Chapter 7 - Sanctions - Units 1 & 2 Legal Studies

Important questions have a *, if in a rush skip all other questions. Also don't worry about legislation or COVID-19 regulations.

Who prosecutes indictable offences in Victoria?

the Director of Public Prosecutions (DPP) and Office of Public Prosecutions (OPP)

*What is the aim of criminal law?

Criminal law aims to protect the community by defining what a crime is and determining appropriate penalties for people who commit crimes.

Who can an accused be?

a human being, company (a company can’t go to jail but their director can if they are involved with the crime) or association

*Define fairness

Fairness is a principle of justice meaning having impartial and open processes, and participation. Impartial processes means that all decisions are made without bias to either party, the decisions are based on fact and law and there is no suspicion of bias, apprehended bias. Open processes mean processes are shared with the public and media, unless this poses a danger to either party. And participation relates mainly to the accused and prosecution, but also other parties such as the victim, ensuring they are all able to engage in the legal system.

*How is victim participation achieved in a legal case? (fairness)

Four ways victim participation is achieved are allowing victims to attend court and stay informed (specified in the Victim Charter Act), allow them to give evidence in a different way, through the use of victim impact statements and by providing them an opportunity to give views.

*How is accused and prosecution participation achieve in a legal case? (fairness)

Six ways the accused and prosecution are enabled to participate in the justice system are through the opportunity to know the case against them, the opportunity to prepare a defence, the opportunity to examine witnesses, the use of a lawyer, the use of an interpreter when necessary and the way a trial should have no unreasonable delay.

*Define equality

The principle of justice, equality, means that everyone is treated the same unless doing so causes disadvantage or disparity, then measures should be put in place to rectify this. When everyone is treated the same way this is referred to as formal equality. If measures are put in place to rectify disadvantage or disparity caused by equal treatment, then this is called substantive equality, everyone receiving what they need.

*What are some examples of adjustments or measures implemented to achieve substantive equality?

Six examples of measures implemented to achieve substantive equality are the use of interpreters, providing information in a different way, changing court processes (and even the courtroom), a different form of oath, changing for the purpose of cultural differences and flexibility.

*Define access

Access is a principle of justice that occurs when everyone can engage with the legal system and its processes on an informed basis. Engagement describes physical, technological and financial access. An informed basis means an individual possesses a level of knowledge and understanding that allows them to understand and engage with the legal system.

*How does the criminal justice system allow for an individual to participate on an informed basis?

To allow individuals to participate on an informed basis the criminal justice system provides education (given by programs done by service bodies), information (such as brochures, handbooks or websites), legal and support services (providing free access is helpful) and legal representation.

*Who enforces criminal law?

the police (Victorian and Australian federal) and delegated bodies

*What is the role of the police?

The role of the police is to serve the community and law, and enforce criminal law. They aim to preserve peace, protect life and property, prevent crime, detect and apprehend offenders and assist crime victims or people in an emergency.

*What is the role of the Victoria police?

Governed under the Victoria Police Act 2013 (Vic), the role of the Victorian police is specific to the community. Seven things this role includes are: talking to victims or witnesses about events of the crime, questioning possible suspects, examining the scenes of a crime, looking for and gathering physical or forensic evidence, conducting people or property searches, arresting the accused and charging people with suitable offences.

*What are the powers of the Victorian police?

The Victorian police have the power of prosecution for summary offences and for indictable offences can investigate, collect evidence, charge an accused and give information to the Office of Public Prosecutions (who will prosecute the accused in trial). Section 458 of the Crimes Act 158 (Vic) gives them the power to arrest without a warrant in some circumstances and take the finger print of a suspect in some circumstances. The Victoria Police Act also gives them a wide-range of powers.

*What is the role of the Australian Federal Police?

Governed by the Australian Federal Police Act 1979 (Cth), the Australian Federal Police investigate crimes with a federal aspect (such as crimes against the Commonwealth and certain state legislation).

*What are the powers of the Australian Federal Police?

The Australian Federal Police possess various powers to enforce criminal law (for example protective service officers can arrest a person without a warrant and search them). The federal police work with the Victorian Police and other investigative agencies depending on the nature of the offence.

