Legal Studies – HSC – Crime

The Nature of Crime

 The Meaning of Crime

o Crime: an act or omission of a duty which results in harm to society and is
punishable by the state.
o Characteristics of crime:
 There is an act or omission of duty which breaks the law
 The act or omission is seen as harmful to society/the whole community
 The act is punishable by the State
 The State takes the accused to court where the offence must be proved by
the Prosecution
 The Elements of Crime
o Police and prosecutors must prove that the elements of an offence are present
before it can be put to trial.
o Two fundamental elements:
 Actus reus: that the accused committed the relevant act for the crime. Must
be a voluntary act but can also include an omission or failure to act
(particularly in criminal negligence, where there is a duty of care).
 Mens rea: that the accused sufficiently intended to commit the crime,
knowing their actions were wrong. Can be understood as:
 The defendant understood what was happening when the act was
committed
 The conscious and willing mind that was present in performing a
crime
Often, if the police or Crown cannot prove that the defendant acted
intentionally, fraudulently, maliciously, negligently, recklessly or wilfully, the
charge will not be proved. Three main levels of mens rea:
 Intention: clear, malicious or wilful intent to commit the crime.
Highest and usually most difficult to prove
 Recklessness: intermediate level of intent – accused was aware that
their actions could lead to a crime being committed, but chose to
take that action anyway. Prosecution will attempt to prove that the
risk was obvious to a reasonable person, and even if the accused
knew of the risk, they didn’t care about the consequences.
 Criminal negligence: where the accused fails to see the risk where
they should have and allows avoidable danger to occur, usually
resulting in the harm or death of a person they had a duty of care to
protect.
 Mens rea case study:
 Hyam v the DPP (1974) AC (Mens Rea)
o Facts: The defendant Hyam had been in a relationship with a
man before the relationship ended. Hyam then had become
jealous of her ex-boyfriend’s new fiancée Ms Booth. She
 poured petrol through Booth’s letter box and then ignited it
using a rolled up newspaper. Hyam did not warn anyone of
the fire but simply drove home. The resulting fire killed two
young children. Hyam was tried for murder. At trial she
claimed that she had only intended to frighten Booth and
had not intended to kill anyone as the mens rea of murder
demanded. Hyam was convicted and appealed. The Court
of Appeal allowed an appeal to the House of Lords.
o Issue: Did Hyam have the requisite intention to commit
murder? Did the mens rea of intention require an intention
to kill or only a foresight of a serious risk of death or serious
bodily harm being caused?
o Ruling: The appeal was refused. A person had the requisite
mens rea for murder if they knowingly committed an act
which was aimed at someone and which was committed
with the intention of causing death or serious injury. Lord
Hailsham also held that intention could also exist where the
defendant ‘knew there was a serious risk that death or
serious bodily harm will ensure from his acts and he
commits those acts deliberately and without lawful excuse
with the intention to expose a potential victim to that risk as
the result of those acts. It does not matter in such
circumstances whether the defendant desires those
consequences or not.’
 Strict Liability Offences
o A strict liability offence is one where the mens rea does not need to be proved – only
actus reus needs to be shown. Because they greatly increase the chance of a
convictions, they are restricted to minor offences, such as:
 Speeding
 Selling alcohol or cigarettes to people under 18
o In such cases, the only thing that matters is that the car was speeding, or that the
good was sold to a minor.
o Strict liability offences are applied due to administrative advantages – for example,
to assist the legal system in coping with the large amount of traffic offences, or to
put a greater onus on society to comply with a particular law.
o There can sometimes be a defence to these offences: if the accused can prove the
act was a ‘reasonable and honest’ mistake.
 You must be able to prove that you honestly and genuinely held the belief.
For example, if you were charged with driving while disqualified but you
were not aware that you were disqualified because the RMS had informed
you that you still held a valid license.
 The belief must have been ‘reasonable’
 Whether or not your belief was ‘reasonable’ will be judged
according to whether an ordinary person in your circumstances
would have held the belief. The court will consider any steps that
 you took to ascertain your belief – for example, where you’ve been
charged with a sexual offence, the court will consider any steps that
you took to clarify if consent was given.
 The belief must be related to a particular fact, rather than the law
 You will not be able to simply argue that you were not aware that
what you were doing was illegal.
 You must also prove that if the facts were true (as you believed), you would
not be committing an offence.
 For example, where you are charged with a drug offence, but you
mistakenly believed that the drug was something else that was legal
– for example, where you were given a marijuana plant and
informed that it was some other legal plant.
 If the defence is raised successfully, you will be found ‘not guilty’ of the strict
liability offence.
 Causation
o It must be proved that there is sufficient causal link between the actions of the
accused and the result. This is relevant in proving the actus reus and requires the
prosecution to prove a substantial link between the act and the crime.
o Causation case study:
 Royall v R [1991] HCA 27
 Facts: The victim died in the early hours of the morning after falling
from the bathroom window of her sixth-floor apartment in which
