Académique Documents
Professionnel Documents
Culture Documents
Themes and
Challenge
Nature of Crime
Criminal Investigation
Criminal Trial
Sentencing and P
The Role of
Discretion
Strict liability
offences - a
question of liability
Police Powers
Everything
Reasonable
suspicion, force,
searching
Reporting and
Investigating
Whether or not to
actually investigate
crime
Gathering
evidence
Search and
seizure
Use of
warrants warrants being
correct and used
effectively
Factors (mitigatin
aggravating) affec
sentencing
Use of VIS
mandatory
Purpose of punish
Influences
used for th
outcome f
Appeals - is there
incorrect point of
penalty too harsh
Type of Penalties
Imprisonm
resort
Communit
orders (alt
Purposes of punis
Alternative Sente
Abo stuff
sentencin
used with
Restorati
YO
Post Sent
considera
at the reas
punishme
outcomes
to achieve
Issues of
Compliance
and noncompliance
the
elements of
crime: actus
reus, mens
rea - intent
strict liability
offences intent
factors
affecting
criminal
behaviour reasons
why law
is/not
followed
police powers
arrest and
charge,
summons,
warrants
-court jurisdiction
-the adversary system
Act as a deterrent
detention and
interrogation,
rights of
suspects
Continued
e detentio
particularl
to terrorism
rights not
arbitrarily
Parole - a
discretion
parole boa
officer
Deportatio
the option
a dual pas
benefit to
just a hind
Set of procedures to
follow - must also
comply with law - the
right to silence
example
-Bond,
-suspended pena
-probation,
crime
prevention:
situational
and social acts as a
deterrant
-criminal infringem
-penalty units,
-community servic
-home detention,
-periodic detentio
- forfeiture of asse
-imprisonment
the purposes o
punishment: det
(specific and gene
retribution, rehabi
incapacitation
Post Sentencing
Considerations - i
security classifica
protective custody
preventative dete
continued detenti
offenders registra
deportation
The extent
to which the
law reflects
community
standards
Summary
and
indictable
offences community
perception
of the
severity of
different
crimes
- factors affecting
criminal behaviour perception of
individuals
- the meaning of
Police
PowersCommunity
view on how
far is too far, in
regards to
violence
against a
suspect.
Acceptable
risk to the
community, in
association
with gifting
bail or
Types of penaltie
community may b
different penalties
differing levels of
the crime commit
ensure fairness
Post - sentencing
consideration: Th
community might
offenders to be re
that police can mo
and ensure reduc
recidivism
crime - to represent
the community
- the elements of
crime
remand.
The rights of
the suspects/
individuals
within the
community.
Presumption
of innocence
Part 8 of
LEPRA
addresses
police powers
relating to
arrest and and
extends their
previous
powers, due to
the instability
of society
- Categories of
crime
The role of
law reform
Evolving
way that
people view
and commit
crime
Mens rea
(reckless
indifference,
negligence,
R v Dean)
Need to
keep up
with
technology
What leads
to law
reform?
Changes in
values,
community
views,
technology,
media,
NGOs and
globalisation
, failure of
existing
laws
causation/
the but for
test
The Evidence
Amendment
Act 2013
highlights that
the refusal to
comply and
cooperate with
an
investigation
may act as an
aggravating
factor in
serious
indictable
offenses (5
years of
more). E.g.
two men
seriously
injure each
other through
assault, and
there are no
Legal rep (D v
Queen)
Complete
defences
(insanity, self
defence, consent,
necessity, duress,
automatism,Lawf
ul correction of a
minor, honest
mistake of fact,
and claim of
right).
Partial defences
mental illness and
post natal
depression in
infanticide,
provocation, and
substantial
impairment by
abnormality of
mind).
The Bail A
intends to
conditions
be attache
granting o
offender. I
great exte
on discre
such, is a
effort to be
offender, i
to be reso
efficient
The purpo
punishme
deterrence
and gener
retribution
rehabilitat
incapacita
reform hel
these area
effect (gre
specificity
this, the la
more effec
preventing
The extent
to which the
law
balances
the rights
of victims,
offenders
and society
Crimes act
(aggravated
sexual
assault in
company)
Elements of
crime: actus
reus, mens
rea and
causation
must be
proven to
gain
conviction,
this protects
offenders.
witnesses or
any evidence.
They both
exercise the
right to
silence, thus
refusing to
comply.
Meaning, the
role of law
reform here is
to rectify the
exploitation of
an individuals
right to
silence.
Rights of
accused and
offenders:
Police powers:
search and
seizure,
access to
information,
interrogation,
electronic
surveillance,
medical
examinations,
detention,
fingerprints
and
photographs,
role of
discretion,
protects
society,
through
eliminating
crime.
Societys lack
of crime
reporting
Adversarial
system, benefits
victim, due to
presumption of
innocence, and
benefits offender:
past records not
being brought
before court benefits to all to
allow sides of
story to be put
together
- benefits
Maximum
Mandatory
Deterrenc
society
Retribution
Rehabilita
Pleas and
charge
negotiation resource
efficiency,
allowing more
cases to be
heard, benefitting
society. Charge
negotiation saves
victim from ordeal
of giving evidence
and being cross-
Incapacita
Aggravat
- society
Mitigating
accused
Role of vi
(victim im
statemen
Appeals (p
benefits
offenders.
examined.
Warrants benefits
society and
accused,
through
maintaining
peace, and
restricting
police
presence.
Warrants to
only search for
certain things firearms v
drugs
Legal Aid:
benefits
offenders.
accused)
The
effectivenes
s of the
legal and
non-legal
responses
Legal:
Legal:
Effective.
Summary
and
Indictable
offences
protect the
offender
and are also
resource
efficient
because
they dont
have to
waste a lot
of
resources.
The
numerous
legislation,
primarily the
Crimes Act
1900 (NSW)
allow for the
protection of
rights of
society,
victims and
offenders.
