The Nature of Crime

1.1 The Meaning of Crime

A crime is any act or omission of duty resulting in harm to society that is punishable by the
state.
Most crimes are created by moral and ethical judgements placed on a person's behaviour by
society. This, however, is not always the case. For example; a person experienced in first aid
sees a pedestrian knocked down by a car, but does not go to their aid. In Australia, that person
is not required by law to assist, but it would be considered 'unethical' by society if that person
is to do so.

1.2 Elements of a Crime

In order to be found guilty of a criminal act, it must be proven that:

The accused intended to commit the crime

The accused actually committed the crime

Mens Rea
Refers to the guilty mind of the person's intention to commit the crime. Except in cases of strict
liability (traffic offences) the prosecution must prove that the accused was aware that their
actions would result in a crime being committed.
Actus Reus
The act element to the physical performance or conduct element of a criminal act. In most
cases, it must be proven that the person charged actually carried out the crime, rather than
just thinking about it.
Causation
Apart from proving that the act took place, it must be proven that there is link between the act
and the harm caused by it.
1.3 Classifying Crime
Indictable Offences
An indictable offence is one that society considers t be quite serious, such as murder or sexual
assault. As the charge is more serious, there are more steps in the legal process, including a
committal hearing to ensure that there is enough evidence to warrant a trial.
Indictable offences are brought on a charge called an 'indictment'. The penalties may include
life in prison.
Summary Offences
A summary offence is a less serious charge, such as stealing or drink driving. These cases are
heard by a magistrate or in a Local Court, without a jury.
Summary offences brought on charge are called 'summons' and carry penalties of no more than
2 years.
Offenses Against Persons
There are three broad categories of crimes or offences against persons, including:
Homicide (the unlawful killing of a person)
Assault
Sexual assault.
HOMICIDE
Under the law, a homicide is committed when a person has unlawfully been killed. This allows
for certain exemptions, such a soldier killing the enemy in war or when the death was the result
of self-defence.
There are four situations where homicide is said to have been committed:
1.
Murder
The indictable offence of this crime results in high penalties and is difficult for
prosecutors to prove. In order to gain a successful conviction, it must be proved that
there was a deliberate act to kill, there was act to cause harm, during which death
occurred, reckless indifference to cause harm, and death occurring in a serious crime
2.
Manslaughter
Manslaughter in unlawful killing, however the accused is not charged with murder
because they have a defence in their action. Maximum penalty in Australia is 25 years.
There are two types of manslaughter:
Voluntary, where the accused did intend to cause death but mitigating circumstances

exist.
Involuntary, where death occurs but the accused did not have the mental intention to
cause death.
3.
Infanticide
This crime involves a mother causing the death of a child within its first 12 months of
life. The Crimes Act 1900 (NSW) requires the court to take into account the mental state
of the mother when the homicide occurred (mental illness such a post-natal depression
(PND) caused their actions).
4.
Death by reckless driving
Thus type of homicide was created as a result of increasing number of motor vehicle
accidents The fact that the driver did not intend for their actions to kill another person is
not as important as other factors, such as speed or driving under the influence of drugs
or alcohol (DUI). Maximum penalties are 15 years imprisonment
ASSAULT
Assault involves causing physical harm or threatening to cause physical harm to another
person. However, modern laws have recognised that the threat of physical violence can cause
serious mental harm. In the case Barton v. Armstrong [1975] where Barton was threatened by
Armstrong if he did not approve the purchase of Armstrong's shares at an inflated price. The
treats were believed by Mr Barton and were enough to take the matter to a civil law
proceeding. Mr Armstrong was forced to overturn the contract as Mr Barton was put under
duress.
SEXUAL ASSAULT
It involves sexual contact with another person without their consent. This includes people who
make unwanted sexual contact with their spouse. There are circumstances where sexual
assault occurs even when consent has been given. The age of consent for both heterosexual
and homosexual sex in New South Wales is 16 years. This means that if a person over 16 has
sexual intercourse with a person under 16 they can be charged with sexual assault. Such a
charge used to be referred to as statutory rape. Consent is also irrelevant when the consent is
given mistakenly. This would occur if consent was given under duress or if the victim did not
understand that they were giving consent for sex. It is also considered an offence to cause a
person to become drugged or drunk for the purpose of having sex with them.
Offences Against the Sovereign
Governments may make laws that some people feel are greatly unjust, and that obeying them
would go against their moral principles. Situations such as this can cause people to break the
law. In extreme cases, this dilemma can cause people to commit very serious crimes, including
treason and sedition. Sedition is the act of encouraging hatred or contempt of the monarch, the
government or the constitution. However, the recent passing of very harsh anti-terrorism laws
indicates that treason is taken very seriously by the Australian government. The main
Commonwealth laws relevant to terrorism are the Anti-Terrorism Act 2004 (Cwlth) and the AntiTerrorism Act (No. 2) 2005 (Cwlth).
Economic Offences
The broad category of economic offences is used to categorise a wide range of offences
involving crimes that damage or result in the loss of another persons property. These include:

Crimes against property (larceny or theft, breaking and entering and robbery

White-collar crimes (tax evasion, insider trading and computer crimes

Drug offences

Driving offences

Public order offences

Preliminary offences (attempts and conspiracy)

