Legal Studies AOS1.2 SAC

plea negotiations

discussions between the accused, their legal representative, and the prosecution regarding the charges laid and to which the accused will plead guilty to.

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(can take place for both summary and indic)

purposes of plea negotiations

1. resolve a case by ensuring a plead guilty of a \*charge that adequately reflects the crime(s) committed.\*

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2. achieve a prompt resolution w/o the cost, time, stress, trauma & inconvenience of a trial. (including trauma of giving evidence - bc guilty plea)

appropriateness of plea negotiations

* public P.N can only occur if in public interest
* if accused is ready and willing to cooperate in investigation, pleading guilty,
* if witnesses are reluctant/unable to give evidence → could jeopardise prose. ability to achieve guilty verdict
* if witnesses will be adversely affected by further stress & inconvenience as conseq. of full trial

also taken into consideration:

* strength of prose. case - including evidence & defences accused could argue
* time & expenses - involved in full trial especially for prose. → cost of running case
* views of the victim - prose. can consult & account their views.→ not deciding factor
* likelihood of a long trial

strengths of plea negotiations

* saves court time & cost of a trial → reduces pressure on court system, less delays. frees financial resources - can be spent elsewhere
* minimise stress & trauma - for victims, witness & families. → avoid re-living crime.
* win/win scenario achieved → accused: lesser charges, prose/commun: avoid re-living stress & trauma, retribution

weaknesses of plea negotiations

* can soften deterrent effect of punishment → accused can bargain for lesser punishment
* undermine public confidence:

\- accused perceived as being ‘let off easy’, or getting lenient sentence that doesn’t reflect crime.

\- lack of transparency → P.Ns can be disclosed and held privately

\- prose. avoids need to prove case beyondRD, → can be argued P.Ns undermine presumption of innocence

\- reduce the severity of charges → ppl may question agreement/reason as to why

* if P.N fails, party may be dis/advantaged if matter proceeds to trial → eg prose. may have insight on weaknesses of accused’s case.

sentence indications

indications that aim to encourage an accused to enter early guilty plea.

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(can be given for both summary & indictable)

* Under Crim. Procedure Act: accused is able to request indication from judge/mags. about likely sanction to be imposed if they pleaded guilty to offence charged.

key requirements for sentence indications for indictable offences

* accused must apply a sentence indic.
* prose. doesn’t have to give consent to sent. indic. being given but can oppose
* second or subsequent sent. may be given if there has been change in circumstances (since prev sent. indic.) if it is likely to affect prev. sent. indic.
* indication as to whether a:

sentence of a specified type

or a specified maximum total effective sentence

\-is likely to be imposed

key requirements for sentence indications for summary offences

* sent. indics. can be given at anytime during the proceeding by M.C
* consent of prose. not required
* indication as to whether sentences of imprisonment/sentences of another type is likely to be imposed

effects of sentence indications

guilty:

* if non-custodial indic. is given & accused pleads guilty at next avail. time (ie next pretrial hearing) → sentencing is binding on judge

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not guilty:

* different judge will likely preside over trial & discounted sentence will not be discounting.

appropriateness of sentence indications

factors considered:

* type of offence committed

\-indic = accused must make application/prosecution. may oppose

\-certain offences (sexual) may not be appropriate

\-cases dealt by S.C generally not approp. as they are likely to not have custodial sentence imposed

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* info available to judge/mag

\-does judge/mag have sufficient info about impact of crime on victim to make sent. indic?

