Exam Revision

Question 1

Fairness

Answer 1

Means having fair processes and a fair hearing, referring to the ability for people to have their case heard in an impartial and objective manner, understand court processes, have the opportunity to present their defence and have the opportunity to rebut.

Question 2

Aspects of the criminal justice system that relate to fairness

Answer 2

• The time it takes for a criminal case to be heard and completed, and whether any delays occur
• The availability of legal representation for an accused and for victims
• The opportunity for the accused to present their case and know the evidence that will be brought against them
• Whether laws and court rules have been properly applied

Question 3

Equality

Answer 3

Means people should be equal before the law and have the same opportunity to present their case as anyone else would, without advantage or disadvantage

Question 4

Aspects of the criminal justice system that relate to equality

Answer 4

• The use of a judge and jury when deciding criminal cases
• The way differences are treated
• Whether the system disadvantages certain groups in society
• the availability of legal representation for someone with a low socio-economic background

Question 5

Access

Answer 5

Means that all people should be able to understand their legal rights and pursue their case.

Question 6

Aspects of the criminal justice system that relate to access

Answer 6

• The availability of legal advice and assistance to an accused and victims who may not be able to afford legal representation
• The costs and delays associated with defending a criminal case
• The availability of courts and legal processes
• The formalities associated with a hearing or trial

Question 7

Summary Offences

Answer 7

Are minor criminal offences that are generally heard in the Magistrates Court.

They include offences such as drink driving or minor assaults.

Question 8

Indictable Offences

Answer 8

Are serious criminal offences that are heard by a judge in the County Court of Supreme Court of Victoria.

They include homicide offences and drug trafficking

Question 9

Indictable Offences heard and determined summarily

Answer 9

A serious offence which can be heard and determined as a minor offence if the accused agrees - only if the accused agrees and the court must agree that the offence is appropriate to be heard summarily.

Question 10

The Burden of Proof

Answer 10

The obligation of a party to prove the facts of the case, which lies with the person or party who is brining the case.

It can be reserved with such defences an accused may plead such as self defence.

Question 11

Standard of Proof

Answer 11

The degree or extent to which a case must be proved in court.

In a criminal case, the prosecution must prove the case beyond reasonable doubt.

If the burden of proof is on the accused then the standard of proof is on the balance of probabilities

Question 12

The Presumption of Innocence

Answer 12

The right of a person accused of a crime to be presumed not guilty unless proven otherwise.

It is a principle that is upheld through the system of bail.

Question 13

Other features of the criminal justice system that uphold the presumption of innocence

Answer 13

• An accused has the right to silence
• Police must reasonably believe a person has committed a crime before they can arrest them
• Generally, a person’s prior convictions cannot be revealed until sentencing
• An offender has the right to appeal a wrongful conviction

Question 14

The right to be tried without unreasonable delay (Accused rights)

Answer 14

This means that an accused is entitled to have his or her charges heard in a timely manner, and that delays should only occur if they are considered reasonable. `

Question 15

The right to a fair hearing (Accused rights)

Answer 15

The Human Rights Charter entitles a person charged with a criminal offence to have the charge decided by a competent, independent and impartial court after a fair and public hearing.

The two components of this right is that a competent, independent and impartial court must decide the proceeding or charge and that the hearing must be fair and public, ensuring transparency of the trial processes.

Question 16

The right to trial by jury (Accused Rights)

Answer 16

The jury system provides the opportunity for community participation in the legal process, and for the law to be applied according to community standards.

Question 17

The right to give evidence as a vulnerable witness (Victims rights)

Answer 17

A number of sections in the Criminal Procedure Act aim to protect vulnerable witnesses as the laws recognise that giving evidence in a formal courtroom in particularly sensitive cases may make the victim uncomfortable, therefore possibly jeopardising the evidence that they give and adding to the trauma they may have already suffered.

The protections available under the Criminal Procedure Act include;

• Alternative arrangements that can be made for a witness to give evidence in particular cases
• A declaration that a person is a protected witness
• Special arrangements that can be made for witnesses under the age of 18 years or cognitive impairment

Question 18

Alternative Arrangements (Protection under the Criminal Procedure Act) - Victims Rights

Answer 18

The court can direct alternative arrangements to be made for a witness to give evidence in criminal proceedings for a sexual offence, a family violence offence or an offence for sexual exposure in a public place.

