U3 AOS1 - The Victorian Criminal Justice System Flashcards
(109 cards)
1
Q
what is fairness?
A
Fairness requires a level of impartiality and a lack of bias in legal processes, systems, and institutions. It also requires that all parties to a case receive an unbiased hearing, meaning that the person exercising administrative power, eg. the judge, is objective and impartial.
2
Q
what is equality?
A
The legal system should strive to achieve non-discriminatory outcomes, including equal protection for all who come before it. However the system acknowledges that, invariably, there are differences, and so there should be resources that exist to provide balance, therefore, seeking equal rights and responsibilities, and ensuring no individual is disadvantaged.
3
Q
what is access?
A
Requires that all people should be able to understand their legal rights and pursue their cases. This means more than just being able to access the institutions that hear criminal cases, but also for people to be able to approach bodies that provide legal advice, education, information, and assistance about the various proceedings that occur.
4
Q
what are summary offences?
A
minor criminal offences that are heard in the magistrates court by a magistrate (rather than a judge) and they can be heard in the absence of an accused. EG. drink driving, minor assaults, and disorderly conduct.
Some summary offences are listed in the Summary Offences Act 1966 (vic), but many are listed in other statutes and legislation.
5
Q
what are indictable offences?
A
serious offences heard by judge (and jury if accused pleads not guilty) in the County or Supreme Court. They must be heard in the presence of the accused, and the final hearing is called a trial. EG. homicide or sexual offences
Indictable offences are listed in the Crimes Act 1958 (Vic).
6
Q
what are indictable offences heard summarily?
A
serious offences that can be heard in the MC. An offence may be tried summarily if the court believes it is appropriate and the accused will opt for this as MC is cheaper/quicker and has a lesser max penalty. EG. some stealing and theft cases
7
Q
what are the four main differences between summary and indictable?
A
- Summary is minor, indictable is serious
- Summary offences are exclusively heard in magistrates court,whereas indictable offences are generally heard in the county or supreme court.
- Summary offences may be heard in the absence of the accused, but indictable offences must be heard with the accused.
- There is no right to a jury in summary offences, but there is in indictable offences.
8
Q
what is the burden of proof (criminal)?
A
Refers to the responsibility of a party to prove the facts of a case and it lies with the person bring the case ie. the prosecution. This is because they’re the one initiating the case so it makes sense that it’s their obligation to establish the facts
9
Q
what is the standard of proof (criminal)?
A
The strength of evidence required to prove a case. Ie. in a criminal case the prosecution must prove it beyond reasonable doubt. This means any average person should not have any rational doubt as to the guilt of the accused. Ie. No other logical or reasonable conclusion can be reached based on the evidence presented
10
Q
what is the presumption of innocence?
A
An old common law right backed by the Charter of Human rights. Every accused person is assumed to be innocent until they have been proven guilty beyond reasonable doubt in the court of law
Accused doesn’t need to prove they aren’t guilty and instead needs substantial evidence to be convicted (burden and standard of proof) and a bail system. However, realistically most defendants don’t properly receive presumption of innocence. Police are often given the benefit of the doubt in jury cases. As well, remand may mean they don’t get the opportunity to properly prepare their case as right is denied.
11
Q
what is the right to be tried without unreasonable delay?
A
Anyone charged with a criminal offence is entitled, without discrimination, to a guarantee that he or she will be tried in a timely manner and that delays will only occur if they are considered to be reasonable.
Factors like the complexity of the case and legal issues involved are considered in determining the reasonableness of a delay.
Eg. If there were multiple crime scenes and accused with few witnesses, a longer delay would be okay as the prosecution needs more prep time. But if there was only one crime scene, with multiple witnesses, a long delay would be unreasonable.
12
Q
what are three strengths of the right to be tried without unreasonable delay?
A
reduces uncertainty for accused as swift justice instead of drawn-out process (A)
no degradation of evidence (A,F)
Lessens emotional strain on accused as they can get back to their lives quicker (F)
13
Q
what are three limitations of the right to be tried without unreasonable delay?
A
Hard to find balance between ensuring all accused are tried without unreasonable delay and ensuring prosecution and defence have enough time to gather evidence and prepare their case to ensure a fair hearing. (F,A)
don’t want to rush case and miss important facts (A,F)
Sometimes, there are large backlogs of cases, particularly in lower courts like the Magistrates. (A)
14
Q
what is the right to a fair hearing?
A
Anyone charged with a criminal offence is entitled by the Human Rights Charter to have the charge decided by:
A competent, impartial court. Ie. by a qualified and experienced judge or magistrate in an unbiased and objective matter, after a;
Fair, public hearing ie. Hearing is open to the public so trials and processes are transparent and the public knows laws are being applied properly.
15
Q
what is a strength of the right to a fair hearing?
A
Judges are expert and impartial. Can enforce rules of evidence and procedure so only relevant evidence is introduced. Example of prior charges inadmissible as evidence. (F,E)
16
Q
what is a limitation of the right to a fair hearing?
A
May conflict with victims rights to alternative arrangements. Eg. victims of criminal acts of violence can be exempt from being cross examined so the accused does not get to test the strength of evidence. Eg. Some vulnerable witnesses can have the court closed to the public while giving evidence. (F,E,A)
17
Q
what is the right to a trial by jury?
A
Protected by the Australian Constitution and partly by statute law. Any person charged with a commonwealth indictable offence where they plead not guilty, is entitled to have their case heard by a jury (made of 12 people).
