CRIM SENTENCE CARDS

Question 1

What is a goodyear indication?

Answer 1

Sentence indication in CC
- MUST ACCEPT PROS FACTS OR
- Agree basis of plea with the prosecution

Question 2

Threshold for a custodial sentence?

Answer 2

Must not pass unless:
- offence or combo of them was SO SERIOUS that neither a fine or comm order can be justified

Question 3

Threshold for community order?

Answer 3

Must not make unless
- offence/combo

WAS SERIOUS ENOUGH TO WARRANT IT

Question 4

How is SERIOUSNESS assessed?

Answer 4

HARM
Harm caused, intended to cause, might foreseeably have caused

CULPABILITY
Role, intention, sophistication, planning – not an element of mens rea

Question 5

How will court approach sentencing?

Answer 5

SOME ANGRY MEN ALWAYS REGRET TAKING ACTION

Determine the seriousness
Consider aggravating factors – statutory and others
Mitigators
Assistance
Reduction of guilty
Totality
Ancillary orders

Question 6

How do you use the sentencing matrix?

Answer 6

1. Determine category
2. Adjust starting point for agg/mits
3. Reduce for guilty plea
4. If final: ensure is just and proportionate

Question 7

Generally, how are the 3 categories assessed?

Answer 7

CAT 1) greater culpability and greater harm
CAT 2) Greater culp, lesser harm (vice versa)
CAT 3) Less culp, lesser harm

Question 8

How much guilty plea credit do you get?

Answer 8

1/3 - first stage MAX
1/4 - after 1st stage MAX
1/10 - DAY OF trial MAX

Question 9

What are the non-custodial sentences?

Answer 9

BIG ANGRY CATS FIGHT CONSTANTLY

Bind over

Absolute discharge

Conditional discharge

Fines

Community order

Question 10

What is binding over?

Answer 10

Pay money in lieu of charge, and then if you don’t keep the peace you forfeit your money

Question 11

What is a conditional discharge?

Answer 11

No punishment as long as no other offence within period

OTHERWISE

can be resentenced for the OG offence

period cannot = 3y+

Question 12

What are some of the details about community orders?

Answer 12

Max 3y

At least 1 requirement including a punitive element

Must avoid conflicts with religion/work/education

Question 13

What happens if you unreasonably breach a community order?

Answer 13

Amend so more onerous

Fine 2500

Revoke and resentence (must account for extent complied with order)

Question 14

What are mags sentencing powers?

Answer 14

6mo for single
12mo for 2+ either way only

Question 15

To what length of sentence can a custodial sentence apply?

Answer 15

Those between 14d and 2y

Question 16

What are the 3 elements of a suspended sentence?

Answer 16

Custodial term

Operational period (e.g., 1y term suspended for 2y)

Supervision period (e.g., wt 18mo probation)

Question 17

What offences have minimum sentences?

Answer 17

3rd domestic burg - 3y (1 count = 1 day in court even if multiple were tried at once)
6m - 2nd offence possess weapon
6m - threat with weapon

Question 18

Starting points for murder?

Answer 18

15, 25, 30

Question 19

Where should you appeal if a mistake was made in mags?

Answer 19

AT MAGS

Slip rule e.g., tried in your absence but actually you got run over, misadvised by a legal advisor

Question 20

When should you appeal from mags to crown?

Answer 20

Error of fact, or mixed fact and law

Question 21

When appeal mags to high court?

Answer 21

By case stated

Error of law, excess of jurisdicion

Unfairness, bias, procedural irregularity

Question 22

Do you need leave to go from crown to mags?

Answer 22

No

Question 23

Can pros appeal from Crown to mags?

Answer 23

No

Question 24

In CC appeal, what sentence can CC do?

Answer 24

Anything that was in the power of mags = could even be worse

Question 25

When must appeal be lodged to CC from mags?

Answer 25

15 days of sentence, served on mags/pros MUST INCLUDE - Conviction, sentence, order/decision incl. court date - Summarise issues - State whether asked mags to reconsider - List parties on whom notice was served

Question 26

Is there rights to bail pending appeal?

Answer 26

No

Question 27

What 3 things can CC do on appeal?

Answer 27

Confirm, reverse/vary decision Remit matter with opinion to mags Make any other order which the court thinks is just, as long as not in excess powers of mags

Question 28

Deadline to give notice of appeal to COA?

Answer 28

28 DAYS of conviction -- if against convic 28 days of sentence - if against sent can extend with reasons, esp if there are merits

Question 29

After notice, who considers the appeal application?

Answer 29

registrar sends to single jusge or directly to COA

Question 30

What happens if COA appeal is refused?

Answer 30

10 business days to renew application for leave before the full COA

Question 31

How many judges if CC appeal to COA is granted?

Answer 31

2 for sentence 3 for conviction

Question 32

What are the common grounds of appeal against conviction?

Answer 32

Really they just have to be REASONABLE Wrongful admission/exclusion of evidence Wrong reject of no case Wrong withdrawal of issues from jury Misdirection of law/facts on summing Conduct of trial judge Inconsistent jury verdict Fresh evidence Defects on indictment Conduct of lawyers

Question 33

Common grounds for appeal against sentence?

Answer 33

Wrong in law Wrong in principal Manifestly excessive Legitimate expectation Judge fails to account for relevant matters Judge takes improper considerations Unjustified disparity between co-D;s

Question 34

Can you appeal to COA if you plead guilty?

Answer 34

Yes, common ground is if trial judge left no option but to plead guilty incorrect legal advice -- apply to CC to vacate the plea

Question 35

When do you need to serve a skelton with appeal and what are the time limits??

Answer 35

Especially if novel law point, complex issues 21 days prior to hearing and respondent 14d b4 hearing

Question 36

Is appelant allowed to be present at appeal

Answer 36

yes usually

Question 37

What is the test to allow appeal?

Answer 37

Conviction: if conviction is unsafe Sentence: if court thinks that the D should have been sentenced differently

Question 38

What powers on appeal does COA have for conviction?

Answer 38

Quash Interests of justice -- retried Court substitute a guilty verdict for an alternative offence if jury - would have been able to convict of the alternative offence at trial - must have been satisfied of facts which proved the D guilty of the offence

Question 39

What powers on appeal does COA have for sentence?

Answer 39

Quash Pass any such sentence that they think is appropriate (THAT THE COURT BELOW HAD POWER) Ensure that, as whole, not more severely dealt with on appeal than below

Question 40

What is loss of time order?

Answer 40

If wholly without merit (COA appeal), then the time spent in prison during appeal its like it never happened