AOS 3 - sanctions Flashcards
unit one
DPP
-director of public prosecutions
-the independent officer responsible for commencing, preparing, and conducting prosecutions of indictable offences on behalf of the state of vic
OPP
-office of public prosecutions
-the victorian public prosecutions office that prepares and conducts criminal proceedings on behalf of the dpp
fairness
all people can participate in the justice system and its processes should be impartial and clear
equality
people should be treated in the same way, but 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
access
all people should be able to engage with the justice system and its processes on an informed basis
features of fairness
-impartial processes
-open processes
-participation
types of equality
-formal equality: everyone gets same treatment
-substantive equality: where measures can be put into place to ensure there is no disadvantage
features of access
-engagement (can be physical, technological, or financial)
-informed basis
bias
a prejudice or lack of objectivity in relation to a person or group
apprehended bias
a situation in which a fair-minded person might reasonably believe that the person deciding a case might not bring an impartial mind to the case
victim impact statements
-a statement filed by the court by a victim that is considered during sentencing
-contains particulars of injuries, losses or damages suffered by victim etc
cross examination
the questioning of a witness call by the other side in a legal case
VLA
-victorian legal aid
-a government agency which provides free legal advice to the community, and low/no cost legal representation to those who can’t afford a lawyer
alternative arrangements
measures that can be put in place for witnesses in certain criminal cases to give evidence in a different way
plea negotiations
pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid
CLC
-community legal centre
-an independent community organisation that provides free legal services to people who are unable to pay for those services
delegated bodies
an authority or agency given power by parliament to make and/or enforce laws
human rights charter
main purpose is to protect and promote human rights
institutional powers
the authority/power given to bodies to undertake actions
committal proceeding
pre-trial hearings and processes in the magistrates’ court for indictable offences
committal hearing
a part of committal proceedings, where the magistrate will decide whether there is sufficient evidence to support a conviction for the offence charged
conviction
a finding of guilt made by the court
jurisdiction
the lawful authority/power of a court to decide legal cases
original jurisdiction
the power of a court to hear a case for the first time
appellate jurisdiction
the power of a court to hear a case on appeal
unanimous verdict
a decision where all jury members are in agreement and decide the same way
majority verdict
a decision where all but 1 members of jury agree (11 out of 12)
aggravating factors
facts or circumstances about an offender or an offence that can lead to a more severe sentence
mitigating factors
facts or circumstances about an offender or an offence that can lead to a less severe sentence
punishment
one purpose of sanctions, designed to penalise offender and show society and victim that criminal behaviour isn’t tolerated
deterrence
one purpose of sanctions, designed to discourage offenders and others in the community from committing similar offences
specific deterrence
one purpose of sanctions, designed to discourage offenders from committing similar offences
general deterrence
one purpose of sanctions, designed to discourage others in the community from committing similar offences
denunciation
one purpose of sanctions, designed to demonstrate the community’s disapproval of offender’s action
protection
one purpose of sanctions, designed to safeguard community from offender by preventing them from committing further offences
rehabilitiation
one purpose of sanctions, designed to reform offender in order to prevent them from committing offences in the future
role of police
-serve community and law
-enforce criminal law
roles of victorian police in enforcing criminal law
-talk to victims or witnesses
-question possible suspects
-conduct searches
-charge people
-examine scenes of crime
-gather physical or forensic evidence
-arrest accused persons
afp*
-australian federal police
-investigates crimes with a federal aspect
examples of victorian delegated bodies
-worksafe
-epa
-vicroads
-local councils
examples of commonwealth delegated boddies
-asic
-ato
-accc