1.4 Parties to a Crime
Principle in the first degree
This is the person who actually carries out the criminal act. Such a person is usually referred to
as the perpetrator.
Principle in the second degree
This person assists others in the commission of a crime. The principal in the second degree is
present during the actual crime but is not a main participant.
Accessory before the fact
This person helps others commit a crime by helping them plan or prepare the criminal act.
However, they are not present at the time the crime is conducted.
Accessory after the fact
This person helps criminals after they have committed a crime, but is neither present during

the crime, nor aware of it beforehand. The law recognises this offence only for serious crimes,
such as murder and armed robbery. In the service station case, this person may have helped
the others to elude the police or may have got them a new car.
1.5 Factors Affecting Criminal Behaviour
Most people are conditioned to follow the law by their parents and educational institutions.
Consequently, for the majority of people, the concept that laws must be followed is developed
from an early age. There are many determinants including:

Social and economic factors

Genetic theories

Political factors

Self-interest and greed

1.6 Crime Prevention
Crime prevention is much more efficient than dealing with a criminal act once it has happened.
For example, a way of preventing crime would be to eliminate lanes and 'dark' alleyways
Situational Crime Prevention
Situational crime prevention involves making it difficult for criminals to commit crimes by
increasing the risk of being caught, and making the crime more difficult or less rewarding to
perpetrate. This is often referred to as opportunity reduction. This method is used quite often,
for example, shop attendants using surveillance cameras and security guards.
Social Crime Prevention
Social crime prevention programs aim to give people access to society and an education in
order to reduce the factors that are likely to cause a person to commit a crime. These factors
can include poor parenting and/or home environment, high levels of truancy and misbehaviour
at school, drug addiction and exposure to criminal elements at an early age.
The most common strategy to encourage young people away from crime is the use of
diversionary programs that provide a venue for alternative activities, such as sporting groups,
the Police Citizens Youth Clubs and drop-in centres. Programs that target substance abuse,
enable intervention in violent behaviour and provide job training to reduce unemployment have
also been adopted.
The Criminal Trial Process
2.1 Police Powers
The police play a critical role in the legal system. Their role is to both prevent crime through
maintaining a public presence and acting as a deterrent, and also to investigate criminal
activities and assist in the prosecution of those charged with offences.
The powers that police have been given in order to carry out their roles are contained in
various Acts of Parliament. The most obvious power of police is the power to arrest; in New
South Wales this power is provided under s.21 of the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW).
The police cannot simply arrest a person in order to question them. They must either have a
warrant or they must be arresting a person for the purpose of taking them before a court,
based on reasonable suspicion; that is, they are going to charge the person with an offence.
Another important power of police is the power to stop, search and detain. This power is
confined to situations where the police have reasonable grounds to suspect a person or vehicle
is carrying an article that is illegal, such as drugs or a weapon.
An issue in New South Wales at present is the increasing number of powers being given to
police, and also the increasing range of activities that are being criminalised. The passing of
the Crimes (Criminal Organisations Control) Act 2009 (NSW) has been criticised for being far
too harsh and giving the police powers that are too great.
2.2 Reporting and Investigating Crime
Reporting Crime
The police rely on members of the public to report crimes. Even with the involvement of the
public, many crimes go unreported. For instance, studies show that at least 25 per cent of all
sexual offences are not reported. There are many reasons why people do not report crimes,
including a fear of revenge or suspicion of the police and of the legal system itself.
Investigating Crime
One of the main investigative tasks of the police is to gather evidence. The collection of
evidence is crucial; a criminal charge has to be proven by the prosecution and the proof is

always based on evidence available for the court to view. Evidence gathered may be physical
(in the form of paper, coins, clothing or weapons and other actual physical materials), it may be
electronic (in the form of photographs, electronic records, mobile phone records and computer
drives) or it may be in the form of witness statements (what people saw or heard).
Use of Technology
Technology has not only created new crimes, such as Internet fraud, but it has also greatly
assisted law enforcers in the investigation of crime. Surveillance technology has provided more
evidence for use in criminal investigations; for example, the installation of cameras in major
public spaces has assisted in identifying criminals. When, for example, a portion of skin is shed,
it contains cells that in turn contain the DNA. This DNA can be extracted, effectively giving a
genetic fingerprint for each individual.
Search and Seizure
The police have the right to search an arrested person, including their personal belongings.
These powers are essential to ensure that the person does not possess a weapon or illegal
drugs. Common law prohibits the police from searching a person or their property before they
have been arrested.
In 2009, the New South Wales Parliament enacted the Law Enforcement (Powers and
Responsibilities) Amendment (Search Powers) Act 2009 (NSW) to allow the police to apply to a
Supreme Court judge for authority to enter premises and engage in covert surveillance.
2.3 Arrest and Charge, Summons and Warrants
Arrest and Charge
The police have no legal right to detain people unless they lawfully arrest them. An arrest is a
lawful detention. The police have the power to arrest a person if:

they believe that a person has committed, or is about to commit, a crime

they witness a person committing a crime

they have an arrest warrant for the person.

