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You be the Judge Teacher Guide Case study 1 Arson Case study 2 Causing serious injury intentionally Case study 3 Theft Case study 4 Trafficking in a drug of dependence
Published by the Sentencing Advisory Council
Melbourne Victoria Australia
© Copyright State of Victoria, Sentencing Advisory Council, October 2009.
This publication is protected by the laws of copyright. Other than in accordance
with the Copyright Act 1968 (Cth), this publication may be photocopied in whole
or in part by teachers for classroom use only. Any other inquiries concerning
copyright should be addressed to the Sentencing Advisory Council.
ISBN: 978-1-921100-49-9 (Print)
978-1-921100-50-5 (Online)
Disclaimer: The information in this guide and accompanying notes was current
at the time of production. However, this information should not be relied on as
legal advice.
Also published on www.sentencingcouncil.vic.gov.au
Authorised by the Sentencing Advisory Council
Level 4, 436 Lonsdale Street, Melbourne
Printed by BigPrint, Lonsdale Street, Melbourne
Published on recycled paper
ISO 14001 environmental management system in placeiii
Contents
Contents
Contributors v
Introduction 1
Curriculum links and student learning outcomes 2
Victorian Essential Learning Standards 2
National Educational Goals 4
National Framework for Values Education in Australian Schools 4
Statements of Learning 5
Key concepts and understandings 6
About the criminal justice system 6
About sentencing 8
Victorian criminal court system 13
The prosecution process in Victorian courts 14
Sentencing and the media 14
You be the Judge case studies 16
Preparation for You be the Judge 17
When to ask students to consider a sentence 17
Delivering You be the Judge case studies 18
Indicators of student achievement 23
Resources 25
Publications 25
Web resources: Victoria 26
Web resources: Australia 27
Web resources: International 27
Bibliography 28
Glossary 29
Appendix 1 31
VELS Level 6 31
Appendix 2 33
Victim impact statement 33
Case Study 1: Arson 1–1
Case Study 2: Causing serious injury intentionally 2–1
Case Study 3: Theft 3–1
Case Study 4: Trafficking in a drug of dependence 4–1iv
v
Contributors
Contributors
Author Trevor Poultney
Sentencing Advisory Council
Chair Arie Freiberg AM
Deputy-Chair Thérèse McCarthy
Council Members Carmel Arthur
David Grace QC
Rudolph Kirby
Andrea Lott
Jenny Morgan
Simon Overland APM
Barbara Rozenes
Gavin Silbert SC
Lisa Ward
David Ware
Chief Executive Officer Stephen Farrow
The Sentencing Advisory Council thanks the people who contributed to the preparation of the
material, in particular Jenni Coady, Catherine Jeffreys and Nick Turner.
The VELS material reproduced on pages 3 and 31–32 of this guide is an extract from material
produced by the Victorian Curriculum and Assessment Authority, Australia. Students and teachers
should consult the Victorian Curriculum and Assessment Authority website for more information.
This material is copyright and cannot be reproduced in any form without written permission of
the VCAA. No part of this material may be reproduced (other than the use permitted by this
copyright permission), stored in a retrieval system or transmitted in any form or by any means
without the prior permission in writing of the copyright holder.vi
1
Introduction
Introduction
The Sentencing Advisory Council of Victoria has devised the You be the Judge program as part
of its community education function. Its intention is to raise awareness of the aims, methods
and complexities of sentencing and to help address some community issues about sentencing.
This teacher guide and its accompanying slide shows, based on real sentencing case studies and
including student activities, are for use in Victorian schools at Years 9 and 10 (VELS Level 6).
You be the Judge provides a means by which students can discuss and consider offences committed,
apply the principles of sentencing and experience the weighing of factors involved in imposing a
sentence, such as the boundaries of the law, current sentencing practices and community values.
The Sentencing Advisory Council of Victoria is an independent statutory body established in 2004
under amendments to the Sentencing Act 1991. The functions of the Council are to:
• provide statistical information on sentencing, including information on current sentencing
practices
• conduct research and disseminate information on sentencing matters
• gauge public opinion on sentencing
• consult on sentencing matters
• advise the Attorney-General on sentencing issues
• provide the Court of Appeal with the Council's written views on the giving, or review, of a
guideline judgment.
Sentencing is a practice that attracts significant community interest and often divides opinion.
Media reports suggest that issues of particular concern to the community include the perceived
leniency of sentences in individual cases, disparity between sentences imposed and inconsistency
between those who impose them, and the gap between statutory maximum penalties and actual
sentences imposed by the courts.
Through informing, advising and educating, the Council helps to bridge the gaps in opinion that
such issues can provoke between the courts, government and the community.
The case studies concentrate on the sentencing phase of the legal process. To this end, there is
no secret about the outcome of each trial showcased in these studies: each defendant has been
found guilty, hence, interest focuses entirely upon the sentences imposed and the factors taken
into account in each case.
The case studies are presented as slide shows with accompanying notes that include discussion
points and student activities. This teacher guide provides links to relevant curriculum, background
notes to sentencing in the Victorian court system and preparation for teachers presenting the case
studies.You be the Judge Years 9 & 10 Teacher Guide
2
Curriculum links and student learning
outcomes
Victorian Essential Learning Standards
As a teaching and learning resource, You be the Judge provides excellent opportunities for various
types of team-teaching and teaching across all three strands, as well for teaching in specific domains.
