Sanctions Flashcards
1
Q
Purpose of Criminal law
A
aims to protect the community by defining what a crime is and determining appropriate penalties for people who commit crimes.
2
Q
Role of Courts
A
The role of the court will be to decide whether the person is guilty of the offence and impose a penalty on that person.
3
Q
An accused
A
can be a human being, a company or an association
4
Q
Director of Public Prosecutions (DPP):
A
prosecutions of indictable offences on behalf of the Crown
5
Q
Office of Public Prosecutions (OPP):
A
The Victorian public prosecutions office which prepares and conducts criminal proceedings on behalf of the DPP
6
Q
What are the principle of Justice in criminal law?
A
- Fairness
• Equality
• Access
7
Q
Fairness:
A
fairness means there should be fair legal processes and a fair hearing or trial. without discrimination
8
Q
Equality
A
In criminal cases, it means that people should be treated equally before the law, and people should have an equal opportunity to present their case.
- For equality to be achieved, the accused person may need to be treated differently.
9
Q
Access
A
Access means that all parties should be able to understand their legal rights and should have the right and opportunity to use the institutions, processes and systems that are used for criminal cases.
10
Q
What its the role of the police?
A
The role of the police is to serve the community and the law and to enforce criminal law.
11
Q
The role of Victoria Police
A
is to serve the Victorian community and uphold the law to promote a safe, secure and orderly society.
12
Q
What kind of tasks does the Victorian police undertake?
A
- talk to victims or witnesses about what happened
- question possible suspects
- examine the scene(s) of the crime
- look for and gather physical or forensic evidence
- conduct searches of people or property
- arrest accused persons
- charge people with the offences that most fit the crime.
13
Q
Role of the Australian Federal Police
A
The role of the AFP is to investigate and enforce offences that have a federal aspect. Offences that have a federal aspect include those offences that are against the law of the Commonwealth or a territory
14
Q
What are delegated bodies?
A
These bodies are known as delegated bodies because they are delegated (or given) power by the parliament to make and/or enforce laws.
15
Q
Examples of State delegated bodies
A
- Consumer Affairs Victoria
- Environmental Protection Authority (EPA)
- Local councils
- State Revenue Office (SRO)
- VicRoads
- Victorian Work Cover Authority (WorkSafe Victoria)
16
Q
Commonwealth delegated bodies
A
- Australian Securities and Investments Commission (ASIC)
- Australian Taxation Office (ATO)
17
Q
What are Institutional powers?
A
the authority (i.e. power) given to bodies (i.e. institutions) such as Victoria Police to undertake certain actions
18
Q
Examples of Institutional powers
A
- Arrest
- Questioning Bail
- Court proceedings
- Imprisonment of the offender
19
Q
Arrest:
A
Once a crime has been committed, the police will have the power to arrest. The power of arrest, with or without a warrant.
Police can arrest without a warrant if the offender apposes to be an immediate risk to society.
20
Q
People’s rights during arrest.
A
- An individual can refuse to attend the police station unless they are under arrest.
- They must be informed at the time of arrest the reason for the arrest, and be promptly informed about any proceedings that are to be brought against him or her.
- Arrested person must be promptly brought before a court and have the right to be brought to trial without unreasonable delay.
- If arrested, a person must be released (unconditionally or on bail) or brought before a bail justice or magistrate in the Magistrates’ Court within a reasonable time of being taken into custody.
21
Q
Bail
A
However, the right to bail and the right to apply for bail are balanced by powers given to the prosecutor to oppose bail, and to the person deciding on bail to refuse bail or impose certain conditions. The prosecutor can also apply to revoke (i.e. cancel) bail.
22
Q
People’s rights Questioning
A
• the person must first be informed that he or she does not have to do or say anything
- the person must be informed that he or she is able to communicate with or attempt to communicate with:
- A friend or relative (to inform them of his or her whereabouts)
- A legal practitioner and is allowed to do so unless the communication would result in the escape of an accomplice, or the fabrication or destruction of evidence, or the questioning is so urgent that it should not be delayed.
• The person has a right to an interpreter
• If the person is under 18 years of age, a parent, guardian or independent person must be present during the questioning
23
Q
For summary offenses the Magistrates’ Court
- hear and determine
A
For summary offenses, the Magistrates’ Court will hear and determine the charges and the magistrate will decide on guilt.