The NSW Police Force Code of Conduct states that, at the time of arrest, police officers are to
inform the person being arrested the reason for their arrest as well as stating that to resist
arrest is itself an offence. The Code also stipulates that police should use the minimum amount
of force in order to arrest a person.
Summons
A summons is a order to appear before a judge or magistrate, or the writ containing such an
order. It gives details of the charge, when and where the charge is to be heard and outlines the
consequences of failing to attend. A warrant is an order issued by the court authorising a law
enforcement agency to do something.
Warrants
Arrest warrants are issued to the police authorising them to arrest a person where the court has
been convinced that there is evidence that an offence may have been committed.
A search warrant is a court order that allows the police to enter premises for the purpose of
looking for evidence. Search warrants will only be issued where the police can provide
substantial grounds that a search of the premises will result in an arrest.
2.4 Bail and Remand
Bail
Bail is the term for the conditional release of a person until their case is determined by the
courts. Usually bail conditions will include the requirement to report to the police on a regular
basis, forfeiture of a passport, restrictions on where the accused can go and who they can
associate with and the need to provide the court with a bond, this is a sum of money that will
be kept by the court if the person breaches their bail conditions. Bail may be granted by the
court or by an authorised police officer, this will be the officer in charge of the police station. If
police refuse bail then the Act allows for an application for bail to be made to the court. Bail
should always be granted for offences contained within the Summary Offences Act 1988 (NSW)
and for offences that will not be punishable by a prison sentence. For more serious offences,
particularly serious drug offences such as those contained within the Drug Misuse and
Trafficking Act 1985 (NSW) and the Customs Act 1901 (Cwlth), there is a presumption against
bail. Serious crimes against persons, such as homicide, have a similar presumption. In these
cases bail will not be granted unless there are exceptional circumstances, such as in the case
described opposite.
Remand
Remand is a special type of detention that allows for a person accused of a serious crime to be

held for the period between being charged and facing trial. People who are held on remand are
not convicted criminals and it is therefore important that the amount of time they remain on
remand before being tried is as short as possible.
The Criminal Trial Process
3.1 Court Jurisdiction and the Adversary System
The Australian legal system courts are divided into levels (known as the court hierarchy) and
areas of expertise. The court structure is based on three levels lower, intermediate and higher
courts. Each level is designed and empowered to hear different matters. The powers and role of
the court together form its jurisdiction. Most courts have jurisdiction over both criminal and civil
matters, although some courts do have very specific jurisdiction. For example, the Coroners
Court only hears matters that help to determine the cause of death of a person, or the cause of
fires that have damaged property.
The Local Court
The Local Court is presided over by a magistrate, who is addressed as your honour. These
courts were created under the Local Courts Act 1982 (NSW) to replace the old Court of Petty
Sessions. As far as criminal matters are concerned, the Local Court has two main functions:
1.
summary hearings (before a magistrate 'your honour')
2.
committal hearings (before a judge and jury)
The Children's Court
The Childrens Court has jurisdiction to hear almost any matter, indictable or summary, when
the accused is:

less than 18 years old when charged, or is

less than 21 years old when charged for a crime committed when aged less than 18.
The main aim of the Childrens Court is to achieve the rehabilitation of the offender. For this
reason the court cannot sentence a juvenile to serve time in an adult prison; the most severe
punishment it can issue is to serve time in a juvenile detention centre. In keeping with the
notion of rehabilitation, all Childrens Court sessions are closed, which means that members of
the public and media are not permitted to witness the proceedings.
The Coroner's Court
The jurisdiction of the Coroners Court extends to matters that involve enquiries into:

the cause and manner of death of any person when there has been violence or
where the death is suspicious, and

the cause of fires that damage property.

The coroner is not responsible for trying people; rather the coroners task is to see if there is
sufficient evidence to suggest that a criminal act has been committed, in which case the matter
can be referred to a higher court for trial.
The Drug Court of NSW
The Drug Court of New South Wales is a specialised diversionary court set up in 1999 under the
Drug Court Act 1998 (NSW) and the Drug Court Regulation 2005 (NSW). Initially, the Drug Court
was set up as a two-year pilot program, but its success was so great that it has continued its
functions and expanded over time. The Drug Court of New South Wales aims to assist and
manage offenders who have a drug addiction. It has both Local Court and District Court
jurisdiction.
The District Court
The District Court, previously known as the County Court, was created in 1973 by the passing
of the District Court Act 1973 (NSW). The District Court is presided over by judges, referred to
as your honour, who are appointees of the Governor. The jurisdiction of the District Court
extends to all indictable offences, apart from murder, attempted murder, treason, serious
sexual assault and kidnapping.
The Supreme Court and Court of Criminal Appeal
The Supreme Court consists of a Chief Justice and a number of senior judges, known as
Justices, who are appointed by the Governor. They are addressed as your honour. A single
judge and a jury of 12 hear criminal matters. The Supreme Court also has jurisdiction to hear
appeals when magistrates in the Local Court have made errors in their interpretation of the law.
Such a matter is known as a stated case. The Justice may affirm or reverse the magistrates
decision, or refer the matter back for further consideration.
However, in 2006 the Crimes (Appeal and Review) Act 2001 (NSW) was amended so that, in the
case of very serious crimes where the penalty is a life sentence or 15 years imprisonment or
more, an acquittal may be quashed and the case brought to trial again if:

fresh and compelling evidence is brought to light

the acquittal was tainted (that is, the administration of justice was perverted by bribery
of or interference with jurors, witnesses or court officials, by a conspiracy to pervert the
course of justice, or by perjury).
The High Court of Australia
The main role of the High Court is in the area of the Constitution. In terms of criminal matters,
the High Court has no original jurisdiction. This means that criminal cases will only be heard in
the High Court on appeal. However, leave to appeal must first be sought. Before an appeal can
go to the High Court it must be shown that it:

relates to a matter of public importance

is required in order for justice to be served, and

is required because of confusion between earlier rulings of various courts.

