Sanctions

Question 1

Powers and rights

Answer 1

Law enforcement institutions use investigative and prosecution powers when undertaking their duties. However, institutional powers must be balanced against the rights of individuals.

Non-exhaustive list of the sources of institutional powers

Police powers of arrest and questioning are in the Crimes Act 1958 (Vic)

Prosecution powers are in the Criminal Procedure Act 2009 (Vic)

Imprisonment powers are in the Corrections Act 1986 (Vic)

Individual rights overlap between numerous Victorian acts including the Crimes Act 1958 (Vic) and the Victorian Charter of Human Rights. They are also promoted by international treaties such as the International Covenant on Civil and Political Rights (1966).

Question 2

Arrest powers

Answer 2

A warrant is a court document allowing a person (e.g. a police officer) to undertake a certain action (e.g. arrest, search).

Police can arrest without a warrant any person they find committing 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 commission of a further offence a further offence

Ensure the safety or welfare of the public or offender

Police can also arrest without a warrant if they have reasonable grounds to believe that a person has committed:

An indictable offence in Victoria (including indictable heard summarily)

An offence elsewhere which would be an indictable offence in Victoria (including indictable

heard summarily)

Police can use reasonable force when making an arrest. ‘Reasonable’ depends on circumstances.

Question 3

Arrest rights

Answer 3

The police have no power to detain an individual unless they are under arrest. Therefore, an individual can refuse to attend a police station if they have not been arrested.

An individual must be informed of the reason for the arrest at the time of the arrest.

After the arrest, an individual must be released (unconditionally or on bail) or brought before a bail justice or Magistrate within a reasonable time of being taken into custody

What constitutes a reasonable time is dependent on the circumstances (e.g. complexity and number of charges, transport)

Question 4

Abs Aboriginal and Torres strait islander imprisonment

Answer 4

According to the Australian Bureau of Statistics:

From 30 June 2022 to 30 June 2023, Aboriginal and Torres Strait Islander prisoners increased by 7% (950) to 13,852

~

Art. No. 110-H

After accounting for population growth, the Aboriginal and Torres Strait Islander imprisonment rate increased by 5% from 2,330 to 2,442 prisoners per 100,000 Aboriginal and Torres Strait

Islander adult population.

At 30 June 2023:

Aboriginal and Torres Strait Islander prisoners accounted for 33% of all prisoners

78% (10,828) had experienced prior adult imprisonment

Question 5

Underlying disadvantage

Answer 5

First Nations people experience many underlying and interconnected disadvantages in health, education, housing and employment (e.g., ABS reported Aboriginal employment for those aged 15-64 was at 56% in 2021).

First Nations people occupy public space more often than non-Indigenous Australians due to their socio-economic status and their connection to land.
These factors leads to increased police surveillance and contact with the criminal justice system

as accused persons or victims of crime.

Question 6

Language differences

Answer 6

Some First Nations people speak an Aboriginal language whilst others speak Aboriginal English.

Many First Nations people require an interpreter to access the justice system; however, there is a chronic shortage in Australia.

Question 7

Cultural differences

Answer 7

The customary laws of different First Nations groups can come into conflict with the Australian criminal justice system.

In customary law, Elders (respected persons in the community) are involved in sentencing an offender and may even carry out the punishment

Conversely in the criminal justice system, independent judges and magistrates have this responsibility

In customary law, punishment is aimed at restoring balance and to maintain and recognise relationships

In contrast, sentencing in Victoria courts is more focused on retribution and making examples out of offenders to deter them and others

Question 8

Culturally and linguistically diverse people

Answer 8

The term ‘CALD’ refers to people who have been born overseas in countries other than ‘main English-speaking countries’ (Canada, Ireland, New Zealand, South Africa, UK and USA)

Australian Bureau of Statistics reported that:

27.6% of Australians are born overseas

At least 48.2% of children have one parent or both born overseas

21.4% of Australians speak a language other than English at home

Other than English, the top five languages spoken in Victorian homes is Mandarin, Vietnamese, Greek, Punjabi and Italian.

