

Once the various sentences imposed by the students have been discussed and justified, reshow the slides of sentencing graphs from Section 3 (‘The crime and the time’). Ask students to construct generalisations about the sentence imposed for the offence highlighted in the case study. These might include comments on the distribution of various types of sentences imposed or the trend towards ‘middling’ for the length of prison terms.

Students can then return to the sentences they decided on, either individually or in small groups, and discuss how well their sentences ‘fit’ with the statistics. Are there any indications that their sentences may be too severe or too lenient?

 Now reveal the actual sentence imposed by the trial judge.

 Compare this with the sorts of sentences decided on by the students.

 Is there general agreement, or is there a wide disparity?

 Go back to the graphs concerning past sentences to note where the judge’s sentence fits.

 Construct a quick continuum on which students can record their reactions to the judge’s sentence.

 Discuss similarities and differences between the judge’s sentence and those suggested by the students, seeking possible reasons for similarities/differences.

 Can students identify different values at work here?

6. The appeal

If the particular case study you are using went to appeal, there will be a couple of slides dealing with this. The grounds for the appeal are laid out and a report of the action taken by the Court of Appeal is included.

Suggested student activities Students can repeat the sorts of sentencing activities they carried out in ‘The sentence’. They could undertake comparison activities with the Court of Appeal’s sentence, to see how it compares with the history of sentences for this offence and the sentences decided on by students. It is likely that, after their previous sentencing experience, students will offer sentences much closer to that imposed by the Court of Appeal.

7. Conclusion

Through two statements on sentencing, the final slide provides an opportunity for students to reflect on what they have learnt about sentencing. The acknowledgement of any changes in attitude experienced by students during the program will stress the importance of being well informed. You be the Judge Years 11 & 12 Teacher Guide 11

Suggested concluding student activities At the conclusion of the case study, recall questions can serve as a focus for quick revision. You might also like to present questions for discussion in large or small groups or in pairs, with the aim of coming up with consensus answers, or to have individuals respond with formal written answers.

The following list includes examples of both sorts of questions:

 Explain what is meant by the term ‘sentencing hierarchy’ and give examples to illustrate your explanation.

 List the five distinct purposes for which sentences may be imposed as set out in the Sentencing Act 1991 (Vic).

 What factors must a judge take into account when sentencing an offender?

 What is a Victim Impact Statement? When in the trial sequence is it introduced? How is it conveyed to the judge? What is its purpose?

 Do you think a Victim Impact Statement is a good thing or a bad thing? Give reasons for your answer.

 Because of human nature and the make-up of our judicial system, there will always be a subjective element in sentencing. Explain what this means and give examples of actions taken to minimise this subjective element.

 Do you think the sentencing process takes enough account of the victim and the community?

 If you were a judge, how would you defend the position you have taken on the particular sentence you decided on for the offence outlined in the case study?

 What changes to the sentencing process would you recommend?

 Can you see a possible solution to counteract perceptions gathered from the media that sentencing for some offences is too lenient?

See also ‘Indicators of student achievement’ below for additional ideas for student reflection on learning.

Taking it further

There are many opportunities to expand on the detail of the case studies. However, time restraints will dictate which activities are practical in your particular circumstances. Extension activities are included in the case studies. Listed below are some examples of the sorts of activities that could be undertaken.

Suggested student activities  Research newspaper coverage of similar crimes and their subsequent court cases. Decisions made by courts can be accessed at the Australian Legal Information Institute (AustLII) website. Compare newspaper coverage (including news, feature articles and opinion pieces, editorials, and letters to the editor) with the facts of the case as outlined in court decisions. Look for areas of similarity and difference. Is there any emotive reporting or distortion or omission of facts? You be the Judge Years 11 & 12 Teacher Guide 12

Use the newspapers as stimulus for student writing – perhaps a rebuttal of an article, a letter to the editor, or a rewrite of an article.