Non Legal:
To some
extent.
Media and
news can
distort the
information
presented,
thus having
bias against
Legal:
The
introduction of
legislation like
LEPRA 2002
NSW to
effectively
assist in the
criminal
investigation.
Especially
pertaining to
stopping and
searching with
reasonable
suspicion
Bail or
remand
changes
Legal:
EFFECTIVE
Alternative
sentencing and
restorative justice
are effective
means that aims
to rehabilitate the
offender, and thus
achieving justice
for all 3 parties.
Use of
warrants.
Use of
Evidence
-Defences (Complete
and Partial) gives
opportunity to the
offender to explain the
reason for committing
the crime.
Non Legal:
The way in
which crimes
nowadays are
reported, for
example
crimestopper
s and
Neighbourhoo
d Watch
Non Legal:
-Factors affecting
ie aggravating an
are effective beca
can take into acco
perspective of o
thus achieving jus
-Aims to rehabilita
offender, and thus
justice for all 3 pa
resource
-Circle sentencing
because it reduce
from
-Different types o
applied
on the offender de
the type of crime
hence achieving e
the offender whils
justice to the soci
-Post sentencing
considerations a
protect the right
offender, but als
to achieve justic
victim, society, a
offender.
Non Legal:
either the
victim or
offender.
However
they can
raise
awareness
to cases
such as
domestic
violence.
-Media appeals
Mens Rea - (guilty mind) means the persons intention to commit a crime. The
prosecution must prove that the accused was aware of their actions would be a
crime. However in strict liability offences mens rea is not needed.
Actus Reus (guilty act) means the actual physical performance of a criminal
act. In most cases it must be proven that the person actually did the crime and
not just think of it. (Power tripping for real rather than actually thinking of it!
Causation
Causation is what the prosection must show. (theres a link between the act
and the harm/result caused by it. E.g R v. Blaue (1975) 3 AII ER 446, blaue
stabbed women, she was transported to hospital, she was about to be given
blood transfusion however she refused because shes Jehova Witness. So she died
later. In the prosecution, Blaue was convicted of manslaughter due to diminished
responsibility. He appealed the decision saying a responsible person wouldve
taken the blood transfusion. Therefore he wasnt responsible for the death. (no
causation). But the appeal court ruled that his actions caused the injury and the
injury caused the injurys and not her refusing blood transfusion.
Strict Liability Offences
Strict Liability offences are those where the prosecution doesnt have to find
mens rea, but only find actus reus. This is different to most other offences as an
offender can be convicted just by doing the act and not even being aware that
they were breaking the law. Examples of strict liability offences are speeding,
overloaded truck, driving high or turnt up.
Summary and Indictable Offences
There are two types of Crimes, summary and indictable. See figure 1.1
Summary offences are those less important such as speeding, shoplifting.
They are heard by a magistrate in the local court. The charge is called a
summons with two years max in prison.
Indictable offences are those are charges that are deemed as serious such
as murder, assault. The more complex the offence is, the more processes
are undergone. A commital hearing occurs to ensure theres enough evidence
to warrant a trial. If there is a trial is undergone. These indicitable offences are
brought up as indictment. The punishment can be up as life in prison. Heard in
front of jury and judge
Categories of Crime
Type of Offence
Offences against persons
Examples
Homicide when a person has been
killed unlawfully. There are four
situations where homicide is being
committed.
1. Murder: hard for prosecution
to prove, one of the following
acts must be proved.
Economic offences
Drug Offences
Driving offences
Preliminary Offences
Importation
Manufacture and Cultivation
Distribution, supply and
trafficking
- Possesion and use of drugs
(most common is possession) other
crimes are linked to drug offences!!
Such as robbery to get money to buy
drugs.
Driving offences are the most
common offence commited in society.
Crimes Act 1900 (NSW), Road
Transport (safety and Traffic
Management) Act 1999 (NSW), Road
Transport Act 199(nsw). Most driving
offences are strict liability offences.
Public order offences are those that
generally disrupt the activities of
society. E.g indecent behaviour,
offensive language, spitting littering,
graffiti, prostution. This is what
societys moral and ethical influences
the law
Crimes act 1900 (NSW), Graffiti
Control Act 2008 (nsw).
Two broad categories.
Attempt its an offence to ATTEMPT
to commit a criminal act. A person can
also be charged if their behaviour
mplies that they gonna commit a
crime. (black bag, knives, shovel)
Hard to prove
Conspirancy Found within common
law when two or more people agree to
commit a criminal act. Actual act was
planned never took place. Hard to
convict for, as evidence is normally
scarce AF. Agreement = actus reus
Planning =mens rea
Parties to a Crime including principal in the first degree, principal in the second
degree, accessory before the act, accessory after the fact.
Parties to a crime is the law recognising roles of members of a crime.. Which
determine the sentencing of the individuals.
Principal in the First Degree The actual offender, the perpetrator. For
example in the gas station analogy. The principal in the first degree would be the
bloke whos pointing the gun and demanding the money
Principal in the Second Degree the assist giver, often called the accessory.
Contiuning on the gas station analogy, Principal in the second degree would be
the guy looking out the door on guard. P2 would cop the same punishment as P1
Accessory Before the Fact Someone who helped plan or execute the plan
but wasnt at the scene of crime. The accessory before the fact would be the guy
supplying the gun, making the plan. Accessory before the fact is often charged
the same penalty as P1 and P2.
Accessory After the Fact Someone who helped the people but werent there
and didnt know of the crime. The court normally issues a lesser sentence.
