Armed robbery Case study for VCE. 2 Sentencing Advisory Council, 2015 1. Sentencing origin and range What is the origin and range of sentences available

Armed robbery

Case study for VCE

2 Sentencing Advisory Council, 2015

1. Sentencing origin and range

What is the origin and range of sentences available to a judge in Victoria?

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Chief Justice Marilyn Warren of the Supreme Court of Victoria


Who is responsible for sentencing?

In Australia, responsibility for sentencing is spread among

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 that 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, for example:

–Crimes Act 1958 deals with a range of crimes, including injury offences

–Road Safety Act 1986 deals with a range of driving offences, including drink driving and drug driving


Types of sentences

Imprisonment

Drug treatment order

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

Just punishment


Principle of parsimony

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

Parsimony~ extreme care when imposing punishment ~

Where a choice of punishment exists,the 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 fineor a community correction order, a fine should be imposed

provided it meets the purposes of sentencing


Factors that must be considered

Maximum penalty& current sentencingpractices

Type of offence& how serious

Circumstancesof the offender

VictimAggravating or

mitigatingfactors

Relevant Actsof Parliament

& previouscourt decisions

Factors making the crime worse, intention, effects, method, motive,

weapons,role the offender

played

Prior offences,age, character,& mental state.

Alcohol, drug, orgambling addiction.

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

Sentencing Act 1991 s 5(2)

Factors that must be consideredwhen sentencing


Victim Impact Statements

• If a court finds a person guilty, 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 really?

Cumulative or concurrent?

• Cumulative sentences for two or more crimes that run one after the other, e.g. two x five-year prison sentences served cumulatively = 10 years in prison

• Concurrent sentences for two or more crimes that run at the same time, e.g. two x five-year prison sentences served concurrently = five years in prison

• The total effective sentence (TES) (or head sentence) the total imprisonment sentence for all offences within a case, after orders making sentences cumulative or concurrent


Non-parole period

• A non-parole period is set by the court. It is the part of the sentence that must be served in prison before the offender may apply to be released on parole

• If a prison sentence of two years or longer is imposed, the court must set a non-parole period

• Courts have a choice of whether or not to set a non-parole period for prison sentences of one to two years

• A non-parole period cannot be set for prison sentences of less than one year

• Parole is the prisoner’s release from prison before the end of his or her total possible prison sentence, subject to conditions (e.g. regular reporting to a parole officer)


3. The crime and the time

What is armed robbery?

What penalties does it bring?


Armed robbery

A person is guilty of armed robbery if he or she commits any robbery and at the time has with him or her a firearm, imitation firearm, offensive weapon, explosive, or imitation explosive. A person guilty of armed robbery is guilty of an indictable offence

Maximum penalty• The maximum penalty for armed robbery is Level 2

imprisonment (maximum 25 years’ imprisonment) and/ or a Level 2 fine (3,000 penalty units)

• The maximum penalty for attempted armed robbery is Level 3 imprisonment (maximum 20 years’ imprisonment) and/or a Level 3 fine (2,400 penalty units)

Crimes Act 1958 s 75A(1) , (2)


Armed robbery people sentenced


Armed robbery – sentence types


Age & gender of people sentenced


Total effective sentence & non-parole period


What are the facts of this case?

4. The case


The offender

• Sam Kerr is a 30 year old man

• He pleaded guilty and was convicted on three counts:

– one x armed robbery

– two x attempted armed robbery


The crime 1

• In the early hours of Saturday morning, Sam walked into a service station with a sharp piece of fence paling

• He slammed the paling on the counter and demanded money

• The attendant gave him $120, and Sam ran out of the store


The crime 2

• The next day, Sam walked into another service station at about 5.00 p.m.

• He went up to the counter holding a sharp object and said, ‘I'll give you ten seconds to give me $250’

• The attendant locked himself in the console and threatened to call the police. Sam left the store empty handed

• At about 9.00 p.m. that night, he tried the same thing in another service station but again left empty handed when a customer walked in


Factors for consideration

• Sam has no prior convictions

• He pleaded guilty to all offences

• The first attempted armed robbery was not reported to police. Sam was only charged with this offence because he told the police what had happened

• He had recently been retrenched from his job and needed $250 to pay his rent

• Sam has a congenital disorder, which means he only has 5% vision in one of his eyes

• Because of the disorder, he was bullied a lot in school and ended up leaving after Year 9


5. The sentence

What sentence would you give?

Photo: Department of Justice & Regulation


You decide …

1. What sentence would you impose for each of the three counts?

2. If imprisonment:

– What would be the total effective sentence?

– What would be the non-parole period?


The maximum penalty

• A person found guilty of armed robbery is liable to Level 2 imprisonment (maximum 25 years) and/or fine (3,000 penalty units)

• A person guilty of attempted armed robbery is liable to Level 3 imprisonment (maximum 20 years) and/or fine (2,400 penalty units)

Crimes Act 1958 ss 75A(2), 321P


What the trial judge decided

Sam Kerr’s case, County Court• Count 1: two years’ imprisonment• Count 2: one year’s imprisonment• Count 3: one year’s imprisonment• Cumulation: six months of Counts 2 and 3 served cumulatively on

each other and on Count 1 • Total: three years’ imprisonment• Non-parole period: 15 months

Trial judge’s comment‘[I have reached the sentence by] weighing the competing sentencing considerations and, in particular, focusing on the need for deterrence, punishment and denunciation, but ameliorating the sentence to take into account your good prospects of rehabilitation and prior good character’


6. The appeal

What grounds might there be to appeal against the sentence?

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Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria


Grounds for appeal

• The defence appealed the sentence on the ground that the sentencing judge had not made any allowance for the fact that the offending in Count 2 was voluntarily disclosed by Sam to the police, otherwise this offence would have gone unreported

• The defence argued that Sam’s actions were a significant mitigatory consideration that should have led to a lesser sentence on Count 2 compared with Count 3


What the Court of Appeal decided

Kerr v The Queen , Supreme Court, Court of Appeal

• Count 1: 18 months’ imprisonment

• Count 2: six months’ imprisonment

• Count 3: nine months’ imprisonment

• Cumulation: sentence on Count 2 to be served concurrently, and three months of Count 3 served cumulatively with Count 1

• Total: 21 months’ imprisonment

• Non-parole period: 10 months’ imprisonment

Appeal judge’s comment

‘Armed robbery is, indeed, a serious crime and will generally warrant a significant period of imprisonment; however, the sentence imposed must be proportionate to the gravity of the particular crime considered in the light of the objective circumstances. In this case, each of the offences clearly falls into the lowest range of armed robbery and attempted armed robbery offences. The mitigatory considerations are powerful, particularly that of the appellant’s previous good character, the prospects of rehabilitation and clear remorse for his conduct’


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

Photo: Department of Justice & Regulation

Documents

Armed robbery Case study for VCE. 2 Sentencing Advisory Council, 2015 1. Sentencing origin and range What is the origin and range of sentences available