While the program may sit most comfortably in an English or Civics and Citizenship classroom,
it can work very effectively as an integrated program across several curriculum areas. Specific
content and skill areas can be targeted by teachers in the domains of Mathematics, English, Civics
and Citizenship, the Arts, and Information Technology. A teacher implementing You be the Judge
with a class can coordinate with teachers from different curriculum areas to use content from
the program to practise specific skills, drawing the threads together at the end of the study to
reflect on what the group has learned about the process of sentencing. Thus an English class might
focus on the skills of discussion and expository writing, a Mathematics class might concentrate on
statistics and graph interpretation, while a Civics and Citizenship class might concentrate on how
sentencing might affect a citizen’s rights and responsibilities. This approach supports the holistic,
whole school response implementation of the Standards as endorsed by the Victorian Curriculum
and Assessment Authority in Victorian Essential Learning Standards: Overview (March 2005).
An important aspect of You be the Judge is the opportunity to teach and develop thinking skills –
applied intellectual activities that use information to achieve outcomes and include elements such
as solving problems, making decisions, thinking critically, developing an argument and using evidence
in support of that argument. Thinking skills constitute the core of most intellectual activity.
However teachers may choose to use You be the Judge, it contains topical, highly relevant resource
material that provides opportunities for students to demonstrate achievement against the standards
in a number of aspects of Personal Learning, Interpersonal Development, Civics and Citizenship,
the Arts, English, Mathematics, Information and Communications Technology, Communication and
Thinking.
Further information and relevant standards are provided in Appendix 1.3
Curriculum links and learning outcomes
The following learning focus statements are specifically addressed in the case study materials of
You be the Judge.
Physical, Personal and Social Learning
• demonstrate awareness of complex social conventions and behave
appropriately when interacting with others
Interpersonal Development
• consider how values act as social constructs and principles
• respect and build on the ideas and opinions of team members
• using an ethical framework, address ambiguous and hypothetical situations and
gain insights and skills for exploring conflicts and dilemmas
Personal Learning • monitor and reflect on their progress as learners, identifying their strengths and
weaknesses and taking actions to address their weaknesses
• work both independently and as part of a team
• explore the roles and responsibilities of state courts and learn about the
differences between different types of law
Civics and Citizenship
• explore and consider different perspectives, articulate and justify their own
opinions and contest, where appropriate, the opinions of others
Discipline-based Learning • vary the content, structure and form of arts works to suit purpose and audience
The Arts
• write appropriately and effectively in a range of text types for a variety of
purposes and audiences, and construct considered arguments to persuade
others to share a point of view
• read, view, analyse and discuss informative and argumentative texts
English • synthesise information from different texts to draw conclusions
• listen to and have opportunities to produce a range of spoken texts in a variety
of situations
• critically examine the ways in which spoken language influences audiences and,
in their own presentations, experiment with a range of persuasive techniques
• frame research questions and locate relevant resources, including contemporary
media and online resources
Humanities (History)
• critically evaluate sources of evidence and recognise that in history there are
multiple perspectives and partial explanations
• comprehend the difference between a population and a sample, and generate
Mathematics
data using surveys, experiments and sampling procedures
Interdisciplinary Learning
• listen, view and respond in a range of contexts and develop their skills in
interpreting meaning
Communication • present viewpoints logically and clearly, and use subject-specific language to
communicate complex information
• provide constructive feedback to others and respond to constructive feedback
Information and • use a range of word-processing and editing software to publish materials that
Communications use visual images and print text
Technology • refine their searching techniques to get more precise results
• make informed decisions about controversial and complex issues, and reflect on
their own thinking and identify assumptions that may influence their ideas
Thinking
• examine and acknowledge a range of perspectives on an issue and
accommodate diversity
Extracted from Victorian Essential Learning Standards: Level 6 Revised edition December 2005, Victorian
Curriculum and Assessment Authority .You be the Judge Years 9 & 10 Teacher Guide
4
National Educational Goals
Both The Adelaide Declaration on National Goals for Schooling in the Twenty-First Century (1999) and
the Melbourne Declaration on Educational Goals for Young Australians (2008) are major affirmations of
the necessity to enable young Australians to engage effectively with an increasingly complex world
and become active and informed so they can exercise their rights and responsibilities as citizens.
The You be the Judge program strongly reflects the goals of these Declarations, especially those
highlighting the importance of having ethical integrity, exercising judgement and responsibility in
matters of morality, needing to be active and informed citizens with a commitment to the national
values of democracy, equity and justice, and being willing to participate in Australia’s civic life.
Early statements from the National Curriculum Board strongly indicate that, while learning in
specific, discrete areas will contribute to the goals of a national curriculum, there is much value in
being able to make connections between discipline areas. You be the Judge is ideally suited to bridge
discipline boundaries and provide opportunities to teach thinking skills.
National Framework for Values Education in Australian
Schools
You be the Judge also provides useful and timely links with the National Framework for Values
Education in Australian Schools. The program ties in very closely with all nine Values for Australian
Schooling articulated in the National Framework and supports values education by exploring both
the values reflected in the sentencing component of the justice system and the interpretation of
these values by those who have participated in the system.
The sentencing environment is very much based on values – the principles and fundamental beliefs
that guide society’s behaviour – and, during this program, students experience values and their
application in real life situations.5
Curriculum links and learning outcomes
Statements of Learning
The Statements of Learning developed by the Ministerial Council on Education, Employment,
Training and Youth Affairs from 2005 describe the essential skills, knowledge, understandings
and capacities for young Australians to the beginning of Year 10. You be the Judge provides ideal
opportunities to deliver the required skills, knowledge, understanding and capacities in a number
of curriculum areas, some examples of which are outlined below.