NSW Joint Criminal Enterprise two or more people who commit a crime
with the same intent/purpose are all criminally liable for their actions
Facts:
Aiding and abetting means their actions assist and help a crime
Crimes Act 1900 NSW states accessories to an indictable offences are
liable to the punishment as the principals
Police Powers
Outline in LEPRA (Law Enforcement Powers and Responsibility) Act 2002 NSW
Including:
1. Detain and Question suspects
2. Search Property and Seize Evidence (commonly known as Search and
Seizure)
3. Use Reasonable force if necessary to carry out their duties
4. Use particular objectives to assist ina n investigation, such as phone taps,
suirvellance or DNA samples
5. Arrest and interrogate suspects
6. Recommend whether bail should or shouldnt be granted
Police officers may be granted special powers in specific areas in order to combat
particular threats or perceived threats to the community. This is controversial as
it directly combats the right of an ordinary citizen.
The NSW police force abide a specific code of behaviour called the Code of
Practice for CRIME (Custody, Rights, Investigation, Management and
Evidence)
Reporting Crime
Citizens and members of the public are relied on by the police to report crimes.
Community programs such as Crime Stoppers and Neighbourhood Watch are
designed to create a sense of teamwork between police and the community.
CRIMESTOPPERS = NATIONAL COMMUNITY-BASED PROGRAM
ENCOURAGING PEOPLE TO REPORT INFORMATION ON UNSOLVED CRIMES
OR UNKNOWN OFFENCES, SUSPICIOUS ACTIVITY.
2011 SURVEY INDICATED THAT CRIMESTOPPERS HAVE HELPED BRING
CASES TO JUSTICE
Once police receive information about a crime (Police investigate most alleged
crimes). They will use their discretion to determine whether or not the alleged
criminal activity warrants investigation. This decision is normally based on
severity, other priorities, and resources available.
Gathering Evidence: When a crime has been committed, its the polices role to
gather evidence. Where a crime has occurred it will be preserved as best as
possible, and will be recorded in situ (means OG position). Evidence that has
been contaminated or compromised will be inadmissible. The type of evidence
gathered is greatly varied as it could be statements, bullet holes etc. Their may
be a lot of personas when gathering evidence, such as specially trained police
officers or external experts such as ballistic experts, fingerprint evidences.
Use of Technology: Technology assists law enforces in investigation of crime
(gather crime, proving charges) New technogology has to be very very very
reliable, as if any doubt on its reliability will make the evidence inadmissible.
DNA EVIDENCE (hair blood saliva) is very significant, as it is helpful in
gaining some difficult convictions in both current and cold cases. It is dependable
and very persuasive. However, the presence of DNA at a crime scene only
establishes that an offender could have been responsible for a crime; it is still up
to the police to provide a brief of evidence in order to convict the accused
beyond a reasonable doubt. IN NSW police are allowed to take forensic
samples (blood or mouth swabs) to test against evidence. If they
refuse, police must go to a magistrate to get the sample with
reasonable force. DNA testing takes a long time up to 12 months, serious
cases take shorter like 3-4 months. DANGER OF RELIEING on DNA evidence
too much is that it can be wrong (unlikely) this was found in 2009
where a number of cases in NSW and Victoria resulted to wrongful
convictions via unreliable DNA evidence.
Search and Seizure: The police have the right to search an arrested person,
including their personal belonging. This power exists to ensure that the person
doesnt possess a weapon or illegal drugs. (NOT ALLOWED TO SEARCH BEFORE).
PART 4 OF LEPRA. Powers of search and seizure are often the most controversial
of police powers because they represent an intrusion into peoples privacy or
personal space. Search and seizure can also be confronting or embarrassing,
especially when conducted in a public place. Amendments has allowed police to
search if the police have reasonable grounds for believing that the person is
breaking the law.
Challenges to police searches will often revolve around whether the officer had
reasonable grounds to believe that they could conduct the search. Police may
search anything in a persons possession or control, including, for example, a
persons body, bag, clothes and possessions. Generally, police will ask for a
suspects cooperation and ask the suspect to turn their pockets out and remove
bulky clothing. Police may also pat down a suspects body to feel for any
concealed items. Police can also require a person to open their mouth or shake
out their hair if they have reasonable grounds to believe that the suspected
object is concealed there.
Use of Warrants: A warrant is a legal document issued by a magistrate or
judge which authorises a police officer to perform a particular act, for example
make an arrest, conduct a search, seize property or use a phone tap. In NSW,
certain searches or seizures cannot be performed without a valid warrant. For
example, in NSW police can use sniffer dogs without a warrant to search for
illegal drugs at pubs or clubs, on public transport or at certain public events, but
would require a warrant before using dogs for general searches in any other
public places. This judicial oversight helps ensure that those special police
powers are used only when appropriate, and provides an additional layer of
protection for ordinary citizens against misuse of that power. Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the
circumstances in which a search warrant can be used.
When applying for a search warrant, the police must give substantial reasons or
evidence to the magistrate or judge to justify the granting of the warrant.
Emergency warrants can be obtained over the phone when time is of the
essence in an investigation or an officer is unable to see a magistrate or judge in
person, such as in the middle of the night. NSW police are usually required to
have a valid warrant before they can enter and search any premises, residential
or business, without the consent of the occupier or owner. The warrant will state
the reason for the premises being searched and identify what articles are being
searched for. When any premises are to be searched, the police must identify to
the occupier the reason for the search and give a copy of the warrant to the
occupier. Usually the occupier is present (or they can nominate a person to be
present). Police may videotape the search in order to use it later in court and to
guard against claims of improper procedures or the planting of evidence.
Arrest and Charge: The police arent allowed to detain people unless they
lawfully arrest them. The conditions where a police officer may lawfully arrest a
person are contained in LEPRA.
catching a suspect committing an offence
believing on reasonable grounds that a suspect has committed or is about to
commit an offence where that person has committed a serious indictable
offence for which they have not been tried possessing a warrant for that
persons arrest.
For an arrest to be legal, the police must state to the person, at the time of the
arrest, that they are being arrested and the reason for it. By law (NSW Police
Force Code of Conduct) states that minimal use of force should be used when
arresting someone. However police are able to use whatever reasonable force is
necessary. (e.g shooting someone, however gotta say the weapon is out and
they will use it) Excessive force will get the officer into shit.
