CLP matters of jurisdiction

Question 1

When is allocation relevant?

Answer 1

Where the trial should be held (MC or CC) is only an issue for either-way offences

Question 2

Where should either-way offences ordinarily be held?

Answer 2

Either-way offences should be tried summarily, in Magistrates Court

Question 3

Why can an either-way offence not be summarily?

Answer 3

Either-way offences should be held summarily UNLESS…

1. Sentencing powers would be insufficient (considering mitigation, aggravating factors, etc.)
2. For reasons of unusual legal, procedural or factual complexity –> so serious it should be in CC

Question 4

What is the structure for the Magistrates to accept jurisdiction

Answer 4

1. Outline the offence
   a) Prosecution: outline the facts
   b) Defence: I am grateful that my friend has outlined the facts. I will now respond to their submission
2. Outline sentencing powers: in deciding whether to accept/reject jurisdiction, the court must consider the adequacy of its sentencing powers
   - Magistrates power = max 12 months for one or more either-way offences
3. Go through relevant sentencing guidelines and consider the starting point for the sentence and the range
   Thresholds:
   - Not pass custodial sentence unless the offence was SO SERIOUS that neither a fine nor community sentence can be justified
   - Not make a community order unless offence is serious enough to warrant the order
4. Statutory aggravating and mitigating factors. This is taken into account when considering if sentencing powers are sufficient
5. Refer to allocation guidelines & expand where relevant
   a) is sentence in excess of MC power?
   b) are there unusual legal, procedural or factual complexities
6. Conclude
   a) Submit that court’s sentencing powers are adequate & jurisdiction should be accepted. Could always go up to CC for sentence anyway
   b) Submit that court’s sentencing powers are inadequate or complex

Question 5

What are common aggravating factors (stage 4)?

Answer 5

• previous convictions
• offences committed on bail
• racial/religious motivations
• influence of alcohol/drugs
• pre-planning
• attempts to dispose of evidence

Question 6

What are common mitigating factors (Step 4)?

Answer 6

• high degree of provocation
• mental illness/disability
• youth or age
• minor role
• good character