The Nature of Crime PDF

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PART I: CRIME 1. THE NATURE OF CRIME THE MEANING OF CRIME: An act or omission against the community at large that is punishable by the states. Any conduct which violates the rights of the community at large, punishable by a recognised criminal sanction upon proof of guilt in a criminal proceeding initiated and presented by officers of the crown or its agencies The social and cultural context for crime   

Culture, history, legal traditions, social attitudes, religious beliefs and political systems are factors in every society that combine to determine how crime is defined and punished More crimes are the result of moral and ethical judgements by society about an individual’s behaviour. The criminal act is seen as an attack on the standards expected by society, so it is the responsibility of all to punish those found guilty.

Criminal Law Reform: Criminal law is particularly controversial area of the law because any changed will usually have wide-ranging effects on the rights and freedoms of all members of society  Can result in tensions between various community groups, social commentators and lawmakers when attempts are made by legislators to change or update aspects of the criminal law  How does criminal law attempt to balance the tension between the rights of the accused, the rights of victims and the rights and interests of the wider community E.G. Parliament  Important that parliament is representative of the people: set up parliamentary committee to interact with wider community opinions  Select Committee on the Partial Defence of Provocation 2012 received submissions from stakeholders  ‘Jealous partners’ or ‘homosexual advance’ is no longer in keeping with broad community standards E.G. Media  Does it reflect or shape community values?  Can be great for education, but can be bias information  Nick Cowdrey  media ‘not acting in the public interest’ and they are ‘not the voice of the people’, and only interested in profit  One-punch laws, greyhound ban  Can influence public’s confidence in the criminal justice system (think there is more crime going on than there actually is)  Is media a constructive agency for criminal law reform? 

THE ELEMENTS OF CRIME: MENS REA  Intended to commit the crime (guilty mind)  Except in cases of strict liability (e.g. traffic offences), prosecution must prove that accused intended to commit the crime knowing their actions were wrong

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Mental state/awareness linked to concepts morality, culpability and legal responsibility Defendant must be deemed capable of forming necessary mens rea Inability to form mens rea: below age of 10, mental illnesses, mental incapacity

DEGREES OF INTENTION Intention: most difficult to prove, is clear, malicious or wilful intention to commit the crime (murder) LCMDI  Stephanie Scott Murder: malicious intention  life sentence LCMDI  McConnell V Crown  Three men (McConnell, McFarland and Holland) convicted of murder of Bergmann  Had beaten, kicked and stabbed him, and threw him into a river  Although, not dead when thrown into river but died of drowning  Appealed conviction on grounds that they did not have the mens rea to kill Bergmann when they threw him into river (thought he was already dead)  Court revoked appeal (part of sequence of violent assaults, and tied up before river) Recklessness: intermediate level, accused was aware that act would result in a crime but took risk anyway e.g. youth drag racing (murder) LCMDI  Miss Hyam deliberately set fire to a house by pouring petrol and setting it alight  Jealous of one of the women living in the house (marry her ex-lover)  Four people were in the house: two of the women’s daughters were killed by the fire  Aware of the danger of her actions, but claimed she only wanted to ‘scare’ the women into leaving the area  Found guilty of murder, appealed she did not intend to kill: but charged under recklessness Criminal negligence: lowest level of intention, accused fails to foresee the risk where they should have and harm or death results to another person whom they had a duty of care to protect (manslaughter)  Depending on specifics in legislation, the Crown must prove defendant acted: intentionally, fraudulently, maliciously, negligently, recklessly or wilfully LCMDI  R v Thomas Sam charged with manslaughter by criminal negligence  Homeopathic, treated child with eczema with homeopathic treatments  Died from condition ACTUS REUS  Latin term for ‘guilty act’, physical act of carrying out the crime  Prosecution must prove that the accused did carry out the relevant act required for the crime  Physical evidence/witness testimony can help prosecution prove (often easiest element for the prosecution to prove Specifics  Causation: required consequence (act actually caused the consequence)  Circumstances: require special circumstances to render an otherwise lawful act a crime (lack of consent having sex renders it rape)  Voluntariness: act must have been a voluntary act of a conscious mind (i.e. not an instinctive reaction such as a muscular twitch)  Omissions: NSW s18 of Crimes Act 1900, murder can be committed by omissions in certain circumstances E.g. Ryan v R 1967  Defendant argued that while he did shoot a service station attendant during robbery, the gun discharged because the attendant during a robbery while he was being tied up, and putting pressure on the trigger was merely a reflex action LCMDI  Russel 1933  Charged with three counts of manslaughter after he looked on while wife drowned herself and two children