18
Q
what are four strengths of the right to a trial by jury?
A
Issues of fact and law are determined by peers. Judged from the perspective of the common person (E)
Minimises the power of the state (E)
Spreads the decision making (A)
Greater protection of the rights of the accused as unanimous/majority jury likely to be correct (F)
19
Q
what are five limitations of the right to a trial by jury?
A
Numerous people are not eligible to be on jury service which may hinder how representative a jury actually is (F,A)
Jurors are not legal experts so they may struggle to put aside biases and external factors, or be influenced by the media. (F,E)
Also limited as juries are only guaranteed in indictable offences, not summary offences at the magistrates court (A)
Juries don’t have to justify judgement so no way to ensure process is free from bias, unlike judges (F)
Made up of people who don’t work in the system. Gaps in knowledge could unfairly influence the verdict (F)
20
Q
what is a vulnerable witness?
A
someone required to give evidence in a criminal case who is considered to be at risk when giving evidence as their circumstances may make them uncomfortable, distressed, embarrassed, or intimidated.
Eg. a child, a person with a cognitive impairment, or a victim of a sexual offence.
Their main protection comes from the Criminal Procedure Act which allows for alternative arrangements to be put in place when a witness gives evidence. Thus making it less stressful and traumatic to give evidence.
21
Q
what are alternative arrangements (right to give evidence as a vulnerable witness)?
A
Alternative arrangements are used in criminal proceedings for eg. sexual offences, family violence offences, and an offence for threatening behaviours. They include:
Using screens to remove the accused from the victims direct line of vision.
A support person may be chosen by the witness
Having court closed to the public while evidence is given (although this may conflict with rights to a fair and public hearing).
Court can declare a witness a protected witness for a sexual or family violence offence meaning they mustn’t be cross examined by the accused (however, this could conflict with accused right to a fair hearing).
22
Q
what are two strengths of the right to give evidence as a vulnerable witness?
A
Appropriate access to give evidence in court, and not deterred from pursuing justice (A)
Protects from re-trauma/secondary trauma so vulnerabilities aren’t exacerbated and rights of the accused don’t predominate. Careful consideration to level playing field and minimise disadvantage (E)
23
Q
what are four limitations of the right to give evidence as a vulnerable witness?
A
Having court closed can conflict with accused rights to a fair and public hearing (F,A)
Being unable to cross examine may interfere with accused rights to fair trial as they can’t test strength of evidence (F,A)
It is still traumatic to give evidence, especially twice with both committal proceedings and at trial. (F)
Jury may be prejudiced by different conditions to give evidence (sympathy, or doubting reliability) (F)
24
Q
what is the right to be informed about the proceedings?
A
Victims are entitled to certain information about the proceedings and the criminal justice system. Investigatory agencies and victims services (eg. police, DPP, Victims of Crime Commissioner) are obligated to provide clear, timely, and consistent information regarding the investigation of the offence and the prosecution of the accused. The Victims Rights Charter entitles victims to:
Be told by police about progress of investigation of the offence and if the investigation may out the victim at risk
Have court processes be explained to them
Be told about the prosecution of the accused eg. details of the charges laid, and if no offence is charged, why; court dates, locations and times of hearings; the outcomes of any proceedings and sentences; and details of any appeals
25
what are two strengths of the right to be informed about the proceedings?
Victims can understand proceedings and navigate with stronger position (A)
Parties at risk of emotional harm from seeing the perpetrator are better supported if given information relating to details of any appeal, outcome of proceeding so not re-traumatised (E)
26
what are two limitations of the right to be informed about proceedings?
May intrude on a convicted person’s right to privacy after serving sanction imposed by the court, compromising their right to equal treatment (E)
Can be failed in instances where the prosecution doesn’t have time to inform victim of developments such as charges dropped/plea agreements made (A,F)
27
what is the right to be informed about the release date?
Any individual who is a victim of a criminal act of violence (eg. rape, assault) can apply to be on the Victims Register (ie. a database providing victims with information with information about prisoners eg. the earliest possible release date). Can also tell them the length of a sentence, if the prisoner escapes.
This can help them cope with the effects of the crime knowing their perpetrator is in jail for a period of time. However, they may feel the sentence was too light, or live in fear as the date of the offender's release is revealed
28
what is the role of VLA?
Provide legal aid
Ensure coordination of legal aid and assistance so as to respond to community needs
Control and administer the Legal Aid Fund
Make recommendations about law reform
Design and implement educational programs
29
what is VLA?
a government agency that provides free legal advice to all members of the community and low or no cost representation. Aims to create a fair and just society where socially and economically disadvantaged victorians can receive assistance with legal problems
30
what types of legal aid does VLA provide?
Free legal info: VLA website has free publications and resources, info about cases, and a public law library.
Free legal advice:in person, over the phone, video conference. Focused for in person advice for most disadvantaged eg. homeless, children, indigenous australians, those in custody.
Free duty lawyer services: VLA lawyers who are at court on a specific day can give fact sheets, offer legal advice, represent an accused.
Grants of legal assistance: may grant assistance to those who can’t afford a lawyer. Eg. advice, preparing docs, presenting in court. Only available to those who pass the means test and if the case is considered to have merit.
31
what are five limitations of VLA?
Duty lawyers are only available in Mag or children's court and not available for indictable offences.
Legal advice and legal representation from duty lawyers are only for people who satisfy the income test.
Duty lawyers are often limited on the time they can spend with a client.