24
Q
For indictable offenses the Magistrates’ Court
- committal proceeding
A
For indictable offenses, the Magistrates’ Court will determine whether there is evidence of sufficient weight to support conviction at trial (through procedures known as the committal proceeding) before the matter is then transferred to either the County Court or Supreme Court for pre-trial procedures and, eventually, trial.
25
committal proceeding:
the processes and hearings that take place in the Magistrates’ Court for indictable offenses
26
Court proceedings
* be presumed innocent until proven guilty
* be informed promptly and in detail about the nature and reason for the charge
* have adequate time and facilities to prepare the defense
* be tried without unreasonable delay
* have legal aid if the interests of justice require it
* have the assistance of an interpreter if needed
* have the opportunity to challenge and rebut the evidence put against him or her, which includes examining the prosecution’s witnesses, and examining his or her own witnesses.
* Many of these rights aim to ensure the principles of justice are achieved.
27
Imprisonment of the offender
Imprisonment aims to protect the community as well as punish offenders by depriving them of their liberty.
28
The rights of prisoners
* the right to be in the open air for at least an hour each day (weather permitting)
* the right to be provided with adequate food and, where necessary, special dietary food (for example, where the prisoner is vegetarian or has religious beliefs)
* the right to be provided with suitable clothing
* the right to have access to reasonable medical care and treatment as well as reasonable dental treatment
* if the prisoner is intellectually disabled or mentally ill, the right to the appropriate special care and treatment
* the right to practice a religion, which includes the right to join with other prisoners to practice that religion (so long as it does not jeopardise prison security)
* the right to receive at least one half-hour visit a week.
29
Reasons for a court hierarchy
* The court hierarchy allows for specialisation or expertise.
* The court hierarchy enables the parties to a court case to appeal to a higher court if they are not satisfied with the decision in a lower court.
* The court hierarchy is a necessary part of the doctrine of precedent (law-making through courts)
* A court hierarchy allows for administrative convenience.
30
Federal courts hierarchy
1. High Court of Australia 2a. Federal Court of Australia 2b. Family Court of Australia 3. Federal Circuit Court of Australia
31
Victorian courts hierarchy
1.Supreme Court (Court of Appeal) 2. Supreme Court (Trial Division)- 3. County Court of Victoria - 4. Magistrates’ Court of Victoria - 5a. Coroners Court - 5b. Children’s
32
The role of Victorian courts
* Determine a criminal case (by deciding whether the accused is guilty)
* Impose a sanction (if a person has been found, or has pleaded, guilty).
33
A judge or magistrate
will oversee the trial. The judge or magistrate, in doing so, will act as an impartial referee, and with no bias or connection with either party.
34
plea hearing
If an accused pleads guilty, or the magistrate or jury finds the accused guilty, then the court will set a date for the plea hearing.
- Upholds the Prinsiple of Justice.
Both parties make submissions about the facts of the case, the circumstances of the offender, the relevant factors that should be taken into account in sentencing and the type of sentence the offender should receive.
35
original jurisdiction
When a court is hearing a dispute for the first time, it is operating in its original jurisdiction
36
appellate jurisdiction
When a court is hearing an appeal, it is operating in its appellate jurisdiction.
37
Magistrates’ Court Hear
Summary offences
• Indictable offences heard summarily • Committal proceedings
• Bail and warrant applications
38
Magistrates’ Court
- Appellate Jurisdiction
- Yes or no
• No appellate jurisdiction
39
County Court Hear
• Indictable offences except murder, attempted murder, certain conspiracies, corporate offences
40
County Court
- Appellate Jurisdiction
- Yes or no
From the Magistrates’ Court on a conviction or sentence
41
Supreme Court (Trial Division) Hear
• Serious indictable offences
42
Supreme Court (Trial Division)
Appellate Jurisdiction
- Yes or no
From the Magistrates’ Court on a question of law
43
Supreme Court (Court of Appeal) hear
• No original jurisdiction
44
Supreme Court (Court of Appeal)
Appellate Jurisdiction
- Yes or no
• From the County Court or the Supreme Court (with leave)
45
jury system
used to determine whether a person is guilty of an offence.
46
A trial by jury
is a trial by peers in which an impartial group of people are randomly selected to hear the evidence and hand down a verdict as to whether the accused is guilty or not guilty.
47
Criminal juries are used in......
- Juries are never used in the Magistrates’ Court and are not used in appeals.
Criminal juries are used in the original jurisdiction of the County Court and Supreme Court.
48
Selection of Juries
The selection of the jury is random. Persons aged 18 years or over who are enrolled to vote in Victoria are qualified and liable for jury service.
