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Year 12 VCE Legal Studies > Unit 3: Area of Study 1 - The Victorian Criminal Justice System > Flashcards

Unit 3: Area of Study 1 - The Victorian Criminal Justice System Flashcards

1
Q

Principles of Justice

A
  • Fairness
  • Equality
  • Access
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2
Q

Fairness in the Criminal Justice System

A

Is where an individual has a fair and unbiased hearing

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3
Q

How Fairness is Upheld in the Criminal Justice System (List 2)

A
  • By having an impartial Adjudicator
  • By understanding Court processes
  • Having the opportunity to Appeal a case
  • The availability of legal representation
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4
Q

Equality in the Criminal Justice System

A

Is how all people should be treated equally under the law and have an equal opportunity to present their case

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5
Q

How Equality is Upheld in the Criminal Justice System (List 1)

A
  • The use of a Judge and Jury

- The extent to which the law applies to everybody

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6
Q

Access in the Criminal Justice System

A

Is how people should be able to understand their legal rights and have their case heard in a Court

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7
Q

How Access is Upheld in the Criminal Justice System (List 2)

A
  • Plea Negotiations
  • Sentence Indications
  • Being able to have your case heard without long delays
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8
Q

Parties in a Criminal Case

A
  • Prosecution

- Defence

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9
Q

Prosecution

A

Is the party who brings the Criminal Case to Court. This is the Crown

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10
Q

Accused

A

The person who is charged with a Criminal Offence

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11
Q

Types of Criminal Offences

A
  • Summary Offences

- Indictable Offences

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12
Q

Summary Offences

A

Minor Criminal Offences

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13
Q

Court that Hears Summary Offences

A

Magistrate’s Court

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14
Q

Is a Jury Present when Hearing Summary Offences?

A

No

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15
Q

Name of the Final Hearing when Summary Offences are committed

A

Hearing

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16
Q

Examples of Summary Offences

A
  • Common Assault

- Traffic Offences

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17
Q

Sanctions for Summary Offences

A
  • Fines

- Short Terms of Imprisonment

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18
Q

Indictable Offences

A

Are serious Criminal Offences

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19
Q

Courts that Hear Indictable Offences

A
  • County Court

- Supreme Court

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20
Q

Is a Jury Present when Hearing Indictable Offences?

A

Yes, if the Accused pleads ‘Not Guilty’

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21
Q

Name of the Final Hearing when Indictable Offences are Committed

A

Trial

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22
Q

Examples of Indictable Offences

A
  • Murder

- Rape

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23
Q

Sanctions for Indictable Offences

A
  • Large Fines

- Long Prison Sentences

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24
Q

Indictable Offences Heard Summarily

A

Is an Indictable Offence that is heard in the Magistrates’ Court

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25
Q

Examples of Indictable Offences Heard Summarily (List 2)

A
  • Theft
  • Robbery
  • Burglary under $100,000
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26
Q

Sanctions for Indictable Offences Heard Summarily

A
  • Fines

- Short Terms of imprisonment

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27
Q

Burden of Proof

A

Is the party in a case who has the responsibility to prove the guilt of the Accused

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28
Q

Who has the Burden of Proof in a Criminal Case?

A

The Prosecution

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29
Q

Standard of Proof

A

Is the level of confidence in the evidence of the case that is required

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30
Q

What is the Standard of Proof in a Criminal Case?

A

Beyond a Reasonable Doubt

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31
Q

What does Beyond a Reasonable Doubt Mean?

A

Beyond a Reasonable Doubt means that the decision must be free from all reasonable doubts. All (or most) Jurors must agree that the Standard of Proof is Beyond a Reasonable Doubt

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32
Q

Presumption of Innocence

A

Is how all Accused persons are assumed innocent until or if they are proven guilty

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33
Q

Ways that the Presumption of Innocence is Upheld

A
  • The Accused having the Right to Silence

- The Burden of Proof resting with the Prosecution

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34
Q

Rights of the Accused

A
  • The right to be tried without unreasonable delay
  • The right to a fair hearing
  • The right to trial by Jury
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35
Q

