The Nature of Crime PDF

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The Nature of Crime Tuesday, 11 October 2016

9:06 PM

The Meaning of Crime ❖ An act or omission against the community at large that is punishable by the state. A crime is any act that law-makers in a particular society have deemed to be criminal, which in itself causes injustice ❖ More detailed definition: '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' ❖ Many countries and societies have different views about what kinds of acts society needs to be protected from and which acts should be considered criminal, which causes frustration for the legal system. For examples, acts which are entirely legal in Australia such as sex outside marriage, homosexual acts or the consumption of alcohol are deemed crimes in other countries ❖ The state brings criminal cases, acting on behalf of the society since the criminal acts is seen as an attack on the ethical and moral standards of society ❖ Crime is a constantly evolving area of the law, meaning legislation is constantly being altered with new crimes often being created where none existed. Governments are constantly reviewing legislation to ensure it meets with the expectations of society and is as relevant as possible to our rapidly changing world. E.g. one punch laws

Elements of a Crime Actus Reus ❖ Definition: A Latin term meaning 'guilty act' that refers to the physical act of carrying out the crime ❖ It must be a voluntary act but can also include an omission or failure to act, particularly in cases of criminal negligence, if the accused failed to take a course of action when they had a duty of care

Mens Rea ❖ Definition: A Latin term meaning 'guilty mind', meaning that the accused intended to commit the crime, knowing their actions were wrong. It refers to the mental state of the accused. ❖ If the police or Crown cannot prove that the defendant acted intentionally, fraudulently, maliciously, negligently, recklessly or wilfully, the charge will not be proved. ❖ The prosecution must prove that the accused was aware that their actions would result in the likelihood of a crime being committed ➢ Three main levels of mens rea - Intention: a clear, malicious or wilful intention to commit the crime (highest and most difficult level) - Recklessness: An intermediate level of intent, meaning that the accused was aware that their action could lead to a crime being committed, but chose to take that rise anyway - Criminal negligence: where the accused fails to foresee the risk and so allows the avoidable danger to occur, usually resulting in harm or death to a person the accused had a duty to protect  R v Thomas Sam; R v Manju Sam (No.18) [2009] NSWSC 1003: ▫ Involved the death of the couple's nine-month-old daughter, who suffered from eczema. ▫ The parents had repeatedly rejected conventional medical treatment, and instead relied on ineffective homeopathic treatments, despite the child constantly crying in pain.

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▫ The condition was medically treatable yet since treatment was denied, the child suffered and died. ▫ The court found that both parents were well educated, especially since the father had a higher duty of care since he was a trained homeopath with a higher degree of medical knowledge, however failed to act on the danger present to their child

Strict Liability Offences ❖ Definition: Where the prosecution only needs to prove that the accused carried out the act (actus reus), and is not required to show that the accused intended to commit the crime (mens rea), usually restricted to minor offences such as traffic offences or breaches of regulations ❖ Examples: - Speeding Offences: police do not need to show that a person intended to break the speed limit, but only that they did so (committed the actus reus) - Selling alcohol or cigarettes to people under the age of 18: it doesn't matter whether or not the seller knew the buyers were underage but that they were underage and the offender sold it to them ❖ In some cases, there can be a defence to strict liability: if the accused can prove the act was an 'honest and reasonable mistake'

Causation ❖ Definition: The link between the behaviour of the accused and the result of the crime ❖ This will often be relevant in proving the actus reus and requires the prosecution to prove a substantial link between the act and the crime ❖ Example: Wallace v Kam [2013] HCA 19 - Dr Kam was a neurosurgeon charged with medical negligence after the plaintiff, Mr Wallace, had been injured during surgery - He alleged that Dr Jam had not warned him about the two risks of surgery and that if he had known, he would not have agreed to the surgery, and therefore not injury. Thus, negligent failure to disclose had caused him injury