Question 9

CALD Limited awareness and familiarity

Answer 9

The legal system in a person’s country of origin may be different

o E.g. Australia has an adversarial approach based on the common law system. In contrast,

the justice system in many European countries is based on the inquisitorial model where

the judge takes a much more active role in trials.

The criminal justice system is complex, daunting and overwhelming. CALD people may seek support from legally untrained individuals in their own community as opposed to legal institutions.

CALD people may be unaware of their specific rights in defending a charge and accessing legal representation or legal aid.

Question 10

CALD Language differences

Answer 10

A low level of English will hinder people ability to communicate with their lawyers, the police and court personnel.

CALD people may require an interpreter, however:

There are shortages in qualified interpreters yet a high demand for them

The interpreters may be conflicted by recognising the accused from their community

Accused people may require additional characteristics from their interpreters (e.g. females wanting female interpreters)

Question 11

CALD Addressing difficulties

Answer 11

Various courts and service providers (e.g. VLA, CLCs) provide free interpreters. Victorian Government also offers victims of crime an interpreter friendly help-line.

Information and resources are available in different languages.

The Supreme Court offers videos about court processes in multiple languages.

Victoria Legal Aid has an extensive list of 36 language that their website can be translated into

Specialist community legal centres for asylum seekers and refugees.

Advice, resources and training are provided to court personnel to ensure that they promote the principles of justice.

For example, the Judicial Council on Diversity and Inclusion provides resources to judges and magistrates to ensure they are competent in running trials and hearing involving CALD people

Question 12

Young people Intersectional disadvantage

Answer 12

Young people who are particularly at risk of interacting with the criminal justice system are those experiencing homelessness, are CALD or First Nations or have experienced family violence

53% of people in youth justice are victims of abuse, trauma, neglect as a child

42% of people in youth justice have witnesses family violence

The younger a child is when they are first sentenced for an offence, the more likely they are to reoffend in the future

Question 13

Young people Addressing difficulties

Answer 13

Youth Law Victoria is a dedicate community legal centre for young people and can assist with a range of criminal charges

Youth diversion programs are used in the Children’s Court to redirect young people away from criminal justice system and help them take responsibility for their behaviours

Intermediaries (skilled communication specialists) are used to assist vulnerable witnesses, including children

There is currently a national debate about increasing the age of criminal responsibility. The Victorian Government has committed to increase it to 12 by 2024 and then subsequently to 14.

Question 14

Punishment

Answer 14

Punishment involves penalising the offender and holding them accountable when they have done something unacceptable.

This ensures retribution for victims and their families who will be discouraged from enacting revenge themselves and ‘taking matters into their own hands’.

Imprisonment is the ultimate form of punishment (capital and corporal punishment are not used in Australia)

Question 15

Protection

Answer 15

imprisonment

Protection is achieved by removing offenders from society to ensure they do not pose a risk to the safety and welfare of their victims or society as a whole.

Whilst imprisonment is seen as a last resort some offenders are sentenced to long periods of imprisonment because they are deemed a danger to society.

A horrendous crime, a lack of remorse and an offender’s callous attitude indicate that a person should be removed from society.

Question 16

Denunciation

Answer 16

The court aims to publicly and formally criticise the offender’s criminal behaviour.

The court expresses its disapproval of the offender’s actions to highlight how the offender has violated the moral and ethical standards of society.

Denunciation is often emphasised in cases involving offending that could be undertaken by many members of society (e.g. tax fraud, family violence, king-hits).

Question 17

Deterrence

Answer 17

Deterrence aims to prevent an offender, or the general public, from reoffending or committing a crime.

Specific deterrence

The offender themselves is discouraged from committing offences of the same or similar nature through the imposition of a sanction.

Effectiveness is dependent on the offender’s personal circumstances. For example, specific deterrence may be more suitable for a first-time offender as opposed to an offender with an extensive criminal history.