 Identify a contentious issue that arises from the case study. Devise a brief questionnaire to canvass the opinions of fellow students and/or members of the public. A useful extension of this is to construct a fact sheet about a particular offence and its associated sentences. Have fellow students and/or members of the public read the fact sheet before answering a questionnaire, then have a group answer the same questionnaire without having read the fact sheet. Compare the responses and make some generalisations comparing public opinion to informed public opinion.

 Take on the role of a victim from one of the case studies and write a Victim Impact Statement (a guide to writing a Victim Impact Statement is available on the Victims of Crime website). Read statements written by other students and consider how each statement might influence the decision making of a judge or magistrate imposing a sentence.

 Access the Sentencing Statistics section on the Sentencing Advisory Council’s website and make thoughtful generalisations about topics such as the overall rate of imprisonment over a period of time in Victoria, the sentencing trends in various courts of Victoria, or changes in sentencing trends in Victoria.

 Focus on the type of offence committed in the case study. Using the Sentencing Advisory Council’s website (especially SACStat and the Sentencing Snapshots), devise a wall chart showing both the prevalence of the offence and the sentencing statistics related to it over the past five years. Alternately, combine in a group to devise and present a multi-media overview of the offence and its sentencing history in Victoria. You be the Judge Years 11 & 12 Teacher Guide 13

Indicators of student achievement

Details earlier in this guide show how the program links to the VCE Legal Studies curriculum.

The program contains activities and assessment tasks that cater to the full spectrum of levels of thinking, allowing teachers to monitor their students’ progress through a range of increasingly sophisticated tasks. The following table lists sample activities from the case studies that require students to demonstrate specific skills.

Activity/skill Example from You be the Judge activities

Identifying List the five distinct purposes for which sentences may be imposed (as set out in the Sentencing Act 1991 (Vic)).

Discussing What common Australian value(s) does this crime go against?

Classifying List the things a judge must take into account when sentencing. Divide these into three groups: (1) objective, (2) subjective, and (3) undecided.

Defining What is a Victim Impact Statement? When in the trial sequence is it used? How is it conveyed to the judge? What is its purpose?

Explaining Write a single, clear paragraph to explain the principle of parsimony to someone who knows nothing about sentencing.

Classifying Expand through discussion the list of factors about an offence and/or the offender. Explain how each might influence the offender’s culpability.

Researching Research sentencing trends for this crime over the past five or 10 years.

Comparing Look up the Crimes Act 1958 (Vic) ss 318–19. Describe how ‘culpable driving causing death’ is more serious than ‘dangerous driving causing death or serious injury’.

Discussing What are your feelings about the sentence imposed by the judge in the case? Compose a letter to a daily newspaper either praising or criticising the sentence. Use your knowledge about sentencing to present a sound argument.

Applying How might restitution and compensation be determined for a ‘crime’ at school? What if a student’s schoolbag, complete with course notes, was stolen just before an important exam? Apply your understanding of sentencing options to describe what sort of order(s) against the thief might be appropriate as restitution and compensation for the victim.

Considering Review and consider your notes about this case. Was the sentencing process fair? Was the sentencing outcome fair? Construct a presentation that will make your opinions and the reasons behind them clear to others. You be the Judge Years 11 & 12 Teacher Guide 14

After participating in You be the Judge, students should be able to demonstrate an improved understanding of the aims, methods, and complexities of sentencing in criminal cases. Evaluation of a student’s progress towards understanding takes place during the program.

Students should be able to place themselves in the position of others in order to appreciate the difficulties of sentencing and its consequences.

By the end of the program, students should be capable of a degree of reflection by recognising that sentencing by the courts is based on an identifiable value system – one that they can usefully compare with their own.

Suggested student activities

1. To assess how much your students learn through You be the Judge, it can be helpful to measure their level of prior learning about sentencing. Student knowledge of sentencing may have been picked up from television courtroom dramas, news media, formal study, or first-hand experience.

