Crime Chapter 1 Flashcards
What is the meaning of crime?
A term used broadly to describe any act or omission that results in harm to society
In a criminal case, what is the burden of proof and who has it?
The Crown must prove the case beyond reasonable doubt
What is actus reus and how is it proved?
Actus reus is if the accused person actually committed the crime. It is proved through witness testimonies and evidence.
Actus reus must be a voluntary act but can also include acts of omission like in cases of criminal negligence
What is mens rea and how is it proved?
Mens rea is if the accused person sufficiently intended to commit the crime. If the Crown can’t prove the defendant acted intentionally the charge won’t be added. The prosecution must prove the defendant was aware their actions would result in a crime being committed
What are the three levels of mens rea?
Intention: clear, malicious intention to commit the crime
Negligence: The accused didn’t see the risk when they should’ve which resulted in the death of another they had a duty to protect
Recklessness: The accused was aware their actions could lead to a crime being committed but decided to follow through anyway because they couldn’t make a sensible decision or to show off
What are strict liability offences, providing an example?
Offences where only actus reus needs to be proved - a cop only needs to prove that a driver broke the speed limit not whether or not it was intentional
What are the advantages of strict liability offences?
Efficiently deals with minor offences which are higher in volume and also helps enforce a particular law
What is a possible defence to a strict liability offence?
If the defendent can prove it was an honest and reasonable mistake
What is causation?
If there is a sufficient link between the actions of the accused and the result
Relevant in proving actus reus
Scope of liability
The negligent person’s liability once it has been established their negligence was the cause of harm –> a mother murdering her baby after suffering from PPD is a mitigating factor
Four types
How is crime categorised?
- Offence
- Jurisdiction
- Role of the accused
- Seriousness of the offence
What is an offence against the person?
A crime that results in some form of injury to the individual
What are the three types of offences against the person?
- Homicide
- Assault
- Sexual offences
What is homicide?
The unlawful killing of another person
What are the categories of homicide from most to least severe?
- Murder
- Manslaughter & Infanticide
- Dangerous driving occasioning death
In a murder what must the prosecution show?
- Mens rea: the accused had an intention to kill the victim
- Accused wanted to inflict serious bodily harm that resulted in death
- Reckless endangerment to human life
- Done while committing or attempting to commit another sioues crime (25+ years)
What is the difference between manslaughter and murder?
Reduced level of intent
What are the three categories of manslaughter?
- Voluntary
- Involuntary
- Constructive
What is voluntary manslaughter?
The person kills with intent but there are mitigating circumstances like provocation –> MUST be mitigating circumstances
What is involuntary manslaughter?
Unintentional killing of a person due to recklessness or negligence
No intention of death or grievous bodily harm
What is constructive manslaughter?
Manslaughetr that occurs while committing another crime (assault without intention to kill but death happens)
What is infanticide?
The murder of a newborn baby within in one year by it’s parent
Court is required to take into account the parent’s mental state
What is dangerous driving occassioning death?
Reckless driving under the influence of alchohol, drugs or excessive speed which reuslts in the death of another person
What is the penalty for dangerous driving occassioning death?
Maximum 10 years but can be 14 if aggravated by other circumstances
What is assault?
Non-consensual force applied directly to another person
What are sexual offences?
Engaging in a sexual act without the other person’s consent
What is a lack of consent?
- Substantially intoxicated by drugs or alcohol and doesn’t have the capability to make consent
- Intimidated or co-erced into the act
- Accused abused their position of trust and authority over the victim
What is Aggravated Sexual Assault?
Sexual assault with aggravating cirumstances
Examples of aggravating factors in in Aggravated Sexual Assault
- Victim is under 16 years old
- Victim has serious physical/intellectual disability
What is the highest form of Sexual Assault?
Aggravated Sexual Assault in Company
What is Aggravated Sexual Assault in Company?
