sanctions (lesson 10 - lesson 22) Flashcards
1
Q
lesson ten
when does a sentencing hearing occur?
A
- when it becomes evident that the accused will plead guilty & so there will be no need for a contested trial
2
Q
lesson ten
what occurs in a sentencing hearing?
A
- no jury will be required
- the prosecution will present a summary of evidence
- prior convictions will be read
- character evidence might be presented by defence counsel
- the judge will determine a sentence
3
Q
lesson ten
what will occur if the accused pleads not guilty or does not enter a plea?
A
- appearences are entered (barristers announce on whose behalf they appear)
- arraignment: defendant is formally advised of the charges & is asked to enter a plea (guilty or not guilty)
- jury is empanelled: jury of 12 selected for trial
- opening addresses: prosecution & defence present opening statements to the court
- prosecution’s case is put forward
- “no case” submission
- defence’s case is put forward
- closing addresses by the prosecution, then the defence
- judges summary
- jury’s verdict delivered
- plea hearing
- sentence hearing
4
Q
lesson ten
what happens when the prosecution’s case it put forward (step 5)?
A
- examination in chief - prosecution calls & questions its own witnesses
- cross-examination - questions asked of prosecution witnesses by defence counsel
- re-examination - prosecution can ask further questions of the witness to clarify matters
5
Q
lesson ten
what happens when the defence’s case is put forward
(step 7)?
A
- examination in chief - defence calls & questions its own witnesses
- cross-examination - questions asked of defence witnesses by prosecution
- re-examination - defence can ask further questions of the witness to clarify matters
6
Q
lesson ten
what is a “no case” submission (step 6)?
A
- defence counsel can submit that there is no case to answer if it is believed the prosecution has not proven the accused’s guilt
6
Q
lesson ten
what happens when the defence’s case is put forward
(step 7)?
A
- examination in chief - defence calls & questions its own witnesses
- cross-examination - questions asked of defence witnesses by prosecution
- re-examination - defence can ask further questions of the witness to clarify matters
7
Q
lesson ten
what is the judge’s summary?
A
- the judge sums up the case & directs the jury; the jury will retire to consider the verdict
8
Q
lesson ten
what is the plea hearing
(step 11) ?
A
- if the verdict is guilty, the convicted criminal will need to be sentenced. before a sentence is decided, the prosecution & the defence will present information they want the judge to take into account when deciding on the sentence, at a plea hearing
8
Q
lesson eleven
what is the first step of the jury selection process?
A
- names of potential jurors are randomly selected from the electoral roll by the chief electoral officier.
- this is requested by the juries commissioner
9
Q
lesson eleven
what is the second step on the jury selection process?
A
- a questionnaire is sent to potential jurors who have been randomly selected from the roll
- questionnaire is returned to the juries commissioner
10
Q
lesson eleven
what is the third step of the jury selection process?
A
- upon completion of the questionnaire, an individual will be deemed to be either: eligible, ineligible, excused or disqualified
11
Q
lesson eleven
what is the fourth step in a jury selection process?
A
- those deemed eligible are summond to appear in court on a particular day; failure to appear can result in a criminal sanction
12
Q
lesson eleven
what is the fifth step of the jury selection process?
A
- at court, jurors are directed to a particular court room
13
Q
lesson eleven
what is the sixth step of the jury selection process?
A
- juror’s names & occupations are announced. as a juror approaches the jury box, each party can ‘challenge’ the prospective juror
- each party has 3 ‘peremptory challenges’ - no reason provided
- unlimited no. of ‘challenges for a cause’ - reason must be provided
14
Q
lesson eleven
what is the seventh step in the jury selection process?
A
- an oath is sworn indicating that one will undertake the responsibility dutifully
15
Q
lesson eleven
what does the jury selection process entail?
A
- names selected
- questionnaire is sent
- individual deemed eligible ect
- eligible summond to appear in court
- jurors directed
- jurors names & occupations announced
- oath is sworn
16
Q
lesson twelve
what is a sanction?
A
- sanctions are penalties or other means of enforcement used to provide incentives for obedience w/ the law, or w/ rules & regulations
17
Q
lesson twelve
what sanctions contain sanction aims?
