courts web viewour attitudes and opinions about courts are shaped over time by a range of...

Courts Challenge

An inquiry-based approach to learning about courts

South Australian Law Courts Education Program

Acknowledgements

These materials have been developed with the financial support of The Department of Education and Children’s Services, The Courts Administration Authority and The Open Access College.

Materials developed by:Peter CavourasSouth Australian Law Courts Education Service.

Support from the following people is acknowledged:• Bronwyn Sugars• Sharon Morris• Leisel Underwood• Jude Brown• Matthew Chapman• Sylvia Kriven• Judge Christine Trenorden• Dr Andrew Cannon (Deputy Chief Magistrate)• Patricia Rowe SM• Grant Harris SM• Sylvia Williams

© 2005 The State of South Australia, Department of Education and Children’s Services and The Courts Administration Authority.

This publication is protected by copyright. It may be reproduced by South Australian teachers for use with their students. For all other uses contact the Open Access College ([email protected])


Why learn about courts?

Knowledge of courts’ functions and processes is essential to effective citizenship.Our attitudes and opinions about courts are shaped over time by a range of influences such as the media, family, friends and community groups.Civics education underpins our current schools curriculum and can provide learners with knowledge and understanding to question, reflect and form opinions about the role of courts in our communities.Many of us will have some degree of contact with courts during our lives. Throughout the series of suggested learning experiences in this package, learners will come to see courts as a resource and formulate views about the importance of key features and underlying principles in enabling the legal system to balance the rights of diverse individuals and groups in attempting to provide social order and harmony.

The Challenge supports learners to develop:• understandings of the functions, processes and systems of decision-making• understandings of how to access and use these processes and systems

effectively.

The Challenge is framed around four key questions:• What makes an effective decision?• What makes an effective judge?• What makes an effective court?• What makes an effective sentence?

Issues that may arise for discussion include:• the effectiveness of our court system• the appropriateness of court outcomes and the complexities of choosing effective

consequences for a range of actions• the way courts reflect contemporary society• the importance of independence from the government and parliament• public trust and confidence in courts.

The Challenge provides scope for learners to consider questions and issues like these in the context of their own experiences.


Connecting the curriculum

This package is designed for students in the middle to upper primary years of schooling. It uses an integrated curriculum approach covering learning areas that include:

Society and EnvironmentStrand: Place, space and environment; Social Systems; Time, continuity and change

EnglishStrand: Texts and contexts; Language strategies

LanguagesStrand: Communication; Understanding language; Understanding culture

Health and Physical EducationStrand: Personal and social development

Essential LearningsLearning approaches throughout this package have a strong focus on the following Essential Learnings taken from the South Australian curriculum frameworks document:• Identity• Thinking• Interdependence• Communication• Futures.


Using the materials

The materials are best used in conjunction with a visit to the Law Courts. Many of the activities provide scope for group discussion and collaboration. They also provide scope for learners to explore values from a range of social and cultural perspectives.

To maximise learning outcomes, students will benefit from:• contributing to discussions• actively listening to others• reflecting and sharing their responses with others.

Suggestions for presenting learningThe materials are designed so that all or some of the activities can be completed. As an assessment item, teachers may like learners to demonstrate their learning by presenting their understanding of an aspect of courts in a:• written piece• collage• web page• play• poster or graphic or• interpretive art work.

Organisation of the ChallengeThe Challenge is divided into a number of core activities. Fact sheets, Templates and additional PDFs support these activities. Each student activity sheet begins with an aim and a brief context statement to frame the learning. Teachers may choose to distribute the activity sheets to students in their current form or use them as a basis for shaping their own activities round the central aims and suggestions for student explorations and discussion.

A glossary of terms shown in bold in the PDFs is provided at the end of the activities.

The flowchart below suggests a sequence for the range of activities in the package. Alternatively teachers can choose a sequence that suits them in their own classrooms.The Challenge is framed around four key questions:1. What makes an effective decision?2. What makes an effective judge?3. What makes an effective court?4. What makes an effective sentence?and leads on to a further exercise:5. How would you decide?

The activity sheets, the supporting PDFs and the Fact sheets are all addressed to the learner, so teachers may print them out for learner use, or simply use them to provide background information themselves. The Templates may be printed onto coloured cart for groups to use. The activities ‘What makes and effective court?’ and ‘ How would you decide?’ have additional teacher notes with suggestions on how to carry out that activity.


