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You be the JudgeYears 11 & 12 Teacher GuideVCE Legal Studies

Murder Notes

Sentencing Advisory Council January 2012

Murder 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.

Murder January 2012

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.

Murder January 2012 Slide 2

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.


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 commentsO - Opt for the unusual and creativeV - generate a Vast number of ideasE - 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).


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.


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.


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)


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.


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.


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:

o Why might a victim write a victim impact statement?

o What kind of information would you expect to find in a victim impact statement in a murder 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 <www.justice.vic.gov.au>. 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.


Discussion Work out the total effective sentence (TES) in each of the following cases:

o 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)

o Case 2: 6 years’ imprisonment on each of two counts of culpable driving with 3 years of the second count cumulated (answer: 9 years).



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.


Take the opportunity to collect student predictions in answer to the question posed and reflect on prior learning.

The section concerns:

the description from the Crimes Act 1958 of the crime involved in this case study

figures of the sentences imposed for this crime over the past few years.

Activities in this section focus on definitions of the crime itself, and statistics of offending and sentences imposed over recent years. The statistics in this section of the presentation are taken from the Sentencing Advisory Council’s Sentencing Snapshots. The Snapshots are available for download from the Publications section of the website.


Indictable offences are more serious offences heard before a judge and jury in the County or Supreme Court.


Discussion What terms used in the law would you want explained to you if you were accused of murder?

Work out definitions for these terms, then compare them with the definitions used in the act. Why it is important to understand these terms? How can ‘legal’ language exclude people?

Murder is considered to be the most serious of crimes. Make a list of points to support this assessment. Are there any arguments that could be used to refute this assessment?

Extension

What examples of murder have been featured in the media recently? Use the Internet to locate information. What ‘degrees’ of murder can you identify from the articles you find? Why is it important that such ‘degrees’ are identified?


This graph and the following graph may be printed out and allocated to small groups to analyse and summarise trends and then report back to the class on the findings. Then ask students to reflect on their learning by writing down three things they have learnt about sentencing.

These are Victorian figures for a five-year period from July 2005 to June 2010.


Discussion Summarise the trends for the crime of murder illustrated in this graph.

Is there anything about the figures, proportions or trends in the graph which surprises you? If so, why is it surprising?

If you are found guilty of the crime of murder, you are most likely to be sentenced to immediate imprisonment or detention. Why do you think this is the case?


Return to this slide after students have compared their sentences with those of the trial judge, as a basis for discussion about how the various sentences would compare with the figures shown here and the implications of this.


Discussion What is the average total effective sentence and non-parole period over the period for murder?

What does this tell you about actual time spent in prison if you have been sentenced for this crime?

Explain how a graph like this could be helpful to a judge or magistrate.

Extension Murder obviously harms other people. Do you think the time spent in prison as indicated on this

graph is generally adequate?

In some states of the United State, for example, people convicted of crimes such as murder can be sentenced to hundreds of years in prison – a sentence they could not possibly serve in full. What is the point of imposing such a sentence?

Use the Internet to research the meaning of ‘life imprisonment’ in Australia; if no non-parole period is fixed, does it mean you will be imprisoned for the rest of your life?


WARNING

As the case studies are based on real-life cases, sensitivity is necessary when using them in the classroom. Fictitious names are used here, and these names bear no relation to any person connected with the case. Teachers should be mindful that some students may have been affected by a similar case or have a parent or close relative who has been involved in criminal activity. It is suggested that precaution be taken to ensure students do not disclose private information in the classroom that could cause them harm.

Do not allow students to get bogged down in the detail of the crime – the outcome is already known and Tony Prior is guilty as charged. Remind students that You be the Judge is concerned with sentencing only.

The section includes:

a description of the offender

an outline of the charge laid

a description of the crime

relevant background information available to the court.

Quotations from the judge’s ruling are provided. These may be for teacher reference only or, if time permits, they can be read to or by students to provide a more detailed picture.


‘Tony Prior’ is not the real name of the offender and bears no relation to any person connected with the case.