A
- Sentencing Act 1991 (Victoria)
18
Q
lesson twelve
what are the five aims of criminal sanctions?
A
- punishment
- deterrence
- denunciation
- rehabilitation
- protection
19
Q
lesson twelve
what does the sanction aim punishment mean?
A
- the punishment should fit the crime taking into account all factors relating to the offender & victims. the sentencing must be based purely on evidence presented at trial
20
Q
lesson twelve
what does the sanction aim denunciation mean?
A
- sanctions are imposed to show offenders that society believes their conduct was inaapropriate. the court will declare its disapproval of an act
20
Q
lesson twelve
what is the sanction aim deterrence mean?
A
- others from society should be deterred from committing the crime (general).
- the offender should also be discourged from committing further crimes (specific)
- the focus here is to avoid recidivism (the tendency to reoffend)
20
Q
lesson ten
what is the plea hearing
(step 11) ?
A
- if the verdict is guilty, the convicted criminal will need to be sentenced. before a sentence is decided, the prosecution & the defence will present information they want the judge to take into account when deciding on the sentence, at a plea hearing
21
# lesson twelve
what is a fine?
- a monetary penalty imposed on the offender by the court. it is paid by the offender to the state of Victoria (X the victim)
- expressed in penalty units ($192.31)
- can be imposed w/ another sanction
- when issuing financial circum. of offender must be considered
22
# lesson twelve
what is the objective of a fine?
- to punish the offender & deter both the offender & the community from committing the crime. A fine might also denounce the behaviour if a large fine is given
23
# lesson twelve
what is a community corrections order (CCO)?
- a non-custodial sanction which allows offender to remain in the community whilst serving the sanction
- offender must comply w/ basic terms e.g. X re-offending
- offender must comply w/ distinct conditions e.g. unpaid comm work & attendance at counselling
24
# lesson twelve
what offences can CCOs be given for?
- given for a variety of offences
- can be combines w/ a fine or imprisonment of less than 12 months
- cannot be imposed for crimes such as murder, rape, manslaughter or kidnapping
25
# lesson twelve
what is the objective of a CCO?
- to punish using the terms & conditions attached to the CCO, which can also act as a deterrent.
- helps to rehabilitate the offender using conditions such as alcohol exclusion
- can also protect society if offender is kept from certain areas
26
# lesson twelve
what is imprisonment?
- the most serious sanction as the offender's liberty is taken away
- viewed as a last resort
- imprisonment terms are expressed in 9 lvls (1 = imprisonment)
27
# lesson twelve
how can an offender serve multiple charges?
- if offender been convicted of multiple charges & has recieved multiple sentences these sentences can be served either concurrently (at the same time) or cumulatively (one after the other)
28
# lesson twelve
what is parole?
- early release from prison after serving a non-parole period. being granted parole is not automatic; the offender must prove remorse & rehabilitation. a non-parole period must be established for all terms of imprisonment beyond two yrs.
29
# lesson twelve
what is the objective of imprisonment?
- to remove the offender from society to protect the community; to punish the offender; also shows court's denouncement of behaviour. may lead to rehabilitation but this is up to the offender (influence of 'career criminals' in prison)
30
# lesson thirteen
what does the Sentencing Act 1991 (Vic) outline?
- outlines the purpose of sanctions & the guidlines for sentencing
31
# lesson thirteen
what does the Sentencing Act 1991 (Vic) ensure?
- ensures consistency in the approach to sentencing & fairness in imposing sentences & dealing w/ offenders who breach conditions of their sentences
32
# lesson thirteen
what is an aggravating factor?
- circumstances considered in sentencing that can increase the seriousness of the offence or the offender's culpability (responsibility) resulting in a more sever sentence
33
# lesson thirteen
what are mitigating factors?
- factors considered in sentencing that reduce the seriousness of the offence or lower the offender's culpability, leading to a reduced sentence
34
# lesson thirteen
what are examples of aggravating factors?