Summons: In the case of summary offences, a summons or a court
attendance order may be issued rather than the person being arrested.
Summons is a legal document that requires a person to attend court. Gives
details of the charge, when and where the charge is to be heard and outlines the
consequences of failing to attend.
Warrants: A warrant is an order issued by the court authorising a law
enforcement agency to carry out procedures. For example
Bail or Remand
Bail: Bail is the term for the conditional and temporary release of an accused
person waiting until their case is determine by the courts, sometimes on
particular conditions such as lodgement of a sum of money as a gurantee.
In more serious matters, the accused, once charged, may be further detained at
the police station and fingerprinted and photographed. The police are required to
bring them before a court or authorised officer as soon as practicable for a bail
hearing. At a bail hearing, the court or the authorised officer will determine
whether the accused should be released on bail or remain in custody until their
trial.
Bail may also be in the form of surety, which is where someone else agrees to
put up the money on behalf of the accused as an assurance that the accused will
turn up at court. If the accused fails to show up, the bail money is forfeited.
Other components of the bail system are the use of wrist and ankle monitoring
devices and diversionary services, such as rehabilitation programs. In addition,
the accused may need to show up at a police station on a regular basis to prove
that they have not moved out of the area they have been restricted to. The
accused may also have to surrender their passport if they have one.
It is difficult to obtain bail for certain offences, particularly violent offences or
where there is some risk to the community or risk that the accused may commit
another offence. Where there is any indication that the accused might attempt to
flee to another state or country, bail is unlikely to be granted.
Bail Act 2007
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. ( a period spent in custody awaiting trial)
People who are held on remand arent convicted criminals and it is therefore
important that the amount of time they remain on remand before being tried is
as short as possible.
Detention and Interrogation: LEPRA sets out conditions which a suspect can
be detained for questioning and for the purpose of further investigation. POLICE
CAN ONLY DETAIN for 4 hours. They can apply to magistrate to extend this.
Theres rest periods though, and travelling to and from includes in the four hours.
Usually, as soon as the police have a suspect in custody, the suspect is
questioned. This is known as interrogation. The police must issue a caution to the
suspect as soon as practicable after the person has been detained, to inform
them of the maximum period of detention and that they do not have to say or
do anything but that anything the person does say or do may be used in
evidence. The caution must be given to the suspect orally and in writing. The
suspect has the right to silence, which means they do not have to answer any of
the polices questions, whether in the company of their legal representative or on
their own. This can make the investigation difficult for the police if they want the
suspect to fill in gaps in the information in their evidence. However, many
suspects voluntarily answer questions.
The interview is recorded on videotape and on two audiotapes: one for the police
records and one for the defendant. These recordings are made to ensure that all
policies and guidelines are adhered to by the police and as a record to be used in
court.
Court Jurisdiction
The criminal justice system in Australia is based on the adversial system of law.
The adversary system of law is a two-sided structure of opposing sides
(adversaries), each presenting its own respective case, with an impartial judge or
jury hearing each side and determinging the truth of the case. It can apply to
civil and criminal cases.
In criminal law the adversary system pits the prosecution against the accused,
who will usually be represented by a lawyer. The judge, or jury in indictable
offences, acts as an impartial observer who determines the accuseds guilt or
innocence based on the evidence and arguments presented.
The adversary system is contrasted to the inquorisital system.. Where the
judge (or a group of judges) actively plays a role in investigating the case or
calling for evidence or testimony.
Supporters of adversary system often claim that its fairer, as both parties have
an equal opportunity to present their case. And is less prone to abuse or bias by
the official determining the case. Cases are carefully prepared before trial and
lawyers have an equal opportunity to present the truth, and the jury is an
impartial observer, uninfluenced by outside factors.
Opponents of adversary system often claim that many cases, competing sides
arent equal before the law, with potential imbalances in resources, skills or
knowledge. Even where additional evidence or testimony would assist the case,
the judge or jury is not in a position to request this. The jury system has also
been criticised because complex technical cases might be misunderstood due to
a lack of understanding of the evidence presented and because the reasons for
the jurys decision are not disclosed to either side.
Judges judicial officers who oversee intermediate and superior courts the
district and the supreme court. They oversee proceedings, maintain order in the
courtroom and ensure that the procedures of the court are followed. They will
make decisions about points of law and instruct the jury to make sure they
understand the processes and evidence presented to them. Once the jury has
reached a verdict, the judge will hand down sentences and rulings. In some
cases the judge will sit without a jury in such cases the judge will determine the
verdict.
Magistrate judicial officers who oversee hearings in the Local Court. In
criminal law, magistrates will hear summary proceedings in the Local Court, as
well as indictable offences triable summarily where the accused has consented
Public Defenders
When an accused cannot afford to pay for a barrister or solicitor, they may be
granted access to a public defender. Whom are barristers (a person called to
the bar and entitled to practise as an advocate, particularly in the higher courts.)
who appear in serious criminal matters for an accused who has been granted
legal aid.
Victim was public officer carrying out their duties (police, prison officer,
teacher) or voluntary work
Violence, use of weapon, or threat with both or one of them
Accused has previous convictions
Excessive violence
Lots of emotional harm, loss or damage resulted in the victim.
The Crime was a hate crime (race, ethniticity, sexual orientation, age,
disability)
Offender abused position of power
Victim was vulenerable: child, disabled, elderly
The court cant take take into factors in sentencing if its contrary to any
act or rule of law.
Role of the Victim during sentencing
Victim wants a part in the sentencing process. Victim impact statement used
in the court to determine whether a mitigating or aggrevating factor and is used
as evidence.
Appeals
Defendants may appeal their sentence if they believe the sentence is too heavy
or an error of law occurred.
District Court for a Local Court Decision -> or -> Court of Criminal
Appeal for a district court or supreme court decision.