A good way to gauge students’ prior learning is to devise a misconception/preconception check. This can be delivered as a discussion, activity, or quiz. A sample quiz is provided below. It is intended as a sample to be adapted to your class’s needs.

Apart from providing a quick overview of students’ knowledge and understanding, an activity like this can also help students prepare for You be the Judge by encouraging them to focus on sentencing. Collating the results may indicate areas where further study, discussion, or clarification is needed.

Re-administering the misconceptions/preconceptions check after completing You be the Judge will allow students to observe changes in their own understandings.

2. Ask students to monitor and describe their progress as learners by completing the following sentence stems:

o I learnt the following about sentencing …

o The strengths of my work were …

o The weaknesses of my work were …

o In future, I will …

3. A simple KWLH chart is another useful way to gauge prior learning and later identify what has been learnt in the program and how it has been learnt. Administer this task so that it is undertaken individually at the outset and added to as the program proceeds. At the conclusion of You be the Judge, the chart will be a useful map of the learning journey.

K – what students already know about the topic of sentencing

W – what the students want to learn about sentencing

L – what the students have learnt by the end of the program

H – how the students learnt what they did about sentencing You be the Judge Years 11 & 12 Teacher Guide 15

A wide range of both formative and summation tasks that provide opportunities to gauge progress and provide feedback are suggested in the program, including:

 questioning

 open discussion

 reflective journal writing

 role-play

 group presentation

 newspaper research and analysis

 statistical analysis

 genre writing

 values analysis. You be the Judge Years 11 & 12 Teacher Guide 16

Sentencing quiz

Statement about Victorian law True False Unsure

1. Judges can impose whatever length of imprisonment they think is suitable.

2. First-time offenders cannot be sent to jail.

3. Regardless of the sentence imposed by the judge, a well- behaved prisoner can be released early.

4. Parliament decides the maximum possible sentence for different types of crime.

5. Judges and magistrates are required to impose the toughest sentence the law allows.

6. Making the criminal suffer is the main purpose of sentencing.

7. A child of 10 years or older may be sentenced in a Victorian court if he or she is convicted of a crime.

8. If someone convicted of a crime feels their sentence is extreme, there is nothing they can do about it.

9. An indictable offence is more serious than a summary offence.

10. Violent crimes are the most common types of crime.

11. If a car is involved in a fatal collision, the driver will only go to jail if the collision was deliberate.

12. A person cannot be found responsible for any crime they committed when very drunk.

13. The sentence for a crime may be harsher if the crime was motivated by racial hatred or homophobia.

14. Magistrates don’t need a jury to make a finding of guilty or not guilty.

15. The victim of a crime has no role at the trial except as a spectator. You be the Judge Years 11 & 12 Teacher Guide 17

Answers

Teacher’s discussion notes for misconception/preconception check activity:

1. Judges can impose whatever length of imprisonment they think is suitable.

 FALSE – Maximum penalties are listed in law (Acts of Parliament) such as the Crimes Act 1958 (Vic). The Sentencing Act 1991 (Vic) also outlines the purposes of sentencing and factors about the offence and the offender that judges must consider when imposing a sentence. Judges must also consider sentences handed down by other judges for similar crimes. Significant or unjustified variation from this guidance can lead to a sentence being overturned on appeal.

2. First-time offenders cannot be sent to jail.

 FALSE – While both youth and the lack of a relevant prior conviction may be mitigating factors reducing a sentence, where the offence is serious enough or where aggravating factors about the offence or the offender are significant, first-time offenders can be sent to jail.

3. Regardless of the sentence imposed by the judge, a well-behaved prisoner can be released early.

 FALSE – Except in exceptional circumstances, prisoners cannot be released prior to the completion of the non-parole period. After that, the Parole Board may consider releasing the offender on parole. An offender’s behaviour in prison is one of the factors that the Parole Board considers when deciding whether to release a prisoner on parole and under what conditions.

