Culpable driving causing death

VCE case study

Culpable driving causing death

2 Sentencing Advisory Council, 2012

1. Sentencing origin and range

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

Pho

to:

John

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nch

/ C

our

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of

The

Age

Chief Justice Marilyn Warren of the Supreme Court of Victoria


Who is responsible for sentencing?

In Australia, responsibility for sentencing is spread between

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 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 judgements

• Various Acts and Regulations creating particular offences, e.g.:

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

–Road Safety Act 1986 deals with offences related to driving under the influence of drugs or alcohol.


Types of sentences

imprisonment

drug treatment order (max 2 years)

suspended sentence of imprisonment (max 3 years – higher courts; 2 years – Magistrates’ Court)

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 might be given

Sentencing Act 1991, s 5(1)

PURPOSES OF SENTENCING

Protect the community Deterrence

RehabilitationDenunciate

Fair punishment


Principle of parsimony

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

Judges should choosethe most straight-forwardsolution when sentencing

Parsimony~ taking extreme care in using resources ~

If a choice of punishmentexists a 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 fine or a community correction

order, a fine should be imposed


Factors that must be considered

Maximum penalty& current sentencing

practice

Type of offence& how serious

Offender’sdegree of

responsibility& culpability

VictimAggravating or

mitigatingfactors

Relevant Actsof Parliament& statistical

data

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

weapons,role the offender

played

Prior offences,age, gender,race, culture,

character, mentalstate, alcohol,

drugs, gambling,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(2AC(2))

Factors that must be considered when sentencing


Victim impact statements

• If a court finds a person guilty, a victim of the offence may make a victim impact statement

• A victim impact statement 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 are sentences for two or more

crimes that run one after the other e.g. 2 x 5-year prison sentences served cumulatively = 10 years in prison

• Concurrent sentences are sentences for two or more crimes that run at the same time e.g. 2 x 5-year prison sentences served concurrently = 5 years in prison

• The head sentence is the sentence given for each crime before a non-parole period is set

• The total effective sentence (TES) is the total sentence for all crimes once they have been made cumulative or concurrent


Non-parole period

• Non-parole period is set by the court and is the part of the sentence the offender has to serve in prison before being eligible for parole

• A non-parole period must be fixed for sentences of 2 years or more

• A non-parole period may be fixed for sentences of 1–2 years

• A non-parole period cannot be fixed for sentences of less than 1 year

• Parole is the release of a prisoner before the end of a sentence, subject to certain conditions (e.g. regular reporting to parole officer), to help him or her settle back into the community


3. The crime and the time

What is ‘culpable driving causing death’ and 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

• Penalty: Level 3 imprisonment (20 years maximum) or a level 3 fine or both

• Culpable driving includes causing the death of another person while driving

– recklessly– negligently– under the influence of alcohol or drugs

Crimes Act 1958, s 318(1) and (2)


People sentenced

27 17 23 16 15

28

19

25

18

15

0

10

20

30

2005-06 2006-07 2007-08 2008-09 2009-10

Nu

mb

er o

f p

eop

le

People sentenced Immediate custodial sentence


Sentence types

21

14

1915 15

6

3

3

0

10

20

30

2005–06 2006–07 2007–08 2008-09 2009-10

Nu

mb

er o

f p

eop

le

Imprisonment Youth justice centre order

Wholly/partially suspended Other


Total effective sentence & non-parole period

7

9 3

6 9

16 5

4 3

6

0

1

2

3

4

5

6

7

8

9

10

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14

Total effective sentence (years)

No

n-p

aro

le p

erio

d (

year

s)


Average imprisonment length by gender

72 72 60 72

65 64 6360

74

0

12

24

36

48

60

72

84

2005–06 2006–07 2007–08 2008-09 2009-10

Mo

nth

s

Male Female


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 of negligently causing serious injury and one of driving whilst disqualified

• The maximum penalty for culpable driving is 20 years’ imprisonment and for negligently causing serious injury, 5 years’ imprisonment


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 (they walked there and back) and then two more at home

• At about 7pm 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 content 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


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 head sentence?– What would be the non-parole period?


The maximum penalty

Culpable driving

• 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 2400 penalty units)

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


What the trial judge decided

Annie Owther’s case, County Court• Count 1 6 years’ imprisonment

(Culpable driving)

• Count 2 3 years’ imprisonment(Negligently cause serious injury) (1 year cumulative)

• Total effective sentence 7 years’ imprisonment

• Non-parole period 4 years & 7 months


6. The appeal

What grounds might there be to appeal against the sentence?

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De

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


Appeal

Defendant’s Appeal

• 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 6 years imprisonment

• Count 2 3 years (1 year cumulative)

• Total effective sentence 7 years’ imprisonment

• Non-parole period 4 years’ imprisonment

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

which 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 not a mitigating factor.

• Fact that she was driving whilst 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

Documents

Culpable driving causing death