9465Crime Summarys PDF

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Legal Studies: Crime Summary Notes 2015 1. The Nature of Crime The meaning of crime Crime – any act or omission of duty that results in harm to society and which is punishable by the state. Must be an act that breaks the law, seen as harmful to community Beyond reasonable doubt the standard of proof required in a criminal case for a person to be guiltyThe Crown is the state party who commences a criminal action in a court of law against the offender. NSW- commenced by the Director of Public Prosecutions The State- the government and the people that it governs Elements of a Crime o To find someone guilty of a criminal act it is necessary to prove: mens rea, actus reus and causation. o Mens Rea – the ‘guilty mind’, it refers to a person’s intention to commit crime. There are three main levels: o 1. Intention- a clear, malicious or wilful intention to commit the crime- highest and most difficult level of mens rea for the prosecution to prove o 2. Recklessness- when the accused was aware that the action could lead to crime being committed- chose to take the course of action anyway o 3. Criminal negligence- this is when the accused fails to see the danger present in their actions leading to the death or injury of others o CASE: R v Thomas Sam; R v Manju Sam o Couple charged with man-slaughter by criminal negligence through their nine-month-old child suffering from eczema o Father had higher duty of care- trained homeopath o Failed to seek appropriate medical treatment- child crying in pain with broken skin oozing fluid- suffered and died o Parents found guilty of manslaughter and sentenced to imprisonment o Appeal- both sentences increased- father = 8yrs imprisonment and mother = five years and four months o Actus Reus – the ‘act element’, it refers to the physical performance of the criminal act. It must be proven that the person actually carried out the act, not just thought about it. Strict Liability Offences o The element of actus reus will need to be shown in such offences o Prosecution must prove the offender carried out the act- not required to show criminal intent o E.g. speeding offences- police must show that the person breached laws not intended it o Applied to offences due to administrative advantages- assist in dealing with everyday offencesonus on society to comply with law o Defence to strict liability possible if accused can prove it was a reasonable mistake

Legal Studies: Crime Summary Notes 2015 Causation o Causation – the prosecution must prove that there is a causal link between the accused’s actions and the crime committed; that the act was the substantial cause of the crime. Must have caused specific injury and easily established o CASE: R v Munter [2009]o Todd Munter charged with manslaughter after punching 66-year-old Ken Proctor over dispute o No intention to kill Proctor- courts deemed that death caused by unlawful assault of accused – convicted of manslaughter

Categories of Crime o o o o o

Categories affect the way an offence is investigated, prosecuted or punished- includes: 1. Type of offence i.e. drug offences, economic offences 2. Jurisdiction whether it is a NSW or Commonwealth offence 3. Seriousness of offence summary or indictable offence 4. Parties to crime who is involved and whether principal offender had any assistance

Offences against the person o Homicide – the unlawful killing of a person. The judge must determine that there is a ‘causal relationship’ between the actions of the accused and the harm caused to the victim. ▬ Murder – the deliberate killing of a person; there was a deliberate act designed to cause serious harm during which death occurred; or there was a reckless indifference to human life which resulted in death. ▬ Manslaughter – killing of a person where the accused had not intended death- punishable by up to 25 years imprisonment. Three main types: ▬ 1. Voluntary- killing where accused had intent- reckless about killing someone- are mitigating circumstances (considered by the court when determining guilt or innocence; do not justify offence but reduce charge i.e. provocation- the offence was committed due to another party causing them to lose control that may result in an illegal act such as murder due to rage, anger or resentment ▬ 2. Involuntary- occurred because accused was reckless or negligent- no intention to kill the person ▬ 3. Constructive- killing of a person while accused was carrying out another dangerous or unlawful act i.e. assaulting someone but death results ▬ Infanticide – the homicide of an infant who is under the age of 12 months, by their mother. ▬ Crimes Act 1900 (NSW)- court take into account state of mind of mother before issuing sentence- any issue such as depression- mitigating circumstance

