UNIT 3: AOS 1B – Criminal case

Criminal justice: System of procedures and institutions used to investigate and determine
criminal case.

Legal institutions: (Victorian legal aid or Victorian community legal centres)

1. (Victorian legal aid) VLA is a government agency that provides free legal advice to
the community and low cost or no cost representation for people who cannot afford
a lawyer. It is means and income tested. Takes more serious indictable offences

Roles –
 Provide legal aid to accused people
 Provide the community with improved access to justice and legal remedies
 Control and administer legal aid fund
 Make recommendations about law reform

Two main sources of Funding –

 Victorian and commonwealth government
 Public purpose fund (PPF) this comes from lawyers and legal practices

How VLA provides accessibility –

 Website or online resources
 Free telephone legal help line
 Interpreters available in over 20 languages

Reforms in VLA –
 In 2016 changes were made that expanded the eligibility for people to receive
assistance by increasing the means testing. Creating VLA more accessible for
approximately extra 700 people a year

2. (Victorian community legal centres) CLA

 Community legal centres (CLCs) provide free legal services, including advice,
information and representation to people who are unable to access other services.
Takes up more summary offences. There are two types –
 Generalists CLCs provide broad range of legal services to people from a particular
geographical area
 Specialists CLCs focus on particular groups of people or areas of law

Role of CLCs –
 Provide information, legal advice
 Provide lawyer assistance
 Offer legal representation and assistance
Committal hearings –

committal hearing: Criminal pre-trial procedure held in the magistrate’s court where an
accused pleads not guilty to an indictable offence/s to establish whether a prima facie case
exists, that is if there is enough prosecution evidence to support a conviction at trial.

Purposes:
1. To decide whether a prima facie case exists, that is if there is sufficient prosecution
evidence to support a conviction by a jury at a trial
2. To ascertain how accused wishes to plead – a committal mention identifies those case
where the accused intends to plead guilty.
3. To provide a fair hearing by disclosing all prosecution evidence to the accused to ensure
they make an informed decision thus proving access.

Process:
Hand up brief method – Written documents and evidence are used instead of hearing
witnesses. This save all parties and the legal system time and also reduces the emotional
distress of victims having to face the accused.

Direct indictment – When a case proceeds to trial without a committal hearing. The
accused must agree

Plea negotiations: Plea negotiations are discussions that take place between the
prosecution and the accused aimed at resolving a criminal case by agreeing on an outcome
to the criminal charges. They can mean the accused pleads guilty to fewer charges or a
lesser charge though does not determine the sentence.

Purposes -
1. To resolve a criminal case by ensuring a guilty plea to a criminal charge that
adequately reflects the crime committed
2. To achieve a prompt resolution on to a criminal case without the cost, time, stress,
trauma and inconvenience of a criminal trial providing fairness

Factors considered when deciding if it is appropriate to hold plea negotiations –

1. Whether the offender is willing to cooperate in the investigation of co offenders and
thus help the community
2. The time and expense involved in trial
3. Whether the witnesses are reluctant or unable to give evidence which would
jeopardise the prosecutions ability to achieve a conviction
4. Whether the accused is willing to plead guilty
 Appropriateness of plea negotiations Weakness of plea negotiations
Prosecution is able to get a conviction for Controversy arises when serious charges
the crime and the offender receives a are downgraded. Public lose faith in
sanction criminal law justice system.
Process streamlines pre-trial and trial Lacks transparency, negotiations not
procedures and reduces delays in legal subject to review or appeal and are not
system reported, currently no legislative guidelines
to plea negotiations procedures

Sentence indications –

Sentence indications: Allowed via the criminal procedure act (2008 sentence indication
regime) and can be given for both summary and indictable offences. They are a statement
made by a judge to an accused about the likely discount to a sentence they would receive if
they plead guilty to an offence.

Custodial sentences: Offender is incarcerated. The custodial part of the sentence is the part
where the offender serves time imprisoned.

Purposes:
1. To provide clarity to the accused about the likely sentence
2. To hopefully red1uce the severity of a sentence by pleading guilty early
3. To save the cost, time and resources of a long trial if an accused plead not guilty

Appropriateness of sentence indications:

1. The court hearing the charge. The county and magistrates court are more likely as
supreme court offences are severe and likely to receive a custodial sentence
2. The strength of evidence against the accused and the legitimacy of their defence
3. For indications offences whether an indication has already has been given it can only
be given once unless the prosecution consents
4. The type of offences the sentencing advisory council has said it is not appropriate in
sex offence cases.

