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Legal studies > Unit 3 AOS 1 (sac 2- POJ & sentencing) > Flashcards

Unit 3 AOS 1 (sac 2- POJ & sentencing) Flashcards

1
Q

role of VLA

A

government agency that provides free legal information to the community and legal advice & representation to those who cannot afford it.
objectives:
- provide legal aid in the most effective, economic & efficient manner
- manage its resources to make legal aid available at a reasonable cost
- provide the community with improved access to justice

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2
Q

assistance VLA can provide to an accused

A
  • free legal info
  • free legal advice
  • duty lawyer services
  • grants of legal assistance
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3
Q

VLA free legal info (assistance for accused)

A

info for all victorians about law, court, processes and legal principles

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4
Q

VLA free legal advice (assistance for accused)

A

Advice available for people charged with an offence in the magistrates court- in person, by video conference or over the phone

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5
Q

VLA duty lawyer services (assistance for accused)

A
  • lawyer on duty who can help people who are in court for a hearing that day.
  • give info about court, legal advice and represent accused
  • prioritise people in custody and first nations people.
  • must satisfy income test.
    > must prove they have a limited income by producing a centrelink or pension card
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6
Q

VLA grants of legal assistance (assistance for accused)

A

Free representation for an accused in court who cannot afford a lawyer.
- magistrates and childrens court
- must satisfy the means test.
> takes into account income, assets & expenses

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7
Q

assistance VLA can provide victims

A

victims will need help with navigating the criminal justice system, getting advice or assistance with obtaining protection orders, advice with financial assistance or compensation
legal aid available includes:
- free legal info
- free legal advice
- duty lawyer services
- grants of legal assistance

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8
Q

VLA free legal info (assistance for victims)

A
  • VLA’s website has info about the law and basic legal processes
  • includes info about going to court as a witness, making applications about family violence & info about financial assistance
  • available to all victims
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9
Q

VLA free legal advice (assistance for victims)

A
  • victims legal service provides advice to victims about how to apply for financial assistance or get compensation from the offender
  • available to victims who need assistance obtaining compensation for loss suffered
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10
Q

VLA duty lawyer services (assistance for victims)

A
  • duty lawyers in the magistrate court for victims of crime seeking a personal safety intervention order.
  • may represent victims in court on the day
  • for victims in most need of legal help, children and adults with a disability prioritised, as resources are limited
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11
Q

VLA grants of legal assistance (assistance for victims)

A
  • available to victims in limited matters, such as to a person applying for a family violence protection order
  • cannot be given to allow a victim to sue an accused
  • state reasonableness test needs to be satisfied
    > considers benefit or detriment the grant will give the person
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12
Q

role of victorian CLC’s

A

provide free legal services, including advice, information and ongoing representation in a case to people who may not be able to access legal services in any other way. also provide legal education to the community
> generalist CLC: provides a broad range of legal services to people in a certain area
> specialis CLC: focuses on a particular group of people or area of law

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13
Q

assistance CLC’s provide to accused people

A
  • basic legal information: online info, basic legal education
  • legal advice & assistance: help people completing forms, letters & applying for grants of assistance from VLA
  • ongoing casework: representation & assistance. CLC’s consider factors such as the type of matter, whether other assistance is available, whether there is a good chance of success & whether the CLC is able to assist
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14
Q

assistance CLC’s provide to victims

A
  • basic legal info: online info
  • legal advice & assistance: help making applications or filling in forms, or obtaining legal advice in person
  • duty lawyer services: in court on the day, for victims seeking a family violence protection order or personal safety protection order
  • ongoing casework: ongoing representation & assistance, mostly in relation to applying for financial assistance or obtaining a family violence protection order
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15
Q

plea negotiations

A

pre-trial discussions between the prosecutor and accused which can result in an agreement being reached between the two parties about charges to which the accused will plead guilty to, in exchange for some concession or agreement by the prosecutor. they encourage early determination without the need for trial
purposes:
- ensure certainty in the outcome of a case (plea of guilt)
- to save on costs, time & resources (avoids the need for trial)
- to achieve a prompt resolution without the stress, trauma and inconvenience of a criminal trial

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16
Q

appropriateness of plea negotiations

A

may only occur if it is in the public interest. factors considered:
- willingness of the accused to cooperate in the investigation or prosecution
- strength of the prosecutions case (evidence)
- willingness of the accused to plead guilty
- time and expense of a trial
- views of the victim

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17
Q

reasons for court hierarchy

A
  • appeals
  • specialisation
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18
Q

appeals (reasons for court hierarchy)

A
  • enables a party who is not satisfied with the outcome of a case to take the matter to a higher court to challenge the decision
  • appellant: the party who appeals against a decision
  • respondent: party against whom the appeal is made.
  • allows for fairness & mistakes to be corrected
  • appellant needs leave (consent) from the court that will hear the appeal
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19
Q

grounds for appeal

A
  • appealing on a question of law (where some law has not been followed)
  • appealing a conviction (can only be appealed by offender)
  • appealing because of the severity/ leniency of a sanction imposed
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20
Q

acquittal

A

where an accused person has been found not guilty
prosecutors cannot appeal an acquittal