General deterrence

Individuals other than the offender, are discouraged from committing offences of the same or similar

nature to avoid receiving the same sanction as convicted offenders.

Effectiveness depends on the public knowing and understanding sanctions. For example, the public is familiar with the concept of fines and imprisonment but may not understand how a community corrections order is appropriate.

Question 18

Rehabilitation

Answer 18

Achieved by sanctions that seek to break the cycle of offending and address the underlying causes of criminal behaviour.

It is in society’s best interests to help an offender reform to reduce crime rates and costs of imprisonment.

Offenders are provided with opportunities such as counselling, education and training to provide them with a chance at a better future and become willing law-abiding citizens.

Question 19

Fines (non-custodial)

Answer 19

A monetary penalty that is paid by the offender to the state (not victim).

Expressed in penalty units ranging one to 3000. in 2024, a penalty unit is $192.31

For example, the maximum fine for culpable driving causing death is 2400 penalty units x $192.31 = $461,544

When imposing a fine, the court considers

The purpose the court wishes to achieve e.g. deter or punish

Aggravating and mitigating factors

The offender’s financial situation

Court can order a fine be paid by instalments. If an offender defaults in making payments, the court can issue an arrest warrant, allow further time to pay or order community service work instead.

Fines are often imposed on companies, as they are corporate entities that cannot be imprisoned.

Question 20

Community correction orders (non-custodial)

Answer 20

A non-custodial order by the court that allows the offender to remain within the community with certain conditions attached.

their release)

A CCO can be imposed alongside a fine or imprisonment of one year or less (to be served upon

A CCO can be imposed if:

The offence is punishable by 5 penalty units or more

The offender has agreed to a CCO

For a single offence, the maximum is 2 years and for multiple offences it can be up to 5 years.

A CCO cannot be imposed for category 1 offences (the most serious - e.g. murder, rape, child sexual assault).

Question 21

Imprisonment (custodial)

Answer 21

A sanction that removes an offender from the community and places them in prison for a given period of time

When a court imposes a prison term, it will usually provide a minimum period of imprisonment

after which an offender can apply for parole.

Parole = the early release of a prisoner after their minimum term is served which is subject to supervision and certain conditions

Concurrent sentences = a sentence of imprisonment or detention that is served at the same time as another when the offender is convicted of more than one crime. E.g., 3 years imprisonment

for all the offences that they were charged with

Cumulative sentences = a sentence of imprisonment or detention that is served one after the other. E.g., the sentence for the 2nd offence begins after the completion of the first

Question 22

Aggravating factors

Answer 22

Facts or circumstances about the offender or an offence that can increase the offender’s culpability and lead to a more severe sanction.

Examples include:

Whether the crime was planned/premeditation

Hate crimes resulting from prejudice towards a particular group based on ethnicity or religion

The degree of brutality and cruelty, the offence was unprovoked or involved domestic violence

The victim was a particularly vulnerable person e.g., a child, the elderly or a person with

disability

The offender had prior convictions

The offence took place whilst the offender was on bail or serving their CCO

The crime was committed in front of children

Question 23

Mitigating factors

Answer 23

Facts or circumstances about the offender or an offence that can decrease the offender’s culpability and lead to a reduction in sentence.

Examples include:

Genuine remorse

The crime is a result of provocation

The age of the offender, a young offender = less mature but more capable of rehabilitation

Traumatic personal history such as growing up surrounded by family violence, drug addiction, alcoholism

Limited or no prior criminal history

Cooperating with the police

The offender pleaded guilty early

The injury or harm caused by the offence was not substantial nor was there a risk to any people

Question 24

Victim impact statements

Answer 24

An account written by people directly (victim) and indirectly (family/friends) impacted by the offence.

This account provides insights into the physical, emotional and economic effects of the offence.

The statement can inform the judge’s decision and impact the severity of sentencing

If VIS indicates severe impact on victim → increase sentence

If VIS indicates that victim has forgiven the offender → decrease sentence

Whilst the victim has the right to provide the court with a victim impact statement, the statement is given voluntarily.