crime - tsfx.edu.au · • actus reus (guilty act): ... • r v munter • the accused, munter, was...

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CRIME

1. THE NATURE OF CRIME

- The meaning of crime

• A crime is any act or omission committed against the community that is punishable by the

state

CRIMINAL LAW CIVIL LAW

• Concerned with the protection of society

• A crime is an offence against society as a whole, punishable by the State

• Relates to rights and responsibilities between individuals

• Police or DPP (State/Crown) decide to prosecute the offender in court

• Offender is known as the accused or defendant

• Action is commenced by the individual affected (plaintiff), against the person claimed to be responsible (defendant)

• Crown must prove beyond reasonable doubt, i.e. no other reasonable conclusion besides proving criminal charges can be drawn from the evidence; no doubt of guilt of defendant

• Must prove on balance of probabilities

• Aim is to protect community and to provide sanction to an offender who is found guilty by a court of law

• Aim is to address the defendant’s wrong by way of a remedy/court order in favour of plaintiff

- The elements of crime: acts reus, mens rea

• Actus reus (guilty act): that the accused person physically carried out the crime, or failed to act

when they have the duty to do so

• The only element of the crime that needs to be established in a strict liability offence

• Mens rea (guilty mind): that the accused person intended to commit the crime; understood

what was happening when the act was committed; had a conscious and willing mind when

performing the crime

• There are 3 levels of mens rea;

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Intention:

• Clear, malicious and wilful intention to commit crime

• Highest level, hardest to prove

Recklessness:

• Accused was aware that their action could lead to crime being committed but took the risk anyway

• Prosecution needs to prove risk was obvious or foreseeable to a ‘reasonable person’

Criminal Negligence:

• Accused fails to foresee the risk when they should have and so allows the avoidable danger to occur

• Seen when someone has the duty to protect

• R v Thomas Sam & R v Manju Sam (2009)

• Mother and father charged with manslaughter by criminal negligence over death of their 9 month old daughter who suffered eczema

• Parents relied solely on homeopathic treatments (ineffective); denied conventional treatment

• Parents should have taken signs of child crying and her broken skin that they were not fulfilling their duty as parents to protect their daughter

• Both found guilty of manslaughter and sentenced to imprisonment

- Strict liability offences

• An offence where the mens rea does not need to be proven, only the actus reus

• E.g. speeding, smoking in a non-smoking area, travelling on public transport without a valid

ticket

- Causation

• The relationship between the actions of the accused and the result/effect, i.e. the behaviour of

the accused actually caused the alleged criminal act

• R v Munter

• The accused, Munter, was charged with manslaughter after he punched an old man,

Proctor, over a dispute regarding water restrictions

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• Proctor fell to the ground and hit his head; he later died from a heart attack that

occurred as a result of the assault by Munter

• Although there was no intent to kill, court deemed the death to have a direct

causation link with the unlawful assault

- Categories of Crime

OFFENCES AGAINST THE PERSON

• Homicide is the unlawful act of killing another person; causation must be established in a

homicide case to link the actions of the accused and the fatal outcome

EXAMPLES OF OFFENCES DEFINITION MAXIMUM PENALTY

Murder

• E.g. Ivan Milat • The most serious homicide

offence

Life imprisonment

Manslaughter

Voluntary manslaughter

Involuntary manslaughter

• E.g. DPP v Newbury and Jones (1977)

• The accused deliberately dropped concrete from a bridge and killed someone on the street

Constructive manslaughter

• E.g. a person assaults another person without intent to inflict serious damage or kill, but results in their death

• Differs from murder in the intent of the accused

• Frequently, occurs when the offender has been provoked into acting

• Kills with intent, but court finds mitigating circumstances, e.g. provocation

• No intent

• Death occurred because the accused acted in a reckless or negligent manner

• The killing of a person while the accused was committing another dangerous or unlawful act

25 years

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Infanticide

• E.g. Kathleen Folbigg • Applies to death of a baby

under 12 months of age, at hands of its mother

• If accused is found to have been suffering from post-natal depression, it can be seen as a mitigating circumstance

Dangerous driving occasioning death

• E.g. Bus driver in CBD case (balancing rights)

• When a person drives in an unsafe and reckless way; under influence of alcohol or drug, or excessive speed

14 years

• Assault is the most common form of crime against the person. It includes the offence of causing

physical harm to another person and of threatening to cause physical harm to another person

(common assault)

• 7 year maximum penalty

EXAMPLES OF OFFENCES DEFINITION

Common assault

• E.g. raising a hand in a menacing way as though to physically assault someone

• Does not involve physical harm to a person

• When a person apprehends immediate and unlawful violence

Physical assault • Force is applied to another person’s body unlawfully and without consent

• Exemptions: behavioural correction of children, reasonable force in arrest

Sexual assault • The act of forcing someone into sexual intercourse against their will and without consent

Indecent assault • Covers sexual acts that are not included in sexual assault, e.g. touching genitals non-consensually

Aggravated (using weapon) sexual assault in company

• R v Skaf

• Most serious sexual offence in NSW

• Involves elements of sexual assault, but is performed with another person/people present, together with either depriving the victim of their liberty or the threat to inflict, or the inflicting of bodily harm

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OFFENCES AGAINST THE SOVEREIGN

• Aim to protect the integrity, structure and authority of the state

• TREASON

• An attempt to levy war against the state, assist the enemy, or cause harm to or the

death of a head of state (acting against the country, e.g. spying like Assange)

• Formerly punishable by death

• Today, it is punishable by up to 25 years imprisonment (NSW) or life imprisonment

(Commonwealth)

• SEDITION (7 years imprisonment)

• The promotion of discontent or hatred against a government or leader of the state

through slanderous use of language, e.g. using violence against the government

(speaking out or bringing down the government, e.g. people recruiting young terrorist)

• Howard introduced Anti-Terrorism Act (No. 2) 2005 (Cth); revived concept of sedition

• Mixed public response; “necessary to modern terrorism climate”, “obstruction of

human rights”

ECONOMIC OFFENCES

• Crimes that result in the loss of property or money

• Crimes against property


Larceny • ‘Stealing’, ‘theft’

• Most common property offence

• Taking property that does not belong to someone, without consent, without the intention of ever returning it

Break and enter (burglar) • When a person enters a room or building (residential or business) with the intention of committing an offence like larceny

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Robbery

• E.g. Pulling driver out of car and then stealing the car

• Stealing directly from victim and commonly uses force

• White collar crimes are non-violent crimes commonly associated with professionals and

business people; time-consuming and expensive to investigate and often difficult to detect


Embezzlement

• E.g. Employee trusted to transfer funds between business accounts, but chooses to transfer some of firm’s money into their personal account

• When a person (usually employee) steals or intentionally misuses money from a business over a period of time while they are employed there

Tax evasion • When an entity tries to avoid paying taxes to the government through various means

• People try to claim their income is lower than it actually is

Insider trading • In relation to the buying and selling of company shares

• If a person in a business obtains confidential information about a company that will affect that company’s share price; offender can then take advantage of this information (buy/sell shares) to gain benefits

• Computer offences

• FRAUD

• Economic offence, property offence, computer crime

• Refers to deceitful or dishonest conduct carried out for personal gain

• Advances in technology (online banking, ATMs) mean fraud is becoming increasingly

common

• Examples; identity theft, internet phishing, requesting funds online / requesting a

customer’s bank details under a fraudulent company

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DRUG OFFENCES

• Acts involving prohibited or restricted drugs; growing, making, selling, using

• Penalties include drug rehabilitation program or requirement to comply with good behaviour

bond

• Suppliers face harsher penalties; offence against community

• Traffickers face long jail sentences in Australia

Possession of a prohibited drug • Regardless of whether the drug is in complete custody of the person, or if they are minding it for another

Use of a prohibited drug • Intentional consumption of the drug by any means

Supply • The offering of, or the agreement to supply (regardless whether the exchange occurs) drugs

Trafficking/Manufacture • For business; commercial level

DRIVING OFFENCES

• Less serious; strict liability offences that incur fines and/or demerit points, e.g. exceeding

speed limit, ignoring road sings

• More serious; imposition of large fines, cancelled licences, imprisonment, e.g. negligent driving

causing death / serious bodily harm, furious or reckless driving

• Zoe’s law; attempted reform to make killing an unborn child is a criminal offence (e.g. driving)

PUBLIC ORDER OFFENCES

• Acts seen as a disturbance to the public order

• Listed in the Summary Offence Act 1988 (NSW)

• E.g. threatening language in a public place, bomb hoax, possessing a knife without a

reasonable excuse

Affray

• E.g. charge often laid as a result of a public fight/brawl

• Use or threat to use violence in away that would cause a reasonable person present in the vicinity to fear for their own safety

Riot • A big affray

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• Involves 12 or more people threatening / using violence for a common purpose

PRELIMINARY CRIMES

• Crimes that precede the crime itself, even if the crime is never actually committed

Conspiracy • When two or more people combine to plot a crime

• Conspiracy seen as complete when an agreement between two or more parties is reached, with a clear intention from each party

Attempts

• R v Whybrow (1951)

• Husband convicted of attempted murder

• Wired up soap dish in shower so wife would die when she touched it

• She only received a shock

• Husband’s intention was still clear

• Where a crime was attempted but failed or was prevented, despite the intention to complete it

• Penalty usually the same as if the crime had taken place

• Prosecution must establish that every component of the crime was in place, and that it was all but complete due to failure

• Must establish intent

REGULATORY OFFENCES

• Set out in delegated legislation; address day-to-day situations or standards

• Watering garden outside of the restricted time

• Breaching WHS regulations

• Lighting fires on day of total fire ban

- Summary and Indictable Offences

Summary Offence

• Less serious/minor offences that are heard and sentenced by a magistrate in a Local Court

