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Student book questions4.1 The role of institutions available to assist an accusedPages 76–83

4.1 Check your learning

Define and explain

1 Define the term ‘legal aid’. Does it always include legal representation? Explain.

Legal aid is legal advice, education or information about the law and the provision of legal services, including assistance and legal representation in court. Legal aid does not always include legal representation. Legal aid can include information and education on the law, and legal services such as legal advice, assistance or representation.

2 Identify two organisations that provide legal advice and assistance to people.

• Victoria Legal Aid (VLA)

• Community legal centres (CLCs)

3 Explain the role of Victoria Legal Aid (VLA).

Victoria Legal Aid (VLA) assists people with their legal problems. VLA provides legal aid to accused people who cannot afford to pay for it and have no other avenues of assistance. This includes free legal advice and information and low-cost legal representation. VLA’s vision for a fair and just society, where laws are upheld, means that they not only provide legal services, but also complete work in law reform and educational programs.

4 Explain the difference between generalist community legal centres (CLCs) and specialist CLCs.

Generalist community legal centres (CLCs) provide a variety of legal services to people who live in their particular area, whereas specialist CLCs provide legal services to one particular sector of the community, or focus on one area of law (as opposed to people in a particular area).

5 Provide two similarities and two differences between VLA and CLCs.

Student answers may vary, but some common answers should include the following.

Similarities: Differences:

• provide free and low-cost legal aid to the community

• focus on helping those who need it the most

• eligibility criteria play a factor in who can receive assistance

• specialist CLCs focus on one area of the law, or one sector of the community, whereas VLA has the capacity to assist everyone in any area

• VLA is a single government agency, whereas CLCs are separate organisations

© Oxford University Press 2018 1Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

• funding concerns due to significant demand for legal assistance.

• many CLCs do not assist with indictable offences, whereas VLA does.

Synthesise and apply

6 Read the article ‘Victoria Legal Aid calls for $72 million funding boost’.

a Describe the problem that VLA is facing.

VLA does not have adequate funding to meet the needs of the community and the demand for legal assistance.

b What is the impact of funding cuts on VLA?

Funding cuts mean that VLA and CLCs are having to turn away people who require legal assistance. These people are being forced to represent themselves in court as they cannot afford a lawyer.

c What other options does an accused have if VLA and CLCs can’t provide assistance?

An accused can represent themselves in court if they cannot find assistance elsewhere, or they may need to engage a private lawyer (perhaps by borrowing money to pay for one).

d Research the status of funding to VLA and CLCs for the current financial year. Prepare a short summary.

Student answers may vary.

7 For each of the following scenarios, describe the types of legal aid that VLA could provide to the accused.

a Anna has been charged with three summary offences. She is quite wealthy, but doesn’t know where to start to defend the charges.

As Anna is wealthy, she may be able to afford a private lawyer. Anna can receive free legal information only from VLA, such as through its website.

b Homer’s court hearing for a summary offence is in three weeks in the Magistrates’ Court. He wants to be represented on the day. He has a pension card.

Homer is eligible for free legal advice or free duty lawyer services on the day. He will be eligible to receive free legal advice from the duty lawyer as he will meet the income test by showing his pension card. He may be eligible for legal representation from the duty lawyer if he is facing a significant charge; otherwise, he will not be eligible as he is not within any of the groups of people VLA prioritises.

c Samandar is on welfare benefits. He has been charged with an indictable offence. He can’t afford a lawyer, but has been told that he has a good chance of success. He wants to defend the charge.

Samandar is eligible for free legal advice or a grant of legal assistance. As it is an indictable offence, duty lawyer services will not be available to Samandar. Samadar will likely satisfy


the means test due to receiving welfare benefits. As he has a good chance of success, the matter has merit.

d Mary can’t speak, read or write English well, and is facing a summary offence in the Magistrates’ Court in three weeks. She has a significant income.

As Mary has significant income, she will only be eligible for free legal information, even though she cannot speak, read or write English.

8 Go to the Federation of Community Legal Centres Victoria website. A link is provided on your obook assess. Is there a CLC available for the following people?

a Kirra is an Indigenous Australian and has been charged with a summary offence.

Student answers may vary, but might include Victorian Aboriginal Legal Service.

b John lives in Werribee and wants some free legal advice.

Student answers may vary, but might include Westjustice Community Legal Centre – Werribee Branch.

c Yola lives near Gladstone Park and wants some help to draft a letter.

Student answers may vary, but might include Northern Community Legal Centre or Brimbank Melton Community Legal Centre.

d Greta has a hearing disability and has been charged with an indictable offence.

Student answers may vary, but they may point out that the disability CLCs are not focused on indictable offences.

9 Read the legal case Bayley v Nixon and Victoria Legal Aid.

a Was Adrian Bayley’s application for legal aid granted? Did he succeed in his appeal? Explain.

Adrian Bayley’s application for legal aid was refused. In the initial review of his decision, Bayley was unsuccessful as the independent reviewer decided that the public needed confidence in VLA, and it would not be appropriate to provide legal aid to Bayley, who was notorious at the time.

In his appeal of this review, Bayley was successful in the Supreme Court of Victoria. Justice Bell determined that legal aid is closely connected to human rights, and cannot be refused on the sole grounds that the person is notorious.

However, legal aid was again refused when Bayley applied again.

b What did Bayley do after his first application was refused?

Bayley asked for a review of the decision.

c What is a pro bono lawyer?

A pro bono lawyer is a lawyer that provides legal assistance for free.


d Do you agree with the decision of the Supreme Court in the 2015 case? Why?


e What did Bayley do following that decision, and what was the final outcome?

Bayley applied for legal aid from VLA again, but that application was also refused. He was assisted by pro bono lawyers, and not VLA, in his appeal of the sentences and convictions.

f Read the paragraphs extracted from the Court of Appeal’s decision in 2016. Decide if you agree or disagree with the statement of the Court. As a class:

• separate into two groups: those who agree with the Court, and those who don’t

• debate the paragraphs. Make reference to the principles of justice in your debate.


Analyse and evaluate

10 Why is legal aid from VLA not available to everyone? Should it be available to everyone? Give reasons for your answer.

Student answers will vary. Sample responses are provided below:

• Legal aid from VLA is not available to everyone because it has limited funding, and as a result must put in place eligibility criteria to cater for those determined to be the most in need.

• No. Legal aid is funded (in part) from the government (taxpayers) and should not be used to provide free legal services to those who have a strong financial position (as determined through income and means testing where relevant)

• Yes. Legal aid should be available to everyone, regardless of the type of action (criminal or civil), because all cases require legal expertise to give parties access to the justice system and a fair hearing/trial.

11 How does government funding to VLA and CLCs impact the ability of the criminal justice system to achieve the principles of justice? Give reasons for your answer.

Student answers will vary. Sample answers are provided below:

• Due to limited funds, both VLA and CLCs are unable to provide legal assistance to everyone who needs it. This limits the ability to achieve fairness, as those without legal support will be disadvantaged when dealing with the criminal justice system by limiting their ability to best present the best possible case.

• By having restrictions on who can access VLA and CLCs (because of the amount of funding provided), access is not achieved for all individuals. If individuals do not meet the criteria for receiving assistance from VLA or a CLC, they may not be fully aware of their rights in the situation or be able to pursue their case.


• To uphold the principle of equality, all individuals should be treated identically under the law and have the same opportunities when interacting with the justice system. By providing assistance through VLA and CLCs, the principle of equality can be met for individuals who otherwise would be unable to receive assistance or legal representation.

However, because there are restrictions on who can access these services, individuals who are ineligible, and who do not otherwise have the means to understand their rights and the steps required, do not have equality in the criminal justice system.

• Through government funding of VLA and CLCs, access is achieved for those individuals who would otherwise be unsure of what action they can take to pursue their case.

12 Evaluate the ability of VLA and CLCs to enable access to the criminal justice system for accused people.


• Both provide an avenue for individuals who otherwise wouldn’t have the means to become aware of, and understand, their rights and available options to pursue their case.

Students should provide further evidence to show how this is achieved by citing specific legal services provided by VLA/CLCs.

• Access is restricted for individuals who fail to meet the eligibility criteria for VLA but remain unaware of their rights and are unable to pursue their case (such as, individuals in need of duty lawyer assistance, but fail to meet the income test criteria or those who need legal assistance, but do not satisfy the means test criteria).

• CLCs provide access for the accused in some criminal matters by performing legal casework. This promotes access because it supports the accused’s ability to pursue their case in court.

However, to utilise this service, the accused is assessed against a range of factors, including a means test and their case’s likelihood of success. Therefore, access is limited for those who cannot meet the relevant criteria.


Student book questions4.2 The purposes of committal proceedingsPages 84–87

4.2 Check your learningDefine and explain

1 Define the term ‘committal proceeding’.

The committal proceeding is the hearings and processes that occur before the trial for indictable offences in the Magistrates’ Court. The proceeding happens when an accused pleads not guilty to an indictable offence. It acts as a filtering process of matters to determine if a trial is needed.

