Unit 2 AOS 1 Flashcards

Question

Appeals

Answer 1

parties can go to a higher court if they believe an error has been made

Answer 2

allows this legal principle to operate

Answer 3

more Magistrates’ Courts to hear summary offences (which there is more of), County and Supreme Courts to hear complex cases

Answer 4

Two main roles: Determine a criminal case (i.e. decide whether the accused is guilty) Impose a sanction (if the accused has pleaded or is found guilty)

Answer 5

If an accused pleads not guilty, then the courts will need to determine their guilt For indictable offences: First, the case goes to the Magistrates’ Court for a committal proceeding. The final stage is a committal hearing, where the magistrate will decide whether there is sufficient evidence to support a conviction Then, the case will go to either the County Court or the Supreme Court

Answer 6

If the accused pleads or is found guilty, then a date is set for a plea hearing Here, the facts of the case, relevant factors to be considered when sentencing and the type of sentence that the offender should receive is submitted by both parties Then a sentencing hearing takes place, where the magistrate or judge will sanction the offender In the higher courts, the judge will give a written judgement about the sanction they have imposed (this will be made public)

Answer 7

Jurisdiction – the lawful authority (i.e. power) to decide legal cases

Answer 8

the power of a court to hear a case for the FIRST TIME

Answer 9

the power of a court to hear a case on APPEAL

Answer 10

-Hears summary offences and indictable offences heard and determined summarily -If the accused pleads not guilty, a HEARING is held to determine guilt -Also hears bail applications, warrants and carries out committal proceedings

Answer 11

Does not hear appeals – they are the LOWEST court in the hierarchy

Answer 12

Hears all indictable offences except those specified in section 36A County Court Act 1958 (Vic) E.g. cannot hear murder cases If the accused pleads not guilty, a TRIAL is held to determine guilt

Answer 13

Hears appeals from convictions or sentences handed down in the Magistrates’ Court

Answer 14

Hears all indictable offences – generally the most serious that cannot be heard in the County Court If the accused pleads not guilty, a TRIAL is held to determine guilt

Answer 15

Hears criminal appeals on questions of law from cases heard in the Magistrates’ Court

Answer 16

Hears appeals from the County Court and the Supreme Court (Trial Division)

Answer 17

A jury is a panel of everyday citizens that are summonsed by a court to determine the verdict of a case in which one of their peers from society is on trial.

Answer 18

Used in the original jurisdiction of the County Court and Supreme Court Used to determine guilt or innocence for an accused charged with an indictable offence Not used: In the Magistrates’ Court During appeals When the accused has pleaded guilty

Answer 19

The jury in a criminal trial must: Listen to all the evidence Concentrate during the trial Piece the evidence together and decide whether the accused is guilty or not

Answer 20

- Juries are independent and impartial - Allows the community to be involved in the legal system which increases the confidence in the system -ensures that the verdict reflects the values of the community -ensures fairness by requiring the jury to deliberate based on the evidence and facts and not their own independent research -spreads the responsibility of making a decision- fair

Answer 21

-they do not give reasons for their decision -deliberations occur behind closed doors questions whether the decsion has been made based on the facts and the evidence -The task is difficult where there is complicated evodemce, it has been questioned whether ordinary members of the public can understand it and make the right decision - may be influenced by skilled lawyers or by the emotional elements of the trail -may have biases that play a role in their deliberation -results in delays because legal terms have to be explained to the jury

Answer 22

punishment, deterrence, denunciation, protection, rehabilitation

Answer 23

Designed to penalise the offender and show society and the victim that criminal behaviour will not be tolerated

Answer 24

To discourage the offender and members of the community from committing the same or similar offences in the future General deterrence – to discourage members of the community Specific deterrence – to discourage the offender

Answer 25

To show disapproval of the offender’s actions - This behaviour will not be tolerated by the courts

Answer 26

To ensure the safety of the community by imposing a sanction that prevents the offender from harming again Best achieved by imprisonment – but this is a last resort

Answer 27

To reform an offender in order to prevent them from committing offences in the future Looks to help offenders change their ways – otherwise they will become repeat offenders, leading to an increase in crime rates and prison costs

Answer 28

education, training, assistance and support

Answer 29

fines, CCOs, imprisonment

Answer 30

a fine is a financial penalty that is paid by the offender to the State of Victoria. These fines are expressed in penalty units as it makes it easier to keep the law up to date with changes.

Answer 31

- The financial circumstances of the offender -Any loss, destruction, or damage to property -The value of benefit received by the offender from the offence -Any forfeiture, compensation or restitution order already imposed – i.e. has the offender already paid compensation or given up property?

Answer 32

: Punishment, deterrence (general & specific)

Answer 33

is a flexible sentencing order where the offender serves their sentence in the community

Answer 34

The offence is punishable by more than five penalty units; and The offender consents to the making of a CCO

Answer 35

punishments, deterrence (specific and general), rehabilitation, protection

Answer 36

removing the offender from society for a period of time and placing them in prison

Answer 37

Concurrently – served at the same time Cumulatively – one after the other

Answer 38

protection, punishment, deterrent, denunciation, rehabilitation

Answer 39

Current sentencing practices Maximum penalty for offence Personal circumstances Aggravating factors – can increase sanction Mitigating – can decrease sanction

Answer 40

nature and gravity of offence- if on the low end of the scale Early guilty plea- saves time and resources Lack of prior offending Remorse- if they show significant remorse

Answer 41

nature and gravity of the offence- if its on the high end of the scale previous offending Impact of the offence on any victim injury loss or damage as a result of the offence

Answer 42

Norway focus on rehabilitation - Highest sentencing is 21 years suspended sentencing Vic Koori courts, drug courts abolished home detentions and introduced CCOs

Answer 43

- deals with offenders who commit crimes while under the influence of drugs or to support a drug habit -Aims to address drug use and offending by dealing with drug and alcohol dependency -Imposes DTOs

Answer 44

is available to an Indigenous accused Allows for informality and representation of the Indigenous community in the sentencing process Aims to explore alternatives to imprisonment Certain eligibility criteria must be met

Answer 45

Available for summary offences to ‘divert’ offenders away from the court system Offenders are placed on a program or plan, with conditions attached Intended for first-time offenders – aims to reduce reoffending and assist in rehabilitation Must ask for a diversion program.