• Charge usually laid by police officer

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• Penalties; fine, good behaviour bond, community service, jail sentence up to 2 years (or 5 if

convicted of more than one offence)

• E.g. using offensive language in close proximity to school; max. 100h community service

• E.g. climbing/jumping from buildings or other structures; max. 3 month imprisonment

Indictable Offence

• More serious offences that are heard and sentenced by a judge and jury in a District Court or

higher

• Charge usually laid by public prosecutor

• Require an initial committal hearing in Local Court to determine whether the prosecution’s

evidence is sufficient to go to trial (see whether prima facie exists)

• Penalties; imprisonment, hefty fine

- Parties to a crime

Principle in the first degree • The principal offender

• The person who actually commits the criminal act

• Likely to receive highest sentence

Principle in the second degree • The person present during the crime and assisted or encouraged the principal offender to commit the offence

• ‘Presence’ doesn’t have to be physical; can include providing instructions over the phone

Accessory before the fact • Someone not present during the crime but helped the principal plan or prepare the crime before the actual act is carried out

Accessory after the fact • Someone who knowingly assists the principal after the actual act is committed

• Not present during the crime or aware of it beforehand

- Factors affecting criminal behaviour

Psychological • Where mental illness affects a person’s behaviour

• E.g. kleptomania

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Social • Relationships and experiences of the accused

• These social groups may condition their attitudes regarding what is and isn’t acceptable

• E.g. child when abusive parents may grow up to emulate this behaviour in their own relationships

Economic • People from disadvantaged backgrounds

• Poor education, lack of skills

• Some people turn to crime because they cannot find job

Genetic • Scientists and criminologists have debated / investigated to compare the genetic makeup of prisoners to see if there is any one common genetic market that predicts criminal behaviour

• Research not conclusive

Political • Relate to offences against the sovereign

• E.g. terrorism

Self-interest • Profit motive, revenge, greed

- Crime prevention: situational and social

TYPE EXPLANATION EXAMPLES

Situational Crime Prevention (Physical devices)

• Measures that make it more difficult for criminals to carry out a crime

• Therefore stop the crime before it is committed

• Often involves planning and architectural design which focuses upon the influence of physical environments upon crime

• CCTV cameras

• Colour tags attached to clothing in shops

• Blue fluorescent lights in public toilets

• Bars and alarm systems

• Computer passwords

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Social Crime Prevention (Programs)

• Measures to address the underlying social factors that may lead to criminal behaviour

• E.g. poor home environment and parenting, social and economic disadvantage, poor school attendance, early contact with police

• ‘Midnight Basketball’ - A harm prevention charity that runs a national social inclusion program to protect youth from harm; consists of workshops, e.g. substance misuse, and basketball games

• ‘Blue Light’ - Provides youth of NSW with entertainment in an environment free from drugs, alcohol, anti-social behaviour

2. THE CRIMINAL INVESTIGATION PROCESS

- Police Powers

• Police have the responsibility of enforcing criminal laws and maintaining public order

• Laws alone would be ineffective without any means to enforce them > police ensure criminal

laws are observed

• Police form part of the executive arm of government (they do not make the law)

• Role of the police in the criminal investigation process:

• Investigate crimes

• Make arrests if necessary

1. State “you are under arrest”

2. Provide a reason for the arrest

3. Physically touch the person (symbolic gesture of control)

• Interrogate suspects and gather evidence against the accused

• The challenge for all communities is to balance the extent of powers required by the police

against the rights of ordinary citizens

• Concerns often raised about use of excessive force, deaths in custody, or time wasted

(resource efficiency)

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• SMH How the Police Waste our Time on a Massive Scale (2015) reported only 21% of

police rostered hours are spent on criminal investigations; in the 15 months leading up

to April 2015, only 0.35% of breath tests resulted in charges being laid

Law Enforcement (Powers and Responsibilities) Act (NSW)

• Outlines the special legal powers of the NSW Police Force to enable them to carry out their

duties effectively

• These powers include:

• Use reasonable force if necessary to carry out their duties

• Use particular technologies to assist in an investigation, e.g. surveillance, phone taps,

DNA samples

• Detain and question suspects

Section of LEPRA Police Power

s19A • Power of police officer to require removal of face coverings for identification purposes

Part 4, s21 Balancing Rights

• Power to search persons and seize and detain things without warrant

• (If police have reasonable belief a person is carrying illicit items, or have, or about to commit a crime)

s99 • Power of police officers to arrest without warrant

s148 • General drug detection with dogs in authorised places

s202 • Police officers to provide information when exercising powers

s230 • Use of force generally by police officers

NSW Police Force Code of Practice ‘CRIME’

• Specific code of behaviour

• Sets out the rights of suspects and the manner in which investigations should be carried out

Misuse of police power

• You may lodge a complaint:

• Go to police station and ask to see the duty officer/Local Area Commander

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• Contact the Commissioner of Police

• Contact the Ombudsman’s office

- Reporting crime

• Police are not always present when a crime is committed > the role of the public in reporting

crime is critical to the process

• Organisations have been established to encourage the public to report criminal activity

• “Crime Stoppers”; a national, community-based program that encourages people to

report information about unsolved cases or suspicious activity; people can remain

anonymous; 7400 people contacted Crime Stoppers, resulting in over 90 arrests and

250 charges

• “Wanted Persons”; releases information to the public about criminals on the run

• Some people or businesses may be reluctant to report crime:

• May be reluctant to be involved in a potentially burdensome legal process

• May fear the consequences of the crime is reported

• May be reluctant to stand as witness

• Victims of domestic violence may be reluctant to report crime:

• Fear of backlash from perpetrator, feelings of shame or embarrassment, believing the

incident was trivial

• 10% of victims did not report their most recent incident due to previous disappointing

experience with police

1. Crime committed

2. Crime reported

3. Criminal investigation processes

4. Arrest

5. Charge

6. Less serious offences > C.A.N (court attendance notice); indictable offences > bail hearing, if bail is denied, then remand

- Investigating crime: gathering evidence, use of technology, search and seizure, use of warrants

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GATHERING EVIDENCE

• When someone reports a crime, police will decide whether to investigate the crime and

endeavour to find the perpetrator or take no further action (discretion) > if they choose to

proceed, police gather evidence

• Evidence is used to support a charge - a formal accusation of a person committing a criminal

offence

• Involves investigating the crime scene, calling in specialists and detectives to document

evidence in situ (original site) using video and photography, interviewing witnesses and

questioning possible suspects

• Evidence can include:

• Oral testimonies, physical objects/weapons, documents, fingerprints, tape recordings,

video surveillance, electronic information on hard drives

• Evidence must be relevant to the case, obtained in a proper and lawful manner as required by

Evidence Act (NSW) and be meticulously recorded and handled to maintain its integrity

• Evidence that is contaminated or compromised is inadmissible evidence

• Mr Bubbles Case (1989) resulted in law reform around gathering evidence > a man

operated a private kindergarten was charged with 54 counts of child abduction and

sexual assault; as a result of the unskilled, repetitive and probably direct questioning

by police, the judge determined that the children’s evidence was inadmissible

• Now specially trained officers are used when children are involved

• R v Cowan (2013)

• Police employed Mr Big techniques in a covert operation over 10 years to catch Brett

Peter Cowan, the killed of Daniel Morcombe

• Undercover police elicited confessions from Cowan, “No, yeah, I did it,”

• Janelle Patton (2002)

• Murder squad conducted a mass fingerprinting program on Norfolk Island in a bid to

solve the murder of Sydney woman Janelle Patton

• Island residents between ages of 15 and 70 were invited to voluntarily participate

USE OF TECHNOLOGY

• DNA Evidence

• The Crimes (Forensic Procedures) Act 2000 governs the use of DNA testing procedures

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• States that forensic material taken from a suspect must be destroyed if a period of 12 months

has elapsed and proceedings for the offence the forensic material was taken for, have been

discontinued (unless there is a pending investigation against the suspect) > BALANCING

RIGHTS, RESOURCE EFFICIENCY, INCREASES CONVICTIONS

Advantages:

• DNA evidence is a crucial part of the criminal investigation process as it provides merit for both

cold and current cases

• R v White (2005)

• DNA from the retrieved cigarette butt matched that taken from scrapings underneath

Mrs O’Brien’s fingernails following the attack

• DNA databases make it easy for police to share information across states and internationally

Disadvantages:

• DNA testing is a lengthy process > in some criminal cases there is a backlog of up to 12 months

• There have been instances where errors in the DNA process have resulted in wrong convictions

• Facial recognition

• Initially used by Federal Police (2012) with controversy

USE OF WARRANTS

• A legal document issued by a magistrate or judge which authorises a police officer to

perform a particular act, e.g. make an arrest, conduct a search, seize property, use a phone

tap

• Police must obtain a warrant to:

• Extend interrogation period for up to a further 8 hours (otherwise only 4 hours)

• Arrest someone for a crime they are investigating

• Enter and search any residential of business premises without the consent of the

occupier

• Obtain a phone tap

• Governed by Part 5 of LEPRA

• Provides a judicial safeguard for ordinary citizens to ensure police powers are used

appropriately

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• 2015: NSW Supreme Court Judges are required to give written reasons for issuing warrants

authorising covert surveillance (e.g. listening devices)

• BALANCING RIGHTS > increased protection for society; right to privacy

- Arrest and charge, summons, warrants

Arrest • Seizing a person by legal authority and taking them in to custody

• An arrest is completed when a person’s will is overborne

Interrogation • The act or process of questioning a suspect, carried out by the investigating officers

