You be the Judge VCE Armed Robbery Slides

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Armed robbery
Case study for VCE
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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
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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

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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

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Types of sentences
Most severe

• Imprisonment
• Drug treatment order
• Community correction order
• Fine
• Adjourned undertaking

Least severe
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2. Sentencing theory

• What must a judge consider when deciding what
  sentence to impose?

Source Victorian Sentencing Manual, Judicial
College of Victoria
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Purposes of sentencing
These are the ONLY purposes for which sentences
can be given
Sentencing Act 1991 s 5(1)
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Principle of parsimony
Parsimony extreme care when imposing punishment

Where a choice of punishment exists,the judge
should take care to choosethe 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 imposedprovided it meets the purposes
of sentencing
Sentencing Act 1991 ss 5(3)?(4), 5(6)?(7)
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Factors that must be considered
Factors that must be consideredwhen sentencing
Maximum penalty current sentencing practices
Type of offence how serious
Circumstancesof the offender
Victim
Aggravating or mitigating factors
Relevant Acts of 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 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 Act 1991 s 5(2)
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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

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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

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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 prisoners 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)

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3. The crime and the time

• What is armed robbery?
• What penalties does it bring?

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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)
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Armed robbery ? people sentenced
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Armed robbery sentence types
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Age gender of people sentenced
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Total effective sentence non-parole period
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4. The case

• What are the facts of this case?

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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

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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

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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

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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

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5. The sentence

• What sentence would you give?

Photo Department of Justice Regulation
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You decide

• What sentence would you impose for each of the
  three counts?
• If imprisonment
• What would be the total effective sentence?
• What would be the non-parole period?

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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
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What the trial judge decided

• Sam Kerrs case, County Court
• Count 1 two years imprisonment
• Count 2 one years imprisonment
• Count 3 one years 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 judges 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

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6. The appeal

• What grounds might there be to appeal against the
  sentence?

Photo Department of Justice Regulation
Deputy Chief Magistrate Dan Muling sitting in the
Magistrates Court of Victoria
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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 Sams actions were a
  significant mitigatory consideration that should
  have led to a lesser sentence on Count 2 compared
  with Count 3

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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 judges 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 appellants
  previous good character, the prospects of
  rehabilitation and clear remorse for his conduct

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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