- nature & gravity of offence: offence on 'higher' end of scale --> harsher sanction e.g. use of a weapon
- previous offending: may result in the sentence being increased to deter recidivism
- impact of the offence on any victim: if the victim or their family have suffered greatly as a result of the offence, they can choose to write a VIS that will be read at the plea hearing
- injury, loss or damage as a reult of the offence: likely to increase a sanction e.g. widespread property damage in a case of arson
- further aggravating factors: increase seriousness of offence ior culpability of offender e.g use of violence / explosives; offence witnessed by children; motivation by hate & prej.; breach of trust of victim
35
# lesson thirteen
what are examples of mitigating factors?
- nature & gravity of the offence: if the crime was on the 'lower' end of the scale this may persuade the court to issue a lesser sentence e.g. drug trafficking of a few pills versus a bag of 50
- early guilty plea: might recieve even more of a 'discount' the earlier the plea is made. this is done b/c it saves time & resources of the state & court by not having to run a trial. trauma & inconvience in relation to the witnesses & victims is avoided
- first offence: demon. a one-off incident or lack of criminality
- remorse: can be demon. by early guilty plea, apology to victim/s, early confessions or admissions, or full cooperation w/ police
- other mitigating factors: offender acting under duress; prospects of rehab.; personal strain the offender was under; lack of injury / harm caused by offence
36
# lesson thirteen
what is a victim impact statement?
- an account from those directly or indirectly affected by the offence
- illustrate the loss, injury, or damage sustained at the hands of the offender
- right to victim to provide court w/ a v.i.s
- given voluntarily
- will be read to the court by victim or prosecutor
37
# lesson fourteen
what has been some of the substantial changes in victorias sentencing practices between 2011 and 2017?
- 2011: suspended sentences were abolished as an option for the SC & CC for serious / sig. offences
- 2012: home detention was abolished & CCOs were est.
- 2013: non-parole period of at least 4 yrs were intro. for a no. of 'gross offences'
- 2014: suspended sentences were completely abolished for all offences
- 2017: Vic parliament passed leg. which intro. 'standard sentences' (middle-of-the-range sentence given for an offence)
38
# lesson fourteen
sentencing practices in victoria (aim / effect)
- aim for vic parliament to be tougher on crime
- effort to substantially control sentences
- --> pressure on prison system
- --> pressure on corrections vic b/c incr. no. of ppl. serving CCOs
39
# lesson fourteen
death penalty in America
- death penalty for serious crimes e.g murder & treason
- 31/50 states have power to impose death penalty & 29 of these states allow the jury to decide
- methods vary = lethal injection, electrocution, gas chamber, hanging & firing squad
- death sentences = decre.
40
# lesson sixteen
what does the NJC comprise of?
- mag. court
- children's court (crim. div.)
- vic civil & administrative tribunal
- victims of crime assist tribunal
41
# lesson sixteen
what services does the NJC include?
- Victims' supp. mediation
- specialised family violence services
- mental health clinical supp.
- drug & alcohol treatment
- financial counselling
- housing supp.
- refugee & migrant supp.
- employment & training supp.
- ab. & tsi supp. services
42
# lesson sixteen
what approaches to justice does the NCJ take
- takes both a therapeutic & restorative approachto justice
43
# lesson sixteen
what is therapeutic justice?
- a method used to deal w/ offenders in a way that addresses the underlying causes of crime & seeks to provide offenders w/ support to aviod further offending
44
# lesson sixteen
what is restorative justice?
- a system of criminal justice focuses on the rehabilitation of offenders through reconciliation w/ victims & the community at large
45
# lesson sixteen
what is the aim of NJC?
- aims to strengthen communities to prevent criminal & harmful behaviour from occuring in the 1st place, whlie honouring & maintaining trad. procedural rights & equality before the law.
46
# lesson sixteen
what has been the positive impact of the NJC
- 25% lower rate of reoffending than other mag. courts
- NJC offenders are 3x less likely to breach CCOs
- NJC offenders demonstrate lower breach rates for intervention orders
- presence of NJC contributed to 31% drop in crime rate in the local govt. area
47
# lesson seventeen
drug courts in america
- 1989: the 1st d.c. in the world was est in Florida, USA
- now 3400 d.c. in USA
- d.c. exist in 20 other countries around the world
48
# lesson seventeen
drug court in vic. Aust.
