1
Q
Principles of justice:
A
- Fairness
- Equality
- Access
2
Q
Principles of justice: Fairness
A
- There should be fair legal processes and a fair hearing or trial.
The parties in a legal case should have an opportunity to: - Know the facts of the case
- Present their side of events.
3
Q
Principles of justice: Equality
A
- People should be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage.
- Laws and processes should not discriminate against any person and ensure that any person cannot discriminate against another.
- The people who hear legal cases should be objective and unbiased.
4
Q
Principles of justice: Access
A
- All people should be able to understand their legal rights and pursue their case.
- Access to institutions and people that provide legal information, advice and representation, information about a person’s rights.
5
Q
Institutions that enforce criminal law:
A
- Police
- Delegated bodies
6
Q
Institutions that enforce criminal law: Police
A
- The role of the police is to serve the community and the law, and to enforce criminal law.
Victoria Police’s role in enforcing criminal law is to: - Talk to victims or witnesses
- Question possible suspects
- Examine crime scene(s)
- Gather forensic evidence
- Conduct searches of people or property
- Arrest accused persons
- Charge people with offences that fit the crime
7
Q
Institutions that enforce criminal law: Delegated bodies
A
- A delegated body is an authority or agency given power by parliament to make and/or enforce laws.
E.g. WorkSafe Victoria is a delegated body given authority by the Victorian parliament to enforce criminal laws
Ensures the health, safety and welfare of employees and other persons at work.
8
Q
The role of a jury in a criminal trial
A
- A trial by jury is a trial in which an impartial group of randomly selected people hears evidence and hands down a verdict.
- A jury of 12 is required in criminal cases in the country court and the supreme court where the the accused pleads not guilty
- Juries are never used in the magistrates’ court, in appeals or when an offender has pleaded guilty
9
Q
The jury in a criminal trial must:
A
- Decide whether the accused is guilty or not guilty by the standard of proof of beyond reasonable doubt in a criminal case
- Must first try to reach a unanimous verdict
- Majority verdict (11/12) is accepted for some offences and if not reached there is a hung jury where the accused has not been found guilty or not guilty and will be tried again
- A jury does not need to provide reasons for the verdict they reach.
- The jury cannot make enquiries about the case while the case is ongoing.
10
Q
Strengths of the Jury system
A
- Jurors are independent of the political and legal system and impartial, ensuring equality and fairness in their decision
- Verdict reflects the values of the community
- Ensures fairness by requiring the jury to deliberate based on the evidence and facts, not on independent research or investigations.
- Spreads the responsibility rather than it being made by one person (the judge) so the decision is more likely to be fair and correct
11
Q
Weaknesses of the jury system
A
- Procedural fairness is questioned in the jury’s decision as jurors do not give reasons for their decision and deliberations occur behind closed doors
- Ordinary members of the public may not be able to understand the complicated evidence and come to the right decision
- Jurors may be influenced by skilled lawyers or by the emotional elements of a trial.
- Jurors may have biases
12
Q
The purpose of sanctions:
A
- Punishment
- Deterrence
- Denunciation
- Protection
- Rehabilitation
13
Q
The purpose of sanctions: Punishment
A
- Punish the offender
- Allows the victims and their families to feel a sense of retribution without taking the law into their own hands
- -> Crime would increase and impacts on social cohesion
- Imprisonment is the most severe punishment in our society
14
Q
The purpose of sanctions: Deterrence
A
- Discourage the offender and others in society from the same or similar offences in the future by imposing a severe enough penalty to demonstrate the serious consequences of committing the crime
General deterrence: - Discourages people in general from committing the crime
Specific deterrence: - Aimed at stopping the particular offender who is being sentenced from repeating the offence
15
Q
The purpose of sanctions: Denunciation
A
- The court may impose a sentence that is harsh enough to show its disapproval when deciding on an appropriate sanction for a crime
- Designed to convey the message that this type of criminal behaviour will not be tolerated by the courts
16
Q
The purpose of sanctions: Protection
A
- Seeks to ensure the safety of society by imposing a sanction that prevents the offender from harming again
- A horrendous crime, lack of remorse and an offender’s callous attitude indicates that they should be removed from society for as long as possible
- -> a term of imprisonment
17
Q
The purpose of sanctions: Rehabilitation
A
- Treats the underlying causes of offending
- Crime rates and prison costs will escalate if offenders cannot change their ways
- Provides offenders with education, training, assistance and support
18
Q
Types of sanctions:
A
- Fines
- Community correction order
- Imprisonment
19
Q
Factors considered by judges in sentencing:
A
- Mitigating factors
- Aggravating factors
20
Q
Factors considered by judges in sentencing: Mitigating factors
A
- Factors that may reduce the seriousness of the offence or the offender’s compulbaility. Examples: - Nature and gravity of offence - Early guilty plea - Lack of prior offending - Remorse - Offender acting under duress - Prospects of rehabilitation - Personal strain the offender was under - Full admissions made by the offender
21
Q
Factors considered by judges in sentencing: Aggravating factors
A
- Factors that increase the seriousness of the offence and the offender’s culpability.