3.2 legal Personnel and Legal Representation
Magistrates
A magistrate presides over a Local Court. Magistrates are appointed by the Chief Magistrate,
who is independent of the government. In summary cases, the magistrate must determine
whether the accused is guilty and, if so, pass a sentence.
Judges
The judge conducts trials according to the rules and principles of the law. A judge is usually
appointed to the judiciary after years of service as a successful barrister, although other legal
experts such as law academics may also be appointed to the judiciary.
Once the court is in session, the functions of the judge include:

ensuring that the case is conducted according to the rules of the court
excluding illegally obtained evidence or evidence that is misleading or irrelevant
ruling on points of law
advising the jury on their role and on any points of law
passing sentence if the accused has been found guilty by the jury. Judges can give advice to the
jury about the strength of a case (for example, they can advise that there is not a strong case for
conviction), but cannot instruct the jury to convict.

Judges are expected to remain impartial at all times. Their rulings must be based on law and
the facts that the prosecution and the defence present to them.
Prosecutors
The main role of the prosecutor is to represent the state (and therefore society) before the
court. Their function is to prove that the accused is guilty of the crime with which they have
been charged.
Police Prosecutors
Most prosecutions in the Local Court are conducted by police prosecutors. These are speciallytrained police officers who present the prosecutions case.
Director of Public Prosecutions
The Director of Public Prosecutions (DPP) is an eminent criminal lawyer who is appointed by
Parliament to be responsible for the Office of the DPP (ODPP). The DPP has a team of highly
trained criminal lawyers, known as Crown prosecutors, who act as prosecutors.
All Crown prosecutors are barristers and therefore subject to the professional and ethical
standards of the Bar. They are required to help the court discover the truth, not to gain a
conviction at any cost. Therefore, a prosecutor may not use unfair tactics in order to gain a
conviction.
The DPP is a position that should be free of bias and is a non-politicised appointment.
Defence Lawyers
Defence lawyers represent the accused and it is their role to counter the evidence of the
prosecution and cast doubt in the minds of the jury or magistrate about the reliability of the
prosecutions case.
Public Defenders Office
Public defenders are salaried lawyers who are paid by the government but act independently of
it. They represent people who have been charged with a serious criminal offence and have
been granted legal aid. Public defenders will appear on behalf of clients during trials for
indictable offences, and on occasions during committal hearings for murder charges. They may
also conduct appeals in the Court of Criminal Appeal and the High Court. Public defenders also
play an important role in legal education and research, by presenting seminars and lectures on
the law and providing work experience for new lawyers.
Legal Aid
An accused person in Australia has no automatic right to legal representation. However, it is
widely recognised that an accused person without legal representation is unlikely to receive a

fair trial in criminal law.

The Legal Aid Commission (LAC) was therefore established in 1979 to ensure that people
unable to afford legal representation have access to a lawyer.
Legal Aid is funded by the New South Wales Government and administered by the LAC. The LAC
offers anyone free legal advice for fifteen minutes on any legal issue, including civil and
Commonwealth law. Assistance beyond this level requires a formal application. Legal Aid is
granted only in certain circumstances. The applicant must pass the means and merit tests, and
the case must fall into defined areas of law, such as family law, some areas of civil law
(including discrimination and civil liberties), childrens law, most indictable criminal law cases,
prisoners matters and mental health cases. This is known as the jurisdiction test.
3.3 Charges, Pleas and Charge Negotiation (Plea Bargaining)
The Charge
The police, or other law enforcement agencies such as the Australian Customs and Border
Protection Service, have the responsibility of laying charges against those people accused of
committing crimes. A charge is a form of accusation against a person; it does not, however,
imply guilt. It is for the courts to determine this.
Plea
The law requires an accused person to make a plea in relation to the charges they are facing.
The accused can either plead guilty or not guilty, or enter no plea, which is taken to mean not
guilty. The plea will determine how the trial proceeds.

Guilty plea. A plea of guilty means that the case will be dealt with quickly. As
there is now no question about the accuseds guilt, the matter goes straight to sentencing.

Not guilty plea. A plea of not guilty means that the guilt of the accused is not assured.
Therefore, the case must go to trial and the prosecution is left to convince the jury of
the accuseds guilt, while the defence argues that the accused did not commit the
crime.
Charge Negotiation (Plea Bargaining)
A plea bargain is used to get the accused to plead guilty to an offence. There are three
common ways in which this is done. If the accused is facing several charges in relation to the
same crime, the
prosecution may drop some charges if the defendant agrees to plead guilty to the remaining
charges.

Judges may sometimes give an indication of what a likely verdict will be and this then
prompts defendants to plead guilty.

The charge may be reduced to a lesser charge if the accused pleads guilty, for example
from murder to manslaughter.
There are many arguments for and against plea bargaining. Those in favour argue that it
speeds up the criminal process and results in a much simpler trial than if the accused had
pleaded not guilty.
3.4 Burden and Standard of Proof and the Use of Evidence
The Burden and Standard of Proof
This legal principle means that the prosecution must demonstrate that a person accused of
committing a crime actually did the crime. The person accused of the crime has no
responsibility (or burden) to show to that they are not guilty of the crime.
Before society makes a conviction it must be certain that the accused is guilty of the crime.
Therefore, the standard of proof that the prosecution must produce to gain a conviction is very
high. Juries (or magistrates in summary offences) must be convinced beyond reasonable doubt
that the accused has committed the offence.
Evidence
In criminal trials one of the key functions of the judge is to decide on matters relating to
whether evidence can be presented to the jury. In doing this the judge will make reference to
the Evidence Act 1995 (NSW). This Act outlines the way that evidence must be obtained in
order to be used in court. It also contains information and directions on the swearing in of
witnesses.
Witnesses
Witnesses are crucial to both the prosecution and the defence cases. Witnesses can be called
to give statements to the police at the scene of a crime and will give verbal evidence attesting
to what they heard, saw or experienced. Sometimes the witnesses will also be victims.

