CRIME

1. 1. The nature of crime

1.1. The meaning of crime

1.1.1. 'Crime' is a broad term to describe many unlawful activities from minor offence to indictable offences.

1.2. Elements of crime

1.2.1. There are three elements; 1. Actus Reus (Act) 2. Mens rea (Intent) 3. Causation (link between act and intent)

1.3. Strict liability offences

1.3.1. Where prosecution only needs to prove 'actus reus' (act) no the 'mens rea' (intent). Mostly in traffic offence cases.

1.4. Causation

1.4.1. An unborken line between the act and the crime. For example if someone was stabbed and died on the operation table, it was the act of the stabbing which caused them to die not the fault of doctor. R V BLAVE (1975)

1.5. Categories of crime

1.5.1. offences against the person

1.5.1.1. intended causing of injury to a person. E.g. assault, manslaughter

1.5.2. offences against the state

1.5.2.1. criminal acts against the government. E.g. treason, sedition

1.5.3. economic offences

1.5.3.1. infliction of economic loss upon victims. E.g. 1. Loss/damage to property; robbery 2. White collar crime; tax evasion 3. Computer offences; hacking

1.5.4. drug offences

1.5.4.1. use, supply or possession or prohibited drugs. Drug Misuse & Trafficking Act 1985 (NSW)

1.5.5. public order offences

1.5.5.1. acts in which the 'reasonable person' would deem unacceptable . E.g. offensive language, indecent behavior and prostitution.

1.5.6. preliminary crimes

1.5.6.1. attempting or planning to commit a crime. E.g. 1. attempts; attemped break enter and steal 2. conspiracy; (involve 2+ people agreeing to commit) planing too rob a bank

1.6. Summary and indictable

1.6.1. Summary

1.6.1.1. Minor offences such as traffic crimes e.g. speeding

1.6.2. Indictable

1.6.2.1. Serious offences such as murder

1.7. Parties to a crime

1.7.1. principle; first degree

1.7.1.1. Direcly responsible. E.g. robbed the bank

1.7.2. principle; second degree

1.7.2.1. assisted in committing crime. E.g. drove getaway car from robbery

1.7.3. accessory; before the fact

1.7.3.1. help to plan the crime. E.g. stole bank plans

1.7.4. accessory; after the fact

1.7.4.1. knowingly assists after committing crime. E.g. helped hide offender from police

1.8. Factors affecting criminal behaviour

1.8.1. psychological

1.8.1.1. A persons state of mind. E.g. mental illnesses

1.8.2. social

1.8.2.1. Attitude to the law and authority of the state

1.8.3. economic

1.8.3.1. Economic disadvantages causing to feel 'disconnected' from society and possibly have less respect for law

1.8.4. genetic

1.8.4.1. DNA analysis (crime in family background) controversial theory - no conclusive evidence

1.8.5. political

1.8.5.1. Belief that the law is wrong or unjust and may not feel compelled to comply.

1.8.6. self interest

1.8.6.1. Self interest and greed can motivate people to commit crime

1.9. Crime prevention

1.9.1. Situational crime prevention

1.9.1.1. Focuses on the physical scene of the crime. E.g. making the crime more difficult to commit, increasing the likelihood of detention (house alarms)

1.9.2. Social crime prevention

1.9.2.1. Aims to break the cycle of crime. E.g. targeting factors such as poor parenting, high truancy rates, low education levels and economic disadvantages.

2. 2. The criminal investigation process

2.1. Police powers

2.1.1. Form part of the executive arm of government (separation of powers). They have the ability to; 1. investigate crime 2. make arrests 3. interrograte suspects 4. gather evidence

2.1.1.1. outlined under ' Law Enforcement (Powers and Responsibilities) Act 2002'

2.2. Reporting crime

2.2.1. Citizens play an important role in reporting crime. Both citizens and victims have discretion in reporting crime

2.2.1.1. Discretion: Power to make decisions between alternatives with some degree of personal judgement

2.3. Investigating crime

2.3.1. gathering evidence

2.3.1.1. Enogh evidence has to be gathered to support a crime or charge against an individual. Evidence must be gathered lawfully otherwise its inadmissable

2.3.2. use of technology

2.3.2.1. DNA evidence in technology is an important advance in technology helping some difficult convictions in both current and cold cases (indictable crimes)

2.3.2.1.1. Crimes (Forensic Procedures) Act 2000 *sometimes force can be used to gain evidence*

2.3.3. search and seizure

2.3.3.1. Police have the power to search and detain things. Police can stop a person on reasonable grounds or suspicion of criminal behavior.

