The nature of crime

An act or omission committed against the community at large that is punishable by the state, e.g; when a person commits a murder or even a minor offence such as speeding.

Elements of crime
Actus Reus: Mens Rea:

(make sure that you understand that these elements are considered together in combination, but you dont need to prove all of them to get someone criminally convicted - causation is however essential) A Latin term, which means the guilty act. Actus Reus means that there must be an action or physical movement. A Latin term meaning guilty mind, which means that the accused intended to commit the crime knowing their actions were wrong.

Causation:

The link between the behaviour of the accused and the result Type of offence Examples Offences against the Homicide, sexual assault, assault person Offences against the Sedition, treason sovereign Economic offences Computer offences, white collar crimes Drug offences Possession, trafficking Driving offences Drink driving, speeding Public order offences Bomb hoaxes, affray Preliminary offences Conspiracy, attempts Regulatory offences Breach of water restrictions

Strict liability offences:

An offence where the Mens Rea does not need to be proved

Categories of crime
Offences against the person
Homicide: Murder:
The act of killing a human being The deliberate killing of a person (that has been both planned and acted upon).

Manslaughter:
The killing of a person in a way that is supposed to be less than the way of murder (rephrase this: - the killing of a person but has been judged to be unintentional and therefore an accident).

Voluntary manslaughter:

The killing of a person where the accused did intend or was reckless

Mitigating circumstances:
Conditions that may be considered by a court when determining guilt or innocence of the defendant (such as coercion, insanity)

Provocation:

A defense where the accused claims that the actions of another person caused them to temporarily lose control (is it a partial or full defense)?

Involuntary manslaughter:

The killing of a person where the death occurred because the accused acted in a negligent way without intention to kill (how does this make it involuntary?)

Assault:

Causing physical harm to cause physical harm to another person

Common assault:

Threatening to cause physical harm to another person (how is the different to the other forms of assault?)

Aggravated assault: Sexual assault:

The assault of a person with an object (how is the different to the other forms of assault?) When someone is forced into sexual intercourse against their will (how is the different to rape?)

Indecent assault:

An assault in the presence of another person without their consent

Aggravated sexual assault in company:

Sexual assault performed with another person present together with Offence Year 2006 2007 2008 Sexual assault 4028 4182 4190 Act of indecency 3507 3411 3404 Other sexual 1893 1792 1819 offences aggravating circumstances What do the various categories/definitions of assault show us about this type of crime?

Number of reported cases of sexual assault in NSW

Summary and indictable offences

Summary offence A less serious offence that is tried by a magistrate in the Local court The judgment and punishment are determined by a magistrate The charge is usually laid by a police officer or government officer The punishment is usually less severe; such as a fine Indictable offence Serious offence Judgment is determined by a jury The charge is brought by a public prosecutor working for the state The punishment will usually result in imprisonment

Parties to a crime
Principal in the first degree; - who is this? What does this mean? Principal in the second degree; - who is this? What does this mean? Why would a court be interested and therefore consider the different parties to or in a crime? Consider the elements of a crime?

Factors affecting criminal behaviour

Psychological factors:
Are often relevant to the commission of an offence, with many forms of mental illness affecting a persons behaviour. These factors will often be important during the criminal process, as early as the time of arrest. Why is court interested in these? Wont a person still be punished? Think about full and partial defenses?

Social factors:

Influence a persons attitude towards crime may include their family situation or personal relationships. The social groups that people associate with will often influence a persons attitude and views towards something. Why is court interested in these? Wont a person still be punished? Think about full and partial defenses?

Economic factors:

Present one of the most substantial reasons for the committing of crimes in NSW. People from disadvantaged backgrounds are more likely to commit crimes and front Australian courts than any other group. Why is court interested in these? Wont a person still be punished? Think about full and partial defenses?

Political factors:

Influence criminal behaviour such as riots which may have been politically motivated, terrorism related offences are some of the most extreme political offences are some of the most extreme political offences. Why is court interested in these? Wont a person still be punished? Think about full and partial defenses?

