The principles of justice and experiences of the Victorian criminal justice system

criminal aim:

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

a sanction: is a penalty (fine or imprisonment) imposed by a court on a person guilt of a criminal offence.

·         the principles of justice: fairness, equality and access (1.3.1)

Fairness:

ensures an accused and victim (prosecution) can experience an impartial hearing in the criminal hearing

Equality:

all people are treated the same in the criminal justice system so there is no disadvantage or inconsistency

Access:

enables an accused to understand their legal rights and the process their case will undergo.

·         institutions that enforce criminal law, such as the police and delegated bodies (1.3.2)

the role of the police is to:

serve the community and the law and to enforce criminal law.

other delegated bodies:

are given the authority by the Victorian parliament to enforce criminal laws.

• an authority or agency given power by parliament to make or enforce laws. for example the local council, the estate agent, work safe Victoria, consumer affair Vic, Vic road.

Victorian police (under the Victorian police act)

enforces criminal law by:

• talk to victim or witness about what happened

• questions possible suspect

• look for a grant physical or forensic evidence

• conduct search of people or property

Australian federal police

established under the Australian federal police act 2979

• the role of AFP is to investigate and enforce offence that have a federal aspect ( crimes against the law of the commonwealth or territory.

·         the balance between institutional powers and individual rights (1.3.3)

stages an accused goes through during criminal case

• arrest

• questioning

• court proceeding

• imprisonment of the offender

institutional power:

the authority given to bodies such as VictorianInstitutional powers must be balanced against the rights of individuals.

•      If institutions have too much power, individuals may be treated unjustly.

•      If institutions have too few or too limited powers, crime prevention and law enforcement may be difficult or impossible. police to undertake certain action

Arrest:

the rights of the police when making an arrest:

The police have the power to arrest an offender after a crime has been committed. they are able to arrest individuals without a warrant in certain situations. Police are the have rights in relation to an arrest. This ensures there is a balance between the power of arrest and the rights of an individual. These rights include the right to stay silent and the right to be informed of the reason for the arrest.

the rights of individuals in relation to arrest:

when arrested individuals have the right to refuse to attend the police station unless they are under arrest. individuals also have the right to silence when arrested and the right to be informed of the reason for their offence.

Questioning:

power of investigating officials has after arresting a person.

right of an individual when being questioned

• A person being questioned has the right to be informed of their right not to do or say anything, but also be informed that what they do say or do may be given evidence.

• A person must be informed that they can communicate with a friend or relative to Enform them of their arrest.

• A person has the right to have an interpreter, and they also have the right to remain silent when being questioned.

Court Proceeding:

Various powers are given to the prosecution, including the power to prepare the case, speak with witnesses, obtain evidence, and negotiate with the accused about an early guilty plea.

role of magistrate:

for summary offences:

hear and determines the changes and they decide on guilt.

for indictable offences:

determines whether there is evidence of sufficient Weight to support

powers for the prosecution:

• prepare the case

• speak with witness

• obtain evidence

• negotiate with the accused about an early Quilty plea.

human rights charter protects the accused during a proceeding.

this includes the rights to:

1. have the charge or proceeding decide by a competent.

2. be presumed innocent until proven guilty.

3. be informed promptly and indicial about the nature of and reason for charge

4. have adequate time and facilities to prepare for defense.

5. be tried without unreasonable delays.

6. obtain legal aid if the interest of justice requires it.

7. have the assistance of an interpreter if needed.

8. have the opportunity to allow challenge and rebut the evidence put against them.

Imprisonment:

is the sanction given as last resort, it aims to remove the offender from society and placing them in a jail for a period of time.

the correction act 1986 gives the manage prison: power:

the act gives them power to search and examine any person, seize unauthorized goods, arrange for medical tests for alcohol or drug and require a prison or for a person to be electronically monitored.

prisoner’s right (under section 47 of the correction act)

1. to be in the open area for at least an hour each day

2. to be provided with adequate food and whether necessary secularity food.