Answer 46

addresses underlying causes of crime-drug and alcohol dependency Avoids effects of imprisonment provides ongoing support and supervision provides positive reinforcement through the rewards program better alternative to prison more cost-effective breaks the cycle of offending

Answer 47

Not every offender is eligibke to be sentenced Not always successful in reforming offenders Drug Court is limited in its capacity to accept offenders Expensive to establish Some have criticised the rewards program

Answer 48

Increases indigenous ownership and particpation provides an informal atmonsphere for sentencing reduces recidivism experience of the accused is vastly improved with the experience being more engaging and inclusive and less intimidating

Answer 49

Not available to all offenders not available in all locations limited to senencing only and does not extend to trails over-representation if Indigenous people in the criminal justice system has not generally improved over the years

Answer 50

Allows avoidance of criminal records saves court resources provides offenders with access to assistance such as rehabilitation and counselling can involve victims reduces recidivism

Answer 51

limited to certain offenders and offences effectiveness depends on the offender prosecuting can prohibit the offender from participating may be seen as soft option of punishing offenders

Answer 52

Chol and her friend were hosting a party in their Air BnB until uninvited guests joined them the next day refusing to leave, as well as rifling through the girl’s drawers. When they finally left Chol noticed that her phone was missing which is why she followed them into the hallway and pushed one of them named PM. This led to a verbal altercation which resulted in them starting to punch and kick Chol whilst being held down by MM. Following this they made their way towards the lifts where AK drew a knife from his clothing and stabbed her violently in the chest whilst she was being held back. In addition to this AK kicked her one more time before him and his friends left the premises. Unfortunately, Chol died before the ambulance were able to reach her but luckily it was all caught on CCTV footage and was able to be later used in the trial. AK was later arrested by the police in 2018 July 23rd, three days after the death of Chol.

Answer 53

Magistrates’ - AK plead not guilty to a serious indictable offence meaning a committal proceeding had to be held. - At this proceeding the Magistrate determined that there was enough evidence to proceed to trial. Supreme Court - AKs trial was head and determined in the Supreme Court (only court that can hear murder charges) - Even though he was younger than 18 at the time of the offence, Childrens Court does not have the jurisdiction to hear murder cases.

Answer 54

Positives of imprisonment - Serves as an effective method of punishment. - Most serious punishment with deprivation of liberty - Widely reported and can act as an appropriate general deterrent. Negatives of imprisonment - High recidivism rates may suggest imprisonment is ineffective. - Rehabilitation depends on the offender, the programs and the environment. - Offenders with mental illnesses have a higher chance of reoffending as being away from friends and family whilst in prison can make their condition worse causing reoffending.

Answer 55

Seriousness of the offence - Because of the violent nature of the crime as well as Chol being defenceless making AK’s actions unprovoked, needless, cowardly, and callous. - After the crime he committed he fled the scene and disposed the knife demonstrating no remorse and no concern for Chol’s wellbeing Prior convictions - AK had prior convictions of aggravating burglary, assault, and offences of dishonesty, - He previously spent time in youth justice centres for prior offences. Impact of the crime - The impact of the crime on Chol’s friends and family which was discovered in the victim’s impact statements. - These showed that Chol’s friends and family continue to suffer.

Answer 56

Plead guilty. - AK pleading guilty manslaughter which reduced the trauma of Chol’s family and friends. - Because of this the disputes at trials were narrowed so they only had to worry about whether AK intended to cause Chol serious injury. Young age - At the time of the offence, he was only 17 years old. - When sentenced he was 18 years and 5 months. - However, because of the seriousness of the offending Judge Kaye gave less weight to AKs youth as a mitigating factor than normal. Degree of remorse - Justice Kaye noted that AK had genuine remorse. - However limited and ill-informed so it was only taken into account to a limited extent.

Answer 57

appeal against the conviction - AK can claim that jury’s verdict was wrong. Appeal against the sentence - AK could appeal stating that his sentence was too much and should have been lower because of the factors of the case. appeal against both - AK could appeal stating that the jury verdict was wrong and that his sentence was too harsh.

Answer 58

AK would have been able to exercise his rights before and during the trial. - The right to plead guilty or not guilty and was entitled to change his plea. AK was legally represented. - Having legal representation would have enabled AK to understand the courts processes and procedures as well as the implications of pleading guilty to manslaughter. The prosecution had the burden of proof The standard of proof in this case is beyond reasonable doubt. AK was able to introduce evidence by a clinical psychologist. The trial would have been conducted through a set of processes to ensure a fair trial.

Answer 59

Both parties have the right to engage legal representation which upholds equality Justice Kaye acted as an independent and impartial adjudicator. AK had the benefit of a trial by a jury of people selected of random who reached a verdict based on evidence from both parties. Both parties could call witness om the case There is no evidence to suggest that AK suffered any form of discrimination or was not treated equally before the law. A pseudonym was used for AK as he was a minor at the time of the offending.

Answer 60

The trial and the sentencing hearing were conducted as open hearings and the sentencing remarks are available to the public. During the trial both parties had an equal opportunity to present evidence Ak had access to all of the evidence that was used against him at the trial. Both parties had the right to appeal Before AK was sentenced victim impact statements were made to the Supreme Court.