- d.c. is a division of the mag. court
- est in Dandenong, 2002
49
# lesson seventeen
what are the requirements for an offender to have their matter dealt w/ by the d.c?
- the offender must reside in an area serviced by the d.c.
- the offender must be plead guilty to the offence
- the offence committed must be w/n the jurisdiction of the mag's court & be punishabe by imprisonment
- the offence must not be a sexual offence or an offence that involved bodily harm
- the offence must have been committed under the influence of drugs or to support a drug habit
50
# lesson seventeen
how long does the d.c. manage the participant?
- 2 yrs
51
# lesson seventeen
what does the d.c. team consist of?
- mag.
- program manager
- court registrar
- case managers (CCS)
- clinical advisors (MCV)
- housing assistance team
- AOD (Alcohol & Other Drugs) counsellors
- Vic Police prosecutor & liaison officer
- Legal Aid solicitor
52
# lesson seventeen
what is the purpose of d.c?
- to impose & administer an order called a drug & alcohol treatment order (DATO)
53
# lesson seventeen
what are the two parts that a DATO consists of?
- custodial
- treatment & supervision
54
# lesson seventeen
what is the custodial part of DATO?
- sentence of imprisonment - not exceeding 2 yrs - to be served in the community to allow the participant to receive drug &/or alcohol treatment
55
# lesson seventeen
what is the treatment & supervision part of the d.c?
- aims to address the participant's drug &/or alcohol dependency
56
# lesson seventeen
what are DATO participants required to do?
- attend and participate in regular appointments with the d.c
- routinely submit to supervised drug &/or alcohol testing
- attend d.c. weekly
- engage in drug &/or alcohol, medical, psychiatric or psychological assessment & treatment
- attend educational, vocational, employment or other programs
- comply w/ conditions of the DATO, including residential & curfew conditions
57
# lesson seventeen
how is positive and negative behaviour dealt w/ by the d.c. (DATOs)?
- rewards & sanctions are used to encourage positive behaviour & address any non-compliance
- any non-compliance or reoff. may lead to the cancellation of a DATO
58
# lesson seventeen
what is the aim of the DATO in relation to the treatment & supervision component?
- stop drug / alcohol use
- stop criminal bahviour
- build general health
- build capacity for a pos. life
59
# lesson eighteen
what is the koori court?
- est. in vic 2007
- division of mag. c
- in areas incl. shepparton, warrnambool, broadmeadows, bairnsdale, latrobe valley, mildura, swan hill
60
# lesson eighteen
what can koori elders & ect. do in koori courts?
- koori elders or 'respected persons', the koori court officer, koori defendants & the families of defendants can contribute during the conversation
61
# lesson eighteen
how does the contribution of individuals such as elders help?
- this helps to reduce perceptions of cultural alienation & to ensure sentencing orders are appropriate to the cultural needs of Koori offenders
- the approach also assits in addressing issues relating to offending & the offenders' behaviour
62
# lesson eighteen
what is the eligibilty of koori courts?
- k.c. is only available for aboriginal defendants who plead guilty & are willing to take responsibilty for their actions
- the court hears criminal cases, except sexual offences, domestic violence cases & breaches of intervention orders
- the offender must live w/n or be charged w/n the catchment area of a k.c.
63
# lesson eighteen
what is the koori courts sentencing process?
- less formal environment
- participants sits at a round table w/ supp. of lawyer or friends / family
- use of 'plain English' rather than legal jargon
- mag. take advice from an Ab. elder on cult issues & approp. sentence h/w mag. is the ultimate decision-maker & uses standard sanctions
64
# lesson eighteen
what are the outcomes of k.c?
- k.c. reduce recidivism rates by an average of 14% compared to the general recidivism rate of 29%
- experience of the offender in the justice system has improved w/ the maj of offenders finding the process more engaging, inclusive, & less intimidating than the trad. process
- been identification of a need to have greater services participating such as drug & alcohol service providers
- use has been expanded to inclu. a child k.c & c.c
65
# lesson eighteen
what are the strengths of k.c?
- increases indigenous ownership & participation
- provides informal atmosphere for sentencing
- reduces recidivism
- experience of the offender is vastly emproved, being more engaging, inclusive & less intimidating
66
# lesson eighteen
what are weaknesses of the k.c?
