sanctions Flashcards
principles of justice - fairness
To treat without fear or favour, achieved in the crime justice system when objective legal processes are in place and all parties receive a fair and unbiased hearing
principles of justice - equality
criminal justice system aims to achieve equality by ensuring all are teated with the same status, rights and opportunities
principle of justice - access
to ensure all have the means or opportunity to access the legal system and attain dispute settlements
fairness examples
- regulation of police and the right to silence
- entitlement of the accused to know details
- right to trial before independent judge + unbiased jury
equality examples
- ## both parties have equal chance to present their case
access examples
- ability to get legal advice in a language they understand
- legal rep/aid if financially disadvantaged
- attend a court close to their place of residence
enforcement of criminal law
if a crime is committed, the law must be enforced so that the individual company can be brought to justice
Victoria police
main institution which enforces criminal law relating to both indictable and summary offences
Role
- talk to witnesses and victims
- question suspects
- examine scene of crime
- conduct searches
- arrest accused
Australia Federal police
- investigate and enforce criminal laws that have a federal aspect
focus areas - transnational
- cybercrime/cyber safety
- child protection
- countering terrorism
Victorian sheriff’s office
- sheriff = officer of the Supreme Court and delegates their power to officers, who represent them
- enforces warrants and orders issued by the courts
examples of actions - wheel clamp on vehicle
- prevent renewal of registration
- seize and sell assets
- arrest the person
australian border force
power to enforce customs, immigration and border patrol
functions
- facilitate the lawful passage of people and goods
- investigating - compliance and enforcement
- patrol air and seaports
delegated body
- also known as subordinate authority
- authority or agency given power by parliament to make and/or enforce laws
- acts passed by parliament that delegates this power is known as an ‘enabling act’
- known as ‘delegated legislation’, referred to as ‘regulations’ - opposed to ‘act of parliament’
examples of delegated bodies
CTH
- Australian taxation office - investigates fraud offences and prosecution
- Australian security and investments commission - investigates company law
VIC
- consumer affairs vic - consumer trading laws
- work safe vic - OHS laws
strength of delegated bodies
- more efficient for bodies - expertise in an area to make laws relating to that area
- eases the workload of parliaments - don’t have time to debate every law required in the community
- changes can be implemented faster - more responsive to the changes in society occurring in their land of expertise
- recognises different geographic areas have special requirements - local areas etc
weaknesses of delegated bodies
- lack of democracy: unelected members making decisions
- lack of publicity: no means of publicity delegations, difficult for public to know who made laws
- overuse : 262 in 2011
- Henry VII clauses: delegated body to amend or repeal acts or parliament that are inconsistent with legislation.
- confusion: May arise if more than one delegated body regulates a particular area
checks for delegated bodies
- checks and safeguards exist to control delegated bodies
- parliament retains ultimate control and responsibility for delegated bodies
- ensuring legislation is coherent and relevant
- regular reviews of legislation
EXAMPLES - delegated legislation must be tabled in parliament
- parliamentary committees (cth=senate scrutiny of bills committee)
- sunset clause= in vic all delegated legislation is invalid after 10 yrs, unless extended
- ombudsman = independent public service that investigates complaints abt decisions
- court challenged - delegated legislation can be challenged in SC
individual rights and institutional powers: arrest
INSTITUTIONAL
- can arrest w/o warrant a person found to be committing offence to ensure public order
- can arrest w/o warrant any person reasonably believed to have committed indictable offence
- use reasonable force in arrest
INDIVIDUAL
- refuse to attend a police station unless under arrest
- know reason they are arrested + proceedings
- right to silence
- right to be tried w/o unreasonable delay
individual rights and institutional powers: questioning
INSTITUTIONAL
- if in custody, police possess power to question that person in reasonable time
INDIVIDUAL
- informed on right to silence and proceedings
- able to communicate w friends/relative/legal aid
- interpreter
individual rights and institutional powers: bail
INSTITUTIONAL
- prosecutor can oppose bail
- bail not given where murder charge or if ‘unacceptable risk’
- can impose conditions on bail eg report to a police station
INDIVIDUAL
- entitled to bail, subject to certain certain conditions within 24 hrs of being brought in
