Unit 3 AOS 1 Flashcards
(154 cards)
1
Q
Summary offence
A
Is a minor crime that is generally heard in the Magistrates’ Court
–>drink driving, minor assaults
2
Q
Indictable offences
A
Serious offences generally heard before a judge and jury in the County Court or the Supreme Court and is first heard in the Magistrates court -commital hearing
3
Q
The burden of proof
A
refers to which party has the responsibility to prove the facts of the case. falls on the Prosecution
4
Q
the standard of proof
A
refers to the level of certainty or strength of evidence required to prove the case. The prosecution must prove the case beyond reasonable doubt.
5
Q
The presumption of innocence
A
means that if a person is accused of committing a crime, they are considered innocent until proven guilty.
-an accused has the right to silence, prior convictions are not revealed in trials.
6
Q
Key principles of the criminal justice system
A
the burden of proof, the standard of proof, the presumption of innocence.
7
Q
Rights availiable to an accused
A
The right to be triend without unreasonable delay, the right to silence, the right to trial by jury.
8
Q
Accused- the right to be tried without unreasonable delay
A
An accused is entitles to have their charges heard in a timely manner and that delays only occur if they are considered reasonable.
9
Q
Accused- the right to silence
A
the accused has a right to refuse to answer any questions and does not have to give any information as part of the investigation of a crime
10
Q
accused- the right to trial by jury
A
A person charged with an indictable offence is entitled to be tried by their peers. protected under the juries act and section 80 of the aus cons
11
Q
the rights available to a victim
A
right to give evidence using alternative arrangements
right to be informed about the proceedings
right to be informed of the likely release date of the offender
12
Q
right to give evidence using alternative arrangements
A
victims who are witnesses in some cases, like sexual offenses or family violence, are able to give evidence using alternative arrangements
These include giving evidence using a closed circut tv
the use of a screen between the accused and the witness
he use of a support person
protected under the criminal procedure act
13
Q
right to be informed about the proceedings
A
are entitled to be informed at reasonable intervals about the progress of an investigation into a criminal case, unless they do not want it.
14
Q
right to be informed of the likely release date of the offender
A
a person who is a victim of a criminaal act of violence may apply to be inlcuded on the victims register.
Once they are on the register they may receive certian information about an offender such as release date of parole.
15
Q
What is the role of the VLA
A
VLA is a government agency that provides free legal information to the community, and legal advice and legal rep for people who cannot afford to pay for a lawyer.
16
Q
purpose of vla
A
provide legal aid in the most effective, economic and efficient manner
provide the community with improved access to justice
17
Q
types of assistance for accused people/ victims from vla
A
free legal information, free legal advice, duty lawyer services, grants of legal assistance
18
Q
strengths of vla achieving fairness
A
The provision of duty lawyers in the courts provides
advice and assistance to various accused persons,
ensuring a fair hearing for these individuals.
The VLA is guided by the Victims Charter to
uplift victims and ensure their rights set out in
the Charter are protected. The Charter is legally
binding which ensures VLA treats all victims fairly
19
Q
strengths of vla achieving equality
A
provides free information on its website to all accused people and victims, regardless of personal characteristics,
VLA ensures those who are disadvantaged are prioritised in receiving legal aid, thus promoting equality
VLA has staff that speak many languages, all victims are abke to obtain information regardless of their language
20
Q
strengths of vla achieving access
A
VLA provides free information on its website which
is accessible to all accused people and victims.
Duty lawyers and grants of legal assistance
increase an accused individual’s access to the
justice system and criminal proceedings, ensuring
they can participate in the processes in an informed manner
21
Q
weaknesses of VLA achieving fairness
A
VLA’s limited budget means it is only able to
provide legal advice and representation to a
small number of accused persons- therefore limited in
its ability to ensure all individuals can understand
the case against them, participate in the criminal
proceedings, and adequately present their case.
22
Q
weaknesses of VLA achieving equality
A
The eligibility requirements for a duty lawyer
or grants of legal assistance from VLA are
strict, meaning very few individuals can gain
access to free legal representation- therefore limiting equality as these individuals are not uplifted to receive the same treatment as those who can afford representation in the justice system.
23
Q
weaknesses of VLA achieving access
A
The means and income tests prevent many Victorians from accessing many services of VLA, such as tailored advice and legal representation, hindering access to justice.
VLA does not provide advice about all types of
matters, therefore, limiting accessibility to justice
for parties involved in these legal matters
24
Q
the role of clcs
A
to provide accused people with information, legal advice and ongoing assistacne in a case. They provide legal education to the community and advocate for changes to teh justice system to address what they see as unfair laws, policies or practices.
25
types of clcs and definition
generalist
- they provide broad legal services to people in a particular geographical area
specialist
- they focus on a particular gorup of poeple or area of law.
