sanctions Flashcards
The victorian police
+ goverened by the Victoria Police Act 2012 [vic]
+ is the main institution that enforces criminal law relating to indictable offences and most summary offences
role of Victoria police
the role of Victoria police is to serve the victorian community and uphold law so as to promote a safe, secure, and orderly society.
crime prevention
patrol areas and maintain a sense of presence to protect local citizens
engage in community education to deter future criminal behaviour
crime investigation
talk to victims and witnesses about incidents
question possible suspects
examine crime scenes and collect evidence for analysis
conduct searches of people and or property
crime prosecution
arrest accused persons
charge people with offences that most fit the crime
prosecuting summary offences in the magistrates court
sending information to the office of public prosecutions for indictable offences
Australian federal police
investigate and enforce criminal laws which have a federal aspect
focuses on crimes such as
transnational
serious complex and organise crime
cybercrime and cyber safety
child protection
countering terrorism
delegated bodies
+ specific agencies that due to their expertise in a particular area have been granted the authority from parliament to both create and enforce certain laws. This authority is assigned by an act of parliament.
role of delegated bodies
the overarching role of delegated bodies is to investigate, prosecute and enforce the law
as the result the burden of work on police is lessened
WorkSafe Victoria
+ esthablished under the occupational health and safety act 2004 [vic] which aims to ensure the health, safety and welfare of employees
+ monitors and enforces compliance with the act
powers and rights
+ institutional powers must be balanced against the rights of individuals
+ individual rights overlap between numerous victorian acts including the Crimes Act 1859 [vic] and the victorian charter of human rights
arrest rights
+ the police have no power to detain an individual unless they are under arrest [therefore indv. can refuse to go to station if not arrested]
+ must be informed of the reason for the arrest at the time of the arrest
+ after arrest indv. must be released [unconditionally or on bail] or brought before a bail justice or magistrate within reasonable time
police can arrest without a warrant any person they find commiting a summary or indictable offence if the police believe it is necessary to……….
+ ensure the offender appears in court
+ preserve public order
+ prevent the continuation or repetition of an offence or commision of a further offence
+ ensure safety or welfare of public
arrest powers
Without a warrant =
+ any person they find committing a summary or indictable offence or if police believe necessary to….
+ if they have reasonable grounds to belive that a person has committeed an indictable offence or an offence elsewhere that would be indictable in victoria
police can use reasonable force when making an arrest [ depends on circumstances]
what is a warrant
a court document allowing a person eg police to undertake a certain action eg arrest
questioning powers
police can request name and address if
+ commited or about to commit summary or indictable offence
+ may be able to assist in investigation
questioning rights
before interviewing an arrested person police must formally caution that
- right to remain silent
- they can communicate with a relative or friend to inform of whereabouts
- police must defer or interpreter if bad english
- parent or guardian must be present if under 18 or intellectual dissabiliy
sources of institutional powers
police powers or arrest and questioning = crimes act 1858 vic
prosecution powers = criminal procedure act 2009 vic
imprisonment powers = corrections act 1986 vic
court proceeding powers for prosecutors
prosecutors = prepare crowns case by working with police, examine witnesses in trial, negociate with accussed about early guilty plea
court proceeding powers for courts
+ mag determines guilt and sanctions for summary and sanction for indictable
+ mag determines whether enough evidence to support convic for indic during commital proceedings
+ which evidence=admissable
+ whether bail should be granted
court proceeding rights
accused has certain rights during trial eg
+ presumed inno until guilty
+ have proceding by competent and impartial court
+ obtain legal aid if necessary
+ adequate time and facilities for case
+ opp to challenge and rebut evidence
+ tried without unreasonable delay
imprisonment powers
under corrections act 1986 [vic] prison officers can
+ search and examine any person
+ seize unauthorised goods
+ arrange med test for drugs+alcohol
+ require prisoners to be electronically monitored
imprisonment rights
under corrections act 1986 [vic] prisoners have rights to