Aggravated sexual assault performed with other people to inflict or threaten to inflict sexual assault on victims
What incident lead to the law reform & creation of the Aggravated Sexual Assault law?
Gang rapes in Sydney 2001 which resulted in public outcry for law reform
What is indecent assault?
Accused commits an act of assault or indeceny in the presence of a non-consenting person
Example of indecent assault
Touching genitals or other parts of the body in a sexual manner
What are all the charges relating to sexual assault?
- Sexual Assault
- Aggravated Sexual Assault
- Aggravated Sexual Assault in Company
- Indecent Assault
What are Offences Against the Sovereign?
Political offences against the state/head of state which has severe policies
What are all the Offences Against the Sovereign?
- Treason
- Sedition
- Economic Offences
- Drug Offences
- Driving Offences
- Public Order Offences
- Preliminary Offences
The Seven Even DD PP
What is Treason?
Any attempt to manifest intention to impose war against the state, assist the enemy or cause harm to the Governer General, Prime Minister or Queen of Australia
What is the sentence for treason?
25 years
What is sedition?
Oral or written intention to bring the sovereign into contempt
What are the controversies against the charge of sedition?
Crticised as being abusable through silencing government oppression and free speech
What was the law reform that occurred as a response to the criticism on the charge of sedition?
ALRC recommended to remove the word sedition and instead amend various elements of other related offences
What are economic offences?
Offences that result in a loss of property or sums of money
What are the types of economic offences?
- Crimes Against Property
- White Collar Crimes
- Computer Offences
What are examples of crimes against property?
Larceny, robbery & breaking and entering
What is larceny?
Stealing property
Most common form of larceny is shoplifting
What is robbery?
More serious than larceny and occurs when a person uses force to steal goods or take property from victims
When does robbery become armed robbery?
If the robber has use or threatened use of a weapon
What is breaking and entering?
When a person enters a private residence with the intention of committing a crime
Offender has intention to commit another property crime like larceny
What is white collar crime?
Non-violent crimes associated with business people
What are the types of white collar crimes?
- Embezzlement
- Insider Trading
- Tax Evasion
What is embezzlement?
Misappropriation of another person’s funds or money
What is the main issue regarding embezzlement?
Embezzled funds are hard to track and recover –> moeny is untraceable or offender can’t repay the money
What is tax evasion?
Trying to avoid paying taxes to government
What are examples of tax fraud
- Fradulent filling out of tax returns
- Organising business in a way it hides tax earnings from authroities
What is insider trading?
- Buying and selling company shares
- Stockbroker obtains confidential information on company shares that will affect its share price
- Offender takes advantage of this information to buy and sell shares
What other offences can fraud include:
- White collar crime, property crime and computer offences
What is fraud?
Deceitful or dishonest conduct for personal gain
What are some common fraud charges?
- Identity theft
- Internet phishing
- Requesting funds/account details under false pretences
What are drug offences?
Acts involving prohibited or restricted drugs
What are common offences associated with drug offences?
- Larceny, robbery, breaking and entering and prostitution
Driving offences are most commonly what kind of offence?
Strict liability
What are the most common types of driving offences
- Exceeding speed limit
- Ignoring road signs
- Driving without a license
- Driving above a BAC of 0.05
What are some serious driving offences?
- Furious or reckless driving
- Negligent driving causing death or serious bodily harm
- Failing to stop and give assistance at an accident involving death or injury
Last one is in hit-and-run situations with the perpetrator
What is there an increasing trend in road accidents relating to?
Negligent driving and speeding
What are public order offences?
Offences deemed to disturb public order in some way
What are the most common public order offences?
- Obscene, indecent behaviour in public
- Knife in a public place without a reasonable excuse
- Obstructing traffic or ignoring a reasonable sign to move on
- Damaging public places
What is the most serious public order offence?
Affray - using or threatening to use violence on another person, causing people to fear their safety
What is a problem/challenge related to public order offences?
