MurderJanuary 2012

You be the Judge

Years 11 & 12 Teacher Guide

VCE Legal Studies

Murder Notes

Sentencing Advisory Council

January 2012

About these notes

You be the Judge is a program offered by the Sentencing Advisory Council of Victoria to raise awareness of the aims, methods and complexities of sentencing. The most common source of information about sentencing is the media. This program gives students an opportunity to examine background information on sentencing and a specific case before making up their own minds. Working individually and in groups, students discuss, investigate and evaluate aspects of sentencing, including their own and societal values. Students draw on a range of resources to articulate and defend their own opinions on sentencing and to determine what is a fair sentence.

Teachers should read these notes in conjunction with the Teacher Guide, which provides in-depth background material about sentencing concepts and links to the Victorian Certificate of Education Legal Studies curriculum. This particular case study has been developed for use with VCE Legal Studies students.

About the case

The case used in this presentation is based on a real case from the Supreme Court of Victoria. The case study is divided into six different sections:

  • What is sentencing?
  • Sentencing theory
  • The crime and the time
  • The case
  • The sentence
  • Conclusion

Warning

As the case studies are based on real-life cases, sensitivity is necessary when using them in the classroom. Fictitious names are used, but the places and events are real. Sensitivity will also be necessary if, for example, particular students have been affected by a similar case or have a parent or close relative who has been involved in such a situation.

Alternative order of presentation

It is up to teachers to decide the order in which the slides are presented. The order presented in these notes is only a suggestion. Teachers may prefer to ask students to ‘sentence’ the offenders earlier (see ‘When to ask students to sentence’ in the Teacher Guide for a discussion on this issue).

If you choose to ask students to sentence earlier in the program, it may be worthwhile to ask them to reconsider their sentence at the end. Students could then have small group discussions to consider why their sentences may have altered.

Suggested student activities

Information for teachers and suggested student activities are supplied in these notes. If you wish students to keep a journal to record their feelings, knowledge and opinions, it will be necessary to initiate this before beginning to show the slides.

The suggested student activities include two components:

Discussion

  • Questions that may be considered or activities that may be undertaken during the slide show.

Extension

  • Activities that require additional time and resources to conduct.

The symbol is used to indicate activities that will require student use of a computer and the Internet.

MurderJanuary 2012Slide 1

There are title slides at the beginning of each section of this case study. When displaying these title slides take the opportunity, through general questioning, to collect student predictions in answer to the questions posed. 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 underline the results of any pre-testing/prior knowledge work undertaken at the beginning of the program.

The first section of slides concerns the origin and range of sentences available to judges in Victoria, including:

  • the separation of powers and the responsibilities of the parliament, judiciary and executive in the realm of sentencing
  • a list of the various laws which affect sentencing
  • the types of sentence and scale of sentences from the least to most severe.

Activities in this section focus on what sentences are and what students consider to be more and less severe. There are opportunities for students to explain how the Australian Constitution affects their lives. 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.

Inform students that they will be exploring sentencing in the Victorian court system and examining one case in particular. They will be looking at some background material on sentencing and the particular crime that is involved in the case. They will then have a chance to decide on a sentence for the crime and compare it with the actual sentence given by the judge or magistrate.

In Australia, responsibility for governing is guided by the ‘separation of powers’ principle. This means that the power to govern is spread between three groups: legislature, judiciary, executive (government), with each group checking the power of the other two. This slide represents the separation of powers as it works for sentencing:

  • legislative power in the hands of parliament
  • judicial power in the hands of the courts
  • executive power in the hands of government through its agencies.

Suggested student activities

Discussion

  • In Australia, responsibility for governing is guided by the ‘separation of powers’ principle. This means that the power to govern is spread between three groups: parliament, courts and government. Brainstorm using the DOVE* guidelines about why it is important the three groups are independent. Also, why is it important that the three separate groups are involved in different areas of sentencing?
  • Imagine a situation where Joe Bloggs has just been found guilty of a major theft. Why might it not be a good idea to allow parliament to decide his punishment?

*D - Defer judgement on any one else’s ideas or comments

O - Opt for the unusual and creative

V - generate a Vast number of ideas

E - Expand on the ideas by piggy-backing off others

Common law is a system of law, originally developed in England, that is derived from judges’ decisions (which arise from the judicial branch of government), customs and usage, rather than from legislation (which is derived from the parliament).