Legal Studies: Crime Summary Notes 2015

o Assault – Causing physical harm or threatening to cause physical harm to another person. The law makes no distinction between the threat and actual application of force ▬ Aggravated Assault – a special type of assault where there is the intention to cause very serious harm, the use of a weapon, or the threat to contaminate another person with a disease like AIDS. ▬ Sexual Assault – the unlawful sexual contact by a person on another without their permission. Max penalty: Up to 14 years ▬ Aggravated Sexual Assault – where there is a high degree of violence involved in the sexual assault, or the victim has a serious intellectual/physical disability. Offences Against the Sovereign These are offences in which the accused is targeting the state (government); protect state to promote stable government. o Treason – activities, which undermine the government by passing on information to other governments etc. o Sedition – The inciting of public unrest with the aim of bringing down the government; the act of encouraging hatred or contempt for the government. Economic offences i.

Crimes against property o Larceny (theft) – the removal of another person’s property without the consent of the owner, and with the intention of permanently keeping them. o Breaking and Entering – When a person illegally enters a building in order to commit an offence. o Robbery – the taking of a person’s property directly from them or from their vicinity; theft accompanied by force or the threat of force.

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White Collar Crime o Tax Evasion- attempt to avoid paying full amount of tax by concealing or underestimating person or business’s income/assets o Insider Trading – where a person with special knowledge of a company uses that knowledge to buy or sell shares. o CASE: R v Rivkin (2003) o Guilty of insider trading- Rene Rivkin: entrepreneur, investor and stockbroker o Told confidential info by company exec. Before purchasing shares in Qantas 2001price of shares would rise once info was publicised o Resulted in profit of $2662.94- convicted and sentenced to 9mnths periodic week detention- stockbroker license banned

Legal Studies: Crime Summary Notes 2015 o Embezzlement – when employees in a business steal by falsifying business accounts while they use the business finances for personal gain.

Computer Offences o Include crimes related to hacking and unauthorised access or modification of data o Crimes Act 1900 (NSW)- modification or impairment of restricted data, impairment of electronic communication or unauthorised access to data with intent of committing offence o Some may be committed by employee of target company or by outsider hired o Fraud: deceitful or dishonest conduct carried out for personal gain o Types of fraud: identity theft, internet phishing (posing as legit website), requesting funds or account details by email under fraudulent pretences, technology fraud using ATM Drug Offences o Relate to acts involving prohibited or restricted drugs o Drug Misuse and Trafficking Act 1985 (NSW) outlines offences related to drugs o Supply of prohibited drug- including offering or agreeing to supply whether or not actual drug or money changed hands; drugs in possession for purpose of supply o Cultivation – The act of sowing, growing or harvesting a narcotic plant. You can be charged if you cultivate a ‘deal-able quantity’ or intend to sell some. o Possession – to be caught with enough illegal drugs for personal use only o Usage – intentional consumption of the drug by any means Driving Offences o Most commonly committed offences in NSW o Included under Road Transport (Safety and Traffic Management) Act 1900 (NSW) o Police enforce and process offences through on-the-spot fines o Regulated by the NSW Roads and Traffic Authority- demerit system o Exceeding speed limit o Driving without licence or ignoring road signs o Driving above legal blood alcohol limit of 0.05 Public Order Offences o Acts that disturb the public order such as disturbance in public area o Listed in the Summary Offences Act 1988 (NSW) o Acts deemed as inappropriate by society o Include: obscene indecent language in public, possessing a knife in public place, obstructing traffic or ignoring police orders o Damaging public buildings and facilities o Affray: threatening to use violence towards another that would cause person to fear safety o Riot: 12 or more people using/threatening to use unlawful violence for common purpose

