Sanctions Flashcards
apprehended bias
situation where a fair minded person might believe that the person hearing or deciding a case might not bring an impartial mind
Vic Police
governed by Vic Police Act 2013 (Vic)
serves vic community and upholds the law so as to promote a safe, secure and orderly society
Vic Police- crime prevention
patrol and maintain presence to protect local citizens
engage in comunity edu to deter
Vic police- crime investigation
talk to witnesses/ victims
question possible suspects
examine crime scenes and collect evidence for analysis
Vic police- crime prosecution
arrest accused persons
charge ppl w most fitting offence
prosecuting Sum Off. in Mag court
sending info to Office of Public Prosecutions for ind. off.
Aus Fed Police
transnational
serious/ complex organised crime
cybercrime and safety
child protection
countering terrorism and extremism
arrest powers
warrant is a court doc allowing a person (police) to undertake a certain action (arrest/search)
Police can arrest without a warrant any person they find committing a summary or indictable offence if believe its necessary to:
ensure offender appears in court
preserve public order
prevent continuation/repetition of an offence/ commission of further offence
ensure safety/welfare of public/offender
OR
if police have reasonable grounds to believe a person has committed an indictable offence in Vic/ offence elsewhere which would be an indictable offence in Vic
Police can use reasonable force when making an arrest
Arrest rights
police have no power to detain unless arrested
indiv must be informed of reason for arrest
after arrest indiv must be released/ brought before bail justice/mag w/in reasonable time
Questioning powers
police can request name and address if committed or are about to commit offence
may be able to assist in ivestigation of ind. off.
(sum off. to refuse this request or give false name)
when arrested person is in custody, police have power to question them to determine if they are involved in offence
questioning rights
right to remain silent (anything they say/do can be used as evidence)
can communicate w/ friend/ relative to inform of whereabouts and/or legal practitioner in private (can be deferred)
police must arrange interpreter and defer qs if insuffiecient eng
parent/guardian or independent person must be present if under 18 when arrested
Court proceeding powers
Prosecutors: prepare crowns case by working w police, examine witnesses in trial (cross/reexamine) and negotiate w accused about early guilty plea
Courts: Mag determine guilt and sanctions for sum off and county/sup judges determine sanction for ind off
Mag decide if enough ev to support conviction for ind off during committal proceedings
Mag and judges determine which evidence is admissible during trial
Mag and judges determine whether bail should be granted if police request accused remain in jail
Court proceeding rights
Innocent until proven guilty
Proceeding decided by competent and impartial court after fair and public
Obtain legal aid if interests of justice require it
Have adequate time and facilities to prepare defence
Have opportunity to challenge and rebut prosecution evidence
Be tried w/o any unreasonable delay
Have assistance of interpreter if required
Imprisonment powers
Corrections Act 1986(VIC)
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 open air for at least 1 hour per day
To adequate food (dietary requirements)
Suitable clothing
Access reasonable medical/dental care and treatment
Access special care if disability or mental illness
Practice religion receive at least one half-hour visit per week
role of courts in crim cases
Manage, hear and determine a criminal case if the accused pleads not guilty:
courts provides case management by giving court orders and directions to ensure hearings proceed w/o delay
courts provide specialisation and expertise in the type of case they are hearing
mag determines guilt in the mag court whilst a jury decides guilt in the county and supreme court
mag court hears committal proceedings for indictable offences
county, supreme and high courts hear appeals on a question of law or fact
Impose a sanction in the accused pleads/ is found guilty:
a plea hearing takes place where both sides make submissions abt relevant sentencing factors
then there is a sentencing hearing where the Mag/ judge will hand down the sanction . A judgement will be written and published in teh higher rcourts
committal proceedings
if accused is charged w indictable off- committal proceeding in Mag
1. Committal mention- accused pleads guilty or not. Case may be heard summarily if requirements met
2. committal hearing- if accused pleads not guilty, Mag determines whether there is sufficient ev to support a conviction in higher court
Benefits- (1) filter out weak cases and ensure judicial resources in higher courts are used efficiently (2) inform the accused of the case against them and allow them to test evidence
However- very few cases discontinued- concern they inflate costs and contribute to delays
jurisdiction
the lawful authority of a court, tribunal or other dispute resolution body to decide legal cases
Mag court
summary offences
indictable off heard summarily
committal proceedings for ind off
county court
OG- most ind off (not super serious)
Appellate- Mag court from Qn of fact (not chief of Mag) against:
convictions, sentences
Supreme court TD
OG- all ind off (most serious)
Ap- appeals from Mag court (not chief of Mag) of qn of law
Supreme Court CoA
no OG
Ap-
appeals from CC and SC and chief of Mag
- 3 judges on qn of conviction, severity of sentence or qn of law
CoA must grant leave to appeal
appeals from SC go to HC, leave is req from HC
When is a jury used