26
type of assistance of accused- clc
basic legal info
legal advice and assistance
ongoing casework
27
type of assistance of victims- clc
basic legal info
legal advice and assistance
ongoing casework
duty lawyer services
28
strengths of clc achieving fairness
CLCs provide high quality, free legal support,
and education to members of the community.
This enables individuals to adequately participate
in legal proceedings and present their cases in the
best light, encouraging just and fair outcomes.
Victims of crime are able to receive legal support
from professionals, therefore easing the emotional
stress of the trial. This can allow victims to better
participate in court proceedings and provide
accurate statements to the court, promoting
a just and fair outcome.
In some circumstances, CLCs can provide legal
representation to accused individuals. This promotes
fairness as the accused is provided with necessary
assistance to navigate the complex criminal justice
system and adequately present their case.
29
limitations of clc acheiving fairness
CLCs often cannot provide legal representation
in court. This means many accused individuals
without financial means to gain legal representation
must self-represent, unless they are eligible for
assistance from VLA
CLCs cannot provide assistance to all victims of
crime, meaning some victims may not be able to
participate in the justice system, limiting fairness
30
strengths of clc acheiving equality
CLCs often provide an interpreter service to ensure
those from non-English speaking backgrounds can
access legal assistance, promoting equality in the
justice system.
CLCs can provide specific advice to victims and
cater to their individual circumstances, ensuring all
people, regardless of personal characteristics such
as race, gender, or disability, receive appropriate
legal information.
31
limitations of clc acheiving equality
Eligibility requirements for duty lawyers or legal representation from a (CLC) are strict, limiting access to free legal aid. While prioritizing those in dire need, individuals in the middle ground are often excluded, creating inequality in the justice system.
32
strengths of clc acheiving access
Offer free legal advice and information, improving access to the legal system.
Specialize in certain areas of law, providing personalized assistance.
Are available in various locations, including regional areas, and offer phone consultations.
Provide victims with specific legal assistance and support, aiding in applications and documentation, thus promoting access to justice.
33
limitations of CLC acieving access
As CLCs usually provide assistance for relatively
minor criminal matters, they do not promote
access to resources for those charged with very
serious criminal matters.
There are not as many CLCs located in rural parts
of Victoria, limiting access to legal assistance for
those in remote areas.
CLCs are limited in their ability to facilitate access to
legal resources and support due to a lack of funding.
34
define plea negotiations
they take place between the porsecutour and the accused abotu teh charges aginst the accused. THey can result in an agreement being reached between the two parties about teh accused pleading guilty in exchange for seome charges beibng droped or soemthing else
35
purposes of plea negotitaions
ensures certainty of the outcome
to save on costs, time and resources because of early guilty plea
to achieve a prompt resolution to a criminal case wihtout the stress, trauma and inconvienence of a trial
36
circumstances when plea negotiations are appropriate
the accused is woling to plead guilty
they wish to aoid the costs and time of a trial
accused is rep themselves
victims and witness are reluctant to give evidence.
The prosecution believes some witnesses may not be
believable when giving evidence before a jury, reducing
the likelihood of a conviction being secured.
37
circumstances when plea negotiations are not appropriate
The accused is not prepared to plead guilty to any charges.
The alleged offending is serious to the point that a
conviction for lesser charges is not in the public interest
and the perception that the accused ‘got off lightly’ will
be too great.
38
plea negotiations strengths in achieving fairness
Plea negotiations may result in the accused
pleading guilty to a charge that adequately reflects
the crime, leading to a just outcome to the case.
Plea negotiations secure a conviction in cases
where witnesses may be reluctant to give
evidence, or where evidence is inadmissible in
court, providing an alternative avenue for securing
a conviction, without the need for the matter to
proceed to trial.
39
plea negotiations weaknesses in achieving fairness
Where plea negotiations result in the accused
pleading guilty to a charge that does not adequately
reflect the crime, this may result in the community
believing the accused has been ‘let off’. This could
lead to the impression that the outcome was unfair.
Plea negotiations may be seen as undermining the
achievement of fairness as they are conducted in
private, which does not achieve the public element
of a fair trial.
40
plea negotiations strengths in achieving equality
Personal characteristics, such as the accused’s
gender and income, are not relevant during plea
negotiations, therefore ensuring unbiased and
equal treatment.
Both the accused and prosecution can request a
plea negotiation, promoting equal engagement in
the criminal justice system without disparity.
41
plea negotiations weaknessees in achieving equality
Plea negotiations are not available to all accused
persons as they are only possible if the prosecution
agrees to it. Therefore, there is not always an equal
opportunity for accused persons to enter into
a plea negotiation.