Caution • A statement issued by police to a suspect when they are detained to inform them of their rights

Charge • Formal accusation of a person of committing a criminal offence

Court attendance notice

• A legal document that states when and where a person must appear in court and the charge to which they must answer

• Used to be called a ‘summons’

Bail • The temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgement of a sum of money as a guarantee

Surety • In bail, where another person agrees to provide a financial guarantee that the accused will return to the court for trial in exchange for the accused release until that date

Subpoena • A legal document issued by a court which requires a person to attend and give evidence and/or to produce specified documents to the court

• For a witness

Remand • A period spent in custody awaiting trial

ARREST

1. State “You are under arrest”

2. Provide a reason for the person’s arrest

3. Place a hand on the person

• Diminished rights

• Symbolic gesture that the police have the control of the person

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• Under s99 of LEPRA, police can lawfully arrest someone without a warrant if they suspect ‘on

reasonable grounds’ that a person is committing or has committed an offence

• Difficulties can arise around interpretation of ‘reasonable grounds’ > allows considerable

discretion

• If police wish to arrest someone for a crime they are investigating, the courts will issue the

police with a warrant to do so

• Under s230 of LEPRA, police can use reasonable force to arrest a person

• Once arrested, police must issue the suspect with a caution, both verbally and in writing

which outlines the person’s rights

DETENTION, INTERROGATION and the RIGHTS OF SUSPECTS

• Once arrested, police can only detain a suspect for 4 hours, by which time that person must

either be charged or released > can be extended up to a further 8 hours with a warrant from a

magistrate

• During the 4 hours, the suspect undergoes interrogation which must be recorded on video

tape and on two audiotapes > one for police and one for defendant

• Enhances reliability of evidence gathered

• Gives defendant access to information if needed in trial, thereby balancing rights

• Under the Terrorism (Police Powers) Act 2002 (NSW), police can detain a person in custody for

interrogation for a maximum of 14 days without charge

RELEASE, CHARGE and SUMMONS

• At the end of the maximum detention period, the police must either release a suspect without

charge unconditionally or charge the suspect with a specific offence

• If charged for SUMMARY OFFENCE, the person will be issued with a Court Attendance Notice

• If charged for INDICTABLE OFFENCE, the person will be kept in custody but brought before a

court as soon as practicable for Bail hearing or Remand

• Remand if they are a danger to the public > ‘flight-risk’, i.e. if a multi-million dollar

drug dealer escapes overseas, e.g. Tony Mokbel

- Bail or remand (RELATES TO ALL THEMES AND CHALLENGES)

• Bail is the temporary release of an accused person awaiting trial, often on particular

conditions

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• These include the lodgement of a specific sum of money (surety), restrictions on

movement, wrist/ankle monitoring devices, a requirement to show up at a police

station

• Strikes a balance between upholding the liberty of the accused person who is entitled to the

longstanding common law right of the presumption of innocence, whilst ensuring the safety of

the community

• Attempts to uphold the liberty of the accused person, who is entitled to the longstanding

common law right of the ‘presumption of innocence’, as well as society’s right to remain

unthreatened and unharmed by potentially dangerous criminals

• ROBERT XIE: was granted bail during his murder trial in the Supreme Court- which later found

him guilty of 5 counts of murder

• Justice Fullerton granted Xie bail due to his rapidly deteriorating physical and mental

health after being in custody for over 4 years

• Xie had strict bail conditions imposed on him, e.g. reporting to the police station three

times a day, and had to observe curfew hours

• BOURKE STREET MALL, Melbourne: the offender who used a vehicle to mow down

pedestrians was on bail at the time of the offence

• Raised questions about him being on bail for previous offences

• Society’s right to be safe from potential offenders

• Detaining an individual who has not been found guilty by a court of committing an offence is a

very serious inclusion on liberty

• Resource efficient > costs $500/day to keep a prisoner in jail

• “Bailed after putting gun to man’s head” Daily Telegraph 2012

• Charged with several firearm offences > put weapon to man’s head, pointed pistol at

female motorist, aimed pistol at dog with children present

• Magistrate granted him bail on strict conditions :

• Stay at grandmother’s home from 6pm to 6am, not allowed to go outside

unaccompanied in daylight hours, may not approach witnesses, must report to

Maroubra Police Station daily

• BAIL LAW REFORM

Bail Act (1978) NSW

• 80 amendments made to presumptions for or against bail

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2007

• Act was toughened after high profile offences

• Amendments restricted the number of bail applications to one for young offenders which

resulted in an increase in the number of juveniles on remand from

Year 2006 2008

Number of juveniles on remand

2623 5082

Glen McEnally (killed in 2002) • McEnally on patrol, pulled over a car full of juveniles for driving offences

• The people shot at the police car and killed him

• They were on bail for other criminal offences

David Carty (killed in 1997) • Off duty, walking through a carpark

• Witnesses a brawl

• Attempts to intervene

• Bludgeoned to death by the attackers

Changes to Bail Laws in 2013

• In 2012, the NSW Law Reform commission report described NSW laws as “voluminous,

unwieldy, hugely complex”

• Government responded by introducing Bail Act 2013 (came into effect in May 2014)

• It removed all presumptions related to bail and replaced it with an “unacceptable risk test”,

whereby the onus was on the prosecution to show that an accused posed an “unacceptable

risk”

• E.g. committed a serious offence, could be a danger to the victim or community, might

interfere with evidence, fail to attend court

• People argued it appeared to favour the rights of the accused, over the safety of the

community

Changes to Bail Laws in 2014

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• The reforms in 2014, just 38 days since the commencement of the Bail Act (2013), were largely

attributed to 3 cases

• Under the Bail Amendment Act (2014), the onus will be on the people accused of serious

offences to “show cause” that their detention in custody before trial is not justified

• A serious offence, i.e. sexual assault of child, use of firearm, manufacture or supply of

commercial quantities of an illicit drug, serious or repeated acts of personal violence,

that the alleged offence was committed while the accused was on bail or parole

• Unacceptable risk test is still applied if the person can show cause

• “The NSW Government has recognised the need for victim’s families to be heard” (then -

Attorney-General Brad Hazzard)

• ABC News article “Stricter bail laws would be an assault on our rights”

• Articulates that the 2014 Bail laws have “cast aside” the fundamental rights and liberty

of individuals; broaching the possibility people who are subsequently found not guilty

of criminal offences have to “languish in prison for months or years despite having not

committed any offence”

Mick Hawi (former leader of bikie gang) • Allowed on bail for charges of murder at Sydney Airport

• Bludgeoned a leader of a rival bikie gang to death

Sam Ibrahim • Allowed on bail for charges relating to kidnap, assault

Steven Fesus • Allowed on bail for charges of murder (strangled wife)

• SMH

More Reform to Bail Laws?

• Lindt Cafe Siege (2014) has prompted more discussion about introducing tougher bail laws but

people argue that the Bail Amendment Act (2014) already undermines fundamental human

rights

• Man Monis on bail for being an accessory to the murder of his former partner, and 43

sexual charges (NSW legislation)

• He then committed the Lindt Cafe Siege during his bail for the above (Commonwealth

legislation)

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• Thus, there was no communication between the NSW and Commonwealth legislation

> fault in legal system

• According to the NSW Department of Justice, new changes were announced:

• Bail will be refused (unless there are exceptional circumstances) where the accused is

charged with an offence that carries a custodial sentence or is terrorist related

• These changes to the Bail Laws were prompted by the Lindt Cafe Siege, and

recommended by the Baird government

• The Government justified these changes, on the basis that “public safety is the number

one priority for this government”

• According to SMH, legal experts criticised Baird’s proposals, describing them as a

“knee-jerk” reaction that undermined the fundamental legal principle of judicial

discretion

• Stephen Odgers (Chair of NSW Bar Association); “If there is a real risk of the person

committing serious crimes, there is no real doubt that person would be refused bail

under current laws,”

• Lobby Group ‘Bail Reform Alliance’ - “ad hoc responses to particular crime incidents”

4. CRIMINAL TRIAL PROCESS

RIGHTS OF VICTIM RIGHTS OF THE ACCUSED RIGHTS OF SOCIETY

• Victim impact statement • Rules of evidence > e.g. murder weapon can’t be found in an illegal search

• Right to access information (online, open court system)

• Give evidence • Right to appeal • DPP can appeal on behalf of society the leniency of the sentence

• Presumption of innocence

• Burden of proof is beyond reasonable doubt

• Right to fair trial > (procedural fairness)

- Court Jurisdiction

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• LOWER COURTS

• Local Court of NSW

• Has only original jurisdiction, hearing a majority of criminal prosecutions in NSW at

many locations, e.g. Manly, Hornsby, Parramatta

• Conducts bail hearings and committal proceedings (magistrate determines if there is

enough evidence to proceed to trial)

• Deals with summary offences or indictable offences that are triable summarily (no

jury) if accused consents

• Matters heard solely by magistrate - no jury

• Hearings processed faster, and at less cost (max. penalty is jail sentence of 2 years or 5

years if person is convicted of multiple offences)

• Deals with civil cases of up to $100,000

• Coroner’s Court

• Specialist Court

• Investigates unusual or suspicious deaths and with fires and explosions where

property has been damaged or person injured

• A coronial inquest is a court hearing (not trial) where the coroner considers

information to determine cause of death

• Coroner cannot convict someone, but their findings can be used as evidence in trial

• Children’s Court

• Specialist court

• Dual role:

• Deals with matters relating to the care and protection of children/young

people

• Criminal mattes involving those under 18 (except for serious indictable

offence)