Legal assistance grants are only available to those who pass the means test and if the case is considered to have merit.
VLA has very limited funding, which results in a tight eligibility criteria (must satisfy income and means test; considers the benefits of providing representation to an accused; and benefits of the public). This means there is a ‘missing middle’ that can’t get access to legal aid but also can’t afford representation.
32
what are CLC'S?
Independent community organisations that provide free legal services to members of the public. They play a significant role in assisting economically, socially, and culturally disadvantaged Victorians.
Generalist CLC: provide broad legal assistance in a particular location.
Specialist CLC: focus on a particular group of people or an area of law.
33
what is the role of CLC's?
Basic legal info on a day to day basis
Initial legal advice such as preliminary assistance, help with writing letters; phone advice
Duty lawyer service for cases that will be completed in one day
Legal casework: very rarely, will take on a criminal matter, representation and assistance. May only matter if the accused is eligible for a grant of legal assistance from the VLA. Many do not offer for indictable offences.
34
what are three limitations of CLC's?
Many only offer legal advice and representation in certain areas of law (eg. injury civil claims or family law).
CLC’s will often only represent accused persons for minor criminal matters or straight forward criminal cases. Thus, people accused of more serious crimes are unlikely to receive much assistance from CLC’s.
There is a limited number of CLC’s in rural and regional Victoria meaning many may struggle to access them.
35
what are two differences between VLA and CLC?
D1. VLA are government organisations whereas CLCs are independently run.
D2. VLA provides free or low cost representation whereas CLCs generally just do free advice and info and cannot provide ongoing casework.
36
what are three similarities of VLA and CLC?
S1. both offer free advice to all members of public
S2. While CLC are independent, they do receive some government funding through VLA.
S3. Both’s central aim is to make the legal system more accessible for socially and economically disadvantaged people.
37
what are five purposes of committal proceedings?
outlined in the CRIMINAL PROCEDURE ACT
See whether the offence is appropriate to be heard and determined summarily.
Decide if there is sufficient evidence for a conviction at court
Find out if the accused is planning to plead guilty or not guilty.
Ensure a fair trial by: making sure the case is disclosed to the accused so they can adequately prepare; giving accused the opportunity to see evidence and cross examine; and by making sure issues are properly defined.
To save time and resources if the higher courts by clarifying any disputed issues before the trial.
38
what is a committal proceeding?
a pre-trial procedure that takes place in the Magistrates’ Court in cases where the accused has been charged with one or more indictable offences, and has pleaded not guilty. Involves a number of stages and preliminary hearings in the Magistrates’ Court that act as a filtering process to test the strength of the prosecution’s case before a full trial occurs to determine guilty.
39
what are plea negotiations?
Pre-trial discussions between the prosecution and accused aimed at resulting in an early determination of a case by agreeing on the charges.
40
what are three possible outcomes of plea negotiations?
Accused pleads guilty to fewer charges and others don’t proceed.
Accused pleads guilty to a charge but an agreement is reached about the facts on which the plea is based
Accused pleads guilty to a lesser charge eg. culpable driving to dangerous driving. Eg. an accused charged with murder may agree to plead guilty to manslaughter.
41
what are four purposes of committal proceedings?
Save time and resources: Aims to achieve a prompt resolution of a case without the cost, time, stress, and inconvenience of a trial. An early guilty plea expedites a case and thus saves the courts, prosecution, and the accused a significant amount of time and resources as they don't have to allocate them to the trial. Additionally, this inadvertently reduces court backlogs.
Save money: accused does not have to pay for legal representation needed for a full trial. The prosecution is also saved money,
Provide a degree of certainty: when an accused pleads guilty, both the prosecution and accused are able to avoid the uncertainty that comes with a trial, and whilst the exact sentence is unknown, they are aware of the max sentence.
Prevent harm to the victim: any victims and witnesses are spared the stress and trauma of having to give evidence.
42
what are three instances in which a plea negotiation may be appropriate?
May be appropriate when the prosecution's case relies on the testimony of a victim who is reluctant to testify, or who may suffer emotional trauma from giving evidence. In such cases a plea negotiation would prevent any further harm to victims while also ensuring the accused is found guilty of an offence,
When the offender is young and has no criminal background
Cases with several mitigating factors.
43
what are three instances in which a plea negotiation may be inappropriate?
If the accused committed a crime that is so severe that it warrants a very severe sanction.
If the accused shows little remorse
If the prosecution believes that it is in the public best interest for the accused to be imprisoned for a very long time
44
what are five strengths of plea negotiations?
1. Saves the cost of a full trial or hearing. Helps with prompt determination of cases and increases public confidence in the legal system. Delays can lead to unfairness. (F,A)
2. Advantages the accused who may receive a reduced sentence because of a plea of guilty before trial. (A)
3. Victims and community may feel satisfied if the accused pleads guilty to a crime that reflects the nature and gravity of an offence. Negotiations ensure the agreement reflects the criminality of an offender. (F)
4. Victims, witnesses, and families are saved from the trauma, inconvenience, and distress of the trial process. The trial process may make victims relive the crime (F,A,E)
5. Negotiations ensure certainty in outcome for all parties. (F,A)
45
what are five limitations of plea negotiations?
