Unit 3 AOS 1 Flashcards
The Victorian Criminal Justice System
define criminal justice system
The criminal justice system is a set of processes and institutions used to enforce criminal laws, and to
investigate and determine criminal cases.
what does the criminal justice system involve?
It involves the police, courts and prisons.
Two of the key purposes of the criminal justice system are to?
- decide whether an accused is guilty of an offence
- impose a sanction in cases where an accused has been found or pleaded guilty to committing
an offence
what are the three main stages of a criminal case?
- investigation stage
- determination stage
- corrections stage
what is the investigation stage?
the investigation stage includes the investigation of an offence and the charging of an accused
what is the determination stage?
the determination stage involves the courts deciding whether the accused is guilty and what
sanction will be imposed
what is the corrections stage?
the corrections stage involves overseeing any sanction imposed, such as imprisonment (the offender spending time in jail) as well as any post-sentencing
procedures such as being monitored.
is there one criminal justice system in Australia?
There is no single, unified criminal justice system in Australia.
why is there no single, unified criminal justice system in Australia?
This is because under the Australian Constitution, the Commonwealth Parliament does not have power to make laws about crime in general.
who has power to make laws about crime in general?
This is left to the states and territories, which have the power to legislate for the peace, order and good
government of their own states, and the general power to maintain public order and protect individuals who live within their state.
where are the different criminal justice system?
Therefore, each state and territory has its own criminal justice system.
what do the states and territories criminal justice system have laws that establish?
- what is considered a crime
- the processes used to decide if someone is guilty
- the maximum penalty that can be imposed for each specific crime.
what else do the states and territories have in relation to their criminal justice system?
Each state and territory also has its own police force, courts and prison system, although they are similar.
what power does the Commonwealth
Parliament have with criminal laws?
Although the administration of criminal justice is a power held by the state, the Commonwealth
Parliament has the power to make criminal laws related to its own law-making powers in some way
(such as avoiding customs duties, because customs is a Commonwealth power).
what are crimes against the commonwealth called?
These are known as Commonwealth offences.
are crimes solely commonwealth or state one?
Commonwealth offences have expanded over time and there is now a great deal of overlap between Commonwealth and state crimes. Some crimes, such as some drug offences, could be either a state offence or a Commonwealth offence.
where are many commonwealth offences set out?
Many of the Commonwealth offences are set out in the Commonwealth Criminal Code, which is
contained in a statute passed by the Commonwealth Parliament.
what offences does the Commonwealth Criminal Code contain?
- engaging in a terrorist act
- people smuggling (where people help others to enter Australia illegally)
- espionage crimes (such as communicating information about national security to a
foreign country).
In Victoria the main courts that hear and determine criminal cases are?
- the Magistrates Court
- the County Court
- the Supreme Court
what other courts does Victoria have?
Victoria also has specialist courts, including a Childrens Court.
what does the Children’s Court hear?
This court hears criminal cases where
a child (between the ages of 10 and 17 at the time of the offence) has been accused of committing a
crime except for certain serious crimes such as murder and arson causing death, which will be heard
in the higher courts (i.e. the County Court or the Supreme Court).
A criminal case involves two parties, which are?
- the prosecution (the party prosecuting the case against an accused, and generally representing
the community) - the accused (the person or organisation alleged to have committed a crime).
- The victim is not a party to a criminal case and does not bring the court action.
what does prosecution describe?
The term prosecution is generally used to describe the party that presents the evidence in court
on behalf of the state (or Commonwealth) against a person accused of committing the crime.
who does the prosecution include?
The prosecution includes the prosecutor, who occupies a special position in the prosecution as they have special duties and obligations.
who prosecutes in serious cases?
In Victoria the Office of Public Prosecutions (OPP) works with the Director of Public
Prosecutions (DPP) and Crown Prosecutors to prosecute serious crime on behalf of the State of
Victoria in the County Court and the Supreme Court of Victoria.
who prosecutes in less serious cases?
In less serious cases, Victoria Police
officers will usually prosecute crimes in the Magistrates Court. Other organisations such as local
councils, VicRoads and WorkSafe Victoria also have power to prosecute less serious offences.
what does accused describe?
The person charged with a crime is known as the accused.
can there be multiple accused?
There can be multiple accused persons in a criminal case, depending on the crime alleged to have been committed.
can companies be the accused?
Companies can also be charged with offences such as taxation fraud, offences relating to workplace
health and safety, wage theft laws and environmental offences.
define jury
an independent group of people chosen at
random to determine questions of fact in
atrial and reach a decision [i.e. a verdict]
define accused
a person charged with a criminal offence
define sanction
a penalty [e.g. a fine or prison sentence] imposed by a court on a person guilty of a criminal offence
define imprisonment
a sanction that involves removing the offender from society for a stated period of time and placing them in prison
define offender
a person who has been found guilty of a criminal offence by a court
define Australian Constitution
a set of rules and principles that guide the way Australia is governed. The Australian Constitution is set out in Commonwealth of Australia Constitution Act.
define Commonwealth offences
crimes that break a law passed by the Commonwealth Parliament
define statute
a law made by parliament; a bill that has passed through parliament and has received royal assent
{also known as legislation or an Act of Parliament]
what law making powers do states have?
each state has law-making powers in relation to criminal law
define prosecution
the party that institutes criminal proceedings against an accused on behalf of the state
define prosecutor
the representative of the prosecution who
is responsible for conducting the criminal
case and appearing in court
define Office of Public Prosecutions (OPP)
the Victorian public prosecutions office that prepares and conducts criminal proceedings on behalf of the Director of Public Prosecutions
define Director of Public Prosecutions (DPP)
the independent officer responsible for commencing, preparing and conducting prosecutions of indictable offences on behalf of the State of Victoria
how are are crimes classified in Victoria?
- based on the nature of the offence (against a person or property)
- terms of their seriousness
what are the main two types of offences?
summary and indictable
define summary offence
summary offence is a minor crime that is generally heard in the Magistrates Court
what is the final hearing for a summary offence?
The final hearing at which both parties will put their case before a magistrate is known as a hearing.
Is there a jury trial for summary offences?
There is no right to a jury trial for summary offences.
where are summary offences contained?
Some summary offences are contained in the Summary Offences Act 1966 (Vic), but many are listed in various other Victorian statutes and regulations.
are most crimes summary or indictable?
Most crimes that are committed in Victoria are summary offences.
define indictable offence
a serious offence generally heard before a judge and a jury in the County Court or Supreme Court of Victoria
examples of summary offences?
Summary offences are less serious types of crime, such as drink driving, disorderly conduct and minor assaults.
examples of indictable offences
Indictable offences include homicide offences (such as murder or manslaughter), sexual offences, some theft crimes and drug trafficking.
where are indictable offences found?
As a general rule, offences in the Crimes Act 1958 (Vic) are indictable offences unless the offence is stated in the Act to be a summary offence.
where are indictable offences heard?
Indictable offences are heard in the County Court or Supreme Court of Victoria
what is the final hearing for indictable offences known as?
the final hearing is known as a trial
what is a jury used to determine in indictable offences?
A jury is used to determine guilt if the accused pleads not guilty.
define committal proceeding
the pre-trial hearings and processes held in the Magistrates Court for indictable offences
when do committal proceeding occur?
When an accused has been charged with an indictable offence and pleads not guilty,
where do committal proceeding take place?
committal proceedings take place in the Magistrates’ Court
what are stages of committal proceedings?
Committal proceedings involve several stages, including a final stage, called the committal hearing.
define committal hearing
a court hearing that is held as part of the committal proceeding in the Magistrates’ Court.
At a committal hearing. the magistrate will decide whether there is evidence of sufficient weight to support a conviction for the offence charged at trial
what happens if the magistrates find sufficient evidence in committal hearing?
If the magistrate does find there is sufficient evidence, the accused is committed to stand trial and the case is then transferred to the higher court that will hear the case.
what happens if the magistrates does not find sufficient evidence in committal hearing?
If the magistrate does not find there is sufficient evidence, the accused is discharged and allowed to go free.
what happens if further evidence is found in the future in committal hearing?
If further evidence is found in future, the accused can be brought before the court again, because the committal proceeding is not a trial, and no guilt has been decided
what are the purposes of the committal process?
- ensuring that cases where there is inadequate evidence do not go to trial
- finding out whether the accused plans to plead guilty or not guilty
- ensuring a fair trial by making sure the prosecution’s case is disclosed to the accused
- giving the accused the opportunity to put forward a case at an early stage and possibly cross-examine witnesses
are there committal proceedings for summary offences?
There are no committal proceedings for summary offences.
what are some offences known as?
Some indictable offences are known as indictable offences heard and determined summarily.
define indictable offence heard and determined summarily
a serious offence that is dealt with as a summary offence if the court and the accused agree
describe indictable offence heard and determined summarily
These are indictable (serious) offences, but they can be heard in the Magistrates’ Court as if they were summary (minor) offences.
how are some indictable offences decided to be indictable offence heard and determined summarily
Whether an indictable offence can be dealt with as a summary offence is determined by statute.
examples of indictable offence heard and determined summarily
theft if the property alleged to have been stolen is a motor vehicle
why do the accused choose to have indictable offence heard and determined summarily
The accused will usually choose to have an offence heard summarily, mainly because it is quicker and cheaper to have a case heard in the Magistrates’ Court, and the maximum penalty that can be handed down is less than if it were heard as an indictable offence.
what is the max imprisonment the Magistrates’ Court can impose?
The Magistrates’ Court can only impose a maximum of two years’ imprisonment for a single offence, and a maximum of five years’ imprisonment for multiple offences.
who must agree for some indictable offences to be heard and determined summarily?
However, the court must agree that the offence is appropriate to be heard summarily, and the accused must also agree.
three key principles of the Victorian criminal justice system?
- the burden of proof
- the standard of proof
- the presumption of innocence
define burden of proof
the obligation (i.e. responsibility) of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the prosecution in a criminal case).
describe the burden of proof?
The burden of proof refers to which party has the responsibility to prove the facts of the case.
who has the burden of proof?
The burden of proof lies with the person or party who is bringing the case. In a criminal case, this is the prosecution (i.e. the prosecution must prove that the accused is guilty).
what justifies the burden of proof?
One of the justifications for this is that if the prosecution is accusing a person of having committed a
crime, then the responsibility should be on the prosecution to establish the facts.
can the burden of proof ever be reversed?
- if the accused is pleading a
defence such as mental impairment - if drugs found on property the accused has the onus to prove the drug was not in their possession
define standard of proof
the degree or extent to which a case must be proved in court
define beyond reasonable doubt
the standard of proof in criminal cases. This requires the prosecution to prove there is no reasonable doubt that the accused committed the offence
describe the standard of proof and who must?
The standard of proof refers to the level of certainty or strength of evidence required to prove the case. In a criminal case, the prosecution must prove the case beyond reasonable doubt.
what does proving someone guilty beyond reasonable doubt mean?
Proving someone guilty beyond reasonable doubt does not mean that no doubt at all exists as to the accused’s guilt. It only means that no reasonable doubt is possible from the evidence presented.
how is beyond reasonable doubt justified?
The magistrate or members of the jury may still be able to think of fanciful, imaginary or unreasonable doubts (i.e. doubts that are not realistic or based on the evidence), but these do not count. To prove guilt in a criminal case, what matters is that no other logical or reasonable conclusion can be reached (based on the facts) except that the accused is guilty.
what is the standard of proof in criminal cases?
beyond reasonable doubt
how do jury understand what the standard of proof is in a criminal case?
In a criminal case involving indictable offences, the case is heard in the County or Supreme Court and a jury will be given prosecution
beyond reasonable doubt instructions that it must be satisfied of guilt beyond reasonable doubt.
what is the standard of proof if the burden of proof is placed with the accused?
If the burden of proof is on the accused (e.g. the accused is relying on a certain defence), then the standard of proof is on the balance of probabilities.
define balance of probabilities
the standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable (i.e. likely) than not that their claim is
true
define presumption of innocence
the right of a person accused of a crime to be presumed not guilty unless proven otherwise
define common law
law made by judges through decisions made in cases. Also known as case law or judge-made law (as opposed to statute law).
how important is the presumption of innocence?
The presumption of innocence is one of the most important principles of our criminal justice system and of the rule of law.
describe the presumption of innocence
It means that if a person is accused of committing a crime, they are considered innocent until proven otherwise.
how does the presumption of innocence explain what a person is called before guilt is decided?
That is why a person is called an ‘accused’ before they are proven guilty.
where is the the presumption of innocence found in the law?
The presumption of innocence is an old common law right. It is now also guaranteed by the Charter of Human Rights and Responsibilities Act 2006 (Vic). This is a Victorian statute that protects certain human rights.
what is one of the ways the burden of proof is upheld?
One of the critical ways in which the presumption of innocence is upheld is by imposing a high standard on the prosecution to prove its case (that is, beyond reasonable doubt), and by imposing the burden of proof on the prosecution. That is, the prosecution must prove that the accused is guilty.
Accused persons do not have to prove they are innocent.
what is the principle of the presumption of innocence is often discussed with regards to?
The principle of the presumption of innocence is often discussed, including in relation to “innocence projects’ that have been established around the world to investigate claims of wrongful convictions.
features of the criminal justice system thats uphold the presumption of innocence?
- an accused has the right to silence, which means they do not need to answer any questions, and do not need to give evidence in court. A person’s silence is not to be taken as a sign of guilt.
- police must reasonably believe a person has committed a crime before they can arrest that person
- for indictable offences, the prosecution must prove there is enough evidence to support a conviction before they can take a case to trial
- generally, a person’s prior convictions cannot be revealed until sentencing (after they have been found guilty)
- an offender has the right to appeal a wrongful conviction (such as where the judge applied the wrong law).
what is important in Australia in regards to rights?
The protection and promotion of human rights is an important part of Australia’s social and democratic systems.
what human rights are available to all Australians?
- the right to freedom of political expression
- the right to freedom of movement within Australia
- the right for an individual to enjoy their own cultural and religious
define Human Rights Charter
the Charter of Human Rights and
Responsibilities Act 2006 (Vic). Its main purpose is to protect and
promote human rights
define international treaty
a legally binding agreement between countries or intergovernmental organisations, in which they undertake to follow the obligations set out in the agreement and include them in their own local laws (also known as an international convention)
how are rights protected in Victoria?
In Victoria, many rights are protected by statute, including the Charter of Human Rights and Responsibilities Act 2006 (Vic), otherwise known as the Human Rights Charter (or the Victorian Charter of Human Rights).
what is the main purpose of the Human Rights Charter?
The main purpose of the Human Rights Charter is to protect and promote human rights. It is designed to ensure that any statute passed by the Victorian Parliament is compatible (i.e. does not interfere) with the human rights set out in the Charter.
what are the rights in the Human Rights Charter based on?
The rights protected by the Human Rights Charter are based on those in the International Covenant on Civil and Political Rights (1966). This is an international treaty to which Australia is a signatory.
are the laws in the Human Rights Charter exactly the same to the Covenant?
Many of the rights in the Human Rights Charter mirror those in the Covenant, but a number have been modified slightly to suit Australia’s existing laws.
what section of the Human Rights Charter are the rights available to an accused in criminal proceedings found?
Sections 23 to 27 of the Human Rights Charter
who do the rights of the Human Rights Charter apply to?
They are only available to human beings (and not, for example, to companies).
where else are rights of the accused contained?
In addition to the rights in the Human Rights Charter, other statutes contain rights available to an accused.
what are the rights available to an accused in a criminal case?
- The right to be tried without unreasonable delay
- The right to silence
- The right to trial by jury
what does the Human Rights Charter state about the right to be tried without unreasonable delay?
The Human Rights Charter states that a person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay.
what is the right to be tried without unreasonable delay?
This means that an accused is entitled to have their charges heard in a timely manner, and that delays should only occur if they are considered reasonable.
who does the right to be tried without unreasonable delay apply to?
This right is ‘without discrimination’. Every accused person is entitled to this right regardless of their prior convictions or personal characteristics.
what does the right to be tried without unreasonable delay recognise?
The right recognises that there may be a delay in the case, but that delay must not be unreasonable.
what is considered unreasonable delay?
The term ‘unreasonable delay’ is not defined, but the reasonableness of any delay will depend on factors such as the complexity of the case and the legal issues involved.
when is delay considered reasonable?
For example, it would be reasonable for the prosecution to need more time to prepare for a case involving multiple crime scenes, multiple crimes and multiple accused people with few or no witnesses, as opposed to a case where there was a single incident with multiple witnesses.
what is the right to be tried without unreasonable delay supported by?
This right is supported by section 21(5) of the Human Rights Charter, which states that a person who is arrested or detained on a criminal charge has the right to be brought to trial without unreasonable delay.
how does the right to be tried without unreasonable delay support the human rights charter?
This is because, under the Charter, people have a basic right to liberty and security, and accused persons are presumed innocent until proven guilty. Therefore, people should not be held for an unreasonable amount of time while they are awaiting trial.
how does the right to be tried without unreasonable delay apply to children?
The Human Rights Charter also states that an accused child must be brought to trial as quickly as possible. A child is defined as a person under 18 years of age.
why must trials be brought as quickly as possible for children?
Having a trial ‘as quickly as possible’ for an accused child, rather than a trial ‘without unreasonable delay’, which places a greater burden on the prosecution, is justified because of the impact that a trial may have on a child.
define remand
the situation where an accused is kept in custody until their criminal trial can take place
define bail
the release of an accused person from custody on condition that they will attend a court hearing to answer the charges
what is the right to silence?
The term ‘right to silence’ describes different types of protections given to an accused person to not have to say or do anything.
what are protections in the right to silence?
- 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
- the accused cannot be forced to give evidence in a criminal trial or answer any questions, file any defence, or call a particular witness as part of a trial.
what protects the right to silence?
The right to silence is protected by common law.
what does common law say about the right to silence?
- an accused person has the right to remain silent
- no adverse inferences (negative conclusions) can be drawn (made) from the fact that a person has not answered any questions or given any evidence. This means it should not be assumed that a person is guilty simply because they have failed or refused to say or do anything in a criminal case.
what does the right to silence also extend to later in a case?
- where an accused later relies on a defence that was not raised earlier, no conclusions should be drawn that the new defence is a ‘new invention’ or is ‘suspicious’ because the accused only just raised it
- where the accused has chosen to answer some questions but not others (known as ‘selective silence’), this cannot be used to conclude guilt.
define statute law
law made by parliament; also known as Acts of Parliament or legislation (as opposed to common law)
what other law also protects the right to silence?
Statute law now also protects the right to silence.
what must a judge do in relation to the right to silence?
When giving directions to a jury, a judge may direct the jury that the accused has a fundamental right to remain silent, and that the jury should not conclude that the accused is guilty because they remained silent. A judge must also not suggest to a jury that it can conclude the accused is guilty because they did not give evidence or call a particular witness.
what are the exceptions to the right to silence?
