Chapter 7 Sanctions

Question 1

Principals of the justice system

Answer 1

Fairness, Equality, Access

Question 2

Fairness

Answer 2

Fairness means that:
- all people can participate in the justice system, and it’s processes should be impartial and open
- all personnel involved in the legal system must be (and be perceived to be) impartial, independent and free from bias
- legal processes must be transparent
- people should be aware of the case against them, and have the opportunity to present their case
in court.

Question 3

Equality

Answer 3

Equality means that:
- all people engaging with the justice system and its processes 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
- Formal equality: people should be treated the same regardless of their personal characteristics or attributes (e.g. race, sex, religion and culture)
- Substantive equality: sometimes it is necessary to treat someone differently to ensure equality (eg providing measures to make sure a person can understand court processes).

Question 4

Access

Answer 4

Access means that:
- all people should be able to engage with the justice system and its processes on an informed basis, and should have the means and ability to be able to use and participate in the legal system
people should have access to the institutions that make decisions, and the bodies that provide legal advice, education and assistance
- people should be educated about, and have access to information about, their rights and court processes.

Question 5

Institutions that enforce criminal law

Answer 5

Institutions that enforce criminal law, such as the police and delegated bodies

Question 6

The police

Answer 6

The role of the police is to serve the community and the law, and to enforce criminal law.

Victoria Police is the main institution that enforces criminal law relating to indictable offences and most summary offences in Victoria.

Victoria Police’s role in enforcing criminal law includes to:
• talk to victims or witnesses
• question possible subjects
• examine the crime scene(s)
• gather evidence
• search people or property
• arrest accused persons
• charge people with offences that fit the crime.

To allow Victoria Police to enforce the law, statutes provide Victoria Police with powers (e.g. the power to arrest and take fingerprints of suspects).
- Victoria Police can prosecute summary offences in court.
- For indictable offences, Victoria Police undertakes the investigations, gathers the evidence, and charges the accused persons. This information is then given to the Office of Public Prosecutions (OPP), which is responsible for prosecution at trial.

Question 7

Australian Federal Police

Answer 7

The Australian Federal Police (AFP) investigates offences that have a federal aspect (i.e. offences that are against the law of the Commonwealth).
Examples of these offences: counter terrorism, serious organised crime, human trafficking, cybercrime, fraud, and child exploitation.

Statutes provide the AFP with various powers to enforce criminal law (e.g. the power to arrest and search individuals).

The AFP may work with state police forces or other bodies to identify and arrest possible offenders.

Question 8

Local councils

Answer 8

Local councils were established to ensure the peace, order and good government of local districts.

The Local Government Act 1989 (Vic) gives local councils the authority to make and enforce local laws (called by-laws) for their own district.

These include laws relating to building and planning permits, childcare centres, rubbish and local libraries.

Question 9

7.4 Powers and Rights

Answer 9

Powers and rights refers to the balance between institutional power and individual rights.

• Institutional powers must be balanced against the rights of individuals.
• If institutions have too much power, individuals may be treated unjustly.
• If institutions have too few or too limited powers, crime prevention and law enforcement may be difficult or impossible.

Question 10

Arrest

Answer 10

• The police have the power to arrest an offender after a crime has been committed.
• The police can arrest individuals without a warrant in certain situations.
• Individuals have rights in relation to an arrest. This ensures there is a balance between the power of arrest and the rights of an individual. These rights include the right to stay silent and the right to be informed of the reason for the arrest.

Question 11

Questioning

Answer 11

-If a person has been arrested and is in custody for being suspected of committing an offence, an investigating official has the power to question that person within a reasonable time.

The person who is questioned has the right to:
- be informed that they do not have to do or say anything, but that anything the person does say or do may be given in evidence
- be informed that they can communicate with a friend, a relative or a legal practitioner and that this communication will not be overheard
- have an interpreter
- be questioned within a reasonable time
- have a parent, guardian or independent person present during questioning if they are under 18 years of age.

Question 12

Court proceedings

Answer 12

Various powers are given to the prosecution, including the power to prepare the case, speak with witnesses, obtain evidence, and negotiate with the accused about an early guilty plea.

An accused has rights in criminal proceedings, including the right to:
- have the charge decided by a competent, independent and impartial court after a fair and public hearing
- be presumed innocent until proven guilty
- be informed promptly and in detail about the nature and reason for the charge
- have adequate time and facilities to prepare a defence
- be tried without unreasonable delay
- obtain legal aid if the interests of justice require it
- have the assistance of an interpreter if needed
- have the opportunity to challenge and rebut the evidence put against them.

