SAC 2

Question 1

aspects that relate to fairness

Answer 1

time it takes for a case to go to court
legal representation for both parties
understanding the process and providing adequate assistance
laws and rules being properly applies
people treated impartially without fear or favour

Question 2

aspects that relate to equality

Answer 2

judge and jury to decide in criminal cases
availability of legal representation
laws apply equally to all

Question 3

aspects that relate to access

Answer 3

legal advice and assistance
the ability to understand legal rights and processes
availability of courts
range of means available when dealing with criminal cases like plea negotiations

Question 4

plea negotiations

Answer 4

encourage early determination of a case. are discussions between prosecutor and accused about the chargers against the accused. can be about summary or indictable offences and can result in a agreement being reached about what charges the accused will plead guilty to. these negotiations are conducted without prejudice and any offers made cannot be used against them should the case go to trial or a hearing. agreements reached may be that
- the accused pleads guilty to fewer charges
- the accused pleads guilty to a lesser charge
they do not determine the sentence as that is determined by the court when the accused pleads guilty, they can happen at any stage even after charges have been laid and the victim should be consulted but they do not decide

Question 5

purpose of plea negotiations

Answer 5

• to resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the committed crime
• to achieve a prompt resolution to a criminal case without cost, time, stress, trauma and inconvenience of a criminal trial or hearing

Question 6

appropriateness of plea negotiations

Answer 6

may only occur if in public interest and a number of factors are considered when deciding if plea negotiations are appropriate for a case including:

• whether accused if willing to cooperate
• strength of prosecutions case
• whether accused is ready and willing to plead guilty
• whether witnesses are reluctant or unable to give evidence
• possibility of adverse consequences of a full trial
• time and expense in a trial

Question 7

sentence indications

Answer 7

given by a court to the accused to let them know what sanction is likely to be imposed on them, it is intended to give a broad idea the sentence they will get if they plead guilty at a certain point. given for summary or indictable offences. used to encourage a guilty plea to avoid full trial or hearing, the involve the court unlike plea negotiations. sentence indication can only be given if accused applies for one and can only be given once. if the court indicates it is not likely to impose a term of immediate imprisonment and the accused pleads guilty at first opportunity then the court must not impose a sentence of imprisonment. if accused asks for sentence indicator but pleads not guilty a different judge must preside over the case. the indication caps the maximum sentence allowed to be given if pleads guilty

Question 8

summary vs indictable sentence indications

Answer 8

summary: can be given at any time by mag court, no need for prosecutors consent, indication whether sentence of imprisonment of sentence of another type is likely to be imposed.
indictable: accused must apply, prosecutor must consent, indication on likelihood of immediate imprisonment

Question 9

appropriateness of sentence indications

Answer 9

depends on whether:

• accused has applied
• type of offence and court hearing the charges
• whether there is sufficient information for the judge or mag to give an indication
• strength of the evidence
• nature of the offence (not appropriate for sexual offences)

Question 10

strengths of sentence indications

Answer 10

can result in early determination of a case
can save money and resources
accused is not bound to accept the indication and plead guilty
can minimise trauma, stress and inconvenience

Question 11

weaknesses of sentence indications

Answer 11

judge may not give one if requested
for indictable offences the court only needs to indicate if it would impose a term of immediate imprisonment
lack of transparency as the court is allowed to close a proceeding to the public during sentence indication

Question 12

strengths of plea negotiations

Answer 12

saves cost
help with prompt determination
saves victims trauma, inconvenience and distress
agreement affects the criminality of the offence

Question 13

weaknesses of plea negotiations

Answer 13

can be seen as the accused being let off or getting a more lenient sentence
can be seen as the prosecutor avoiding the need to prove the case BRD
if negotiations do not succeed it may give unfair advantage to one side.

Question 14

original and appellate jurisdiction

Answer 14

original: the power of a court to hear a case for the first time
appellate: ability of a court to hear a case in which the decision is being challenged or reviewed on a particular ground. a case on appeal

Question 15

two reasons for a court hierarchy

Answer 15

specialisation of courts and appeals

Question 16

reason for hierarchy: specialisation in courts

Answer 16

allows courts to develop their own areas of expertise or specialisations.