+ open air for atleast 1hr
+ adequate food
+ sutible clothing
+ access to reasonable medical and dental care
+ practice religions
+ access special care
+ recieve one half hour visit pe
the role of courts in criminal cases
- manage, hear and determine a criminal case if the accused pleads not guilty
manage = courts provide managment by giving orders and directions to ensure no delay
determine = mag determines guilt in mag court, jury decided in county and supreme - impose a sanction if the accused pleads or is found guilty
+ plea hearing takes place where both sides make submissions about relevent sentencing factors
+ magistrate/judge gives sanction
commital proceedings
if accused is charged with an indictable offence, the case will go through commital proceedings for indictable
1. commital mention = accused pleads guilty [goes straight to sentencing] or not guilty [ goes to hearing] case may be sent to be heard summarily if requirments met
- commital hearing = if accused pleads not guilty, the magistrate determines whether there is sufficient evidence to support a conviction in higher court
commital proceeding benefits and negatives
ben - filter out weak cases and ensure judicial resources in higher courts are used efficiently 2- inform the accused of case against them and allow to test evidence
neg - recent inquiries suggest most are commited to stand trial and very few are discontinued - inflate costs and delays
magistrates court jurisdiction
original = + summary offences eg minor assualt
+ indictable heard summarily
+ commital proceedings for indictable offences
+ bail and warrant applications
appellate = no jurisdiction because lowest court
county court jurisdiction
original = + most indictable offences eg culpable driving causing death, theft, armed robbery [ cant hear indictable offence in extremely serious situatios eg murder, manslaughter, treason
appellate
+ appeals from magistrates court on questions of fact
[ unless from chief magistrate]
: convictions and sentences
supreme court trial division jurisdiction
original = all indictable offences, generally most serious that cant be heard by county
appellate = appeals from mag court [ not chief mag] on questions of law
supreme court [court of appeal] jurisdiction
original = no original jurisdiction
appellate = + appeals from county and supreme td
+ mag court if chief mag heard case
appeals are generally heard by 3 judges and can be on questions of conviction, severity of sentence or questions of law
when are jurys used and not used
used = compulsory in the original jurisdiction of the county court and supreme court [td] to determine guilt of accused
not used= in magistrates court, appellate jurisdiction of the courts, if the accused has pleaded guilty
jury composition
+ governed by Juries Act 2000 [vic]
+ 12 jury members deliberate and decide guilt, three extra can be empanelled for reserve
+ must be over 18 and enrolled to vote
+ members are selected at random and are sent a form to determine eligibility, if eligible send a summons to attend court
disqualified
unable to serve on jury due to background
+ sentenced to a term of imprisonment for three years or more
+ on bail or remand
+ undischarged bankrupts
ineligible
unable to serve due to occupation or particular characteristics
+ judges, magistrates, lawyers, police, members or parliament
+ unable to communicate, insufficient english, disability
excused
unable to serve due to difficult circumstances
+ poor health, more than 50km away, advanced age
role of the criminal jury
concentrate during the trial and listen to all the evidence
piece together evidence and decide the verdict[if guilty or not]
jury must try reach a unanimous of 12/12
- if not possible may accept majority of 11/12 [cant be murder treason or large quant of drugs]
- if not possible hung jury and the accused will be retried at a later date
strengths of jury
+ allows for community to be involved in justice system
+ ensures fairness by ensuring the jury deliberate based on fact
+ jurors are independent from the legal and police system
weaknesses of jury
- dont give reasons for decisions and they could be predjudiced, bias etc
- task is difficult for some to comprehend and take alot of time for the judge to explain process
- not all community members can be involved
overrepresentation of First nations people facts
+ make up 3.8% of aus population yet 31.8% of prisoners in Australia
+ from june 2022 to june 2023 first nations prisoners increased 7% [950] to 13,853
+ 78% of fnp prisoners have experienced prior adult imprisonment
underlying disadvantage facts of Fnp
fnp face underlying and interconnected disadvantages in health, edu, housing employment
+ employment rate for 15-64 at 56% in 2021
+ occupy more public space b/c of interconnection to the land which leads to increased police surveillance
