ATS1423 Chap.3 Courts, Trials and Sentencing
Courts, Trials and Sentencing
Courts, Trials and Sentencing explains the arbiters of the system. The lecture calls the courts the guardrails between the state and the people, and sets out the elements of due process in a country without a Bill of Rights.
It describes the Victorian court hierarchy and precedent, then contrasts the showcase trial in the higher courts with the lower courts, where magistrates hear more than 95 per cent of criminal trials. Plea negotiation, Packer's crime control and due process models, the aims and principles of sentencing, and the politics of mandatory and truth-in-sentencing laws complete the week.
The week's group task asks each tutorial group to explain how one court works using contemporary examples, which is good practice for the four-arm analysis in Dissecting Justice.
What this chapter covers
- 01
Due process and Australia's lack of a Bill of Rights
- 02
Magistrates', County and Supreme Courts and the High Court
- 03
Binding and persuasive precedent
- 04
Pre-trial discretion, bail and remand
- 05
Negotiated pleas: advantages and disadvantages
- 06
Packer's crime control and due process models
- 07
Sentencing aims, principles and factors
- 08
Mandatory sentencing, truth in sentencing and popular punitiveness
Worked example · free
Apply the sentencing principles to a mandatory term
- 1List the principles: proportionality, parsimony, parity, individualised justice and totality.
- 1Proportionality: a fixed minimum can exceed the harm of a minor second burglary.
- 1Parsimony: courts should prefer the least restrictive option, which a mandatory prison term forbids.
- 1Individualised justice: the court cannot weigh the offender's circumstances below the minimum.
- 1Parity is the law's best defence, since like cases receive like sentences, but uniform outcomes for unlike cases are not parity.
Key terms
- Precedent
- The doctrine that a court's decision binds later courts at the same or a lower level of that hierarchy, while decisions from other jurisdictions are only persuasive.
- Negotiated plea
- An agreement in which the accused pleads guilty in exchange for fewer or lesser charges or a lighter recommended sentence, subject to court approval.
- Crime control model
- Packer's model of the criminal process that values efficiency, screens cases early and treats later stages as operating on a presumption of guilt.
- Due process model
- Packer's model that distrusts early decisions, relies on formal fact-finding and requires legal as well as factual guilt.
- Parsimony
- The sentencing principle that the least restrictive or coercive option that meets the purpose of sentencing should be preferred.
- Truth in sentencing
- Legislation requiring that prison sentences be served in full, reducing or removing parole and producing longer stays in prison.
Courts, Trials and Sentencing FAQ
Why do so few criminal cases reach a jury?
The lecture reports that more than 95 per cent of criminal trials are heard by a magistrate in the lower courts, and over 70 per cent of higher-court cases are sentencing hearings after guilty pleas, so jury trials are the exception.
Is due process guaranteed in Australia?
Not by the Constitution. The lecture notes that Australia is the only major common law country without a Bill of Rights, and relies on parliamentary democracy and common law traditions to protect rights such as the presumption of innocence.
What are the main criticisms of plea bargaining?
It can pressure people to plead guilty, encourage prosecutors to overcharge to provoke a deal, induce admissions to offences not committed, and erode the presumption of innocence, the right to stay silent and the right to a trial.
What is the difference between Packer's two models?
The crime control model prizes speed and finality and trusts early screening by police and prosecutors. The due process model prizes accuracy, insists on formal fact-finding, and separates factual guilt from legal guilt proved by lawful means.
What can a Victorian magistrate impose?
The lecture states that the Sentencing Act 1991 caps a Magistrates' Court sentence at two years' imprisonment for one offence and five years where there are several, together with fines within statutory limits, so serious indictable offences go to the higher courts.
Assessment move
Draw the court ladder from memory and add one sentence on what each level hears. Learn the six sentencing aims and five principles as two separate lists, because questions often mix them. Practise one short paragraph that uses Packer's models to explain a real feature of the lower courts, such as police prosecutors or high guilty-plea rates, since that skill transfers directly to Dissecting Justice.
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