What makes an effective decision?

Aim: To identify and use a range of decision-making processes.

Day-to-day life is full of situations where we have to make decisions. The sorts of decisions we make vary in importance depending on our own personal situation and whom the decisions might affect.

For learners in groups1. In groups discuss the following three questions:

(a) What decisions do you make in a day?• How do you make those decisions?• What strategies are both helpful and unhelpful in making those

decisions?

(b) Consider how decisions can be influenced by other persons such as a:• Family member• Teacher• School Principal

(c) Think of three decisions you can control and three you have no control over.• When have you made a choice to hand over a decision to someone

else?• Why did you make this choice?• When has someone made a decision for you?• Why?

2. In groups role-play the range of possible decisions you might make about the following situations:• You don’t have a pencil.• You haven’t got anyone to play with at recess.• You have to choose a small group for a performance.• You find a stray dog.• You would like to change the school dress code.• You would like to plant trees in the community.• You need to report some one for an incident while on road crossing duty.


What makes an effective judge?

Aim: To recognise that there are a broad range of views about the traits, skills and knowledge required of an effective judge.

Resources: Template 1Template 2How judges are selected – Fact sheet 1

A small number of disputes end up in a court before a judge with specialist knowledge and experience. Opinions differ about how judges should be selected, by whom they should be selected, and for what reasons.

Activities1. In the space below draw a judge.

2. As a group brainstorm and list what you think of when you hear the word ‘judge’.

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3. Imagine you are on a committee to appoint a new judge. In small groups:• generate a list of qualities that you think the new judge should have• choose six from your list and record them on the blank quality cards at the

end of Template 1• look at all the qualities listed on the cards in Template 1• in your small group discuss and debate which qualities from Template 1 fit

into each of the categories listed on Template 2• copy the qualities chosen for each category onto Template 2• share your small group’s responses with the large group.

4. If you are interested in exploring the selection process for judges refer to Fact sheet 1.

5. Reflect on:• the similarities and differences between the words written for the brainstorm

in question 2 and the qualities your group recorded on the blank cards in Template 1

• the similarities and differences between the ideas shared back from each small group.

6. Answer the following questions:• Why do you think that there were similarities and differences?• What did you find easy/hard when you were working in a group?• How did you feel when some else had a different view?• Complete this sentence: An effective judge is someone who ...• What are your personal views about the processes of election and

appointment that are used for selecting judges?


How judges are selectedThe ideal process for selecting judges is a subject that is debated worldwide.

The qualities expected of judges that that are most often talked about are accountability and independence, but these qualities are often discussed without exploring what is meant by being independent.

Two methods for the selection of judges that are commonly used are:• Election: a process based on choice by a community.• Appointment: a selection process based on merit.

In Australia judges are appointed.

Some of the arguments for election and appointment are outlined below:

Election

Pros Cons

Many people believe the political views of judges are important

Who is elected may come down to whoever has the money to campaign for votes.

The public have a say in who is elected. Popular does not always mean effective.

Democracy is observed. The public may not have the information necessary to make the correct decision.

Appointment

Pros Cons

The nominating committee includes ‘experts’.

Community members are not involved in the selection process.

Those making the decisions know what is required and that the person has the necessary skills.

The appointment is influenced by the personal views of a few.

Judges are appointed for their working life.

The issues associated with long-term tenures*.

* If judges are appointed to the same position for the rest of their working life, what might be some of the issues related to that long-term appointment? Discuss this with your teacher.


Fact sheet 1

Quality cards

Female Sense of humour Strict

Speaks more than one language Good listener Good

communicator

Old and wise Lots of experience Fair

Culturally inclusive Open-minded Logical

Problem solver Good looking Family-oriented

Knowledge of law Organised Caring


Template 1

Qualities of a judge

Essential qualities(Those they must have)

Desirable qualities(Those you would like them to have)

Undesirable qualities(Those you would prefer

they did not have)

Unnecessary qualities(Those not needed for the job)


Template 2

What makes an effective court?

Aim: To discover the key features of an effective court, identifying:• the people involved• the space they work in • those who are essential or not essential in the process.