3.5 Defences to Criminal Charges

There is a range of defences open to a defendant, but they can be categorised into two main
types:

Complete defence or absolute defence a justification that excuses the

defendants action and results in an acquittal, and

Partial defence or qualified defence an excuse for the defendants action that might
result in a reduction in the charge and/or punishment.
Complete Defences
Mental Illness
The law recognises that some criminals commit crimes as a result of mental illness (referred as
insanity). The defence of insanity differs from other defences in that it is the responsibility of
the defence to prove that the defendant was insane at the time of the act, rather than that of
the prosecution to prove that the defendant was of sound mind at the time. The court is
required to acquit the defendant if it accepts the defence of insanity, because by definition the
defendant did not have the mens rea.
Self-Defence
The law relating to self-defence makes provision for people to defend themselves, but states
that they may not use greater force than is reasonably necessary. This definition creates a
great deal of controversy. For example, does shooting an intruder in your home constitute
exercising a reasonable level of force? The overriding question in any case of self-defence is
whether or not the accused genuinely believed that the level of force used was necessary and
whether a reasonable person would have used a similar level of force in a similar situation.
Compulsion
In order to use this defence, the accused must first admit to committing a criminal act (actus
reus) knowing that it was a crime (mens rea), and then claim to have been forced to carry it
out. The defence has two forms:
1.
Necessity
2.
Duress
Consent
Consent is not an absolute defence in relation to murder in New South Wales. The victims
consent does not prevent the Director of Public Prosecutions from prosecuting a person for
murder. For example, a doctor assisting a terminally-ill patient to die could still technically be
charged with murder, even though the patient had consented. This defence is most commonly
used in sexual assault cases.
Partial Defences
Section 23 of the Crimes Act 1900 (NSW) allows two partial defences. These are provocation
and substantial impairment of responsibility.
Provocation
Provocation can be defined as the actions of one person that cause another person to lose
control of their actions. In order for a jury to accept this defence it must be shown that:

the victim must have provoked the accuseds criminal behaviour, and

the provocation was so bad that an ordinary person would have also been provoked into
the crime.
Substantial Impairment in Responsibility
This defence, also referred to as diminished responsibility, exists when a person suffers from
an abnormality of mind that impairs their mental responsibility. It is easier to prove than
insanity, as the mental disorder can be less severe. This defence is often used when the
accused is not consistently insane.
3.6 The Role of Juries
A modern jury consists of twelve members whose job is to determine whether the accused is
innocent or guilty beyond reasonable doubt. The jury plays no role in determining the sentence
if the accused is found guilty this is left to the trial judge. Until recently, juries in New South
Wales were required to reach a unanimous verdict. However, in 2005 the New South Wales
Attorney-General announced that this would change to allow for 111 verdicts. The AttorneyGeneral argued that this would reduce the number of hung juries juries in which the jurors
are unable to agree. Hung juries usually result in a retrial.
Sentencing and Punishment

4.1 Statutory and Judiciary Guidelines

Judicial Guidelines
The principal purpose of a judicial guideline is to reduce inconsistency in the judgments of trial
judges, who are given considerable discretion in deciding sentences. The intention is to ensure
that, as far as possible, like cases are treated alike. Too great an inconsistency in sentencing
between the decisions of different judges is an injustice.
Statutory Guidelines
The Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW) was passed to
give statutory force to the courts issuing guideline judgments in New South Wales. An
amendment to the Crimes (Sentencing Procedure) Act 1999 (NSW) in 2001 gave the Court of
Criminal Appeal the power to issue sentencing guidelines and made earlier, state-issued
guidelines valid. The Court of Criminal Appeal of the Supreme Court was given power to:

Issue guidelines at the request of the Attorney-General

Issue, review or vary guidelines.

The Crimes (Sentencing Procedure) Act 1999 sets out general guidelines for the courts to use in
sentencing offenders. However, the degree of weight placed on mitigating and
aggravating factors will be for the court to determine in individual cases.
4.2 Purpose of Punishment
Numerous reasons exist for punishing those who commit criminal offences. Some of the
principles of punishment are clearly in conflict, particularly retribution and rehabilitation.
Parliament itself has produced legislation that specifically refers to the conflicting principles of
punishment. For instance the Crimes Act 1914 (Cwlth) requires the courts to take into account
adequate punishment, specific deterrence and rehabilitation.
Deterrence
There are two key types of deterrence:
1.
Specific deterrence. This refers to the objective of preventing the
convicted person from committing any more crimes by deterring them from reoffending. One
fundamental principle of specific deterrence is that if there are different punishment
options that the least harsh should be chosen, as long as it has a deterrent effect.
2.
General deterrence. This is the view that people will be less likely to commit particular
offences if they are aware of the penalties given to people who commit those offences.
The media constantly provides examples of the penalties meted out to offenders.
Retribution
Retribution may be based on the view that it is unfair for a person to gain from their wrongful
conduct. It may also contribute to preventing individuals from taking the law into their own
hands.
The concept of just desserts is the view that an offender should only be given sufficient
penalty that is equal to their crime and that penalties should not be excessive. With the most
serious offences, revenge may be understood to be part of the penalty in the minds of the
public.
Rehabilitation
Rehabilitation is the concept that the type of punishment chosen should help reduce or
eliminate criminal behaviour by the convicted person. The penalty should be appropriate to the
specific offender.
Incapacitation
Incapacitation is the principle that convicted persons may be prevented from committing
further offences through imprisonment. It is based on the view that the community should be
protected from particular offences. It has a further aim to protect the accused from harming
themselves.
4.3 Factors Affecting a Sentencing Decision and the Role of the Victim in Sentencing
Aggravating Circumstances
The Crimes (Sentencing Procedure) Act 1999 sets out aggravating factors in considerable
detail. These are listed below.

