chapter 1 summary - the nature of crime
TRANSCRIPT
CHAPTER ONE SUMMARY: THE
NATURE OF CRIME
Tahni Valentine
CRIME A broad term used to describe many
unlawful activities from the extreme, such as murder, to more minor offences, such as speeding
A crime includes any act or omission which results in harm to society at large and is punishable by the state, including the court system and state or Commonwealth bodies
An attack on the standards expected by society, so it is the responsibility of all to punish the accused
CONFLICT VIEW OF CRIME ‘Conflict view’ of crime argues that the
law in reality is a tool of the ruling class, so that the underclass can be controlled easier
INTERACTIONIST VIEW ‘Interactionist view’ argues that crime
reflects the preferences and opinions of people who hold social power
UNIQUE CHARACTERISTICS OF CRIMINAL LAW Criminal law is concerned with the
protection of society. A crime is an offence against society as a whole, and is punishable by the state. As opposed to civil law which relates to rights and responsibilities between individuals
Criminal actions include crimes against a person, the state and/or against property
The law provides for the state to take legal action against an accused, that is, to prosecute the offender in a court of law to obtain some form of sanction or punishment
UNIQUE CHARACTERISTICS OF CRIMINAL LAW The police and/or the director of public prosecutions
decide to prosecute the offender in court – known as the state or crown – as opposed to civil law, where the action is commenced by the individual affected (the plaintiff) against the person responsible (the defendant)
The Crown must prove its case beyond reasonable doubt as opposed to civil law where the standard of proof is based on the balance of probabilities
The aim of criminal law is to protect the community and to provide a sanction of punishment to the offender if he or she is found guilty by a court of law. As opposed to civil law – where the aim is to address the defendant’s wrong by way of a remedy or court order in favour of the plaintiff
ACTUS REUS & MENS REA Before a criminal act is able to be
brought to trial the police and prosecutors must prove that the following two crucial elements are present:
1. Actus reus (Latin for guilty act) – that the accused actually committed the crime
2. Mens rea (Latin for guilty mind) – that the accused person sufficiently intended to commit the crime
ACTUS REUS – GUILTY ACT The physical act of carrying out the
crime Usually proven through physical
evidence and witness testimonies & is the easiest element to prove
Must be a voluntary act, but may be an omission or failure to act, such as in cases of criminal negligence, meaning that the accused failed to take a course of action when they had a duty to do so
MENS REA – GUILTY MIND Refers to the mental state of the
accused In order for the prosecution to succeed
it must be able to prove that, to the necessary degree, the accused intended to commit the crime
The conscious and willing mind that was present in performing a crime
THREE LEVELS OF MENS REA1. A clear, malicious or wilful intention to
commit the crime – murder – highest level2. Recklessness (intermediate level) – accused
was aware that their action could lead to a crime but chose to take that risk anyway – manslaughter
3. Criminal Negligence (lowest level of intent) – where the accused fails to foresee the risk where they should have and so allows the avoidable danger to eventuate and a crime to be committed – manslaughter by criminal negligence (R v Thomas; R v Manju Sam [No. 18] [2009] NSWSC 1003)
CAUSATION The link between the behaviour of the
accused and the result (i.e. that the behaviour of the accused actually caused the criminal act alleged)
Requires the prosecution to prove a substantial link between the act and the crime
R v Munter [2009] NSWSC 158
STRICT LIABILITY OFFENCES An offence where the mens rea does not
need to be proved; only the actus reus (the guilty act) needs to be proved
Generally minor offences, such as traffic offences or breaches of regulations
CATEGORIES OF CRIMEType of offence Examples
Offences against the person Homicide, assault, sexual assault
Offences against the sovereign
Treason, sedition
Economic offences Property offences, white-collar crime, computer offences
Drug offences Trafficking, possession, use
Driving offences Speeding, drink driving, negligent
Public order offences Offensive conduct, obstructing traffic, affray, bomb hoaxes
Preliminary offences Attempts, conspiracy
Regulatory offences Breach of water restrictions, fire restrictions or public transport rules
OFFENCES AGAINST THE PERSON Homicide:- e.g. Murder, manslaughter,
infanticide and dangerous driving causing death)
Assault:- both common assault and aggravated assault
Sexual offences:- Sexual assault – previously termed as rape, indecent assault and aggravated sexual assault in company
OFFENCES AGAINST THE SOVEREIGN Include political offences against the state
or heads of state, such as treason or sedition
Treason:- any attempt or manifest intention to levy war against the state, assist the enemy, or cause harm or death of the Governor-General, prime minister or the Queen of Australia
Sedition:- involves any attempt to promote discontent, hatred or contempt against a government or leader of the State through slanderous use of language, such as urging violence against government
ECONOMIC OFFENCES Include a wide range of crimes that can
result in a person/s losing property or sums of money:
- Crimes against property (e.g. Larceny, robbery and break and enters)
- White-collar crime (embezzlement, tax evasion and insider trading)
- Computer offences such as fraud and hacking
DRUG OFFENCES Relate to acts involving prohibited or restricted