Types of alternative arrangements include:

• The witness may give evidence from a place other than the courtroom by means of closed-circuit television
• A support person may be chosen by the witness to be there while giving evidence
• Only certain persons may be allowed in court when the evidence is being given by the witness

The purpose of these arrangements is to ensure that the witness is protected from unnecessary contact with the accused, and is not placed in a position where they are scared or give unreliable evidence because of the trauma they suffer in doing so.

Question 19

Protected witnesses (Protection under the Criminal Procedure Act) - Victims rights

Answer 19

The court is able to declare at any time that a witness is a protected witness in criminal proceedings for a seuxal or family violence offence.

A protected witness may be the complainant, a family member of the complainant, a family member of the accused, or any other witness the court declares to be a protected witness.

Once this declaration is made, the protected witness must not be cross-examined by the accused, instead the cross examination must be conducted by the accused’s legal representative.

These measures ensure that the protected witness does not have any direct communication with the accused in court.

Question 20

Special arrangements for persons under the age of 18 years or with a cognitive impairment (Protection under the Criminal Procedure Act)

Answer 20

Available in criminal proceedings for a sexual offence, indictable offence involving assault on, or injury or threat of injury to person or offences involving minor assaults where those assaults relate to one of the above two offences.

These witnesses will be allowed to give their examination in chief by way of audio or audio visual recording.

Additional protections available include the accused not being in the same room, the accused not being entitled to see and hear the complainant while giving evidence, no unauthorised person is to be present in the courtroom while evidence is being given or the evidence must be given on closed circuit television

Question 21

The right to be informed about the proceedings (Victims Rights)

Answer 21

The Victims Charter recognises that individuals adversely affected by crime are entitled to certain information about the proceeding and about the criminal justice system.

The Victims Charter requires an investigatory agency to inform a victim, at reasonable intervals, about the progress of an investigation into a criminal offence.

Once a prosecution has commenced, the Victims Charter requires the prosecution to give a victim the following; details of the offences charged against the person, if no offence is charged then the reason why, how the victim can find out the date, time and place of the hearing of the charges, the outcome of the criminal proceeding and the details of any appeal.

Question 22

The right to be informed of the likely release date of the accused (Victims Rights)

Answer 22

A person who is a victim of a criminal act of violence may apply to be included on the Victims Register.

These criminal acts of violence include; rape and other sexual offences, kidnapping, stalking, child stealing, culpable driving causing death etc.

A person who is registered on the Victims Register may receive certain information about an offender who has been imprisoned, including their likely date of realise and their release on parole if applicable.

The victim must be informed of the release date 14 days before.

Question 23

Victoria Legal Aid (VLA)

Answer 23

Is a government agency that provides free legal advice to the community and low cost or no-cost legal representation for people who can’t afford to pay for lawyer.

VLA’s vision is a fair and just society where rights and responsibilities are upheld.

Question 24

Role of VLA

Answer 24

The objectives of VLA are to:

• Provide legal aid in the most effective, economic and efficient manner
• Manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout Victoria
• Provide the community with improved access to justice and legal remedies
• Pursue innovative means to provide legal aid to minimise the need for individual legal services in the community

Question 25

The most critical role of VLA

Answer 25

To provide legal aid to accused people. Legal aid includes legal education and information, legal advice and legal representation.

Legal advice is normally limited to advice and information about the law and how it applies to a particular case.

Legal representation means that VLA will represent the accused in the case. An accused may be provided with one or more of these forms of legal aid through VLA.

Question 26

Types of Legal Aid

Answer 26

Free legal Information
Free legal advice
Free duty lawyer services
Grant of legal assistance

Question 27

Duty Lawyers - The income test (VLA)

Answer 27

An accused meets the income test if they produce to the duty lawyer a current Centrelink benefit card or pensioner concession card. If they don’t have one of these, they may still meet the income test if they sign a declaration which shows they have limited income.