- X available to all offenders
- X available in all locations
- limited to sentencing only - does not run trials
- overrep. of indigenous aust. in criminal justice system has X generally improved over the yrs.
67
# lesson nineteen
what is a diversion programs aim?
- aims to give offenders the chance to avoid a criminal record by undertaking tasksand conditions that benefit the community
68
# lesson nineteen
is a plea entered prior to entry to a diversion program
- no plea is entered
68
# lesson nineteen
what is a diversion program used?
- in the mc & child.c to divert offenders away from the traditional criminal justice system & to avoid a criminal record by placing them on a plan
69
# lesson nineteen
what is the eligibility of a diverson program?
- summ offence that would be heard in the mc
- accused must accept responsibility for the offence & it must be their 1st offence
- the court must consider the matter appropriate for diversion
- both the pros. & def. consent to matter being diverted
- offence is X punishable by a min or fixed sentence or penalty
70
# lesson nineteen
what is the sentencing proccess of a diversion program
- onus on accused to ask for diverson
- court seeks views of victim
- if all parties = agreement than div program put in place & case is adjourned for 12 mths for offender to complete plan
- case reconvened 12 mths later
- --> succ = offender X enter plea &discharged w/o finding of guilt
- --> X succ = case = schedualed for hearing & offender sentenced
71
# lesson nineteen
what might a diversion program plan entail?
- treatment such as counselling or drug / alcohol treatment
- writing a letter of apology to the victim
- edu. course
- donation to charity or community service work
72
# lesson nineteen
what are the outcomes of diversion programs?
- b/w july 2001 - sept 2003 re-offending were very low
- of 100 participants, 0-7% would be convicted of a subsequent offence
- 94% of participants completed the program
- --> program = succ in achieving rehab & program gen succ
73
# lesson nineteen
what are the strengths of diversion programs?
- avoidance of criminal record
- saves court resources
- provides offenders w/ access to assistance, such as rehab & counselling
- can involve victims
- reduces recidivism rates
74
# lesson nineteen
what are the weaknesses of diversion programs?
- limited to certain offenders & offences
- effectiveness depends on the offender
- prosecution can prohibit the offender from participating
- may be seen as 'soft-option' for punishing offenders
75
# lesson twenty one
what is penalty for the offence of attempted murder?
- lvl 2 imprisonment = 25 yrs
- h/w court = X compelled to give max. in every case. t/f max. only imposed in most extreme circumstances
76
# lesson twenty one
what sentence was handed down by Justice Coghlan to Darrington?
- for attempted murder Darrington was sentenced to a term of imprisonment of 8 yrs w/ a n-p period of 5 yrs
77
# lesson twenty one
were their any similar cases for Justice Coghlan to base his sentencing decision on?
- w/ the expception of one case, there were no similar cases
- other sentences (X binding) drawn to Coghlan's attention by the prosecution involved diff. factual situations & were of limited assistance in determining the approp. santion for D.
78
# lesson twenty one
what purposes / aims / objectives of criminal sanction did Justice Coghlan consider to be the reasons for which the sentence should be imposed?
- general & specific deterrence
- retribution
79
# lesson twenty one
define fairness
- having a fair process & a fair hearing; to be tried w/o fear or favour
80
# lesson twenty one
how was fairness achieved during the case of R v Darrington?
- D. was able to exercise his rights throughout process = when engaging w/ police = right to silence when being interviewed
- D = legally rep which is recognised as being necessary for the pre-trial stages & for a fair trial for a serious indict. offence
- D & defence team were presented w/ prosecution evidence against D at the committal hearing t/f defence could prepare its case & for the cross-exam. of prosecution witnesses
- pros. had the b.o.p & had to prove D guilt b.r.d --> D afforded presumption of innoc.
81
# lesson twenty one
define equality
- people being equal before the law & each party having the same opportunity to present its case
82
# lesson twenty one
how was equality achieved during the case iof R v Darrington?
- both parties have legal rep & must be given the opportunity to examine the evidence presented under rules of procedure
-
83
# lesson twenty two
who were the parties involved in the DPP v Gatkuoth case?
