Crime Syllabus Notes The Nature of Crime

1. Describe the nature of crime - The meaning of crime - The fundamental role of criminal law is to protect society from those whose behaviour society has deemed to be unacceptable. Another feature of criminal law is the notion that all of society is the victim. Therefore most criminal law cases are brought by the state. - Crime: An act or omission of duty resulting in harm to society that is punishable by the state. - Most crimes are created via societies morals and ethics. - Criminal Law includes the following: - Investigating - Enforcement - Prosecuting - Defence - Criminal Trials - Sanctions and Punishments - The Director of Public Prosecutions (DPP) decides whether to prosecute the offender in court, based on sufficient evidence. When the case goes to court, the DPP is known as the Crown. The Crown must prove beyond reasonable doubt that the defendant is guilty. - The elements of crime: mens rea, actus reus - To be found guilty one must either be proven to have; - Intended to commit a crime - Actually committed a crime - Mens Rea: Guilty mind. The person had an intention to commit a crime (except strict liability). Must be proven that the accused was aware their actions would at least probably result in a crime. There are 3 levels of Mens Rea: - Intention: clear, malicious intent to commit the crime. - Recklessness: Accused is aware that their actions could lead to a crime but chose to take the risk anyway. - Criminal Negligence: Accused fails to foresee the risk where they should have and so allows the avoidable danger to manifest resulting in a crime. - CASE LAW: R v Thomas Sam, R v Manju Sam 2009. Actus Reus: There was an act/physical performance of a criminal act. Must be proven that the person charged actually carried out the crime. Causation - Causation: There is a causal link between the act and the resulting harm.

- CASE LAE: R v Blaue (1975)

Strict liability - The prosecution must only prove that an illegal act was committed (Actus Reus). No Mens Rea need be proven. Traffic offences are a good example. Another example is selling cigarettes to underage persons.

2. Recognise the different categories of crime Types of Crimes 1. OFFENCES AGAINST THE PERSON

Homicide

Assault

Sexual assault

Murder Infanticide Death by Reckless Driving Manslaughter - Voluntary Manslaughter - Involuntary Manslaughter - Constructive Manslaughter

 2. OFFENCES AGAINST THE SOVEREIGN Treason Sedition

3. ECONOMIC OFFENCES Crimes Against Property Larceny or Theft Breaking & Entering Robbery White Collar Crimes Tax Evasion Insider Trading Computer Crimes 4. DRUG OFFENCES 5. DRIVING OFFENCES 6. PUBLIC ORDER OFFENCES 7. PRELIMINARY OFFENCES Attempts Conspiracy

 OFFENCES AGAINST THE PERSON: cause injury to another person. - Homicide: when a person has been unlawfully killed. There are 4 different types: 1. Murder: Most serious offence, punishable by life imprisonment. The prosecution must show that the accused either- Intended to deliberately kill the person. - Set out to inflict serious harm, resulting in death - Had a reckless indifference to another human life. CASE: Boughey v The Queen (1986). - Set out to commit another crime and resulted in murder. - 2. Manslaughter: The unlawful killing of another without intention (there is a defence to ones actions). Up to 25 years imprisonment. There are 3 types of Manslaughter1. Voluntary Manslaughter: Kills with intent however there are mitigating circumstances which reduced their culpability. Court must consider what a reasonable person would do. 2. Involuntary Manslaughter: Killing of a person due to the accused' reckless actions or negligence, they had no intent to kill. CASE: DDP v Newbury & Jones (1977). 3. Constructive Manslaughter: Killing of a person whilst the accused was carrying out another dangerous or unlawful act. Ian Gray Case. - 3. Infanticide: A mother causes the death of a child within its first 12 months of life. The Crimes Act 1900 covers this. The court must consider the mental state of the mother, there may be an underlying illness such as Post Natal Depression. - 4. Death By Reckless Driving: Increase in deaths resulting from motor vehicle accidents. Penalties of up to 14 years. A judge must determine if there is a causal relationship between the actions of the accused and the death resulting from them. - Assault: Causing physical harm or threatening to cause physical harm to another. The threat of violence can cause just as severe mental harm. Assault can be legal if consent to the assault is given. Eg, boxing. Self defence is also acceptable. Aggravated assault is the use of a weapon or the assault of a police officer. CASE: Barton v Armstrong (1975). - Sexual Assault: Sexual contact with another person without their consent, this includes between spouses. It is also considered sexual assault when someone over 16 has sex with someone under 16 (even with consent). Consent given under duress, whilst drugged or mistakenly given is also sexual assault. 14 years imprisonment, 20 for aggravated sexual assault which is the use of excessive violence. Also if the victim is under 16 (without consent) or if the victim is seriously intellectually or physically disabled. Area of law reform is Gang Rapes. - OFFENCES AGAINST THE SOVEREIGN: These laws aim to protect the structure, authority and integrity of the state and the citizens that it governs. -

- Sedition: Act of encouraging hatred or contempt of the government. - CASE LAW: R v Sharkey (1949) - Treason: A breach of allegiance to your country in the form of causing harm to the government or working with the enemy to bring down the government. Can often be defended with the freedom of speech. The Anti Terrorism Act 2004 is an example of how serious this crime is taken. - ECONOMIC OFFENCES: Damage or loss of anothers property. The Crimes Act 1900 covers these. - Crimes Against Property - Larceny or Theft: Taking of another persons property without their consent. There must be an intention to steal the property. Borrowing is not larceny (within reason). CASE LAW: R v Potisk (1973). - Breaking and Entering: A person forces entry into a building, or part of a building in order to commit another crime. - Robbery: Taking of ones property directly from their possession or from within their vicinity. It involves using the threat of violence. Armed robbery involves a weapon. - White Collar Crimes: usually committed by professional people in business. - Tax Evasion: Fraudulently completing a tax return, tax avoidance schemes. The Australian Taxation Office regulates this. The Income Tax Assessment Act 1997 (Cwlth). - Insider Trading: A person with special knowledge uses that knowledge to buy or sell shares. They are said to have an unfair advantage. - Computer Crimes: Money laundering, identity theft, scams, counterfeits, industrial espionage. This is a massive area of law reform because technology is constantly advancing and evolving. The Copyright Act 1968 (Cwlth) is trying to regulate the unlawful downloading of material. - DRUG OFFENCES: Includes importation, manufacture, cultivation, distribution, supply, trafficking, possession and use. There are many crimes associated with drug addictions such as theft, assault, break and enter. Debate surrounding decriminalising certain drugs, making it a health issue instead of a criminal one. 1. DRIVING OFFENCES: Road Transport (Safety and Traffic Management) Act 1999 NSW also the Crimes Act 1900 (NSW). Can be enforced with on the spot fines, demerit points, suspension. These offences do not require mens rea, therefore they are Strict Liability Offences. RTA regulated these offences. Speeding, drinking driving. - PUBLIC ORDER OFFENCES: Disrupt the activities of a society. They include- swearing, indecent behaviour, spitting, littering, graffiti, prostitution. - PRELIMINARY OFFENCES - Attempts: It is an offence to attempt to commit a criminal act. Attempting to commit a crime is the same as actually succeeding in committing the act. Also ones behaviour can imply an attempt, an arrest can be made.

- Conspiracy: Two or more people agree to commit a crime. In conspiring to commit a crime, the agreement to act criminally is the Actus Reus whilst the planning demonstrates the intent Mens Rea.

3. Define summary and indictable offences - Summary Offences: Less serious crime, such as shop lifting. It is heard by a magistrate in the local court, no jury. Charge called summons. Penalties of no more than 2 years imprisonment. Found in the Summary Offences Act 1988 (NSW) - Indictable Offences: Very serious such as murder. Committal hearings evaluate whether there is enough evidence to warrant a trial. A trial ensues with a judge and jury in the District or Supreme Court. Charge called indictment, is brought by the prosecutor working for the state. Maximum penalty is life in prison. - Parties to a crime 1. Principal in the first degree: Person who actually carries out the criminal act. Referred to as the perpetrator. 2. Principal in the second degree: This person assists others in the commission of a crime. This person is present during the actual crime but is not a main participant. Referred to as an accessory 3. Accessory before the fact: Helps others to commit a crime by helping them to plan or prepare the criminal act. They are not present at the time of the crime being conducted. 4. Accessory after the fact: Helps criminals after they have committed a crime, but is neither present during, nor aware of the crime beforehand. A joint criminal enterprise is one in which two or more people conduct criminal activity with a common purpose. All parties are equally criminally liable.

4. Examine a range of factors that may lead to criminal behaviour Factors affecting Criminal Behaviour - Psychological Factors: Mental illnesses, such factors are crucial in proving mens rea and also the sentencing. - Social Factors: Family situation, personal relationships, social groups can influence attitudes, environment one is raised in. DIFFERENTIAL ASSOCIATION: - A person exposed to an environment in which criminal behaviour is normal, is more likely to become a criminal. - Anomie Theory: alienated person more likely to disregard the laws of society. - Subculture: has different values and morals from the mainstream, eg. gangs. - Economic Factors: Disadvantaged backgrounds likely to commit crimes. Many criminals receive welfare payments. Poor education, a lack of skills and unemployment are related to criminal activity. - Genetic Factors: Controversial. Some disorders can have a genetic predisposition which may increase the chance of someone behaving in a criminal manner. Impulse control is an example. - Political Factors: Challenge government authority, can lead to violence, terrorism, assassinations. Migrants become frustrated with racism, they take violent action. - Self Interest & Greed: Materialistic society. Prompted by greed, taking things due to desire. White collar crimes are motivated by self interest.

5. Investigate a range of situational and social crime prevention strategies.

Designed to make life more difficult for criminals. Eg. Eliminate lane ways and dark alleys. Public awareness campaigns show people how to prevent crime. Eg. Lock your car. - Situational Crime Prevention: Difficult for criminals to commit crimes by increasing the risks of being caught. This is called opportunity reduction. Examples: surveillance cameras, security guards, steel bollards, steel shutters, putting ATMs on the first floor, not the ground, fitting cars with electronic tracking devices. - Social Crime Prevention: Aim to give people access to society and education in order to reduce the factors that are likely to cause a person to commit a crime. Best strategy; encouraging young people away from crime with diversionary programs such as sport. Programs targeting substance abuse, violent behaviour, gaining job training.

Case DPP v. Morgan (1975)

Details Demonstrates concept of mens rea. An army officer told his men that his wife enjoyed having sex with several men at once, simulating sexual assault. This statement was a lie. Himself and 4 others took turns at having sex with his wife, despite the pleas to stop. The men were found guilty as any reasonable person would have known the victim was not giving consent. Blaue charged with and convicted of murder after he stabbed a women to death. The woman managed to get to hospital alive but in need of life saving surgery. The woman refused the blood transfusion (religious beliefs), therefore dying. The defence argued that a reasonable person would have had the surgery and lived, therefore her death was not Blaues fault. No causation. Appeal court ruled that Blaues actions causing injury were the substantial cause of death. Appeal dismissed. General Secretary of the Communist Party of Australia, Sharkey stated that if the Soviet Union invaded Australia, the workers should welcome it. Charged with attempting to incite the overthrow of the government, found guilty of sedition. Mr Potisk charged with larceny after a bank teller accidently gave him $2895 instead of $1233. Supreme Court ruled that the tellers mistake had not been induced by Potisk and although Potisk had been dishonest in informing, there was no larceny involved. Not guilty.

R v. Blaue (1975)

R v. Sharkey (1949)

R v. Potisk (1973)

Case ACC v. Wheatley (2007)

Details Famous Australian music industry manager and musician, sentenced to 15 months prison for avoiding tax payments totaling $318 092. In 15 years (since 1990), recorded rates of sexual assault and assault have more than doubled over this period, according to a new report on long-term crime trends released today by the NSW Bureau of Crime Statistics and Research.

Long-term trends in property and violent crime (See Article)

Law The Crimes Act 1900 (NSW) Anti Terrorism Act 2004 (Cwlth) Anti Terrorism Act 2005 (Cwlth) Income Tax Assessment Act 1997 (Cwlth)

Details States the types of crimes. Treason is taken very seriously. Terrorism is an unlawful act. Ensure correct taxes are paid, ensure no tax evasion is occurring. Offence to steal intellectually property without consent, illegal to download music, to pirate dvds. Permission is needed. Outline a range of offences relating to the use of motor vehicles.

The Copyright Act 1968 (Cwlth)

Road Transport (Safety and Traffic Management) Act 1999 (NSW) Road Transport (General) Act 1999 (NSW) Traffic Act 1909 (NSW) Graffiti Control Act 2008 (NSW)

Make the possession of a spray can by a minor a strict liability offence.

Organisations/Groups The Australian Taxation Office

Details Responsible for enforcing dozens of laws relating to taxation. ensuring that the correct taxes are paid. 2005- Joint operation between the Australian Taxation Office, the AFP, the Australian Crime Commission, the Australian Security and Investments Commission and the Commonwealth Director of Public Prosecutions. Investigate high profile instances of tax evasion and convict guilty parties. Lobby group that sees the decriminalisation of drug use as being necessary in treating drugs and drug use as a health issue rather than a criminal issue.

