unit 3 aos 1 p2 Flashcards
roles of the judge and magistrate
- to act impartially
- to manage the trial/hearing
- to decide/oversee the outcome of the case
strengths of a judge/magistrate
- impartial
- ensures both parties have the opportunity to present their case
- can assist self-represented people and accommodate vulnerable people
weaknesses of a judge/magistrate
- decision can be affected by bias, fatigue, etc..
- lack of ethnic diversity
- cannot overly interfere with the case
roles of the jury
- be objective
- listen to and remember the evidence
- understand directions and summing uo
- deliver a verdict
strengths of a jury
- randomly picked
- ensures justice is “seen to be done”
- collective decision-making reduces the possibility of bias
- represents a cross-section of the community
weaknesses of a jury
- unconscious bias
- deliberations are confidential
- may not understand evidence
- can cause delays
- not an accurate representation of the community
roles of the prosecution
- to disclose information to the accused
- to participate in the trial or hearing
- to make submissions about the sentencing
roles of the accused
- to participate in the trial/hearing
- to make submissions about the sentencing
strengths of the parties
- prosecution must disclose all relevant matters to the accused
- both have the opportunity to present their case
- the accused is not obligated to present evidence or say anything during the trial
weaknesses of the parties
- often disclosure is not provided upfront
- the processes involved are complex and difficult to understand without a lawyer
- the right to silence may mean that the truth doesn’t come out
why are lawyers needed?
- a self-represented person lacks objectivity
- a self-represented person lacks the skills/experience to navigate the legal system and test evidence
- the accused directly questioning victims can retraumatize them
- the court/judge cannot assist self-represented people overly
weaknesses of a legal practitioners
- not all legal practitioners have the same skills
- not everyone can afford legal representation
- legal representation alone cannot fully assist the accused
strengths of a legal practitioners
- legal practitioners are experts and help the accused navigate the legal system
- are objective
- avoids the delays which occur when the accused is self-represented
measures in place to address costs
- provision of legal aid through VLA, CLCs, and pro bono work
- committal proceedings filter out weak cases
- plea negotiations resolves criminal cases
measures in place to address time delays
- plea negotiations leading to early plea
- temporary use of judge-alone trials to help with the backlog of cases from the covid-19 pandemic
- ‘online magistrates’ court’ and the investment in digital technology allows for remote hearings which reduces delays
difficulties faced by first nations people
- language barriers (e.g. “kill” = “to hit”)
- direct questioning is seen as impolite
- body language (e.g. direct eye contact)
- cultural taboos (women’s business/men’s business)
- lack of understanding of court procedures
- intergenerational trauma
koori court
- a sentencing court
- aims to reduce overrepresentation of first nations people in the legal system
- informal processes, plain english, elders, smoking ceremony
- only first nations people who plead guilty and live/be charge in the area of a koori court are eligible
measures in place to address cultural differences
- free interpreters
- VLA and CLCs provide legal information in different languages
rehabilitation
- addresses the underlying causes of offending
- helps offenders change attitudes and behaviours
- benefits offenders and the community
- achieved through… CCOs, drug treatment, anti-violence treatments, employment/education training
- only effective if the offender is remorseful
punishment
- designed to penalise the offender
- combined with the purposes of deterence or denunciation
- must be proportionate to the crime
- imprisonment, fines
general deterrence
- deters others from committing offences because they see the consequences
- depends on people knowing the sentence that is being imposed
specific deterrence
- deters a particular offender
- important for offenders with prior offending
denunciation
- the disapproval of the court and society
- seen in cases relating to family violence, motivated by hatred/prejudice
protection
- ensures that the community is safe from further harm
- can be done by removing the offender from the community or by conditions attached to a CCO
- relevant when the offender refuses treatment, doesn’t show remorse, or has significant past offending
fines
a sanction that requires the offender to pay an amount of money to the state
purposes of fines
- punishment
- deterrence
- denunciation
factors to consider when assessing the ability of fines to achieve their purposes
- the financial circumstances of an offender and their ability to pay
- the amount of the fine
- whether the offender is a person or a company
- whether the fine is paid and/or enforced
community correction order
a flexible, non-custodial sanction that the offender serves in the community, with conditions attached to the order
eligibility for a cco
- the offender consents
- the offender has committed a crime punishable by MORE than 5 penalty units
- the offender has not committed a category 1 offence
- the offender has not committed a category 2 offence except in some circumstance
core conditions
- must not commit another offence punishable by imprisonment
- must report to a community corrections centre within two days
- 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 officer
additional conditions of a cco
- unpaid community work
- treatment and rehab
- supervision
- curfew
- alcohol exclusion
- judicial monitoring
purposes of ccos
- rehab
- deterrence
- denunciation
factors to consider when assessing the ability of ccos to achieve their purpose
- the length of the cco
- the core conditions imposed
- the nature of the additional conditions imposed
- the restriction on a person’s liberty
imprisonment
a sanction that involves removing the offender from society a stated period of time and placing them in prison
parole
the supervised and conditional release of a prisoner after the minimum period of imprisonment has been served
non-parole period
the minimum term a prisoner must serve before they can be given parole
concurrent sentence
a sanction that is to be served at the same time as other sentences
cumulative sentence
when sentences are served one after the other
indefinite sentences
a term of imprisonment that has no fixed end date, usually given to the most serious offenders
imposed for when the offender is considered a serious danger to the community
purposes of imprisonment
- protection
- punishment
- denunciation
- deterrence
factors to consider when assessing the ability of imprisonment to achieve its purposes
- the length of the imprisonment term
- the offender’s circumstances
- the nature of the imprisonment term
- communication of the sentence to the public
- programs available
- the offender’s willingness to participate
aggravating factors
facts/circumstances about the offender/crime that can lead to a more severe sentence
examples of aggravating factors
- premeditation
- nature and gravity of the offence
- vulnerabilities of the victim
- hate/prejudice-based motivation
- child witnesses
- prior convictions
mitigating factors
facts/circumstances about the offender/crime that can lead to a less severe sentence
examples of mitigating factors
- remorse
- no prior criminal history
- acted under duress
- efforts towards rehab
- the offender had a traumatic childhood or other unique background
guilty pleas
- guilty pleas at an early stage can reduce severity of sentence
- this encourages the accused to plead guilty which benefits the legal system by reducing costs, saving time, and reducing stress for victims
victim impact statement
a statement made by the victim that is considered by the court during sentencing.