42
plea negotiations strengths in achieving access
Plea negotiations save courts time and resources
by allowing cases to be resolved before going
to trial. This minimises delays and frees up the
courts’ resources to make the legal system more
accessible for cases that do need to go to trial.
43
plea negotiations weakneses in achieving access
*
Access to plea negotiations may be limited for
some accused persons as the prosecution has to
agree to one.
*
Plea negotiations are conducted in private, meaning
victims, their families, and society cannot engage in
this process, reducing the achievement of access.
44
Specialisation
within the hierarchy the courts have been abke to develop their own areas of experitise.
court of appeal- appeals
suprmem trial div- hears the most serious indictable offences
county court- experties in partuclur types- drug offences
magistrates- summary offences that nees to be dealt with quickly and effectiently
45
appeals
if there are goeund for appela, a party who is disatisfied wuth a decision in a criminal case can take the matter to a higher court to challenge the decision.
46
court hierarchy uphold fairness
As individual courts are able to develop their expertise in dealing with particular crimes and areas of law cases are presided over by skilled and knowledgeable judges who are able to ensure open and impartial processes and thus a just outcome.
47
court herarchy does not uphold fairness
Some offenders may not be able to appeal the outcome of a case in a higher court if they cannot afford the fees associated with an appeal. This limits the ability of an offender to have any errors in the outcome resolved, meaning, in such cases, the court hierarchy may not deliver a fair outcome for all.
48
court hierarchy uphold equality
The court hierarchy facilitates the ability to appeal the outcome of a case, regardless of race, sex, or gender given their appeal is on valid grounds and the judicial officer presiding over the case has given the party leave to appeal.
49
court hierarchy does not uphold equality
Due to the costs associated with an appeal, appeals are not equally accessible to all parties. As a government department, the Office of Public Prosecutions has the necessary resources to fun an appeal, compared to accused individuals, who may not have the resources to do so. Thus, some parties may face disadvantage in being unable to appeal against a wrongful outcome due to their socioeconomic status.
50
court hierarchy uphold access
enabling the appeals process to occur, which facilitates the review of judicial decisions. These better enables accused persons to engage with the justice system and its processes.
specilisation allows criminal cases to be resolved in a more efficient manner due to the knowledge and expertise of judges within a court. Therefore delays are minimised and more people can access the criminal justice system in a more timely manner.
51
court hierarchy not uphold access
Grounds for appeal must exist and leave to appeal may be necessary. This may render some cases ineligible for a review by a higher court, meaning access to appeals can be limited.
The cost of engaging legal representation for the appeals process can be inaccessible to those who do not have the financial means. This limits an accused ability of engage with the criminal justice system and its processes.
52
The role of the judge
act impartially
manage the trial or hearing
decide or oversee the outcome of the case
sentence an offender
53
roles of the judge- act impartially
the judge must remain impartial to ensure a fair trial.
it ensures public confidence in the court justice system
54
role of the judge- manage the trial or hearin g
they are required to make sure that correct procedure is followed
ask occasional questions of a witness
make decisons such as whether evidence is permitted
adjust trial processes if neccessary- tkaing a break
55
role of the judge- decide or oversee the outcome of the case
in the county and supreme court, a jury will decide on the guilt not the judge but they must ensure the jury understands their role
they have to give directions to the jury to ensure a fair trial
summarise the case to the trial
56
role of the Magistrate- decide or oversee the outcome of the case
the magistrate has the role of deciding whether the accused is guilty
they are required to listen to teh cases presented by both parties
57
role of judge and magistrate- sentence the offender
the judge or magistrate must follow the sentencing guidelines and comply with legislation, listen to vis and suggestions to apply the mos appropriate sentencing.
58
how does the judge and magstrate achieve fairness
An independent judge or magistrate ensures the trial and court procedures and conducted fairly, without bias and according to the rules of evidence.
Judges give directions to the jury and must explain the key legal concepts of a criminal trial to ensure jurors remain impartial and informed in their decision making
59
how does the judge and magstrate not achieve fairness
Judges and magistrates can only explain court procedures and legal terminology to the parties and cannot provide additional legal advice or information to a self-represented party. This can increase the likelihood of an unfair trial for self-represented individuals due to the complexities and formalities of a criminal trial.
60
how do judges and magistrates uphold equality
Judges and magistrates ensure rules of evidence and procedure apply equally to both parties and are consistent across all criminal trials.
61
how do judges and magistrates not uphold equality
While judges and magistrates are impartial judicial officers, they are still subject to personal bias and therefore, may subconsciously discriminate against certain parties, hindering equality.
62
how do judges nad magistrates uphold access q
Judges and magistrates apply court rules that protect victims , proving access for vulnerable witnesses to safely give evidence. Some of these protecting are contained in the Jury Directions Act 2015
Judges explain points of law to jury members allowing jurors to better understand and participate in the trial.
