You be the Judge

Years 9 & 10 Teacher Guide

CrossCurriculum Units

Sentencing Advisory Council

October 2012

You be the Judge Teacher Guide1

Introduction

The Sentencing Advisory Council of Victoria created You be the Judge as part of its community education function. Its purpose is to raise awareness of and address community concerns about sentencing.

This teacher guide uses real case studies. Names and some details have been changed.

You be the Judge is designed for use in Victorian schools in Years 9 and 10 (VELS Level 6). It provides an engaging way for students to discuss, consider and apply the principles of sentencing. Students will be required to weigh and balance the same factors in sentencing that judges do, and in so doing students learn about how the boundaries of the law, current sentencing practices and community values affect criminal sentencing in Victoria.

The Sentencing Advisory Council

The Sentencing Advisory Council is an independent statutory body established in 2004 under amendments to the Sentencing Act 1991(Vic). 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 written views on the giving, or review, of a guideline judgment.

Sentencing attracts a lot of community interest and concern. It often divides opinion. Perceived inconsistencies between the sentences imposed in different cases of the same kind of offence provide compelling stories for news and current affairs media, as does the anger of crime victims and their families at the perceived ‘leniency’ of a sentence. Some commentators also regularly criticise the courts for being ‘soft on crime’.

There is widespread misunderstanding of the purposes of sentencing and the meaning of key elements in sentencing such as parole and statutory maximum penalties.

By informing, advising and educating, the Council aims to bridge the gaps in opinion that sentencing can provoke between the courts, government and the community.

The case studies in You be the Judge concentrate on the sentencing phase of the legal process. There is no mystery about the outcomes of the trials in these case studies. Each defendant has been found guilty, so the focus is entirely on the factors that must be taken into account in sentencing the offender.

The case studies are presented as slide shows with accompanying teachers’ notes, including discussion points and suggested activities. This teacher guide also provides links to relevant curriculum, background notes to sentencing in Victoria and preparation for teachers presenting the case studies.

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 teaching and team-teaching across strands anddomains.

You be the Judge sits most comfortably in an English or legal studies classroom, but it also workswell as an integrated program across curriculum areasincluding:

  • Mathematics
  • History
  • Civics and Citizenship
  • the Arts
  • Information and Communications Technology.

Implementing You be the Judge across a number of curriculum areas lets students practise specific skills before drawing the threads together at the end of the study to reflect on what the group has learned about the process of sentencing. For example:

  • an English class might practise the skills of discussion and expository writing
  • a Mathematics class might concentrate on statistics and graph interpretation
  • a Civics and Citizenship class might explore how sentencing affects citizens’ rights and responsibilities.

This approach supports a whole school response to implementation of the standards as endorsed by the Victorian Curriculum and Assessment Authority in theVictorian Essential Learning Standards(September 2009).

An important aspect of You be the Judge is the opportunity to teach and develop thinking skills– the core of most intellectual activity. Thinking skills can be defined as ‘applied intellectual activities that use information to achieve outcomes’. Examples of thinking skills that can be taught using You be the Judge include:

  • solving problems
  • making decisions
  • thinking critically
  • developing an argument
  • using evidence in support of an argument.

Whatever way teachers use You be the Judge, it contains topical, highly relevant resource material and opportunities for students to demonstrate achievement against the standards in aspects of:

  • Interpersonal Development
  • Personal Learning
  • Civics and Citizenship
  • the Arts
  • English
  • Humanities – History
  • Mathematics
  • Communication
  • Information and Communications Technology
  • Thinking Processes.

The following Victorian Essential Learning Standards (VELS Level 6)are addressed in You be the Judge case study materials.

Physical, personal and social learning
Interpersonal Development /
  • Demonstrate awareness of complex social conventions, behaving appropriately when interacting with others.
  • Describe how local and global values and beliefs determine students’own and others’ social relationships.
  • Work collaboratively, negotiate roles and delegate tasks to complete complex tasks in teams. Working with the strengths of a team,studentsachieve agreed goals within set timeframes.

Personal Learning /
  • Work independently to implement a range of strategies, as appropriate, to maximise learning.
  • Identify the ethical frameworks that underpin students’own and others’ beliefs and values and describe how the conflicts and dilemmas studentsidentify may affect learning.
  • Initiate personal short-term and long-term learning goals and negotiate appropriate courses of action to achieve them.
  • Allocate appropriate time and identify and utilise appropriate resources to manage competing priorities, and complete tasks, including learner-directed projects, within set timeframes.

Civics and Citizenship /
  • Explain the roles and responsibilities of courts at state and federal levels and evaluate a change in the law.
  • Draw on a range of resources, including the mass media, to articulate and defend students’own opinions about political, social and environmental issues in national and global contexts.
  • Contest, where appropriate, the opinions of others.

Discipline-based learning
The Arts /
  • Apply decision-making skills to find the most effective way to implement ideas, and design, create and make Artsworks devised from a range of stimuli, demonstrating development of a personal style.
  • Vary the content, structure and form of Arts works to suit a range of purposes, contexts, audiences and/or the conventions of a specific style, and demonstrate technical competence in the use of skills, techniques and processes.
  • Comment on the impact of Arts works, forms and practices on other Arts works and society in general.

English /
  • Read, view, analyse, critique, reflect on and discuss contemporary and classical imaginative texts that explore personal, social, cultural and political issues of significance to students’own lives.
  • Read, view, analyse and discuss a wide range of informative and persuasive texts, and identify the multiple purposes for which texts are created.
  • Explain how texts are shaped by the time, place and cultural setting in which they are created.
  • Write persuasive texts dealing with complex ideas and issues and control the linguistic structures and features that support the presentation of different perspectives on complex themes and issues.
  • Use a range of language techniques to try to position readers to accept particular views of people, characters, events, ideas and information.
  • critically analyse the relationship between texts, contexts, speakers and listeners in a range of situations.
  • When engaged in discussion, students compare ideas, build on others’ ideas, provide and justify other points of view and reach conclusions that take account of aspects of an issue.

