VCE Legal Studies Unit 1 AOS 2

How does criminal law maintain social cohesion?

Defines and prohibits unacceptable behaviour

What is a crime?

An act or omission that is against an existing law, harmful to an indvidiaul or society, and punishable by law

What is a crime: Against an existing law

Undertaking or failing to undertake an action that is against a current law

Who establishes laws that define which acts (or failures to act) are considered to be crimes?

Parliament and courts

What is a crime: Harmful to an individual or to society

A crime that has negatively impacted the victim and/or community

Impact on individuals/victims

Can be physical, financial, or emotional

Impact on community

Compromised safety, increases need for resources (eg. police, hospitals)

What is a crime: Punishable by law

a person who is guilty of a crime can have a sanction imposed on them

Which authorities can impose sanctions? (VIC)

• the courts

• the police,

• local council

• PTV officers

Purposes of criminal law

• protect individuals

• protect property

• protect society

• promote justice

How does criminal law protect individuals?

• Establishes crimes and processes to deal with people who commit these crimes by providing sanctions

• eg. imprisonment — protects people by removing offenders from society, preventing them from comitting further offences.

Protect individuals — relevant crimes

murder, rape, arson

How does criminal law protect property?

Protects privately owned and public property to prevent vandalism, theft and damage.

Protect property — relevant crimes

trespassing, theft, intellectual property

How does criminal law protect society?

Sets standards for acceptable behaviour in communities and by the legal system — maintains public order and community safety

Protect society — relevant crimes

drug offences, terrorism

How does criminal law promote justice?

Provides proceses to deal with offenders and to enforce the law

State enforcement of criminal law

prevents having victims of a crime, or their family and friends, from taking matters into their own hands and imposing their own punishments

The presumption of innocence

the right of the accused to be presumed not guilty unless proven otherwise beyond reasonable doubt

What is the standard of proof in criminal cases

The evidence presented by the prosectuion must prove that the accused is guilty beyond a reasonable doubt

Who holds the burden of proof in criminal cases

The prosecution

How does the prosecution uphold the BOP?

by presenting valid, reliable, and sufficient evident in court to prove that the accused is guilty BRD

8 ways in which the POI is protected (SPARLSBB)

• right to Silence

• Previous convictions not revealed

• right to Appeal,

• police officers Reasonably believe, right to Legal representation, Standard of Proof

• Burden of Proof

• right to Bail

how is the POI protected through Previous convictions not revealed

prevent automatic assumption of guilt

how is POI protected through the Burden of proof

prosecution has to prove guilt

Actus reus

physical act or omission committed - prosecution must prove the accused physically committed the crime

Mens rea

the intention or state of mind - prosecution must prove the accused intentionally comitted the crime

Strict liability crime

Responsibility for a crime can be established without having to prove mens rea

Examples of strict liability crimes

speeding, parking fines, drink driving

Age of criminal responsibility

the minimum age a person must be in order to be charged with committing a crime

Criminal responsibility for an individual Under 10

cannot be charged with a crime

Criminal responsibility for an individual aged 10-13

they can be charged with a crime if the prosecution can prove mens rea

Doli incapax

a legal principle stating that children aged 10-13 years old are incapable of forming mens rea to commit a criminal offence.

Criminal responsibility for an individual aged 14+

Can be charged, arrested, and found guilty of committing a crime

(+) Why the AOCR should stay the same

• Doesn’t address the causal effects as to why youth offending occurs

• Holds youth offenders accountable for their actions instead of compromising public safety

(-) Why the AOCR should change (to 14y/o)

• Criminalizes young children, increasing chances of reoffending

• Having the age of criminal responsibility at 14 is a human right

Classification of crimes

• Social purpose (nature of offence)

• Type of offender or victim

• Seriousness of the offence

Social purpose

Categoriztion of crimes according to a wrongful action/omission against:

• a person

• property

• wellbeing of society

Type of offender or victim

• cyber crime

• hate crime

• organised crime

• juvenile crime

• white-collar crime

Cyber crime

Crime comitted using electronic devices/systems (eg. hacking)

Hate crime

Crimes motivaed by bias and prejudice against anothers personal characteristics (eg. verbal abuse)

Organised crime

Crimes comitted in a planned and ongoing matter (eg. drug trafficking)

Juvenile crime

Crimes comitted by people aged 10-18 years old

White-collar crime

Comitted by people who work in corporate industries (eg. investment scams)

Indictable offences

• Serious crimes generally heard and determined in the higher courts (county/supreme) before a judge and a jury

• usually more complex and time consuming

Examples of indictable offences

rape, murder

Summary offences

• a less serious offence heard and determined in the magistrates court

• less complex and time consuming, quick process

Example of summary offence

speeding

Indictable offences heard summarily

• Indictable offence dealt with as a summary offence (heard in Magistrates’ court)

• must be approved by court and accused

When can an indictable offence not be heard summarily

• Crime is punishable by more than 10 years imprisonment

• Fine is more than 1,200 penalty units

• Without consent of the accused

Why may an indictable offence be heard summarily?