• Matters heard in a closed court, summarily (no jury) and before a single magistrate

who is specially trained

• INTERMEDIATE COURT

• The District Court

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• A trial court with original and appellate jurisdiction, hearing appeals from local courts,

and hearing all indictable offences (except those heard in Supreme Court)

• E.g. offences against the person: manslaughter, sexual assault; property offences:

larceny, robbery, break and enter; driving offences: dangerous driving causing death

• Trials have a judge and jury

• Deals with civil cases for amounts from $100,000 up to $750,000

• SUPERIOR COURTS

• Land and Environment Court

• Some criminal jurisdiction to hear environmental offences such as illegal dumping

• The Supreme Court

• Highest Court in NSW

• A trial court with original and appellate jurisdiction, hearing appeals from lower courts,

and hearing serious indictable offences

• E.g. murder, attempted murder, major conspiracy, serious breaches of Corporations

Law

• Trials have a judge and jury

• Deals with civil cases for amounts over $750,000

• Court of Criminal Appeal (CCA):

• Has only appellate jurisdiction - highest court of appeal for matters in NSW

• A person who has been convicted by District/Supreme Court can appeal to CCA

• Criminal appeals can also be brought from Land and Environment Court

• Appeals heard by 3 Supreme Court judges with majority view prevailing

• FEDERAL COURTS

• Federal Court of Australia

• Most Commonwealth criminal offences (drug importation, money laundering, tax or

social security fraud) will usually be trialled in the corresponding State court (there is

legislation that refers jurisdiction to the State Courts to exercise Federal law)

• Commonwealth offences: prosecuted by Commonwealth DPP

• A limited number of criminal proceedings can be heard in the Federal Court of

Australia

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• The High Court of Australia

• Mandated by s71 of Australian Constitution

• Highest court in Australian court hierarchy

• Has original jurisdiction for Commonwealth matters (or cases dealing with the

interpretation of the Constitution), no original jurisdiction for criminal matters

• Can hear appeals for criminal matters from state and territory Supreme Courts, but

only when accused has been granted special leave to do so

• Panel of 7 judges > majority prevails

- The Adversarial System

• A system of resolving conflicts used in common law countries where two advocates

(prosecution and defence) represent their parties’ case before an impartial person or group of

people, usually jury or judge, who determine the truth in the case

ADVANTAGES DISADVANTAGES

• Both sides can present witnesses and evidence to support their positions

• Can cross examine witnesses and challenge arguments

• Strict judicial proceedings ensure that both sides are given equal opportunity to express their cases in a convincing but fair manner

• Yet, this relies on the skill of representatives

• Assumes that each party has equal knowledge, expertise and access to resources - defendants from lower socio-economic backgrounds may not have the same access to legal representation as wealthy and influential defendants

• Properly observes the rights of the defending and prosecuting parties - accused given the right to remain silent, allowed to get a lawyer to assist in the case, remain innocent until proven guilty

• Costly process - average trial costs $40,000 per day for a trial by jury

• Stood the test of time > been around since the middle ages

• Criticism: Search for truth is secondary to the manipulation of the rules of the contest so as to win

• Important facts may be omitted because it is not in favour of the party’s argument > increasing the likelihood of skewing facts and affecting juries’ verdict

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• Judge or jury cannot ask for evidence, they can only make a decision from the information presented to them

Rogerson and McNamara found guilty of the murder of Jamie Gao

• Trial ran for 18 weeks

• Jury took 6.5 days to consider their verdict

• Both blamed each other > jury could not determine beyond reasonable doubt, yet decided

they were guilty because who pulled the trigger was beside the point; it was a joint venture

NSW Law Reform Commission (2012)

• Found the adversarial system to be “ineffective, complicated and time-consuming”

• Articulates how the adversarial system is largely inefficient in the criminal trial process

“Big Changes needed to improve access to Justice” (SMH)

• “the high costs and lengthy delays, need to be addressed simultaneously if real progress is to

be made”

Inquisitorial system

• Judge (inquisitor) is responsible for investigation of disputes, they have a more active role in

investigating evidence

• Pieces of evidence are submitted to the judge upon their request, and they interview

witnesses as part of pre-trial procedure (yet, adversarial system sees the presentation of

comprehensive evidence, as parties can choose what evidence to present)

• Rules of evidence more relaxed and depend only on ‘relevance’ which means access to truth is

more efficient

• Resource efficient and effective at achieving justice, in comparison to the adversarial system

- The Role of Juries, including verdicts

• A central part of the adversarial system is the use of juries as they provide the right of an

accused to be judged impartially by a group of their peers

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• A panel 12 of citizens, selected at random, to consider evidence presented in a trial

before the District and Supreme Courts > upholding the rights of both the accused and

the victim

• In a criminal trial, the jury’s role is to determine the guilt or innocence of the accused

(a verdict) based on the evidence presented to them at trial

• The Jury Act (NSW) 1977 sets out the laws governing juries in NSW

• Randomly selected from Electoral Roll

• Prosecution/defence may exercise three peremptory challenges where they disqualify

individual jurors without having to give a reason

• They may also put forward a challenge for cause, where a juror is rejected because the legal

team believes that they will be prejudiced

• Exemption: doctors, emergency workers

• Exclusion: people who hold a high public office, criminal conviction

• Traditionally, the verdict had to be unanimous

• In 2006, after a series of expensive trials that resulted in hung juries, and an investigation by

the NSWLRC, the NSW parliament amended legislation with the Jury Amendment (Verdicts) Act

2006 (NSW) to allowed majority verdicts of 11 to 1 or 10 to 1.

• Amendment does not apply to Commonwealth offences

ARGUMENTS FOR JURIES ARGUMENTS AGAINST JURIES

• Gives society a role in the legal system which provides greater transparency to judicial processes

• Jurors don’t necessarily understand technical aspects of the law

• Complicated cases can result in the jurors being confused about evidence, inhibiting rational judgement/decision making

• E.g. taxation fraud, scientific evidence

• Potentially biased people can be excluded

• Ability to exercise “Pre-emptory challenges”, “challenge for cause”

• Uphold rights of the prosecution and defendant to greater fairness in jury verdict

• Exemptions and challenges can result in the jury being less representative of society - juries are meant to encompass the views of all types of people

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• Jurors are directed to base their decision on the evidence, not their opinions or viewpoints

• Juries can be influenced by media sensationalism

• E.g. case of Azaria Chamberlain

• NSW Crown Prosecutor Mark Tedeschi is under fire for allegedly “poisoning jury’s minds” during the case of Gordon Wood, which ultimately resulted in Wood’s guilty conviction and imprisonment of 3 years

• Greater chance of a fairer decision using 12 people (rather than one) as multiple perspectives come into judgement

• It is harder to corrupt 12 jurors than one judge

• Longer trials and greater expenses

• $40,000 per day for trial by jury; cases can go on months on end

• Former DPP Nicholas Cowdery: “juries perform a valuable role in connecting the community with criminal justice and in bringing into the process the community's values and standards”

• There is no personal punishment for jurors who disobey orders or not take their duty seriously, resulting in retrials

CASES resulting in retrials

THE SUDOKU CASE (2008) • 105 witnesses, 60 days of hearing, $1 million for a trial against two men charged with conspiracy to manufacturing a commercial quantity of drugs

• Trial had to be aborted

• Several jurors were playing Sudoku - inattentive

THE BILAL AND MOHAMMED SKAF CASE (2004)

• NSW Court of Criminal Appeal overturned the convictions of the Skafs for the gang rape of a then 16 year old girl

• 2 jurors miscarried the trial by conducting their own experiment at the crime scene while deliberations were taking place

• They disobeyed the trial judge’s instructions to not “go and do your own research”

Issues about juries

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“Jurors need more direction” - SMH (2013) • Jurors struggle to understand what “beyond reasonable doubt” means

• Australian jurisdiction prohibits the explanation of the expression

• NSW Law Reform Commission found that the directions given by judges to jurors are outdated, overly complex and need to be clearer

“Court verdicts: More found innocent if no jury involved” - SMH (2013)

• A higher proportion of trials heard by a Supreme Court judge alone result in an acquittal than those heard by a jury (NSW Bureau of Crime Statistics and Research)

• Between 1999 and 2011, defendants were acquitted of all charges in over 55% of judge-alone trials, compared with just 29% of jury trials

• Mark Findlay, professor of criminal justice said judges were less likely to be guided by emotion

• Gittany successfully applied for a judge-alone trial for the alleged murder of Lisa Harnum

• He had been refused legal aid and judge-alone trial would be two weeks shorter

- Legal Personnel

Judge • The judicial officers who preside over the intermediate and superior courts (District and Supreme)

• Ensure courtroom procedures are followed

• Once jury has reached verdict, judge will hand down sentences and rulings

Magistrate • The judicial officers who preside over hearings in Local Courts

• Will hear summary proceedings and indictable offences triable summarily (accused has consent case to be heard by magistrate)

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Police prosecutor • A NSW Police Force officer trained in prosecution, usually used to prosecute summary offences

Director of Public Prosecution • Does not investigate crime

• They prosecute cases once sufficient evidence has been gathered

• Represent the state, determine if a case is worth going to trial (RESOURCE EFFICIENT)

Public Defenders • A public barrister who can appear for an accused in a serious criminal matter where legal aid has been granted

- Pleas and Charge Negotiation

• Law requires an accused person to give a formal statement of guilt or innocence, made at a

plea hearing or an arraignment, in relation to the charges they are facing

• Accused can either plead guilty or not guilty, or enter no plea, which is taken to mean ‘not

guilty’

