Arson Case study for VELS. 2 Sentencing Advisory Council, 2015 1. What is sentencing? What laws guide a judge when sentencing? Photo: John French / Courtesy

Arson

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


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3. The crime and the time

What is arson?

What is the maximum penalty?

Photo: Trevor Poultney


Arson

A person who intentionally and without lawful excuse destroys or damages any property belonging to another by setting it on fire is guilty of an indictable offence

Maximum penaltyThe maximum penalty for arson is Level 4 imprisonment (maximum 15 years’ imprisonment) and/or a fine of 1,800 penalty units

(The maximum penalty for each of the other counts is10 years’ imprisonment and/or 1,200 penalty units)

Crimes Act 1958 s 197(1) (6) & (7)


Arson – people sentenced


Arson – sentence types


Age & gender of people sentenced


Total effective sentence & non-parole period


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4. The case

What are the facts of this case?


The offender

• Henry Thomas is a 21 year old man

• He was 19 at the time of the offence

• He has been found guilty of one count of burglary, two counts of theft, one count of dishonestly obtaining financial advantage, and one count of arson


The crime 1

• Henry Thomas broke into a factory, looking for something to steal

• Deciding he needed help to steal computers from the factory, he enlisted the help of his roommate Caleb Isaacs, offering to share the proceeds with him

• After five or six trips to the factory to remove computers and other equipment, the two returned a final time

• Henry made phone calls to expensive sex lines from the factory phone while Caleb trashed an office

• Worried that they might have left traceable evidence behind, Henry suggested they burn the place down

• Caleb spread shredded paper throughout the offices


The crime 2

• They went home to find a cigarette lighter and returned to light a fire

• The fire caught hold so quickly that the men were forced to escape through a skylight

• Henry and Caleb enjoyed watching the fire from a distance, waiting for the fire trucks to arrive


Factors for consideration

• Henry pleaded guilty at the earliest opportunity and offered to give evidence against Caleb

• Henry has 38 previous convictions from five court appearances but no previous custodial sentences

• At the time of the present offences, he was subject to both a community-based order and a good behaviour bond

• Henry is single and has a full-time job

• Henry has a troubled relationship with his family and lives in welfare-provided housing

• Henry has an IQ that puts him in the top 10% of society


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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? What conditions?

• If a fine, what would be the amount of the fine?


The maximum penalty

ArsonIntentionally and without lawful excuse destroying or damaging any property belonging to another by setting it on fire. Penalty: 15 years’ imprisonment and/or 1,800 penalty units

TheftDishonestly appropriating property belonging to another. Penalty: 10 years’ imprisonment and/or 1,200 penalty units

BurglaryEntering any building with intent to steal or damage anything. Penalty: 10 years’ imprisonment and/or 1,200 penalty units

Obtaining financial advantageDishonestly obtaining financial advantage by deception [causing a machine to make a response that the person operating it is not authorised to cause it to make]. Penalty: 10 years’ imprisonment and/or 1,200 penalty units

Henry Thomas is guilty of one count of burglary, two counts of theft, one count of dishonestly obtaining financial advantage, and one count of arson. He could receive:

• possible maximum imprisonment of 55 years

• possible maximum fine of 6,600 penalty units

Crimes Act 1958 ss 197, 74, 76, 82


What the judge decided

Henry Thomas’s case, County Court • Count 1 (burglary): two years’ imprisonment

• Count 2 (theft): two years’ imprisonment

• Count 3 (theft): one month’s imprisonment

• Count 4 (financial advantage): 14 days’ imprisonment

• Count 5 (arson): four years’ imprisonment

• Cumulation: six months from count 1 to be served cumulatively with the four years imposed on count 5

Total effective sentence: four years and six months’ imprisonment

Non-parole period: two years and 10 months


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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

Documents

Arson Case study for VELS. 2 Sentencing Advisory Council, 2015 1. What is sentencing? What laws guide a judge when sentencing? Photo: John French / Courtesy