Question 13

Imprisonment of the offender

Answer 13

If an accused person is found guilty, then the court’s role is to impose a sanction.
If the maximum penalty for a crime is imprisonment, and the court considers this to be the most appropriate sentence, then the court has the power to imprison the offender for a period of time.

Under the Corrections Act 1986 (Vic), prison officers with various powers to enable them to manage prisons, including the power to:
• search and examine any person
• seize unauthorised goods
• arrange for medical tests for alcohol or drugs
• require a prisoner to be electronically monitored
• open, inspect and read letters sent to prisoners.

Prisoners’ rights under the Corrections Act include the right to:
• be in the open air for at least an hour each day
• be provided with adequate food and suitable clothing
• access reasonable medical care and treatment
• practise a religion
• receive at least one half-hour visit a week.

Question 14

7.5 The Victorian Courts

Answer 14

The role of the Victorian courts is to determine a criminal case and impose a sanction.

Question 15

Role of the Victorian court - determine a criminal case

Answer 15

Determine a criminal case
If an accused pleads not guilty, it is the role of the courts to determine whether the accused is guilty by managing and hearing criminal proceedings.

Guilt is determined at a hearing in the Magistrates’ Court for a summary offence, or by a jury at a trial in the County Court or Supreme Court for an indictable offence.

As part of the court’s role to determine the guilt of an accused, the court:
• provides specialisation and expertise in the type of case it is hearing
• manages the case (e.g. setting down a timeline of when certain steps are to occur to manage delays)
• hears appeals.

Question 16

Role of the Victorian court - impose a sanction

Answer 16

If an accused pleads guilty, or a magistrate or jury finds the accused guilty, a judge or magistrate hands down a sanction.

Types of sanctions: fines, community correction orders (CCO) and imprisonment

Question 17

The criminal jurisdiction of the Victorian courts - what is original jurisdiction? and appellate jurisdiction?

Answer 17

‘Jurisdiction’ refers to the right or power of a court to apply the law and hear cases.
There are two types of jurisdiction:
• original jurisdiction – the power of a court to hear a case for the first time
• appellate jurisdiction - the power of a court to hear an appeal

Question 18

Magistrates court - original jurisdiction, and appellate jurisdiction

Answer 18

Victorian court: Magistrates’ Court Origional Jurisdiction: Summary offences, Indictable offences heard summarily, Committal proceedings (decide if there is enough to take the matter to a trial), Bail and warrant
Appellate Jurisdiction: No appellate jurisdiction

Question 19

County court - original jurisdiction, and appellate jurisdiction

Answer 19

Victorian court: County Court
Origional Jurisdiction: Indictable offences except treason, murder, attempted murder, certain conspiracies
Appellate jurisdiction: From the Magistrates’ Court on a conviction or sentence (unless the chief magistrate decided the case)

Question 20

Supreme Court (Trial Division) - original jurisdiction, and appellate jurisdiction

Answer 20

Victorian court: Supreme Court
(Trial Division)
Origional Jurisdiction: Serious indictable offences
Appellate Jurisdiction: From the Magistrates’ Court on a point of law (unless the Chief Magistrate decided the case)

Question 21

Supreme Court (Court of Appeal) - original jurisdiction, and appellate jurisdiction

Answer 21

Victorian court: Supreme Court
(Court of Appeal)
Origional Jurisdiction: No original jurisdiction
Appellate Jurisdiction: All appeals from the County Court or the Supreme Court (Trial Division)
From the Magistrates’ Court if the Chief Magistrate decided the case

Question 22

Coroners Court - original jurisdiction, and appellate jurisdiction

Answer 22

Victorian court: Coroners Court
Origional Jurisdiction: Investigation of deaths and fires
Appellate Jurisdiction: No appellate jurisdiction

Question 23

Children’s court - original jurisdiction, and appellate jurisdiction

Answer 23

Victorian Court: Children’s Court
Original jurisdiction: Offences committed by children between 10 and 17 years of age (except for certain offences)
Appellate jurisdiction: No appellate jurisdiction

Question 24

Substantive equality

Answer 24

sometimes it is necessary to treat someone differently to ensure equality (eg providing measures to make sure a person can understand court processes).

Question 25

7.6 Jury, what is a jury? and what is the role of a jury?

Answer 25

A trial by jury is a trial by peers in which an impartial group of people are randomly selected to hear the evidence and hand down a verdict as to whether the accused is guilty or not.

Question 26

Where and When are criminal juries used?

Answer 26

• Criminal juries are used in the original jurisdiction of the County Court and the Supreme Court.
• Juries are never used in the Magistrates’ Court and are not used in appeals.
• Juries are not used when an offender has pleaded guilty, because their only role is to determine whether a person is guilty, and not the sanction.

Question 27

How many people are required to make up a jury?

