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legal studies 2020 > Crime > Flashcards

Crime Flashcards

1
Q

What is meant by the word crime?

A

Crime is an action or omission which constitutes an offence and is punishable by law

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2
Q

What are the legal characteristics of a crime?

A
  • There must be an act or failure to act
  • The act must be seen as harmful to the whole community
  • The act or is punishable by the state
  • The state takes the person who committed the act to court, where the offence must be proved according to the rules of criminal procedure
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3
Q

What two elements must be proved to hold someone criminally liable?

A

Actus reus and Mens rea

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4
Q

What is meant by Actus Reus?

A

Actus reus means ‘the guilty act

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5
Q

What are the feautres of Actus reus?

A
  • The act actually took place
  • that is was done by the accused person
  • that it was voluntary
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6
Q

What is meant by mens rea?

A

Mens rea means ‘the guilty mind’ traditionally this means a person is guilty of a crime only if he or she carried to the criminal act and intended to do so

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7
Q

What is need to prove Mens rea?

A

The intention or specific desire to commit an act

Recklessness

Negligence for example if a person drove a car in a highly negligent manner and killed someone

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8
Q

What is a strict liability offence?

A

A strict liability offence means that no mens rea needs to be proved. E.g traffic offences

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9
Q

What is meant by causation?

A

For a crime to be proved, causation must be shown

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10
Q

What are the categories of crime?

A
  • Offences against the person
  • offences against the sovereign
  • Economic offences
  • Crimes against property
  • White-collar crimes
  • Computer crimes
  • Drug offences
  • driving offences
  • Public order offences
  • Preliminary offences
  • Conspiracy
  • Attempt
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11
Q

What are criminal offences against the person?

A

Crimes against the person are acts which harm other people. They include, murder, assault and sexual assault

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12
Q

What are crimes against the sovereign?

A

These are acts which aim to disrupt or harm governing bodies of a country

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13
Q

What are economic crimes

A

Economic offences involve the act against the personal property or finance (Property, white collar/ computer )

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14
Q

What are crimes against property?

A

These are acts which damage or remove peoples property

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15
Q

What are white-collar crimes?

A

These are crimes against the property carried out by people working in the business world who commit crimes related to money

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16
Q

What are computer crimes?

A

These are crimes that are committed using computers and internet technology. They include identity theft and false representations

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17
Q

What are drug offences?

A

These offences include possession of illegal drugs, trafficking, cultivation, manufacture and importation of illegal drugs.

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18
Q

What act in Nsw covers drug offences?

A

Drug offences in NSW are covered under the Drug Misuse and Trafficking Act 1985 (NSW)

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19
Q

What are driving offences?

A

Most driving offences are summary or regulatory offences such as speeding or not wearing a seatbelt. These types of driving offences are strict liability.

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20
Q

What are public order offences?

A

Public order offences are acts which occur in public and are seen as offensive or disruptive to the general population. They are generally minor and include such offences as offensive conduct, obstructing traffic and indecent exposure

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21
Q

What does it mean to commit a preliminary crime?

A

To commit a preliminary crime is to try to commit an act or plan to do so

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22
Q

What does conspiracy mean?

A

This occurs where two or more people agree to do an unlawful act or to do a lawful act by unlawful means

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23
Q

What is meant by attempt?

A

If a crime is attempted but not successfully committed, then the crime of attempt applies.

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24
Q

What are summary offences?

A

Summary offences are those heard and decided by a magistrate sitting without a jury. These offences are relatively minor and include driving offences and offensive behaviour. Summary offences are heard by a magistrate in a local court

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25
Q

What are indictable offences?

A

Indictable offences are serious criminal offences and may be heard by a judge or jury. They include murder and sexual assault.

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26
Q

What does it mean to be a party to a crime?

A

The parties to a crime who have participated in committing a criminal offence.

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27
Q

What does it mean to be the principle in the first degree?

A

This is the actual person who committed the crime

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28
Q

What does it mean to be the principle in the second degree?

