Legal Studies Crime

What are the key elements to gain a criminal conviction?

What are the key elements to gain a criminal conviction?

• Actus Reus

• Mens Rea

• Causation

Crime

Act or omission against the community at large that is punishable by the state

Actus Reus

The physical act of carrying out a crime

Mens Rea

The accused’s intention to commit the crime

Causation

A series of linked events that leads to the ultimate outcome

Define strict liability offences

Offences where only actus reus must be shown in order to gain a conviction

define offences against the person

refers to when injury is caused to another person

define offences against the sovereign

refers to treason and sedition, these acts often involve people not believing in the laws due to differing moral and ethical values

define treason

refers to betraying your country by attempting to kill/overthrow the PM or sovereign

define sedition

refers to promoting discontent and hatred against the government

Summary offences

refers to the types of offences that are less serious/minor matters. Which usually involves the issuing of fines, e.g penalty units. These offences are dealt with by a magistrate in the local court.

indictable offences

refers to the types of offences that are serious criminal matters. They involve a new process of charge certification by a senior prosecutor and mandatory case conferencing.

four main parties to a crime

1. principle in the first degree

2. principle in the second degree

3. accessory before the fact

4. accessory after the fact

principle in the first degree

refers to the perpetrator of the crime. they are likely to receive the highest sentence related to the crime.

Principle in the second degree

refers to a person who assists others in the commission of a crime. they are present during the actual crime but are not the main participant. AKA accessory.

accessory before the fact

refers to the person who assists others commit a crime such as planning or preparing the criminal act, but they are not present at the time of the crime.

accessory after the fact

refers to the person who assists the criminals after the crime has been committed. But are not present during the crime or aware of it beforehand. It mostly applies this offence only for serious crimes such as murder as well incurs a lesser punishment then the rest of the parties.

Factors affecting criminal behaviour

• self interest and greed

• political reasons

• poverty and unemployment

• differential association

• genetic theories

self interest and greed

committing actions such as fraud, drug trafficking, and tax evasion due to the ability to make large amounts of money.

political reasons

a wish to challenge the government the individual may believe that the law is wrong and needs to be changed

poverty and unemployment

may be more likely to commit crimes

differential association

a person is more likely to become a criminal if they are around criminals

genetic theories

the idea that people are born criminals

situational prevention

makes it more difficult for criminals to commit criminal acts by increasing the risk of getting caught. therefore making the crime more difficult to perpetrate or less rewarding which leads to opportunity reduction

social prevention

attempts to reduce the factors that are likely to cause a person to commit a crime.

LEPRA

law enforcement powers and responsibilities act 2002 NSW. it is the predominant source of law around police powers outlining what powers police have. such as special powers over and above what we can do as individuals as well as the limits on those powers.

The police code of practice CRIME

• custody

• rights

• investigation

• management

• evidence

Police powers include the ability to:

• investigate crimes

• make arrests

• interrogate suspects

• gather evidence against the accused

• grant or recommend whether bail should be granted.

Primary Sentencing and Punishment Act?

Crime (Sentencing and Procedure) Act 1999 (NSW)

Judicial guidelines

• guideline judgements made by judges

• read cases and pick the best examples of sentencing decisions to form judicial guidelines

• aim is consistency

• the process needs to be predictable

• there is 8 guidelines

Example of judicial guidelines

• when someone pleads guilty to armed robbery, judges may wish to follow guidelines from R v Henry 1999 = Judicial discretion

Statutory Guidelines

• act of parliament

Crimes (Sentencing Procedure) Act 1999 (NSW) AMENDED TO?

• Crimes (Sentencing Procedure) Act 1999 (NSW) amended in 2003

• to include the standard non parole period for some crimes

• e.g armed robbery has 25 years max sentence and standard no parole period of 7 years

Crime primary legislation

Crimes Act 1900 (NSW)

Mandatory Sentencing Crimes Act 1900 (NSW)

• provokes significant change = higher number of police deaths while protecting society

• outraged the community

• media = high incidents of drunk disorder behaviour + violent offences fuelled by alcohol in the community

• Death of Thomas Kelly and the perceived poor sentencing of Kieran Loveridge

Sentencing and Punishment Act police

Crimes Amendment (Murder of Police Officers) Act 2011 (NSW)

Crimes Amendment (Murder of Police Officers) Act 2011 (NSW)

• for murdering police an individual will receive a life sentence

• no judicial discretion

• R v Jacobs 2013

• Creates justice issues

• SMH 2011 “Is a Policeman’s life worth more?”

Sentencing and Punishment Act Intoxication

Crimes and other amendment (assault and intoxication) Act 2014 (NSW)

Crimes and other Amendment (assault and intoxication) Act 2014 (NSW)

• mandatory minimum sentence for assault/intoxication

• R v Loveridge 2013 who received “Four years a life” increased to 7 years on appeal after death of Thomas Kelly

• Thomas Kelly’s death at Kings Cross and subsequent law reform - (one punch laws)

• mandatory minimum sentence 8 years

• no mitigating factors

• no judicial discretion

Sentencing and Punishment Case

R v Garth 2017

R v Garth 2017

• first to be convicted under new one punch laws

• judge townsden was required to imprison Garth for minimum of 8 years before eligible for parole

• garth recieved 10 years all together

Effectiveness of Mandatory Sentencing

• discourages criminal behaviour

• reflects community values and standards cs violent criminals are punished

Ineffectiveness of Mandatory Sentencing

• law breaches ICCPR

• falls hardest on those who come into contact with police the most

• e.g ATSI, homeless etc

Deterrence

• punishment to discourage people from committing a crime in the future

2 types of deterrence

• specific

• general

Specific deterrence

punishes individual in a way that will discourage them from trying again

general deterrence

uses the sentence as a way of making an example of the offender to send a message to society

Retribution

• considers that the sentence should be morally right or deserved

• makes sure the offender is correctly punished and recognises the harm done to the community

Rehabilitation

• aims to reduce future offences by the offender by aiming to alter the views of the offender

• aims to also reduce factors that contribute to crime and reduce recidivism by helping them make decisions that steer away from the patterns of crime

• non-violent drug offenders must participate in rehabilitation in combination with probation rather than submitting to incarceration

• drug court reduced recidivism by 37%

Examples of rehabilitation

• educational programs and counselling

• alcohol merit program

Incapacitation

• aims to protect the community by rendering the offender incapable of committing further offences

Types of incapacitation

• home detention

• community work

• license cancellation

• imprisonment

Example of Incapacitation

• Matthew Milat was given a minimum non parole period of 30 years for mudering his friend with an axe

• judge deemed him a serious threat

  • no remorse

  • little motive

role of victim in sentencing

• The role of the victim in sentencing refers to the influence and participation of the victim in the process of determining the punishment for the offender. It includes providing impact statements, expressing their views on the appropriate sentence, and seeking restitution or compensation for the harm caused.