Project Wickenby

NSW Council for Civil Liberties

The Criminal Investigation Process

1. Discuss the powers of police in the criminal process Role is to prevent crime, enforce the law, maintain a public presence in order to deter, report to the DDP and also to investigate criminal activity and assist in the prosecution of those charged with offences. Section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) outline their power to arrest. Police must either have a warrant or are arresting someone to take them before a court, based on reasonable suspicion. Police can issue cautions and warnings, also fines. Police have the power to stop, search and detain. Must have REASONABLE GROUNDS to suspect a person or vehicle is carrying an article that is illegal such as drugs or a weapon. Police have the power to stop someone and detain them in order to search them. After search is complete, must either release or arrest. Cannot detain and then question. The Police Force Code of Conduct sets out the rights of suspects and they way in which investigations are to be conducted. Everyone is to be treated fairly.

2. Examine the reporting and investigating of crime - gathering evidence - use of technology - search and seize - use of warrants Reporting Crime Police rely on the public to report crimes because without information from the public, the police would have difficulty solving crime. Crime Stoppers and Neighbourhood Watch are supposed to create a sense of teamwork between public and police. However, many crimes go unreported due to a fear of revenge or suspicion. Crimes that have a high reporting rate such as theft are due to insurance reimbursement. Investigating Crime Police must use their discretion as to what warrants an investigation. It depends on the seriousness of the crime and the resources available. Police use interviews, forensic science and surveillance. - Gathering Evidence: A criminal charge is proven based o the evidence available for the court to view. It can be physical, electronic or witness statements. - Technology: Technology has created new crimes but it has also assisted law enforcers in the investigation of crime. Surveillance technology such as cameras make public places visible. Gene technology can determine if someone was present at a crime scene or not based on their unique DNA. Use is contained in the Crimes (Forensic Procedures) Act 2002 (NSW). Technology has to be extremely reliable because if there is any doubt, it can become inadmissible in court. There are dangers with DNA testing; convicting the wrong person for a crime. Sending innocent people to prison. Far better that a guilty person go free; than an innocent person go to prison. - Search and Seizure: Right to search and arrest people and search their belongings. Common law prohibits searching a person or their property before they have been arrested. However is there are reasonable grounds than this is permitted. The use of Sniffer Dogs raises concerns about breaches of peoples civil liberties.

3. Assess the effectiveness of the criminal investigation process as a means of achieving justice. Arrest and Charge, Summons and Warrants Arrest and Charge Police have no legal right to detains someone unless they lawfully arrest (lawful detention) them. Police can arrest if; - belief a crime has been committed or about to be committed - they witness a crime - they have a warrant Police must inform the person the reason for their arrest as well as stating that resisting arrest is an offence in itself. Police must caution prior to interrogation, otherwise evidence may be inadmissible in court. They must also ensure the person has understood the caution. The belief that people have the right to legal representation, is not the case in Australia. CASE LAW: Dietrich V The Queen (1992). Summons A summons is a legal document that requires a person to attend court.

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Warrants A warrant is an order issued by the court authorising a law enforcement agency to do something. Arrest warrants allow police to arrest someone when the court has been convinced there is enough evidence to suggest an offence has been committed. It must be a prima facie case. A search warrant allows police to enter a premises for the purpose of looking for evidence. There must be substantial grounds. Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the circumstances in which a search can be used. Bail or Remand Bail It is the conditional release of a person until their case is determined by the courts. Conditions include: - report to a police officer on a regular basis - forfeiture of passport - restrictions on where the accused can go - restrictions on who they can associate with - provide the court with a bond. If police refuse bail then the Act allows for an application for bail to be made to the court. Less serious offences, there is a presumption in favour of bail. All summary offences are granted bail. More serious offences, however, there is a presumption against bail. Surety: a person puts money forward for bail on your behalf. CASE LAW: R v. Young (2006) Remand Special type of detention where a person accused of a serious crime is held for the period between being charges and their trial. - Detention and Interrogation, Rights of suspects Detained for a maximum of 4 hours. Can be interrogated without the presence of legal representation but may wish to speak only if legal representation is present. Suspects have the right to remain silent

Case Dietrich v. The Queen 1992

Details Charged with drug offences, denied legal aid after refusing to plead guilty. He represented himself and was convicted. He argued to the High Court that he did not get a fair trial as he had no legal representation. High court stated that there was no automatic right to legal representation.

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Case R v. Young 2006

Details Mr Young killed another person while driving his car. Charged with murder, failing to stop and assist after a vehicle impact causing death and drink driving. Bail Hearing: The prosecution argued that due to a charge of murder there was a presumption against bail. However the defence argues that the Bail Act 1978 (NSW) does not forbid bail in exceptional circumstances. Mr young was found to have a good job, a good family, community ties, and a secure house to serve bail. Justice Johnson agreed that these factors constituted exceptional circumstances and granted bail under strict conditions.

Law Law Enforcement (Powers and Responsibility) Act 2002 (NSW) Law Enforcement (Powers and Responsibility) Amendment (Search Powers) Act 2009 (NSW) Crimes (Criminal Organisations Control) Act 2009

Details Gives police their powers (to arrest etc) Police have the power to demand the name and address of minors and proof of identity. Allow police to apply to a Supreme Court Judge for authority to enter premises and engage in covert surveillance. Increasing range of activities being criminalised. More power given to police. Criticised for being too harsh, police have too great a powers. Use of DNA evidence and its collection

Crimes (Forensic Procedures) Act 2000 (NSW) Police Powers (Drug Detection Dogs) Act 2001 (NSW) Summary Offences Act 1988 (NSW)

Powers to use dogs whenever required.

Outlines the less serious offences, bail for which is presumed.

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Law Drug Misuse and Trafficking Act 1985 (NSW) Customs Act 1901 (Cwlth) Bail Act 2007 Protection of the Environment Operations Act 1997 NSW Police Force Code of Conduct

Details Serious offences relating to drugs, no bail

Serious offences, no bail Prevents people making more than one bail attempt. Criminalises illegal dumpings and harming the environment. How police are to act, person being arrested must be told the reason. Police to use minimum force.

Organisations/Groups Crime Stoppers & Neighbourhood Watch

Details Get information from the public about crimes, assisting police.

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The Criminal Trial Process

1. Describe the role of courts in the criminal justice process - Court Jurisdiction Court Jurisdiction Courts are divided into levels and areas of expertise (Heirachy). A system of appeals allows for a review of cases by a higher court (Appellate jurisdiction). The powers and role of a court form jurisdiction. HIGHER COURTS High Court of Australia State Supreme Court State Court of Criminal Appeals Federal Courts INTERMEDIATE COURTS District Court The Drug Court of NSW LOWER COURTS The Local Court The Childrens Court The Coroners Court The Land & Environment Court The Drug Court of NSW

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Court The Local Court -

Details Established with the Local Court Act 1982 (NSW) Presided over by a Magistrate Functions to hear Summary hearings: No jury, can hear less serious indictable offences. - Committal hearings: Decide whether the charged indictable offence is a prima facie case. If not, the judge and drop charges. It reduces costs and saves court time. - CASE LAW: Saffron v. DPP (1989) - Hears bail applications - Indictable or summary offences for those; Less than 18 years when charges OR less than 21 when charge for a crime committed when aged less than 18. - Homicides, aggravated sexual assault and traffic offences are heard in Supreme Court (closed). - Focused on rehabilitation of the offender. Harshest penalty is juvenile detention centre. - Two types of cases: Protection of children and crime - Determine cause and manner of death when violent or suspicious. - Determine cause of fires - They are a coroner and conduct coronial inquests - See if there is sufficient evidence that a criminal act has been committed. - Rely on information from police, Forensics, medically trained people Interpreting and enforcing environmental law Eg. dumpings, disposal of wastes, toxins. No jury Prosecutions brought by the NSW Environment Protection Authority.

The Childrens Court

The Coroners Court

The Land & Environment Court

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Court The Drug Court of NSW

Details - Drug Court Act 1998 (NSW) - Due to success in assisting and managing offenders who have drug addictions, it has remained. Both Local and District Court Jurisdiction. - Aim to overcome the offenders drug addiction and likelihood of reoffending. - District Court Act 1973 (NSW) - Presided over by a judge and jury - All indictable offences apart from murder, attempted murder, treason, serious sexual assault and kidnapping. Charter of Justice (1823) Hears most serious indictable offences Also hears appeals Single judge and jury of 12 Jurisdiction to hear appeals when Magistrate in the local court has made errors in interpretation of the law (stated case)

The District Court

The Supreme Court

The Court of Criminal Appeal

- Convicted of an indictable offence, appeal to this court - Hears appeal from Supreme Court with 3 Justices usually - 2006 the Crimes (Appeal and Review) Act 2001 was reviewed and amended. Fresh and compelling evidence or a tainted acquittal allows for the prosecution to appeal a decision only for life or 15 years + punishable crimes. - Role: are of the Constitution - No original jurisdiction - Appellate jurisdiction if; public importance, justice is to be served or confusion.

The High Court of Australia

2. Discuss the use of the adversary system as a means of achieving justice System of law: Two opposing sides, present their case to an impartial judge and sometimes a jury also. The judge is an impartial arbitrator, has no involvement in questioning, evidence gathering and investigations.

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ADV - Equal opportunity to present case

DISADV - Judge (most knowledgeable person) cannot request additional information - Jury does not have legal knowledge - Imbalance of power

- Less bias from judge - Less prone to abuse - Cases can be carefully prepared before trial - Jury are impartial, society can be actively involved in the legal system

3. Examine the role of legal representation in the criminal trial Legal Personnel Legal Aid Legal Representation Fair trial is a key human right of all people. It is best to be represented in court by someone trained in the law. Court is complex, formal, require knowledge of legal processes and courtroom etiquette. Lawyers must not allow their personal views or interests interfere with their work, they must act under the wishes of the client. They must keep anything the client says secret: lawyer-client privilege. A lawyer may represent a client even if told guilty but wants to plead innocence. Legal Personnel Personnel Magistrate Role Local Court appointed by Chief Magistrate, independent of the government. Role is to determine guilt or non guilt and pass sentence

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Personnel Judge

Role They are usually successful barristers. Conducts trials according to the rules of the court: - Exclude illegal evidence - Ruling on points of law - Advising the jury - Passing sentence Cannot instruct jury to convict. Judges must remain impartial always. Represent the state, must prove the defense is guilty of the crime being charged. Local Court specially trained police officer. Also can present the state for committal hearings for indictable offences Is an eminent criminal lawyer, has a team of highly trained criminal lawyers (Crown Prosecutors) Represent the accused, counters the evidence of the prosecution and tries to cast doubt over their case. Salaried lawyers, paid by the government but independent of the government. Represent people charged with serious criminal offences, granted legal aid. Receive brief from legal aid commission after a successful application for legal aid has been made. Indictable offences, committal hearings, conduct appeals in the Court of Criminal Appeals and the High Court

Prosecutors

Police Prosecutors

Director of Public Prosecution

Defence Lawyers

Public Defenders Office

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Personnel Legal Aid

Role The Legal Aid Commission was established in 1979 to give people who cant afford legal representation, access to a lawyer. Funded by NSW govt. Free legal advice for 15 minutes. For more than this, a formal application is launched. Must pass the Means and Merit Tests and the Jurisdiction test. Means Test: Ability to afford their own representation. Look at assets. Merit Test: Likelihood of case being successful. A lawyer who has sat the Bar exam. Represents the client in court, presents the case to the court. Does NOT present the case to court. Does the paperwork, research into the law etc. Gives legal advice to clients.

Barrister

Lawyer

Pleas, Charge Negotiation Plea Either guilty or not guilty or enter no plea. Guilty: dealt with quickly and with no delay, matter goes straight to sentencing. No witnesses are required. Usually a more lenient sentence will apply. Not Guilty: Goes to trial, prosecution is left to convince the jury of the accuseds guilt while defence argues that the accused did not commit the crime (but does not have to prove innocence). Bail hearing will be arranged before the trial. Punishment may be harsher if found guilty. Plea Bargaining (Charge Negotiation, Case Conferencing) Negotiations of charges between the defence and the prosecution. A plea bargain is used to get the accused to plead guilty to an offence, in exchange for something. Eg, dropping some charges, lighter sentences, information, judge may indicate likely verdict, reduced to lesser charge. Adv May give police evidence or information they need Saves time and money Disadv Some crimes may go unpunished. Insufficient punishment has been received.

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Adv Increased rate of conviction, society likes this notion

Disadv Prosecution may manipulate, bully or influence unfairly the accused. They may forfeit their right to a trial in agreeing to the plea. May result in a guilty verdict when they were infact innocent.

Burden & Standard of Proof Burden of Proof Prosecution has this- responsibility to prove that the accused is guilty of the crime. The accused is considered innocent until proven guilty, the accused does not have to prove their innocence. However is the defence want to bring a defence to their case, it is their burden to prove it. Standard of Proof Beyond reasonable doubt- a jury or magistrate must have no doubt in their minds, if there is, the jury is to vote not guilty. This element of the law, means that the defendant is protected if they are innocent, ensuring that innocent people do not suffer punishment.