The Right to be Tried Without Unreasonable Delay

A

Is how all accused have the right to have their matter heard within a reasonable timeframe

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36
Q

Sources of the Right to be Tried Without Unreasonable Delay

A

Sections 21 and 25 of the Victorian Charter of Human Rights

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37
Q

Consequences of Failing to Uphold The Right to be Tried Without Unreasonable Delay

A
  • “Justice too long delayed is justice denied”

- Witnesses may forget key information due to the length between the incident and the Hearing/Trial

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38
Q

The Right to a Fair Hearing

A

Is how the Accused has the right to have their case heard by a competent, independent and impartial Court

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39
Q

Source of The Right to a Fair Hearing

A

Section 24 of the Victorian Charter of Human Rights

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40
Q

The Right to Trial by Jury

A

Is how under the Criminal Procedure Act, a trial by Jury must take place if the Accused has pleaded Not Guilty

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41
Q

Sources of The Right to Trial by Jury

A

The Australian Constitution and Victorian Statute Law

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42
Q

How the Rights of the Accused Upholds the Principles Justice: Fairness (List 2)

A
  • Quicker Resolution: The right to be tried without unreasonable delay upholds Fairness as the Accused people/s or victim/s do not have to endure prolonged anxiety and stress of waiting for the resolution of their case
  • Fair Trial: The right to a fair trial upholds fairness as Accused persons are given the best possible opportunity to defend charges against them and test the accuracy of evidence presented by the Prosecution, for victims to have their say and for legal representatives to build the best case for their clients
  • Unbiased: The right to a fair hearing ensures decisions are based on the law and the facts, not on bias or prejudice
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43
Q

How the Rights of the Accused Upholds the Principles Justice: Equality (List 2)

A
  • Minimises Delays: The right to be tried without unreasonable delay upholds Equality as all Accused persons, irrespective of the circumstances of their case, the crime they are accused of or their personal characteristics, will not have to endure unreasonable delays
  • Same Process for all Accused: The right to a fair hearing upholds Equality as the same fundamental rules of evidence and procedure apply for all Accused persons
  • Jury Trials: Equality is achieved as all Accused persons have the right to be tried by a Jury of their peers if they have been accused of an Indictable Offence, regardless of their personal circumstances
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44
Q

How the Rights of the Accused Upholds the Principles Justice: Access (List 2)

A
  • Timely: The right to be tried without unreasonable delay upholds Access because if cases are resolved in a timely manner, case backlogs may be relieved, enabling other matters to move through the Criminal Justice System more swiftly
  • Just Outcome: The right to a fair hearing upholds Access as Accused persons are given the best possible chance to achieve a just outcome
  • Community Involvement:
    The right to trial by jury upholds Access as members of the public are able to engage with and participate in the Criminal Justice System, all Accused persons may access Jury trial, as the state bears the cost
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45
Q

Rights of the Victim

A
  • The Right to give Evidence as a Vulnerable Witness
  • The Right to be Informed about Proceedings
  • The Right to be Informed of the Likely Release Date of the Accused
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46
Q

Vulnerable Witness

A

Is a person who is under the age of 18, suffers from a mental disability, is an alleged victim of a sexual offence or is an alleged victim of family violence

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47
Q

Victims’ Register

A

Is a database that is maintained by the state of Victoria to provide the victims of violent crimes with relevant information about prisoners whilst they are in prison

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48
Q

The Right to Give Evidence as a Vulnerable Witness

A

Is how certain victims who are witnesses to a crime may be entitled to be vulnerable and therefore able to give evidence to the Court in alternative ways

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49
Q

Alternative ways Vulnerable Witnesses Can Give Evidence (List 2)

A
  • The Witness can give evidence from another location via CCTV
  • Screens can be erected so that the Witness cannot see the accused in the Courtroom
  • The Court may approve a ‘support person’ to sit beside the Witness
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50
Q

Sources of the Right to Give Evidence as a Vulnerable Witness

A

Provisions of the Criminal Procedure Act and the Evidence Act

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51
Q

The Right to be Informed About Proceedings

A

Is how the Police and OPP must inform the Victim about their rights to support services ad the progress of the investigation. Once the Prosecution has started, they must inform the Victim of any charges and how they can find out details of the trial, including the outcome

