The Prosecutor's Role In Determine The Sentencing Process
THE SENTENCING PROCESS * The hearing
Once the jury has determined the guilt of an offender, the jurors are dismissed and their role in the trial is over. It is now time for the second stage of the trial in which the judicial officer of the court-judge or justice-will determine the sentence imposed. The trial judge will look at many factors when determining a sentence. These factors include; the defendant’s state of mind, his or her criminal record-if any; and addiction the defendant may have, whether he or she has shown any remorse. * Evidence
The only evidence looked at during the sentencing process is that which has been presented at trial. At this time, the judicial officer may take into account prior convictions. * Role of prosecutor
The prosecutor’s role in sentencing is to present to the judicial officer all the relevant info from the case as well as the info about prior convictions and cases related to the defendant. It is their role to ensure that the defendant receives the highest possible sentence. In order to assist this process, they will also tender “victim impact statements” made by the victim or members of the victim’s family, which outline the effects of the crime upon their lives. The prosecutor’s role is also to represent the views …show more content…
of society and emphasise that the accused deserves to be penalised in the most appropriate way and that it is vital for justice to be seen to have been carried out by the victim, their family and society as a whole. * Defence
The role of the defence is to represent the best interests of their client and to ensure that the defendant receives a fair sentence. * Victim
They can play a vital part in the sentencing process. The victim impact statements can provide a human side to the crime to counter the legal vernacular associated with procedural matters. * Factors affecting the decision
These are the purpose of punishment, the circumstances of the offence, circumstances of the offender, aggravating and mitigating factors, judicial discretion and limits on discretion. * Purpose of punishment
This is an important component of the sentencing process. When determining the sentence, the judicial officer has to consider factors like; the right to the accused to receive a fair punishment, the right of society to see justice carried out, the need to deter the defendant from reoffending, the need to deter other from carrying out such acts, and, the gaol sentence of the sentence itself-to deter, rehabilitate or incapacitate. * Circumstances of the offence – objective features
The circumstances of the offences are the objective features of the offence. The prosecution uses this O.F during both the trial itself and the sentencing hearing in an effort to reinforce the trial itself and the sentencing hearing in an effort to reinforce the severity of the crime. This allows them to push for the most appropriate penalty. The OF may include; the degree of planning; the motive for crime; the use of a weapon; the use or threat of violence. * Circumstances of the offender: subjective features
Judges will take into account not only the circumstances of the actual crime itself but also the circumstances of the offender. The circumstances of the offender are the subjective features of the case. These SF may include; the age of offender, sex of offender, prior convictions, whether the defendant pleaded guilty or not, the cultural background of the offender, etc. * Aggravating and mitigating factors
Aggravating factors include the age of the victim, the level of violence and whether the offender held a position of trust. The age of the victim is particularly important in assault cases. A more severe penalty may be imposed on someone who chooses victims who are vulnerable such as young children or the elderly. If there was a high level of “gratuitous” violence involved in the crime, making it more horrific for the victim to endure, this is seen to be an aggravating factor. Aggravating circumstances are likely to result in more severe sentence being imposed.
Mitigating circumstances on the other hand may work in the defendant’s favour, painting them as victims of their own circumstance. Mitigating circumstances may include; the relative inexperience or youth of offender; whether they have been easily led by others; effects of drug and alcohol; socioeconomic status of offender; and educational achievement of offender. Such factors can only be raised at the sentencing hearing and not during the trial. * Jurisdictional discretion and limits on discretion
Ultimately it is up to the individual judicial officer to make a decision about the sentence they will impose on the defendant. Judicial sentencing guidelines are usually set by the parliament and cannot be exceeded by any judicial officer.
Chapter 6
CRIME: EFFECTIVENESS OF THE LAW
The legal system works very hard to ensure that the interests of all parties are met and that equality and fairness are present in the judicial process. Regardless of how despicable a person’s crime may be, under the law, they are still afforded rights and are entitled to receive a fair trial.