• Supreme Court (OA): specialises in determining criminal appeals in indictable offences
• Supreme Court (TD): hears most serious indictable offences and has developed own specialisation in that area
• County + Supreme: have expertise in more complex indictable offences
• Magistrates: summary offences that need to be dealt with quickly and efficiently

Question 17

reason for hierarchy: appeals

Answer 17

the system of appeals provides fairness and allows for any mistakes made in OG decisions. grounds for an appeal in criminal case:

• on question of law (law not followed e.g hearing inadmissible evidence)
• appealing a conviction
• appealing due to severity (or leniency) of sanction imposed

Question 18

Magistrates court jurisdiction

Answer 18

OG: all summary and indictable offences heard summarily, committal proceedings, bail applications
A: none

Question 19

County court jurisdiction

Answer 19

OG: indictable offences except murder, attempted murder or corporate offences
A: from Mag on conviction or sentence

Question 20

Supreme Court (TD) jurisdiction

Answer 20

OG: most serious indictable offences
A: from Mag on points of law

Question 21

Supreme Court (OA) jurisdiction

Answer 21

OG: none
A: appeals from county or Supreme Court TD

Question 22

key personnel in criminal case - list

Answer 22

• judge
• jury
• parties
• legal practitioners

Question 23

judge

Answer 23

acts as umpire at trial and ensures court procedures are carried out in accordance with rules and each party is treated fairly, must act impartially, not favour any side, and must have no connection with prosecution or accused

Question 24

responsibilities of a judge

Answer 24

• manage the trial
  ensure court procedures are followed, giving directions, ask occasional questions for clarification. NOT active participants
• decide on admissibility of evidence
  which evidence is permitted or excluded
• attend to jury matters
  inform jurors about trial, may address jurors about issues at any point giving directions about a law, evidence or procedure, may discharge a juror
• give directions and sum up case
  give directions to ensure fair trial e.g why accused isn’t speaking and then once trial finished judge must summarise it to jury
• hand down a sentence
  if found or pleads guilty case will set down for plea hearing and following that judge must hand down sentence following guidelines

Question 25

the jury

Answer 25

is a trial by peers and provides opportunity for community participation, accused has right to trial by jury if pleads not guilty to indictable offence. jury is NOT used for sentencing they are the decider of facts. a criminal jury has 12 members chosen randomly, some people are disqualified, ineligible, or excused. once decided they can be challenged by prosecution or defence

Question 26

responsibilities of the jury

Answer 26

- be objective must be unbiased and open minded putting away any prejudices, have no connection to any party and decide based on facts not bias - listen to and remember evidence can take notes, mustn't undertake own investigation - understand directions and summing up can ask for explanation - deliver a verdict make a decision based on the facts of the case and aim for unanimous verdict extra does not give reason for decision + deliberates in secret

Question 27

the parties

Answer 27

in a criminal case there is the accused: person charged with criminal offence prosecution: person bringing the case to court each has control over the way things will be run as long as they comply with courts rules, directions and orders this is 'party control'

Question 28

responsibilities of the parties

Answer 28

- give opening address prosecution gives statement to jury on their case before any given evidence. if accused is represented their lawyer must present a response to prosecution. each can only reply on evidence already filed and served - assist judge in jury matters both parties assist in empanelling jury and have ability to challenge potential jurors and can request during trial that judge give directions to jury e.g prosecution asking why accused isn't presenting a certain witness - present parties case prosecution present all credible evidence considered relevant to case even if its not beneficial to them, accused has no obligation to give evidence or call witnesses unlike prosecution who has burden of proof - give closing address prosecution must sum up, accused entitled to it - make submissions about sentencing once accused is found guilty, occurs at plea hearing

Question 29

legal practitioners

Answer 29

on behalf of parties undertake role of preparing and conducting case, in criminal case they are prosecutors. are subject to various laws that impose duty and obligations on them, can't mislead or deceive court. duty to court is above duty to client. there are two types solicitors: draft documents, communicate with other party and court, prepare case, research law and develop evidence barrister: presents the defence evidence and argue accuseds case