63
how do judges and magistrates not upholf access
Judges and magistrates rely on the parties to present all relevant evidence during a trial. If an accused person has no access to legal representation, this may prevent, all relevant facts being presented to the court, as judges and magistrates cannot actively seek out evidence that they may need to deliver a verdict or ensure the jury knows all the facts prohibiting the carriage of justice
64
role of the jury
be objective
listen to and remeber the evidence
understand directions and summing up
deliver a verdict
65
role of the jury- be objective
the jury must be unbiased and bring an open mind, put prejudices aside
66
role of the jury- listen to and remember the evidence
jurors can take notes to rememeber the evidece as it can be gradually entered adn often complex
a juror cannot undetake personal research about their case and be abotu the facts of teh case
67
role of the jury- understadn directions
at the conclusion of a trial the judge will give jury directions they must listen and and ask follow up qiestionsb
68
role of the jury- deliver a verdict
the jury must take part in the deliberation in the jury room and form an opinon about which story or arguments they believe
69
how jury achieve farines
A trial by one’s peers protects democracy, ensuring verdicts reflect society’s values. This promotes a fair trial as the views of the community are accounted for, whilst providing citizens with an insight into the legal system.
Jurors cannot seek additional information about the case beyond the courtroom. Their decisions must only be informed by the evidence and facts submitted in the courtroom, and they are instructed to disregard any external knowledge about the case. This promotes a fair outcome.
70
how jurys dont achieve fariness
Legal cases are complex and technical, making it difficult for ordinary individuals to fully understand the legal terminology and procedures.
While jurors are instructed to remain impartial, they receive little training on how to do so and may subconsciously rely on prejudice or bias to inform their decisions.
71
how juries achieve equality
All accused persons charged with indictable offences are entitled to a trial by jury, regardless of their wealth, race, or education promoting equality.
A cross-section of the community is used as a decision-maker, so the accused should feel their case has been decided by their independent equals. This also helps to disperse any potential bias held by a single decision-maker, as the decision is made by a group.
72
how juries dont achieve equality
Some individuals are ineligible or disqualified from jury service. Consequently, some accused persons may feel the jury is not a true cross-section of the community and are, therefore, not being judged equally.
Jury trials are not available for summary offences, meaning access to a jury trial is not equal across the types of offences.
73
how juries do not achieve access
Very few matters are tried by jury, as most criminal offences are summary offences heard in the Magistrates’ Court. As such, relatively few accused persons can access a jury trial.
Delays can limit a party’s access and contribute to a backlog of court cases. This impacts access to justice for all individuals engaging with the criminal justice system
74
how juries achieve access
The presence of a jury ensures less legal jargon and more plain English is used during a trial to enable the jury to have a clear understanding of its responsibilities and the court’s procedures. This can also ensure the accused, if self-represented, understands the case and trial process, promoting access to justice
75
what are the parties of the case
accused, prosecution
76
what is the role of the prosecution
to present the entire case to the jury and let them decide on guilt
- disclose information to the accused
- participate in the trial or hearing
- make submissions about sentencing
77
DIclose information to the accused- prosecution roel
the accused must be informed about the evidence that will be used against them
the obligation of disclosure extends to disclosing any relevant convictions of prosecution witnesses
78
participate in the trial or hearing- prosecution role
during the trial or hering they must present the case which includes
- presenting opening address
- presenting evidence
- cross examination- examination in chief
- making a closing address.
79
make submissions about sentencing- prosecution role
if the accused pleads gulity or is found guilty the matter will be set down for a plea hearing at which parties can make submissions about sentencing.
80
Role of the Accused
participate in the trial or hearing
make submissions about sentencing
81
participate in the hearing or trial
if the accused chose to hey can fully participate in the trial but if not they can remain silent but the accused or their lawyers would
-presenting opening address
- presenting evidence
- cross examination-
- making a closing address.
82
make submissions about sentencing- accused role
the offender is also entitled to make submissions about sentencing
- they will try to obtain the least possible sentence available
83
how the parties of a case uphold fairness
Both the prosecution and the accused are given the opportunity to present their case to the court, ensuring fair and impartial processes.
There is no requirement for the accused to present evidence to prove their case. This ensures fairness as it is not their role to prove their innocence, but rather, the prosecution’s role to prove their guilt.
84
how the parties of a case dont uphold fairness
Self-represented parties may struggle to understand how to present legal arguments and evidence in the best light, which may lead to an incorrect and unfair case outcome.
If an accused does not present any evidence and remains silent, this may be viewed as an admission of guilt, which may lead to an unfair case outcome
85
how the parties uphold equality
Both the prosecution and the accused are given the same opportunity to present their case to the court.