EFFECTIVENESS OF THE LAW IN ACHIEVING JUSTICE FOR INDIVIDUALS –EAEPR
Justice for individuals encompasses equality, accessibility, enforceability, protection and recognition of individual rights and resource efficiency. * Equality
// before the law means that all people who come before the courts are treated equally regardless of their sex, age, ethnicity, religious convictions, social status, income or level of education. However, inequality still exists. An example is that of wealth. Those who are wealthy can afford to pay for the best legal representation, while members of the lower socioeconomic groups in the community are forced to rely on legal aid to present them.
Plea bargaining, or charge negotiation, is another way in which inequality before the law occurs. Plea bargaining may be undertaken in exchange for info on a particular crime to help secure a conviction of another offender. It may also occur in order for the offender to plead guilty to a lesser charge rather than pleading not guilty to a more severe charge and having to go through the lengthy and costly process of a court case. Many victims and their families see plea bargaining as an obvious breach of the rule of equality and this leads to the belief that not everyone is equal before the law. * Accessibility
// of the legal system is dependant on 3 main factors- cost, access to info and time.
Cost- although legal aid is available to poor people, as with all welfare in Australia is it means tested. For this reason, the existence of legal aid does not mean that everyone can afford legal representation.
Access to info- people with a limited education and newly arrived immigrants with poor English skills are disadvantaged by their lack of knowledge of the Australian legal system.
Time-a major criticism of our judicial system is that it takes a long time for a case to be heard. In the mean time, the accused may have been held on “remand” or be out on bail waiting for the trial date to be set. * Enforceability
It is very difficult to enforce laws that members of the community deem to be outdate or irrelevant to their lives or their society as a whole. Also, if an offence is not witnessed by the police and if members of the public do not report the offence, then the law cannot be enforced successfully. An example of this is the arrest of people for using offensive language or littering. Many people argue that such arrests are unfair when the same language can be heard at football games and is used by our cricketers, on television and even in the school playground, without arrests being made. * Protection and recognition of individual rights
In every procedural stage in our criminal justice system, there are steps to ensure protection of individual rights of both the victim and the accused. It can be detrimental to a case if certain procedures and individual rights are violated in any way.
FIGURE 6.2- THE RIGHTS OF THE VICTIM; have their case investigated without prejudice; have their case recorded; be informed of their rights; be informed of the progress of the investigation; be informed of the arrest of any suspects related to the case; be informed of the pleas and any changes made; be informed of any hearing dates; be protected from the accused; make a victim impact statement to be read in court; access compensation.
RIGHTS OF THE ACCUSED; not be illegally searched; silence; be allowed bail; have legal representation; change their plea; have all interviews recorded; be detained only if arrested; appeal. * Resource efficiency
The payroll of the judicial officers and other workers in the criminal justice system alone is an enormous financial responsibility for the govt. while the criminal justice system derives an income in the form of fines and confiscation of property, this revenue is minimal compared with the costs involved in administering the legal system. The criminal justice system makes determined efforts to redress issues surrounding inequality by providing resources for those at the bottom of the socioeconomic scale. Despite this, financial disadvantage is often coupled with ignorance of the legal system and in these cases the beneficiaries remain unequal indirectly.
EFFECTIVENESS OF THE LAW IN ACHIEVING JUSTICE FOR SOCIETY-RLOA * Resource efficiency
An imbalance of the resources available to the community is a criticism of the judicial system in Australia today. Many would argue that more money should be spent on the causes of crime and less on dealing with offenders after these causes have led them to commit crimes. The imbalance in money spent on legal aid is also cause for concern. The money is allocated based on a means test. Someone who earns above the threshold or has assets may not be eligible for the service. It is usually people who are already dependant on welfare who have access to legal aid. * Law as a reflection of community standards and expectations
Major criminal cases in recent yrs, such as the Skaf Brothers rape case, the Port Arthur Massacre and the Backpacker Murders, have all led to major law reform.
