Sanctions Flashcards
Police Arrest powers
Can arrest with:
- A warrant (granted by court)
- Without a warra nt when they witness somebody committing an offence, (this is to: ensure the offender appears in court, Preserve Public order, prevent further acts, ensure public health and safety)
- Without a warrant if they have reasonable ground to believe that a person has committed an (indictable offence, AN offence somewhere else that would be considered indictable in vic)
- Can use reasonable force when making arrest
Arrest rights
- Police have no power to detain somebody unless they are under arrest
- An individual must be informed of the reason for arrest
- After arrest, an individual must be released or brought a bail justice within a reasonable time of being taken into custody
Court Proceeding Power
Prosecutors can prepare case by: working with police and negotiate guilty plea.
Courts-
MAG- determine guilty verdict and sanction, determine if there is enough evidence to proceed (committal hearing), judge if evidence is admissible during trial, Whether bail should be granted.
COUNT/SUP- determine sanctions
Court Proceeding rights
- Be presumed innocent util proven guilty.
- Have the proceedings decided by a competent and impartial court after a fair and public hearing.
- Obtain legal aid if the interests of justice require it.
- Have adequate time and facilities to prepare a defence.
_ Have the opportunity to challenge prosecution evidence. - Be tried without reasonable delay.
- Have access to interpreter
Imprisonment powers
- Search and examine any person.
- Seize unauthorised goods.
- Arrange medical tests for drugs and alcohol.
- Require prisoners to be electronically monitored.
Imprisonment Rights
- To be in the open air for at least one hour a day.
- Adequate food (eg GF)
- Suitable clothing.
- Access to reasonable medical and dental care.
- Special care if has disability or mental illness.
- Practice religion
- Receive a one, Half-hour, Visit per week.
Role of courts in criminal
1) Manage, hear and determine a criminal case if the accused pleads not guilty.
- Case management to ensure hearings proceed without delay ( eg timetables/ documents)
- Specialisation
- MAG determines guily in MAG court whilst jury in country and SUP.
- MAG hears comittal proceedings for indictable offences
- COUNT/ SUP hears appeals.
2) Impose a sanction if accused poleads guilty
- Plea hearing where both sides make submissions about relevant sentencing factors.
- Sentencing hearing where sanction handed down and judgement will be written and published.
Committal Proceeding
If charged with an indictable offence will go through committal proceeding in magistrate court.
- Committal mention- Accused pleads guilty or not. Case may be sent to be heard summarily if requirements met.
- Committal hearing- If accused pleads not guilty, MAG determines if there is enough evidence to support conviction to another court.
Benifits (Filter out weaker cases, Inform accused of case against them and allow them to test evidence)
Weakness (Only few cases discontinues Thus inflate costs and contribute to delays)
Magistrate Jurisdiction
Original
- Summary offences
- Indictable offences heard summarily
- Committal proceeding
- Bail and warrant applications.
NO APPELLATE
County court Jurisdiction
Original
- most indictable offences however not treason, murder, manslaughter
Appellate
Hears appeals from MAG on questions of the facts
- Convictions (eg a MAG would have not found them not guilty based on the facts present in the case)
- Sentences (eg Offender deems it too harsh or not based on facts of the case)
Supreme court (Trial Division) Jurisdiction
Original
- All indictable offences however generally the most serious cases
Appellate
- Hears appeals from the MAG (unless the chief MAG heard the case) on question on law
Supreme Court ( Court of Appeals) Jurisdiction
NO original jurisdiction
Appellate
- Hears appeals from COUNT and SUP
- Hears appeals from MAG if heard by the chief magistrate
- Appeals are generally heard by 3 judges and can be on the question of conviction, severity of sentencing or questions of laws.
- They must grant ‘leave to appeal’ Unless DPP is appealing against the sentence
When is a jury required
When
- Original jurisdiction of County and Supreme court to determine guilt of accused.
Not
- Magistrates court
- In appellate jurisdiction of the courts
- If accused has pleaded guilty
Jury Composition
Governed by the juries act 2000 (vic)
- 12 members deliberate and decide guilt and 3 in reserve.
- Must be 18 or above.
- Selected at random and sent form of eligibility.
Disqualified
-Unable to serve on jury due to background-
- Sentenced to a term of imprisonment for 3 years or more
- Currently on bail or remand.
- Undischarged bunkrupts
Ineligible
- Unable to serve due to occupation or particular characteristic-
- Judges, magistrates, Lawyers, police, Members of parliament.
- Unable to communicate, insufficient English, Physical disability that renders them incapable.
Excused
-Unable to serve due to difficult circumstances-
- Poor health, live more than 50 km away, advanced age, financial hardship, careers with dependents, unable to be impartial.