A

This is a person who were present or who assisted the principal in the first degree

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29
Q

What does it mean to be The accessory before the fact?

A

This is a person or persons who helped plan the offence but were not there when it occurred

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30
Q

What does it mean to be the accessory after the fact?

A

This is the person or persons who helped the principles after the crime had been committed

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31
Q

Why do people usually obey the law?

A
  • A belief, value or custom means a person would follow the legal behaviour anyway
  • Many laws simply regulate behaviour which we generally agree should be regulated
  • We are educated to think certain things
  • People fear public shame
  • People have a desire for protection
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32
Q

Why may people break laws?

A
  • See the law as being unimportant
  • Think that they will not be caught
  • Give in to temptation
  • See it as thrilling or exciting to break the law
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33
Q

What are the two main types of crime prevention?

A

Situational and social

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34
Q

What is situational crime prevention?

A

Situational crime prevention refers to creating situations where it is difficult for people to break the criminal law

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35
Q

What is social crime prevention?

A

Social crime prevention occurs through changing social factors which cause people to be criminals

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36
Q

What is the three main processes in the criminal justice system?

A

The criminal investigation process

The criminal trial process

Sentencing and punishment

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37
Q

What is the criminal investigation process?

A

The criminal investigation process is the investigation stage of the criminal process, where crimes are detected and investigated, and evidence is gathered so that an alleged offender may be brought before a court.

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38
Q

What is the criminal trial process?

A

This is known as the adjudication process and is the hearing stage of the criminal process, where the guilt or innocence of a defendant is decided in a court according to the rules of procedure and evidence

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39
Q

What is sentencing and punishment?

A

This is the punishment stage of the criminal process in which courts decide appropriate punishments for convicted offenders, and sentences are carried out by various sentencing authorities

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40
Q

What are the polices powers surrounding Search and seizure?

A

Police have the power to search for people, places and motor vehicles, and seize or take evidence. Police can search anyone reasonably suspected of possessing stolen property or anything which has been or is intended to be used in committing a serious offence.

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41
Q

What are the police powers surrounding Acess to the information?

A

The computerised Operational Policing System (COPS) operates in NSW, giving police the ability to cross-reference details of all persons of interest. such people include those with a criminal history.

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42
Q

What powers do police have surrounding Interrogation?

A

Police have a right to ask questions, but a suspect need not answer them except in special circumstances, which include

A driver must produce his or her licence

A person must give the name and address of a person who has been involved in an accident

A person must give information to a customs officer about drug smuggling

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43
Q

What powers do the police posses surrounding Electronics?

A

Police may tap phones if they obtain a warrant from a judge first. Also surveillance cameras have been used

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44
Q

What are the powers police posses with regards to medical examinations?

A

Police may order and arrested person to undergo a medical examination. This includes giving DNA samples and forensic evidence

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45
Q

Which legislation gives police the ability to ask an arrested person to take a DNA test?

A

Under the Crimes (forensic procedures) Act 2000 (NSW) Criminal suspects and people convicted of a serious offence can be tested for DNA

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46
Q

Which legislation gives police the ability to detain a suspect?

A

The law enforcement (Powers and Responsibilities) Act 2002 (NSW) allows police to keep a suspect for four hours for the investigation. An applicant must be made to a magistrate or an authorised judge of the peace in order to keep a suspect for up to eight hours

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47
Q

What role can discretion play in the exercise of police powers?

A

Police discretion can play a large role in the investigation of criminal offences. Police must decide, because of limited resources, which areas to parol. An individual police officer uses discretion to decide whether to investigate certain behaviour, whether to charge a suspect or whether to let a young offender go with a caution.

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48
Q

Why may some crimes go unreported?

A

Reporting a crime may bring the victims own illegal acts to light

VIctims may know the alleged

Too much red tape and hassle

Many sexual assault victims feel that there is sexism in the police force and the judiciary

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49
Q

What are some of the technology police will use to gather evidence?

A

Phone taps

video surveillance

DNA collection and analysis

Use of Data banks such as COPS

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50
Q

What does the police power of search and seizure mean?