- entitled during postponement or waiting
- entitled if case has been adjourned or awaiting sentence
individual rights and institutional powers: court proceedings
INSTITUTIONAL
- power of prosecution to prepare case, speak w witnesses and get evidence
- commence proceedings against accused for purpose of obtaining a guilty verdict and punishing the offender
INDIVIDUAL
- have case heard by independent court - fair and public hearing
- presumption of innocence
- informed promptly of nature and reason for charge
- time to prepare defence
- can cross examine witnesses
- legal aid
individual rights and institutional powers: imprisonment
INSTITUTIONAL
- power to imprison person for a period of time
- search/examine, seize contraband + medical tests
- corrections can also open, inspect and read mail sent to a prisoner
INDIVIDUAL
- open air for an hour per day
- adequate food
- right to practice a religion
original jurisdiction of the magistrates court
-summary offences
(traffic, drunk/disorderly)
-committal proceedings
- intervention order applications
-indictable offences heard summarily
appellate jurisdiction of magistrates court
not applicable
original jurisdiction of county court
majority of serious crime cases
- major burglaries
- drug offences
- sexual assault
- armed robbery
-arson :(
appellate jurisdiction of county court
appeals against conviction and sentence from magistrates court
- by DPP on leniency
- childrens court
og jurisdiction of SC TD
-most serious crime cases
- murder and treason
- application for bail for these cases
- judicial reviews
ap jurisdiction of SC TD
appeals on a point of law from the magistrates court
og jurisdiction of SC COA
not applicable
ap jurisdiction of SC COA
- power to hear and determine appeals from county courts and SC TD
og jurisdiction of high court
federal matters (criminal)
ap jurisdiction of high court
appeals from a single judge of the high court
appeals from the full court of supreme court
specialist courts - drug court
- division of magistrates court, deals w offenders who have a drug problem
- offenders must plead guilty to crime committed under influence of drugs or to support drug habit
- crimes can’t involve sexual offences or bodily harm
- within jurisdiction of mag courts
- drug courts suspend a term of imprisonment in favour of a two year drug treatment order
DTO = good behaviour, treatment, visits from team
specialist courts - Koori court
- division of magistrates court
- only available yo aboriginal defendants who plead guilty
- hears crime cases (not sexual offences, domestic violence, breach of intervention order)
- less formal environment - round table
- magistrate sits opposite defendant and takes advice from an elder on cultural issues
specialist courts - neighbourhood justice centre
- aim to enhance community involvement in justice system
Provides - a court
- on site support for victims, witnesses, defendants and local residents
- mediation and crime prevention
- community meeting facilities
Works w community to - address underlying causes of offending
- provide opportunity education and support for victims, witnesses, defendants and local residents
- assist in preventing crime
- increase access to justice
- increase community involvement in the administration of justice
summons
will be used if an individual has been charged with a minor offence and its expected they will appear in court
warrant
will be used in the case of more serious offences and if the accused is unlikely to appear at court in response to a summons
being arrested
police can arrest if they
- reasonable believe you have broken a law
- have a warrant for your arrest
- know you are a risk to a family member
arrest definition
act of apprehending and taking a person into custody
being held in custody
- police may ask for statement, conduct interviews, take fingerprints, conduct search, take photos, grant/deny bail
- can only keep person in custody for a reasonable time
bail
a person who is in custody, charged with an indictable offence, can be granted ‘bail’, meaning that the individual will be free to await trial in the community instead of in custody
- bail act 1977 (Vic)
- granted bc of presumption of innocence
bail exceptions and conditions
- pose an unacceptable risk
- accused doesn’t comply w conditions
- bail would endanger members of the public
- accused may interfere with witnesses
- the person is accused of murder or treason or other offences
- offences related to stalking or family violence
bail conditions
Surety
- person who is 18 yrs or older who is bound to ensure that the accused complies with bail conditions, may have to provide deposit of money or property
remand
- an accused who is denied bail or could not pay/get surety
- will be held on remand (in custody) to await trail
- if found guilt + given prison sentence, period already spent in prison will be deducted from the sentence
- if person on remand is found X guilty, no compensation
mention hearing - summary offences