1. May be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt (however, can argue that an innocent person wouldn’t enter negotiations) (F,E)
2. Community and victims may feel the accused has been let off with a lenient sentence that does not reflect the crime. (F,A)
3. Self represented accused may feel pressured into accepting a deal even if the evidence is not strong. (though there are strong safeguards in place when pleas are negotiated). (E,F,A)
4. May be pointless if the prosecution's case is very strong and the accused is likely to be convicted anyway. (A)
5. If negotiations do not succeed then either party may be disadvantaged at trial. Eg. see weaknesses in others case (F,E)
46
what are sentence indications?
given by a court to an accused so they know what sanction is likely to be imposed on them if they plead guilty at a particular point in time.
47
what are five purposes of sentence indications?
Encourage an early guilty plea: Through the assurance that they will not receive a greater sentence than that indicated by the court that they’ll likely face, accused persons are encouraged to take an early guilty plea.
Save time and resources: by encouraging an early guilty plea, they save valuable time and resources for the courts that would be needed for a full trial.
Save money: saves the money of the accused and prosecution and wider public by avoiding the financial costs of a trial.
Assist victims: Help bring early closure for victims and avoid them the stress and trauma of giving evidence in a full trial.
Assist accused: The accused is likely to get a shorter sentence by pleading guilty early. Also allows them to weigh up their options regarding the sanction they may receive so they can decide whether or not to plead guilty.
48
what are three instances in which a sentence indication may be appropriate?
More likely to be appropriate in mags or county as in Supreme they will usually receive a custodial sentence.
If there is a strong amount of evidence against the accused and they have not made a legitimate defence.
In relatively straightforward cases as facts don't need to be thoroughly examined at a trial
49
what are five instances in which a sentence indication may be inappropriate?
Nature of offence, May be less appropriate in a sex offence case given the sensitive, better for drug or fraud cases.
If the accused is innocent as it would be more appropriate for them to plead not guilty and prove it at trial (this may be difficult depending on evidence)
May not be appropriate if information about victim impacts isn’t available.
If the facts of a case are very complex as they would require the detailed analysis that comes with a trial.
If there are mitigating factors as it is important for them to be fully examined and understood through a trial.
50
how is specialisation a reason for a criminal court hierarchy?
Allows for each court to become familiar with and develop expertise in specific areas of law so the personnel for each court has specialist knowledge.
If there was no court hierarchy, courts would likely become backlogged and inundated with cases as it would be difficult to co-ordinate all the resources and personnel given how disparate the types of crimes heard would be in one place. This would not be beneficial for anyone as it would likely result in longer delays for a case to be heard and personnel would be unable to become expert in their specific areas.
EG:
Supreme Court (Trials Division): hears the most serious indictable offences and will have developed specialisation in those crimes.
Eg. homicide, certain conspiracies, major theft and drug trafficking.
Magistrates Court: familiar with cases involving summary offences that must be dealt with quickly and efficiently as well as bail and warrant applications, and committal proceedings eg. drink driving offences
51
how is appeals a reason fro a criminal court hierarchy?
The existence of a court hierarchy allows for a system of appeals to operate. If a party is dissatisfied with a decision made in court, they can appeal to a high court. This increases access and allows for fairness by correcting any mistakes that may occur. Without the existence of higher courts this avenue of appeal would not exist so there would be no system to correct injustice.
52
what are three responsibilities of judges?
Managing the trial : must ensure correct court procedure is followed so both parties have equal opportunity to present their cases. EG. controlling witnesses, controlling order of events, and working with legal practitioners. Judges can give directions and make orders, including how evidence is used, what documents the jury should see, whether there will be separate trials; judges may ask questions and recall a witness to clarify a matter.
Decide on admissibility of evidence: decide whether evidence is admissible eg. relevant, not to be hearsay evidence, or of opinion.
Attend jury matters: at the beginning of a trial, provide jurors w/ info about trial and accused; may address the jury about relevant issues and evidence; may discharge a juror if not impartial; must summarise the case to the jury. Oversees selection and empanelment of a jury.
53
what are three strengths of judges?
Parties are treated equally and allowed equal opportunity to present their case and rules are applied equally, acts as impartial umpire (F,E)
Case management powers can be used to promote a more effective and efficient resolution with judges’ veritable experience (F)
Can assist self-represented people in understanding court procedures, or order VLA to provide representation if they deem an unfair trial to occur without it (A,E)
54
what are three limitations of judges?
Due to their independence, they can’t assist a party or act for a party even if their representation is performing poorly and not adequately fulfilling their duties.
Can’t decide questions of fact and cannot determine the guilt of the accused even though their expertise and experience probably makes them tho most qualified to determine this. However, the jury, who are not legal experts, are who do this.
Even judges have unconscious biases and may make errors in the trial (F)
55
what are four responsibilities of juries?
Be objective: unbiased, open minded, have no connection with parties, mustn’t be influenced by parties.
Listen to and remember evidence: make sense of all evidence, can take notes, ensure they concentrate on the courtroom, mustn’t undertake their own investigation.
Understand directions and summing up: At the end of the case the jury must listen to the judge , give directions about issues and points of law and sum up the case.
Deliver a verdict: Take part in deliberations and form opinions and make decisions based on facts of the case.
56
what are three strengths of juries?
jury structure assists decisions in being unbiased. Cross-section of community means prejudices don’t carry the verdict and jurors with biases are balanced out by those without. Need to reach a shared (usually unanimous) decision about guilt (F,E)
look at the case from the perspective of a layperson. This means legal jargon is kept to a minimum and overcomplication of system prevented (A)
objective community values and standards considered to determine whether offender’s behaviour was reasonable or not (F)
57
what are three limitations of juries?