- if the police believe that a person has committed or is about to commit a crime
- may be able to assist in the investigation of an indictable offence - the person must give their name and address if asked to do so
was the right to silence always a right in Victoria?
It was not always the case in Victoria that a person could remain silent and that this would not be held against them. Previously a judge could instruct a jury that they could draw some conclusions if a person remained silent.
what is the right to trial by jury?
A trial by jury is where a person’s peers within the community decide the outcome of the case - in a criminal case, whether or not the accused is guilty.
what does the right to trial by jury date back to?
This right dates back to well before the Magna Carta in England, established in 1215, which said that no free man shall be imprisoned except by lawful judgment of his peers.
what does the jury system provide?
The jury system provides the opportunity for community participation in the legal process, and for the law to be applied according to community standards.
where is the right to a trial by jury protected?
The right to trial by jury is not protected by the Human Rights Charter, but rather protected in part
by statute law in Victoria (for state indictable offences), and in part by the Australian Constitution (for Commonwealth indictable offences).
what does a jury require for a Victorian indictable criminal offence?
For Victorian indictable criminal offences, the Juries Act 2000 (Vic) requires there to be a jury of 12.
what do the Criminal Procedure Act 2009 (Vic) and the Juries Act contain about juries?
The Criminal Procedure Act 2009 (Vic) and the Juries Act also contain provisions about processes in relation to jury empanelment and directions to be given to juries.
is there a right to a jury for summary offences?
There is no right to trial by jury for summary offences.
how many jurors can be empanelled?
While a criminal jury is made up of 12 jurors, the court can order the empanelment of up to three additional jurors, considering factors such as the length and nature of the trial (but only 12 jurors will ultimately deliberate on the accused’s guilt).
whats does having more than 12 jurors ensure?
This can help to avoid any disruptions in the trial if, for example, one or more of the jurors gets sick.
what is the jury’s role?
The jury will hear the case and will need to reach a verdict on whether the accused is guilty or not guilty.
what standard of proof does the jury’s decision have to be based on?
The jurors must make this decision beyond reasonable doubt.
is the right to a jury upheld with commonwealth indictable offences?
Section 80 of the Australian Constitution states that any person who is charged with a Commonwealth indictable offence is entitled to a trial by jury.
what has the high court interpreted the right to a jury as in the past?
In the past, the High Court has interpreted this as a right that cannot be refused by an accused. That is, an accused cannot choose to be tried by judge alone if they have been charged with a Commonwealth indictable offence.
what are commonwealth indictable offences?
Commonwealth indictable offences are serious offences set out in Commonwealth law.
what is the restriction of the right to a jury upheld in the constitution?
However, section 80 of the Australian Constitution provides only a limited right to trial by jury, because most indictable offences are crimes under state law, and this section only applies to Commonwealth offences. In addition, the Commonwealth Parliament can determine by statute which offences are ‘indictable’.
do victims have rights in criminal cases?
Although the victim is not a party in a criminal case, there has been widespread recognition that not only should there be rights for an accused, but victims of crime should also be recognised and treated with respect and dignity and as participants during a criminal case.
define victim
a person who has suffered directly or indirectly as a result of a crime
define victims’ charter
the Victims’ Charter Act 2006 (Vic), which recognises the impact of crime on victims and provides guidelines for the provision of information to victims
where are victims rights recognised?
Victims are recognised by several statutes in Victoria, including the Victims’ Charter Act 2006 (Vic), known as the Victims’ Charter.
objectives or key principles of the Victims Charter are?
- recognise the impact of crime on victims
- recognise that victims should be offered certain information during the investigation and prosecution process
- help reduce the likelihood of secondary victimisation that may be experienced by the victim as a result of their interaction with the criminal justice system
how does the Victims’ Charter define a victim?
- a person who has suffered injury as a direct result of a criminal offence (often called the
‘primary victim’) - a family member of a person who has died as a direct result of a criminal offence
- a family member of a person who is under 18 years of age or is incapable of managing his or her own affairs because of mental impairment, and that person has suffered injury as a direct result of a criminal offence
- a child under the age of 16 years who has been groomed for sexual conduct, as well as that child’s family
what does the Victims’ Charter set?
The Victims’ Charter sets down principles such as respectful treatment of victims, respect for victims’ privacy, and ensuring victims are given information about any criminal case brought to court.
does a breach of the victims’ charter principle allow for civil action?
However, a breach of those principles does not entitle the victim to take civil action to enforce them.
does anything else provide protection for Victims other than the Victims’ charter?
In addition to the principles contained in the Victims’ Charter, several other statutes provide some
protections for victims.
what are the rights available to a victim in a criminal case?
- The right to give evidence using
alternative arrangements - The right to be informed about the proceeding
- The right to be informed of the likely release date of the offender
what is a victims right to give evidence using alternative arrangements?
In some criminal cases, a victim may be a witness in the case. If so, they may have to give evidence in support of the prosecution’s case against the accused.
what protects the right to give evidence using alternative arrangements?
A number of sections in the Criminal Procedure Act (2009) Vic aim to protect certain witnesses in certain types of cases. In particular, the Criminal Procedure Act allows for alternative arrangements to be used; that is, different ways in which a witness can give evidence.
define alternative arrangements
measures that can be put in place for
witnesses in certain criminal cases (e.g. as sexual offence cases) to give evidence in a different way
Cases in which alternative arrangements for witness who gives evidence in criminal proceedings can be made?
- a sexual offence
- a family violence offence
- an offence for obscene, indecent, threatening language or behaviour in public
- an offence for sexual exposure in a public place
when can alternative arrangements be made in criminal proceedings?
The arrangements can be made at any stage of the criminal proceeding, including any appeal or rehearing
Types of alternative arrangements?
- The witness may give evidence from a place other than the courtroom by means of closed-circuit television (or other like facilities) to enable communication between that place and the courtroom. The evidence will be recorded.
- Screens may be used to remove the accused from the direct line of vision of the witness.
- A support person may be chosen by the witness to be beside them while the witness is giving evidence, so they can provide emotional support.
The court needs to approve the support person chosen. - Only certain persons (specified by the court) may be allowed in court when the witness is giving evidence.
- Legal practitioners may be required not to be formally dressed in robes.
- Legal practitioners may be required to be seated while asking the witness questions.
when must the court direct the use of certain alternative arrangements?
if the witness is a complainant in a criminal proceeding that relates to a charge for a sexual offence or a family violence offence
what alternative arrangemnt must the court use in certain cases where it is a must?
In such a case, the court must direct the use of closed-circuit television or other facilities unless the prosecution applies for the complainant to give evidence in the courtroom, the complainant is able and wishes to do so, and the complainant is aware of their right to give evidence in another place.
define complainant
a person who makes a formal legal claim that another person has committed a criminal offence against them
Purpose of alternative arrangements?
The purpose of alternative arrangements is to try to reduce the trauma, distress and intimidation that a witness may feel when giving evidence.
in what cases is the purpose of alternative arrangements exemplified?
This is particularly so in cases involving charges for sexual offences and family violence, where the trauma and injuries suffered may be significant, and witnesses are at greater risk of suffering secondary trauma because of giving evidence about what happened.
what does the Victims’ Charter recognises in relation to the right to be informed about the proceedings?
The Victims’ Charter recognises that people adversely affected by crime should get certain information about the proceeding and about the criminal justice system.
what does the Victims’ Charter require in relation to the right to be informed about the proceedings?
The Victims’ Charter requires investigatory agencies, prosecuting
agencies and victims’ services agencies (which includes police officers, the DPP and the Victims of Crime Commissioner) to provide clear, timely and consistent information about support services, possible compensation entitlements and the legal assistance available to persons adversely affected by crime.
what does the Victims’ Charter require in relation to the right to be informed about the proceedings additionally?
In addition, the Victims’ Charter requires an investigatory agency (a body which conducts a criminal investigation, such as Victoria Police) to inform a victim, at reasonable intervals, about the progress of an investigation into a criminal offence.
when does information for victims not given?
The information does not need to be given if it may put the investigation at risk, or if the victim chooses not to receive that information.
Once a prosecution has commenced, what information must the Victims’ Charter requires the prosecution to give a victim?
- details of the offences charged against the person
- if no offence is charged, the reason why
- how the victim can find out the date, time and place of the hearing of the charges
- the outcome of the criminal proceeding, including any sentence imposed
- details of any appeal
what else must the victim be told?
The victim must also be told that they are entitled to attend any court hearings.
what does the right to be informed about the proceedings recognise?
These requirements recognise that victims may wish to be kept informed about a criminal case that has affected them. They may want to know what offences the accused has been charged with, the verdict, and the sanction imposed, as they may want to see justice done.
what must victims apply for if victim of act of violence?
A person who is a victim of a criminal act of violence may apply to be included on the Victims Register.
define Victims Register
a register (i.e. database)
maintained by the state of Victoria set up to provide the victims of violent crimes with relevant information about adult prisoners while they are in prison le.g. the prisoner’s earliest possible release date)
examples of criminal acts of violence
- Rape and other sexual offences
- Aggravated burglary
- Kidnapping
- Stalking
- Child stealing
- Offences involving assault or injury punishable by imprisonment
- Culpable driving causing death
- Dangerous driving causing death or serious injury
- Failing to stop after a motor vehicle accident causing death or serious injury
what happens once victim is on the Victims Register?
They may receive certain information about an offender who has been imprisoned, including notification of the release of the prisoner on parole at least 14 days before the release.
define parole
the supervised and conditional release of a prisoner after the minimum period of imprisonment has been served
what other rights are related to the right to be informed of the likely release date of the offender?
Other rights are also available to a victim on the Victims Register, including the right to know the length of the sentence, the right to be told if the offender escapes from prison, and the right to make a submission if the imprisoned offender may be released on parole.
define justice
‘maintenance of what is just or right by the exercise of authority of power; assignment of deserved reward or punishment; giving of due desserts’.
is justice always the same?
However, what is ‘just’ or ‘right’ may depend on the perspective, views and experiences of the people involved, such as the accused, victims, the judge and the community.
what are the principles of justice?
- fairness
- equality
- access
what are the three principles of justice use to determine?
The three principles can be used to determine whether the criminal justice system is achieving, or upholding, justice.
define fairness
fairness means all people can participate in the justice system and its processes should be impartial and open
what does the high court describe fairness as?
The High Court has described a fair trial as being a ‘central pillar’ of our criminal justice system.
how is the principle of fairness protected?
It is a fundamental right that is now recognised by statute law (particularly the Human Rights Charter), common law, and in the International Covenant on Civil and Political Rights (1966), an international treaty to which Australia is a signatory.
what does fairness ensure?
- innocent people are not found guilty of a crime that they did not commit
- public confidence is maintained in our criminal justice system through features such as open and public hearings
what are the features of fairness?
impartial processes, open processes, and participation
what is an impartial process require?
that our courts and personnel, including judges, magistrates and jury members, are independent and impartial.
what is an impartial process?
This means that people should not show bias towards or against either party, and the case must be decided based on facts and law, not on prejudices.
what does impartial processes extend to?
The requirement for impartiality extends to the need to ensure there is no apprehended bias.
what is apprehended bias?
This is where a fair-minded person, with knowledge of the key objective facts, might reasonably apprehend (believe) that the judge, magistrate or jury member might not be impartial and unprejudiced when deciding the case.
define bias
a prejudice or lack of objectivity in relation to one person or group
define apprehended bias
a situation in which a fair-minded lay observer might reasonably
believe that the person hearing or deciding a case (e.g. a judge or magistrate) might not bring an impartial mind to the case
what happens if their is apprehended bias?
If there is apprehended bias, then the judge or magistrate might need to remove themselves from being involved in the case, or a jury member might need to be discharged (released).
what is an example of apprehended bias?
For example, a party may allege that a judge might be biased because they are close friends with one of the witnesses.
how are impartial processes shown outside the courtroom?
Impartiality also extends beyond the courtroom. For example, the police should not act with bias,
nor should court personnel when helping an accused person.
how do open processes help achieve fairness?
This is because it helps ensure the institutions and people who administer justice can be scrutinised by the public and held accountable for their actions, decisions and practices.
who must have open processes?
This includes the police, the courts and government departments and bodies (such as Corrections Victoria, which manages the prison system).
examples of open processes?
- requiring hearings to be conducted in public and having court judgments (decisions) made available to the public ensure that court processes and decisions are fair and accurately reported.
- Allowing the community, media and victims to attend court hearings also enables people to be informed about the operations of the courts and helps ensure that justice can be ‘seen to be done’
are all cases achieving an open process?
However, in some circumstances, courts may need to be closed to the public or media, or details of a case may need to be unavailable to the public. For example, the name of a child victim may be redacted or not disclosed to protect the child; or a courtroom may need to be closed to protect a witness. These are seen to be reasonable restrictions on the requirement for there to be
‘open processes’.
who is participation primarily related to?
the accused, but can extend to victims
what are the key characteristics of participation for the accused?
- opportunity to know the case put against them
- opportunity to prepare a defence
- opportunity to examine witnesses
- use of a lawyer
- use of an interpreter
- tried without unreasonable delay
define Victoria Legal Aid (VLA)
a government agency that provides free legal advice to all members of the community and low-cost or no-cost legal representation to some people who cannot afford a lawyer
define victim impact statement
a statement filed with the court by a victim that is considered by the court when sentencing. It contains particulars of any injury, loss or damage suffered by the victim as a result of the offence
define plea negotiations
(in criminal cases)
pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid also known as charge negotiations)
describe the opportunity to know the case put against them in participation?
the parties, more particularly the accused, should have
the opportunity to know the facts of the case and the case that is put against them. The prosecution must disclose all relevant evidence to the accused (even evidence that may be detrimental to the prosecution’s case)
describe the opportunity to prepare a defence in participation?
the accused must have adequate time and facilities to prepare a defence, and they should have the opportunity to present that case in court. This includes the opportunity to call their own witnesses in support of their case, if they wish to do so
describe the opportunity to examine witnesses in participation?
as an extension of the above, both parties should have the opportunity to examine witnesses called by the other side (there are some exceptions in relation to vulnerable witnesses)
describe the use of a lawyer in participation?
the accused should be able to defend themselves personally or through legal assistance chosen by them. If they are eligible, they should be entitled to legal aid through Victoria Legal Aid (VLA). The High Court has held that a lack of legal representation for an accused charged with committing a serious indictable offence could result in the accused receiving an unfair trial
describe the use of an interpreter in participation?
an accused person should have access to the free assistance of an interpreter if they cannot understand or speak English. This allows them to understand what is happening in the case and helps them to communicate with the court
describe tried without unreasonable delay in participation?
a fair trial is one where there is no unreasonable delay
what are the key characteristics of participation for the victims?
- allowing some victims to give evidence using alternative arrangements
- the use of victim impact statements
- providing an opportunity to give their views
describe allowing some victims to give evidence using alternative arrangements in participation?
alternative arrangements for witnesses in certain criminal cases allows them to give evidence in a way that aims to avoid further trauma or stress
describe the use of victim impact statements in participation?
victims are able to explain the impact that a crime has had on them by giving a victim impact statement as part of the sentencing process
describe providing an opportunity to give their views in participation for victims?
victims may have the opportunity to give their views to the prosecution about certain matters, such as their views on plea negotiations. They may also be able to obtain legal aid through bodies such as VLA to assist them in doing so
what are the other features of fairness?
- the right not to testify against oneself
- the presumption of innocence
describe the right not to testify against oneself in fairness
the accused has a right to silence. This means the accused has a right to decide whether to give evidence or say anything in the trial. The right not to testify (give evidence) against oneself or confess guilt is an important feature of fairness
describe the presumption of innocence in fairness
the accused is presumed to be innocent until proven guilty, and the prosecution has the burden of proving the case against the accused beyond reasonable doubt. Laws or processes that infringe on this important principle may be perceived as ‘unfair’, because it means that the presumption is lost, and a potentially innocent person is viewed as being ‘guilty.
is fairness limited to the trial?
Fairness is not limited to the trial itself. It extends to all the processes within the criminal justice
system
does fairness mean all people have same hearing and sentence?
Fairness does not mean that all people who have been accused of a similar criminal offence will have the same type of hearing or, if found guilty, receive the same sentence. Each case and circumstance is different, and these differences will be reflected in the outcome.
define equality
‘all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage’
features of equality?
Same treatment, Different treatment
The Human Rights Charter protects equality by stating that every person…?
- is equal before the law
- is entitled to equal protection of the law without discrimination
- has the right to equal and effective protection against discrimination
define community legal centre (CLC)
an independent community organisation that provides free legal services to people who are unable to pay for those services
what is same treatment?
People must be treated in the same way. This is often referred to as ‘formal equality’; that all people are treated the same and given the same levels of support, regardless of their personal differences or characteristics (such as race, religion, gender identity or age).
what does same treatment adopt and mean?
This idea of equality adopts a ‘one size fits all approach’. Being treated the same means the same processes will apply in every case, for every party. It will also mean there are no changes to the way cases are run, and that everyone is given the same opportunities and the same level of support or assistance.
example of same treatment?
that anyone who contacted a community legal centre (CLC) for advice or assistance would be entitled to the same information, advice or assistance, regardless of whether they could afford to pay for services, or whether they were in a more vulnerable position, and had a greater need for support, than someone else
what is different treatment?
if treating people in the same way could in fact cause disparity (a gap or difference between the way the two parties are treated) or disadvantage, then measures should be put in place to allow people to participate in the justice system without disparity or disadvantage
what does does different treatment adopt and why is it needed?
This is often called ‘substantive equality’; that is, that sometimes the
‘one size fits all approach’ does not work, and special measures are needed so that people do not suffer disadvantage simply because of who they are.
example of different treatment?
- consider an accused person who does not speak any English.
- If only formal equality was applied, then the court hearings for the accused person would be conducted in the same way as for every other person, meaning no interpreter or assistance would be provided, no information would be given in the accused’s own language and no one would slow down their speaking.
- While this would achieve ‘formal equality’, the accused person would be at a disadvantage because they cannot speak English.
- To avoid this disadvantage, special measures may need to be put in place. For example, an interpreter should be made available, and the accused should have access to information in their own language. People may also be required to speak more slowly or use less legal jargon.
define oath
a solemn declaration by which a person swears the truth on a religious or spiritual belief.
Without the religious or spiritual belief, it is called an affirmation
measures for equality - different treatment?
