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You be the Judge

Years 11 and 12 Teacher GuideVCE Legal Studies

Sentencing Advisory Council January 2019

You be the Judge Years 11 and 12 Teacher Guide Sentencing Advisory Council | 2

About You be the JudgeYou be the Judge is a package of teaching materials on sentencing in Victoria. It covers sentencing theory and incorporates sentencing case studies based on real cases (names and some details have been changed).

The Sentencing Advisory Council of Victoria created You be the Judge as part of its community education function.

This You be the Judge Teachers’ Kit is designed for VCE Legal Studies students. It provides an engaging way for students to discuss, consider and apply the principles of sentencing. Students are required to weigh and balance the same factors in sentencing that judges do, and so learn about how the law, current sentencing practices and community values all affect criminal sentencing in Victoria.

Another You be the Judge Teachers’ Kit is available on the Council’s website. Designed for Years 9 and 10 (AUSVELS) cross curriculum classes, it includes exercises that allow students to demonstrate capabilities in the learning areas of Civics, English, History, Mathematics, Media Arts and Digital technology.

Why learn about sentencing?Sentencing attracts a lot of community interest and concern. It often divides opinion. Perceived inadequacy in sentencing provides compelling stories for media and can anger the community, particularly victims of crime and their families. Some politicians criticise the courts for being ‘soft on crime’.

There is widespread misunderstanding of the purposes of sentencing and the meaning of key elements such as parole, non-custodial sentences and statutory maximum penalties.

The Sentencing Advisory Council has created these teaching materials as part of its mission to inform, advise and educate about sentencing – bridging the gap between the courts, the government and the community.

The case studies in You be the Judge concentrate on the sentencing phase of the legal process. Each offender in these case studies has already been found guilty, so the focus is entirely on the factors that must be taken into account in sentencing them.

The case studies are presented as slide shows with accompanying notes, including discussion points and suggested activities. This teacher guide links to the VCE Legal Studies curriculum and contains preparation tips for teachers presenting the case studies.


Curriculum links and student learning outcomes

Victorian curriculumYou be the Judge is a useful resource in VCE Legal Studies, specifically in Units 1 and 2.

It provides excellent opportunities for students to learn about and evaluate the criminal sanctions available to the courts and to appreciate the ways judges go about applying such sanctions.

You be the Judge is concerned with sentencing. It does not cover the law as it applies to the determination of guilt through a Magistrates’ Court hearing or higher court trial. However, because these case studies are based on real criminal cases, teachers can use them to illustrate themes such as the principles of justice: fairness, equality and access.

The following table outlines the VCE Legal Studies Areas of Study most directly addressed in these teaching materials.

Unit Area of study Key knowledge

Unit 2 AOS 1 – Sanctions the purposes of sanctions: punishment, deterrence, denunciation, protection and rehabilitation

types of sanctions, such as fines, community correction orders and imprisonment

factors considered by judges in sentencing aspects of sentencing practices in Victoria and in one other

jurisdiction alternative approaches to sentencing, such as the use of the

Drug Court, the Koori Courts and diversion programs two recent criminal cases, each with:

- an overview of the charges and the central facts of the case

- courts that may be or were involved- sanctions that could be or were imposed and their

appropriateness- factors that may be or were taken into consideration in

sentencing- possible avenues of appeal- the extent to which the principles of justice could be or

were achieved.

Extracted from Victorian Certificate of Education, Legal Studies Study Design (Victorian Curriculum and Assessment Authority, Accreditation Period 2018–2022)

https://www.vcaa.vic.edu.au/Documents/vce/legalstudies/LegalSD_2018.pdf

https://www.vcaa.vic.edu.au/Pages/vce/studies/legalstudies/legalindex.aspx


National Educational GoalsBecause You be the Judge deals with ethical issues and provides opportunities to teach thinking skills, it can be used in other parts of the secondary school curriculum.

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) affirm the need to enable young Australians to engage effectively with an increasingly complex world and to 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:

having ethical integrity

exercising judgment 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

being willing to participate in Australia’s civic life.

Both Victorian and Australian curriculums emphasise the importance of educating young Australians to function responsibly as individuals, citizens and workers in a rapidly changing world.

Key concepts and understandingsYou be the Judge provides students with the tools necessary to understand the purposes, principles and practice of sentencing in Victoria.

It requires students to apply this knowledge to a real-life case. They must make an informed decision about the appropriate penalty to impose on a real offender. To do this effectively, students must learn about the range of penalties available for a particular crime, and understand the purposes, principles and factors that influence sentencing.

As students work through the sentencing process for themselves, it will become clear that some degree of subjectivity is involved in sentencing. Just as for real-life judges and magistrates, students will find that sentencing an offender requires not just an understanding of the law, but also some reflection on ethics, personal values and community attitudes. These values and attitudes can be further explored in many of the activities suggested within the teaching materials.

These teaching materials should be read alongside A Quick Guide to Sentencing (available on the Council’s website). The Quick Guide is a plain-language overview of the what, when, where, how and why of sentencing in Victoria.

https://www.sentencingcouncil.vic.gov.au/publications/quick-guide-to-sentencing


You be the Judge case studies

CautionBe discreet. Each of the case studies is based on a real-life case. Names and some details have been changed. Victims and offenders alike have families and friends, and some of these may be among your students. Resist tracking down the actual case, unless you have a good reason to do so.

Be sensitive. Some of the offences and the details covered in You be the Judge could be traumatic for some students, especially those who have been involved in a similar case, are involved with the legal system or have a parent or close relative in prison.

Each case study has a set of PowerPoint slides and notes.