21
Q

specialisation (reason for court hierarchy)

A
  • courts develop expertise/ specialisation in certain types of cases
  • this allows minor, less severe cases to be heard in the mag court and more complex, severe cases to be heard in higher courts
  • each court has its own jurisdiction to hear a case for the first time.
    magistrates: summary offences & indictable heard summarily
    county: most indictable offences, appeals from magistrates court on a conviction or sentence
    supreme (trial div): most serious indictable offences, appeals from magistrates on a question of law
    supreme (court of appeal): appeals from county & supreme, & magistrates where chief magistrate decided the case
22
Q

key personnel in a criminal case

A
  • judge/ magistrate
  • jury
  • parties
23
Q

role of the judge

A

oversee the case, make sure procedures are carried out in accordance with court rules, act impartially
role of judges:
- act impartially
- manage the trial or hearing
- decide or oversee the outcome of the case
- sentence an offender

24
Q

act impartially (role of judge)

A
  • judges & magistrates must be unbiased and open minded ensure public confidence in the court system. there also must be no apprehended bias
    –> apprehended bias: belief that a person hearing or observing the case might not bring an impartial mind to the case
25
Q

manage the trial or hearing (role of judge)

A
  • make sure correct court procedure is followed so that there is equal opportunity for parties to present their case
  • ask witnesses questions, recall a witness or call new witness
  • adjust processes to ensure a party isn’t disadvantaged
  • make decisions during the trial, such as whether evidence is to be permitted, excluded or admissible
    –> evidence must be relevant to the issues in dispute
    evidence that is not admissible:
    > hearsay evidence: when a witness relies on something someone else has said about a situation
    > evidence of an opinion
26
Q

decide or oversee the outcome of the case (role of judge)

A
  • jury decides on guilt
  • judge ensures the jury understands their role & summarising the case
  • gives directions to the jury to ensure a fair trial
  • magistrate will have the role of deciding whether the accused is guilty in the magistrates court
27
Q

sentence an offender (role of judge)

A
  • after an accused is found guilty or pleads guilty, the case is set down for a plea hearing, where the judge will hear from both parties and can hear victim impact statements - procedural fairness
  • judge or magistrate then hands down a sentence
28
Q

role of the jury

A

BE OBJECTIVE
- unbiased & bring an open mind
- must have no connection to any of the parties
- must make their decision based on facts & not their own biases
LISTEN TO & REMEMBER EVIDENCE
- make sense of all the evidence
- concentrate on what is happening
- must not undertake its own investigations
UNDERSTAND DIRECTIONS & SUMMING UP
- judge gives directions at the end of a trial about issues & sums up the case
- jury can ask questions
DELIVER A VERDICT
- must deliberate and form an opinion about which parties arguments they believe
- aim for a unanimous verdict, majority verdict may be accepted

29
Q

roles of the prosecution in a criminal case

A

the party bringing the case to court, they present the case to the jury or magistrate & let them decide on guilt
- roles:
> disclose info to the accused- such as names of witnesses and an material that may assist the accused’s case
> participate in the trial or hearing- present opening address, evidence, cross examining witnesses & make a closing address
> make submissions about sentencing- inform the court about anything relevant to sentencing during plea hearing once the accused is found/pleads guilty

30
Q

roles of the accused in a criminal case

A

if the accused is represented by a legal practitioner, they will perform these roles
- participate in the trial or hearing- presenting opening address, presenting evidence that supports their case, cross-examining witnesses, making closing address after the prosecution
- make submissions about sentencing- to try to obtain the least possible sentence

31
Q

the need for legal practitioners in a criminal case

A

a person charged with a criminal offence requires legal practitioners to represent them
- a person representing themselves lacks the skill & experience to navigate the criminal justice system
> procedures such as plea negotiations, the trial process & examining witnesses
- having legal practitioners avoids a situation where the accused is directly questioning witnesses (victim) in traumatic cases
* not everyone can afford a lawyer, and CLCs and VLA cannot help everyone

