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Legal studies > sanctions > Flashcards

sanctions Flashcards

1
Q

role or Victoria police (Crime prevention)

A

Patrol areas and maintain a presence to protect local citizens.

Engage in community education to deter future criminal behavior.

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2
Q

role or Victoria police (crime investigation)

A

talk to witnesses and victims about incidents

question possible suspects

examine crime scene and collect evidence for analysis

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3
Q

role or Victoria police (crime prosecution)

A

arrest accused persons

charge people with offences that most fit the crime

prosecuting summary offences in magistrate court

sending information to the office of public prosecution for indictable offences

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4
Q

Australian Federal Police

A

investigate and enforce criminal laws which have federal aspects

eg.) transnational
serious complex an organized crimes
cybercrime and cyber safety
child protection
countering terrorism and violent extremism

AFP works with Vic police and other investigative agencies to identify and arrest possible offenders

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5
Q

Delegated bodies

A

specific agencies that, due to their expertise in a particular area, have been granted the authority, from parliament, to both create and enforce certain laws.

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6
Q

overarching role of delegated bodies

A

to investigate, prosecute, and enforce the law in their specific area. As a result, the burden of work on the police is lessened.

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7
Q

delegated body (Vic roads)

A

Ensure compliance with certain road and traffic rules

Prosecute offences, such as the false completion of learner permit logbooks and minor traffic offences, according to road and traffic regulations

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8
Q

delegated body (Australian Tax Office)

A

Charge and prosecute individuals or businesses for failing to comply with tax laws and obligations

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9
Q

WorkSafe Victoria

A

Established under the Occupational Health Act 2004 (Vic) which aims to ensure the health, safety
and welfare of employees

Monitors and enforces compliance with the Act.

WorkSafe investigates breaches and collects evidence for the OPP to then conduct the hearing

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10
Q

delegated body (local council)

A

Enforce local laws, such as parking fines and planning regulations, that affect local communities

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11
Q

powers and rights

A

Law enforcement institutions use investigative and prosecution powers when undertaking their duties. However, institutional powers must be balanced against the rights of individuals.

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12
Q

source of institutional powers

A

Police powers of arrest and questioning are in the Crimes Act 1958 (Vic)

Prosecution powers are in the Criminal Procedure Act 2009 (Vic)

Imprisonment powers are in the Corrections Act 1986 (Vic)

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13
Q

what is a warrant

A

A warrant is a court document allowing a person (e.g. a police officer) to undertake a certain action (e.g. arrest, search).

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14
Q

(arrest powers) Police can arrest without a warrant any person they find committing a summary or indictable offence if the police believe it is necessary to:

A

Ensure the offender apears in court

Preserve public order

Prevent the continuation or repetition of an offence or commission of a further offence

Ensure the safety or welfare of the public or offender

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15
Q

(arrest powers) Police can also arrest without a warrant if they have reasonable grounds to believe that a person has committed:

A

An indictable offence in Victoria (including indictable heard summarily)

An offence elsewhere which would be an indictable offence in Victoria (including indictable heard summarily)

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16
Q

Arrest rights

A

The police have no power to detain an individual unless they are under arrest.

An individual must be informed of the reason for the arrest at the time of the arrest.

After the arrest, an individual must be released/ brought before a bail justice or Magistrate within a reasonable time of being taken into custody

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17
Q

questioning powers

police can request a persons name and address if:

A

they have committed or are about to commit any summary or indictable offence

may be able to assist in the investigation of an indictable offence

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18
Q

questioning rights

A

right to remain silent but anything they say or do may be given in evidence in court

communication with a relative/friend to inform them of their whereabouts/legal practitioner in private

the police must arrange an interpreter and defer questioning if the arrested person has insufficient English

parent/ guardian/ independent person must be present if arrested person is under 18/ has intellectual disability

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19
Q

questioning powers

A

when an arrested person is being held in custody for a reasonable time, the police have the power too question them to determine if they have been involved in an offence

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20
Q

court proceeding powers (prosecutors)

A

Prepare the Crown’s case by working with the police, examine witnesses in trial (+cross-examine and re-examine) and negotiate with the accused about an early guilty plea.

