legal studies ASOS 1 unit 3: sanctions

who has power to enforce criminal law?

- the police (Victorian & Ferdal police)

- delegated bodies

what is the role of a police?

- serve the community & the law

- preserve peace

- protect life & property

- prevent crime

- detect & apprehend offenders

- assist victims of crime + other people in times of emergency

Victorian police compared to Federal

Vic Police:

- uphold the law to promote a safe, secure and orderly society

- main institution that deals with indictable and most summary offences

Federal police:

- investigate offences that have a federal aspect (offences that are against the law of he Commonwelath or a territory)

define what delegated bodies are

are bodies in Victoria that are given authority by the Victorian Parliament to enforce criminal laws. they are delegated (given) power by the Parliamet to make and/or enforce laws.

examples of delegated bodies

consumer affairs Vic: can take action in relation to breach of consumer trading laws & tenancy laws (resident laws)

environment protection authority Vic (EPA): can investigate environmental laws & commence proceedings for offences in relation to the environment

state revenue office (SRO): tax collection agency can administers laws where a local law makes an act or an omission a criminal offence

VicRoads: can prosecute certain road and traffic offences + infringement notices for breaches of road rules

WorkSafe: monitors and enforces compliance of Vic occupational health and safety laws + can investigate breach of laws in relation to any breaches

examples of Commonwealth delegated bodies

Australian securities and investments commission (ASIC): investigates breaches of legislation, where directors have acted in breahc of their duties

Australian Taxation Office (ATO): investigates serious tax-relation fraud offences + prosecutes smmary offences

what are the stages of a criminal case?

1. arrest

2. questioning

3. bail

4. court proceedings

5. imprisonment of the offender

aspects of an arrest

when a crime has been committed the police have the power to arrest the offender

- most arrest are made without a warrant

an arrest can be made without a warrant when the police believes it is necessary to:

- ensure they appear in court

- preserve public order

- prevent the continuation of further offences

Also they can if they have reasonable belief that an indictable offence has been committed

what rights do individuals have during an arrest?

- can refuse to attend a police station unless they are under arrest (upholds right to freedom of movement and right to liberty)

- they must be informed the reason for the arrest during the arreset

- must be promptly brought before a court (should be brought to court without reasonable delay)

- does not need to say anything when arrest other than their name & address

- a person much be released or brought before bail justice or magistrate

aspects of questioning

balance of power

- the person must be informed that they have the right to silence but anything they say or do may be used in court

- th eperson must be informed that they can communicate with or attempt to communicate with: a friend/relative and a legal practitioner

- right to an interpreter

- communication with legal practitioner must not be overheard

- the person begin questioned can remain quiet

- if the person is under age a parent/guardian must be present during

aspects of bail

whether a perosn is granted or refused bail is determined by either a court, a bail justice or a police officer

- the accused is entitled to bail (unless denied)

- can apply to bail

- the prosecutor has the power to oppose a bail & revoke bails

some situations bails must be refused (e.g murder cases)

asects of court proceedings

prosecuter has the power to:

- prepare the case

- speak with witnesses

- obtain evidence

- negotiate witht he accused

accused has the right to:

- hve the charge or proceeding decided by a competent independent & impartial court

- be presumed innocent until proven otherwise

- be informed promptly & in detail about the nature & reason for the charge

- be tried without unreasonable delay

- have legal aid

- have interpreter (if needed)

- have the opportunity to challenge and rebut the evidence against them

aspects of imprionsonement of the offender

a sanction of last resort is imprisonment

- aims to protect and punish by depriving them of their liberty

ever prisoner has certain rights such as:

- open air for at least one hour every day

- be provided with adequate good and where necessary, special dietary food

- be provided with suitable clothing

- have access to reasonable medical care

- practice a religion

- receive at least one half hour visit a week

when are criminal juries used?

They are used to determine the guilt of an accused person who is charged with an indictable offence

- juries are not used in the Magistrate

court, in appeals and when an offender has pleaded guilty (this is bc a jury's role is to determine guilt or innocence not the sanction)

how many people are on a jury?