Resources: Disputes and systems of trial: Fact sheet 2The stages in a criminal dispute in the Magistrate’s Court: Fact sheet 3Who’s who in a Magistrate’s Court criminal hearing: Fact sheet 4How to facilitate a debate: Teacher ResourceVirtual tour [Magistrates Court] at www.courts.sa.gov.auVisit/workshop with the Education Officer

A courtroom is the place where a dispute may be finalised. Courts in Australia have many common features, including their appearance and the range of people that work in them. For many of us, our impression of how a court might look and they should work is influenced by the media.

For learners in groups1. After observing a ‘live’ court session, or after viewing the virtual tour, reflect

on the following:• How are disagreements resolved between two or more learners in school?

[Consider the role of each participant, including their rights and responsibilities in conflict resolution.]

• Who makes the final decision?• Discuss and record the advantages and disadvantages of this process using

a PMI (Plus-Minus-Implications) Chart.

2. In groups debate one of the statements that follow, then report back to the class:• The court system in Australia is fair.• Courts can run effectively without a judge or lawyer.• Members of the public should be able to view courts.Use Fact sheets 2, 3, and 4 and the Structured debate process sheet to help prepare and run your debate.

Other activities1. You are responsible for designing a new court for your local area or town.

What should it look like?

2. Research how courts work in another country.


Disputes and systems of trialDisputesDisputes are generally referred to as disagreements between two or more people or groups that may end up before a court.Disputes that go to courts may be classified as criminal or civil disputes. Criminal disputes refer to crimes (offences or breaches of the law) against the community or its members. Civil disputes refer to ‘private’ wrongs toward an individual or group.If disputes cannot be settled before the court stage a trial may take place where the aim is to determine what really happened.Less than 5% of all disputes that go to court actually proceed to a trial.

Systems of trialThe adversarial systemThis is used for criminal cases in Australia. Some features of this system are that:• the court is separate from the police. The judge is like a referee.• the two opposing sides (the prosecutor and the defence) put forward their

cases. The prosecutor has to prove the case against the accused beyond reasonable doubt.

• each side may be represented by lawyers and can call witnesses to give evidence to establish facts to help their case. Judges do not generally ask questions of witnesses.

• the accused person may have the right to be tried by a jury of twelve people from the community. They will decide whether he or she is guilty or not guilty.

• the trial is heard by a magistrate (in less serious cases) or by a judge and jury, or by judge alone

• the most serious cases may first go to a magistrate who will determine whether there is enough evidence for the accused to be sent to trial in a higher court

• in a jury trial it is the jury who decides if the accused is guilty or not guilty. The judge assists the jury by telling them about the law.

• the process is open to the community.

The inquisitorial systemMany European (and some Asian) countries use a different system of trial that incorporates some of the following features:• Judges/magistrates act as investigators and supervise the role of police in the

gathering of evidence both for and against the suspect.• The public can observe the trial but not the investigation.• If the investigating magistrate decides there is a case against the accused,

he/she compiles a dossier and refers the accused to a court for trial.• The accused is innocent until proven guilty but the case does not have to be

proved beyond reasonable doubt. • The trial may be heard by a judge and in some countries judges and a jury. The

judge calls witnesses and questions them.• There are no strict rules of evidence.• In some instances trials may adjourn for the gathering of more evidence.


Fact sheet 2

Alternative approachesMediation (generally not used in criminal cases)Mediation often involves a neutral third person helping both sides to reach an agreement rather than a judge.

(If, for example, four of you were trying to make a decision about which movie to see, you might ask another friend to help you decide. In a school setting, a disagreement with another may result in a student counsellor attempting to settle the dispute. Because they do not take sides they can be viewed as a mediator.)

A restorative approachRestorative justice refers to an approach used in criminal cases where the offender admits responsibility for their behaviour and:• explains their behaviour to the victim• apologises for their actions• appreciates the real impact of what they have done and the range of people

affected• makes some promises about future behaviours and recompense to the victim.


The stages in a criminal dispute in the Magistrate’s Court


Fact sheet 3

The stages in a criminal trial in the Magistrate’s Court

* If the person declines to answer, he/she is presumed to plead not guilty.