Crime prevention: situational and social

(think about it can people be stopped from committing a crime? Or are we trying to reduce the chances/opportunities for people to do them?) Situational crime prevention: why is important or relevant to consider and look at the situation in which a crime has been committed? - Planning and architectural design focuses upon the influence of physical environments upon crime. - Focused approaches rest on rational choice theory which views offenders as actors who weigh up potential gains, risks and costs. Social crime prevention: why is important or relevant to consider and look at the role or effect of society on which a crime has been committed? These factors may include; - Poor home environment and parenting - Poor school attendance - Social and economic disadvantage - Early contact with the police and other authorities

Police powers

(is this a deceptive title? Dont most everyday people believe that the police punish criminals by putting them in jail? Why are these powers listed in this order? Do they have an order of importance? Is this a relevant step-bystep way in which they are done?)

Investigate: Arrest:

Means carrying out research to discover evidence and examine the facts surrounding an alleged criminal incident To seize a person by legal authority and take them into custody

Interrogate:

To formally question a suspect in relation to an alleged crime

Evidence:

Information used to support facts in a legal investigation

Search and seizure:

The power to search a person or their possessions and seize and detain items that are discovered

Reporting crime
Citizens have an important role to play in the criminal justice system by reporting crime. Community programs have been established to encourage the public to report information about criminal activity. In 2009, NSW Crime Stoppers alone reported receiving 47 247 contacts from the public, resulting in 298 people arrested and 1376 charges laid. It is estimated that up to 85 percent of sexual assaults in Australia are not reported. Are there any issues/concerns/problems when reporting crimes? Such as some or MANY crimes go unreported?

Investigating crime
Gathering evidence:
- Charge ; Formal accusation of a person of committing a criminal offence - In Situ ; Latin term meaning in the place which is used to describe the place in which a piece of evidence is found or situated

Use of technology:

DNA evidence Is an important advance in technology that has been particularly helpful in gaining some difficult convictions in both current and cold cases

Use of warrants:

A warrant is a legal document issued by a magistrate or judge which authorizes a police officer to perform a particular act, for example make an arrest, conduct a search, use a phone tap or seize property. In New South Wales, certain searches cannot be done without a valid warrant. For example: In New South Wales police can use sniffer dogs without a warrant to search for illegal drugs at pubs or clubs, on public transport or even at certain public events (Dance parties, under 18s) Why is essential to conduct these activities when investigating a crime?

Arrest, detention and charge

Arrest: is there any difference between this and detention?

The police are not allowed to detain a person unless they have good reason to do so

- Catching a suspect committing an offence - Believing on reasonable grounds that a suspect has committed or is about to commit an offence - Possessing a warrant for that persons arrest - Where that person has committed a serious indictable offence for which they have not been tried

Detention and interrogation: is there any difference between

this and arresting someone? Interrogation ; The act of questioning a suspect by the investigating officers Caution ; A statement issued by police to a suspect when they are detained to inform them of their rights

Release or charge:

At the end of the maximum detention period, the police must either charge the suspect with a specific offence or release them unconditionally

Summons, bail or remand

Summons: Bail:
A legal document that states when and where a person must appear in court and if they are accused The temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgment of a sum of money as a guarantee why would this be available to one person and not another?

Surety:

In bail, where another person agrees to provide financial guarantee that the accused will return to the court for trial in exchange for the accuseds temporary release

Remand:

A period spent in custody awaiting trial at a later date

Criminal trial process

Appeal:
An application to have a higher court review a decision of a lower court (when and why would this happen?)

Court hierarchy:

The system of courts within a jurisdiction, from lower courts to intermediate

and higher courts (what are the different courts called and their roles in this hierarchy?)

