Sentencing

necessity

urgent situations of clear and imminent peril when compliance with law demonstrably impossible

Duress(ss.17)

accused commits the offence under compulsion of threats of immediate death or Bodil harm

the person asking the threats is physically present

accused believes the threats will be carried out

Self defence (ss.34,35)

where accused is assaulted and uses as much force as reasonably necessary to defend from self from harm

so long as accused doesn’t intent to cause death or grievous bodily harm

where accused starts an assault

-victim responds with violence that could reasonably lead to accused death or grievous bodily harm

-accused believes he’s at risk of death or grievous bodily harm (subjective test)

-accused has tried to quit/retreat

-accused doesn’t intend to cause death or grievous bodily harm to v

-accused uses as much force bas reasonably necessary to repeal the attack

defence of others (s.37)

where accused uses as much force as reasonable necessary to defend someone under accused protection from assault

Defence of property (ss.38-42)

where accused uses as much force as is reasonable necessary to defend personal or real property

Provocation (partial defence) (s.232)

-accused is charged with murder

-accused commits the act that causes victims death in the heart of passion caused by sudden provocation by v

-v’s provocation is a wrongful act that would objectively deprive an ordinary person of self control

accused responded suddenly before there was time for accused’s passions to cool

murder conviction will be reduced to manslaughter

sentencing (s.718)

the fundamental purpose of sentencing is to protect society and to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful acts

b) to deter the offender and other persons from committing offences

c) to separate offenders from society, where necessary

d) to assist in rehabilitating offenders

e) to provide reparations for harm done to victims or the community and

f) to promote a sense of responsibility in oddernser and acknodlwgement of the harm done to victims or to the community

Sentencing (s.718.2)

aggravating circumstances

-motivated by bias, prejudice or hate based on race, national/ethnic origin, language, colour, religion, sex, age, mental/physical disabilities, sexual orientation

-domestic abuse

-child abuse

-abuse of trust or authority

-benefit of criminal organization

-terrorism offence

other principles

-similar sentences for similar circumstances

combined total of consecutive sentences shouldn’t be unduly harsh

-use the least restrictive punishment possible to avoid taking away liberty unnecessarily

take accused individual crisumstnaces into account, particularly if accused is an aboriginal offender

common intention (s.21(2)

accused and perpetrator form common intention to carry out illegal purpose

-perpetrator commits a crime while carrying out common intention

-accsued ought to have known that perpetrators crime was a probable consequence of carrying out the common intention

counselling (s.22)

accsued recommends, pricures, solicits, incites/urges, perpetrator to commit offence

-accused liable to same punishment as perpetrator

accessory after the fact (s.23(1) )

-accused knows perpetrator is a party of a crime

-accsued recieves, comforts or assist perpetrator to enable perpreator to enable perpetrator to escape

-accused is liable for half the punishment

liberal definition of victimhood

individual victim loses physical security or priggery because of actions of individual transgressor

problem

if state fails to protect individuals from tors, then rational to use force to protect self

-systemic biases can make individuals assume someone is a tor based on their race/gender, ethnicity etc

alternative definition of victimhood

those who suffer because of racially oppressive past/present are victimized by sweep of history

-role of state should be alleviate that suffering