4. Parliament decides the maximum possible sentence for different types of crime.

 TRUE – Maximum penalties for crimes are set in various Acts of Parliament, principally: the Crimes Act 1958 (Vic); the Summary Offences Act 1966 (Vic); the Children, Youth and Families Act 2005 (Vic); the Drugs, Poisons and Controlled Substances Act 1981 (Vic); and the Road Safety Act 1986 (Vic).

5. Judges and magistrates are required to impose the toughest sentence the law allows.

 FALSE – Section 5(3) of the Sentencing Act 1991 (Vic) requires that, ‘A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed’.

6. Making the criminal suffer is the main purpose of sentencing.

 FALSE – The five purposes for which a sentence may be imposed are laid out in section 5 of the Sentencing Act 1991 (Vic). They are: just punishment, deterrence, rehabilitation, denunciation, and community protection. Making the offender suffer is not a legitimate purpose of sentencing. You be the Judge Years 11 & 12 Teacher Guide 18

7. A child of 10 years or older may be sentenced in a Victorian court if he or she is convicted of a crime.

 TRUE – Under the Children, Youth and Families Act 2005 (Vic), 10 years is the age at which children become old enough to be sentenced. Different sentencing options are considered for children aged between 10 and 14 years compared with those aged between 15 and 20 years.

8. If someone convicted of an offence feels their sentence is extreme, there is nothing they can do about it.

 FALSE – Someone convicted of a crime may appeal the conviction, the sentence, or both.

9. An indictable offence is more serious than a summary offence.

 TRUE – Summary offences include less serious traffic offences, minor assaults, property damage, and offensive behaviour. Summary offences are generally heard by a magistrate in the Magistrates’ Court, even if the defendant is not present. Some summary offences are dealt with through the infringements system (fines), without going to court at all (e.g. an infringement notice for speeding). Indictable offences include rape, murder, burglary, and intentionally or recklessly causing injury or serious injury. Matters must be heard with the defendant present in the higher courts – the County Court and the Supreme Court. If a plea of not guilty is entered by someone who has been charged with an indictable offence, a trial will be held and a jury will decide whether the accused is guilty or not guilty. Some less serious indictable offences can be heard summarily in the Magistrates’ Court if the magistrate considers it appropriate and the defendant consents.

10. Violent crimes are the most common types of crime.

 FALSE – According to the Australian Bureau of Statistics, only about a fifth of criminal convictions in 2012–13 were for crimes against the person (assault, rape, intentionally or recklessly causing injury or serious injury, etc.). Victoria Police data show that, while the overall rate of crime in Victoria has fallen over the past 10 years, the number of crimes against the person has been increasing since 2006, much of this due to an increase in the reporting of family violence. From January 2015, Victorian crime statistics will be publicly available online through the new Crime Statistics Agency.

11. If a car is involved in a fatal collision, the driver will only go to jail if the collision was deliberate.

 FALSE – Someone who causes the death of another person through dangerous or reckless driving, or when driving at great speed or under the influence of alcohol or drugs, can be convicted of culpable driving causing death, an offence that has a maximum possible penalty of 20 years’ imprisonment. Someone convicted of dangerous driving causing death can be sentenced to a maximum of 10 years in prison.

12. A person cannot be found responsible for any crime they committed when very drunk.

 FALSE – Courts do not normally consider that self-administration of drugs or alcohol lessens an offender’s responsibility for later unlawful actions. This is because the effects of alcohol and drugs are well known and can be reliably anticipated. You be the Judge Years 11 & 12 Teacher Guide 19

13. The sentence for a crime may be harsher if the crime was motivated by racial hatred or homophobia.

 TRUE – An offender’s motivation for committing an offence will be considered by the judge in sentencing. Changes to the law in 2009 mean explicitly that if a violent crime is motivated by an offender’s hatred for the victim(s) due to the victim’s race, religion, sexual orientation, or other personal characteristic, this will be considered an aggravating factor, increasing the offender’s culpability.