Categories of Crime ❖ ❖ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪

Affect the way an offense is investigated, prosecuted or punished and include: Type of offence, such as drug offences Jurisdiction, such as New South Wales or a Commonwealth (Federal) crime Seriousness of the crime: summary or indartible offence Parties to a Crime Examples of Offences Offences against the person: Homicide, assault, sexual assault Offences against the sovereign: Treason, sedition Economic Offences: property offences, computer offences, white-collar crime Drug Offences: Trafficking, possession, use Driving Offences: Speeding, drink-driving, negligent driving Public Order Offences: Offensive conduct, obstructing traffic, affray, bomb hoaxes Preliminary Offences: Attempts, conspiracy Regulatory Offences: Breach of water restrictions, fire restrictions, public transport rules

Offences Against the Person Homicide ❖ Definition: The unlawful killing of another person, including both deliberate and accidental acts of killing with varying degrees of mens rea applicable ❖ Causation must be established between the acts of the accused and death of the victim ❖ Four main categories: murder, manslaughter, infanticide and dangerous driving causing death

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Murder ❖ Definition: the deliberate killing of a person and is punishable by life imprisonment (25 years) ❖ To prove in court, the prosecution must show that at least one of the following exists: - The accused intended to deliberately kill - The accused set out to inflict seriously bodily harm, which resulted in death - Act was done with reckless indifference to another human life - Act was done while committing or attempting to commit another serious crime punishable by life or 25 years' imprisonment ❖ Receives a great deal of media attention ❖ The number of recorded murder victims in NSW during 2013 was 86, compared with 29,070 domestic violence-related assaults for the same period ❖ According to the Australian Institute of Criminology (AIC), most murder victims are killed by a family member or friend, and up to 40% of all homicides are domestic-violence related

Manslaughter ❖ Definition: The killing of a person in a manner that is considered to be less intentional than murder and is punishable by up to 25 years' imprisonment ❖ A person may be charged with manslaughter where it cannot be proved that they intended to kill the victim ❖ Three main types: ➢ Voluntary Manslaughter: occurs when a person kills with intent but there are mitigating circumstances (circumstances that make any offence less severe, leading to a reduced sentence), such as the defence of provocation which reduce their culpability ➢ Involuntary Manslaughter: the killing of a person where death occurred because the accused acted in a reckless or negligent way, but without intention to kill the person. E.g. in DPP v Newbury and Jones [1977] AC 500, the accused deliberately dropped a slab of concrete from a bridge and the concentrate hit and killed a train guard ➢ Constructive Manslaughter: The killing of a person while the accused was carrying out another dangerous or unlawful act. The manslaughter is 'constructed' from the other unlawful act. For example, where a person assaults another person without intention to kill but death results

Infanticide ❖ Definition: The death of a baby under the age of 12 months at the hands of its mother ❖ 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, since many suffer from post-natal depression ❖ If the accused is found to have been suffering from this condition, it can be seen as a mitigating circumstance (circumstances that make the offence less severe, leading to a reduced sentence)

Dangerous driving causing death ❖ Definition: Occurs when a person drives in an unsafe and reckless drug, possibly under the influence of alcohol or a drug and in doing so, causes the death of another human being, carrying the maximum penalty of 10 years in prison ❖ If the offence is aggravated by certain circumstances, the penalty could be as much as 14 years' imprisonment

Examples of Homicide Cases Case Name and Court Reference R v Campbell [2010] NSWSC 995, 3 September 2010, Latham J

Charges brought against the defendant Des Campbell has been charged with the murder of his wife, Janet Campbell after pushing her off a cliff top in the Royal National Park in March 2005

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Case Details (ruling and sentence) A jury found him guilty after a trial in May 2010. He was sentenced to a nonparole period of 24

parole period of 24 years expiring on 9 May 2034 with a balance of nine years expiring on 9 May 2043

R v BW & SW (No 3) [2009] NSWSC 1043, 2 October 2009, RA Hulme J

SW and BW were charged with the death of their autistic seven-year-old daughter as a result of starvation and neglect over a twenty month period

After a five week trial, the girl's mother SW was found guilty of her murder and sentenced to life imprisonment and the girl's father BW was found guilty of manslaughter and sentenced to 16 years with a non-parole period of 12 years

Sorrell was charged with the murder of Michael Furlong after Sorrell approached and fatally stabbed him with a hunting life at a local electronic part shop in Smithfield

Sorrell was found to be not guilty of murder on the grounds that he was mentally ill when he committed the crime, suffering from paranoid schizophrenia. Sorrell is in Long Bay hospital and his detention is reviewed every six months by the Mental Health Review Tribunal