The truth in sentencing laws passed in the 1990s ensure that an offender who has committed a serious crime actually sees out the real term of their sentence. This means that is an offender is sentenced to life imprisonment, they will be gaoled for the rest of their life. * Opportunities to enforcement
Until 1983, it was the responsibility of the police to bring indictable offences before the courts. The DPP is now responsible for the prosecution of indictable offences. The police continue to be responsible for the lesser crimes or summary offences. The DPP will only proceed with cases that they believe are likely to succeed in the courts. When the State decides not to prosecute or the accused is acquitted, the victim or their family may take private legal action. * Appeals and review
All people convicted of a crime have the right to an appeal and/or to have their case convicted and reviewed. Define process of appeal. * Balance of individual rights and values and community rights and values- effectiveness of law on community-
Many people would argue that some aspects of our criminal justice system are unfair and should be changed.
An example is that of previous offences being inadmissible at trial. One side of the argument is if the person is a repeat offender then the jury and court should be able to hear that this person ahs committed like offences in the past. Meanwhile, others argue that everyone deserves the right to a fair trial, and if the jury knows the person is a repeat offender then the judgement may be biased or skewed against the offender, and thus the defendant will not receive a fair trial. This is where the balance of individual rights and values and that of the greater good of the community come into
question.
Overall, the legal system tips in favour of the rights of the community and society. The values, rights and safety of the community have been the premise on which certain laws are based. The rights and values of the community change over time, even from week to week, according to events, media courage, and govt response and personal experiences.
Mandatory sentencing involves the determination of a sentence that has been established by law and where little discretion is left to the judge. Mandatory sentencing legislation is an example of a law that affects only a small proportion of the population, but is indirectly discriminatory towards that group and creates an imbalance in the rights of the individual and community. The community at large may see mandatory sentencing as reasonable when they are subjected to high income rates within their community. The law may serve the greater good, but can be detrimental towards marginalised groups within the community.
Once the jury has determined the guilt of an offender, the jurors are dismissed and their role in the trial is over. It is now time for the second stage of the trial in which the judicial officer of the court-judge or justice-will determine the sentence imposed. The trial judge will look at many factors when determining a sentence. These factors include; the defendant’s state of mind, his or her criminal record-if any; and addiction the defendant may have, whether he or she has shown any remorse. * Evidence
The only evidence looked at during the sentencing process is that which has been presented at trial. At this time, the judicial officer may take into account prior convictions. * Role of prosecutor
The prosecutor’s role in sentencing is to present to the judicial officer all the relevant info from the case as well as the info about prior convictions and cases related to the defendant. It is their role to ensure that the defendant receives the highest possible sentence. In order to assist this process, they will also tender “victim impact statements” made by the victim or members of the victim’s family, which outline the effects of the crime upon their lives. The prosecutor’s role is also to represent the views …show more content…
of society and emphasise that the accused deserves to be penalised in the most appropriate way and that it is vital for justice to be seen to have been carried out by the victim, their family and society as a whole. * Defence
The role of the defence is to represent the best interests of their client and to ensure that the defendant receives a fair sentence. * Victim
They can play a vital part in the sentencing process. The victim impact statements can provide a human side to the crime to counter the legal vernacular associated with procedural matters. * Factors affecting the decision
These are the purpose of punishment, the circumstances of the offence, circumstances of the offender, aggravating and mitigating factors, judicial discretion and limits on discretion. * Purpose of punishment
This is an important component of the sentencing process. When determining the sentence, the judicial officer has to consider factors like; the right to the accused to receive a fair punishment, the right of society to see justice carried out, the need to deter the defendant from reoffending, the need to deter other from carrying out such acts, and, the gaol sentence of the sentence itself-to deter, rehabilitate or incapacitate. * Circumstances of the offence – objective features
The circumstances of the offences are the objective features of the offence. The prosecution uses this O.F during both the trial itself and the sentencing hearing in an effort to reinforce the trial itself and the sentencing hearing in an effort to reinforce the severity of the crime. This allows them to push for the most appropriate penalty. The OF may include; the degree of planning; the motive for crime; the use of a weapon; the use or threat of violence. * Circumstances of the offender: subjective features
Judges will take into account not only the circumstances of the actual crime itself but also the circumstances of the offender. The circumstances of the offender are the subjective features of the case. These SF may include; the age of offender, sex of offender, prior convictions, whether the defendant pleaded guilty or not, the cultural background of the offender, etc. * Aggravating and mitigating factors
Aggravating factors include the age of the victim, the level of violence and whether the offender held a position of trust. The age of the victim is particularly important in assault cases. A more severe penalty may be imposed on someone who chooses victims who are vulnerable such as young children or the elderly. If there was a high level of “gratuitous” violence involved in the crime, making it more horrific for the victim to endure, this is seen to be an aggravating factor. Aggravating circumstances are likely to result in more severe sentence being imposed.