- interpreters
- providing information in a different way
- changes to court processes
- different form of oath or affirmation
- changes for the purposes of cultural differences
- breaks and adjournments
describe interpreters in different treatment?
interpreters may be required for people who are not able to understand or communicate in English
describe providing information in a different way in different treatment?
information may need to be communicated in a different way. For example, people with no or little English may need to get information in their own language; and in some situations there may be a need to speak more slowly and in an ordinary tone, without the use of legal jargon (particularly for people who are from different cultural and linguistic backgrounds, or for children and young people)
describe changes to court processes in different treatment?
it may be necessary to change court processes or even change the courtroom. For example, a young accused person may feel overwhelmed by the formality of certain courtrooms, so a smaller, less formal courtroom may be required. As another example, alternative arrangements are put in place in some cases to ensure more vulnerable witnesses do not suffer additional trauma from having to give evidence
describe different form of oath or affirmation in different treatment?
people are able to use different religious texts when taking an oath or, if they do not follow a religion, they can choose to declare and affirm to tell the truth without referring to religious beliefs or a god
describe changes for the purposes of cultural differences in different treatment?
different processes or procedures may be needed to ensure there is no disadvantage because someone is of a particular culture. For example, some First Nations peoples do not make direct eye contact, which may be assumed by some as being dishonest or evasive. However, in some First Nations communities, it may be seen to be a sign of disrespect or aggression to force direct eye contact. Therefore, in the justice system, measures are needed to ensure that the wrong assumptions are not made about this and other cultural differences
describe breaks and adjournments in different treatment?
some people may need flexibility during a trial or hearing. For example, a person with a disability may need more frequent breaks (as may a juror with a disability). Children and young people may also need more regular breaks as they may struggle to stay focused or may find the situation more stressful.
what should be looked for in equality?
- when formal equality (same treatment) alone will achieve equality
- whether the same treatment will create disparity or disadvantage
- if the same treatment will cause disparity or disadvantage, what special measures may need to be put in place to avoid that disparity or disadvantage.
what is access?
access means that ‘all people should be able to engage with the justice system and its processes on an informed basis’.
what are the features of access?
Engagement, Informed basis
what is engagement?
To engage with the justice system, people need the means and ability to be able to use and participate in the system.
features of engagement?
- physical access
- technological access
- financial access
- no delays
what is physical access?
people should be able to physically access the courts, services or legal representation. This may be more difficult for people in rural or remote areas, or for people who have disabilities that mean they are not able to physically attend
what is technological access?
if virtual or online methods are used to provide services or even conduct court hearings, then people should be able to engage with those methods. This may be more difficult for people with special needs, those who are not able to use technology, or for people who do not have computer access (such as people in jail)
what is financial access?
people should not be prevented from defending their case and using the criminal justice system because they do not have the financial means to do so. This can be particularly important for accused people who may need money to pay for a lawyer to defend them in court
what is no delays?
people should be able to have their case resolved without unreasonable delays. Delays have an impact on access as it limits the ability of people to engage with the justice system.
what is informed basis?
- understand their legal rights and the processes involved in their case
- obtain, or be provided with, enough information to make reasoned and sensible decisions (e.g. a decision about whether to plead guilty or not guilty).
who can informed basis be harder for?
This can be more difficult for people who do not understand English, First Nations peoples, young
children, people with disabilities, and people from different cultural and linguistic backgrounds.
measures that help with informed basis?
- education
- information
- legal and support services
- legal representation
education in informed basis?
people who have completed higher levels of education or have particular knowledge of the criminal justice system or their rights may help them become informed. Lower literacy levels, for example, can impact on a person’s ability to understand legal processes
information in informed basis?
people should have access to information about court processes and their rights. This information may be available from the courts, and legal bodies and agencies such as VLA. Information may be provided in person or online. People should also have information about where to go to seek help
information in informed basis?
having free access to legal and support services can help people be more informed about their rights and legal processes. These may include specific services for accused people or victims, or community legal services that provide information about rights and legal principles
legal representation in informed basis?
having legal representation is one of the most effective ways that a person, particularly an accused person, can be informed about and understand their rights and legal processes. This means a person may have greater access to justice if they can financially afford legal representation.
what does access mean entirely?
Access to the criminal justice system does not necessarily mean that the people seeking access will get the outcome they want. However, it does mean they will have the opportunity to make use of the processes and institutions within the criminal justice system, and that these are not beyond their reach.
who has the right to access?
The right to access the criminal justice system not only applies to accused persons, but also to
victims, their families and the general public.
why does the accused need VLA?
The criminal justice system can be difficult to understand without legal assistance. Often an accused has not had experience with the criminal justice system, does not know their rights, and does not understand key concepts such as the burden of proof.
why do victims need VLA?
This also applies to victims, who may already be traumatised from a crime that has occurred, but are required to navigate a system that they may not have had to interact with before.
why doesn’t everyone have lawyers?
While every person is entitled to engage (or arrange the use of) lawyers to help them with their legal case, some may not be able to afford a lawyer.
what happens in the High Court if someone doesn’t have a lawyer?
The High Court has found that if a person is charged with a serious indictable offence and, through no fault of their own, is unrepresented, they should be given the opportunity to seek legal representation.
what is the right to an opportunity to seek legal representation based on?
This is based on the principle that every accused person has the right to receive a fair trial, and that legal representation is necessary for a fair trial of a serious criminal offence.
if an accused doesn’t have a lawyer what can the court do?
A court can adjourn a trial if the accused has no legal representation, cannot afford a lawyer and will not get a fair trial if they are not represented. However, this does not apply to all accused people, and does not apply to victims (who are not a party to a criminal case).
what happens if the accused cannot afford a lawyer?
If an accused cannot afford to engage a lawyer, government-funded institutions such as Victoria Legal Aid (VLA) and Victorian community legal centres (CLCs) may be able to help them. These bodies also have services available for victims of crime.
define VLA
VLA is a government agency that provides free legal information to the community, and legal advice and legal representation for people who cannot afford to pay for a lawyer.
who does VLA prioritise?
It prioritises people who need it the most and cannot get legal assistance any other way.
what is VLA’s vision?
VLAs vision is for a fair, just and inclusive society where people can get help with their legal problems and have a stronger voice in how laws and legal processes affect them.
where does VLA receive funding?
It receives most of its funding from the Commonwealth Government and the Victorian Government.
The objectives of VLA are?
- provide legal aid in the most effective, economic and efficient manner
- manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout Victoria
- provide the community with improved access to justice and legal remedies
- pursue innovative means of providing legal aid to minimise the need for individual legal services in the community
- ensure the coordination of the provision of legal aid and legal assistance information so that it responds to the legal and related needs of the community.
assistance available to the accused by VLA?
- Free legal information
- Free legal advice (including
Help Before Court service) - Duty lawyer services
- Grants of legal assistance (paying for a lawyer)
define duty lawyer
a VLA lawyer who is at court on duty, on a particular day) to help people who come to court for a hearing
describe Free legal information for the accused (VLA)?
VLA’s website has free information for all Victorians about the law, court processes and basic legal principles. Assistance can also be provided in many languages other than English.
what are examples of the free legal information for the accused (VLA)?
- publications and resources, such as booklets and fact sheets
- a public law library that includes books, cases, commentary and journals
- opportunities to speak with a VLA officer, either on the phone or online using their Legal Help Chat function.
who is free information available to with the accused (VLA)?
All accused people
describe free legal advice for the accused (VLA)?
VLA offers legal advice in person, by video conference or over the phone.
Advice can be given about what happens in court, or about the law that applies to the case.
describe Help Before Court service for the accused (VLA)?
VLA’s Help Before Court service is available for people charged with a criminal offence in the Magistrates’ Court (or Children’s Court). If the court date is more than six days away, VLA may be able to arrange for legal advice from a lawyer to help the accused person to prepare, or may arrange for a duty lawyer to give legal advice on the day. Depending on the situation, VLA may also represent the person in court.
who out of the accused is available for free legal advice (VLA)?
Access to legal advice will depend on an accused’s income. Advice is available for people who need it the most.
who out of the accused is available for Help Before Court service (VLA)?
The Help Before Court service is only available for those with criminal charges in the Magistrates’ Court (or Children’s Court), and for those who need it most (which depends on a person’s income and their legal matter). It is not available for indictable offences heard in higher courts, or for committal proceedings.
describe duty lawyer services for the accused(VLA)?
A duty lawyer is a lawyer who is at court Du on duty) on a particular day and who can help people who are at court for a hearing on that day.
what information can duty lawyers give to the accused(VLA)?
Duty lawyers can give information about what happens in court, offer legal advice or represent an accused in court on that day. They may also be able to arrange for an adjournment of the hearing so that a lawyer can run the case.
who has priority in duty lawyers (VLA) with the accused?
The priority of duty lawyers is those people who are in custody and First Nations peoples. They do not need to satisfy any tests to be eligible for a duty lawyer.
who are duty lawyers available to with the accused (VLA)?
Duty lawyers are only available in the Magistrates Court (and the Children’s Court); they are not available for indictable offence trials or for committal proceedings.
who out of the accused are facts sheets available to (VLA)?
Fact sheets with legal information are available to anyone charged with an offence.
who out of the accused is legal advice - duty lawyers available to (VLA)?
Legal advice is only available to accused people who satisfy the income test and are facing a straightforward charge. People in custody are given priority and do not need to satisfy the income test.
who out of the accused is legal representation at a hearing - duty lawyers available to (VLA)?
Legal representation at a hearing is only available to accused people who satisfy the income test, and either face a significant charge such as stalking or threat to kill or belong to a category of people the VLA prioritises (which includes those in custody; those with a disability, acquired brain injury or mental health issue; people experiencing homelessness; people who cannot speak, read or write English well; and First Nations people).
define income test
the test applied by Victoria Legal Aid (VLA) to determine whether a duty lawyer can represent an accused.
The test is satisfied when the accused can show they have limited income le.g. their primary source of income is social welfare provided by government)
describe Grants of legal assistance (paying for a lawyer) (VLA) for th?
VLA may be able to give a grant of legal assistance to people who cannot afford a lawyer. This may include helping the accused resolve matters in dispute, preparing legal documents and representing the accused in court.
who is the lawyer for Grants of legal assistance (paying for a lawyer) for the accused (VLA)?
The person may be given legal assistance by a VLA lawyer, or VLA may arrange a private lawyer to assist (one who is on VLA’s panel of practitioners).
who out of the accused is Grants of legal assistance (paying for a lawyer) available to (VLA)?
- VLA has strict guidelines about who can get a grant of legal assistance so that money is given to accused people who need it the most. All grants are capped. Accused people must meet the means test to be eligible for a grant.
- VLA also considers other tests when determining whether assistance should be made available; for example, it must consider the extent of any benefit or detriment (disadvantage) that a grant might give to the person or the public.
define means test
the test applied by Victoria Legal Aid (VLA) to determine whether an applicant qualifies for legal assistance or representation in court (beyond the services of the duty lawyer on the day). It takes into account the applicant’s income, assets and expenses
how does an accused meet the income test?
An accused meets the income test if they produce a current Centrelink benefit card (to show that they are receiving welfare benefits from the Commonwealth Government) or pensioner concession card to the duty lawyer. If they do not have one of these, they may still meet the income test if they sign a declaration that shows they have limited income (e.g. their primary source of income is from welfare, or their weekly after-tax income is less than a certain amount).
In VLA what courts are duty lawyers available for?
Duty lawyers are not available in the County Court or the Supreme Court. VLA has said its duty lawyer services are stretched, and duty lawyers are often limited in the time they can spend with a client.
what is the means test for Grant of legal assistance (VLA)?
The means test considers the person’s income and other assets (such as houses, cars or savings). For example, if the accused person receives more than $360 per week in income after living expenses are deducted, then they are not eligible under the means test.
what is the difference between the income test and means test (VLA)?
The means test is not the same as the income test. The income test is for accused people who need advice or representation from a duty lawyer on a particular day. The means test is for people who are seeking a grant of legal assistance (including help with preparing for a case, or representation in court).
what happens if VLA denies as accused legal assistance?
If VLA has denied an accused person legal assistance, they can apply to have the decision reviewed by an independent reviewer. A decision made by the independent reviewer can then be appealed to the Supreme Court of Victoria.
what are the other tests that accused must pass for legal representation VLA?
Other than the means test, the accused person must satisfy other tests to be eligible for a grant of legal assistance. The tests depend on the type of legal matter and the seriousness of the offence. For example, depending on the case, VLA may assess the merits of the case, whether it would be in the interests of justice to fund the case, and whether there is any benefit or detriment to the accused or the public in granting legal assistance.
is it an easy process to get legal assistance from VLA?
This means it is not a straightforward process to get a grant of legal assistance, and it often requires more than just showing a person has ‘no money’. In addition, the VLA has indicated that many people who do not qualify for legal assistance from services such as VLA also do not have enough money to pay for a lawyer themselves. These people are sometimes referred to as the ‘missing middle’.
have VLA identified that they cannot give everyone legal assistance?
In its 2021-22 annual report, VLA noted that it continues to have discussions with governments to seek additional funding to meet the long-term challenges due to increased demand for legal assistance.
define appeal
an application to have a higher court review a ruling (decision)
why is the legal aid different for accused and victims in VLA?
The types of legal aid available to victims of crime from VLA are different from that available to accused people, because victims of crime are not parties in a criminal case and therefore will not need to actively participate in the case.
what do victims need help with from VlA?
- navigating the criminal justice system, including understanding their rights, the processes involved, and their options to participate in the criminal justice system. They may also need help with understanding certain processes, such as plea negotiations and appeals
- getting advice or assistance with obtaining protection orders, such as a family violence intervention order (a court order which aims to protect a person, their partner or property from a family member), or a personal safety intervention order (a court order that seeks to protect a person, their children and their property from another person)
- obtaining financial assistance or compensation because of the loss suffered as a result of a crime.
- identifying other supports that may be available to them, particularly social or mental health support.
Source 4 below sets out the types of legal aid available to victims of crime from VLA.
how can compensation or financial assistance be obtained from victims?
- through the Victims of Crime Financial Assistance Scheme. The Scheme (which replaces a tribunal dedicated to victims) provides financial assistance to victims of violent crime (which include family members). The financial assistance is government funded
- in a criminal case compensation and restitution orders can be made by a court. A restitution order requires an offender to return stolen property (such as where the offender was convicted of theft offences). A compensation order is a payment by the offender to the victim for loss or injury
- a victim may instead take civil action and sue an offender, or someone else, for loss that has been inflicted on them
what legal aid is available to victims from VLA?
- Free legal information
- Free legal advice
- Duty lawyer services
- Grants of legal assistance
describe free legal information for the victim (VLA)?
VLA’s website has free information about the law, All victims court processes and basic legal principles. This includes information about going to court as a witness, making applications in relation to family violence, and information about how to obtain financial assistance.
what is Victims Legal Service from VLA in free legal information?
VLA launched its Victims Legal Service. Delivered in partnership between VLA, community legal centres and Aboriginal legal services, this service provides information and advice to victims through its helpline. Assistance can be provided in many languages.
who is free legal information for the victim (VLA) available to?
all victims
describe free legal advice for the victim (VLA)?
The Victims Legal Service provides free legal advice and support to victims of crime about how to make an application for financial assistance CA, or get compensation from the offender.
what is the advice that VLA can give victims?
The advice is limited to assisting with obtaining financial compensation; it cannot be used to seek support as a witness or other processes such as civil processes (e.g. where the victim is suing).
who is legal advice for the victim (VLA) available to?
Victims who are seeking assistance with obtaining financial compensation for loss they have suffered
describe Duty lawyer services for the victim (VLA)?
VLA provides duty lawyers in the Magistrates’ Court for victims of crime who are seeking a personal safety intervention order.
The duty lawyer can provide advice or legal information to help the victim understand the matter they are facing, how to represent themselves, and where to access services. In some situations, the lawyer may represent the victim in court on the day.
who is duty lawyer services for the victim (VLA) available to?
VLA’s resources are limited, so it provides duty lawyer services to victims who are most in need of legal help. While no income test applies, children and adults who have a disability are prioritised.
describe grants of legal
assistance for the victim (VLA)?
VLA can make a grant of legal assistance to victims of crime in limited matters, such as to a person who is applying for a family violence protection order, or a personal safety intervention order. The person may be given legal assistance by a VLA lawyer, or VLA may arrange a private lawyer to assist lone who is on VLAs panel of practitioners).
describe what grants of legal
assistance for the victim (VLA) can be used for?
Grants of legal assistance cannot generally be provided to allow a victim of crime to sue an accused person for compensation or to represent them in relation to the actual criminal case in which the accused is charged.
who is grants of legal
assistance for the victim (VLA) available to?
VLA has strict guidelines as to when it will provide a grant to a victim of crime. Generally, the state reasonableness test will need to be satisfied, which requires VLA to consider various factors, such as the extent of any benefit or detriment (disadvantage) that a grant might give to the person or the public.
strengths of VLA?
- Free legal information is available on VLA’s website (through its online chat and resources) to everyone, including victims, regardless of their income or means. This includes information about court processes, an accused person’s or victim’s rights, and basic legal principles.
- Free legal advice and assistance, such as through duty lawyers and grants of legal assistance, is given to eligible people who are most in need, including people in custody and First Nations peoples. The aim is to prioritise the most vulnerable in our society.
- Some legal information is provided in more than 30 languages. VLAs website also states that its staff speak many languages and can organise a free interpreter.
- VLA uses online tools to provide legal information and legal advice, including its online chat, telephone services and website. This means that information and advice is also available to people who live in regional, rural and remote areas, not just those who live in or near the city.
weaknesses of VLA?
- The free legal information available on VLA’s website may not be enough for certain people, particularly those who are charged with an indictable offence and cannot otherwise get access to legal services in other ways.
- VLA does not have unlimited resources, so it must apply criteria to ensure that its funding is used appropriately and targeted to those who need it the most. It is possible that some people who cannot afford a lawyer may also not be eligible for legal assistance and will therefore be left without representation and unable to properly defend themselves. Victims of crime also do not get assistance such as legal representation for when they give evidence.
- The ability of VLA to meet demand for services depends, among other things, on continued funding. An increase in demand and/or constraints on VLA’s budget could mean that fewer people are eligible for legal aid.
- The extent to which VLA is able to help people may depend on whether accused people and victims of crime are aware of its existence and/or have the technological means to access free information.
define CLC
Community legal centres (CLCs) are one type of legal assistance service provider in Australia.
As independent organisations they provide free legal services, including advice, information and ongoing assistance and representation, to people who may not be able to access legal services in any other way.
types of CLCs?
- generalist CLCs
- specialist CLCs
define generalist CLC
a community legal centre that provides a broad range of legal services to people in a particular geographical area of Victoria
define specialist CLC
a community legal centre that focuses on a particular group of people or area of law (e.g. young people, asylum seekers, domestic violence and animal protection)
how many CLCs are there?
There are approximately 46 CLCs in Victoria.
what is the Federation of Community Legal Services?
The Federation of Community Legal Services Inc. is the peak body for CLCs and Aboriginal Legal Services, and enables a strong collective voice to ensure access to justice for people who are facing disadvantage.
how do CLC’s and VLA collaborate?
CLCs have a collaborative relationship with Victoria Legal Aid (VLA) in that sometimes CLCs assist people in getting help from VLA, and sometimes VLA refers people to a CLC if VLA cannot help them.
what is the role of CLC’s?