14. Magistrates don’t need a jury to make a finding of guilty or not guilty

 TRUE – It is only in the County Court and the Supreme Court that a jury makes a finding of guilty or not guilty, and then the judge imposes the sentence. About 90% of criminal matters are finalised in the Magistrates’ Court.

15. The victim of a crime has no role at the trial except as a spectator.

 FALSE – Victims of crime have a right to make a Victim Impact Statement as part of the sentencing process. Guidance and support is available to help victims do this. Relevant parts of a Victim Impact Statement will be submitted to the court as part of the sentencing process. You be the Judge Years 11 & 12 Teacher Guide 20

Resources

Here is an introductory list of resources as starting points for further study and reference.

Web resources: Victoria

Title URL Description Courts Services www.courts.vic.gov.au Links to all Victorian courts and tribunals Victoria Crime Statistics www.crimestatistics.vic.gov.au Providing statistics, research, and information Agency about crime in Victoria Department of www.justice.vic.gov.au Information about the justice system in Victoria, Justice & including fines and penalties, prisons, and Regulation community corrections Judicial College of www.judicialcollege.vic.edu.au Primarily for judges, magistrates, and VCAT Victoria members, this site contains a copy of the Victorian Sentencing Manual and international links Law Institute of www.liv.asn.au Information on a variety of legal topics Victoria including juries and jury service and Australia’s legal system Sentencing www.sentencingcouncil.vic.gov.au General information about sentencing in Advisory Council Victoria, Sentencing Snapshots, research papers on sentencing, and Virtual You be the Judge Victims of Crime http://www.victimsofcrime.vic.gov.au The official Victorian Government website for people affected by crime Victoria Legal Aid www.legalaid.vic.gov.au List of resources and books available from Legal Aid library, Ground Floor, 350 Queen St, Melbourne 3000 Victorian www.vcta.asn.au Lesson outlines, timetables, and online links for Commercial Legal Studies Teachers Association Victorian Law www.victorialawfoundation.org.au Victoria Law Foundation helps Victorians Foundation understand the law and their legal system Victorian Law www.lawreform.vic.gov.au Information on reviews undertaken by the Law Reform Reform Commission; includes a downloadable Commission publication for students on Law Reform in Action You be the Judge Years 11 & 12 Teacher Guide 21

Web resources: Australia

Title URL Description ABC Radio – The www.abc.net.au/rn/lawreport A site search for ‘sentencing’ brings up relevant Law Report past programs concerning sentencing issues Australian Institute of www.aic.gov.au National research and knowledge centre on crime Criminology and justice Australian Law http://www.alrc.gov.au/reform- Reform journal issue 86 (Winter 2005) looks at a Reform Commission journal range of sentencing issues in state and federal – Reform journal jurisdictions as well as overseas; issue available on the AustLII website Australian Legal www.austlii.edu.au Databases for Australasian jurisdictions – cases Information Institute and legislation

Useful Twitter profiles

Organisation Profile Alternative Law Journal @AltLJ The Alternative Law Journal is Australia's leading independent human rights, social justice, and law reform journal Australian Institute of @AICriminology The Australian Institute of Criminology is Criminology Australia's national research and knowledge centre on crime and justice Australian Law Reform @AusLawReform The Australian Law Reform Commission is a Commission federal agency that reviews Australia’s laws to ensure improved access to justice for all Australians by making laws and related processes more equitable, modern, fair, and efficient Consumer Affairs @consumervic A Business Unit of the Department of Justice & Victoria Regulation, Consumer Affairs Victoria (CAV) helps consumers and traders by creating a fairer and more efficient marketplace Crime Statistics Agency @CrimeStatsVic Provides statistics, research, and information about crime in Victoria Federation of @CommunitylawVic The Federation of Community Legal Centres Community Legal leads and supports Victorian community legal Centres centres to make justice accessible for all Human Rights Law @rightsagenda The Human Rights Law Centre promotes and Centre protects human rights through policy analysis and advocacy, strategic litigation, education, and capacity building Law Institute of Victoria @theLIJ The award-winning LIJ is the Law Institute of Journal Victoria’s flagship publication Liberty Victoria @LibertyVic Liberty Victoria is one of Australia’s leading civil liberties organisations, working since 1936 to defend and extend human rights and freedoms You be the Judge Years 11 & 12 Teacher Guide 22