Use of Evidence Use of Evidence Collection, presentation and interpretation of evidence is crucial. One of the function of the Judge is to decide on matters concerning evidence and whether it can be presented. Evidence Act 1995 (NSW). This act also outlines how evidence may be obtained in order to be used in court. Evidence must be relevant to the case, legally obtained, must be direct evidence (NOT HEARSAY). There are 3 forms of evidence: - Real evidence: tangible - Documentary: original documents - Witness: people account what they saw, heard and experienced. Witnesses They give statements to the police and give verbal evidence attesting to what that heard, saw and experienced. They must be careful to be accurate (they are under an oath) as they will be subject to cross examination. Witnesses are called by the prosecution and the defence. A subpoena is a legal document, a letter, stating an individuals appearance in court at a certain time. It cannot be ignored. Witnesses cannot be asked leading questions, or their personal opinion (unless an expert), cannot be asked hearsay. Order: Examination in Chief, Cross Examination, Re examination. If a witness does not tell the truth, they will be guilty of perjury.

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4. Assess the use of defences to criminal charges in achieving justice Complete Complete Defences: excuses the defendants actions and results in an acquittal. Defence Mental Illness Description A disorder of the mind that results in a person not understanding the nature of the consequences of their act. There is no mens rea- an acquittal therefore must follow. Some may be supervised in a mental health facility. Case R v Porter (1936) Father poisoned child due to deep depression of separation from wife, was having a breakdown. Medical evidence was enough to acquit Porter on the grounds of insanity. This is a very controversial issue regarding the FORCE used.

Self Defence

Provisions for people to defend themselves but not to use a greater force than is reasonably necessary. Overriding question: did the accused genuinely believe their force was reasonable for a reasonable person to use. Self defence requires the defendant to admit both mens rea and actus reus Forced to carry out a criminal act. Admitting both mens rea and actus reus. Necessity: the crime committed is not as bad as the possible outcome of not committing the crime. Duress: a person is forced to commit a crime against their will. This defence has never been used in Australia for murder.

Compulsion

US v Holmes Man threw 8 people overboard in order to save many more. R v Dudley and Stephens (1884) 4 men stranded on an island, grew very weak due to no food. Parker was killed an eaten. Charged with murder, however claimed compulsion, necessity. The court rules murder, penalty was later reduced and released.

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Complete Defences: excuses the defendants actions and results in an acquittal. Consent The victims consent does not prevent the DDP from prosecuting a person for murder eg. euthanasia. However consent is used commonly in sexual assault cases. Consent is often hard to prove or disprove. -

Partial Partial Defences: An excuse for actions, may result in a reduction in charge. Section 23 of the Crimes Act 1900 (NSW) allows for 2 types. Partial Defence Provocation Description The actions of one person cause another person to lose control of their actions. It must be shown that: - the victim provoked the accuseds behaviour. - Provocation was so bad that an ordinary person would have also been provoked into the crime. Only to be used as a partial defence to murder, reduced to manslaughter. Case R v Camplin (1978) Boy hit uncle with frying pan and killed him. UNcle previously sexually assaulted him and was bullying him about it. Court upheld provocation. Problem: placing responsibility on the victim who is dead- only word of defendant. Most states have abolished this partial defence (Tas, WA, Vic)

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Partial Defences: An excuse for actions, may result in a reduction in charge. Section 23 of the Crimes Act 1900 (NSW) allows for 2 types. Substantial Impairment of Responsibility (diminished) Person suffers from abnormality of the mind that impairs their mental responsibility. Easier to prove than insanity. A low IQ, mental retardation are examples. R v Byrne (1960) a sexual psychopath led Byrne to homicide. His charge was reduced to manslaughter. Viro v The Queen (1978) Viro and F attacked Rellis. Viro appealed that as he was a drug addict he had diminished responsibility.

5. Evaluate the effectiveness of the jury system in the criminal trial Role Verdict Jury: a group of 12 randomly selected from a cross section of society. Found in the District and Supreme courts for an indictable offence, accused pleads not guilty. Central part of the adversary system: they are considered unbias and are a representation of society. Formed: From the jury roll, based on the electoral roll. The NSW Sheriff maintains the role and informs people when required. The Jury Act 1977 (NSW)- stipulates eligibility. Convicted criminals, those in the legal profession or emergency services, those who are mentally disabled, and those who cannot speak english- unable to be on a jury. Role: to listen to evidence presented. Apply the law as directed by the judge and to determine whether the accused is innocent or guilty beyond reasonable doubt based on the evidence presented in court. They DO NOT play a role in determining the sentence (Judge only). Challenge Selection: The prosecution and defence have the right to challenge either the selection of the entire panel of jurors, or individuals. - Preemptory Challenge: when the legal team strikes a juror without needing a reason. - Challenges for a cause: Eg. Not qualified to be on a jury, ineligible, disqualified, suspected of bias. CONTROVERSIAL: In 2005, the NSW Attorney General announced that verdicts will be allowed 11-1, in the hopes of reducing the number of hung juries which result in a retrial, also reducing costs and the mental burden on those involved. It has attracted much criticism, many argue there is potential for innocent people to be convicted. This 11-1 contradicts the notion of beyond reasonable doubt. A juror still may have doubt or no doubt at all whilst the others disagree.

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Advantages Jury System Society is involved in the legal system

Disadvantages Jury System Lack of legal knowledge and understanding and yet they are deciding the guilt or innocence of someone Too much responsibility is placed on them

Society becomes more knowledgeable of the legal system Impartial set of 12 people to decide verdict. Unbias view

Court cases are getting more complex: technology, jurors may not be able to keep up and comprehend proceedings. The judge does not have an input and yet they are most knowledgeable.

Represents a cross section of the community, all views considered.

6. Assess the effectiveness of the criminal trial process as a means of achieving justice - Jurisdiction: The power and role of a court, together form their jurisdiction. Some courts have very specific jurisdiction in which they can hear only specific cases. For example, the Coroners Court only hears matters that help determine the cause of death of a person. Jurisdiction also dictates what cases can be heard in each court. Original jurisdiction means that the court can hear a case for the first time. Appellate jurisdiction means it can hear cases on appeal. The higher up a court, the more jurisdiction it covers. For example, a common law formed in the Supreme Court takes precedence over all lower courts and the District Court. This ensures consistency in that Jurisdiction and fairness. However, in Australia for example, jurisdiction is not common amongst states. this means that an individual charged with a similar crime in Victoria to someone in NSW may be given a different penalty. This is ineffective, not consistent. - Adversary System: Two opposing sides, who argue their case before a court, presided over by a neutral third party judge. Evidence put forward is legally obtained and submitted, cross examination of witnesses applies. The jury then decided on the guilt or innocence of the accused. The Judge has no role in testing evidence. Seen as ineffective because victims are often subjected to unfair cross examination, also the ability of a lawyer to argue and persuade a jury is often as important as the actual evidence being presented. - Legal Personnel/Representation: Effective as they are specialists in their field. However, it can be ineffective when one side of the case has a more experienced team of lawyers working their case. Legal Aid is not as effective. One needs to pass a means and merits test in order to get legal aid in the first place. - Pleas, Charge Negotiation: Allows one to maintain their innocence and proclaim not guilty. Charge negotiation is often used to get the accused to plead guilty. It speeds up the criminal trial process, it ensures those that are guilty are receiving some form of punishment. On the other hand, ineffective as it can be seen as bullying people into accepting guilt, it often doesnt involve the consideration of the victim, also prosecutors may threaten the accused with more serious charges in order to get them to admit guilt. This kind of plea bargaining is unethical.

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- Burden and Standard of proof: Burden of Proof: lies with the prosecution as everyone is presumed innocent until proven guilty. This is sometimes not the case, the media often portrays the accused as guilty, alienating them of their right to be presumed innocent during a trial. Standard of Proof: Beyond reasonable doubt (high). Juries must be convinced beyond all reasonable doubt that the accused is guilty of the crime. If there is some doubt the jury member must vote innocent. This can be ineffective as again the media has a way of being bias and presenting a distorted image. Also, some juries members may be bullied into complying with the majority vote. - Evidence, Witnesses: One of the key functions of a judge is to discern whether evidence can be presented to the jury. It must be obtained legally and lawfully. Evidence Act 1995 (NSW). Effective, as it protects the accused from unlawful obtaining of evidence by police. - Defences to Crimes: The partial and complete defences to a crime are said to be a means of achieving justice for the accused when they have an excuse for their actions. It is considered that those mentally ill, acting in self defence, acting due to compulsion or consent occurred should be excused from their crime. Also, those acting as a result of provocation or substantial impairment of responsibility should have a reduced sentence (partial defence). This ensures that the criminal trial process is fair when dealing with these people. - Juries: Juries are said to be effective mechanisms of achieving justice in the criminal trial process. They are complete third parties, they are separate from the defence and prosecution, they are neutral (supposed to be) and they are selected at random. However they can be seen as ineffective as they have limited legal knowledge, can be easily persuaded by lawyers, and are often disinterested in their job.

Case Saffron v. DPP 1989

Details The Supreme court on appeal found that this case should never had gone to trial based on a lack of credible evidence, the Judge pointing out that the Magistrate should have dismissed the case at the committal hearing. Father poisoned child due to deep depression of separation from wife, was having a breakdown. Medical evidence was enough to acquit Porter on the grounds of insanity. 4 men stranded on an island, grew very weak due to no food. Parker was killed an eaten. Charged with murder, however claimed compulsion, necessity. The court ruled murder, penalty was later reduced and released. Accused was a sexual psychopath with violent sexual desires that he could not control. This led to homicide. Court ruled charge of murder should be reduced to manslaughter.

R v. Porter 1936

R v. Dudley and Stephens 1884

R v. Byrne 1960

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Case Viro v. The Queen 1978

Details Viro and F attacked Rellis. Viro appealed that as he was a drug addict he had diminished responsibility. - Murder Jury Sets Mum Free - Title Unknown - Emotions in Murder Trials

Complete and Partial Defences (Articles)

Law Local Court Act 1982 (NSW) Drug Court Act 1998 (NSW)

Details Summary hearings and committal hearings Set up the Drug Court of NSW(specialised diversionary court) Most indictable offences heard here Established the Supreme Court An acquittal may be quashed if there is fresh and compelling evidence, or if the acquittal was tainted. Removed the right of Australians to refer matters to the Privy Council in GB Limit the term of DPPs to 10 yrs.

District Court Act 1973 (NSW) The Charter of Justice 1823 Crimes (Appeal and Review) Act 2001 (NSW) Australia Act 1986 (Cwlth and UK)

Director of Public Prosecutions Act 1986 (NSW) amended in 2008 Evidence Act 1995 (NSW)

Outlines the way that evidence must be obtained in order to be used in court. Stipulates who is eligible for duty and who is not.

Jury Act 1977 (NSW)

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Organisation/Groups Public Defenders Office and Legal Aid Commission

Details Allows accused legal representation.

Sentencing and Punishment

1. Discuss factors that affect sentencing decision, including the purposes of punishment and the role of the victim Sentence Hearing: a hearing following a finding of guilt in which a magistrate or Judge will determine a sentence to be handed down. Crimes (Sentencing Procedure) Act 1999 is the primary source of sentencing in NSW. It sets out the purpose for which a sentence may be imposed, the type of penalties that apply and when they can be used.

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It clearly states that a court may not impose a prison sentence unless it is satisfied that no other penalty is appropriate. Maximum penalty that an offender can receive for an offence are also decided by Parliament and listed in legislation. Statutory and Judicial Guidelines Judicial guidelines Purpose is to reduce inconsistency in the judgements of trial judges, given considerable discretion. Intention is to give like cases similar treatment. Too great an inconsistency is injustice. A judicial officer cannot pass a sentence higher than the maximum penalty. Judicial Discretion: the power of a Judge or magistrate to make a decision within a range of possibilities based on the particular circumstances of a case: - Past criminal behaviour - Mitigating Circumstances - Aggravating circumstances - Victim Impact statements Case R v Jurisic (1998) Statutory guidelines The Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW) gives statutory force to the courts issuing guideline judgements in court. The Crimes (Sentencing Procedure) Act 1999 sets out general guidelines for the courts to use in sentencing offender. Mitigating and aggravating circumstances will be for the Judge to determine their merit for each case. Law Reform: Mandatory Sentencing was introduced in NT and WA. Calls for the same in NSW due to inconsistency of punishments for similar cases. It is also due to one of the corner stones of the Australian Legal System: fairness and equality. It also sends a message to criminals- harsher penalties will certainly be received. However arguments have been raised as it does not consider the individuals circumstances. It is a blanket approach. Purpose of punishment Purposes of Punishment Some of the principles of punishment are clearly in conflict ie. rehabilitation and retribution. Parliament has produced legislation specifically referring to the conflicting principles. The Crimes (Sentencing and Procedures) Act 1999 (NSW) lays down the allowable purposes of sentencing. These are as follows

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Purpose Deterrence

Description Specific Deterrence an objective of preventing the convicted person from committing any more offences by deterring them from reoffending. There are different punishment options- the least harsh should be chosen with still a deterrent effect. General Deterrence is the view that people will be less likely to commit particular offences if they are aware of the penalties given to people who commit such offences. Recent studies are possibly showing that punishment is not a deterrent and in fact it spurs on more criminal behaviour.