English: By Year 9, students should be reading, viewing and interpreting information and argument
texts that analyse, argue and persuade. In their interpretation of such texts they draw conclusions
about the main idea, convention or viewpoint, identify and evaluate the quality of evidence
presented, analyse and discuss implications, and compare representations in different texts. In their
writing, they synthesise and organise their material logically. When speaking and listening students
examine issues, evaluate opinions, argue points and make judgements in order to persuade others;
they identify and explore moral and ethical dimensions to an issue.
Civics and Citizenship: The expectation is that Year 9 students will have the opportunity to
explore concepts of justice and law including independence of the judiciary, equality before the
law, presumption of innocence, the right of appeal and restorative justice. The program caters for
this, as well as building on earlier learning experiences in which students learn how courts protect
democratic rights and freedoms, consider what makes fair and appropriate sanctions, and reflect
on how the legal system reflects community values.
Mathematics: You be the Judge provides opportunities for students to work with graphs, tables
and statistics. By Year 9 students should be able to choose and use sets of things, lists, tables,
diagrams and graphs to represent, interpret and analyse data. They test and check the validity
of propositions and make generalisations based on systematic exploration of particular cases,
developing arguments to support their truth or otherwise; they calculate proportions, percentages
and rates, representing part to part and part to whole relationships as ratios.
Information and Communication Technologies: You be the Judge gives Year 9 students opportu-
nities to perform advanced ICT searches, selecting appropriate sources of digital information in
response to identified needs and research questions and gathering information in different forms
from a variety of sources. They also use ICT to present findings, inform, persuade and develop
thinking.You be the Judge Years 9 & 10 Teacher Guide
6
Key concepts and understandings
The You be the Judge program works by providing students with the tools necessary to understand
the aims, principles and practice of sentencing. It then requires them to utilise this knowledge in
a situation where, faced with the facts and verdict of a real life case, they must make an informed
decision about the appropriate penalty to impose. To do this effectively, it is important that they
have knowledge of the range of penalties available for a particular crime and understand the concept
of mitigation. As students go through the process for themselves, it will become apparent that a
degree of subjectivity is involved in sentencing and that a judge must draw on personal experience
and understanding of the law as well as current sentencing practices and current societal attitudes.
Owing to the highly discretionary and subjective nature of sentencing, it is important that the
safeguard of an appeal system is available to both the defendant and the prosecution.
Justice is often depicted as a blindfolded woman weighing the evidence on scales in one hand, while
in her other hand she carries the sword of retribution. For sentencing, it is useful to consider an
extension of this image, with Justice weighing the elements of a potential sanction – represented
by the sword – in order to achieve a fair sentence that fits the offence and both falls within the
prescribed boundaries of the law and is reflected in common practice.
Closely bound up with the notion of fairness are the concepts of human rights and values. Judges
and magistrates must tread a careful path to take into account the rights of the offender, the victim
and the community in general, just as any sentence imposed must be guided by the law and the
values it reflects.
At the end of this guide is a glossary of specialist and difficult words students are likely to encounter
while working with You be the Judge.
About the criminal justice system
Basic human rights underpin the principles of the criminal justice system in Australia and the
following principles apply to anyone who is brought before a court:
• a person is innocent until proven guilty
• a person has the right to remain silent
• a person has the right to a fair trial
• a person can only be found guilty if it is proved beyond reasonable doubt.
In July 2006 Victoria became the first Australian state to enact a Charter of Human Rights and
Responsibilities into law. Coming into effect from 1 January 2007, the Charter is an agreed set of
democratic rights and freedoms protected by law and applying to every Victorian. The rights listed
above are included in the Charter.7
Key concepts and understandings
In November 2006, a Victims’ Charter was also introduced in Victoria. Its aim is to ensure the rights
of victims of crime are taken into account by all parties in the criminal justice system. This Charter
sets out principles about how the criminal justice system and victim support agencies should
respond to victims of crime, ensuring that victims of crime are treated with courtesy, respect and
dignity by the police, the Office of Public Prosecutions and victim support services at all times.
As a control over the making and implementing of laws, Australia follows the doctrine of the
separation of powers. The Australian Constitution requires that the power to govern is spread
over three separate groups, with each group checking the power of the other two. Legislative
power is the power to make laws and belongs to the parliament (House of Representatives and
Senate); executive power is the power to implement laws and belongs to the government (Prime
Minister, Cabinet and government agencies); judicial power is the power to decide the legality of
laws and belongs to the High Court (judges). The principle of the rule of law depends upon the
idea that, whilst parliament makes the laws, the courts have the responsibility for interpreting that
legislation and assessing whether it is within the guidelines established by the Constitution.
Under the Australian constitutional system, criminal laws can be made by both state and federal
parliaments, although most are made by state parliaments. For example, theft is an offence under
the Victorian Crimes Act 1958, whereas the offence of engaging in a terrorist act is found in the
Commonwealth Criminal Code Act 1995. Victorian courts can hear cases for both summary and
indictable offences (see glossary). When sentencing an offender for committing a crime against a
federal law, the Victorian courts apply the sentencing powers found in the Commonwealth Crimes
Act 1914.
Under the Constitution Act 1975 (Vic), legislative power is vested in the Legislative Assembly and
the Legislative Council, which make up the Victorian Parliament. Executive power is exercised
by the Premier, Cabinet and state government departments and judicial power is vested in the
Supreme Court of Victoria.
In Victoria, parliament decides:
• what maximum penalty is appropriate for each offence
• what range and types of sentencing orders will be available to the courts
• what level of discretion can be exercised by judges in setting penalties for individual offenders/
offences or categories of offenders/offences.