3. to be provided with suitable clothing

4. to receive at least on and a half-hour visit a week.

·         An overview of the role and criminal jurisdictions of the Victorian courts (1.3.4)

role of Victorian court in criminal case

If an accused pleads not guilty, it is the role of the courts to determine whether the accused is guilty by managing and hearing criminal proceedings.

•      Guilt is determined at a hearing in the Magistrates’ Court for a summary offence, or by a jury at a trial in the County Court or Supreme Court for an indictable offence.

• determine a criminal case (by deciding whether the accused is guilty)

• imposed a sanction 9 is s person have been found, or has pleaded guilty)

presides courts:

magistrate court: magistrate

county / supreme court: judge

Role of judge

is to keep order of the court, explain the law role to the jury, sentencing ( sanction).

committal hearing:

is where the magistrate decides whether there is evidence of a sufficient weight to support a condition.

judge role in regard to as sanction:

Jurisdiction’ refers to the right or power of a court to apply the law and hear cases.

•      There are two types of jurisdiction:

•      original jurisdiction – the power of a court to hear a case for the first time

•      appellate jurisdiction – the power of a court to hear an appeal.

·         the role of the jury in a criminal trial (1.3.5)

A trial by jury is a trial by peers in which an impartial group of people are randomly selected to hear the evidence and hand down a verdict as to whether the accused is guilty or not guilty.

when are they used:

Criminal juries are used in County Court and Supreme Court jurisdictions, Magistrates' Court, and appeals. They are not used when an offender has pleaded guilty, as their role is to determine guilt, not sanction.

what they do?

A criminal jury listens to evidence, concentrates, and decides guilt or innocence, ensuring a finding beyond reasonable doubt and aiming for a unanimous verdict.

·         the difficulties faced by different groups in the criminal justice system, such as First Nations people, young people, culturally and linguistically diverse people, people with mental health issues, and people with disabilities (1.3.6)

Young people:

•      In the criminal justice system, the term ‘young people’ encompasses children less than 10 years old (with respect to victims and witnesses only), children aged between 10 and 17, and young adults aged between 18 and 24.

Difficulties faced by some young people in the criminal justice system:

Young people facing challenges in the criminal justice system, including homelessness, First Nations, and family violence, may face difficulties such as a lack of understanding and negative effects of custody, which can lead to criminal associations and stigma.

Addressing difficulties:

The criminal justice system addresses difficulties through Youth Law, youth diversion programs, intermediaries, and national discussions on increasing the age of criminal responsibility.

Culturally and linguistically diverse people

•      The term ‘CALD’ is used to describe those people born overseas in countries other than ‘main
English-speaking countries’.

Difficulties faced by some CALD people in the criminal justice system:

CALD individuals face significant challenges in the criminal justice system, including limited knowledge of their rights, language barriers, and distrust, due to their disproportionate impact on family violence and overrepresentation in the system.

Addressing difficulties:

The criminal justice system addresses difficulties by providing free interpreters, information in various languages, specialist community legal centers for asylum seekers, and providing advice and resources for court personnel.

People with disability

•      ‘Disability’ includes physical disability, serious or complex mental health conditions or disorders, intellectual difficulties (such as learning difficulties) and sensory disabilities.

Difficulties faced by some people with disability:

People with disabilities face twice as much violence and abuse as non-disabled individuals, and are overrepresented in the criminal justice system due to physical barriers, lack of understanding, and lack of support services.

addressing difficulties:

The criminal justice system addresses difficulties by providing specialist courts, programs, courtroom adjustments, and specialist advice from community legal centers and VLA.