A

The power of search and seizure means that police and other people, such as customs officers, have the power to search people and their belongings or premises and to take away property that is illegally held or is used in evidence

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51
Q

What is a warrant?

A

A warrant is a written authorised issued by a judge or magistrate, which gives the police power to take action authorised by it. This could be to arrest the person named on the warrantor to search the premises named on the warrant, or to carry out some other purpose, such as tapping telephone calls.

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52
Q

In what circumstances can police enter premises without a warrant?

A

They wish to arrest a person reasonably suspected of having committed a crime

They have a reason to believe, on reasonable grounds that a domestic violence offence has occurred

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53
Q

What are the three ways in which police can bring an alleged offender to court after an investigation?

A

Information and summons

Information and warrant

Arrest without warrant

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54
Q

What is information and summons?

A

A summons is an official legal document which commands the person to whom it is addressed to appear to a particular court on a particular day to answer claims made against him or her.

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55
Q

What is information and warrant?

A

An arrest warrant is a written authorisation issued by a judge or magistrate which gives the police power to arrest the person named on it

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56
Q

What is arrest without a warrant?

A

This is the most usual method of bringing an alleged offender to court. Police may arrest anyone they reasonably suspect of having committed a crime or being about to commit a crime. Armed police must give a clear warning of their intent to use firearms, allow sufficient time for the warning to be heeded and only use firearms when it is strictly unavoidable in order to protect life.

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57
Q

What must police officers do when they make an arrest?

A

Tell the person that they are under arrest

tell the person why they are under arrest

Touch the person being arrest

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58
Q

What is meant by the term “reasonably suspect”

A

The use of the term ‘reasonably suspect’, when referring to the ability of police to arrest, means that police discretion enters into matter of arrest

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59
Q

When can an ordinary citizen make a citizens arrest?

A

A crime has been committed or attempted

there is immediate danger of a crime being committed

A breach of the peace has been committed or is about to be commited

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60
Q

What is bail?

A

Bail is an agreement to attend court to answer a criminal charge.

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61
Q

Under what legislation is bail or remand held under?

A

In NSW the law regarding bail is contained in the Bail act 2013.

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62
Q

What happens if bail is granted?

A

If bail is granted, the defendant is free to go but must attend court on the day specified

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63
Q

What is meant by the term remand?

A

Remand is the term for what happens to the accused when bail is refused. The defendant is remanded in custody (that is, kept in prison, until the day of the court hearing)

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64
Q

How can bail be granted?

A

Bail can be granted either unconditionally (that is, there are no conditions attached) or conditionally (for example, the defendant must lodge a sum of money or must report to the police station every day) Money will be returned when the defendant appears in court.

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65
Q

When can bail be granted?

A

Bail can be granted at any stage during the criminal process:

After arrest. At a first court appearance, the magistrate can grant bail During any adjournments of the court hearing, the judge can grant bail

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66
Q

Why is bail not granted?

A

Bail is not granted according to the following

In the case of people accused of very serious offences involving violence and robbery.

Those accused of drug trafficking, murder or involvement with a terrorist activity are not eligible for bail unless they can satisfy the judge that is should be granted

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67
Q

When should bail be granted?

A

Those accused of minor offences

Those accused of more serious offences not involving violence or robbery

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68
Q

What factors are taken into account by the police, a magistrate or judges when deciding whether to grant bail?

A
  • The likelihood of the accused person coming to court
  • the interest of the accused person
  • the protection of the community
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69
Q

Why is Bail important?

A

The person if not guilty of a crime until found guilty by a court, so there must be very good reasons not to grant bail. The granting of bail becomes more important when there are delays in the criminal justice system

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70
Q

What is meant by the term detention?

A

After a person has been arrest for a crime.

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71
Q

What do all suspects/ civilians have the right too?

A

Police may question anyone they like, but all citizens have the right to remain silent

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72
Q

What are exceptions to the right to remain silent?

A
  • A driver must produce their drivers licence
  • A person must give the name and address of a driver who has been involved in a motor accident
  • A person must give information to a customs officers about drug smuggling
73
Q

What are some of the rights a suspect have?