Government agencies such as Corrections Victoria and the Department of Human Services
administer the sentences imposed by the courts, while the courts and judiciary determine the
factual basis upon which a sentence is to be imposed, interpreting and applying the law and
relevant policy to the facts of individual cases. It is the courts which determine what sentence
should be imposed in an individual case.You be the Judge Years 9 & 10 Teacher Guide
8
About sentencing
The two main Acts which govern the sentencing of offenders in Victoria are the Sentencing Act
1991 and the Children, Youth and Families Act 2005. In both these Acts there is a hierarchy of
sentencing orders.
A court must not impose a sentence that is more severe than necessary to achieve the purpose
or purposes for which the sentence is imposed. For example, a court must not impose a prison
term if a less severe sentence would be appropriate. This is called the principle of parsimony and
requires the court to begin at the bottom of the list of possible sanctions and work up towards the
most severe, rather than beginning at the top and working down.
Judges considering an appropriate sentence to impose must take the stated principles and purposes
of sentencing into account. These purposes are set out in the Sentencing Act 1991, s. 5(1), and are
the only purposes for which a sentence can be imposed:
• just punishment – to punish the offender to an extent and in a manner which is just in all of
the circumstances
• specific and general deterrence – to deter the offender or other persons from committing
offences of the same or a similar character
• rehabilitation – to establish conditions within which it is considered by the court that the
rehabilitation of the offender may be facilitated
• denunciation – to denounce the type of conduct engaged in by the offender
• community protection – to protect the community from the offender.
Once these general purposes of sentencing have been considered, a judge must then take into
account the following factors (Sentencing Act 1991, s. 5(2)) when sentencing adult offenders:
• the maximum penalty prescribed for the offence
• current sentencing practices
• the nature and gravity of the offence
• the offender's culpability and degree of responsibility for the offence
• the personal circumstances of any victim of the offence
• the impact of the offence on any victim of the offence
• any injury, loss or damage resulting directly from the offence
• whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at
which the offender did so or indicated an intention to do so
• the offender's previous character (including the offender's prior criminal history, general
reputation and any significant contributions made by the offender to the community)
• the presence of any aggravating or mitigating factor concerning the offender or of any other
relevant circumstances9
Key concepts and understandings
The Children, Youth and Families Act 2005 defines ‘child’ as a person who was 10 or above but
under 18 when an offence was committed but not over 19 when brought before the court. When
sentencing child offenders, the following must also be taken into account as far as is practicable:
• the need to strengthen and preserve the relationship between the child and the child's family
• the desirability of allowing the child to live at home
• the desirability of allowing the education, training or employment of the child to continue
without interruption or disturbance
• the need to minimise the stigma to the child
• the suitability of the sentence to the child
• if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility
for any action by him or her against the law
• if appropriate, the need for community protection, or to protect any person from the child.
(Children, Youth and Families Act 2005, s. 362 (1).)
The role of victims in sentencing
The impact of the crime on victims must also be taken into account in the sentencing process.
Section 5(2) of the Sentencing Act 1991 states that the court must have regard to:
(daa) the impact of the offence on any victim of the offence
(da) the personal circumstances of any victim of the offence
(db) any injury, loss or damage resulting directly from the offence.
One way a court can determine the impact of a crime on the victim and help the judge or magistrate
understand how the crime has affected the victim is to consider any victim impact statements
presented. A victim of crime is entitled to make a victim impact statement to the court if the court
finds a person guilty of an offence. Section 95A of the Sentencing Act 1991 details the process of
making such a statement. See Appendix 2 for an example of a completed victim impact statement.
The right to make a victim impact statement is also provided in the Victims’ Charter, which includes
the rights to:
• prepare a victim impact statement which may be considered by the court in sentencing the
offender, and have access to the assistance required to prepare a victim impact statement
• request that the court order offenders to pay victims compensation, if they are victims of a
violent crime
• apply to be included on the Victims’ Register if an adult offender is sentenced to prison for a
violent crime.You be the Judge Years 9 & 10 Teacher Guide
10
Types of sentencing orders
A wide range of sentencing options are available for adult offenders under the Sentencing Act 1991,
including:
• Imprisonment: the highest level of punishment. Offenders are detained in an institution and
deprived of their freedom. There are different styles of prisons, e.g. maximum and medium secu-
rity. The maximum term of imprisonment a judge can impose for an offence is determined by par-
liament. Courts have the discretion to sentence an offender to less than the maximum penalty.
• Combined custody and treatment order: for drug and alcohol-related offences if drunkenness
or drug addiction contributed to the offence. They are imposed for up to 12 months, at least
six months served in custody, with the offender participating in drug and alcohol treatment
and testing; the rest (up to six months) is served in the community.
• Drug treatment order: two-year sentence from the Victorian Drug Court, part custodial, part
treatment – the custodial part is suspended to allow for treatment; freedom of movement and
association are controlled.
• Home detention: term of imprisonment served by detention at home. This is not available for
certain offences (e.g. sexual offences, breach of intervention or stalking order). While on a home
detention order the offender is subject to electronic monitoring, must observe a strict curfew,
cannot drink alcohol and must submit to random breath, blood and urine tests to check for alco-
hol or drug use, but may still participate in employment, and maintain family and community ties.
• Intensive correction order: term of imprisonment served in the community, combining
intensive supervision and/or personal development programs and including conditions such as
treatment and unpaid community work. Suitable for offenders rejected for community-based
orders on the basis of their high risk and/or recidivism and who would otherwise have received
short terms of imprisonment.