Organisation Profile Sentencing Advisory @SACvic Research, statistics, and education about Council sentencing in Victoria. Tweets about relevant criminal justice matters Victoria Law Foundation @schoolslegalhub An easy way to find up-to-date resources for – Schools Legal Hub Victorian teachers and students of VCE Legal Studies and VELS Civics and Citizenship Victoria Law Foundation @everydaylawvic Easy-to-understand legal information, legal tips, – Everyday Law and the latest legal news for Victorians Victorian Law Reform @VicLawReform The Victorian Law Reform Commission is an Commission independent, government-funded organisation that develops, reviews, and recommends reform of Victorian state laws You be the Judge Years 11 & 12 Teacher Guide 23

Glossary

Accused, accused A person charged with an offence. The defendant in criminal proceedings in person a higher court.

Acquittal A finding that an accused person is not guilty of a criminal charge.

Affidavit A written statement, sworn or affirmed, that may be used as a substitute for oral evidence in court.

Aggravating A fact or circumstance about the offender or the offence that may lead to a factor more severe sentence.

Appeal A request made to a higher court to review another court’s decision.

Bail The release of a person from legal custody into the community on condition that he or she reappears later for a court hearing to answer the charges.

Baseline offence Seven serious offences are named ‘baseline offences’ and have a specified baseline sentence. In addition, there is a separate baseline sentence for the murder of an emergency worker while on duty. Courts must sentence baseline offences so that the median sentence over time equals the baseline sentence.

Baseline sentence The sentence that parliament intends as the median sentence for a particular baseline offence. The median sentence is the midpoint or middle sentence when all sentences imposed for a type of offence over a given period are ranked from lowest to highest – so that half of all sentences imposed are lower than the median and half are higher. See ‘Median’.

Case law Law made by courts, including sentencing decisions and decisions on how to interpret legislation. This is also known as ‘common law’.

Child A person who is aged 10 years or over but under 18 years at the time of the offence and aged under 19 years when court proceedings begin. A child is usually sentenced in the Children’s Court under the Children, Youth and Families Act 2005 (Vic).

Community-based A flexible, non-custodial sentence that includes community service, order supervision, and personal development. This order was replaced from early 2012 with the community correction order (CCO).

Community A flexible, non-custodial sentence that sits between imprisonment and fines correction order on the sentencing hierarchy. Served in the community under conditions that (CCO) may include unpaid community work, alcohol and drug bans, participation in treatment and rehabilitation programs, and/or restrictions on where the offender can go or live, or with whom they can associate. You be the Judge Years 11 & 12 Teacher Guide 24

Compensation Under the Sentencing Act 1991 (Vic), payment of money to a victim of crime to compensate for the pain, suffering, or property loss or damage caused directly because of the offence.

Concurrent Multiple individual sentences, imposed for more than one offence in a case, sentences that are to be served at the same time, rather than one after the other. For example, two prison sentences each of five years served wholly concurrently would mean a total of five years in prison.

Conviction An order made by a court after finding that an accused person is guilty of the crime charged.

Crown In Victorian sentencing, ‘the Crown’ refers to either the police prosecutor (in the lower courts) or the public prosecutor (in the higher courts) who represents the State of Victoria in criminal matters.

Culpability Blameworthiness, the extent to which a person is held accountable for an offence.

Cumulative Multiple individual sentences, imposed for more than one offence in a case, sentences that are to be served one after the other, rather than at the same time. For example, two prison sentences each of five years served wholly cumulatively would mean a total of 10 years in prison.

