Week 2 Flashcards
Section 5 Crimes (Sentencing Procedure) Act 1999?
Penalties of imprisonment. “Section 5 Threshold”
Section 21A Crimes (Sentencing Procedure) Act 1999?
Aggravating/Mitigating Factors
Section 3A Crimes (Sentencing Procedure) Act 1999?
Purposes of Sentencing
True or False: The Court can impose a Conditional Release Order AND a fine for the same offence?
False. Section 9 Crimes (Sentencing Procedure) Act 1999
Should Police submit on sentence and suggest an opinion on sentencing range
No, as per Barbaro V The Queen [2014] HCA 2, a Prosecutor can submit on sentence but not on the sentencing range available.
Under what section can a matter be dealt with in the absence of the defendant?
Section 190 Crimes (Sentencing Procedure) Act 1999
Which penalties can’t the court impose on an absent defendant?
Any sentence of imprisonment, ICO, CCO, CRO, non-association/place restriction or intervention program.
True or False: A specified parole period must not exceed 1/3 of the Non-parole period, UNLESS special circumstances exist
True
Section 58 of the Crimes (Sentencing Procedure) Act 1999
Section 58 precludes the local court from imposing consecutive prison terms in excess of 5 years.
Which case law changed the common law definition of “drive”
Savidge v Affleck (1992), 65 A Crim R 96
A driver is pulled over and checks on his licence reveal it expired in April 2015. You propose to charge him with:
a) 53 (3) Drive unlicensed (never held); or
b) 53 (1)Drive unlicensed
53 (3) Drive unlicensed (never held) This is due to his license expiring 5 years ago.
How long is the time frame for an offence to be classed as a second/subsequent offence?
Within 5 years of the CONVICTION date
Name 4 of the major offences
Predatory drive, Neg. drive GBH/Death, police pursuits, fail to submit breath analysis
Name 4 alcohol related major offences
Novice PCA, Special PCA, Low PCA, Mid PCA, High PCA, DUI
Define drive under S4 RTA 2013
Drive includes—
(a) be in control of the steering, movement or propulsion of a vehicle, and
(b) in relation to a trailer, draw or tow the trailer, and
(c) ride a vehicle.
Under common law, does a driver need to have control of all three elements (i.e. steering, control AND propulsion)?
No. Savidge v Affleck (1992) changed the common law to reflect the need to satisfy control over the means of propulsion only.
PCA Categories and ranges
Novice: 0.00 - 0.019
Special: 0.02 - 0.049
Low: 0.05 - 0.079
Mid: 0.080 - 0.149
High: 0.150+
Bruce is driving a car and Tim, his passenger, decides to reef the wheel as a joke. This action causes the car to lose control and hit a wall, killing Bruce. Does Tim qualify as a driver?
No. As per Savidge v Affleck, the determining factor is control over the means of propulsion.
Which Acts can disqualify a licence?
Road Transport Act 2013
Crimes Act 1900
Road Rules 2014
Road Transport (Vehicle Reg.) Regulation 2017
Which drugs show on Draegar
Delta-9-tetrahydrocannabinol
Methylamphetamine
3,4-Methylenedioxymethylaphetamine (Ecstasy)
Cocaine
What is the Road Transport Act definition of Home
There is no definition of Home under the RTA 2013, however the concept has been likened to the previous term, ‘place of abode’
Section 14 Crimes (Domestic & Personal Violence) Act 2007
Offence of contravening an AVO (contravene with violence = jail)
Section 4A Crimes (Sentencing Procedure Act 1999
Domestic Violence Offenders - requirement for full time detention or supervision
Section 4B Crimes (Sentencing Procedure) Act 1999
Domestic Violence Offenders - protection & safety of victims
Which case is the authority for when time is an essential ingredient?
R v Stringer (2000) A Crim R 198
If a defendant is charged under the completely wrong name, how is this remedied?
Issue of a new CAN within the statute of limitations
What is the authority for when information fails to disclose an offence?
Linehan v Australian Public Association (1982)
Who can make a S19 application under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020
Any party (Magistrate, Prosecution OR Defence) - S19 application can ONLY be made in Local Court matters
What are the Section 19 orders under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020
19(a) - Taken to hospital
19(b) - Taken to hospital AND RETURNED
19(c) - Discharged to care of reasonable person
As per Perry v Forbes what are the 4 things the magistrate requires for a S14 application?
- Facts
- Antecedents
- Mental health report of the defendant
- A clear & effective treatment plan
Section 16 Criminal Procedure Act
When amending defects does not affect indictment. e.g. 16(1)(h) happens on an impossible day [i.e. 30 february]
As per S20 of the Criminal Procedure Act, when can an indictment be amended after presentation to the court?
Upon consent from the court OR the accused person
True or false: A person is labelled as mentally if they’re suffering a mental illness at the CURRENT time (i.e. right now)
True. A mentally ill person only has to be suffering mental illness at the current time.
True or false: A mental health treatment plan does not need to address substance abuse if the mentally ill person is a known drug user / alcohol abuser
False. To satisfy the requirements for a S14 dismissal, the mental health treatment plan should address all issues faced by a defendant to reduce the likelihood of re offending
What is the primary objective of S14 of the Mental Health Cognitive Impairment Forensic Provisions 2020
To ensure that the individual can have as normal and satisfying life as possible. This should ensure the community protected adequately from abnormal or threatening conduct of a mentally ill or disordered person (DPP v Sami El Mawas)
Under S15 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020, does being scheduled by police/ambulance go towards the considerations of the magistrate
No. Being subject to a Schedule under S20 (Ambulance) or S22 (Police) is not a factor worthy of consideration by a magistrate.
True or false: If a magistrate discharges someone under S14, this is counted as a conviction.
No. S14 (2) stipulates that “An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise”
What is the function of Section 66 of the Crimes (Sentencing Procedure) Act 1999
Community Safety & Other Considerations
This section stresses the paramount importance of the communities safety when assessing if an ICO is suitable as a term of imprisonment.
Name 5 of the Aggravating Factors and 5 Mitigating Factors
Aggravating:
1. Gratuitous Cruelty
2. Use of violence
3. Use of a weapon
4. In company of a child
5. Abused position of trust
Mitigating:
1. Injury, harm was not substantial
2. Offender under duress
3. Person of good character
4. Plea of guilty at first mention
5. Offender was provoked by the victim
What is the principle of ‘parity’
The parity principle is concerned with the comparison of sentences for co offenders involved in the same criminal enterprise.
How may a sentence of imprisonment be served?
- Concurrent together
- Consecutive, one after the other
- Partly consecutive/partly concurrent
When can a court reopen proceedings
Only applies to criminal proceedings where:
a) imposed penalty is contrary to law
b) failed to impose a penalty required by law