There is a criteria for who can be on jury duty. Thus, numerous people are not eligible to be on jury service which may hinder how representative it is. (F,E,A)
Having a jury as the decider of the facts can significantly slow down the trial process due to the time associated with empanelling the duty, explaining laws to the jury, and the time their deliberations take (A)
many prejudices are common across different groups in society so can permeate the system particularly minority groups may not be treated as equals before the law (F,E)
58
what are three responsibilities of parties in a criminal case?
Give an opening address: Prosecution must give a statement to the jury on the case before evidence. Accused lawyer must present to the jury a response to the prosecution's opening address.
Assist judge in jury matters: Both parties assist in empanelling a jury, and can challenge potential jurors. Either party may request during the trial that the judge give directions to the jury. Eg. If the prosecution doesn’t call a witness, the accused can request the judge direct the jury on that.
Present the parties case: prosecution must present to a jury all credible evidence, even if it's not beneficial to the case. There is no obligation on the accused to give evidence
59
what are three responsibilities of practitioners in a criminal case?
Be prepared/present the facts: need to be ready to proceed, be familiar with documents that are to be admitted into evidence, and witnesses to be called. Responsible for choosing how they will present evidence and questions they will ask.
Comply with their duty to the court: act ethically, and in accordance with the law. Shouldn’t twist facts. Are required to understand the strict rules of evidence and procedure which exist in court proceedings.
Act in best interests of their client: must present to the jury the accused response to the prosecution's opening address. Will assist in cross examining witnesses and make submissions about appropriate sentences and if accused found guilty.
60
what are two strengths of parties in crim cases?
responsible for reviewing their own case and deciding which legal arguments and evidence will give them the best chance of success. Level of agency and decision making (A)
most effective and efficient way of going to trial They know their own case.(A,F)
61
what are three limitations of parties in a crim case?
Accused may have a lack of familiarity with legal terminology, a lack of objectivity, and emotional distance from the case, and a lack of knowledge of procedures (A,F)
Accused tend to heavily rely on the advice and assistance of legal practitioners, meaning that those who cannot access representation and must self represent, are majorly disadvantaged. (F,E)
Prosecution, who are experienced, may have a significant advantage over the accused, particularly if they are self-represented (F,E)
62
what are three strengths of practitioners in crim cases?
Task for lawyers is to gain the best outcome possible for their client, and act on instruction from that client. Help the accused present their case to the fullest extent of their ability (F,A)
Saves the courts time and money, because they know the correct way to prepare documents, make submissions and elicit evidence from witnesses so court can home in on significant issues (A)
Must defend accused regardless of personal belief about guilt (F,E)
63
what are three limitations of crim cases?
Cannot file court paperwork or provide ongoing legal advice to a client (A)
Justice may be determined by whoever is able to afford better representation rather than whoever is in the right. many accused people will not have the resources to appeal numerous times and will have to accept the first finding of guilt (F,E,A)
Lawyers can make the process even more adversarial in their quest for the win. Can discourage cooperation in plea negotiations because they don’t want to register a guilty plea. Can result in accused rejecting a fair plea, or accepting an inappropriate one, for lawyer to get an easy ‘win’ (F)
64
what are the five purposes of sanctions?
REHABILITATION: designed to address the underlying reasons for crime and treat an offender in order to prevent them from recommitting.
PUNISHMENT: designed to penalise an offender and show society and the victim that criminal behaviour will not be tolerated.
DETERRENCE: general to deter the entire community from committing a crime because they see the consequences, and specific, to discourage a particular offender from recommitting.
DENUNCIATION: designed to demonstrate the courts disapproval of an offence.
PROTECTION: designed to safeguard the community from an offender to prevent them from committing further offences.
65
what are fines?
A monetary penalty in which an offender is required to pay an amount of money to the state.
Penalty units: used to define the amount of money payable for a fine. Indexed each year to inflation to ensure it maintains the same value. Allows the government to increase all fines by increasing the penalty unit without having to change statutes.
66
what are three ways that fines achieve purposes?
Punishment: makes them pay money so offenders' financial situation must be considered. Puts them at a financial loss.
Deterrence: discourage specific reoffending through the threat of losing money again,and general deterrence to other members of the public as they are aware of the possibility of being fined.
Denunciation: if the fine is of a very high enough amount it may denounce criminal behaviour.
67
what are four ways that fines do not achieve purposes?
Punishment: If an offender is wealthy and has a substantial financial status it may not sufficiently punish them.
Deterrence: Fines that are very small may only deter those who are financially disadvantaged. May not deter those who hold large sums of money. Also, to act as a general deterrent, the public must actually be aware of a fine imposed on an offender.
Denunciation: May not denounce crime well as the highest level fine (460k) may not send a strong enough message. To satisfactorily deter an offender it must be high enough in the eyes of the public and offender.
Protection: Offender isn’t removed from society or prevented from doing harmful behaviour as long as they can pay the fine for it
68
what are community corrections orders?
A supervised sentence served in the community that includes special conditions.
Core conditions: mustn’t commit another offence punishable by imprisonment during term; Must report to CC centre within two days of order coming into effect; Must report to receive visits from a CCO officer; Must notify if they have an address change; Mustn’t leave Victoria without permission.
Special conditions: Unpaid community work; Treatment and rehab; Residence restriction or exclusion or a curfew; Alcohol exclusion - must not enter a licensed premise or consume liquor in licensed premises.
