Exam Revision Unit 1 AOS 3 Flashcards
The principles of justice
Fairness: all people can participate in the justice system and its processes should be impartial and open
Equality: all people being treated the same before the law, with equal opportunity to present their case, with substantive equality sometimes being used
Access: an individual’s understanding of their legal rights and ability to pursue their case, and being engaged with and informed of the criminal justice system
Describe the institutions that enforce the law
Police: directly responsible for maintaining law and order in the community to promote a safe, secure, and orderly society. Responsible for the prevention, investigation, and prosecution of crime. e.g Vic Police, Australian Federal Police
Delegated bodies: responsible for the investigation, prosecution and enforcement of law in their particular area. e.g local councils, Vic Roads
The role of Victorian Courts in a criminal trial
- Determine a criminal case
- providing specialisation and expertise
- managing the case
- allow for facts to be presented to jury
- hears appeals - Imposing a sanction
- if found guilty, impose sanction
- consider all relevant factors when sentencing
The role of a jury in a criminal trial
The jury is an impartial decision-making body that listens to the facts of a case and determines the guilt of the accused to the criminal standard of proof ‘beyond reasonable doubt’. The jury ensures community involvement in the criminal justice system and ensures the principles of justice are upheld, meaning that fair processes are in place and clear language is used to promote equality and access.
Imprisonment
Deprivation of a person’s liberty by removing offender from society. Harshest punishment.
- Punishment: loses contact, loses income, harsh environment where movement is restricted
- Deterrence: harsh environment discourages from committing similar offence. In reality rates of recidivism is high in Vic
- Protection: offender can no longer pose a significant risk to the community’s welfare. Not a long-term protection, as they will be released.
- Denunciation: Most harsh sanction therefore court’s condemnation is communicated. Longer sentence demonstrates more condemnation.
- Rehabilitation: provide rehabilitation programs to help offenders address the underlying reason for their offending. In reality need for programs far exceed those provided.
Fines
Monetary penalty required to be paid by the offender.
Punishment: paying money to state instead of using it for personal purposes penalises offender. However, legislated maximum penalty many not be high enough to punish wealthy offenders.
Deterrence: financial loss discourages. Again, legislated maximum penalty may not be enough to discourage wealthy offenders.
Protection: due to deterrent effect on people’s behaviour fines achieve protection. However, community protection is not directly achieved by a fine, as this sanction does not remove offender from community or restrict their movement.
Denunciation: very large fine communicates disapproval. However, maximum fine may not be enough to communicate condemnation.
Rehabilitation: not achieved by fine. Underlying cause of offending are not addressed.
Community Correction Order
A flexible order that allows the offender to serve out their sentence in the community.
Punishment: restricts offender’s movement and actions. Inconvenience of completing unpaid community work provides retribution. However, if impact of offence is severe, CCO may not be enough causing unjust outcomes.
Deterrence: judge has flexibility to set CCO terms to discourage. Also imprisonment is a deterrent. Also community will not want it. However, not as sever as imprisonment therefore may fail general deterrent.
Protection: can be restricted from attending certain places or contacting certain people thus promoting community safety. However, offender remains in community, and there is no guarantee the adhere to conditions of CCO, therefore not promoted to same extend as imprisonment.
Denunciation: denunciation is not achieved by CCO, not severe enough to send message.
Rehabilitation: can include treatment for mental health issues and drug or alcohol addiction. However, it is contingent on the offender’s willingness to participate, so it will not always be successful.
Factors considered in sentencing
Mitigating factors (reduce seriousness of offence)
- provocation rather than premeditation
- offender’s age and criminal history
- general prospects of rehabilitation
- genuine remorse
Early guilty plea
Aggravating factors (increase seriousness of offence)
- planned
- violence and weapons
- hate crime
- criminal history
- outnumbering victim
- particularly vulnerable victim (child or senior)
Victim Impact Statement
Alternative approaches to sentencing
Drug Court: offers DATO
Koori Court: offers more inclusive and culturally adjusted sentencing process
Diversion Programs: offers low-level offenders the opportunity to avoid a criminal record
Strengths of the Victorian Courts in achieving fairness
- Judges and magistrates within the criminal justice system are impartial and independent, and determine the outcome of a case in an unbiased manner to ensure the provision of a fair trial.
- Judges and magistrates have specialised knowledge and skills that enable them to deliver consistent, fair outcomes.
- Appeals are available to everyone in criminal cases so long as grounds can be established. This ensures errors are corrected, achieving fairness for parties.
- When courts set precedent, greater consistency and fairness is provided when delivering a final verdict to parties.
Limitations of the Victorian Courts in achieving fairness
- In some cases, the accused may be unable to appeal an outcome to a higher court if they can’t afford the associated fees. Therefore the ability of a party to receive a fair criminal outcome is limited if the lower court does not deliver a just outcome.
- Delays exist and cause backlogs in the criminal justice system.
- In an unfair precedent was established in a more superior court, a lower court may be forced to follow the legal principle and, consequently, deliver an unjust verdict to an accused.
Strengths of the Victorian Courts in achieving equality
- Court rules and procedures are enforced by judges and magistrates, who ensure they apply equally to both parties.
- Both the prosecution and the accused have the right to appeal the outcome of a case, provided they have valid grounds.
Limitations of the Victorian Courts in achieving equality
- Appeals are not equally accessible to the prosecution and the accused due to their high cost. This can cause socioeconomic discrimination if the accused is unable to appeal an unjust decision as a result of their financial position.
- The formality of the courts and its procedures may cause an accused to feel overwhelmed and stressed. This may prevent them from presenting their evidence in a confident manner, therefore providing them with unequal footing in the case.
Strengths of the Victorian Courts in achieving access
- In certain serious criminal trials, parties are awarded the right to a trial by jury. This enables their case to be heard by members of the public, providing them with access to a diverse range of perspectives when determining the outcome of the case.
- The court hierarchy promotes access to justice by prodiving an appeal process that facilitates the review of judicial decisions. Apeals ensure mistakes in the criminal justice system are corrected and provide access to a review from judges of a superior court.
- The specialised knowledge and expertise of court judges and magistrates enhance access to justice as it allows criminal cases to be resolved in a more efficient, consistent way.
Limitations of the Victorian Courts in achieving access
- Grounds for appeal must exist. Therefore, some criminal cases may be ineligible for a review by a higher court, meaning access to appeals can be limited.
- The cost of engaging legal representation for the appeals process can be inaccessible to those who do not have the financial means. This can decrease a party’s access to the criminal justice system.
- Appeals can result in more delays for the already overburdened courts, therefore limiting access to the timely delivery of justice.
- An accused may struggle to understand the criminal processes and procedures of the courts if they have no prior knowledge, therefore limiting their access to justice.