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21
Q

court proceeding powers (courts)

A

Magistrates determine guilt and sanctions for summary offences whilst County and Supreme Court judges determine the sanction for indictable offences.

Mag determine whether there is enough evidence to support a conviction for indictable offences during committal Proceedings.

Mag + judges determine which evidence is valid during trial

Mag + judges determine whether bail should be granted if the police request that the accused remains in custody.

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22
Q

court proceeding rights of accused

A

presumed innocent until proven guilty

Have the proceeding decided by a competent and impartial court after a fair and public hearing

Obtain legal aid if the interests of justice require it

Have adequate time and facilities to prepare a defence

Have the opportunity to challenge and rebut prosecution evidence

Be tried without unreasonable delay

Have the assistance of an interpreter if required

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23
Q

imprisonment powers

A

Corrections Victoria (part of the Department of Justice and Community Safety) oversees the detention of offenders. Under the Corrections Act 1986 (Vic), prison officers can:
• Search and examine any person

• Seize unauthorised goods

• Arrange medical tests for drugs and alcohol

• Require prisoners to be electronically monitored

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24
Q

imprisonment rights

A

Under the Corrections Act 1986 (Vic), prisoners have the right:

  • To be in the open air for at least one hour per day
  • To adequate food (including special dietary food)
  • To suitable clothing
  • To access reasonable medical and dental care and treatment
  • To access special care if has a disability or mental illness
  • To practice religion
  • To receive at one half-hour visit per week
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25
Q

role of courts in criminal cases

A
  1. Manage, hear and determine a criminal case if the accused pleads not guilty
    * Courts provide case management by giving orders and directions to ensure hearings proceed
    without delay.
  • Courts provide specialisation and expertise in the type of case they are hearing.
  • Magistrates determines guilt in the Magistrates Court whilst a jury decides guilt in the County and Supreme Court.

*Magistrates Court hears committal proceedings for indictable offences.

  • County, Supreme and High Courts hear appeal on a question of law or fact.
  1. Impose a sanction if the accused pleads or is found guilty
    * A plea hearing takes place where both sides make submissions about relevant sentencing factors.
  • Then there is a sentencing hearing where the magistrate/judge will hand down the sanction. A judgement will be written and published in the higher courts.
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26
Q

committal proceedings

A

If the accused is charged with an indictable offence, the case will go through committal proceedings in the Magistrates Court.

  1. Committal Mention: accused pleads guilty or not guilty. Case may be sent to be heard summarily if requirements met.
  2. Committal Hearing: if accused pleads not guilty, the Magistrate determines whether there is sufficient evidence to support a conviction in higher court.
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27
Q
  1. (committal hearing)
A

Committal Hearing: if accused pleads not guilty, the Magistrate determines whether there is sufficient evidence to support a conviction in higher court.

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28
Q

1.(committal mention)

A

Committal Mention: accused pleads guilty or not guilty. Case may be sent to be heard summarily if requirements met.

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29
Q

committal proceedings benefits

A

filter out weak cases and ensure judicial resources in higher courts are used efficiently

inform the accused of the case against them and allow them to test the evidence

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30
Q

committal proceedings disadvantages

A

recent inquiries suggest that most people are committed to stand trial with only very few cases being discontinued. Thus, there is a concern that they inflate costs and contribute to delays.

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31
Q

mag court original jurisdiction

A
  • Summary offences

Indictable offences heard summarily

Committal proceedings for indictable offences

  • Bail and warrant applications
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32
Q

county court original jurisdiction

A

Most indictable offences such as culpable driving causing death, theft and armed robbery.

However, it cannot hear indictable offences in extremely serious cases such as treason, murder
or manslaughter.