2 Explain two purposes of a committal proceeding. Link each purpose to one or more of the principles of justice

Student answers may vary but might include:

• One purpose of a committal proceeding is to make sure there is a fair trial. By disclosing the prosecution’s case to the accused, and allowing the accused to read the evidence and examine and cross-examine any witnesses, the accused has the opportunity to be fully aware of the case to be put against them at trial. This allows the accused to properly prepare their case. This supports the principle of a transparent trial and hearing.

• Another purpose is to decide if there is enough evidence to support a conviction for the offence charged, and this ensures that the accused is not put through a trial unnecessarily and that the prosecution must prove their case, ensuring the accused is presumed innocent. This upholds the notion of fairness as it upholds the burden of proof – making the prosecution prove its case.

3 What is the final hearing called and what is the main purpose of that hearing?

The final hearing is the committal hearing. At this hearing, the magistrate decides if there is enough evidence to support a conviction and, therefore, if the matter will go to trial.

4 What happens if a magistrate decides there is insufficient evidence? Can the accused be charged again for the same offences? Explain your answer.

If the magistrate finds insufficient evidence, the accused is discharged and there is no trial. The accused can be charged again for the same offence as they have not had a trial, or been found guilty or not guilty.


5 Read the legal case DPP v Bailey. What was the outcome of the committal proceeding, and what was the outcome at trial?


At the committal proceeding, the magistrate sent the accused to trial as he found sufficient evidence to support a conviction. However, at the trial, Bailey was found not guilty due to mental impairment – a type of outcome which means that the person committed the crime, but did so due to an impairment of the mind.

6 Read the article ‘Date set for Samantha Kelly murder trial in Bendigo’.

a What is the allegation in this case?

Christine Lyons and Ronald Lyons are accused of the murder of Samantha Kelly as part of a joint criminal enterprise with Peter Arthur as it is alleged that all three discussed killing Kelly.

b Who will need to go to trial, and who will go to a plea hearing?

Christine Lyons and Ronald Lyons will go to trial. Peter Arthur will go to a plea hearing.

c What benefits, if any, do you think Peter Arthur will receive for pleading guilty early?

Peter Arthur, given he has pleaded guilty, will likely receive a discount as part of his sentence. This is a way of courts recognising that early guilty pleas may be a sign of remorse and/or assist in saving court resources by not having to prove guilt at a trial.

7 For each of the following scenarios, state whether the case will proceed any further. Justify your answer.

a The magistrate is not convinced that there is evidence of a sufficient weight to support a conviction at trial.

The accused is likely to be discharged.

b The magistrate at Wendy’s committal hearing has found there is evidence of a sufficient weight to support a conviction at trial.

The magistrate will commit Wendy to trial.

c Documents have just been transferred to the DPP following the committal hearing.

The DPP will file an indictment which will start the criminal proceeding in the higher court and lead to a trial.

8 How would you convince a victim, who does not want to have the trauma of reliving a crime twice (though a committal proceeding and then a trial), that a committal proceeding is critical to achieving justice? Demonstrate your response with arguments that you would put to the victim.


• The committal proceeding could result in the accused pleading guilty due to understanding the evidence against them. This would save the need for a trial and bring about closure for the victim sooner.

• The committal proceeding is important to determine if there is enough evidence of sufficient weight to support a conviction by a jury – this means the victim will not have to


go through the stress/trauma of a trial unless there is a possibility that a conviction can be upheld.

• The committal proceeding is important as, if it is determined that the prosecution does not have enough evidence to s commit the accused to stand trial, then charges can be brought forward again at a later date. If, however, the proceeding did not occur and the case went directly to trial, and it was determined that the prosecution could not make their case, then the accused would go free and likely be unable to be re-tried at a later date due to double jeopardy laws.

• The committal proceeding provides an avenue to ensure the issues to be argued are properly defined. This assists in reducing any discrepancies during the trial which could impact on the timely progress of the trial and its outcome.


9 In 2012, there were calls by some members of the Victorian Parliament for committal proceedings to be abolished. Do you think that they should be abolished? Why or why not?

Student answers will vary. Sample answers are provided in the table below:

Agree Disagree

• they prolong the determination of a case, restricting the ability to reach a timely resolution and achieve access to the system

• they are a complicated procedure which can be hard for the accused to understand and require the assistance of legal representation to navigate the process

• they can increase the trauma and/or stress associated with the crime for the accused as well as victims and victims’ families

• for cases which have strong evidence, committal proceedings are an unnecessary delay before reaching trial

• ensures cases without evidence of sufficient weight do not proceed to trial

• allows for the accused to see the evidence/ prosecution’s case against them before the trial

• by being able to see the evidence against them during the committal hearing, the accused may plead guilty

• allows for witnesses to be cross-examined by the accused

• may result in the charges being heard summarily and avoid a trial

10 Evaluate the ability of committal proceedings to achieve equality.


• provides advantage to the accused over the prosecution as they are aware of the prosecution’s case. However, the prosecution is not aware of the accused’s defence (unless they choose to put forward their case)

• provides equality by ensuring that the legal issues of the case are clearly defined and understood by both parties

• allows for the accused to be aware of the evidence against them


• allows the accused to be able to prepare and present their case.


Student book questions4.3 Plea negotiationsPages 88–91


Define and explain

1 Explain what is meant by the term ‘plea negotiations’.

Plea negotiations are talks between the person accused of the crime and the prosecutor about the charges. The aim of plea negotiations is to resolve the case before trial, and an agreement may be reached regarding the charges and what the accused will plead guilty to.

2 Is the court involved in plea negotiations? Explain your answer.

Plea negotiations are only between the accused and the prosecution. The court is not involved. The court is told of the charges that the accused has pleaded guilty to and will determine the sanction.

3 Describe two possible outcomes of a plea negotiation.

The agreement that is reached between the accused and the prosecution could be one of the following:

• The accused pleads guilty to some of the charges, and the others are not pressed.

• The accused pleads guilty to a different charge that has a lesser penalty.


4 Read the article ‘Fury after charges against killer drunk driver in Victoria downgraded’.

a What was Bradley Nicholson initially charged with?

Bradley Nicholson was initially charged with culpable driving causing death.

b What did he ultimately plead guilty to?

Nicholson pleaded guilty to dangerous driving causing death.

c What is the difference between culpable driving causing death and dangerous driving causing death?

Culpable driving carries a higher maximum penalty of 20 years imprisonment, whereas dangerous driving has a maximum penalty of 10 years.

d Do you think that justice was achieved in this case? Explain your answer.



5 For each of the following scenarios, decide whether you think plea negotiations are appropriate. Justify your answer.

a The accused maintains her innocence of the charges laid against her.

Plea negotiations would be inappropriate as she may feel pressured into pleading guilty when she insists she is innocent.

b The DPP is expected to call more than 200 witnesses at trial. Many of those witnesses were physically injured in the incident and are reluctant to give evidence. However, the accused has refused to cooperate so far with the DPP.

Plea negotiations would be appropriate as it would prevent trauma for the witnesses. However, if the accused has refused to cooperate, it is unlikely they would participate in plea negotiations.

c A rape victim is nervous about giving evidence at trial, but does not agree with the idea that the accused should be able to negotiate his way out of a rape charge.

Plea negotiations may prevent the victim having to relive the trauma by giving evidence. Her views should be taken into account but are not a deciding factor, so plea negotiations could still be appropriate.

d The trial against the three co-accused is expected to take three weeks. The DPP’s evidence is strong against two of the co-accused.

Plea negotiations may enable the DPP to secure guilty pleas against all three of the co-accused, and not just the two they have strong cases against. It would save a lengthy and costly trial; however, it could be prejudicial against the third co-accused in that they would not need to prove the case beyond reasonable doubt.


6 Explain the strengths and weaknesses of plea negotiations from the perspective of an accused, and how these points may differ from the perspective of a victim.


Strengths Weaknesses

• provides an opportunity for the accused to receive a reduced sentence by entering an early plea (as opposed to the perspective of the victim, who may feel that the accused is receiving a lenient sentence)

• negotiations can be held privately with the specifics not being disclosed (whereas, a victim may feel that this lacks transparency and would want to know the reasons for the final outcome)

• allows for a prompt determination of a case

• saves costs for the accused by avoiding

• may jeopardise the presumption of innocence by giving the appearance that the prosecution is trying to avoid ‘proving’ their case to the required standard (opposed to the victim’s perspective, as they would have certainty in the outcome)

• if the accused is self-represented, they may feel additional pressure to make a deal (the victim would benefit from an early plea as it saves any stress or trauma associated with a trial)

• if no result is reached, then any weaknesses of the accused’s defence


a full trial or hearing may become apparent to the prosecution


4.4 Sentence indicationsPages 92–97


Define and explain

1 What is a sentence indication?

A sentence indication is a statement given by the court to the accused about the sanction they are likely to face. This gives the accused an idea of what sentence they will receive if they plead guilty.