• Suspended sentence: specified prison term suspended wholly or in part for a specified time
(i.e. the offender will not actually go to prison), subject to the condition to be of good behaviour
(i.e. not reoffend).
• Youth justice centre and Youth residential centre orders: a sentence requiring a young
offender (under 21 years) to be detained. If the young offender is aged between 15 and 21
they can be detained in a Youth Justice Centre. If young offenders are under 15 years of age
they can be detained in a Youth Residential Centre.
• Community-based order (CBO): supervised non-custodial sentence, with or without recording
a conviction, with conditions including supervision, treatment and/or unpaid community work.
The maximum period of a CBO is two years.
• Fine: monetary penalty which can be in addition to or instead of another order and can be
imposed with or without recording a conviction.
• Adjourned undertaking: unsupervised release with or without recording a conviction, for a
period of up to five years, with conditions.
• Discharge: after finding someone guilty of an offence and recording a conviction against them,
a court may discharge the person with no further penalty.
• Dismissal: after finding someone guilty of an offence, a court may dismiss the charge without
recording a conviction.11
Key concepts and understandings
There are also orders which may be made by a court under Part 4 of the Sentencing Act 1991 in
addition to the sentence imposed on the offender. These include:
• Restitution order – which may require:
–– a person in possession or control of stolen property to return the property
–– an offender to return the stolen property or the proceeds of the sale of stolen property if
they have disposed of the property
–– payment of a sum of money.
• Compensation order for personal injury – requiring a person to pay an amount for:
–– pain and suffering experienced by a victim as a direct result of the offence
–– some or all of a victim’s counselling, medical or other costs.
• Compensation order for property loss or damage – requiring a person to pay compensation
for the loss or destruction of or damage to property as a result of the offence.
• Order for recovery of assistance provided under the Victims of Crime Assistance Act 1996.
• Forfeiture and disqualification – may include:
–– cancellation or suspension of a driver's licence
–– disqualification from holding some offices such as a real estate agent
–– alcohol interlock condition
–– hoon law – under this legislation, drivers may lose their vehicle for 48 hours on a first
hoon-related offence, three months for a second offence or permanently if found guilty of
a third offence.
• Confiscation order – under the Confiscation Act 1997 a court also has the power to make a
confiscation order as well as impose a sentence. Any property used to commit an offence or
any property obtained with the proceeds of an offence (e.g., a house) can be confiscated by
the state.
• Sex offender registration order – in sentencing an offender for specified sexual offences, a
court may also require an offender to comply with reporting requirements under the Sex
Offenders Registration Act 2004.
Having such a wide range of sentencing orders available to them enables sentencing judges and
magistrates to opt for the most appropriate sentence in any given circumstances.
Setting a non-parole period – how soon can someone be released?
The Sentencing Act 1991, s. 11, says a court must set a non-parole period for any sentence of
imprisonment of two years or more, unless it is not appropriate to do so because of the nature
of the offence or the past history of the offender. For sentences of 12–24 months, it is up to the
court to decide whether or not to fix a parole period. For sentences of less than 12 months parole
is not possible.
The non-parole period must be at least six months less than the term of the sentence. The non-
parole period specifies the period during which an offender is not eligible for parole and must
remain in custody. If the court sets a non-parole period as part of the sentence, the offender must
serve all of this period in prison (the minimum prison term) before being eligible for parole for theYou be the Judge Years 9 & 10 Teacher Guide
12
remainder of the sentence. When the offender has served the minimum period of imprisonment,
the Adult Parole Board determines if the offender will be released on parole and what the
conditions of that release will be.
Parole is a form of supervised release for offenders sentenced to a term of imprisonment. The
aim of parole is to ensure that offenders get help in the transition from prison into the community,
while still being subject to supervision and still being considered to be serving part of their sentence.
Victims who have been placed on the Victims Register can have their views taken into account by
the Parole Board.
Sentences – concurrent or cumulative?
When judges sentence a person for more than one offence, they must decide whether to make
the individual sentences concurrent or cumulative. Concurrent sentences are served at the same
time, while cumulative sentences are served one after the other. In some instances, judges state
whether they are sentencing concurrently or cumulatively when they are handing down a sentence.
However, they do not always explicitly state this, and in some of the cases in You be the Judge this
is the situation.
The Sentencing Act 1991, s. 16(1), gives guidance on how to interpret a sentence in this situation
and in effect means that, unless otherwise stated by a judge, sentences will be served concurrently.
Appeals – how a sentence can be reviewed
Any sentence that is imposed by a court can be subject to appeal. (Note that appeals can also be
made against conviction; however, this program is only concerned with appeals against sentence.)
This means that either the prosecution or the defence is dissatisfied with the sentence or another
aspect of the trial, so they have the right to have a higher court examine the case. Appeals can be
applied for on the grounds that the sentence imposed is either too light or too harsh. The appeal
court then has the responsibility for deciding whether the original sentence was outside the range
of permissible sentences in the given circumstances. It does this by considering:
• the maximum sentence available to the original sentencing judge
• other sentences in similar cases
• the seriousness of the offence
• the personal circumstances of the offender.
An appeal against sentence is not a retrial and the evidence is not re-examined, meaning that the
guilty finding is not reconsidered.13
Key concepts and understandings
Victorian criminal court system
There are four main courts in the Victorian judicial system and the same basic principles underlie
them all. When a person is prosecuted in a court, there are two main goals to be achieved. Firstly,
the court (and sometimes a jury of the accused’s peers) must decide whether the accused is guilty
or not guilty. Secondly, if the accused is found guilty the court must impose a penalty, or sentence.