• Guilty plea means that the case will be dealt with quickly as evidence does not need to be

presented as cross examined > matter goes straight to sentencing

• Not guilty plea means that the guilt of the accused is not assured > case must go to trial and

the prosecution must convince the jury beyond reasonable doubt of the accused’s guilt, while

the defence argues that the accused did not commit the crime

• Charge negotiation is where the accused agrees with the prosecution to plead guilty to a

particular charge (or charges), which are often lesser in severity or the number than those they

have been convicted, thereby getting a lesser sentence

• In NSW, police and DPP have discretion as to whether a charge will be laid, which

charge, and whether to accept a plea to a lesser charge

• The NSW and Commonwealth DPP have discretionary power to encourage charge

negotiations at any stage of the matter (not governed by legislation)

• It is an essential part of the legal system

• Examples of charge negotiation

• Persuading prosecution to withdraw all charges

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• When there is a single criminal offence, persuading the prosecution to accept a guilty

plea to a less serious charge and to withdraw a more serious charge

• Attempts to balance two public interests

• Community’s interest in ensuring criminal conduct is adequately and appropriately

punished (STATE THISE 2ND; AND THE R V DEAN & NANETTE MAY CASE)

• Public interest of reducing costs in the criminal justice system and the delay between

charge and trial > RESOURCE EFFICIENCY (STATE THIS FIRST; AND BELOW)

• ABC Law Report “Deals outside the courtroom” (2012)

• Nicholas Cowdery (former DPP): “if this process were not carried out, the criminal courts

would become clogged, very quickly…and justice would not be achievable in a lot of cases”

RESOURCE EFFICIENCY


Victim • Assures a conviction

• Victim does not need to testify (useful in traumatic cases, like assault)

• May reduce amount of victim compensation

• Victim may not perceive justice being done

Accused • An opportunity to correct incorrect charges

• Can reduce the maximum potential penalty that the accused can face

• May lead to the manipulation of the disadvantaged

Society • Hugely resource efficient > costs up to $40,000/day to run a trial

• Assures a conviction (argued that it is better than the possibility of no conviction at all)

• CASES:

R v Dean • Dean deliberately lit a fire at Quaker’s Hill Nursing Home

• Dean attempted to plead guilty to the lesser charge of manslaughter, but it was promptly rejected by the DPP

• JUSTICE FOR VICTIMS (BALANCING RIGHTS):

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• Victim’s daughter (Elly Valkay) “I think it’s despicable, absolutely”

Nannette May (SMH) • “C.N. assures a conviction - better than no conviction at all” - yet in some cases C.N. appears to be hugely insufficient in respecting the victim’s rights and fail to have perpetrators punished adequately

• Attacked brutally by former partner Karl Koch

• Fine-motor skills debilitated, post-traumatic stress disorder, lasting brain damage

• Violent offender Karl Koch had his charge of attempted murder downgraded to malicious injury

Gabe Watson • Murder charge was withdrawn in exchange for a negotiated guilty plea to manslaughter by criminal negligence

• DPP felt that it would be extremely difficult to prove Watson’s intent in tampering with the oxygen tank

• DPP acknowledged victim’s emotional turmoil, yet it would be difficult to prove

• Manslaughter better than no charge

R v Loveridge • Commonly mistaken for charge negotiation, the case of R v Loveridge highlights the DPP’s use of discretion

• DPP changed Loveridge’s initial charge from murder to manslaughter

• It would be difficult to prove that Loveridge, who was highly intoxicated from alcohol, had the intent of killing Thomas Kelly

• DPP felt that the charge of murder will not result in a conviction in court

• Thus, decided to charge Loveridge with manslaughter instead > also saving court resources, (money, time)

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- Legal representation, including legal aid

• A fair trial is a key human right of all people > UDHR

• The Legal Aid Commissions was established in 1979 (Legal Aid Commission Act 1979 NSW)

• Provide legal assistance and representation to people who are socially and

economically disadvantaged, improving their ACCESS to justice

• Offer free advice to anyone

• Beyond this, legal representation requires a formal application, only granted in certain

circumstances

• Jurisdiction test: the case must fall in certain areas of law, e.g. most indictable criminal

offences, children’s law, family law

• Means test: look at income and assets

• Merit test: consider whether applicant has a reasonable prospect of success

• Applicant still required to make a financial contribution toward cost

• In 2014-15, Legal Aid represented clients in over 35,000 matters > demonstrating its

prevalence and use

• According to the Legal Aid NSW client profile, 42% of its clients are those living in rural

and regional areas (IMPROVE ACCESS)

Dietrich v The Queen (1992) • High Court established a limited right to legal representation in Australia

• The case changed the way legal aid works in Australia - people with low socio-economic backgrounds who are charged with serious criminal offences must be given legal representation

- Burden and standard of proof

Burden of Proof • In a criminal trial it is the responsibility of the prosecution to prove in court that the accused committed the offence they have been charged with

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Standard of Proof • The level of proof required for a party to succeed in court

• “Beyond reasonable doubt”

• “Presumption of innocence” exists for the accused

- Use of evidence, including witnesses

• During a trial, each party will present evidence to support their version of events

• Use of evidence in courts is bound by the Evidence Act 1995 (NSW); for evidence to be

admissible:

• It must be relevant to the case

• It must be obtained legally

• Expert witnesses provide their expert opinions on evidence

• Court will need to make an assessment of the reliability of the witness’s observations,

check for the possibility of confusion or error

Oral Evidence • Evidence given verbally (by party to case, witness to events, or an expert)

• Witnesses may be subpoenaed to appear in court (formal court document ordering a person to attend court)

Exhibits • Documents or objects used to support a case

• E.g. photographs, DNA test results, weapons, finger prints, CCTV footage

- Defences to criminal charges

• A defence involves some denial, justification or excuse for the accused’s act, predominantly

revolving around the mens rea of the offence

• During a trial, the accused has two choices:

• Right to Silence

• Present a defence > onus of proof is on the defence

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• Complete (absolute) - which result in charges being dropped or the acquittal

of the accused and include mental illness or insanity, involuntary behaviour,

self-defence

• Partial (qualified) - which may result in the charge or sentence being reduced

and include provocation, and substantial impairment of responsibility,

diminished responsibility

Definition Cases

Mental illness or insanity C

• Requires accused to prove mental incapacitation at the time of the act, meaning the accused could not have formed mens rea at the time of the offence

R v Porter

• Porter poisoned his child with a lethal dose of a drug, and was preparing to commit suicide

• But the medical evidence of a near breakdown and deep depression were enough for jury to acquit Porter’s charge of murder on the grounds of insanity

Automatism (involuntary behaviour) C

• Requires accused to prove that their action was not voluntary or could not be controlled, e.g. epileptic fit

• Cannot rely on this if intoxicated

Brian Thomas

• Acquitted of strangling wife

• Suffered from chronic sleepwalking

• In his sleep, he remembered himself “grabbing another man’s neck” because he saw them on his wife

• Woke to find wife dead

Mistake C

• Requires accused to point to some evidence that demonstrates their action was an honest and reasonable mistake

• Difficult to prove

• Person thought cyclist was a tree branch (hit cyclist, he bounces off windscreen, she fails to stop drags bike for 2km

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Self-defence or necessity Both C - acquittal of murder charge P - murder charge downgraded to manslaughter

• Requires the accused to show that they carried out the crime in the act of defending themselves or another person, while attempting to prevent crime

• To overturn defence, prosecution must show either:

• 1. Accused did not genuinely believe that it was necessary to act as he/she did in his/her own defence

• 2. What the accused did was not a reasonable response to danger, as he/she perceived it to be

Marcela Castaneda

• She endured years of former husband’s (Mr Peck) drunken violence; she had been thrown against the wall, hair pulled, verbally abused

• That night Mr Peck choked Castaneda

• Fatally stabbed husband Mr Peck

• Her murder charge was dropped

• In the following trial for manslaughter, jury found her not guilty of manslaughter

• Judge said Castaneda is a person of good character, no previous criminal charges, less likely to life under oath

Duress (cannot be used for murder) C

• Requires the accused to show that they were unlawfully coerced or pressured by another party to commit a crime against their own will

Chippendale Victim

• Victim was enraged after a youth who doused her in petrol and set her alight was sentenced to only 3 years in jail

• Court determined that the youth was under duress, where his cousin threatened to harm him if he didn’t carry out the act

Consent (most common defence in sexual assault) C

• Requires the accused to prove that the victim freely consented to the act in question, e.g. in sexual assault cases

Nicholas Eugenio Gonzalez

• Accused of raping 24 yo female

• Jury questioned whether skinny jeans could possibly be removed without consent

• Chairwoman of National Association of Services Against Sexual Assault - “any piece of clothing can be removed with force”

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Provocation (law reform) P

• Requires the accused to prove that their actions were a direct result of another person’s actions, which caused them to lose control

Chamanjot Singh Case (2009)

• Singh stated that his wife no longer loved him and was going to leave him > he lost control and killed her

• He used the provocation defence to successfully downgrade murder charge to manslaughter (6 years prison)

• Community outrage ensued

Law reform following Singh Case

• No longer available to men who kill their wives in a “jealous rage”

• Legislation still retained for victims of Battered Spouse Syndrome, whose emotional turmoil may cause them to act in a manner that is fatal

Diminished responsibility (e.g. post-natal depression - as it is generally not permanent) P

• Requires the accused to prove that they suffer from a mental impairment (low IQ or mental retardation)

• Cannot be used when the person is drunk/under influence of drugs

Woman drowned daughter in bathtub after worrying daughter had dwarfism

• Pleaded not guilty to murder, on the grounds she was suffering a mental illness at the time

• Crown prosecutor accepted manslaughter plea, on the basis the woman was suffering from a substantial impairment (schizophrenic disorder)