One of these courts will consider:
Types of Penalties:
No conviction recorded and good behaviour bonded when the judge or
magistrate doesnt record a conviction or dismisses sentence but the defendant
enter a good behaviour bond for up to two years (can be up to 5)
Probation offender has a probation officer follow him all day for a time, Only
given when detention sentence is too heavy but theres a high chance of
reoffending. Breaking this can be lead to harsh result.
Caution formal warning used for less serious crimes, used for deterrence as
way to avoid the court system.
Criminal Infringement Notice This is aimed to remove the burden on the
criminal court system by allowing police to fine minor offences. (offensive
behaviour, larcency of goods up to $300)
Fines and Penalty Units fines normally imposed from outside the courts.
Maximum fine is based on penalty units is $110 defined in Crimes Sentencing
Procedure act 1999 (NSW)
Community Service Order penalty imposed by the court, instead of
detention or imprisonment. Up to 500 hrs and the court decides how long and
what has to be done.
Suspended Sentence - It is imposed in place of imprisonment on the condition
that the offender enters into a good behaviour bond for the same period of time.
The imprisonment is suspended providing the offender complies with the
conditions of the bond, and the offender is released to resume their normal life.
Up to two years. Prison sentence thats not put into effect right away.allowing
judge to decide that the offence is serious enough for a jail term.
Home detention
Periodic Detention
Imprisonment most severe sentence imposed in Australia. All purposes may
be all of the 4!.
Diversionary Programs a court program that divert offenders from traditional
criminal processes in order to rehabilitate them. Offender will most probably
attend therapitical justice. Drug court (est 1999) is quite effective.
Alternative methods of sentencing including circle sentencing, restorative
justice
New forms of sentencing for specific offenders. Such as diversionary programs.
THERE ARE TWO
Restorative Justice sentencing involving a voluntary conference between the
offender and the victim. Shows the impact between offender actions and result
on the victim.
Circle Sentencing sentencing for adult aboriginals, circle courts are
designed for repeat offenders and serious crimes. Based on indigenous
customary law, and traditional indigenous forms of resolution. Involving
community members and a magistrate in a circle discussing the most
appropriate sentence. It has full sentencing powers of a court. This
makes indigenous people believe in the legal system.
Post Sentencing Considerations
GOOD
statutory and judicial
guidelines means that limits are
placed on a judges discretion
ensuring sentence consistency
aggravating and mitigating
factors ensure that penalties are
appropriate for each individual
victims impact statements
give the victim a role in the court
process, and may assist in the
rehabilitation of the offender
sentencing appeals allow
higher courts to supervise the
discretion of lower
magistrates/judges
circle sentencing helps to
reduce cultural barriers between
Aboriginal people and the courts
preventative detention
protect the community from
possible harm
Sexual offenders registration
monitors offenders to minimise
their risk of reoffending while still
allowing them to reassimilate into
society
BAD
mandatory sentencing doesnt
allow a judge to consider
circumstances when sentencing
rehabilitation programs for some
offenders may result in inconsistency
in sentencing
it may not always be in the best
interests of the victim to give a
victims impact statement
imprisonment may have a
negative impact on the prisoners
behaviour and therefore not
rehabilitate them
protective custody restricts
prisoners access to work and
education programs
preventative detention violates
ICCPR
Young Offenders
Age of Criminal Responsibility
Children treated differently. In NSW, children under 10 dont have the mens rea
to commit a crime, this is referred to as doli incapax. This is under the Children
(criminal proceedings) Act 1987 (NSW)
No age limit for giving evidence, however below 10 is quite weird. 10 -14 year
old kids may know but still fall under doli incapax, court will have to view the
mental aspect of the offender. Case where the kid thew the other into the lake,
who couldnt swim.
Childrens court will just be heard by one specialy trained magistrate, (NO
JURY)
Conducted in a closed court (members of the public are restricted)
Media cant publish name of any child involved in the case unless judge
says so or kid is deceased
Courts in childrens proceedings will have to follow under section 6 of the
Childrens (criminal proceedings) act 1987 (NSW)
The court must take measures to make sure the kid understands whats
going on
Sentencing and penalties is obviously different.
Detention very unlikely!
CONVICTION
ADJOURNMENT
BOND
FINE
PROBATION
CONTROL ORDER
Alternatives to Court
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. THESE INCLUDE:
Warnings: official notice given to a young offender without any conditions
attached. Used to keep young offenders out of the court system.
Cautions: Formal record, recorded, this can be taken account into the childrens
court. Decided whether a caution is needed or youth justice conference.
Youth Justice conferences: Allow defendant to allow the offender to take some
responsibility for their actions, promote how their actions have impacted the life
of the victim and their family.
Effectiveness
POSITIVE
Doli-incapax: 0-9 years
Provided free legal aid
Entitled to have someone present
when police interrogate them
No criminal record for indictable under
16
No strip search under 10
Under 18, no DNA sample without
court order
Childrens court is specialty and is a
closed court
Media is limited and cant release
personal material
No jury
Diversionary sentencing
Childrens court clinic- psychological
checks
Childrens (Criminal Proceedings) Act
1987 NSW reintegration and no
sentence greater than adults
Alternatives to court
NEGATIVE
Grave adult behaviour
Criminal record is up to judges
discretion
Children and adults are treated
differently therefore inequality in
society
Costs $150 000 to hold a young
offender in prison
NSW spends lots of money on
imprisoning, whereas some should
be spend on prevention like VIC
Circumstances for arrest are same
as adult and children, therefore bad
for child as they should be treated
differently as they are more at risk
of danger
Doli incapax is very vague,
therefore very unequal in childrens
treatment in court
Lack of rehabilitation in juvenile
justice centres
Lots of kids are in remand yet half
of them will not be given a custodial
sentence
Increase in recidivism rates
HUMAN RIGHTS
Not binding, the UDHR got split into two conventions in 1966 and became active
in 1976
o
o
ICCPR
ICESR
NGOs don't have the power to enforce human rights, but promote.