R v S orrell [2003] NSWSC 30, 7 February 2003

T G v R [2010] NSWCCA TG was charged with four counts of dangerous 28, 2 March 2010 driving occasioning death after driving recklessly on his P's late at night, which

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TG appealed against the sentences imposed by Charters DCJ in the District Court in which he was sentenced on 30 January 2009 to 4 years imprisonment with a non-parole period of two years, however the appeal was dismissed by the three judges. Following the accident in 2006, the NSW Government implemented new restrictions on provisional licences, making it illegal for P1 driver to carry more than one underage passenger between

11pm and 5am R v S hirley J ustins Shirley Justins and Caren Jenning were charged [2008] NSWSC 1194 (12 with the death of Graeme Wylie, who died as a November 2008) result of their obtainment of the illegal drug Nembutal.

The court found that because of Wylie's advanced dementia, he could no longer have the capacity to make the decision to end his own life. Wylie's long-term partner, Shirley Justins, was found guilty of manslaughter while Caren Jenning was found guilty of being an accessory to manslaughter, and of importing Nembutal. Justins was sentenced to 22 months of weekend detention. Before handing down the sentence, Caren Jenning (aged 75) took her own life using the same drug. She was suffering from terminal cancer and feared of dying in jail

R v L MW [1999] NSWSC A 10-year-old boy, LMW, was charged with the The defendant had 1109, 17 November manslaughter of six-year-old Corey Davis, who dropped Corey into 1999 drowned on 2 March 1998 the Georges River, knowing that Corey

found not guilty of manslaughter, as the jury supported the defence case that the drowning of Corey had been 'an act of bullying that went wrong'. This case raised the issue of doli incapax, which presumes any child aged 10-14 is incapable of criminal intent unless proven otherwise (found out that LMW had the mental capacity of an 8 year old and had no intent of killing) R v Stanford, Vincent

Vincent Stanford was charged with the murder Vincent Stanford (the

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[2016] NSWSC 1434 (13 October 2016)

of Ms Stephanie Clare Scott at Leeton High School on 5 April 2015

offender) has pleaded guilty to the murder of Ms Stephanie Clare Scott. He has also pleaded guilty to having sexual intercourse with Ms Scott without her consent, knowing that she was not consenting, in circumstances of aggravation. These offences occurred at Leeton High School on 5 April 2015. Facts are citied in the link.

Trevor Bird, 68, was killed in September 2012 when a car driven by Bo Xi Li, 30 crossed onto the wrong side of North East Road at Houghton and collided with his van

Li was found guilty by a jury of causing harm by dangerous driving after the court heard he was travelling at 104 km per hour just before the crash. Judge Michael Boylan sentenced Li to five years' home detention under new amendments to South Australia's sentencing act which came into effect 3 weeks ago.

On 15 July 2014, following a trial in the Supreme Court of Queensland before Byrne SJA and a jury, the respondent was found guilty of the murder of his wife, Allison Baden

The Court of Appeal held that, the evidence did not allow the jury to be satisfied beyond reasonable doubt that the respondent intended either to kill

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her, or to cause her grievous bodily harm. In particular, the Court of Appeal accepted that the prosecution had not excluded the hypothesis that the respondent had struck his wife in the course of a struggle and that she had died as the result of a fall, or in some other manner, that did not involve an intent on his part

R v Rogerson; R v McNamara (No 57) [2016] NSWSC 1207 (2 September 2016)

Glen Patrick McNamara and Roger Caleb Rogerson were charged with the murder of Jamie Gao on 20 May 2014, and the supply of the prohibited methylamphetamine, well above the allowed for commercial use

MORE EXAMPLES INCLUDING ALL TYPES OF HOMICIDE AND MORE RECENT ONES (E.G. 2015 OR BETTER, 2016)

Former detectives, McNamara and Rogerson were found guilty of murdering Jamie Gao, during a drug deal at a Padstow storage facility on May 20, 2014 and dumping his body in waters off Cronulla the next day. They were sentenced to life imprisonment, with a standard nonparole period of 15 years imprisonment. The Crown case, in which the jury clearly accepted, was that the offenders had engaged in a joint commercial enterprise to kill the deceased, and to steal a large quantity of drug from him for profit.