2 Who gives a sentence indication, when is it given, and who is it given to?

The sentence indication is given by the court (the judge or magistrate) to the accused at any time during the proceeding.

3 Explain two differences between sentence indications for summary offences and sentence indications for indictable offences.

For indictable offences, the prosecution must consent to the indication being given; however, for summary offences, there is no need for prosecution consent.

The sentence indicated is also different between the two types of offences. For indictable offences, the court does not give a precise sanction but rather states if an immediate sentence of imprisonment is likely to be imposed. This contrasts with summary offences where the actual likely sentence (imprisonment or otherwise) is generally indicated to the accused.

4 Is the court bound by a sentence indication if the accused continues to trial and is found guilty? Justify your answer.

The court is not bound by any sentence indication given if the accused does not plead guilty and the matter continues to trial. The purpose of the sentence indication is to encourage an accused to plead guilty by making them aware of the likely sanction they will face. A sentence indication followed by a guilty plea also caps the maximum sentence, and the court cannot set a sanction that is harsher than the one indicated. For this reason, the benefits of a sentence indication are not open to those accused that proceed to trial as the purpose is to obtain a guilty plea and avoid a trial.


5 Read the legal case of R v MacKinnon.

a Describe the key facts of the case.

Paul McVeigh went swimming with the dolphins in Sorrento. Torie MacKinnon was in charge of the vessel. On arrival at the swimming area, the passengers entered the water. The vessel then drifted away from the swimmers, and Ms MacKinnon went to reverse the boat.


At this point, Mr McVeigh was on the boat and had entered the water to get a photograph. Mr McVeigh was pushed under the boat and was struck by the propeller and suffered life-threatening injuries that resulted in his death.

b What was Ms MacKinnon initially charged with, and what did she eventually plead guilty to?

Ms MacKinnon was charged with manslaughter but pleaded guilty to dangerous driving causing death.

c Describe the sentence that was imposed on Ms Mackinnon. Do you think this was an adequate sentence? Give reasons for your answer.

Ms MacKinnon was sentenced to a community correction order of 18 months’ duration with conditions that included performing 200 hours of unpaid community work.

Student answers will vary for adequacy of sentence.

6 Read the article ‘Geelong court: Alleged thief will fight charges’.

a What was the indication of sentence given by the magistrate?

The indication of sentence given by the magistrate was a term of imprisonment for 15 months with a non-parole period of nine months.

b What happens now that Mr Bausch has rejected the sentence?

Mr Bausch’s matter will go to trial and the court will decide whether he is guilty or not.

7 Access the website of the Australasian Legal Information Institute (AustLII). The link is provided on your obook assess. Find the County Court decision of DPP v Charles [2016] VCC 479 (22 April 2016). Read the decision and fill in the following table.

Name of judge His Honour Judge Maidment

Name of accused Gary William Charles

Date the accused was sentenced

22 April 2016

Was the accused represented?

Yes, by Mr R Melasecca

Was there a jury trial? No, Charles pleaded guilty

Number of offences 5 offences:

Trafficking in methamphetamine

Cultivating a narcotic plant

Possessing cannabis


Prohibited person in possession of a firearm

Dealing with unauthorised explosives (summary offence)

Names of offenders Gary William Charles

Date of offences 11 December 2014

Maximum penalty for each of the offences

Trafficking in methamphetamine: 15 years imprisonment

Cultivating a narcotic plant: 1 year imprisonment

Possessing cannabis: 5 penalty units

Prohibited person in possession of a firearm: 10 years imprisonment

Dealing with unauthorised explosives (summary offence): 100 penalty units

Circumstances of the offender taking into account (e.g. age)

Physical problems, previous attempts to deal with drug issues, previous attempts of rehabilitation

Was a sentence indication given?

Yes

Did the accused accept the sentence indication?

Yes

Sentence imposed 92 days imprisonment and community correction order for two years, as well as participation in rehabilitation programs for drug and medical issues


8 Explain two benefits of sentence indications. Link each benefit back to one of the principles of justice.


Possible benefit of sentence negotiations

Relevant principle of justice

• results in an early determination of the case

• fairness and/or access

• the accused is not bound by the sentence indicator and can choose to reject it

• fairness


• can minimise the stress and trauma felt by victims

• fairness

• an experienced, impartial judicial officer provides the sentence indication

• fairness and/or access

9 Conduct a debate in class that addresses the following statement: ‘There should be a law that requires victims to consent to the accused getting a sentence indication.’

Student responses will vary for this in-class exercise.

4.5 The reasons for a Victorian court hierarchyPages 98–100


Define and explain

1 What is meant by the term ‘court hierarchy’?

The court hierarchy is the ranking of courts based on severity and complexity of the cases they hear.

2 What is the highest Victorian state court, and what is the lowest Victorian state court?

The highest state court is the Supreme Court of Victoria (Court of Appeal) and the lowest state court is the Magistrates’ Court of Victoria.

3 Define the term ‘jurisdiction’.

Jurisdiction is the authority or power of the court (or tribunal) to decide legal cases.

4 Explain two reasons for having a court hierarchy.

Two reasons for having a court hierarchy are specialisation and appeals.

With a hierarchy, each court has an area of expertise. This allows them to specialise and hear cases that are within their area of expertise. For example, the Magistrates’ Court specialises in minor offences, whereas the Court of Appeal specialises in sentencing principles and considering whether sentences are adequate or not (on appeal).

The system of appeals relies on a hierarchy. An appeal is when a party is unhappy with the decision the court has made and asks a higher court to review the decision. This would not be possible without a hierarchy.


5 Which court is specialised to hear the following types of cases in its original jurisdiction?

a Summary offences


Magistrates’ Court

b Indictable offences

County Court

c Serious indictable offences

Supreme Court (Trial Division)

d Committal proceedings


e Indictable offences heard and determined summarily


6 Read the article ‘Stepfather rapist has jail term tripled on appeal’.

a Which court sentenced the offender?

County Court

b Which court head the appeal?

Supreme Court (Court of Appeal)

c Which party appealed, and on what grounds?

The prosecution (Director of Public Prosecutions) appealed on the grounds that the sentence was not severe enough.

d What was the original sentence, and what was the sentence handed down on appeal?

The original sentence was 720 days imprisonment. The sentence on appeal was 6 years imprisonment, with a non-parole period of 4 years.

e No names are mentioned in the article. Why do you think that is so?

This is likely because of a court order not to disclose the names as part of the proceeding – this is common in sexual offence cases to protect the victims.

f Access the AustLII website and find the full judgment of the case referred to in this article. Read paragraph 72 and summarise its meaning.

Paragraph 72 concludes that the offender (the respondent) be resentenced as it was considered that the discretion used by the County Court judge in handing down the initial sentence was too lenient.



7 Do you think it would be better for an accused if there were one court that heard all types of criminal cases? Give reasons for your answer.


• No, this would cause a backlog of cases. For instance, minor summary offences, which can be resolved in one hearing, may have to wait for lengthy criminal trials to be concluded before being heard.

• No, by having a range of courts to hear different types of criminal cases, each court can develop expertise regarding certain offences and hear and determine a case efficiently and effectively.

• Yes, by only having one court, the system is more accessible as it is clear where the case is being heard.

• No, by having a range of courts, appeals on cases heard in lower courts can be reviewed by judges in a higher court to rectify any mistakes or injustices.

8 The High Court is the court of last resort for a party to appeal. In your view, should there be another avenue for appeal? Explain.


• No, the High Court has the most experienced judges in Australia’s justice system and are therefore best suited to make a final determination on cases which have been unable to be resolved in lower courts

• No, appeals should be heard in a court, as the criminal justice system is designed for the courts (as an independent, impartial body) to determine all criminal matters. This is protected through the separation of powers, which ensures the court system is not subject to political bias. If another avenue was available, similar protections would need to be put in place.

• No, there needs to be a point of finality to appeal options. By providing another avenue of appeal, it may further prolong a case unnecessarily, causing further distress to victims and their families.

• No, having too many avenues of appeal could cause confusion and uncertainty about the best course of action.


4.6 The responsibilities of the judge and the jury in a criminal trialPages 101–107


Define and explain

1 Explain two circumstances that are needed for a criminal trial to be heard in the Supreme Court of Victoria.

For a criminal trial to be heard in the Supreme Court of Victoria, the accused must plead not guilty, and the accused must have been charged with a serious indictable offence that the Supreme Court can hear (or an indictable offence that is within the jurisdiction of the County Court but the Supreme Court will hear it).

2 Does the judge have any investigatory powers? Explain.

The judge does not have investigatory powers. The judges’ role is to be the ‘referee’ of the trial, and their involvement with the submissions does not extend beyond clarifying confusion in points already being made.

3 Explain how the responsibilities of the judge uphold the principles of fairness and equality.

The judge is an impartial umpire that cannot take sides. They are there to manage the trial, and this means that both sides are given equal opportunity to put forward their case and evidence. This upholds fairness and equality as it means the judge cannot act with bias towards either party, and it gives both sides the chance to present their case.