69
what are four ways that CCO achieve purposes?
Punishment: Through the conditions which can be attached, offenders are likely to receive punishment. eg receive visits from officers, obtain permission before leaving Victoria, comply with orders from CC officers.
Rehabilitation: the rehab and treatment programs which offenders may have to undertake as part of a CCO can assist in rehabilitating them and help them stray from criminal behaviour. eg. alcohol exclusion, treatment, and rehab.
Specific deterrence: The undesirable conditions which are attached to a CCO may deter a person from reoffending. eg. unpaid community work
Protection: keeping an offender occupied at times when he or she may otherwise be committing a crime eg. residence restriction or exclusion and curfews protect people.
70
what are five ways that CCO do not achieve purposes?
Punishment: in comparison to other sanctions like imprisonment, a CCO may fail to effectively punish an offender. It depends on the specific conditions that are attached as to whether or not punishment is achieved. And there isn't a guarantee the offender will comply with the conditions.
Deterrence: is dependent on whether or not the offender actually perceives the conditions to be of annoyance and negative.
Rehabilitation: A CCO will only rehabilitate an offender if they actually comply with the treatment conditions.
Protection: unlike imprisonment, there is no guarantee that members of the public will be totally protected from an offender as ultimately they’re still in the community.
Denunciation: Public do not see a visible, external change in the offender’s circumstances and may feel that the offender has not been publicly critiqued enough
71
what is imprisonment?
A last resort sanction in which an offender is ordered to spend time in prison where they are removed from society and deprived of their liberty.
72
what are five ways that imprisonment achieves purposes?
Punishment: removes offenders from society, gets rid of freedom and liberty.
Protection: removed from society.
Rehabilitation: various programs, offered to prisoners (however this can lead to further crimes because influence of prisoners)
Denunciation: long sentences show the courts disapproval. The severity of imprisonment and the way in which it physically removes an offender from society can successfully denounce the offence.
General deterrence: people want to avoid the possibility of going back to prison. Specific deterrence: don’t want to go back to prison.
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what are four ways imprisonment does not achieve purpose?
Punishment: Rarely, but it is possible that in some circumstances an offender may prefer their life in prison
Protection: If a short sentence is given it may not protect the community to a great extent; protection comes at the cost of the offenders being taken their place in society
Rehabilitation: Availability of drugs in prison..Exposure of offenders to negative influences of other prisoners and the struggle they face when turning to normal life can result in rehabilitation being unsuccessful; other sentences like CCO’s focus more on rehab.
Deterrence: recidivism rate suggests that imprisonment is not greatly effective as a specific deterrence which may be a result of the negative influences an offender is exposed to in prison.
74
what are aggravating factors?
Circumstances that can lead to an increase in a sentence and increase the offenders culpability/fault. Ie. they WORK against the accused.
For example:
Use of violence, explosives, and weapons
Nature and gravity of offence (was unprovoked, preplanned)
Any vulnerabilities of the victim (eg. disabled, very young or old)
Motivated by prejudice against a group
Breach of trust (eg. parent abusing a child)
Occurred while the offender was on CCO or bail.
75
what are mitigating factors?
Circumstances that can lead to a lesser sentence as they decrease the offenders culpability/fault. Ie. they ASSIST the offender.
For example:
Offender shows remorse (eg. cooperating with police, early guilty plea, general good behaviour at hearings)
No previous convictions and is of good character
Acting under duress
Shown effort towards rehab while awaiting sentencing and has good prospects for rehab
Under personal strain or has a unique background
Offender was young, or had some kind of disability.
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what are guilty pleas?
Sentencing Act provides ‘discounts’ for early guilty pleas. If the court lessens because of a guilty plea and it is either a custodial sentence or a fine above 10 penalty units, the court must show how much ‘discount’ it gave for the plea. Will award accused for pleading guilty.
Positives:
An early guilty plea benefits the justice system, prosecution, and victims as it avoids the time, stress and expense of a full trial.
Expediting cases inadvertently reduces the backlog of cases in the justice system.
Reduces stress and trauma of full trial for victims
Negatives:
Some may feel pressured into pleading guilty or are compelled to plead guilty in order to get a lesser sentence
May get a less severe sentence that does not reflect their criminality
Victims are denied their day in court and feel justice wasn’t achieved to the fullest extent.
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what are victim impact statements?
Is a statement filed with courts by a victim and is considered in sentencing. They contain the details of the effects of an offence on a victim eg. any injury, loss, or damage. They can include medical reports. Victim may request it to be read out in court.
Allows victims to have their voice heard and have a say in the sentencing process.
78
cost factor - how does the cost of legal rep impact fairness - crim?
If an accused can’t properly participate in a hearing it results in an unfair process. This is due to a lack of familiarity with the language used, a lack of objectivity and emotional distance from the case, and a lack of knowledge of procedures and court room facilities.
Difficulties may result in them pleading guilty to a crime they have not committed because no means or ability to defend case adequately and present facts
Use of an inexperienced, cheap lawyer may mean procedural errors are made or the accused is advised incorrectly. Disadvantaged because of their income Unfair against an experienced prosecutor.
79
cost factor - how does the cost of legal rep impact equality - crim?
A self represented accused may come up against experienced and skilled prosecutors which may result in them not being treated equal before the law.
Use of an inexperienced, cheap lawyer may mean procedural errors are made or the accused is advised incorrectly. Disadvantaged because of their income
However, if an accused can’t afford representation, the judge or mag can assist them to understand procedures and terminology OR, they can get help from a legal aid service (applies to all POJ’s)
80
cost factor - how does the cost of legal rep impact access - crim?