Question 28

Grant of legal assistance - The means test (VLA)

Answer 28

The means test takes into account the person’s income and other assets (eg. house, cars, savings). If the accused person receives more than $360 per week in income, then they aren’t eligible under the means test.

Question 29

Difference between the income test and the means test

Answer 29

The income test is for people who need advice or representation form a duty lawyer on a particular day whereas the means test is for people who are seeking a grant of legal assistance.

Question 30

Victorian Community Legal Centres (CLC)

Answer 30

An independent organisation that provides free legal services to people who are unable to pay for those services.

There are two types of CLCs:

• Generalist CLCs: A community legal centre that provides a broad range of legal services to people in a particular geographical area of Victoria
• Specialist CLCs: A community legal centre that focuses on a particular group of people or area of law

Question 31

Role of CLCs

Answer 31

Provide people with:

• Information, legal advice and minor assistance
• Duty lawyer assistance
• Legal casework services including representation and assistance.

CLC focus on people who need legal assistance the most because of their personal circumstances including disabilities or mental health issues.

Question 32

Type of assistance provided by CLCs

Answer 32

• Basic legal information
• Initial legal advice
• Duty lawyer assistance
• Legal casework

Question 33

CLCs eligibility criteria for assisting an accused

Answer 33

CLC will generally consider the following factors:

• The type of legal matter the person needs help with
• If other assistance is available
• If the person has a good chance of success
• if the accused is able to manage the case without help
• If the CLC is available to assist

Question 34

Committal Proceedings (Pre-Trial Procedures)

Answer 34

Refers to the processes and hearings that take place in the Magistrates Court for Indictable offences.

Takes place in the Magistrates Court in cases where:

• An accused has been charged with one or more indictable offences and
• The accused has pleaded not guilty

A committal proceeding is not used for summary offences

It involves a number of stages and preliminary hearings in the Magistrates acting as a filtering process to test the strength of the prosecution’s case against the accused.

They also give the accused an opportunity to understand the case and to cross-examine.

Question 35

Purposes of Committal Proceedings

Answer 35

• To see whether a charge for an indictable offence is appropriate to be heard and determined summarily
• To decide if there is enough evidence to support a conviction for the offence charged
• To find out whether the accused plans to plead guilty or not guilty
• To make sure there is a fair trial.

Question 36

The Committal Hearing

Answer 36

The main and final stage of the committal proceeding, where the accused has the opportunity to question the prosecution’s witness and make submissions about the charges.

After the evidence and submissions, the magistrates decides whether or not to commit the accused.

Question 37

Strengths and weaknesses of committal proceedings

Answer 37

Strengths:

• Help in saving the time and resources of higher courts by filtering out the weak cases that are unlikely to succeed
• Allows the accused to be informed of the prosecution’s case against them
• Supports and upholds the principle that the accused is innocent until proven guilty and doesn’t need to prove anything at this stage.

Weaknesses:

• The services of a legal representative can be expensive.
• Committal proceedings can add to the delay of getting a case to trial
• Committal proceedings can contribute to the stress and trauma experienced by the accused, the victim and their families.

Question 38

Plea Negotiations (A mean that encourages an early determination of a criminal case)

Answer 38

Refers to pre-trial discussions that take place between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges.

Usually begin when the accused or their lawyer indicates to the prosecution that they are willing to discuss the charges. These negotiations will be conducted on a ‘without prejudice’ basis, meaning that any offers made by either party during the neogtiattions can’t be used against them if the negotiations aren’t successful.

The agreements may be that:

• The accused pleads guilty to fewer charges, with the remaining charges not proceeding
• The accused pleads guilty to a lesser charge

Question 39

Purpose of Plea Negotiations

Answer 39

• To resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed
• To achieve a prompt resolution to a criminal case without the cost, time, stress, trauma and inconvenience of a criminal trial.