* whether accused has applied/prosecution. objects

\-DPP(prosecution) must seek views of victim(s) before deciding whether to object

strengths of sentence indications

* early determination of case → saves court time/money
* given by experienced & impartial judge/mags.→ more confidence in appropriateness of sentence.
* benefits victims → saves victims/witnesses trauma of testifying in court/re-living ordeal
* benefits accused → reduced sentence as incentive for pleading guilty & certainty in outcome

weaknesses of sentence indications

* relies on support of prose. & judge → accused can be denied of opp. to plead guilty & receive reduced sentence.
* can disadvantage the accused → only an indic. not exact sentence.
* can negatively impact victim(s) → who is denied of ‘day in court’ or victim impact statem. might carry less weight

original jurisdiction

the power of a court to hear a case for the first time.

appellate jurisdiction

ability of a court to hear a case where a decision is being reviewed or challenged/appealed to a higher court.

reasons for a court hierarchy

* specialisation of court
* allows for appeals
* doctrine of precedent
* administrative convenience

specialisation

courts have their own areas of expertise/specialisation

S.C (appeal) - specialises in determining criminal appeals for indic offences & has expertise in particular sentencing principles

S.C (trial) - hears most serious indic offences & will have developed specialisation in those areas of law

C.C - specialises in hearing most indic offences, particularly sexual

M.C - familiar w/ cases involving summary offences

appeals

if a party is dissatisfied w/ a decision, they can take the matter/appeal to a higher court to challenge the decision

appellant

the party who appeals

respondent

the other party in appeals

grounds for appeal

* appealing on a question of law → eg some laws not followed like jury hearing admissible evidence.
* appealing a conviction → eg accused found not/guilty.
* appealing due to severity/leniency of sanction imposed → in some circumstances may need a leave of court to appeal.

the role of the judge

* act as an ‘umpire’ at trial & ensure parties are treated fairly
* act impartially - no favouring, connections w parties etc

responsibilities of the judge

* manage the trial
* decide on the admissibility of evidence
* attend to jury matters
* hand down a sentence

manage the trial - responsibilities of the judge

* ensure strict rules of evidence & procedure are followed

eg prose. commences trial w presenting case, how wits are questioned ie cross-exam, exam-in-chief

* decide any questions of law which arise

eg parties may present evid. to suggest relevant law that applies to case, but judge must decide relevant law

* give directions during trial

decide on the admissibility of evidence - responsibilities of the judge

to be admissible, evidence must be:

* relevant to issues in dispute
* legally obtained
* be given by an eye witness or expert

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\*inadmissible evidence is not allowable - includes

hearsay evidence: when wit. relies on something that someone else said in a situation, but wit. didn’t actually see what happened. → evidence not adequately tested.

exceptions to hearsay - where person who made statement is not available to give evidence and certain circumstances.

attend to jury matters - responsibilities of the judge

* supervise the selection & empanelling of jury

judge provides potential jurors w info about trial and accused to make sure any person can be excused from being juror depending on circumstances

* directing & summing up the case for jury

eg judge may direct jury on that accused is not required to give evidence and shouldn’t assume guilt due to this.

* asking clarifying questions

judge may ask questions, re/call wit. etc for matter to be clarified

hand down a sentence - responsibilities of the judges

* if jury finds accused guilty/accused pleads guilty → case will be set for plea hearing & the parties will make submissions about sentencing
* following the hearing, judge must hand down a sentence/impose a sanction accordingly to sentence guidelines in the Sentence Act.

the jury

a representative cross-section of the community, randomly selected from the electoral roll to decide on evidence in a legal case and reach a verdict.

responsibilities of the jury

* be objective
* listen to all the evidence
* follow judge’s instructions
* decide questions of the fact, deliberate and deliver verdict

be objective - responsibilities of the jury

jury must be unbiased and bring open mind to the task, put aside any prejudice or preconceived ideas. - no connection w the parties and decision of guilt must be solely based of the facts of the case

listen to all the evidence - responsibilities of the jury

* can take notes, but must also concentrate on what is taking place in courtroom → little attention can = discharge
* mustn’t undertake own investigation about case → can = penalty & discharge

follow judge’s instructions - responsibilities of the jury

* jury required to listen to directions and summing up given by judge. they can ask an explanation/question about any legal points they don’t understand

decide questions of the fact, deliberate and deliver verdict - responsibilities of the jury

* jury must take part in deliberations in jury room and form opinion.
* deliberations are confidential → generally not allowed to be disclosed.
* jurors should be undertaken freely w/o coercion of one juror by another to reach verdict.
* verdict must be made based on facts of case. → requires unanimous verdict (12/12), but may accept majority verdict (11/12), unless accused is charged w murder, treason.

prosecution

party bringing the criminal case to court.

accused

person who has been charged with a criminal offence.

responsibilities of the parties

* jury selection
* present the case
* give a closing address
* make submissions about sentencing

jury selection - responsibilities of the parties

both parties assist in empanelling the jury/deciding which 12 people will form the jury.