Retribution

Based on the view that it is unfair for a person to gain from their wrongful conduct. It is a punishment considered to be morally right and fully deserved. It may contribute to preventing individuals from taking the law into their own hands. Just Desserts- penalty should equal crime, not excessive. Revenge may be understood as part of the penalty. The role of dispensing retribution is taken by the courts. The type of punishment chose should help or eliminate criminal behaviour by the convicted person. The penalty should be appropriate to the specific offender. Eg. drug rehab outside the legal system. Aims at making offenders valuable members of society, not sending them to prison to become more angry. Convicted persons may be prevented from committing further offences through imprisonment. Community should be protected from offender. Offenders should also be protected from themselves.

Rehabilitation

Incapacitation

Aggravating and mitigating circumstances AGGRAVATING CIRCUMSTANCES: that which would lead to a generally heavier penalty given by the court. The Crimes (Sentencing Procedure) Act 1999 sets out these circumstances in detail. - Victim was a police officer, prison officer, health worker, teacher, or some other public officer carrying out their duties/voluntary work. - Offence involved actual or threatened violence, use of weapon, explosives, chemical or biological agent. - Offender has previous convictions - Involved gratuitous violence

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Emotional harm, loss or damage Hate crime Abuse of position of authority, for example a teacher. The victim was vulnerable

MITIGATING CIRCUMSTANCES: that which would lead to a more lenient penalty. Also in Crimes (Sentencing Procedure) Act 1999 and are applicable to both the offence and the offender. - Damage caused was not substantial. - It was not planned - Offender was provoked - Acted under duress - Has no significant record - Is of good character - Unlikely to reoffend - Prospects for rehabilitation - Shown remorse - Pleaded guilty - Offered assistance OTHER FACTORS THAT MAY AFFECT SENTENCING: - Any guideline sentencing to be followed - The maximum and minimum penalty that can be given - Existence of precedence - Remorse being shown - Charge negotiation - Prior offences and sentences - Any mental illness - Community standards

Role of the Victim during Sentencing The impact of the crime on the victim has been a factor in sentencing. Victims want greater participation in sentencing, more information on the case, counseling, compensation and support. The Victim Impact Statement gives the victim an opportunity to be fully heard with respect to the impact of the crime on them. CASE LAW: R v Slack (2004) Appeals

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Appeals Defendants may appeal against their sentence on the grounds of an error of law, an error in law in the way in which the judge directed the jury when about to deliberate, or that the sentence is too severe. Prosecutions may appeal on the basis that the sentence is manifestly inadequate. An appeal court will consider: - If the court had power to impose a particular sentence - If there was an error of fact or law in imposing the sentence. - Whether the sentence in generally of the range appropriate for the offence or offender. Appeal courts only interfere with sentencing if there has been clear error, including the judge taking into account irrelevant facts, dismissing important facts, incorrectly directing the jury.

2. Evaluate the effectiveness of the different types of penalties, including diversionary programs Types of Penalties The Crimes (Sentencing Procedure) Act 1999 (NSW) outlines the range of penalties that one can incur for a particular crime. Penalties vary in accordance with severity of crime. The variety of penalties also indicate the discretion that judges and magistrates have in sentencing. Penalty No Conviction recorded and good behaviour bond Description & Evaluation Judge can use their discretion and power to dismiss a charge and not record a conviction. Therefore it does not come up on ones criminal record. May require defendant to enter a good behaviour bond. The following are considered: - character, criminal history, age, health and mental condition - trivial nature of offence - extenuating circumstances - any other matter the court sees proper to consider. EVALUATION: There is a certain percentage of the population that only need a court appearance in order to fully acknowledge their crime and therefore the punishment adequate. Magistrates and Judges can have an input Treating cases on their individual merits- not to treat all offenders the same. Not considered to abide by the concept of equality. Someone who committed the same offence may have got a harsher penalty. The victim may be wondering whether retribution and justice has occurred.

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Penalty Probation

Description & Evaluation Enter into a bond (an agreement) to be supervised (very closely) by a member of the probation service. Must comply with certain conditions and agree to good behaviour. A breach will lead to imprisonment. EVALUATION: Provides a mentor for the offender. To be a good influence and gives guidance. The burden of these orders on the probation service means that they may not be being fully enforced.

Caution

Police have the power (use their discretion) to caution adults for minor drug offences (eg less than 15g cannabis) and may also caution children. EVALUATION: Keeps individuals out of court, freeing up court time Cost effective When police use their discretion, there is considerable concern about their use of power on the individual. They are not influential enough.

Criminal Infringement Notice

(CIN) issued for seven different crimes: - stealing less than $300 - offensive language - offensive behaviour - unlawful entry into a boat - unlawful entry into a car - obstructing traffic - obtaining benefit by deception. An on the spot fine can be issued. POlice do not have to take offender to the police station. EVALUATION: Cuts down on police clerical work Cuts down on court time Allows police to better track repeat offenders. Does not result in a criminal record unless it is defended and offence is proved. People often dont connect their behavior with the fine and the consequence.

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Penalty Fines and Penalty units

Description & Evaluation It is a monetary penalty set out in penalty units ($110 is each penalty unit). It is the most common crime. Mostly issued by the police. A person may be fined if that is the penalty specified for the offence set out in the relevant Act, or it may also be given in addition to another penalty. For example, along with imprisonment. It is a non custodial penalty. EVALUATION: Cost effective: funding the legal system and keeps people out of the legal system. Prevent time being wasted as fines are on the spot. Criticised for being abused in order to gain government revenue and therefore the purpose of punishment is not being achieved. The individual not connecting their crime to the fine. Fines can discriminate against low income earners who cannot afford this punishment. Often not a deterrent and therefore not achieving the objective of punishment.

Community Service Orders

A person may be ordered to carry out a period of community service instead of serving a term of imprisonment, but this must never exceed 500 hours. The defendant must be suitable for the service order. For example, someone who lights fires would not be recommended to a park. EVALUATION: Cheaper to supervise than imprisonment Allow offender to maintain community and family ties. May assist in rehabilitation through satisfaction in the work done. In a realistic environment- contributing to the community. Makes the offender get out of bed. Should the community have to supervise the States punishment? Some may not respond to their punishment and commit more offences. Relying on Judges discretion to determine suitability to area of community service.

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Penalty Suspended sentence

Description & Evaluation Court imposes a sentence not more than two years. It may be suspended, allowing the convicted person to be released on a good behaviour bond for the same length of time as the original sentence. If bond is breached, original sentence is charges or may serve home detention or periodic detention. EVALUATION: Gives convicted person the opportunity to rehabilitate. Allows to maintain family ties and community ties, including employment. Cost effective- keeps out of prison Do victims get their justice? Is there equality when Judges use their discretion in such a way.

Home detention

Allows a person sentenced to a custodial sentence to serve their sentence under house arrest. Stay at an approved residence. There is strict supervision and monitoring. Not available for murder, sexual assault and armed robbery offences. EVALUATION: - realistic home setting - keep up their ties - may be able to work from home. - However, is it right that the person gets to be free whilst the victim has not been served justice. - Prisons have educational, work, health facilities and psychologists. Environment equipped with resources. - Home detention- putting them in jail, however very confined, limited opportunity. - Some can conduct criminal careers at the same time.

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Penalty Periodic Detention

Description & Evaluation Sentences a period of less than 3 years, court may order a periodic detention instead. Usually commences 7pm Friday, finishes 4pm sunday. EVALUATION: - Maintain employment - Much more lenient then full time imprisonment. - The weekend is the most criminal activity time- keeping them away from this time. - Gives a taste of deprivation without prison. - Can transfer their criminal behaviour to the weekdays. - Does it achieve deterrence? Only 2 days out of 7 in a week.

Imprisonment

A court must impose a sentence of imprisonment only after considering all other alternatives and deciding that full time imprisonment is the only appropriate option. Length of imprisonment must them be decided. After the minimum time has been achieved for that offence, the individual is viable for parole under the Crimes (Sentencing Procedure) Act 1999 (NSW). Parole reduces prison time- no more than one third of the maximum term. Maximum, Medium, Minimum or Prison Farm. Deprivation of liberty, containment in a structured environment, with little rights and harsh conditions. EVALUATION: Removes people from society Still opportunity to work and earn an income whilst in prison, to earn an education. A lot of defenders reoffend when released from prison.

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Penalty Diversionary Programs

Description & Evaluation The Crimes Sentencing Procedure Act 1999 allows the court to order that a person be discharged, provided they enter into an agreement to participate in an intervention program. Eg, drug and gambling addiction. Court is satisfied that the person is now less likely to commit a further offence if they undertook treatment or rehabilitation. EVALUATION: - Rehabilitation, trying to make the offender a valuable member of society again. Trying to correct the behaviour. - Drug and alcohol addiction are an illness, this is acknowledged and recognised. - Separating the addiction and the behaviour. - May not always work, may just reoffend.

3. Assess the roles of alternative methods of sentencing Restorative Justice RESTORATIVE JUSTICE: - Diverting offenders (mostly juvenile offenders) away from the court system. - This process uses a conference attended by the offender, the victim and supporters of each. - The offender explains what happened, how they felt and what they should have done. They can apologize, make amends. - The victim conveys emotional, financial, and other impacts on them. They can ask questions to move forward. - Study show a 15-20% reduction in re offending is possible. - This process may occur after the conviction and sentencing, before release or during probation and parole. - Usually accompanies another form of sentencing. - RJ is unlikely to expand beyond minor infringements and youth justice. - May cause more damage to the victim with the offender not being remorseful. - The court must use their discretion to determine whether the parties are ready. Circle Sentencing CIRCLE SENTENCING: - Mostly for Aboriginal offenders and it seeks to break down mistrust and barriers between them and the courts. - It involves using respected members of the Aboriginal community in decision making and is designed to introduce meaningful and relevant sentencing options. - It is less formal and therefore less confronting. - Based on Customary Law and traditional forms of dispute resolution. - A magistrate is also present in this circle. - It has the full sentencing powers of a court.

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Adv: Less formal, helps offender to appreciate the harm, keeps people out of court, it is cost effective Disadv: May reoffend, may not acknowledge crime 2008: Bureau of Crime Stats and Research: usually reoffend after 15 months post circle. 2010: Proven effective in NSW, more than 500 circle sentences in past 5 years Since the 2008 research the course has included intervention plans to help tackle behaviour, rehabilitation, guidance and support.

4. Examine the implications of post sentencing considerations in achieving justice Security Classifications: Department of Corrective Services examines the security risk of each individual. To decide which category the prisoner belongs and then sent to appropriate correctional facility. Classification AA A1 and A2 B C1, C2 and C3 E1 and E2 Description Convicted Terrorists Special Security Risk Serious Offender Trusted Offender Have escaped or attempted to Security Requirement Supermax Maximum Medium Minimum Go to A1, A2 (Maximum)

Protective Custody: Crimes (Administration of Sentences) Act 1999 (NSW), prisoners who feel in danger from other prisoners are placed in protective custody. These usually include child sex offenders, police officers and the mentally ill. Parole: Those under full time imprisonment for less than 3 years are released on parole after their non parole period. Those sentenced more than 3 years, are considered for parole after their non parole period but may not automatically receive it. Parole Authority must give weight to comments made by sentencing court, consider recommendations and have regard for the community. Preventative Detention and Continued Detention: Aimed at offenders whose history shows entrenched criminal behaviour. Particularly with violent and sexual offenders. The passage of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) designed to detain people who were serious dangers to community. CASE LAW: Fardon v Attorney General (Qld) (2004) CASE LAW: Kable v DPP (1996) Sexual Offenders Registration: Serious sex offenders names are placed on a register with access by the police. The NSW Child Protection Register was established under the Child Protection (Offenders Registration) Act 2000 (NSW). Offenders must keep the police informed of their name, date of birth, address, employment, vehicle, travel arrangements. Register also includes those who have committed murder, guilty of sexual intercourse or persistent sexual abuse of a child under 18,

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convicted of acts of indecency punishable of 12 months or more, have caused a child sexual servitude, guilty of kidnapping, or of promoting, publishing or possessing child pornography. Deportation: Non citizens subject to prison sentence of more than 12 months and have been resident in Australia less than 10 years are automatically failed of the character test in the Migration Act 1958 (Cwlth), they are deported from Aust.