Question 40

Appropriateness of Plea Negotiations

Answer 40

• Whether the accused is willing to cooperate in the investigation or prosecution of co-offenders
• The strength of the prosecution’s case
• Whether the accused is ready and willing to plead guilty
• Whether the witnesses are reluctant or unable to give evidence
• The time and expense involved in a trial
• The likelihood of a long trial

Question 41

Strengths of Plea Negotiations

Answer 41

• Saves the cost of a full trial or hearing
• Saves the victims, witnesses, accused and their families from the trauma, inconvenience and distress of the trial process.
• Advantages for the accused in terms of receiving a reduced sentence,

Question 42

Weaknesses of Plea Negotiations

Answer 42

• The community and victims may feel the negotiations have resulted in the accused being ‘let off’ or getting a lenient sentence
• Self-represented accused people may feel pressured into accepting a deal even if the evidence is not strong
• Negotiations do not need to be disclosed and can be held privately therefore lacking transparency resulting in questions.

Question 43

Sentence Indications (A mean that encourages an early determination of a criminal case)

Answer 43

A statement made by a judge to an accused about the sentence they could face if they plead guilty to an offence.

Question 44

Sentence Indications (Summary vs Indictable Offences)

Answer 44

Summary Offences:

• Can be given at any time by the Magistrates Court
• No need for prosecution’s consent
• Indication as to whether sentence of imprisonment or sentence of another type is likely to be imposed

Indictable Offences:

• Accused must apply for sentence indication
• Prosecution must consent
• Indication as to whether immediate sentence of imprisonment is likely to be imposed

Question 45

Purposes of Sentence Indications

Answer 45

To provide the accused with some clarity about the likely sentence that will be imposed, so that they can make an early decision to plead guilty and alleviate the fear that they will receive a custodial sentence.

Providing the accused with a sentence indication can also save the time, costs, resources, stress and inconvenience.

Question 46

Appropriateness of sentence indications

Answer 46

• Whether the accused has applied has applied for a sentence indication
• For indictable offences, whether a sentence indication has already been given
• The type of offence and the court hearing the charges.
• Whether there is sufficient information for the judge or magistrate to make an indication

Question 47

Strengths of Sentence Indications

Answer 47

• It can result in the early determination of the case
• It can save money and resources
• It can be conducted in open court
• The accused is not bound to accept the indication and plead guilty

Question 48

Weaknesses of Sentence Indications

Answer 48

• The judge is not obliged to grant the accused’s request for the sentence indication
• Legislation allows the court to close a proceeding to the public, lacking transparency about what occurred
• The sentence indication may be given before all the facts have been admitted or proved.

Question 49

Specialisation of Courts

Answer 49

The Supreme Court (Court of Appeal) specialises in determining criminal appeals in indictable offences, and has particular expertise in sentencing principles

The Supreme Court (Trial Division) hears the most serious indictable offences and will have developed its own specialisation in those areas.

The County Court and the Supreme Court have developed expertise in hearing more complex cases involving indictable offences

The Magistrates Court is familiar with cases involving summary offences that need to be dealt with quickly and efficiently.

Question 50

Appeals (Reason for a court hierarchy)

Answer 50

If there are grounds for appeal, a party who is dissatisfied with a decision in a criminal case can take the matter to a higher court to challenge the decision.

The system of appeals provides fairness and allows for any mistakes made in the original decision to be corrected.

Question 51

Examples of grounds for Appeal in a criminal case

Answer 51

• Appealing on a question of law
• Appealing a conviction
• Appealing because of the severity of a sanction imposed

Question 52

The Judge and their responsibility

Answer 52

The Judge must act impartially, not favour any side, and must have no connection with the prosecution or the accused.

Their several responsibilities include:

• Managing a trial, where the Judge must make sure that correct court procedures are followed so that both parties have an equal opportunity to present their case and has powers to give directions and make orders during the trial, including how evidence is to be given or whether there will be separate trials.
• Decide on admissibility of evidence, where the Judge is responsible for deciding which evidence is to be permitted and can exclude evidence from the trial. The evidence must be relevant to the issues in dispute, and must not be hearsay evidence and evidence of an opinion.
• Attend to jury matters, where at the start of a trial the judge will provide the potential jurors with information about the trail and the accused to make sure that any person can be excused from being a juror if something about the case will affect their ability to act as a juror.
• Giving directions to the jury and summarising the case to them, explaining the law involved, identifying the evidence that will assist the jury and refer to the way the parties have put their cases.
• Handing down sentences if a jury finds an accused guilty or if the accused pleads guilty.