* both parties have the ability to challenge potential jurors with/out reason → limit of 3 challenges can be made to juror without reason, but no limit if there is a reason.
* party can request judge to give directions to jury during the trial (eg if prose. doesn’t call particular wit. accused can request judge direct jury on that fact)

present the case - responsibilities of the parties

* prosecution has the burden of proof and needs to present evidence to prove the facts
* prosecution is required to present to jury all credible evidence considered relevant to case even if it doesn’t benefit prose’s case.
* no obligation for the accused to give evidence or call any witnesses. can also stay silent (right to silence)

give closing address - responsibilities of the parties

* both accused and prose. are entitled to address jury to sum up the evidence after the close of all evidence

\- and before the closing address of the accused (prosecution)

\- and after the closing address of the prosecution (accused)

make submissions about sentencing - responsibilities of the parties

the parties may make submissions about sentencing to the court once/if the accused is found guilty

* usually occurs at a plea hearing that is held after jury delivers its verdict

legal practitioners

people who, on behalf of the parties, undertake the role of preparing and conducting a case.

* they must put duty to court over and above their duty to the client

2 types of legal practitioners that an accused is usually represented by at trial

* solicitor
* barrister

role of a solicitor

* drafting documents
* communicating w/ the other party & court
* preparing the case
* researching the law
* developing the evidence
* instructing the barrister

role of a barrister

* present evidence at trial
* argue the case

responsibilities of legal practitioners

* comply with their duty to the court
* present the case in the best light possible

comply with their duty to the court - responsibilities of legal practitioners

they owe a duty to the court → means that they must act ethically & in accordance w/ the law, even if it means going against the client’s wishes/instructions.

present the case in the best light possible - responsibilities of legal practitioners

includes

* questioning the witnesses. → to test evidence eg exam-in-chief, cross-exam, re-exam.)
* summing up the evidence & giving a closing address.
* making submissions about the appropriate sentence. - if accused pleads/is found guilty

sanctions

a penalty imposed by the courts

* the Sentencing Act establishes types of sanctions that can be imposed

aims of sanctions

* rehabilitation
* punishment
* deterrence
* denunciation
* protection

rehabilitation

serves to assist the accused to become a law abiding citizen & prevent reoffending

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includes:

* treatment of offender - often required to help address cause and reasons behind offending
* DTO
* CCO
* rehabilitation programs offered to prisoners in prison system eg life skills program

punishment

purpose is for society to feel that there has been some revenge/retribution against the offender for their unacceptable behaviour.

* should be appropriate to offence so that society feels justice has been served

deterrence

aims to discourage the offender/other people from committing the same/similar offences. can also act as a disincentive.

* two types: specific and general deterrence

specific deterrence

aims to deter the offender from re-committing the offence

general deterrence

aims to deter the community by signalling that a particular crime will attract a harsh penalty

denunciation

refers to the disapproval or condemnation of the court

* court seeks to highlight the gravity of an offence by imposing a more significant sentences, thereby denouncing the crime

protection

allows for the community to be protected from the offender by removing an offender from society and putting them into prison

* CCO, imprisonment

protection - indefinite sentence

* if a person is convicted of a serious crime, court may sentence offender to an indefinite term of imprisonment.
* can only be imposed if satisfied to high degree of probability that offender is a serious danger to the community because of:

\- character, past history, health, age, mental condition

\- nature & gravity of offence

\- any special circumstances

fines

a monetary penalty paid by the offender to the state

* expressed in levels 1-12 penalty units (11 in vic)

