UNIT 4 – AOS 2

Criminal Post-trial Procedures

SANCTIONS

What happens after the trial??

If the defendant is found not guilty, the case is acquitted, they will be free to go and no further

action is required.

If the jury are unable to reach a decision, a hung jury will be declared, and a new trial with a new jury will be required.

If the defendant is found guilty beyond reasonable doubt, the jury will read their verdict, and the judge will set a date for sentencing, the convicted offender will be handed down a sanction.

Sentencing- The sentencing hearing

Judge will determine the appropriate sentence to give, both prosecution and defence present information about the offender to assist the judge

Court may consider statements from victims, Victim Impact Statements (VIS).

Judge is guided by the Sentencing Act 1991 which outlines relevant guidelines to be taken into account.

Judge needs to take many things into consideration such as; degree of culpability, seriousness of offence, maximum penalty for the crimes, current sentencing practices.

Purpose of Sanctions

A legal penalty for breach of criminal law.There are 5 purposes of sanctions.The Sentencing Act 1991 sets out these

purposes

rotectionunishmentehabilitiationeterrenceenouncement

PPRDD

Protection

Ultimately, this purposes has the aim to look out for the well being of the community.

Sanctions should operate to protect the community against the potentially harmful actions of individuals.

Eg: removing the offender from the community, extinguishes the threat of harm to others. Imprisonment however is seen as a last resort.

Punishment

The offender should be punished for the crime(s) that they have committed.

Punishment must be fair & justThe punishment should be comparable to the

offence committed.Eg: it would not be just or fair to sentence a

16 year old individual who stole a chocolate bar from the milk bar to 10 year imprisonment.

Rehabilitation

Fundamentally important in assisting the offender to learn from their wrong doing.

We want to not only punish, but also change or modify the behaviour of the individual so that they are less likely to “reoffend”.

This could include drug/alcohol rehab programs, education programs.

If we eliminate the causes of the criminal behaviour, the criminal behaviour should also be eradicated.

Eg: someone who burgles houses to fund drug addiction, removing the addiction, should remove the need to offend in the future.

Deterrence

The aim with this purpose is to prevent the offender from wanting to commit the same or similar crime(s) again

Also to deter the greater community from partaking in criminal activity

Eg: if you see that someone who is late to class 3 times gets an automatic suspension and cannot go to the valedictory dinner, you will be deterred from engaging it that same behaviour

Denouncement

This relates to sending a message to the offender that the community does not accept this type of behaviour, the court/judge condemns this behaviour

It also shows the community that this behaviour will not be tolerated and does not fit in with expectations and values of society.

Eg: a court may give a particular hard sentence to someone found guilty of a violent rape to show disapproval

Types of Sanctions

FINES...

Most common penalty imposed on offendersIt involves a monetary penalty on an offender.Can be imposed with OR without a convictionActs will usually set out the maximum fine penalty

for a particular offence, this is measured in penalty units.

Penalty units are arranged into 12 levels, each level is set to the particular amount of penalty units.

Penalty units vary each financial year according to inflation and other economic factors. Eg: 1 penalty unit in July 2010, will be different from 1 penalty unit in July 2003.

Penalty units..

2010/2011;One penalty unit = $119.45 2007/2008;One penalty unit = $110.12

Eg: A crime which has a level 9 maximum fine (60 penalty units)

10/11 = (60 x 119.45) $7,167.00

07/08 = (60 x 110.12) $6,607.20

Same penalty units, but thevalue of penalty units changesover time.

How do fines fulfil the purposes of sanctions?

A fine serves to punish the offender and may act as a specific deterence in that the offender may be deterred from reoffending as they cannot afford to pay for another fine.

Members of society may also be generally deterred due to the possibility of having to pay a fine.

Fines are unlikely to rehabilitate the offender, also it does not aim to protect society as it does not remove the offender from society (eg: speeding fine, does not take them off the road so to not injure the community)

If the fine was large enough, it could should denunciation for the offence.

Are fines fair?? – Folio pg 315

Suspended Sentences

If a term of imprisonment of no more than 2 years in the Magistrates’ Court or no more than 3 three years in the County or Supreme Courts, whole OR part of the sentence to be served in prison can be suspended. The offender then does NOT actually attend prison.

During the suspension is the offender re-offends it is likely the original sentence in addition to a further sanction for the new offence will be imposed.

Eg: a court may feel that alcohol or drug addiction significantly contributed to the criminal behaviour and order the imprisonment sentence to be suspended while the individual undergoes rehabilitation within the community.

Reforms around suspended sentences

There is massive community concern over the use of suspended sentences and the extent to which they reflect community values.