powers of police during arrests
-has power to arrest with or without a warrant
-can arrest without a warrant if it’s necessary to preserve public order, ensures offender appears in court, and ensures public safety and welfare
rights of individuals during arrests
-can refuse to go to police station unless arrested
-an arrested person must be informed of the reason for the arrest
-an arrested person must be brought before court/trial without reasonable delay
-right to silence (except name and address)
-right to released unconditionally or on bail
powers of police during questioning
-investigating officials have power to question a suspect/accused within a reasonable time
rights of individuals during questioning
-must be informed that they don’t have to say anything
-must be informed that they can communicate with a friend/relative and legal practitioner
-right to interpreter
-right to private conversations with legal practitioner
-questioning should occur in a reasonable time
-right to silence
-under 18s must have someone present during questioning (independent eg parent)
powers during court proceedings
-many parties have power to enforce law (eg prosecution, courts)
-power to commence criminal action to determine guilt and sentence offender
rights of individuals during court proceedings
-have charge decided by impartial court
-presumption of innocence
-informed about nature and reason of charge
-have adequate time and facilities to prepare defence
-be tried without reasonable delay
-obtain legal aid
-have interpreter
-have change to challenge/rebut evidence against them
powers during imprisonment
-prison officers have powers to manage prisoners (eg searches, seizing contraband)
rights of prisoners during imprisonment
-open air
-adequate food
-suitable clothing
-access to medical care
-access to suitable special care/treatment
-practice religion
-one-half an hour visit per week
-youths have additional rights
role of victorian courts in criminal cases
-criminal pre-trial procedures
-conduct criminal trials (deciding whether accused is guilty)
-impose sanctions (if person has been found or plead guilty)
strengths of courts in resolving criminal trials
-legal personnel (eg judges) are impartial
-hierarchy allows parties to appeal
-formal court processes etc ensure procedural fairness
-fairness is ensured through the specialised court hierarchy
weaknesses of courts in resolving criminal cases
-processes may be difficult to understand
-can cause stress, intimidation etc
-party may be disadvantaged if they represent themselves
-right to appeal is not automatic in many cases
jurisdiction of magistrates’ court
original jurisdiction
-summary offences
-indictable offences heard summarily
-committal proceedings
-bail and warrant applications
no appellate jurisdiction
jurisdiction of county court
original jurisdiction
-indictable offences except murder, attempted murder, treason, certain conspiracies
appellate jurisdiction
-from magistrates’ court on a conviction or sentence (unless chief magistrate decided case)
jurisdiction of supreme court (trial division)
original jurisdiction
-serious indictable offences (murder, attempted murder, treason etc)
appellate jurisdiction
-from magistrates’ court on a point/question of law (unless chief magistrate decided case)
jurisdiction of supreme court (appeal division)
no original jurisdiction
appellate jurisdiction
-all appeals from county court or supreme court (trial division)
-from magistrates’ court if chief magistrate decided case
jurisdiction of children’s court
original jurisdiction
-offences committed by children aged 10-17 (except for certain offences)
no appellate jurisdiction
jurisdiction of coroners court
original jurisdiction
-investigation of deaths, fires
no appellate jurisdiction
jurisdiction of high court
no original jurisdiction
appellate jurisdiction
-appeals from supreme court (appeal division) with leave (permission)
when are criminal juries used?
-original jurisdiction of county and supreme court
-to determine guilt of accused charged with indictable offence (when on trial)
how can people not be on the jury?
-disqualified due to past history (eg on bail)
-ineligible because of a certain characteristic (eg people who can’t adequately speak/understand english) or occupation (eg lawyer)
-excused because of certain circumstances (eg poor health
composition of a jury
12 people, but 3 extra jurors can be empanelled for lengthy trials etc
role of a jury
-listen to all the evidence
-concentrate during the trial
-piece evidence together and decide whether accused is guilty or not guilty
when does a hung jury occur?