The PowerPoint slides incorporate statistics and information about sentencing for the crimes featured in the case studies.

The notes that accompany the PowerPoint slides include comments, extra information, suggested activities and possible assessment tasks.

Before beginning a case study with your class, it is important that you read the PowerPoint slides and the accompanying notes in conjunction with the Teacher Guide. Decide which PowerPoint slides to emphasise and which activities to set for your students. Many different suggested activities are included in the notes to the PowerPoint slides, and further suggestions for individual and group activities are made elsewhere in this guide.

Choice of activitiesMore material is provided here than you will have time to cover in class. This allows you to choose the activities that will be most relevant, interesting and appropriate for your lessons.

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.

DurationYou be the Judge was originally designed to run in four sessions, each of 50 minutes:

two sessions spent laying the foundation (using PowerPoint slides in Sections 1–3)

one session on the crime and sentence (Sections 4–5)

a final session on sentence review and conclusion (Sections 6–7).

However, you should not be constrained by this approach. Many teachers feel that the skills employed are important enough to justify spending longer on the program.


Before you begin, it may be helpful to find out 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’.

Preparation for You be the JudgeAfter you have familiarised yourself with the material, you may find it useful to prepare 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 kind of offence featured in the case study

a copy of the relevant Sentencing Snapshot (available from the Council’s website)

sentencing statistics and offender characteristics for the offence in the chosen case study (available from SACStat, the Council’s online sentencing statistics tool)

handouts to assist students in understanding the ideas about sentencing introduced in the PowerPoint slides and for reference when students consider their own sentences. Information to include in handouts can be found in the About sentencing section of the Council’s website. Handouts could include:

descriptions of the various sentences available

relevant extracts from the Crimes Act 1958 (Vic), such as a description of the offence

relevant extracts from court transcripts as provided in the notes to the PowerPoint slides

the glossary from this guide.

Before commencing You be the Judge, you should consider conducting a preconceptions/misconceptions survey, such as the ‘Sentencing quiz’ below.

When to ask students to consider a sentenceThe PowerPoint slides present basic sentencing theory before the details of the case are revealed. Only then are students asked to fix an appropriate sentence for the crime. This format helps ensure that students retain an open mind while learning about the facts of the case.

If details of the case are presented before students learn about basic sentencing theory, they may be less likely to consider sentences other than the one they arrived at when first learning about the facts of the case.

Delivering You be the Judge case studiesThe PowerPoint slides are divided into six or seven sections (where applicable):

Sentencing origin and range Sentencing theory The crime and the time The case The sentence The appeal Conclusion

https://www.sentencingcouncil.vic.gov.au/about-sentencing

http://www.sentencingcouncil.vic.gov.au/sacstat/home.html

https://www.sentencingcouncil.vic.gov.au/snapshots-offence

http://www.sentencingcouncil.vic.gov.au/snapshot


Suggested student activitiesA question is posed on the title slide at the beginning of each section. Use general questioning to gauge students’ predictions of the answer. Differences and similarities between students’ opinions and the facts of the case provide opportunities for lively discussion and debate.

1. Sentencing origin and rangeThe first section of PowerPoint slides concerns the origin and range of sentencing orders available to judges and magistrates in Victoria when sentencing adults – where these orders originate and their range and hierarchy.

Suggested student activitiesActivities focus on the separation of powers, what sentences are and what students consider to be more and less severe sentences. Students use reasoning and analysis to compare their own values with community values as reflected in both the available sentences and examples of sentences reported in the media.

2. Sentencing theoryThis section deals with the principles and purposes of sentencing and the factors that judges and magistrates must take into account when sentencing adult offenders.

Suggested student activitiesThis part of You be the Judge provides many opportunities for student discussion and debate. However, it may be helpful to have only a brief discussion early in the program and return to the more popular or controversial issues after the details of the case have been described.

A continuum (points on a line) exercise can be used to measure students’ attitudes towards different aspects of sentencing (for example, any or all of the five purposes of sentencing, the principles of sentencing, parole and non-parole periods) both before and after a detailed discussion about the facts and definitions, and the application of these to the case.

Students could also discuss their observations of public attitudes to the purposes and principles of sentencing, for example, by considering a news report of a recent case and whether it reflects public understanding of a purpose or principle of sentencing.

3. The crime and the timeThis section outlines the specific crime featured in the case study, including its description in law and the maximum penalty allowed under the law. There is also a series of graphs showing recent sentencing trends for the particular crime.

Suggested student activitiesStudent discussion can focus on the case under consideration, or on comparing the case with others from recent news media.

4. The caseNow it is time to consider the circumstances of the offence and the offender in the case study. PowerPoint slides contain a description of the offender, a précis of the events that occurred during


the offence, and other information that the judge would have had at their disposal when imposing sentence.

Where the case involves an appeal, the notes may include adaptations of extracts from the appeal hearing.

It’s helpful to remind students that there is no question of guilt or innocence, as the offender has already been found guilty. The focus of the case study is sentencing. Reiterating this point will help to avoid irrelevant, time-wasting discussion.

5. The sentenceAt this key stage, students must consider an appropriate sentence for the offence.

Suggested student activitiesStudents must choose the total effective sentence to be imposed. If it involves imprisonment, students must also decide on the non-parole period. Students should articulate and defend their opinion on what is an appropriate sentence for the offence in the case.

Students must refer to:

the purposes and principles of sentencing

the circumstances of the offender

the circumstances of the offence.

They should use specialised and appropriate legal terminology in describing and defending their opinions.