Process –

Indictable offences Summary offences

1. Accused must apply for sentence 1. Can be given at any time by
indication and prosecution must Magistrates court and no need for
consent in county or supreme court. prosecutions consent
2. Indications as to whether 2. Indications as to whether sentence of
immediate sentence of imprisonment or sentence of another
imprisonment is likely to be type is likely
imposed
 3. If sentence indication is given of 3. If court is given indication of
non-custodial and accused pleads sentence and offender pleads guilty at
guilty at next available time, a next available time, the court cannot
custodial sentence must not be impose a more severe sentence
given
4. If sentence indication is given but 4. If sentence indication is given but
accused pleads not guilty judge accused pleads not guilty, magistrates
must be changed. must be charged.

Reasons for court hierarchy in criminal cases –

Court order:
1. High court
2. Supreme court of appeals
3. Supreme court trial division
4. County court
5. Magistrates court
Country court
Coroner’s court

Original and appellate jurisdiction:

Original jurisdiction is the ability of a court to hear a case for the first time or first
instance
Appellate jurisdiction is the power of a court to hear a case on appeal for review

Original jurisdiction Appellate jurisdiction

Magistrates court All summary offences N/A
heard summarily,
committal hearings and
bail/warrant applications
County court Indictable offences From magistrates court
except for murder and on conviction
serious related
Supreme (court trial Most serious indictable From magistrates court
division) offences on point of law
Supreme court (court of No original jurisdiction Appeals from county
appeal) court or the supreme
court.

Reasons for a court hierarchy specialisation: The court hierarchy allows each court to
develop skills, expertise and processes to deal with the specific type of disputes, for
ex. Supreme courts specialise in serious cases and appeals I.E murder. Court
hierarchy all courts would hear the same disputes.
Reasons for a court hierarchy appeals: Enables any person who is not satisfied with
the outcome of a case to appeal to a higher court to have the case re heard and
earlier decision reviewed and perhaps changed. Provided with reasonable grounds
on appeal is based, these grounds are on a question of law, conviction or the section
imposed.

Key personal in a criminal trial –

(Judge, jury, parties, and legal practitioners)

 Judge: Impartial and independent umpire of a trial. They manage the trial and
ensure correct procedure is followed to provide equality. Decide on
admissibility of evidence, empanel and direct jury and sum up case for them.
Also rules on point of law, hands down a sentence if guilt is proven.

 Jury: Trial by one’s peers. Jury of 12 used in criminal trials in supreme and
county courts of indictable offences. Role in criminal trial to listen to and
remember all evidence and submissions. Take direction and follow
instruction from the judge, deliver a verdict of guilty and not guilty.

They must also acquit an accused if the judge directs them to. Jurors can be
challenged peremptorily (no reason) or for cause (for a reason)

 Parties: Accused and prosecution. Prosecution initiates the case against the
accused, each party has complete party control and must follow procedure of
trial, each party must give opening address, assist the judge in jury matters
such as giving statements, presents the party’s case and giving closing
address.

 Legal practisers: Legal practitioners on behalf of the parties, prepare and

conduct a case. In criminal case, prosecutors are legal practitioners. Accused
will usually have both a barrister and solicitor.
Role to be prepared, comply, with procedures and their duty in court,
present their case in the best possible light and to advise their party.
Purposes of sanctions –

Purposes of criminal sections are set out in section 5 of the sentencing Act.

Recidivism: the tendency of a convicted criminal to reoffend. Victoria’s

current recidivism rate is 42%

Sanctions –

 Rehabilitation: Treatment of the offender to address underlying

reason for the offender committing the crime and reduce recidivism.
Community corrections orders (CCO) encourage rehabilitation rather
sending offenders to prison. Treatment for drugs, violence and
vocational studies to increase education

 Punishment: Penalises the offender and gives the community some

retribution for the crime. Punitive measure must be appropriate for
the crime and must be just.

 Deterrence: Punishment is often inflicted with the intention of setting

an example to others. General deterrence discourages other people
from committing similar crimes through harsh sanctions. Specific
deterrence discourages the offender from reoffending through harsh
penalties.

 Denunciate: Purpose demonstrate the disapproval of court and

community for a crime A severe sentence may be imposed to show
disapproval.

 Protection: Safeguard community the community from offender.

