Legal Studies - Unit Two, Area of Study One: Sanctions

Similarly to how I felt with Business Management, I noticed an increase in the difficulty of work with this unit in comparison to the previous one. I noticed it even more so in Legal Studies opposed to Business Management.

Area of Study One of the second unit focuses on criminal law and how it imposes sanctions on offenders.

Principles of Justice

We were introduced to the principles of justice in unit one. They do make a re-occurrence in this area of study also. In case you forgot, they are fairness, equality and access.

Fairness relates to that there should be fair legal processes, hearings and trials. This includes ensuring that all decisions made are objective and free of prejudice.

The principle of equality states that all people should be treated and viewed as equal by the law regardless of personal characteristics.

Lastly, access relates to giving all individuals the ability to understand their legal rights, having the opportunity to use legal facilities and acquire legal information.

Bodies Which Enforce Criminal Law

In Victoria, there are several organisations which are given the right to enforce criminal law. Some of these institutions include:

Victoria Police
Australian Federal Police
Delegated Bodies (such as WorkSafe and local councils)

The role of the police is to serve the community and enforce the law. They do this by preventing crime, assisting victims and preserving peace.

Victoria Police is the main institution which enforces criminal law in the state. They do so by talking to victims, questioning suspects, examining crime scenes, arresting suspects and charging offenders. They prosecute summary offences and investigate indictable offences. Meanwhile, the Australian Federal Police enforce and investigate offences which are of a federal concern.

A delegated body is an organisation which is given the power to make and enforce the law by the Victorian parliament. Examples of state delegated bodies are WorkSafe, VicRoads, local councils, Environmental Protection Authority and Consumer Affairs. Examples of Commonwealth institutions which have the power to enforce criminal law include the Australian Securities and Investments Commission and the Australian Taxation Office.

The delegated body WorkSafe Victoria upholds the Occupational Health and Safety Act, which ensures the health and safety of employees. This delegated body has the ability to monitor and enforce behaviour in workplaces so it aligns with the law.

Another delegated body is local councils. The role of local governments is to establish and enforce laws related to promoting peace to local districts. They create by-laws, which are laws created by local governments.

Stages of a Criminal Case

Stages of a Criminal Case - Institutional Powers vs Individual Rights

Arrest

Institutional Powers

Power to arrest comes from the Crimes Act 1958.
Police can arrest without a warrant to preserve public order, prevent offender from re-offending and ensure the safety to the community.
Police can use reasonable force when arresting someone.

Individual Rights

People can refuse to attend a police station unless they are arrested.
People must be informed about their case.
Trial must occur within a reasonable amount of time.
They don’t need to say anything other than their name and address.
Must be released on bail or be brought before a bail justice.

Questioning

Institutional Powers

The power to question individuals comes from the Crimes Act 1958.
Investigating officer has the power to question the offender.

Individual Rights

A Suspect must be informed that they don't need to say anything.
Must be informed that they can talk to a friend or lawyer.
Have an interpreter if needed.
If the suspect is a child, they need to have a parent of guardian present.

Bail

Institutional Powers

The power to grant bail comes from the Bail Act 1977
Court, bail justice or police officers have the right to refuse bail.
Bail can be denied if the offender is viewed as a risk to society or can interfere with witnesses of justice.
Conditions will be imposed on the accused, such as reporting to a police station or surrendering passport.

Individual Rights

Bail must be granted with 24 hours of being taken into custody, after a hearing or a case being adjourned.

Court Proceeding

Institutional Powers

Court has the power to decide on guilt and determine a charge for a crime.
The court has the power to impose the maximum penalty for a crime if they see fit.

Individual Rights

The Charter of Human Rights and Responsibilities protects individual rights.
Individuals are considered innocent until proven otherwise.
Offenders have the right to be informed about their case.
Right to have time and resources to prepare a defence.
Have access to Legal Aid.
Right to be trialed without delay.
Right to have an interpreter if needed.

Imprisonment

Institutional Powers

Institutions have the power to search prisoners.
Have the power to seize unauthorised goods.
Have the authority to conduct drug tests.
Have an offender electronically monitored.
Right to read letters sent to the prisoner.