Mitigating circumstances on the other hand may work in the defendant’s favour, painting them as victims of their own circumstance. Mitigating circumstances may include; the relative inexperience or youth of offender; whether they have been easily led by others; effects of drug and alcohol; socioeconomic status of offender; and educational achievement of offender. Such factors can only be raised at the sentencing hearing and not during the trial. * Jurisdictional discretion and limits on discretion
Ultimately it is up to the individual judicial officer to make a decision about the sentence they will impose on the defendant. Judicial sentencing guidelines are usually set by the parliament and cannot be exceeded by any judicial officer.
Chapter 6
CRIME: EFFECTIVENESS OF THE LAW
The legal system works very hard to ensure that the interests of all parties are met and that equality and fairness are present in the judicial process. Regardless of how despicable a person’s crime may be, under the law, they are still afforded rights and are entitled to receive a fair trial.
EFFECTIVENESS OF THE LAW IN ACHIEVING JUSTICE FOR INDIVIDUALS –EAEPR
Justice for individuals encompasses equality, accessibility, enforceability, protection and recognition of individual rights and resource efficiency. * Equality
// before the law means that all people who come before the courts are treated equally regardless of their sex, age, ethnicity, religious convictions, social status, income or level of education. However, inequality still exists. An example is that of wealth. Those who are wealthy can afford to pay for the best legal representation, while members of the lower socioeconomic groups in the community are forced to rely on legal aid to present them.
Plea bargaining, or charge negotiation, is another way in which inequality before the law occurs. Plea bargaining may be undertaken in exchange for info on a particular crime to help secure a conviction of another offender. It may also occur in order for the offender to plead guilty to a lesser charge rather than pleading not guilty to a more severe charge and having to go through the lengthy and costly process of a court case. Many victims and their families see plea bargaining as an obvious breach of the rule of equality and this leads to the belief that not everyone is equal before the law. * Accessibility
// of the legal system is dependant on 3 main factors- cost, access to info and time.
Cost- although legal aid is available to poor people, as with all welfare in Australia is it means tested. For this reason, the existence of legal aid does not mean that everyone can afford legal representation.
Access to info- people with a limited education and newly arrived immigrants with poor English skills are disadvantaged by their lack of knowledge of the Australian legal system.
Time-a major criticism of our judicial system is that it takes a long time for a case to be heard. In the mean time, the accused may have been held on “remand” or be out on bail waiting for the trial date to be set. * Enforceability
It is very difficult to enforce laws that members of the community deem to be outdate or irrelevant to their lives or their society as a whole. Also, if an offence is not witnessed by the police and if members of the public do not report the offence, then the law cannot be enforced successfully. An example of this is the arrest of people for using offensive language or littering. Many people argue that such arrests are unfair when the same language can be heard at football games and is used by our cricketers, on television and even in the school playground, without arrests being made. * Protection and recognition of individual rights
In every procedural stage in our criminal justice system, there are steps to ensure protection of individual rights of both the victim and the accused. It can be detrimental to a case if certain procedures and individual rights are violated in any way.