This activity can be conducted by having individual students make their own decisions, noting down their reasoning and then coming together in small groups to discuss their results and their reasons for arriving at them.

For effective, collaborative learning in groups, students should assume designated roles, such as manager, timekeeper, recorder and reporter. These roles can be negotiated within the group or allocated by you. Later, whole class discussion will almost certainly reveal a wide range of opinions on the appropriate sentence. This provides an opportunity to invite students to acknowledge and explore the pressure on judges to ‘get it right’.

Students can identify other information that may have helped the judge to come to a decision. What factors could have had a bearing on the sentence but were not mentioned in the earlier PowerPoint slides? Students may identify personal characteristics such as the age, gender and personal circumstances of the judge, or the gender or cultural background of the offender, and they may speculate about the effect these have on the offence or sentence. Such observations provide an opportunity to talk about the fact that while judges are human, community confidence requires consistency in sentencing, for example, through the application of guidelines such as those outlined in the Sentencing Act 1991 (Vic).

Once the various sentences imposed by students have been discussed and defended, reshow the PowerPoint slides of sentencing graphs from Section 3 (‘The crime and the time’). Ask students to make generalisations about all the different sentences that they imposed for the offence in the case study. These might include comments on the range and distribution of sentences that they and their classmates have imposed.


Students can then return to the sentences they decided on (either individually or in small groups) and discuss how well their sentences ‘fit’ with the class’s statistics. Are there any indications that their sentences were too severe or too lenient?

Now reveal the actual sentence imposed by the trial judge.

Compare this with the sorts of sentences decided on 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 trial 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 the sentences suggested by the students, seeking possible reasons for similarities/differences.

Can students identify different sentencing purposes or personal values at work here?

6. The appealAppeals are an important feature of the court system. While none of the cases went to appeal, this section describes what sentence appeals are and on what grounds sentence appeals can be made.

Suggested student activitiesStudents can repeat the sorts of sentencing activities they carried out in ‘The sentence’. For example, they could undertake comparison activities with the Court of Appeal’s sentence, to see how it compares with past sentences for this offence and the sentences decided on 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.

7. ConclusionThrough two statements on sentencing, the final slide provides an opportunity for students to reflect on what they have learnt. Acknowledging any changes in students’ attitudes during the program will highlight the importance of being well informed.

Suggested concluding student activitiesAt the conclusion of the case study, ‘recall questions’ can serve as a focus for quick revision. You might also like to present questions for discussion in large or small groups (or in pairs), with the aim of developing consensus answers. Or you may have individual students respond with formal written answers.

Sample concluding questionsThe following list includes examples of both sorts of questions:

Explain what the term ‘sentencing hierarchy’ means and give examples to illustrate your explanation.

List the five purposes for which sentences may be imposed on adults as set out in the Sentencing Act 1991 (Vic).

What factors must a judge take into account when sentencing an adult offender?

What is a Victim Impact Statement? When in the trial sequence is it introduced? How is it conveyed to the judge? What is its purpose?


Due to human nature and the make-up of our judicial system, sentencing will always have a subjective element. Explain what this means and give examples of actions taken by the judiciary and parliament 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 explain the sentence you gave for the offence in the case study?

What changes to the sentencing process would you recommend?

Can you see a way to change public perceptions gathered from the media that sentencing for some offences is too lenient?

‘Indicators of student achievement’ below has more ideas for activities to encourage student reflection on learning.

Taking it furtherThere are many opportunities to expand on the detail of the case studies. However, time restraints dictate which activities are practical in your circumstances. Extension activities are included in the case studies. Listed below are some examples of the sorts of activities that you could undertake.

Suggested student activities Research newspaper coverage of similar crimes and their subsequent court cases. Decisions

made by courts can be accessed at the Australian Legal Information Institute (AustLII) website. Compare newspaper coverage (including news, feature articles, opinion pieces, editorials and letters to the editor) with the facts of the relevant case as outlined in the court’s decision. Look for areas of similarity and difference. Is there any emotive language, distortion or omission of facts? Use the newspapers as stimulus for student writing, for example, a rebuttal of an article, a letter to the editor or a rewrite of an article.

Identify a contentious issue that arises from the case study. Devise a brief questionnaire to canvass the opinions of fellow students and/or members of the public. A useful extension of this is to construct a fact sheet about a particular offence and its associated sentences. Have fellow students and/or members of the public read the fact sheet before answering a questionnaire, then have a different sample answer the same questionnaire without having read the fact sheet. Compare the responses and make some generalisations comparing ‘top of mind’ public opinion to informed public opinion.

Take on the role of a victim from one of the case studies and write a Victim Impact Statement (a guide to writing a Victim Impact Statement is available on the Victims of Crime website). Read statements written by other students and consider how each statement might influence the judge or magistrate imposing sentence.

Access the Sentencing trends section on the Council’s website and make thoughtful generalisations about topics such as the overall rate of imprisonment over a period of time in Victoria, the sentencing trends in various courts of Victoria or changes in sentencing trends in Victoria.

Focus on the type of offence in the case study. Using the Council’s website (especially SACStat and the Sentencing Snapshots), devise a wall chart showing both the prevalence of the offence and the sentencing statistics related to it over the past five years. Alternatively, combine in a group to devise and present a multi-media overview of the offence and its sentencing history in Victoria.

https://www.sentencingcouncil.vic.gov.au/snapshot

https://www.sentencingcouncil.vic.gov.au/sacstat/home.html

https://www.sentencingcouncil.vic.gov.au/statistics/sentencing-statistics

https://www.victimsofcrime.vic.gov.au/going-to-court/victim-impact-statements/

http://www.austlii.edu.au/


Indicators of student achievement1. To assess how much your students learn through You be the Judge, it can be helpful to

measure their level of prior learning about sentencing. Student knowledge of sentencing may have been picked up from TV courtroom dramas, news media, formal study or first-hand experience.