• Hearing is quicker and cheaper

• Accused can recieve lesser punishment

Why would the accused receive a lesser punishment if an indictable offence is heard summarily

• magistrate can only impose a maximum of 2 years imprisonment for a single offence

• maximum of 5 years imprisonment for multiple offences

Principal offender

a person who has directly committed the crime — anyone involved can be considered a principal offender

a person is involved if they

• intentionally assist, encourage, or direct another person to commit a crime (+knowing it is highly likely that another crime will be the result)

• make an agreement with another person to commit a crime together (+knowing it is highly likely that another crime will be the result)

True or false: a person who is involved in a crime still be found guilty even if the principle offender is found not guilty

True

Accessory

a person who knowingly assists another person who committed a a serious indictable offence to avoid being apprehended, prosecuted, convicted, or punished.

serious indictable offence

an offence that is punishable by 5+ years of imprisonment

True or false: an accessory can be found guilty even if the principle offender is found not guilty

True

4 elements of murder

Mens rea:

• the killing was unlawful

• the accused acted with intent to kill or cause serious harm

Actus reus:

• the accused's acts were voluntary

• the accused committed acts that caused the victims death,

The killing was unlawful

The accused cannot be found guilty of murder if there was legal justification for their actions

Examples of legal justification

• Soldiers in battle

• Police duties

• Self-defence

Acting with the intent to kill or cause serious harm

prosecution must prove that the accused committed the crime with the intent to kill or cause serious harm (intentional or reckless)

The accused actions were voluntary

Prosecution must prove the accused committed the acts when they were awake, aware, and in control of their bodily actions.

The act committed caused the death

prosecution must prove the accused's acts contributed significantly to the victim's death - this means causation, a direct and unbroken link between the act of the accused and the death of the victim, has to be proven.

4 murder defences

• Self defence

• Mental impairment

• Duress

• Sudden or extraordinary emergency

Self-defence

the legal right to use reasonable force to protect oneself against injury from another in a situation where the individual thinks it is necessary for survival

self defence can be used if the accused believed:

• their actions were necessary for protection

• was a reasonable response

Mental impairment

a condition of the mind that impacts on a person’s ability to know the nature and quality of their conduct, or that the conduct was wrong

mental impairment can be used if the accused:

• had little understanding of the nature and quality of their actions

• was unaware that their actions were wrong

Duress

strong mental pressure on someone to overcome their independent will and force them to do something

duress can be used if the accused believed:

• a threat of harm existed

• the threat would have been carried out unless the offence was committed

• was a reasonable way to avoid threatened harm

Sudden or extraordinary emergency

• There was a sudden or extraordinary emergency involving risks of death and serious injury

• the only reasonable way of dealing with the situation

malice aforethought

the intention to kill or harm (distinguishes murder from unlawful killing)

murder

the unlawful killing of a human being with malice aforethought

homicide

an act in which a person causes the death of another person

manslaughter

unintentional killing of a person due to reckless, dangerous, or negligent behaviour

child homicide

the killing of a child under 6 years of age in circumstances that would normally be manslaughter

culpable driving causing death

the act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner or while under the influence of drugs or alcohol

Factors considered when determining a sentence

• nature and gravity of the offence

• vulnerability of the victim

• offenders conduct after committing the crime

• offenders personal circumstances

• guilty plea

Nature and gravity of the offence

• The use of a weapon, ( type or how it was used)

• commission of the attack, (committed in front of children or in a public space)

• factors may lead to offender receiving sentence higher than standard for murder.

Vulnerability of the victim

Someone who is relatively vulnerable or defenceless such as:

• an individual under 18 years of age

• an elderly person

• a person with a physical disability,

• a person with significantly impaired intelligence or a mental disorder.

  sentence likely to be increased if act against particularly vulnerable person

Offenders conduct after committing the offence

Refers to the offenders actions following the offence which affects the duration of the sentence

• may display genuine remorse (eg. cooperating with police)

• may act in a cruel or heartless way after the offence (eg. the way they dispose the body)

Offenders personal circumstances

• personal history

• mental health

• good or poor character

• previous convictions

will effect the sentencing.

Guilty plea

• leads to the judge imposing a less severe sentence than they would have otherwise imposed.

• spares the family trauma of going through trial

• saves prosecution/community from time and cost of lengthy trial

Groups impacted by the offence

• victim (inclusive of family and friends)

• community

• offender

Impact of murder on victim (family + friends)

• loss of life

• experience of grief, shock, confusion, fear, anger, and long-lasting emotional trauma.

Impact of murder on community

• destroys public confidence in the ability of the police and the justice system to protect the public.

• feeling unsafe or vulnerable in their home or area

• limit interactions as a precaution

Impact of murder on offender

• affected by harsh prison conditions and isolation from outside world

• feelings of grief, shame and remorse

• family experiences financial hardships due to significant legal costs

• difficulty re-establishing connections upon release