Community legal centres provide accused people with information, legal advice and ongoing assistance in a case. They also provide legal education to the community so that there is a greater awareness of rights and understanding of legal information, and they advocate for changes to the justice system to address what they see as unfair laws, policies or practices.
how are CLC’s funded?
VLA funds CLCs in Victoria through Commonwealth and state funding. Some CLCs receive grants from government or private sources. Many who assist at CLCs are volunteers.
are CLC’s funded well?
CLC funding is an issue in Australia, partly because of the significant demand for legal assistance.
do CLC’s prioritise certain people?
Like VLA, CLCs prioritise people who need legal assistance the most because of their personal circumstances. These include people who have a disability or mental health issues, refugees, people in domestic violence situations, the homeless, young people, and those who cannot afford a lawyer.
CLCs also help victims of crime and their families and some offer interpreter services.
types of legal aid for accused (CLC)?
- Basic legal information
- Legal advice and assistance
- Ongoing casework
describe basic legal information for accused (CLC)?
CLCs provide basic legal information on a day-to-day basis. Some of the information is online. For example, Barwon Community Legal Centre has information online about criminal offences and where to get more assistance. CLCs also provide people with basic legal education.
describe legal advice and assistance for accused (CLC)?
CLCs provide legal advice and preliminary assistance, such as help with writing short letters and completing forms. They can also help people apply for a grant of legal assistance from VLA.
Some CLCs have a legal advice service that allows people to visit the CLC with or without an appointment.
describe ongoing casework for accused (CLC)?
Some CLCs will provide casework or assistance for an accused. This involves ongoing legal representation and assistance. Each CLC has its own eligibility requirements. Many CLCs do not offer assistance for indictable offences.
what is the criteria for ingoing coursework for accused in CLCs?
Each CLC has its own eligibility criteria for assisting an accused, and for how much assistance they can provide.
CLCs generally consider the following factors:
* the type of legal matter the person needs help with
* whether other assistance is available (such as through VLA)
* whether the person has a good chance of success
* whether the CLC is available to assist.
Many CLCs only help with minor criminal matters.
define discrimination
unfavourable treatment of a person based on a certain attribute (e.g. age, gender, disability, ethnicity, religion or gender identity).
Discrimination can be direct or indirect.
Some specialist CLCs have expertise in helping certain victims of crime. For example:
- the Women’s Legal Service Victoria provides women experiencing family violence with free legal advice and representation with their family violence or victims of crime matters
- the Law and Advocacy Centre for Women Ltd can help victims of crime in making applications for financial assistance, including preparing the paperwork
- YouthLaw provides assistance to young people under the age of 25 years in relation to various issues, including intervention orders
- various generalist CLCs can assist with some victims of crime matters, such as making applications for financial assistance
CLC’s for Indigenous victims of crime?
In addition, Djirra, an Aboriginal Community Controlled Organisation, provides culturally safe and accessible services to First Nations people through its Aboriginal Family Violence Legal Service program.
They assist those who are experiencing family violence in relation to issues such as intervention orders, and seeking compensation for harm suffered as a victim.
types of legal aid for victims (CLC)?
- Basic legal information
- Legal advice and assistance
- Duty lawyer services
- Ongoing casework
describe basic legal information for victims (CLC)?
Many CLCs provide basic legal information to victims of crime. For example, Djirra has fact sheets on family violence available to download online. The Women’s Legal Services Victoria also has information, such as detailed information about applying for financial assistance.
describe basic legal advice and assistance for victims (CLC)?
CLCs provide legal advice and preliminary assistance, such as help with making applications or filling in forms. Victims of crime can also visit CLCs to obtain free legal advice, or can call to get legal advice and assistance. YouthLaw provides legal advice over the phone, and has a helpline for young people who are victims of crime.
describe duty lawyer services for victims (CLC)?
Some CLCs provide duty lawyer services to victims of crime who are seeking a family violence protection order or personal safety protection order.
describe ongoing casework for victims (CLC)?
Some CLCs will provide ongoing casework or assistance for a victim of crime. This will involve ongoing legal representation and assistance. Each CLC has its own eligibility requirements. Much of the casework will be in relation to an application for financial assistance, or an application for a family violence intervention order or personal intervention order.
strengths of CLC’s?
- Free legal information is available on many CLC websites.
- Some legal information is provided in different languages, and some CLCs offer free interpreter services. This helps people who do not communicate in or understand English to get legal information or advice in their own language.
- CLCs provide information to help educate the community about processes and their rights. The Law Handbook can be accessed at any time, and programs are often delivered by CLCs to help educate people about the justice system.
weaknesses of CLC’s?
- CLCs have noted that there is insufficient funding to be able to help everyone who needs legal assistance, and that there is a service gap, which means some people are not receiving help.
- Many CLCs do not assist people charged with an indictable offence, and many are limited to assisting people charged with a summary offence or victims of crime. Victims of crime may also be unable to get assistance for all the issues they face.
- CLCs may not have enough staff or volunteers to meet the needs of accused people and victims of crime. This may result in people being turned away from drop-in clinics, or in less time being given to people with complex legal issues.
where are criminal cases heard and determined?
Criminal cases are heard and determined only in the courts (unlike some civil disputes, which can be resolved by bodies other than the courts). That is, only the courts have the power to decide if an accused is guilty and sentence an offender if they are guilty of an offence.
what is another way criminal cases can be resolved?
There are, however, ways in which a criminal case can be determined or resolved without the need to go to trial (or hearing in the Magistrates’ Court). One of these is through plea negotiations.
define civil dispute
a disagreement
between two or more individuals (or groups) in which one of the individuals (or groups) makes a legal claim against the other
define plea negotiations
(in criminal cases) pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid also known as charge negotiations)
who do plea negotiations take place between?
Plea negotiations take place between the prosecutor and the accused about the charges against the accused.
what do plea negotiations result in?
They can result in an agreement being reached between the two parties about the accused pleading guilty in exchange for some concession or agreement by the prosecutor (e.g. to withdraw some charges).
what offences can have plea negotiations?
Plea negotiations can take place in relation to summary and indictable offences.
what are other terms for plea negotiations?
Other terms for plea negotiations are ‘plea bargaining’ or ‘charge negotiations’ (although some people discourage the use of the term ‘plea bargaining’, as it may suggest something ‘sinister’ or negative about the process).
The agreement reached between the prosecutor and the accused following plea negotiations
may be?
- the accused pleads guilty to fewer charges, with the remaining charges not proceeding
- the accused pleads guilty to a charge, but an agreement is reached about the facts on which the plea is based
- the accused pleads guilty to a lesser charge (a charge for an alternative offence with a lower maximum penalty)
when do plea negotiations begin?
Plea negotiations usually begin when the accused (or their lawyer) indicates to the prosecution that they are willing to discuss the charges, though either party can indicate to the other party that they are prepared to consider negotiations.
how are plea negotiations conducted?
Negotiations are usually conducted on a ‘without prejudice’ basis. This means that any offers made by either party during the negotiations cannot be used against them if the negotiations are not successful. Therefore the accused may be free to negotiate with the prosecution without fear that whatever they say during the negotiations will be used against them at trial or hearing if the negotiations fail.
where can plea negotiations take place?
Negotiations can take place by phone, email/letter or face to face (though negotiations usually occur in writing).
how long do plea negotiations take?
Negotiations can often be extensive and take place over a long period before an agreement is reached.
when do plea negotiations usually occur?
Generally, negotiations occur where there are multiple charges; this is because it provides an opportunity for the prosecution to substitute a more serious charge for a less serious charge.
do plea negotiations determine sentence?
Plea negotiations do not determine the sentence, because the prosecutor has no power to sentence an offender. Only the courts have that power.
what happens after plea negotiations is reached?
Following plea negotiations, the accused will still need to be sentenced by a court. The court will be informed of the charges the accused has pleaded guilty to, and will decide what sanction to impose.
what stage can plea negotiations occur?
Plea negotiations can happen at any stage, and even before the charges have been laid.
who should be consulted before plea negotiations?
Victims should be consulted before the plea negotiations, and the victims’ views should be taken into account when deciding to enter into an agreement with the accused. However, the victims’ views are not a deciding factor for the prosecutor to enter into such an agreement.
what are the purposes of plea negotiations?
- to ensure certainty of the outcome of a criminal case.
- to save on costs, time and resources.
- to achieve a prompt resolution to a criminal case without the stress, trauma and inconvenience of a criminal trial (or hearing).
describe the purpose of plea negotiations to ensure certainty of the outcome of a criminal case?
In a plea negotiation, the accused may plead guilty to the charges, thus ensuring certainty of outcome (i.e. a plea of guilt) and removing the risk of an acquittal. However, the charges must adequately reflect the accused’s wrongdoing. A charge must still adequately reflect the conduct of the offender so that the community and the victims do not think that the plea negotiations have resulted in the accused being ‘let off”.
describe the purpose of plea negotiations to save on costs, time and resources?
If a plea negotiation results in an early guilty plea, it avoids the need for a trial or hearing and therefore saves the court and the prosecution’s resources, as well as avoids the costs and time associated with a trial (or hearing)
describe the purpose of plea negotiations to achieve a prompt resolution to a criminal case without the stress, trauma and inconvenience of a criminal trial (or hearing)?
An early resolution relieves victims and witnesses of the burden and trauma of having to give evidence, and may help victims move on from what has happened.
what are the advantages of a plea negotiations for the accused?
There are also some advantages for an accused, who may receive a reduced sentence because of a plea of guilty before trial (depending on the sentencing factors and the time the guilty plea was entered).
define guilty plea
when an offender formally admits. guilt, which is then considered by the court when sentencing
when can plea negotiations only occur?
Plea negotiations may only occur if it is in the public interest.
what are the appropriate factors for a plea negotiation?
- whether the accused is willing to cooperate in the investigation or prosecution of co-offenders, or offenders of other crimes
- the strength of the evidence, including the strength of the prosecution’s case and of any defences
- whether the accused is ready and willing to plead guilty
- whether the accused is represented. The prosecution may be less willing to negotiate with a self-represented party (accused person) who may not understand the processes
- whether the witnesses are reluctant or unable to give evidence, which would jeopardise the prosecution’s ability to achieve a guilty verdict
- the possible adverse (negative) consequences of a full trial, including the stress and inconvenience on victims and witnesses giving evidence
- the time and expense involved in a trial, particularly the costs associated with running the case
- the views of the victim (the prosecutor should consult the victims and take their views into account when considering plea negotiations).
define self-represented party
a person before a court or tribunal who has not engaged (and is not represented by) a lawyer or other professional
what else will the accused and their legal representation need to consider when doing plea negotitations?
In addition, the accused and their legal representatives will need to consider whether it is in the best interests of the accused to negotiate with the prosecution. For example, the impacts of a guilty plea may be significant for an accused person (e.g. it may impact on future employment). Alternatively, the costs and delays of proceeding to trial may impact on the client significantly, making a negotiation appropriate.
strengths of plea negotiations?
- Negotiations help with the prompt determination of criminal cases. This is because they avoid a full hearing or trial, and the matter can proceed to sentencing. It is possible that our criminal justice system would not be able to cope without plea negotiations.
- Victims, witnesses and their families, and the accused’s family are saved the trauma, inconvenience and distress of the trial process. Sometimes the trial process makes victims and witnesses relive the crime and hear evidence that may be distressing.
- The prosecutor will consult with victims and may take their views into consideration when deciding whether to negotiate with an accused.
- Plea negotiations provide substantial benefits to the community by saving the cost of a full trial or hearing. In particular, they save the resources of the prosecution and the court.
- Plea negotiations help to make sure there is certainty of outcome for the parties. Going to trial or other hearing risks the possibility of an acquittal. Therefore, a plea negotiation can help achieve a guilty plea for an offence that reflects the crime.
weaknesses of plea negotiations?
- Negotiations do not need to be disclosed and can be held privately. This lack of transparency may make some people question the agreement or the reason why the prosecution decided to negotiate with the accused.
- The negotiation process may be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt, which is a fundamental principle of our justice system and upholds the presumption of innocence (some people may argue in turn that an innocent person would not enter into negotiations).
- Victims do not have a ‘final say’ on whether a prosecutor negotiates with the accused (i.e. their views are not determinative on whether there will be a plea negotiation).
- A self-represented party (accused person) may feel pressured into accepting a deal even if the evidence is not strong (though strong safeguards are in place when pleas are negotiated).
- There may be a failure of one or both parties to engage early on in a case to try to resolve the charges. This can then result in costs and resources being taken up by a case that could have resolved much earlier.
how are victorian courts arranged?
Victorian courts, like courts in other Australian states, are arranged in a hierarchy. They are ranked based on the severity and complexity of the cases they can hear. The Magistrates’ Court is at the bottom of the hierarchy and the Supreme Court of Victoria (divided into the Trial Division and the Court of Appeal) is the highest state court. It deals with the most serious (indictable) offences.
what does each court have?
Each court has its own jurisdiction (powers) to hear criminal cases.
what are the types of jurisdiction?
- original jurisdiction
- appellate jurisdiction
what is original jurisdiction?
the power of a court to hear a case for the first time
what is appellate jurisdiction?
the power of a court to hear a case in which a decision is being reviewed or challenged on a particular ground (i.e. being appealed to a higher court).
what cases do the courts hear?
The Magistrates’ Court hears summary offences. The County Court and the Supreme Court hear indictable offences, with the Supreme Court generally hearing the most serious indictable offences (such as murder, manslaughter or attempted murder).
The High Court is a federal court. The High Court hears appeals from the state and territory Courts
of Appeal. The High Court needs to give leave (consent) to a party who wants to appeal.
define jurisdiction
the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases
what is the Victorian hierarchy of courts?
- High Court of Australia (Federal)
- Supreme Court of Victoria (Court of Appeal)
- Supreme Court of Victoria
(Trial Division) - County Court of Victoria
- Magistrates Court of Victoria (and Coroners Court and Children’s Court)
what are the two main reasons for the court hierarchy?
specialisation and appeals
what is specialisation?
Within the hierarchy, the courts have been able to develop their own areas of expertise or specialisation in relation to criminal cases.
specialisation of the Supreme Court (Court of Appeal)?
specialises in determining criminal appeals in indictable offences, and has expertise in sentencing principles
specialisation of the Supreme Court (Trial Division)?
hears the most serious indictable offences (such as murder and manslaughter) and has developed its own specialisation in those types of crime and the elements of each crime, as well as developed expertise in trial processes such as giving evidence
specialisation of the County Court?
has expertise in hearing particular types of indictable offences (such as cases involving drug offences, sexual offences and theft)
specialisation of the Magistrates’ Court?
familiar with cases involving summary offences that need to be dealt with quickly and efficiently (such as drink-driving and traffic offences), as well as committal proceedings. The Magistrates’ Court also has more familiarity with and experience in dealing with self-represented accused people, because the number of people charged with a summary offence who choose to represent themselves is high
specialisation of the Children’s Court?
The Children’s Court specialises in cases where young people have been charged with a crime.
specialisation of the Coroners Court?
The Coroners Court specialises in investigating deaths and fires involving suspicious circumstances or where the cause of death is unknown.
define appellant
a person who appeals against a decision (i.e. a person who applies to have the ruling of a lower court reviewed or reversed by a higher court)
define respondent
the party against whom an appeal is made
what is an appeal?
If there are grounds for appeal, a party who is dissatisfied with a decision in a criminal case can take the matter to a higher court to challenge the decision.
who are the parties in an appeal?
A party who appeals is known as the appellant, and the other party is the respondent.
what does the system of appeals provide?
The system of appeals provides fairness and allows for any mistakes made in the original decision to be corrected. If there were no higher courts, there could be no system of appeals, which would create unfairness if a court incorrectly determined a case.
Grounds for appeal in a criminal case can include?
- appealing on a question of law (where some law has not been followed; for example, if the court was allowed to hear inadmissible evidence or the court misinterpreted a statute)
- appealing a conviction (which can only be appealed by the offender)
- appealing because of the severity (or leniency) of a sanction imposed. The prosecution will appeal on leniency, and the offender will appeal because of severity. An offender will usually appeal the sanction on the basis that it was ‘manifestly excessive’.
can the prosecution appeal the verdict?
Prosecutors are not able to appeal an acquittal (i.e. where an accused person has been found not guilty).
is consent for appeals needed?
Generally, the appellant will need the leave (consent) of the court that will hear the appeal. This includes where an offender is appealing a conviction or sentence to the Court of Appeal, or appealing a decision of the Court of Appeal to the High Court.
Original jurisdiction of Magistrates Court?
- All summary offences and indictable offences heard summarily
- Committal proceedings, bail applications and warrant applications
Original jurisdiction of County Court?
- Indictable offences except murder, attempted murder, certain conspiracies, corporate offences
Original jurisdiction of Supreme Court (Trial Division)?
- Most serious indictable offences, including murder, attempted murder, certain conspiracies and corporate offences
Original jurisdiction of Supreme Court (Court of Appeal)?
- No original jurisdiction
Appellate jurisdiction of Magistrates Court?
- No appellate jurisdiction
Appellate jurisdiction of County Court?
- From the Magistrates Court on conviction or sentence
Appellate jurisdiction of Supreme Court (Trial Division)?
- From the Magistrates Court on points of law
Appellate jurisdiction of Supreme Court (Court of Appeal)?
- From the County Court or the Supreme Court (Trial Division)
- From the Magistrates’ Court where the Chief Magistrate decided the case
strengths of court hierarchy?
- A court hierarchy allows courts to specialise in different types of criminal matters, which allows more efficient processes or resources based on the cases they hear (e.g. there are more Magistrates Courts and magistrates to hear the volume of summary offences).
- The existence of a court hierarchy allows appeals to be made by both parties if there is an error in the original decision.
weaknesses of court hierarchy?
- The many different courts can be confusing for people who do not understand the s criminal justice system. This can be
particularly so for people charged with an indictable offence, where the case will involve both the Magistrates’ Court (for a committal proceeding and one of the higher courts (for the trial). - The court hierarchy does not allow for an automatic right to appeal in most instances; offenders need to establish grounds for appeal. This can restrict the ability of accused people to access the appeal hierarchy, particularly self-represented people, who may struggle to formulate grounds for appeal.
what happens if a criminal case is not resolved before the final hearing?
If a criminal case is not resolved before the final hearing, and the accused continues to plead not guilty, their guilt will be determined by a court.
what are the key personal in a criminal case?
The three key personnel in a criminal case are the judge or magistrate (depending on the court), the jury (if there is one) and the parties.
when does judge vs magistrate occur in a trial/hearing for summary offences?
If the accused is charged with a summary offence, the offence will generally be heard in the Magistrates’ Court, and the magistrate will have the primary role in the case. A judge in the higher courts will not be involved in the case.
when does judge vs magistrate occur in a trial/hearing for indictable offences?
If the accused is charged with an indictable offence, the offence will generally be heard in the County Court or the Supreme Court, and the judge will therefore have a primary role in the case. The magistrate will also play some part in a case involving an indictable offence, as they will need to oversee the committal proceeding stage of the case in the Magistrates’ Court, after which the case will be transferred to one of the higher courts.
what is the overall job of the judge and magistrate?