12 people in a criminal case when an accused pleads not guilty

- 3 extra can be selected for long trails in case one of them have withdraw

what is the role of a criminal jury

in a trial they must:

- listen to all evidence

- concentrate

- piece the evidence together and decide whether the accused is guilty or not

to determine whether they are guilty:

- they must be made beyond reasonable doubt (if one memeber is not sure then they must state 'not guilty')

a criminal jury must first try to reach a unanimous verdict (12/12)

- if not a judge can allow a majority verdict for offences other than murder, treason, trafficking or cultivating a large commercial quantity of drugs and for Commonwealth offences

- if they cannot reach a majority verdict (11/12) then it is a hung jury ~ neither guilty/not guility they can be tried at a later date

define sanction

a penalty imposed by a court on a person guilty of a criminal offence

what are the five purposes of sanctions

- Punishment

- Deterrence

- Denunciation

- Rehabilitation

- Protection

what is the purpose of punishment?

- to allow victimcs and their families to feel a sense of retribution (also so they do not take the law into their own hands)

- if they did then there would be no social cohesion

what is the purpose of deterrence?

the law aims to deter or discourage the offender and others in society from committing the same or similar offence

- its hopes that the penalty is serve enough that others can see the consequences that follow

there are two types of deterrences:

- general and specific

define general and specific deterrences

general deterrence: designed to discourage others in the commmunity from committing similar offences

specific deterrences: designed to discourage the offender from committing similar offences

what is the purpose of protection?

is to ensure the safety of society by imposing a sanction that prevents the offender from harming again

- imprisonment = they cannot commit any more harmful acts

A horrendous crime, a lack of remorse, and a offender's callous attitude indicate that that person should be kept out of society for as long as possible

what is the purpose of rehabilitation?

society wants to help offenders change their ways,otherwise crime rates & prison cost will escalate

- the legal system opes that offenders grasp the change of a better future, change their offending ways and become law-adiding citizens

define and identify the two types of sanctions

custodial sentences: where the offenders is removed out of society and into an institution

non-custodial: where the offender serves the sentence in the community

aspects of a fine

they are penalties that is paid by the offender to the state of Victoria no the victim

- a fine can be imposed in addition to another sentence

fines is imposed, a court considers:

- the financial circumstances (offenders)

- any loss, destruction of or damage to, property due to the offence

- the value of benefit received by the offender from the offence

what is the purpose of fines

- punish the offender

- deter the general community

- if the fine is high enough it could denounce the crime

(doesn't provide rehabilitation or protect the community)

what is a community correction order (CCO)?

It is a sanction that allows an offender to remain in the community while serving the sanction

how do CCO work?

can be imposed if:

- The offence is punishable by more than five penalty units

- The offender consents to making of a CCO

- they must comply with with certain basic conditions + an addtional 'optional condition'

- It can be combined with a fine or 1 year or less imprisonement

- it cannot be imposed on an offender who has committed a 'category 1' or 2 offence ~ unless special circumstances (mental impairment)

- must not exceed 5 years if it is made in the Magistrates' Court in respect of three or more offences, or five years if made in the County or Supreme Court.

when can and can't a CCO be imposed

can:

- if the offence is punishable by more than give penalty points

- the offender consents

cannot:

- has committed a catergory 1 or 2 offence (unless special circumstances i.e mental impairment)

what is a 'manditory treatment & monitoring order' CCO?

contains a judicial monitoring condition (offender is monitored) + a treatment & rehabilitation condition or justice plan condition

what are manditory and option conditions (CCO)?

mandatory conditions: conditions that apply to every offender

optional conditions: conditions that are specific to an offender

what are the manditory conditions for a CCO

- must not commit another offence punishable by imprisonment within the period of the order

- must report to and receive visits frmo the CC officer

- must report to the CC centre within two clear working days after the order comes into force

- must notify any change of addres or employment

- must not leave Vic unless granted persmission

- must comply with any directions given

what are optional conditions for a CCO

- upaid community work

- treatment & rehabilitation

- supervision condition

- non-association condition (no contact with a particular someone)