Original jurisdiction:

The authority for a court to hear a matter for the first time

Appellate jurisdiction: The authority for a court to review matters on appeal from another court

Lower courts ;
Committal proceedings: Magistrate:
A judicial officer in the local court (how is this person different/similar Where a magistrate determines if there is enough evidence for a case to proceed to trial in a higher court

to a judge?) Coroner:

A judicial officer appointed to investigate deaths in unusual circumstances (what could this be? Accidental death)

Coronial inquest:

A court hearing conducted by a coroner to help determine the manner and cause of death

Childrens court ;
The childrens court of NSW was established in 1987 under the Childrens court act 1987 (NSW) The childrens court is a specialized court that deals with matters relating to the care and protection of children and young people as well as criminal matters (why has this court be created? Doesnt this show an attempt by the Criminal Justice System to create fairness/justice/equality/etc because it has set a court to specifically help with the problems/crimes against and committed by children?)

Land and environment court ;

The land and environment court is a specialist court responsible for interpreting and enforcing environmental law in the state of NSW. (why has this court been established? Does it show the importance of land and owning?)

The adversary system (why is this considered an essential

feature of the whole criminal and court system?) Adversary system:
A system of law where two opposite sides present their case to an impartial judge or jury

Inquisitorial system:

A system of law where two sides presents their cases to a judge who directs the cases to a judge who directs the cases and calls for particular evidence

Legal personnel in a criminal trial (why are all these

people found in a courtroom?) Magistrates:
Are the judicial officers that preside over hearings in the local court

Judges:

Are the judicial officers that preside over the intermediate and superior courts

Police prosecutors:

A NSW police officer trained in prosecution usually used to prosecute summary offences Public prosecutors: A legal practitioner employed by the Director of Public Prosecution

Public defender: Legal aid:

Public barristers who can appear for an accused in serious criminal matters where legal aid has been granted A subsidised legal service provided by the state for low income earners (why

is legal aid offered? Is it an attempt by the Criminal Justice System to be fair/just/equal/resource efficient/etc?) Plea:
A formal statement of guilt or innocence entered into by the accused

Plea bargaining:

Agreement between the prosecution and the accused on the acceptance of a guilty plea, usually in exchange for something else (when and why would this be done?)

Defences to criminal charges (why is the accused person

allowed or able to put forward a defence surely he/she is just guilty?) Acquittal: Mental illness/Insanity: Consent: Duress:

A judgment that a person is not guilty of the crime with which the person has been charged Mental incapacitation at the time of the act Is a complete defence for some crimes if the accused can show the victim freely consented the act in question A defendant may be acquitted if they can show they acted against their will under unlawful pressure

Mistake:

The defendant acted under an honest and reasonable mistake and couldnt have formed the Mens Rea needed

Provocation:

The defence whereby the defendant claims that their actions were a direct result of another persons actions

Sentencing and punishment (why isnt the judge or

magistrate able to give out a punishment they think is right or whatever they want?) Sentencing hearing:
A hearing following a finding of guilt in which a magistrate or judge will determine the sentence to be handled

Maximum penalty: Judicial discretion:

Is set by parliament , this is the maximum sentence available to a court to impose for an offence The power of a judge to make a decision within a range of possibilities based on the particular circumstances of the case

Guideline judgments:

Judgments that are issued by the court on application of the attorney general that will set out sentencing guidelines for a particular offence

Mandatory sentencing:

Removal of judicial discretion by legislation by setting a minimum sentence for a particular type of offence

The purpose of punishment (surely this is just revenge?

What is the problem with revenge as a reason for punishment?) Specific deterrence:
Punishment against an individual offender aiming to deter them from committing crime in the future

General deterrence: Retribution:

Punishment attempting to make an example of an offender in order to send a message to the rest of the community Punishment considered to be morally right or deserved based on the nature of the crime

Rehabilitation: Recidivism:

An objective of sentencing designed to reform the offender to prevent them from committing further offences in the future Repeated or Habitual lapses into crime

Incapacitation:

To make an offender incapable of committing further offences by restricting their free will

Factors affecting a sentencing decision

these just excuses for doing a crime?)