The judge or magistrate is one of the central figures in a criminal case. They oversee the case, act as an ‘umpire’ or ‘referee’ at trial or hearing, and make sure that the court procedures are carried out in accordance with the court’s rules to ensure that the parties are treated fairly. The judge (or magistrate) must act impartially, not favour any side, and must have no connection with the prosecution or the accused.
how are judges and magistrates appointed?
Judges and magistrates in Victoria are appointed, not elected. To be eligible to be appointed a judge, a person must be under the age of 70 years and either have experience as a lawyer, or already be a judge or magistrate. To be eligible to be appointed as a magistrate, a person needs to have completed a law degree and have at least eight years’ experience as a lawyer.
Roles of the judge and magistrate in a criminal case?
- act impartially
- manage the trial or hearing
- decide or oversee the outcome of the case
- sentence an offender
what does judicial impartiality ensure?
Judicial impartiality is a fundamental part of our legal system; it ensures public confidence in our court system and in our justice system generally, also provides fair trial.
what is the level of impartial a judge/magistrate be?
Impartiality also extends to the appearance of impartiality. That is, judges and magistrates must not only be unbiased, but there must be no apprehension or belief that a judge or magistrate may not be unbiased for a particular reason.
what is apprehended bias in relation to judge/magistrate?
Apprehended bias may be seen in a judge or magistrate’s conduct (e.g. a judge has previously done or said something that might suggest they may not be able to act impartially) or in a judge or magistrate’s association (e.g. where a magistrate has a relationship with someone that may have some direct or indirect involvement in the case). In these sorts of cases, a party may argue that a judge or magistrate should remove themselves from having any involvement in the case to avoid any possibility they may not bring an impartial mind.
describe a judges/magistrates role in managing the trial or hearing?
In both summary offence cases in the Magistrates’ Court and indictable offence cases in the County and Supreme Courts, magistrates and judges have the important role of controlling and supervising the case.
how do judges/magistrates manage the trial or hearing?
- make sure that correct court procedure is followed so that both parties have an equal opportunity to present their case. This can involve controlling witnesses, controlling the order of events, and working with legal practitioners as to the conduct of the trial
- ask occasional questions of a witness, recall a witness for a matter to be clarified, or call a new witness with the permission of both sides
- make decisions during the course of the trial, such as whether evidence is to be permitted or excluded. There are rules and laws about how evidence can be given, and what evidence is admissible. During a hearing, the judge or magistrate will often need to make decisions about whether evidence is admissible.
- adjust trial processes if necessary to ensure a party does not suffer disparity or disadvantage (e.g. allowing for breaks, or requiring legal practitioners to sit down).
how do judges/magistrates make decisions one evidence that is admissible?
- evidence must be relevant to the issues in dispute
- in most instances, hearsay evidence is not admissible. Hearsay evidence is when a witness relies on something that someone else said about a situation, but the witness did not actually see what happened. There are some exceptions to the hearsay evidence rule
- evidence of an opinion is generally not admissible. If someone ‘thinks’ that the accused committed the crime, this is not admissible. There are some exceptions to this rule
is the judge/magistrate a party in a criminal case?
The judge (or magistrate) is not an active participant in the trial, and they do not take sides. They do
not try to make up for a barrister who is not doing an adequate job.
define evidence
information, documents and other material used to prove the facts in a legal case
define hearsay evidence
evidence given by a person who did not personally witness the thing that is being stated to the court as true
define disparity
a situation in which two or more things or people are not equal, and the inequality causes unfairness
define barrister
an independent lawyer with specialist skills in dispute resolution and advocacy who is engaged on behalf of a party (usually by the solicitor). In Victoria, the legal profession is divided into two branches: solicitors and barristers
what is the magistrates role to decide or oversee the outcome of the case?
In the Magistrates’ Court, the magistrate will have the role of deciding whether the accused is guilty of committing the crime. This is because there is no jury in summary offences.
The magistrate will be required to listen to the cases presented by both parties and decide whether, based on the facts and the law, the accused is guilty beyond reasonable doubt. If the accused is found guilty, they will be sentenced at a later date. If they are found not guilty, this will be the end of the matter.
what is the judges role to decide or oversee the outcome of the case?
In the County or Supreme Courts, a jury will decide on guilt, not the judge. The judge, however, has the important role of ensuring the jury understands their role, and summing up the case to the jury.
what is the judges role to decide or oversee the outcome of the case more specifically?
- give directions to the jury to ensure a fair trial. This may include telling the jury that the accused is not required to give evidence, and that the jury should not assume the accused must be guilty because they did not give evidence
- once the trial has concluded, summarise the case to the jury.
They must explain the law involved, identify the evidence that will assist the jury and refer to the way the parties have put their cases. They may also have to explain certain legal definitions or principles to the jury so they understand what they mean.
what else might the judge have to decide in a criminal case?
In some cases, the judge may also be required to decide whether to accept a majority verdict (i.e. 11 out of 12 jurors) if all 12 jurors cannot agree beyond reasonable doubt whether the accused is guilty.
what happens if accused is found or pleads guilty?
If an accused is found guilty, or the accused pleads guilty, the case will be set down for a plea hearing and the parties will make submissions about sentencing. Following that hearing, the judge or magistrate will then hand down a sentence.
when does sentencing occur?
This may occur on the same day as the plea hearing, or at a later date.
what to the judge/magistrate follow when sentencing?
The judge or magistrate must follow the sentencing guidelines in the Sentencing Act 1991 (Vic) and comply with legislation about the sentence that should be imposed.
what must the judge/magistrate do in sentencing?
In sentencing the offender, the judge or magistrate will hear from both parties, and can hear from victims about the impact that the offence had on them through victim impact statements.
what does the judge/magistrate listening to victim impact statements and the parties ensure in sentencing?
In doing so, the judge or magistrate ensures procedural fairness by allowing the parties to make appropriate submissions (tell them their views) about the offending and the sentencing considerations. If this does not occur, there may be grounds for appeal.
strengths of the judge/magistrate?
- The judge or magistrate acts as an impartial umpire. They oversee the trial process, but they do not overly interfere in a trial or help either party argue their case. This means no party is advantaged or disadvantaged because the judge or magistrate ‘takes sides’
- Judges and magistrates manage the hearing processes, ensuring that rules of evidence and procedure are followed, and both parties have an opportunity to present their case.
- Judges and magistrates are able to assist self-represented accused people and can adjust the trial process to accommodate more a vulnerable people, such as young people, people with a disability, or people with a mental health condition.
weaknesses of the judge/magistrate?
- Judges and magistrates are human, and there can be risks that they have actual or apprehended bias that impacts their decision-making, such as when they are fatigued.
- Previous research suggests there is a lack of diversity in Australian judges and magistrates.
In Victoria in 2015, four judicial officers were Asian Australians. Women were also underrepresented in higher courts. Some people believe this can impact on the extent to which accused people feel comfortable in the courtroom and/or the extent to which people feel confident in the administration of justice. - Judges and magistrates cannot overly interfere in a case, including those involving a self-represented accused person, even though they are one of the most experienced in the room.
define Magna Carta
a peace treaty made in England in 1215 between the barons (noblemen who pledged their allegiance to the King and the King
what is the basis of the jury system?
The jury system is a trial by peers. It dates back to well before the Magna Carta in England, but the Magna Carta made it a fundamental right. No free man was to be imprisoned but by the lawful judgment of his peers….. and by the law of the land’. The jury system provides the opportunity for community participation in the legal process, and for the law to be applied according to community standards.
what right is the jury for the accused?
An accused person has a right to trial by jury where they have pleaded not guilty to an indictable offence. Therefore, criminal trials in the County Court and the Supreme Court of Victoria are generally jury trials.
is a jury used for sentencing?
A jury is not used for sentencing
what is the juries overall job?
The criminal jury is the decider of the facts. In other words, it decides which facts it believes to be true.
what does the jury comprise of?
A criminal jury comprises 12 jurors. They are chosen randomly from people who are eligible to vote and are on the electoral roll. In some criminal cases, up to 15 people will be empanelled on a jury, particularly for long trials where there may be a risk that not all 12 jurors will be able to remain on the jury for the entire time.
who is allowed to sit on the jury?
Before people are able to sit on a jury, an empanelment process occurs during which it is decided who can sit on a jury panel for a particular case. Some members of society are disqualified (such as some prisoners) or ineligible (such as lawyers and police officers) from being on a jury. Others can be excused if they have a valid reason (e.g. if they are significantly unwell). Potential jurors can also be challenged by the prosecution or the defence, with or without a reason (but they are limited in the number of people they can challenge without good reason).
how must the jurors make their own decision?
The jurors must take the job of being on a jury seriously and make every effort to reach the right
decision. Each juror must make their own decision without undue influence from other jurors.
Roles of the jury?
- be objective
- listen to and remember the evidence
- understand directions and summing up
- deliver a verdict
describe the juries role of being objective?
The jury must be unbiased and bring an open mind to the task, putting aside any prejudices or preconceived ideas. A jury member must have no connection with any of the parties, and must also ensure they decide whether the accused person is guilty or not guilty based on the facts and not on their own biases.
describe the role of the jury to listen to and remember the evidence?
Evidence is sometimes complicated, particularly in cases involving fraud and drugs, and often presented gradually and in the form of questions and answers. The jury members will need to be able to make sense of all this evidence.
Jurors can take notes if it helps them to remember information, but they must make sure they continue to concentrate on what is taking place in the courtroom.
can jurors do their own research?
A jury must not undertake its own investigations of what happened, conduct any research on the case, or make any enquiries about trial matters. They are not allowed to use the internet to search for information. Doing so can lead to penalties and the discharge of the jury.
define jury directions
instructions given by a judge to a jury either during or at the end of a trial
describe juries role to understand directions and summing up?
At the conclusion of a trial the judge will give jury directions; that is, instructions to the jury about issues or points of law, and will sum up the case. The jury is required to listen to the directions and the summing up given by the judge, and can ask for an explanation about any legal point they do not understand.
define unanimous verdict
a decision where all the jury members are in agreement and decide the same way (e.g. they all agree the accused is guilty)
define majority verdict
a decision where all but one of the members of the jury agree
how is a verdict reached by jury?
The jury must take part in the deliberations in the jury room and form an opinion about which party’s story or arguments they believe.
features of deliberations
Deliberations should be undertaken freely and without any pressure from another juror to reach a particular verdict. Deliberations are confidential. Evidence about what happens during deliberations is not generally admissible or allowed to be disclosed, so that jurors can be free to be candid about their views.
how must the jury make their verdict based on?
The jury must make a decision on the facts of the case. In a criminal trial, this means the jury must decide
whether the accused is guilty.
what verdict must a jury reach?
A criminal jury must aim to reach a unanimous verdict. If they are unable to agree on a verdict, the court may accept a majority verdict unless the accused is charged with murder, treason or certain drug offences. The court may also accept a guilty verdict for an alternative offence.
strengths of the jury?
- Jury members are randomly picked, have no connection to the parties, and make a decision based on facts, not on biases or on their own enquiries.
- The jury system allows members of the jury to participate in the criminal justice system processes and ensures that justice is seen to be done.
- Collective decision-making can reduce the possibility of bias, as it means any personal, subconscious biases can be identified during the deliberation process and addressed by the group.
- Juries represent a cross-section of the community. They are made up of a diverse group of people, which can lead to the decision reflecting the views and values of our society.
weaknesses of juries?
- Jury members may have unconscious biases or prejudices, and as they do not give reasons for their decisions, there is no way of knowing whether bias played a role in their decision-making.
- Criminal trials can be complex, including directions given to the jury and the evidence given at trial. It is not clear whether 12 laypersons on a jury will be able to understand the legal principles involved and the evidence that is given to then make a decision based on the facts.
- Jury trials may result in further delays as rules, evidence and processes need to be explained to the jury, and a jury may require some time to deliberate.
- A number of people cannot participate in a jury because they are ineligible, excused or disqualified. Therefore, it is possible that a large section of the community is not represented.
what are the parties in a criminal case?
- the prosecution - the party bringing a criminal case to court
- the accused - a person who has been charged with a criminal offence.
how much controls do the parties have in the case?
Each party has control over the way the case will be run. This is known as ‘party control’. This is different from the trial system in some other countries, where an external investigator seeks out the truth to determine guilt. In controlling their own case, however, the parties must comply with the court’s rules, directions and orders, and any laws that impose duties or obligations on the parties (e.g. an obligation on the accused to ‘show up’ at trial).
what is the overall job of prosecution?
Unlike civil disputes in which the plaintiff has an interest in ‘winning, prosecutors are not supposed to ‘win at all costs’. Rather, their role is to present the entire case to the jury (or magistrate), and let them decide on guilt.
Roles of the prosecution?
- disclose information to the accused
- participate in the trial or hearing
- make submissions about sentencing
describe the role of the prosecutor in disclosing information to the accused?
The accused must be informed about the evidence that will be used against them (including the names and statements of witnesses), and any material that may assist the accused’s case. In recent times, consideration has been given to strengthening these disclosure obligations.
define Victorian Law Reform
Commission (VLRC)
Victoria’s leading independent law reform organisation.
The VLRC reviews, researches and makes recommendations to the state parliament about possible changes to Victoria’s laws
what has the Victorian Law Reform
Commission (VLRC) identified in regards to disclosing information to the accused?
For example, in 2020 the Victorian Law Reform Commission (VLRC) recommended that legislation be amended to make it clear that the Director of Public Prosecutions (DPP) has an ongoing disclosure obligation, even after the case is concluded, and regardless of the outcome of the prosecution.
what does the obligation to disclose information to the accused extend to?
The obligation of disclosure extends to disclosing any relevant convictions of prosecution witnesses. as this may give the opportunity for the accused’s legal representatives to cross-examine the witness on things that may suggest the witness is not credible or being truthful.
define examination-in-chief
the questioning of one’s own witness in court in order to prove one’s own case and disprove the opponent’s case
how does the prosecution participate in the trial or hearing?
- presenting their opening address. This outlines the prosecution’s case so that jury members (in the higher courts) or the magistrate (in the Magistrates’ Court) understand the issues and what the evidence will be. Opening (and closing) addresses are only given in summary hearings if leave is granted
- presenting the evidence that supports the case. This includes calling and examining witnesses (called examination-in-chief). This may include both lay witnesses (such as people who saw what happened) and expert witnesses (people who have a particular specialisation and can give evidence, such as about psychological illnesses)
- cross-examining any witnesses called by the accused
- making a closing address after the close of all the evidence. In this address, the prosecutor must limit themselves to the evidence, and must not try to use comments that will cause ‘emotions. They should also not convey any personal opinions.
define cross-examination
the questioning of a witness called by the other side in a legal case
describe prosecutions job of making submissions about sentencing?
If the accused pleads guilty or is found guilty, the matter will be set down for a plea hearing at which the parties can make submissions about sentencing. The prosecutor can inform the court about the laws that apply, and anything about the offence or the offender that is relevant to sentencing.
role of prosecution in sentencing?
The duty of the prosecutor is to assist the court in determining the sentence. The High Court has previously held that the prosecutor should not make submissions about the sentencing range that should be applied.
roles of the accused in criminal case?
- participate in the trial or hearing
- make submissions about sentencing.
does the accused themselves perform their roles?
If the accused is represented by legal practitioners, the legal practitioners will perform these roles.
why are the roles of the prosecution and accused different?
The accused’s role in a criminal case is different to the role of the prosecutor, because the accused does not have the burden of proof, and can choose to remain silent during the entire case.
does the accused have to participate in the trial or hearing?
The accused, if they choose to do so, can fully participate in the trial or hearing, or they are entitled to remain silent and do nothing.
describe accused participating in the trial or hearing if choosing to present a defence?
- presenting their opening address. Similar to the prosecutor, they will summarise the evidence, but should not include any material that is not relevant or will not be called as evidence (like the prosecutor, an accused must be given leave in the Magistrates’ Court to make an opening and closing address)
- presenting evidence that supports their case. This will normally be done through calling witnesses.
The accused may also give evidence at any stage - cross-examining any witnesses called by the prosecution
- making a closing address after the prosecutor gives their closing address. The closing address should be limited to the evidence.
describe accused role to make submissions about sentencing?
In doing so, the offender (or their legal practitioners) will try to obtain the least possible sentence available, relying on factors or information that weigh towards a lighter sentence. In doing so, however, they must not mislead the court.
strengths of the roles of the parties?
- The prosecutor has special obligations to disclose all relevant matters to the accused.
The accused must also not seek to change witnesses without notice to the accused. This ensures there is no trial by ambush’ in that another party is unable to challenge evidence of the other party because they have not been given prior notice. - Both parties have the opportunity to present their cases, including when making opening and closing addresses. This also includes the opportunity to examine and cross-examine witnesses (in examination in chief and cross-examination)
- The accused has no obligation to present evidence or do or say anything in the trial.
weaknesses of the roles of the parties?
- The Victorian Law Reform Commission (VLRC) noted in one of its inquiries that early and adequate disclosure is an issue in Victoria. For example, it noted that sometimes the police often wait to see what the defence requests rather than providing disclosure upfront.
- The processes involved are complex and difficult to understand without a lawyer, making it difficult for self-represented accused people.
- ‘Party control’ and the right to silence may mean that the truth does not come out.
For example, the accused may not say or do anything. This is particularly so in situations where the accused is the only person that knows what happened. This may feel particularly unjust for victims and their families.
why should the accused engage legal practitioners?
Our criminal justice system involves unique processes, as well as particular legal terminology and legal principles. Because of this, it is broadly accepted that an accused person (particularly when faced with an indictable charge) should engage legal practitioners to assist them.
define Law Council of
Australia
the peak national representative body of the Australian legal profession. It advocates on behalf of the legal profession at a national level about issues such as access to justice
what has the Law Council of Australia previously stated that access to legal advice is essential to upholding the rule of law?
Access to adequate legal advice is an internationally recognised human right and a fundamental pillar of the rule of law. It is something that the Law Council considers should be available to everyone, particularly those people who face criminal charges or other potential restrictions on their liberty.
what do legal practitioners ensure?
It is broadly accepted that a person charged with a criminal offence requires legal practitioners to represent them. This is to ensure that a person has an adequate opportunity to test the evidence put against them, and to ensure that no mistakes are made when deciding whether someone is guilty of a crime.
reasons why lawyers are needed?
- a person who is representing themselves lacks the skills and experience to navigate the criminal justice system and test the evidence. This includes being able to navigate procedures such as plea negotiations, trial processes and the examination of witnesses
- a self-represented accused person does not generally have the objectivity to be able to make the right decisions. They may be overly invested or emotional about the outcome, and not have the ability to ‘stand back’ and assess the risks and the facts of the case
- for traumatic or difficult cases, it avoids a situation where the accused is directly questioning witnesses, such as victims of crime, which can risk a victim being re-traumatised
- although the court and judges can assist self-represented accused people to some extent in understanding the processes, this cannot extend to advocating on behalf of the self-represented accused person.
what is the court order for legal representation?
