Criminal+Procedure

Power to arrest
Arrest can be with or without a warrant. A warrant authorises the arrest of the person named or described in the warrant (s64 Mag. Ct. Act). Arrest without warrant is exercised either by police for indictable offences (s459 CA) or by ordinary citizen for any offence (citizen’s arrest, s458CA). No person can be arrested w/o warrant except as authorised by the Crimes Act (s457). P is not member of police therefore s458 applies/P is police therefore s459 applies.

__Citizen’s Arrest s458CA__ Any person can arrest a person they find committing an offence and where they believe on reasonable grounds arrest is necessary for reasons listed in s458(1). Finds committing extends to conduct or behaviour that causes the person exercising the arrest to believe on reasonable grounds an offence has been committed. P will argue he had power to arrest because….

__Police Arrest s459CA__ P can arrest a person w/o warrant where they have reasonable grounds the person has committed an indictable offence in Victoria. Police may enter and search any premise they believe the person may reasonably be -459A

Mode of Arrest
An arrest must convey by words or conduct to A they are not free to leave (R v Inwood [1973]) and P must give reason for arrest. Reasonable force may be used to exercise arrest (s462A). This is (in)consistent with charter of HRR s21

Detention
If A is in custody he can only be held in detention for a reasonable time before being either released or brought before bail justice or Mag. Ct. - s464A (1). This reflects CHRR s21, right to liberty and security. Reasonable time depends on factors in s464A(4).

Custody defined in s464. A is in custody because he is under lawful arrest/he is being questioned to determine his involvement in an offence and P has sufficient grounds to arrest.

Before any questioning, P must notify A of their right to communicate with a friend, relative or lawyer (464C) and their right to remain silent (464A(3)). This must be recorded, either by audio or video (464G).
 * Rights Under Detention**

Confessions and admissions during questioning must be recorded either by audio or video (464H). If not, it is inadmissible as evidence unless P satisfied the court on balance of probabilities that the circumstances are exceptional and justify the reception of the evidence – 464H(2).

This is consistent with CHRR s21,22,25.

Grant Bail?
There is a presumption in favour of bail s4(1), except if A is charged with murder/treason (s4(2)). Onus on P to show there is an unacceptable risk (s4(2)(d)) of A:
 * 1) Failing to answer bail
 * 2) Committing offence while on bail
 * 3) Endangering public
 * 4) Interfering with witnesses

Factors to consider when determining if there is an unacceptable risk are listed in s4(3). When looking at these factors, court can hear any evidence it considers credible/trustworthy (s8).

Bail will also not be granted for ‘show cause’ offences unless A can show why he should be granted bail s4(4)

Conditions of bail
The court must consider bail conditions in the following order - s5(2):
 * 1) Unconditional release on own undertaking
 * 2) Release with conditions
 * 3) Release with deposit surety and with/without conditions
 * 4) Court will consider means of the accused to determine the amount of money deposited - s5(5)

Condition must not be more onerous than what is necessary to compel A’s attendance and to protect public + witnesses – s5(4)

Consequences
Failure to answer bail without reasonable excuse is an offence punishable by imprisonment for 12 months (s30)

Sentencing
A sentence must not be more onerous or severe than which is necessary to achieve the purpose of the sentence (Parsimony) – s5(3) D submits sentence based on sentencing principles s5(1), court must consider factors in s5(2)
 * Just punishment
 * Deterrence
 * Rehabilitation
 * Denunciation
 * Protection of community
 * Combination of above.

The Courts give discounts for early pleas because is demonstrates remorse and acknowledgment of the crime.
 * Discounting Early Pleas**
 * Options for Sentencing**
 * 1) An unconditional dismissal – s76 of Sentencing Act - accused thinks offender is guilty but decides to dismiss charge without conviction
 * 2) Conditional adjournment – s75 of Sentencing Act – no conviction is recorded and if conditions of adjournment complied with then matter dismissed at end of adjournment. But if you commit further offences during adjournment period then the court can impose a penalty in respect of the offence.
 * 3) Discharge with conviction – s73 of Sentencing Act – a convicted person is discharged without any other penalty imposed
 * 4) Adjournment with conviction – s72 of Sentencing Act– the matter can be adjourned for up to 5 years without penalty but you have conviction. But if you commit other crimes during the adjournment period, you will have a penalty imposed.

A method of keeping people out of prison whilst keeping a close eye on them. Two purposes:
 * Community Based Orders**
 * 1) Punitive purpose – interferes with their life
 * 2) Reformative aspect

Orders have core conditions and program conditions. At least 1 core condition and 1 or more program conditions were community based order. Offender must agree to all the conditions of the community based order. Offenders usually agree.

Court imposes sentence of imprisonment – but spends it for operational period (period for which court specifies the sentence is imposed). If you reoffend during the period – then you are sentenced for the other crime and you immediately start serving the imprisonment.
 * Suspended Sentences**

Discretionary power not to active the suspended sentence by the court.

Considered as light option for offenders.

Judge must first decide that offender deserves a sentence of imprisonment. Having done that they can then decide to suspend the sentence.

Strong punitive component and weaker reformative component than Community Based orders. Most significant condition: Attend specified community correction centre for at least 12 hours per week and do unpaid community work. This is done so as to supervise offender, as well as having a strong punitive component by making offender do ‘dirty’ work.
 * Intensive Corrects Orders**

This is a last resort because: - People come out worse than they were when they went in - Does not reform people very well - Prisons are a significant cost on the community and therefore government wants to minimize number of people in prison. Concurrently – where you are serving a number of sentences at the same time. Court can order to serve sentence concurrently or cumulatively. Can mix and match concurrent and cumulative – the overall total is the ‘total effective sentence’.
 * Imprisonment**

**Setencing Examples**
- Sexual offences case – sexual relations, with consent, with someone who you have a position of authority/care over if they are under 18 – s48 of Crimes Act 1958. - Teacher having sex with 17 year old pupil of his. - Teacher in High School in Shepparton. - Excursion toMelbourneUniversity – after excursion accused had an arranged meeting with one student. - Gave the student something to drink and then had penetrative sex. - Max penalty for this offence under s48 of Crimes Act is 10 years. Sentence given: 6 Months imprisonment imposed
 * R v Howes (2000) VSCA 159**

- Accused convicted of blackmail. - Max 15 years. - The person he demanded money from was a priest. - The priest has sexually abused him as a boy. - Accused gave evidence against priest at priest’s trial. - Offender’s motivation was not financial gain but an act of revenge for what he had done to him. Sentence given: 15 months of imprisonment suspend for an operational period of 2 years.
 * MGR (2000) VSCA 44**

- Accused and wife was divorced and she made an application for child maintenance at Court in Dandenong. - During adjournment, accused grabbed knife ran across the road and stabbed her 48 times. - Tried to run a defense of provocation but not accepted by trial judge. - Convicted of murder by jury. Sentence given: Life sentence – with minimum term of 25 years. - Female convicted of murdering her husband – stabbed him - At time of killing husband was 73, she was 72 - Husband killed while sleeping in bed. - She killed him because she was scared he would cut her out of his will and she would be replaced with another female friend. - At the time of sentencing the offender was suffering from ill health and was of fragile mental state. Sentence given: 15 years imprisonment with a minimum term of 11.5 years.
 * Parsons (2000) VSCA 15**
 * Cumbarbatch (2004) VSCA 37**