U3 AOS1 The Australian Criminal Justice System (4)

Question 1

Cross-examination

Answer 1

The process of questioning witnesses called by the prosecution, to test the accuracy and reliability of the evidence they present in court.

Question 2

Legal practitioner

Answer 2

An individual with legal training, qualified to give evidence and appeal in court. Generally, a solicitor prepares legal documentation (e.g., the hand-up brief presented during a committal proceeding) and a barrister is responsible for representing a party in a trial (e.g., making legal arguments etc).

Question 3

Responsibilities of the prosecution in the opening and closing address

Answer 3

When the barrister outlines their case at the beginning (opening address) and end (closing address) of the trial this includes a summary of the evidence they will present/have presented, the facts they want the court to accept as true based on this evidence, and a summary of legal arguments as to why the accused is guilty beyond reasonable doubt.

Question 4

Responsibilities of the prosecution in the presentation of the case to a judge and jury

Answer 4

The responsibility of the prosecution to present all relevant evidence, by calling witnesses for examination in front of the judge and jury throughout the trial. This means asking questions of the witnesses they call, with witnesses’ responses informing the court as to the facts in the dispute.

Question 5

Responsibilities of the defence in the opening and closing address

Answer 5

Accused person’s barrister will summarise legal arguments for why accused is not guilty (raising lawful defences) and/or challenge whether the prosecution has proven the accused person is guilty beyond reasonable doubt (which may include summarising any doubts raised during the trial about the accuracy of the evidence presented by prosecution witnesses).

Question 6

Responsibilities of the defence in the presentation of the case to a judge and jury

Answer 6

The accused person’s legal representative will cross examine witnesses called by the prosecution, to test the accuracy and reliability of the evidence they present in court.

Question 7

List three responsibilities that are similar to the prosecution and the defence

Answer 7

All legal practitioners have a duty to assist the court, by raising all relevant legal principles that the court may need to consider in reaching a verdict (even if such legal principles are in conflict with their client’s interests);

All legal practitioners have a duty not to mislead the court and a duty to act with courtesy towards the court and all witnesses;

All legal representatives advise the judge as to which legal principles should be presented to the jury in the judge’s final directions;

Question 8

List the purposes of sanctions as protected in section 5 of the Sentencing Act 1991 (Vic)

Answer 8

Punishment, deterrence (i.e., specific and general), rehabilitation, denunciation, and protection.

Question 9

What is the purpose of punishment as a sanction?

Answer 9

A sanction imposed that is more severe to ensures offenders ‘pay’ for the impact their crimes have had on victims of crime and or society as a whole therefore sentencing judges use the totality and proportionality principles.

Question 10

The totality principle

Answer 10

Requires a sentencing judge to impose a sentence that is should be just appropriate to reflect the entire or overall impact of an offender’s crimes where the offender has been convicted of a number of crimes.

Question 11

The proportionality principle

Answer 11

A sentence should reflect the gravity of the offender’s criminal behaviour that is, ‘how much’ someone should be punished should more or less equate to ‘how much’ detriment that offender’s crimes have caused.

Question 12

Sanctions

Answer 12

A penalty imposed by a court after an accused person is found guilty on an offence or pleads guilty to an offence.

Question 13

The principle of parsimony

Answer 13

A sentencing judge must take the five purposes set out in the Sentencing Act into consideration when imposing a sentence but must not impose a sentence that is more severe than necessary to achieve the purpose of the sentence imposed.

Question 14

What is the purpose of deterrence as a sanction?

Answer 14

A means to ‘make an example’ of the offender in an effort to sway the offender or possible future offenders away from committing similar crimes through the imposition of a more severe criminal sanction that of which will usually be accompanied by comments from the court stating that the longer sanction is designed to specifically and/or generally discourage such offending.

Question 15

Specific deterrence

Answer 15

Occurs when the offender themselves is discouraged from committing offences of the same or similar character through the provision of a sanction.

Question 16

General deterrence

Answer 16

Occurs when individuals other than the offender (the public at large) are discouraged from committing offences of the same or similar character through the provision of a sanction.

Question 17

What is the purpose of rehabilitation as a sanction?

Answer 17

To sentence criminal offenders in a manner that aims to break the cycle of criminal behaviour (or ‘recidivism’) so that criminal offending may be prevented or stopped, thereby addressing the underlying cause of the criminal behaviour.

