U3 AOS1: Determining a criminal case Flashcards
<p>Victorian Legal Aid (VLA)</p>
<p>A government agency that provide free legal advice to the community and low cost or no cost legal representation to people who cannot afford a lawyer</p>
<p>Purpose of VLA</p>
<p>VLA's vison is a fair and just society where rights and responsibilities are upheld. Thus <strong>making a difference by resolving and preventing legal problems and encouraging a fair and transparent justice system</strong></p>
Roles of VLA
- Provide legal aid in the most effective, economic and efficient manner
- Provide the community with improved access to justice and legal remedies
- Manage its resources to make legal aid assailable at a reasonable cost to the community and on a equitable basis throughout Victoria
Community Legal Centres (CLC)
One type of legal assistance service provider in Australia. As independent organisations that provide free legal services, advice, information and representation to people who are unable to access other legal services
Generlist CLC
A community legal centre that provides a broad range of legal services to people in a particular geographical area
Specialist CLC
A community legal centre that focuses on a particular group of people or area of law (Eg: Youth Law)
Roles of CLS’s
Provide people with
- Information, legal advice and minor assistance
- Duty lawyer assistance
- Legal casework services including representation and assistance
Purpose of CLC’s
Focus on those who need legal assistance the most due to personal circumstances, such as those with a disability to mental health issues.
Commital proceedings
The processes and hearings that take place in the Magistrates Court for indictable offences. Pre - trial procedure. Not used for summary offences.
Act as filtering process to test the strength of the prosecution’s case against the accused, giving the accused the chance understand case.
Take place in MC where
-Accused has been charged with one or more indictable offences and has plead not guilty
Purposes of committal proceedings
- To see whether a charge for an indictable offence is appropriate to be heard and determine summarily
- To decide if there is enough evidence to support a conviction for the offence charged
- To find out whether the accused plans to plead guilty or not
- To make sure there is a fair trial
Committal proceedings ensure purposes by
- Making sure the prosecutions case is disclosed to the accused
- Giving the accused the opportunity to heat to read the evidence
- Allowing accused to put forward a case at an early stage
- Allowing accused to properly prepare and present a case
- Making sure the issues to be argued are properly defined
If the Magistrate finds there is evidence to support a conviction at trial, stand trial and release on bail to wait or be held in remand
Advantages VS Disadvantages or CP
Advantage:
Accused can test strength of the prosecutions case
Disadvantage: Complicated process, can add to the delay of getting trial to case.
Plea negotiations
(In criminal cases) Pre-trial discussions that take place between the prosecution and the accused, aiming to resolve the case by agreeing on an outcome to the charged laid.
- Encourages early determination of criminal case w/o the need to goto trial
- Can take place in relation to summary and indictable offences
Purposes of plea negotiations
To resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed. The charges must adequately reflect the accused wrongdoing
Provide certainty of outcome
Appropriateness of plea negotiations
May only occur if in public interest. Number or factors considered when deciding whether a plea negotiation is in the publics interest and appropriate for the case including:
- Whether the accused is willing to cooperate in the investigation.
- The strength of the prosecutions case, including evidence and likelihood of conviction
- Where the accused is ready and willing to plead guilty
Advantages VS Disadvantages of plea negotiations
Advantages: Reduced sentence for the accused if plead guilty before trial
Disadvantage: Negations don’t need to be disclosed and can be held privately. Lack of transparency causes questioning on the agreement of why the prosecution decided to reduce the severity of charges
The purposes of sanctions
Rehabilitation: A strategy designed to reform the offender preventing them from reoffending. Tailored sanctions to treat the offender to address underlying issues of crime
Punishment: A strategy designed to penalise the offender and show community / victim the criminal behaviour will not be tolerated
Protection: A strategy designed to safeguard the community from an offender in order to prevent them from commuting further offence (prison) that also safeguards community
Denunciation: A process by which a court can demonstrate the community disapproval of the offenders actions. Refers to the disapproval of the courts
Deterrence: A process by which the court can discourage the offender and other in the community from committing similar crimes
General: Aims to deter entire community from committing crime as they see the consequences
Specific: Aims to deter / discourage the offender from committing the same offence again
The responsibilities of key personal
Judge:
- Manage trial and give directions, correcting court procedures so both parties have an equal opportunity to present their case
- Decide disposability of evidence
Jury:
- Be objective (unbiased, putting aside and prejudice or and preconceived ideas)
- Deliver a verdict
Parties:
- Give an opening address (prosecution gives statement to jury on their case before any evidence given to trial)
- Give closing statement (accused entitled to address jury to sum uptake evidence after the close of all evidence)
Legal rep:
- Be prepared (be familiar with the documents for evidence and witnesses called)
-Present case in the best light possible (in best interest to client)
Fines
A sanction that requires the offender to pay an amount of money to the state.
- Levels 1 - 12, Level 2 being the highest with 3000 penalty units and level 12 being the lowest with one penalty unit
- Imposed alone or with other sanctions
Purpose: Punish offenders by having to pay money to the state. Specific deference to deter offender from reoffending. General deterrence to deter members of the public who know they’ll have the pay the same fine.