86
how the parties don't uphold equality
Self-represented parties may be at a disadvantage if they do not understand court processes and are unable to present all relevant evidence to prove their case. This creates inequality between the prosecution and accused.
87
how the parties uphold access
The courts provide some general guidance regarding court procedures to parties who are representing themselves, therefore promoting access to justice.
88
how the parties do not uphold access
Self-represented parties may struggle to understand how to present legal arguments and evidence in the best light, limiting access to justice.
An accused may plead guilty on the basis that they do not understand their rights and do not think they will present their case in the best light possible, reducing access to justice.
89
why are legal practitioners needed?
uphold the rule of law
ensure an accused understands legal proceedings
prevent an accused from having to personally question witnesses
provide support
provide objectivity
help an accused to receive a fairer outcome
90
how lawyers uphold fairness
Legal practitioners can provide advice to their clients that allows them to participate in criminal proceedings on an informed basis where they better understand the pre-trial and court processes. This may lead to fairer outcomes as an accused can participate in certain aspects of the criminal justice process on a more informed basis, such as
choosing to partake in plea negotiations.
The use of legal practitioners can increase an accused person’s chance of securing a not guilty verdict, as their case is presented in the best possible light by an expert.
91
how lawyers do not uphold fariness
Legal practitioners for the accused are expensive, meaning they may only be able to afford either a barrister or a solicitor. Consequently an unfair outcome may occur where the Office of Public Prosecution has a whole team of expert solicitors and barristers, whilst the accused only has one.
An accused may struggle to participate in criminal proceedings without receiving legal advice. For example, they may not understand how to appeal their conviction or sentence after a guilty verdict has been decided, limiting fairness.
92
how lawyers uphold equality
When an accused has legal representation, equality can be achieved as disadvantages associated with only the prosecution having legal representation are avoided.
VLA’s strict eligibility requirements ensure those who are disadvantaged are prioritised to receive legal representation. This upholds equality as VLA takes significant action to minimise disadvantage and ensure individuals, regardless of characteristics such as their income or race, can receive legal representation in court.
93
how lawyers do not uphold equality
Legal practitioners for the accused are expensive and they may only be able to hire either a barrister or solicitor. This may lead to unequal legal representation where the Office of Public Prosecution has a team of expert legal practitioners.
VLA’s strict eligibility requirements mean that not all accused persons can receive free legal representation even if they cannot afford to pay the high cost of legal representation themselves
94
how lawyers do achieve access
Legal practitioners help parties prepare and present their case, increasing access to justice as accused persons can develop a greater understanding of their legal rights and the criminal proceedings they will participate in.
VLA provides access to legal representation for some accused persons
95
how laywers do not achieve access
The costs of legal practitioners for an accused are high, meaning access to legal representation is less available.
96
costs
the costs associated witht the criminal justice system include costs of legal representation
legal services can be provided through vla's and clcs however they are stretched in the number of peopele thye can assist
97
impact of costs
increased demand of vla and clc lawyers and most of the community is not eligible
growing rates of self represented parties
98
impact of time
victim- the longer the case is delayed the longer the suffering of the victim without closure and justice not served- oral evidence may fade over time
witness- giving evidence is stressful so delays add to the stress
accused- stressful awaiting trial, an accused may be found wrongfully guilt because of false evidence- testimony fades
99
measures in place to address delays
digital/ remote hearing= decreases delays
plea negotiations
early guilty pleas
100
cultural differences
first nations- Koori Court aims to fair, equitable and culturally relevant justice
informal round table, sitting with elders, no direct questioning
immigrants
access to free interpretors, information from court, vla, clcs provided in different languages
101
what are the purposes of sanctions
rehabilitation, punishment, deterrence, denunciation, protection
102
how does costs uphold fairness?
Though VLA’s resources are limited, it does
provide legal representation to accused persons,
charged with serious offences, who have a
very low socioeconomic status. Therefore, this
promotes fairness by ensuring disadvantaged
individuals have representation and can participate
in the justice system.
Independent judges ensure the rules of evidence
and procedure are followed, promoting fairness,
as even if an accused was unable to afford
representation, the rules of evidence in a criminal case would still be followed.
103
how does costs not uphold fairness
If an accused person cannot afford legal
representation, they may have to represent
themselves. This may jeopardise fairness if the
accused cannot present their case in the best
light possible.
Unbalanced legal representation may lead to an
unfair outcome, as the accused may be unable
to prepare and present a case that is equally
convincing as that of the prosecution.
104
how does costs uphold equality
Judges in County Court and Supreme Court can order VLA to provide lawyers for those who can't afford legal representation. Promotes equality by ensuring access to legal aid, reducing disparities in the justice system
Victims are represented by the OPP, which is free
of charge, and ensures all victims receive equal
representation, regardless of their individual
characteristics, for the purpose of protecting
the community at large.