Who’s who in a Magistrate’s Court criminal hearingMost courts in Australia have a similar layout. The picture below shows the layout of a Magistrate’s Court in South Australia. Around 90% of all court cases begin and end in a Magistrate’s Court. It is a busy court. Apart from differences in size and decor, higher courts such as the District Court and Supreme Court hearing criminal cases have a space for a jury.

In many higher courts, there is a physical separation between those facing the gallery, those presenting information in court (the Bar Table is where those presenting information or evidence to the court sit and stand) and the Bench where the Magistrate sits. The space between these is often called the ‘well’ and tradition has it that nothing should pass through that space when court is in session except the truth.

The Magistrate’s Court

Graphic by Katrina Sonter

MagistrateMagistrates are lawyers who have worked for at least five years. A magistrate hears evidence and decides whether a person is guilty or not guilty to an offence as charged. A magistrate imposes a penalty on those who are either found guilty or plead guilty to offences. The magistrate's role in court is to ensure that justice is administered fairly and impartially.

Magistrates usually dress in business clothing but some now choose to wear a black robe without a wig.


Fact sheet 4

Magistrate's clerkThe magistrate's clerk ensures that a proper record of the proceedings of the court is maintained. The clerk records the evidence presented to the court, the magistrate's remarks, decisions and penalties.

Defendant The defendant, also known as the accused, is the person who has allegedly committed a crime. The defendant may represent him/herself but most people hire a lawyer to represent them. Those that fit certain criteria may be able to seek legal aid.

Counsel Generally speaking, the word ‘counsel’ describes lawyers who prosecute (or claim if it is in a civil suit) and defend (or respond in civil cases). They are officers of the Court and provide ‘counsel’ or advice to the Magistrate about the law and the case.The defence counsel’s job is to defend the person who is accused of committing a crime. This is done by challenging the prosecution, cross examining witnesses for the prosecution, providing witnesses for the defence and any information that establishes reasonable doubt about the truth of the prosecution allegation.

ProsecutorThe State prosecutes a person for a crime.The prosecutor can be an individual representing the State, such as a Police Prosecutor or a Public Prosecutor who works for the Office of the Director of Public Prosecutions; a representative of a State or Government department (for example, a park ranger, fisheries officer); a Local Government Council (for example, a council health inspector or a council planning inspector); or a private individual.The prosecutor is not necessarily a lawyer. It is the prosecutor's job to provide the court with information as to the type of offence the defendant is alleged to have committed and prove beyond reasonable doubt that the defendant committed the crime as charged.

WitnessThe prosecution and defence may call witnesses to present information about what they may have seen or heard. The witness may also corroborate other information.

Sheriff’s OfficerThere is only one Sheriff in South Australia but the Sheriff has more than 100 officers.Sheriff’s Officers keep order in the court, help to bring prisoners into and out of court, and help people coming into the courtroom. They advise the magistrate's clerk as to which defendants, solicitors and so on are present in court and if they are ready to proceed with their case. They make sure defendants do not leave court without signing any bonds, bails or orders of the court if that is what is required. In a courthouse and associated property, a Sheriff’s Officer has the powers of the police to arrest a person who misbehaves.


How to facilitate a debate

Teacher resourceThe following learning experiences provide learners with opportunities to:• develop skills and understandings in advocating a point of view• value different viewpoints• reflect on what influences our own personal viewpoints• learn about taking social action at a personal level.

Strategies to use1. Opinions line

2. Structured debate process

3. Social action scenarios

4. Exploring personal values and viewpoints


1. Opinions line

ContextThe purpose of this process is to provide learners with opportunities to openly listen to and value differing opinions and viewpoints about particular issues. Learners will be able to practise the skills of advocating a point of view and supporting their arguments with reasons and evidence. They will also learn how to enquire into their own position and perhaps move along the opinions line accordingly.

ProcessDraw a line on the floor with chalk.

Place a card labelled ‘Disagree’ at one end of the line and a card labelled ‘Agree’.

Read an issue to the group (see the topic examples below).

Ask learners to position themselves along the opinions line.

Select learners at different points along the line to advocate their position with reasons.

Prepare issues that are relevant to the context of your learners.

For example: • Boys have it easier than girls.• Songs with coarse language should be banned.• Violence on the screen leads to violence in society.

Court-related topics:• The court system in Australia is fair.• Courts can run effectively without a judge or lawyer.• Members of the public should be able to view courts.