The Criminal Procedure Act 2009 (Vic) gives the courts power to adjourn a trial for serious offences until legal representation from VLA has been provided. The court must be satisfied that the accused person would not be able to receive a fair trial without legal representation, and the accused cannot afford to pay for their own lawyer. The burden of proof is on the accused to establish that they cannot afford the full cost of obtaining legal representation.
strengths of legal practitioners?
- Legal practitioners are experts who can help the accused person navigate the criminal justice system. This includes assisting and conducting opening and closing addresses, where there are rules about what they can or cannot say.
- Legal practitioners have objectivity in being able to make decisions in the criminal case, such as whether to accept an agreement in a plea negotiation. Self-represented accused people do not have that objectivity.
- Legal practitioners can help avoid delays that may arise with self-represented accused people las the trial processes may slow down to allow accused people to understand what is happening).
weaknesses of legal practitioners?
- Not all legal practitioners are equal or have the same level of experience and skills. Some legal practitioners are more experienced than others, which may impact on the quality of the legal services.
- Not everyone can afford legal representation, so some people may be left to represent themselves. However, often self-represented accused people do not have the necessary skills, experience or objectivity to be able to make the right decisions, so there may be a risk that they do not get a fair trial.
- Legal representation alone may not assist an accused, particularly those who cannot understand English or those suffering trauma (such as victims). Therefore, more support may be needed.
factors that impact on the achievement of the POJ?
- costs
- time
- cultural differences
what is the factor of cost?
The costs associated with the criminal justice system can be significant, particularly for an accused who cannot afford legal representation. They can also be significant for a victim of a criminal case who needs legal assistance and advice, and even for the public given the costs associated with prosecuting a criminal case.
define pro bono
a Latin term meaning
‘for the public good’; a term used to describe legal services that are provided for free (or at a reduced ratell
what are the main costs in criminal cases?
The main costs a person is likely to incur in a criminal case are the costs of engaging a lawyer to provide legal services such as legal advice or representation.
who do the main costs in criminal cases have the biggest impact on?
The greatest impact tends to be on the accused, who is likely to need legal representation to navigate the criminal justice system.
can victims be effected by costs in criminal cases?
Victims can also be affected, as they may require legal assistance to assert their rights, contact investigative and prosecution agencies and understand procedures such as giving evidence.
what is the disadvantage of legal representation costs?
While everyone has the right to legal representation, not everyone can afford it. This can be a particular disadvantage for an accused person, because our criminal trial system relies on the parties presenting their own case before the decider of facts (the magistrate or the jury).
what can accused do if the costs of legal representations are too high for them?
An accused who cannot afford legal representation can seek legal aid through institutions such as Victoria Legal Aid (VLA) or obtain free legal services from a community legal centre (CLC). They might also be able to obtain pro bono legal representation from a private legal practitioner or pro bono institution. However, those who cannot get assistance will have to represent themselves. This can place even more pressure on the courts and the parties.
what was VLA’s aim about costs when first established?
When VLA was first established, its aim was to repair an unjust system that provided greater opportunities to those who could afford legal services. But due to increased demand and a need to manage funding and budgets, a large part of the community is not eligible for legal aid, and VLA and CLCs are stretched in their ability to offer legal aid to people affected by crime.
what does the limited ability of VLA and CLC’s result in?
CLCs are stretched in their ability to offer legal aid to people affected by crime.
The criminal justice system is therefore seeing growing numbers of self-represented parties. Some choose to self-represent, while others have no choice because they cannot afford a lawyer and they are not eligible for legal aid.
why do self represented parties cause trouble for the courts?
This can create challenges for the courts and for the parties because a self-represented party often lacks understanding of the law and its formalities, procedure, evidence and language. Trials and hearings where there is a self-represented accused often take longer, because the judge or magistrate has to explain things along the way and allow the party more time to complete processes they are not familiar with.
what else do people who cannot afford legal representation result in?
Many people who cannot afford legal representation are also vulnerable. For example, they may be homeless, have a disability, or they may be young. This places them at extra risk in the criminal justice system.
how has a rise in self represented parties made courts to adapt?
As a result of the rise in self-represented parties, courts and judges must adapt by changing their processes and changing the information they provide. For example, the County Court has a dedicated page on its website for those who represent themselves, which includes information sheets to help people understand the processes involved.
measures that may assist in addressing the burden of costs?
- using committal proceedings to ‘filter out”’ weak cases so that those cases do not go to unnecessary trials.
- using plea negotiations to resolve criminal cases.
how do committal proceeding help with costs?
Committal proceedings are used for indictable offences, and they provide an opportunity for an accused person to plead guilty. (An accused person may wish to plead guilty once they have heard and read the evidence during the committal process.) This can help to reduce costs. However, some people see the committal proceeding system as being an ‘ineffective’ filtering system, as a vast majority of cases are committed to trial.
how do plea negotiations help with costs?
Many criminal cases are resolved by agreement, which can help avoid the need for a trial. This can therefore also help to avoid the costs involved in running a trial, including the costs of the prosecution and the costs of the court.
how does the factor of time impact the legal system to achieve POJ?
Delays in having a trial heard and determined can affect the ability of the criminal justice system to achieve justice.
how do court delays occur?
Most criminal cases involve a range of tasks such as gathering evidence, locating and interviewing witnesses, determining what happened, and determining what charges should be laid against an accused
how do court processes impact court delays?
The more complicated the case is, the longer it is likely to take for the case to be ready for trial.
what do many others see delays as?
Many, however, see the delays in preparing a case for trial to be a result of the nature of our justice system, which relies on the prosecution gathering evidence, an over-reliance on hard copy documents, and the need for committal proceedings in what may be seen to be straightforward cases.
what also contributes to court delays other than getting reading for trial?
In addition to delays in getting a case ready for trial, parties must often wait for a hearing date in court. The COVID-19 pandemic also resulted in many trials being adjourned or rescheduled, which means there is an ongoing backlog of cases waiting to be heard.
Measures to address delays?
- plea negotiations
- temporary legislation of judge alone trials in COVID
- investment in digital technology
how do plea negotiations help with time delays?
Plea negotiations can reduce delays by achieving an early guilty plea in a case. This means the case can be determined more quickly and saves the time (as well as costs, stress and inconvenience) of having to take a case all the way to trial. This can often take months, even years, and so there is a recognition by our system that early guilty pleas allow for early resolution of disputes.
in what other ways to plea negotiations help with court delays?
Plea negotiations also save time in other ways. The resolution of cases before they go to trial ensures that the courts are freed up to hear and determine other cases that the prosecution is unwilling to negotiate on, or where it is in the best interests of the public that they be heard by a judge and jury (or magistrate).
what helped with time delays in COVID?
In addition, to assist in the court delays suffered during the COVID-19 pandemic (where jury trials
in particular were halted because of social distancing measures), the Victorian Parliament passed temporary legislation to allow for judge-alone trials. The legislation allowed a court to order that an indictable offence charge could be heard by a trial judge alone if the accused consented, the accused had obtained legal advice, and the court considered it in the interests of justice to make the order.
A number of accused people opted for a judge-alone trial.
how do investment in digital technology help with time delays?
Further, the investment in digital technology to allow for more remote hearings can help to address
delays. This includes allowing people to appear by video link rather than in person. In addition, the Magistrates’ Court’s technology program ‘Online Magistrates’ Court’ enables cases to be heard online with parties appearing from remote locations. It is expected that this system will be expanded so that more cases can be heard in this way.
what is the community becoming more aware of in the justice system?
The community in general is becoming more aware of the need to ensure that all people have access to the justice system, and that all people are treated equally and fairly. But this is not always the case, particularly for different cultural groups. These include people for whom English is not their first language and First Nations peoples.
what are cultural difficulties?
Cultural difficulties include lack of knowledge of the legal system, lack of understanding of
the English language, failure of the legal system to account for differences, and cultural misunderstandings.
how do First Nations system differ from contemporary legal system?
First Nations peoples have a complex system of laws and customs, handed down from generation to generation. First Nations peoples from traditional areas who are not familiar with contemporary Australian society are likely to experience difficulties in giving and understanding evidence given in courts. For some First Nations peoples, these difficulties are heightened by cultural or language barriers, embarrassment and fear.
difficulties faced by some First Nations peoples in the courtroom?
- language barriers
- direct questioning
- body language
- cultural taboos
- lack of understanding of court procedures
what is the difficulty of language barriers faced by First Nations peoples?
there are subtle differences in the way language is used by some First Nations people that can cause misunderstandings. For example, ‘kill’ may mean to hit someone, probably causing injury, but not necessarily ending their life; ‘story’ in Aboriginal usage usually means the truth, the real account of an event, not something that has been made up
what is the difficulty of direct questioning faced by First Nations peoples?
The question-and-answer method of obtaining evidence, which is often the way evidence is obtained in criminal matters, can be inappropriate for some First Nations witnesses who are not used to this method. In many First Nations cultures, group agreement through long discussion and telling with stories is the polite way to settle differences, and directness is impolite. In the criminal justice system, with its forced yes/no answers, some First Nations people may be perceived by some who are unfamiliar with certain cultural practices as evasive or dishonest when they are actually being respectful
what is the difficulty of body language faced by First Nations peoples?
direct eye contact is seen as disrespectful to some First Nations people, who may try to limit or avoid it by looking down or to the side. This may make First Nations people appear uninterested or unreliable to those who do not understand these customs
what is the difficulty of cultural taboos faced by First Nations peoples?
within some First Nations cultures it is considered taboo to speak of certain things, such as the names of deceased people, or someone the community holds in disgrace.
In some instances, it is forbidden to mention gender-based knowledge (i.e. Men’s Business or Women’s Business) in front of the other gender. These traditional laws can cause difficulties and misunderstandings for First Nations people who have been charged with an offence
what is the difficulty of lack of understanding of court procedures faced by First Nations peoples?
some First Nations peoples may not understand why they have to tell the same story over and over, such as during examination-in-chief and then cross-examination. In an attempt not to offend the authorities, they may think they are required to change their story for each telling. This makes it easier for the barrister to make a witness appear inconsistent.
define Royal Commission
the highest form of inquiry into matters of public concern and importance. Royal commissions are established by the government and are given wide powers to investigate and report on an important matter of public concern
define intergenerational trauma
a psychological response to highly distressing, stressful or oppressive historical events, such as war or significant injustices, which is passed on to future generations. First Nations people experience intergenerational trauma for many reasons, including being subjected to brutal and harmfull
government policies, racism and discrimination since the British colonisation of Australia
how are First Nations people represented in the criminal justice system?
In addition, the statistics and history show there is an overrepresentation of First Nations people in the criminal justice system. For example, the Yoorrook Justice Commission (a Royal Commission, which you will explore in Chapter 13) indicated that First Nations people are around 14 times more likely to be imprisoned than non-Indigenous people.
what makes First Nations people increasingly vulnerable when engaging with the criminal justice system?
First Nations people in Australia have experienced social and economic disadvantage, caused by intergenerational trauma arising from colonisation and discriminatory government policies, that make them increasingly vulnerable when engaging with the criminal justice system. In particular, many have pointed out that the laws relating to the age of criminal responsibility and bail laws disproportionately affect First Nations people compared to non-Indigenous people.
how is language a barrier for the accused?
Many members of the Australian community were born overseas and have a language other than English as their first language. This can affect whether an accused is able to understand court documents, court processes and the language used in criminal cases.
how is language a barrier for the victim?
This can also affect victims of crime and witnesses who are in contact with the criminal justice system. Victims and witnesses who do not have English as their first language may not necessarily understand their legal rights, the different types of agencies that exist, and the legal processes that happen in a courtroom. These can all be difficult to understand, even for those who do use English as their first language.
what does not knowing the legal system impact stakeholders in a case?
Without knowing how the legal system works and what the processes are about, an accused person, victim or witness can be at a significant disadvantage.
what does the Human Rights Charter say in response to language/cultural barriers?
Under the Human Rights Charter, one of the rights guaranteed to a person charged with a criminal offence is the right to have the assistance of an interpreter (at no cost) if they cannot understand or speak English. Interpreters can help accused people who cannot speak English to speak with their lawyer and to court personnel.
Measures to address cultural differences?
One measure put in place to address the challenges faced by First Nations people in the criminal justice system is the Koori Court.
what is the Koori Court?
The Koori Court, a division of the Magistrates’ Court and the County Court, is a sentencing court (i.e. it is not used to determine guilt) for First Nations offenders that aims to respect First Nations cultures and encourage the participation of the accused, and the First Nations community, in the sentencing process. The Koori Court also aims to reduce the overrepresentation of First Nations people in the criminal justice system and improve overall outcomes.
how is the Koori Court conducted?
The sentencing processes in the Koori Court are informal and conducted in a culturally appropriate way, giving people the opportunity to tell their story, with the support of their Elders and their family, rather than sitting behind a lawyer (as in a mainstream courtroom). All participants in the sentencing hearing speak in plain English (rather than using technical legal terminology) and the Court is smoked (i.e. cleansed in a traditional First Nations ceremony) and decorated with First Nations artwork and artefacts.
how to be eligible for the Koori Court?
To be eligible to be sentenced in the Koori Court, the offender needs to be a First Nations person, they must plead guilty, and they must live within, or have been charged within, the relevant area of the Koori Court.
how many Koori Courts are there?
A number of Koori Courts operate across Victoria.
can the Koori Court hear all cases?
There are some restrictions in the types of cases that the Koori Court can hear.
what is the Koori Courts aim?
The Koori Court aims to provide fair, equitable and culturally relevant justice to the First Nations community, as well as providing Koori Court participants with greater protection and participation.
is the Koori Court available to everyone?
However, it is not available to everyone - it is only a sentencing court, and the offender must fall within its jurisdiction.
Other than the Koori Court, measures that seek to address the impact of cultural differences?
- the provision of free interpreters to people accused of committing a crime
- information from the courts, VLA and some CLCs is provided in different languages to assist people in understanding their rights and processes
how does the provision of free interpreters to people accused of committing a crime help minimise cultural impacts?
The Magistrates’ Court will arrange and pay for an interpreter for an accused in a criminal matter. For an indictable offence, the prosecution will arrange and pay for an interpreter. The provision of an interpreter can ensure a fair outcome. However, access to an interpreter can vary greatly from court to court. There have been calls to adopt a national interpreter scheme to ensure that there is no risk that someone is without an interpreter
define conviction.
a finding of guilt made by a court, whether or not a conviction is recorded. Where a conviction is recorded, it will form part of the person’s criminal record
what happens when a person is found to be guilty of a crime?
If a person is guilty of a crime, the person will be referred to as the offender (not the accused), and the judge or magistrate (not the jury) will decide on the appropriate sanction resulting from their conviction. A sanction is a penalty imposed by courts on a person who is guilty of an offence.
what lays out the sentencing criteria?
The Sentencing Act 1991 (Vic) sets out the powers of the courts to impose sanctions and establishes
various types of sanctions.
the purposes of the Sentencing Act are?
- promote consistency of approach in sentencing
- provide fair procedures for imposing sanctions
- prevent crime and promote respect for the law
is sentencing easy?
Sentencing an offender is a complex and difficult task.
what does sentencing require to consider?
It requires the court to consider the relevant factors in each case as well as the significance of each factor, and decide the most appropriate sentence.
how should sentencing take place?
Sentencing should take place in an open hearing, and fairness should apply to the sentencing process.
define recidivism
re-offending; returning to crime after already having been convicted and sentenced
how has the nature of sanctions changed overtime?
The nature of criminal sanctions in Australia has changed over time, from harsh, inhumane penalties aimed at deterring others and punishing the offender, to a greater focus on addressing the underlying causes of offending and seeking to reduce the risk of recidivism (reoffending).
what does Sentencing Act provide?
The Sentencing Act provides a hierarchy of sanctions.
what is the most servere sanction?
The most severe sanction, and the sanction of last resort, is imprisonment.
what is the principle of parsimony?
When imposing a sentence, the judge or magistrate must not impose a sentence that is more severe than necessary to achieve the purposes of the sentence imposed.
types of sanctions?
imprisonment, community correction orders (CCOs), and fines.
all sanctions from most to least severe?
- Imprisonment with conviction
- Court secure treatment order with conviction
- Drug and alcohol treatment order with conviction
- Youth justice centre order with conviction
- Youth residential centre order with conviction
- Community correction order (CCO) with or without conviction
- Fine with or without conviction
- Adjournment with conviction
- Discharge with conviction
- Adjournment without conviction
- Dismissal without conviction
describe Imprisonment with conviction
Record a conviction and order that the offender serve time in a prison (jail).
describe Court secure treatment order with conviction
Record a conviction and order that the offender be detained and treated in a health facility (such as a hospital) as a security patient.
describe Drug and alcohol treatment order with conviction
Record a conviction and order that the offender undertake a judicially supervised drug or alcohol treatment program. Only available in the Drug Court Division in the Magistrates Court or County Court if a person pleads guilty and the Court is satisfied that the offender is dependent on drugs or alcohol and that dependency contributed to the committing of the offence.
describe Youth justice centre order with conviction
In the case of an offender aged between 15 and 20 years at the time of being sentenced, record a conviction and order that the young offender be detained in a youth justice centre.
describe Youth residential centre order with conviction
In the case of an offender aged under 15 years at the time of being sentenced, record a conviction and order that the young offender be detained in a youth residential centre.
describe Community correction order (CCO) with or without conviction
With or without recording a conviction, make a community correction order. The order will be made with certain conditions attached to it.
describe Fine with or without conviction
With or without recording a conviction, order the offender to pay a fine, which is a sum of money payable to the court.
describe Adjournment with conviction
Record a conviction and order the release of the offender on adjournment with conditions attached. If a person breaches the conditions, they may be re-sentenced by the court.
describe Discharge with conviction
Record a conviction and order the discharge of the offender.
This means that no further penalty will be imposed (but a conviction will be recorded).
describe Adjournment without conviction
Without recording a conviction, order the release of the offender on adjournment with conditions attached. If a person breaches the conditions, they may be re-sentenced by the court.
describe Dismissal without conviction
Without recording a conviction, order the dismissal of the charge for the offence. This means that a charge may be proven, but the person is released and there is no record of the charge.
what are the purposes of sanctions?
- rehabilitation
- punishment
- deterrence (general and specific)
- denunciation
- protection.
when must the sentencing purposes be taken into account?
A sentencing judge must take these purposes into consideration when imposing a sentence, but not all the purposes will be relevant in each case. The purposes often overlap, and a sentence usually aims to achieve a combination of two or more purposes.
define rehabilitation
one purpose of a sanction, designed to reform an offender in order to prevent them from committing offences in the future
define community correction
order (CCO)
a flexible, non-custodial sanction lone that does not involve al prison sentence) that the offender serves in the community, with conditions attached to the order
what is the purpose rehabilitation?