she and the defendant had lived for the previous four months. In the
days previous there had been a serious quarrel between them which
had resulted in her leaving and staying with a friend for three days.
On her return there was another serious argument, in which the
defendant admitted to punching the victim in the face, shaking her
and pulling her hair. Blood was found in various parts of the
apartment other than the bathroom, and the victim was found
naked with wet hair, consistent with having taken a shower. There
was further evidence of an attack having taken place in the
bathroom. The defendant alleged that the victim had jumped out of
the window of her own accord.
 Issue: Was there an intent to kill present in the defendant when the
victim jumped out of the window?
 Ruling: At trial, three possibilities were introduced:
o 1. That Mr Royall had pushed her out of the window,
o 2. That she had fallen whilst attempting to avoid an attack
by Mr Royall, and
o 3. That she died whilst trying to escape ‘life-threatening
violence.’
It was held that even though Ms Healey may have directly brought
about her own death by jumping out the window, Mr Royall was
ultimately responsible for her death as he created a ‘well founded
 apprehension that she would be subjected to further violence’ if she
remained in the apartment. Accordingly, the court found that
Royall’s actions were the ‘substantial or significant cause’ of Ms
Healey’s death.
 Categories of Crime
o Offences Against the Person
 Any action that seeks to physically harm or harms another person, including
the self.
 Eg. Homicide, failure to care for a child, assault, suicide
o Offences Against the Sovereign
 Any action that seeks to undermine the authority (through intimidation, or
intending to take the sovereignty) of the Queen of England and the royal
family, or any parliamentary body of the United Kingdom or NSW.
 Eg. Terrorism, treason (wishing to incite war/overthrow government)
o Economic Offences (property)
 Damage to, or loss of a victim’s property.
 Eg. Larceny, robbery (larceny with force)
o Economic Offences (white collar)
 A non-violent crime associated with businesspeople or professionals.
 Eg. Embezzlement (usually stealing money from employer), tax evasion,
insider trading (manipulation of share prices)
o Economic Offences (computer)
 Hacking and unauthorised access to or modification of data.
 Eg. Altering/stealing a company’s data, impairment of electronic
communication
o Drug
 Acts involving prohibited or restricted drugs.
 Eg. Possession of a prohibited drug, cultivating (growing), use/supply of a
prohibited drug
o Driving
 Regulated by the NSW Roads and Maritime Service (RMS), and generally
strict liability.
 Eg. Speeding, driving without a licence or while disqualified, ignoring road
signs, driving above the legal alcohol limit (0.05).
o Public Order
 Acts deemed to disturb the public order – can be fine in private spaces, but
societally inappropriate or offensive in public.
 Eg. Obscene, indecent or threatening language or behaviour in public,
possessing a knife in public without reasonable excuse, obstructing traffic or
ignoring reasonable police directions to ‘move on’, damaging public
fountains or protected areas, riot, affray (more serious)
o Preliminary Crimes
 Offences that precede a crime, or where the crime has not been completed.
  Eg. Attempt to commit a crime, conspiracy to commit a crime (2 or more
people must jointly conspire)
 Summary and Indictable Offences
o Most criminal law is a residual power of the States due to the division of powers
under the Constitution.
 In NSW the Summary Offences Act 1988 (NSW) and the Crimes Act 1900 are
major sources of criminal law. These pieces of legislation are enforced by
the NSW Police in NSW.
 Summary Offences Act – generally below 50 penalty units (amount
for a fine eg. 1 penalty unit is currently $110) or 2 years
imprisonment
 Crimes Act – generally above 50 penalty units or 2 years
imprisonment – more ‘serious’ crimes
 There are some Federal crimes because of the ‘exclusive’ heads of power in
the Constitution. The main legislation enforced by the Australian Federal
Police is the Commonwealth Criminal Code 1995 (Cth).
o Summary Offences:
 Tried by a magistrate in the Local Court
 Charge usually laid by a police prosecutor or government official
 Punishment usually less severe eg. fine, good behaviour bond
o Indictable Offences:
 Judgement determined by jury, punishment determined by judge
 Generally heard in the District Court. An initial committal hearing will be
held in the Local Court, where a magistrate will determine whether the
prosecution’s evidence is sufficient to go to trial.
 Charge brought by public prosecutor working for the state
 Punishment usually imprisonment or large fine
 Parties to a Crime
o Any person participating in a criminal offence may become a party to a crime. The
Crimes Act (1900) recognises four different parties, and the level of punishment
imposed by the court will depend on their role and level of participation.
 Principal in the First Degree
 The individual who actually carries out the crime, and likely to
receive the highest sentence eg. The person who hits the fatal blow
in a pub fight; the person who pointed the gun and took the money
in an armed robbery
 Principal in the Second Degree
 Present at the crime and assists in carrying out the criminal act. May
also encourage the act. Depending on circumstances, they may
either receive the same or a lighter sentence than the principal in
the first degree. Treated the same in sentencing as first degree (but
can be lighter), but cannot be sentenced to life. Eg. Person who kept
lookout by the door in the armed robbery, drove the getaway car
 Accessory Before the Fact
  Assists in the planning of an offence before it occurs.
 Accessory After the Fact
 Helps the offender after they have committed the crime. – doesn’t
need to know of the crime before it has happened, but does need to
know afterwards. Eg. disposes of evidence
 Factors Affecting Criminal Behaviour