Answer 27

A jury consist of 12 people (which is compulsory) in criminal cases heard in the County Court and the Supreme Court, where the accused pleads not guilty.

Question 28

How old do you have to be to become a jury member?

Answer 28

Individuals, aged 18 years or over who are in enrolled to vote in Victoria are qualified and liable for jury services.

Question 29

Who can’t join the jury?

Answer 29

People are disqualified from serving as jurors if they have been sentenced to a term of imprisonment for three years or more, are currently on bail or have been declared bankrupt and remain bankrupt.

Some people are ineligible from serving as jurors because of their occupation (e.g. lawyers, judges, magistrates, police officers and members of parliament) or because they cannot communicate in or understand the English language adequately, or have a physical disability that means that they are incapable of performing jury service.

Question 30

The role of a criminal jury

Answer 30

A jury in a criminal trial must:
• listen to all the evidence
• concentrate during the trial
• piece together the evidence and decide whether the accused is guilty or not guilty.

In a criminal case, a finding of guilty by a jury must be beyond reasonable doubt.

In a criminal case, a jury must try to reach a unanimous verdict.

If a unanimous verdict is not possible, a majority decision can be accepted except for some offences (e.g. murder). For a majority verdict, 11 out of 12 jurors must agree.

If a majority verdict cannot be reached, there is a hung jury. This means that the accused has not been found guilty or not guilty and can be tried again at a later date.

A jury does not have to give reasons for the verdict it reached. All jury deliberations are confidential.

Jurors cannot make enquiries (including internet searches) about matters related to the trial.

Question 31

7.7 Difficulties in the criminal justice system. Who faces difficulties within the justice system?

Answer 31

groups such as First Nations people, young people, culturally and linguistically diverse people, people with mental health issues, and people with disabilities may face more difficulties within the criminal justice system.

The criminal justice system can be daunting, difficult to understand, expensive for those who need lawyers to help them, and potentially unfair for those who do not get a proper opportunity participate in the system or tell their own story.

Some groups face additional challenges when interacting with the criminal justice system; for example, people who experience economic disadvantage; prisoners; recent arrivals to Australia; people in regional, rural and remote areas; elderly people; and victims of family violence.

Question 32

How have First Nations people suffered criminal injustice within the criminal justice system?

Answer 32

‘First Nations people’ is a term used to describe Aboriginal and Torres Strait Islander people, and recognises that they are the sovereign people of this land.

In Australia, First Nations people have suffered significant injustices and human rights breaches, including violence and death, racism, the dispossession of traditional lands, and the forced removal of children from their families.

Laws and policies put in place over time that have discriminated against First Nations people have resulted in a loss of self-determination.

Question 33

Overrepresentation in the criminal justice system (First Nations people)

Answer 33

Despite comprising 3.8 per cent of the Australian population, First Nations people make up around 32 per cent of the prison population.

Some First Nations people experience a number of social disadvantages with respect to health, finances and employment. Some suggest that the disadvantages are related to the historic discrimination and injustices suffered by First Nations people, and can result in a higher risk of interaction with the criminal justice system.

Question 34

Difficulties faced by some First Nations people in the criminal justice system

Answer 34

First Nations people may experience a number of difficulties including:
- cultural differences (some First Nations people may not understand the law and the criminal justice system, or may feel that the criminal justice system is not well equipped to understand them or their culture)
- language differences (not all First Nations people speak English as their first language, and some First Nations people have different ways of communicating)
- distrust in the criminal justice system (many First Nations people have personal experience of the criminal justice system working ‘against them’ rather than for them, and do not see the courts or legal services as a safe place).
- a lack of legal services in remote communities
- a lack of respect for the right of self-determination
- a lack of culturally appropriate sentencing options
- hardships experienced in prison and detention.

Question 35

Addressing difficulties within the criminal justice system (First Nations people)

Answer 35

Some of the ways in which the criminal justice system seeks to address the above difficulties are:
- having dedicated funding for Aboriginal legal aid to ensure that professional and culturally appropriate legal services are available to First Nations people.
- developing specialised courts and programs to ensure that cultural differences are addressed in the criminal justice system (e.g. the Koori Court)
- ongoing cultural competence training for people who work in courts and tribunals to ensure that First Nations people can engage with the criminal justice system.
- developing self-determination initiatives.

Question 36

the Koori Court

Answer 36

The Koori court is a specialised court for First Nations people to ensure that cultural differences are addressed in the criminal justice system

Question 37

Difficulties faced by some young people in the criminal justice system

Answer 37

Young people who are particularly at risk when having to deal with the criminal justice system include those who are experiencing homelessness, are First Nations, or have experienced family violence.