-jurors first try to reach a unanimous verdict
-if this doesn’t occur, the judge may allow a majority verdict except for serious indictable offences
-when a majority verdict isn’t reached, it is a hung jury
strengths of the jury system
-jurors are independent and impartial, ensuring fairness and equality
-allows community to be involved in justice system
-spreads responsibility for decision
-ensures fairness by deliberating based on evidence
-reflects community values and brings common sense approach to decision making
weaknesses of jury system
-jurors don’t give reasons for their decisions
-task is difficult
-a jury trial may result in delays because juries require explanations/directions
-not everyone can be apart of the jury
-jurors may have biases that play a role in deliberations (may be unconscious)
difficulties first nations people may face
-language barriers
-police involvement in families
-cultural misunderstandings
-past experiences with government
-intergenerational trauma
-justice system based on western practices and ideas
initiatives for difficulties faced by first nations people
-koori court
-legal aid
-prison rehab programs
difficulties young people may face
-lack of understanding
-negative effects of custody
-psychological barriers
-lack of specialist legal systems
initiatives for difficulties faced by young people
-serviced dedicated to young people (eg youthlaw)
-youth diversion programs
-using intermediaries
-raising age of criminal responsibility
purposes of sanctions
-punishment
-deterrence
-denunciation
-protection
-rehabilitation
factors that may reduce sentence
-nature and gravity of offence
-early guilty plea
-mitigating factors
-lack of prior offending
-remorse
factors that may increase sentence
-nature and gravity of offending
-aggravating factors
-prior offending
-impact of offence on victim
-injury, loss, or damage as a result of the offence
types of sanctions
-discharge
-adjournment
-fines
-community corrections order
-drug treatment orders
-imprisonment
(going from less severe to more severe)
what does discharge with conviction involve?
record a conviction and order offender to be discharged (no other penalties)
what does adjournment involve?
-delaying court case until further date
either:
-record conviction and order release of offender with conditions attached OR
-without recording conviction, orders the release of offender on the adjournment of a hearing with conditions attached
what does fines involve?
-with or without conviction, order offender to pay fine
(money to the state)
what does a community corrections order involve?
-with or without conviction, make a CCO, which means that the offender serves the sanction in the community with conditions attached
what do drug treatment orders involve?
-record conviction and order offender to undertake treatment program (only available from drug court if person pleads guilty and is dependent on drugs or alcohol)
what does imprisonment involve?
-record conviction and order offender to serve time in jail
the drug court
able to impose a drug treatment order on an offender where drugs or alcohol contributed to the commission of the offence
eligibility of drug court
-must reside within an area serviced by the drug court
-must plead guilty to offence
-offence must be within jurisdiction of the magistrates’ or county court and punishable by imprisonment
-offence must not be a sexual offence and must not have involved actual bodily harm
-drug court must be satisfied that the offender is dependent on drugs or alcohol, and that this dependency contributed to the offence being committed
the koori court
A division of the magistrates, children’s, and county court that (in certain circumstances) operates as a court for first nations people
eligibility of the koori court
-must be First Nations
-offender must be within jurisdiction of relevant court
-offence must not be a sexual offence
-accused must intend to or has plead guilty
-accused must consent to case being dealt with by Koori Court
diversion programs
a method used by magistrate’s and children’s court to redirect offender from court and avoid criminal record by placing them on a plan
eligibility of diversion programs
-accused must acknowledge to Magistrate’s Court responsibility for the offence
-it must appear appropriate to Magistrate’s Court that the accused should participate in the program
-both prosecution and accused must consent to matter being diverted
-offence must not be one punishable by a minimum or fixed sentence or penalty (eg suspension of licence)
strengths and weaknesses of the drug court
strengths
-addresses underlying causes of crime
-avoids effects of imprisonment
-breaks cycle of offending
weaknesses
-not every offender is eligible to be sentenced
-not always successful
-expensive to establish
strengths and weaknesses of the koori court
strengths
-increased First Nations ownership of and participation in justice system
-provides informal atmosphere for sentencing
-experience of accused is vastly improved, less intimidating etc
weaknesses
-not available to all offenders
-limited to sentencing only and doesn’t extend to trials
-not available in all locations
strengths and weaknesses of diversion programs
strengths
-allows avoidance of criminal record
-saves court resources
-provides offender with access to assistance such as rehab and counselling
weaknesses
-limited to certain offenders and offences
-effectiveness depends on offender
-prosecution can prohibit the offender from participating