FIGURE 6.2- THE RIGHTS OF THE VICTIM; have their case investigated without prejudice; have their case recorded; be informed of their rights; be informed of the progress of the investigation; be informed of the arrest of any suspects related to the case; be informed of the pleas and any changes made; be informed of any hearing dates; be protected from the accused; make a victim impact statement to be read in court; access compensation.
RIGHTS OF THE ACCUSED; not be illegally searched; silence; be allowed bail; have legal representation; change their plea; have all interviews recorded; be detained only if arrested; appeal. * Resource efficiency
The payroll of the judicial officers and other workers in the criminal justice system alone is an enormous financial responsibility for the govt. while the criminal justice system derives an income in the form of fines and confiscation of property, this revenue is minimal compared with the costs involved in administering the legal system. The criminal justice system makes determined efforts to redress issues surrounding inequality by providing resources for those at the bottom of the socioeconomic scale. Despite this, financial disadvantage is often coupled with ignorance of the legal system and in these cases the beneficiaries remain unequal indirectly.
EFFECTIVENESS OF THE LAW IN ACHIEVING JUSTICE FOR SOCIETY-RLOA * Resource efficiency
An imbalance of the resources available to the community is a criticism of the judicial system in Australia today. Many would argue that more money should be spent on the causes of crime and less on dealing with offenders after these causes have led them to commit crimes. The imbalance in money spent on legal aid is also cause for concern. The money is allocated based on a means test. Someone who earns above the threshold or has assets may not be eligible for the service. It is usually people who are already dependant on welfare who have access to legal aid. * Law as a reflection of community standards and expectations
Major criminal cases in recent yrs, such as the Skaf Brothers rape case, the Port Arthur Massacre and the Backpacker Murders, have all led to major law reform.
The truth in sentencing laws passed in the 1990s ensure that an offender who has committed a serious crime actually sees out the real term of their sentence. This means that is an offender is sentenced to life imprisonment, they will be gaoled for the rest of their life. * Opportunities to enforcement
Until 1983, it was the responsibility of the police to bring indictable offences before the courts. The DPP is now responsible for the prosecution of indictable offences. The police continue to be responsible for the lesser crimes or summary offences. The DPP will only proceed with cases that they believe are likely to succeed in the courts. When the State decides not to prosecute or the accused is acquitted, the victim or their family may take private legal action. * Appeals and review
All people convicted of a crime have the right to an appeal and/or to have their case convicted and reviewed. Define process of appeal. * Balance of individual rights and values and community rights and values- effectiveness of law on community-
Many people would argue that some aspects of our criminal justice system are unfair and should be changed.
An example is that of previous offences being inadmissible at trial. One side of the argument is if the person is a repeat offender then the jury and court should be able to hear that this person ahs committed like offences in the past. Meanwhile, others argue that everyone deserves the right to a fair trial, and if the jury knows the person is a repeat offender then the judgement may be biased or skewed against the offender, and thus the defendant will not receive a fair trial. This is where the balance of individual rights and values and that of the greater good of the community come into
question.
Overall, the legal system tips in favour of the rights of the community and society. The values, rights and safety of the community have been the premise on which certain laws are based. The rights and values of the community change over time, even from week to week, according to events, media courage, and govt response and personal experiences.
Mandatory sentencing involves the determination of a sentence that has been established by law and where little discretion is left to the judge. Mandatory sentencing legislation is an example of a law that affects only a small proportion of the population, but is indirectly discriminatory towards that group and creates an imbalance in the rights of the individual and community. The community at large may see mandatory sentencing as reasonable when they are subjected to high income rates within their community. The law may serve the greater good, but can be detrimental towards marginalised groups within the community.