Examples: - Use of violence or explosives
- Offence taking place in front of children
- Offender being motivated by hatred or prejudice
- Offender being in a position of trust and having breached that trust
- Nature and gravity of the offence
- Previous offending
- Impact of the offence on any victim
- Injury, loss or damage as a result of the offence
22
Q
Aspects of sentencing practices in Victoria:
A
- Sentencing practices in Victoria
- Therapeutic justice
23
Q
Aspects of sentencing practices in Victoria: Sentencing practices
A
- Victorian legislation in the past 10 years has reduced the sentences available to a court
- Aim is to adopt a ‘tough on crime’ approach by imposing harsher sentences on offenders who commit serious offences such as murder and sexual offences involving children
24
Q
Aspects of sentencing practices in Victoria: Therapeutic justice
A
- A process used in the criminal justice system where underlying health and personal issues are addressed to prevent offenders from re-offending
- Recognises that pure punishment is ineffective in changing behaviour and keeping communities safe
E.g. Drug court
25
Aspects of sentencing practices in Norway
- Imprisonment
- Preventative detention for dangerous and insane offenders
- Community sentence
- Fines
- Loss of rights
- Death penalty is prohibited
- Victim-offender mediation is used in sentencing
26
Alternative approaches to sentencing: Drug court
- Established as a division of the Magistrates’ Court in 2002
- Imposes a drug treatment order (DTO)
The offender must:
- Reside within an area serviced by the drug court
- Plead guilty
- Be within the jurisdiction of the Magistrates’ court
- Dependent on drugs or alcohol that contributed to the offence
- The offence was not sexual or involved bodily harm.
27
Types of sanctions: Fines
- The offender pays the state a monetary penalty, expressed as penalty units from 1-3000
- Purpose of fines are to punish the offender, deter the offender from committing further crimes and deter the community
- If an offender defaults on a fine, the offender can be arrested
28
Types of sanctions: Community Correction Order (CCO)
- A sanction that allows an offender to remain in the community while serving the sanction
- Purposes of CCOs are to punish, rehabilitate and protect
- A CCO can only be imposed if the offender consents to the making of a CCO and the offence is punishable by more than 5 penalty units
- Cannot be imposed on someone who has committed a ‘category 1’ or ‘category 2’ offence
29
Types of sanctions: Imprisonment
- The most serious sanction and involves the removal of the offender out of society and into a jail.
- Purposes are to protect the community, punish the offender, deterrence, denunciation and rehabilitation
- Each offence has a maximum penalty that can be imposed
- Parole - early release from prison that is not automatically granted
- If there is more than one sentence the court needs to specify if this is to be served concurrently or cumulatively
30
Drug treatment order (DTO)
- A DTO aims to rehabilitate the offender by providing a judicially-supervised, therapeutically-oriented drug or alcohol treatment program.