5. Evaluate the effectiveness of sentencing and punishment as a means of achieving justice - Guidelines: Sentencing guideline are there to promote consistency amongst judges sentencing as well as allowing for discretion in individual cases. There has been controversy over this. Some feel that every case of similar nature should result in the same punishment. The Crimes (Sentencing And Procedures) Act 1999 sets out to courts the general guidelines for sentencing offenders. However, the degree of weight placed on mitigating and aggravating circumstances is usually determines by that of the Judge. Some argue that the blanket approach of the law reform for mandatory sentencing will not allow judges to exercise discretion. Discretion can be seen as both effective and ineffective. It allows individual consideration, however when it comes to punishment, it may not be fair to allow someone leniency over another. The use of guidelines can be effective and ineffective. - Purpose of Punishment: Punishment is designed to achieve justice for society and the victim. However, many argue that the punishments administered are not suitable for offenders and are not achieving justice. Deterrence can be specific to the individual but also made an example of for the community. Sometime the deterrent is not strong enough, many reoffend. Retribution refers to justice for the victim and society especially. Rehabilitation has been argues to be most beneficial to offenders in achieving justice. However, victims and society do not see the retribution is this. Incapacitation takes them away from society, protecting society. - Aggravating & Mitigating Circumstances: These allow for discretion both in terms of lightening the penalty but also making the penalty heavier. - Role of Victim: Victim impact statements can be effective in giving the victim a chance to be fully heard, however the weight placed on this statement is often too much and can sway juries unfairly. - Appeals: The appeal system allows someone to appeal their case to a higher court if they feel justice has not been served or it has been manifestly inadequate. This ensures that justice is being achieved. A more superior court is judging the case. - Types of penalties: The range and scope of penalties allows for justice to be achieved when dealing with individual cases. It allows for a crime to be matched appropriately with the punishment to be administered. However there are issues, some argue that penalties are too harsh and some, too lenient. - Alternative Methods of Sentencing: Focus on achieving justice for the criminal. Restorative justice and circle sentencing are arguable better at reintegrating criminals back into society and also for making criminals understand the actions of their behaviour. Targeted at rehabilitation. This is sometimes seen as inadequate, especially to the victims. - Post Sentencing Considerations: Allows for like prisoners to be grouped, the protection of certain people form other inmates (sex offenders), the option for parole in some cases. Preventative detention and continued detention is seen as protecting society, however questions have been raised about the fairness of keeping these criminals in prison passed their sentence. Justice for the offender is not being met. The sex offenders registration is seen as achieving justice for society, keeping a track on these criminals. However the close observation of these people impedes on their livelihood.

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Case R v. Jurisic 1988

Details Pleaded guilty to 3 charges of dangerous driving occasioning grievous bodily harm. Sentenced to 18 months home detention, loss of drivers licence for a year and put on a good behaviour bond for 2 years. On appeal, he received 2 years imprisonment and 2 years licence loss. This shows Judges discretion can vary dramatically. Slack charged with sexual assault on his daughters school friend (a minor). The victim impact statement was read out in court before sentencing. The Judge commented that this statement is only ONE FACTOR in sentencing and it cannot be heavily weighted on. The High Court struck down an attempt to keep an prisoner in gaol passed his sentence due to a threatening letter sent to victims family that wasnt even evidenced in court. In NSW, the Crimes (Serious Sex Offenders) Act 2006 (NSW) allows the Supreme Court to order continuing detention where there is a report prepared by a qualified psychologist, assessing whether the offender is likely to reoffend. The Attorney General used the above legislation to detain the prisoner who was seen as a risk to the community. The Supreme Court ruled in favour of the General. On appeal the High Court upheld the decision stating that this legislation can be used in extraordinary circumstances. This case demonstrates the power of the Crimes (Serious Sex Offenders) Act 2006 (NSW). Remained in custody under a continued detention order by the Supreme Court. Granted Attorney Generals request for a 12 month continued detention order. Same applies

R v. Slack 2004

Kable v. DPP 1996 (NSW)

Fardon v Attorney (Qld) (2004)

General

Attorney General v Jamieson (2007) NSW

Attorney (2007) Attorney (2007)

General

Tilman

General

Quinn

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Law Criminal Procedures Amendment (Sentencing Guidelines) Act 1998 (NSW) Crimes (Sentencing Procedures) Act 1999 (NSW), Amendment in 2001

Details Give statutory force to the courts issuing guideline judgements in NSW. Gives general guidelines for the courts to use in sentencing offenders. Sets out aggravating and mitigating factors. Sets out the range of penalties that can be imposed on offenders. Parole period may only be maximum one third of sentence. The amendment gave the Court of Criminal Appeal the power to issue sentencing guidelines and made earlier, state issued guidelines valid. Requires court to take into account adequate punishment, specific deterrence and rehabilitation. Prisoners who feel they are in danger may be moved to solitary confinement. Detain people who are a serious danger to the community, passed their sentence. Allows Supreme Court to order continuing detention where a report from a professional says so. Keep their identity and whereabouts known to police

Crimes Act 1914 (Cwlth)

Crimes (Administration of Sentences) Act 1999 (NSW) Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) Crimes (Serious Sex Offenders) Act 2006 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Migration Act 1958 (Cwlth)

Failure of the character test results in deportation

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Young Offenders
1. Discuss the issues surrounding the age of criminal responsibility Age of criminal responsibility Age of Criminal Responsibility: Every effort is made to ensure the young offender has the opportunity to start their adult lives in a positive fashion. A child under the age of 10 (in nsw) is regarded as too young to form criminal intent (mens rea). This is referred to as doli incapax- the child is not fully able to understand the consequences of their actions. The Children (Criminal Proceedings) Act 1987 (NSW) states that a child under ten cannot be charged with a criminal offence. Although between the ages of 10 and 14, there is a presumption that a child is not able to form criminal intent and so therefore is not usually charged. This applies to all Aust criminal jurisdictions however it is conditional and may be rebutted by proof that the child understands the wrongfulness they were doing. If the prosecution is trying to prove that the child understood their actions than this must be proven in court, it is not sufficient that a child know that their conduct was naughty. Children reach the age of criminal responsibility when aged 14 years. They are considered old enough to commit a criminal act (actus reus) and are capable of forming criminal intent (mens rea). This is known as doli capax.

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There is no minimum age to give evidence, although it is unusual for someone under 10. CASE LAW: R v JTB (2003) CASE LAW: R v BP & SW (2006) CASE LAW: R v LMW (1999) INTERNATIONAL LAW: Jamie Bulger Case 1993/1994 This case established the following Act: Crimes And Disorder Act 1998 (UK)- abolishing the presumption of doli incapax of those aged 10-14. Which means in England, these children over 10 will be tried very similar to an adult.

2. Explain why young offenders are treated differently in the criminal justice system The rights of children when questioned or arrested The Rights of Children when Questioned or Arrested Children cannot be interviewed for more than 2 hours (in contrast to adults for 4 hours). Police have the power to ask children to move on if impeding the flow of pedestrian traffic or if police have reasonable belief that they are engaging in a violent act: Children (Protection and Parental Responsibility) Act 1997 (NSW). The Law Enforcement (Powers and Responsibility) Act 2002 (NSW) police have the power to demand the name and address of juveniles and proof of identity. Police must also identify themselves. Child only must answer questions if driving a car, drinking in public, suspected of a crime or witness, traveling on public transport or in a car accident. Children may be asked to be accompanied to a police station but only after being arrested. Child may be searched (not strip search) if police reasonably suspect drug possession, stolen good or weapon. Once arrested they are taken to nearest station and parents are contacted before interview begins: Young Offenders Act 1997 (NSW) Parent or guardian must be present during questioning: Children (Criminal Proceedings) Act 1987 (NSW) In some cases where no parent is present, Salvation Army or other community support personnel may be used. Under 16: parent must consent to the adult present Over 16: Child must agree to the choice of adult witness. A statement taken by police from a minor is inadmissible in court unless an independent adult was present. CASE LAW: R v CKT (1999) (NSW) - Childrens Court - Procedures and Operations Childrens Court: Procedures and Operation Deals with issues of welfare, care and protection issues and criminal matters. Those under 18 at time of offence are usually tried in this court. There are some cases where those over 18 are sent to juvenile centres for their safety and best interests. Once overcrowding ensued, these adults were transferred to prison. However if a minor is charged with a serious offence ie, murder, it will be heard in the Supreme Court.

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The Childrens Court have procedures especially designed to be less intimidating and less formal, with legal technicalities kept to a minimum. Children are able to appear in court via an audio visual link instead. Court Appearances Maintain innocence, a Court Appearance Notice is issued- must appear in court to plead guilty or not guilty. If plead not guilty, they will return at a later date, where evidence and witnesses will be present. The magistrate is to decide if charges proven. Child over 14 charged by police may have photograph and fingerprints taken and destroyed if charge dismissed. Police also have to decide whether to approve bail once charged. It may be conditional or unconditional. Granted on basis of: - seriousness - Family ties - likelihood of appearing in court In 2008 amendments to the Bail Act 1987 (NSW) were made, preventing repeat bail applications and judge shopping. This has increased numbers in detention centres creating severe overcrowding problems. CASE LAW: Police v Raymond 2007 Effectiveness of the Childrens Court Aspect ACCESS How it achieves effectiveness To information, advisors, legal representation and court support. Aims to rehabilitate rather than punish them. Therefore efforts are made to include the child in the proceedings, legal advice and connections with family. Equal and fair treatment of all offenders. Many feel that their families, the police and the system have all let them down. Young persons must be able to see that they will receive fair treatment and not suffer discrimination on the basis of sex, ethnicity, age or appearances. Young persons must be made aware of their rights. The Childrens Court aims to provide a regular forum at each Children's Court for feedback. This means that solicitors, parents, community groups, police- given opportunity to contribute to deliberations. Changes to court procedures are publicised to understand the operations of the Court.

EQUALITY, FAIRNESS, INTEGRITY

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Aspect ENFORCEABILITY

How it achieves effectiveness Child offenders should not be regarded as simply an area of responsibility for the police. The Department of Juvenile Justice and the Childrens Court, encourage the involvement of all concerned parties (stakeholders) to play a role in correcting criminal behaviour in young people. Parents, family members, government departments, community groups and the police- all share responsibility in encouraging compliance with the law. Values need to be widely supported to ensure compliance with the law. There needs to be a consistent message when criminal behaviour is committed. The Childrens Court refers to expedition and timeliness. Court cases involving children must be dealt with quickly and efficiently to ensure justice. Reducing stress on child and family. Resource efficiency is always an aim of the criminal justice system, however this should not detract from ensuring a fair and just legal outcome. Police v Raymond 2007 Young persons may appeal against any court ruling, assuming grounds for the appeal. Appeals over minor offences are less likely due to the aim of keeping these cases out of courts. Therefore more likely when found guilty of a more serious crime.

ISSUES OF TIME & COST IN DELIVERING JUSTICE

APPEALS & REVIEWS

Childrens Court Magistrates Selected and trained to be sensitive and exhibit an ability to relate to children. Role is to consider evidence, make a determination based upon it and use relevant legislation and case law. Under the Children (Criminal Proceedings) Act 1987 (NSW) it is an offence to publish or broadcast the name of a child. Background Reports If found or guilty or pleads guilty, magistrate adjourns case and asks for a confidential background report. For this report, an officer arranges to visit the childs home and interview the family. Education, work history, support groups, nature of offence, behaviour, needs are all accounted for. Recommendations on sentencing are made. Sentencing Principles in the Childrens Court Aim of sentencing in the Childrens Court is to rehabilitate the offender.

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The UN Convention on the Rights of Children (CROC): Obliges Australian Courts to treat the best interests of the child as paramount consideration in all matters involving children. Imprisonment of children must be absolute last resort, with other penalties more in line with rehabilitation being considered appropriate. Sentencing Principles: Every opportunity to be heard and to participate in proceedings and that proceedings, decisions and rulings are understood by the young person. Consideration must be given to their dependancy and immaturity, therefore given guidance and assistance. The education and employment should not be interrupted Offenders should be able to continue living in their home. Penalty should not be greater than the penalty that would be applied to an adult in a similar circumstance. Penalties Penalties for Children If criminal charges are dismissed, no record will be kept. If found guilty such can be imposed: - Caution with no penalty and no record - Youth Justice Conference according to the Young Offenders Act 1997 (NSW) - Fined up to $1000 - Probation Order with conditions for up to 2 years - Community service order - Control Order imposed and then suspended to good behaviour bond, if broken rest is served in custody - Control Order served in detention, max 3 years. - Pay for damages to person or property. - Confiscation of items - Referral to Youth Drug and Alcohol Court Use of on the spot fines: Crimes Act 1900 NSW was amended to allow on the spot fines (2007) for minor offences: - Minor fraud - Shoplifting - Stolen goods - Offensive conduct and language - Obstructing traffic - Unauthorised entry into vehicle or boat Fines range from $150-$350 with 21 days to pay the fine, there will be no additional costs nor criminal record created. Fingerprints taken will be destroyed. Graffiti and Defacing: Graffiti Control Act 2008 (NSW) restricts sale of spray cans. CONTROL ORDERS: Require offender to be sent to a juvenile centre appropriate to their needs and family distance. Emphasis is placed on learning skills to enhance job opportunity. CASE LAW: Tapueluelu v R (2006) ISSUE: Overcrowding in detention centres. Juveniles in NSW are 4 x more likely to be imprisoned than those in Vic. 68% of young persons in detention centres reoffend in 12 months. COMPLIANCE. Detention centres are not fulfilling their role of rehabilitation and correcting behaviour.