Fnp language and cultural differences
deadly = good or excellent
your a killer = your awesome
+ in customery law elders are involved in sentencing and can even carry out punishment
+ in customery law punishment is aimed at restoring balance and maintain and recognise relationships
ways fnp difficulties are addressed
+ dedicated funding for aboriginal legal aid
+ developing specialised courts and programs to ensure cultural diffs are addressed eg koori court
+ cultural competence training for those working in legal system
+ determining self-determination initiatives eg display of fnp flags+artwork
purpose of sanctions
+ if an accused person is found or pleads guilty, the judge or magistrate will determine penalty
+ Sentencing act 1991 [vic] sets out purposes for which sanctions may be imposed
+ court cant sentence for any purpose other than main 5
punishment
+ punishment involves penalising the offender and holding them accountable when they have done something unacceptable
+ this ensures retribution for victim and their family
+ imprisonment is ultimate form of punishment
protection
protection is achieved by removing offenders from society to ensure they dont pose a risk to the safety and welfare of the victims or society as a whole
imprisonment = last resort but some are sentenced to long periods if danger to society
denunciation
+ the court aims to publicaly and formally criticise the offenders criminal behaviour [condemnation]
+ court expresses disapproval of actions to highlight how the offender has violated the moral and ethical standards of society
deterrence
+ aims to prevent [discourage] an offender or the general public from reoffending or committing a crime
specific = the offender is discouraged from committing offences of same or similar nature through sanctions
General = individuals in society are discouraged from committing offences similar to the offender to avoid recieving the same sanction as them
rehabilitation
+ achieved by sanctions that seek to break the cycle of offending and adress the underlying causes of criminal behaviour
+ its in societies best interest to help offender reform to reduce crime rates and costs
Culturally and linguistically diverse people [CALD]
+ refers to people born overseas in countries other than main english speaking countries [canada, ireland, nz, south africa, uk, usa]
+ in aus 27.6% are born overseas and 21% speak another language at home
CALD - limited awarness and familiarity
+ the legal system in home or origin may be different
+ crim justice system is complex, daunting and overwhelming
+ may be unaware of specific rights
CALD - language differences
low english = hinders ability to communicate with lawyers, police and court personnel
may need interpreter but there is a large shortage
addressing CALD difficulties
+ various courts and service providers provide free interpreters
+ info available in different languages
+ specialist community legal centres for asylum seekers and refugees
Young people, disadvantages and adressing difficulties
child = under 18
young people = less than 25
disadvantage = young people that are homeless, CALD, first nations and family violence have higher risk of interacting w crim system
53% of people in youth justice are victims of abuse, trauma or neglect
the younger a child is when sentenced the more likely to reoffend
adressing difficulties
+ youth law vic is a community legal centre for young people
+ youth diversion programs used in county to redirect young people away from crim justice system
fines
+ momentary penalty paid by offender to state [not victim]
+ expressed in penalty units ranging from 1-3000 [in 2024 1= $192.31
+ when imposing court should consider the purpose the court wants to achieve, aggravating+mitigating factors, and offenders financial situation
+ often paid in instalments
+ often imposed on companies as they are entities that cant be imprisoned
community correction order
+ allows the offender to remain within the community with certain conditions attached
+ can be imposed alongside fine or imprisonment
+ can be imposed if offence is punishable by 5 penalty units or more and offender has agreed
+ for single offence max 2 years for multiple max 5years
mandatory and optional rules of cco
mandatory
+ dont reoffend during duration
+ dont live vic w/o permission
+ notify supervisor if change of adress
+ comply with directions
optional [tailored to offender]
+ do community work
+ abide by curfew
+ rehab
+ avoid contact with a person
+ dont consume alcohol or drugs
imprisonment
+ sanction that removed the offender from the community and places them in prison
+ will usually provide minimum period of imprisonment before offender can apply for parole [early release subject to supervison and conditions]
concurrent vs cumulative sentences