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Argued he wasn’t required to do anything: as father he had special duty to rescue, and by failing to do so he was criminally negligent

CAUSATION:    

Prosecution must show link between act and crime: accused act must be at least the substantial cause of the crime/harm E.g. someone stabbed, but died on operating table  stabbing caused person to die, not the fault of the doctor Substantial cause of death Prosecution has to prove that the defendants act was the substantial and operative cause of the harm

LCMDI  R v Munter 2009  Found guilty of manslaughter following punch to Mr Proctor (66 year old), shortly after Proctor died from heart attack  Court found unlawful assault had caused his death

STRICT LIABILITY OFFENCES:    

Not all offences require the prosecution to prove mens rea. For some minor offences, only the element of actus reus will need to be shown. Strict liability offences dramatically lower the level of proof required to achieve a criminal conviction, and so lessens an accused’s rights in the criminal process. (e.g. traffic offences) An example of a strict liability offence is selling alcohol or cigarettes to people under the age of 18 Strict liability is applies to offences because of its administrative advantages – e.g. to assist the legal system in coping with the daily volume of traffic offences

CATEGORIES OF CRIME: OFFENCES AGAINST THE PERSON Offences against the person involve some kind of harm or injury to the individual. Homicide: “Unlawful homicide” is the killing of a human being in circumstances where the law does not excuse killing. The four main categories of homicide are as follows: 1. Murder: 2. Manslaughter: applies to the actus reas (guilty act), which lacked the requisite mens rea (guilty mind) for murder – requires proof that the accused’s act, or failure to act, caused death of another human being. 3. Infanticide 4. Death by reckless driving 1. MURDER  Reserved for the most serious reprehensible killings, applies when the actus reus was intended – requires proof that the accused’s act, or failure to act, caused death of another human being.  For murder (except in the case of “constructive murder”), the prosecution must prove that the accused killed with  An intention to kill; or  An intention to inflict grievous bodily harm, being bodily harm of a really serious kind; or

 A reckless indifference to human life, meaning that the accused foresaw the probability that death would result from his or her act or failure to act.

Constructive murder  Constructive murder does not involve consideration of the accused’s state of mind in committing the act causing death, such as whether the accused intended to kill  It I criticized as an anomaly within the law of homicide, given that it permits conviction of murder without consideration of whether or not they intended or foresaw that consequences of their actions 2. MANSLAUGHTER Voluntary manslaughter  For voluntary manslaughter, the prosecution is required to prove the same mental state as is generally required for murder  The accused must be shown to have either intended to kill or to cause grievous bodily harm, or to have been recklessly indifferent to human life.  However, the accused will be convicted of voluntary manslaughter instead of murder where his or her mental state was affected in a way, which is recognized by law to reduce his or her culpability for the killing.  Factors affecting the accused’s mental state must be shown to constitute either:  Provocation,  Diminished responsibility, or  Infanticide. Know as the partial defences the murder, and require proof of some form of mental impairment or loss of self-control which significantly affected the accused’s culpability at the time of the killing LCMDI  R v Daniella Dawes 2004  Dawes plead guilty on the grounds of diminished responsibility, to the manslaughter of her autistic son. Suffering from a major depressive illness  sentences to a five-year good behaviour bond Involuntary manslaughter  An unlawful killing by a person who cannot be proven to have the requisite guilty mind for murder  Also known as manslaughter by criminal negligence  The killing of a person where the death occurred because the accused acted in a reckless or negligent way without intention to kill Constructive manslaughter  

Unlawful and dangerous act manslaughter is sometimes called ‘constructive manslaughter’ The killing of a person while the accused was carrying out another dangerous or unlawful act.