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 Alternatives to Court Alternatives to Court Those whom have spent time in detention centres find it difficult to obtain social acceptance once an adult. Criminal records harm employment and is a constant reminder. Many young people become chronic offenders. The Young Offenders Act 1997 (NSW) Aims to provide alternatives to court and designed to foster restorative justice and rehabilitation of children. Under this Act, youth justice conferencing can be used. Covers summary and indictable offences. This Act attempts to change the emphasis from punishment to rehabilitation whilst still making children accountable. Stakeholders have a part to play in resolving issues. Emphasis on responsibility of actions, aware of damage, affirm the rights of victims, to reduce the time and costs surrounding juvenile justice issues, reduce the number of children in detention centres. PRINCIPLES OF ACT: - Least restrictive form of sanction, not punish anymore than is necessary. - Informed about their rights - Youth conferences to be encouraged - Dealt with in their community- rehabilitation. - Parents are to be recognised - Victims are entitled to receive information Youth Justice Conferencing Informal gatherings where offenders, victim, family members and the police are able to participate. Victims can express their hurt and anger over harm caused. Emphasis on restorative justice and a willingness to apologise, financially compensate or undertake community service. The Department of Juvenile Justice supplies trained convenors for these conferences. Often the offender will provide an outline of what happened from their point of view. The convenor encourages the parties to come up with an outcome plan. Victims do not have to participate in these conferences - Warnings: The Young Offenders Act allows police to issue on the spot warnings to young persons for minor breaches of the law. For example, disturbance, swearing, offensive conduct. Record of warning but not the name. - Cautions: Formal record that a child has breached the law, involve more serious offences such as larceny or property damage. These are only issued if the offender admits to the offence, after having the opportunity to receive legal advice. They are quick and easy. Reduce court appearances. - Youth Justice Conferences: Childrens court and police refer this. It is for more serious penalties such as assault. It is arranged by a convenor, the offender is confronted by the victim. Aims to foster restorative justice. - Community Service and the Dept of Juv Justice: Prime focus to address their offending behaviour to help reduce the risk and likelihood of reoffending. - Provide and assessment report of suitable penalties and rehabilitation strategies. - Supervision of juvenile offenders on good behaviour bonds - Support for bail - Provision of programs specialised ones

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- Casework management Extends to finding accommodation, placement in programs, employment skills, modification of behaviour, providing assistance with personal issues and their return to school. Prime aim to keep juveniles in their community, maintain ties and relationships. Long term advantage is to provide security, and support for future. - Youth drug and alcohol court program: initiated through courts, community based and directed towards diverting offenders from further abuse. Plead guilty with history are put into programs, acceptance is based on referral from CC. An individual and holistic plan is made once accepted. After the 6 week Induction Unit stay, they are transferred to a residential rehab program intensively supervised. Help offenders deal with their issues and o provide guidance. Failure to comply means a breach of bail and return to custody. Once successfully completed they usually do not have to serve rest of control order.

3. Assess the effectiveness of the criminal justice system when dealing with young offenders. - Age of Criminal Responsibility: Criminal justice system acknowledges that dealing with young offenders is different to adults. Therefore it is understood that the age of criminal responsibility is 10, no one under 10 can be charged with a crime. This is usually extended to 14. This is seen as effective by the criminal justice system, as children need to be treated different to adults, their mind set is different. They cannot form mens rea. - Rights of children when questioned: Can only be held for questioning for a maximum of 2 hours. Only has to go to police station if arrested. They may be searched but not strip searched. Parents must be contacted before interview process. - Children's Court: Special court for children, magistrates are specially trained. It is designed to be less intimidating and less formal. It has the aim of rehabilitation. Ensures the quickest possible trail to ensure justice. Imprisonment is the last resort. Many considerations: every opportunity must be taken for the child to be heard, they must still be held accountable for their actions, education and employment should proceed without interruption, continue living in own home. - Penalties: Prison is last resort. There is the option for no conviction to be recorded and no charge to be recorded. Best suit the individual out of cautions, conferences, fines, probation orders, community service, control orders, juvenile detention. - Alternatives to Court: These are especially so that the individual does not find it hard to reintegrate back into society, criminal records harm future employment. Become chronic offenders. Diversionary programs are a good idea. Instead there are warnings, cautions, youth justice conferences, community service, youth drug and alcohol court programs. Help to address the behaviour of offenders,

Case R v. JTB 2003

Details The witness was 8 years and the court had to decide whether the child could give evidence without being sworn in. The Evidence Act 1995 states that evidence must be given under oath or affirmation, however the child did not. The Supreme Court quashed the charge and the grandfather accused of sexual assault was dismissed.

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Case R v BP & SW (2006)

Details An 11 and 12 year old gang sexually assaulted a 16 year old girl. The appeal was dismissed using the judges discretion: the children did indeed have intent and an understanding of their actions. 10 year old boy threw 6 year old boy Corey Davis into water, knowing he could not swim. Media uproar ensued. Childrens Court ruled not guilty of manslaughter due to doli incapax. DPP appealed with manslaughter, Supreme Court quickly dismissing charges. This case established the following Act: Crimes And Disorder Act 1998 (UK)- abolishing the presumption of doli incapax of those aged 10-14. Which means in England, these children over 10 will be tried very similar to an adult. Police conducted interview without presence of adult to murder suspect believing he was over 18. However he wasn't, therefore evidence gained in questioning was inadmissible in court. A statement taken by police from a minor is inadmissible in court unless an independent adult was present. 14 year old boy granted bail conditionally- reside as directed by the Department of Community Services. Accommodation was not arranged therefore he remained in custody. Child declared homeless. An application was then lodged to remove the condition that the DOCS chose his residence. This case illustrates overstretched resources result in inadequate care for young persons and their safety. Established rehabilitation as the main aim of sentencing in young offenders.

R v LMW (1999)

INTERNATIONAL LAW: Jamie Bulger Case 1993/1994

R v. CKT 1999 (NSW)

Police v. Raymond 2007

R v. GDP 1991

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Case Tapueluelu v. R 2006

Details Convicted of 2 charges of robbery carried out in early twenties. Sentenced to 8 years prison with 6 years non parole. However he appealed decision to the Criminal Court of Appeal on the grounds that his prior Childrens Court Appearance was taken into account despite the fact that he was 15 at the time and therefore no conviction is to be recorded. The court agreed and lowered the sentences and non parole period.

Law Children (Criminal Proceedings) Act 1987 (NSW)

Details A child under 10 cannot be charged with a criminal offence Police wish to question a minor than a parent or guardian must be present It is an offence to publish or broadcast the name of a minor involved in a court case. Abolished the rebuttable presumption of doli incapax for children between 10 and 14. A child over 10 will be tried as an adult. Police have the power to ask young people to move on or if they have reasonable belief they are about to commit an offence. Search rights, questioning rights, arrest rights, interview rights etc Provide alternative to court, foster restorative justice and to rehabilitate the offender. Homeless pursuant declarations etc

International Law: Crime and Disorder Act 1998 (UK)

Children (Protection and Parental Responsibility) Act 1997 (NSW)

Young Offenders Act 1997 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

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Organisations/Group Department of Corrective Services

Details Examines the security risk that each prisoner presents. Then decides their category. Deals with children and criminal behaviour, house them in centres, supply trained convenors for youth justice conferencing Children are housed here on bail, if homeless, adoption etc Diverting young offenders from further substance abuse.

The Department of Juvenile Justice

The Department of Community Services

Youth Drug and Alcohol Program

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International Crime
1. Define international crime - Categories of international crime, including: Crimes against the international community Transnational crimes International crime directly affects other countries this is due to the increasing globalisation through technology and other changes. Categories of International Crime: 1. Crimes Against the International Community 2. Transnational Crime Crimes against the international community 1. Crimes Against The International Community

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Piracy - Traditionally considered a breach of jus cogens (A preemptory norm or fundamental principle of international law) - Most useful mechanism for sanction is to allow affected states to bring pirates to justice - Under the United Nations Convention on the Law of the Sea (1982) piracy is defined as: any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: I. On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft. II. Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State. any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft. any act of inciting or of intentionally facilitating an act describes in above points. War Crimes - War crimes are serious violations of the international humanitarian law of armed conflict. - Hague Conventions (1899 and 1907)- weapons employed - Geneva Conventions of 1949- humane treatment, prisoners and wounded enemy soldiers - International Criminal Tribunal for the Former Yugoslavia in a case (Prosecutor v Dusko Tadic 1999) defined war crimes as: - Serious infringement of an international rule;breach a rule protecting important values and have grave consequences for the victim. - Violate an important principle of customary int. law or treaty - Violation under the relevant law must include individual criminal responsibility. - The Nuremberg Charter (1945) identified specific violations. - Four Geneva Conventions outline international crimes associated with conflict. - Wilful killing - Torture and inhumane treatment - Unlawful confinement - Taking hostages - Deprivation of a fair trial - The Statute of the International Criminal Court also makes sexual violence and forced pregnancy war crimes when occur during armed conflict. - War crimes may occur when there is a civil war conflict. Crimes Against Humanity - Particularly heinous offences, which are an attack on human dignity or involve grave humiliation of one or more people. - Part of systematic atrocities committed under the authority of a government or condoned by government. - Include: extermination in large scale killings or deprivation of the means of life, enslavement, deportations and forced relocations, torture, sexual violence, persecution against certain groups (racial, political, ethnic, cultural, religious, gender etc). - CASE LAW: Prosecutor v. Tihomir Blaskic (2000) Evidence can be indirect (speeches of leaders, media propaganda) or direct (large scale violence) Genocide - Following WW2, genocide was used to describe the criminal conduct of offenders but was not describes as a separate crime. - United Nations Convention on Genocide (1948) criminalise genocide and punish offenders within domestic legal systems.

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- Defined as being the persecution of national, ethnic, racial, and religious groups, though these groups are not themselves defined. - Under Convention: - killing members of a group - causing serious bodily or mental harm - deliberately conflicting conditions of life, calculated to destroy the group - preventing births - forcibly transferring children - Governments have a duty to ensure that their armies or other groups under their control do not commit genocide. - Weaknesses of Convention on Genocide: - Does not include cultural genocide or destruction on political grounds - Defining what a group is Aggression and Crimes Against Peace - By individuals were first made an offence by the London Agreement (1945) (Nazi and Japanese leaders) - Since 1949, no international trials for alleged crimes of aggression - 1974: UN General Assembly defined this crime as being of international responsibility. - Although UN Charter grants the right to self defence if an armed attack occurs, it is open to interpretation. Terrorism - Cases in many jurisdictions leading the development of anti terror laws at a national level as well as international laws that help to give a clearer notion of what terrorism is. - International Convention for the Suppression of Acts of Nuclear Terrorism (2005) - International Convention for the Suppression of the Financing of Terrorism (1999) - International Convention for the Suppression of Terrorist Bombings (1997) - International Convention against the Taking of Hostages (1979) - Intention to compel to do or not do certain acts by terrorising or intimidating the states population. - Comprehensive Convention on International Terrorism, tabled in 1996 and still being negotiated. - Al-Qaeda operates across national boundaries. Transnational crimes 2. Transnational Crime Are crimes that take place across the borders of states or involve crossing borders in some way as part of the criminal activity. Consequences in other countries also. Organised Crime - Any group having some manner of a formalised structure and whose primary objective is to obtain money through illegal activities. - Makes use of violence and corruption in order to maintain its criminal networks. - United Nations Convention Against Transnational Organised Crime (2000) requires signatory countries to commit themselves to take measures against transnational organised crime: - participation

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- money laundering - corruption - obstructing justice - Improve extradition procedures, mutual legal assistance and promote training and technical assistance. People Smuggling - Organising of illegal entry into a state of people who are not permanent residents or citizens of that state. - Economic instability is the main cause of people seeking to use the services of people smugglers. - Convention against Transnational Organised Crime (2000) includes the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Requires states to take action to prevent and combat trafficking of people. Required to punish traffickers and protect victims, human rights. States are requires to assist each other to carry out these objectives. - International Convention on Slavery (1926) introduced by the League of Nations forbids trafficking in children. Convention on the Rights of the Child - Lost their lives, dying horrifying deaths. - Increased levels of surveillance and improved technology have caused people to rely on criminal organisations to smuggle them. Conditions cause suffocation, watery deaths. Arms Trafficking - Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (2001) - Purpose of protocol is to promote and facilitate cooperation among states in order to prevent and eradicate the illicit manufacture of firearms, their components and ammunition. Domestic laws are to be passed. - UN 2008 147 countries voting in favour of an Arms Trade Treaty. Drug Trafficking - Single Convention on Narcotic Drugs (1961), amended 1972. Controls cultivated drugs - Convention on Psychotropic Substances (1971) Controls synthetic hallucinogenic drugs - Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). Specially directed at trafficking. - Supervised by the International Narcotics Control Board and the United Nations Office on Drugs and Crime. - Countries must submit reports to these boards - Promote international cooperation in order to end the trade of illicit drugs. Responsibility to end trafficking and manufacture is placed in domestic governments. - Requirement to criminalise the illegal manufacture and trafficking in such drugs and measures to control their import and export. - Limit quantities of drugs that may be produced and sold legally for medical or scientific purposes. - Hard to monitor and control, so widespread. Legislation and government is limited in control.