2.3.4. use of warrants

2.3.4.1. Helps maintain the rule of law and separation of powers - executive and judiciary working together to ensure police cannot act in whatever way they want

2.4. Arrests and charge, summons an warrants

2.4.1. ARREST; Police are not allowed to detain a person unless with lawful reason to do so. Arrest should be last resort and police can often be criticized for arresting too early.

2.4.2. CHARGE; If police use excessive force they can face charges. If an individual is charged the accused must be released or sentenced to a bail hearing

2.4.3. SUMMONS; A summons is a court attendance notice which outlines when and where a committal hearing will be if charged.

2.4.4. WARRANTS; A document which authorized the police or other legal bodies to make arrests, search or seize property and carry out other actions elating to administration of justice

2.5. Bail or remand

2.5.1. Bail refers to the temporary release of an accused person awaiting their trial . Can be either conditional or unconditional.

2.5.1.1. Bail Act 2013 (NSW) *Has been reformed several times*

2.5.2. Remand refers to a period of time spent in custody before the trial - accused is not allowed back into community

2.6. Detention and interrogation, rights of suspects

2.6.1. Police can question suspects for 4 hours util a suspect must be charged or unconditionally released. Police can apply to a magistrate for  warrant if they want to extend investigation period for a further 8 hours (12 in total).

2.6.2. Allows police to make an application to supreme court to detain a person in custody for 14 days without charge if the suspect is hought to othrwise engage in a terrorist attack

2.6.2.1. Terrorism (Police Powers) Act 2002 (NSW)

2.6.3. Interrogation is the process of being question. During interrogations, police must issue a caution and the suspects have the right to silence.

3. 3. Criminal trial process

3.1. Court jurisdiction

3.1.1. A hearing or trial can only take place once a formal charge has been placed. Original jurisdiction is hearing a matter for the first time. Appellate jurisdiction is the ability to hear appeals. The right court for the matter will depend on; seriousness of the matter, first time heard or appeal, nature of offence, age of accused, type of hearing and if crime is state or federal.

3.2. The adversary system

3.2.1. Two sided structure of opposing parties that present their opinion in front of a neutral third party who will determine quilt or innocence beyond reasonable doubt based on the evidence provided.

3.3. Legal personnel

3.3.1. magistrate

3.3.1.1. Preside over local court and specialized magistrates can preside children's court. Hear summary matters and can oversee some indictable. Usually hear bail proceedings.

3.3.2. judge

3.3.2.1. Preside over intermediate and supreme courts. If no jury is present, the judge will decide quilt/innocence of the accused.

3.3.3. police prosecutor

3.3.3.1. Represents the state and brings legal action against he accused. They are responsible for beginning he investigation of a criminal case

3.3.4. director of public prosecutions

3.3.4.1. DPP is an independent authority that prosecutes all serious offences on behalf of NSW government.  Mostly indictable and some summary cases. They do not investigate crime but prosecute cases once sufficient evidence is provided.

3.3.5. public defenders

3.3.5.1. Independent from government. Defend the accused in serious indictable matters in which have been granted legal aid. Is an access to justice/procedural fairness

3.4. Pleas, charge negotiation

3.4.1. A person charged must plea guilty or not guilty. If pleading guilty you go straight to a sentence hearing at court, however if you plead not guilty you go to a trial. If a person claims not guilty and lies, their sentence may be extended.

3.4.2. Charge negotiation is where he accused agrees with the prosecution to plead guilty to particular charges. The accused will plead guilty for a lesser sentence. This is faster and less expensive for the prosecution.

3.5. Legal represenation, including legal aid

3.5.1. Defendants have the right to a fair trial, if they do choose to defend themselves their chance of a fair trial will be smaller. Legal aid is accessed by marginalized groups and people who are financially disadvantaged. It aims to safeguard peoples rights and improve access to justice.  The access to support must be means-tested (income and assets checked) and merits-tested (how likely a person is to win the case).

3.6. Burden and standard of proof

3.6.1. In the CJS, individuals are said to be innocent until prove guilty.  The prosecution has the burden of proof (must prove that accused is guilty). They must prove this beyond reasonable doubt.

3.7. Use of evidence, including witnesses

3.7.1. Admissible evidence is evidence lawfully obtained. Inadmissible evidence is irrelevant, hearsay or opinion based evidence. However, the only exception to inadmissible evidence is expert witnesses. All who come before the court with evidece must take an oath and if found to be lying under oath, criminal charges may apply.