Incarceration is the only sure way to protect the community to
remove a offender. A non-custodial sentence such as a CCO can
protect by keeping offender occupied. However, to a lesser degree.
Sentencing act allows serious offender to be given a longer sentence
to protect community.
Type of sanctions –

Sanction Purpose Achievement of

purpose
Fine A fine is a sanction that Fines punish an Can achieve purpose of
requires the offender to pay offender by ordering the penalty unit is
an amount of money to the them to pay money to serve enough that it
state of Victoria. It is the the state. Therefore, affects offender’s
most common type of the circumstances of livelihood the impact
sanction, can be given on its each offender matter can deter them to
own or imposed with another to the judge or reoffend.
sanction, and can be given magistrate as it needs
with or without recording a to be enough money to Similar offenders may
conviction. act as a parliament. be deterred if the
sentence is significant
Specific deterrence enough
making offender to pay
enough money they Cannot achieve
don’t want to commit purpose
offence again Does not serve as just
punishment if offender
General deterrence to is wealth,
indicate to public the circumstances must be
public penalty for taken into
committing such a considerations,
crime discouraging
others. Denunciation Fine may not be
to give significant enough to generally
crime for large impact. deter the community
from similar crimes.
Community A community corrects order Punish the offender by Can achieve purposes
Correct is a non-custodial flexible and imposing conditions to Rehabilitation
order supervised sentence served restrict their liberty conditions promote
in the community. Courts and to check in treatment and positive
may apply conditions to community corrections self image of an
match the circumstances of officers, offender, treatment
the offender and nature of Rehabilitation by the cause of the
the crime such as conditions that require offending and thus
rehabilitation program CCO treatment such as lowering recidivism
can be imposed for no more alcohol exclusion, and rate.
than 5 years in Vic courts, the treatment this
court can impose a CCO if: rehabilitates by Conditions attached
Offender convicted of offence treating the underlying restrict the offenders
punishable by more than 5 cause of the offending liberties and punish
penalty units. Court has and reducing them by doing so thus
received pre-sentence report, recidivism. providing just
offender consents to order. punishment and also
 Conditions attached includes: Protection by treating deterring them from
Not leaving Victoria without the underlying cause of reoffending
permission, undertake the offending thus
rehabilitation and complete lowering recidivism, Not able to achieve
unpaid community work. protecting community With the offender back
from reoffending. in the community the
risk of reoffending is
higher than
imprisonment,
reducing protection of
the community,
The offender may not
comply with the
conditions and so they
are not being
adequately punished
for their crime.

Imprisonme Imprisonment is the sanction Protection - the Does achieve purposes

nt of last resort and removes an society by removing This is the only sanction
offender from society for a the offender so they able to completely
period of time to serve their are physically unable achieve the purpose of
sentence, taking away their to offend within protecting the
liberties and freedoms. It is a society. Imprisonment community as it
custodial sentence expressed is the only sanction removes the offender
in levels from 1-9 that has a that fully provides this from society.
minimum and maximum Punishes – the There are rehabilitation
term and can be served offender by taking programs in prison,
cumulatively and away their liberties particularly educational
concurrently and incrassates them ones that promote
Rehabilitation – education and
because of the various upskilling providing
programs such as employability and
vocational studies to ultimately promoting a
educate prisoners and law abiding life through
enable employment employment.
thus re
Doesn’t achieve
purposes
Recidivism rate is 43%
indicating that
rehabilitative measures
have not been
successful at treating
the cause of the
offending
 Prisoners are often
exposed to other
criminals who may
have negative
influences on them,
promoting reoffending
once they released.

Factors that affect sentencing –

Aggravating sentence: Circumstances about the offender that can increase the seriousness
of the offence or the offender’s culpability and a higher sentence should be Imposed. These
factors include
 The use of violence, explosive or weapons when committing the offence
 Nature and gravity of the offence (unprovoked or brutality)
 The offence taking place in front of children

Mitigating factors: Circumstances that a court should considered when determining the
appropriate sentence for an offender that reduce the seriousness of their culpability and
lead to less severe sentence. These include
 Remorse shown
 No previous convictions
 Offender has cooperated with police
 Offender pleaded guilty early

Guilty plea: A guilty plea at an early stage before trial or hearing or at the start of a trial can
result in a less severe sentence. This is because an early plea saves the time, expense and
resources of a trial, benefiting the prosecution, victim and the justice system. It rewards the
victim for admitting to the crime.

Victim impact statement: A victim impact statement contains particulars of any injury, loss
or damage suffered by the victims as a result of an offence and can include medical reports.
The court must also take into consideration these impacts when sentencing the offender.