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33
Q

county court appellate jurisdiction

A

Hears appeals from Magistrates Court on questions of fact (unless the Chief Magistrate heard the
case) against:
• Convictions (i.e., a reasonable Magistrate would not have found them guilty based on the facts presented in the case)
• Sentences (i.e., the offender deems it too harsh or the DPP deems it too lenient based on the facts presented in the case)

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34
Q

supreme court (trial division) original jurisdiction

A
  • All indictable offences; however, it generally hears the most serious cases that cannot be heard by the County Court such as murder
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35
Q

supreme court (trial division) appellate jurisdiction

A

Appellate jurisdiction
• Hears appeals from the Magistrates Court (unless the Chief Magistrate heard the case) on

questions on law

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36
Q

supreme court (court of appeal) original jurisdiction

A

Original jurisdiction
• No original jurisdiction

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37
Q

supreme court (trial division) appellate jurisdiction

A

Hears appeals from the County and Supreme Court (Trial Division)
• Hears appeals from the Magistrates Court if the Chief Magistrate heard the case

• Appeals are generally heard by three judges and can be on questions of conviction, severity of
sentence or questions of law.

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38
Q

mag court appellate

A

no appellate jurisdiction because the lowest court in the hierarchy

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39
Q

original jurisdiction

A

power of the court to hear a case for the first time

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40
Q

appellate jurisdiction

A

power of the court to hear a case on appeal

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41
Q

(appellate jurisdiction) question of fact

A

regarding the credibility of evidence/facts of a case

eg.) was relevant evidence excluded
findings not based on fact facts

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42
Q

(appellate jurisdiction) question of law

A

regarding interpretation of application of legal processes

eg.)was causation test correctly applied

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43
Q

jurisdiction

A

lawful authority (power) of a court, tribunal/ other dispute resolution body to decide legal cases

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44
Q

when is a jury required

A

Compulsory in the original jurisdiction of the County Court and Supreme Court (Trial Division) to determine the guilt of the accused

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45
Q

when is a jury no required

A

In the Magistrates Court

In the appellate jurisdiction of the courts

If the accused has pleaded guilty

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46
Q

jury composition

A

*12 jury members deliberate and decide guilt. Three extra can be empanelled to sit in reserve for lengthy trials in case a jury member must withdraw.

  • Members must be aged 18 years or over and be enrolled to vote in Victoria
  • Members are selected at random and are sent a form to determine eligibility. If eligible, they are sent a summons to attend court.
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47
Q

disqualified for jury

A

Disqualified: unable to serve on jury due to background

Sentenced to a term of imprisonment for three years or more

Currently on bail or remand

Undischarged bankrupts

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48
Q

ineligible

A

Ineligible: unable to serve due to occupation or particular characteristic

Judges, magistrates, lawyers, police officers, members of parliament

Unable to communicate, insufficient English, physical disability that renders them incapable of performing jury service.

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49
Q

excused

A

Excused: unable to serve due to difficult circumstances

Poor health, live more than 50km away, advanced age, financial hardship, careers with dependents, unable to be impartial.

50
Q

role of criminal jury

A

Concentrate during the trial and listen to all the evidence

Piece together evidence and decide the verdict (if the accused is guilty or not guilty)

51
Q

juror process

A

On the day of selection, jurors’ names and occupations are announced.

As a juror approaches the jury box, each party can ‘challenge’ the prospective juror.

*Both parties have three peremptory challenges - no reason provided.

*Both parties have an unlimited number of challenges for a cause - reason must be provided.

52
Q

verdict for jury

A

Jury must try reach a unanimous verdict of 12 / 12.

If this is not possible, the judge may accept a majority verdict of 11 / 12 for offences other than murder, treason or cultivating large quantities of drugs.

If this is not possible, there is a hung jury and the accused can be retried at a later date.