Question 53

The Jury, their composition and responsibilities

Answer 53

A jury is not used for sentencing. The Criminal jury is the decider of the facts.

A criminal jury is comprised of 12 jurors who are chosen randomly.

Responsibilities of the jury include;

• Be objective, unbiased and bring an open mind to the task, putting aside any prejudices or preconceived ideas. A jury member must have no connection with any of the parties, and must decide whether the accused is guilty or not guilty based on facts and not on their own biases.
• Listen to and remember the evidence
• Understand directions and summing up where the jury is required to listen to the directions and the summing up given by the judge and can ask for an explanation about any legal point they don’t understand.
• Deliver a verdict where the jury must take part in the deliberations in the jury room and form an opinion about whti party’s story or arguments they believe. The jury must make a decision on the facts of the case. A criminal jury must aim to reach a unanimous verdict, if not, then the court may accept a majority verdict unless the accused is charged with murder, treason or certain drug offences.

Question 54

The parties and their responsibilities

Answer 54

In a criminal trial, the parties have the following responsibilities:

• Give an opening address where the prosecution must give a statement to the jury on the prosecution case before any evidence is given in the trial. The prosecutor can only speak to evidence that has been seen by the accused. If the accused is legally represented, their lawyer must present to the jury a response to the prosecution’s opening address.
• Assist the judge in jury matters where both parties assist in empanelling the jury. Both parties have the ability to challenge potential jurors, with or without reason.
• Present the party’s case. The prosecution has the burden of proof and needs to present evidence to prove the facts whilst there is no obligation on the accused to give evidence or call any witnesses.
• Give a closing address, where the oriseyctuib addresses the jury by summarising the evidence after the close of all evidence and before the closing address of the accused.
• Make submissions about sentencing

Question 55

The Legal Practitioners

Answer 55

On behalf of the parties, they undertake the role of preparing and conducting a case. In a criminal trial, prosecutors are legal practitioners.

The most important duty they are subject to is the duty to the court and the administration of justice. They cannot mislead or deceive the court, they can’t place incorrect facts before the court, and they must be honest about the law set out in previous cases.

There are two types of legal practitioners that an accused is usually represented by at trial; the solicitor and the barrister.

Part of the role of the solicitor before trial is to draft documents, communicate with the other party and the court, prepare the case, research the law and develop the evidence, and instruct the barrister.

The main role of the barrister at trial is to present the defence evidence and argue the accused’s case on their behalf.

Question 56

Responsibilities of the legal practitioners

Answer 56

• Be prepared
• Comply with their duty to the court
• Present the case in the best light possible

Question 57

The purposes of Sanctions

Answer 57

• Rehabilitation
• Punishment
• Deterrence
• Denunciation
• Protection

Question 58

Rehabilitation (Purposes of Sanctions)

Answer 58

A strategy designed to reform an offender in order to prevent them from committing offences in the future.

Aims to assist offenders to change their attitudes and behaviour with the goal of preventing them from reoffending in the future.

This can be achieved by giving a community correction order (CCO) to encourage rehabilitation rather than sending offenders to prison, which can help by requiring offenders to participate in skills training.

However there are rehabilitation programs that are carried out within prisons, such as life skills programs such as drug treatment and anti violence programs and specific employment, education and training programs.

Question 59

Punishment (Purposes of Sanctions)

Answer 59

A strategy designed to penalise the offender and show society and the victim that criminal behaviour will not be tolerated

It gives the community some revenge against the offender.

The purpose of punishment is combiner with another purpose such as deterrence in most cases.

Question 60

Deterrence (Purpose of Sanctions)

Answer 60

A process by which the court can discourage the offender and others in the community from committing similar offences.

• General deterrence, aimed at deterring the entire community from committing similar offences
• Specific deterrence because they discourage the offender form committing the same offence again

Question 61

Denunciation (Purpose of Sanctions)

Answer 61

A process by which a court can demonstrate the community’s disapproval of the offender’s actions

Question 62

Protection (Purpose of Sanctions)

Answer 62

A strategy designed to safeguard the community form an offender in order to prevent them form committing further offence

Question 63

Fines - Type of Sanctions

Answer 63

A sanction that requires the offender to pay an amount of money to the state.