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52
Q

Sources of The Right to be Informed About Proceedings

A

Sections 7, 8, 9 of the Victims’ Charter

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53
Q

The Right to be Informed of the Likely Release Date of the Accused

A

If a person is a Victim of a criminal act of violence and are on the Victims’ Register, they may receive information about the likely release date of the prisoner

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54
Q

Source of The Right to be Informed of the Likely Release Date of the Accused

A

Section 17 of the Victims’ Charter

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55
Q

Parole

A

Is the supervised and conditional release of a prisoner after a minimum prison term has been sentenced

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56
Q

If a Victim is Placed on the Victims Register, they may be Entitled to Know Information Such as (List 2)

A
  • The length of the Offender’s sentence
  • Earliest Parole date
  • Changes to the length of the Offender’s sentence
  • Escape from Prison
  • Offender’s death during Prison
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57
Q

Institutions that are Available to Assist an Accused Person

A
  • Victorian Legal Aid (VLA)

- Community Legal Centres (CLC’s)

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58
Q

Victorian Legal Aid (VLA)

A

Is a Government agency which provides free legal advice and information regarding a range of legal matters at low or no cost

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59
Q

Duty Lawyer

A

Is a Lawyer that gives advice (and sometimes representation) at the Magistrates’ and/or Children’s Court for minor matters

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60
Q

Means Tests

A

Is a test which assess the applicant’s income, assets and expenses to see if they qualify for assistance

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61
Q

Income Test

A

Is a test to see whether the applicant’s income is low enough to qualify for assistance

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62
Q

Roles of Victorian Legal Aid (List 2)

A
  • Provide free legal information
  • Provide free legal advice for eligible people such as the disabled, homeless, under 18 and that do not have enough money
  • Provide a Duty Lawyer
  • Undertakes Income Tests
  • Undertakes Means Tests
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63
Q

Strengths of Victorian Legal Aid in Promoting Fairness (List 1)

A
  • VLA’s eligibility criteria for a grant of legal assistance/legal representation ensure those most at risk of a serious sanction are at least able to afford a private lawyer and are provided with legal representation
  • The provision of Duty Lawyers in the Magistrates’ Court provides advice and assistance to some Accused persons, ensuring a Fairer hearing for those individuals
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64
Q

Weaknesses of Victorian Legal Aid in Promoting Fairness (List 1)

A
  • VLA’s strict eligibility criteria and a very tight budget means it is only able to provide legal advice and representation to a small number of Accused persons, many Accused persons charged with Criminal Offences do not meet VLA’s eligibility criteria but cannot afford a private Lawyer; as a result, VLA is limited in its ability to ensure Fairness across the Criminal Justice System
  • Duty lawyers are not available to all accused persons in the Magistrates’ Court
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65
Q

Strengths of Victorian Legal Aid in Promoting Equality (List 1)

A
  • VLA’s eligibility criteria ensure legal support is provided to those most in need regardless of their personal characteristics such as race, religion, gender etc. This promotes Equality in the administration of Justice
  • All members of society regardless of their personal characteristics such as wealth, religion etc. can access all of VLA’s published information
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66
Q

Weakness of Victorian Legal Aid in Promoting Equality

A
  • The strict eligibility criteria for legal assistance means that many accused persons are unable to get support from VLA and are therefore unrepresented. VLA can only represent the very poor since the rich can get their own personal Lawyers. The people in the middle may need to represent themselves since they don’t fit in the criteria
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67
Q

Strength of Victorian Legal Aid in Promoting Access

A

VLA publishes free information about Criminal Proceedings and the Court System, improving many Accused Persons’ understandings of the Legal System and how to defend the alleged charges

68
Q

Weaknesses of Victorian Legal Aid in Promoting Access (List 1)

A
  • Information published by VLA about the Legal System is general and limited to some disputes. Because of this, it promotes the understanding of the Legal System for only some Accused Persons
  • A lot of VLA’s information about the Criminal Justice System is provided online; those with low incomes, the homeless or the elderly may not have access to a device that is connected to internet and because of this, they cannot get any legal advice
69
Q

