Unit 3 AOS 1 SAC #2 Flashcards
What are plea negotiations (Explain)
Informal Negotiations taken between the accused and the prosecution about the chargers laid upon the accused. Can result in a agreement between two party’s where they accused pleads guilty. (both summary and indictable )
Negotiations usually begin when accused/ lawyer indicates to the prosecution that they are willing to discuss charges, and are conducted on a ‘without prejudice’ basis
What is the ‘without prejudice basis’
Means that any offer made by either party in a plea negotiation cannot be used against them, if negotiations are not successful
Therefore accused may be free to negotiate with prosecutor without the fear that what is said in the negotiations will be used against them at trial or hearing if negotiations fail
Purposes of plea negotiations
- Ensuring a gulity plea to the charges laid upon the accused with the sanction reflecting the crime committed
- Helps make the proceedings go faster with the cost, time, stress trauma and inconvenience of a criminal trial taking place
Can the prosecutors give a sanction if a plea deal has been formalized
No prosecutors do not determine sanctions, courts have the power to determine the sanction placed upon the accused after the plea deal. The court will be informed of the guilty plea and impose a sanction fitting the agreed upon deal in the plea negotiation
what are some agreements between the prosecution and accused following plea negotiations
- Accused pleads guilty to fewer charges, with remaining charges not proceeding
- Accused pleads guilty but an agreement is reached about the facts that the plea is based upon (facts of the case)
- Accused pleads to a lesser charge (charge with a lower maximum penalty)
Strengths and weaknesses of plea negotiations
Strengths
- Accused may receive a reduced sentence because of a plea of guilty before trial
- Plea negotiations help the community by saving time, cost, stress of the party’s involved in a criminal proceedings
Weaknesses
- Community and victim may feel like the accused is being let off or getting a lenient sentence that doesn’t reflet the crime
- Self represented may feel pressured to accept deal even if evidence is not strong cause they got no legal advice
What are some appropriate situations for plea negotiations
- Whether the accused is ready and willing to coroporate and/or plead guilty
- Time/expenses of a trial
Each court has it owns jurisdiction to hear criminal cases, Outline the two types of jurisdictions
Original Jurisdiction The power of a court to hear a case for the first time
Appellate jurisdiction The power of a court to hear a decision that ha been appealed on a particular ground (usally faced in higher courts such as court of appeal or from magistrates to county)
What is the order of the court hierarchy
- High court of Australia
- Supreme court of Victoria (appeal division)
3.Supreme court of Victoria (Trial division) - County court of Victoria
- Magistrates court (coroners and childrens court)
What specialization does the supreme court both appeal and trial division have
Appeal- Specializing in determining criminal appeals in instantiable offences has expertise in sentencing principle
Trial- Hears most serious indictable offence (murder and manslaughter) and will have developed its own specialization in those crimes and element of each crime
Specialization of the county court and magistrates court
County- Expertise in hearing particular types of indictable offences (cases involving sexual assault and theft )
Magistrates- Familiar with summary offence that need to be dealt with quickly and efficiently (drink driving and traffic offences )
What are appeals
An application to have a higher court reviewing a ruling.
The party that appeals the decision is referred to as the appellant and other party as the respondent.
What are some grounds for appeals
- On a question of law (some law has not been followed) ex court has allowed to hear admissible evidence)
- Appealing a conviction
- Appealing because of the severity of a sanction imposed
Responsibility of a Judge
Sentencing the offender, Decides question of law, Directs the Jury
Decides the admissibility of evidence
A judge must act impartially and make sure not to Favour any side and to have no association with the prosecution or accused
Role and responsibility of the jury
- Be objective
- Listen to and remember the evidence
- Understanding direction and summing up
- Deliver a verdict
What responsibility’s do both party’s have in the court proceeding
- Each party has control over the way the case will be presented, but must always comply with their responsibilities and court rules direction and order
- Giving an opening address
- present the party’s case
- give closing address
- attending trial
- research the law
- no bias
2 types of legal practitioners
- Solicitors and barristers
What do Solicitors and barristers do
Solicitors provide administrative support to the judge and both parties which can happen before and during the trial
Barristers present the case to court and represents both party’s by arguing the prosecutions case and presenting the defenses evidence
What are 3 types of sanctions
- Fines
- Imprisonment
- Community correction orders (CCO)
What are the reasoning for sanctions
- Just Punishment- To punish the offender in a matter that is just, not an unfair sanction
- Deterrence- To deter the offender or others from committing the same or similar offences
- Rehabilitation- To establish the conditions that would alter or modify the behavior of an individual
- Denunciation- To demonstrate the courts condemnation of the particular type of behavior
- Community protection
What does the court need to take into consideration when determining a sanction
- Max and min penalty for offence
-Nature and gravity of offence - If offender has shown remorse
- History of prior offending
Main type of prison sentencing with multiple charges
Concurrent sentencing- Refers to when an offender has committed multiple crimes served at the same time
Cumulative sentence- When an offender has committed multiple crimes and needs to face the sanctions for those crimes one after the other
Define Imprisonment
Refers to a sanction that involves removing the offender from society for a stated period of time and placing them in prison
Usually used as a last resort (individual removed from society without liberty and freedom)
Define a CCO
A community correction order is a non- custodial sentenced served in the community intended to being flexible
Define fine
A sanction where offender must pay a monetary value to the state
What is parole
Is a conditional release of a prisoner after min period has been served