2. Structured debate process

ContextThe purpose of this process is to provide learners with opportunities to debate and enquire into a point of view through a highly structured process. It supports learners to think critically and creatively within a collaborative team.

ProcessOrganise learners into groups of four to six and divide each group into two teams called team A and team B.

Share the topic for debate with all groups: Team A will be arguing ‘For’ and Team B arguing ‘Against’.

Provide ten minutes for teams to prepare arguments to support their position.

Ask the teams to follow the steps outlined below:• Team A advocates their position for five minutes whilst Team B listens. • Team B refutes Team A’s position for five minutes.• Team B advocates their position for five minutes whilst Team A listens. • Team A refutes Team B’s position for five minutes.• Switch positions: Team B will be arguing ‘For’ and Team A arguing ‘Against’.

Each team is required to formulate new or extended arguments.• Repeat the above process.

Combine Teams A and B to discuss all arguments and work towards a consensus position that integrates the most convincing, persuasive arguments.

It is often helpful for learners to have access to a clock, watch or timer and to have a visual copy of the Structured debate process (on the next page) to support them to organise their time.

Learners may wish to reflect on the process. Ask them to consider:• How did you feel throughout the process?• Was it easy/difficult to advocate from different viewpoints?• Has your personal viewpoint changed in any way?• What could you see as the benefits of this process?


Structured debate process

Preparation 10 minutes

Team A presents 5 minutes

Team B refutes 5 minutes

Team B presents 5 minutes

Team A refutes 5 minutes

Preparation 10 minutes

Team B presents 5 minutes

Team A refutes 5 minutes

Team A presents 5 minutes

Team B refutes 5 minutes

Team A and B create a joint position 10 minutes


3. Social action scenarios

ContextThe purpose of this process is to provide learners with opportunities to explore ways of having a powerful voice to influence change and take social action.

ProcessDiscuss the responsibilities and consequences involved in change.

Share scenarios that invite learners to consider:• Stakeholders• Support networks• Feasibility• Personal feelings• Levels of personal action.

Scenarios could range from friendship issues through to community-based or global issues.

4. Exploring personal values and viewpoints

ContextThe purpose of this process is to provide learners with opportunities to examine the values, beliefs and experiences that have influenced their personal viewpoints.

ProcessSelect an issue for group and personal exploration.

Identify different groups that have had an influence in your life.

Reflect on the different influences using the Personal reflection tool as provided on the next page.

Provide time for learners to share as they feel comfortable.


Personal reflection tool

Exploring personal values and viewpoints


Issue:

Political groups: Media:

Other:(church, sports groups etc)

School:Friends:

Family:

What makes an effective sentence?

Aim: To identify factors that lead to a fair sentence (a fair consequence).

Resources: The sentencing process: Fact sheet 5Sentencing – Factors a court considers: Fact sheet 6Moral dilemmas: Learner activityHow would you decide? Activity

Sentencing – Who decides?Courts cannot simply impose what they think is a fair sentence or do what the public may want. They must consider previous cases, laws set by the Parliament, reports and statements from victims.

Group activitiesImagine you are given the job of establishing the rules for sentencing. Discuss what you would do in relation to the following.

1. Who are the best people to decide in the following situations?• Deciding the consequence for an inappropriate act at home.• Deciding the consequence for an inappropriate act in the classroom.• Deciding a consequence for an inappropriate act in the school.• Deciding a consequence for an inappropriate act in the community.

2. How should each person be selected?

3. What factors should they take into account to make sure their consequences (sentences) are fair?

4. Which group(s) should they be fair to?

5. Read through Fact sheets 5 and 6 and in groups discuss the situations on the Moral dilemmas sheet.

6. Undertake the ‘How would you decide’ activity.


Precedent Laws ReportsVictim Impact Statement

Sentence

Sentencing Act

The sentencing processWhat is a sentence?A sentence is the penalty for committing a crime.In South Australia, sentencing is the task of a sentencing judge or magistrate in a: • Magistrate’s Court• Youth Court• Supreme Court• District Court• Environment, Resources and Development Court.

How do courts decide on a sentence?Courts cannot simply impose what they think is a fair sentence or do what the public may want. They must follow precedents, and laws set by State Parliament such as the Sentencing Act. They may also consult reports and victim impact statements.