compulsory in OG jurisdiction of CC and SC TD to determine guilt of accused
NOT:
Mag court
appellate jurisdiction
accused pleads guilty
Jury composition and role
Governed by Juries Act 2000 (vic)
12 jury members deliberate and decide guilt. 3 extra can be empanelled to sit in reserve for lengthy trials in case a jury member must withdraw
- must be over 18 and enrolled to vote in vic
members selected at random and sent a form to determine eligibility (sent summons if eligible)
On day of selection, jurors names and occupations are announced, each party can challenge prospective juror- 3 peremptory and unlimited w cause
ROLE-
concentrate during trial adn listen to all ev
piece together ev and decide verdict
must try reach unanimous verdict (judge may accept 11/12 for offences other than murder, treason, cultivating large quantities of drugs) if not possible- hung jury (accused retried at later date)
Disqualified from jury
Unable to serve on jury due to background:
sentenced to a term of 3 years or more
currently on bail or remand
undischarged bankrupts
ineligible for jury
unable to serve due to occupation or particular characteristic:
judges, magistrates, lawyers, police, members of parliament
unable to communicate, insufficient eng, physical disability that renders incapable of performing jury service.
excused from jury:
unable to serve due to difficult circumstances:
poor health, live 50+ km away, advanced age, financial hardship, carers w dependents, unable to be impartial
First Nations ppl
3.8% of Aus popn and 1% of VIC
31.8% of imprisoned ppl (2022)
From 2022 to 2023 increased by 7% from 2330 to 2442 per 100,000
78% of imprisoned FNP had experienced prior adult imprisonment
Occupy public space more often due to socio-economic status and connection to land= increased police surveillance and contact w system as accused/victims
Lang differences- Ab-Eng/ require interpreter
Cult differences- Elders involved in sentencing and may carry out punishment (restore balance and maintain relationships) whereas vic systems focuses on retribution and deterrence
Addressing FNP difficulties
Dedicated funding for FNP legal aid to ensure pro and culturally appropriate legal services available:VIC Ab Legal Service- gov funded service that provides legal services including criminal advice
-Djirra- provides legal representation and non-legal non-legal support to FNP experiencing family violence
Developing specialised courts and programs to address cultural differences- Koori court- divisions of Mag, county and Children’s courts that involved community elders respected persons in the sentencing
Purposes of sanctions
Sentencing act 1991 (VIC) sets out purposes for sanctions- must be considered
Judge mustn’t impose a sentence more severe than necessary to achieve purpose
Mustn’t sentence for any other purpose
Punishment
Penalising offenders and holding them accountable when they have done something unacceptable
Ensures retribution for victims and families who will be discouraged from enacting revenge themselves
Imprisonment is ultimate form of punishment
Protection
Achieved by removing offenders from society to ensure they don’t pose a risk to safety and welfare of victims or society as a whole
Imprisonment=last resort, some offenders sentenced to long periods of imprisonment as deemed danger to society
A horrendous crime, lack of remorse and callous attitude indicate a person should be removed
Denunciation
The court aims to publicly and formally criticise/ condemn offenders behaviour
Court expresses its disapproval to highlight how offender has violated moral and ethical standards of society
Often emphasised in cases involving offending that could be undertaken by many members of society
Deterrence
Aims to prevent/discourage offender or general public from reoffending/committing a crime
Specific deterrence:
Offender is discouraged from committing crimes of same/similar nature through sanction. Effectiveness is dependent on offenders personal circumstances
General deterrence:
Individuals other than the offender are discouraged from committing offences of the same or similar nature to avoid receiving same sanction as convicted offender. Effectiveness depends on the public knowing and understanding sanctions
Rehabilitation
Achieved by sanctions that seek to break the cycle of offending and address underlying causes
In societies best interests for offender to reform and reduce crime rates
-counselling, education, training to provide them with a better chance at a better future -> law abiding citizens
Culturally and linguistically diverse people
Born overseas in countries other than main English-speaking countries
BOS:
27.6% Aus born overseas
47.2% one or both parents born overseas
21.4% speak a different language at home (mandarin, Vietnamese, greek, Punjabi, Italian)
Limited awareness and familiarity
Legal system is persons country of origin may be different
Crim justice system is complex, daunting and overwhelming. CALD ppl may seek support from legally untrained individuals in their own community as opposed to legal institutions
CALD ppl may be unaware of their specific rights in defending a charge and accessing legal representation or legal aid
Language differences
A low level of English will hinder pols ability to communicate w lawyers, police and court personnel
CALD ppl may require an interpreter, however:
Shortages in qualified interpreters yet a high demand
Interpreters may be conflicted by recognising the accused from their community
Accused ppl may require additional characteristics from their interpreters
Addressing difficulties CALD
There is courts and service providers provide free interpreters. Victorian government also offers victims of crime and interpreter friendly helpline.
