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PEP64 > Week 2 > Flashcards

Week 2 Flashcards

1
Q

Section 5 Crimes (Sentencing Procedure) Act 1999?

A

Penalties of imprisonment. “Section 5 Threshold”

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2
Q

Section 21A Crimes (Sentencing Procedure) Act 1999?

A

Aggravating/Mitigating Factors

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3
Q

Section 3A Crimes (Sentencing Procedure) Act 1999?

A

Purposes of Sentencing

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4
Q

True or False: The Court can impose a Conditional Release Order AND a fine for the same offence?

A

False. Section 9 Crimes (Sentencing Procedure) Act 1999

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5
Q

Should Police submit on sentence and suggest an opinion on sentencing range

A

No, as per Barbaro V The Queen [2014] HCA 2, a Prosecutor can submit on sentence but not on the sentencing range available.

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6
Q

Under what section can a matter be dealt with in the absence of the defendant?

A

Section 190 Crimes (Sentencing Procedure) Act 1999

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7
Q

Which penalties can’t the court impose on an absent defendant?

A

Any sentence of imprisonment, ICO, CCO, CRO, non-association/place restriction or intervention program.

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8
Q

True or False: A specified parole period must not exceed 1/3 of the Non-parole period, UNLESS special circumstances exist

A

True

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9
Q

Section 58 of the Crimes (Sentencing Procedure) Act 1999

A

Section 58 precludes the local court from imposing consecutive prison terms in excess of 5 years.

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10
Q

Which case law changed the common law definition of “drive”

A

Savidge v Affleck (1992), 65 A Crim R 96

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11
Q

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

A

53 (3) Drive unlicensed (never held) This is due to his license expiring 5 years ago.

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12
Q

How long is the time frame for an offence to be classed as a second/subsequent offence?

A

Within 5 years of the CONVICTION date

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13
Q

Name 4 of the major offences

A

Predatory drive, Neg. drive GBH/Death, police pursuits, fail to submit breath analysis

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14
Q

Name 4 alcohol related major offences

A

Novice PCA, Special PCA, Low PCA, Mid PCA, High PCA, DUI

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15
Q

Define drive under S4 RTA 2013

A

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.

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16
Q

Under common law, does a driver need to have control of all three elements (i.e. steering, control AND propulsion)?

A

No. Savidge v Affleck (1992) changed the common law to reflect the need to satisfy control over the means of propulsion only.

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17
Q

PCA Categories and ranges

A

Novice: 0.00 - 0.019
Special: 0.02 - 0.049
Low: 0.05 - 0.079
Mid: 0.080 - 0.149
High: 0.150+

18
Q

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?

A

No. As per Savidge v Affleck, the determining factor is control over the means of propulsion.

19
Q

Which Acts can disqualify a licence?

A

Road Transport Act 2013
Crimes Act 1900
Road Rules 2014
Road Transport (Vehicle Reg.) Regulation 2017

20
Q

Which drugs show on Draegar

A

Delta-9-tetrahydrocannabinol
Methylamphetamine
3,4-Methylenedioxymethylaphetamine (Ecstasy)
Cocaine

21
Q

What is the Road Transport Act definition of Home

A

There is no definition of Home under the RTA 2013, however the concept has been likened to the previous term, ‘place of abode’

22
Q

Section 14 Crimes (Domestic & Personal Violence) Act 2007

A

Offence of contravening an AVO (contravene with violence = jail)

23
Q

Section 4A Crimes (Sentencing Procedure Act 1999

A

Domestic Violence Offenders - requirement for full time detention or supervision

24
Q

Section 4B Crimes (Sentencing Procedure) Act 1999

A

Domestic Violence Offenders - protection & safety of victims

25
Q

Which case is the authority for when time is an essential ingredient?

A

R v Stringer (2000) A Crim R 198

26
Q

If a defendant is charged under the completely wrong name, how is this remedied?

A

Issue of a new CAN within the statute of limitations

27
Q

What is the authority for when information fails to disclose an offence?

A

Linehan v Australian Public Association (1982)

28
Q

Who can make a S19 application under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020

A

Any party (Magistrate, Prosecution OR Defence) - S19 application can ONLY be made in Local Court matters

29
Q

What are the Section 19 orders under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020

A

19(a) - Taken to hospital
19(b) - Taken to hospital AND RETURNED
19(c) - Discharged to care of reasonable person

30
Q

As per Perry v Forbes what are the 4 things the magistrate requires for a S14 application?

A
  1. Facts
  2. Antecedents
  3. Mental health report of the defendant
  4. A clear & effective treatment plan
31
Q

Section 16 Criminal Procedure Act

A

When amending defects does not affect indictment. e.g. 16(1)(h) happens on an impossible day [i.e. 30 february]

32
Q

As per S20 of the Criminal Procedure Act, when can an indictment be amended after presentation to the court?

A

Upon consent from the court OR the accused person

33
Q

True or false: A person is labelled as mentally if they’re suffering a mental illness at the CURRENT time (i.e. right now)

A

True. A mentally ill person only has to be suffering mental illness at the current time.

34
Q

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

A

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

35
Q

What is the primary objective of S14 of the Mental Health Cognitive Impairment Forensic Provisions 2020

A

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)

36
Q

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

A

No. Being subject to a Schedule under S20 (Ambulance) or S22 (Police) is not a factor worthy of consideration by a magistrate.

37
Q

True or false: If a magistrate discharges someone under S14, this is counted as a conviction.

A

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”

38
Q

What is the function of Section 66 of the Crimes (Sentencing Procedure) Act 1999

A

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.

39
Q

Name 5 of the Aggravating Factors and 5 Mitigating Factors

A

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

40
Q

What is the principle of ‘parity’

A

The parity principle is concerned with the comparison of sentences for co offenders involved in the same criminal enterprise.

41
Q

How may a sentence of imprisonment be served?

A
  1. Concurrent together
  2. Consecutive, one after the other
  3. Partly consecutive/partly concurrent
42
Q

When can a court reopen proceedings

A

Only applies to criminal proceedings where:
a) imposed penalty is contrary to law
b) failed to impose a penalty required by law

PEP64 (4 decks)

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