NGOs take different actions to stop human rights abuse..
Direct Action- Letters, faxes, email, writing to those directly who can stop
the abuse.
Indirect Action- publishing reports about abuse. 'Naming and shaming'.
Amnesty International
The Media
Statute Law In recent years the commonwealth, states and territories have
enacted a large body of Statute Law to protect human rights in Austalia.
Imporatn ones include:
1.
2.
3.
4.
Common Law Some fundamental rights protected by common law include the
right to a fair trial, burden of proof, presumption of innocence. Rights in common
law arent absolute and can be removed by legislation (LAW REFORM). Not
reliable to develop new rights, as judgements can only define those rights on and
ac hoc, case by case basis.
Courts and Tribunals Non-Government Organizations The Media A Charter of Rights (arguments for and against)
Themes and Challenges: Assess the effectiveness of legal and non legal
measures in protecting human rights
Legal :
Developing recognition of Human rights
Formal statements of human rights
State sovereignty
The role of:
o United Nations
o IGO
o Courts tribunals and independat
o Statutory authorities
Incorporation of HR into domestic law
The roles of (IN AUS):
o Constitution including division of powers and separation of powers
o Statute law
o Common law
o Courts and tribunals
REFUGEES (policies)
Non Legal:
The roles of NGO and the media
The role of NGO in aus and media in aus
Non Legal:
FAMILY
Definitions:
Family - Nuclear family is a group which consists of one or two parents and their children.
The main restriction to family is people sharing the same blood which includes cousins and
grandparents and further spouse. However, the concept of family has evolved over time and
it now isnt restricted by blood relations. There are options for adoption which allows the
addition of people under a familys registry. Also, family could relate to the relationship with
friends and other adults which are seen as similar to that of an absent brother/ sister/ parent.
Family Law Family law is a category of the law that deals with domestic and
family relation matters. This could include marriage, adoption, divorce, child
abuse.
Marriage: A voluntary union between a man and woman to the exclusion of all
others, for life. This is stated in The Marriage Act (cth) 1961. There are
requirements and several proceedings to make it official.
Mutual Duties - Mutual duties can be defined as a husband and wife who are mutually
responsible for one another. The law does not intervene with how partners carry out their
duties. Only if they have broken their marriage duties and either one or both parties have not
fulfilled their responsibilities the law will intervene. There is no law for partners to support
each other or remain faithful but it is assumed they will. There is no law for automatic sexual
relations, if someone engages in sex with their partner who has not given consent they are
breaking the law.
Defacto Relationship - A de-facto relationship is when 2 non-married or non-related people
live together on a genuine domestic basis.
Polygamy - Polygamy is a marriage that involves a spouse having numerous partners.
(Marries more than one)
Blended Family - family that is created when a parent remarries; it includes the
stepmother or stepfather and stepchildren
Extended Family - a family that includes individuals related through marriage
or parentage and not limited to one couple and their children; in some cultures,
close family friends are regarded as members of the extended family
Celebrant - a person who is authorised to perform a civil or religious marriage
ceremony
Annulment - a declaration by a court that a supposed marriage is in fact void
Prohibited Relationship - Prohibited relationship is a marriage forbidden between people
by the law due to the close relationship between them such as direct descendants or siblings.
Marriageable Age - A person may marry at the age of 18 (s 11). If either of the parties wanting to
marry is between the ages of 16 and 18, he or she must apply to a judge or magistrate for an
order authorising the marriage (s 12). Such an order will only be granted in circumstances that
are sufficiently exceptional and unusual: for example, if the couples parents consent and/or if
the couple are shown to be mature and financially independent. Pregnancy alone will not
guarantee an order. No person under 16 can marry.
Notice of Marriage - notice of intended marriage form must be signed by both
parties, with a witness. One month and one day at least, 18 months maximum.
Maintenance Will
Maintenance:
In a divorce or separation, the money paid by one spouse to the other in order to
fulfill the financial obligation that comes with marriage. The support which one
person, who is bound by law to do so, gives to another for his living; for example, a
father is bound to find maintenance for his children; and a child is required by law to
maintain his father or mother when they cannot support themselves, and he has
ability to maintain them.
Child Support
Child support is an ongoing, periodic payment made by one or both parents for the
financial benefit of a child following the end of a marriage or other relationship. Child
support is typically paid until 18 and the amount varies according to parents income,
percentage of care each parent provides for the children and the childrens ages.
Spousal maintenance:
Will
A legal instrument used to distribute one's estate. However this only becomes effective after
he or she deceased. Legal document which specifices how an individuals property and
assets are to be distributed following his or her death. It has to be done through a solicitor
and not just like a text message saying you can have my shit. If you have no family it goes
straight to the government.
Probate - a legal document issued by the court, certifying that a will is true and correct
(proved), and authorising the executor to administer the estate
Spousal Support
Child Support
Joint Tenant
Tenants in Common
Ex-nuptial In the past, ex-nuptial children (they used to be called illegitimate) had no legal
status and therefore had no legal rights. Legitimacy was important because it provided a
child with certain rights, such as inheritance and maintenance. Legitimacy automatically
existed for a child if the child was:
born during marriage that is, was a nuptial child
ex-nuptial, but the parents of the child later married
adopted.
The Children (Equality of Status) Act 1976 (NSW) later replaced by the Status of Children
Act 1996 (NSW) gave ex-nuptial children the same rights as those born to parents who are
married. Later Acts have reinforced the status of ex-nuptial children. All children have the
right to be cared for by their parents. The Act allows a presumption that those who say they
are a childs parents are in fact the childs parents (this is called the presumption of
parentage); evidence has to be provided to a court to disprove that. Parentage can be
established through DNA analysis of a blood, or through the parents voluntary recognition of
the child as his or hers
Definition of Family in the Family Law Act 1975: The Natural and fundamental
group of society, particularly while its responsible for the care and education of
dependant children.