Using police powers is problematic as it results in targeted police discrimination
What are preliminary crimes?
Attempt/conspiracy to commit the crime when it has not been successful
What is attempt and the penalties for the offence?
Attempting to commit a crime which generally has the same penalties as committing the actual crime but certain attempted crimes like attempted murder have their own specific penalties
What must the prosecution show when trying to prove an attempted crime?
Offence was all but completed or failed despite an attempt to commit it
What is a possible defence to an attempted crime?
The accused may have a lawful explanation for their actions or no apparent reason to commit the crime
What is conspiracy?
Two or more people jointly conspire to commit a crime
What must the two parties do for conspiracy to occur?
Agree to commit a crime with the intention clearly shown by each person’s explicit agreement to commit the crime
Why is it difficult to prove conspiracy?
Difficult to prove without the aid of a confession or a recording
What are regulatory offences?
Set out in delegated legislation like regulations or local laws and don’t require mens rea
What are the penalties for regulatory offences, providing some examples?
Minor offences with lesser penalties like watering a garden when water restrictions apply or travelling on public transport without a ticket
What are summary offences?
Minor offences heard in the local court in front of a magistrate and without a jury
What are the most common types of punishments for summary offences?
Bonds, paying fines, jail sentence of two years (five if the person has a criminal record)
What are indictable offences?
More serious offences heard in the District Court by a judge in front of a jury
Define ‘triable summarily’
When the accused can choose to have their case heard by the local court magistrate or district court judge
What are the benefits of having a trial in the local court & district court?
Local Court is cheaper, most often has lower penalties because of lower court restrictions on maximum penalties, earlier and faster hearing date, and less formality
If the plea is ‘not guilty’, District Court has the advantage of a jury which has the probability of a not guilty verdict
What is a party to the crime and what are the possible charges?
Any person who has been involved in the crime in some way - principle in the first degree, principle in the second degree, accessory before the fact and accessory after the fact
Define all of the charges in parties to a crime
- Principle in the first degree: person who committed the crime & is directly responsible for the crime being carried out –> most likely to receive the highest sentence
- Principle in the second degree: person who encouraged the principle offender to commit the offence –> in an armed robbery the person will be keeping a lookout at the door
- Accessory before the fact: Someone who helped the principle plan or carry out the act
- Accessory after the fact: Someone who helped the principle after the crime has been committed –> getaway driver or disposing of evidence
What are the factors affecting criminal behaviour?
- Psychological
- Social
- Economical
- Self-interest
- Political
- Genetic
How do psychological factors affect crime?
- Traits such as impulsivity, sensation-seeking, low empathy, aggressiveness, and a lack of conscience or guilt (associated with psychopathy) have been linked to criminal conduct
- When being sentenced, those with psyhcological issues are mitigatin g factors taken into consideration and are given beneficial sentences - drug rehabilitation for addicts
How do social factors affect crime?
- Influence a person’s attitudes towards crime and acceptable behaviour (family situations and personal relationships)
- Environment someone was raised in can influence their behaviour (child who was constantly abused and assaulted growing up is more likely to repeat these behaviours until they get help)
How do genetic factors affect crime?
- Often linked to psychological factors
- AIC 2021 Report on genetic susceptibility for crime showed that personality disorders are common in offenders
- 1/3 of all serial killers have ASPD
How do economical factors affect crime?
- People from disadvantaged backgrounds are more likely to commit crimes
- 1/3 of male offenders and 1/2 of female offenders receive government welfare as primary source of income –> underlying financial factor
- Poor eductation and lack of social skills are socioeconomic factors linked to crime as criminals are often unemployed or unskilled
How do political factors affect crime?
- Offences against the sovereign are more likely to have a political motive
- Hate crimes are driven by underlying political ideologies
- Political corruption can lead to degeneration of law enforcement which results in increased crime
How does self interest affect crime?