• Legal proceedings took 5.5 years

5. SENTENCING AND PUNISHMENT

- Statuary and Judicial guidelines

MANDATORY SENTENCING (STATUTORY GUIDELINES)

• Statutory guidelines refer to legislation that governs sentencing and punishment

• Mandatory sentencing laws specify a fixed/minimum penalty that a judge must impose in

relation to a particular offence

• It aims to be a harsh deterrent

• Such laws are controversial as they remove judicial discretion

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ARGUMENTS FOR ARGUMENTS AGAINST

• Ensure sentences reflect community standards and are not unduly lenient

• (Enable people to have confidence in the justice system)

• Former DPP Nicholas Cowdery’s paper “Mandatory Sentencing: Getting Justice Wrong” states that mandatory sentencing creates consistency, but “fixing penalties detract from the independence of the judiciary and the principle of the separation of powers”

• Help reduce crime by acting as a strong deterrent to potential offenders

• Likely lead to lower guilty pleas, therefore more trials

• (Higher prison costs, with more offenders being sentenced to prison for longer duration)

• Increasing penalties does not deter people from committing crime

• Offenders tend to act impulsively, or under the influence of drugs/alcohol

EXAMPLES

R v Jacobs (2013) • The Crimes Amendment (Murder of a Police Officer) Act 2011 imposes a mandatory life sentence for the murder of a police officer in certain circumstances

• First applied to the case of R v Jacobs, who shot a police officer

R v Loveridge • The Crimes Amendment (Assault and Intoxication) Act 2014 created in response to this case

• Loveridge fatally punched Thomas Kelly in the face, while under the influence of alcohol

• Imposes a mandatory imprisonment sentence of “not less than 8 years” for assault causing death when intoxicated

JUDICIAL GUIDELINES

• Judicial guidelines set by the NSW Court of Criminal Appeal assist judges when applying

discretion

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• Chief Justice Spigelman said “these guidelines were not intended to be rules binding the

decisions of judges - they ‘structure discretion’”

R v LOVERIDGE

Rights of Accused - MITIGATING FACTORS > lessens the severity / culpability of the criminal act >

may reduce the severity of the penalty

• SMH

• “Loveridge’s father was incarcerated for most of his childhood…he whipped the

teenager with a bamboo cane”

• “exposed to violence by his peer group” - psychologist Richard Champion (expert)

• “Loveridge reportedly expressed remorse”

• “The total effective sentence should not be so large as to be crushing to a young

offender, stifling his prospects of rehabilitation” - Justice Campbell

• Initial sentence of minimum 5 years and 2 months imprisonment

• But just as the accused as a right to have mitigating circumstances considered, the victim /

victim’s family should be given the opportunity to be heard

- The purposes of punishment

DETERRENCE

• Aim of discouraging someone from doing something

• 2 types of deterrence

• Specific deterrence > involves punishing an individual offender to discourage them

from committing crime in future

• General deterrence > send a message to rest of community in hope that other people

will be less likely to commit particular offences

RETRIBUTION

• “Eye for an eye”

• Based on the view that it is unfair for a person to gain from their wrongful conduct, retribution

considers that punishment is morally right or deserved because of the nature of the crime

• E.g. capital punishment

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REHABILITATION

• Concept that the type of punishment chosen should reduce or eliminate criminal behaviour by

the convicted person through reforming them

INCAPACITATION

• The principle that offender is to be prevented from committing further offences through

imprisonment

• Based on view that the community and victim should be protected from particular offences

RESTITUTION

• When someone has done something wrong, they must restore it

• E.g. graffiti offenders are ordered to clean the train > 50 hours of community service

- Appeals

• Appeals can be made against the conviction or against the sentence

Rights of Victim and victim’s family - APPEAL by Kelly’s family

• Judicial guidelines have been useful, as established in the case of R v Loveridge (2014), where

the DPP Lloyd Babb appealed the leniency of Loveridge’s sentence (5 year 2 months jail term)

at the Court of Criminal Appeal on the grounds it was “manifestly inadequate” and did not

reflect community values and standards

• Thomas Kelly’s mother - “four year jail sentence…an absolute joke”

• Following this, Loveridge re-sentenced to a minimum of 10 years 2 months jail

Rights of the convicted - APPEAL by Gordon Wood

• The person convicted of a crime can appeal their conviction if they believe evidence was

unlawfully used against them

• Wood appealed against the evidence presented by Physics professor Rod Cross that attempted

to determine how Ms Byrne died

• Court of Criminal Appeal acquitted Wood of Byrne’s murder in 2012, describing Professor

Cross’s experiments as “not particularly sophisticated” > and therefore deemed unreliable as

use for evidence

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Rights of the convicted - APPEAL by Simon Gittany

• Lost appeal against conviction for murder of his partner Harnum

• Gittany’s appeal centred on the claim that the trial’s eye witness Mr Rathmell should have

been considered unreliable

• Judge; “I do not entertain a reasonable doubt about the accuracy or reliability of the evidence

of Mr Rathmell”

• Expert opinion from psychologist rendered Mr Rathmell’s observations as accurate and

admissible as evidence

- The role of the victim in sentencing

• The Victims Rights and Support Act 2013 (NSW) contains a Charter of Victims’ Rights

• This Charter allows for the victim to submit a Victim Impact Statement (VIS) which are

governed by the Crimes (Sentencing Procedure) Act 1999 (NSW)

• VIS are only permitted for serious offences involving violence

• They give victims the opportunity to participate in the criminal justice process and to

be heard by relating how the crime has impacted on their livelihoods

• Just as the offender’s personal mitigating circumstances are taken into consideration

during sentencing > BALANCING RIGHTS

• LAW REFORM <is this still relevant for sentencing/punishment?>

• Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014

• Video footage of distraught and traumatised domestic violence victims, filmed by police at the

scene will be accepted by courts as the main evidence in DV cases

• Victims who consent to this procedure will avoid having to relive their experience multiple

times by attending police interviews, or reading a written statement in court

• Hope to significantly increase guilty pleas by perpetrators; reduce number of victims

withdrawing from cases

• ENFORCEABLE; make the court system more ACCESSIBLE; help BALANCE RIGHTS OF VICTIMS -

added evidence from the perspective of video footage

• Andrew Scipione - “game-changer”

• Police and Justice Minister Mr Grant says “we’re putting victims first by adding an extra layer

of monitoring of domestic violence perpetrators”

• SMH (2015); In 2013, almost 9000 of about 34,800 domestic violence orders were dropped

after the complaint was withdrawn

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• NSW Attorney General Gabrielle Upton; “our reforms will reduce the stress of the court

process and potentially increase the number of early guilty pleas”

• LAW REFORM

• SMH (2014)

• The family of homicide victims would have a say in the killer’s sentence under new laws

backed by Attorney-General Greg Smith and approved by NSW cabinet

• New laws driven by the parent of Thomas Kelly, who was killed in a one-punch attack

• Judge will determine the weight given to the Impact Statements when deciding the sentence

• Controversial:

• Victims who don’t have extensive family members/no family are perceived to not

obtain the same amount of justice as those with large families; notion that some lives

are more valuable than others

- Types of Penalties

• The Crimes (Sentencing Procedure) Act 1999 (NSW) lists the various penalties that can be

imposed

• Penalties often reflect the moral and ethical views of society ay any particular time

< see other document: Sentencing and Punishment - types of penalties >

- Alternative methods of sentencing

• Alternative methods of sentencing are an important part of achieving justice as they free up

the court system, are often less costly (resource efficient) and in some cases are more effective

in reducing recidivism

RESTORATIVE JUSTICE

• Involves a voluntary conference between the offender and the victim of the offence, providing

an opportunity for the offender to take responsibility for their actions (apologising, making

amends for their act)

• NSW DRUG COURT

• Operates according to the Drug Court Act 1998 and Drug Court Regulation 2010

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• The NSW Drug Court Programme is an example of restorative justice - its main

objective is to assist drug-dependent offenders in overcoming both drug dependence

and the criminal offending that is often associated with it

• Participants undergo regular drug tests, sanctions are imposed if a certain amount of

drugs are detected rewards (‘Claps’ from Judge and Drug Court Team) are given for

compliance > public acknowledgement of good progress

• Programme also involves living arrangements, attendance at counselling


• Rather than imposing legal sanctions like imprisonment for drug offenders; eligible offenders are given the opportunity to work toward overcoming their drug dependence through personal responsibility and incentive

• Geographical limitations

• Of those participants who complete the program, 58% are less likely to be reconnected for a drug offence

• People who suffer from mental illness that could prevent them from participating cannot take part > they become further at risk

• Drug Court has most success with 35-35 year olds

CIRCLE SENTENCING

• Used for adult Aboriginal offenders who plead guilty to serious offences (murder, sexual

assault)

• Based on customary law and traditional Indigenous forms of dispute resolution; seeks to

improve understanding between Indigenous communities and the courts, and make the

sentencing process more meaningful; ACCESSIBILITY

• Circle Courts have full sentencing powers of a court

• Involves community members, magistrate, offender and victim sitting in a circle to discuss

most appropriate sentence

• Since its first use in 2003 in the case of Robert Bolt, Circle Sentencing has generally been met

with great success, and was expanded by the government in 2010

• SMH (2010): “Circle Sentencing expanded in NSW”

• Rolled out to regional areas; Moree, Wellington, Ulladulla

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• Between 2005-2010, more than 500 circle sentences have been held


• Personal hearings; no dominance of legal professionals/hierarchies of traditional court rooms

• More time consuming than sentencing processes in conventional courts

• ACCESSIBILITY: no legal jargon; language of community comes language of the court