Individual Rights

Right to be in the open air for at least an hour per day.
Have adequate food, clothing and medical care.
Right to practice religion.
Right to receive half-hour visits from family and friends.
Children have the right to receive visits from family and have their developmental needs met.

The Criminal Jurisdiction of Victorian Courts

As explored in unit one, there is a hierarchy of courts in Victoria. These courts are put in place to determine the guilt of an accused and impose sanctions on them.

Courts have both an original jurisdiction and a appellate jurisdiction. An original jurisdiction is when a case is heard for the first time in court while the latter is a court's ability to hear appeals.

The following is the jurisdictions of five Victorian courts:

Magistrate's Court

Original Jurisdiction: Summary offences, indictable offences heard summarily, committal proceedings an bail or warrant applications.

Appellate Jurisdiction: The Magistrate Court doesn't hear appeals.

County Court

Original Jurisdiction: Most indictable offences.

Appellate Jurisdiction: From Magistrate's Court against conviction.

Supreme Court (Trail Division)

Original Jurisdiction: Serious indictable offences.

Appellate Jurisdiction: From Magistrate's Court on question of law.

Supreme Court (Court of Appeal)

Original Jurisdiction: No original jurisdiction.

Appellate Jurisdiction: Appeals from County or Supreme Court.

Children's Court

Original Jurisdiction: Offences committed by children between the ages of ten and seventeen.

Appellate Jurisdiction: This court doesn't hear appeals.

Coroner's Court

Original Jurisdiction: Investigation of deaths and fires.

Appellate Jurisdiction: This court doesn't hear appeals.

Criminal Juries

Criminal juries are used in indictable offences which are trialed in the County or Supreme Court. Juries are only included in a case where the accused pleads not guilty. Therefore, juries are not seen in the Magistrate's Court, appeals or when an offender pleads guilty.

When selecting people for a jury, some individuals can be dismissed. They may be classified as either disqualified, ineligible, excused or challenged. The following is an explanation of each:

Ineligible: Individuals who have an occupation which involves the law or have physical/mental disabilities or disorders may be ineligible to partake in a jury.

Excused: People who are ill, care for dependents and find it difficult to attend court may be excused.

Disqualified: Criminal convicted or bankrupt people are dismissed.

Challenged: People can be dismissed with or without cause.

The role of a jury to to listen to the evidence and piece it together to meet a verdict.

The strengths of a jury include it being:

Independent
Involves the community
Based on evidence
Spreads responsibility
Reflects community values.

Meanwhile, the weaknesses of a jury include:

Not needing to give a reason for decisions.
Task is difficult.
Easily influenced by emotions or lawyers.
Jurors may have bias
Case may be delayed as judge needs to explain the law.

Purposes of Sanctions

Deterrence: To discourage the offender [specific deterrence] and society [general deterrence] from committing the crime.

Rehabilitation: To reform or treat the offender.

Denunciation: To demonstrate the community's disapproval.

Protection: Ensure the safety of society by preventing the offender from harming again.

Punishment: Penalise offender for their behaviour.

Types of Sanctions

Fines are a monetary penalty which offenders pay to the state. They are expressed in penalty units, making it easier to alter the dollar amount every year. The purpose of imposing fines is to punish offenders, deter offenders and the public and may denounce the crime.

Community correction orders (CCO) allow offenders to remain in society while serving their sentence. A CCO has two conditions: mandatory and optional conditions. Mandatory conditions, such as not committing an offence and receiving visits from a community corrections officer, are conditions which are imposed on every offender. Meanwhile, optional conditions are specific to an offender. Examples include having the complete unpaid community work, undergo treatment, having a curfew and having alcohol exclusion. The purposes of a community correction order include punishing an offender, specific and general deterrence, rehabilitation and protecting society by keeping the offender busy.

Imprisonment involves removing an offender from the community and placing them in prison. The purposes of imprisoning an offender include protecting the community, punishing the offender, deterring the offender and denouncing the crime. Imprisonment may lead to rehabilitation.

