exam Flashcards
mitigating factors
Mitigating factors are circumstances about the offence or the offender that reduce the seriousness of the crime, and the offender’s culpability; consequently leading to a potential decrease in sentence.
eg. feeling remorse
aggravating factors
aggravating factors are circumstances about the offence or the offender that increase the seriousness of the crime, and the offender’s culpability; consequently leading to a potential increase in sentence.
eg. use of weapon used during crime
purposes of sanctions
Punishment
A strategy designed to penalise the offender and show society and the victim that criminal behaviour will not be tolerated
Deterrence
The law aims to deter or discourage the offender and others in society from committing the same or similar offences in the future
Denunciation
Designed to convey a message that this type of criminal behaviour will not be tolerated by the courts
Protection
Aims to ensure the safety of society by imposing a sanction that will prevent the offender from harming again.
(removing offender from society to ensure the safety of all members of the community)
Rehabilitation
A strategy designed to reform an offender in order to prevent them from committing offences in the future
equality
all people engaging in the justice system and its processes should be treated in the same way; if the same treatment creates disadvantage or disparity, adequate measures should be implemented to all people to engage in the justice system without disparity or disadvantage.
fairness
all people can participate in the justice system and its processes should be impartial and open.
access
all people should be able to engage with the justice system and its processes on the informed basis.
institutions that enforce criminal law
Victoria police
institutional powers and individual rights
arrest (police can arrest without a warrant if reasonable) (accused have the right to remain silent and have the right to know what they are accused for.)
questioning
court proceedings
imprisonment to the offender
reasons for court hierarchy
Specialisation and expertise
- Courts develop expertise in dealing with the types of cases that come before them
- E.g. the Magistrates’ Court develops expertise in minor cases, such as drink driving.
Appeals
- Parties can appeal to a higher court for a review of the decision if they are not satisfied with the decision in a lower court.
Doctrine of precedent
- The process of law-making through courts depends on a decision being made in a higher court which is binding on lower courts
Administrative convenience
- Because the courts have different jurisdictions to hear different matters, it allows smaller and minor cases (of which there are more) to be heard in the Magistrates’ Court (of which there are a number) and more complex cases to be heard in the County and Supreme Courts
types of sanctions
CCO
fines
imprisonment
jury upholds fairness
juries deliberate on the facts and evidence of the case rather then their own opinions and thoughts to determine the outcome.
criminal jurisdiction
Original jurisdiction of the county court is all serious indictable offences. (original jurisdiction of a court is the power to hear a case for the first time)
Appellate jurisdiction appeals from the magistrate’s court on a point of law.
Koori court (alternative approach)
Drug court (deals with offenders who commit crimes while under the influence, helps support drug habbits.)
It aims to provide an informal atmosphere for sentencing, and to allow representation from the First Nations community in the sentencing process.
(e.g. elders and family members can be present during sentencing.)
doli incapax
The age of criminal responsibility is 10, as a person under the age of 10 cannot be convicted of a crime. This is known as doli-incapax as it is presumed that children between the ages of 10-13 cannot form the mental element (mens rea) of the crime, therefore cannot be convicted. however, people over the age of 14 can be convicted of a crime.
CCO upholds purposes of sanctions
- A CCO is a punishment because it can often impose certain conditions on an offender that are an imposition or an annoyance – e.g. unpaid community work or a curfew
- A CCO can also serve as a specific deterrent as well as a general deterrent
- A CCO can also help to rehabilitate the offender, depending on the conditions imposed (e.g. treatment and rehabilitation condition or alcohol exclusion condition)
- A CCO can also protect society if the offender is kept busy, is prevented from entering certain areas, or must reside at certain places
General deterrence
Specific deterrence
discourages people in general from committing the crime.
aimed at stopping the particular offender who is being sentenced from repeating the offence.
One other Australian jurisdiction
One similarity between Victoria and the Northern Territory (NT) is that both jurisdictions have similar sanctions and sentences. In Victoria, the Magistrates’ Court, County Court and the Supreme Court can all impose the sanctions, such as fines, imprisonment and CCO. Similarly, the NT’s Local Court and Supreme Court can also impose these.
presumption of innocence
is the right of a person accused of a crime to be presumed not guilty until proven otherwise.
presumption of innocence upheld in the JS
when a person is accused of a crime they are entitled to be treated as, and considered to be innocent until a charge against them is proven beyond reasonable doubt. The burden of proof is on the prosecution, as the accused does not need to prove their innocence.
standard of proof
is the degree or extent to which a case must be proven in the court. The prosecution must prove that the accused is guilty beyond reasonable doubt.
summary offence
indictable offence heard summarily
indictable offence
minor crimes heard in the magistrate court by a magistrate. eg drink driving
is presumed to be an indictable offence but less serious by nature in the magistrates court. crime is also a lesser sentence
a serious crime, generally heard and determined in the higher courts before a judge or jury. eg. supreme and county court
eg. murder
defences to crime
self defence
mental impairment
duress
sudden/extraordinary emergency
automation
intoxication
accident
purposes of criminal law
protect individuals, property and society and promote justice
Difficulties faced by First Nations people in the criminal justice system
Cultrural differences
Language differences
Distrust in the criminal justice system
elements of murder
causation (must be direct or unbroken casual link between the accused actions and the death of the victim.) the accused actions must of caused death of the victim or significantly contributed to a persons death.
accused acted with intent to kill or harm someone - (prosecution must prove the accused acted with the guilty mind mens rea.) when the accused committed the crime they either intended to kill someone or knew it was probable to death or seriously injure someone would be a result of their actions.
culpable driving causing death
the act of the death of another person while driving a motor vehicle in a reckless manner while under the influence.
strict liability
responsibility for committing a crime can be established without having to prove there was mens rea.
Accessory
a person who, without lawful excuse, assists a principal offender after a crime has been committed.
also helping the principal offender avoid being arrested, prosecuted, convicted or punished.
principal offender
a person who commits an offence and has committed the acts reus, and has the mens rea when committing a crime.
a person involved in the crime and assist with the planning or encourage another person to commit.
RECKS
characteristics of an effective law
reflects society’s values
enforceable
clear and understood
known to the public
stable
social cohesion
how the legal system assists social cohesion and the protection of rights of individuals
a term used to describe the willingness of members of a society to cooperate with each other in order to survive and prosper.
- The rights of individuals further achieve social cohesion by assisting the police in the investigations by reporting crime and using the legal system to resolve their disputes when rights have been infringed.
relationship between parliaments and courts
Parliament’s role is to make laws for statutory interpretation.
parliament creates statutes, and the courts apply them to cases, so they have a complimentary relationship and must work together.
Another feature of the relationship is the ability of courts to influence parliament, courts can suggest, through the comments made about the case that parliament should create or change the law.
Statute law and common law
A common law is the process of law making through courts is secondary to their role of applying the law and resolving disputes. (court made law)
A statute law is if the government decides a law is needed, a Bill is drawn up and presented to parliament. (Act of Parliament)
precedent
is the reason for the decision (ratio decidendi)
persuasive precedent
binding precedent
is the decision from other courts that dont have to be followed but may be influential in a judge making a decision.
must be followed by all courts lower in the same hierarchy.
therefore, persuasive precedent is influential and binding precedent must be followed.
Explain the technique of reversing a precedent, as used by judges to develop a precedent. (2 marks)
A precedent can be reversed when the same case is taken to a higher court on appeal, and the decision is changed. When a precedent is reversed, it no longer applies.
For example, a case may have been decided in the Supreme Court (Trial Division) and then appealed to the Court of Appeal, where the decision is changed.
