Legal Doc Study Revision Flashcards
Legal theories of crime
positivist, proceduralist, substantive, normative
Positivist Theory
Legal positivism states that a crime is simply any act, which the law calls a crime, and for which there is a penalty of punishment that is stated in legislation.
BLACK/WHITE APPROACH
Proceduralist Theory
Proceduralist theory defines criminal law by distinguishing it from other kinds of law (e.g. civil) on the basis of the procedures that are applied during the pre-trial and trial processes.
Substantive Approach
This takes into account the actual “substance” of the crime, recognising the social aspect of crime, considering wrongful acts as public wrongs or wrongs against the community
Normative Approach
This view depicts criminal acts as a serious breach of the established societal norms.
Reasons to criminalise
stop vigilantism, codify norms, create social cohesion, protect the general public, unify moral standards, prevent harm to victims and guarantee property rights.
Justifications for criminalisation
harm prevention, avoiding vigilantism, moral condemnations, public interest
Harm Prevention
This principle states that certain acts should be criminalised because they cause unjustifiable harm to others.
However, ‘harm’ is a very subjective and difficult to define.
Avoiding vigilantism
This principle states that some criminal acts are so offensive or damaging that they encourage acts of revenge or retaliation, thus criminalising enables the State with the power to appropriately administer punishment.
Moral Condemnation
This states that certain actions that represent a serious attack on the community’s core moral values should be criminalised. (CREATES A LINK BETWEEN LAW AND MORALITY, emphasises social cohesion)
Public Interest
It states that actions can be criminalised if they are “public wrongs” that breach some normative practices (norms of society) which are dealt with through ‘public law’ rather than ‘private law’ (procedures of criminal law)
Justifications of Punishments
deterrence, incapacitation, denunciation/censure, retribution/reform
Deterrence
it is directly linked to the harm prevention principle, it is done in an attempt to discourage potential offenders from criminal activity, by ensuing a punishment that fits the crime (appeals to self-interest)
Specific Deterrence
when an offender receives punishment for their wrongful acts, this then incentives the offender to NOT repeat the offence again
General Deterrence
The punishment is publicly displayed, in order to carry across the message to everyone. (PUNISHING ONE TO DETER ALL)
Incapacitation
This is under the basis that punishment is justified if it restricts, restrains or removes the capacity of an offender to commit further crimes. Based on harm prevention, but it treats the offender as a dangerous thing.
Denunciation
By inflicting punishment, a court declares for all to see that the behaviour is morally wrong and to be condemned. It has an educative effect on the community.
Censure
Punishment is done in the form of direct remarks to the offender. It intends to highlight the wrongfulness of their conduct, acknowledge their actions.
Retribution
This is the notion that the punishment is justified because those who have done wrong deserve to have suffering inflicted on them in return
Components of sentencing
Courts cannot impose punishments / sentences that they believe to be fair or what is wanted amongst the public. The court needs to take into account: precedents, laws set by the State parliament and consultation of reports.
Objective Seriousness
Objective Seriousness focuses on the nature/circumstances of the offence, disposition of the offender (attitude whilst committing the crime) and harm to the victim.
It is the straight up facts and immediate information available which is utilised to determine the range of the sentencing suitable for the crime and prevents manifestly inadequate or manifestly excessive sentences from being passed.
Subjective Factors
Subjective factors are the additional information collected, after the offence has been committed. This includes things such as prior record (previous criminal record), good character, remorse, advanced age/ill health, youth, mental health, deprived background, potential familial hardships, extra-curial punishments.
The subjective factors are utilised to pinpoint the correct or most just sentencing for the offence that was committed.
Two-step Sentencing
This is a very black/white & proceduralist. It initially utilises objective seriousness to determine the range of the crime, and then subjective factors are used to pinpoint the exact sentence
MATHEMATICAL REASONING FOR SENTENCING
Instinctive Synthesis
Instinctive synthesis is when the objective seriousness and subjective factors are both taken into account to determine the most adequate sentence. In a way, it covers the judge’s tracks on how they arrived at this conclusion, preventing all cases from being appealed easily.
Verdins Principle - meaning
This principle provides guidance on how courts may take into account a defendant’s mental illness when determining the appropriate sentence.
Verdin’s Principle Conditions
The mental condition can reduce the moral culpability of the offending conduct
The condition can play a role in altering the conditions of the sentence and the way in which it is imposed
The existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health
If imprisonment results in significant adverse effects on the offender’s mental health, it can mitigate the punishment
Bugmy’s Principle - meaning
This principle revolves around the consideration of background in determining the imposed sentence. This is because the effects of childhood deprivation don’t diminish over time and are to be given full weight in the determination of the appropriate sentence in every case.
Bugmy’s Principle - conditions
The childhood background must be given full weight in determining an appropriate sentence
The systemic deprivation must be taken into account regardless of the circumstances of the offender
Pre-sentence report
This is prepared by the Corrective Services based on one or more interviews with the offender. The reasons for offending, the offender’s attitude to the offence, history of offendant (drug use, criminal record), prospects for rehabilitation and risk of reoffending
Victim impact sentence
Can be written by the victim, a parental figure, close family member of victim, a carer or person with intimate relationship.
physical/mental injury, pregnancy, economic loss, substantial impairment