3.7.1.1. Evidence Act 1995 (NSW)

3.8. Defences to criminal charges

3.8.1. complete defence

3.8.1.1. There are 6 different factors to complete defence; 1. self defence 2. mental illness 3. consent 4. duress 5. necessity 6. automatism/accident If any of these factors are proven, it can result in acquittal.

3.8.2. partial defence to murder

3.8.2.1. In NSW, partial defence only applies to murder and do not result in acquittal, rather the accused is charge with the lesser sentence of manslaughter. Two factors are 1. provocation 2. substantial impairment by abnormality of mind/diminished responsibility

3.9. The role of juries, including verdicts

3.9.1. Juries are used to hear trials for the most indictable offences where the defendant has entered a not-guilty plea. Juries are used in both district and supreme courts . It is made of a panel of 12 randomly selected citizens. The decision of a jury is a verdict.

3.9.1.1. Jury Act 1977 (NSW)

4. 4. Sentencing and punishment

4.1. Statutory and judicial guidelines

4.1.1. A judge has limits on their discretion, there are three main limitations including; 1. Judicial guidelines 2. Mandatory sentencing 3.  Maximum penalties

4.1.1.1. 1. guideline judgments from superior courts and aim to promote uniformity in the sentencing process.

4.1.1.2. 2. Removes judicial discretion. NT and WA mandatory sentencing laws mandate jail terms in certain circumstances.

4.1.1.3. 3. are imposed by legislation. The judge/judge still has to consider sentencing legislation, case law and the general sentencing pattern of criminal courts for the offence.

4.1.1.3.1. The Crimes Act 1900 (NSW)

4.2. Purposes of punishment

4.2.1. Describes the purpose of sentencing **Section 3A Crimes (Sentencing and Procedures) Act 1999**

4.2.1.1. deterrence (specific and general)

4.2.1.1.1. Specific is aimed at the individual offender and general is aimed at society as a whole. Aimed at convincing offender and society as a whole against committing a similar offence in the future.

4.2.1.2. rehabilitation

4.2.1.2.1. Process of reforming the behavior of an accused person through education, physical or mental treatment. Aims o reduce recidivism (repeat offending)

4.2.1.3. incapacitation

4.2.1.3.1. The sentence has the effect of removing the offender from society and takes/keeps offender in custody.

4.2.1.4. retribution

4.2.1.4.1. Sentence takes into account the ffect of the crime on society and the victim to ensure punishment is proportionate the crime.

4.3. Factors affecting a sentence decision

4.3.1. aggravating

4.3.1.1. Factors which tend to increase the seriousness of the offence and the offenders culpability.

4.3.2. mitigating

4.3.2.1. Factors which are favorable to the offender, lessening the sentence and culpability. May result in offender receiving a less harsh punishment.

4.3.3. Objective

4.3.3.1. Nature of the offence. Presented by prosecution in order to reinforce the severity of the case.

4.3.4. Subjective

4.3.4.1. Relate to the offender. Presented by defence in order to explain/mitigate the reasons behind behavior.

4.4. Role of victim in sentencing

4.4.1. Victims Rights & Support Act 2013 (NSW)

4.4.1.1. A charter of victims rights is put in place to protect and promote the rights of victims and outline what rights they are entitled to. There are currently 18 rights outlined.

4.5. Appeals

4.5.1. System of appeals exist to allow decisions to be reviewed and corrected if necessary. Can be made from local, district ad supreme courts. "All grounds appeal" are conducted by a way of review by appellant court. An appeal may be lodged on one of any three grounds;

4.5.1.1. An error of law (can be done by prosecution and defendant)

4.5.1.2. An error of fact (can be done by prosecution and defendant)

4.5.1.3. Against the severity of sentence (can only be done by prosecution if they believe sentence is NOT harsh enough or does not meet community demands)