The main function of the family are:
1)
2)
3)
4)
5)
6)
7)
Family Law has been developed to protect the family (unit of society) and all the
individual members within the family. For example both the mother and father
should have equal right regardless of the relationship.
As time goes on the definition and perspective of family changes, as society has
changing trend which change family arrangements. Because of this diversity of
the family in society today the definition cannot be too narrow and must consider
a greater range of aspects influencing family such as:
1) Size of family has gotten smaller
2) Marriage is still starting point of family, De Facto relationshops (mum &
Dad), and same sex relationships are becoming more legally recognized
and socially accepted
3) Single parent and blended families are being more common
4) Birth technologies and adoptions are more commonly used these days for
same sex technologies
Legal Requirements of Marriage
Legal Definition of Marriage A voluntary union between a man and
woman to the exclusion of all others, for life. This is stated in The Marriage
Act (cth) 1961
(NOTE: The For life element no longer applies under Australian Law with
the Family Law Act 1975 (cth) being introduced. This allowed divorce.)
Requirements:
1) Gender In 2004, the Commonwealth Government passed the marriage
amendment act to add the definition of marriage to the marriage act
(cth) 1961. Section 5(1) of the act defines marriage as union of MAN AND
WOMAN. Section 88AE says that foreign marriage of same sex will not be
reconginsed in Australia.
2) Marriable Age Section 11 states the youngest age to marry is 18.
However if someone 16-18 wants to marry, they must apply to a judge
and magistrate for approval. However this is unusual. For example misss
depressing example.
3) Prohibited Relationships A person cant marry anyone whos related to
blood, or someone whos married already. So for blood its: Aunt, Uncle,
Cousin, Brother, Sister, Mum, Dad, Grandma, Grandpa. Half siblings,
adopted ancestors.
4) Notice of Marriage notice of intended marriage form must be signed
by both parties, with a witness. One month and one day at least, 18
months maximum.
Valid Marriage Ceremony there must be two witnesses present over 18.
There are 3 types of ceremonies
1) Religious
2) Civil
3) International
Void Marriages - A marriage can be declared void, or invalid, if it fails to meet
the definition of marriage; if, for example:
the parties were of the same sex
consent was not freely given by one of the parties
one or both parties at the time of the marriage were married to someone else.
A marriage may also become void if the marriage fails to meet the criteria for a
valid marriage; if, for instance:
one or both parties were too young
the parties are too closely related, by blood or marriage
the marriage did not meet the requirements set out in the Marriage Act 1961
(Cth). If a marriage is found to be invalid, the court can nullify the marriage. This
(annulment) means that the marriage, in the eyes of the law, is deemed to have
never taken place because it was illegal.
De Facto Relationship
Polygamous Relationships
Customary Marriages
Same sex Relationships
Single Parent Families
Blended Families
Age Reguirements
May not be voluntary
Not written
May be polygamous
May occure between people of prohibited relationships
Why do you think these marriages are not recognised under Australian
law? Is this just? Why or Why not?
Thesse marriages are not recognised under Australian law as the traits that are
possible under ASTI Marriages directly contradict the Australian law. For example
ASTI marriages can be between prohibited relationships (such as family) as well
as Poligomy, all of which arent legal under Australian law. As well as the age
requiremetns not being present and the lack of written documentation. I believe
it is just because law aims to benefit/fufill the expectations of society and
therefore, some aspects of the ASTI marriages will be deemed unacceptable by
the rest of society.
Single Parent Families
Single parent families are defined as one parent raising one or more children,
alone. This may be due to marriage breakdown, child birth without being married
or death of one parent.
Blended Families
A blended family is defined as a couple and children living together, but the
children were not actually conceived by the couple but rather with other spouses
Same-Sex Relaationships
Same-sex relationships are families where the couple is of the same gender.
Sometimes this includes children. Same sex couples are now recognised as
having the same rights are heterosexual couples.
De Facto Relationships
In 1984 de facto relationships were first recognised as being equal to marriages.
At first this was only for heterosexual couples but has now being amended to
include homosexual couples as well. This court determines each case separately
to determine if it is a fact a de facto relationship. These are the factors that the
court uses to make its decision:
Care of Children
Duration of the relationship usually must be at least 18 months but more
commonly 2 years
A sexual relationship is present
Common ownership of property
Degree of mutual commitment
Common living space/residence
Sharing of household expenses/residence
If a de facto relationship ends then the couple can divide their property and
finances providing the relationship have existed for 2 years.
Child support must be paid to any children born out of a de facto relationship just
the same as from a marriage. This is because the Family Law Act states that a
parent must always provide financial support to any children conceived.
Spouses are also entitled to spousal maintenance just as divorced couples are.
Parental rights:
Parental rights stem from a parents position as guardian and they have the auth
ority to make decisions on: Name Residence Education Religion
Citizenship Medical treatment o
Parental statutory authority comes under the Family Law Act 1975 (Cwlth).
Changes have occurred within the Family Law Reform Act 1995 (Cwlth) and t
he Family Law (Shared Parenting) Amendment Act 2006 (Cwlth).
These changes have moved the law away from any notion of children being owne
d by their parents. However, parental responsibility diminishes as their child gro
ws older.
Gillick v. West Norfolk and Wisbech Area Health Authority and Anor
[1985]: This case determined that a child may make their own personal
lifestyle choices from the age of 14.
Parental obligations: Parents are obliged to ensure their child receives an edu
cation and pick
it. They are responsible for disciplining their children, however it must be done
moderately and appropriately. A cupped hand against the buttocks is
appropriate for necessary correction of young children. Causing injury is
against the law.
Children:
Children need special care and protection, with governments showing greater co
ncern with recognizing and protecting the right of children.
However, the care and protection of children is no longer only left up to
the parents, as decided in re Marion [1991]:
Marion was 13 years old and had reached puberty, but due to her
intellectual disability, deafness and epilepsy her parents applied
for her to have a hysterectomy; relieving the stress of
menstruation. Justice Nicholson disagreed to the parents wants saying that it int
erfered with the right to bodily inviolability and the right to reproduce.