Sentencing

·         the purposes of sanctions: punishment, deterrence, denunciation, protection and rehabilitation (1.3.7)

Punishment:

Punishment involves punishing offenders for unacceptable actions, providing victims and their families with justice without taking the law into their own hands. In society, imprisonment is the most severe punishment. the severity of the sentence should reflect the actions of the crime. punishing an offender should also provide retribution for a victim of the crime.

deterrence:

The law aims to deter future offenses by implementing general deterrence measures, which discourage similar actions in society. There are two types of deterrence:

•  general deterrence – discourages others in the community from committing similar offences

•   specific deterrence – discourages the offender from committing further offences

Denunciation

•      Denunciation is a purpose designed to demonstrate the community’s disapproval of the offender’s actions and to show that this type of criminal behaviour will not be tolerated by the courts.

Protection

Protection sanctions aim to ensure society's safety by preventing offender harm and may involve imprisonment to prevent further harmful acts. offenders may be imprisoned so they cannot commit more harmful acts.

Rehabilitation

  Rehabilitation aims to  reform an offender in order to prevent them committing offences in the future.

·         types of sanctions such as fines, community correction orders and imprisonment (1.3.8)

fines:

A fine is a sanction requiring an offender to pay a sum to the state, often imposed alongside or separately from a sentence. It can be based on factors like financial situation, property damage, value received, forfeiture, compensation, or restitution order. Courts can order installment payments, and failure to do so can lead to arrest. The main purposes of fines are to punish offenders, deter further crimes, and deter the community.A CCO can be imposed if:

community correction orders:

Community correction orders (CCOs) are flexible, non-custodial sanctions for offenders, with conditions attached. They can be mandatory or optional, and can be imposed on category 1 offenders. CCOs can achieve punishment, general deterrence, specific deterrence, rehabiliation, and protection.

imprisonment:

Imprisonment is a sanction that removes an offender from society for a specified period and places them in prison. It can be imposed at Levels 1, Level 9, or Level 9, with a maximum penalty for each offense. For category 1 offences, imprisonment is the only option. Parole is an early release from prison, and concurrent or cumulative sentences may be imposed. Imprisonment serves various purposes, including community protection, punishment, deterrence, denunciation, and rehabilitation.

·         factors considered in sentencing (1.3.9)

Factors that may reduce the sentence

Factors that may increase the sentence:

·         alternative approaches to sentencing, such as the use of the Drug Court, Koori Courts and diversion programs (1.3.10)

The Drug Court

The Drug Court is a division of the Magistrates' Court and County Court, designed to address drug and alcohol dependency in sentencing offenders. It imposes a drug treatment order (DATO) on offenders who meet certain criteria. Eligibility for DATO involves a screening process to determine the offender's suitability, prior and current offenses, and the significant factor of drug or alcohol abuse in the offending. After screening and assessment, a treatment plan is prepared and a DATO is imposed. The Drug Court benefits both participants and the community, with a 2014 KPMG report indicating a significant reduction in reoffending rates, cost savings over a two-year period, and improvements in participants' health and wellbeing. However, only a limited number of offenders can be offered a DATO.

The Koori Court

       The Koori Court is a division of the Magistrates' Court, Children's Court, and County Court, offering sentencing to First Nations accused persons. It provides an informal atmosphere and allows representation from the First Nations community. Eligibility criteria include being a First Nations person, the offence being within the relevant court's jurisdiction, not being a sexual offense, and the accused intending to plead guilty or has pleaded guilty. The Koori Court is less formal than other courts and has been proven effective in reducing recidivism, improving offenders' experiences, and providing fair, culturally relevant justice.

Diversion programs:

Diversion programs are available for summary offences in Magistrates' Court and Children's Court, allowing offender to avoid a criminal record and court sentence. Eligibility for these programs requires admitting responsibility, consent from both prosecution and accused, and the offence not punishable by a minimum or fixed sentence. Successful completion of a diversion program may involve treatment, apology, compensation, education, or community service. The Victorian Government's evaluation of the Children's Court program found a positive impact on reoffending rates.

·         sentencing practices in one other Australian jurisdiction. (1.3.11)