- person charges with a summary offence will typically receive a summons which stipulates the ‘mention date’ on which the accused is to appear in court
purpose: determine the plea of the accused (guilty or not guilty) - at the mention hearing, the case can only be dealt with then and there if the accused pleads guilty
Guilty plea
- police prosecutor reads summary of evidence
- prior convictions read
- character evidence on defences behalf
- sentence handed down
NON Guilty plea
- matter adjourned to a contest mention
- take place later date in magistrates
- both parties = arguments and evidence
- magistrate decides outcome
committal hearing - background
- once a person has been formally charges w committing an indictable offence and either released on bail or remanded in custody, committal hearing will be heard in mag court
- crime scene evidence prepared by police prior
- formal proceedings brought against defendant by DPP
purpose of committal hearings
- designed to determine whether prosecution has enough evidence to gain a conviction for a person who has been charged w an indictable offence @ trial
- prima facie case = at first appearance: plain or clear
- magistrate has authority to discontinue a case and release the defendant
- ensure great efficiency in operation of county and SC
- time X taken to hear weak cases
Committal mention hearing
- short administrative hearing to identify the witnesses who may be called at committal + to set date of the committal hearing
- accused chooses plea
- if matter contested (plea not guilty), magistrate will be informed on number of witnesses and length of committal hearing
-> set date for a committal hearing
committal hearings: traditional
- relies on oral evidence given under oath by witnesses
- prosecution witnesses are examined and cross examines
- evidence recorded in a deposition
-defence given option - whether to pleas and/or call witnesses
committal hearings: hand up brief
- evidence given through delivery o pf sworn statements
- most committals use this process
- important in sexual assault matters- avoid questioning
- prosecution serves docs on defendant
- notice given if defence wishes to cross examine prosecution witnesses
- deposition alone (sworn statements) presented to court
difference between hand up brief and traditional committal hearing
way in which evidence is presented to the court
- hand up brief = sworn statements
- traditional = under oath
trial proceedings - guilty plea
- no need for a contested trial -> sentencing hearing
- no jury
1. pros puts forward summary of evidence
2. prior convictions read
3. judge determines a sentence
trial proceedings - not guilty plea
- appearances are entered
- arraignment - defendant is formally advised of charges and makes plea
- jury is empanelled
- opening addresses from pros and def
- pros case put forward
- exam in chief
- cross exam
- re exam
- no case submission
- defence case put forward
- same process as pros
- closing adresses pros then def
- judges summary; sums up case and directs jury
- jury deliver verdict
- plea hearing - if verdict guilty, def gives info for judge
- sentence hearing
examination processes (probs not needed)
exam in chief
- person who calls witnesses and asks questions, purpose to adduce all the evidence which is favourable to their case
cross exam
- oppose other side and asks witness questions, purpose is to find flaws in evidence of witness and show any inconsistency
re exam
- person who called the witness is able to reexamine the witness to patch up any probs from cross exam
the jury selection selection process
- randomly selected from electoral roll
- questionare
- eligible = able to serve
ineligible = connection w legal system
disqualified = crime background - jurors sent to pool room
- juror names + occupations announced
- each party has 3 peremptory challenges
- unlimited challenge for cause
role of the jury
determine the guilt of the accused and represent democracy
purpose of sanctions
penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations
5 aims of sanctions
punishment
protection
denunciation
deterrence
rehabhilitation
5 aims of sanctions - punishment
punishment should fit the crime, taking into account all factors relating to offender and victims
5 aims of sanctions - protection
protection of the community can only be guaranteed by imprisonment. Serious offenders get longer sentences
5 aims of sanctions - deterrence
others from society should be deterred from committing the crime (general). Offender also discouraged from committing further crimes (specific)
5 aims of sanctions - denunciation
show offenders that society believes their conduct was inappropriate. Court will declare disapproval of act
5 aims of sanctions - rehabilitation
offenders are given the opportunity to change their behaviour and become valuable members of society eg: drug and alcohol probs
FIne
- monetary penalty imposed on the offender by the court. paid by the offender to state
- penalty units
