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Australia (1,844)
ATS1282 (18)
Lecture 6


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General Education Studies
Asher Flynn

Judging the Judges: Courts and Sentencing Sentencing and prosecution – contentious?  Over the past 20 years, become controversial. Why: o Contradiction between the state (or prosecution representing the satet) and the victim.  Victims’ Rights Movement: o Greater recognition of victims. o Giving them a greater role in the sentencing process. o Creates controversy – if a sentence is too lenient it is seen as a direct attack on the victim and it’s difficult to argue over an emotive response from a victim or their family.  Link between victims’ interests and more punitive justice.  Justice seen to be done or not done. o Punishment moved from public to private realm. o Public executions to prison (behind closed doors).  Growth of the media plays a part in prosecution and sentencing being contentious.  Law and order – courts too lenient? o Donna Fitchett:  2007: found guilty of murdering her two sons.  2009: conviction overtuned on appeal.  2010: Found guilty (again) of murdering her two sons.  Sentence: Maximum – 27 years imprisonment; Minimum – 18 years.  Argued that she didn’t express remorse and that 27 years wasn’t enough. o John Xydias:  2010: Plead guilty to 25 counts of rape and 61 counts of indecent assault.  Sentence: Maximum – 28 years imprisonment; Minimum – 20 years.  Argues that sentence should have been 1235 years imprisonment.  Sentencing = highly politicised and controversial. Public perceptions  Roberts and Indermaur (2007): o 4,270 respondents:  46% ‘not very much’ confidence.  24% ‘no’ confidence.  70% harsher sentences.  46% death penalty. o Argued that these results for wanting harsher penalties was a result of what they’d seen in the media. Role of the media  Criticisms of the media: o Don’t report all facts of the case. o Draws heavily on emotion. o Not accurate, fair and balanced.  Criminologists argue that the media focus on the most serious and controversial cases and doesn’t often provide an understanding of all the facts.  Selective media reporting.  Doesn’t inform public of the larger more broader sentencing for crimes.  Helps fuel the idea that sentences are too lenient because they don’t present facts such as what the average murder sentencing is. Trial by media  Examples: o Lindy Chamberlain (1980):  Dingo stole my baby.  Judged guilty by the media.  June 2012: Coronial Finding - death likely caused by dingo.  Apology offered.  Media made her out to be bad. o Schapelle Corby (2002):  Drug smuggling charges.  May 2012: Sentence cut.  May 2013: Australian.  Media showed both innocent and guilty side.  Influencing juries: o Tell juries not to read anything about the cases. o NSW 1994 - they had difficulty differentiating between what they saw in court and what they saw in the media and it influences their decision. o Unable to clearly remember the facts of the case. o Demonstrates the impact the media has on influencing perception. o Types of offences  Summary Offences: o Heard before a single Magistrate, no jury. o Traffic offences, public disturbances, theft, some kinds of assault. o Tried by a police prosecutor representing the State.  Indictable Offences: o Tried before a Judge (County Court) or Justice (Supreme Court), with or without jury. o Most serious criminal offences – murder, manslaughter, sexual assault, arson. o Tried by a Crown prosecutor or solicitor from the Office of Public Prosecutions.  Indictable Offences tried Summarily (hybrid): o Less serious indictable offences. o Maximum $100,000 or 5 years imprisonment. o Obtaining property by deception, handling stolen goods, selling drugs, obtaining unregistered firearm. o Tried by a police prosecutor representing the State. Victorian court hierarchy  Australian High Court: o Located in Canberra - highest court in the Australian Judicial System. o Interpret and apply the law of Australia. o Cases of specific Federal significance o E.g. Mabo – important for Indigenous – giving them ownership of land.  Supreme Court: o Most serious criminal offences. o Lower amount of cases. o E.g. serious sexual assault, murder, manslaughter, treason. o Appeals from County Court and Supreme Court. o 102 cases finalised (125 offenders). o 48% pleaded guilty. o 54 cases proceeded to trial.  County/District Court: o Indictable offences e.g. sexual assault, serious assault, intentionally or recklessly causing injury. o Appeals from Magistrates Court:  Sentence inadequate – prosecution can say it’s not enough.  Sentence excessive – defense can say it’s too harsh.  Error on point of law – if they think the magistrate erred in some way. o Koori Court division – trial since 2009. o 73% resolved by guilty plea o Only 378 cases proceeded to trial o 53% found guilty  Magistrates’ Court: o Five speciality courts – Neighbourhood Justice Centre, Drug Court, Family Violence Court, Koori Court, Children’s Court, Magistrates’. o Summary and indictable offences tried summarily. o 90% of all cases. o E.g. traffic offences, theft, selling drugs. Prosecution process  Criminal proceedings against individuals.  State versus the accused: o Prosecutor. o Accused
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