*What are delegated bodies?

Bodies that have been given power by the parliament to make and/or enforce laws through an Act of Parliament.

*List some Victorian delegated bodies

Consumer Affairs Victoria, Environment Protection Authority Victoria (EPA), local councils, State Revenue Office (SRO), VicRoads, Victorian WorkCover Authority (Worksafe Victoria), Wage Inspectorate Victoria and the Victoria Building Authority (8)

*List some Commonwealth delegated bodies

Australian Securities and Investments Commission (ASIC), Australian Taxation Office (ATO), Australian Competition and Consumer Commission (ACCC) (3)

List some bodies and agencies that refer matters to the Victorian DPP or Commonwealth DPP to prosecute

Australian Government department Services Australia and AUSTRAC (Australian Transaction Reports and Analysis Centre)

Where is the legislation for individual rights and freedoms?

Equal Opportunity Act 2010 (Vic), International Covenant on Civil and Political Rights Charter (1966) and the Human Rights Charter

What are the stages of a criminal case?

The four stages of a criminal case are arrest, questioning, court proceedings and imprisonment of the offender (these stages can be used to display the balance of power and rights).

*What are the institutional powers during arrest?

Police have the power to arrest an accused with a warrant, or without a warrant (Crimes Act 1958 (Vic)) if they believe it is necessary to ensure the offender appears in court; preserve public order; prevent the continuation or repetition of the offence or a further offence; or ensure the safety and welfare of the public or offender. They can also arrest without a warrant on the reasonable belief that the accused committed an indictable offence (doesn’t matter where it was committed, so long as it is illegal in Victoria and they are in Victoria). The police can use reasonable force to arrest an individual, dependant on the circumstances.

*What are the rights of an individual during arrest?

During the arrest stage an individual can refuse to go to a police station unless arrested (the right to freedom of movement). If they are arrested they must be informed of the reason at the time and of the proceedings that will be brought against them (specified in the Human Rights Charter), they must be immediately brought to court and trial with no unreasonable delay, they have the right to silence (exempting the sharing of their name and address) and they have the right to bail.

*What are the institutional powers during questioning?

If a person is arrested and in custody for a suspected offence, an investigating official has the power to question the individual (within reasonable time) to determine the involvement (or lack thereof) of the accused to the offence.

*What are the rights of an individual during questioning?

The seven rights of an individual when being questioned are they must be informed that they are not required to do or say anything but anything they do say or do may given as evidence in court and that the information must be recorded if the crime is indictable; they must be informed they can communicate or attempt to communicate with a friend or relative (to inform them of their whereabouts) and a legal practitioner unless this communication may result in the escape of an accomplice, the destruction or fabrication of evidence or if the questioning cannot be delayed; they have the right to an interpreter if they don’t have sufficient English; the right to not be overheard when communicating with their legal practitioner; the questioning must be within a reasonable time; they have the right to silence; and if they are under 18 a parent, guardian or independent person must be present during the questioning.

*What are the institutional powers during court proceedings?

Some bodies have the power to commence criminal action against an accused to determine their guilt and sentence them. If this is a summary offence their charges will be heard and determined in the Magistrate’s Court. If it is an indictable offence the Magistrate’s Court will determine if their is sufficient evidence to support a conviction at trial through a committal proceeding before the matter can be taken to the County or Supreme Court for pretrial procedures and eventually a trial. The team forming the prosecution power has the four powers to: prepare a case, speak with witnesses obtain evidence and to negotiate with the accused (normally through legal practitioners) about an early guilty plea.

*What are the rights of an individual during court proceedings?

Eight rights of an individual (aimed to uphold the principles of justice) during court proceedings are the right to: have the charge and proceedings decided by a competent independent and impartial court after a fair and public hearing (also known as the right to appeal); be presumed innocent until proven guilty; be informed promptly and in detail about the nature and reason for their charges; have adequate time and facilities to prepare a defence; be tried with no unreasonable delay; obtain legal aid if justice requires it; have the assistance of an interpreter if needed; and have the opportunity to challenge and rebut evidence.

*What are the institutional powers of the imprisonment of an offender?