Suggested student activities

Extension

Work cooperatively with a partner to research some Acts of Parliament to find examples of maximum sentences (maximum penalties) for three specific crimes (e.g. theft, burglary and murder). Decide what specific tasks need to be undertaken (such as researcher, collator, presenter) and decide who is going to undertake each one. Decide on the best search terms to find information and help you to locate relevant sentences.

[Teacher: collate all groups’ information on the board to build a list of maximum sentences for a range of offences in Victoria.]

The types of sentencing orders listed above are described in detail in the Teacher Guide.

Suggested student activities

Discussion

  • What values of our society are reflected by this diagram?
  • In your opinion, does this hierarchy reflect the levels of severity?

Extension

  • What ‘sentences’ exist for misbehaviour at your school? Draw a scale like the one in the slide to show the range of these ‘sentences’ from the highest to the lowest level. Compare your scale with those drawn by other students and discuss any similarities and differences.

The next group of slides concerns the theory behind sentencing and the sorts of things a judge must or can take into account when imposing a sentence:

  • the purposes of sentencing
  • the principle of parsimony
  • the factors that must be taken into account
  • victim impact statements and pre-sentence reports
  • cumulative and concurrent sentences
  • non-parole periods.

Activities here focus on the constraints placed on sentencing judges and the extra information they can draw upon to ensure the sentence they impose is appropriate. Some emphasis is placed on public reaction to sentences and the importance of informed opinions.

Take the opportunity to collect student predictions in answer to the question posed on this slide.

Encourage students to return to the slides in this section (or provide appropriate print-outs) when it is time for them to decide upon the sentences they will impose in section 5.

These are the ONLY purposes for which sentences might be imposed, not suggestions or examples.

Section 5(1), Sentencing Act 1991

(1) The only purposes for which sentences may be imposed are:

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances;

(b) to deter the offender or other persons from committing offences of the same or a similar character;

(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated;

(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged;

(e) to protect the community from the offender; or

(f) a combination of two or more of those purposes.

Ask students to keep a record of their experiences and findings when completing the final activity for this slide. They will be useful resources to revisit once students have undergone the experience of deciding on a sentence themselves.

Suggested student activities

Discussion

  • Rewrite the purposes in the five boxes in your own language. Ensure they clearly explain what is supposed to be achieved by sentencing.
  • Working individually or in small groups, sort out which of the 6 types of sentence listed on slide 5 would be likely in most cases to achieve each purpose listed here. E.g. Which sentence type would best achieve denunciation? You can allocate more than one sentence type to each purpose. Compare and discuss your results with other students.
  • Is revenge an appropriate purpose for a sentence? Suggest a reason for your answer.
  • Arrange the various sentencing purposes in order of what you consider to be most important to least important. Present your point of view on the hierarchy of sentencing purposes. Do your classmates agree with you? Where appropriate, contest their opinions. Why might it be hard to get total agreement?
  • Sentences should be no more severe than required to achieve the purpose/s for which the sentence is imposed: Sentencing Act 1991, s. 5(3)
  • A sentence of imprisonment should not be imposed unless the purpose/s for which sentence is imposed cannot be achieved without confinement: Sentencing Act 1991, s. 5(4)
  • If there is a choice between imposing a fine or a community correction order, a fine should be imposed: Sentencing Act 1991, s. 5(6)
  • A fine should not be imposed if the purpose/s for which sentence is imposed can be achieved by dismissal, discharge or adjournment: Sentencing Act 1991, s. 5(7)

Suggested student activities

Discussion

  • Look up ‘parsimony’ in a thesaurus to find words of similar meaning. Explain the principle of parsimony in your own words.
  • In what ways might the principle of parsimony affect the decision of a judge or magistrate?
  • What would the opposite of the principle of parsimony force a judge to do?

Extension

  • Develop a role play in which a supporter of the principle of parsimony and a recent crime victim meet on a TV chat show. A third person plays the part of the TV interviewer. Complete the task within the set timeframe, prioritising your time and using appropriate resources. The victim wants offenders to receive the heaviest penalties for their crimes. During the role play the audience notes the strong and weak points made by each character. At the end of the role play choose one of the following statements as being best supported by the arguments: ‘Sentences should be the least severe the law allows’ or ‘Sentences should be as harsh as the law allows’. Using the ‘Purposes of sentencing’ diagram, make notes for each purpose to support your argument.
  • Construct a continuum bar with the following divisions: Agree strongly, Agree, Don’t know, Disagree, Disagree strongly. Ask members of the community to read your explanation of the principle of parsimony and then indicate their attitude on the continuum. Decide the size of the sample and make predictions about the results you will get. Compare your predictions with the actual results. Combine findings from the whole class and graph using a spreadsheet, then decide on a creative way to report the public’s attitude towards the principle of parsimony.