drugs. Drug offences focus on the movement of the drugs themselves including the growing, selling and use of the drug
Main drug offences:- Possession of a prohibited drug- Use of a prohibited drug- Cultivation- Supply of a prohibited drug Drug offence legislation:- Drug Misuse and Trafficking Act 1985 (NSW)- Summary Offences Act 1988 (NSW)- Customs Act 1901 (Cwlth)
DRIVING OFFENCES Often strict liability offences resulting in
on-the-spot fines and include common crimes such as speeding, driving without a license or while disqualified, ignoring road signs
More serious driving offences include:- Drink driving- Reckless driving- Negligent driving causing death or
serious bodily harm- Failing to stop and give assistance in an
accident involving death or injury (hit & run)
PUBLIC ORDER OFFENCES Offences deemed to disturb the public in some
way, such acts may be legal in the confines of your own home but illegal when done in a public space
They include:- Obscene, indecent or threatening language or
behaviour- Possessing a knife- Obstructing traffic or ignoring a police direction
to ‘move on’- Damaging public property- Affray:- using or threatening violence towards
another to cause reasonable fear- Riot:- 12 or more people using or threatening
violence for a common purpose
PRELIMINARY CRIMES Refer to offences that precede the
commission of a crime or where the crime has not been completed for some reason
Attempts:- Section 344 of the Crimes Act 1900 (NSW) states that ‘any person who attempts to commit an offence for which a penalty is provided…shall be liable to that penalty’
Conspiracy:- occurs when two or more people jointly conspire to commit a crime with an explicit agreement
REGULATORY OFFENCES Minor offences with lesser penalties
(usually strict liability offences) Usually set by the government
department or agency responsible for that area of law and policy
E.g.- Inappropriately watering the garden
during water restrictions- Breach of OH&S regulations- Fare evasion
SUMMARY & INDICTABLE OFFENCESSummary offence Indictable offence
A less serious offence that is tried by a magistrate in the local court
A more serious offence (such as murder or rape) tried by a judge & jury
The judgement & punishment are determined by a magistrate
The judgement is determined by a jury & the punishment is determined by the judge
The charge is usually laid by a police officer or government officer
The charge is brought by a public prosecutor working for the state
The punishment is usually less severe, such as a fine, good behaviour bond or community service
The punishment will usually result in imprisonment or a hefty fine
INDICTABLE OFFENCE TRIABLE SUMMARILY If an accused’s offence is deemed as an
‘indictable offence triable summarily’ then they can choose to have the case heard by a magistrate in the Local court or judge & jury in the district court
Advantages & Disadvantages to having a case heard in the district court:
Advantages Disadvantages
- Earlier hearing date - Lack of a jury
- Faster hearing
- Less formality & cost
- Possibility of lesser sentence
PARTIES TO A CRIME Parties to a crime. E.g. Armed Robbery Principal in the first degree:- the person
who pointed the gun & took the money Principal in the second degree:- the
person doing the lookout at the door Accessory before the act:- Someone who
provided the weapon Accessory after the act:- The person
who drove the getaway car
FACTORS CONTRIBUTING TO CRIME: Psychological factors:- Mental illnesses can often
cause people to react or cope with hard situations in a negative way. Also temporary psychological factors like ‘battered woman syndrome’ and ‘post-natal depression’ which need to be taken into account
Social factors:- A child who experiences violence when growing up is more likely to be violent towards his/her family as an adult – peer pressure could also influence offenders to commit crime
Economic factors:- People from disadvantaged backgrounds are more likely to commit crimes such as larceny or robbery – these people may not have had a good education resulting in unemployment or a low paying job causing them to commit crimes to obtain things that they want
FACTORS CONTRIBUTING TO CRIME: Genetic factors:- Cesare Lombroso suggests that
criminals were ‘born criminals’ after researching the bodies of executed criminals – some people argue that the shapes and bumps on our skull and dimensions and facial features could tell a lot of criminal potential – however there is no such proof of this
Political factors:- Public order offences and rioting and crimes against the state such as treason or sedition could be explained by political factors which play an important role in explaining why many terrorist group’s actions and purpose
Self-interest or greed:- Self-interest could involve criminals committing crime to obtain power and money – revenge could also play a part in this
SITUATIONAL CRIME PREVENTION Situational crime prevention shifts the
emphasis away from the criminal to the environment
This theory involves two approaches:- Planning and architecture design,
making crime difficult- Focused approaches resting on the
rational choice theory, whereby offenders are understood to weigh up the potential benefits of a crime against the potential risks
SOCIAL CRIME PREVENTION Social crime prevention attempts to address
underlying social factors leading to criminal behaviour:
- Poor home environment & parenting- High truancy levels- Early contact with police and other authorities Governments attempt to address this with by
putting money into programs which focus on high truancy or disengaged students – the government may also provide parenting workshops
Getting young delinquents involved in sports has also proved a positive crime prevention technique