Under the Corrections Act 1986 (Vic) some of the powers of prison officers are to: search and examine a person; seize unauthorised goods; arrange medical tests for drugs; require a prisoner to be electronically monitored; and open, inspect and read letters for the prisoners.

*What are the rights of an individual during the imprisonment of an offender?

Under section 47 of the Corrections Act 1986 (Vic), prisoners have the right to be in open air for a minimum of an hour a day (if the weather permits); provide adequate food and necessary special dietary requirements; have suitable clothes; access reasonable medical care and treatment and dental treatment; if intellectually disabled or mentally ill have appropriate special care and treatment; practice religion, including joining other prisoners to practice this religion so long as it does not jeopardise prison security; and receive a minimum of one 30 minute visit a week. Young people have additional rights listed in the Children, Youth and Families Act 2005 (Vic).

Describe the imprisonment of the offender.

If the accused isn’t guilty they must be immediately released, however if they are guilty they become an offender and the court has the power to impose a sanction on them. Imprisonment is the most severe penalty aimed to punish the offender by taking away their liberty. Correction Victoria (a unit of the Victorian Government’s Department of Justice and Community Safety) overseas the detention of an offender and prison management is governed by the Corrections Act 1986 (Vic).

*What are the reasons for a court hierarchy?

The four reasons for a court hierarchy are specialisation, appeals, the doctrine of precedent and administrative convenience.

What does specialisation mean?

Specialisation refers to the expertise different courts gain from dealing with more specific offences. This allows for fairer trials as courts have a good understanding of their areas of expertise.

What do appeals mean?

If a party is displeased with a courts ruling they can apply to a higher court, to ensure they have a fair trial.

What does the doctrine of precedent mean?

Reasons for decisions (ratio decidendi) made in higher courts leave a precedent for lower courts to follow in similar cases. If a precedent is binding the material facts of the precedent are similar to the new case and the court that set the precedent was from a higher in the same hierarchy. This creates consistency in the courts and therefore equality.

What does administrative convenience mean?

Administrative convenience refers to the different jurisdictions of the courts, more minor and smaller cases can be heard quicker and more effectively through the systems of the Magistrate’s court and more complex and larger cases which are more important but fewer, can be heard more effectively and thoroughly in the County and Supreme Court.

*What are the roles of Victorian courts for criminal cases?

The role of Victorian courts is to determine criminal cases and impose a sanction.

Describe the role “determine a criminal case”.

Determining a criminal case means determining whether an accused is guilty. Part of this role is: providing specialisation (the Magistrate’s Court hears minor offences and IOTS, the County Court hears indictable offences and the Supreme hears most serious indictable offences), managing the case (giving order and direction to the parties) and hearing appeals from lower courts (the party who appeals is the appellant and the other party the respondent).

Describe the role “impose a sanction”.

If the accused pleads or is proven guilty the court must impose a sanction on them. This will be determined at a plea hearing where both parties will submit information about case facts, offender circumstances, relevant factors and the type of sentence that should be given. After the hearing the judge or magistrate gives the offender their sanction.

*What does original jurisdiction mean?

Original jurisdiction describes the authority of a court to hear a case for the first time.

*What does appellate jurisdiction mean?

Appellate jurisdiction describes the authority of a court to hear a case on appeal.

*What is the jurisdiction of the Magistrate’s Court?

The original jurisdiction of the Magistrate’s Court is to hear summary offences, indictable offences triable summarily, committal proceeding, and bail and warrant applications. The Magistrate’s Court has no appellate jurisdiction.

*What is the jurisdiction of the County Court?

The original jurisdiction of the County Court is to hear indictable offences that aren’t treason, attempted murder, murder or certain conspiracies (criminal planning). The County Court can hear appealed cases from the Magistrate’s Court on a conviction or sentence (unless it was decided by the Chief Magistrate).

*What is the jurisdiction of the Supreme Court (trial division)?

The original jurisdiction of the Supreme Court Trial Division is to hear serious indictable offences. The Supreme Court Trial Division can hear appealed cases from the Magistrate’s Court on a point of law (unless it was decided by the Chief Magistrate).

*What is the jurisdiction of the Supreme Court (court of appeal)?