Information and resources are available in different languages :
The Supreme Court office about court processes in multiple language
Victorian legal aid has an extensive list of 36 languages that their website can be translated into
Specials community legal centres for asylum sake
Advice, resources and training are provided to court personnel to ensure that they promote the principles of justice
Intersectional disadvantage
Young people who are particularly at risk of interacting with the criminal justice system, are those experience homelessness, CALD, first Nations have experienced family violence
53% of people in youth, Justice of victims of abuse, trauma, neglect as a child
42% of people in youth justice have witnessed family violence
The younger child is when their first sentence for defence, the more likely they are to reoffend in the future
Addressing difficulties for youth crime
Youth Law VIC is a dedicated 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 ppl away from CJS and help them take responsibility for their behaviours
Intermediaries (skilled comms specialists) are used to assist vulnerable witnesses including children
VIC gov committed to increase age of crim liability to 12 by 2024
Fines
Monetary penalty paid to state
Penalty units 1-3000 (192.31)
Court considers:
Purpose court wishes to achieve
Aggravating and mitigating factors
Offenders financial situation
Court can order fine 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 often imposed on companies as they are corporate entities that cannot be imprisoned
Community correction orders
Non-custodial order by court that allows offender to remain within the community w certain conditions attached
CCO can be imposed alongside a fine/imprisonment of one year or less (served upon release)
CCO can be imposed if
Offence is punishable by 5 penalty units or more
Offender has agreed to a CCO
Single offence max- 2yrs, multiple offences-up to 5 yrs
Cannot be imposed for category 1 offences
Mandatory conditions:
Not reoffending
Don’t leave vic w/o permission
Notify supervisor if change of address
Comply w directions given by CCO
Optional conditions:
Unpaid community work
Abiding by curfew
Undertake medical treatment of rehab programs for drugs/alcohol addiction
Avoiding contact w a particular person
Staying away from a particular place or suburb
Ankle monitoring
Not consume alcohol or attend licensed venues inc bars/nightclubs
Imprisonment
A sanction removes an offender from community and places them in prison for a given period of time
Min period of time before able to apply for parole (early release of a prisoner after min term is served which is subject to supervision and certain conditions)
Concurrent sentences: served at same time as another when offender is convicted of more than one crime
Cumulative: served one after the other
Strengths of fines
Enables court to punish offender as they can’t spend money freely
Large fine enables court to denounce offenders immoral behaviour
Financial loss caused by fines specifically deters and generally deters
Due to deterrent effect of fines, achieve level of protection for society
Weaknesses of fines
Legislated max penalty may not be high enough to truly punish or deter wealthy offenders, large corporations may only be an inconvenience
General deterrence limited bc judgements not published
Protection is not directly achieved as offender is not removed from society, don’t always address underlying causes to rehabilitate offender
CCO strengths
Conditions act as punishment by restricting offenders movements, comm work provides retribution
Inconvenience of conditions may work to generally deter
Flex of optional conditions enables judges to specifically discourage offenders from engaging in certain behaviours. Breaching a CCO can result in imprisonment which acts as a deterrent
Treatment orders support offender to address the underlying causes of behaviour and rehabilitate
Offender may be restricted from interacting with certain ppl and places, thus promoting community protection
CCO weaknesses
Victims may view CCO as a lenient punishment- limit general deterrence
Specific deterrence and rehab are contingent to offenders willingness to engage with conditions and participate in programs
CCO allows offender to remain in comm and they may not adhere to conditions whereby limiting protection
Imprisonment strengths
Offender is punished thru deprivation of their liberty and restricted access to family and friends
As imprisonment is the most severe sanction and a last resort it communicates the courts denunciation of the offenders conduct
Harsh environment of prison will act as a specific and general deterrent as ppl are afraid to receive a sentence of imprisonment
Offender is removed to a secure location, society is protected
Prisons provide rehab programs to prepare to break cycle of offending and prepare them to reintegrate w society
Imprisonment weaknesses
Many violent offenders can apply for parole- may seem unjust to victims or fam who want a harsher punishment
Rate of recidivism in vic is 43.6%- specific deterrence not achieved
Many prisoners who are released reoffend, long term comm protection may be limited if offender is not rehabilitated
High demand for programs and a lack of resources means many prisoners are unable to participate in rehab, harsh environment may exacerbate offenders mental health issues
Aggravating factors
Facts or circumstances about the offender or an offence that can increase the offenders culpability and lead to a more severe sanction
E.G
Whether the crime was planned/premeditated
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 viral person, e.g. a child elderly person or person with disability
Had prior convictions
The offence took place while the offender was on bail or serving their CCO
The crime was committed in front of children
Mitigating factors
Facts or circumstances about the offender or defence that can decrease the fitness culpability and lead to a reduction in sentence
E.G
Genuine remorse
The crime is a result of provocation
The age of the offender, a young offender equals less mature, but more capable 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 offender was not essential, nor was there a risk to any people
Guilty pleas
Guilty plate occurs with a person admits that they committed an offence for which they have been charged
If there are multiple charges, the offender can plead guilty to some or all
If it accused plates guilty during pre-trial then a trial will not be conducted
if accused pleads guilty during trial and the plea is accepted. The accused will proceed to sentencing and trial is adjourned.