Question 30

role of legal practitioners

Answer 30

``` - be prepared with all evidence and documents at trial - comply with duty to court must act ethically and in accordance with law even against clients intructions, courteous and cooperative - present case in best light possible best interest of client ```

Question 31

purposes of sanctions

Answer 31

``` a sanction is a penalty imposed by a court on a person who is guilty of an offence, the purposes of sanctions are: rehabilitation punishment deterrence denunciation protection ```

Question 32

purpose of sentencing act

Answer 32

promote consistency of approach in sentencing | provide fair procedures for imposing sanctions

Question 33

purposes of sanctions: rehabilitation

Answer 33

a strategy designed to reform an offender in order to prevent them from committing offences in future. court will consider what sanction could help treat offender and address underlying reason for committing the crime. can be achieved through CCOs instead of prison.

Question 34

purposes of sanctions: punishment

Answer 34

a strategy designed to penalise the offender and show society and the victim that criminal behaviour will not be tolerated. gives community some revenge and provides feeling of justice. avoids needs for victim to take punishment into their own hands, punishment must be appropriate for crime committed

Question 35

purposes of sanctions: deterrence

Answer 35

a process by which the court can discourage the offender and others in the community from committing similar offences. general deterrence aims at discouraging the entire community from committing similar offences. specific deterrence to discourage that offender from committing same offence again

Question 36

purposes of sanctions: denunciation

Answer 36

a process by which a court can demonstrate the communities and the courts disapproval of the offenders actions by giving a particular sanction that is particularly severe due to the nature of the crime.

Question 37

purposes of sanctions: protection

Answer 37

aims to safeguard the community from the offender by imprisoning them because this physically prevents them from re offending. a non-custodial sentence can also achieve this as a CCO would keep an offender busy but not always

Question 38

types of sanctions: fines

Answer 38

is an amount of money ordered to be paid by the offender to the state of Victoria, can be imposed as only sanction or with another. fines are in penalty units from 12 (1 penalty unit) - 2 the court cannot order a fine at level one because it would be a very serious criminal offence a court must consider the financial circumstances of the offender and any lost of or destruction to the victims belongings

Question 39

purposes of fines

Answer 39

aim to punish the offending by requiring them to pay money, financial circumstances are important as the fine must be high enough to punish can act as specific or general deterrence or possibly denunciation

Question 40

ability of fines to achieve purpose

Answer 40

depends on - wealth of offender - ability to denounce (level 2 not a lot of money for some) - sufficiency to act at general deterrent - is there a more appropriate sanction

Question 41

types of sanctions: CCO

Answer 41

a community corrections order is a supervised sentence served in the community that includes special conditions such as treatment or unpaid community work. they must be appropriate for the particular offender and can be cancelled. can only be imposed if an offender has be convicted or found guilty of committing an offence punishable by more than 5 penalty units. can be imposed for up to 3 years in Mag and no more then 5 on any vic court. cannot be a sanction for Category one offences. cannot be a sanction for category two offences unless certain circumstances like over 18 but under 21 or mental impairment. have core conditions that must be followed and court must attach at least one special condition

Question 42

purposes of CCO's

Answer 42

punishment by limiting freedom rehabilitate by treating underlying causes specific deterrence from unpaid community work and burdensome conditions

Question 43

ability of CCO's to achieve purpose

Answer 43

depends on: - rights conditions for the offence - most appropriate condition and whether that is imposed - if offender complies with conditions - if there is another better sanction

Question 44

types of sanctions: imprisonment

Answer 44

means a person convicted of a crime will be removed from society for a certain amount of time losing their freedom and liberty. if sentenced to 2 years or more there must be a non-parole period. parole is the conditional release of a prisoner after the minimum period has been served and if there isn't a non parole period or the application is rejected the sentence will be served in full. offences have maximum terms that can be sentenced depending on the level of the crime, 1 is highest and is life and 9 is lowest and is 6 months