Legal Studies: Crime Summary Notes 2015

Preliminary Offences o Attempt: offence where principal crime was attempted but failed for some reason despite intentconsidered crime- can be charged, may carry lower penalty. If someone aimed to shoot another and missed – can be found guilty of murder o Accused may have reason for conduct o CASE: R v Whybrow (1951) o Husband connected electricity to soap dish in family bath to electrocute wife- did not work, only received shock o Court found guilty of attempted murder because of intention o Conspiracy: 2 or more people plot to commit crime together- act of planning and prep. Of a crime constitutes conspiracy- difficult to prove without confession, signed doc., phone tap o If two sisters plan to kill a brother but do not commit the crime – sisters who planned could be found guilty of conspiracy Regulatory Offences o Going against regulation o Minor offences that aren’t always considered to be crimes e.g. jay walking o Set by govt. department or agencies responsible for area of law and policy that require frequent change o E.g. watering garden despite water destructions o Travelling on public transport without valid ticket Summary and Indictable Offences o Summary offence- Less severe offences heard and sentenced by a magistrate in the Local Court not tried in front of a jury. E.g. driving offences and offensive behaviour o Penalties include bond or fine, jail sentences of up to 2 years o Indictable offence – More severe offences heard and sentenced by a judge in a District Court or tried before a judge and jury; murder, sexual assault, theft, etc. Parties to a Crime Principal in the First Degree: They actually carried out the crime – perpetrator; key instigator; harsh penalty Principal in the Second Degree: Assist and encourage the principal offender to commit offence E.g. Guards the door, clears the path, drives the getaway car. Accessory Before the Fact: This is a person who helped to plan the crime. The planning can involve: the gathering of the opening and closing times, floor plans and maps, and the names of the attendants.

Legal Studies: Crime Summary Notes 2015 Accessory After the Fact: Helps after the act but is not present during the event or aware of the event until after. Lesser punishment

Factors Affecting Criminal Behaviour Psychological Factors o Many forms of mental illness affecting person’s behaviour may be reason for crime o Important during criminal process- accused’s state of mind is considered when sentencing o Relevant during sentencing and sentencing programs- drug rehabilitation programs focusing on psychological rehabilitation Social Factors o Family situation or personal relationships influence criminal activity o Social group- influence attitude and views of acceptable behaviour o Environment individual is raised in e.g. abusive home, trauma = more prone to criminal activity o The theory of differential association states that a person who is exposed to an environment where criminal behaviour is normal, is more likely to become a criminal. Economic Factors o Most substantial reason for committing of crimes in NSW o Disadvantaged background more likely to commit crime o 1/3 of male and ½ of female offenders receive welfare or govt. payment as source of income o Poor education, lack of skills related to economic factors o Offenders in this case may commit crime for economic benefit such as robbery, larceny, etc. Genetic Theories o It has been theorised that criminals are born, not made. It is possible that some people commit more crimes than others because of their genetic make-up. However, other factors are much more important. Political Factors o Groups in society will challenge the authority of the government and therefore the laws of that government. Sometimes this politically motivated criminal activity is considered justifiable. o Public order offences may be connected to politically motivating factors o E.g. annual protests at G8 Summit/ protests at 2009 Copenhagen Climate Change Conference Self- Interest o Usually plays role as motivating factor in committing a crime o Motivations of money or power may play a significant role in committing the offence o Crime is committed for own personal profit such as money gained through embezzlement

Legal Studies: Crime Summary Notes 2015

Crime Prevention o Situational Crime Prevention – involves making it difficult for criminals to commit criminal acts either by increasing the risk of being caught, making crime more difficult to perpetrate, or making the crime less rewarding. E.g. good security system and locks prevent thievery, parents disallowing children to go to a party to prevent hazardous situation, tech. such as surveillance cameras prevent looters. o 1. Planning & Architectural Design- influence of physical environments on crime i.e. adding bars or alarm system at home o 2. Focused (situational) approach- views offenders as actors who weigh up potential risks, costs and gains i.e. use colour tags attached to clothing in shops that set off detectors at door o Social Crime Prevention – attempts to reduce the factors that are likely to cause a person to commit crime o Education about laws, how they function and why acts are illegal – prevention through early years o Providing employment or income through govt. departments prevent crime such as robbery and theft – won’t feel the need to resort to crime o Funding to put educational programs in schools to raise education levels of students o Youth programs run to teach dispute resolution skills and social skills to reduce number of potential offenders o E.g. Police Youth Leadership Program