A good way to gauge students’ prior learning is to devise a misconception/preconception check. This can be delivered as a discussion, an activity or a quiz. A sample quiz is provided below. It is intended to be adapted to your class’s needs.

Apart from providing a quick overview of students’ knowledge and understanding, an activity like this can also help students prepare for You be the Judge by encouraging them to focus on sentencing. Collating the results may indicate areas where further study, discussion or clarification is needed.

Readministering the misconceptions/preconceptions check after completing You be the Judge allows students to observe changes in their own understandings.

2. Ask students to monitor and describe their progress as learners by completing the following sentence stems:

I learnt the following about sentencing …

The strengths of my work were …

The weaknesses of my work were …

In future, I will …

3. A simple KWLH chart is another useful way to gauge prior learning and later identify what has been learnt in the program and how it has been learnt. Administer this task so that it is undertaken individually at the outset and added to as the program proceeds. At the conclusion of You be the Judge, the chart will be a useful map of the learning journey.

K – what students already know about the topic of sentencing

W – what the students want to learn about sentencing

L – what the students have learnt by the end of the program

H – how the students learnt what they did about sentencing.

4. A wide range of both formative and summation tasks that provide opportunities to gauge progress and provide feedback are suggested in the program, including:

questioning

open discussion

reflective journal writing

role-play

group presentation

newspaper research and analysis

statistical analysis

genre writing

values analysis.


Sentencing quizStatement about Victorian law True False Unsure

1. Judges can impose whatever length of imprisonment they think is suitable.

2. First-time offenders cannot be sent to jail.

3. Regardless of the sentence imposed by the judge, a well-behaved prisoner can be released early.

4. Parliament decides the maximum possible sentence for different types of crime.

5. Judges and magistrates are required to impose the toughest sentence the law allows.

6. Making the criminal suffer is a legitimate purpose of sentencing.

7. A child of 10 years or older may be sentenced in a Victorian court if they are convicted of a crime.

8. If someone convicted of a crime feels their sentence is extreme, there is nothing they can do about it.

9. An indictable offence is more serious than a summary offence.

10. Violent crimes are the most common types of crime in Victoria.

11. If a car collision kills someone, the car’s driver can only go to jail if the collision was deliberate.

12. A person cannot be found responsible for any crime they commit when very drunk.

13. The sentence for a crime may be harsher if the crime was motivated by racial hatred or homophobia.

14. Magistrates don’t need a jury to make a finding of guilty or not guilty.

15. The victim of a crime has no role at the trial except as a spectator.


AnswersDiscussion notes for misconception/preconception check:

1. Judges can impose whatever length of imprisonment they think is suitable.

FALSE. Statute law (made by parliament) and common law (decisions made by courts) guide and restrict the sentences that judges can impose.

For example, the maximum penalty that can be imposed for an offence is listed in a statute (act of parliament) like the Crimes Act 1958 (Vic). The maximum penalty is a guidepost for the judge when sentencing and applies to the worst type of offending by the worst type of offender.

The Sentencing Act 1991 (Vic) outlines the purposes of sentencing, and the factors about the offence and the offender that judges must consider when imposing sentence.

The Sentencing Act 1991 (Vic) also requires judges to consider current sentencing practices – what sentences have been imposed by other judges for similar crimes. Significant or unjustified variation from this guidance can lead to a sentence being overturned on appeal.

Since February 2018, Victorian judges must also take into account the ‘standard sentence’ set for any case involving 12 of the most serious offences, including murder, rape and child sex offences. Like the maximum penalty, the standard sentence is a guidepost. Where the maximum penalty represents the sentencing for the worst type of offending by the worst type of offender, the standard sentence represents the middle of the range of offending (before considering the offender). The standard sentence for most of the 12 offences is set at 40% of the maximum penalty. For example, the maximum sentence for rape is 25 years’ imprisonment, making the standard sentence for that offence 10 years’ imprisonment. In any case that includes a charge of one of the 12 serious offences, the judge must provide reasons explaining how the sentence imposed relates to the relevant standard sentence.

2. First-time offenders cannot be sent to jail.

FALSE. While both youth and the lack of a relevant prior conviction may be mitigating factors reducing a sentence, first-time offenders can be sent to jail when the offence is serious enough or when aggravating factors about the offence or the offender are significant.

3. Regardless of the sentence imposed by the judge, a well-behaved prisoner can be released early.

FALSE. Except in exceptional circumstances, prisoners cannot be released prior to the completion of the non-parole period set by the judge or magistrate. After that, the Adult Parole Board may consider releasing the offender on parole. An offender’s behaviour in prison is one of the factors that the Adult Parole Board considers when deciding whether to release a prisoner on parole, and under what conditions.

4. Parliament decides the maximum possible sentence for different types of crime.

TRUE. Maximum penalties for crimes are set out in various Acts of Parliament, principally the Crimes Act 1958 (Vic), the Summary Offences Act 1966 (Vic), the Children, Youth and Families Act 2005 (Vic), the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Road Safety Act 1986 (Vic).


5. Judges and magistrates are required to impose the toughest sentence the law allows.

FALSE. Section 5(3) of the Sentencing Act 1991 (Vic) requires that, ‘A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed’. This is known as the principle of parsimony.