The earlier the guilty plea, the more lenient the sentence will be as the offender is being rewarded for accepting responsibility and saving judicial resources
Victim impact statement
An account written by people directly and indirectly impacted by the offence
This account provides insights into the physical, emotional and economic effects of the offence
The statement can inform the judges decision and impact the severity of sentencing
Victim has the right to provide the quote with a victim impact statement statement is given voluntarily
Drug court
Specialist court that can impose drug and alcohol treatment order on offenders who commit crimes, whilst under the influence of drugs or support a drug habit
Established in 2002 as division of magistrates Court, (Melbourne, Dandenong Ballarat, Shepparton) and has expanded to be a division of county court
To be eligible the offender must:
Residing in an area service by the drug court
Guilty to the offence
Be dependent on drugs and alcohol that contributed to their offending
Facing an immediate term of imprisonment, not exceeding two years in the magistrates court or four years in the county court
Be facing charges that are not sexual offences or involve the infliction of actual bodily harm
Note: must be screened to determine whether they are suitable to participate in the DATO program
DATO
Aimed a rehabilitation by providing a judicially supervised therapeutically oriented treatment program. There are two parts:
1. Treatment and supervision
Core conditions:
Not commit offence, punishable by imprisonment, report to and accept visits from relevant officers, give notice of change of address, not leave without permission
Program conditions:
Submit to testing attend to vocational or educational programs, attend medical or psychological treatment, not associate with specified people, reside in a specified place
2. Custodial
Drug court bust pose an imprisonment sentence, not exceeding two years magistrates) or four years (county) This sentence is deferred while the offender undergo treatment and supervision.
Drug court has the power to reward offenders who have been compliant
Failure to comply may result in other sanctions such as unpaid community work or activation of the custodial sentence for a short period of time(max 7 days) the DATO could also be cancelled if the offender is unwilling to participate
Koori court
A division of the magistrates court, County Court and children’s court that operates as a sentencing court for FNP
The process is less formal than a traditional court and encourages open dialogue between the parties. Elders respected persons and family members are empowered to contribute to the discussion.
The magistrate or judge is the ultimate decisionmaker, and has the same sensitive options available as a relevant court
To be eligible:
Be a first nations person
Plead guilty to the offence
Consent to the case being dealt with by the Koori court
Facing charges that are not sexual offences
Diversion programs
A method used in the magistrate and children’s court to direct offenders away from the criminal justice system, and avoid a criminal record.
Intended for first time offenders on low risk, people who have committed summary offences
To be eligible:
Have committed a summary offence or indictable offence, triable summarily
Acknowledge responsibility for the offence to the court
Be considered appropriate to participate by the court
Consent to the program
Be facing a charge that does not have a minimum or fixed sentence (e.g suspension of licence)
Process:
The onus is on the offender. to ask for a diversion.
If the court agrees, the offender is redirected from the sentencing court and placed on a diversion plan. The proceeding is adjourned for up to 12 months to enable them to participate. The plan may include:
Obtained drug and alcohol treatment, or engage with counselling
Write an apology letter to the victim
Undertake educational course
Make a donation to charity or complete community works
If successful, the defendant does not have to put a plate if unsuccessful, the offender sentenced accordingly