Custodial A sentence that involves the court imposing a term of imprisonment (for sentence adults) or a period of detention (for children and young offenders).

Defence The defendant or accused in a trial and his or her legal advisors collectively.

Defendant A person who has been charged with an offence but who has not (yet) been found guilty or not guilty.

Diversion A program designed to prevent first-time or low-risk offenders who have program pleaded guilty from entering the criminal justice system. Diversion programs include conditions such as attending counselling, treatment, or defensive driving training.

Director of Public The Director of Public Prosecutions makes decisions about whether to Prosecutions prosecute, and prosecutes, serious offences in the higher courts on behalf of the State of Victoria. The Director of Public Prosecutions is independent of government.

Electronic Offenders wear electronic tags that monitor their movements and send an monitoring alarm to a monitoring unit if offenders break any restrictions on movement that have been imposed by the courts.

Fine A sum of money payable by an offender to the State of Victoria on the order of a court as a sentence. You be the Judge Years 11 & 12 Teacher Guide 25

Gross violence Circumstances that increase the seriousness of an offence of manslaughter or causing serious injury, and that result in mandatory minimum sentences under the Sentencing Act 1991 (Vic). Circumstances of gross violence include where the offender planned the offence in advance, committed the offence with a group of two or more other people, planned in advance to use a weapon, or continued to attack the victim after the victim was incapacitated.

Head sentence See ‘Total effective sentence’.

Higher courts In Victoria, the County Court and the Supreme Court.

Human rights The basic rights and freedoms to which all human beings are entitled, in the exercise of which a government may not interfere. Includes rights to life and liberty, freedom of thought and expression, and equality before the law.

Indictable Serious crimes, such as murder and rape, usually tried before a judge and offences jury in the higher courts.

Infringement An offence attracting an infringement notice with a fixed financial penalty (e.g. a parking fine).

Jury A group of people (usually 12) without legal experience, chosen at random from the general community. A jury is given the responsibility of determining questions of fact on the basis of evidence presented in criminal trials for indictable offences in the higher courts and returning a verdict of ‘guilty’ or ‘not guilty’.

Mandatory A sentence set by parliament in legislation, allowing no discretion for the sentence court to impose a different sentence.

Maximum penalty The most severe sentence set in legislation that a court can impose for a particular type of offence.

Median The median is the middle value in a set or distribution of numbers. For example, 4 is the median number in the following set of numbers: 1, 2, 2, 3, 3, 4, 5, 5, 6, 6, 7 The median represents a statistical midpoint, where half of the numbers (1, 2, 2, 3, 3) are below the median, and half of the values (5, 5, 6, 6, 7) are above the median. See ‘Baseline sentence’.

Mitigating factor A fact or circumstance about the offender or the offence that may lead to a less severe sentence.

Non-parole period The period of imprisonment set by the court that must be served by the (NPP) offender in prison before he or she is eligible for release on parole.

Offender A person who has been found guilty of an offence or who has pleaded guilty to an offence (admitted the facts of an offence). You be the Judge Years 11 & 12 Teacher Guide 26

Office of Public An independent statutory authority that commences, prepares, and conducts Prosecutions criminal prosecutions on behalf of the Director of Public Prosecutions.

Parole Supervised and conditional release of an offender from prison before the end of his or her prison sentence. While on parole, the offender is still serving the sentence, and is subject to conditions designed to help him or her rehabilitate, reintegrate into the community, and reduce the risk of reoffending.

Parsimony To be parsimonious is to do no more than is necessary to achieve an (principle of intended purpose. The principle of parsimony means the sentence imposed parsimony) must be no more severe than is necessary to meet the purposes of sentencing.

Penalty unit Fine amounts are based on penalty units rather than specific dollar amounts. Penalty units are adjusted annually to keep pace with inflation.