53
Q

jury deliberation

A

jury members are not allowed to make enquires about matters related to the trial such as conducting internet research/ visiting crime scene

jury mebers does not have to give reason fro the verdict deliberation in the juy room are confidential and cannot be revealed to partes, the judge or the public

54
Q

standard of proof of jury verdict

A

beyond reasonable doubt
jury memeber must be as sure as rationally possible. should be no logial explanation that aligns with the accuseds innocence. if jury member unsure they must state not guilty

55
Q

over representation of FNP in legal system

A

3.8% of Australian population is FN yet
31.8% of prisoners in Aus are FN

56
Q

Australian Bureau of statistics of FNP

A

30 June 2022 -30 June 2023, Aboriginal and Torres Strait Islander prisoners increased by 7% (950) to 13.852

30 June 2023-Aboriginal and Torres Strait Islander prisoners accounted for 33% of all prisoners

30 June 2023- 78% (10.828) had experienced prior adult imprisonment

57
Q

underlying disadvantages of FNP

A

First Nations people experience many underlying and interconnected disadvantages in health, education, housing and employment (e.g., ABS reported Aboriginal employment for those aged 15-64 was at 56% in 2021).

FNP occupy public space more often than non-Indigenous Australians due to their socio-economic status and their connection to land.

This leads to increased police surveillance + contact with the criminal justice system as accused persons or victims of crime.

58
Q

Language differences of FNP

A

Chronic shortage of aboriginal interpreters in the legal system

  • Deadly
  • Aboriginal English: good / excellent
  • You’re a killer
  • Aboriginal English: You are awesome

*I’m going to flog you if you don’t…
Aboriginal English: humorous way to emphasize the importance of an act

  • Answered in long, roundabout explanations
    Direct Q&A = considered impolite in some FN cultures.
59
Q

Cultural differences of FNP

A

The customary laws of different First Nations groups can come into conflict with the Australian criminal justice system.

customary law, Elders are involved in sentencing an offender and may even carry out the punishment

Conversely in the criminal justice system, independent judges and magistrates have this responsibility

  • In customary law, punishment is aimed at restoring balance and to maintain and recognize relationships

In contrast, sentencing in Victoria courts is more focused on retribution and making examples out of offenders to deter them and others

60
Q

Addressing difficulties of FNP

A

Dedicated funding for Aboriginal legal aid to ensure that professional and culturally appropriate legal services are available

  • Victorian Aboriginal Legal Service (VALS) - government funded service that provides legal services including criminal advice
  • Dirra - provides legal representation and non-legal support to First Nations people experiencing family violence

Koori Court - specialised division of the Magistrates, County and Children’s Courts that involves Community Elders Respected Persons in the sentencing of First Nations offenders

  • Court Services Victoria (court administration) ensures staff attend cultural awareness training and trauma training
  • Court Services Victoria has a self-determination plan that seeks to provide a Koori-inclusive environment and pathway (e.g. display of flags and artwork in Victorian courts, increasing First Nations staff numbers)
61
Q

problem of cultural difference of FNP

A

If personnel are not culturally trained, there may be a miscarriage of justice. For example, a First Nations person may be found guilty because they have been unable to communicate what happened or have inadvertently agreed with what they have been asked for fear or seeming impolite.

62
Q

purpose of sanctions (Punishment)

A

• Punishment involves penalising the offender and holding them accountable when they have done something unacceptable.

• This ensures retribution for victims and their families who will be discouraged from enacting revenge themselves and ‘taking matters into their own hands’.

• Imprisonment is the ultimate form of punishment (capital and corporal punishment are not used in
Australia)

63
Q

purpose of sanctions (denunciation)

A

• The court aims to publicly and formally criticise the offender’s criminal behaviour.

The court expresses its disapproval of the offender’s actions to highlight how the offender has violated the moral and ethical standards of society.

Denunciation is often emphasised in cases involving offending that could be undertaken by many members of society (e.g. tax fraud, family violence, king-hits).

64
Q

purpose of sanctions (protection)

A

Protection is achieved by removing offenders from society to ensure they do not pose a risk to the safety and welfare of their victims or society as a whole

• Whilst imprisonment is seen as a last resort, some offenders are sentenced to long periods of imprisonment because they are deemed a danger to society.

A horrendous crime, a lack of remorse and an offender’s callous attitude indicate that a person should be removed from society.

65
Q

purpose of sanctions (deterrence)

A

Deterrence aims tó prevent an offender, or the general public, from reoffending or committing a crime.

66
Q

purpose of sanctions (specific deterrence)

A

The offender themselves is discouraged from committing offences of the same or similar nature through
the imposition of a sanction.