The victim was a police officer, emergency services worker, prison officer, judicial
officer, health worker, teacher, community worker or other public officer carrying out
their duties or voluntary work.

The offence involved actual or threatened violence, or the use of a weapon, explosives,
chemical or biological agent.

The offender has a record of previous convictions, particularly serious personal violence
offences.

The offence involved gratuitous violence.

Substantial emotional harm, loss or damage resulted from the offence.

The crime was a hate crime.

The offender abused a position of trust or authority in relations to the victim.

The victim was vulnerable: a child, a person with a disability or an elderly person; or a
person whose occupation placed them in a vulnerable position, such as a transport
worker, bank teller or service station attendant.
Mitigating Circumstances
In the Crimes (Sentencing Procedure) Act 1999, mitigating factors include those that are
relevant to the offence as well as to the offender. Mitigating factors include those listed below.

The injury, emotional harm, loss or damage caused by the offence was not substantial.

The offence was not part of planned or organised criminal activity.

The offender was provoked by the victim.

The offender acted under duress.

The offender has no significant record of a previous offence.

The offender is of good character.

The offender is unlikely to reoffend.

The offender has good prospects for rehabilitation.

The offender has shown remorse for the offence.

The court cannot take into account any aggravating or mitigating factors in sentencing if it is
contrary to any Act or rule of law. Apart from aggravating and mitigating circumstances, many
other factors affect the sentencing decision. These factors include:

whether there are any guideline sentences to follow

the prescribed maximum and any minimum penalty given under the Act

the existence of any precedent

the plea, and, if guilty, when it was admitted and how much remorse is being
demonstrated

any charge negotiation

The Role of the Victim During Sentencing
However, studies have shown that victims often want greater participation in the sentencing
process, more information on the case against the offender, counselling, compensation and
support. The reason for introducing victim impact statements is to give the victim an
opportunity to be fully heard with respect to the impact of the crime on them. A review of the
aggravating circumstances listed above will clearly show that harm to the victim is evaluated
as an aggravating circumstance.
4.4 Appeals
Prosecutions may appeal on the basis that a sentence is manifestly inadequate. The appeal
court, which could be the District Court for a Local Court decision, or the Court of Criminal
Appeal for a District Court or Supreme Court decision, will consider:

if the court had power to impose the particular sentence

if there was an error of fact or law in imposing the sentence. The court will have regard
to common law and statutory sentencing principles, and

whether the sentence is generally of the range appropriate for a particular offence or
particular offender.
The appeal court will only interfere with the sentence if there has been clear error in arriving at
the sentencing decision. This would include the judge taking into account irrelevant facts, not
taking into account relevant facts, incorrectly directing the jury or being mistaken about the
facts.
4.5 Types of Penalties
No Conviction Recorded and God Behaviour Bond
A judge or magistrate may dismiss a charge and not record a conviction, or may require a
defendant to enter into a good behaviour bond. The judge is given power not to record a
conviction, thus dismissing the charge, where the following are relevant to the defendant:

character, criminal history, age, health and mental condition

the trivial nature of the offence

extenuating circumstances of the offence committed


any other matter the court thinks proper to consider.
Probation
Probation is where the court requires that a defendant enter into a bond to be supervised by a
member of the probation service. They must comply with certain conditions and agree to be of
good behaviour. A breach of probation will lead to imprisonment.
Caution
The police have the power to caution adults for minor drug offences, and may also caution
children.
Criminal Infringement Notice
A Criminal Infringement Notice (CIN) may be issued for seven different crimes:

stealing less than $300

offensive language

offensive behaviour

unlawful entry into a boat

unlawful entry into a car

obstructing traffic

obtaining benefit by deception.

Fines and Penalty Units
A fine is a monetary penalty set out as a penalty unit. A person may be fined if that is the
penalty specified for the offence in the relevant Act, or they may be given a fine in addition to
another penalty, which could be any form of imprisonment (including home detention).
Community Service order
A person may be ordered to carry out a period of community service instead of serving a term
of imprisonment, but this must never exceed 500 hours of service. However, the court cannot
order community service unless it is satisfied the defendant is a suitable person and that
suitable arrangements can be made for community service work.
Suspended Sentence
Making such an order gives the convicted person an opportunity to rehabilitate. As with
periodic detention, it allows them to maintain their family and community ties, including
employment. It is also clearly more cost-effective than full-time imprisonment. If the bond is
breached, the court confirms the original sentence and determines if it is more appropriate to
serve as home detention or periodic detention.
Periodic Detention
If a person has been sentenced for a period of less than three years, a court may order periodic
detention for the convicted person. The detention period usually commences at 7.00 p.m. on
Friday and finishes on 4.00 p.m. on Sunday. These times are clearly designed to allow many
prisoners to maintain employment.
Imprisonment
A court must impose a sentence of imprisonment only after considering all other alternatives
and deciding that full-time imprisonment is the only appropriate option. If the court decides
that imprisonment is appropriate it must determine the length of the term. This includes the
maximum and minimum term to be served. This allows well-behaved prisoners to be released
earlier than their maximum term.
Diversionary Programs
The Crimes (Sentencing Procedure) Act 1999 allows the court to order that a person be
discharged, provided they enter into an agreement to participate in an intervention program,
such as treatment for drug or gambling addiction. They must also carry out any plan that is
part of the intervention. This is done where the court is satisfied that the person would be less
likely to commit a further offence if they undertook treatment or rehabilitation. This section is
particularly used with alcoholic and drug-addicted offenders.
4.6 Alternative Methods of Sentencing
Restorative Justice
The process uses a conference, which is attended by the offender, the victim and supporters of
each, who all agree to participate. The offender is required to explain what happened, how they
felt about the crime and what they should have done. The victim and others explain the
emotional, financial and any other impacts on them. Conferencing may also occur after
conviction or sentencing, before release or during probation and parole.
Circle Sentencing
Circle sentencing is used mostly for Aboriginal offenders and seeks to break down mistrust and
other barriers between many Aboriginal people and the courts, to improve levels of support for