6. Making the criminal suffer is a legitimate purpose of sentencing.

FALSE. The five purposes for which a sentence may be imposed are laid out in section 5 of the Sentencing Act 1991 (Vic). They are just punishment, deterrence, rehabilitation, denunciation and community protection. Making the offender suffer is not a legitimate purpose of sentencing.

7. A child of 10 years or older may be sentenced in a Victorian court if they are convicted of a crime.

TRUE. Under the Children, Youth and Families Act 2005 (Vic), 10 years is the age at which a child becomes old enough to be sentenced. Different sentencing options are considered for children aged 10 to 14 years than for those aged 15 to 20 years.

8. If someone convicted of an offence feels their sentence is extreme, there is nothing they can do about it.

FALSE. Someone convicted of a crime may appeal the conviction, the sentence or both the conviction and sentence.

9. An indictable offence is more serious than a summary offence.

TRUE. Summary offences include less serious traffic offences, minor assaults, property damage and offensive behaviour. Summary offences are generally heard by a magistrate in the Magistrates’ Court, even if the accused is not present. Some summary offences are dealt with through the infringements system (fines) without going to court (for example, an infringement notice for speeding).

Indictable offences include rape, murder, burglary, intentionally or recklessly causing injury or intentionally or recklessly causing serious injury. These matters must be heard with the accused present in the higher courts (the County Court and the Supreme Court). If a plea of not guilty is entered by someone who has been charged with an indictable offence, a trial is held, and a jury decides whether the accused is guilty or not guilty. Some less serious indictable offences can be heard summarily in the Magistrates’ Court if the magistrate considers it appropriate and the accused consents.

10. Violent crimes are the most common types of crime in Victoria.

FALSE. According to the Victorian Crime Statistics Agency’s report Crime Statistics Victoria, Year Ending June 2018, less than 16% of recorded offences were crimes against the person (for example, assault, rape, intentionally or recklessly causing injury or intentionally or recklessly causing serious injury).

11. If a car collision kills someone, the car’s driver can only go to jail if the collision was deliberate.

FALSE. Someone who causes the death of another person through negligent or reckless driving or excessive speed, or is under the influence of alcohol or drugs, can be convicted of culpable driving causing death, an offence with a maximum possible penalty of 20 years’

https://www.crimestatistics.vic.gov.au/crime-statistics/latest-crime-data/recorded-offences-8

https://www.crimestatistics.vic.gov.au/crime-statistics/latest-crime-data/recorded-offences-8


imprisonment. Someone convicted of dangerous driving causing death, including through driver fatigue, can be sentenced to a maximum of 10 years in prison.

12. A person cannot be found responsible for any crime they committed when very drunk.

FALSE. Courts do not normally consider that self-administration of drugs or alcohol lessens a person’s responsibility for later unlawful actions. This is because the effects of alcohol and drugs are well known and can be reliably anticipated.

13. The sentence for a crime may be harsher if the crime was motivated by racial hatred or homophobia.

TRUE. An offender’s motivation for committing an offence is considered by the judge in sentencing. Changes to the law in 2009 mean that if a crime is motivated by an offender’s hatred for or prejudice against the victim(s) due to a personal characteristic of the victim, such as their race, religion or sexual orientation, this is considered an aggravating factor, increasing the offender’s culpability.

14. Magistrates don’t need a jury to make a finding of guilty or not guilty

TRUE. It is only in the County Court and the Supreme Court that a jury makes a finding of guilty or not guilty, and then the judge imposes the sentence. About 90% of criminal matters are finalised in the Magistrates’ Court.

15. The victim of a crime has no role at the trial except as a spectator.

FALSE. A victim of crime may be a witness at a trial. A victim of crime also has a right to make a Victim Impact Statement as part of the sentencing process. Guidance and support are available to help victims do this. Relevant parts of a Victim Impact Statement are submitted to the court as part of the sentencing process.


ResourcesHere is an introductory list of resources as starting points for further study and reference.

Web resources: Victoria

Title URL Description

Courts Services Victoria

www.courts.vic.gov.au Links to all Victorian courts and tribunals

Crime Statistics Agency

www.crimestatistics.vic.gov.au Statistics, research and information about crime in Victoria

Department of Justice and Community Safety

www.justice.vic.gov.au Information about the justice system in Victoria, including fines and penalties, prisons and community corrections

Judicial College of Victoria

www.judicialcollege.vic.edu.au Primarily for judges, magistrates and VCAT members; contains the Victorian Sentencing Manual

Law Institute of Victoria

www.liv.asn.au Information on a variety of legal topics including juries and jury service and Australia’s legal system

Sentencing Advisory Council

www.sentencingcouncil.vic.gov.au

General information about sentencing in Victoria, sentencing statistics, research on sentencing and Virtual You be the Judge

Victims of Crime http://www.victimsofcrime.vic.gov.au

The official Victorian Government website for people affected by crime

Victoria Legal Aid http://library.vla.vic.gov.au/welcome.jsp

Resources available from Legal Aid library, Ground Floor, 350 Queen St, Melbourne 3000

Victorian Commercial Teachers Association

www.vcta.asn.au Lesson outlines, timetables and online links for Legal Studies

Victoria Law Foundation

www.victorialawfoundation.org.au

Research and educational resources to help Victorians understand the law and their legal system

Victorian Law Reform Commission

www.lawreform.vic.gov.au Reviews undertaken by the Commission; includes Law Reform in Action, a guide for students and teachers

Web resources: Australia

Title URL Description

ABC Radio – The Law Report

www.abc.net.au/radionational/programs/lawreport/

A site search for ‘sentencing’ brings up relevant past programs concerning sentencing issues