Rehabilitation is designed to address the underlying causes of offending, and and treat the offender based on those causes.
if rehabilitation is relevant what is it’s ai?
If rehabilitation is a relevant purpose, the aim of the sanction will be to help an offender to change their attitude and behaviour with the goal of preventing them from reoffending. This not only helps them, but it also benefits the community. If the offender is properly rehabilitated, they will stop committing crimes, preventing further harm to the community.
how is rehabilitation achieved?
An example of how rehabilitation can be achieved is through a community correction order
(CCO), which may encourage rehabilitation by requiring offenders to participate in skills training or to undergo drug and alcohol treatment.
how does prison link with rehabilitation?
Although imprisonment is the sanction of last resort, rehabilitation programs are carried out within prisons to help offenders once they are released from prison. Prisoners may be offered the opportunity to undertake life skills programs such as drug treatment and anti-violence programs, and specific employment, education and training programs.
examples of rehabilitation programs in prisons?
- The Torch program helps First Nations prisoners and former prisoners reconnect with their culture through art and helps provide a pathway towards rehabilitation. The artwork can also be sold.
- Programs and initiatives have been established to ensure prisoners maintain strong family connections, as research shows that family relationships help to reduce reoffending and promote rehabilitation.
when is prison what does rehabilitation rely on?
Given the nature of imprisonment, including the restrictions it imposes on offenders, the ability for a person to rehabilitate while in prison may depend on the offender, the programs available, and the length of the sentence. In addition, as explored later in this chapter, prisons can reinforce criminal behaviour and promote reoffending rather than reduce reoffending.
what has to happen for rehabilitation to be a relevant purpose?
For rehabilitation to be a relevant purpose in sentencing, the offender must demonstrate remorse. If an offender has not taken the opportunity to rehabilitate themselves, or has otherwise not shown any signs of remorse, then other purposes of sanctions may be a higher priority for the court.
how is remorse shown?
Remorse can often be seen through the offender’s actions after the offending (e.g. pleading guilty early, cooperating with police, or taking active steps to address their behaviour).
define punishment
one purpose of a sanction, designed to penalise (punish) the offender and show society and the victim that criminal behaviour will not be tolerated
what is punishment?
When a crime has been committed, an offender has done something unacceptable to society, and must be penalised so that the victim of the crime and the community feel justice has been done.
what purpose is punishment usually combined with?
Usually, the purpose of punishment is combined with another purpose such as deterrence or denunciation.
how is the level of punishment determined?
The process of punishment through the courts avoids the need for the victim of a crime to take the matter into their own hands. However, punishment must be proportionate to the offence committed. An overly harsh sanction should not be imposed if it does not match the offending; likewise, a sanction that is too lenient may not act as enough of a punishment.
when is punishment often a purpose?
Punishment is often a purpose of sanctions in serious or violent cases, such as those involving the death of another person, serious injury, culpable or dangerous driving, or sex offences. While people often view punishment as depriving a person of their liberty and putting them in prison, other sanctions can also seek to punish an offender.
what is deterrence aimed at?
Deterrence is aimed at discouraging people from committing similar crimes.
define deterrence
one purpose of a sanction, designed to discourage the offender and others in the community from committing similar offences
define general deterrence
one purpose of a sanction, designed to discourage others in the community from committing similar offences.
define specific deterrence
one purpose of a sanction, designed to discourage the offender from committing further offences.
what are the types of deterrence?
general deterrence and specific deterrence
what is general deterrence?
The purpose of general deterrence is to discourage or deter others from committing offences because they see the consequences of committing the crime.
what cases is general deterrence important in?
It is particularly important in violent or serious offences, such as homicide and sexual offences, where vulnerable members of the community are affected, or in relation to public, violent acts of crime.
how is general deterrence achieved?
Whether general deterrence is achieved depends on people knowing the sentence that is being imposed. Sentences should be communicated to the public (e.g. through the media or court websites).
If people do not know about sentences that are imposed, then the sentences may not act as a general deterrent. People should also understand the sentence that is being imposed. While imprisonment and fines are well-known sanctions, sanctions such as CCOs may be less familiar or understood by members of the community, so they may not appreciate the seriousness or punishing nature of these sanctions.
what is specific deterrence?
This is when the court seeks to discourage a particular offender from engaging in criminal activity in the future.
how is specific deterrence achieved?
One of the more important factors that is relevant to whether an offender will be specifically deterred is whether the offender has prior convictions (that is, has committed crimes before). If they have committed crimes before, they may be at risk of offending again, and so deterring the offender may be a high priority for the court. On the other hand, specific deterrence may not be as significant if the offender is remorseful, is a first-time offender or if the circumstances of offending are unique.
define denunciation
one purpose of a sanction, designed to demonstrate the community’s disapproval of the offender’s actions
what is denunciation?
Denunciation refers to the disapproval of the court. A sanction may be given to show the community that the court and society disapproves of and condemns the offender’s conduct.
what cases is denunciation in most reference to?
Over recent years, public denunciation of offences has been seen in offending related to family violence, significant violent acts, and offences motivated by hatred or prejudice (e.g. based on the victim’s race, religion, sexuality or impairment).
when is denunciation appropriate?
As part of its sentencing, the court will seek to reinforce that community expectations and values mean that this type of behaviour is not acceptable, and must be condemned.
On the other hand, there may be a situation where the rehabilitation of an offender is given more
weight, or is more important, than the need to show the community’s disapproval of an action.
define protection
one purpose of a sanction, designed to safeguard the community from an offender by preventing them from committing further offence (e.g. by imprisoning the offender
what is protection?
The purpose of protection is to ensure that the community is safe from any further harm that can be caused by the offender.
what is the link between punishment and protection and imprisonment?
Sometimes it is necessary to remove an offender from the community (put them in prison) to achieve
this aim, because the offender is physically prevented from reoffending.
what is the link between punishment and protection and CCO?
However, a non-custodial sentence (when an offender is not put in prison), such as a CCO, can also protect the community from the offender because it keeps them busy when they might otherwise be engaged in criminal activity. Conditions attached to a CCO, such as preventing the offender from going to certain places, can also protect society.
when is protection most relevant?
Protection may be particularly relevant where an offender refuses to participate in treatment or rehabilitation programs (and so there is a greater risk that the underlying causes of offending will result in further offending), where there is no sign of remorse, or where there is significant criminal history such that it is very possible the offender will harm again.
in severe cases what happens in regards to protection?
In some cases, the court can impose an indefinite sentence. An indefinite sentence is a term of imprisonment with no set end date, and is used for offenders who have committed serious crimes and are a serious danger to the community. In most cases, this has involved offenders who have committed serious violent or sexual offences. Only the court can decide whether to release a person on an indefinite sentence. The courts have, at times, imposed an indefinite sentence, particularly where the offender was a serious violent offender and was considered to remain a threat in the community, even at an old age.
define fine
a sanction that requires the offender to pay an amount of money to the state
what is a fine?
A fine is an amount of money ordered by the court to be paid by the offender to the state of Victoria.
when can fines be imposed?
A fine can be imposed as the only sanction, or it can be imposed with any other sanction. It can also be imposed with or without a conviction.
what does fine amount depend on?
The amount of the fine will often depend on the maximum penalty that may be imposed for a certain offence, which is normally stated in the statute setting out that offence.
how are fines expressed?
Fines are expressed in levels. Level 2 is the highest level, and level 12 is the lowest. Each level refers to a number of penalty units. Level 2 attracts a fine of 3000 penalty units, whereas level 12 attracts a fine of 1 penalty unit. The court cannot order a fine at level 1 (level 1’ crimes are very serious offences such as murder and a fine would not be appropriate).
why are penalty units used in fines?
The use of ‘penalty units’ instead of fixed monetary amounts allows the government to increase all fines by increasing the value of a penalty unit each year without changing all statutes.
when determining the amount of a fine, a court must consider?
- the financial circumstances of the offender, and the burden that its payment will impose on the offender.
(Note that this is not relevant to whether a fine should be imposed, but rather the amount of the fine) - whether any other orders have been made in relation to the taking of an offender’s property or orders requiring the offender to make amends or pay compensation. An order requiring an offender to restore property or pay compensation to a victim should be given preference over a fine, though a fine can also be imposed
- any loss or destruction of, or damage to, property suffered by a person as a result of the offence
- the value of any benefit to the offender as a result of the offence.
what happens if the fine goes to a company?
If the offender is a company, a fine can be imposed that is no greater than five times the amount of the maximum fine that could be imposed on a human being. If a company cannot pay the fine, then in some circumstances the court can declare that any person who was a director of the company is also liable to pay the fine.
does a fine have to be paid all up front?
The court can allow a fine to be paid in instalments.
can the court change a fine?
A court can vary or discharge the fine if the circumstances of the offender substantially change.
a fine can be converted into a requirement to perform unpaid community work if (cannot pay)?
- the circumstances of the offender have changed such that they are no longer able to pay the fine
- the fine is not greater than 100 penalty points.
what happens if offender refuses to make payment?
- steps may be taken to enforce payment of the fine (e.g. warning notices may be sent)
- the offender may be ordered to undertake community work (to a maximum of 500 hours)
- a warrant may be obtained to seize (take) property to satisfy payment of the fine
- the offender may be imprisoned (1 day for each penalty unit that is unpaid, to a maximum of 24 months), but only if this is the only appropriate order that can be made. For example, imprisonment cannot be ordered if the offender had a reasonable excuse not to pay.
main purposes of fines?
The two main purposes of imposing a fine are punishment and deterrence, though denunciation could also be achieved by fining an offender.
Rehabilitation and protection are less relevant for fines.
punishment of fines?
depending on the financial circumstances of an
offender, fines can serve to punish by requiring them to pay money to the state.
Specific deterrence of fines?
depending on the financial circumstances of an offender, fines can serve to specifically deter by requiring them to pay money to the state.
General deterrence of fines?
fines can also act as a general deterrence by discouraging other members of the public from committing a similar offence
because they can see the consequence of offending fi.e. know they will be required to pay a sum of money).
Denunciation of fines?
fines can also act as a form of denunciation (i.e. a clear public declaration that certain acts and behaviours are unacceptable).
Rehabilitation of fines?
rehabilitation is less relevant as a purpose in relation to a fine, as it is not intended to address underlying causes of behaviour.
Protection of fines?
protection is unlikely to be a primary consideration when imposing a fine.
factors to consider fines about punishment?
- The financial circumstances of an offender and their ability to pay. The amount of a fine needs to be high enough to act as a punishment, having regard to the person’s financial circumstances and the nature of the offending. For example, if a fine is too low land the offender has sufficient financial resources to pay the fine), it may not punish the offender. On the other hand, if a fine is too high land the offender does not have the ability to pay), the offender may not ever pay it or may commit another offence (such as theft to be able to pay it.
- The amount of the fine. Generally, the fine must be high enough to impose a burden on the offender, although a smaller fine could be appropriate depending on the offender’s social and financial circumstances and the type of the offence.
- Whether the offender is a person or a company. Where a company is fined, the people who are responsible for the company’s offending may not suffer any impact unless there is an order that they are also liable to pay it.
- Whether the fine is paid and/or enforced. An unpaid fine that is not enforced may not act as a punishment.
factors to consider fines about specific deterrence?
- The financial circumstances of an offender and their ability to pay. As with punishment, the amount of a fine needs to be high enough to have an impact on the offender and therefore deter them from committing further crimes, having regard to the person’s characteristics and the nature of the offending. For example, if a fine is low and the offender has sufficient financial resources to pay the fine, it may not deter the offender.
- The amount of the fine. Generally, the fine must be high enough to impose a burden on the offender, although a smaller fine could be appropriate depending on the offender’s social and financial circumstances and the type of the offence.
- Whether the offender is a person or a company. Where a company is fined, the people who are responsible for the company’s offending may not be deterred as it is not them who has to pay.
- Whether the fine is paid and/or enforced. An unpaid fine that is not enforced may not act as a specific deterrent, as it has no ultimate impact on the offender’s financial circumstances.
factors to consider fines about general deterrence?
- The amount of the fine and the circumstances of people in the community. While a smaller fine may not deter some members of the community, a larger fine is more likely to act as a general deterrent, although this will depend on each individual’s personal circumstances.
- Whether the fine is enforced. Other members of the community may be less likely to be deterred if they know there will be no repercussions if they do not pay the fine.
- The extent to which the sentence is known to the community. As fines are easily understood, members of the community will appreciate the personal impact of receiving a fine, which will vary depending on their circumstances and whether they are aware of the fine being imposed. The use of media and online sites may help to generate attention to the sanction imposed. For example, WorkSafe’s publication of sanctions imposed for workplace safety offences could become known to companies in the same industry and therefore increase awareness of the types of fines that could be imposed.
factors to consider fines about denunciation?
- The nature of the offence and the fine imposed. A larger fine (e.g. a level 2 fine) may send a stronger message of disapproval than a smaller fine le.g. a level 12 fine).
A smaller fine (e.g. a level 12 fine) may not be sufficient enough to send a strong message to the community. - Whether the fine is enforced. The strong message of disapproval that may be expressed when imposing the fine could be weakened if the fine is not enforced.
A fine that is imposed and then enforced may send a stronger message that the behaviour is unacceptable.
factors to consider fines about Rehabilitation?
- While a fine is not intended to address underlying causes of behaviour, it could assist in rehabilitation as it may help ‘condition’ the offender to avoid similar types of behaviour le.g. changing the way they drive so they stop speeding).
factors to consider fines about Protection?
- While protection is unlikely to be a primary consideration when imposing a fine, long-term protection could be achieved if an offender is deterred from reoffending.
- A fine could assist in protection if it is imposed on a company that is willing to address the reason why it was given a fine (e.g. fixing an unsafe workplace).
what is a community based sanction?
A community-based sanction is a type of sentence that is served in the community, under the supervision of correctional officers.
why are community based sanctions useful?
Community-based sanctions have been considered a useful form of sentence for those offenders whose sentence is best served in the community.
where do community based sanctions sit in the hierarchy?
They sit in the middle range of the sentencing hierarchy.
what is the primary community-based sanction in Victoria?
The primary community-based sanction in Victoria is a community correction order (CCO).
What is a community correction order?
A community correction order (CCO) is a non-custodial, supervised sentence served in the community. It is intended to be a flexible order that can be tailored to the offending and the offender by way of conditions attached to the order.
why are CCO’s useful?
A CCO can be used as a sanction for a range of offences.
CCOs give offenders the opportunity to address their criminal behaviour and undergo treatment or take part in educational, vocational or personal development programs, while remaining in the community.
They also help offenders to avoid the potentially negative impacts of imprisonment.
how long can CCO’s be imposed for?
A CCO can be imposed for up to two years in the Magistrates’ Court for a single offence, and no
more than five years in any of the Victorian courts.
can CCO’s be combined with other sanctions?
A CCO can be combined with a fine or up to one year in prison. When combined with a prison
sentence, the CCO will commence on the offender’s release from jail.
when can the court impose a CCO?
A court can only impose a CCO if the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units, the court has received a pre-sentence report, and the offender consents to the order. The court must also be satisfied that the CCO is appropriate for the offender.
when can the court not impose a CCO?
A CCO cannot be imposed for certain offences known as ‘category 1 offences’. A CCO can also not be imposed for ‘category 2 offences’ except in certain circumstances (e.g. where the offender has a mental impairment, or the offender has assisted enforcement authorities in an investigation or prosecution, or the offender has assisted enforcement authorities in an investigation or prosecution).
what are category one offences?
These include murder, various sexual offences, some assault offences and some drug offences.
what are category two offences?
Category 2 offences include manslaughter, child homicide, kidnapping, arson causing death and some drug offences.
core conditions attached to CCOs?
- must not commit another offence punishable by imprisonment during the period of the order
- must report to a specified community corrections centre within two working days of the order coming into force
- must report to and receive visits from a community corrections officer
- must notify an officer of a change of address or employment within two working days after the change
- must not leave Victoria without permission
- must comply with any directions of community corrections officers.
additional conditions of CCO’s?
- Unpaid community work
- Treatment and rehabilitation
- Supervision
- Non-association
- Residence restriction or exclusion
- Place or area exclusion
- Curfew
- Alcohol exclusion
- Bond
- Judicial monitoring
- Electronic monitoring
- Justice plan
describe condition of Unpaid community work?
The offender must perform a number of hours of community work, as specified in the court order, which must not exceed 600 hours. The number of hours must also not exceed 20 over a seven-day period unless the offender requests to do more. The purpose is to adequately punish the offender.
describe condition of Treatment and rehabilitation?
The offender must undergo treatment and rehabilitation ordered by the court, designed to address the causes of the offending. The court must have regard to the need to address the underlying causes of offending if attaching such an order.
describe condition of Supervision?
The offender is supervised, managed and monitored by a community corrections officer.
describe condition of Non-association?
The offender must not contact or associate with a person, or people, specified in the order.
describe condition of Residence restriction or exclusion?
The offender must live at some place (or not live there), as specified in the order.
describe condition of Place or area exclusion?
The offender must not enter or remain in a specified area or venue le.g. a particular sporting venue, the central business district of Melbourne or a licensed premises). This condition is for people who have a habit of committing crimes in certain places.
describe condition of Curfew?
The offender must remain at a place specified in the order between specified hours of each day (e.g. staying at home between 9 pm and 6 am).
describe condition of Alcohol exclusion?
The offender must not enter or remain in licensed premises, or the location of a major event, or consume liquor in any licensed premises.
describe condition of Bond?
The offender must pay an amount of money as a bond which will be forfeited if they fail to comply with the CCO.
describe condition of Judicial monitoring?
The offender must be monitored by the court (which may involve appearing before the court for a review of their compliance).
describe condition of Electronic monitoring?
The offender must be electronically monitored if this is suitable, depending on the offender’s residence. The purpose is to monitor compliance with a ‘monitored condition’ , which are the
curfew conditions and the place or area exclusion condition (see above). The person will be fitted with an electronic monitoring device.
describe condition of Justice plan?
For intellectually disabled offenders, a justice plan condition may be attached directing them to participate in services that are designed to reduce the likelihood of further reoffending.
when can courts vary a CCO?
- the circumstances of the offender materially change, which means they are not able to comply with any condition
- the offender no longer consents to the order
- it is no longer in the interests of the community or the offender for the CCO to continue to be served. This can also occur when a person contravenes (breaches) the conditions of a CCO and therefore commits an additional offence.
- The court can also impose a different sanction, vary the conditions, or even cancel the CCO and make no further order.
main purposes of CCOs?
As a CCO is a flexible sentencing option, it can achieve all of the purposes of sanctions, depending on the circumstances of offending and the offender.
Deterrence, rehabilitation and denunciation are often purposes of imposing a CCO, but protection and punishment can also be achieved.
Punishment of CCO’s?
depending on the length of the CCO, the conditions imposed and the offender, CCOs can serve to punish offender, such as by requiring them to perform community work and imposing restrictions over a long period of time.
