Arson

1. VELS Level 6 Arson

2. 1. What is sentencing? • What laws guidea judge when sentencing? Photo: John French / Courtesy of The Age Chief Justice Marilyn Warren of the Supreme Court of Victoria Sentencing Advisory Council, 2012

3. Who is responsible for sentencing? In Australia, responsibility for sentencing is spread between three groups Courts ~ interpret the laws ~ Parliament ~ makes the laws ~ Government ~ puts laws into operation ~ • 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 Sentencing Advisory Council, 2012

4. 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. Sentencing Advisory Council, 2012

5. Types of sentences imprisonment drug treatment order suspended sentence community correction order fine adjourned undertaking Most severe Least severe Sentencing Advisory Council, 2012

6. 2. Sentencing theory What must a judge consider when deciding what sentence to impose? Source: Victorian Sentencing Manual, Judicial College of Victoria Sentencing Advisory Council, 2012

7. Fair punishment Community protection Deterrence PURPOSES OF SENTENCING Denunciation Rehabilitation Purposes of sentencing These are the ONLY purposes for which sentences can be given Sentencing Advisory Council, 2012 Sentencing Act 1991, s 5(1)

8. Principle of parsimony Parsimony ~ taking extreme care in using resources ~ Judges should choose the most straightforward solution when sentencing If a choice of punishment exists 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 Advisory Council, 2012 Sentencing Act 1991, ss 5(3), 5(4), 5(5), 5(6), 5(7)

9. Factors that must be considered Factors that must be considered when sentencing Maximum penalty & current sentencing practice Type of offence & how serious Offender’s degree of responsibility & culpability Victim Aggravating or mitigating factors Relevant Acts of Parliament & statistical data Factors making the crime worse, intention, effects, method, motive, weapons, role the offender played Prior offences, age, gender, race, culture, character, mental state, alcohol, drugs, gambling, personal crisis, guilty plea Impact of crime on victim (e.g. psychological or physical trauma), material or financial loss Factors that increase or lessen theseriousnessof the crime Victim Impact Statement Sentencing Advisory Council, 2012 Sentencing Act 1991, s 5(2AC(2))

10. 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 Sentencing Advisory Council, 2012

11. 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 Sentencing Advisory Council, 2012

12. 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 Sentencing Advisory Council, 2012

13. What is arson? What is the maximum penalty? 3. The crime and the time 13 13 Sentencing Advisory Council, 2012 Sentencing Advisory Council, 2012 Sentencing Advisory Council, 2012 Photo: Trevor Poultney

14. 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 Sentencing Advisory Council, 2012 Crimes Act 1958, s 197(1) (6) & (7)

15. Arson – people sentenced Sentencing Advisory Council, 2012

16. Arson – sentence types Sentencing Advisory Council, 2012

17. Arson – imprisonment by age Sentencing Advisory Council, 2012

18. Total effective sentence & non-parole period Sentencing Advisory Council, 2012

19. What are the facts of this case? 4. The case 19 Sentencing Advisory Council, 2012 Sentencing Advisory Council, 2012

20. 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 Sentencing Advisory Council, 2012

21. 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 Sentencing Advisory Council, 2012

22. 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 Sentencing Advisory Council, 2012

23. 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 Sentencing Advisory Council, 2012

24. What sentence would you give? 5. The sentence 24 Sentencing Advisory Council, 2012 Sentencing Advisory Council, 2012 Photo: Department of Justice

25. 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? Sentencing Advisory Council, 2012

26. Arson Intentionally 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 Theft Dishonestly appropriating property belonging to another. Penalty: 10 years’ imprisonment and/or 1200 penalty units Burglary Entering any building with intent to steal or damage anything. Penalty: 10 years’ imprisonment and/or 1200 penalty units Obtaining financial advantage Dishonestly 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 The maximum penalty Sentencing Advisory Council, 2012 Crimes Act 1958, ss 197, 74, 76, 82

27. 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 years imposed on count 5 • Total effective sentence4 years 6 months imprisonment • Non-parole period 2 years and 10 months Sentencing Advisory Council, 2012

28. 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. 28 Sentencing Advisory Council, 2012 Sentencing Advisory Council, 2012 Photo: Department of Justice