Chapter 1The nature of crime

In this chapter, you will study the nature and meaning of crime. You will also be introduced to the different categories and elements of crimes and the possible parties to a crime. Finally, you will consider the various factors affecting criminal behaviour.

• A crime is an act (or omission) committed against the community at large that is punishable by the state.

• This could be any act that lawmakers in a society have deemed to be criminal.

The nature and meaning of crime

• Many factors contribute to what that a particular society determines is or is not a crime.

• These include the society’s culture, history, legal traditions, social attitudes, philosophical and religious beliefs, or political systems.

The nature and meaning of crime

Crimes are constantly changing:

• crimes can become outdated and may be abolished, like the former crimes of witchcraft or being a ‘common scold’

• new crimes are also created as society develops, like the newer offences of computer hacking or sending spam.

The nature and meaning of crime

• The criminal law deals with many aspects of crime, from initially planning a crime to investigation and arrest, through to conviction and sentencing by a court.

• The aim of criminal law is to protect the community and impose a sanction on the offender if he or she is found guilty by a court of law.

The nature and meaning of crime

• In a criminal trial, the state (or Crown) brings the case against the accused to court – the state’s representative is called the prosecutor.

• The state must prove the case against the accused beyond reasonable doubt.

• If the case is proved and the offender is found guilty, the court can impose a sentence on the offender from a range of available sanctions.

The nature and meaning of crime

For most crimes, to establish guilt the prosecution must prove that two basic elements were present when the crime was committed:

• that the accused actually committed the act (actus reus or ‘guilty act’)

• that the accused sufficiently intended to commit the act (mens rea or ‘guilty mind’).

Generally, this requires that the act was voluntary, and that it was either fully intended, reckless or criminally negligent.

Elements of crime

• A causal link needs to be established between the accused and the act they are accused of.

• For example, consider a situation where a person assaults another person by kicking them in the leg, and that person dies later that day. Did the assault in some way cause the death, and if so, could it constitute manslaughter?

Causation

• Strict liability offences do not require mens rea to be proved – it is enough to show only that the offender committed the act.

Strict liability offences

• Because this approach dramatically lowers the level of proof required, these offences are restricted to minor offences, e.g. speeding offences.

• In most cases, a defence of ‘honest and reasonable mistake’ is still available.

Strict liability offences

Categories of crime

• Crimes can be categorised in many different ways, for example the type of offence, jurisdiction of offence, seriousness of the offence, or the level of involvement in the offence.

Categories of crime

• In NSW, the Crimes Act 1900 (NSW) is the main statute where crimes are listed.

• The main categories and examples of crime in the Act are shown on the next slide.

Type 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 driving

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

These offences involve harm or injury to an individual, including:• homicide – murder, manslaughter, infanticide or dangerous driving causing death• assault – including physical and threatened harm, and aggravated assaults• sexual offences – sexual assault, indecent assault or aggravated sexual assault.

Offences against the person

Offences against the sovereign

These involve political offences against the government or heads of state, including:• treason – attempt to harm the state or head of state or assist the enemy

• sedition – controversial offence involving promotion of contempt or violence against the government.

Broad category of crimes involving interference with another person’s property, usually for the purpose of financial gain, including:• crimes against property – larceny (theft), robbery, break and enter, shoplifting• white-collar crime – embezzlement, tax evasion, insider trading• computer offences – hacking, spam, internet fraud • fraud.

Economic offences

Drug offencesOffences involving prohibited or restricted drugs, including:• cultivation and production

• transport, supply and trade (trafficking)

• possession.

A broad range of traffic offences related to driving or controlling a motor vehicle, including:• exceeding the speed limit• driving while disqualified• ignoring road signs• driving under the influence of alcohol or drugs• culpable or dangerous driving.

Driving offences

Offences involving some act of public disturbance, including:• obscene or indecent behaviour• possessing certain weapons in public• obstructing traffic• damaging public property• affray (public brawling) or rioting.

Public order offences

• A crime can still be committed even if the final act is not completed.

• These preliminary crimes include attempts and conspiracy.

• Penalties for preliminary crimes can be as high as if the crime itself was carried out.

Preliminary crimes

Regulatory offences

These are usually set out in delegated legislation and carry lower penalties. Examples include:

• breaching water restrictions

• ignoring fire restrictions

• environmental offences

• public transport offences

• breach of occupational health and safety standards.

• Summary offences are less severe offences heard and sentenced by a magistrate, without a jury.

• Indictable offences are more serious, and can be heard by a judge and a jury.

• The characteristics of each type are summarised in the table in the next slide.

Summary and indictable offences

Summary offence Indictable offence

• a less serious offence that is tried by a

magistrate in the Local Court

• a more serious offence (such as murder,

rape or robbery) tried by a judge and jury

• the judgment and punishment are

determined by a magistrate

• the judgment is determined by a jury and

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

• punishment is usually less severe, like a

fine or good behaviour bond

• the punishment will usually result in

imprisonment or a hefty fine

The law recognises that there can sometimes be more than one party to a crime, including:• principal in the first degree – person committing the main criminal act• principal in the second degree – person present at the scene who assists or encourages the main offender• accessory before the fact – person who helps plan or prepare for the crime before the main act• accessory after the fact – person who assists the principal after the crime has been committed.

Parties to a crime

Some of the main factors affecting criminal behaviour include:• psychological factors• social factors• economic factors• political factors• self-interest.

The role of genetics in criminal behaviour has been largely discredited in favour of the other factors.

Factors affecting criminal behaviour

Situational crime prevention

• aims to make it more difficult to commit a crime or remove the reward of temptation in specific situations

• for example, putting up warning signs, improving alarms or security, changing lighting or adding colour tags.

Factors affecting criminal behaviour

Social crime prevention• aims to address the wider

socio-economic factors that contribute to criminal activity

• for example, improving the home environment, reducing social and economic disadvantage or running targeted youth programs.

Factors affecting criminal behaviour