A
  • Rights to privacy
  • Right to communication
  • Right to a lawyer
  • Illegal evidence
74
Q

What are the rights people possess in regard to privacy?

A

Citizens do not have to allow police to search their persons or their premises except if police have a warrant

75
Q

What are the rights suspects have surrounding communication?

A

Police are supposed to allow a detained person access to facilities to allow that person to contact a friend, relative, solicitor or doctors. This is not a right but is stipulated in the police code of practice

76
Q

What are the rights of suspected surrounding access to a lawyer?

A

An adult has no absolute right to a lawyer or an independent witness present being questioned. Young offender have the right to have an independent adult present when being questioned

77
Q

What are suspects rights surrounding illegal evidence?

A

A confession cannot be used in court unless it is made voluntarily. A judge can refuse to admit any evidence which has been illegally obtained. The judge must consider the community’s best interests

78
Q

What is the criminal trial process?

A

The criminal trial process is also known as the adjudication process and is the hearing stage of the criminal process, where guilt or innocence of a defendant is decided in a court according to the rules of procedure and evidence

79
Q

What divides the laws between state and federal governments?

A

The commonwealth of Australia constitution act

80
Q

What is the role of the local court?

A

To hear minor criminal cases

To hear committal proceedings for more serious crimes, called indictable offences

To conduct coronal inquiries

To conduct Children’s Court hearings

To divert some drug offences from the court system in order to receive treatment

81
Q

What is the role of the district court?

A

To hear indictable offences such as manslaughter, bigamy, armed, robbery and malicious working

82
Q

What is the role of the supreme court?

A

To hear serious indictable offences, such as murder and arson

83
Q

What is the role of the criminal court of appeal?

A

The NSW Court of criminal appeal is the suprme court sitting as the court of criminal appeal

It hears appeals from the district and supreme courts about the severity of the sentence or on questions of fact or law

It can hear appeals from the local court on questions of law only

84
Q

What is the role of the high court?

A

To hear appeals from the NSW court of appeals on questions of law

To hear appeals in federal criminal matters from the federal court

85
Q

What does the local court hear?

A

The local court hears summary offences. Whether a defendant has a summary hearing or trial by jury depends on what type of offences they allegedly committed

86
Q

What categories are indictable offences split into?

A

Table one- which are dealt with summarily

Table two- which are dealt with summarily unless the protection decides to have the offence with a judge and jury

Table Three- Strictly indictable offences, which are the most serious offences and must dealt with by a judge or jury

87
Q

What is a summary hearing?

A

The case is heard in the local court and decided

88
Q

What are committal hearings?

A

Committal hearings are preliminary proceedings for trial by jury. The prosecutor must convince the magistrate there is prima facie. If the magistrate decides there is prima facie case then there is then a trial by jury

89
Q

What is meant by the term Prima Facie?

A

That is there is a sufficiently strong case against the accused to put the matter before a jury

90
Q

What is the role of the Children’s court hearing?

A

Most charges against people under 18 are heard in the Children’s court hearing

91
Q

What is a Coronial inquiry?

A

Where there is an unnatural death or an unexplained fire, a coroner will hold an inquest into the circumstances. The proceedings are more industrial than normal court proceedings, and normal rules of evidence and procedure are not followed

92
Q

What is the role of the NSW Drug court?

A

It handles non-violent cases committed by adult offenders who are dependant on illegal drugs.

93
Q

What is the aim of the NSW drug Court?

A

This court aims are not to punish offenders in the prison system but to get the offenders off drugs. It aims to reduce drug-related crime and drug addiction

94
Q

What are some of the alternatives to prison from the NSW Drug Court?

A

The drug court runs a 12-month drug court program as an alternative to imprisonment. The program includes judicial and probationary supervision, drug treatment, support services and random drug testing.

If these conditions are broken they are sentenced to jail

95
Q

What is the role of the district court?

A

The district court has jurisdiction over indictable criminal offences, except for murder and other very serious crimes.