- residence restriction exclusion condition (not leave or enter a specific area or place)

- alcohol exclusion condition

- bond condition ( may pay an amount of money if fail to comply with the order)

- judicial monitoring

- justice plan

what is the purpose of a CCO

- can help rehabilitate the offender depending of the conditons

- protect society if the offender is kept busy (prevent them from certain areas or stay in certain areas)

what is imprisonment?

is the most serious sanction that can be imposed, and involves the removal of the offender from society and into a secure place (jail/prison)

when can imprisonment be imposed?

each offence has a max penalty that can be imposed for that offence. this is set out in the relevant statue

e.g max for murder level 1 is being life in prison

- max penalty are given for the worst examples of an offence

define fairness

is the principle that the parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events, and the prehearing and hearing processes should be fair and impartial

define equality

the principle that means people should be equal befor ethe law and have am equal opportunity to present their case as anyone also, without advantage or disadvantage

define access

the principle that means all people should be able to understand their legal rights and pursue their case

reasons for a court hierarchy

- allows specialisation/expertise

- appeals to a higher court if they aren't satisfied with a decision

-doctrine if precedent (law-makinng through courts) laws made by higher courts must be bided by lower courts

- jurisdiction

define migitating and aggravating factors

mitigating factors: facts or circumstances about the offender or the offence that can lead to a less severe sentence

aggravating factors: facts or circumstances about the offender that can lead to a more severe sentence

what are some that may reduce the sentence

- nature annd gravity of the offence: if the offence was on the low end of the scale then a much lesser penalty should be imposed

- early guilty plea

- migitating factors: the reduces the seriousness of the offence or the offender's culpability

- lacl of prior offending: may be considered a one-off incident

- remorse

what are some factors that may increase the sentence

- nature and gravity of the offence: on the high end scale a higher sentence may be more appropriate

- aggravating factors: imcreases the seriousness of culpability

- previous offending

- impact of the offence on the victim

- injury, loss or damage as a result of the offence

define drug court

a specialised court that sentences offenders to a drug treatmetn order where drugs or alcohol contributed to the commission of the offennce

define Koori Court

a division of the Magistrates' court, children's court and county court that ( in certainn circumstances) operates as a setnecing court for Indigenous people

setencing options in victoria

- dissmassals, discharges and adjoruments: the realse or discharge of the accused person

- fines (payment to the court)

- youth justice centre orders & youth residential centre orders

- home detention orders: sentence of imprisonment served at the person's home

- drug treatment order: order given bbyt the drug court to drug offenders to undertake a rehabilitation program

- combined custoy and treatment order: a term of imprisonment that is served partly in custody and partly int he community where drug or alcohol addiction has contributed to the offence

hopital security orders: the detention of a person in an approved metnal health facility

imprisonment: the removal of the offender from society and into a prison

sentencing options inn Norway

- prevetative detention: is reserved for dangerous and sane offenders. once the min dention has bbeen served (21 years) an assessment is made and the detention can nbe increased by up to 5 years, this is repreated that a life setence may result

- imprisonment: their max term of imprisonment that can imposed is 21 years , some term of imprisonment can be sereved at home dependig on the circumstances and some of the sentences can be also suspended

- community sentence: this cann be imposed instead of a term of imprisonment and gennerally requires the person to undertake community service

- fines

- loss of rights: where an offender is unfit for a particular position or activity they may e deprived of tha tposition or prevented from undertaking that activity inn the future

Norway compared to Victoria

norway

- focuses more on rehabilitationa and restorative justice ( that is trying to heal and put thiings right) and less on punishment

- has one of the lowest recidivism rates

- victim-offender mediation is also used as part of sentencing (where both the offender and victim must voluntarily participate

How does appellate jurisdiction differ from original?

Original jurisdiction is a court's power to hear a trial and accept evidence. Appellate jurisdiction is a court's power to hear an appeal and review the trial for error.