4 How many jurors are there in a criminal trial? Do they hand down a sentence?

There are 12 jurors in a criminal trial. They do not hand down a sentence; they make decisions on whether the facts are true or not.


5 Do you think hearsay evidence might be unreliable? Why?

Student answers will vary but may include the following: hearsay evidence could be unreliable as the witness did not experience what was said or done firsthand; they are relying on another person telling them the truth.

6 Read the legal case Cook v The Queen.

a Explain how the trial judge may have not acted according to a judge’s duties or responsibilities.


The judge may not have acted according to his duties or responsibilities as he was too involved in the trial and did not act as an impartial referee. By criticising and insulting the defence counsel and how the defence was running the case, the judge could have been acting with bias.

b Which party appealed?

The offender appealed the sentence.

c Did the Court of Appeal uphold the appeal? Why or why not?

The Court of Appeal dismissed the appeal as the grounds of appeal were not made out. This means that the Court of Appeal found that the judge did not act with bias or unnecessarily interfere with the trial.

7 Research the conduct of a criminal jury in a case against Bilal and Mohammed Skaf in New South Wales.

a What did two of the jurors do in that case?

Two of the jurors visited the scene of the crime one night to look at the lighting in the park.

b Why do you think this was an issue?

This is an issue because jurors are required to make their decision based on the evidence presented in court. Undertaking their own investigations (no matter how well-intended) negates their ability to make a fair and impartial decision, as this could reduce objectivity and create bias.

c What did this result in?

The actions of the two jurors resulted in the case being appealed and the judge ordering a retrial of the case.

d Do you think the decision by the court was appropriate, given the discovery about what the jurors had done? Explain.

Yes, this was the only appropriate course of action available. The verdict determined by the jury could no longer be said to be due solely to the evidence and arguments presented throughout the trial. Therefore, a new trial would be required, as the accused has the right to a fair hearing.

8 Read the article ‘Trial to restart after Vic jury discharged’.

a Explain what it means to discharge a jury.

Discharging a jury means they no longer sit on the trial and a new jury must be chosen.

b Why was it necessary for a new jury to be empanelled?

It was necessary to empanel a new jury as one juror raised concerns about connections one of the jury members had to the family of the accused.

c What principle of justice does this case most demonstrate? Justify your answer.


This case strongly demonstrates the fairness principle of justice. Discharging the jury because a juror had concerns about their impartiality (due to links with the Woodhead family) after the trial had commenced protects the parties against a decision potentially influenced by bias.

9 Read the legal case Smith v Western Australia.

a What was the accused charged with?

The accused was charged with indecently dealing with a child under the age of 13.

b What was the verdict of the jury?

The jury found the accused guilty.

c What was later discovered in the jury room?

A note was discovered in the jury room later that suggested one of the jurors was physically coerced into changing his or her verdict so that there was a majority decision.

d What is the exclusionary rule, and why do you think it’s important?

The exclusionary rule is that no evidence of jury deliberations may be raised in court. This is important so that juries are free to discuss the trial without fear that their deliberations will be made public.

e Why did the High Court decide that the exclusionary rule did not apply in this case?

The High Court decided that the purpose of the exclusionary rule was to preserve the secrecy of jury deliberations and the integrity of the verdict, and that evidence of unlawful physical coercion would not go against these purposes.


10 Do you think jury deliberations should be secret? Give reasons for your opinion, referring to the principle of fairness.


• No, transparency in deliberations allows the parties to know that the decision was based on the evidence presented and the relevant area(s) of law, upholding confidence that the decision reached was made impartially.

• Yes, to protect jurors from feeling pressured so they can discuss the issues freely and make their own decision free from undue influence.

• Yes, this allows jurors to feel comfortable to change their vote through the course of the deliberations as they consider and reflect on the evidence presented at trial, as well as how this fits within the relevant principles of law.

• Yes, if deliberations were made public, this may increase the number of appeals made due to conversations held between jurors during their decision-making.


11 Discuss the extent to which the responsibilities of the judge uphold the principles of justice.

Student answers will vary Sample answers are provided below:

• They must act impartially and treat the parties without bias (supports fairness and equality).

However, if one party is poorly represented then the judge is not able to step in and assist which can limit fairness and access.

• This ensures the rules of evidence and procedures are followed (supports fairness).

• Through their ability to provide directions and make orders throughout the course of a trial, they assist in providing access to the system.

• A judge may assist a self-represented party (in relation to procedural matters and legal terminology) to uphold the principles of access and fairness.


4.7 The responsibilities of the parties and legal practitioners in a criminal trialPages 108–113


Define and explain

1 Identify four key personnel in a criminal trial and briefly describe their roles.

The judge acts as an impartial umpire and manages the trial. The judge manages the case, directs the jury and hands down a sentence if the jury finds the accused guilty.

The jury is made up of 12 ordinary people who objectively decide the facts. Their role is to be the decider of facts by determining whether the accused is guilty of the offence(s).

The parties present their case to the court, through evidence, so that the court can reach a decision as to what is the truth.

Legal practitioners are officers of the court and assist the court in finding the truth. They present their client’s case in the best light but must not mislead the court.

2 Who is responsible for convincing the jury that the accused is guilty? Explain.

The prosecution is responsible for convincing the jury the accused is guilty as they have the burden of proof. Putting the responsibility on the prosecution to prove the case upholds the rule of law as well as the presumption of innocence.

3 Explain what is meant by party control.

Party control refers to each party in a legal proceeding being in charge of their case. This involves making decisions regarding all aspects of proceedings, including whether to pursue legal action (the prosecution in criminal cases), the plea of the accused (in criminal cases), the evidence and legal arguments to put forward when presenting a party’s case, whether to hire legal representation and, if so, the choice of legal representation.


4 Read the legal case Weissensteiner v The Queen.

a Why was Weissensteiner’s evidence so relevant in this case?

Weissensteiner was the only person who could possibly provide any evidence as to what happened as the only other two people there went missing and Weissensteiner was the only one there.

b What was the instruction given to the jury by the trial judge?


The jury were told that silence when the accused must have knowledge of the situation is an indicator of guilt.

c What was the final decision of the High Court?

Answer still to be supplied.

d Do you agree with the abolition of this principle? Why or why not?

Student answers will vary.

5 Mock courtAs a class, conduct a mock court of a criminal trial. A range of documents are provided on your obook assess to help you stage the mock court. You must:

a decide on a scenario

Student responses will vary for this in-class activity.

b decide who will be the accused (or multiple accused), judge, jury members, prosecution, accused’s barrister, accused’s lawyer, witnesses and members of the public


c decide on a stage of the trial you will play out


d prepare a script


e conduct the mock court, keeping note of the responsibilities of the key personnel in the trial.



6 For each of the following scenarios, describe one responsibility of the key personnel in bold, and discuss the extent to which fulfilling that responsibility achieves one of the principles of justice.

a The prosecution has evidence that is relevant, but the evidence isn’t helpful in obtaining a guilty verdict.

The prosecution must present all evidence that is relevant as their responsibility is to help the court discover the truth. They must present all evidence, even if it is not beneficial to the case.

Student answers on the applicable principle of justice will vary.


b The accused is the only person in the room that knows what happened on the night of the crime. There is no forensic evidence available. The accused has chosen not to give evidence.

The accused has complete control in how they are to run their case, and are only expected to attend the trial. The accused has no responsibility to give evidence, and guilt cannot be inferred by the decision not to give evidence.


c The accused’s barrister believes the accused is guilty. Despite the accused maintaining innocence, in private conversations her story doesn’t stack up.

Legal practitioners must present their client’s case in the best light. The defence must defend the accused even if they believe they are guilty.


d A member of the jury has realised that she used to date the accused’s brother and thinks very fondly of the family.

Jurors must remain objective and decide the facts and reach a decision about the guilt of the accused. In order to ensure that juries are objective, they cannot have any connections with the accused in any way. The member will not be able to fulfil this objective if she remains on the jury, and so the member should ask to be excused.


e The judge is overseeing a trial in which the accused is self-represented, doesn’t speak English very well and is having difficulty understanding procedural matters.

The judge manages the trial and provides directions to the jury. For self-represented litigants, the judge must ensure a fair trial. This means the judge can order Victoria Legal Aid to represent the accused if they cannot afford a lawyer and adjourn the trial until the accused has representation.


7 Conduct a debate in class on the following statement: Once an accused confesses their guilt to the lawyer, but insists on pleading not guilty, then the lawyer should stop acting for the accused.



4.8 The purposes of sanctionsPages 114–119

4.8 Check your learningDefine and explain

1 Identify and describe three purposes of criminal sanctions. Provide an example of when each of those purposes might be a relevant consideration when sentencing an offender.

Criminal sanctions can have up to five purposes. These are identified and described below. Students are required to identify only three. Answers will vary but should include at least three of the following responses:

• Rehabilitation is used to help treat the offender and address the underlying reasons why they committed the crime. Rehabilitation might be a relevant consideration if a judge believes the accused could improve their behaviour. Factors to suggest this could be that it was their first offence, they were affected by drugs or alcohol, or that they were associating with the ‘wrong crowd’. An example is a first-time offender who has committed the crime as a result of a drug-induced crime spree.