(arent

Aggravating factors:

Circumstances that make the offences more serious and can lead to an

increased sentence

Mitigating factors:
Circumstances that make the offence less severe

Remorse:

Deep regret or sorrow for someones wrongdoing/mistake

The role of the victim in sentencing

without a victim is there a crime?)
Appellant: In an appeal case, the party who is making the appeal

(think about it

Young Offenders

(what is a problem or issue that comes to your mind about young offenders? Are they from a problem group in our society? Do they get dealt with fairly/justly/etc?)
Doli Incapax: Latin term which means incapable of wrong; to assume that children under a certain age cannot be held legally responsible for their actions and cannot be guilty of an offence In Victorian England, children could be imprisoned, flogged, transported to colonies, like Australia or even executed. John Greening, was 11 years old when he was sentenced to one months hard labour and five years reformatory for stealing gooseberries

Questioning of young people

Police in NSW have the power to approach young people and ask them questions at any time, as they do for adults. Most police powers that apply to adults apply equally to children and young offenders, for example powers to ask a person to move on and most compulsory powers of search and seizure. Why is it important to get this right?

Arrest and interrogation

The conditions under which a young person can be lawfully arrested are the same as those for adults. These conditions are listed in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Police must tell a person that they are under arrest and why, and inform the person of the police officers name and station. Police may use reasonable force in arresting a person or young person, but the force may not be excessive, and the police officer may not assault or intimidate them.

Likewise, a person can also not assault a police officer, resist arrest or use offensive language, Or they may be guilty of further offences. Why is it important to get this right?

legal info Right to a have a responsible a Adult present when police ask questions If less than 18 years old, then strip search can only be conducted if an independent responsible adult is present; no strip searches permitted for children under 10 years old If arrested, police must find out details of the persons parent or guardian as soon as possible and contact them Children and young people must have a support person present during a police interview Police must give caution of rights in presence of the support person Police must inform of right to contact Legal Aid and give opportunity to do so Same period of detention as for adults, but a shorter period is strongly recommended If under 14 years old, fingerprints and photos can only be taken with a Childrens Court order If under 18 years old, no DNA sample can be taken without a Childrens Court order. Childrens Court statistics The NSW Commission for Children and Young People is an independent organisation that reports to the NSW Parliament and monitors trends in young offender rates, among its many tasks. The Commissions rationale for doing this is that it believes children and young people who become involved in crime are usually involved in minor crimes, but that for a small group of these offenders regular contact with the criminal justice system becomes a way of life which has drastic

prospects for their future. Juvenile justice centres (why have they been established?
Surely going to court and then to a mainstream prison is the answer as to how to deal with these criminals?)

A control order is the most severe penalty available in childrens criminal proceedings. It is similar to the adult penalty of imprisonment, except that the maximum time servable is two years and the young offender is not held at an adult correctional centre but at a juvenile justice centre. Juvenile justice centres, also called youth detention centres, are managed by NSW Juvenile Justice, which is a part of the Department of Human Services. They are overseen by the Children (Detention Centres) Act 1987 (NSW). Sentencing considerations for young offenders (what needs
to be considered and why?)

Although the Childrens (Criminal Proceedings) Act 1987 (NSW) now clearly outlines the principles of childrens criminal proceedings, and the primary importance of rehabilitation, the Seen and Heard report had noted that in sentencing, more attention was needed by courts to social factors such as homelessness, family circumstances, educational needs or the special health and other requirements of children and young people.

Warnings A warning is an official notice given to a young offender by an investigating officer, without any conditions attached. The warning is relatively informal it can be given in any place but the officer must tell the offender the nature, purpose and effect of the warning. A warning cannot be given for an act of violence, a repeat offence or at the discretion of the investigating officer. Cautions Police may issue a caution to a young offender to discourage further offending. The caution is a formal, recorded alternative to prosecution where the young offender admits to the offence and consents to receiving a formal police caution. In deciding whether to give a caution or not, the investigating official will consider the seriousness of the offence, the degree of violence involved, the harm caused and number of offences by the offender.