Role of criminal Jury
- Concentrate during the trial and listen to all the evidence
- Piece together evidence and decide the verdict
JURY MUST reach a unanimous verdict.
If not possible judge may accept 11/12 for offences other than murder, treason, or cultivating large quantities of drugs.
OR there is a hung jury and accused is later retried
Purposes of sanctions
If found guilty a judge or magistrate will determine sanction.
The sentencing Act (1991) sets purposes
Can be under:
- Punishment
- Protection
- Denunciation
- Deterrence
- Rehabilitation
Punishments
Involving penalising offenders and holding them accountable.
This ensures retribution for victims and families who will in turn be discouraged from taking justice into their own hands.
Imprisonment is ultimate form of punishment.
Protection
Achieved by removing offenders from society or restricting them so they don’t pose a risk to others safety and welfare of victims or society.
Denunciation
Courts seek to publically and formally criticise the offender’s criminal behavious
- Express disaproval for offenders actions and how they have violated societys moral and ethical standards
Deterrence
Specific Deterrance
- Discourage the offender from re-offending through sanctions
- Dependent on the person for effectiveness
General
- Deter individuals so they can avoid recieveing similar sanctions.
Rehabilitation
Seeks to break the cycle of offending and adress underlying causes of criminal behaviour.
- Reduce criminal rates and cost of imprisonment.
- Counselling, Education ect
Fines
A monetary penalty.
- Expressed in penatly units ($192.31)
Court Considers”
-purpose
- Agg and MIt factors
- Financial situation
Community Correction order
–Non-custodial
-can be Alongside imprisonment of one year or less
Can be imposed if:
-Offender us punishable by 5 or more penalty units
-Offender has agreed
For single offence MAX is 2 years for multiple-5
Cannot be imposed for level one (eg murder)
Imprisonment
Removes offender from the community.
Usually has a minimum sentence which can then apply for parole.
Concurrent: Served at the same time
Cumulative: Served one sentence after another
Strengths and Weaknesses of Fines
Strength-
- PUNISH as they cannot spend money freely and large fines enable to DENCOUNCE immoral behaviours.
- Financial loss DETERS both specifically and generally.
- PROTECTION as will be detered therefore community safe.
Weaknesses
- May not be high enough punishment or deterrence.
- general deterence not achieved bc often MAG not publish statements.
- Protection not directly achieved as not removed.
- Rehabilitation bc not addressing underlying issues.
Strengths and weaknesses of CCO
Strength
- Punishment as restrtict movement.
- General deterrence bc see inconvenience of situation.
-Rehabiliation bc addresses underlying issues
- Protection bc offenders may be restricted from seeing people.
Weaknesses
- punishment may be seen as lenient
- Specific deterrence and rehab depend on willingness to participate.
-Protection as still in community.
Strength and Weakness of imprisonment
Strength
- Punished as no freedom.
- Court can denounce action.
- Specific and General deterrence bc of harsh environment.
- Protection as removed from community.
- Rehabilitation programs.
Weaknesses
- can apply for parole which limits punishment.
- Re-offending implies specific deterrence not achieved
- lack of resources and harsh environment may limit rehabilitation.
Aggravating factors
Facts or circumstances about the offender or an offence that can increase the offenders culpability and lead to a more severe sanction.
(eg Planned crime, Hate crime, prior convictions)
Mitigating Factors
Facts or circumstances about the offender or an offence that can decrease the offenders culpability or lead to a reduction in sentence.
(Eg Remorse, guilty plea, cooperation)
Guilty plea
Occurs when a person admits what they have done.
Can plead guilty for only some out of a total amount of charges.
- Trials will not be conducted.
- During- Trial abandoned and sentencing
Drug Court
A specialist court that can impose drug and alcohol treatment order to offenders who commit crimes while under the influence or to support a drug habit. (2002 established)
Eligibility:
-Reside in an area serviced by the Drug court
-Plead guilty to the offence
- be dependent on drugs/ alcohol that contributed to offending.
- Be facing an immediate term of imprisonment not exceeding 2 years in the magistrates court or 4 years in the county court.
- Be facing charges that aren’t sexual or bodily harm
( there is a screening)
Drug and Alcohol Treatment order
Aim at rehabilitation by providing a judicially supervised, therapeutically orientated treatment programs.
1) Treatment and supervision:
Core conditions- No re-offending, report to officers, note changes of adress.
Program condition- Submit to testing, educational programs.
2) Custodial
Drug court must impose prison sentence not exceeding 2 years. But is deferred while offender undergoes treatment.
_ Drug court has power to
reward
- Failure to comply= Other sanctions.