Effectiveness is dependent on the offender’s personal circumstances. For example, specific deterrence may be more suitable for a first-time offender as opposed to an offender with an extensive criminal
history.

67
Q

purpose of sanctions (general deterrence)

A

Individuals other than the offender, are discouraged from committing offences of the same or similar nature to avoid receiving the same sanction as convicted offenders.

Effectiveness depends on the public knowing and understanding sanctions. For example, the public is familiar with the concept of fines and imprisonment but may not understand how a community corrections order is appropriate.

68
Q

purpose of sanctions (rehabilitation)

A

• Achieved by sanctions that seek to break the cycle of offending and address the underlying causes of criminal behaviour.

• It is in society’s best interests to help an offender reform to reduçe crime rates and costs of imprisonment.

• Offenders are provided with opportunities such as counselling, education and training to provide them with a chance at a better future and become willing law-abiding citizens.

69
Q

Purposes of sanctions

A

• If an accused person is found guilty or pleads guilty, the judge or magistrate will determine a suitable penalty.

The Sentencing Act 1991 (Vic) sets out the purposes for which sanctions may be imposed. The sentencing judge must consider the purposes.

However, the judge must not impose a sentence that is more severe than necessary to achieve the purposes of the sanction (parsimony)

70
Q

CALD

A
  • The term ‘CALD’ refers to people who have been born overseas in countries other than ‘main English speaking countries
  • Australian Bureau of Statistics reported that:
  • 27.6% of Australians are born overseas
  • At least 48.2% of children have one parent or both born overseas
  • 21.4% of Australians speak a language other than English at home
71
Q

limited awareness and familiarity (CALD)

A

The legal system in a person’s country of origin may be different

E.g. Australia has an adversarial approach based on the common law system. In contrast, the justice system in many European countries is based on the inquisitorial model where the judge takes a much more active role in trials.

  • The criminal justice system is complex, daunting and overwhelming. CALD people may seek support from legally untrained individuals in their own community as opposed to legal institutions.
  • CALD people may be unaware of their specific rights in defending a charge and accessing legal representation or legal aid.
72
Q

language difference (CALD)

A
  • A low level of English will hinder people ability to communicate with their lawyers, the police and court personnel.
  • CALD people may require an interpreter, however:
  • There are shortages in qualified interpreters yet a high demand for them
  • The interpreters may be conflicted by recognising the accused from their community
    Accused people may require additional characteristics from their interpreters (e.g. females wanting female interpreters)
73
Q

addressing difficulties (CALD)

A
  • Various courts and service providers (e.g. VLA, CLCs) provide free interpreters. Victorian Government also offers victims of crime an interpreter friendly help-line.
  • informationand resources are available in different languages

The Supreme Court offers
videos about court processes in multiple languages.

Victoria Legal Aid has an extensive list of 36 language that their website can be translated into

  • Specialist community legal centres for asylum seekers and refugees.
  • Advice, resources and training are provided to court personnel to ensure that they promote the
    principles of justice.

For example, the Judicial Council on Diversity and Inclusion provides resources to judges and magistrates to ensure they are competent in running trials and hearing involving CALD people

74
Q

intersectional disadvantage (CALD)

A
  • Young people who are particularly at risk of interacting with the criminal justice system are those experiencing homelessness, are CALD or First Nations or have experienced family violence
  • 53% of people in youth justice are victims of abuse, trauma, neglect as a child

42% of people in youth justice have witnesses family violence

75
Q

sanctions

A

Most crimes committed in Victoria are minor offences. Therefore, the Sentencing Council states that 90% of sentencing occurs in the magistrate Court.

the Crimes Act 1958 (Vic) states that the maximum penalty for murders is life imprisonment. (20 years parole minimum)

culpable driving causing death is 20 years imprisonment/2400 penalty points

76
Q

fines (non custodial)

A
  • A monetary penalty that is paid by the offender to the state (not victim).