96
Q

What is the role of the supreme court?

A

The Supreme court hears very serious indictable matters such as murder complex drug cases and arson.

97
Q

How many judges sit on the criminal court of appeal?

A

The criminal court of appeal has a panel of three to five judges.

98
Q

Where does the criminal court of appeal hear appeals from?

A

The local court on questions of law

The district court

Single judges decisions in the supreme court

99
Q

What is an appeal and what can happen?

A

An appeal is when a case is taken to a higher court because either party disagrees with the decision of a lower court. The higher court may then change the decision. In order for an appeal to succeed, the appellant must show that the lower court judge either wrongly uses or misinterpreted the law.

100
Q

What does the system of appeals help?

A

The system of appeals helps ensure the effects of wrong decisions made by a judge or magistrate when exercising their discretion is minimised

101
Q

What is the role of the federal court?

A

Though most criminal matters come under state jurisdiction, there are some criminal matters that are heard by the federal court of Australia

102
Q

What is the role of the high court of Australia?

A

In criminal matters, the high court hears from the federal court of Australia and from NSW court of criminal appeal

103
Q

What system of trial does Australia use?

A

The Adversarial system

104
Q

What is an inquisitorial system?

A

In an inquisitorial system of trial the judge collects the evident from both sides in cooperation with the protection after inquiries have been made

105
Q

What is the Adversarial system?

A

In an adversarial system of trial, the two sides of the case try to present and prove their version of the facts and disprove the other sides version. An impartial judges listens to the evidence and makes a decision as to which side is correct

106
Q

What are some of the features of an adversarial system of trial?

A
  • There are strict rules of evidence
  • There is the presumption of innocence
  • Witnesses are examined orally and can only answer the questions asked
  • The past record of the accused may only be examined in sentencing
107
Q

What is the party who takes the case to the court called?

A

The prosection (The prosecution is usually called the state, sometimes called the crown

108
Q

Who are Magistrates and judges?

A

A magistrate decides cases in the local court, while a judge decides cases in higher courts.

109
Q

What is the role of the Judge and magistrate?

A
  • Ensure that the trial is conducted legally
  • decide questions which arise about the law
  • Impose a punishment if the verdict is guilty
110
Q

What is the role of a police prosecutor?

A

To prosecute a case means to present a case on behalf of the state. The prosecutor calls on the prosecution witnesses and examines them, and presents other evidence to prove that the alleged offender is guilty of the crime

111
Q

What is the role of the Director of Public Prosecutions?

A

The director of public prosecutions is the holder of a government office responsible for prosecuting indictable offences heard summarily or in front of a jury

112
Q

What is the role of public defenders?

A

Public defenders are legal practitioners appointed by the NSW government to represent accused people in the district court and supreme court. Public defenders represent people in the same ways as other lawyers

113
Q

What is the role of the clerk of the court?

A

The clerk of the court is responsible for administrative work in a local court

114
Q

What is the role of the register?

A

The register, who is responsible for administrative work in a higher court

115
Q

What is the role of the tipstaff?

A

The tipstaff, who maintains order in the court and administers the oath to witnesses

116
Q

What does a guilty plea mean?

A

A guilty means there is no criminal hearing, the judge or magistrate only needs to consider what penalty to impose. In over 80% of criminal cases, the accused person pleads guilty to the charge

117
Q

What are the implications of the charge negotiation for the accused?

A
  • Charge negotiation put pressure on the accused to plead guilty to something they may not be guilty of in a court hearing
  • The accused may get a lighter sentence than he or she really deserves
  • The accused may be prepared to plead guilty to a lesser charge simply because they simply cannot afford the cost of defending
118
Q

What are the implications of charge negotiation for the victim?

A
  • Charge negotiation saves the victim from the ordeal of giving evidence and being cross-examined
  • The lighter sentence for the accused may mean the victim of the crime feels that the offender was not punished sufficiently
119
Q

What are the implications of charge negotiation for the community?