There are two parts to a DTO:
- Treatment and supervision part: core conditions and program conditions
- Custodial part: requires the Drug Court to impose a sentence of imprisonment of no more than 2 years
31
Effectiveness of the drug court
- Benefits both participants and the community
- A significant reduction in the rate of reoffending compared to those who were imprisoned
- Significant improvement in the participants’ health and wellbeing
- A cost saving over a two year period as a result of fewer imprisonment days
32
Aspects of sentencing practices in Norway: Imprisonment
- Maximum term of imprisonment that can be imposed in Norway is 21 years
Norway believes:
- Removing freedom is enough of a punishment and that people should be able to live their life as close as possible how they live outside prison
- Prisoners should be treated fairly to reintegrate back into society
33
Aspects of sentencing practices in Norway: Community sentence
- Requires the person to undertake community service instead of a term of imprisonment
34
Aspects of sentencing practices in Norway: Fines
Consideration is given to the person’s financial position
35
Aspects of sentencing practices in Norway: Loss of rights
- If an offender is unfit for a particular position or activity they may be deprived of undertaking this activity in the future
36
Factors considered by judges in sentencing: Nature and gravity of the offence
- If the offending is on the low end of the scale, this may persuade the court to impose a sentence much less than the maximum penalty
- If the offending is on the high end of the scale, the court will view a higher sentence as more appropriate.
37
Factors considered by judges in sentencing: Previous offending or lack of
- If the offender has not offended before, it may demonstrate a one-off incident or a lack of criminality.
- If the offender has engaged in previous offences, the sentence may be increased.
38
Factors considered by judges in sentencing: Impact of the offence on any victim
- If the victim has significantly suffered as a result of the offence, the victim can file a victim impact statement which will be read during sentencing.
39
Factors considered by judges in sentencing: Early guilty plea
- If the offender has pleaded guilty, and the earlier the guilty plea is, the court may impose a lesser sentence.
- Resources and time saved by not having a trial, and the trauma and inconvenience saved for witnesses and victims.
40
Factors considered by judges in sentencing: Remorse
- Remorse can be demonstrated through an early guilty plea, apologies to victims, early confessions or admissions or full cooperation with investigative agencies.
41
Police powers and individual rights
- Powers must be balanced against the rights of individuals.
- If institutions are given too much power, individuals may be treated unjustly.
- If institutions are given too few powers, crime prevention and law enforcement may be impossible.
- Arrest
- Questioning
- Bail
- Court proceedings
- Imprisonment of the offender
42
Police powers and individual rights: Arrest
- Police have the power to arrest an individual after a crime has been committed
- Police can arrest individuals without a warrant in certain situations
- Individuals have rights during an arrest such as the right to stay silent and the right be informed of the reason for the arrest
- Ensures a balance between the power of arrest and the rights of an individual
43
Police powers and individual rights: Questioning
- An investigating official has the power to question a person that has been arrested and is in custody for being suspected of committing an offence
- Must be within a reasonable, generally 6 hours
The person being questioned has the right to:
- Be informed that they do not have to say anything, but that anything that is said can be used as evidence
- Be informed that they are able to communicate with a friend, a relative or a legal practitioner and that this will not be overheard
- Have an interpreter
- Have a parent, guardian or independent person present if they are under 18
44
Police powers and individual rights: Bail
- The right to bail and the right to apply for bail are balanced by powers given to the prosecutor to oppose bail, and to the person deciding on bail to refuse bail or impose certain conditions
- Bail must be refused in certain circumstances like for committing murder
- Bail can be granted or refused by a court, a bail justice or a police officer.
45
Police powers and individual rights: Court proceedings
- Bodies have the power to commence criminal action to punish an offender.
- Powers are given to the prosecutor including power to prepare a case, speak with witnesses, obtain evidence, and negotiate with the accused about an early guilty plea.
- An accused has rights in criminal proceedings, including the right to have the charge decided by an independent and impartial court after a fair and public hearing, be presumed innocent until proven guilty and be informed promptly and in detail about the nature and reason for the charge.
46
Police powers and individual rights: Imprisonment of the offender
- The court has the power to imprison the offender if the court considers this the most appropriate sentence
- The Corrections Act 1986 (Vic) governs the management of prison
- It provides prison officers with powers that enable them to manage prisons
- Prisoners have rights under the Corrections Act, including the right to be provided with adequate food and suitable clothing
Legal
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