The Sentencing Advisory Council (SAC) undertook a review of suspended sentences and made a number of recommendations. The Sentencing (Suspended Sentences) Act 2006 (Vic.)

One change was that a court MUST NTO impose wholly suspended sentences for serious offences (murder, rape, armed robbery, sexual offences involving minors etc), unless there were ‘exceptional’ circumstances.

Suspended Sentences continued...

They were also advised that other factors such as the likelihood that the suspended sentence would deter the offender from re-offending and whether it adequately denounces the offenders action’s and reflects the gravity of the offence, should be taken into consideration.

Suspended sentences misused: report – The Age 22/7/10

Vic govt to scrap suspended sentences – Sydney Morning Herald 14/5/10

A record number of serious criminals were freed with "slap on the wrist" sentences last year – The Herald Sun 22/3/10

Do suspended sentences reflect community values?

How do suspended sentences fulfil the purposes of sanctions?

Suspended sentences can act as punishment for an offender, who has a recorded prison sentence.

They also allow offenders the opportunity to rehabilitate themselves and undergo treatment.

Some members of public argue they are not a sufficient deterrent, as they see it as a way of escaping a prison time.

They do not attempt to protect the community as the offender is not in custody, but rather allowed to remain with the community

Suspended Sentences Case Study

School crash driver had drink-driving record- The Age 21/5/05

Crash driver allegedly unlicensed and over .05 – The Age 20/5/05

Community based orders (CBO’s)

CBOs are supervised sentence served within the community.

Conditions imposed by a CBO combine unpaid work and treatment.

The idea is to put back into the community while rehabilitating the offender.

The judge must be satisfied that the offender is suitable for a CBO and the offender must adhere to the conditions of the CBO, breaking these conditions is a criminal offence.

CBO’s continued..

An offender cannot complete more than 20 hours unpaid community work per week.

Can be imposed for a period of up to 2 years. Conditions of a CBO are that the offender:- Does not commit another offence punishable by

imprisonment- Reports to and receives visits from a community

corrections officer (CCO) regularly- Obeys all instructions & directions from CCOOffender may also have other conditions

attached such as compulsory educational programs.

How do CBO’s fulfil the purposes of sanctions?

Punishes the offender, because it demands the offender give up their time to put back into the community.

It also serves as a deterrence to both the wider community and to the individual for the future.

A CBO aims to protect society as it occupies the offenders time when he/she may be otherwise likely to commit a crime.

It also aims to rehabilitate the offender by helping them contribute to the community & take part in educational and rehabilitation programs.

Rex Hunt gets community service (CBO)

Youth Justice/Residential Centre Orders

Young offenders aged between 15-20 years of age, can be sentenced to serve a period of time in custody at a Youth Justice Centre, for no longer than three years.

These youths are usually repeat offenders, and have already been sentenced to a number of CBOs.

Young people between the ages of 10-14 years can be sentenced to a Youth Residential Centre Order.

At the YJC, a case worker will work with the young person and help them reform their behaviour, by participating in things such as; educational (TAFE) & drug rehabilitation programs.

How do YJC Orders fulfil the purposes of sanctions?

Punishes the offender by taking away the young persons liberties and freedoms.

Sends a strong message about the court’s disapproval of the offenders actions (denunciation).

They act as a deterrent by giving the offender an insight into the likely consequences or further unlawful actions

There is a very strong focus on rehabilitation while the young person is carrying out their sentence inside a YJC.

The community is also protected from the actions of the offender, as they are removed from society.

Imprisonment

Most severe sanction and seen as a last resort. It involves an individual being denied of their

liberties and freedoms, and being detained in a corrections facility for a specified period of time.

When being sentenced, a judge will hand down both the total amount of time to be served and the minimum amount of time which must be served before being eligible to apply for parole.

Types of imprisonment sentences

How does imprisonment fulfil the purposes of sanctions?

It removes the offender from the community in an effort to protect society but also acts as punishment as the offender is unable to carry on with their normal life.

Imprisonment may lead to rehabilitation as there are many programs and courses which offenders can partake in and also provides support groups for discussion of issues and problems associated with the offending eg: culpable driving offenders support group.

Deters both the offender and the community from committing similar crimes, as they will not want to go to prison again.

It also sends a clear message that the community does not accept the behaviour and it is seen to be very serious against society (denunciation)

What you should have completed..

1. A brief description of each of the types of sanctions discussed in the past few lessons.

2. An explanation of how each of these sanctions fulfil the purposes of sanctions.

3. Fines case study4. Suspended sentences case study5. Community based order case study