• Punishment is used when the community needs to see that justice has been served. This could be considered if the crime committed was particularly horrific, such as a murder.

• Deterrence is used to prevent other people from committing the same crime (i.e. general deterrence) or to stop the offender from committing further crimes (i.e. specific deterrence). This may be considered in cases involving an offence that the court has to send a message about – for example, car-jackings.

• Denunciation is used when the court wishes to make a statement about the crime, and to express its disapproval through a harsher sentence. This could be used for particularly violent crimes, where the court feels they need to take a ‘stand’ against certain behaviour.

• Protection is used to remove the offender from the community to safeguard the community against their behaviour. If an offender has a particularly violent history (or is highly likely to offend again), this purpose is taken into consideration.

2 Suggest reasons why the community believes there is a need to punish an offender.

The community may feel that they need revenge upon the offender for the crimes they have committed, or that the need to feel that justice is being served. Light sentences for crimes the community deems horrific can be controversial as the community wants the offender to ‘suffer’ for their crimes.

In addition, crimes can affect the community more broadly, and not just the primary victim or the victim’s family – random crimes, for example, can have a ripple effect on fear in the community, and so the community will want to see the offender punished.


Further, the community will want to ensure the right message is being sent to potential offenders through the imposition of a sentence that matches the offending.

3 Explain the difference between general deterrence and specific deterrence.

General deterrence is aimed at all members of society. It is used to prevent everybody from committing that crime. Whereas, specific deterrence is directed at the particular offender as opposed to the general community, and is used to prevent that offender from committing further crimes.


4 Read the legal case R v Banek.

a What was the crime?

Banek murdered his former partner.

b What circumstances may have assisted in reducing Banek’s sentence?

Banek confessed immediately and pleaded guilty. This usually helps a submission of a lighter sentence as the offender is aware of their actions and has avoided the need for a full trial to determine guilt.

c Four purposes of sanctions were identified by Justice Croucher. Explain how the sentence imposed on Banek achieves each of those purposes.

Justice Croucher emphasised that general deterrence, curial denunciation and just punishment were the purposes behind the sentence of 23 years imprisonment, with a non-parole period of 18 years. The fact the term of imprisonment is so long achieves all three of the purposes. The lengthy non-parole period means that Banek has no chance of leaving prison for 18 years. This possibly achieves the purposes even more than the 23 years sentence as many offenders rely on parole to allow them to leave prison early.

5 Read the legal case DPP v Keefer.

a What was Keefer’s role in the crime?

Keefer allowed his premises to be used to import tobacco. While he did not directly plan or organise the importation, he still committed a crime by allowing the premises to be used and by receiving the container.

b Why were punishment and protection of the community not relevant purposes in this case?

Keefer was in financial difficulty and this is why he resorted to importing the tobacco. For this reason, the judge determined that it is very unlikely that he will offend again given his offence was circumstance related and not due to ongoing behavioural issues. For this reason, she did not deem punishment or protection necessary.

c Why is general deterrence important in this case? Do you think it would have been achieved? Justify your answer.


General deterrence was important as the situation is something that many members of the community may find themselves in and tempted to illegally import goods as a way to make money. Therefore, general deterrence needed to be considered to prevent others like Keefer from offending.

6 Read the legal case DPP v England. Explain the importance of rehabilitation in imposing the sentence given.

Rehabilitation was considered important in the case of DPP v England as the judge felt that the circumstances the offender found herself in could be changed. The judge put a lot of consideration into the fact that drug use and negative peer associations were key reasons why England committed the crimes. Due to this, and her supportive family background, her chances of rehabilitation were high. Rehabilitation was important here as it meant that England could feel better about herself and her future, rather than defeated and resigned to a life of crime.

7 Read the legal case DPP v Granata.

a Explain what happened in this case

Granata started a relationship with a tourist visiting Australia. What started as consensual sexual activity and drug use turned violent as Granata confined her to a hotel room, raped her and stole from her. Granata was charged with a number of offences and pleaded guilty to many of them.

b Describe the sanction that was imposed by the County Court.

He was sentenced to 17 years imprisonment, with a non-parole period of 13 years.

c Who appealed the decision, and on what grounds?

The prosecution appealed the decision on the grounds that the sanction was manifestly inadequate for the crimes committed.

d What was the outcome of the appeal?

The appeal was successful, with the Court of Appeal determining that the original sanction did not reflect the horrific nature of the crime and, therefore, did not denounce the crime or punish the offender enough. A new sentence was handed down: 23 years imprisonment, with a non-parole period of 17 years.

e What were the two key purposes that the sentence was aimed to achieve? Do you think they have been achieved, and were they achieved before the appeal? Give reasons for your answer.

Punishment, denunciation and deterrence were there key purposes that the Court of Appeal mentioned when determining whether to allow the appeal. Student answers will vary on their opinion of whether they have been achieved.



8 ‘There should only be one main purpose of sanctions: punishment. The rest of the purposes should come after punishment’. Do you agree? In your answer, make reference to at least two cases.


Agree Disagree

• Punishment may achieve deterrence (as the offender would likely avoid future punishment and society would avoid being punished) and a degree of protection and/or denunciation (depending on the sanction given).

• Sanctions hold the offender to account and provide retribution for victims so that members of society do not take matters into their own hands.

• Focusing on other purposes, such as deterrence and rehabilitation, will assist in reducing recidivism rates.

• Focusing on, and treatment of, the underlying causes of the offending will increase the likelihood of the offender becoming a productive member of society.

Relevant cases may include Relevant cases may include

• R v Banek [2017] VSC 11 – can be used to support second point above

• DPP v Keefer [2016] VCC 1805 –can be used to support first point above

• DPP v England [2016] VCC 1486 – can be used to support above points

• DPP v Granata [2016] – can be used to support first point above

9 More money should be spent of rehabilitation. It is clear that sanctions aren’t achieving their purposes given the number of offenders who reoffend.

Discuss this statement as a class. Before you do, conduct some research on:

a the number of offenders who have underlying issues (such as drug addictions or mental health issues) that may need to be addressed

b the percentage of offenders in Australia who reoffend.

Student answers will vary for this in-class activity.


4.9 Types of sanctions – finesPages 120–122


Define and explain

1 What is a conviction?

A conviction is a finding from the court that an accused has committed an offence.

2 Why are fines expressed in penalty units and not dollar amounts?

Fines are expressed in penalty units so that the government can increase the fines without having to make changes to every piece of legislation every year to increase the fine attached to committing an offence.


3 Find out the current financial year’s penalty units. What would a level 4 fine amount to? How does this compare to a level 2 fine?

As at 1 July 2017, the current value of a penalty unit is $158.57. This means a level 4 fine is $285 426 (1800 penalty units) and a level 2 fine is $475 710 (3000 penalty units).

4 Read the legal case DPP v Bilic Homes Pty Ltd. a Was there a jury trial in this case? Explain.

As Bilic Homes pleaded guilty early in the proceedings, there was no jury trial.

b What sentence was imposed?

The company was fined $300 000.

c What was the main purpose of this sanction, and why?

The main purpose of the fine was general deterrence. The message needed to be sent to companies that workplace health and safety needed to be taken seriously, and that failure to address safety risks will result in severe punishment.

d Would imprisonment have been an appropriate sanction? Give a reason for your answer.

As this was a company, any sentence is imposed on the company, not the individuals that work for the company. A company cannot be jailed.


5 In your view do fines adequately punish an offender? Give reasons for your answer.



• Yes, as the offender is forced to do something they wish not to (pay money).

• Yes, if the penalty is high enough (in relation to the offender’s financial position) to act as a form of retribution.

• No, if the penalty is not high enough (in relation to the offender’s financial position) to act as a form of retribution

• Yes, because if it is not paid, then the offender may face imprisonment or unpaid community service.

• No, because the amount of any fine is defined by the penalty units set out in the legislation; this may not be severe enough to adequately hold the offender to account for their actions.

• Yes, because the penalty takes into account the potential benefits to the offender in committing the crime, as well as any damage or loss of property as a result of the criminal act.


4.10 Types of sanctions – community correction ordersPages 123–125


Define and explain

1 Explain why a CCO is considered to be a ‘tailor-made’ type of sanction.

A CCO is a tailor-made type of sanction as it can be modified to suit the needs of the individual offender. Special conditions can be made to any CCO that fit in accordance with the purpose of the sanction. For example, for someone affected by drugs, a special condition can order rehabilitation. This is tailoring the order to ensure that the offender stops their behaviour and becomes a functioning member of society.

2 For each of the following offenders, comment on the most appropriate condition(s) that should be imposed as part of a COO.

a Jarrod pleaded guilty to harassing people at the MCG on a regular basis.

As Jarrod was offending in a particular place, a place or area exclusion that prevents him from visiting the MCG should be imposed.

b Maria was sentenced for harassing her ex de-facto partner.