4.6. Type of penalties

4.6.1. probation

4.6.1.1. Places the offender under supervision and guidance of NSW probation services.

4.6.1.1.1. Advantages: suitable for lesser offences where offender is of little danger to community.

4.6.2. bond

4.6.2.1. Court imposed bond places limits upon an offenders behavior for a specified period of time.

4.6.2.1.1. Advantages: Inexesnive

4.6.3. caution

4.6.3.1. A caution is a warning notice which is given for minor offences.

4.6.3.1.1. Advantages: Inexpensive, appropriate for minor offences, act as specific deterrent.

4.6.4. suspended setence

4.6.4.1. A judge's delaying of an offenders sentence in order to allow them to serve a term of probation.

4.6.4.1.1. Advantages: Can rehabilitate

4.6.5. criminal infringement notice

4.6.5.1. An on the spot penalty/fine.

4.6.5.1.1. Advantages: Occurs at tim of offence, inexpensive,  save police an courts time

4.6.6. penalty units

4.6.6.1. An amount of money used to compute pecuniary penalties for breaches of statue law.

4.6.6.1.1. Advantages:

4.6.7. home detention

4.6.7.1. An alternative to imprisonment, only offenders who would have received a sentence for 2 years or under can be granted home detention. It is otherwise known as 'house arrest'.

4.6.7.1.1. Advantages: appropriate for those convicted of non-violent offences, decrease prison population, can rehabilitate, enable family responsibility.

4.6.8. forfeiture of assets

4.6.8.1. A form of confiscation of assets by the state to offenders.

4.6.8.1.1. Advantages: May be suitably retributive

4.6.9. fine

4.6.9.1. Monetary penalty imposed by the courts. Revenue goes to the state.Must be paid within 28 days, biased against people with low income.

4.6.9.1.1. Advantages: Inexpensive, appropriate for minor offences, flexible

4.6.10. diversionary programs

4.6.10.1. A form of sentencing where the offender joins a rehabilitation program.

4.6.10.1.1. Advantages: Can rehabilitate offender, relatively inexepensive

4.6.11. no conviction recorded

4.6.11.1. Although offence in proved, conviction is not recorded by the Court and the offender does not receive a criminal record.

4.6.11.1.1. Authorised by section 10A of the Crimes (Sentencing procedure Act) 1999 NSW

4.6.12. community service order

4.6.12.1. Involves the offender being order to work in the community. Aim is to rehabilitate the offender.

4.6.12.1.1. Advantages: Inexpensive, assists general community, may correct damage they've caused so is suitably retributive

4.6.13. periodic detention

4.6.13.1. Known as 'weekend detention'. Allows offender to serve their sentence over weekends from Friday evening till Sunday afternoon. During that time they perform community services.

4.6.13.1.1. Advantages: less costly than imprisonment, allows continuation of education or employment

4.6.14. imprisonment

4.6.14.1. Sentencing an offender to a full time period and is the harshest penalty the court can impose.

4.6.14.1.1. Crimes Act 1900 (NSW) sets maximum penalties

4.7. Alternative methods of sentecing

4.7.1. circle sentence

4.7.1.1. Alternative sentencing court for adult aboriginal offenders. It is based on traditional indigenous forms of dispute resolution and customary law. Circle courts are for more serious repeat aboriginal offenders and aim at achieving full community involvement

4.7.2. restorative justice

4.7.2.1. Focuses on the rehabilitation of the offender through reconciliation with the victim and with the community as a whole

4.8. Post-sentence considerations

4.8.1. security classifications

4.8.1.1. Department of Corrective Services examines the security risks that each prisoner presents. Decides which category of risk the prisoner belongs so that offender is sent to most appropriate correctional facility.

4.8.2. protective custody

4.8.2.1. Prisoners who feel that they are under danger from other prisoners can apply to be placed into protective custody.

4.8.2.1.1. Crimes (Administration of Sentences) Act 1909 (NSW)

4.8.3. parole

4.8.3.1. Prisoners under full-time imprisonment for less than three years are released on parole at the end of the non-parole period.

4.8.4. preventative detention

4.8.4.1. Aimed at offenders whose history indicates entrenched criminal behaviors. Is particularly the case with violent and sexual offences. Links with continued detentions.

4.8.5. continued detention

4.8.5.1. Links with preventative detentions. Ordering a continued detention where a psychologist or medical practitioner has asses whether the offender is likely to commit further sexual offences.

4.8.5.1.1. Crimes (Serious Sex Offenders) Act 2006 (NSW)

4.8.6. sexual offenders registration

4.8.6.1. Serious sex offender's names are placed on a register with access by police. Includes offenders who have committed murder, been found guilty of sexual intercourse of sexual abuse of an under 18, indecency, kidnapping, or publish/possession of child pornography.

4.8.6.1.1. Child Protection (Offenders Registration) Act 2000 (NSW)

4.8.7. deportation

4.8.7.1. Non-citizens who are subject to a prison sentence of 12 months or more and have been resident in Australia for less than 10 years can be deported from Australia.

4.8.7.1.1. Migration Act 1958 (Cwlth)