Part of the Judge’s summing up:

‘Since the age of 15 you had downloaded grotesque and depraved images and materials from the internet. You had retained those materials on your computer hard drive, which was seized by the police after the murder. On that hard drive of your computer you had also saved lyrics from groups, who masqueraded as musicians, and whose offerings can only be described as perverted obsessions with violence and death.

‘You told Dr Lee at the Alfred Hospital that you had seen every movie and read every book about serial killers. In the week before the killing you had watched a video about a notorious American serial killer.

‘You told the police, in your interview on 6 December, that when you read books about serial killers, you thought “what that would be like”, and that would get your adrenalin pumping a bit.

‘At the age of 19 you wrote a note, which was seized by the police from your papers, in which you fantasised about becoming a notorious serial killer in Australia. You even nominated a specific date when you intended to carry out that atrocity.’


‘Brook Tanner’ is not the real name of the victim and bears no relation to any person connected with the case.


‘In my view, there is little, if any, evidence of true remorse by you for your actions. I have listened carefully to the 000 call which you made at 12.12 am on 2 December. In that call, it is clear that your primary, if not sole, concern was for yourself. On four occasions you asked for help for yourself.

‘You told the operator that you had stabbed your friend, and that you did not know where he was. In response to her further question about your friend, you immediately described the injuries you had inflicted on yourself. When asked by the operator whether your friend was in the house when you stabbed him, you responded “Yes. I need serious mental help”.

‘Later in the conversation, the operator asked you about the injuries you had inflicted on your friend. The operator asked you whether he was bleeding heavily, to which you replied “Ah, yeah. Can I ask you something though?” and then you proceeded to ask the operator “Can you put me in a mental hospital?” It is clear that, during that telephone call, your thoughts were solely for yourself, and not for your good friend who, without cause, you had mortally wounded. Although you may not have known the full extent of the injuries inflicted by you on him, it is clear that you knew that you had stabbed him at least once in the area of his vital organs, and that he was bleeding heavily. You expressed no concern for his welfare, and did not even think to ask the operator to dispatch an ambulance or a police officer to find him and render assistance to him.

‘Similarly, there is no evidence that you had any concern for Brook Tanner when you spoke to the police after their arrival. When the police asked you what happened, you responded that you needed mental help. You did not inquire after what had happened to Brook Tanner, or whether anyone had found him or given him assistance.

‘During your conversation with Dr Lee at 9.00 am on 2 December, there was no expression of remorse by you for what you had done to Brook Tanner. In the interview conducted with you on 6 December (which I have viewed), you twice expressed concern that, by killing Brook Tanner, you had wasted or destroyed your life. At the end of the interview, when asked if there was anything else you wished to say, you did say that you were sorry and that it was never meant to happen that way, and that you would miss Brook, because he was a good mate. That expression of regret was, I consider, singularly muted in the context of the horrific crime you had just committed.’



‘Dr Walton and Dr Kennedy [psychiatrists] have also expressed views about your prospects of rehabilitation. Dr Walton stated in his report that you do not exhibit evidence of more general irresponsibility, or any proclivity towards violence, “which would seem to indicate a favourable prognosis regarding recidivism”.’

‘Dr Walton confirmed that view in his evidence before me.’

‘Dr Kennedy did not express any view on your prognosis in his report, but in his evidence before me he was prepared to state that he was optimistic that you would not re-offend. Dr Kennedy did state that you have still a long way to go to understand all the aspects which led to your offending, and that indeed you may never completely understand it. His view was that, in light of your background, there was nothing of major concern which would indicate that you might re-offend.’



Discussion Consider everything you know so far about Tony. Think, Pair, Share*. Do you think any factors

(including gender, age, background, motivation for committing the offence) are more important than others? What might make it hard to get a general agreement among your class about this question?

The role of graphically violent content downloaded from the Internet appears to have been given prominence in this case. To what extent do you think this might be pertinent to the case?