As Maria was harassing one particular person, a non-association condition would be best to order her not to contact or associate with her former de-facto partner.

c Winona has significant mental health issues.

Winona has mental health issues, which means a condition for treatment or assessment would be an appropriate condition.

d Bradley is a Chief Financial Officer who pleaded guilty to assaulting his best mate.

As Bradley is a Chief Financial Officer, he is wealthy and could afford to pay a bond. Payment of a bond would ensure he complied with the order.

e Vera was an alcoholic who committed five separate offences while out partying late at night.

Vera may benefit from a curfew, an alcohol exclusion or rehabilitation. A curfew would ensure she remained at home during the nights, when she was most likely to offend. An alcohol exclusion or rehabilitation would assist with her alcoholism.


3 The Victorian Government is limiting the use of CCOs for certain offenders. Discuss the extent to which you agree with this approach. In your answer, refer to at least two purposes of sanctions.



Students who agree with the approach: Students who disagree with the approach:

• Yes, due to the seriousness of category 1 and category 2 offences, a CCO may not adequately protect society from the actions of the offender.

• Yes, crimes such as murder require the strongest possible sanction to ensure the offender is held to account for their actions (meeting the aim of punishment).

• Yes, serious offences need to have the most serious sanction imposed to dissuade other individuals from committing such crimes (general deterrence) and dissuade the offender from committing future criminal acts (specific deterrence).

• CCOs should be made available (either stand alone or in conjunction with another sanction) to all offenders for a specific offence, as they offer the opportunity to directly target the underlying causes of the offending behaviour (supporting the purpose of rehabilitation).

• CCOs can be paired with a period of imprisonment, serving to hold the offender to account once released from prison (punishment).

• The conditions attached act as an additional safeguard against further criminal behaviour because, if breached, the offender faces more severe consequences (works to meet the purposes of protection and specific deterrence).


4.11 Types of sanctions – imprisonmentPages 126–129


Define and explain

1 What is the most severe sanction? Why is it considered the sanction of last resort?

The most severe sanction is imprisonment. It is considered to be the sanction of last resort as it completely removes the offender from society and they lose their freedom and liberty.

2 Identify and describe three types of sanctions. For each sanction, explain one of its purposes.

Imprisonment is where the offender is put in jail. The main purposes for this sanction are punishment and protection. Imprisonment is considered the ultimate punishment as it takes away the freedom of the offender and also protects the community by removing the offender from society.

Fines are where an amount of money specified by the court is to be paid by the offender to the state. Fines are used to punish the offender, but they also can act as deterrence (general and specific).

Community correction orders are a supervised sentence that is completed in the community (i.e. not in prison). This type of sanction allows the court to place conditions that can assist the offender to improve their lives and future, such as rehabilitation and treatment. One of the purposes is rehabilitation, so they are placed under supervision, but not in jail where the chances of reoffending can increase.

3 Define the term ‘non-parole period’.

A non-parole period is the amount of time the offender must wait before they can apply for parole. Parole is the conditional release of a prisoner from jail.


4 Conduct some further research on Kevin John Carr (see Source 3).

a What was Carr convicted of?

Carr was convicted of rape.

b Has he sought to be released from prison? When?

Carr applied for a review of his indefinite sentence in 2009.

c What was the view of the court in determining whether he should be released?


The court continued the indefinite sentence, and felt he was still a danger to the community. The court also said questions were being raised as to Carr’s willingness to take part in a sex offender’s program.

d In your view, are indefinite sentences appropriate? Share your views with the class.


5 Create a scenario in which a term of imprisonment was imposed on an offender. In the scenario, include whether the sentence was cumulative, concurrent, aggregate and/or indefinite. Exchange your scenario with another class member, and work out the type of sentence imposed.



6 Evaluate the ability of imprisonment to address the underlying causes of offending.

Student answers will vary. Sample responses are provided below:

• This sanction is one of last resort and focused primarily on punishing the offender for their actions and removing them from society to protect the community. Consequently, the sanction is not primarily designed to address the causes of the offending behaviour.

• The availability of a range of programs to prisoners means their specific issues may be addressed.

• Victoria’s recidivism rate is currently approximately 40%, which demonstrates that a significant number of prisoners go on to commit further crimes once released from prison.

• Prison may expose offenders to a range of negative influences, which may exacerbate existing causes, or create new future causes, of offending

• Whilst various rehabilitation programs are available, the offender needs to be willing to partake in these programs and actively work towards addressing their specific issues.


4.12 Sentencing factorsPages 130–135


Define and explain

1 Which party would want to demonstrate to the court that there were significant aggravating factors, and which party would want to demonstrate to the court that there were significant mitigating factors? Why?

The prosecution would want to demonstrate significant aggravating factors as these increase the seriousness of the offence and the sentence.

The defence would want to demonstrate mitigating factors so that the sentence may be lessened.

2 Explain why an early guilty plea is beneficial to the courts, the victims and the accused.

An early guilty plea saves time, costs and stress for the courts, victims and the accused as there is no reason to go a trial.

3 What is a victim impact statement, and why is it useful for the court in sentencing?

A victim impact statement details the injury, loss or damage suffered by the victim as a result of the offence. The victim statement is submitted to the court before sentencing and may be read out in open court. It is designed to help the court decide the sentence of the offender. Victim statements also give the victim the opportunity to have their say.

4 Decide whether the factors listed below are examples of aggravating factors or mitigating factors:

Mary-Lou committed an offence while on bail

Aggravating factor

Hugo has significant prospects of rehabilitation

Mitigating factor

Jacques used a home-made bomb when committing the crime

Aggravating factor

Belinda was 16 when she offended

Mitigating factor

Luca committed the offence because he hates people with white hair

Aggravating factor


Rebecca assaulted her sister in front of her children

Aggravating factor

Kylie pleaded guilty within hours of being charged

Mitigating factor


5 Read the legal case DPP v Bennison.

a Identify the aggravating factors in this case.

The aggravating factors are the use of adhesive tape to bind the victim’s legs, the use of a sock and tape to gag him, the fact the victim was put in the boot of the car, and the way the body was disposed of by hiding it in the bushes on the foreshore.

b What sentence was imposed?

Bennison was sentenced to 21 years imprisonment, with a non-parole period of 18 years.

c Conduct some research to find out what sentences were imposed on Bennison’s co-offenders. What did you find? How does this compare with Bennison’s sentence?

Name of co-offender Sentence imposed

Co-offender A Sentenced to 5 years imprisonment with a minimum non-parole period of 3 years and 9 months (reduced from 10 years’ with a minimum non-parole period of 7 years and 6 months).

Terry Darren Mitchell Sentenced to 10 years imprisonment with a minimum non-parole period of 7 years and 6 months

Compared to Bennison, the co-offenders received a significantly lighter sentence, especially in case of Co-offender A.

6 Read the legal case DPP v Smith.

a What offences did Smith plead guilty to?

Smith pleaded guilty to theft, arson, attempted theft, handling stolen goods and reckless conduct endangering a person.

b Would there have been a jury trial? Justify your answer.

There would not have been a jury trial as Smith pleaded guilty. When an accused pleads guilty, there is no trial, just sentencing.

c How many days will Smith have to serve in prison before he is eligible for parole?


Smith has to serve 2 years imprisonment (730 days) before he is eligible for parole. He has already served 155 days, which was taken off his sentence. That means he has to serve a further 575 days before he is eligible.

d Identify at least five mitigating factors that were taken into account in sentencing Smith. What did you think when you were reading each of those mitigating factors?

Student answers will vary but may include:

• the stillbirth of his daughter and period of strain in his life

• he pleaded guilty

• he expressed remorse for his actions

• he suffered from autism

• he has prospects of rehabilitation; support of partner, new son, the courses undertaken in prison

• he is young

• engagement with a psychologist

• victim-less crime; offence did not cause risk to persons and was not malicious.

7 Devise a hypothetical scenario in which a person has committed a crime and has either pleaded guilty or been found guilty. Write out the scenario and the sentence imposed. In doing so, include as many aggravating and mitigating factors as you can. Give your scenario to another person in their class and ask them to identify those factors.


8 Read the article ‘Hamlyn Heights woman Teegan Kelly jailed for five years’.

a What benefit did the judge see in Kelly pleading guilty early?

The judge said that by pleading guilty early, Kelly had saved the community for the costs of running a criminal trial.

b Do you think that early guilty pleas should be taken into account during sentencing? Give reasons for your answer, referring to the principles of justice.



9 Do you think that the case of Stephanie Maher demonstrates the positives of victim impact statements? Give reasons for your answer. In doing so, prepare an argument to rebut what a person might say are the negatives of victim impact statements.


Possible positive elements of victim impact statements:


• Provides an insight into the effects the offenders actions have had on the victim and/or their families.

• Assists in achieving access by providing an avenue for the victims to be involved with the sentencing process and have their voices heard.

• When read out in court, victim impact statements allow the offender to hear the consequences of their actions, possibly generating some remorse and a possible desire to rehabilitate.