Most crimes have an underlying reason fo self-interest –> people risk committing crimes because they have something to gain
What is situational crime prevention and the types of situational crime prevention?
Making it hard for criminals to attempt crimes
1. Planning and Architectural Crime prevention
2. Focused Approaches
What are Planning and Architectural Approaches to crime prevention?
With examples
Influence on physical environment on ease to commit a crime
* Installing bars or alarm systems in areas
* Computer passwords and internet firewalls
What are focused approaches to crime prevention?
With examples
Relies on the rational choice theory, assuming that offenders weigh up potential risks and gains before committing a crime
* No loitering around dark alleyways
* Stores playing classical music to stop young offenders from hanging around
* Decreasing the reward after crime - blue dye on clothes
What is social crime prevention?
Addressing the underlying social factors that result in crime:
- Poor home and parenting
- Social and economic disadvantage
- Early contact with police/authorities
- Poor school attendence
What are some methods used as forms of social crime prevention?
- Increased funding in educational programs in schools to raise educational levels of students deemed to be at risk
- Parenting workshops for parents of disadvantaged background
R v Thomas Sam [2009]
And what does this case prove?
- Two parents charged with manslaughter by criminal negligence after failing to give their two year old proper medical care
- Daughter has severe eczema which was found to be medically treatable but the parents refused to, instead relying on other homoeopathic treatment
Proves criminal negligence - mens rea
Wallace v Kam [2013]
And what does this case prove?
- Neurosurgeon Dr Kam charged with medical negligence because Wallace had been injured during surgery
- Alleged that Kam hadn’t warned Wallace about the risks of the surgery and he wouldn’t have agreed if he had known → negligent failure to disclose resulted in injury
- High Court stated that there needed to be more scrutiny on causation and although the case showed factual causation it didn’t suggest the doctor should be liable
Causation
Boughey v The Queen [1986]
And what does this prove?
- Doctor strangled wife during a sex game
- Court held that Boughey knew there was a substantial cause of harm but proceeded with the act anyway
Mens rea - Reckless indifference to human life
Burns v The Queen [2012]
And what does this prove?
- Burns sold methadone to her friends and one friend died after using a prescription drug with the methadone
- Burns was convicted of involuntary manslaughter
Criminal negligence and involuntary mansalughter
R v AEM [2002]
And what does this prove?
- Two 16 year olds and one 19 year old lured two 16 year old’s to a home where they were forcibly detained and sexually assaulted for hours
- At the time the highest law was aggravated sexual assault which lead to charges of 5-6 years only → lots of public outrage which led to the creation of aggravated sexual assault with company
Aggravated sexual assault with company law creation
What was the case that lead to the creation of the aggravated sexual assault in company crime?
R v AEM [2002]
Natalie McGarry [2019]
And what does this prove?
Jailed after embezzling thousands from independence groups for lifetstyle spending
Embezzlement - white collar crimes
Bali Nine [2005]
And what does this prove?
Andrew Chan and Myuran Sukumaran sentenced to death in Indonesia for a drug trafficking operation
Drug offences
R v Whybrow [1951]
And what does this prove?
- Husband attempted to electrocute his wife by putting dish soap and electricity to a bathtub but the wife only got a shock
- Court as attempted murder because everything was apparently pre-meditated but the plan failed
Attempted murder
Media source for crime prevention
- Australian Government $328 million dollar package in 2019 to reduce violence against women and children
- Change attitudes and beliefs that lead to violence
- Targeted prevention initiatives to reach ATSIP
- Training health workers to better identify signs of domestic violence and support victims
- Situational preventative: electronic tracking of offenders)
- Social preventative: Training of health and social workers
AIC 2024 Report on DAFSV
And what does this prove?
- People with disability are at increased risk of sexual violence
- 88% of users experienced some form of DAFSV (Dating App Facilitated Sexual Violence)
- Women and First Nations people were at greater risk of sexual violence
Sexual Assault + Computer offences