LCMDI  R v Loveridge [2013 3. INFANTICIDE  Infanticide is a special category of manslaughter that applies to the death of a baby under the age of 12 months at the hands of its mother.  Section 22A of the Crimes Act 1900 (NSW) requires that the court take into account the state of mind of the mother at the time she committed the crime.  Due to many women suffering from post-natal depression the condition can be seen as a mitigation circumstance of the crime

LCMDI  R v Pope [2002]  the offender was suffering from apost-natal psychotic episode and drowned her baby  received a three-year good behaviours bond 4. DANGEROUS DRIVING OCCASIONING DEATH  When a person drives in an unsafe and reckless way such as under the influence of alcohol, or drug or at excessive speed and in doing so causes the death of another human being.  Maximum of 10 years in prison but if the offence is aggravated by certain circumstances the penalty can be as much as 14 ASSAULT  Causing physical harm or threatening to cause physical harm to another person.  Physical harm – force is applied to another person’s body unlawfully and without their consent – 5 years imprisonment  Threat of physical harm – fear of immediate and unlawful violence e.g. threatening phone calls, text messages, emails  Aggravated assaults are more serious than assault as a person:  Uses an object (other than their body e.g. iron bar, knife, syringe)  If the person attacks a police officer when they are carrying out their duties  Defences to assault  if the person consents e.g. boxing SEXUAL ASSAULT  If a person has been sexually interfered with or had sexual intercourse with another person without their consent or with a person who does not have the capacity to form consent  There are circumstances where sexual assault occurs even when consent has been given (under 16 years of age)  Sexual assault penalty of 14 years can be extended to 20 years for aggravated sexual assault  Aggravated sexual assault - the use of excessive violence; if the victim is under 16 (and has not given consent); or the victim has a serious intellectual or physical disability.  Aggravated sexual assault in company – most serious NSW offence, introduced in 2001 following ‘gang rapes’

OFFENCES AGAINST THE SOVEREIGN 

Offences against the sovereign are some of the oldest crimes and include political offences against the state or heads of state such as treason or sedition.

Treason  Is an attempt or manifest intention to levy war against the state, assist the enemy, or cause harm to or death of a head of state Sedition  Is promoting discontent, hatred or contempt against a government or leader of the state through slanderous use of language. ECONOMIC CRIMES CRIMES AGAINST PROPERTY Larceny  when one or more persons intentionally take another person’s property without consent and without intention of returning it. Robbery  when property is taken directly from a victim, usually forcefully break and enter commonly known as burglary

Break and enter  offences usually occur when a person enters a home with intent to commit an offence. WHITE COLLAR CRIME  

A general term given to various non-violent crimes associated with businesspeople or professionals. White-collar crime is often difficult to detect and can be time-consuming and expensive to investigate

Embezzlement  Is when a person, usually an employee, misappropriates another person’s property or money that they have been entrusted with. It usually occurs when an employee steals money from their employer, for example by transferring sums of money to the employee’s own account or stealing money from the cash register. Tax Evasion  when a person or company tries to avoid paying taxes to the government. Often it involves people fraudulently filling out tax returns stating that their income is lower than it actually is, or organising a business or property in a way that hides income or assets from the tax authorities Insider Trading  is an offence related to the buying and selling of company shares. It occurs when a person (usually a stockbroker or company director) obtains confidential inside information about a company that will affect that company’s share price. The information will usually relate to the share price significantly increasing or dropping, which the offender will then take advantage of, for example by buying or selling his or her own shares to reap the benefits or avoid the losses.