• In sentencing the offender, the judge can more accurately take into account the specifics of any injury, loss or damage that the offender’s actions had on their victim/s.

Possible negative elements of victim impact statements:

• Fluent, well-written impact statements that elicit strong emotions may have a stronger influence on the judge and their sentencing. This can limit equality for an offender, as well as fairness for victims, who cannot express themselves as effectively. It may also affect victims who do not have family to convey the trauma and devastation of the offender’s actions.

• Sentencing should be based on the particulars of the crime itself, rather than the degree of trauma/distress it causes, to ensure equality in sentencing practices. For example, one crime may result in vastly different degrees of trauma to different victims, even though the crime itself is the same. Therefore, all offenders should be punished similarly.

10 Evaluate the extent to which rewarding early pleas achieves justice.


• Early pleas bring about resolution to the victims, their families and the offender sooner than if a trial was conducted.

• They may provide for more lenient sentencing of the offender, which can produce resentment in victims/victims’ families towards the justice system.

• Justice can still be achieved through the offender pleading guilty to charges, which reflects the gravity of their actions.

• The trauma/distress and inconvenience associated with a trial is eliminated.

• An early guilty plea saves the time and costs associated with a trial, thereby assisting the justice system and allowing the courts to hear other cases sooner.


Student book questionsChapter 4 ReviewPages 136–137

Revision questions1 Describe one reason why a court hierarchy is needed for criminal cases.

[2 marks]

Student answers will vary but may include the following responses:

• A court hierarchy is needed for criminal cases so that the courts can specialise. Having a hierarchy means that the courts can develop their own areas of expertise.

• A court hierarchy is needed to ensure the appeals process. Having higher courts means that a party who is dissatisfied with a decision can take the matter to the higher court to challenge the decision.

2 Distinguish between denunciation and punishment as purposes of criminal sanctions.

[3 marks]

Punishment allows the community some revenge against the offender, and focuses on the nature of the particular offence and what that particular offender did. Denunciation is disapproval of the court of a particular type of behaviour. Denunciation is used to send a message to society that that offence is disapproved of by the court, whereas punishment is aimed at punishing that particular offender for their offences.

3 Explain one responsibility of the judge in a criminal trial.

[3 marks]

Student answers will vary but may include the following responses:

• The judge must manage the trial and make sure that correct court procedures are followed.

• The judge must decide on the admissibility of evidence, and whether evidence is permitted or must be excluded due to the rules of evidence.

• The judge must attend to jury matters and give information to the jury to ensure that any jurors are excused if there is something that will affect their ability to serve on the jury.

• The judge must give directions to the jury and sum up the case so that the jurors understand the processes and identify what they need to consider when deciding their verdict.

• The judge must hand down a sentence if the accused is found guilty or pleads guilty while complying with legislation about the sentence that should be imposed.


4 Identify and explain two ways in which the criminal justice system seeks to uphold the principle of fairness.

[4 marks]

An accused is entitled to legal representation and this can be ordered by the court. This ensures that the accused is able to have a fair trial by being legally represented.

The judge acts as a ‘referee’ and is impartial and independent. This ensures that fair processes are upheld and that each side has an opportunity to present their case.

5 Discuss the extent to which sentence indications and plea negotiations enable greater access to the criminal justice system for an accused.

[8 marks]


6 For each scenario below, identify one factor that may be considered in sentencing, and one sanction that is unlikely to be appropriate. Justify your answer.

[6 marks]

a Denis was charged with the murder of his brother in a reserve in Ivanhoe. He pleaded guilty upon arrest at the reserve and told police that he is willing to do community work. He has significant mental health issues after being abused as a child.

Denis’ previous abuse and subsequent mental health issues and early guilty plea should be considered in sentencing. A community correction order cannot be used for category 1 offences (such as murder), so that sanction would not be appropriate.

b Carrie pleaded not guilty to drug trafficking after 10 kg of heroin was found in her house. A jury found her guilty after the prosecution led evidence that she had made the drug in front of her two young children.

Carrie committed the offence in front of her young children and this should be considered when sentencing. A fine would be inappropriate as it is unlikely to protect the community from Carrie’s behaviour or rehabilitate her.


Practice assessment task1 Referring to this case, explain one reason for a court hierarchy.

[3 marks]

While student answers will vary, in accordance with the VCE Legal Studies Study Design 2018–22, better responses will refer to the need for specialisation or appeals. Students must include sufficient detail in their responses to be awarded three marks. A sample answer for specialisation is provided below:

The need for specialisation:

One reason for having courts ranked hierarchically from lowest to highest in order of the seriousness of the cases they can hear is to allow for the courts to develop their own areas of expertise or specialisation. For example, the higher courts (e.g. the County and Supreme Courts) are able to specialise and develop expertise in hearing indictable offences, while the Magistrates’ Court can specialise in hearing summary offences in an efficient manner.

In this case, the defendant, Mr Singh, was charged with culpable driving causing death, which is an indictable offence (under the Crimes Act 1958 (Vic)) generally heard in the County Court. Having the County Court specialise in hearing such cases allows the court to become expert in the types of evidence presented, while also becoming familiar with the factors and issues relevant to sentencing.

The need for appeals:

One reason for having the courts ranked from lowest to highest in order of the seriousness of the cases they can hear is to allow a party who might be dissatisfied with a decision to lodge an appeal and have the decision reviewed by a higher court. Parties must, however, have grounds for appeal.

In this case, given the defendant Mr Singh was charged with the indictable offence of culpable driving causing death (under the Crimes Act 1958 (Vic)), which is generally heard in the County Court, any appeal would be heard by the Victorian Supreme Court of Appeal before three experienced justices.

2 Would a committal proceeding have been required in this case? Give reasons.

[3 marks]

Committal proceedings would be required in this case because Mr Singh was charged with the indictable offence of culpable driving causing death. Committal proceedings take place in all cases where an accused pleads not guilty to one or more indictable offences.

Although Mr Singh did plead guilty to the lesser offence of dangerous driving causing death, committal proceedings would have still taken place (in the Magistrates’ Court) because the prosecution had charged him with the more serious offence of culpable driving causing death. One main purpose of these committal proceedings would have been to determine whether or not the prosecution’s evidence was strong enough for a reasonable jury to find Singh guilty.


3 If Mr Singh was not legally represented, but did not satisfy Victoria Legal Aid’s (VLA) income test, describe two types of assistance that he may have been provided by VLA.

[4 marks]

Students must explain two types of assistance that could have been provided by the VLA, with two marks being awarded for each type of assistance provided.

Student responses will vary. A sample answer is provided below:

Even if Mr Singh did not satisfy Victoria Legal Aid’s (VLA) income test, he still would have been able to access free legal assistance from the VLA by seeking information provided on their website. For example, the website would provide information relating to general driving offences, including culpable driving causing death. It would also explain the legal processes Mr Singh would have likely faced after his arrest, including information on committal proceedings and any pending County Court trial. VLA online assistance is available to everyone regardless of their income.

Mr Singh could also have sought free legal advice from the VLA. Such advice can be provided in person at a VLA office, using the telephone or via video link. Free legal advice from the VLA is generally available to members of various disadvantaged groups (such as Indigenous Australians and the homeless) and people, like Mr Singh, who cannot afford their own private lawyer.

4 Describe two factors likely to have been considered in sentencing Singh.

[4 marks]

Students must include two factors the judge would likely consider when sentencing Mr Singh. Two marks should be awarded for each factor.


Factors the judge may likely consider could include:

• aggravating factors. For example, the prosecutor categorises the gravity of the offence as being serious rather than low-level. This could be because Mr Singh was driving alone while on a learner driver’s permit and exceeding the speed limit when he lost control of his motor vehicle.

• mitigating factors (e.g. Mr Singh’s young age, level of remorse and early guilty plea).

• the victim impact statements provided to the court by the victim’s friends.

When sentencing Mr Singh, County Court Judge Wilmoth might have considered the offender’s relatively young age and immaturity as being mitigating factors, which may be seen to lessen the offender’s degree of culpability. In cases involving young offenders, the courts can consider the need for rehabilitation as a significant factor when sentencing, especially if the offender has no relevant prior convictions.

Judge Wilmoth may also consider that Mr Singh was willing to plead guilty to the lesser offence of dangerous driving prior to trial. This may result in imposing a less severe sanction. This willingness to plead guilty to a lesser offence may indicate a degree of remorse on the part of Mr Singh, over the death of Mr Voss and the offender’s dangerous driving.


5 Was either a plea negotiation or a sentence indication used to determine the charges? Justify your answer.

[5 marks]

Students earn one mark for indicating that plea negotiations and a sentence indication most likely were not involved in the determination of the charges and two marks for each justification.


Plea negotiations, or discussions between the prosecutor and Mr Singh about the charges to be laid, most likely did not take place in this case because Mr Singh pleaded not guilty to culpable driving causing death. If negotiations took place, the prosecution would have most likely accepted Mr Singh’s offer to plead guilty to the lesser charge of dangerous driving causing death. Even if plea negotiations took place, given the prosecutor did not accept Mr Singh’s guilty plea to dangerous driving causing death, these negotiations did not ultimately determine the charges, as there was a full trial.

