Legal outcome - sanctions Flashcards
Fairness
Having fair processes and fair hearing. This means that the parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events and pre-hearings and hearing process should be fair and impartial.
Equality
People should be equal before the law and have an equal opportunity to present their case as anyone else, without advantage or disadvantage.
Access
All people should be able to understand their legal rights and pursue their case.
Institutions that enforce criminal law - Police
Victorian police: Victorian Police Act 2013 (VIC)
Role to serve the Victorian community and to uphold the law to promote a safe, secure and orderly society. Is the main institution that enforces criminal law relating to indictable offences and most summary offences in Victoria.
Their role in enforcing criminal law
- Talk to victims or witness about what happens
- Question possible suspects
- Examine the scenes of crime / investigate
- Gather and look for evidence
- Conduct searches of people or properties
- Arrest accused persons
- Charge people with the offences that most fit the crime
Institutions that enforce criminal law - delegated bodies
An authority or agency given power by parliament to make and/ or enforce laws.
Given power by the Victorian parliament
- Vicroads: has the authority to prosecute certain road and traffic offences. It can also issue infringement notices for breaches of road rules.
- Local councils: govern at a local level and have the power to enforce local laws where a local law makes an act or an omission a criminal offence.
Criminal Jurisdiction of the Victorian Courts
Jurisdiction: the lawful authority (i.e power) of a court, tribunal or other dispute resolution body to decide legal cases. Jurisdiction refers to the right or power of a court to apply the law and hear cases.
Original Jurisdiction: the power of the court to hear a case for the first time (i.e not on appeal from lower a court)
Appellate Jurisdiction: the power of a court to hear a case on appeal.
The role of the jury in a criminal trial
The Jury system: is sometimes used to determine whether a person is guilty of an offence. Criminal juries are used in the original jurisdiction of the County Court and Supreme Court, to determine the guilt of an accused person who is charged with an indictable offence.
Not used in magistrate court or appeals, or if an offender pleaded guilty.
Trial by Jury: a type of trial by peers in which an imperial group of randomly selected people hears evidence and hands down a verdict (i.e a decision)
A jury of 12 is compulsory in criminal cases heard in County Court and Supreme Court, where the accused pleads not guilty.
Individuals aged 18 years or older are qualified
Roles of Criminal Jury:
- Listen to all evidence
- Concentrate during the trial
- Piece the evidence together and decide whether the accused is guilty or not.
Strengths and Weakness of the jury
Strength:
- allows for the community to be involved in the legal system (confidence)
- the jury system ensures fairness by requiring the jury to deliberate based on the evidence and the facts, not on there own independent research or investigation.
Weakness:
- deliberate behind closed doors/ do not give reasons for their decisions
- jurors may have biases that may play a role in their deliberations
- influenced by skilled lawyers.
The purposes of sanctions: Punishment
One purpose of a sanction, designed to penalize (punish) the offender and show society and the victim that the criminal behaviour will not be tolerated. Imprisonment and deprivation of freedom are the ultimate punishment.
The purposes of sanctions: Deterrence
The law aims to deter or discourage the offender and others in society from committing the same or similar offence in the future by imposing a penalty that is severe enough that the offender and others can see the serious consequences of committing the crime.
- General deterrence: one purpose of a sanction, designed to discourage others in the community from committing similar offences.
- Specific deterrence: one purpose of a sanction, designed to discourage the offender from committing similar offences.
The purposes of sanctions: Denunciation
One purpose of a sanction, designed to demonstrate the community’s disapproval of the offender’s actions. Designed to convey the message that this type of criminal behaviour will not be tolerated by the courts.
The purposes of sanctions: Protection
One purpose of a sanction, designed to safeguard the community from an offender by preventing them from committing a further offence (e.g imprisoning the offender). This purpose seeks to ensure the safety of society by imposing a sanction that prevents the offender from harming again. Imprisonment = to remove them from society. A horrendous crime, a lack of remorse, and an offender’s callous attitude indicate that the person should be kept out of society for as long as possible
The purposes of sanctions: Rehabilitation
One purpose of a sanction, designed to reform an offender in order to prevent them from committing offences in the future. To treat the offender. It is in society’s interests to help offenders change their ways, otherwise crime rates and prison costs will escalate. Providing opportunities in form of education, training, education, assistance and support (eg counselling). The legal system hopes that offenders grasp the chase of a better future, change their offending ways, and become law-abiding citizens.
types of sanctions- fines
A sanction that requires the offender to pay an amount of money to the state. A monetary penalty that is paid by the offender to the state of Victoria (not the victim). Fines are expressed in penalty units, ranging from on penalty unit to 3000 penalty units.