The sentencing act expresses fines in levels (1-12). Level 2 is the highest level, and level 12 is the lowest level.

Under the sentencing act, when fixing a fine a court must consider the financial circumstances of the offender and the nature of the burden that payment will impose.

The court may also consider any loss or destruction of, or damage to, property suffered by a person as a result of the offence and the value of any benefit to the offender as a result of the offence.

Question 64

Sentencing purposes of fines

Answer 64

Fines serve to punish offenders by requiring them to pay money to the state. The financial circumstances of the offender are important because the amount of the fine needs to be high enough to act as a punishment.

Fines can act as a specific deterrence to discourage an offender from reoffending but can also act as a general deterrence to other members of the public who know they will have to pay a fine if they are caught committing a similar act.

Fines can also act as a from of denunciation. A court may give a very high fine to a person or an organisation as a way of denouncing certain actions and showing strong disapproval.

Question 65

The ability of fines to achieve their purpose

Answer 65

Some factors to consider when determining whether a fine can achieve its purposes include:

• The wealth of the offender
• The ability to denounce the crime
• Whether a fine is sufficient to act a general deterrent for the whole community
• Whether there is a more appropriate sanction

Question 66

Community Correction Orders (CCO) - Types of Sanctions

Answer 66

A supervised sentence served in the community that includes special conditions such as treatment of the offender and unpaid community work for a number of hours.

Gives offenders the opportunity to stop their criminal behaviour and undergo treatment or take part in educational, vocational or personal development programs.

Question 67

Conditions attached to CCOs

Answer 67

• Must not commit another offence punishable by imprisonment during the term of the order
• Must report to a specified community corrections centre within two working days of the order coming into force
• Must report to and receive visits from a community corrections officer
• Must notify an officer of a change of address
• Must not leave Victoria without permission

Question 68

Sentencing purposes of CCOs

Answer 68

To punish the offender through conditions such as requiring the person to receive visits form a community corrections officer or obtaining permission before leaving Victoria acting as a imitation on the freedom of the offender.

Conditions such as an alcohol exclusion and treatment and rehabilitation aim to rehabilitate the offender by treating the underlying causes of the offending.

Question 69

The ability of CCOs to achieve their purposes

Answer 69

• Whether there is a condition that will achieve the right purpose for the particular type of offending
• The most appropriate condition to be imposed and whether the court imposes that condition
• Whether the offender will comply with the conditions
• Whether a CCO properly protects the community where protection is a relevant purpose

Question 70

Concurrent and Cumulative Sentences

Answer 70

A concurrent sentence runs at the same time as another sentence.

A cumulative sentence is served straight after another sentence.

Question 71

Aggregate Sentences

Answer 71

If an offender has been convicted of multiple, related offences, the court has the option of imposing an aggregate sentence that applies to more than one sentence, rather than separate sentences each offence.

Question 72

Indefinite Sentences

Answer 72

If a person is convicted by the Supreme Court or the County Court of a serious offence, the court may sentence them to an indefinite term of imprisonment.

The court can only impose an indefinite sentence on an offender if it is satisfied to a high degree of probability, that the offender is a serious danger to the community due to their character, past history, health, mental condition and/or the nature and gravity of the serious offence.

Question 73

Purposes of Imprisonment

Answer 73

Imprisonment removes the offender from society as a punishment for offending against society and as protection for society.

There is a chance that imprisonment may lead to rehabilitation because of the various programs offered to prisoners, but it is more likely to lead to further crimes because of the influence of other prisoners and the difficulty of getting back into a normal life.

Courts can also impose long sentences on offenders by way of showing disapproval of the acts committed (denunciation).

Imprisonment is likely to act as a general deterrence in that most people would be deterred from committing a crime by the possibility of going to prison.

It may also act as a specific deterrence for a particular offender who does not want to go to prison again.