49
generally four categories of people who will be unable to serve on a duty
ineligible people, people who are excused, people who are disqualified and people who are challenged.
50
Hung jury
This means that the accused has not been found either guilty or not guilty, and can be tried again at a later date.
51
Rules that juries have to impose during a legal case
- once they are selected to be on a jury and until they are excused from jury service.
At no stage are members of a criminal jury, allowed to make enquiries about trial matters. This includes using the internet to search for information about the case.
52
Strengths of having a jury
- ensuring equality and fairness in their decision.
| - It reflects community values and brings a common- sense approach to decision-making to the court
53
Weakness
- Jurors do not give reasons for their decision.
| - Jurors may be unduly influenced by skilled lawyers or by the emotional elements of a trial.
54
Custodial sentences
where the offender is removed out of society and into an institution
55
non-custodial sentences
where the offender serves the sentence in the community
56
Fines
Expressed in penalty units, ranging from 1 penalty unit to 3000 penalty units. . The general purposes of fines are to punish the offender, deter the offender from committing crimes any further and deter the general community.
57
Community correction order (CCO)
A community correction order (CCO) is a sanction that allows an offender to remain in the community whilst serving the sanction.
In addition, the offender is required to comply with at least one other ‘optional’ condition, such as performing unpaid community work.
58
A CCO cannot be imposed on....
on an offender who has committed a ‘Category 1’ offence (which includes murder and rape), ‘Category 2’ offence (which includes manslaughter and kidnapping) unless special circumstances exist (such as where the offender has impaired mental functioning).
59
A CCO can be imposed if:
* the offence is punishable by more than 5 penalty units
| * the offender consents to the making of a CCO
60
Purposes of community correction orders
A CCO can also serve as a specific deterrent as well as a general deterrent. This is particularly so if the treatment and rehabilitation condition or alcohol exclusion condition is imposed, both of which aim to address the reasons for offending.
61
Imprisonment
Involves the removal of the offender out of society and into a facility known as a jail or prison. Each offence has a maximum penalty that can be imposed for that offence.
62
Level 1.
level 2
Level 9.
Level 7.
Life
- 25 years
- 6 months
- 2 years
63
concurrent sentences
(served at the same time).
64
cumulatively.
Served one after the other
65
Factors which may reduce the sentencing
- Nature and gravity of offence
- Early guilty plea
- Mitigating factors
- Lack of prior offending
- Remorse
66
Factors which may increase the sentencing
If the offending is on the high end of the scale, then it is possible that the court will view a higher sentence as more appropriate.
67
The Drug Court
- It does this by imposing a Drug Treatment Order (DTO) on the offender.
The Drug Court - deals with offenders who commit crimes while under the influence of drugs or to support a drug habit. By directly addressing the issue of drug and alcohol dependency. It does this by imposing a Drug Treatment Order (DTO) on the offender.
68
Drug courts Eligibility
* the offender must reside within an area serviced by the Drug Court
* the offender must plead guilty to the offense
* the offense must be within the jurisdiction of the ‘Magistrates’ court - summary offense, or an indictable offense heard summarily
* the Drug Court must be satisfied that the offender is dependent on drugs or alcohol, and that dependency contributed to the offense being committed.
69
The Koori Court
- This is achieved by having elders and family members present during sentencing.
The Koori Court is a sentencing court available to an Aboriginal accused person. Its aim is to provide an informal atmosphere for sentencing and to allow representation from the Aboriginal community in the sentencing process.
This is achieved by having elders and family members present during sentencing.
70
The Koori Court Eligibility
* the accused must be Aboriginal
* the offense must be within the jurisdiction of the relevant court
* the offense must not be a sexual offense, or a contravention of a family violence intervention order or personal safety intervention order
* the accused intends to plead guilty or has pleaded guilty
* the accused consents to the case being dealt with by the Koori Court.
71
Diversion programs
- The program is intended for first-time offenders and allows those offenders to avoid a criminal record
- A diversion program is available in the Magistrates’ Court and Children’s Court for summary offenses. It is a way in which a criminal matter can be dealt with out of court by placing the offender on a program (sometimes called a plan), rather than entering a plea or being found guilty.
More common offenses that the offender may have committed include criminal damage, theft, or minor drug offenses.
72
Diversion programs Eligibility
* the accused must acknowledge to the Magistrates’ Court responsibility for the offense
* it must appear appropriate to the Magistrates’ Court that the accused should participate in the program
* both the prosecution and the accused consent to the matter being diverted
* The offense is not one that is punishable by a minimum or fixed sentence or penalty (such as a suspension of a license).