Community Legal Centres

A

Community Legal Centres are independent community organisations that provide free legal services to the public

70
Q

Roles of Community Legal Centres (List 2)

A
  • Provides basic information (mostly online)
  • Provides initial Legal advice in the Centre or over the phone
  • Provides Duty Lawyers at the Court for urgent matters
71
Q

Strength of Community Legal Centres in Promoting Fairness

A

Even though the information that is provided by CLC’S is limited, as an accused person who has sought advice from a CLC is in a better position to present their Defence in its best light, promoting Fairness

72
Q

Weakness of Community Legal Centres in Promoting Fairness

A

CLC’s often provide legal advice and casework for relatively minor Criminal Matters and cannot assist those who have committed Indictable Offences

73
Q

Strength of Community Legal Centres in Promoting Equality

A

CLC’s often provide an Interpreter service to ensure those from non-English speaking backgrounds can access Legal Assistance in a language they understand, promoting Equality in the Justice System

74
Q

Weakness of Community Legal Centres in Promoting Equality

A

As CLC’s usually provide limited assistance to those charged with Summary Offences and do not help those people who have been charged with Indictable Offences

75
Q

Strength of Community Legal Centres in Promoting Access

A

CLC’s provide free Legal Advice and information, meaning education on the Justice System is accessible to all people within the CLC’s local community

76
Q

Weakness of Community Legal Centres in Promoting Access

A

Relatively few CLC’s are located in rural parts of Victoria, limiting Access to Legal Information and advice for those in remote areas

77
Q

Committal Proceeding

A

Is a pre-trial procedure that aims to determine the Guilt of an Accused person. This occurs in the Magistrates’ Court when the Accused has been charged with one or more Indictable Offences and has pleaded ‘Not Guilty’ or has not pleaded at all yet

78
Q

Committal Hearing

A

Is the main and final stage of Committal Proceedings, which allows the Accused to question the Prosecution’s Witnesses and make submissions about Charges. If the Magistrate determines there is sufficient evidence, the Accused will stand Trial. If the Magistrate determines there is not enough evidence, the accused will be allowed to go free. However, they can be brought back if more evidence is found

79
Q

Purposes of Committal Hearings (List 2)

A
  • To determine whether a charge for an Indictable Offence is appropriate to be heard and determined Summarily
  • To decide if there is enough evidence to support a Conviction
  • To find out if the accused plans to plead Guilty or Not Guilty
  • To ensure a Fair Trial, if the matter proceeds to Trial
80
Q

Strengths of Committal Proceedings (List 2)

A
  • Helps filter out weak cases
  • Allows the accused to be informed of the Prosecutor’s case against them
  • The Onus is on the Prosecutor to establish enough Evidence
  • It may result in withdrawal or combination of Charges
  • It gives the Accused the opportunity to test the strength of the Prosecutor’s case
81
Q

Weaknesses of Committal Proceedings (List 2)

A
  • Complicated process and can be unfair for an unrepresented party
  • They can be expensive
  • They can add to delays
  • They can contribute to stress and inconvenience of the Accused, Victims and families
  • It may be considered unnecessary for stronger cases
82
Q

How Committal Proceedings Achieves Fairness

A

Committal Proceedings filters out weaker cases, allowing efficiency in the Courts, which ultimately reduces time delays

83
Q

How Committal Proceedings Does not Achieve Fairness

A

If the Magistrate finds insufficient evidence, the Department of Public Prosecutions may still commit the Accused to stand trial

84
Q

How Committal Proceedings Achieves Equality

A

Committal Proceedings allow both Parties to be informed of the evidence that is against them

85
Q

How Committal Proceedings Does not Achieve Equality

A

The process of Committal Proceedings is very difficult without Legal Representation, which makes it unequal compared to the Prosecution who have access to a panel of experienced Lawyers

86
Q

How Committal Proceedings Achieves Access

A

Committal Proceedings enhances Access to the Legal System as the Accused sees all the evidence against them to decide on their Plea

87
Q

How Committal Proceedings Do not Achieve Access

A

The processes surrounding Committal Proceedings is hard to navigate if the Accused is unrepresented