The Supreme Court Court of Appeal has no original jurisdiction. The Supreme Court Court of Appeal can hear all appealed cases from the County or Supreme Court and cases from the Magistrate’s Court if it was decided by the Chief Magistrate.

*What is the jurisdiction of the Children’s Court?

The original jurisdiction of the Children’s Court is for crimes committed by children aged 12 to 17 years old (exempting certain offences). The Children’s Court has no appellate jurisdiction.

*What is the jurisdiction of the Coroners Court?

The original jurisdiction of the Coroner’s Court is to investigate death and fires. The Coroners Court has no appellate jurisdiction.

What are the Victorian Courts in hierarchy order (lowest to highest)?

The Victorian Courts in order of lowest to highest are the Magistrate’s Court, County Court, Supreme Court (trial division) and Supreme Court (court of appeal). The Children’s Court and Coroners Court are specialist courts on the same level of the hierarchy as the Magistrate’s Court.

*What are the strengths of the courts in resolving criminal cases?

The strengths of the courts in resolving criminal cases are that judges, juries and magistrates are impartial (fairness), the court hierarchy allows for specialisation (fairness and expertise), formal processes and evidence rules ensure procedural fairness, and that the court allows for appeals.

*What are the weaknesses of the courts in resolving criminal cases?

The weaknesses of the courts in resolving criminal cases are that some find the processes challenging to understand (access), without legal representation (which can be expensive) a party may be disadvantaged by self representation (financial engagement, access), parties may feel stressed and intimidated by formal court processes, and the right to appeal is not automatic and difficult without a lawyer (fairness).

Define a jury.

A jury is an independent group of people chosen at random to determine questions of fact in a trial and reach a decision the verdict.

When are criminal juries used?

Criminal juries are only used in the original jurisdiction of the County and Supreme Court to determine the guilt of an accused charged with an indictable offence. (Never in the Magistrate’s Court, in appeals or if there has been a guilty plea).

Skip [There are more details in the textbook section “Composition of a Criminal Jury” about the rights of jury members and how to get off of duty or individuals being challenged, however, I find this unnecessary.]

For trials by jury it is compulsory to have 12 jury members, but an extra 3 can be empanelled for long trials in case a situation arises were a jury member must withdraw. Only 12 jurors will make the final decision.

*What is the role of a criminal jury?

The jury in a crime must: listen to all evidence, concentrate during the trial and piece evidence together to decide the guilt of the accused. At no point from their selection to excuse can a jury make enquiries in matters related to the case.

What is the role of the judge in relation to the jury?

Skip this section of notes [In accordance with the Jury Directions Act 2015 (Vic), which establishes the way the judge gives directions to the jury and] The judge gives direction to the jury.

*Describe the standard of proof a judge must give to convict an accused.

The jury must convict an accused beyond reasonable doubt. Reasonable describes what the average person on the street would believe logically believable after practically examining the evidence. Doubt does not refer to any imaginary, fanciful or unrealistic possibility. The jury must give a unanimous verdict. The jury does not need to give a reason for their verdict, it is confidential between jurors.

What happens if the jury can not reach a unanimous decision?

If the jury cannot reach a unanimous verdict the judge may allow a majority decision (not for murder, treason, trafficking or cultivating a large commercial quantity of drugs and Commonwealth offences), this means 11 of 12 agree. Otherwise the jury becomes a hung jury and the accused can be tried later.

*What are the strengths of the jury system?

The strengths of the jury system are that jurors are independent (particularly of the legal and political system) and impartial which means equality and fairness in their decision; it allows for community involvement which creates community confidence in the legal system and the verdict reflects society’s values and common sense; there is fairness through the way the jury’s verdict is based on evidence and facts, not their own research and investigations; and spreading the responsibility among 12 jurors makes it more fair and accurate.

*What are the weaknesses of the jury system?

The weaknesses of the jury system are that jurors give no reason for their decision and so it might not be based on facts and evidence; it might be difficult for ordinary members to understand complex and significant amounts of evidence and make the right decision; a jury trial may experience delays because the system must be explained to them and they must be directed; jurors may possess biases even they were unaware of; and not all the community is able to join a jury.

*How are First Nations People overrepresented in the criminal justice system?