73
Criminal appeals grounds:
on a point of law
on a conviction
on the severity or leniency of the sanction (sentence)
74
Original Criminal jurisdiction cont.
purpose:The aim is to avoid a full trial when there is insufficient evidence to support a conviction
75
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Key terms
Acquittal:
Adjudicate:
Appeal:
Conviction:
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Acquittal: a finding of not guilty of an indictable offence prosecuted in a criminal trial
Adjudicate: to judge and give a decision
Appeal: a hearing that re-considers a decision from a lower court
Conviction: a criminal offence which has been proved
76
Trial jury: l2 - job description
- will deliver a majority verdict if an offense under state law or
- a unanimous verdict if an offense under federal law
77
The use of penalty units
The use of ‘penalty units’ instead of fixed monetary fines enables the government to increase all fines by increasing the value of a penalty unit every year without having to change every statute.
78
In Section 36A of the County Court Act 1958 (Vic),
The County Court hears all indictable offences except includes treason, murder, attempted murder and certain conspiracies. If the accused pleads not guilty, the hearing at which guilt is determined is known as a trial.
79
The Children’s Court - jursidiction
The Children’s Court is a specialist court for children aged 10 to 17 years at the time of the offence, and under 19 years when proceedings begin. The Criminal Division deals with all cases in which a child has been charged with an offence, except for certain offences (i.e. murder, attempted murder, manslaughter, child homicide, arson causing death and culpable driving causing death). Those offences are dealt with in the County or Supreme Court.
80
The Coroners Court - jursidiction
The Coroners Court of Victoria performs the special function of investigating any death that is considered unexpected, unnatural or violent or resulted from an accident or injury, or a death that occurs during or following a medical procedure
81
Disqualified Jury
These people either have a particular type of criminal conviction or have been declared bankrupt and remain a bankrupt person.
82
Excused Jury
Possible reasons include ill health, excessive inconvenience to get to the court, substantial hardship in attending court, or having to care for dependents.
83
Challenges Jury
| Peremptory challenges
There is no limit on the number of challenges with cause, but there is a limit on the number of ‘without cause’ challenges (known as peremptory challenges – a party is given two each).
84
Purpose of sanction - PUNISHMENT
- One of the purposes of sanctions is to punish (i.e. penalise) the offender. This allows victims and their families to seek retribution without taking the law into their own hands.
- Imprisonment and the deprivation of freedom is the ultimate punishment in our society.
- Australia no longer uses capital punishment or corporal punishment as a sanction, as these punishments are considered inhumane and unacceptable in the twenty-first century.
85
Purpose of sanction -- Rehabilitation
- A further aim of sentences is to rehabilitate (treat) the offender. It is in society’s interests to try to help offenders change their ways, otherwise crime rates and prison costs will escalate.
- change their offending ways and become law-abiding citizens.
86
Purpose of sanction - Protection
- One of the aims of sentencing is protection. This aim seeks to ensure the safety of society by imposing a sanction that will prevent the offender from harming again.
- some offenders are given very long periods of imprisonment because the courts deem them to be a danger to society.
- The horrendous nature of the crime, the lack of remorse and the offender’s callous attitude indicate that the person should be kept out of society for as long as possible.
87
Purpose of sanction - Denunciation
- This is known as denunciation and it is designed to convey the message that this type of criminal behaviour will not be tolerated by the courts.
- Impose a sentence that is harsh enough to show its disapproval
88
Purpose of sanction - General deterrence and specific deterrence
- A sanction imposed as a general deterrent is one that discourages people in general from committing the crime, whereas a specific deterrent is aimed at stopping the particular offender who is being sentenced from repeating the offence.
89
Purpose of sanction - Deterrence
- The law aims to deter or discourage the offender and others in society from committing the same or similar offences in the future by imposing a penalty that is severe enough that the offender and others can see the serious consequences of committing the crime.
90
Mitigating factors
- Examples of mitigating factors include where the offender was acting under duress, prospects of rehabilitation, any personal strain the offender was under, the lack of injury or harm caused by the offence, or full admissions made by the offender.
91
Aggravating factors
Aggravating factors include the use of violence or explosives, the offence taking place in front of children, the offender being motivated by hatred or prejudice, or the offender being in a position of trust and has breached that trust (for example a parent committing a crime against a child).