Australian Bureau of Statistics – Crime and Justice

www.abs.gov.au/crime-and-justice

Links to current and historical data on Australian courts, prisons, crime and victims

Australian Institute of Criminology

www.aic.gov.au National research and knowledge centre on crime and justice

Australian Legal Information Institute

www.austlii.edu.au Databases for Australasian jurisdictions – cases and legislation

https://www.lawreform.vic.gov.au/teachers-and-students/law-reform/law-reform-action

https://www.lawreform.vic.gov.au/teachers-and-students/law-reform/law-reform-action


Useful Twitter profiles

Organisation Handle Description

Alternative Law Journal @AltLJ Australia's leading independent human rights, social justice and law reform journal

Australian Institute of Criminology @AICriminology Australia's national research and knowledge centre on crime and justice

Australian Law Reform Commission

@AusLawReform A federal agency that reviews Australia’s laws to ensure improved access to justice for all Australians by making laws and related processes more equitable, modern, fair and efficient

Consumer Affairs Victoria @consumervic A Business Unit of the Department of Justice and Community Safety that helps consumers and traders by creating a fairer and more efficient marketplace

Crime Statistics Agency @CrimeStatsVic Provides statistics, research and information about crime in Victoria

Federation of Community Legal Centres

@CommunitylawVic Leads and supports Victorian community legal centres to make justice accessible for all

Human Rights Law Centre @rightsagenda Promotes and protects human rights through policy analysis and advocacy, strategic litigation, education and capacity building

Law Institute of Victoria Journal (LIJ)

@theLIJ The award-winning LIJ is the Law Institute of Victoria’s flagship publication

Liberty Victoria @LibertyVic Liberty Victoria is one of Australia’s leading civil liberties organisations, working since 1936 to defend and extend human rights and freedoms

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GlossaryAccused: A person who has been charged with an offence but who has not yet been found guilty or not guilty.

Acquittal: A finding that a person is not guilty of a criminal charge.

Adjourned undertaking: An order that a criminal matter is set aside for a specified period and that the person is released on an undertaking.

Affidavit: A written statement, sworn or affirmed, that may be used as a substitute for oral evidence in court.

Aggregate sentences: A single sentence imposed for two or more charges in a case, without specifying the individual sentence for each separate charge.

Aggravating factor: A fact or circumstance about the offender or the offence that tends to lead to a more severe sentence.

Appeal: A request made to a higher court to review a lower court’s decision.

Bail: The release of a person from legal custody into the community on condition that they reappear later for a court hearing to answer the charges.

Case: A collection of one or more charges against a person sentenced at the one hearing.

Case law: Law made by courts, including sentencing decisions and decisions on how to interpret legislation. This is also known as common law.

Category 1 offence: A serious offence committed by a person aged 18 years or over. Category 1 offences include murder, rape, trafficking in a large commercial quantity of drugs and causing serious injury recklessly or intentionally in circumstances of gross violence. A court must impose a custodial sentence on a person found guilty of a Category 1 offence.

Category 2 offence: A serious offence committed by a person aged 18 years or over. Category 2 offences include manslaughter, causing serious injury intentionally, kidnapping, arson causing death and trafficking in a drug of dependence. A court must impose a custodial sentence on a person found guilty of a Category 2 offence, unless particular reasons apply.

Charge: A single count of an offence.

Child: A person who is aged 10 years or over but under 18 years at the time of the offence and aged under 19 years when court proceedings begin. A child is usually sentenced in the Children’s Court under the Children, Youth and Families Act 2005 (Vic).

Children’s Court: A court that hears offences committed by children and young people.

Common law: Law made by courts, including sentencing decisions and decisions on how to interpret legislation. Also known as case law.

Community correction order: A flexible, non-custodial sentence that sits between imprisonment and fines on the sentencing hierarchy. It is served in the community under conditions that may include unpaid community work, alcohol and drug bans, participation in treatment and rehabilitation programs and/or restrictions on where the offender can go or live, or with whom they can associate.


Compensation: Under the Sentencing Act 1991 (Vic), payment of money to a victim of crime to compensate for the pain, suffering, property loss or property damage caused directly because of the offence.

Concurrent sentences: Individual sentences, imposed for each of the charges in a case, that are to be served at the same time, rather than one after the other. For example, two prison sentences each of five years served wholly concurrently would mean a total of five years in prison.

Conviction: An order made by a court after finding that the accused is guilty of an offence.

County Court: A major trial court in Victoria that sits above the Magistrates’ Court and below the Supreme Court. The County Court hears all indictable offences except the most serious offences, such as treason, murder and attempted murder.

Court of Appeal: A division of the Supreme Court. The Court of Appeal decides appeals against conviction, sentence or both conviction and sentence.

Crown: In Victorian sentencing, the Crown refers to either the police prosecutor (in the Magistrates’ and Children’s courts) or the public prosecutor (in the County and Supreme courts) who represents the State of Victoria in criminal matters.

Crushing sentence: A sentence that creates a feeling of helplessness for the offender and destroys any ‘reasonable expectation’ of rehabilitation or a useful life after their release from prison.

Culpability: Blameworthiness, the extent to which a person should be held accountable for an offence. More culpable offenders generally get heavier sentences.

Cumulative sentences: Individual sentences, imposed for each of the charges in a case, that are to be served one after the other, rather than at the same time. For example, two prison sentences each of five years served wholly cumulatively would mean a total of 10 years in prison.

Custodial order: An order that involves a term of imprisonment (for adults), or a period of detention (for children and young offenders).

Defence: The accused and the accused’s legal advisors.