Question 18

Advantages of rehabilitation

Answer 18

Some criminologists argue that criminals are ‘born not made’ therefore some believe that it is particularly important to rehabilitate juvenile offenders in order to stop the cycle of serial criminality. Rehabilitation is also encouraged because recidivism statistics suggest that offenders who have undergone some kind of rehabilitation have a better chance of integrating back into society, facilitating more stable family environments, and sustaining employment upon their release.

Question 19

Disadvantages of rehabilitation

Answer 19

Some criminologists argue that criminality is innate and therefore rehabilitation has little to no effect on criminals. There are high costs involved with facilitating rehabilitative services in prisons and juvenile institutions, an expense that some argue is unworthy of investment as people who have committed crimes do not deserve such a luxury at the public’s expense.

Question 20

What is the purpose of denunciation as a sanction?

Answer 20

A means to publicly condemn or criticise the offender’s criminal behaviour by imposing a more severe sanction to highlight the extent to which the offender has transgresses against or violated the moral and ethical standards of society. This will usually be accompanied by comments from the court stating the extent of the court’s outrage and condemnation regarding the offence in question.

Question 21

What is the purpose of protection as a sanction?

Answer 21

A means to ensure that offenders who pose a significant risk to the welfare of society (and/or their victims) are removed from the community. The level of protection provided to society should be proportionate to the degree of risk posed by an individual offender.

Question 22

List the types of sanctions

Answer 22

Fines, community correction order (CCO), and imprisonment.

Question 23

Fine

Answer 23

A monetary payment the court will order an offender to make, as a penalty for a criminal offence expressed in penalty units (i.e., in 2019 one penalty unit equates to $165.22).

Question 24

Factors considered when imposing a fine

Answer 24

When imposing a fine, a judge takes into account the financial circumstances of the offender, any aggravating or mitigating factors and the purpose the court wishes to achieve.

Question 25

Community correction order (CCO)

Answer 25

A community-based sentence in which a judge or a magistrate will set a time period for which the offender must comply with the CCO (i.e., up to five years), which may have various conditions attached to it (i.e., mandatory or core, or optional conditions). A CCO can be combined with a prison sentence of up to 12 months.

Question 26

Breaching the conditions attached to a CCO

Answer 26

Breaching the conditions attached to a CCO is an offence; the maximum penalty for doing so is three months imprisonment.

Question 27

Mandatory conditions

Answer 27

Conditions that apply to every offender (e.g., completing a set number of hours of unpaid community for such as rubbish collection in a public park, and they must not commit another offence during order).

Question 28

Optional conditions

Answer 28

Optional conditions are that those are specific to an offender (e.g., undertaking medical treatment or rehabilitation for drug or alcohol addicted offenders which may include drug or alcohol testing to ensure the offender is complying with the treatment the court has ordered, curfew, and judicial monitoring).

Question 29

Contravention of a CCO

Answer 29

The act of doing something that is not allowed or permitted by law. The two types of CCO contravention are contravention by further offending and contravention by non-compliance.

Question 30

Options for managing non-compliance of CCO’s

Answer 30

Contravention proceedings – Address reoffending or non-compliance by returning offender to court;

Warning by a senior officer – Delivered in person to indicate non-compliance is escalating;

Administrative review hearing – Meeting between senior officer and offender, authority and motivation used to encourage compliance;

Question 31

According to section 45 of the Sentencing Act 1991 (Vic) all offenders on a CCO must:

Answer 31

Not commit offences that are punishable by imprisonment;

Report to community corrections centres;

Stay in Victoria unless granted permission to leave the state;

Question 32

According to Section 83AD of the Sentencing Act 1991 (Vic):

Answer 32

An offender who is subject to a CCO must not contravene that order unless the offender has a reasonable excuse.

Question 33

Imprisonment

Answer 33

A sanction of last resort that is the most severe penalty a court can impost where an offender is held in custody for a given period of time. A minimum period of imprisonment (non-parole period) will be provided after which an offender can apply for parole.

Question 34

Parole

Answer 34

Supervised and conditional release of a prisoner for good behaviour, or if they are not regarded as a threat to public safety after the minimum period of imprisonment has been served.

Question 35

Cumulative sentence

Answer 35

A cumulative sentence, or consecutive sentence, is one that does not begin to run until the expiration of a prior sentence. For example, if an offender is given three years for burglary and one year for stealing, they would serve four years.