• RESOURCE EFFICIENCY: to have an impact on reducing recidivism, circle sentencing needed to be supplemented with treatment and rehabilitation options for alcohol/drug abusers

• In most locations where circle sentencing occurs, these services are usually not adequate

• Offender/victim participation: offender can get full perspective of the effects of their actions on the victim

• SMH (2008): “Circle Sentencing not effective: Study”

• BOCSAR have suggested that Indigenous offenders who have been through circle sentencing are no less likely to reoffend in the 15 months after their sentence than those who had been sentenced in a traditional court setting

• Overall holistic approach: court received information about whole community, background of the offenders, impact on victim and community

• then-NSW Attorney General; Mr Hatzistergos

• “…it breaks down barriers between the justice system and Aboriginal communities…it also enhances the long-term effectiveness of the program in addressing recidivism”

• Mount Druitt Circle Sentencing officer; Ms Jennings

• “…makes offenders accountable to their community…helps establish a relationship between offenders and Aboriginal elders so they are linked back to the community and programs which can help them”

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- Post-sentencing considerations

SECURITY CLASSIFICATIONS

• When a person is sent to prison, the Department of Corrective Services examines the security

risk that each prisoner presents

• The Department will determine which category of rock the prisoner belongs, so they can be

sent to the most appropriate correctional facility; BALANCING RIGHTS OF SOCIETY

• E.g. maximum security: Goulburn Correctional Centre for Men

PROTECTIVE CUSTODY

• Crimes (Administration of Sentences) Act 1999 (NSW)

• Protects convicted offenders that are considered vulnerable to an attack from other inmates >

BALANCING RIGHTS of offenders

• Child sex offenders, former police officers and prisoners with mental illness may be targeted

by other offenders

PAROLE

• Parole is the conditional release of a prisoner from custody after the completion of the

minimum term of imprisonment; Crimes (Sentencing Procedure) Act 1999 (NSW)

• Seeks to provide the offender with an incentive for rehabilitation and promote better prisoner

discipline; give better prospects for reintegrating into society

• Improves resource efficiency > reducing costs of imprisonment

• Parolee will be required to adhere to conditions similar to bail, e.g. staying in contact with a

parole officer as required, seek employment, meet conditions of good-behaviour bond

• SMH (2013): “Justice for whom?”

• Core issue surrounding arguments for/against parole is the question of whether to release

offender at the end of their imprisonment sentence and into the community without

supervision, or release them on parole (albeit earlier than maximum sentence) and monitor

their daily movements and location

ARGUMENTS FOR PAROLE ARGUMENTS AGAINST PAROLE

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• SMH (2013):

• Leary made repeated attempts for parole before the end of his 24 year max. prison sentence for the murder of Ms Hoson

• Leary was released on parole after serving 22 years in prison

• He was then arrested again and charged with attempting to rape a woman then stabbing her at a bus stop in Hunters Hill

• Generated public outcry and discontent at the legal system

• SMH (2013):

• ABC employee Jill Meagher was raped and murdered (2012) by Adrian Bayley

• Bayley had previously been convicted of 16 counts of rape, released on parole, and only to reoffend and murder Meagher

• BALANCING RIGHTS: her family expressed anger at the NSW Parole Authority by previously releasing Bayley

• Prompted the NSW Law Reform Commission to re-examine the parole system and prevent future occurrences

• SMH (2016):

• Sex offender Arthur Alliband assaulted a teenager, just hours after being granted parole

• THE AGE (2016):

• Left prison on parole in 2011 for sexual attacks on women > during this period, he brutally punched a female psychiatrist

• Parole revoked; put on a supervision order; during this period, he beat up inmates

• In 2015, Price stabbed Ms Vukotic 49 times and killed her

• Victorian Premier Daniel Andrews stated that Price was free to kill Ms Vukotic represented a “catastrophic failure” of a “broken system”

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PREVENTATIVE DETENTION/CONTINUED DETENTION

• Involves the imprisonment of a person for some type of future harm that they may commit

• It is the most controversial form of sentence because the person is detained in custody

without actually having committed or being found guilty of any offence, or keeping them in

prison beyond their sentence duration

• Aimed at offenders who history indicates that they have entrenched criminal behaviours

• Most severe type of preventative detention is legislation that is targeted at individual

offenders

• This type of law was held to be unconstitutional in the case of Kable v. DPP (1996)

SEXUAL OFFENDERS REGISTRATION

• There are both state and federal databases that assist police with recording those who have

been convicted of sexual offences

• E.g. the NSW Child Protection Registry is a web-based system established under Child

Protection (Offenders Registration) Act 2000 (NSW) that requires persons convicted of a

nominated violent or sexual offence against a child to register

• Required to provide personal information, travel plans, etc.

• BALANCING RIGHTS: This seeks to protect the wider community given the ongoing risk of

reoffending; e.g. sex offenders cannot work in schools, coach sports teams, etc.

DEPORTATION

• Under the Migration Act 1958 (Cth), non-citizens may b deported (forcibly removed) if they

are tried and convicted of a criminal offence

• i.e. criminal returned to home country after sentence is served in Australia

• vs. EXTRADITE; offender returned to home country to answer charges

• Minister for Immigration has discretionary powers to decide whether deportation is

warranted

• Controversial

• Deportation appears to ‘throw the problem under the carpet’ by removing the

offender from Australia and placing them elsewhere

• The person may be uprooted from a stable life in Australia, and placed in an unfamiliar

country; limited access to support services

• Robert Jovicic

• Migrated to Australia as a child, lived in Australia for 36 years

• 158 criminal convictions in Australia; drugs, burglary, theft, etc.

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• Permanent residency status cancelled, detained, deported to Yugoslavia at the

discretion of then-Minister for Immigration Amanda Vanstone

• Became destitute, ill; no access to support (Serbian government did not have a proper

welfare system); he could not understand the Serbian language; father was an

alcoholic

• Federal Immigration Minister finally granted him permanent residency

6. YOUNG OFFENDERS

- Age of criminal responsibility

• The law aims to be responsive to the fact that people, particularly of younger age groups, have

different levels of culpability

• The Noetic Review (2010), an investigation into the juvenile justice system in NSW considered

why young offenders are treated differently in the criminal justice system;

• Research has shown that young people are less able to make wise judgements due to

incomplete brain development

• Most young offenders aren’t acting out of self-interest - there is usually a record of

neglect, drug, alcohol, abuse, violence

• Treating young people differently must not mean excusing their actions, they must

take responsibility

• Article 41 of CROC encourages countries to establish a minimum age below which children

shall be presumed not to have the capacity to infringe on penal law

• Children’s (Criminal Proceedings) Act 1987 (NSW) lays out the minimum age of criminal

responsibility and doli incapax

• Doli incapax means ‘incapable of wrong’ and is the presumption that children are

incapable of having criminal intent (mens rea)

• In NSW, this is age 10

Children under 10 • Section 5 establishes doli incapax

• For children under 10, doli incapax is a conclusive presumption - they can never be criminally liable, and this presumption cannot be rebutted

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Children aged 10 - 13

• Once a child turns 10, doli incapax still applies > the child is presumed to be incapable of committing a criminal offence

• But 10-13, doli incapax becomes a rebuttable presumption

• The prosecution must prove that the child knew the behaviour was seriously wrong, and not just ‘naughty/childish’

• Prosecution was able to rebut doli incapax in the Jamie Bulger Case (UK)

Children aged 14 - 17

• Once a child turns 14, doli incapax no longer applies

• Young offenders still protected:

• Hearings take place in Children’s Court and are not publicly trialled, the child’s name cannot be reported, children under the age of 16 cannot have a criminal conviction recorded against them unless it is an indictable offence, any convictions recorded will be cleared after 3 years if no more has been committed

Age 18 • A person has full adult criminal responsibility

• Arguments for and against doli incapax

• ‘Doli Incapax: Why Children Deserve Its Protection’ by Thomas Crofts

Arguments for doli incapax to be raised Arguments for doli incapax to be lessened or removed

• It is consistent with the principle of international law, i.e. Article 41 of CROC

• Doli incapax can be considered unjust and unfair to victims, particularly in relation to heinous crimes like murder

• International lobby groups and NGOs like Amnesty International have pressured Australia into doing so

• There can be injustices for the child - it is difficult to prove the intentions going through someone else’s mind

• Children develop their understanding of right and wrong and mature at different stages, doli incapax helps protect this by forcing the prosecution to prove that understanding on a case-by-case basis

- The rights of children when questioned or arrested

• Children are vulnerable and thus have special rights when dealing with police

IDENTIFICATION, NAME AND ADDRESS

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• s19 of LEPRA gives the police power to ask any person to identify themselves by giving their

name and address - certain situations where a person is legally required to respond, e.g.

vehicles/traffic; suspected of committing an offence on the train

• The Summary Offence Act 1988 (NSW) can require a person to provide their details, if

suspected of being under 18 and carrying/consuming alcohol in a public place without adult

supervision

RIGHT TO SILENCE

• Like adults, young offenders can also exercise their right to silence, as outlined in LEPRA

SEARCHES

• Like adults, a child may be searched if the police reasonably suspect they have in their

possession drugs, stolen goods, or a weapon

• Under LEPRA, police can never perform a strip search on a child under 10

• For a child over 10, a responsible adult other than the police officer must be present, and if the

child is 14 or older, they must agree who the adult should be

UPON ARREST

• Like adults, children can be arrested if lawful conditions of arrest exist

• s8 of Children’s (Criminal Proceedings) Act 1987 (NSW) creates a presumption that children

should not be arrested or detained, unless the offence was a serious/violent/danger of further

offences (last resort)

• Police must contact parent/guardian

• Police must inform young offender that the Legal Aid Hotline is available, and give them the

opportunity to ring it, and legal aid will be provided without means testing

CAUTION

• Like adults, police must provide young person with a caution (orally and in writing), as soon as

they are detained > must be in presence of interview friend

INTERVIEW FRIEND DURING QUESTIONING

• s13 of the Children’s (Criminal Proceedings) Act 1987 (NSW) requires a responsible person,

adult or legal practitioner (interview friend) be present when police question a juvenile,

otherwise the evidence gathered or any confession made will be inadmissible

• In R v. CKT 1999 (NSW), police conducted an interview with a murder suspect without

the presence of a supporting adult; evidence gained during questioning could not be

admitted to court

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• If child is under 16, parent/guardian must give permission for another person to be appointed

witness in the interview

• If child is over 16, they must agree to the choice of adult witness

DETENTION

• Like adults, people under 18 can be detained for a maximum 4 hours, or up to a further 8

hours if a warrant is granted

• Despite the Seen and Heard Report (1997) which recommended that children and young

people not be detained for more than 2 hours in all states;

• A proposed law in response to the murder of Curtis Cheng

• The Guardian - “teenage terrorism suspects could be detained for 2 weeks, under

proposed NSW laws”

• Putting society’s rights ahead of individuals?