A
  • Charge negotiation saves the witnesses in the community from the ordeal of giving evidence and being cross-examined
  • Charge negotiation is efficient, quick and inexpensive, because there is no court hearing, except for a sentencing hearing
120
Q

What does a defence lawyer do?

A

A defence lawyer presents the evidence favourable to the accused and tries to discredit the evidence of the prosecution by cross-examination of witnesses

121
Q

What is legal aid?

A

Legal aid is the provision of free or cheap legal services to people on limited incomes. The aim of the legal aid is to help redress inequalities of access to the legal system by providing legal assistance and, for those on low incomes, legal representation in court hearings.

122
Q

What is the primary source of legal aid in NSW?

A

Legal Aid NSW.

123
Q

To receive legal aid what must a person pass?

A
  • A means test (that the person applying for legal aid must show that his/her disposable income is less than a specified amount
  • A merit test (that is, the person applying for legal aid must have a good chance of winning his or her case)
  • A jurisdiction test (That is legal aid will only be granted for certain types of legal matters)
124
Q

What is meant by the Standard of proof mean?

A

The standard of proof means the weight or value given to the evidence. If there is a reasonable doubt that the accused person committed the crime, he or she should be acquitted

125
Q

What is meant by Examination in chief?

A

This refers to the witness giving his or her evidence

126
Q

What is meant by cross-examination?

A

After a witness has given evidence in the examination- in chief, he or she can be cross-examined by the lawyer from the other side

127
Q

What are the rules surrounding confessions?

A

A confession cannot be used in court unless it is made voluntarily, Confessions made to police, but not electronically recorded, generally cannot be used as evidence in a court

128
Q

What is a defence?

A

A defence to a crime is a legally acceptable reason for committing an act. If a defender is successfully proved by a defendant and they are cleared of the offence, it is called a complete defence

129
Q

What are complete defences to a crime?

A

Complete defences to a crime completely clear a person of the crime.

  • Mental illness
  • Self-defence
  • Necessity
  • Duress
  • Consent
130
Q

What are partial defences to murder?

A

Provocation

Battered women syndrome

The abuse excuse

131
Q

What is the partial defence to murder in regards to provocation?

A

The defendant claims that they were aggravated by the victim in such a way that the actions of the murdered person would have caused an ordinary person to lose self control

132
Q

What is the partial defence to murder in regards to Battered women syndrome?

A

Which is being increasingly recognised by courts across Australia for charges of murder. Battered women syndrome may arise when a women kills her husband or partner after years of suffering from domestic violence

133
Q

What legislation is the partial defence to murder held under?

A

This defence is provided by Section 23 A of the crimes Act 1900 (NSW)

134
Q

Which legislation governs the way in which juries are selected?

A

Jury Act 1977 (NSW)

135
Q

How many people form a jury?

A

12

136
Q

Can verdicts be 11 to one on a jury NSW?

A

The verdict of the jury can be a majority verdict of eleven to one NSW criminal trials under amendments made to the Jury Act in 2006

137
Q

What are the arguments for major juries?

A

The need for a unanimous verdict means there must be retrials- costly

Hung juries can occur

The incidence of human juries has doubled in recent years

138
Q

What are the Arguments for retaining unanimous verdicts?

A

Majority verdicts compromise the criminal standard of proof

There is a greater risk of convicting the innocent

The NSW law reform commission inquired into the question of whether to allow majority verdicts and recommended against it

A rouge juror may have reasonable doubts

139
Q

What happens once a person is found to be guilty?

A

Once a person pleads guilty or is found guilty, there is a court hearing to determine the appropriate sentence for the offender. The judge decides on the appropriate penalty.

140
Q

What is judicial discretion?

A

Judicial discretion is the backbone of the sentencing process. With some exceptions, such as minimum non-parole periods, the judiciary has the broad discretion to select the type of sentence to give a convicted offender, and the length served. However judicial discretion is limited by statutory and judicial; guidelines, some of which are outlined in this section.

141
Q

What legislation are most maximum penalties found under?

A

Most maximum penalties are found in the Crimes Act 1900 (NSW)

142
Q

What does The crimes (Sentencing Procedure) Act 1999 (NSW**) outline?