2. Describe the various measures use to deal with international crime - Dealing with international crime: Domestic Measures Limitations Domestic Measures & Limitations Australian Assistance with Foreign Jurisdictions in Criminal Matters

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- Mutual Assistance in Criminal Matters Act 1987 (Cwlth) regulates assistance to foreign countries in criminal matters - Restrictions to what types of crimes Australia will and will no cooperate in - The Attorney General will refuse assistance in regards to: - political offence - purpose if discriminatory - request would prejudice Australian sovereignty/national security - offence is not recognised by Australian law - If a conviction may result in death penalty, Australia will not assist. Only under special circumstances - The Act also facilitates international assistance by Australia when a foreign country makes a request for a person to travel to a foreign country to give evidence or assistance in an investigation. - Attorney General can make requests to foreign countries for assistance. Requesting documents, articles and evidence for criminal investigation. Video link requests may be required for examination. - Legislation have been enacted to combat international crimes within Australias jurisdiction. Principle of complementarity, used to make laws that more accurately reflect international law. Piracy and other Crimes At Sea - Dealt with under the Crimes Act 1914 Cwlth, punishable by life imprisonment - Piracy: any act of violence, detention or depredation committed on the high seas by the crew or passengers of a ship or aircraft against another. - Must be on High Seas or Australian Territorial Waters - It is offence to operate a pirate controlled ship or aircraft. If police have reasonable belief of this, they may seize the ship or aircraft - Crimes (Ships and FIxed Platforms) Act 1992 Cwlth, offences of seizing ships, destroying and damaging ships, placing destructive devices on ships, destroying navigational facilities, giving false information, causing death or injury, threatening to endanger. - If a person has been convicted of the offence under a foreign law they are not liable under the Act. The law applies to international voyages, or to the territorial waters of one of the signatory states to the Convention for the Suppression of Unlawful Acts Against the Safety Maritime Navigation 1988. - Crimes at Sea Act 2000 (Cwlth) applies to state criminal laws considerably beyond Australias territorial waters War Crimes - War Crimes Act 1945- passed due to WW2 War crimes - Act applies to the occupation of territory arising out of the war and occupation by the Soviet Union of Latvia, Lithuania and Estonia in 1939. - War crime: serious offence carried out during warlike hostilities. Murder, manslaughter, causing grievous bodily harm, wounding, rape, indecent assault, abduction. - Wilful killing = life imprisonment, other offences = max 25 years - Only Australian citizens may be prosecuted, extradition may be sought by foreign governments. Not a defence to war crime that the act was committed under the orders of a superior. Though it may be used to determine sentence. - Polyukhovich v Commonwealth 1991 Crimes Against Humanity, Genocide, Torture - Criminal Code 1995 Cwlth, makes these offences - International Criminal Court Act 2002 Cwlth does not over ride Australias exercising of jurisdiction over offences created by the Criminal Code. - Genocide: killing of one or more people belonging to a particular national, ethnic, racial or religious group, perpetrator attempts to destroy that group. Also serious bodily harm, mental harm, birth prevention and the forced transfer of kids are also genocide.

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- Max penalty = life - Torture also covered under the Crimes (Torture) Act 1988 (Cwlth), which gives effect to the UN Convention on Torture (1984). -Other offences include: widespread murder, mass killings, transfer of populations, deprivation of liberty, torture, rape, sterilisation, forced pregnancy. Aggression and Crimes Against Peace No specific Australian laws concerning crimes against peace exist as of yet. Terrorism - Criminal Code 1995 Cwlth gives effect to the International Convention for the Suppression of Terrorist Bombings 1997. - Delivering, placing, discharging or detonating bombs are all offences. - Control Order made by police to court, to protect public, Court must decide restrictions such as tracking, demand the stop to association. - Many offences, burden of proof is on the defence. Sufficient in many cases to establish recklessness as the minimum mens rea. - Jurisdiction: act carried out in Australia, person is Australian citizen and the conduct takes place in another country, also where an Australian facility is attacked or if offence is carried out against Australians. - Convention on the Making of Plastic Explosives for the Purpose of Detection (1991)- detects and is also implemented in the Criminal Code. - Strict liability offences quite often. Money Laundering - Anti Money Laundering and Counter Terrorism Financing Act 2006 Cwlth. Purpose is to assist in tracing transfers of funds involved in criminal enterprises, including the financing of terrorism. - AUSTRAC record such transactions - People moving physical currency are required to declare this as they pass through customs. Terrorist operatives are not likely to declare currency. People Smuggling - Criminal Code 1995, organising and facilitating the entry of people into a foreign country in a manner that does not comply with that countrys laws is an offence. - The person smuggled cannot be a citizen or resident of that country - Within jurisdiction of Australian courts if they are carried out by a Australian citizen or resident, whether inside or outside of Australia. - Aggravated offence of people smuggling and exploitation. Subjected to: cruel, inhumane and degrading treatment, danger of death, serious harm, sexual slavery, slavery, exploitation, forced labour, threats of force, deportation Arms Trafficking - 2002 Australian Police Ministers Council (APMC), police ministers decided that under the National Firearm Trafficking Policy Agreement all states make further provisions to control illegal gun trade in Australia, improving border protection. - 2002 Criminal Code amended to deal with firearms - Weapons cannot enter without a licence - NSW moved to ban wide range of weapons and very heavy penalties to apply. Drug Trafficking - Crimes (Traffic in Narcotics and Psychotropic substances) Act 1990 deals with drugs on Australian aircraft and ships and conspiracies to act in Australia. - It also includes dealing with drugs outside Australia: cultivation, manufacture, preparation.

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- This Act is Australias response to the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988. International measures Limitations International Measures & Limitations International Criminal Tribunals - First successful attempts to set up international courts occurred after WW2 when Nazis and Japanese were tried for war crimes. - US pressed for fair trials- keep a record of the atrocities, to contrast the barbarity the offenders committed and also to ensure non german courts do not punish offenders. - High ranking civilians, military officials were punished. New standards of responsibility were established that eliminated the defence of I was just following orders. - Commanders were responsible for the actions of their soldiers. - Collapse of Yugoslavia led to genocide and crimes against humanity. - Rwanda- genocide of the Tutsi tribe by the Hutu Tribe. - These events prompted the UN Security Council to establish the International Criminal Tribunal for the Former Yugoslavia and for Rwanda. - They deal with high profile cases, due to the number of perpetrators and the impossibility of bringing about justice in a timely manner, their are questions of the effectiveness. International Criminal Court - Atrocities of Yugoslavia and Rwanda emphasised to the international community, the need for a permanent International Criminal Court. Controversy ensued. - Australia on one hand wanted a court with automatic jurisdiction over war crimes, genocide, crimes against humanity and also crimes of aggression. Including crimes committed during internal conflict. Also felt that the prosecutor be able to begin proceedings independently. China, USA and Russia did not agree due to their breaches of these guidelines. - Countries are increasingly accepting the need for such an institution. A total of 109 states have ratified the statue, with another 30 or more expected to do so soon. - The court is symbolically important, it is permanent, it can try any military or political leader to the highest level. Its jurisdiction is universal and is has an independent capacity to prosecute. 3. Evaluate the effectiveness of the domestic and international legal systems in dealing with international crime - Domestic Measures: responses to international crime are limited by jurisdiction. Australian law enforcement cannot operate in a foreign country. Australian courts do not have jurisdiction over crimes committed under foreign laws and Australian parliaments cannot legislate on the laws of other countries. It is therefore reliant on the cooperation from foreign countries. Examples: Drug trafficking. Schapelle Corby was found guilty of drug trafficking in Indonesia in 2005. The Australian Government was criticised for not pushing for her trial and subsequent imprisonment to take place in Australia. The Prime Minister, John Howard was limited by Australias jurisdiction. - International Measures: International Tribunals: Very reactive, for example, were made in response to the Yugoslavia and Rwanda atrocities. The effectiveness has suffered from the arrest of vast numbers of perpetrators and the impossibility of bringing justice in a timely manner. International Criminal Court: Great moral authority, has universal jurisdiction, it is symbolically important, it is permanent, it can try military or political leaders to the highest level. It also has an independent capacity to prosecute. Seen as very effective in dealing with international crime, however progress can be slow. However some countries such as China and USA objected to crimes occurring during internal conflict to be punishable. These countries both internally and externally have had to deal with a wide range of military conflicts. This is the ineffectiveness.

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Case Prosecutor v. Dusko Tadic 1999

Details The International Criminal Tribunal for the Former Yugoslavia- this case defined war crime as having the following: - Serious infringement of an international rule;breach a rule protecting important values and have grave consequences for the victim. - Violate an important principle of customary int. law or treaty - Violation under the relevant law must include individual criminal responsibility. Heard in the International Criminal Tribunal for the Former Yugoslavia. Court defined crimes against humanity as being both systematic and widespread; - political objective of destroying a community - commission of inhumane acts on a large scale - involvement high-level or political military authorities - development of a plan involving the expenditure of significant resources. Evidence can be indirect (speeches of leaders, media propaganda) or direct (large scale violence) Court held that there was individual as well as state responsibility for the crime of genocide and to refrain from carrying it out. Governments have a duty to ensure that their armies or other groups under their control do not commit genocide. Charged with war crimes that had been committed in Nazi occupied Ukraine WW2. After the war, he came to Australia and became a citizen. When charged, he sought a declaration that the War Crimes Act 1945 was beyond the power of the Commonwealths external affairs power. High Court held that the Act was within the external affairs power, no need to be any recognisable connection between Polyukhovich and Australia at the time the crimes was carried out. Justice said Act required some connection with Aust and the case did not have this connection.

Prosecutor v. Tihomir Blaskic 2000

Bosnia and Herzegovina v. Serbia and Montenegro 2007

Polyukhovich v Commonwealth 1991

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Law United Nations Convention on the Law of the Sea (1982)

Details Defines piracy as: any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: I. On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft. II. Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State. any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft. any act of inciting or of intentionally facilitating an act describes in above points. International humanitarian law, warfare- what is lawful in waging war. Humane treatment of civilians, prisoners and wounded enemy soldiers. Identified specific violations as war crimes: Makes sexual violence and forced pregnancy war crimes during times of armed conflict. Criminalise genocide and punish offenders within domestic legal systems. Specific conduct constituting genocide is stated here. Aggression and crimes against peace by individuals were first made an offence

Hague Conventions (1899 and 1907)

Geneva Conventions 1949

The Nuremberg Charter 1945 Statute of the International Criminal Court

United Nations Convention on Genocide 1948

London Agreement 1945

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Law UN Charter International Convention for the Suppression of Acts of Nuclear Terrorism (2005) International Convention for the Suppression of the Financing of Terrorism (1999) International Convention for the Suppression of Terrorist Bombings (1997) International Convention against the Taking of Hostages (1979) United Nations Convention Against Transnational Organised Crime 2000

Details Grants right to self defence if an armed attack occurs International law governing terrorism

Requires signatory countries to commit themselves to take measures against transnational organised crime Includes the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children. Offenders must be punished and victims to be protected.

International Convention on Slavery 1926 The Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition 2001

Deals also with people trafficking Right of states to individual and collective self defence as under the UN Charter and the right to self determination. Promote and facilitate cooperation among states in order to prevent and eradicate illicit firearms. Domestic laws must be passed. Amended 1972, controls cultivated drugs Controls synthetic hallucinogenic drugs

Single Convention on Narcotic Drugs 1961 Convention on Psychotropic Substances 1971

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Law Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 Mutual Assistance in Criminal Matters Act 1987 (Cwlth) Crimes Act 1914 (Cwlth) Crimes (Ships and Fixed Platforms) Act 1992 Cwlth

Details Specifically against trafficking

Regulates assistance to foreign countries in criminal matters. Restrictions on types of crimes. Deals with piracy Offences of seizing ships, destroying and damaging ships, placing destructive devices on ships, destroying navigational facilities, false information, causing death and injury, threatening Applies state criminal laws considerably beyond Australias territorial waters. Defines war crimes as a serious offence during warlike hostilities Genocide and crimes against humanity and torture are offences. Terrorist activity is an offence Asserts the power of the ICC Gave rise to the Crimes (Torture) Act 1988 Cwlth

Crimes at Sea Act 2000 Cwlth

War Crimes Act 1945 Cwlth

Criminal Code 1995 Cwlth

International Criminal Court Act 2002 Cwlth UN Convention on Torture 1984 Crimes (Torture) Act 1988 Cwlth The Convention on the Marking of Plastic Explosives for the Purpose of Detection 1991 Anti- Money Laundering and CounterTerrorism Financing Act 2006 Cwlth Crimes (Traffic in Narcotics Psychotropic substances) Act 1990 and

Makes explosives detectable

Offences relating to money laundering in Australia

Creates offences with dealing with drugs in aircrafts and ships and also conspiracies.

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Law Doctrine of Command Responsibility

Details Commanders were responsible for the actions of their soldiers.

Organisations/Groups International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for the Former Rwanda International Criminal Court Established international tribunal

Permanent court, universal jurisdiction, trial people to the highest power. Addresses issues if international concern. ` Drug trafficking conventions are supervised by these bodies

UN General Assembly International Narcotics Control Board (INCB) and the United Nations Office on Drugs and Crime (UNODC) Australian Federal Police

May ask courts for a control order to be granted in relation to terrorism. Maintains records of money transactions that involve criminal activity Discuss firearms in Australia and improving their detection and ban.