PrecedentsPrecedents are decisions made in past trials for similar crimes. They create sentencing principles which courts must follow.

LawsParticular laws may need to be followed depending on the nature of the case. For example, the Environment Protection Act may apply in a case involving environmental crime. Often the court will refer to the Commonwealth Crimes Act or the Criminal Law Consolidation Act. Maximum penalties are fixed by various Acts to particular crimes. For example, there are certain penalties attached to offences committed under the Fisheries Act.

ReportsThe court may ask for pre-sentence reports from the Department for Correctional Services, a psychologist or psychiatrist, or a specialist in a particular field. Those preparing the report will usually interview the offender, the offender’s family, the victim, employers and others who might be relevant to provide the court with the information it requires. Prosecutors and defence lawyers may also seek pre-sentence reports to present to the court before the court decides on the sentence.


Fact sheet 5

Victim Impact StatementVictims of an offence may present a written statement about the effects of the crime on them. The victim or his/her nominee may read the statement out in court.

Sentencing ActThe Court must give equal weight to each part of the Criminal Law (Sentencing) Act.Only then can the sentence be delivered, with imprisonment as a last resort.

Criminal Law (Sentencing) ActThe court must give equal weight to each part of the Act:• the circumstances of the offence• other offences that are to be taken into account• whether or not the offence is part of a pattern of behaviour of similar

criminal acts• the personal circumstances of any victim• any injury, loss or damage resulting from the offence• the degree to which the offender has shown contrition or made reparation

for the offence• whether or not the offender has pleaded guilty to the offence• the degree to which the offender has cooperated in the investigation of the

offence• the need to protect the community from the offender's criminal acts• the deterrent effect that a sentence may have on the offender or other

people• the need to ensure that the offender is adequately punished for the offence• the character, past history, age, financial situation and physical or mental

condition of the offender• the rehabilitation of the offender• the probable effect of the sentence on dependants of the offender• any other relevant matter.

What sentences are possible?Judges and magistrates are trained to be independent. They listen to the prosecution and to the defence and choose from a range of sentences.

ImprisonmentUnder the Sentencing Act imprisonment is not an option unless the offender has shown violent behaviour towards people, is likely to commit another serious offence, has previously been convicted of an offence punishable by imprisonment, or the offence is so serious that no other punishment would fit the crime.Parole is the release of a prisoner on certain conditions for the remainder of his/her sentence. If the offender is sentenced to imprisonment, the court will set a non-parole period. A non-parole period is the amount of time the offender must serve before being considered for release on parole. At the end of the non-parole period the Parole Board decides whether an offender will be released on parole. The Board considers the prisoner’s behaviour and prospects of rehabilitation.Sometimes, as in the case of a very violent crime, a non-parole period is not set and the person must remain in gaol for the entire prison sentence.


Suspended sentence and bondIf the sentence is imprisonment, the court will decide if there is a good reason to suspend the sentence. This might be the case for young first time offenders with reasonable prospects of rehabilitation.Offenders then sign a bond under which they promise to be of good behaviour for a set period of time and to comply with the conditions set out in the bond or promise. They are released, usually under the supervision of a probation officer. If they keep their promise during this time they do not have to go to prison. If a person breaks the promise, he or she is guilty of the offence of breaching the bond. He or she usually has to return to prison, serve out the rest of the original sentence and do extra time for breaching the bond.

FineA fine is a sum of money that a court orders an offender to pay.

Compensation/confiscationCompensation is a payment designed to make amends for personal injury, death, or damage to or loss of property. Confiscation is the seizure of goods from an offender. For example, private property or drugs may be confiscated.

What if the court gets it wrong?If the court makes an error of law or if the sentence is considered to be too high or too low, an appeal can be made against the decision to another court.

Sentencing remarks onlineJudges’ sentencing remarks from the Supreme Court and the District Court are available online at www.courts.sa.gov.au/sent_remarks. The judge’s reasons for the sentence are given in his/her sentencing remarks. These are usually read out to the offender in court. The remarks are then put on the offender’s file. They are usually available within 24 hours of delivery, where possible. Since 2001, sentencing remarks have been published on the courts’ web site, where they remain for four weeks.


Sentencing: Factors a court considers


StatutesLaws made by parliament such asCriminal Law Sentencing Act

PrecedentSentences imposed in previous similar cases.