While only 1% of the population of Victoria is comprised of First Nations people, 9% of the criminal population is indigenous. First Nations people experience social disadvantage in health, finances and employment. Some suggest this is related to the historic discrimination and injustice indigenous people have faced and that this results in a high risk of interaction with the criminal justice system.

*What are the difficulties faced by First Nations people in the criminal justice system?

The difficulties faced by First Nations people are cultural differences, language differences and distrust in the criminal justice system.

*Describe cultural differences.

Cultural differences describe the differences between the customary law of indigenous cultures and the Victorian government. These are the processes and consequences (Elders are involved with sentencing and First Nations people tend to respect this judgement and feel it is fairer) and the aims (First Nations people aim to restore balance as far as possible and to maintain and recognise relationships whereas the Victorian government focuses on retribution and making an example of offenders so there is no reoffence). As a result of these differences First Nations people don’t feel welcome, feel uncomfortable and feel their cultures are misunderstood.

*Describe language differences.

Language differences describe the way that many indigenous Australians do not speak English as their first language, instead speaking an Aboriginal language or Aboriginal English (this is estimated to be 80% of First Nations people). This also refers to First Nations people having different ways of communicating: for indigenous witnesses direct questioning is seen as inappropriate and they find it polite to answer with long discussions and storytelling instead of a direct response which is perceived as rude; direct eye contact is sometimes thought of as disrespectful; and they use long periods of silence as a sign of respect which can be misunderstood.

*Describe distrust in the criminal justice system.

Aboriginal Victorians are 3.1 times more likely than average citizens to be recorded as victims in crime. Violence against First Nations women (typically due to drug and alcohol abuse) is underreported because they do not believe justice will occur and are scared of child removal, incarceration or a misidentification of the victim or offender. The justice project of the Law Council of Australia reported that many First Nations people have personally experience the system working ‘against them’.

*How are people working to address these difficulties?

To address these difficulties there are specialised courts and programs to address cultural differences (eg. the Koori Court is a culturally safe space for sentencing Aboriginal offenders and the Umalek Balit program offers culturally safe and appropriate family violence services particular to the Magistrate’s Court); cultural competence training for people who work in court and tribunals; and dedicated funding for Aboriginal legal aid.

What are some other difficulties First Nations people face?

Other difficulties for First Nations people are a lack of legal services (eg. culturally safe services in particular for remote areas); a lack of respect for the right to self-determination (it is suggested in the past there was a lack of genuine consultation with First Nations Communities during sentencing; a lack of culturally appropriate sentencing options; and hardships experienced in prison and detention due to insufficient supports and a disregard for the risk of intergenerational trauma.

*What are the purposes of sanctions?

The purposes of sanctions are punishment, deterrence, denunciation, protection and rehabilitation.

*Describe punishment.

Punishment means penalising an offender when they have done something unacceptable, allowing victims and/or their families to feel justice and not take the law into their own hands.

*Describe deterrence.

Deterrence aims to discourage criminal activity. There are two different types: general deterrence which discourages other from committing a similar offence and specific deterrence which discourages an offender from further offence.

*Describe denunciation.

Denunciation demonstrates community disapproval and shows that criminal behaviour is not tolerated by the courts.

*Describe protection.

Protection seeks to ensure society safety with sanctions to prevent further harm.

*Describe rehabilitation.

Rehabilitation aims to reform offenders and prevent further offence.

List the sanctions in their hierarchy (most severe to least severe)

imprisonment (with conviction), court secure treatment order (with conviction), drug and alcohol treatment order (with conviction), youth justice centre order (with conviction), youth residential order (with conviction), community correction order (with or without conviction), fine (with or without a conviction), adjournment (with or without a conviction), discharge (with a conviction), dismissal (without a conviction)

*What is imprisonment?

Imprisonment is the most serious sanction, it removes the offender from society to a secured facility, jail. It is ranked level 1 through 9, 1 meaning a term of life and 9 being 6 months.

*What is the first condition of imprisonment?

One of the conditions of imprisonment is parole, meaning an early release from prison. In certain situations with a two or more year imprisonment period the court must give a non-parole period (a time that must be served before you can apply for parole). To achieve parole you must prove to the Parole Board you are worthy of serving the rest of your sentence in the community.