Humanities – History /
  • Frame research questions and locate relevant resources, including contemporary media and online resources.
  • Critically evaluate sources of evidence for context, information, reliability, completeness, objectivity and bias.
  • Recognise that in history there are multiple perspectives and partial explanations.
  • Use evidence to support arguments, and select and use appropriate written and oral forms to communicate and develop historical explanations in a variety of oral, written and electronic forms.

Mathematics /
  • Carry out computations to a required accuracy in terms of decimal places and/or significant figures.
  • Make representations using perspective, isometric drawings, nets and computer-generated images.
  • Estimate probabilities based on data (experiments, surveys, samples, simulations), and assign and justify subjective probabilities in familiar situations.
  • Comprehend the difference between a population and a sample.
  • Calculate summary statistics for centrality (mode, median and mean), spread (box-plot, inter-quartile range, outliers) and association (by-eye estimation of the line of best fit from a scatter plot).
  • Select and use technology in various combinations to assist in mathematical inquiry, to manipulate and represent data, to analyse functions and to carry out symbolic manipulation.
  • Use geometry software or graphics calculators to create geometric objects and transform them, taking into account invariance under transformation.

Interdisciplinary learning
Communication /
  • Identify the ways in which complex messages are effectively conveyed and apply this knowledge to students’communication.
  • Consider alternative views, recognise multiple possible interpretations and respond with insight.
  • Use complex verbal and non-verbal cues, subject-specific language, and a wide range of communication forms.
  • Use pertinent questions to explore, clarify and elaborate complex meaning.
  • Use subject-specific language and conventions in accordance with the purpose of students’presentation to communicate complex information.
  • Provide constructive feedback to others and use feedback and reflection in order to inform future presentations.

Information and CommunicationsTechnology /
  • Use visualising thinking tools and apply ICT techniques to support causal reasoning and to model and describe the dynamic relationship between variable and constant data values to test hypotheses.
  • Apply techniques to locate more precise information from websites, including searching general and specialised directories, and applying proximity operators.

ThinkingProcesses /
  • Discriminate in the way studentsuse a variety of sources.
  • Generate questions that explore perspectives.
  • Process and synthesise complex information and complete activities focusing on problem-solving and decision-making that involve a wide range and complexity of variables and solutions.
  • Make informed decisions based on analysis of various perspectives and sometimes contradictory information.
  • Selectively apply a range of creative thinking strategies to broaden students’knowledge and engage with contentious, ambiguous, novel and complex ideas.
  • When reviewing information and refining ideas and beliefs, students explain conscious changes that may occur in their own and others’ thinking and analyse alternative perspectives and perceptions.
  • Explain the different methodologies used by different disciplines to create and verify knowledge.
  • Use specific terms to discuss students’thinking, select and use thinking processes and tools appropriate to particular tasks and evaluate theeffectiveness of these processes and tools.

Extracted from Victorian Essential Learning Standards: Level 6,updatedSeptember 2009, Victorian Curriculum and Assessment Authority.

National Educational Goals

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.

The Commonwealth’s The Shape of the Australian Curriculum (2009) emphasises the importance of educating young Australians to function responsibly as individuals, citizens and workers in a rapidly changing world.

Early statements from the National Curriculum Board indicate that, while learning in specific areas contributes to the goals of a national curriculum, making connections between discipline areas is also valuable.

You be the Judge goes further than the subject area of Legal Studies. It is ideally suited to bridge discipline boundaries and teach thinking skills.

National Framework for Values Education in Australian Schools

You be the Judge provides useful and timely links with the National Framework for Values Education in Australian Schools. It ties in closely with the nine values for Australian schooling articulated in the National Framework.

Sentencing is based on values – the principles and fundamental beliefs that guide society’s behaviour. You be the Judgesupports values education by exploring the values reflected in sentencing law and considering how these values apply in specific, real-life cases.

Key concepts and understandings

You be the Judge works by providing students with the tools necessary to understand the aims, principles and practice of sentencing. It then requires students 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 students 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 take into account the rights of the offender, the victim and the community. The sentence a judge or magistrate imposes must be guided by the law and the values the law 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 rights underpin the principles of the criminal justice system in Australia. These include:

  • 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 guilt is proved beyond reasonable doubt.

In July 2006, Victoria became the first Australian state to enact a Charter of Human Rights and Responsibilities. Coming into effect on1 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.

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. The Victims’ 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 always treated with courtesy, respect and dignity by the police, the Office of Public Prosecutions and victim support services.

The doctrine of the separation of powers is a foundation of Australian law. It means that the power to govern is spread over three separate groups, with each group checking the power of the other two. Commonwealth legislative power is the power to make laws and belongs to the parliament. Commonwealth executive power is the power to implement laws and belongs to the Australian Government (Prime Minister, Cabinet and government departments and agencies). Commonwealth 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 on the idea that, while parliament makes the laws, courts have responsibility for interpreting these laws.

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 Act1995.

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 Act1914.

Under the Constitution Act 1975, Victorian legislative power is vested in the Legislative Assembly and the Legislative Council, which make up the Victorian parliament. Victorian executive power is exercised by the Premier, Cabinet and state government departments. Victorian 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 on 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 that determine which sentence should be imposed in an individual case.