Specific deterrence of CCO’s?
CCOs can serve to specifically deter an offender, depending on the conditions imposed.
General deterrence of CCO’s?
a CCO can generally deter an offender depending on the nature and length of the CCO, and the enforceability of the CCO.
Denunciation of CCO’s?
a CCO can act as a form of denunciation (i.e. a clear public declaration that certain acts and behaviours are unacceptable).
factors to consider CCO’s about punishment?
- The length of the CCO. The duration of the CCO can have an impact on whether it punishes the offender. A CCO that is shorter is less likely to feel punitive than a longer CCO, including one that extends up to five years.
- The mandatory conditions imposed. Many of the mandatory conditions, particularly the requirement not to leave Victoria without permission, can punish an offender. However, these conditions may not be seen to be significantly punishing to some members of the community.
- The nature of the additional conditions imposed. A key factor in determining whether a CCO punishes the offender is the conditions that are imposed. The greater the restrictions imposed on the offender, the more likely they will feel like the CCO is a burden on them. For example, some conditions such as electronic monitoring and significant community work can act as a form of punishment as they restrict the offender’s freedom.
- The restriction on a person’s liberty. In some ways the CCO cannot ‘punish’ an offender like imprisonment does because there is not a complete loss of liberty.
Rehabilitation of CCO’s?
rehabilitation can be achieved depending on the treatment of the offender through conditions, as well as the ability of the offender to remain in the community and avoid
imprisonment.
Protection of CCO’s?
although protection is not achieved in that the offender remains in the community, long-term protection may be achieved if rehabilitation and specific deterrence are achieved.
factors to consider CCO’s about Specific deterrence?
- The length of the CCO. The duration of the CCO can have an impact on whether it deters the offender. A shorter CCO may be less likely to have a deterrent effect than a longer CCO.
- The mandatory conditions imposed. Many of the mandatory conditions, particularly the requirement not to commit another offence punishable by imprisonment, can act as a specific deterrent on an offender as they can be resentenced if they breach such a condition. This can itself have a powerful impact on whether the offender offends again, even though the conditions do not extend beyond the length of the CCO.
- The nature of the additional conditions imposed. If the conditions imposed seek to minimise the risk of the offender reoffending, then specific deterrence could be achieved. For example, exclusions or curfews can help change the offender’s behaviours and help reduce the risk of reoffending.
factors to consider CCO’s about General deterrence?
- The nature of the CCO. A CCO that is overly restrictive on an offender is more likely to deter
the community as it will be seen to be punishing or to be an unwelcome sanction. This depends on the nature and length of the CCO. Significant hours of community work and electronic monitoring, for example, may be seen to be harsh conditions that impact on a person’s freedom. - Whether the CCO is communicated to the public. Whether a CCO can deter the community depends on whether the public know about it. It may also depend on the extent to which the communication of the CCO clearly demonstrates how harsh the CCO is, or how punishing or impacting it is on the offender. The public may see this as a lesser sanction to imprisonment, so it may not be as effective as imprisonment in deterring the public.
factors to consider CCO’s about Denunciation?
- The length of the CCO. A longer CCO is likely to send a stronger message that this type of behaviour is not acceptable than a shorter CCO.
- The conditions imposed. A strong message of disapproval may be sent if harsh conditions are imposed, such as curfews, monitoring, or even exclusion conditions. Other conditions, such as a single condition requiring community work, may not send as strong a message.
factors to consider CCO’s about Protection?
- Whether the offender is rehabilitated and deterred. Society is protected in the long term if
the offender ‘changes their ways’ and is rehabilitated and deterred from offending again.
The recidivism rate for CCOs in 2021-22 (being the rate of return to corrective services within two years) was 10.5 per cent, which may suggest it is an effective way to reduce reoffending. - Additional conditions imposed. Some conditions are far more restrictive and may reduce any
potential harm to the community. For example, exclusion conditions and judicial monitoring can restrict the ability of the offender to harm the community while serving a CCO.
factors to consider CCO’s about Rehabilitation?
- Conditions imposed. Treatment conditions in particular can focus on the rehabilitation aspect of a CCO , including drug and alcohol treatment and any other programs that seek to
address underlying causes of behaviour. - Active participation. Whether the offender is rehabilitated may depend on whether they actively participate in the rehabilitation programs and are willing to continue that treatment, or continue to address their behaviour, when the CCO comes to an end.
- Offender circumstances, such as support from family and friends. Factors beyond treatment, such as an offender’s ability to remain employed and the support they get from family and friends, are vital to the achievement of rehabilitation. These supports can help the offender treat underlying causes of behaviour.
when is imprisonment appropriate?
In some cases, imprisonment may be the only appropriate sanction that should or can be imposed Imprisonment is the sanction of last resort and is the most severe form of sentence that can be imposed in Victoria.
define imprisonment
a sanction that involves removing the offender from society for a stated period of time and placing them in prison
define non-parole period
the minimum term a prisoner must serve before they can be given parole
What is imprisonment?
People who have been convicted of a crime (usually, for serious crimes) can be sentenced to imprisonment. This means they will be removed from society and have to spend time in prison, losing their freedom and liberty.
how is prison terms expressed?
Prison terms are expressed in levels from 1 to 9, with 1 being the most serious (life imprisonment)
and 9 being for the least serious (six months).
what is parole?
Parole is the conditional release of a prisoner after a minimum period has been served.
what are the conditions for parole for court and offender?
If the sentence is between one and two years, the court can state a non-parole period. After this minimum period, the Adult Parole Board reviews the prisoner’s suitability for parole. If a sentence is for two years or more, the court must state a minimum, non-parole period. Conditions can be attached to a period of parole. If there is no non-parole period or parole is rejected, the prison sentence is served in full. For some, this will mean that they will never be released from prison.
what is the longest prison sentence?
For some offences, a term of life imprisonment can be imposed. This means ‘the term of the prisoner’s natural (entire) life’.
how long can the Magistrates Court sentence imprisonment for?
The Magistrates’ Court is limited in the length of imprisonment it may impose; the maximum term of imprisonment it can impose for a single summary offence is two years,
and five years for two or more offences.
does remand count as a art of imprisonment sentence?
If an offender has been held in custody (that is, on remand) before sentencing, any time spent in
prison may be considered as part of the sentence to be served.
define remand
the situation where an accused is kept in custody until their criminal trial can take place
levels of imprisonment?
level 1 to 9
Level 1 Maximum term?
Life imprisonment
Level 2 Maximum term?
25 years
Level 4 Maximum term?
15 years
Level 3 Maximum term?
20 years
Level 6 Maximum term?
5 years
Level 5 Maximum term?
10 years
Level 7 Maximum term?
2 years
Level 8 Maximum term?
1 year
Level 9 Maximum term?
6 months
Level 1 Sample offences
- Murder
- Trafficking in a drug of dependence (large commercial quantity)
Level 3 Sample offences
- Intentionally causing serious injury
- Culpable driving causing death
Level 2 Sample offences
- Manslaughter
- Rape
- Sexual penetration of a child under 12 years
- Armed robbery
- Aggravated burglary
- Arson causing death
Level 4 Sample offences
- Recklessly causing serious injury
- Handling stolen goods
- Trafficking in a drug of dependence (not a commercial quantity)
- Arson
Level 5 Sample offences
- Threats to kill
- Indecent assault
- Theft
- Negligently causing serious injury
- Knowingly possessing child pornography
Level 6 Sample offences
- Recklessly causing injury
- Possession of a drug of dependence (for the purpose of trafficking)
Level 7 Sample offences
Going equipped to steal
Level 8 Sample offences
- Cultivation of a narcotic plant (not for the purpose of trafficking)
- Possession of a drug of dependence (not for the purpose of trafficking)
Level 9 Sample offences
Concealing the birth of a child
how can imprisonment be served?
Terms of imprisonment can be served concurrently or cumulatively.
define concurrent sentence
a sanction that is to be served at the same time as one or more other sentences; usually given in relation to two terms of imprisonment
define cumulative sentence
where two sentences are imposed, and are to be served one after the other; for example a term of imprisonment is to be commenced after the first term is served
what is a concurrent sentence?
A concurrent sentence runs at the same time as another sentence.
what are sentences usually served as?
Sentences are usually ordered to be served concurrently.
what is a cumulative sentence?
A cumulative sentence is served straight after another sentence.
why may cumulative sentences be given?
- for certain serious offences (as defined, and which includes arson, and certain drug, sexual and serious violent offences)
- where the imprisonment is in default of payment of a fine or sum of money
- for an offence by a prisoner or an escape offence
- for an offence committed by a person released on parole or on bail.
define indefinite sentence
a term of imprisonment that has no fixed end date, usually given to the most serious offenders
basis for indefinite sentance?
If a person (other than a young person) is convicted by the Supreme Court or the County Court of a serious offence, the court may sentence them to an indefinite term of imprisonment.
when can the court impose an indefinite sentence?
The court can only impose an indefinite sentence if it is satisfied, to a high degree of probability,
that the offender is a serious danger to the community because of:
* their character, past history, health, age or mental condition
* the nature and gravity of the serious offence
* any special circumstances.
when are indefinite sentences discharged?
The court will review the indefinite sentence periodically. Unless the court is satisfied, to a high degree of probability, that the offender is still a danger to the community, the indefinite sentence must be discharged and the offender must undertake a five-year reintegration program administered by the Adult Parole Board. The offender or the Office of Public Prosecutions (OPP) may appeal against a decision to discharge or not discharge an indefinite sentence.
main purposes of imprisonment?
The primary purposes of imprisonment are punishment, protection, deterrence and denunciation, given it is the most serious sanction that can be imposed and results in a loss of liberty. However, rehabilitation can also be achieved in some circumstances.
Punishment of imprisonment?
depending on how long the term is, imprisonment can achieve punishment given its punitive nature and the fact that offenders lose their freedom.
Specific deterrence of imprisonment?
imprisonment can achieve specific deterrence given the nature of imprisonment.
General deterrence of imprisonment?
imprisonment can act as a general deterrence because of its custodial nature and given the seriousness of the sanction.
Denunciation of imprisonment?
by taking away a person’s liberty, imprisonment sends a strong message to the community that this type of behaviour is not acceptable.
Rehabilitation of imprisonment?
rehabilitation can be achieved depending on the offender and the programs.
Imprisonment of Protection?
protection is achieved as the offender is removed from society, but there should also be consideration to long-term protection.
factors to consider imprisonment about Punishment?
- The length of the imprisonment term. A longer prison term acts as a greater restriction on freedom and therefore may act as a greater punishment. However, this depends on the offender. Even a short period of time in prison can be punishing given the removal of liberty.
- The offender’s circumstances. Whether imprisonment acts as a punishment may depend on the circumstances of the offender. For example, the courts have recognised that a mentally disabled offender, who cannot understand the impact of a term in prison, may not appreciate the punitive nature of the sentence and therefore punishment may not be achieved.
factors to consider imprisonment about Specific deterrence?
- The length of the imprisonment term. A longer prison term acts as a greater restriction on freedom and therefore may specifically deter an offender from offending again. However, this depends on the offender.
- The offender’s circumstances. Whether imprisonment specifically deters may depend on the circumstances of the offender. For example, an offender with a mental disability may not be specifically deterred as they may not be able to appreciate or understand the nature of imprisonment.
- The nature of the imprisonment term. Some research suggests that time in prison can normalise violence and reinforce criminal behaviour, and that time spent in prison can be traumatic and disruptive. If the offender is exposed to negative influences or they learn
‘negative behaviours in prison, this can impact on specific deterrence.
factors to consider CCO’s about General deterrence?
- The circumstances of the offender. General deterrence may not be an appropriate purpose
or may not be achieved if the offender has particular circumstances that would mean that the sentence or the offending will not deter the general public. For example, if the offender has a particular illness or their circumstances are particularly unique, then this may not necessarily serve as a deterrent to others. - The length of the sentence. Longer sentences may act more as a general deterrent, sending
a strong message to the community that this type of behaviour is not acceptable.
factors to consider imprisonment about Denunciation?
- The length of the sentence. A longer term in prison is likely to send a stronger message.
A shorter term, which may not need to be served at all (because of time on remand, may not send as strong a message. - Communication of the sentence to the public: sentences, including terms of imprisonment, must be communicated to the public in a way that makes people understand that particular types of behaviour are unacceptable and may result in time in jail for others who engage in similar behaviour.
factors to consider imprisonment about Rehabilitation?
- Programs available: whether an offender is rehabilitated may depend on the programs available and whether they are tailored to their individual needs. For example, programs that promote connection to family may be effective, given research that suggests that family and community involvement in rehabilitation can result in better outcomes.
- Whether the offender is willing to participate: voluntary participation is required. An individual who is forced to participate may not be willing to address underlying causes of behaviour, but rehabilitation may be achieved if a person voluntarily participates.
- The offender’s prospects of rehabilitation: the court will generally make comments, as part of sentencing, about the offender’s prospects of rehabilitation. Factors such as remorse and a person’s criminal record can give indications of an offender’s prospects. Lower prospects of rehabilitation might suggest that the offender may be less likely to be rehabilitated, but it may still be possible.
- Whether the offender has any addictions: whether the offender is prepared to face their addictions may be relevant to rehabilitation. For example, if the offender does not address an addiction to drug and alcohol, their prospects of rehabilitation may be lower.
- The length of the sentence: the custodial nature of imprisonment and the restrictions imposed on the offender may mean that rehabilitation is harder to achieve. “Crushing’ sentences may impact on an offender’s prospects of rehabilitation. A shorter prison term may allow a greater focus on rehabilitation and avoid the individual spending a long time in a custodial environment. However, whether a shorter prison term is available or acceptable will depend on the offending and the offender. Having a short non-parole period may also be an incentive for a person to be rehabilitated.
factors to consider imprisonment about Protection?
- The length of the sentence: society will be protected while the offender is in custody. Longer sentences mean a greater time during which the offender cannot harm the community.
Sentences such as indefinite sentences protect the community from particular offenders if they are considered to still be a danger to the community. Shorter sentences are less of a protection. - Circumstances of the offender: these are relevant to determining whether society needs to be, and can be, protected from the offender. If the offender is reluctant to be treated and has many prior convictions, then it is possible that they may harm again once they are released.
- Whether the offender is treated: The community benefits if the offender participates in rehabilitation programs and is treated, as once they are released, the ideal is that they will no longer commit further crimes. This depends on the rehabilitation opportunities and the willingness of the offender to address the reasons for offending. It also depends on other factors, such as whether the offender has a drug addiction and whether drugs are available to the prisoners (in the past, some prisoners targeted for a drug test returned a positive result).
factors of sentencing?
- aggravating factors
- mitigating factors
- guilty pleas
- the impact of the crime on victims, often determined through victim impact statements.
define aggravating factors
facts or circumstances about an offender or an offence that can lead to a more severe sentence
what are aggravating factors?
Aggravating factors are circumstances about the offender or the offence that tend to increase the offender’s culpability and the sentence that they will receive.
Examples of aggravating factors?
- the use of violence, explosives or a weapon when committing the offence
- where the offending was planned or premeditated
- the nature and gravity of the offence (e.g. if the victim suffered a particular type of brutality or cruelty, or the offence involved family violence, or the offence was unprovoked)
- any vulnerabilities of the victim (such as having a disability or being very young, old or frail)
- the offender being motivated by hatred or prejudice against a group of people with common characteristics
- the offence taking place in front of children, or seen by them
- a breach of trust by the offender towards the victim (e.g. the offender was in a position of trust such as a parent who has abused a child or a teacher who has committed a crime against a student)
- prior convictions of the offender
- the offence occurred while the offender was on a CCO, on parole or on bail.
is lack of remorse an aggravating factor?
The courts have long established that a lack of remorse is not an aggravating factor - but remorse can act as a mitigating factor.
define mitigating factors
facts or circumstances about the offender or the offence that can lead to a less severe sentence
what are mitigating factors?
Mitigating factors are circumstances relevant to the offender, the victim or the crime itself, and may decrease the offender’s culpability and lead to a reduction in sentence.
Examples of mitigating factors?
- the offender showed remorse (this can often be demonstrated through the offender’s conduct after the offence, such as cooperating with police, pleading guilty early, or general behaviour at court hearings)
- the offender has no prior criminal history or is of good character
- the offender was acting under duress
- the offender has shown efforts towards rehabilitation while awaiting sentencing, or has good prospects of rehabilitation
- the offender was under personal strain at the time or they have a unique background, which means a lighter sentence should be imposed (e.g. they have had a difficult and violent childhood)
- the effect that prison may have on the offender (e.g. courts have identified that prison may not be suitable for offenders with serious mental health issues)
- the injury or harm caused by the offence was not substantial, or there was no risk to any people
- the offender was young, or had some disability that made them not fully aware of the consequences
- the offender pleaded guilty early
how are aggravating and mitigating factors described?
The Sentencing Advisory Council has described mitigating and aggravating factors as acting like a ‘tug of war’ - mitigating factors pull towards a lighter sentence, whereas aggravating factors pull towards a heavier sentence.
define guilty plea
when an offender formally admits guilt, which is then considered by the court when sentencing
what is considered with guilty pleas?
whether the offender pleaded guilty to the offence and, if so, how far into the case.
what does an early guilty plea mean in sentencing?
A guilty plea 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.
why are guilty pleas considered in senatncing?
- if the offender knows that an early guilty plea is considered in sentencing, it may encourage
them to plead guilty rather than going to trial - an early guilty plea can have significant benefits for the criminal justice system, as well as the prosecution, the victim and their family society, the accused and their family, by avoiding the time, expense and stress of a trial.
- Criminal trials can be particularly traumatic for victims and their families, and an early guilty plea will spare them that trauma.
- A reduction in sentence as a result of an early guilty plea will therefore reward the offender for admitting to the crime that they have committed
what is relation between guilty pleas and their timing?
Generally, the earlier the guilty plea is made, the greater the reduction the court is inclined to give.
If a court imposes a less-severe sentence because the offender pleaded guilty, and the sanction is either a custodial sentence, a CCO for a period of 2 years or more, a fine exceeding 10 penalty units or an aggregate fine (i.e. a total fine given for more than one offence) exceeding 20 penalty units, the court must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.
in sentencing how does the court learn about the impact and personal circumstances of victims?
Often the court will learn about the impact and personal circumstances of the victim through victim impact statements.
what does a victim impact statements contain?
A victim impact statement contains particulars of any injury, loss or damage suffered by the victim as a direct result of the offence. Its purpose is to assist the court when it is deciding on the sentence.
when may a victim impact statement be made?
A victim may make the statement to the court if a person is found guilty of an offence. A copy must
be filed with the court before sentencing. Victims can also give the court medical and psychological reports, which can be attached to their victim impact statements.
how are victim impact statements heard in court?
A victim may request that their victim impact statement be read aloud in open court. This may be done by the victim, or a person whom the victim requests read the statement (and the court approves of that person).