88
Q

Plea Negotiations

A

Is an informal process between the Accused, the Lawyer and the Prosecution where negotiations are made for the Accused to agree to Plea Guilty to fewer Charges or a Lesser Charge such as agreeing to Plea Guilty to Manslaughter instead of Murder

89
Q

Purposes of Plea Negotiations

A
  • To resolve a case efficiently and secure a Conviction

- To avoid the stress of a Trial for those involved, such as a Vulnerable Witness

90
Q

When are Plea Negotiations Appropriate? (List 2)

A
  • When the Accused is willing to cooperate
  • When the Prosecution has a strong case
  • When Witnesses are willing to provide Evidence
91
Q

Strengths of Plea Negotiations (List 2)

A
  • They save the costs that are associated with a full Trial or Hearing
  • It ensures a quick determination of Criminal Cases
  • Victims and others are saved from the trauma, inconvenience and distress of the trial process
  • They will lead to a certain outcome
92
Q

Weaknesses of Plea Negotiations (List 2)

A
  • Victims and the community may feel the accused’s ‘let off’ or will get a lenient sentence
  • The Accused may feel pressured into accepting a deal
  • It avoids the need for the Prosecutor to prove the case ‘Beyond a Reasonable Doubt’
  • Negotiations are held privately and do not need to be disclosed
  • If the Negotiations do not succeed, either Party may get an insight into the other Party’s case
93
Q

Sentence Indications

A

Are given out by the Court to let the Accused know what their Sanction is likely to be if they are to Plead Guilty. This can be used for both Summary and Indictable Offences if the Accused applies and the Prosecution agrees. They cannot be used against the Accused if they proceed with the Trial and the Sentence imposed must not be more severe than the Indication

94
Q

Purposes of Sentence Indications

A
  • They provide a level of certainty for the Accused about what their sentence is likely to be
  • It reduces the time that is spent in Court, and therefore costs and resources by encouraging an early Guilty Plea
95
Q

When are Sentence Indications Appropriate?

A
  • When the Accused applies for the Indication
  • When there is sufficient information
  • When the Prosecution consents
96
Q

The Victorian Court Hierarchy (From the Bottom to Top)

A
  • Magistrates’ Court
  • County Court
  • Supreme Court (Trial Division)
  • Supreme Court (Court of Appeal)
  • High Court of Australia
97
Q

Original Jurisdiction

A

Is the power of a Court to hear a case for the first time

98
Q

Appellate Jurisdiction

A

Is the power of a Court to hear a case on Appeal

99
Q

Criminal Jurisdiction

A

Is the power of a Court to hear Criminal matters

100
Q

Jurisdiction

A

Is the Legal authority of a Court or other Dispute Resolution Bodies to decide the outcome of Legal cases

101
Q

The Reasons for a Court Hierarchy

A
  • Specialisation of Courts
  • Appeals
  • Administrative Convenience
102
Q

Specialisation of Courts

A

Is when Courts specialise in an area and gain expertise and efficiency in that area. For example, less serious cases are heard in the Lower Courts, such as the Magistrates’ Court whilst the more serious cases are heard in the Higher Courts, such as the Supreme Court

103
Q

Appeals

A

Appeals occur when a Party is unhappy with the outcome of their case. Grounds of Appeal can include a Question of Law, a Conviction or a Sanction. An Appellant may need to seek leave for their Appeal when Appealing to the Court of Appeal and their High Court

104
Q

Original Jurisdiction of the Magistrates’ Court (List 2)

A
  • Summary Offences
  • Indictable Offences Heard Summarily
  • Committal Proceedings
  • Bail Applications
  • Warrant Applications
105
Q

Appellate Jurisdiction of the Magistrates’ Court

A

No Appellate Jurisdiction

106
Q

Original Jurisdiction of the County Court

A

Hears Indictable Offences except Murder, Attempted Murder

107
Q

Appellate Jurisdiction of the County Court

A

Hears Appeals from the Magistrates’ Court on Conviction or Sentence (in limited circumstances