- fine can be imposed w other sanctions
- factors considered
OBJECTIVE - punish offender, deter (gen and specific), denounce
cco
non custodial sanction which allows an offender to remain in the community while serving sanction
- an offender must comply w basic terms like community work and counselling
X imposed fro murder, rape, manslaughter, kidnap
OBEJCTIVE
punish, deterrence, rehabilitate, protect
Imprisonment
most serious sanction as the offenders liberty is taken away = last resort
terms expressed in levels (lvl 1 = life impr)
multiple charges = served either concurrently (same time) or cumulatively (one after other)
parole = early release after serving a non parole period. offender must prove remorse and rehab
(there is a non parole period for all terms exceeding 2 yrs)
factors considered in sentencing
AGGRAVATING = increase seriousness of the offence and offenders culpability
MITIGATING = reduce seriousness of offence or lower the offenders culpability
aggravating factors
- nature and gravity of offence
- previous offences
- impact of offence on victim or family ( victim impact statements )
- injury, loss or damage
-use of violence or explosives
mitigating factors
- nature and gravity of the offence
- early guilty plea
- first offence
- remorse
- acting under duress
changes to sentencing practices in vic
- over past decade, there has been a reduction in number of sentences (tough on crime approach)
- suspended sentences abolished
- home detention abolished -> CCOs established
- non parole periods introduced
- vic parliament passed legislation limited ability of courts to hand down a sentence other than prison
- standard sentences introduced
sentencing practices in the USA
use of death penalty for serious crimes such was murder and treason exists in many US states
- 31/50 states have power to impose death penalty
- each US state differs in sentencing laws
- sentencing guidelines prescribe reduction for those who plead guilty
neighbourhood justice centre
- part of the specialist courts division of the magistrates court
- NJC uses THERAPEUTIC and RESTORATIVE
- THERAPEUTIC = method used to deal with offenders in a way that addresses underlying causes of crime - seeks to provide offenders with support
- RESTORATIVE = system which focuses on the rehabilitation of offenders through reconciliation with victims and community at large
- wants to prevent criminal and harmful behaviour from occurring in the first place
Drug Court all
- division of mag court
- offender must reside in area
- must plead guilty
- must be mag court jurisdiction crime
- committed under influence of drugs or for drugs
DATO (drug alcohol treatment order)
custodial: imprisonment not exceeding 2 yrs
treatment/supervision: aims to address participants drug dependency
IMPACTS - reduced occurrence of crime
- fewer victims
- less burden and costs
- less cost to health, prisons and welfare
Koori Court availability
divis of mag court
elders, Koori court officer, defendants and families of defendants can contribute during court hearings
-> reduce perceptions of cultural alienation and ensure that sentencing orders are appropriate to cultural needs of Koori
- Koori ppl already greatly overrep in justice system
- only available to aboriginal defendants who plead guilty to criminal cases X sexual offences/DV/breaches of intervention and who live in area
Koori court sentencing processes and impact
less formal environment (round table)
plain English X legal jargon
magistrate takes advice from elders
magistrate = ultimate decision maker
IMPACT
reduced recidivism
experience of offender has improved
identified need to have greater services participating
strengths and weaknesses of drug court
Adv
- reduces costs of imprisonment
- protects community and reduces recidivism
- saves space in prisons
Dis
- only avail to small group of ppl
- X rehab many offenders
- gov haven’t expanded court
- offenders in community
strengths and weaknesses of Koori court
Adv
- increased indigenous ownership and participation
- informal atmosphere
- reduces recidivism
- experience of offender improved
Dis
- not available to all offenders/locations
- limited to sentencing only
- overrep of indig ppl hasn’t improved
diversion definition
criminal justice program which aims to give offenders the chance to avoid a criminal record by undertaking tasks and conditions that benefit the community
(used in mag and children’s court)
eligibility of diversion
- summ offence
- accused must accept responsibility
- must be first offence
court considers if matter is appropriate - pros and defence must consent
- offence not punishable by a min or fixed sentence`
diversion sentencing process
- onus on accused to ask for diversion
- court may seek views of victims
- if all agree -> program in place and case adjourned 12 mo for offender to complete plan
- plan could involve counselling/drug alc treatment
- letter of apology to victim
- community service/education
plan completed -> offender discharged
plan X completed -> case scheduled