Although the article did not specifically state whether a sentence indication was used to determine the charges in this case, it is unlikely. This is because a sentence indication involves the offender pleading guilty once he or she has received an indication of whether an immediate term of imprisonment will be imposed (in the case of an indictable offence). In this case, even if Singh did ask for an indication of sentence, he did not plead guilty following that indication, as the matter went to trial.

6 Explain one responsibility of the jury and the prosecution at trial. Refer to Singh’s case in your answer.

[6 marks]

Three marks should be awarded for the explanation of one responsibility of the jury and three marks for the explanation of one responsibility of the prosecution. While student responses will vary a list of possible responsibilities of the jury and prosecution is provided below. Students must provide sufficient depth in each explanation to earn three marks.


Typical responsibilities of the jury include:

• remaining objective and impartial while listening to the evidence during the trial. During their deliberations, juries must only consider the evidence that has been presented in the case. When listening to the evidence the jurors may make notes that can be referred to during their deliberations to ensure that they remember what has been presented.

• reaching a verdict, either unanimous or majority (11 jurors in agreement out of 12), regarding the guilt of the accused based on the facts of the case, and the application of the law, as explained by the judge. The verdict required is either one of guilty or not guilty to the charges contained in the presentment.


Typical responsibilities of the prosecution include:

• assisting the court to find the truth in the case. The prosecution is responsible for ensuring all credible evidence is presented to the court, even if the evidence is not beneficial to the prosecution’s case. The prosecution must also research the relevant law and determine how it applies to the facts of the case. Through the examination of witnesses, the prosecution can also help test the reliability of the evidence presented and help the court discover the truth.

• making decisions as to how to present the case to the court. This will include determining what evidence should be presented to the court, the witnesses to be called and the questions to be asked during the examination and cross-examination of witnesses. In presenting the case, the prosecution must present the evidence in an impartial manner and not aim to bias the jury against the accused.

• presenting opening and closing addresses to the court, in which the key evidence is explained in a clear manner so that the interests of justice can be served and help reach a verdict in the case. When giving the opening address, the prosecutor can only speak to the evidence that has been seen by the accused.

7 Describe two purposes of sanctions that may be relevant in this case, and discuss the extent to which one sanction may be able to achieve those purposes.

[7 marks]

A range of purposes could be considered in the sentencing of Mr Singh, although, given the seriousness of the offence of dangerous driving causing death, the most likely purposes would be deterrence, rehabilitation and denunciation. If Mr Singh were sentenced to a term of imprisonment, this would also account for the need to protect the community and punish him. One mark should be awarded for describing each of the purposes of the sanction and five marks should be awarded for the discussion of the extent to which the chosen sanction achieves these two purposes. A discussion requires students to provide ways in which the chosen sanction both achieves and detracts from the achievement of the two purposes.

A sample answer (focusing on deterrence and denunciation) is provided below:

One purpose of imposing a sanction upon Mr Singh would be to deter both Mr Singh and the general community from committing similarly grave driving offences in the future. Given deterrence can be achieved by having the offender and the community understand the severe consequences associated with committing the offence, Judge Wilmoth may have imposed a term of imprisonment upon Mr Singh to dissuade him from similar acts in the future. Such action might also encourage other drivers to take greater care on the roads, especially inexperienced young drivers. However, the extent to which other members of the community are deterred from driving dangerously by the sanction imposed on another person is debateable, as people may not consider such penalties when driving or hold the belief that ‘this will not happen to me’.

Another purpose of imposing a sanction upon Mr Singh would be for the court to express its, and the community’s, disapproval of Mr Singh’s conduct. Imposing a term of imprisonment would achieve this purpose by letting it be known that the court considered Mr Singh's actions to be well outside of community standards, especially given that he was a learner driver and was driving in a reckless manner. The evidence given by the loved ones of Mr Voss, who died in the collision, would also serve to emphasise the need to make clear the community's displeasure at what occurred.


Note: The maximum penalty for dangerous driving causing death is 10 years imprisonment. In this case the defence was seeking a community correction order. In November 2016, Judge Wilmoth sentenced Mr Singh to four years imprisonment. He must serve a minimum period of two and half years before being eligible for parole. When sentencing, Judge Wilmoth specifically stated that she hoped the sentence would deter other members of the community, particularly young and inexperienced drivers, from driving in a dangerous manner. Mr Singh was also fined $1000 for driving on ‘L’ plates without another fully licenced driver in the car and was disqualified from obtaining his licence for four years.

8 How has each of the principles of justice sought to be achieved in this case? Give reasons for your answer.

[8 marks]

To earn 8 marks, students would be expected to address each of the principles of justice (i.e. fairness, equality and access) and apply them to the Singh case.

Student responses will vary. Sample answers are provided below:

• The concept of fairness could have been achieved in this case through the upholding of a range of rights belonging to Mr Singh in accordance with criminal processes. For example, all those involved in this case (e.g. the accused, the victim’s family and witnesses) had the right to be informed about relevant criminal processes and be given a fair hearing. Mr Singh would have had the right to be tried without unreasonable delay, the right to a fair hearing and the right to a trial by jury. He would also have been able to exercise significant rights, both at pre-trial and trial stages, which would have upheld the presumption of innocence and allowed him full and open access to the prosecution’s evidence prior to trial.

• The victim’s family would have had various rights, including to be informed about the proceedings and, upon Mr Singh being found guilty, the opportunity to give victim impact statements. For example, the relatives and friends of the deceased, Mr Voss, were able to produce victim impact statements that detailed their suffering and grief. This would have also allowed them access to the legal process so that their sense of loss can be included as a factor in sentencing.

• In order for justice to be achieved in this case, it is important that the parties, especially Mr Singh, have access to the criminal justice system. This means Mr Singh should have been able to understand his legal rights and the legal processes surrounding his case and approach and use various bodies to gain legal assistance – especially if he was unable to afford private legal representation. This would have included Mr Singh being made aware of the charges and the basic evidence against him, while also having the opportunity to challenge this evidence.

• The principle of equality would have been achieved in this case by treating Mr Singh equally, regardless of his background, personal characteristics or beliefs (e.g. his relatively young age and perhaps his cultural background). Equality could be achieved by ensuring Mr Singh was able to have legal representation to help prepare and present his case to the court in the best possible manner. This would also ensure witnesses for the prosecution were adequately cross-examined. The consistent use of strict rules of evidence and procedure during the trial, and the use of an independent and impartial judge and jury, would have helped ensure that equality was achieved. For example, evidence that was inadmissible and/or unreliable could not have been presented at the trial. This is an essential component of justice in criminal cases where the defendant, if found guilty, might face a term of imprisonment.


9 ‘This case shows that justice is for the accused and not for the victim or the victim’s family. There should be no right for an accused to negotiate charges or for any mitigating factors to be considered in sentencing’. Do you agree? Give reasons for your answer, referring to Singh’s case.

[10 marks]

To earn 10 marks, students would be expected to break down this question into its key components, drawing on the topic statement as the basis for the structure of their response. While there would be a range of approaches to this question, the following would be an appropriate means of addressing the question in light of the Singh case.

Student responses will vary. A sample answer is included below:

• The statement 'justice is for the accused' is based on the standard of proof and burden of proof, which lies at the heart of the criminal justice system. In this case, Mr Singh (the accused) had the right to be treated as innocent until a jury found that the prosecution had presented sufficient evidence to prove him guilty beyond reasonable doubt.

Students could also mention the rights of Mr Singh at pre-trial and trial stages in terms of upholding the presumption of innocence.

• The statement ‘justice is…not for the victim or the victim's family' could be contested in this case because, while there is no justice possible for Mr Voss, given the fact that he died as a result of the collision, his family and friends were able to present victim impact statements as evidence of their suffering and loss in court, which would have been taken into account by Justice Wilmoth when sentencing. This would have allowed them access to the legal process and ensure their grief was a factor in sentencing the offender.

• The statement 'There should be no right for an accused to negotiate charges’ allows students to examine the process of plea negotiation, which is conducted without prejudice to the defendant. It would be expected here that students would undertake an evaluation of this process. It should be noted that the benefit to the legal system is significant when plea negotiations are successful. They reduce the number of contested hearings, which assists the timely attainment of outcomes and eliminates some of the stress on witnesses who no longer need to testify in court.

• The statement 'mitigating factors (should not) be considered in sentencing' allows students to raise and discuss a number of issues, although it is accepted that sentencing must be unique to each individual case. For example, judges need to have the flexibility to take into account issues that increase or reduce the culpability of the offender. In the Singh case, factors such as his age, whether he has family support and his prospects for rehabilitation should be considered when the sanction is being determined. The family of the deceased might have a different view, believing that an over-emphasis on factors that might favour the offender could lessen the severity of the outcome to such an extent that their loss is not reflected adequately in the sentencing.

Total: 50 marks


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