*What is the second condition of imprisonment?

Another condition of imprisonment in concurrent and cumulative sentences, a judge must state which an offender’s sentence is.

What are the purposes of imprisonment?

The purposes of imprisonment are protection, punishment, typically both forms of deterrence (general and specific) and denunciation. Rehabilitation is also considered one of the purposes but whether this is actually achieved is dependent on circumstances and a high rate of recidivism (in Victoria it is estimated approximately 44% of offenders return to custody in under 2 years after their release) suggests it is not effective at rehabilitation.

*(also using points to describe them is likely important) What are the factors that influence the effectiveness of imprisonment?

The effectiveness of imprisonment is dependant on the length of a prison sentence, the offender and their circumstances, the conditions of the prison and whether the prisoner is treated.

What is a fine?

A fine is a monetary penalty the offender pays to the state of Victoria. It is expressed in penalty units (1 - 3,000) and the fine can be imposed alone or in addition to other sanctions. A fine can be ordered to be paid in instalments, if the offender defaults making the payments the court can issue a warrant for arrest.

What factors are considered when deciding to impose a fine?

Factors a judge considers when deciding to impose a fine are: the financial circumstances of the offender; the loss/destruction of or damage to property as a result of the offence; the value benefit the offender receives from committing the crime; or if a forfeiture/compensation/restitution order was imposed (orders that have maybe already resulted in the offender paying compensation or handing in property).

*What are the purposes of a fine?

The purposes of a fine are punishment and deterrence (both kinds) and if it is a high enough fine it may also aim for denunciation.

*What factors influence the effectiveness of a fine?

The factors that influence the effectiveness of a fine are the financial circumstances of an offender and their ability to pay; the amount of penalty units of the fine; if the fine is ever paid; whether the public is aware that the fine has been imposed; and whether the offender addressed their behaviour.

What is a community correction order?

A community correction order (CCO) is a flexible, non-custodial sanction, served in the community with conditions.

When can a CCO be imposed?

A CCO can be imposed if the offence is punishable by more than five penalty units and the offender consents to the making of the order. It cannot be imposed on an offender who commits a category 1 offence, nor a category 2 offence without special circumstances. It must not exceed five years if made by the Magistrate’s Court about 3 or more offences (2 years if only 1 crime) or five years for one offence if made the County or Supreme Court.

What are the mandatory conditions of a CCO?

The mandatory conditions of a CCO (that apply to every offender) are the offender must: not commit a crime punishable by imprisonment during the CCO, report to a community corrections centre within 2 clear working days after the order is enforced, report to and receive visits from the community corrections officer, notify any change of address or employment, not leave Victoria without permission and comply to any direction given.

What are the optional conditions of a CCO?

The optional conditions of a CCO (conditions specific to the offender of which there must be at least one): unpaid community work condition (the offender must complete unpaid work that does not exceed 600 hours in total), treatment and rehabilitation condition (the offender must undergo treatment and rehabilitation), supervised condition (supervised, monitored and managed), non-association condition (the offender must not contact or associate with a particular person), residence restriction/exclusion condition (the offender must not enter or remain in a particular place), the place/area exclusion condition (the offender must not enter or remain in a specific place or area), curfew condition (the offender must remain in a particular place at specified hours of the day), alcohol exclusion condition (the offender must not enter or consume alcohol on licensed premises), bond condition (the offender must pay an amount of money, a bond that is forfeit if they fail to comply with the order), judicial monitoring condition (the offender must be monitored by the court), electronic monitoring (a monitoring device must be attached to the offender) and a justice plan condition (participate in services specified in the plan prepared for the offender).

*What are the purposes of a CCO?

The purposes of a CCO are punishment, both types of deterrence, rehabilitation and protection.

*What are the factors of the effectiveness of a CCO?

The factors of the effectiveness of a CCO are mandatory conditions, optional conditions, whether the offender has restricted liberty, whether the offender has a treatment condition imposed, the length of the order and whether the CCO is understood or known by the public.

*What are factors that may reduce a sentence?