The term ‘higher courts’ is sometimes used to refer to the County Court and the Supreme Court.
Generally the higher courts hear indictable offences and the Magistrates’ Court hears summary
offences. However, the Magistrates’ Court can also hear ‘indictable offences triable summarily’.
Theft is an example of an indictable offence that can be tried summarily in the Magistrates’ Court,
if the value of the theft is less than $100,000.
Court Role of courts and Charges heard and sentencing
specialist courts
Magistrates’ Court: over • can hear any offence for which the maximum fine is $120,000 or the
90% of criminal charges maximum term of imprisonment is 10 years or less
are heard and • non-custodial sentences account for over 90% of sentences imposed
determined in in this court, although between 3,900 and 4,500 defendants are
this court sentenced to imprisonment each year
Koori Court: really a • for Indigenous defendants who must opt to appear before it
sentencing court because, • can hear all cases within the jurisdiction of the Magistrates’ Court
if a defendant has chosen except those involving sexual offences and domestic/family violence
to appear before it, he • court processes are informal but principles of natural justice are retained
Magistrates’ or she is deemed to have
Court • presided over by a magistrate who imposes sentences subject to
pleaded guilty comments from an elder or respected person at the hearing
Drug Court: a sentencing
court for offenders who • offenders are sentenced to a drug treatment order, part custodial
plead guilty to a drug- sentence and part treatment/supervision
related crime that falls • aimed strongly at reducing the risk of further offending by stabilising
within the jurisdiction of offenders’ lifestyles
the Magistrates’ Court
• specialises in hearing and granting safety orders to protect victims
and their families, and breaches of orders
Family Violence Court
• deals only with cases already within the jurisdiction of the
Magistrates’ Court
At the same level as the • hears criminal charges against young people aged 10 to under 18 at
Magistrates’ Court in the time of the alleged offence and under 19 at the time of appearing
Children’s the court hierarchy but before the court
Court is an independent court; • cannot hear charges of murder, attempted murder, manslaughter,
a Koori Court is also arson causing death or culpable driving causing death
available in this court • its proceedings are not made public
• has jurisdiction over all criminal matters but in practice hears only
County The principal trial court cases that cannot be heard in lower courts
Court in Victoria • cannot hear cases of treason or murder
• can hear appeals from lower courts
• the highest court in Victoria
• has jurisdiction over all criminal matters but in practice usually hears
Trial division
only cases that cannot be heard in lower courts
Supreme • hears cases of treason, murder and murder-related offences
Court
• hears appeals from all other courts, including the Supreme Court
Appeal division • appeals against decisions of the Appeal Court can be taken to the
High Court of AustraliaYou be the Judge Years 9 & 10 Teacher Guide
14
The prosecution process in Victorian courts
The flow diagram on the following page shows the possible paths of a case through the Victorian
Magistrates’ Court (Fox 2005, p. 154). It clearly illustrates that sentencing is part of a very complex
process and that the detailed interaction between court and defendant can lead to outcomes other
than sentencing – but, at least at the point of sentencing, a judge will have plenty of information at
his or her fingertips to inform any decision made.
In Victoria most sentencing happens in the Magistrates’ Court (92%), the Children’s Court (6%)
and then the higher courts – the Supreme Court and County Court (2%).
The Sentencing Advisory Council website contains a large amount of statistical information
regarding the sentencing of people in Victorian courts .
Sentencing and the media
Cases in the higher courts tend to be the most heavily publicised in the mass media because of
the often sensational nature of the crimes. Media publicity plays an integral role in forming public
opinion and underpinning what the public regards as the ‘reality’ of crime and punishment.Start Not Guilty
Jury Trial
Arrest
Yes
Direct
Charge Presentment
Verdict No No
By DPP Retrial? End
Custody Reached?
Summons
or Bail
Yes
Magistrates’ End
Court Verdict? Acquitted End
Mention
Discharge Guilty
No Trial
Committal
Summary Indictable Yes Hear No Proceedings Directed to Yes County or Guilty
Supreme Plea? Sentencing
Offence? Offence? Summarily? Magistrates’ Stand Trial
Court Court
Yes
Magistrates’ Appeal
Court Against
Summary Nolle Prosequi Conviction No
by DPP End
Proceedings and/or
Sentence
Not Yes
Guilty
Hearing Plea?
End
Court of
Guilty
Appeal
Reproduced with permission from: Fox, R. G., 2005, Victorian Criminal Procedure: State and Federal
Yes
Found Guilty Sentencing
Appeal to
Outcome Outcome
High Court
No
Yes County
Dismissed Appeal Outcome End End End
Court
No
End End
15You be the Judge Years 9 & 10 Teacher Guide
16
You be the Judge case studies
Warning
Be discreet. Each of the case studies presented in You be the Judge is closely based on a real
life case and, for this reason, you are advised to be discreet. In the case studies and activities,
names have been changed; however, as some extension activities involve students researching
legal papers, judges’ findings, accident reports and newspaper articles, it is possible that real
names may be identified. It is important to be aware that, although these resources are
readily available to the public, the cases they refer to involve real people. Victims and accused
alike have families; so, before beginning a case study with your class, take precautions to
ensure that none of your students will be adversely affected by the study, especially students
who may have been involved in a similar case, are involved with the legal system or have a
parent or close relative in prison.
Each of the You be the Judge case studies is a self-contained set of slides and notes. Relevant
statistics and information about sentencing for the crimes featured in the cases are provided on
the slides. Comments, extra information, suggested activities and possible assessment tasks are
provided in the notes which accompany the slides.
