Culpable driving causing death

1. VCE case study Culpable driving causing death

2. 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 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 judgements 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(max 2 years) suspended sentence of imprisonment(max 3 years – higher courts; 2 years – Magistrates’ Court) 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? Sentencing Advisory Council, 2012 Source: Victorian Sentencing Manual, Judicial College of Victoria

7. Fair punishment Protect the community Deterrence PURPOSES OF SENTENCING Denunciate Rehabilitation Purposes of sentencing These are the ONLY purposes for which sentences might 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 straight-forward 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(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 • If a court finds a person guilty, a victim of the offence may make a victim impact statement • A victim impact statement 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. Cumulative or concurrent? 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 How long is a sentence really? Sentencing Advisory Council, 2012

12. Non-parole period • Non-parole period is set by the court and is the part of the sentence the offender has to serve in prison before being eligible for parole • A non-parole period must be fixed for sentences of 2 years or more • A non-parole period may be fixed for sentences of 1–2 years • A non-parole period cannot be fixed for sentences of 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. 3. The crime and the time • What is ‘culpable driving causing death’ and what penalties does it bring? Sentencing Advisory Council, 2012 Photo: Trevor Poultney

14. Culpable driving causing death • Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence • Penalty: Level 3 imprisonment (20 years maximum) or a level 3 fine or both • Culpable driving includes causing the death of another person while driving • recklessly • negligently • under the influence of alcohol or drugs Sentencing Advisory Council, 2012 Crimes Act 1958, s 318(1) and (2)

15. People sentenced Sentencing Advisory Council, 2012

16. Sentence types Sentencing Advisory Council, 2012

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

18. Average imprisonment length by gender Sentencing Advisory Council, 2012

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

20. The offender • Annie Owther is a 39 year old woman • She has pleaded guilty to one count of culpable driving causing death, one of negligently causing serious injury and one of driving whilst disqualified • The maximum penalty for culpable driving is 20 years’ imprisonment and for negligently causing serious injury, 5 years’ imprisonment Sentencing Advisory Council, 2012

21. The crime 1 Annie spent most of New Year’s day with her friend Bob Winkle She drank two cans of beer at home, six cans at a hotel (they walked there and back) and then two more at home At about 7pm Annie drove Bob to buy some cigarettes Annie lost control of the car, which slid across the road and collided with a car coming in the opposite direction Bob was killed instantly Sentencing Advisory Council, 2012

22. The crime 2 • A man and his two children in the other car were injured • Annie suffered serious injuries and had no recollection of the collision • It was estimated that Annie’s car was travelling at 110 kph in a 70 kph zone • Her blood alcohol content was 0.14 one hour later Sentencing Advisory Council, 2012

23. Factors for consideration Annie has one prior conviction for driving over 0.05. She has never been in prison She was unlicensed when this collision happened Annie is divorced with 2 children aged 11 and 8. Her husband was violent and abused her Her parents were alcoholics and she had been sexually abused by her father She started drinking at the age of 8 and was made a ward of the state She expressed remorse and has sought help for her drinking problem Annie pleaded guilty to the charges Sentencing Advisory Council, 2012

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

25. You decide … • What sentence would you impose for each individual count? • What total sentence would you impose? • If imprisonment: • What would be the head sentence? • What would be the non-parole period? Sentencing Advisory Council, 2012

26. The maximum penalty • Culpable driving • Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence • Penalty: Level 3 imprisonment and/or fine(Maximum - 20 years and/or 2400 penalty units) Sentencing Advisory Council, 2012 Crimes Act 1958, ss 318A(1) and (2)

27. What the trial judge decided Annie Owther’s case, County Court Count 1 6 years’ imprisonment(Culpable driving) Count 2 3 years’ imprisonment(Negligently cause serious injury) (1 year cumulative) Total effective sentence 7 years’ imprisonment Non-parole period 4 years & 7 months Sentencing Advisory Council, 2012

28. 6. The appeal • What grounds might there be to appeal against the sentence? Photo: Department of Justice Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria Sentencing Advisory Council, 2012

29. Appeal Defendant’s Appeal Manifestly excessive sentence Traumatic childhood, depression and alcoholism not given sufficient weight as mitigating factors Insufficient weight given to the delay in charging Annie Error in concluding no positive prospects for rehabilitation Sentencing Advisory Council, 2012

30. What the Court of Appeal decided Count 1 6 years imprisonment Count 2 3 years (1 year cumulative) Total effective sentence 7 years’ imprisonment Non-parole period 4 years’ imprisonment Decision Circumstances of offence and offender’s driving history call for punishment which significantly reflects specific and general deterrence. Childhood abuse does not lessen legal or moral culpability, but there are prospects of rehabilitation. Self-induced addiction to drugs and alcohol not a mitigating factor. Fact that she was driving whilst disqualified is an aggravating factor. Sentencing Advisory Council, 2012

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