Question 74

The ability of imprisonment to achieve its purposes

Answer 74

• The rate of recidivism and whether imprisonment is effective
• The availability of drugs in prisons
• The exposure of offenders to negative influences
• Whether the offender will be offered appropriate opportunities to rehabilitate and whether they will take advantage of those opportunities

Question 75

Aggravating Factors

Answer 75

Circumstances considered in sentencing that can increase the seriousness of the offence or the offender’s culpability resulting in a more severe sentence.

Examples of aggravating factors include:

• The use of violence, explosives or a weapon when committing the offence
• The nature and gravity of the offence
• Any vulnerabilities of the victim
• The offence taking place in front of children, or seen by them
• The offence occurred while the offender was on a CCO or on bail

Question 76

Mitigating Factors

Answer 76

Circumstances considered in sentencing that reduce the seriousness of the offence or the offender’s culpability and lead to a less severe sentence

Examples of Mitigating factors include:

• The offender was provoked by the victim
• The offender showed remorse
• The offender has no record of previous convictions
• The offender pleaded guilty early

Question 77

Guilty Pleas

Answer 77

The Sentencing Act allows the court to take into account a guilty plea when sentencing an offender for a number of reasons.

First, if the offender knows that an early guilty plea is taken into account in sentencing, it may encourage them to plead guilty rather than going to trial.

Second, an early guilty plea can have significant benefits to the criminal justice system by avoiding the time, expense and stress of a trial.

Question 78

Victim Impact Statements

Answer 78

A victim impact statement contains particulars of any injury, loss or damage suffered by the victim as a direct result of the offence.

Its purpose is to assist the court when it is deciding on the sentence and allows victims to have their say in the sentencing process.

Question 79

Costs of Legal Representation - Costs Factors

Answer 79

The costs of legal representation:

• While everyone has the right to legal representation not everyone can afford it.
• Greatest impact tends to be on the accused, who is likely to need legal representation and because our criminal trial system relies on the parties presenting their own case before the decider of facts.
• Victims can also be impacted as they may require legal assistance to assert their rights, make contact with investigative and prosecution agencies and understand procedures.

Question 80

The Principles of Justice (Cost of Legal Representation)

Answer 80

Fairness: If an accused person cannot properly participate in a hearing, it may lead to an unfair result such as lack of familiarity with the language of criminal trials, lack of knowledge of courtroom facilities and/or lack of understanding of procedure.

Equality: If parties cannot afford representation, they are at risk of not being treated as equal before the law. For example they might come up against skilled and experienced prosecutors.

Access: An accused who cannot pay for legal representation may have trouble accessing the courts and mechanisms that are used to determine the criminal charges. This may result in a guilty plea to a crime the accused may have not committed only because they do not have the means or ability to defend the case.

Question 81

The Availability of Legal Aid (Cost Factors)

Answer 81

Due to a lack of funding, a large part of the community is not eligible for legal aid, and CLCs are stretched in their ability to offer legal aid to people affected by crime, resulting in the denial of access to legal services.

The lack of funding for legal aid agencies such as VLA and CLCs can result in those agencies tightening their criteria as to who is eligible for legal aid.

Legal aid is currently available to less than 8 per cent of Australia’s population

Question 82

The Principles of Justice (The Availability of Legal Aid)

Answer 82

Fairness:

• Legal Aid can assist a person to understand the criminal justice system, obtain legal advice and legal representation ensuring an accused receives a fair trial or hearing.
• Limits on access to free legal services can impact an accused’s ability to present their case in the best possible light and receive a fair hearing, leaving them to represent themselves.
• The lack of legal aid can also impact on victims and their families who want to assert their rights in the criminal justice system, understand criminal processes.

Equality:

• Legal aid aims to ensure that an accused is not disadvantaged because of their lack of legal representation
• An accused who is not eligible for legal aid is at risk of not being treated the same as the prosecution
• A victim or their families who cannot afford legal representations may also be at a disadvantage by not being able to assert or understand their legal rights at the same level as someone who has private representation

Access:

• VLA and CLCs aim to ensure there is access to justice
• A party who can’t get any form of legal aid through these institutions is at risk of not being able to access information, legal help, advice, assistance or representation and may not be able to understand the processes involved.