*Expressed in penalty units ranging one to 3000. in 2024, a penalty unit is $192.31

  • For example, the maximum fine for culpable driving causing death is 2400 penalty units
    × $192.31 = $461,544
77
Q

community correction orders (non-custodial)

A
  • A non-custodial order by the court that allows the offender to remain within the community with certain conditions attached.
  • A CCO can be imposed alongside a fine or imprisonment of one year or less (to be served upon
    their release)
78
Q

mandatory (apply to all offenders)

A
  • Not reoffend during the duration of the CCO
  • Not leave Victoria without permission
  • Notify CCO supervisor if there is a change of address
    *Comply with directions given by the CCO
79
Q

optional ()tailored to specific people)

A
  • Completing unpaid community work (not exceeding 600 hours)
  • Abiding by a curfew
  • Undertake medical treatment of rehabilitation programs for drugs or alcohol addiction
  • Avoiding contact with a particular person
  • Staying away from a particular place or suburb
  • Ankle monitoring
  • Not consume alcohol or attend licensed venues including bars/nightclubs
80
Q

imprisonment (custodial)

A

A sanction that removes an offender from the community and places them in prison for a given
period of time

When a court imposes a prison term, it will usually provide a minimum period of imprisonment after which an offender can apply for parole.

81
Q

effectiveness of fines (strengths)

A

Imposing a fine enables the court to punish the offender as they cannot spend their money freely.
Further, a large fine enables the court to denounce the offender’s immoral behaviour.

The financial loss caused by fines specifically
deters individuals from reoffending and generally deters other members of society from committing similar offences.

Due to deterrent effect of fines, they achieve some level of protection for society. For example, drivers are deterred from dangerous driving due to high risk of fines if they are caught

82
Q

effectiveness of fines (weaknesses)

A

However, the legislated maximum penalty may not be high enough to truly punish or deter wealthy offenders. Large corporations may consider a fine to
be a mere inconvenience.

However, 90% of sentencing occurs in the Magistrates Court where judgements are not always published. Unless a fine is publicised or gets media attention, general deterrence may be limited.

However, protection is not directly achieved as the offender is not removed from society. Further, fines
do not directly address the underlying causes of criminal behaviour to rehabilitate the offender.

83
Q

effectiveness of CCOS (weaknesses)

A

However, if the impact of the offence is severe, victims and their families may view the CCO as a lenient punishment.
Community perceptions of COs being lenient may limit general deterrence.

Specific deterrence and rehabilitation are contingent on the offender’s willingness to engage with the conditions and participate in programs.

The CCO allows the offender to remain in the promoting community protection.
community and they may not adhere to the conditions whereby limiting protection.

84
Q

effectiveness of CCOS (strengths)

A

Many of the conditions act as a punishment as they restrict the offender’s movements. Further community work provides some retribution for the offender’s conduct.
The inconvenience of the conditions may work to generally deter others in the community from committing similar offences.

The flexibility of the optional conditions enables judges to specifically discourage offenders from engaging in certain behaviours. Breaching a CCO can result in imprisonment which acts as a deterrent.
Further, treatment orders support the offender to address the underlying causes of their behaviour and rehabilitate.

The offender may be restricted from interacting with certain people and places, thus

85
Q

effectiveness of imprisonment (weaknesses)

A

However, many violent offenders can apply for parole after a period in prison. This may seem unjust to victims or their families (especially if the victim has died) who want a harsher punishment (e.g., life imprisonment).

However, the rate of recidivism in Victoria is 43.6% indicating that specific deterrence is not being achieved.

However, as many prisoners who are released reoffend, long-term community protection may be limited if the offender is not rehabilitated.

However, high demand for programs and a lack of resource means that many prisoners are unable to participate in rehabilitation.
Further, the harsh environment of prison may exacerbate an offender’s underlying mental health issues.

86
Q

effectiveness of imprisonment (strengths)

A

The offender is punished through the deprivation of their liberty and restricted access to their family and friends.
As imprisonment is the most severe sanction and a last resort, it communicates the court’s denunciation of the offender’s conduct.

The harsh environment of prison will act as a specific and general deterrent as people are afraid to receive a sentence of imprisonment.