Deferral: A postponement of sentencing for up to 12 months to allow an offender to demonstrate their rehabilitation.

Deterrence: Reducing crime by the threat of a criminal sanction, or by someone experiencing a criminal sanction. Specific deterrence (also known as individual deterrence) is the attempt to discourage the offender from committing future crimes. General deterrence is the attempt to reduce future crime by discouraging other members of the community from offending.

Diversion program: A program designed for first-time or low-risk offenders who take responsibility for committing the crime, to prevent them from entering the criminal justice system. Diversion programs include conditions such as attending counselling, treatment or defensive driving training.

Director of Public Prosecutions: The Director of Public Prosecutions makes decisions about whether to prosecute serious offences in the higher courts on behalf of the State of Victoria, and prosecutes such cases. The Director of Public Prosecutions is independent of government.

Discharge: An order recording a conviction but releasing the offender without any conditions.

Dismissal: An order releasing an offender without recording a conviction or ordering any other sentence.


Drug treatment order: A prison sentence that is suspended (postponed) so offenders can have treatment in the community for their addiction. Only the Drug Court (a specialist court within the Magistrates’ Court) can impose a drug treatment order.

Electronic monitoring: A court may order an offender to wear an electronic tag that monitors their movements, and sends an alarm to a monitoring unit if the offender breaks any court-imposed restrictions on movement. Currently, only the higher courts (County and Supreme courts) can impose an electronic monitoring condition.

Fine: A sum of money that the court orders an offender to pay to the State of Victoria.

Gross violence: Circumstances that increase the seriousness of an offence of manslaughter or causing serious injury, and that may result in a statutory minimum sentence under the Sentencing Act 1991 (Vic) unless special reasons apply. Circumstances of gross violence include where the offender plans the offence in advance, commits the offence with a group of two or more other people, plans in advance to use a weapon or continues to attack the victim after the victim is incapacitated.

Head sentence: See ‘Total effective sentence’.

Higher courts: In Victoria, the County Court and the Supreme Court.

Human rights: The basic rights and freedoms that all human beings are entitled to, including rights to life and liberty, freedom of thought and expression, and equality before the law.

Imprisonment: Detention in a prison. The most severe sentence in Victoria.

Indictable offence: A serious crime, such as murder and rape, usually tried before a judge and jury in the higher courts.

Indictable offence triable summarily: A less serious indictable offence that, depending on the seriousness of the case, may be dealt with summarily in the Magistrates’ Court, or on indictment in the higher courts.

Infringement: An offence that is dealt with by a notice alleging the offence (an infringement notice) and a fixed financial penalty (for example, a parking fine).

Instinctive synthesis: A sentencing method where the judge or magistrate identifies all the factors that are relevant to the case, assesses their significance and makes a judgment as to the appropriate sentence, given all the circumstances of the case.

Judge: The person who hears the case and decides the sentence in the County Court or the Supreme Court.

Jury: A group of people (usually 12) without legal experience, chosen at random from the general community. A jury is responsible for determining questions of fact based on the evidence presented in a criminal trial for an indictable offence in the County Court or the Supreme Court, and deciding whether the accused is guilty or not guilty.

Magistrate: The person who hears the case and decides the sentence in the Magistrates’ Court. Most offenders in the Children’s Court are also sentenced by a magistrate. Child offenders who have committed very serious offences may be sentenced by the President of the Children’s Court, who is a County Court judge.

Mandatory sentence: A sentence set by parliament in legislation, allowing no discretion for the court to impose a different sentence.

Maximum penalty: The most severe sentence set in legislation that a court can impose for a particular type of offence. Also known as the statutory maximum.


Mitigating factor: A fact or circumstance about the offender or the offence that tends to lead to a less severe sentence.

Non-custodial order: A sentencing order that is not served in custody (for example, a community correction order).

Non-parole period: The period of imprisonment set by the court that the offender must serve in prison before being eligible to apply for release on parole.

Objective seriousness: The seriousness of the offending behaviour without any consideration of the personal details or background of the offender.

Offender: A person who has been found guilty of an offence, or who has pleaded guilty to an offence (has admitted the facts of an offence).

Office of Public Prosecutions: An independent statutory authority that initiates, prepares and conducts criminal prosecutions on behalf of the Director of Public Prosecutions.

Parity (principle of parity): Consistency of punishment between co-offenders sentenced in the same case, or sentenced in different cases resulting from the same offending circumstances.

Parole: Supervised and conditional release of an offender from prison before the end of a prison sentence. While on parole, the offender is still serving their sentence and is subject to conditions designed to help with their rehabilitation and reintegration into the community, and to reduce their chance of reoffending. Parole is not automatic, and an offender must apply for and be granted parole.

Parolee: An offender who has been released on parole.

Parsimony (principle of parsimony): To be parsimonious is to do no more than is necessary to achieve an intended purpose. The principle of parsimony means that the sentence imposed must be no more severe than is necessary to meet the purpose or purposes of sentencing the offender.

Penalty unit: Fine amounts are based on penalty units rather than specific dollar amounts. Penalty units are adjusted each year to keep pace with inflation. For the financial year 2018–19, a penalty unit is $161.19.

Plea (1): The response by the accused to a criminal charge – ‘guilty’ or ‘not guilty’.

Plea (2): Mitigating factors that the defence submits to the sentencing judge or magistrate.

Precedent: A court decision that sets a legal principle to be followed in future similar cases.

Proportionality (principle of proportionality): A sentencing principle that prohibits a court from ordering a punishment that is more severe than is appropriate for the overall seriousness of the offending behaviour.