105
how does costs not uphold equality
If aggrieved parties cannot initiate an appeal due
to the associated costs, equality before the law is
not achieved as all people cannot engage with the
justice system equally.
When a party cannot afford legal representation
or does not qualify for grants to representation
offered by VLA, they are at risk of not being
treated equally before the law
106
how does costs uphold access
VLA may provide duty lawyers/grants to assist disadvantaged accused persons facing criminal charges, better enabling them to engage with justice system
If interpreters are needed in courts, prosecution organises and pays for it, costs are avoided by accused person and they are able to understand trial process to same degree as prosecution
107
how does costs not uphold access
The funding that VLA provides to accused persons
is limited, therefore some individuals may be
outside the low-income requirement
Lack of legal representation makes it difficult to understand criminal proceedings and undermining access to justice and without a lawyer they cannot properly engage with the criminal justice system on an informed basis.
108
how does time uphold fairness
VCH is structures in a way where lower courts are designed to hear high quantities of less serious matters that take less time to be decided, whereas higher courts focus on more serious cases and hear fewer, this increases fairness, as victims can achieve justice in a reasonable time, considering delays can be partially counteracted by this set-up of court system
Plea negotiations encourage an early resolution of many criminal matters, as verdicts are determined without trial, promoting fairness as delays are avoided, meaning justice can be attained in a reasonable amount of time
109
how does time not uphold fairness
Delays compound the suffering of victims
and accused persons as they have to wait to
gain closure and justice, often increasing stress
and anxiety.
If delays cause evidence to be lost or made
unreliable due to the passage of time and
memories fading, this may lead to incorrect
and unjust outcomes, which is unfair.
110
how does time not uphold equality
Delays can be particularly distressing for victims
and accused individuals with mental health issues or disabilities, limiting equality.
Delays in a case could mean that elderly victims
never achieve justice, limiting the achievement
of equality as these individuals are disadvantaged due to their age.
111
how does time not uphold access
Knowing about the delays in the justice system
may prevent victims from initially making
complaints to the police, preventing these people
from engaging in the justice system and limiting
access to justice.
The longer a criminal trial goes for, the greater the costs in terms of paying for legal representation, therefore, delays drive up costs for accused
persons, making access to justice less affordable.
112
how does time uphold equality
Plea negotiations may be used to ensure a resolution is reached in a timely manner. Most accused persons have the ability to enter into plea negotiations, promoting equality,
as the opportunity to negotiate a plea deal
is available to accused persons regardless
of their personal characteristics.
113
how does time uphold access
Relatively few matters are resolved by jury trial,
so the delays associated with juries are limited
to a small number of criminal cases. This increases access as non-jury trials are often quicker, freeing up the legal system and allowing other victims to access justice.
Each court in the hierarchy specialises in certain
cases and matters, therefore delays can be
reduced. This increases access as judges in each
of the courts are experienced in certain matters
and can thus resolve cases efficiently. This allows
cases to be processed faster so more cases can
be resolved each year
114
how do cultural differences promote fairness
The prosecution must ensure all relevant facts
and legal principles are presented to the court.
This helps promote fairness since when there are
open and impartial processes, the whole truth can emerge, thus overcoming some of the difficulties
that can be caused by cultural differences.
The presumption of innocence and the high standard
of proof required for a criminal conviction aims
to protect those who have difficulty presenting
evidence or a defence, as they do not need
to prove their innocence.
The Evidence Act 2008 (Vic) establishes the
circumstances where evidence cannot be
admitted to the courts due to the accused
or victim’s accounts being unreliable
as a result of language barriers.
115
how do cultural differences promote equality
VLA provides legal representation
to all accused persons, including Indigenous
and migrant accused persons, as long as these
individuals meet specific criteria.
Interpreters are available for all accused persons,
and the onus to pay for and arrange an interpreter
is on the courts, as opposed to the accused. This
allows all non-English speakers to understand
court proceedings without having to pay
significant expenses.
The Koori Court is an option for First Nations
peoples if they plead guilty, as it can provide
culturally-relevant sentencing practices that are
used when determining the sentence of an offender.
Therefore, this can increase equality as sentencing
processes are more tailored to Aboriginal and Torres
Strait Islander practices.
116
how do cultural differences not uphold equality
Due to cultural or language differences, some
First Nations peoples or recent migrants from
non-English speaking backgrounds may be less
capable of presenting evidence as victims or
accused persons, undermining equality
Aboriginal and/or Torres Strait Islander peoples
typically live in more rural areas of Australia and,
therefore, their access to legal representation is
more limited due to geographical barriers.