When interacting with the criminal justice system, young people may experience difficulties including:
- a lack of understanding of the justice system (may not have sufficient communication skills, expertise, knowledge and experience to be able to understand the language and processes)
- negative effects of custody (may be exposed to negative effects, form criminal associations with other offenders, experience stigma)
- psychological barriers
- a lack of specialist legal services and courts
- a lack of formal education resulting in lower literacy levels or lack of awareness of rights.

Question 38

Addressing difficulties for young people within the criminal justice system

Answer 38

Some of the ways in which the criminal justice system seeks to address the above difficulties are:
- YouthLaw (a dedicated community legal centre for young people)
- Youth diversion programs
- intermediaries to assist vulnerable witnesses to communicate with the court
- national conversation about increasing the age of criminal responsibility.

Question 39

CALD, what does it mean?

Answer 39

Culturally and linguistically diverse people

The term ‘CALD’ is used to describe those people born overseas in countries other than ‘main
English-speaking countries’.

Question 40

7.8 The purposes of sanctions, What are the purposes?

Answer 40

There are five purposes of sanctions: punishment, deterrence, denunciation, protection and rehabilitation.

D - deterrence
R - rehabilitation
D - denunciation
P - protect
P - punishment

Question 41

Deterrence

Answer 41

The law aims to to deter or discourage the offender and others in society from committing the same or similar offences in the future.

Question 42

What is General deterrence?

Answer 42

general deterrence – discourages others in the community from committing similar offences

Question 43

What is specific deterrence?

Answer 43

specific deterrence – discourages the offender from committing further offences.

Question 44

What is Denunciation?

Answer 44

Denunication is a purpose designed to demonstrate the community’s disapproval of the offender’s actions and to show that this type of criminal behaviour will not be tolerated by the courts.

Question 45

What does protection aim to do?

Answer 45

Protection is a purpose of sanctions that seeks to ensure the safety of society by imposing a sanction that will prevent the offender from harming again.
- Offenders may have to be imprisoned so that they cannot commit more harmful acts.

Question 46

What does rehabilitation aim to do?

Answer 46

Rehabilitation aims to reform an offender in order to prevent them committing offences in the future.

Question 47

7.9 Types of Sanctions - What are the 3 different types of sanctions

Answer 47

Fines, CCO (community corrections order), and the most severe imprisonment

Question 48

When can a fine be imposed?

Answer 48

A fines can be imposed in addition to another sentence or on its own.

When deciding whether to impose a fine, and what fine to impose, a court considers:
- the financial circumstances of the offender
- any loss or destruction of, or damage to, property caused by the offence
- the value or benefit received by the offender from the offence
- any forfeiture, compensation or restitution order imposed.

Question 49

Mandatory conditions Of a CCO

Answer 49

mandatory conditions – conditions that apply to every offender

Question 50

optional conditions of a CCO

Answer 50

optional conditions – conditions that are specific to an offender (at least one optional condition must be attached to a CCO).

Question 51

What factors may reduce sentencing?

Answer 51

-Nature and gravity of the offence - if the offending is on the low end of the scale
-Early guilty plea
-Mitigating factors - factors that reduces seriousness of an offence, or the offender’s culpability
-Lack of prior offending
-Remorse

Question 52

Factors that may increase the sentence?

Answer 52

-Nature and gravity of offence - if the offending is on the high end of the scale
-Aggravating factors
-Previous offending
-Impact of the offence on any victim
-Injury, loss, or damage as a result of the offence

Question 53

7.11 alternative, sentencing approaches

Question 54

The drug court

Answer 54

-The Drug Court is a division of the Magistrates’ Court and the County Court.

-The Drug Court is intended to respond to the failure of traditional methods of sentencing offenders to adequately address drug use and offending, by directly addressing the issue of drug and alcohol dependency.

-The Drug Court imposes a drug treatment order (DATO) on the offender

Question 55

7.12 sentencing in the Northern Territory, Self governing

Answer 55

In 1978, legislation was passed that granted the Northern Territory the right to self-govern. This meant that the Northern Territory could make its own laws.

However, the Commonwealth Parliament retains the right to legislate for the Northern Territory, and can override any legislation passed by the Northern Territory Parliament.

Question 56

Northern Territory’s criminal justice system

Answer 56

85% of all prisoners were first Nations people, despite first Nations people making up only 26.3% of the territories population.

There is no specialised court in the Northern Territory similar to the Koori court in Victoria for First Nations people.

Question 57

Differences between Victorian courts and Northern Territory courts

Answer 57

There are fewer courts in the Northern Territory that sentence offenders. The Northern Territory only has two mainstream courts while Victoria has three.

The Northern Territory has some sentences that are not available in Victoria, such as home detention orders, unsuspended sentences.

The Northern Territory has fewer prisons then Victoria given it’s smaller population.