An accused who can’t afford legal representation may struggle accessing the courts and mechanisms used to determine the charges. Accused then may plead guilty to a crime they didn’t commit because they don’t have the means to defend it.
A self represented accused will have less access to information than someone who is well represented
81
cost factors - how does the limited availability of legal aid impact fairness - crim?
Limits on access to legal aid can affect the ability of an accused to present their case and get a fair hearing.
Party who cannot get any form of legal aid is at risk of not being able to understand court processes
However, a judge can stay a trial until a accused obtains representation if there is risk of unfairness.
However, the ability of court personnel to assist may decrease some problems and increase fairness
82
cost factors - how does the limited availability of legal aid impact equality - crim?
an accused who is deemed ineligible for legal aid may not be treated the same as the prosecutor. Usually the most vulnerable are likely to be denied legal aid and therefore will be at a disadvantage against a skilled prosecutor.
An accused who is not eligible for legal aid can be vulnerable against the might of the state. May feel overwhelmed by power imbalance and lack of capability
However, the judge is required to make necessary accommodations to ensure they can participate in proceedings if there is something about the self-represented party they may face discrimination for.
83
cost factors - how does the limited availability of legal aid impact access - crim?
a party who can’t get legal aid through VLA or CLC’s can’t access information, help, advice, or representation so they cannot understand processes.
However, judge or mag can assist party to understand processes and jargon
the assistance of a judge or mag can’t extend to them acting for an accused or giving advice so the accused will still need to navigate the complex processes.
Often trials and hearings take longer where there is a self-represented accused
84
time factors - how do court delays impact fairness - crim?
delays can cause unfairness given the strain it puts on the accused, victims, and families. Eg. can cause emotional strain for the accused, stigma due to being charged, the possible loss of a job, and the disruption to family life. This also impacts victim
If an accused is being held on remand, it has tough physical and mental effects and can cause difficulty in preparing a case and not working so loss of money.
Long delays also effect evidence as witnesses will forget stuff and victims find it traumatic waiting so long.
However, shouldn’t rush cases, need adequate time to prepare and analyse evidence
85
time factors - how do court delays impact equality - crim?
Delays effect those who are most vulnerable which puts them at risk of not being treated equally before the law. Eg. distressing for those with a mental illness or disability, elderly, or victims of major trauma.
86
time factors - how do court delays impact access? - crim
Courts become less accessible and the negative impact of a delay can be especially hard for victims
court resources have not kept pace with the number of criminal cases before the court
Lengthiness of pre-trial and trial procedures can result in accused persons who cannot take this time away from employment being unable to pursue their case being pressured into pleading guilty.
However, use of plea negotiations can help address court delays by ensuring prompt determination and avoiding the stress of trial
Speedy determination can ensure that courts remain accessible to everyone and people have confidence in the court system
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cultural factors - how do cultural differences impact fairness? - crim
Different customs and lack of understanding of processes can result in procedural unfairness as they can’t adequately present their case as the court system would like.
racial bias and discrimination associated with cultural differences can result in unfairness, EG. If jurors discriminate against an individual due to certain biases against their culture they are unlikely to receive a fair and unbiased hearing.
However, interpreters can help, and judges must make necessary accommodations
The way questions are asked may make an accused person make admissions they wouldn’t have otherwise.
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cultural factors - how do cultural differences impact equality? - crim
Must adapt to a system other than their own.
Any cultural prejudices of the jury can result in the accused not having an equal opportunity to present their case.
Cultural differences can interfere with a party being seen as equal before the law and having an equal opportunity to present a case.
Unfamiliarity with the justice system can impact one's ability to present a case = unequal footing
89
cultural factors - how do cultural differences impact access? - crim
Inability to understand legal terms, rights and processes can inhibit access
There may be reluctance to seek information about their rights and court processes if they are unfamiliar with the system.
A lack of intercultural understanding and language barriers can greatly hinder an accused person's understanding of their legal rights.
Also, problems that arrive due to cultural differences such as a poor understanding of the law and the rules of evidence and procedure can greatly interfere with one's ability to pursue a case. This is particularly impactful for migrants and indigenous australians.
90
cultural factors - how do language barriers impact fairness?
May struggle to adequately present their case.May be unfamiliar with legal system which can increase chance of an unfair outcome
People who cannot communicate well in a court setting may risk being treated differently, not be able to perform as well as experienced prosecutor who doesn’t suffer same issues, present their case where processes and language are unfamiliar, convey information to representative
However, interpreters can help
91
cultural factors - how do language barriers impact equality - crim?
Someone who can’t communicate well may face discrimination and can’t perform aswell as an experiences prosecutor who doesn’t have the same issues, thus putting them at a disadvantage.
92
cultural factors - how do language barriers impact access - crim?
Unless information is presented in their own language or an interpreter is available they may struggle to understand their rights and legal processes
93
recent reforms - how does the victim support dog program achieve fairness?
The presence of a dog helps witnesses deliver evidence calmly which can shorten trial length and ensure credible evidence is given.
Permission is sought by the Judge or mag to ensure it's in the best interest of a fair trial.
If witnesses are more willing to give evidence it can enhance fairness
94
recent reforms - how does the victim support dog program not achieve fairness?
