Video transcript - Criminal case scenario part three

Screen title: Criminal trial, Episode 3

Judge: Madame Forewoman, and members of the jury, have you agreed upon your verdict?

Forewoman: We have.

Screen title: Sarah Keating, Barrister

Sarah Keating: So a jury'll come in, and it's a nervous moment for everybody, and the judge's associate will take that verdict, and if it's the one that you haven't been wanting, 'cause it's guilty,

Judge: On charge one of dangerous driving causing death, do you find Thomas Hugo Cunahan guilty or not guilty?

Forewoman: Guilty.

Sarah Keating: Then what flows from that, of course, is a plea in mitigation. So a date will be set, or it'll flow immediately afterwards, but usually a date will be set, because you want some time to prepare. If it's necessary to get a psychological report to help explain the circumstances that resulted in the offending, then you need some time to get that. You'd need, probably, a period of about six weeks.

Defence barrister: For the plea hearing, we need to explain to the judge why your chances of rehabilitation are excellent.

Defendant: Okay.

Defence barrister: So I'm going to ask you about what your plans for your future are, who and what you'd like to be.

Sarah Keating: To do that, you really have to know your client. You have to understand that person. You have to sit with them. You've gotta understand whatever their life experiences were, either in the moment, or previously, how it's gonna affect their life, to be punished in the way that they no doubt will be. But you've gotta get enough information so that you can tell their story, and so that a judge can take that into account, balance it against what the impact has been on whomever the victim is. And you can reach a point at which a judge can satisfactorily find a way to impose a sentence that is just in all the circumstances, which takes into account, importantly, that rehabilitative aspect.

Screen title: Sentencing

Judge: Thomas Hugo Cunahan, you have been found guilty of the offence that you, by driving a motor vehicle in a manner that was dangerous to the public, caused the death of Mia Stead.

Screen title: Chief Judge Peter Kidd

His Honour Chief Judge Kidd: There are many factors or considerations that a sentencing judge must take into account. But very broadly, they can be broken down into three. The first is that the sentence must punish the conduct in question. The sentence itself must recognise that the conduct in question was wrongful, that's it's unacceptable, that the community won't tolerate it. And it must also recognise the harm and suffering done to the victim in question. We call that punishment, and we also call it public denunciation. The sentence must publicly denounce the conduct in question. The second factor is what we call deterrence. The sentence must specifically deter the offender from engaging in this kind of conduct into the future. In a driving case where the person's texting, has an accident, and kills somebody, the message needs to be sent to that offender that if they engage in that conduct they'll face significant punishment. Similarly with deterrence, the sentence must deter other members of the community who might be contemplating committing or engaging in this kind of a conduct. And it must send a message, then, not to do it, because if you do, and you have an accident, and you kill somebody, you'll face significant punishment. Thirdly, the sentence must make some allowance for what we call rehabilitation, or reform of the offender. That's not only in the offender's interest, but it's in the community's interest. So the judge must weigh and balance all of these different considerations in deciding what a just and appropriate sentence is in the given circumstances of the case.

Judge: You were 20 years old at the time of this offending, now 22. You are someone who has never been in trouble before. The law recognises that, as a youthful offender, the sentence I impose needs to promote your rehabilitation. I remain optimistic about your ability to reenter society, and continue to be a productive member of our community.

His Honour Chief Judge Kidd: We often have before the courts, offenders who are relatively young. We call them youthful offenders. They're often not as wise and as worldly as, say, 35-year-old, experienced people who perhaps have prior convictions. So they're not as morally comparable. There's also an interest in the community in ensuring that young people are returned to society so that they can become productive members of the community. Of course, by the very fact that they may be 20 years of age means that they have a long life ahead of them. And at some point, they need to be returned to the community. And it's in all of our interests to ensure that their rehabilitation is promoted, so they don't reoffend. So there are many reasons why, with youthful offenders, rehabilitation must be emphasised, and that may pull in the direction of a more lenient sentence. Another example would be, for example, someone who's intellectually impaired in some way, an intellectually disabled offender. Often with those defenders, they're not in a position to perhaps reason to the same degree that the conduct in question was wrong. Or their judgement, in terms of the decision to engage in the offending may be impaired, at least by comparison with someone who doesn't have that disability. And again, if the judge makes those findings with respect to an intellectually disabled person, their moral culpability would also be less than somebody who's not disabled. That factor too, would pull in the direction of a more lenient sentence. So what the judge does is to weigh up all of these considerations, to ensure that the sentence is tailored to the offender in question, the circumstances of the offence in question, and the specific harm and trauma caused to the victim in question. This is what we call individualised justice. The sentence is actually tailored to meet the circumstances of the offender, offence, and victim, to ensure that in every case, the sentence delivers a just and appropriate outcome for the community.

Judge: In her victim impact statement, which she read out loud, the daughter of Ms. Stead described how the consequences she and her family have been through as a result of the collision are something I never wish for any other daughter to go through, because the pain and suffering is too much.

Screen title: Judge Hannan, Head of the Criminal Division

Her Honour Judge Hannan: In this kind of offending, the victim impact statements are usually compelling, for obvious reasons. A dearly loved member of someone's family has been killed as a result of the dangerous driving of this young man. I, in fact, sentenced in relation to a matter of this type in the last few days, and I made a point of saying to the family, just before I announced sentence, that it was important that it was understood that I was sentencing criminality, not valuing a life. It's no part of my role to value a life. That's an impossible task. What I'm doing is sentencing the criminality that was involved in the death.

Judge: The benefit you get because of your youth must give way to the need for general deterrence. That is because this kind of offending is often committed by young people. The sentence I impose must generally deter other young people from driving in the same dangerous way that you have done.

His Honour Chief Judge Kidd: Well you can see how difficult the sentencing task was in this particular case. This type of case often doesn't receive any coverage in the media. It's not the subject of any controversy or criticism. But in some respects, it's actually typical of the work that's done in this court, and of the sentences which judges are imposing on a weekly basis. Of course, the fact that it doesn't receive any media attention, doesn't mean it's not important. It's terribly important. All of these cases are important for everybody involved, the victim, the victim's family, the accused person, or the offender himself, or herself, who's looking at going to jail, and obviously, for all the parties involved, including the judge.

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Page last updated: 16 September 2018