Section 10 of the Criminal Law Sentencing Act [1988] sets out matters that a court should have regard for and includes:• The circumstances of the offences• Other offences• Personal circumstances of the victim[s] (for

example, a Victim Impact Statement)• Any injury, loss or damage resulting• Degree of contrition of offender• If offender admitted guilt• How co-operative the offender has been• Adequate punishment• Character, criminal history, age, means,

physical mental condition of the offender• Rehabilitation of offender• Probable effect on dependents of the

offender• Any other relevant matter• The deterrence component of the penalty

Section 11: Offenders may only be imprisoned if they:• Show a tendency towards violence to

others • Are likely to commit a serious offence if

freed • Have previously committed crimes for

which they could have been imprisoned or if the nature and seriousness of the crime makes other penalties inappropriate

A court may suspend a sentence of imprisonment [s38] if good reasons exist such as:• The offender has a chance of rehabilitation• The offender is a young first offender• The nature of the offence THIS IS STILL A SENTENCE OF IMPRISONMENT LIKELY TO BE SERVED IF THE OFFENDER FAILS TO COMPLY WITH ANY CONDITIONS OF THE GOOD BEHAVIOUR BOND OR COMMITS ANOTHER OFFENCE

Sentencing informationThe court may consider:• reports such as medical, pre-

sentence• references• information outlining injury or

damage suffered by the victim of an offence.

• other relevant information

Appeal process: In certain circumstances a sentence can be reviewed by a higher court.

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Sentence

Fact sheet 6

Moral dilemmas: Learner activity

The following situations represent moral dilemmas. In groups discuss and work through the range of solutions, allowing for different points of view. [Your teacher may make the exercise more complicated by adding new elements or facts for consideration.]

At the end of the activity identify some decision-making principles and who might be the best person to make such a decision.

Situation 1Phil is catching the bus home from school. As he is getting off, the person in front of him drops a small envelope. Upon closer examination Phil discovers the envelope is a weekly pay packet and contains $380.00. There is a name on the envelope. The money is the person’s only source of income.

Discuss Phil’s options.What would you do?

Situation 2Casey is travelling home from school on the bus. When getting off she/he notices that Zak, one of the year six students who bullies her/him regularly, drops a small envelope.Upon closer examination Casey discovers the envelope is the weekly pay packet of the school cleaner and contains $380.00. She/he believes that Zak has probably stolen the money, which is consistent with his reputation.Discuss Casey’s options.What would you do?

Situation 3Two factories have been built on the banks of the Murray River. Factory A is 100 metres upstream of Factory B. Both factories produce materials that are important in modern day society.Factory A produces a lot of waste that finds its way in to the river. Factory B needs pure and clean water to keep producing their product.What are your feelings about this situation?Who is responsible for the water quality?How might this situation be resolved?


How would you decide?

Teacher resourcePreparationPrior to the activity print ‘Consider the information – the police version’ and ‘Consider the information – the defence version’ on different coloured card or paper.On another coloured paper, print cards from Template 3 with the following labels:ImprisonmentSuspended gaol sentenceBond with conditionsFineCompensationCommunity serviceNo penalty – case dismissed

Consider the information – The police version(Explain to learners that the police in this situation make allegations about the crime.) Divide the learners into groups and allocate to each group a penalty card.Have each group consider the information and whether or not their penalty card is appropriate.Each group can appoint a recorder to record findings and another to report back to the class. The class may or may not reach an agreed position as to the appropriate consequence through their discussion.

Consider the information – The defence version(Explain to learners that the defence gives background information about the character of the accused, explanations for the offending and other relevant information. It is common for both sides to discuss the matter before they go to court.)Have the same groups consider the information and whether the penalty card is appropriate.Using the same process as above, each group then reports back to the class.

Conclusion – Whole class questionsAsk the whole class to consider the following questions:• Did members of the class change their attitude to consequences after they

considered the defence version?• Why?• What conclusions can be drawn from this?


Consequence cards

Imprisonment(Sending someone to jail)

Suspended sentence

(The promise of jail only if another offence

is committed in a give time period)

Bond(Entering into a promise

to agree to certain behaviours)

Fine(An order to pay money to

the court)

Compensation(Those not needed for the

job)

Community service

(Supervised work such as cleaning graffiti,

collecting rubbish)

No penalty(Case dismissed)


Template 3

How would you decide?