As the offender is removed to a secure location, society is protected from their dangerous behaviour.

Prisons provide rehabilitation programs such as drugs and alcohol programs to help break the cycle of offending and prepare them to reintegrate with society.

87
Q

what do courts consider when imposing a fine

A
  • The purpose the court wishes to achieve e.g. deter or punish

Aggravating and mitigating factors

The offender’s financial situation
* Court can order a fine be paid by instalments. If an offender defaults in making payments, the court can issue an arrest warrant, allow further time to pay or order community service work instead.

  • Fines are often imposed on companies, as they are corporate entities that cannot be imprisoned.
88
Q

when can a CCO be imposed

A
  • The offence is punishable by 5 penalty units or more
  • The offender has agreed to a CCO
  • For a single offence, the maximum is 2 years and for multiple offences it can be up to 5 years.
  • A CCO cannot be imposed for category 1 offences (the most serious - e.g. murder, rape, child sexual assault).
89
Q

parole

A

the early release of a prisoner after their minimum term is served which is subject to supervision and certain conditions

90
Q

Concurrent sentences (imprisonment)

A

a sentence of imprisonment or detention that is served at the same time
as another when the offender is convicted of more than one crime. E.g., 3 years imprisonment for all the offences that they were charged with
.

91
Q

Cumulative sentences (imprisonment)

A

a sentence of imprisonment or detention that is served one after the other

. E.g., the sentence for the 2nd offence begins after the completion of the first

92
Q

aggravating factors

A

facts or circumstances about the offender or an offence that can increase the offenders culpability and lead to a more severe sanction

93
Q

aggravaing factor examples

A

the offender had prior convictions

whether the crime was planned/predetermined

the victim was a vulnerable person eg. (elderly person, child disabled person)

94
Q

mitigating factor

A

facts or circumstances about the offender or an offence that can decrease the offenders culpability and lead to a reduction in sentence

95
Q

mitigating factor examples

A

limited or no prior criminal history

the age of the offender, a young offender=less mature but more capable of rehabilitation

the offender pleaded guilty early

96
Q

guilty pleas

A

Guilty plea occurs when a person admits that they committed an offence for which they have been charged.

If there are multiple charges, the offender may choose to plead guilty to some or all of them.

If an accused pleads guilty during pre-trial (committals) then a trial will not be conducted.

If an accused pleads guilty during trial and the plea is accepted, then the accused will proceed to sentencing and the trial is adjourned.

The earlier the guilty plea, the more lenient the sentence will be as the offender is being rewarded for accepting responsibility and saving judicial resources (sentencing discount)

97
Q

victim impact statements

A
  • An account written by people directly (victim) and indirectly (family/friends) impacted by the offence.

*This account provides insights into the physical, emotional and economic effects of the offence.

  • The statement can inform the judge’s decision and impact the severity of sentencing

o If VIS indicates severe impact on victim > increase sentence
* If VIS indicates that victim has forgiven the offender -> decrease sentence

*The statement is given voluntarily.

98
Q

drug court

A

A specialist court that can impose a drug and alcohol treatment order (DATO) on offenders who commit crimes while under the influence of drugs or to support a drug habit.

Established in 2002 as division of Magistrates Court Has now expanded to be a division of the County Court.

99
Q

drug and alcohol treatment order

A

Aimed at rehabilitation by providing a judicially supervised, therapeutically orientated treatment
programs. There are two parts:

100
Q

eligibility for drug court

A
  • Reside in an area serviced by the Drug Court
  • Plead guilty to the offence
  • Be dependent on drugs and/or alcohol that contributed to their offending
  • Be facing an immediate term of imprisonment not exceeding two years in the Magistrates Court or four years in the County Court
  • Be facing charges that are not sexual offences or involve the infliction of actual bodily harm
101
Q

drug and alcohol treatment order

1.treatment and supervision (core conditions)

A

not commit offence punishable by imprisonment, report to and accept visits from relevant officers, give notice of change of address, not leave Victoria without permission

102
Q

drug and alcohol treatment order

1.treatment and supervision (program conditions)

A

submit to testing, attend vocational or educational programs, attend medical or psychological treatment, not associate with specified people, reside in a specified place

103
Q

drug and alcohol treatment order

  1. custodial
A
  • Drug Court must impose an imprisonment sentence not exceeding two years (Magistrates) or four years (County). This sentence is deferred while offender undergoes treatment and supervision.