Aboriginal people, to provide support for victims and promote confidence of Aboriginal people
in the court system.
The process involves using respected members of the Aboriginal community in decision making
and is designed to introduce meaningful and relevant sentencing options.
The process is designed to be less formal and to help the offender to appreciate the harm
caused to the victim.

4.7 Post-Sentencing Considerations, Including Security Classification, Protective

Custody and Parole
Security Classifications
When a person is sent to prison the Department of Corrective Services examines the security
risk that each prisoner presents. The Department must then decide in which category of risk
the prisoner belongs, so that they can be sent to the most appropriate correctional facility.
Protective Custody
Under the Crimes (Administration of Sentences) Act 1999 (NSW) prisoners who feel that they
are in danger from other prisoners can apply to be placed into protective custody. Child sex
offenders, former police officers and prisoners with a mental illness may be targeted by other
offenders.
Parole
Prisoners under full-time imprisonment for less than three years are released on parole at the
end of the non-parole period. Rules for release of prisoners on parole are detailed.
Preventative Detention and Continued Detention
Preventative detention is aimed at offenders whose history indicates that they have entrenched
criminal behaviours. This is particularly the case with violent and sexual offences. An example
of this is the passage of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which was
designed to detain people who were a serious danger to the community. In New South Wales
the Crimes (Serious Sex Offenders) Act 2006 (NSW) allows the Supreme Court to order
continuing detention where there is a report prepared by a qualified psychologist, registered
psychologist or medical practitioner assessing whether the offender is likely to commit further
serious sexual offences.
Young Offenders
5.1 Age of Criminal Responsibility
In New South Wales, a child under the age of ten years is regarded as too young to form
criminal intent (mens rea). This is referred to as doli incapax. A young child may be physically
capable of committing what is normally regarded as a crime, but they are not able to fully
understand the consequences of their actions. As a result, the Children (Criminal Proceedings)
Act 1987 (NSW) states that a child under ten years of age cannot be charged with a criminal
offence.
In the case R v. JTB [2003] NSWCCA 295 the court had to decide whether a witness aged eight
years could give evidence without being sworn in and enquiries being made about her
understanding of the proceedings. Section 21 of the Evidence Act 1995 (NSW) provides that a
witness in a proceeding must either take an oath or make an affirmation before giving
evidence. The young girl was not sworn in, but the judge tried to explain to the girl that the
proceedings would be conducted in court. This resulted in a sexual assault conviction against
the girls grandfather being quashed in the Court of Appeal.
Children achieve the age of criminal responsibility when they reach 14 years of age. This
means that they are considered old enough to commit a criminal act (actus reus) and are
capable of having criminal intent (mens rea).
5.2 The Right of the Children When Questioned or Arrested

Police have the power to ask young persons to move on if they are impeding the free
flow of pedestrian traffic on a footpath, or if there is a reasonable belief they are about
to engage in a violent act: s. 19 of the Children (Protection and Parental Responsibility)
Act 1997 (NSW).

A child does not have to answer questions unless they are driving a car, drinking alcohol
in a public place, suspected of being involved in or have witnessed a serious crime,

travelling on public transport or are involved in a car accident.

A child may be searched, but not strip-searched, if the police reasonably suspect they
have in their possession drugs, stolen goods or a weapon. If the police arrest a young
person they will take them to the nearest police station and must contact their parents
or another adult before conducting an interview, as required in s.22 of the Young
Offenders Act 1997 (NSW).
Use of on-the-spot fines
The Crimes Act 1900 (NSW) was amended in 2007 to allow certain relatively minor offences to
attract on-the-spot fines from the police. Many of these minor offences are more commonly
committed by young offenders.
The offences that can receive on-the-spot fines include:

minor fraud

shoplifting

possession of stolen goods

offensive conduct

offensive language

obstructing traffic

unauthorised entry of a vehicle or boat.