Before beginning a case study with your class, it is imperative that you read the slides and the
accompanying notes in conjunction with the teacher guide, as you will have to make decisions
about which slides to emphasise and which activities to set for your students. Activities are included
in the notes to the slides, and there are further suggestions for individual and group activities
elsewhere in this guide.
There is far more material supplied in the Suggested student activities than you will ever be able to
cover in the time available. This material has been provided so that there is a degree of choice and to
help teachers design a set of lessons that is appropriate and relevant for their students. It is not envi-
sioned that students will undertake all the suggested activities nor should teachers be limited by them.
The Suggested student activities comprise two components:
• discussion: questions that may be considered or activities that may be undertaken in class
during the case study
• extension: activities that require additional time and resources to conduct.
You be the Judge was originally designed to run in four, fifty-minute sessions – two sessions spent
laying the foundation using slides in Sections 1–3, one session on the crime and sentence (Sections
4–5), and a final session on sentence review and conclusion (Sections 6–7); however, teachers
should not be constrained by this. Many teachers feel that the skills employed are important
enough to justify spending longer on the program.
Before you begin, it is important to ascertain what knowledge and experience your students
already have of the law, courts, sentencing and human rights. Read more about this below in
Indicators of student achievement.17
You be the Judge case studies
Preparation for You be the Judge
Once you have made yourself familiar with the material in this guide and in the slides and their
accompanying notes and activities, you may find it useful to prepare some resources to suit your
particular approach to You be the Judge. Resources that could help to deliver the program include:
• a selection of recent newspaper clippings dealing with examples of the offence featured in the
case study
• a copy of the relevant Sentencing Snapshot for its sentencing trends for the offence, available
from the Sentencing Advisory Council website
• copies of the Victims’ Charter and the Charter of Human Rights and Responsibilities
• handouts to assist students in understanding the ideas about sentencing introduced in the
slides and for reference when students are considering their own sentences – such handouts
could include:
–– descriptions of the various sentences available, as supplied under Types of sentencing orders
above
–– diagram of court processes supplied in this guide
–– relevant quotations from the Crimes Act, such as a description of the offence
–– relevant extracts from court transcripts as provided in the notes to the slides
–– the glossary from this guide.
When to ask students to consider a sentence
The slides are ordered in a way that ensures that some sentencing theory is presented before the
details of the actual case are revealed and students are asked to fix an appropriate sentence for the
crime. This format has been selected for the program as it helps to ensure that students are more
likely to retain an open mind while learning about the facts of the case. If the case is presented
before students absorb a little about the basis of sentencing and the range of sentences available
for that particular crime, it has been found that students are less likely to consider sentences
other than the one they arrived at in their first ‘knee-jerk’ reaction to the facts of the case. In fact,
research by the Sentencing Advisory Council, published in its paper Myths and misconceptions: Public
opinion versus public judgment about sentencing (July 2006), has found that the more information a
sentencer has access to, the less punitive the sentence will be.You be the Judge Years 9 & 10 Teacher Guide
18
Delivering You be the Judge case studies
The slides are divided into six or seven sections where applicable:
1. Sentencing origin and range
2. Sentencing theory
3. The crime and the time
4. The case
5. The sentence
6. The appeal
7. Conclusion
Suggested student activities
A question is posed on the title slide at the beginning of each section. Take the opportunity,
through general questioning, to collect student predictions in answer to the question. Differences
and similarities between the facts as presented and the opinions expressed by students will provide
opportunities for lively debate. Findings will also serve to reinforce the results of any pre-testing/
prior knowledge work undertaken at the beginning of the program.
1. Sentencing origin and range
The first section of slides concerns the origin and range of sentences available to judges in Victoria
– where sentences originate, the range and hierarchy of sentences, and orders which can be
imposed in addition to sentences.
Suggested student activities
Activities here focus on the separation of powers, what sentences are and what students consider
to be more and less severe sentences. Students use a range of appropriate strategies of reasoning
and analysis to compare their own values with societal values as reflected in available sentences
and examples of sentences reported in the media.
2. Sentencing theory
This section deals with the principles and purposes of sentencing and the factors which must be
taken into account, including pre-sentence and victim impact reports and parole.
Suggested student activities
Opportunities for debate abound at this stage, although you may find it helpful to use these
as general, brief discussion starters and then return to one or two of the more popular or
controversial issues as formal debates once the specific offence itself has been described. It may
also be interesting for students to construct a continuum on which to gauge fellow students’
attitudes towards, for example, the principle of parsimony, both before and after discussions about
its intentions and practical application. Students could also explore their assumptions about the
general public’s attitude to the application of this principle, and identify any recent cases which
might reflect the public’s understanding, support or rejection of this principle.19
You be the Judge case studies
The concept of parole is introduced, as well as an explanation of how non-parole periods are
fixed. Some of the discussion here will certainly focus on the general public’s perception of parole
as ‘an easy way out’, so it is important to explain that parole is not freedom and that restrictions
apply. The possibilities for control under parole conditions are not there if a prisoner is merely
released into the community at the end of a sentence. There will be an opportunity to return
to students’ thoughts on this subject once they have decided upon the sentences they wish to
impose. Comparisons between students’ sentences and the historical range, as illustrated in the
cluster graphs found in the Sentencing Advisory Council’s Sentencing Snapshots or in the slides, will
provide a useful stimulus for reflections and discussions about values.
3. The crime and the time
This section outlines the specific crime emphasised in the case study – its description in law and
the maximum penalty specified. There is also a series of graphs that show recent sentencing
trends for the particular crime.