AUSTRAC

Australian Police Ministers Council

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Crime TABLE SUMMARY

Topic Legislation Cases Media International Instruments and Documents

Meaning of Crime An act or omission of duty resulting in harm to society and that is punishable by the state. Elements of a crime Men rea: - intention - recklessness - criminal negligence Actus reus Causation DPP v Morgan 1975 Guilty of gang raping an army officers wife. Any reasonable person would know she was not giving consent. R v Thomas Sam, R v Manju Sam 2009 Conviction of manslaughter on the grounds that the failure of Thomas & Manju Sam to obtain medical care for their daughter, was criminally negligent. R v Blaue 1975 Stabbed women, managed to get to hospital but required blood to live. She refused due to religion. She died. Blaue argued no causation but on appeal it was found his actions caused her death Strict Liability

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Topic

Legislation

Cases

Media

International Instruments and Documents

Offences Against the Person Homicide - Murder - Manslaughter (3) Voluntary Involuntary Constructive - Infanticide - Death by Reckless Assault Sexual Assault

Crimes Act 1900 Crimes Amendment (Aggravated Sexual Assault In Company) Act 2001

Boughey v The Queen 1986 Murder: reckless indifference to human life, wife died whilst being choked during a sexual act. DDP v Newbury & Jones 1977 Involuntary Manslaughter: pushed a stone off a railway bridge and caused death of train guard below. Ian Gray Case Constructive Manslaughter Barton v Armstrong 1975 Duress R v AEM and R v MM (2002). 3 males were convicted over sexual assault of two 16 year old girls at knife point. Sentenced 6 years. Publics outcry about leniency. The law was reformed in the area of gang rapes Crimes Amendment (Aggravated Sexual Assault In Company) Act 2001 was passed. Crime now punishable by life in prison. This was an amendment of the Crimes Act 1900 (NSW) which previously held 14 years as the maximum.

Drove the push for gang rape law reforms

Driving

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Topic

Legislation

Cases

Media

International Instruments and Documents

Offences against the Sovereign Sedition Treason Economic Offences Crimes against property - Larceny or Theft - Breaking and Entering - Robbery White Collar Crimes - Tax Evasion - Insider Trading - Computer Crimes Drug Offences

Anti Terrorism Act 2004

R V Sharkey 1949 Charged with attempting to incite the overthrow of the government. R v Potisk 1973 Bank teller accidently gave him too much money, charged with larceny. But found not guilty. ACC v Wheatley 2007 Avoiding tax payments

Crimes Act 1900 Income Tax Assessment Act 1997 Cwlth Copyright Act 1968 Cwlth

Road Transport (Safety and Traffic Management) Act 1999 NSW

Driving Offences Public Order Offences Preliminary Offences Attempts Conspiracy Summary and Indictable offences Parties to a crime - Principal in the first degree - Principle in the second degree - Accessory before the fact - Accessory after the fact Summary Offences Act 1988 NSW

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Legislation

Cases

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International Instruments and Documents

Factors affecting criminal behaviour - Economic - Genetic - Political - Self Interest and Greed Situational and Social Crime Prevention Powers of Police Criminal Process Law Enforcement (Powers and Responsibility) Act 2002 NSW Amendment Search Powers in 2009 Police Powers (Drug Detection Dogs) Act 2001 NSW Police Force Code of Conduct Crimes Forensic Procedures Act 2002 NSW- gene technology to determine presence at crime scene. Bail Act 1978 NSW Dietrich V The Queen 1992 There is no automatic right to representation in Australia, however one does have a right to a fair trial. Found guilty without representation of drug charges. R V Young 2006 Presumption against bail due to murder by reckless driving. However, argued that it can be granted in exceptional circumstances. Granted bail, good job, good family, community ties. Crime Stoppers Neighbourhood Watch

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Legislation

Cases

Media

International Instruments and Documents

Court Jurisdiction

Local Court Act 1982 NSW The Drug Court Act 1998 NSW District Court Act 1973 NSW Crimes (Appeal and Review) Act 2001

Saffron v DPP 1989 Case should never have gone to trial as there was insufficient evidence to form a prima facie case.

Adversary System Legal Representation Pleas, Charges Negotiation Burden and Standard of Proof Use of evidence Witnesses Evidence Act 1995 NSW

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Cases

Media

International Instruments and Documents

Complete Defences - mental illness - self defence - compulsion (necessity, duress) - Consent

Mental Illness R v Porter 1936 Father poisoned child due to depression of separation. US v Holmes Man threw 8 people overboard in order to save many people. R v Dudley and Stephen 1884 One of 4 men stranded was killed and eaten for survival. Claimed compulsion, necessity. Penalty later reduced from murder.

Partial Defences - Provocation - Substantial Impairment of responsibility

R v Camplin 1978 Boy hit uncle with frying pan and killed him. Uncle previously sexually assaulted him. Court upheld provocation R v Byrne 1960 sexual psychopath led Byrne to homicide. Charged reduced to manslaughter.

Jury

The Jury Act 1977 NSW

2005, NSW Attorney General announced that verdicts will be allowed 11-1, in the hopes of reducing the number of hung juries.

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Cases

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International Instruments and Documents

Sentence

Crimes (Sentencing Procedure) Act 1999 is the primary source of sentencing The Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 NSW Law Reform: mandatory sentencing introduced in NT and WA. R v Jurisic 1998 Initially R was sentenced 18 months detention for driving causing grievous bodily harm. On appeal, the sentence was increased to 2 years prison. This case established sentencing guidelines for Judges. Justice Spigelman stated it was to structure discretion. Trying to ensure consistency.

Statutory and Judicial Guidelines

Purpose of punishment - Deterrence (specific and general) - Retribution - Rehabilitation - Incapacitation Aggravating and Mitigating Circumstances

Crimes (Sentencing and Procedures) Act 1999 NSW

Crimes (Sentencing and Procedures) Act 1999 NSW (sets out these circumstances in detail)

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Cases

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International Instruments and Documents

Role of Victim in Sentencing Victim Impact Statement

R v Slack 2004 Charged with sexually assaulting his daughters friend. VIS read out before sentencing. Judge stated this is only one factor in sentencing and cannot be heavily weighed on

Appeals

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International Instruments and Documents

Types of Penalties - No conviction recorded and good behaviour bond - Probation - Caution - Criminal Infringement notice - Fines and Penalties - Community Service Order - Suspended Sentence - Home Detention - Periodic Detention - Imprisonment - Diversionary Programs Diversionary programs aim to rehabilitate the offender by making it a requirement of their sentence that they undertake a specific program such as a treatment for drug or alcohol addiction.##Youth Justice Conferences aim to divert young offenders from the courts, as do conferences offered to young adult offenders for minor, nonviolent, offences.##Pre-trial Diversion of Offenders Program (Child Sexual Assault) is offered at Cedar Cottage.

Crimes (Sentencing and Procedures) Act 1999 NSW Suspended Sentences May 2010 on referral from the NSW Attorney General, the NSW Sentencing Council is undertaking a review of suspended sentences with a view to possible law reform. It was intended that the reintroduction of suspended sentences as a sentencing option in NSW in 2000 would lead to fewer custodial sentences being imposed. Research undertaken by the NSW Bureau of Crime Statistics and Research (BOSCAR) has indicated, for example, that since 2000, Community service orders are used less frequently in Local Courts. It would appear that in some cases, judges and magistrates may have given a suspended sentence in circumstances where a custodial sentence would not have been imposed had suspended sentences not been available as an alternative.

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International Instruments and Documents

Alternative Methods Sentencing - Restorative Justice - Circle Sentencing

Studies show a 15-20& reduction in re offending possible. 2008: Bureau of Statistics stated that usually reoffend within 15 months of their circle. 2010: Proven effective in NSW, more than 500 circle sentences in past 5 years.

Post sentencing Considerations - Security Classification - Protective Custody - Parole - Preventative Detention and Continued Detention - Sexual Offenders Registration - Deportation

Crimes (Administration of Sentences) Act 1999 NSW prisoners who feel in danger are placed in protective custody. Dangerous Prisoners (Sexual Offenders) Act 2003 QLD Crimes (Serious Sex Offenders) Act 2006 NSW allows supreme court to order continued detention Child Protection (offenders registration) Act 2000 NSW Migration Act 1958 Cwlth

Fardon v Attorney General QLD 2004 Use legislation to detain prisoner who was seen as a threat to society. Supreme Court upheld, High Court upheld also. Kable v DPP (1996) High court struck down attempt to keep prisoner is gaol (threatening letter sent to victims family).

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International Instruments and Documents Jamie Bulger case 1993 Crimes and Disorder Ant 1998 (UK) all children over 10 will be charged as an adult.

Age of Criminal Responsibility - under 10 (no intention) - between 10 and 14 there is a presumption of no intention (prosecution must prove between these ages)

Children (Criminal proceedings) Act 1987 NSW

R v BP and Sw 2006 11 and 12 year old sexually assaulted a 16 year old. Dismissed using judges discretion (children did not have an understanding of their actions) R v LMW 1999 10 year old boy threw a 6 year old boy Corey Davis into river knowing he could not swim. Media uproar. Childrens Court ruled not guilty of manslaughter due to doli incapax DDP appealed with manslaughter but supreme court quickly dismissed.

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Cases

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International Instruments and Documents

Question and Arrested - 2 hour interview maximum - Only be questioned with a guardian present - Not strip searched

Children (Protection and Parental Responsibility) Act 1997 NSW police can ask them to move on Law Enforcement (Powers and Responsibility) Act 1997 NSW police can demand name and address Young Offenders Act 1997 NSW parents are to be contacted Children (Criminal Proceedings) Act 1987 NSW parent present, statements without parents are inadmissible in court

R v CKT 1999 Police conducted interview without presence of adult to murder suspect believing he was 18. He wasnt therefore any evidence gathered could not be used in court.

Childrens Court - special magistrates

Bail Act 1987 NSW (2008 amendments) Children (Criminal Proceedings) Act 1987 NSW it is an offence to publish the name of the young offender

Police V raymond 2007 14 year old boy granted bail conditionally- reside as directed by DOCS. Accommodation was not arranged and he remained in custody. Child was declared homeless. Case illustrates over stretched resourced resulting in inadequate care of young.

CROC best interests of the child

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International Instruments and Documents

Penalties

Crimes Act 1900 NSW on the spot fines in 2007

Over crowding in JJC ABS: NSW 4 x more likely to be imprisoned than in VIC 68% reoffend within 12 months R v GDP 1991 established rehabilitation as the main aim with children punishment

Alternatives to Court - rehabilitation - youth justice conferencing - Youth Drug and alcohol court program

Young Offenders Act 1997 NSW

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Cases

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International Instruments and Documents Piracy: United Nations Convention on the Law of the Sea 1982 War crimes: Hague Conventions 1899 and 1907 (weapons employed) Geneva Conventions 1949 (humane treatment of prisoners) Nuremberg Charter 1945 Statute of the international Criminal Court Genocide United Nations Convention on Genocide 1948 Terrorism International Convention for the Suppression of Acts of Nuclear Terrorism (2005) International Convention for the Suppression of the Financing of Terrorism (1999) International Convention for the Suppression of Terrorist Bombings (1997) International Convention against the Taking of Hostages (1979)

Crimes Against the International Community - Piracy - War Crimes - Crimes Against humanity - Genocide - Aggression and Crimes against peace - terrorism

War Crimes Prosecutor v Dusko Tadic 1999 defined war crimes as serious infringement breaching important values Crimes against humanity Prosecutor v Tihomir Blaskic 2000 Evidence can be direct or indirect (speeches)

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Legislation

Cases

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International Instruments and Documents United Nations Convention Against Transnational Organised Crime 2000 (countries are to commit to taking measures against organised crime) People - Protocol to prevent, suppress and punish trafficking in persons, especially women and children - International convention on slavery 1926 - Convention on the rights of the child Arms Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition 2001 Drugs - Single Convention on Narcotic Drugs 1961 - Convention on Psychotropic Substances 1971 - Convention against the Illicit traffic on narcotic drugs and psychotropic substances 1988

Transnational Crimes - People smuggling - Money Laundering - Arms Trafficking - Drug Trafficking

In 2008, 147 countries voted in favour of an Arms Trade Treaty.

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International Instruments and Documents

Dealing with International Crime DOMESTIC MEASURES

Mutual Assistance in Criminal Matters Act 1987 Cwlth Crimes Act 1914 Cwlth deals with piracy and crimes at sea and is punishable by life in prison. Crimes (Ships and Fixed Platforms) Act 1992 Cwlth Crimes At Sea Act 2000 Cwlth War Crimes Act 1945 International Criminal Court Act 2002 Crimes (Torture) Act 1988 gives effect to the UN Convention on Torture Criminal Code 1995 Cwlth gives effect to terrorism conventions. Anti Money Laundering and Counter Terrorism Financing Act 2006

Polyukhovich v Commonwealth 1991 Charged with war crimes that had been committed in Nazi occupied Ukraine WW2. he came to Aust and became a citizen. When charged he sought that the War Crimes Act 1945 was beyond the power of the Commonwealths external affairs power. High court held that it did hold power. However case did not have connection between country and case.

2002 Australian Police Ministers Council- all states make futher provisions to control illegal gun trade in Aus.

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International Instruments and Documents International Criminal Tribunals - yugoslavia - rwanda International Criminal Court - need a permanent international court - 109 states have ratified - important, it is permanent, try military and political leaders to the highest level, jurisdiction is universal and independent capacity to prosecute.

Dealing with International Crime INTERNATIONAL MEASURES

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