A

A court must not impose a full-time prison sentence without considering and rejecting all possible alternatives

The court can impose a fixed term of imprisonment or, if the term is over six months, can fix parole and non-parole period

The parole period is generally a quarter of the total sentence

Any sentence of six months or under must be fixed

143
Q

What does mandatory sentencing refer to?

A

Mandatory sentencing refers to the practice of some parliaments of legislating for a particular sentence for a particular crime or series of crimes

Mandatory sentencing takes away the exercise of judicial discretion

144
Q

What are the purposes of punishment?

A

Deterrence

Retribution

Rehabilitaiton

Incapacitation

145
Q

What is meant by specific deterrence?

A

Specific deterrence means dissuading the offender from committing a similar crime in the future because of fear of punishment.

146
Q

What is meant by general deterrence?

A

General deterrence means dissuading the general public from committing a similar crime. For example, most people try to keep to the speed limit because the threat of fine and loss of points is enough to deter them from committing this crime.

147
Q

What is meant by retribution?

A

Pure retribution is where punishment aims to be exactly equivalent to the crimes committed

148
Q

What is meant by Rehabilitation?

A

A punishment that aims to rehabilitate is aimed at changing the behaviour of the offender so that they will not wish to commit other crimes because of non-criminal behaviour will be seen as preferable. The purpose of diversionary programs is primarily to rehabilitate offenders

149
Q

What is mean by incapacitation?

A

Incapacitation means that the punishment aims to isolate the offender, usually in prison so that they are unable to commit another crime.

150
Q

What is the legislation which decides on a suitable punishment?

A

The judge or magistrate decides on a suitable punishment for individual offenders with the guidelines set by the Crimes (sentencing Procedure) Act 1999 (NSW)

151
Q

What do Judges take into account when deciding on a punishment?

A

The maximum penatly

Other legislative and judicial guidelines

aggravating circumstances

mitigating circumstances

A victim impact statement

Weighing up these factors requires the exercise of judicial discretion

152
Q

Name some examples of Aggravating factors

A
  • Whether there was violence or the threat of violence
  • Whether there was a weapon used
  • Whether the crime was planned
  • The age and disability of the victim
  • Whether there was a relationship of trust with the victim
  • Whether the offender has a poor criminal record
153
Q

Name some examples of Mitigating Factors

A

The offenders past good record

The offender’s good character

Circumstances surrounding the offence, such as provocation

The effect of a sentence on the offender and their family

Cooperation with authorities, including providing information leading to other convictions

Signs of remorse, including a guilty plea

154
Q

What is the role of the victim in sentencing?

A

A victim impact statement is a statement read to the court, outlining the full effect of the crime on the victim. A victim impact statement can also be made by the victim, or by a member of the victim’s family if the victim has died

155
Q

What are the advantages of victim impact statements?

A

The advantages of victim impact statements

They can provide useful information about the impact of the crime

They can give the victim a role in the court process, giving the victim and the community greater confidence in the system

They may assist in the rehabilitation of the offender, because they get to hear the impact of their actions

156
Q

What is a disadvantage of Impact statements?

A

One disadvantage of such statements for the victims is that the delivery of the statement and the possible ensuing cross-examination can prove embarrassing and upsetting

157
Q

Why are appeals important?

A

The appeal process for sentencing is important because it allows higher courts to supervise the discretion of the judges when they are making sentencing decisions, thereby helping to ensure consistency by establishing the maximum and minimum range of sentences for particular offences. The higher courts do this by

Reducing or increasing sentences on appeal

Issuing guidelines sentences

158
Q

What are traditional penalties?

A
  • No conviction recorded
  • Caution
  • Fine
  • Bond
  • Suspended sentence
  • Probation
  • Criminal infringement notice
  • Community service notice
  • Home detention
  • Public detention
  • Forfeiture of assets
  • Imprisonement
159
Q

What are some diversionary programs?