- offender = isaac gatkuoth, 18 yr old a time of offence
- prosecution
84
# lesson twenty two
what happened in the DPP v Gatkuoth incident?
- Gatkuoth, 18 yrs of age and affected by the drug ice, stalked newman's car in a stolen BMW, before ramming it from behind & preceding to in confrontation with newman and sibberas pointed an unloaded shotgun demanding newman's keys, newman begged for his life before fleeing w/ sibb. gatkuoth then drove away with the vechile and BMW
85
# lesson twenty two
where did the incident happen?
- Frankson sth
86
# lesson twenty two
what court dealth with the case?
-county court b/c it was an indictale offence of a carjacking and armed robbbery.
87
# lesson twenty two
what issues did the court need to consider?
- aggravating and mitigating factors
- victim impact statement
- rehabilitation prospects (purpose of sentencing)
- whether there is a max. penalty for the crime & / or a standard sentence for the crime (sentencing act 1991 (vic))
- precedents from similar cases w/ regard to sentence
88
# lesson twenty two
what was the outcome of the DPP v Gatkuoth case?
- the accused pleaded guilty
- 20 mths in a youth detention facility (sanction)
89
# lesson twenty two
what were the aggravating factors of the DPP v Gatkuoth case?
- sig. criminal record that was escaltaing in scale & freq. of offending
- use of weapon / sawn off shotgun
- member of apex gang?
- impact on victims = traumatised at time & one took own life
- nature & gravity of offence --> armed robbery
- under influence of ice & had been drinking
- used stolen vechile to commit armed robbery
-
90
# lesson twenty two
what were the mitigating factors of the DPP v Gatkuoth case?
- entered a guilty plea
- showed signs of rehabilitation whilst on remand
- difficult childhood in Sudan - violence, weapons, gangs, death of 3 family members
- respectful & enthusiatic student at an edu. centre for young offenders
- young age - good prospects of rehab.
- admitted crimes when questioned & co-op w/ police
91
# lesson twenty two
how was fariness achieved in the DPP v gatkuoth case?
- afforded the presumption of innocence
- both agg. & miti. factors considered during sentencing
92
# lesson twenty two
how wass equality achieved during the DPP v Gatkuoth case?
- both parties were treated equally before an impartial and independent judge
- both parties given equal opportunity to present evidence during sentence hearing
93
# lesson twenty
who were the parties involved in the R v Darrington case?
- accused = Daniel Darrington
- victim = Rocky Matskassy
94
# lesson twenty
what happened in the R v Darrington incident?
- the accused & the victim had a fight
- victim emerged from bathroom w/ a gun
- accused claimed there was a struggle over the gun, during which time it discharged & the bullet struck the victim in the head
- he was twitching on the floor so the accused shot him twice more so he woudnt suffer believing he was still alive
95
# lesson twenty
when did the R v Darrington incident and court case occur?
- incident = march 2014
- court = feb 2016
96
# lesson twenty
what court was involved in the R v Darrington case?
- mag court (commital hearing) b/c all persons charged w/ an indict. offence will attend a commital hearing in mc 1st to determine if enough evidence to stand trial in a higher court
- sctd (trial) b/c muder is the most serious indictable offence & only the sctd has jursidiction to hear murder trials.
97
# lesson twenty
where did R v Darrington incident happen?
- Melton sth
98
# lesson twenty
what were the issues the court needed to consider during the R v Darrington case?
- was the accued guilty of murder beyond a reasonable doubt. this was not possible, the jury t/f had to decide if D was guilty of manslaughter or attempted murder
99
# lesson twenty
was the outcome of the R v Darrington case?
- Darrington was found guilty of attempted murder based on the 2nd & 3rd shots being fired, even though M was most likely already dead, D did X know this & fired the 2nd & 3rd shot to put him out of his misery t/f attempted to murder
100
# lesson twenty
what were the mitigating factors in the case R v Darrington?
- showed compassion for victim by 'putting him out of misery' - didnt want him to suffer
101
# lesson twenty
what were the aggravating factors for the case R v Darrington?
- deprived the victim of any chance of survival by shooting him the 2nd & 3rd time t/f his moral culpability was high
- nature & gravity of the offence
- D showed X remorse