Aim: To determine a consequence, giving reasons for your decision.

Resources: Fact sheet 5: The sentencing processFact sheet 6: Sentencing – Factors a court considersConsequence card allocated by your teacherConsider the information – the police versionConsider the information – the defence version

BackgroundRefer to Fact sheets 5 and 6 on The sentencing process.

Activity 11. In groups read Consider the information – the police version. What is the

role of the police before sentencing occurs?

2. Using the Fact sheets, identify any important factors you need to consider to decide whether the penalty card that your group has is appropriate.

3. If your group thinks another penalty is more appropriate than the one on your card, which of these would you consider:• imprisonment for up to two years• a suspended sentence (the promise of imprisonment if he commits another

crime in a given period of time)a bond with conditions (entering into a promise)a fine (order to pay money)

• compensation (paying someone for the damage or loss, such as the amount needed to repair or replace something)

• community service (supervised work such as cleaning graffiti, collecting rubbish).

4. Appoint a recorder to record findings and another to report back to the class.

5. As a class, try to reach a common position about a suitable penalty.


Activity 21. In groups read Consider the information – the defence version. What is

the role of the defence before sentencing occurs?

2. What penalty does your group now believe is most appropriate?

3. Appoint a recorder to record findings and another to report back to the class.

4. As a class, try to reach a common position about whether the penalty decided earlier is still appropriate or whether another penalty is more suitable.

Class discussion1. Did you change your attitude to the consequences after you considered the

defence version?

2. Why?

3. What conclusions could be drawn from this?


Consider the information – the police version

John is 23 and is charged with obtaining money dishonestly. He has a serious drug problem and has been sharing a house with other drug users.

He stole a Driver’s Licence renewal form from Brian, another person living in the house, and used it to obtain a Driver’s Licence in Brian’s name but with his own photo on it.

Using the Driver’s Licence, he obtained a new credit card in Brian’s name (claiming his was lost).

Using the credit card, John withdrew $3600 from Brian’s bank account.

He used the money to buy drugs.

When questioned by police he refused to cooperate.

The bank wants John to pay back the money.

At first, John says he did not commit the crime. Once shown the fake Licence application he owns up and tells all.

Background informationUntil two years ago he had no criminal history. In the past two years, however, he has had three convictions for using or possessing drugs and two convictions for minor offences of stealing to get money for drugs.

He also has a number of traffic convictions.


Consider the information – the defence version

John is admitting the crime.He lied to police because he was scared. By the end of his interview he had owned up fully.Brian had sold John’s car to get money for drugs. John was trying to get even as well as get his money back. John didn’t realise the bank would be the loser, thinking it would be Brian instead.John says he is sorry and will pay back the money to the bank but needs time to do this.He has not committed any further offences although still on drugs. John has a girlfriend who is employed and prepared to help him. She is not on drugs and they now live at her parent’s home.His girlfriend and her parents have known of his drug problems and are prepared to support him.John is keen to kick his drug habit but needs help. He feels if he can kick the habit he can find work again.


Glossary of terms

accountability level of responsibility for an action

accused person charged with a crime (also the defendant in a criminal case)

adjourn to put a matter or case off to another date

appointment choice or selection by an individual or panel (for example, a judge)

beyond reasonable doubt standard of proof required in a criminal case (where facts proven establish the guilt of a person)

bond similar to a promise to do certain things

compensation usually an amount of money to cover the loss the person has suffered

conviction decision by the court that results in a criminal record

democracy a form of government where the sovereign power rests with its citizens directly or indirectly through representation

dossier a brief or bundle of papers

election choice or selection by electors or voters

evidence all means by which details about a fact or truth can be sustained (in law it must be allowable based on certain rules)

independence freedom from control by an outside influence (for example, judges should be independent of the influence of the government when deciding cases)

larceny another term for stealing or theft

neutral not favouring any side

recompense recovery in value for damage caused (usually the payment of money for replacement or repair)

suspended sentence penalty where the offender makes a promise to not commit other crimes for a period of time or risk going to gaol for the period of the sentence

tenure time of holding (for example, a position or title)

witness one who tells what she or he has seen, heard or otherwise observed


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