Suggested student activities
Student discussion will identify the areas of key importance in the law, noting any specific conditions
that must apply. In almost every instance there will be cases, current or recently resolved, that
students are aware of and can bring to the discussion, although it may be prudent for you to have
some examples on hand. This will help to focus students on the nature of the particular crime
involved in the case study, and to sharpen their views about its seriousness and its impact on
society and how their own value systems affect their opinions about it.
4. The case
Now it is time to consider the case study’s offence and the participant/s. Slides contain an outline
description of the offender, a précis of the events that occurred during the offence and other infor-
mation that the judge would have at his or her disposal at the point of imposing sentence. Where
it is an appeal trial, there may be adaptations of extracts from the trial in the notes. It would be
prudent to remind students that there is no question of guilt or innocence here – the trial has
been conducted and the accused has been found guilty. It is only the sentencing that is the focus
of the case study. Reiterating this point here will help to avoid irrelevant, time-wasting discussion.
5. The sentence
At this stage the students consider an appropriate sentence for the offence.
Suggested student activities
Students will draw on a range of resources to articulate and defend their opinion on what is an
appropriate sentence for the offence in the particular case. They must take into account the total
sentence imposed and, if it involves imprisonment, also decide on the non-parole period. Students
should use specialised language and appropriate legal terminology in defending their opinions. This
activity can be conducted very effectively by having individual students make their own decisions,
noting down their reasoning then coming together in small groups to discuss their results and their
reasons for arriving at them. For effective collaborative learning in groups, the students should
assume designated roles, such as manager, timekeeper, recorder and reporter. These roles can beYou be the Judge Years 9 & 10 Teacher Guide
20
negotiated within the group or allocated by you. Later, whole class discussion will almost certainly
reveal a wide range of sentences, providing an opportunity for reminding them about the pressure
on judges to ‘get it right’.
Students use a range of question types and locate and select relevant information from varied
sources to determine factors which might have made the sentencing process easier for the judge –
is there other information which would help the judge to come to a fair decision, or other actions
that could be taken to improve the process as the students see it? Is it possible to identify any
factors, not mentioned in the principles of sentencing covered in earlier slides, which may have
had a bearing on the sentence? Expect students to identify a few subjective areas, such as the
age, gender and personal circumstances of the judge, or the gender or cultural background of the
offender. Such observations provide a good opportunity to talk about personal preferences and
the fact that judges are human. This will also emphasise the importance of having some definite
guidelines to work within. Questions may also arise about the role of victims in sentencing and the
nature of victim impact statements, an example of which is included here in Appendix 2.
Once the various sentences imposed by the students have been discussed and justified, show the
slides of graphs from Section 3 again. Have students construct some generalisations about the
sentence imposed for the offence highlighted in the case study; these might include comments
on the distribution of various types of sentences imposed or the trend towards ‘middling’ for
the length of prison terms. Students can then return to the sentences they decided upon, either
individually or in small groups, and ascertain how well their sentences ‘fit’ with the statistics – are
there any indications that their sentences may be too severe or too lenient?
Now reveal the actual sentence imposed by the trial judge.
• Compare this with the sorts of sentences decided upon by the students.
• Is there general agreement, or is there a wide disparity?
• Go back to the graphs concerning past sentences to note where the judge’s sentence fits.
• Construct a quick continuum on which students can record their reactions to the judge’s
sentence.
• Discuss similarities and differences between the judge’s sentence and those suggested by the
students, seeking possible reasons for them.
• Can students identify different values at work here?
6. The appeal
If the particular case study you are using went to appeal, there will be a couple of slides dealing
with this. The grounds for the appeal are laid out and a report of the action taken by the Court
of Appeal is included.
Suggested student activities
Students can repeat the sorts of sentencing activities they carried out in The sentence. They could
undertake comparison activities with the Court of Appeal’s sentence, to see how it compares with
the history of sentences for this offence and the sentences decided upon by students. It is likely
that, after their previous sentencing experience, students will offer sentences much closer to that
imposed by the Court of Appeal.21
You be the Judge case studies
7. Conclusion
Through two statements on sentencing, the final slide provides an opportunity for students to
reflect on what they have learnt about sentencing. The acknowledgement of any changes in attitude
experienced by students during the program will stress the importance of being well-informed.
Suggested student activities
At the conclusion of the case study, recall questions can serve as a quick revision focus. You might
also like to present questions for discussion in large or small groups or in pairs, with the aim of
coming up with consensus answers, or to have individuals respond with formal written answers.
The following list includes examples of both sorts of questions:
• Explain what is meant by the term ‘sentencing hierarchy’ and give examples to illustrate your
explanation.
• Give two examples of orders that can be imposed by the court in addition to a sentence.
• List the five distinct purposes for which sentences may be imposed as set out in the Sentencing
Act 1991.
• What factors must a judge take into account when sentencing an offender?
• What is a victim impact statement, when in the trial sequence is it introduced, how is it
conveyed to the judge and what is its purpose?
• Do you think a victim impact statement is a good or bad thing? Give reasons for your answer.
• Because of human nature and the make-up of our judicial system, there will always be a
subjective element in sentencing. Explain what this means and give examples of actions taken
to minimise this subjective element.
• Do you think the sentencing process takes enough account of the victim and the community?
• If you were a judge, how would you defend the position you have taken on the particular
sentence you decided upon for the offence outlined in the case study?
• What changes to the sentencing process would you recommend?
• Can you see a possible solution to counteract perceptions gathered from the media that
sentencing for some offences is too lenient?
See also Indicators of student achievement below for additional ideas for student reflection on
learning.You can also read