108
Q

Original Jurisdiction of the Supreme Court (Trial Division)

A

Hears serious Indictable Offences including Murder and Attempted Murder

109
Q

Appellate Jurisdiction of the Supreme Court (Trial Division)

A

Hears Appeals from the Magistrates’ Court on Points of Law, Conviction or Sentence (in limited circumstances)

110
Q

Original Jurisdiction of the Supreme Court (Court of Appeal)

A

No Original Jurisdiction

111
Q

Appellate Jurisdiction of the Supreme Court (Court of Appeal)

A

Hears Appeals from the County Court or the Supreme Court (Trial Division)

112
Q

The Judge

A

Is an impartial adjudicator who is appointed to hear Trials or Hearings

113
Q

The Responsibilities of Judges in a Criminal Case (List 2)

A
  • Managing the Trial through Case Management
  • Giving Directions to the Parties
  • Asking Witnesses questions
  • Determining the Verdict (If there is no Jury)
  • Determining the Remedy
114
Q

The Jury

A

Criminal Trials in both the County and Supreme Courts require a Jury which consists of 12 randomly selected Jurors

115
Q

The Responsibilities of the Jury in a Criminal Case (List 2)

A
  • Being objective when partaking in a case
  • Listening to and remembering the evidence of the case (Jurors are allowed to take notes in a notebook)
  • Listening to the Judge’s direction and their summing up of a case
  • Delivering a verdict (Guilty or Not Guilty)
  • Keeping deliberations confidential
116
Q

Responsibilities of the Parties in a Criminal Case (List 2)

A
  • Giving opening and closing addresses
  • Making submissions about sentencing
  • Assisting the Judge in Jury matters
117
Q

Legal Practitioners

A

There are two types of Legal Practitioners: Solicitors and Barristers. Solicitors prepare the case, drafts documents and develops evidence about the case whilst Barrister presents the case at a trial

118
Q

Responsibilities of Legal Practitioners in a Criminal Case (List 2)

A
  • Preparing documents and evidence about the case
  • Complying with their duty to the Court
    Presenting their client’s case in the best possible light
  • Not misleading the Court
  • Not presenting false Evidence
119
Q

Sanctions

A

Are penalties that are imposed by a Court if an Accused is found Guilty or Pleads Guilty

120
Q

Purposes of Sanctions

A
  • Rehabilitation
  • Punishment
  • Deterrence
  • Denunciation
  • Protection
121
Q

Purpose of Sanctions: Rehabilitation

A

Is designed to reform an Offender in order to prevent them from committing Offences in the future

122
Q

Ways Courts Rehabilitate an Offender (List 2)

A
  • Imposing a short Jail stay
  • A Sanction without Jail
  • A Sanction that will include treatment
123
Q

Purpose of Sanctions: Punishment

A

Is designed to make the Offender ‘pay’ for their crime

124
Q

Purpose of Sanctions: Deterrence

A

Is designed to discourage people from committing crimes

125
Q

General Deterrence

A

Is aimed at the community in general and to deter them from committing similar Offences

126
Q

Specific Deterrence

A

Is aimed at the Offender to prevent them from committing the same Offence again

127
Q

Purpose of Sanctions: Denunciations

A

Is when there is disapproval of the Offender’s behaviour. For example, the Court may give a harsher sentence for a particularly violent crime to demonstrate disapproval of the behaviour

128
Q

Purpose of Sanctions: Protection

A

Is aimed to safeguard the community from the Offender. Prison is usually the Sanction

129
Q

Types of Sanctions

A
  • Fines
  • Community Correction Order (CCO)
  • Imprisonment
130
Q

Fines

A

Are monetary payments that are ordered by a Court as a penalty for a Criminal Offence. These are expressed in Penalty Units. Fines are paid to the State of Victoria, not to the Victim

131
Q

Purposes of Fines

A
  • To punish the Offence
  • To Deter the Offender
  • Denunciation
132
Q

The Ability of Fines to Achieve their Purposes

A

The more wealthy the Offender is, they Fines will act as only a small Punishment. Additionally, the highest Fine that is available in the Statute may not be very high. Finally, a small Fine may only act as Deterrence to the very poor