concurrent = sentence of imprisonment that is served at the same time as another when the offender is convicted of more than one crime
cumulative = a sentence of imprisonment served one after each other eg second sentence begins after completion of the first
effectivness of fines
+ enables court to punish offender as cant spend their money freely
+ financial loss deters from reoffending and deters others from commiting
+ due to deterrant protects society
- the max penalty may not be enough to truly punish
- unless fine gets attention eg media might not deter
effectivness of cco’s
+ many conditions act as punishment as they restricts offenders movements
+ community work provides retribution
+ flexibility allows for judges to specifically discourage offenders from engaging in certain behaviours
+ lead to rehab
- victims and their family and friends may seem cco as lenient
- detterance and rehab are dependent on offenders willingness to engage and participate
- allows to be in community which may limit protection
effectivness of imprisonment
+ offender punished through deprivation of liberty and restricted access for family and friends
+ harsh environment acts as acts as specific and general deterrance
+ as removed to secure location society is protected
- many violent offenders can apply for parole, may upset family and friends
- rate of recidivism is 43.6% indicating specific detterance isnt achieved
- high demand for programs and lack or resources can lead to lack of rehabilitation
aggravating factors and examples
facts or circumstances about the offender that increase the offenders culpability and lead to a more severe sanction
eg
+ if crime was planned/premeditated
+ hate crimes resulting from prejudice eg ethnicity or religion
+ degree of brutality
+ victim was particularly vulnerable eg child, elderyly, disability
mitigating factors and examples
facts or circumstances about the offender or an offence that decrease the offenders culpability and lead to reduction in sentence
eg
+ genuine remorse
+ crime result of provocation
+ age
+ traumatic personal history
guilty pleas
+ person admits that they have committed an offence to which they have been charged
+ if multiple charges can plea guilty to some or all
+ if occurs pre trial [committals] trial wont be conducted
+ the earlier the guilty plea the more lenient the sentence
Drug court [what it is]
A specialist court that can impose a drug and alcohol treatment order [DATO] on offenders who commit crimes while under the influence of drugs or to support drug habit
+ esthablished in 2002 as division of the mag court [melb, dandenong,ballarat, shepparton]
drug court [how eligible]
+ reside in an area serviced by the drug court
+ plead guilty to the offence
+ be dependent on drugs and/or alcohol that contributed to offending
+ be facing an immediate term of imprisonment not exceeding 2yrs in mag or 4 in county court
+ be facing charges that are not sexual offences of involve infliction of actual bodily harm
drug and alcohol treatment order
aimed at rehabilitation by providing a judicially supervised, therapeutically orientated treatment programs
- treatment and supervision
core = not commit offences punishable by prison, report to and accept visits from relevant officers, tell if change adress, dont leave vic
program conditions = submit to testing, attend vocational or educational programs eg - custodial
drug court must impose and imprisonment sentence not exceeding two years [mag] 4 years [county], this is deferred while offender undergoes treatment and supervision
+ power to reward offenders eg movie voucher
+ fail to commply could lead to unpaid community work, activation of sentence [ for small amount of time] or could be cancelled
koori court
+ division of the magistrates court, childrens court and county court that operates as a sentencing court for first nations people
+ less formal than traditional court and encourages open dialogue between parties
+ magistrate of judge is ultimate decision maker
to be eligible = be first nations, plead guilty, consent, non sexual offences
diversion programs [and how eligible]
+ method used in mag and childrens court to redirect offenders away from the criminal justice system and avoid a criminal record
+ intended for first time offenders of low-risk people who have committed summary
eligible if
committed sum or indc triable summarily
acknowledge responsibility for offence to court
be considered appropriate to participate
consent
facing charge with no min or fixed sentence
diversion programs process
onus is on offender to ask for diversion
if court agrees the offender is redirected from the sentencing court and placed on diversion plan
plan may include
+ obtain drug or alcohol treatment plan
+ undertake education course
+ make donation to charity of community work
