intentionally causing serious injury case study for vels

Intentionally causing serious injury

Case study for VELS

2 Sentencing Advisory Council, 2015

1. What is sentencing?

What laws guidea judge when sentencing?

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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) (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)

Aggravating ormitigating

factors

Maximum penalty& current sentencingpractices

Type of offence& how serious

Circumstancesof the offender

Victim

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?

• 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

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)

A non-parole period:• is set by the court• is the part of the sentence that must be served in prison• must be set by the court for sentences of two years or more• may or may not be set for sentences of one to two years• is not set if the sentence is less than one year


3. The crime and the time

What is intentionally causing serious

injury?

What is the maximum penalty?

Photo: Trevor Poultney



A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence

Maximum penalty

The maximum penalty for intentionally causing serious injury is Level 3 imprisonment (maximum 20 years’ imprisonment) and/or a fine of 2,400 penalty units)

Crimes Act 1958 s 16


What does ‘injury’ mean?

Physical injury:• unconsciousness, disfigurement, or substantial pain• infection with a disease• impairment of bodily function

Harm to mental health:• psychological harm• does not include an emotional reaction

such as distress, grief, fear, or anger, unless this results in psychological harm



What does ‘serious injury’ mean?

Serious injury means—

• an injury (including the cumulative effect of more than one injury) that —

– endangers life or

– is substantial and protracted or

• the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm


Intentionally causing serious injury – people sentenced


Intentionally causing serious injury – sentence types


Length of imprisonment


Age & gender of people sentenced


Total effective sentence & non-parole period


4. The case

What are the facts of this case?


The offender

• Roger Willett is a 20 year old man

• He was 19 at the time of the offence

• He has been found guilty of one count of intentionally causing serious injury


The crime 1

• Roger Willett and two friends were drinking in a pub carpark after a party. As they drove out of the carpark, Roger (a passenger in the front seat of the car) commented to the others about the victim, Trent Beyer

• Trent Beyer had been drinking at the pub. He was now sitting at a bus stop drinking a beer stubby. Roger thought Trent was staring at them

• Trent ran after the car. He seemed as though he was about to throw a stubby. The car stopped. The three men got out

• Roger says he was threatened with the stubby and knocked it out of Trent’s hand

• There was an argument between the driver and Trent. Then Roger and Trent exchanged blows


The crime 2

• Roger grabbed Trent by the throat, punching him and causing him to fall backwards over a small fence

• Roger fell over the fence onto Trent and kicked him 10 times and punched him more than 20 times, even though Trent was unconscious after the first few punches. At first, Trent was kicking Roger back

• Roger’s friends pulled him off Trent and all three drove off, leaving Trent still unconscious inside the fence

• The three in the car did not offer the victim assistance. They talked about calling an ambulance but didn’t, and Trent was found by a passerby


Factors for consideration

• Roger pleaded guilty

• Roger had been advised by his doctor against drinking because he was taking Tegretol to prevent epileptic seizures

• Roger knew he reacted badly to mixing alcohol and Tegretol

• Roger has six previous convictions for offences of dishonesty

• Roger is single and has a full-time job

• Roger was physically abused as a child and placed on a protection order

• Since the crime, Roger’s older sister has taken him ‘under her wing’ and provided some supervision


Victim Impact Statement

• Trent was in hospital for 13 days

• He had severe facial injuries including a foot imprint on the bones of the skull, severe bruising and swelling over the face, a deep cut to his left eye, a complex facial fracture, and a fracture at the base of the skull

• Treatment was ongoing. He needed surgery and dental treatment after his initial stay in hospital

• He described suffering from fits of depression and nervousness at night

• He complained of balance problems and dizziness to such an extent that he had to quit his job as a window cleaner


5. The sentence

What sentence would you give?

Photo: Department of Justice & Regulation


You decide …

What sentence would you give?

• If imprisonment, what would be the total effective 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?


The maximum penalty


• A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence

• Penalty: Level 3 imprisonment and/or fine(maximum 20 years’ imprisonment and/or 2,400 penalty units)

Roger is guilty of one count of intentionally causing serious injury and could receive:

• possible maximum imprisonment of 20 years

• possible maximum fine of 2,400 penalty units



What the judge decided

Roger Willett’s case, County Court

• Count 1: 18 months’ imprisonment

• Non-parole period: 12 months

Judge’s comments

‘… this sentencing task was difficult given the brutality of the attack by [the offender] for which he freely took responsibility, the seriousness of the offence and yet on the other hand [the offender’s] comparative youth, his lack of significant [prior offences], his genuine remorse and his very real chances of rehabilitation’


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

Photo: Department of Justice & Regulation

intentionally causing serious injury case study for vels

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