Factors Considered by Judges in Sentencing

Mitigating factors are factors in a case which decrease the severity of a sanction. They include being under duress, prospects of rehabilitation, personal strain endured by the offender and lack of harm involved in the offence. Other factors which may decrease the severity of a sentence include:

The nature of the offence.
Early guilty plea
Lack of prior offending
Showing remorse

Aggravating factors are factors which increase the severity of a sanction. Examples include using violence or explosives, the crime taking place in front of children, being motivated by hate and the offender exploiting and breaching their position of trust. Other factors which may increase the severity of a sentence includes:

The nature of the offence
Prior offending
Impact on the victim
Injury, loss or damaged which was a result of the crime.

Sentencing Practices

Sentencing Practices in Victoria

The government has become tougher on crime in some aspects. Legislation was passed to limit when CCOs can be imposed. Suspended sentences and home detentions have also been abolished. However, a therapeutic approach has also been implemented in other aspects, with the inclusion of the Drug and Koori Courts.

Therapeutic justice refers to when underlying personal and health issues which resulted in the crime are addressed. This intends to prevent recidivism.

Sentencing Practices in Norway

Similarly to Australia, Norway has a parliament and is a constitutional monarchy.
Sentencing options include imprisonment, preventative detentions, community sentences, fines and loss of rights.
The maximum term of imprisonment is 21 years. This is with the exception of war crimes, genocide and crimes against humanity, which have a maximum term of 30 years.
Norway's approach to sentencing is that the prisoner should serve their sentence as if they were outside prison, with a focus on rehabilitating the offender.

In Norway:

There is a low crime rate.
Recidivism is low.
There is a focus on rehabilitation.
The death penalty is illegal.
Victim-offender mediation is an option.

Alternative Approaches to Sentencing

Drug Court

The drug court deals with offences committed by offenders who were under the influence of drugs or alcohol. The court's intention is to address the dependency directly.

In order to be eligible to have your case heard in the drug court, you must:

Reside in an area which is serviced by the court
Plead guilty
Offence must be within the jurisdiction of the Magistrate's Court.
Punishable by imprisonment
Mustn't be a sexual offence or an offence which involved bodily harm.
Be dependent on drugs or alcohol.

The Drug Court imposes Drug Treatment Orders on offenders. This sanction aims to treat the underlying causes (drugs and alcohol) of offences and rehabilitate the offender. There are two parts of a drug treatment order, including the treatment/supervision part and a hypothetical custodial part.

The drug court is effective, as it addresses the underlying causes of an offence, connects the offender to the community, improves their health and wellbeing and has shown to reduce recidivism. However, there is a limited amount of offenders who can be given drug treatment orders and the program is intense, requiring lots of resources.

Koori Court

The Koori Court is available to Aboriginal offenders, proving an informal atmosphere and representation of the indigenous community.

In order to be eligible to have your case heard in the Koori Court, you must:

Be of Indigenous origin.
Within the jurisdiction of the applicable court.
Mustn't be a sexual offence.
Offender has or intends to plead guilty.
The accused consents to the case being heard in the Koori Court.

A typical hearing in the Koori Court involves the participants sitting around a table, being supported by a lawyer, family member or indigenous elder. The Magistrate takes advice from elders when making a decision.

The Koori Court has shown to reduce recidivism, address the underlying causes of the crime and provide access to fair and culturally relevant justice.

Diversion Programs

A diversion program involves the matter being dealt with outside of court and the offender complying with certain conditions imposed on them. Diversion programs are intended for first time offenders and allows them to avoid a criminal record and be rehabilitated.

In order for an offender to be eligible to have a diversion program imposed, they must meet the following requirements:

Accused must accept Magistrate's responsibility.
Parties in the case must consent.
Offence mustn't have a minimum or fixed punishment.

A diversion plan could involve the offender undergoing treatment, writing an apology to the victim, provide some form of compensation to the victim, take up education or a course, make a donation or do community work.

Diversion programs achieve rehabilitation and prevent recidivism in offenders.

And that's all! We were required to study two cases for this area of study. However, our SAC won't include questions in regards to those so I decided to leave a summary of those out. In addition, everyone probably studies different cases, so information regarding the cases my class studied would only apply to a minority rather than everyone.

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