COMPUTER CRIMES  

Computer offences include various crimes related to hacking and unauthorised access or modification of data The Crimes Act 1900 (NSW) specifies a number of things, including unauthorised access to, modification or impairment of restricted data, and more serious crimes, such as impairment of electronic communication or unauthorised access or modification of restricted data with intent to commit a serious offence

DRUG OFFENCES:   

Drug offences relate to acts involving prohibited or restricted drugs. There are also many other crimes that may be associated with drug abuse/addiction e.g. larceny, robbery, break and enter and prostitution The Drug Misuse and Trafficking Act 1985 outlines numerous related offences e.g. use of prohibited drugs, possession of prohibited drug, supply and trafficking of prohibited drugs, manufacture of prohibited drugs

POSSESSION   

Prosecution must show beyond reasonable doubt that: an illegal drug was in the person’s ‘custody and control’; the person knew that they had custody or control of the drug Custody: means immediate physical possession, such as a person having something in their pockets Control: refers to the right to do something with the drug, e.g. consume or share it

SUPPLY   

‘Deemed supply’ possessing certain quantities of drugs which are deemed to be for the purpose of supply ‘Trafficable quantities’ require for deemed supply will vary between drugs Higher charges for supply than possession

DRUG PREMISES OFFENCE  

It is an offence to be found on or entering or leaving a drugs premises. It is also an offence for an owner to allow drugs to be used as a drug premises.

DRIVING OFFENCES

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Some of the most commonly committed offences in NSW under the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and the Crimes Act 1900 (NSW). These offences are easier to process, as they only require the police to show that the offender committed the act; they do not need to consider the individual’s intention or state of mind. Common traffic offences:  Exceeding the speed limit  Driving without a licence or while disqualified  Ignoring road signs  Driving above the legal blood alcohol limit of 0.05. Serious offences include furious or reckless driving, negligent driving causing death or serious bodily harm, and failing to stop and give assistance at an accident involving - Such offences will be dealt with through the courts

PUBLIC ORDER OFFENCES  

Generally disrupt the activities of society  listed in the Summary Offences Act 1988 (NSW)  the best example of how society’s moral and ethical views can influence the law Serious Offences:  Affray: involves using or threatening to use unlawful violence on another that would cause a person of reasonable firmness to fear for their safety  Riot: is a similar public order offence but involves 12 or more people using or threatening to use unlawful violence for a common purpose

PRELIMINARY OFFENCES   

Offences that precede the commission of a crime or where the crime has not been completed for some reason e.g. it may have been interrupted or unsuccessful. Attempts: actus reas is missing – ‘any person who attempts to commit an offence for which a penalty is provided … shall be liable to that penalty’  Section 344 of the Crimes Act 1900 (NSW) Conspiracy: when two or more people jointly conspire to commit a crime. The conspiracy is complete where an agreement (the act) is reached between the parties, with the intention also shown by each person’s explicit agreement to commit the offence.

REGULATORY OFFENCES

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Minor offences usually set out in delegated legislation, such as regulations or local laws that address a range of day-to-day situations and standards. Usually strict liability offences (mens rea does not need to be proved only the actus reus) E.g. water garden despite water restrictions being in place, breaching workplace health and safety regulations, travelling on public transport without a ticket, lighting a afire on a day of total fire ban

SUMMARY AND INDICTABLE OFFENCES: SUMMARY OFFENCES

 The less serious offence usually carry with them a maximum prescribed by the parliament of 2 years imprisonment always dealt with in the local court

 Often, the Crimes Act 1900 will make it clear that the offence is summary. E.g. drink-driving offences (unless someone is killed or seriously injured) and trespassing

INDICTABLE OFFENCES  

The more serious, district or supreme court of NSW before a judge and/or jury, some can be dealt with in the local court (e.g. dangerous driving where death does not result, embezzlement) the person is liable to the maximum penalty that the crime carries as set by the Parliament.

PARTIES TO A CRIME  

Often, there is more than one party involved in a criminal act. Any person who has been involved before, during or after the criminal act will be deemed a ‘party’ to the crime. The level of punishment that a court meters out is usually determined by that person’s level of involvement in the crime.

FOUR MAIN CATEGORIES:  Principal in the first degree: The perpetrator – the person who actually carries out the crime  Principal in the second degree: the person w...