Factors that may reduce a sentence are the nature and gravity of an offence if it is a low level of seriousness; an early guilty plea; mitigating factors; a lack of prior offence; and if the offender demonstrates remorse (eg. through an early guilty plea, victim apology, early confession or admission, or cooperation with investigative agencies).

*What are factors that may increase a sentence?

Factors that may increase a sentence are the nature and gravity of an offence if it is a high level of seriousness a higher sentence may be more appropriate; aggravating factors; a history of prior offence; the impact on victims; and any injury, loss or damage.

What are mitigating factors? (include examples)

Mitigating factors reduce the seriousness of an offence or an offender’s culpability. Some examples include: if the offender acted under duress, if the offender has good prospects for rehabilitation, personal strain on the offender, a lack of injury or harm caused by the crime, full admissions, remorse or a guilty plea.

What are aggravating factors? (include examples)

Aggravating factors increase the seriousness of an offence or an offender’s culpability. Some examples include: the use of violence or explosives, committing the offence in front of children, if the offender was motivated by hatred or prejudice, or if the offender was in a position of trust and breached that trust.

*What is the Drug Court?

The Drug Court is a division of Magistrate’s and County Court that deals with offenders who offend under the influence of drugs (such as alcohol) or to support offenders with a drug habit. This court system was created due to the failure of traditional court methods to provide an adequate sentence to address the issue of drug dependency. To address this issue the Drug Court imposes a drug and alcohol treatment order (DATO).

*What do you need to be eligible for the Drug Court?

The six requirements of an offender to be eligible for the Drug Court are that the offender lives in an area serviced by the Drug Court, the offender pleads guilty, the offence is under the jurisdiction of the Magistrate’s or County Court and punishable by prison, the offence was not a sexual offence or a crime that caused bodily harm, the Drug Court is satisfied the offender is dependent on drugs and this dependency contributed to the offence, and the Drug Court considers it would have been otherwise appropriate to impose an imprisonment sanction of two years or less (four years in the County Court).

*What is the process of the Drug Court?

The process of the Drug Court is first a screening process to determine if the offender is suitable for a DATO (determine the offender’s location, prior and current offences, whether drug abuse was a factor of the offence and whether the offender is willing to participate), an assessment process to determine whether the program will address the offender’s behaviour and then a treatment plan for the offender will be prepared and the DATO imposed.

*Describe the DATO.

The drug and alcohol treatment order (DATO) aims to rehabilitate by providing judicially supervised, therapeutically-oriented drug or alcohol treatment program. It has two parts: treatment and supervision -which encompasses the core conditions (compulsory) and program conditions (dependent on plan) - and custodial - the Drug Court imposes an imprisonment sentence which is deferred while the offender is under treatment. The Drug Court has the power to reward offenders who are compliant but failure to comply will result in negative actions. If an offender is no longer willing to participate the DATO will be cancelled.

*Describe the effectiveness of the Drug Court.

The Drug Court benefits both the participant and the community. A KPMG report evaluated the Victorian Drug Court, finding that: there was a significant reduction in reoffence compared to those imprisoned (the reoffence rate within the first year was 31% less for Drug Court participants); the program saved a cost of approximately 1,212,840 over 8 years due to having fewer imprisonment days and there was a significant improvement in participants health and wellbeing. However only a limited number of people can be offered a DATO and some suggest the rewards program bribes people to obey.

*What is a diversion program?

A diversion program is available at the Magistrate’s and Children’s Court for summary offences. It enables a criminal matter to be dealt with outside of court in the program instead of entering a plea or being found guilty. It gives the offender the opportunity to avoid a criminal record and court sentencing if they comply with certain conditions. It is intended for low-level or first-time offenders.

*How is one eligible for a diversion program?

To be eligible for a diversion program one must: acknowledge to the Magistrate’s Court their responsibility for the offence, the prosecution and the accused must consent, the program must appear appropriate to the Magistrate’s Court and the offence cannot be punishable by a minimum or fix sentence or penalty (for example not if it is punishable by license suspension).

*What is the process of a diversion program?

The process of a diversion program is the accused requests the program (they hold onus of applying for it), the court may seek the victim’s views and the magistrate must agree and the court proceedings are adjourned for up to a year to carry out the plan.