Stage 2 Legal Studies

Assessment Type 1: Folio

Source(s) Analysis 6B

Purpose

You have the opportunity to demonstrate knowledge, skills, and conceptual understanding in relation to the following:

·  The role of judges in the Australian Legal System

·  The function of courts

·  The relationship between legislation and case law

·  Critical analysis of the Australian Legal System

Description of assessment

§  Refer to the attached source material and answer the questions that follow.

Assessment conditions

To be negotiated [length: not more than 800 words]

Assessment Design Criteria
Knowledge and Understanding
KU1 Knowledge and understanding of relevant influences on the Australian legal system.
KU2 Knowledge and understanding of legal principles, processes, and structures.
KU3 Recognition and understanding of ways in which the Australian legal system responds to diverse groups in the community.
Inquiry
I1 Location, selection, documentation, and application of relevant sources.
I2 Critiquing of legal processes and structures, with informed and considered recommendations for change.
Evaluation
E1 Evaluation of global influences on the Australian legal system.
E2 Evaluation of the ways in which legal issues shape and are shaped by society now, and how they may do so in the future.
E3 Evaluation of principles, processes, and structures in legal systems.
E4 Evaluation of legal issues or concepts through discussion and illustration of opposing arguments to reach an informed conclusion.
Communication
C1 Accuracy and coherence in communication of informed observations and opinions on contemporary legal issues and debates, using different forms.
C2 Use of legal terminology, indicating understanding.
C3 Appropriate acknowledgment of sources.

Read the following sources and answer the questions that follow

Source A: Life means life – or does it?

One aspect of the criminal law suggests that people responsible for criminal acts are to be punished. The range of punishments suggested in law, vary according to the gravity of the criminal behaviour. The most serious crimes for example, can attract consequences as harsh as imprisonment for life. In the last decade changes to the criminal law have seen maximum penalties of life imprisonment added for a range of offences.

Murder is generally seen as the most serious crime a person can commit. The consequence for persons found guilty of murder in South Australia, is life imprisonment. This is a reflection of the value the community places on a person’s life. However any system is often laden with values, many of which have been shaped over time. The Criminal justice system is but one example of such a system. Deeply entrenched values about offering members of society hope that may reflect a desire to change behaviour means that even in the case of murder and other heinous crimes, there must be offered ‘some light at the end of the tunnel’ for those who offend. Thus to say ‘life means life’ may be misleading.

How do courts determine sentences?

For the purpose of determining a sentence a court is not bound by rules of evidence. [Note that under section 6 of the Criminal Law (Sentencing) Act (1988) SA, the principles of natural justice must still be observed.]

Section 10 of the Criminal Law (Sentencing) Act (1988) SA outlines the factors that must be considered when sentencing an offender but in relation to the sentencing of youths, this must carry a different emphasis in light of section 3 of the Young Offenders Act (1993) SA. Youthfulness in general is a ground for extending leniency wherever possible.

Having determined a sentence for an offence, a judge will then consider if there are grounds for suspension of that sentence (meaning the offender will not be imprisoned subject to a range of conditions). Where an offender is imprisoned and the sentence is not suspended, a non-parole period must be determined – that is, the minimum time that must be served before they are eligible for release. In the case of murder, the mandatory minimum non-parole period is 20 years imprisonment. (Section 32 (5)(ab) of the Criminal Law (Sentencing) Act (1988) SA).

Judges have discretion however in relation to setting the non-parole period, (be the offenders youths or adults). Section 32A(2) of the Criminal Law (Sentencing) Act (1988) SA enables a court to set a shorter non-parole period if satisfied “special reasons exist”. Section 32A(3) of the same Act describes the test for “special reasons”.

What about youths?

Young offenders found guilty of murder are sentenced as adults hence they receive a penalty of life imprisonment. (Section 29(4) Young Offenders Act (SA) 1993)

A case example

In a recent case where a youth pleaded guilty to murder, the trial judge considered a range of factors (and ‘special reasons’) before delivering a sentence. Special reasons included:

§  A plea of guilty

§  Acceptance of what was alleged by police

§  Cooperation with the investigation by police

The decision

Imprisonment for life with a non-parole period of six years. Having been satisfied that special reasons existed, the judge reduced the non-parole period from the 20 years specified by the law.

Source B: Edited Sentencing remarks of the Hon Justice Sulan 3 Sept, 2009

IN THE SUPREME COURT, CRIMINAL JURISDICTION

ADELAIDE, THURSDAY, 2 SEPTEMBER 2010 AT 11.58 A.M.

BEFORE THE HONOURABLE JUSTICE SULAN

R v A, D

HIS HONOUR IN SENTENCING SAID:

DA, you have pleaded guilty to murder. On 12 November 2008 you murdered Daniel Awak. You were 14 years and two and a half months of age when this tragic event occurred. You are now just 16 years of age, having been born on 26 August 1994.

As the penalty for murder is life imprisonment, I am required to sentence you as an adult. I will come to the relevant matters personal to you and the requirements of the legislation in respect of young offenders who are sentenced for murder later.

The deceased, Daniel Awak, was also 14 years of age at the time of his death. Daniel died as a result of a stab wound he received during an altercation that occurred in the city on 12 November 2008. You had been spending time in the city because you had stopped attending school and you would meet friends and associates in the city…

You and Daniel were both born in the Sudan and your families had found their way to Australia so that they could lead a better and more peaceful life. The circumstances surrounding Daniel’s death had their genesis in events which took place the day before he died.