Factors to consider: The financial positions of the offender, and offender with significant wealth may not punish them as a specific deference as well as the ability to denounce the crime the highest level fine (lvl 2) is just over $46000 which may not send a strong enough message to community to show courts disapproval
Imprisonment
A sanction that involves the removal of the offender from society for a stated period of time and placing them in prison.
- Levels 1 - 9 (1 = life in prison, 9 = 6 months)
Purposes:
‘last resort sanction’
- Removes offender from society - strips liberty and freedom = protection (safer community) and punishment (offending against society)
- May lead to rehabilitation as programs offered reform their criminal behaviour but may lead to recidivism due to influence
- Courts showing disapproval of acts committed and imposing long sentences - denunciation
- Most people deterred to commit a crime by the possibility of going to prison - general deterrence
- Particular offender doesn’t want to goto prison again - specific deterrence
Facts to consider:
- The rate of recidivism and whether imprisonment is effective
- Availability of drugs in prison
- Exposure to offenders and its negative influences
Community Correction Order
A supervised sentence served in the community that includes special conditions, such as treatment of offender and unpaid community work for a number of hours
- Non-custodial sentence
- Can only be imposed if offender has been convicted or fount guilty of an offence punishable by more then 5 penalty units. The court has received a pre-sentence report, and the offence consents to its order
Purposes:
- Punish the offender - conditions such as receiving visas from a Community Corrections Officer, complying with directions given ect. Can be limitation on the freedom of the offender
- Conditions such as alcohol exclusion and treatment/rehab aim to rehabilitate the offender while finding the underlying issues causing the offence
Conditions:
- Must not commit another offence punishable by imprisonment during the timer of the order
- Must report to the specified Community Corrections Centre within 2 working days of the commencement of order
- Must report and receive visits from a Community Corrections officer
Mitigating VS Aggravating factors
Mitigating: Circumstances considered in sentencing that reduce the seriousness of the offence or the offenders culpability. Leading to a less severe sentence.
- Showing remorse
- First offence
Aggravating: Circumstances considered in sentencing that increase the seriousness of the offence or the offenders culpability. Leading to a more severe sentence
- Not showing remorse
- Violent nature of crime
- Committed against a minor
Guilty pleas
Factors considered when a court is sentencing an offender - whether the offender pleaded guilty to offence and if so how far into the case. Can result in less severe sentence
Victim impact statements
When sentencing an offender, the court must consider the impact of the offence of any victim and the personal circumstances of the victim. A Victim impact statement contains the particulars on injury, loss or damage suffered, ect as a direct result of the offence.
Allows victim a voice and aids in deciding appropriate sentence.
Sentence indications
A statement made by a judge to an accused about the sentence they could face if they plead to an offence.
Aim: To give the accused a broad idea of sentence likely to receive if plead guilty to offence at particular point in time
- Can be given for both summary and indictable offences
- Used to encourage accused to plead guilty and possibly finalise criminal charge 1/o need for a full trial or hearing
Appropriateness of sentence indications
- Whether the accused has applied for a sentence indication (Indictable offence)
- Whether there is sufficient information for the judge or magistrate to make an indication, including info, impact on victim
- The strength of the evidence against the accused and whether the accused has raised a legitimate defence of the nature of the crime
Purpose of sentence indications
To provide the accused with some clarity about the likely sentence that will be imposed, so that they can make and early decision to plead guilty & alleviate fear that they will receive a custodial sentence.
Sentence indications for summary offences
1) Can be given at any time by the Magistrates Court
2) No need for the prosecution’s consent
3) Indication as to whether the sentence of imprisonment or sentence of another type is likely to be imposed
Sentence indications for indictable offences
1) Accused must apply for sentence indication
2) prosecution must consent
3) Indication as to whether immediate sentence of imprisonment is likely to be imposed.
Advantages VS Disadvantages of Sentence indications
Advantage: Save money and resources. Not going to trial saves the community and prosecution money
Disadvantage: The sentence indication may be given before all facts of the case are provided. May disadvantage offender who pleaded guilty as it commits them to a particular sentence that might be different depending on the facts.
Concurrent, cumulative, aggregate sentences
Concurrent: Runs at the same time as another sentence. eg someone found guilty for theft and assault, sentences to 6mths in prison for theft and 2 yrs for assault
Cumulative: A sentence served straight after another sentence. eg serving 6mths and then 2 yrs
- Serious offenders
Aggregate: Offender convicted of multiple, related offences, the court has the option of imposing a aggregate sentence that applies to more then one offence rather than separate sentences for each offence
- Judge may hand down sentence of 3yers in prison for all offences but may not specify how much of each sentence is with respect to each offence.
Indefinite sentences
Convicted by the Supreme Court or the County court of a serious offence, the court may sentence them to a perm of Imprisonment (rape, murder, manslaughter, kidnapping)
Imposed on a offender who is deemed a serious danger to the community
Reviewed periodically
Recidivism
Re-offending, returning to crime after already having been convicted and sentenced. In Victoria the recidivism rate if return on released prisoners is about 40%