Adoption
Adpotion when biological parents legally surrender their parental rights and
responsibilities to another couple on a permanent basis. They obtain the same
legal rights as children born into a marriage, as stated under the Status of
Children Act 1996 (NSW)
Consenting to Adoption
For adoption to occur, there must be consent from the biological parents
If the mother and father are married at the time of adoption, then they
both have to consent. If theyre unmarried then only the mothers consent
is needed. However, in NSW the fathers consent is needed if the child is
from a de facto relationship.
The father of an ex-nupitial (bastard) child is only to be notified and has 14
days to apply for care for the child
Children over the age of 12 at the time of adoption consent to their own
adoption
Adopted children are placed on a contact register to allow their biological
parents to be placed in contact with them. The adoption act 2000
(amendment) (NSW) ADOPTION ACT 1982 (NSW) allows the adopted
children to obtain a copy of the amended birth certificate.
Overseas adoption increasing number of Australian couples are applying
to adopt children born overseas. Intercountry adoptions are governed by
the Hague Convention on the Protection of Children and
Cooperation Respect of Intercountry Adoption. And by bilateral
agreements between Australia and counties that havent ratified the
convention.
In NSW, prospective parents must apply through community service to
arragnge for an intercountry adoption. They will be allocated a child form
the other country, and if the parents accept the offer they may lodge an
adoption visa application, which is then forwarded to overseas weldare
agency.The child is subjecy to health checks.
emerge after the divorce. Court imposed resolutions rarely satisfy either party to
the divorce. Court processes are very expensive.
Property
Methods:
Counselling:
Under Family Law Reform Act 1995 tries to move disputes away
from court litigation
Counselling, mediation and arbitration are now the primary dispute
resolution methods used by courts.
Couples seeking divorce must attend a compulsory info session.
Mus attempy dispute resolution under Family Law Amendment
(Shared Parental Responsibility) Act 2006 (Cwlth)
Government supports coucelling
Compulsory coucelling not effective, because they wont be willing
to talk and or see eachoter, if there is violence before it could
actually be dangerous and not possible
Mediation:
LEGAL AID
Legal Aid Commission of NSW provides mediation services for family
disputes. Service provider for low income families. Luke BATTY
Non-Government Organisations
Role of NGOs is to support victims, they cant do anything legally.
Examples are:
Salvation Army
Dads in Distress
The Womens Legal Centre
The Media
The media can draw attention of the public to perceived injustices in the
system.
Has helped reduce Domestic violence.
Changes in social attitudes about many things family related.
Over the years men have felt disadvantaged under the Family Law Act.
The media attention influence heavily the changes in Family Law Act in
2006. The Family Law Amendment (Shared Parental Responsibility)
Act 2006 (Cwlth) has allowed more men to maintain contact or spend
time with their children following a divorce.
Shelter
Definition of Shelter
Right to Shelter
Obligation to provide shelter
Outline the roles of the state and federal governments in the provision
of housing in Australia
Legislation Title
Jurisdiction
Description
State
The Conveyancing
Act 1919 (NSW)
State
The Conveyancing
(Sale of Land)
Regulation 2005
(NSW)
State
Environmental
Planning and
Assessment Act
1979 (NSW) and
Amendment in
2008 (NSW)
State
Auctioneers and
Agents
(Amendment) Act
1992 (NSW)
State
Landlord and
Tenant
(Amendment) Act
1948 (NSW)
State
Landlord and
Tenant (Rental
Bonds) Act 1977
(NSW)
State
Defines titles to
land and, theh
rights of mortgage
holders and
administers
Protecting the
rights of all
involved in
contracts of sale
for property
Environmental
documentation
provisions as per
the legislation
below
Established the
EPA and ensures
that certain
environmental
documents are
attached to all
sales of property
Covers the
procedures that
must be followed
in an auction and
protects all parties
involved
Ensures fair rent
and empowers the
Rent Board to
monitor the
provision of fair
rent
Gives the functins
of the Rental Board
and outlines the
rules and
Buying/sellin
g or
Renting/tena
nts
BS
BS
BS
BS
BS
RT
RT
Residential
Tenancies Act
2010 (NSW)
State
State
procedures they
must follow
The most
important piece of
legislation in
relation to renting
and being a
landlord.
Outlines the
rights and
responsibilities
of both parties
Established the
NSW Land and
Housing Board.
Their job is to
monitor the rules
and procedures in
relation to the
acquisition of
housing for
government
related projects.
They also conduct
studies to ensure
that the needs of
low income
earners are met in
the present and
future.
RT
RT
BS
Owners
Encourages Independence
Aims to keep people off the street
Allows for people to be (re)intergrated into society
Decreases inequality
Increases standard of living
Redistribution of wealth
Against: Shelter is an individual responsibility more than anything, the funds for
the grants would come from taxes which means people would have to pay more
tax.
Creates the incentive for people to do better and save for their own
home/discourages complacency
Responsibility, not a right
High Cost to government
Discourage investment property
Outline the three main ways that people acquire shelter. Give reasons
as to the choices that people make in regards to shelter.
The three main way that people acquire shelter such as:
1) Buying Shelter (private) They would make this decision as
jurisdiction allows them to have full control of their house,
allowing customisation and exercise what they want to do in the
house or on the house.
2) Leasing Shelter (Private) People would lease shelter when
3) Special accommodation (public) People would sought this if they
had trouble financially, and need a place to live. Someone who lives
in public housing, pay rent and dont own the property and are
called a public tenant as federal and state governments share the
cost of building and maintaining public units and houses.
1) Private housing: Buying
2) Private housing: Renting
3) Public Housing: Government Assistance
People may also
JUSTICE
Fairness
Equality
Protection of individual rights
Access
Equity