Culpable driving
causing death
VCE case study
Revised January 2008
Photo: John French / Courtesy of The Age
1. Sentencing origin and range
What is the origin
and range of
sentences
available to a
judge in Victoria?
Chief Justice Marilyn Warren of the
Supreme Court of Victoria
Sentencing Advisory Council, 2007
2
Who is responsible for sentencing?
The Australian Constitution demands
separation of powers, that is the power
to govern is spread between three
groups: Legislature, Judiciary,
Executive.
In sentencing:
Parliament
~ makes the laws ~
• Creates offences and what
the maximum penalties will
be
• Makes the rules the courts
must apply to cases
• Sets up punishments for
judges and magistrates to
use
Courts
~ interpret the laws ~
• Apply the law within
framework set-up by
Parliament
• Set specific sentences for
individual offenders
Executive
~ put laws into operation ~
• Correctional authorities (eg
prisons) – control
offenders after sentencing
• Adult Parole Board –
supervises offenders who
are on parole
Sentencing Advisory Council, 2007
3
Where is sentencing law found?
• Sentencing Act 1991
• Children, Youth and Families Act 2005
• Common law – previous court judgements
• Various Acts and Regulations creating particular
offences – e.g. Security Legislation Amendment
(Terrorism) Bill 2002 dealt with terrorism after 11
September 2001
Sentencing Advisory Council, 2007
4
Types of sentencing
Most severe
F imprisonment
F combined custody and treatment order (max 12 mths)
F drug treatment order (max 2 years)
F home detention (max 12 mths)
F intensive correction order (max 12 mths)
CUSTODIAL
F suspended sentence of imprisonment
(max 3 years – higher courts; 2 years – Magistrates’ Court)
F community-based order (max 2 years)
F fine
NON-CUSTODIAL
F adjourned undertaking (offender agrees to conditions
specified by the court for up to five years)
Least severe
Sentencing Advisory Council, 2007
5
2. Sentencing theory
Source: Victorian Sentencing Manual, Judicial College of Victoria
What must a
judge consider
when deciding
what sentence
to impose?
Sentencing Advisory Council, 2007
6
Purposes of sentencing
These are the ONLY
purposes for which
sentences might be
given
Protect the
community
Denunciate
Sentencing Act 1991, s 5(1)
Fair
punishment
PURPOSES
OF
SENTENCING
Deterrence
Rehabilitation
Sentencing Advisory Council, 2007
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Principle of parsimony
Parsimony
~ taking extreme care in using resources ~
Judges should choose
the most straight-forward
solution when sentencing
If a choice of punishment
exists a judge should take
care to choose the least
severe option that will achieve
the purposes of sentencing
Example
If there is a choice between imposing a fine or a community based order, a
fine should be imposed
Sentencing Act 1991, ss 5(3), 5(4), 5(6), 5(7)
Sentencing Advisory Council, 2007
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Factors that must be considered
Factors that must be considered
when sentencing
Maximum penalty
& current
sentencing
practice
Type of offence
& how serious
Offender’s
degree of
responsibility
& culpability
Relevant Acts
of Parliament
& statistical
data
Factors making
the crime worse,
intention, effects,
method, motive,
weapons,
role the offender
played
Prior offences,
age, gender,
race, culture,
character, mental
state, alcohol,
drugs, gambling,
personal crisis
Victim
Aggravating or
mitigating
factors
Impact of crime
on victim (eg
psychological
or physical
trauma), material
or financial loss
Factors which
increase or
lessen the effect
of the crime:
eg remorse,
early confession,
restitution,
guilty plea
Victim impact
statement
Sentencing Act 1991, s 5(2AC(2))
Sentencing Advisory Council, 2007
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Victim impact statements
• If a court finds a person guilty, a victim of the
offence may make a victim impact statement
• A victim impact statement contains details of any
injury, loss or damage suffered by the victim as a
direct result of the offence
• Admissible parts of a victim impact statement that
are appropriate and relevant to sentencing may
be read to the court by a prosecutor where a
victim wants this to happen
Sentencing Advisory Council, 2007
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Sentences
Cumulative or concurrent?