The Sentencing Act 1991 states that these factors must be taken into account when an offender is being sentenced. Sentencing is decided on a case by case basis. Judges examine the facts and circumstances surrounding the particular case in determining the sentence.

Later in this case study, students may be asked to consider the factors relating to the offender, and decide which are aggravating and which mitigating. It may be useful, therefore, to spend some time now getting students to define these terms for themselves. One of the following activities asks students to find definitions of these words. If this is not possible in the classroom, teachers might choose to provide these (or their own) definitions to students:

  • Aggravating: increasing the intensity or severity of anything, making worse or more severe;
    Macquarie Dictionary, Revised Third Edition
  • Mitigating: lessening in force or intensity, moderating the severity of something;
    Macquarie Dictionary, Revised Third Edition.

Suggested student activities

Discussion

  • Look up ‘aggravating’ and ‘mitigating’ in a thesaurus or dictionary and come up with your own definition of these words.
  • Are any factors in the diagram more important than others? What might make it hard to get general agreement among your class about this question?
  • Are we all equal before the law? How could an offender’s race, culture, age or gender affect how responsible they were for an offence? For which purpose of sentencing might these personal characteristics of the offender be relevant?

Extension

  • Demonstrate creativity in exploring ideas about sentencing. Turn a well-known character from literature into an offender. Write a short story in which you establish the crime, then use the list on this slide to establish the character’s responsibility and degree of blame. For example, Macbeth could be sentenced after a trial for the murder of King Duncan, or Josephine from Looking for Alibrandi could have been found guilty of driving under the influence of alcohol. Use a concept map to help plan your story.

Victim impact statements provide vital information for a sentencing judge, ensuring that he or she has a broad picture of how the crime has had an impact on the people involved.

Suggested student activities

Discussion

  • In small groups discuss the following questions and then share with the class. Group members are to support each other to contribute their thoughts and/or opinions on the questions asked:
  • Why might a victim write a victim impact statement?
  • What kind of information would you expect to find in a victim impact statement in amurder case?

Extension

  • Students create a victim impact statement. This may help students to think about how crimes affect members of the public. It may help them empathise with others and acknowledging the diversity of individuals.
  • Choose a crime that has been reported in the media in which a victim has been injured. Use appropriate search techniques to find an article from the Internet. Using the victim impact statement form as a template (see below). Imagine that you are a victim and write a victim impact statement. Remember that the aim of the statement is to show the effect the crime has had on you and the harm it has brought you.
  • You can find the Victim Impact Statement form used by victims at < Follow links for Victims  Victims of Crime Interactive Website  Resources  Documents  Victim Impact Statement Form Or just enter: doj_vis_interactive_form.pdf in your preferred search engine.

The concepts of cumulative (served one after the other) and concurrent (served at the same time) sentences are not well understood by the public and can cause confusion when sentences are published in the media.

While it is enough to draw students’ attention to this concept at this stage, it might be necessary to return to it once they begin to consider their own sentencing decision and to read the sentence imposed by the judge. In the case of murder, where the maximum sentence is life imprisonment, some discussion may be necessary about what constitutes life imprisonment and the consequences of imposing or not imposing a non-parole period.

The term TES is used in the graphs later in this presentation, so this definition may assist in interpreting that data.

Suggested student activities

Discussion

  • Work out the total effective sentence (TES) in each of the following cases:
  • Case 1: 2 years’ imprisonment for each of three counts of assault served concurrently and 1 year’s imprisonment for theft served cumulatively (answer: 3 years)
  • Case 2: 6 years’ imprisonment on each of two counts of culpable driving with 3 years of the second count cumulated (answer: 9 years).

Suggested student activities

Discussion

  • What is the minimum number of years in prison an offender would serve if he or she received a sentence of five-years’ imprisonment with an non-parole period of three years?

Extension

  • Design a pamphlet using an appropriate software program (e.g. MS Word, MS Publisher) to educate the general public about parole. Use pictures and graphs to make it creative, informative and suitable for the audience.