32
Q

impact of costs on the ability to achieve the principles of justice

A
  • main costs are the costs of lawyers to provide legal representation or advice
    –> mostly impact the accused, reducing enagement with the justice system (access and fairness), as they will have to present their own case
  • although VLA is used to address costs, a large part of the community is not eligible for legal aid due to increasing demand, so there are many self-represented parties
33
Q

measures to address costs

A
  • free legal aid through VLA and CLCs
  • plea negotiations can avoid costs as they eliminate the need to go to trial
  • some people can obtain pro bono legal representation
34
Q

impact of time on the ability to achieve the principles of justice

A
  • an accused has the right to be tried without unreasonable delay, delays should be avoided
    > court delays such as gathering evidence, interviewing witnesses, determining what happened & what charges should be laid
35
Q

measures to address delays

A
  • plea negotiations reduce the need for trial
  • remote hearings, some people can appear by video rather than in person
36
Q

impact of cultural differences on the achievement of the principles of justice

A

cultural differences:
- lack of knowledge of the legal system
- lack of understanding of the english language
- cultural misunderstandings
- failure of the legal system to account for differences
> different cultural groups, such as people who’s first language is not english, or first nations people, can find it difficult to navigate the legal system
> cultural differences between FN and non-indigenous people are not always understood by the court system, such as language barriers, cultural taboos and a lack of understanding of court processes

37
Q

measures to address cultural differences

A
  • koori court can address challenges faced by first nations people
    > more informal and conducted in a culturally appropriate way
  • the use of interpreters in court for people who have difficulty understanding the english language
38
Q

sanctions

A
  • fines
  • imprisonment
  • CCOs
39
Q

fines

A
  • an amount of money to be paid to the state
  • two main purposes are punishment and deterrence
  • level 2 = highest, 12 = lowest, each level refers to a number of penalty units
  • 1 penalty unit = $192.31
  • level 1 crimes are the most serious offences, so a fine cannot be ordered
  • when determining the amount of a fine, the court considers:
    > financial circumstances & the burden that its payment will impose
    > whether other orders have been made such as taking offenders property or ordering them to pay compensation
    > any loss, destruction or damage to property
    > value of any benefit to the offender as a result of the offence
40
Q

CCO’s

A
  • a supervised sentence that allows an offender to remain in the community whilst serving the sanction
  • includes certain ‘core’ conditions (eg. can’t leave victoria without permission, must report to CCO officer)
  • at least one additional condition (eg. unpaid community work, treatment & rehab)
  • ‘tailor made sentencing’, as it gives offenders an opportunity to stop the behaviour & undergo treatment or programs.
  • can only be imposed for offences punishable by more than 5 penalty units.
  • cannot be imposed for category 1 or 2 offences
  • main purposes are deterrence, rehabilitation, denunciation.
41
Q

imprisonment

A
  • the most severe sentence which removes the offender from society, losing their freedom and liberty
    parole: supervised & conditional release of an offender after the minimum sentence has been served
    non-parole: the minimum term a prisoner must serve before they are eligible for parole.
  • achieves punishment, protection, deterrence and denunciation, since it is the most serious sancton & results in loss of liberty
  • rehabilitation can be achieved in some circumstances
42
Q

types of sentences

A
  • cumulative: where two sentences are imposed and are to be served one after the other
  • concurrent: where one sentence is to be served at the same time as one or more other sentences
  • indefinite: a term of imprisonment that has no fixed end date, usually for the most serious offences.
43
Q

purposes of sanctions

A
  • rehabilitation: designed to reform an offender to prevent them from committing offences in the future - CCO and imprisonment
  • punishment: penalise the offender & show society that criminal behaviour will not be tolerated - fines & imprisonment
  • deterrence: general- discourage other people in the community from committing similar offence
    specific- discourage the offender from future offences - fines, imprisonment, CCO
  • denunciation: demonstrate the court & communities disapproval, sometimes by imposing a harsher sentence. - imprisonment
  • protection: safeguard the community from an offender - imprisonment (remove from community), CCOs (keeps them busy)
44
Q

sentencing factors

A

factors taken into account when deciding an appropriate sanction
- aggravating
- mitigating
- guilty pleas
- victim impact statements

45
Q

aggravating factors & examples (sentencing factor)

A

circumstances that can increase the seriousness of an offence & the sentence that the offender will receive
- the use of violence, explosives or weapons when committing the offence
- nature & gravity of the offence
- the offence taking place in front of children
- prior convictions

46
Q

mitigating factors & examples (sentencing factor)

A

circumstance that may reduce the seriousness or the offenders culpability & lead to a reduced sentence
- the offender showing remorse
- no prior criminal history or is of good character
- acting under duress
- the injury or harm caused was not substantial

47
Q

guilty pleas (sentencing factor)

A
  • when the offender pleads guilty before trial or early in the trial, can result in a reduced sentence
  • the earlier they plead guilty, the greater reduction in sentence
  • considered in sentencing because:
    > if they know what a guilty plea is, they may be encouraged to plead guilty rather than go to trial
    > benefits the justice system, prosecution, victim & family, society and the accused because it avoids the time, cost and stress of
    > spares the victim trauma
    > rewards the offender for admitting to the crime
48
Q

victim impact statements (sentencing factor)

A
  • a statement by a victim that is considered by a court when sentencing about any injury, loss or damage suffered as a resultof the offence. assists the court in delivering a sentence
  • court considers the impact of the offence on the victim, & the victims personal circumstances

Legal studies (12 decks)

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