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how do cultural differences promote access
Victorian Aboriginal Legal Service, community
legal centre, that better enables First Nations people
to engage with justice system, by providing advice and assistance tailored to needs
of Indigenous Victorians. Legal services are available across rural regions in Victoria, allowing access to justice for Aboriginal peoples in remote
areas and metropolitan Melbourne.
Use of Koori Court aims to provide First Nations offenders with access
to culturally-relevant sentencing that more
effectively acts to reduce reoffending.
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how does cultural differences not uphold access
If refugees or other migrants do not trust the police,
due to past, adverse experiences in their home
countries, they may be reluctant to report crimes,
undermining access to justice for victims.
Migrants and refugees may be unfamiliar with the Victorian legal system and less aware of their legal rights as a victim or accused person, therefore limiting access
119
what is rehabilitation
seeks to address and resolve underlying causes of offending
is achieved through programs offered in prison/parts of CCOs
120
121
what is protection
Sanctions may be applied that aim to protect the
victim and/or society from the harm and threat
of the offender.
This purpose can be achieved by removing the
offender from society through imprisonment.
122
what is punishment
penalise and hold offender accountable for their actions
ensures justice can be delivered to victims and retribution can be sought for impact of crimes
123
what is denunciation
The court publicly condemns the offender’s actions
for violating society’s moral and ethical standards.
* The condemnation generally occurs at the end
of a hearing or trial during the judge’s statement.
124
what is deterrence
This purpose can be specific to the offender
or applicable to the general public.
Applying a sanction for the purpose of deterrence
aims to discourage an offender and/or the public
from committing the same or similar offences.
125
what are fines
when offender receives fine, they are required to pay a sum of money to state as penalty for committing a particular criminal offence. A fine can be imposed alone or in combination with another type of sanction
126
strengths of fines
Paying money to the state instead of using it for
personal purposes aims to penalise the offender.
* The payment of fines is usually required within
a short time frame, therefore the consequence
is enforced almost immediately.
* The court can align the fine with the offender’s
ability to pay it, meaning the court can penalise
offenders according to their personal or financial
circumstances.
127
Limitations of fines in achieving punishment
Setting fines to reflect each offender’s capacity
to pay may be considered unequal, unfair, and
unjust if offenders who commit the same offence
are penalised differently.
The legislated maximum penalty may not be high
enough to punish wealthy offenders.
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strengths of fines in achieving deterrence
The financial loss caused by a fine discourages
an offender from reoffending, achieving specific
deterrence.
The economic loss caused by a fine discourages
other members of the community from committing
similar offences, achieving general deterrence.
129
limitations of fines in achieving deterrence
A legislated maximum penalty may not be high
enough to discourage wealthy individuals or large
corporations from breaching the law, restricting
the achievement of specific deterrence
130
strengths of fines in achieving protection
Due to the deterrent effect of fines on people’s
behaviour, fines can achieve some protection.
For example, drivers are deterred from dangerous
behaviour on the roads due to the risk of fines
if they are caught.
131
limitations of fines in achieving protection
Community protection is not directly achieved by
a fine, as this sanction does not remove an offender
from the community or restrict their behaviour
in any way
132
strength and weaknesses of cco's achieving denunciation
For minor crime- didn’t have to give that severe of a sentence therefore showing their disapproval - youth crimes
-
Denunciation may not be achieved by a CCO as it is not as harsh as imprisonment and may not be severe enough to ‘send a message’ about the court’s condemnation of the offender.
132
strengths of fines in achieving denunciation
If a court imposes a very large fine, this communicates the court’s disapproval and
condemnation of the offender’s behaviour
133
strength and weaknesses of cco's achieving rehabilitation
A CCO can include treatment for mental health issues and drug or alcohol addiction that have caused criminal offending, potentially reducing the risk of reoffending.
Community work builds offenders’ self-esteem and provides skills that may be useful in securing employment
-
Though rehabilitation programs may be mandated by the conditions of the CCO, the rehabilitation of an offender is also dependent on their willingness to participate and commitment to the program.
If the offender is unwilling to engage with rehabilitative services and activities, the underlying causes of offending may not be addressed and they may continue to offend.
133
limitations of fines in achieving denunciation
The maximum fine a court is able to impose
for a particular offence may not be high enough
to send a message about the court’s condemnation
of the offender.
Offenders who do not have the financial means
to pay a large fine will not be issued one by the
courts. Therefore, the court’s denunciation of the
offence may be limited by this condition
134
what is impriosnment
people who have been convicted of a crime they can be sentenced to imprisonment. meaning they will be removed from society and have to spend time in prison, losing their freedom and liberties.