A

Magistrates Early Referral into a treatment program

The drug court

Cannabis cautioning scheme

Sober driver program

Circle sentencing and restorative justice

160
Q

What is cycle sentencing?

A

Circle sentencing is a restorative justice program for Aboriginal offenders. It was introduced in Nowara in 2002 and has now extended to other areas in the state. Aboogirnial offenders are brought before a circle of people involved in the offence, including the victim, the victims family, community elders, the defence lawyer, the prosecutor and the judge. The members of the circle discuss the offence, its impact on the victim and the community, ways of rectifying the harm done, and what can be done to help both the victim and the offender in the future.

161
Q

What are security classifications?

A

Hight risk categories

Medium risk categories

Low risk categories

162
Q

What is parole?

A

Parole allows prisoners to leave prison before they have completed their full sentence. There are conditions attached to parole and, it a prisoner breaks them, they are sent back to prison to complete the original sentence

163
Q

What are implications of parole?

A

One implication of parole is that it encourages prisoners to behave well and undertake rehabilitative activities in the hope of early release. After prisoners are released on parole the close supervision helps to ensure that they assimilate into society, and so have a greater chance of remaining free from criminal activity

164
Q

What is preventative detention and continued detention?

A

It is a term used to describe the detention of people detained without charge because they are suspected of terrorist activity. The use of the term preventative detention applies to the detention of serious offenders who are at risk of offending if they are released into the community

165
Q

What are the implications of preventative detention and continued detention?

A

The main reason for preventative and continued detention is to protect the community from possible harm. However, the consequences of this are serious because people detained under this legislation have already served their sentence. Some commentators argue that preventative detention violates the international covenant on civil and political rights.

Violates International Covenant on civil and political rights

166
Q

What are sexual offenders registrations?

A

People who have been convicted of serious sexual offences, particularly those involving children, must register with the police stations closest to their residence and provide the police with certain information

167
Q

What are the implications of a sexual offender registration?

A

If information becomes public some residents may object to this person living in their community

168
Q

What does deportation mean?

A

Deportation means the forcible removal of a person from a country and returning that person to their region

169
Q

What is the age of criminal responsiblity?

A

Under the Children (Criminal proceeding) Act 1987, no one under the age of ten years can be charged with a criminal offence because it is said that they are not old enough to form the necessary Mens rea. This is called Doli incapax. If a child is between ten and fourteen years, the principle of Doli incapax can be argued with (that is, the child can be found in court to have the necessary mens rea to be held criminally responsible

170
Q

What are some of the rights of children when being questioned?

A

A parent or guardian must be notified if a child is taken into custody

Children have the right to have an independent adult as a support person during any police procedure

The police must tell a child about their rights and assist the child to exercise those rights

171
Q

What legislation governs the Children’s court?

A

Children (criminal proceedings) Act 1987 (NSW)

172
Q

When sentencing a child what is taken into consideration?

A

It is desirable, if possible for a child’s education to continue

It is desirable if possible for a child to live at home

A penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind

173
Q

What legislation provides the alternative to court for the young offender?

A

Young offenders Act 1997 (NSW)

174
Q

What is a youth justice conference and under which legislation is it governed by?

A

The young offender’s act 1997 (NSW) Introduced youth justice conferencing. Present at the conference are: the young offender, a parent the victim a supporter of the victim and a mediator.

175
Q

What is the aim of youth justice conferences?

A

The aim of such conferences is to come up with an agreement which may include an apology for the victim, reparation made to the victim, drug or alcohol rehabilitation for the young offender or anything else considered appropriate.

176
Q

What are crimes against the international community?

A

Crimes against the international community are crimes committed by individuals and states, which are seen as wrong by the international community.

177
Q

What are some of the types of crimes against the international community?

A

War crimes, a crime against the peace and humanity, genocide, terrorism, apartheid and slavery

178
Q

What is a transnational crime?

A

These crimes occur within a state’s legal system but contain an international element.

179
Q

What are some instruments to deal with international crime?

A

Customary international law

international tribunals

sanctions

Extradition

Cooperation between nations

legal studies 2020 (9 decks)

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