On 11 November 2008 you had gone to the city and had been involved in an altercation with another Sudanese boy named LT. Daniel Awak’s brother, Awak Awak, intervened during that dispute. It is unclear what caused the original dispute but, in any event, Awak became involved in it. On the following day you went to the city and there was another fight with LT. Awak again intervened. You became upset because you thought Awak was taking sides. You had been friendly with Awak and his brother Daniel and it seems that you were somewhat aggrieved by Awak’s involvement.

The deceased, Daniel Awak, had not been involved at that stage. You were clearly upset and very annoyed because you then purchased a knife from a nearby store…When you left the shop you saw Awak, LT and Daniel, the deceased, in Grenfell Street. Your impression was that they were looking for you.

A confrontation then occurred. A number of witnesses described the confrontation and said that it appeared that you and the other group came together and confronted one another. You were brandishing the knife and Awak tried to kick it. You suffered an injury to your ear. Daniel was coming towards you and you stabbed him in the chest. The knife entered the left side of Daniel’s chest and penetrated the right ventricle of the heart resulting in a massive haemorrhage. That wound was fatal…

You were followed and Awak, who must have then removed the knife, stabbed you with it. You were stabbed in the area of your armpit and your chest and you suffered a superficial wound to the left ear…You were arrested and charged with murder.

The loss of Daniel has had a severe impact upon his family. In her victim impact statement Daniel’s mother explains how she and her family came to Australia to escape the war in his country. His mother describes him as her favourite child. She said that he had great potential and a deep sense of responsibility for his mother and the family. As a consequence of his death, she suffers from depression.

It is clear from reading Daniel’s mother’s victim impact statement that she has been deeply affected by his death…His death has caused great hardship and suffering.

Turning to your background, you have had a most difficult life. You have been raised by your mother. You have never had contact with your father. Your mother was born in the Sudan. She came from a large family. Her father was a farmer. In 1985, when your mother was about 24 years of age, she moved to her parents’ home to give birth to her first child. Whilst she was there, her home and her parents were attacked by people who came from the north of Sudan. This was part of the conflict which has existed in the Sudan for the past 25 years between those Sudanese who live in the north and are Islamic and are of Arab origin, and those who live in the south who are Christian.

After the attack upon the family, your mother moved to Khartoum where her husband practised as a lawyer. It was prior to your birth that your parents separated. Your mother was displaced from her family. Khartoum was a dangerous place and from time to time the militia would come into your house at night and attack you and other members of the family. You and your brothers and sisters were seriously affected by these raids and by the violence that was all around you.

As a consequence, your mother moved to Cairo with you and your five siblings. You were seven years of age at the time. In Cairo again the family suffered because your mother found it difficult to support you. You were victimised by the local population. In 2002 your mother applied to migrate to Australia and in 2005 you were able to come to Australia. Whilst you were in Egypt you were regularly ostracised and physically attacked by the local population. When you were about nine years of age, two young men entered your apartment and threatened you and your brothers with a knife. It was a terrifying experience.

Your early years were influenced by violence which was all around, including direct violence upon you and your family…

…when you were living at Blair Athol, you and your family suffered discrimination and you were often frightened because, when you were home with your siblings, rocks would be thrown at your house. You became involved in a confrontation with others and, when you were counselled by your teacher, she observed that it was against your culture to walk away when confronted by others. It was as a result of your frustrations and inability to cope that you stopped going to school regularly.

…It is apparent that from a very early age your life has been a struggle. When you and your family eventually came to Australia, it appears that the school system was unable to deal with the specific types of problems from which you suffer. As a consequence, you became more frustrated and less able to cope as you grew older…

…Dr O’Neill, the psychologist, …observed: ‘D will require careful personal coaching in order to help him raise his levels. He has missed a great deal of learning and discipline in attending and he may only respond to nurturing in the cognitive area. He will be at a significant disadvantage if he is placed in the adult prison. This relates to all areas of normal development, as his lagging is global. He has suffered significant neglect, despite his mother’s striving, and it is not clear to what extent his deficits are the result of nature or nurture, but it is likely both have been strong contributors.’

She goes on to say: ‘It could be estimated that D’s level of social/emotional development at the time of the offence would have measured at about the middle primary school level at best. Leaving aside the specific conditions which led to the conflict, D’s problems with his maladaptive executive functioning were clearly tapped and in full, desperate function. This led to the inconsequential behaviour, a regression to the basic need for survival at any cost.’

…The sentence for murder is life imprisonment. Section 32(5)(ab) of the Criminal Law (Sentencing) Act 1988 provides that in respect of a sentence of life imprisonment, the mandatory minimum non-parole period is 20 years imprisonment. Section 32A(2) provides that if the court is satisfied that special reasons exist, the court may set a non-parole period shorter than the prescribed period…

…In order for special reasons to exist, the individual’s position, insofar as his mental development, is not a factor which would give rise to special reasons. However, in this case, because of other factors, I am satisfied that special reasons do exist having regard to your plea of guilty, your acceptance of the allegations against you and your cooperation in the investigation…

…In setting the non-parole period I accept that you are a good candidate for rehabilitation. That factor is of particular relevance having regard to your age…I also have regard to the fact that the sentence that I impose must act as a deterrent to you in the future and a deterrent to other young persons who may become involved in altercations and fights. It must act as a deterrent to young persons to prevent them from carrying weapons of any nature…