Plea The response by the accused to a criminal charge – ‘guilty’ or ‘not guilty’.

Precedent A decision that sets down a legal principle to be followed in similar cases in the future.

Prosecution A legal proceeding against a defendant for a criminal offence. Prosecutions are brought by the Crown (through the Director of Public Prosecutions or police prosecutors), not the victim.

Recidivism Returning to or repeating criminal behaviour.

Remand To place an accused person in custody pending further court hearings relating to the charges that have been laid against that accused person.

Remorse Regret for past actions.

Restitution An order under the Sentencing Act 1991 (Vic) requiring an offender or any other person in possession or control of stolen property to return the property, an offender to return the proceeds of the sale of stolen property, or payment of a sum of money up to the value of the stolen property.

Sanction Penalty or sentence.

Sentence The penalty imposed by the court on a person guilty of an offence.

Sentencing All possible sentences available to courts arranged in order from the most hierarchy severe to the least severe.

Statute law Law made by parliament set out in legislation called Acts of Parliament.

Summary Offences that are less serious than indictable offences, (e.g. minor traffic offences offences and offensive behaviour). Generally, summary offences are heard in the Magistrates’ Court. You be the Judge Years 11 & 12 Teacher Guide 27

Suspended A sentencing order that has been abolished in Victoria. A suspended sentence sentence was a sentence of imprisonment that was wholly or partially held back for a period by the court. If the offender reoffended during this period, he or she could be imprisoned for the total duration of the sentence. Suspended sentences are no longer available in the higher courts for offences committed on or after 1 September 2013 and in the Magistrates’ Court for offences committed on or after 1 September 2014.

Total effective In a case with a single charge, the TES is the sentence imposed for that sentence (TES) charge before the non-parole period is imposed. In a case with multiple charges, the TES is the total of the sentences imposed for all charges, taking into account whether the sentences are to be served cumulatively or concurrently, before the non-parole period is imposed. Also known as the ‘head sentence’.

Victim A person who has been injured directly because of a criminal offence, or a family member of a person who has died because of a criminal offence. ‘Injury’ includes physical injuries, grief, distress, or trauma, and loss or damage to property.

Victim Impact A statement by a victim, presented to the court at the time of sentencing, Statement explaining how the crime has affected him or her.

Young person/ Under the Sentencing Act 1991 (Vic), a person who is under the age of 21 young offender years at the time of being sentenced. You be the Judge Years 11 & 12 Teacher Guide 28

Bibliography

Fox, Richard, Victorian Criminal Procedure: State and Federal Law (Monash Law Book Co- operative, 2005).

Freiberg, Arie, Pathways to Justice: Sentencing Review 2002 (Department of Justice, Melbourne, 2002).

Freiberg, Arie, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed., Thomson Reuters, Sydney, 2014).

Gelb, Karen, Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing (Sentencing Advisory Council, 2006).

Ministerial Council on Education, Early Childhood Development and Youth Affairs, Melbourne Declaration on Educational Goals for Young Australians (December 2008) .

Department of Education, Science and Training, National Framework for Values Education in Australian Schools 2005 (Commonwealth of Australia, 2005).

Sentencing Advisory Council, Sentencing Snapshots (Sentencing Advisory Council, 2005–).

Victorian Curriculum and Assessment Authority, Legal Studies: Victorian Certificate of Education Study Design (Victorian Curriculum and Assessment Authority, 2010).

Legislation

Charter of Human Rights and Responsibilities Act 2006 (Vic) Children, Youth and Families Act 2005 (Vic) Confiscation Act 1997 (Vic) Constitution Act 1975 (Vic) Crimes Act 1914 (Cth) Crimes Act 1958 (Vic) Criminal Code Act 1995 (Cth) Sentencing Act 1991 (Vic) Sex Offenders Registration Act 2004 (Vic) Victims of Crime Assistance Act 1996 (Vic) Victims’ Charter Act 2006 (Vic)