The Young Offenders Act 1997 (NSW)
The Young Offenders Act 1997 (NSW) aims to provide alternatives to court proceedings and is
designed to foster restorative justice and the rehabilitation of the child. Under the Act, police
may issue warnings, official cautions and arrange youth justice conferences.
The Act covers summary and indictable matters that are usually heard before a magistrate in
the Childrens Court.
The Young Offenders Act reflects a change in the legal systems approach towards juvenile
offenders. It attempts to change the emphasis from punishment, while at the same time not
simply making children unaccountable for their actions.
Principles of the Young Offenders Act (NSW):
The principles that guide persons exercising functions under the Young Offenders Act are as
follows:
1.
The least restrictive form of sanction is to be applied against a child who is
alleged to have committed an offence, having regard to matters required to be considered
under the Act. The aim of the Young Offenders Act is not to punish young offenders any
more than is necessary.
2.
Children who are alleged to have committed an offence are entitled to be informed
about their right to obtain legal advice and to have an opportunity to obtain that advice.
This is usually available from Legal Aid, but there are many other legal services
available for children.
3.
Criminal proceedings are not to be instituted against a child if there is an alternative
and appropriate means of dealing with the matter. For example, the use of youth
conferences for minor criminal breaches should be encouraged.
4.
Criminal proceedings are not to be instituted against a child solely in order to provide
any assistance or services needed to advance the welfare of the child or his or her
family or family group.
Youth Justice Conferencing
These are informal gatherings where offenders, victims, family members and the police are
able to participate. The victim and their family are able to express their hurt and anger at the
harm caused by the actions of the young offender. The emphasis is on restorative justice and
the offender needs to show a willingness to apologise, financially compensate or undertake
community work if the conference is to succeed.
Court Appearances
If a child maintains their innocence to a crime, a Court Appearance Notice will be issued and
they will need to appear in court for a first hearing, where they will be asked to plead guilty or
not guilty. If they, after receiving legal advice, plead not guilty, they will need to return to court
at a later date, where witnesses, including the police, will be called to provide evidence.
If a child is over 14 years of age and is charged by the police, the police may take photographs
and fingerprints, which are destroyed if the charges are dismissed in court. Police may also
need to decide, once a child is charged, whether to approve bail until the child appears in
court. The senior officer on duty will decide if bail should be granted on the basis of:

the seriousness of the offence

family and community ties

likelihood of the child appearing in court.

Bail may be unconditional or conditional. If conditional, the child may have to report to the local
police station on a weekly basis, be back at home by a certain time each day and have an adult
who vouches for them. A surety or cash amount may have to be lodged.
5.3 Children's Court: Procedures and Operation
The Childrens Court is a specialist court. It deals with a wide range of issues involving children,
from welfare, care and protection issues to criminal matters. A person who is under the age of
18 years at the time they commit an offence will generally have their case heard in the
Childrens Court. The accused may be 19 or even 20 years old by the time their case is
considered in court. In certain circumstances, though over 18 years of age, offenders may be
sentenced to a juvenile detention centre if it is believed that is more appropriate or safer for
them.
The Childrens Court follows its own procedures, which are especially designed to be less
intimidating for children. There is as little formality as possible and legal technicalities are kept
to a minimum. Proceedings are not conducted in an adversarial manner. However, studies show
that children do not say a lot in court and leave most matters to their legal advisors.
If a child is being held in a juvenile justice centre on a day they should be making a court
appearance, they are able to attend court via an audio-visual link instead of physically
appearing before the court.
Children's Court Magistrates
There are currently 13 childrens magistrates presiding in seven specialist Childrens Courts in
New South Wales. There are also five childrens registrars appointed under the Act to assist in
the administration of matters before the Childrens Court. Under s.11 of the Children (Criminal
Proceedings) Act 1987 (NSW), it is an offence to publish or broadcast the name (or other
identifying details) of a child involved in criminal proceedings. Occasionally, the media breach
this requirement and they are not always prosecuted for breaching the rights of the child
concerned.
Background Reports
If a child is found guilty of an offence, or pleads guilty, the magistrate usually adjourns the case
for a period of two to six weeks and asks for a confidential background report or Juvenile Justice
report to be prepared in time for the childs next court appearance. The report can, in certain
circumstances, be mandatory. In R v. Hoang [2003] NSWCCA 237, the Court of Criminal Appeal
ruled that s.25 of the Children (Criminal Proceedings) Act 1987 is a mandatory provision and
required a Juvenile Justice Report be prepared. To prepare a report, the childs parents should
contact the Juvenile Justice Office suggested by the court and an officer will arrange to visit the
childs home and interview the child and their parents. Following this, a report will be prepared
on the childs education, work history, support groups, nature of their offending behaviour and
their future needs. The report will also include recommendations on sentencing of the child.
5.4 Penalties for Children
If criminal charges against a child are dismissed, no record of the charge will be kept and any
fingerprints or photographs of the child will be destroyed on request. If the court decides or the
accused admits their guilt, the court can order any of
the following outcomes.

A caution may be issued, which involves no penalty and no record.

The offender can be referred to a youth justice conference under the Young Offenders
Act 1997 (NSW).

The offender can be fined (if they have savings or income of their own) up to $1000
based on the childs not their parents ability to pay.

The offender can be placed on a probation order, with conditions, for up to two years.

A community service order can be imposed, which involves up to 100 hours for children
under 16 years, or up to 250 hours for those older than 16 years.

A control order can be imposed and suspended if the child enters into a good behaviour
bond. If the bond is broken, the child will have to serve the period of the control order in
custody.

A young offender can be placed on a control order to be served in detention for up to

two years on any one offence and up to a maximum of three years.
The Childrens Court can impose other penalties, including:

the offender having to pay damages for harm caused to persons or property. For
example, there have been attempts to get graffiti artists to pay for the damage
they cause to property


the confiscation of illegally obtained property

referral to the Youth Drug and Alcohol Court.

Another issue regarding penalties is what happens to young offenders once they become
adults. In serious matters, a young person can go from being detained in a juvenile
detention centre to an adult prison.
5.5 Alternatives to Court
A criminal record will harm employment prospects and it serves as a constant reminder of a
troubled past. Anything that can reduce the likelihood of children becoming repeat offenders
has merit and any diversionary programs that can reduce societys dependence on the criminal
justice system should be examined for practicality and effectiveness. Some alternatives
include:

Warnings

Cautions

Youth Justice Conferences

Community Services of the Department of Juvenile Justice

Youth and drug alcohol program