134
limitations of fines in achieving denunciation
Rehabilitation is not achieved by a fine. Any underlying causes of criminal offending, such as drug or alcohol addiction, will not be addressed by a fine.
135
types of sanctions
fines, cco's, and imprisonment
136
what are cco's
a non-custodial supervised sentence served in the community. IT gives the offender the opportunity to address their criminal behaviour and undergo treatment.
136
stengths and weaknesses prison acheving punishment
The offender is placed in a harsh environment where their movement and liberty is restricted.
The offender loses most contact with family and friends.
The offender will usually lose their employment and therefore, any income whilst in prison.
-
If they don’t care about it
The punishment wasn’t strong enough
137
strength and weaknesses of cco's achieving punishment
+
A CCO can restrict an offender’s movements or
actions depending on the additional conditions that
are attached to it. This may serve to penalise the
offender for their actions.
-
If the impact of an offence is very severe, such as a
violent assault, a CCO may not punish an offender
sufficiently, causing unjust outcomes for victims,
their families, and the community. I
138
strength and weaknesses of cco's achieving deterrence
+
Given the inconvenience of community work
and the restrictions imposed by curfews, alcohol
bans, and other aspects of a CCO, an offender may
be discouraged from reoffending to avoid receiving
similar sanction conditions. This may, therefore,
achieve specific deterrence
Given the inconvenience of community work
and the restrictions imposed by curfews, alcohol
bans, and other aspects of a CCO, members of the
community may be discouraged from committing
a similar offence to avoid similar sanction conditions.
Thus, this can achieve general deterrence
-
A CCO is not as severe as imprisonment. Therefore,
the wider community may not consider a CCO
as a severe or harsh punishment. Consequently,
community members may not be discouraged
from criminal activity, limiting the achievement
of general deterrence.
138
strengths and weaknesses prison acheving deterrence
The harsh punishment of prison is likely to discourage offenders and the community from reoffending out of fear of receiving a similar sentence.
-
Prison is not an effective deterrent for many offenders. In Victoria, the rate of recidivism is high, with approximately 43.3% of offenders reoffending within 2 years
139
strength and weaknesses of cco's achieving protection
The offender can be restricted from attending certain places, or from contacting specific people, including victims and co-offenders, thus promoting community safety.
The imposition of curfews and alcohol bans, whilst preventing an offender from attending a licenced venue, can protect society from alcohol-driven violence.
-
The offender remains in the community and may not adhere to the conditions of the CCO. Therefore, community safety may not be promoted to the same extent as imprisonment as the offender’s movements are not physically constrained.
140
strengths and weaknesses prison achieving protection
The offender is removed from society and therefore, does not pose a significant risk to the welfare of the community or their victims.
-
Long term community protection may not be achieved if an offender reoffends upon release
141
strengths and weaknesses prison achieving denunciation
+
The harshest sentence in Victoria
They take this crime seriously enough to send to prison
-
A short prison sentence for something serious
Getting min amount sentence for murder.
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what are aggravating factors
Aggravating factors increase the seriousness of the offence and consequently, can increase the sentence a court imposes on an offender. Aggravating factors increase the culpability of the accused, and therefore, the degree to which they are at fault. Hence, the presence of aggravating factors can push a court toward imposing a more severe sanction.
143
what are factors that influence sentencing
aggravating, mitigating, guilty pleas, victim impact statement (VIS)
144
examples of aggravating factors
* the crime was planned or premeditated.
* a weapon was used in the course of committing a crime.
* the victim of the offence is a particularly vulnerable person, such as an elderly
person, a person with a disability, or a child.
* the offence took place in front of children.
* the offender has prior convictions for similar offences.
145
what is guilty pleas
a guilty pleas at an early stage before trial or hearing, or at the start of the trial, can result in a sentence of reduced severity because it acts as a mitigating factor
146
what are mitigating factors
Mitigating factors decrease the seriousness of an offence and consequently, can
decrease the sentence a court imposes on an offender. Mitigating factors decrease
the culpability of the accused, and therefore, the degree to which they are at fault.
Hence, the presence of mitigating factors can push a court toward imposing a less
severe sanction.
147
examples of mitigating factors
* genuine remorse.
* the crime is the result of provocation, rather than premeditation.
* the age of the offender, as a particularly young offender may be regarded more
capable of rehabilitation and therefore, can receive greater leniency.
* an offender having a particularly traumatic personal history, such as growing
up surrounded by family violence, drug addiction, and/or alcoholism.
* a limited or no prior criminal history.
* an offender cooperating with police during their investigation of the offence.
148
149
vis
when sentencing an offender the court must consider the impact of the offence on the victim
a vis contains particulars of any injury, loss, or damage suffereed by the victim as a direct reuslt of the offence
this can be read aloud by the victim or someone else.