Refer back to your definitions for ‘aggravation’ and ‘mitigation’. In groups, discuss the factors outlined on the slides and nominate for each one whether a judge might consider it to be mitigating or aggravating when determining sentence.

* Think, Pair, Share This is a structured process to share information efficiently.

1. Think (as individuals): Students think about the topic, take notes or jot down ideas.

2. Pair (in pairs): Pairs of students discuss their thoughts and ideas about the topic.

3. Share (pairs pair – group of 4): Groups then discuss their thoughts and ideas about the topic, leading to greater knowledge and understanding, with groups presenting to the whole class.


This section includes the sentence handed down from the original trial judge.

Remind students that Tony Prior is guilty and that their task is to give a sentence. They must take into account the total sentence to be imposed and, if it involves imprisonment, also decide on the non-parole period.

It is a good idea to have relevant information from earlier in the program available for students to refer to – print-outs of particular slides are most efficient as it is unreasonable to expect students to remember all the details of sentencing theory and factors to take into account as well as the facts of the case.

Opportunities arise here for collaborative work in deciding on sentences, and discussion and debate once all students have decided on a sentence and before the actual sentence is revealed.


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

Later, whole class discussion will almost certainly reveal a wide range of sentences, providing an opportunity for reminding students about the pressure on judges to ‘get it right’.


Discussion Taking into account everything you’ve learnt about sentencing, write down what sentence you

would give Tony Prior if you were the judge.

Extension Use a Plus, Minus and Implications (PMI)* chart to help organise your reasoning, compare

positives and negatives, and make decisions. In the Plus column enter all the positive factors, in the Minus column enter all the negative factors, and in the Implications column list potential outcomes.

Plus Minus Implications


A reminder slide to focus students while they are deciding on their sentence.

Before advancing beyond this slide students must decide on a sentence to impose.

Research into public attitudes towards sentencing referred to in the Sentencing Advisory Council’s Myths and Misconceptions Report notes the following:

In the abstract, the public thinks that sentences are too lenient.

In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient.

People have very little accurate knowledge of crime and the criminal justice system.

The mass media is the primary source of information on crime and justice issues.

When people are given more information, their levels of punitiveness drop dramatically.

People with previous experiences of crime victimisation are no more punitive than the general community.

People with high levels of fear of crime are more likely to be punitive.

Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment.

Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions.

Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts.

Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders.

Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gestures.

Expect the sentences imposed by the students to reflect some of these research findings.


There is likely to be strong agreement and disagreement with this sentence, so discussion about it will have to be handled sensitively.


Discussion How do the sentences given by you and your classmates compare with the sentence imposed

by the judge? Discuss any major differences and see if you can explain why these have occurred. In the light of the information you now have, is it possible to come to a consensus about the sentence?

Extension Construct column graphs on a large sheet of paper to represent the sentences decided upon

by you, your classmates and the judge. Each student fills in a column using two colours to represent total effective sentence and non-parole period. Coordinate the graph so that it begins with the shortest TES and ends with the longest. Insert the judge’s sentences in the appropriate place, highlighting them in some way.

Imagine that you are one of the following characters in the case: Tony Prior, Brook Tanner, Brook Tanner’s loving parents, Tony’s widowed mother, a person who administered first aid to Brook after he was stabbed. Write a short letter to a close friend describing the sentence and your opinions of it.


This slide contains two statements that should reflect the thoughts of students at the conclusion of You be the Judge. It provides an opportunity to focus on the importance of an informed opinion and to recap the research into public attitudes towards sentencing referred to in the notes for slide 24.


Discussion Discuss the two statements in this slide and compare your understanding of them with that of

other students.

Extension Reflect upon what you have learnt while working through this You be the Judge case study and

consider the extent to which these two statements sum up your own feelings.

Write your own short statements to sum up any other important ideas that you have formed while participating in this program.

Synthesise your thoughts and knowledge on the sentencing process and present them to the public. Depending upon whether you are working individually or in a group, you may choose to use one of the following formats: essay, PowerPoint presentation/slide show, wall chart, video, drama production.