It's still stressful for victims to give evidence regardless
May be distracting to person giving evidence
May not be helpful for all victims eg. if they hate dogs
95
recent reform - how does the victim support dog program achieve and not achieve equality?
ACHIEVES
Provides assistance to witnesses who are likely to suffer secondary trauma while giving evidence
The accused doesn’t suffer inequality as for example, the jury can’t see the dog
DOES NOT ACHIEVE
The judge or mag can refuse it if they think it will inhibit equality
96
recent reform - how does the victim support dog program achieve and not achieve access?
ACHIEVES
There is greater access to witnesses giving evidence as they can give evidence in a less stressful way
Witnesses may be more prepared to give evidence with a dog
DOES NOT ACHIEVE
giving evidence is still a highly stressful thing even with support
may not be very effective depending on personality of witness eg. hates dogs
97
recent reform - what five changes were made to sentence indications in february 2022?
Change one: court can give at indication at any time after the indictment is filed, but before the trial commences (which is
when the accused pleads not guilty on arraignment in the presence of the jury panel.
Change two: Court may indicate whether it would be likely to impose on the accused: (a) a sentence of a specified type; or (b) a specified maximum total effective sentence. This will ‘cap’ the sentence. Rather than just saying if imprisonment would likely be imposed or not.
Change three: prosecution consent is no longer required for an indication to be given.
Change four: previously, a sentence indication could only be given once. But now a second or subsequent sentence indication can be given if there has been a change in circumstances since the previous one that is likely to materially affect the previous indication.
Change five: a different judge no longer has to preside over the trial if an accused doesn’t plead guilty at the first available opportunity.
Change six: The DPP must seek the views of victims before deciding whether to oppose an application for a sentence indication, and must give the victims information about the matters considered in deciding to oppose an application.
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recent reform - what is the victim support dog program?
commenced by OPP and run by Court Dogs Victoria in JAnuary 2019. Trained support dogs are now used in court to comfort vulnerable witnesses in order to reduce stress so less breaks are needed and more evidence can be given in a shorter time. Used in witness rooms at the OPP’s office, MC and CC.
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recent reform - how do changes to sentence indications achieve fairness?
Allowing the indication to say any type of sanction significantly broadens the scope of sentence indications so as to allow for some utility in more serious cases
Prosecutors can still oppose the indication which enhances fairness for them.
Allowing subsequent indications to be given when there is a change in circumstances makes it more fair as the sanction is more likely to be accurate
99
recent reform - how do changes to sentence indications achieve fairness?
Allowing the indication to say any type of sanction significantly broadens the scope of sentence indications so as to allow for some utility in more serious cases
Prosecutors can still oppose the indication which enhances fairness for them.
Allowing subsequent indications to be given when there is a change in circumstances makes it more fair as the sanction is more likely to be accurate
100
recent reform - how do changes to sentence indications not achieve fairness?
May be arguably less fair for prosecutors because their consent is no longer required
May be unfair that they can’t be given after trial commences because a trial is necessary to fully examine all the mitigating factors and evidence.
101
recent reform - how do changes to sentence indications achieve and not achieve equality?
ACHIEVES
Victims' views being considered by prosecution before opposing enhances equality.
benefits to victims in providing an outcome and removing the trauma of giving evidence at trial, and accused persons in providing clarity of outcome
DOES NOT ACHIEVE
If an accused can’t afford representation, could argue that broadening the scope of indications is likely to encourage an accused to plead guilty even if innocent because they don’t have the means to defend
102
recent reform - how do changes to sentence indications achieve and not achieve access?
ACHIEVE
Not having to get the prosecution's consent can save time and reduce delays
A broader sentence indication scheme will generate early and appropriate guilty pleas
assist in removing any barriers for accused persons
DOES NOT ACHIEVE
Expressly excludes the giving of sentence indications once trial has commenced may inhibit access
103
recommended reform - how would continued expansion of koori courts achieve and not achieve fairness?
ACHIEVE
Would allow indigenous australians to participate in and understand processes
DOES NOT ACHIEVE
Requires accused to plead guilty to get access
104
recommended reform - how would continued expansion of koori courts achieve and not achieve equality?
ACHIEVE
Sc has recognised that the KC allows for Aboriginals to participate in processes and address any disadvantages they may suffer in a mainstream court
DOES NOT ACHIEVE
It's not a complete solution to equality issues as they’re still disadvantages at contested hearings
105
recommended reform - how would continued expansion of koori courts achieve and not achieve access?
ACHIEVE
Expansion will enable greater access to the KC by the indigenous population
DOES NOT ACHIEVE
only available to people who plead not guilty.
106
recommended reform - how would judge alone trials achieve and not achieve fairness?
ACHIEVES
There remains an appeal process to rectify any mistake made which ensures fairness
It addresses fairness issues concerning juries in high profile cases
DOES NOT ACHIEVE
Jury allows for objective community standards to be applied so getting rid of these may cause unfairness
107
recommended reform - how would judge alone trials achieve and not achieve equality?
ACHIEVES
High profile accused may be disadvantaged due to media coverage so they can suffer prejudice by a jury so judge only trial will resolve this.
The judge will only order it if it's appropriate.
DOES NOT ACHIEVE
May argue that it is advantaging a high profile accused - but on the other hand is a measure where they’re treated differently to be treated equally.
108
recommended reform - how would judge alone trials achieve and not achieve access?
ACHIEVES
Allows the most experienced person to be the decider of facts
DOES NOT ACHIEVE
May deny an accused the opportunity to be tried by the community.