• Cumulative sentences are
sentences for two or more crimes that
run one after the other, rather than at
the same time – so two 5-year prison
sentences served cumulatively would
mean a total of 10 years in prison
• Concurrent sentences are
sentences for two or more crimes that
run at the same time – so two 5-year
prison sentences served concurrently
would mean a total of 5 years in
prison
• The head sentence is the sentence
given for each crime before a nonparole period is set
• The total effective sentence (TES)
is the total sentence for all crimes
once thay have been made
cumulative or concurrent
Non-parole period
• The non-parole period is set by the
court and is the part of the sentence
the offender has to serve in prison
before being eligible for parole
• A non-parole period must be given
for sentences of 2 years or more
• A non-parole period may be given
for sentences of 1–2 years
• A non-parole period cannot be given
for sentences of less that 1 year
• Parole is the release of a prisoner
before the end of a sentence,
subject to conditions to help with
reintegration into the community
Sentencing Advisory Council, 2007
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3. The crime and the time
What is ‘culpable
driving causing
death’ and what
penalties does it
bring?
Photo: Trevor Poultney
Sentencing Advisory Council, 2007
12
Culpable driving causing death
• Any person who by the culpable driving of a
motor vehicle causes death of another person
shall be guilty of an indictable offence
• Penalty: Level 3 imprisonment (20 years
maximum) or a level 3 fine or both
• Culpable driving includes causing the death of
another person while driving
– recklessly
– negligently
– under the influence of alcohol or drugs
Crimes Act 1958, s 318A(1) and (2)
Sentencing Advisory Council, 2007
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Culpable driving
Persons sentenced ~ 2002/03–2006/07
35
30
Number
25
20
15
10
5
0
2002-03
2003-04
Male (n = 112)
2004-05
2005-06
2006-07
Female (n = 17)
Sentencing Advisory Council, 2007
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Culpable driving
Sentence types ~ 2002/03–2006/07
30
Number
Number
Mix (WSS and fine)
Non-custodial
supervision order
20
Wholly suspended
sentence
Youth training centre
order
10
Imprisonment
0
2002-03
2003-04
2004-05
2005-06
Number of
Number
ofpersons
persons
2006-07
Total
Percentage
Sentencing Advisory Council, 2007
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Culpable driving
Length of imprisonment ~ 2002/03–2006/07
25
Number
20
15
10
5
0
2
3
4
5
6
7
8
9
10
11
12
13
14
Total effective imprisonment length (years)
Sentencing Advisory Council, 2007
16
Culpable driving
Non-parole period ~ 2002/03–2006/07
25
Number
20
15
10
5
0
1
2
3
4
5
6
7
8
9
10
Non-parole period (years)
Sentencing Advisory Council, 2007
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Culpable driving
Total effective sentence & non-parole period
11
~ 2002/03–2006/07
10
Non-parole period (years)
9
8
7
Num ber of people
6
Imprisonment
(n = 101)
5
13
4
10
8
3
5
2
3
1
1
<1
1
2
3
4
5
6
7
8
9
10
11
Total effective sentence (years)
12
13
14
15
Sentencing Advisory Council, 2007
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Culpable driving
Average imprisonment and parole by gender
~ 2002/03–2006/07
7
6y, 3m
6y, 2m
6
5
3y, 11m
3y, 7m
Years
4
3
2
1
0
Males
Average TES length
Females
AverageSentencing
non-parole
period
Advisory
Council, 2007
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4. The case
Photo: Stock.XCHNG
What are
the facts
of this
case?
Sentencing Advisory Council, 2007
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The offender
• Pamela Begg is a 37-year-old woman.
• She has pleaded guilty to two counts of culpable
driving causing death.
• The maximum penalty for culpable driving is 20
years’ imprisonment.
Sentencing Advisory Council, 2007
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The crime 1
• Witnesses saw Pamela driving her car erratically
at about 70 kph. She went through a red light, hit
the median strip and lost control of her car.
• Pamela’s vehicle crossed to the south-bound
carriageway and collided with a vehicle coming in
the opposite direction.
• Four people were in the car that Pamela crashed
into. Two females aged 15 and 19 were killed.
Two male passengers suffered moderate injuries.
Sentencing Advisory Council, 2007
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The crime 2
• After the collision, witnesses heard Pamela
abusing the dying female driver.
