Culpable driving causing death Case study for VCE

Culpable driving causing death

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?

Pho

to:

John

Fre

nch

/ C

ourt

esy

of T

he A

ge

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

Sentencing Act 1991 s 5(2)

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

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 culpable driving causing

death?

What penalties does it bring?

Photo: Trevor Poultney


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. Culpable driving includes causing the death of another person while driving:

• recklessly or

• negligently or

• under the influence of alcohol or drugs

Maximum penalty

The maximum penalty for culpable driving causing death is Level 3 imprisonment (maximum 20 years’ imprisonment) and/or a Level 3 fine (2,400 penalty units)

Crimes Act 1958 ss 318(1)(2)


Culpable driving causing death people sentenced


Length of imprisonment


Baseline sentencing – current median


Baseline sentencing – baseline sentence


Age & gender of people sentenced


Total effective sentence & non-parole period


What are the facts of this case?

4. The case


The offender

• Annie Owther is a 39 year old woman

• She has pleaded guilty to:

– one count of culpable driving causing death

– one count of negligently causing serious injury

– one count of driving while disqualified


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 (Annie and Bob walked there and back) and then two more at home

• At about 7 p.m. 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


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 concentration was 0.14 one hour later


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


5. The sentence

What sentence would you give?

Photo: Department of Justice & Regulation


You decide …

1. What sentence would you impose for each individual count?

2. What total sentence would you impose?

3. If imprisonment:– What would be the total effective sentence?

– What would be the non-parole period?


The maximum penalty

• 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 2,400 penalty units)

Crimes Act 1958 ss 318A(1)(2)


What the trial judge decided

Annie Owther’s case, County Court• Count 1 culpable driving causing death:

six years’ imprisonment

• Count 2 negligently cause serious injury:three years’ imprisonment (one year cumulative)

• Total effective sentence: seven years’ imprisonment

• Non-parole period: four years and seven months


6. The appeal

What grounds might there be to appeal against the sentence?

Pho

to:

Dep

artm

ent

of J

ustic

e &

Re

gula

tion

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


Grounds for appeal

The defence appealed the sentence on these grounds:• 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


What the Court of Appeal decided

• Count 1: six years’ imprisonment

• Count 2: three years’ imprisonment (one year cumulative)

• Total effective sentence: seven years’ imprisonment

• Non-parole period: four years’ imprisonment

Decision• Circumstances of the offence and the offender’s driving history call for

punishment that 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 is not a mitigating factor

• Fact that she was driving while disqualified is an aggravating factor


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

Culpable driving causing death Case study for VCE