Question 45

concurrent and cumulative sentences

Answer 45

concurrent sentences are served at the same time, sentencing are usually concurrent and cumulative means served one after the other, cumulative must be given for - certain serious offences - offences by prisoners - offence of person on parole or bail

Question 46

aggregate sentences

Answer 46

one sentence for multiple offences to be served at one but judge must not specify length of time given for each offence, cannot exceed total affective sentence that would have been imposed by seperate sentences and cannot be done fro serious offences which are assumed to be served cumulatively

Question 47

indefinite sentences

Answer 47

if a person (not young) convicted of crime by supreme or county court of a serious offence and the court is satisfied to a high degree of probability that the offender is a serious danger the the community. the sentence will be reviewed periodically and unless the court is still satisfied the sentence will be discharged and the accused replaced in a 5 yr reintegration program

Question 48

purposes of imprisonment

Answer 48

``` punishment because removing freedom and liberty protection by removing from society rehabilitation possibly due to programs denunciation if long sentence general and specific deterrence ```

Question 49

ability of imprisonment to achieve purpose

Answer 49

depends on: - rate of recidivism - availability of drugs - exposure to negative influences - extent of community protected if short terms - if other sanction would be better

Question 50

sentencing factors list

Answer 50

- mitigating factors - aggravating factors - guilty pleas - victim impact statements

Question 51

aggravating factors

Answer 51

circumstances about the offender or the offence or the offenders culpability that is present a higher sentence should be imposed. which factors will be relevant during sentencing will depend on the circumstances of offending

Question 52

mitigating factors

Answer 52

circumstances relevant to the offender, victim or crime the reduce the seriousness or the offenders culpability such as provocation or remorse

Question 53

guilty pleas

Answer 53

considered when sentencing if the offender has pleaded guilty to the offence and if so how far into the case. a guilty plea early before trial or hearing can result in less severe sentence. this is because it can have significant benefits on all involved

Question 54

victim impact statements

Answer 54

when sentencing court must take into account impact of the offence on the victim and their personal circumstances and a court will learn about these through victim impact statements which contains particulars of any injury, loss or damage suffered by the victim

Question 55

factors that affect achievement of justice

Answer 55

- cost: assistance to self represented parties; availability of legal aid, cost of legal representation - time: expedition of appeals, plea negotiations and sentence indications; delays in preparing for trial, court delays - cultural factors: Koori court, translators; difficulties in questioning and giving evidence, over-representation of indigenous people

Question 56

criminal recent reforms: cost

Answer 56

- greater access to legal services in the Hume/gouldburn region in dec 2016 new VLA office opened in Shepparton designed to serve the large population in those regions - free online tool 2016 free online tool called robot lawyers which is an online assistant for people facing charges

Question 57

criminal recent reforms: time

Answer 57

- increased use of court technology paperless = more efficiency with cases Feb 2017 required particular documents to be filed electronically = faster retrieval - removal of time limit for jurors removal of mandatory 6 hr deliberation time and majority verdict would be accepted earlier

Question 58

criminal recent reforms: cultural factors

Answer 58

- expansion of Koori court 2016 opened new Koori County court for people in Mildura region - funding for aboriginal prisoners programs 2017 saw grant for support programs designed to rehabilitate

Question 59

criminal recommended reforms: cost

Answer 59

- increase in funding for legal assistance from commonwealth and state although is unlikely to meet demand - alternative funding options sources of funding other than government such as collecting money from levies

Question 60

criminal recommend reforms: time

Answer 60

- abolition of committal proceedings causing backlogs due to unnecessary examination of cases - case management by Supreme Court Supreme Court managing indictable cases from time a person is charged through to trial, this would reduce delays from visiting multiple courts

Question 61

criminal recommended reforms: cultural factors

Answer 61

- improving access to interpreters | - continued focus and expansion of Koori court

Question 62

ability of recommended reforms to achieve principles of justice

Answer 62

ask; - what is the difficulty it is trying to overcome - is it long or short term - what principles is it intending to achieve - are there any criticisms