A fine can be imposed in addition to another sentence, a court considers:
- The financial circumstances of the offender
- Any loss or destruction of, or damage to, property suffered as a result of the offence
- The value of benefit received by the offender from the offence
- Any forfeiture, compensation or restitution order imposed (being orders that may have already resulted in the offender paying compensation or handing over property)
Purpose of fines - to punish the offender, deter the offender from committing crimes any further, and deter the general community.
types of sanctions - Community Correction Order (CCO)
A non-custodial sanction (i.e one that doesn’t involve a prison sentence) that the offender serves in the community, with conditions attached to the order. The sanction requires them to comply with certain basic conditions that are attached to the order. In addition, the offender is required to comply with at least one other ‘optional’ condition, such as performing unpaid community work.
A CCO can be imposed if:
- The offence is punishable by more than five penalty units
- The offender consents to the making of a CCO
Purpose of CCO - is a punishment because often impose certain conditions on an offender that are an imposition or an annoyance. CCO can also serve as a general deterrent.
types of sanction - imprisonment
The most serious sanction - that involves removing the offender from society for a stated period of time and placing them in prison. Each offence has a maximum penalty that can be imposed for that offence.
Parole - the supervised and conditional release of prisoner after the minimum period of imprisonment has been served. Court must fix a non-parole period. The offender must prove to the Parole Board that they are worthy of serving the rest of their sentence in the community.
If the offender is guilty of more than one offence, more than one sentence may be imposed, and therefore more than one term of imprisonment may be imposed. The court needs to specify whether the terms of imprisonment is concurrent/ cumulative. Concurrent - (served at the same time) or Cumulative (additional time).
Purposes Imprisonment - serves to both protect the community and punish the offender.
Factors considered by judges in sentencing
Aggravating factors: facts or circumstances about an offender or an offence that can lead to a more severe sentence.
Mitigating factors: Facts or circumstances about the offender or the offence that can lead to a less severe sentence. Like under duress, drugs
Factors that may the offender when submitting to the court add emphasises for being important consideration:
Nature and gravity of offence: if the offending is on the low end of the scale, then this may persuade the court that a sentence much less than the maximum penalty should be imposed.
Early guilty plea: if pleaded guilty may impose a lesser sentence. The earlier in the process the guilty plea is submitted the better.
Lack of prior offending: if not offended before, considered one of the incidents.
Remorse: can be demonstrated through an early guilty plea, apologies to victim, early confessions of admissions, full cooperation with investigative agencies agencies (eg the police)
Aspects of sentencing practices in Victoria
Vic has seen a reduction in the number of sentences in court in Australia. Vic parliament has limited the ability to impose sanctions such as a CCO instead of imprisonment, leaving imprisonment as the only option. Changes are to be tougher on the offender, who commit serious offences. There are therapeutic approaches to sentencing for some crimes by utilizing courts such as the Drug Court/ Koori Court.
Sentencing options in Victoria
- Dismissals, discharges and adjournments
- Fines
- Community-based orders
- Youth justice centre orders and youth residential center orders
- Intensive correction order
- Drug treatment order
- Combined custody and treatment orders
- Hospital security orders
- Imprisonment
Other sentencing practices in Victoria/ other courts
Therapeutic justice: a method used in the criminal justice system to deal with offenders in a way that addresses the underlying causes of crime and seeks to provide offenders with support to avoid further reoffending.
• alternative approaches to sentencing, such as the use of the Drug Court
Drug Court: a specialist court that sentences offenders to a drug treatment order where drugs or alcohol contributed to the commission of the offence.
The treatment and supervision part - this consists of core conditions and program conditions
The custodial part - impose a sentence of imprisonment.
Koori Court: a division of the magistrates’ court, children’s court and county court that (in certain circumstances) operates as a sentencing court for indigenous people. Imposing offenders or sentencing them without considering the causes of crime - is not effective in changing behaviour and keeping communities safe. ‘Tough stance on crime’ may not be appropriate for everybody, imprisonment is not an effective way of reoffending
Aspects of sentencing practices in Norway
Sentencing in Norway
- Low crime rate
- Has one of the lowest recidivism rate in the world - 20 percent
- Focuses on rehabilitation and restorative justice (heal and put things right) and less on punishment. Believes that prisons do not work.
- Death penalty is prohibited
- To live their life as if they were living on the outside because removing freedom is enough of a punishment. -
- To replicate life from the outside.
Sentencing options in Norway
- Preventative detention (one the mini sentence has been served 21 years, an assessment is made about the offender, sentence can be increased by 5 years)
- Imprisonment (up to 21 years, where some can be served at home or suspended)
- Community sentence (community service)
- Fines (consideration on financial position)
- Loss of rights
