Evaluation of Non-fatal offences Flashcards
Four evaluations of non fatal offences
1 - Its a Victorian act of parliament
2 - Structure of Offences
3 - Outdated and confusing language
4 - Sentencing issues
Development - Victorian act of parliament
Its not suitable to deal with morden day issues never imagined by victorian politicians: e.g. Psychiatric Harm (Ireland) and AIDS/HIV (Dica)
Explain - Victorian Parliament
However case law has helped it to adapt to situations seen above. It was also written as a consolidation act which is why it is confusing (section numbers in random order instead of 1,2,3)
Development - Structure of Offences
This does not support the principle of fault. D should not be liable for the harm that are at fault for. The mens rea of the non-fatal offences does not match up the Defendants level of guilty
Example - Structure of offences
An example of the structure of offence being a problem is the mens rea and actus reus being the same for abh, assault and battery. NO CLEAR BOUNDIRES between offences.
Development - Outdated and confusing language
There are issues with the definitions of some words in the act. Assault, Common assault and battery used interchangeably.
Maliciously is an outdated word - we would infer bad motive but Cunningham says it includes recklessness.
Counter argument - Outdated and Confusing Language
However case law and the changing standards which are used by the police when deciding what offence to charge with five clarity to what these terms mean.
Development - Sentencing issues
The sentencing used in non-fatal offences does not conform to the ladder principle. Which states that as offences get more serious, their sentences should increase at a reasonable rate. Assault and battery have the same sentence, and this then jumps from 6 months to 5 years for ABH despite the mens rea being the same.
Counter argument - Sentencing issues
However judges have discretion what sentence to give with statutory guide lines so they can give whatever punishment fits the crime.