Legal Studies: Crime Summary Notes 2015

2. The Criminal Investigation Process Police Powers o Responsibility for enforcing criminal laws and ensuring they are adhered to lies with the policemake enforceable legal decisions and judgements o Role of police is to investigate crimes, make arrests, interrogate suspects and gather evidence o Challenge is to balance extent of powers required by police against the rights of ordinary citizens o Main police powers include: o 1. Detain and question suspects o 2. Search property and seize evidence (search and seizure) o 3. Use reasonable force if necessary o 4. Use particular technologies to assist investigation i.e. phone taps, surveillance, DNA samples o 5. Arrest and interrogate samples o 6. Recommend whether bail should be granted o May need to seek a warrant from court to use particular power to ensure power is used appropriately and is not abused o Ability to cross-reference details of person of interest (criminal history, gun licence, mental illness, etc.) through COPS 1994 system Role of Discretion; o Police decide areas to patrol, which crimes to target and which reports to investigate o Lack of resources affects accuracy of investigation e.g. easier to find crime in poor socioeconomic suburbs o Discretion also applies to decisions made by individual officers – decide whether to investigate certain behaviour, charge suspect or let young offender go without caution o May be influenced by race, appearance, family background, etc. For idea of Police having too much power - Not all crimes have increased - Loss of basic rights such as privacy through phone tapping - Does not alter causes of crime such as social and economic factors, drug abuse, etc.

Against idea of police having too much power - Need power for increasing crimes - Wider powers to detect/ investigate crimes and keep up with complex technology - Citizens tempted to take into own hands if police do not exercise enough power

Legal Studies: Crime Summary Notes 2015 - Power to detain without charge an infringement of basic human rights

- Useful when suspecting terrorist behaviour

Reporting crime o Victims and witnesses use their discretion to discern whether or not to report crimes o Community programs have been established to help citizens fulfil their role in reporting a crime o Crime Stoppers encourages people to report info on unsolved crimes or unknown offences, or suspicious or unusual activity o Many do not report crime for various reasons: do not want to be involved as witnesses, fear of consequences if reported, inability to report crime, etc. o Some are widely reported than others such as property offences like car theft o Domestic violence hardly reported due to shame or embarrassment o Approx. 50% of women do not report DV (BOCSAR) Investigating crime Gathering evidence o Evidence Act 1995 (NSW)- must be obtained in proper and lawful manner o Limits on the way police gather evidence and type that can be used o Strict procedures need to be followed by police- court warrant required o Evidence includes testimony of accused, police and witnesses, physical evidence, etc. o Police may be specially trained for the job of taking evidence o Interview possible witness, collect list of stolen property, gather physical evidence o Role of police to gather evidence to support a charge (formal accusation) o Involves taking witness statements at the scene of crime or detectives looking at evidence left o Must happen quickly- witness may forget what they saw/heard or before it is compromised o Inadmissible evidence cannot be considered by judge or jury in court if it has been contaminated, compromised or tampered Use of Technology o Crimes (Forensic Procedures) Act 2000 (NSW) – suspects, volunteers and people convicted may be tested decided after – R v Fernando and Fernando [1995]; allowed to take samples such as blood or mouth swabs o Advancements in technology have allowed police to carry systematic and convenient investigation process

Legal Studies: Crime Summary Notes 2015 o Scientific and technological advances have made processing and crosschecking of databases easier o Person must consent to sample- police can apply for using reasonable force to take sample through magistrate o Police surveillance (police use deterrence) teams able to record video footage and audio using digital methods R v Gittany [2013] o Cybercrime units use technology to track criminal activity through Internet to prevent computer offences; can take sample by reasonable force after obtaining order from magistrate

Search and Seizure o The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)- procedures for police to follow when conducting personal search or strip search- respect dignity o Limits and process requirements protect rights of an individual when gathering evidence o Search people, places, motor vehicles and seize/take evidence o Can search anyone suspected of stolen property or anything intended to be used to commit crime o Wide power to ensure community is out of harm’s way o Can search people and seize and detain things in certain circumstances- have power to search and seize without court warrant o Represent intrusion into people’s privacy or personal space o...