133
Q

Community Correction Order (CCO)

A

Is a supervised sentence in the community that includes special conditions such as the the treatment of the Offender and unpaid community work for a certain number of hours

134
Q

Conditions that are Attached to Every Community Correction Order (List 2)

A
  • The Offender must not commit another offence punishable by imprisonment during the term of the order
  • The Offender must report to a specified community corrections centre within two working days of the order coming into force
  • The Offender must report to and receive visits from a Community Corrections Officer
  • The Offender must notify an Officer of a change of address
  • The Offender must not leave Victoria without permission
  • The Offender must comply with any directions of Community Corrections Officers
135
Q

Sentencing Purposes of Community Corrections Orders

A
  • To punish the Offender by limiting their freedom
  • To Rehabilitate them (when it includes treatment for Drugs or Alcohol)
  • May act as Specific Deterrence by the Offender having to do Community Work
136
Q

Factors to Consider when Determining Whether a Community Corrections Order Achieve their Purpose (List 2)

A
  • Whether there is a condition that will achieve the right purpose for the particular type of Offence
  • The most appropriate condition to be imposed, and whether the Court imposes that condition
  • Whether the Offender will comply with the conditions
  • Whether a CCO properly protects the community, where protection is a relevant purpose
  • Whether there is another or better Sanction that will achieve the necessary purposes
137
Q

Imprisonment

A

Is a Sanction that involves removing the Offender from society for a period of time and placing them in Prison

138
Q

Concurrent Sentence

A

Is when the Offender serves 2 or more Sentences at the same time

139
Q

Cumulative Sentence

A

Is when the Offender serves 2 or more Sentences one after the other

140
Q

When Cumulative Sentences Must be Given (List 2)

A
  • When certain Indictable Offences such as Arson occur
  • Where Imprisonment is in default of payment of a Fine
  • When a Prisoner commits an Offence
  • When a person on Parole or Bail commits an Offence
141
Q

Aggregate Sentence

A

Is an overall sentence that may be given out by a Judge, rather than separate Sentences for separate Offences. This Sentence cannot exceed the total that would have been imposed if separate sentences were received for each Charge

142
Q

Indefinite Sentence

A

Is when an Offender has been Convicted by the County or Supreme Court for a serious Offence such as Murder. This can only be imposed if the Offender poses serious danger to the community

143
Q

Purposes of Imprisonment

A
  • Punishment - Losing freedom from society
  • Protection - Dangerous people are removed from society
  • Rehabilitation - Prisoners may undergo for certain Offences
  • Denunciation - A long Prison term demonstrates the disapproval of the Offence
  • Deterrence - Most people don’t want to go to prison and acts as a way for a person to not want to go to Prison once released
144
Q

Types of Sentencing Factors

A
  • Aggravating Factors
  • Mitigating Factors
  • Guilty Pleas
  • Victim Impact Statements
145
Q

Aggravating Factors

A

Are circumstances bout the offender or the offence that can increase the seriousness of the offences. If they are present, a higher sentence is normally imposed

146
Q

Examples of Aggravating Factors (List 3)

A
  • The use of violence, explosives or a weapon when committing an offence
  • Nature and gravity of offence (particularly cruel, unprovoked, pre-planned etc.)
  • Vulnerabilities of the victim (e.g. disability, young, old etc.)
  • Offender motivated my hatred or prejudice against a person or group of people
  • Offence committed in front of children
  • Breach of trust by the offender
  • Offence occurred while the offence is on a CCO or Bail
147
Q

Mitigating Factors

A

Are Factors that relate to the Offender, the Victim or the Offence that reduce the seriousness of the Sentence

148
Q

Examples of Mitigating Factors (List 2)

A
  • The Offender was provoked by the Victim
  • The Offender showed remorse
  • The Offender has no previous Convictions
  • The Offender has cooperated with Police and made full Admissions
  • Injury or harm was minor
  • The Offender was young or had a Disability that made them not fully aware of the consequences
  • The Offender Plead Guilty early
149
Q

Guilty Pleas

A

The Court must consider a Guilty Plea in Sentencing, particularly the timing of the plea (e.g. before or at the start of the Trial)