• Pamela was drinking from a can of alcohol and
staggering about. She was found to have a blood
alcohol level of 0.168 and had traces of cannabis
in her system.
• Pamela does not remember much about the
accident – only “a big bang”.
• Prior to driving her vehicle, she had had a quarrel
with her husband.
Sentencing Advisory Council, 2007
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The crime - location
Photo: Trevor Poultney
Sentencing Advisory Council, 2007
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Factors for consideration
• Pamela has nine prior convictions from four separate court
cases. Her prior offences include driving while her licence
was cancelled, driving with an excessive blood alcohol
level and speeding by more than 50 kph. Pamela was
unlicensed when the current offence was committed.
• Pamela has never been imprisoned.
• Pamela is married and has four children, two of whom
(aged 4 and 10) live with her.
• Pamela was abandoned by her own parents at birth and
put up for adoption. Later in her life, Pamela spent 12
months in an institution as a person in need of care.
• Seven victim impact statements have been given to the
judge from the dead girls’ parents, family members and
friends.
Sentencing Advisory Council, 2007
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5. The sentence
What sentence
would you give?
Photo: Department of Justice
Sentencing Advisory Council, 2007
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You decide …
1. What sentence would you impose for each
individual count?
2. What total sentence would you impose?
3. If imprisonment:
– What would be the head sentence?
– What would be the non-parole period?
Sentencing Advisory Council, 2007
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The maximum penalty
Culpable driving
• Any person who by the
culpable driving of a motor
vehicle causes the death
of another person shall be
guilty of an indictable
offence
• Penalty: Level 3
imprisonment and/or fine
(Maximum - 20 years
and/or 2400 penalty units)
Crimes Act 1958, ss 318A(1) and (2)
Pamela, guilty of two counts
of culpable driving, could
receive:
• possible maximum
imprisonment of 40 years
• possible maximum fine of
4800 penalty units.
Sentencing Advisory Council, 2007
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What the trial judge did
Pamela Begg’s case, County Court
• Count 1
Six years’ imprisonment
• Count 2
Six years’ imprisonment
• Total effective sentence
7 years, as one year is to
be served cumulatively
• Non-parole period
4 years
Trial judge’s comment
Offender’s insight into her actions as a result of what she had
been through during the court processes would be sufficient
specific deterrence for her.
Sentencing Advisory Council, 2007
29
Photo: Department of Justice
6. The appeal
What grounds
might there be
to appeal
against the
sentence?
Deputy Chief Magistrate Dan Muling sitting in
the Magistrates’ Court of Victoria
Sentencing Advisory Council, 2007
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Appeal
The DPP appealed the sentence on the grounds that “the
learned sentencing judge erred in that he:
• imposed sentences on counts 1 and 2 which are each manifestly
inadequate;
• failed to adequately reflect the seriousness of the offences generally
and in this case in particular;
• failed to take into account or sufficiently take into account the aspect
of general deterrence;
• failed to take into account or sufficiently take into account the aspect
of specific deterrence;
• gave too much weight to factors going to mitigation;
• ordered insufficient accumulation as between sentences imposed on
counts 1 and 2;
• gave insufficient weight to the respondent’s relevant prior
convictions.”
Sentencing Advisory Council, 2007
31
What the Court of Appeal did
DPP v Begg
•
•
•
•
Counts 1 and 2
6 years each but cumulate 3 years on count 1
Total effective sentence
9 years
Non-parole period
6 years
Also disqualified from obtaining a driver’s licence for 7 years from
March 2002
Decision
• Circumstances of offence and offender’s driving history call for
punishment which significantly reflects specific and general
deterrence. Offender needs to be reminded that the misconduct
engaged in is no longer regarded by the community as a form of antisocial behaviour masquerading as a criminal offence and in truth is a
species of ‘involuntary manslaughter’.
Sentencing Advisory Council, 2007
32
7. Conclusion
Effective sentencing
achieves a balance between
the interests of society, the
concerns of the victim and
the best interests of the
offender.
The more information
society has about crimes
and the people involved in
them, the more reasonable it
is in its demands about
sentencing.
Photo: Department of Justice
Sentencing Advisory Council, 2007
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