FORENSIC, PROCEDURES, PHOTOS AND SEARCHES

• If under 14, photos/fingerprints can only be taken when a Children’s Court Order

• If 14 or over, fingerprints/photos can only be taken if its is for the purpose of identifying the

young offender

• If under 18, a DNA sample can only be taken with a Children’s Court Order

• By not building up a database of children’s ID, we respect privacy issues and advocate

for prospects of rehabilitation

- Children’s Court - Procedures and Operation

• A specialist court, powers outlined in the Children’s Court Act 1987 (NSW)

• Dual role;

• Deals with matters relating to the care and protection of children and young people

referred to it by the Department of Family and Community Services (FACS)

• Deals with criminal matters involving those under 18 (other than serious indictable

offences), or who were 18 at the time of the offence

• Matters heard in a closed court, summarily (no jury), before a single magistrate who is

specially trained to be sensitive and be able to relate to young people

• Little formality as possible; offenders can ask questions during proceedings

• Under s11 of the Children (Criminal Proceedings) Act 1988 (NSW), it is an offence to publish

identifying details of a child involved in criminal proceedings

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• All the above aim to be less intimidating, protect identity > aligns with objective of

rehabilitation

• The Children’s Court Clinic (an arm of the Children’s Court) makes clinics assessments of

children and submits Juvenile Justice Reports (JJR) to the court; e.g. assessment on mental

health, intellectual disability, drug/alcohol use

• JJR must be obtained before the sentencing of a person under 21 who was a child at

the time of charge; established in the case of R v Hoang (2003)

YOUNG OFFENDERS AND BAIL

• Amendments to s22A of the Bail Act 1978 (NSW) in 2007 ensured that only one application for

bail could be made by juveniles

• Led to 32% rise in number of juveniles on remand in NSW from 2007-2011; despite

80% of the young offenders held on remand did not end up getting a custodial

sentence

• In the 2013 bail reforms, young offenders were allowed 2 bail applications

- Penalties for Children

• Under the Children’s (Criminal Proceedings) Act 1987 (NSW), the main of sentencing a young

offender is to provide for their rehabilitation; consistent with the UN Convention on the Rights

of the Child

LAW REFORM - ‘PROVISIONAL SENTENCE’

• In 2009, the NSW Sentencing Council recommended that we being in a system of provisional

sentencing which led to the Crimes (Sentencing Procedure) Amendment (Provisional

Sentencing for Children) Act 2013 (NSW)

• Enables children who murder to get a ‘provisional sentence’; i.e. it can be changed if

the judge sees the child has made substantial progress toward rehabilitation

Good behaviour bond

• Maximum 2 years

• Similar to adult good behaviour bond

Fine • Involves a maximum of 10 penalty units

• Court must also take into account the juvenile’s ability to repay the fine

Probation • Maximum 2 years

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• Overseen by an officer of NSW Juvenile Justice

Community Service • A severe penalty

• Can be ordered up to 100 hours for each individual under 16; up to 250 hours if they are 16 or over

Control order (jail) • The most severe penalty

• Involves detention in a Juvenile Justice Centre (JJC), overseen by the Children (Detention Centres) Act 1987 (NSW)

• Before sentencing a child to a control order, the Children’s Court must obtain a Juvenile Justice Report and record why the matter has been dealt with by way of control

• Maximum time a juvenile can be sentenced to is 2 years

• A study by the AIC (2009) found that young offenders given

Youth Justice Conference

• Restorative justice

• Accused must plead guilty > victim must agree to the YJC

• YJC involves the development of an outcome plan > offender and victim must agree, must be completed in 6 months

CONTROL ORDER (JAIL)

• A 2009 study by the Australian Institute of Criminology (AIC) found that young offenders

given a custodial sentence were no less likely to reoffend that those given another form of

sentence

• It costs about $150,000/year to keep a young person in a JJC

• Juvenile Justice NSW spends $100 million of its $170 million budget on detention (RESOURCE

EFFICIENCY)

• ABC Four Corners Documentary “Kids Doing Time”

• “offending increases when a young person is locked up…it’s the beginning of a

downward spiral”

• Released back onto the street with no support to integrate back into society -

accommodation, job, education

• No intervention to break the cycle of crime

• These youths are all products of a system that are locking them up, with no

prospects of rehabilitation

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• Critics state that money spent on incarcerating the teenagers could have been better

spent on acting early and diverging them from the life of crime > diversionary

programs

- Alternatives to Court

WARNINGS

• An official notice given to a young offender by police in situ without any conditions attached

for a first minor non-violent breach of law, e.g. trespassing, offensive language

• Officer must keep a record of the warning but it does not form part of a person’s criminal

history

CAUTIONS

• A formal recorded alternative to prosecution for less serious offences, e.g. stealing, damaging

property

• Charges not laid; court system avoided; quicker and easier to administer than a formal charge

> take up less court time

• Juvenile must admit to the offence in the presence of a responsible adult, and consent to be

cautioned

YOUTH JUSTICE CONFERENCING (YJC):

• A form of restorative justice that addresses the offender’s behaviour in a holistic manner

whilst aiming to divert the juvenile from the court system

• Provides an opportunity for the offender to take responsibility for their actions and the impact

they have had on others, while giving the victim the opportunity to ask questions, confront the

offender and suggest ways to repair the damage done

• Involves the development of an outcome plan, i.e. include an apology and reparation

which both victim and offender must agree to

• Offender must admit to an offence; cannot be used for sexual or drug offences and a person

with a history of convictions (more than 3)

Advantages of YJC Disadvantages of YJC

Allows for victim participation Argued to be a ‘soft’ approach to dealing with offenders

Culturally appropriate; accessible to Indigenous Australians as well

Outcome disparity - well resourced offenders can offer higher amounts of compensation

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Community based Compulsory compassion - ‘forced apology’ lacks sincerity

Encourages acceptance of responsibility Doesn’t necessarily reduce recidivism

Improved perceptions of police

• SMH (2014) “Racist Attack on Bus”: a teenager involved in an anti-Semitic attack on a bus full

of young Jewish students had to attend a YJC

• Mr Alhadeff, from the NSW Jewish Board of deputies was also in attendance, and

stated that YJCs “are a constructive system which provides a measure of restorative

justice and closure, while offering a positive way forward”

• SMH (2012): “Children reoffend as system goes soft”:

• More than half the children who commit a crime are reconvicted within a decade

• The rate of reoffending by Indigenous youth was 83%

• Domestic violence cases by 10-17 year olds soared 167% between 2001 and 2010

• Don Weatherburn (NSW Bureau of Crime Statistics and Research); “we now know

that youth justice conferencing doesn’t work to reduce reoffending…it’s naive to

imagine that a young offender after years of involvement in crime will experience an

epiphany and suddenly become law-abiding”

DIVERSIONARY PROGRAM - ‘Justice Re-investment’

• ABC Four Corners Documentary “Backing Bourke” (2016)

• Bourke (population 3000) has highest rate of criminal offences by young people in NSW

• Its program ‘Justice Re-investment’ is about spending money on community programs to help

people avoid jail; shifting resources out of the prison system into early crime prevention and

intervention > received 3 years worth of funding by the government

• E.g. driving programs and lessons; most families cannot afford driving lessons or own a car

• In 9 months 50 people have gotten their L and P licences

• The number of people jailed in Bourke for driving offences is now lowest in 10 years

• Sporting teams and programs foster collaboration, reducing incidents of young people roaming

streets late at night, causing disturbances

REHABILITATIVE PROGRAMS

• Any methods to address young offenders must be coupled with well-resourced rehabilitative

programs to break the cycle of disadvantage and drug abuse

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• Putting resources into social service programs, adolescent mental health services and

programs to improve school retention rates > more profound impact on lowering the crime

rate than implementing harsh penalties

• ‘Whitelion’

• Recruits volunteers from the community who are trained to become qualified

mentors for vulnerable/high risk young people from a diverse range of

backgrounds

• Specifically targets the issue of neglect and abandonment, which are

contributing factors to crime in young people

• Helps foster personal relationships - which many of the youth lack, divert from

dangerous situations

• 90% of youths with Whitelion do not reoffend

• ‘Tribal Warrior Association’

• Caters mostly for Aboriginal young males

• Aboriginal youth make up only 2% of the population, but 30% of prison

population

• Helps establish positive routine - exercise, breakfast, school; minimises staying

up at night committing crimes on street; enables group discussion

• Local police have reported a 70% decrease in crime in the Redfern area