150
Q

The Sentencing Act says that Guilty Pleas Must be Considered Because

A
  • If an offender knows a Guilty plea is taken into account, it may encourage them to Plea Guilty rather than going to Trial
  • An early Guilty Plea avoids the time, expense and stress of a trial for all Parties that are involved, particularly the Victims and their families
  • The Court must state the amount of the ‘Discount’ for the Guilty Plea
151
Q

Victim Impact Statements

A

Are statements that contain details of loss, injury and damage that was suffered as the result of the Offence. Medical and Psychological reports can also be attached. When sentencing, the Court must take into account the impact and circumstances of the Victim

152
Q

Factors that Affect the Principles of Justice

A
  • Costs
  • Time
  • Cultural Differences
153
Q

Factors that Affect the Principles of Justice: Costs

A

The Costs of Legal Representation is the main Costs that the Accused will endure. If an accused is unable to afford a Lawyer, they may seek assistance from Victoria Legal Aid or a community legal centre. However, with limited funding, many don’t qualify and will be forced to represent themselves

154
Q

How Costs of Legal Representation does not Achieve Fairness

A

If the Accused cannot afford a Lawyer, they may have an unfair result due to their lacking of understanding of Court Procedures and the language that is used in Criminal Trials

155
Q

How the Costs of Legal Representation does not Achieve Equality

A

If Parties cannot afford Legal Representation, they are at risk of not being treated Equally under the Law as they might be up against very skilled Lawyers who understand the Law and the rules of the Court. This places the unrepresented Accused at risk of not being able to perform at the same level as their opponent

156
Q

How the Costs of Legal Representation does not Achieve Access

A

An Accused who cannot pay for Legal Representation may have trouble accessing the Courts, which may result in them having to Plead Guilty to a Crime that they may not have committed because they do not have the means or the ability to Defend their case

157
Q

Factors that Affect the Principles of Justice: Time

A

There are delays in having a matter heard before the Courts as they have to complete a lot of paperwork. The use of Plea Negotiations help reduce these delays significantly by encouraging an early Plea, meaning a faster resolution of the Case

158
Q

Factors that Affect the Principles of Justice: Cultural Factors

A

Cultural-based difficulties include difficulties that are faced by Aboriginal and Torres Strait Islander people such as language barriers

159
Q

Examples of Difficulties that are faced by Aboriginal and Torres Strait Islander People (List 1)

A
  • Understanding and responding to the English language

- They are forbidden to talk about certain things, such as the names of the dead

160
Q

Recent Reforms to the Victorian Legal System

A
  • The Expansion of the Koori Court

- The Implementation of Victim Support Dogs

161
Q

Koori Court

A

Is a division of the Magistrates’, County and Children’s Courts and hear cases just regarding Aboriginal and Torres Strait Islander people when it within their Jurisdiction, consent is given and there is a Guilty Plea

162
Q

The Expansion of the Koori Court

A

A second Koori Court in Warnambool opened in 2019

163
Q

Victim Support Dogs

A

Support dogs were trialed in 2017. The program officially began in 2019. The dogs are trained to support Vulnerable Witnesses in another location or in the Courtroom. Research has found that these dogs significantly reduced the stress of Witnesses, and have been found to need fewer breaks when giving Evidence. Permission must be sought from the Magistrate or Judge to allow the dog to be used. There are now 6 dogs used in the program

164
Q

Recommended Criminal Reforms

A
  • The Continued Expansion of the Koori Court

- Increased Funding for Legal Aid Centres and other Services

165
Q

The Continued Expansion of the Koori Court

A

There are plans to expand the Koori County Court to all locations which have a Koori Magistrates’ Court. The intention is to expand all Koori Court facilities widely throughout Victoria

166
Q

Increased Funding for Legal Aid Centres and other Services

A

The Law Council of Australia conducted a report in 2018 into the state of Justice for Australians who experience disadvantage. One recommendation was to fund additional resources for Legal support services such as Legal Aid and Community Legal Centres. The minimum additional resources should be $390 million per year

Year 12 VCE Legal Studies (4 decks)

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