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→ achieves deterrence, denunciation, punishment

factors to consider when evaluating fines

* financial circumstances of offender


* burden payment of fine will impose
* loss/damage/destruction of property suffered as result of offence

if fine can’t be paid = CCO, imprisonment or instalment plans etc

* is there a more appropriate sentence?
* does the fine have ability to denounce crime?
* is fine sufficient enough to act as general deterrent?

community correction order

supervised sentence served in the community by the offender under special conditions (eg treatment, upaid comm. work)

* can be imposed for up to 2yrs in MC, 5yrs in higher courts & can be combined w 1 yr imprisonment

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→ achieves deterrence, punishment, protection, rehabilitation

eligibility for a CCO

* offender has been convicted/found guilty of an offence punishable by 5 penalty units
* court has received a pre-sentence report
* offender consents to the order

ineligibility for a CCO

cannot be imposed for:

category one offences including

* murder, causing serious injury intentionally/recklessly, rape, incest, certain drug offences

category two offences including

* manslaughter, child homicide, kidnapping, arson causing death & injury, some drug offences → except in some circumstances

conditions of a CCO

* core conditions: applies to every offender
* special conditions: applies to a specific offender

core conditions of a CCO

* must not commit another offence punishable by imprisonment during period of order
* must report to specified CC centre within 2 days of order coming into force
* must report & receive visits of CC officer
* must notify an officer if change in address
* must not leave state w/o permission
* must comply w/ directions of CC officers

special conditions of a CCO

note: at least one must be attached to a CCO

* unpaid community work
* treatment & rehabilitation
* supervision
* non-association
* residence restriction
* place/area exclusion
* curfew
* judicial monitoring
* alcohol exclusion
* bond

imprisonment

where a convicted person is detained in prison for a period of time, losing their freedom and liberty.

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* last resort
* prison terms are expressed in levels from 1 (most serious) - 9 (least serious)
* if sentenced for 2 or more yrs, court must state minimum non-parole period

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→ achieves deterrence, denunciation, punishment, protection & rehabilitation

types of prison sentences

* concurrent - multiple sentences that are served at the same time
* cumulative - sentences are added together (used in serious offences)

types of sentences

* aggregated sentence
* indefinite sentence

aggregated sentence - types of sentences

means instead of imposing separate sentences for each offence, judge gives combined sentence for the multiple offences committed

* imposed where an offender has been convicted of multiple related offences.

indefinite sentence - types of sentences

a sentence of imprisonment with no fixed end date.

* can be imposed on an adult convicted from serious offences (murder, child homicide, sexual offence w/ under 16)
* only imposed if court is satisfied to high degree of probability that offender is a serious risk/danger to the community → owing to their character, mental condition or the nature & gravity of the offence

sentencing factors

* aggravating factors
* mitigating factors
* guilty pleas
* victim impact statements

aggravating factors - sentencing factors

circumstances/factors that increase the offender’s culpability and seriousness of the crime, as well as the sentence the offender receives.

aggravating factors - list

* use of violence
* nature & gravity of the offence
* any vulnerabilities of the victim(s)
* offender being motivated by prejudice/hate
* offence in taken in front of children
* breach of trust by offender toward victim
* offence occuring while offender was on CCO, bail or parole

mitigating factors - sentencing factors

circumstances/factors that reduce the offender’s culpability and seriousness of the crime, as well as the sentence the offender receives.

mitigating factors - list

* offender showing remorse
* offender having no prev. records/is of good character
* offender was acting under duress
* offender has shown efforts towards rehabilitation
* offender was under personal strain
* offender had difficult upbringing
* injury/harm caused by offender was not serious
* offender is young/had some disability
* early guilty plea

guilty pleas - sentencing factors

* must be taken into account by court
* earlier guilty plea = larger impact on sentence

→ saves time, cost and trauma for all parties from having to go through full trial

→ guilty plea = discounted/decreased sentence imposed

victim impact statements - sentencing factors

a statement filed to the court by a victim that is considered by the court when sentencing

* can include injury suffered/experience victim had etc