http://guides.sl.nsw.gov.au/content.php?pid= 242811&sid=2193146 http://www.austlii.edu.au/

Assault ❖ Definition: Assault includes the offence of causing physical harm to another person or threatening to cause physical harm to another person (known as common assault) ❖ Physical assault is a direct act in which force is applied to another person's body unlawfully

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and without their consent and is punishable by up to 5 years' imprisonment (assault) ❖ A threat to cause physical harm can also be a form of assault where it causes the victim to fear immediate and unlawful violence such as threatening phone calls (common assault)

Sexual Offences ❖ Definition: a type of assault where someone is forced into sexual intercourse against their will and without their consent, commonly known in common law as 'rape' ❖ Sexual intercourse is defined broadly in the Crimes Act 1900 (NSW) to include different types of sexual acts including oral sex and penetration ❖ Victims fear of reporting is a serious problem in cases of sexual assault. It is one of the least reported crimes, has low conviction rates ❖ Lack of consent is central to the crime of sexual assault, and not consenting includes: - Substantially intoxicated by drug and alcohol and therefore lack the capacity to consent - Intimidated or coerced into the act - If the accused is abusing their position of trust or authority over the victim - A child under the age of 16 is not legally able to give consent ❖ Indecent Assault: an assault and 'act of indecency' one or in the presence of another person without their consent, such as touching the genitals or other parts of the body in a sexual manner without the person's consent ❖ The most serious sexual offence in NSW is aggravated sexual assault in company (e.g. gang rape), punishable by the highest criminal sanction life imprisonment and is viewed by the law as equivalent in seriousness to murder ❖ Aggravated Sexual Assault in Company: sexual assault performed with another person or people present together with aggravating circumstances, including infliction or threatened infliction of bodily harm ❖ Case Example: R v AEM (Snr); R v MM [2002] NSWCCA 58 - The catalyst for change in the NSW law of aggravated sexual assault in company was the case of R v AEM. - At the time, the highest penalty was 20 years' imprisonment and the men were originally sentenced to 5-7 years imprisonment each - The abhorrent nature led to public outcry, believing they were too lenient given the nature of the crime - Following this case, the NSW Parliament moved quickly to introduce new laws and tougher penalties, creating a new offence of 'aggravated sexual assault in company' in s 61JA of the Crimes Act 1900 (NSW), carrying a maximum penalty of life imprisonment, equivalent to that of murder - On appeal by the crown in 2002, the judges decided to significantly increase the offenders' original sentences, substituting them with 13-14 years' imprisonment each

Offences against the Sovereign ❖ Include political offences against the state or heads of state, such as treasons and sedition, attracting severe penalties ❖ The laws are justified as protecting the structure, authority and integrity of the state and citizens; historically used to prevent or punish attempts to overthrow or even criticise heads of state

Treason ❖ Definition: An attempt or manifest intention to levy war against the state, assist the enemy or cause harm to or the death of a head of state (such as the Governor-General, Prime Minister, etc) and is punishable by up to 25 years' imprisonment (NSW) or life imprisonment (Commonwealth) ❖ NSW Legislation: under Part 2 of the Crimes Act 1900 (NSW) ❖ Commonwealth Legislation: Crimes Act 1914 (Cth) and later under s80.1 of the Criminal Code 1995 (Cth) ❖ Case Example:

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Sedition ❖ Definition: Promoting discontent, hatred or contempt against a government or leader of the state through slanderous use of language, such as offences or urging force or violence against the government, punishable by up to 7 years' imprisonment ❖ Sedition laws had fallen into disuse until 2005 when Prime Minister John Howard had introduced a range of controversial anti-terrorism laws in the Anti-Terrorism Act (No.2) 2005 (Cth), which revived sedition law ❖ The Australian laws under s 80.2 of the Criminal Code 1995 (Cth) have made it a crime to urge another person to use force or violence to a particular end, such as overthrowing the government or the Constitution or interfering in parliamentary elections ❖ The sedition laws received widespread public criticism as being unnecessary, against the times, and a danger to freedom of expression, particular in relation to the critique in media, co...