The Drug Court has the power to reward offenders who have been compliant (e.g. a movie voucher, verbal praise).

Failure to comply may result in other sanctions such as unpaid community work or the activation of the custodial sentence for a short period of time (no more than seven days). The DATO can also be cancelled if the offender is unwilling to participate.

104
Q

Koori court

A

A division of the Magistrates Court, Children’s Court and County Court that operates as a sentencing court for First Nations people.

The process is less formal than a traditional court and encourages open dialogue between the
parties.

Elders, Respected Persons and family members are empowered to contribute to the discussion.

The magistrate or judge is the ultimate decision maker and has the same sentencing options
available as the relevant court.

105
Q

eligibilty for koori court

A
  • Be a First Nations person

Plead guilty to the offence

Consent to the case being dealt with by the Koori Court

  • Be facing charges that are not sexual offences
106
Q

diversion program

A

A method used in the Magistrates and Children’s Court to redirect offenders away from criminal justice system and avoid a criminal record.
Intended for first time offenders or low-risk people who have committed summary offences (e.B., minor drug use or possession, criminal damage).

107
Q

eligilibity of diversion prgram

A

To be eligible, the offender must:
Have committed a summary offence or indictable offence triable summarily.
Acknowledge responsibility for the offence to the court
Be considered appropriate to participate by the court
*
Consent to the program (along with the prosecution)
*Be facing a charge that does not have a minimum or fixed sentence (e.g. suspension of licence).

108
Q

process of diversion prgram

A

Process
The onus is on the offender to ask for a diversion.
If court agrees, the offender is redirected from the sentencing court and placed on a diversion plan.
The proceeding is adjourned for up to 12 months to enable them to participate. The plan may include:
* Obtain drug or alcohol treatment or engage with counselling
* Write an apology letter to the victim
* Undertake education course
* Make a donation to charity or complete community work
If successful, the offender does not have to put in a plea. If unsuccessful, the offender is sentenced accordingly.

109
Q

Fairness

A

All people can participate in the justice system and its processes should be impartial and open

110
Q

(Fairness) Impartial processes

A

All personnel within the legal system system including the judges/ magistrate, jury members, court personnel must act in a way that is impartial +independent. to show no bias or discrimination

111
Q

(Fairness) Open processes

A

Courts processes must be transparent- allow media reporters, clear guidelines for sentencing and regulations for selection and role of the jury

112
Q

(Fairness) Participation

A

Individuals must be able to effectively participate in the legal system

being aware of charges laid against them, having time to prepare their case, being aware of the evidence brought against them

113
Q

Equality

A

All people engaging in the justice system should be treated in the same way. if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage

114
Q

same treatment (formal equality )

A

All individuals are treated the same and given the same level of support regardless of their personal difference or characteristics
eg.) race, religion, gender, identity or age

115
Q

different treatment (substantive equality )

A

If the legal system did treat people in the same way but in doing so causes disadvantage/ disparity then adjustments should be put in place to allow people to participate in the JS

116
Q

Access

A

All people should be able to enegage with the JS and its processes on an infromed basis.

117
Q

Access- Engagement (physical access )

A

The location of the courts in victoria

118
Q

Access- Engagement (financial access )

A

Vic legal aid is limited in its fundings and thus ability to support individuals who do not have the means to pay for legal representation

119
Q

Access- Informed basis (Education)

A

Individuals with higher levels of education are generally more informed about their rights+ more thorough awareness of the legal system

120
Q

Access Informed basis (legal representation )

A

Having legal representation is one of the most effective ways a person can be informed about their rights + legal processes

121
Q

Access-Informed basis (legal support services)

A

Having free access to legal support services can help people be more informed about their rights

Legal studies (3 decks)

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