Prosecution: A legal proceeding against an accused for a criminal offence. Prosecutions are brought by the Crown (through the Director of Public Prosecutions or police prosecutors), not the victim.

Remand: Placing an accused in custody to await further court hearings dealing with the charges laid against them.

Remorse: Contrition for the offending, being sorry for past actions.

Reoffending: Returning to, or repeating, criminal behaviour. Also known as recidivism.

Restitution: An order under the Sentencing Act 1991 (Vic) requiring an offender (or any other person in possession or control of stolen property) to return the stolen property, return the


proceeds of the sale of stolen property, or to make payment of a sum of money up to the value of the stolen property.

Sanction: A penalty or sentence.

Sentence: The consequence, including a penalty, that the court imposes on a person who has been found guilty of an offence.

Sentence indication: An indication given to an accused, from a magistrate or a judge, about whether the accused is likely to receive a sentence of imprisonment if they plead guilty.

Sentencing factors: Things about the offender and their offence that the court must take into account when sentencing.

Sentencing hierarchy: All possible sentences available to courts, arranged in order from the most severe to the least severe.

Sentencing principles: Rules and conventions in statute law and common law that guide courts’ sentencing decisions, including parity, parsimony, proportionality and totality.

Sentencing purposes: The reasons for sentencing an offender. Only five purposes are allowed for sentencing adult offenders in Victoria: just punishment, deterrence, rehabilitation, denunciation and community protection.

Sentencing remarks: The comments that a judge or magistrate makes at the end of a sentencing hearing. Sentencing remarks usually include a summary of the case, a description of the sentence and the reasons for the sentence. In the Magistrates’ Court, the sentencing remarks are usually only spoken by the magistrate to the offender. In the higher courts, the sentencing remarks are spoken by the judge, and also usually written down and published (for example, on AustLII).

Special reasons: Unusual circumstances about an offender or their offence that allow a court to impose a sentence that is less severe than the statutory minimum sentence for that offence.

Standard sentence: A guidepost to be considered by courts when sentencing 12 serious offences, including rape and murder. The standard sentence represents the middle of the range of seriousness when just considering the offending, without considering other factors (such as the offender’s circumstances, prior offending history or plea). The standard sentence for most of these offences is set at 40% of the maximum penalty.

Statute law: Law made by parliament and set out in legislation (statutes) called Acts of Parliament.

Statutory maximum: The maximum penalty for an offence as given in legislation (statutes).

Statutory minimum: The minimum penalty for an offence as given in legislation (statutes) that a court must impose unless special reasons apply.

Summary offence: An offence (for example, a minor traffic offence or offensive behaviour) that is less serious than an indictable offence. Generally, summary offences are heard in the Magistrates’ Court.

Supreme Court: Victoria’s highest court. The Supreme Court hears the most serious indictable offences, including treason, murder, attempted murder and manslaughter.

Suspended sentence: A now-abolished sentence of imprisonment that the court postponed, wholly or partially, for a period of time. If the offender reoffended during this period, they could be imprisoned for the total duration of the sentence. Suspended sentences are no longer available in the higher courts for offences committed on or after 1 September 2013, or in the Magistrates’ Court for offences committed on or after 1 September 2014.


Total effective sentence: In a case with a single charge, the total effective sentence is the sentence imposed for that charge before the non-parole period is set. In a case with multiple charges, the total effective sentence is the total of the sentences imposed for all charges before the non-parole period is set, taking into account whether the sentences are to be served cumulatively or concurrently. Also known as the head sentence.

Totality (principle of totality): Where an offender is sentenced for more than one charge, the principle of totality requires the court to ensure that the total sentence is ‘just and appropriate’ for the total offending behaviour.

Undertaking: Unsupervised release of an offender, with or without conviction, for a set period with or without conditions.

Victim: A person who has been injured or harmed directly because of a criminal offence, or a family member of a person who has died because of a criminal offence. Injury and harm includes physical injury, grief, distress, psychological trauma, financial loss and loss or damage to property.

Victim Impact Statement: A statement by a victim, presented to the court at the time of sentencing, explaining how the crime has affected them.

Young person/young offender: Under the Sentencing Act 1991 (Vic), a person who is under the age of 21 years at the time of sentencing.

Youthful offender: A person who is over the age of 21 years at the time of sentencing, but who is still considered relatively young.


BibliographyFox, Richard, Victorian Criminal Procedure: State and Federal Law (The Federation Press, 2015).

Freiberg, Arie, Pathways to Justice: Sentencing Review 2002 (Department of Justice, 2002).

Freiberg, Arie, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed., Thomson Reuters, 2014).

Ministerial Council on Education, Early Childhood Development and Youth Affairs, Melbourne Declaration on Educational Goals for Young Australians (December 2008).

Sentencing Advisory Council, Myths and Misconceptions: Public Opinion Versus Public Judgment about Sentencing (Sentencing Advisory Council, 2006).

Sentencing Advisory Council, Sentencing Snapshots (Sentencing Advisory Council, 2005–).

Victorian Curriculum and Assessment Authority, Victorian Certificate of Education, Legal Studies Study Design (Victorian Curriculum and Assessment Authority, Accreditation Period 2018–2022).

Victorian Curriculum and Assessment Authority, Review of VCE Legal Studies: Summary of Proposed Changes to the Study Design (August 2016).

LegislationChildren, Youth and Families Act 2005 (Vic)

Crimes Act 1958 (Vic)

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Road Safety Act 1986 (Vic)

Sentencing Act 1991 (Vic)

Summary Offences Act 1966 (Vic)