Factor Description

Economic People from disadvantaged backgrounds are the most likely to commit crime.
Low socio-economic backgrounds are also related to low education and
employment, other factors affecting criminal behaviour.

Social Family situation or personal relationships, which may influence a person’s

idea of what is acceptable. Eg. Abusive home environment could lead to
repetition of that behaviour

Psychological Many forms of mental illness may impact a person’s decision-making

ability/behaviour.

Political Usually offences against the sovereign/state (such as terrorism), and public
order offences (eg. during riots/protests when violence or disruption of
public order occurs).

Self Interest Usually a factor in an offence, particularly when the offence results in profit
or revenge. White-collar crimes are generally committed purely from self-
interest.

Genetic There have been many studies into physical or genetic factors in committing
crime, such as measuring heads or searching DNA for a ‘criminal gene’.
However, none of these have been conclusive in proving internal criminal
factors.

o Who commits criminal offences in Australia?

o According to the ABS:
 75% of offenders proceeded against by police were male
 Median age is 30, highest % age group is 15-19, second highest 20-
24
 About 1/3 are ATSI (much higher than the actual population)
o How might understanding the factors affecting criminal behaviour contribute to
improving compliance?
 Focusing more on the factors affecting criminal behaviour
 Crime Prevention
o Crime prevention refers to the range of strategies implemented by individuals,
communities, businesses, NGOs and all levels of government to target the various
 social and environmental factors that increase the risk of crime, disorder and
victimisation.
o Utilised in an effort to increase compliance with the law, through either modifying
an environment or addressing contributing factors to a person’s criminal behaviour.
o Situational Crime Prevention:
 Creating an environment where it is difficult for people to break the law,
either by making the act physically difficult, or by increasing the likelihood of
detection/law enforcement.
 Works by: increasing the effort involved in offending; increasing the risk that
comes with offending; decreasing the rewards that come with offending
 Examples: increased presence of law enforcement/patrols; CCTV; signage
indicating the prohibition of certain behaviour; improved lighting; signage in
car parks reminding people to take valuables; classical music in public spaces
 Case Study: CCTV
 According to the Australian Institute of Criminology, “there has been
considerable growth in the use of closed circuit television (CCTV) in
public spaces as a crime prevention measure and, increasingly, as a
tool to detect and identify offenders. In Australia, CCTV systems
have become an increasingly common fixture in urban centres, in
shopping centres and malls, individual shops and banks, on public
transport and in car parks. There has been significant investment in
CCTV systems as part of state, territory and Commonwealth
government crime prevention programs, with CCTV accounting for a
growing proportion of overall grant funding available to community-
based organisations, particularly local councils.”
 As of September 2019, Sydney is the 15th most surveilled city in the
world with 12.35 cameras/1000 people (SMH)
 i) Construct a list of arguments to support the idea that CCTV
cameras are effective in preventing crime and increasing
compliance.
o CCTV cameras deter certain offenders from targeting certain
areas, particularly when concerning crimes that are at least
somewhat premediated, such as theft.
o Footage from CCTV cameras can be extremely valuable in
solving crimes where otherwise methods, perpetrators and
whereabouts would be more difficult to find, such as
murders and missing persons cases.
o Footage of some crimes can be used to make arrests almost
immediately.
 ii) Construct a list of arguments demonstrating that CCTV cameras
are ineffective in preventing crime and increasing compliance.
o CCTV cameras, particularly those equipped without sound,
make it difficult to distinguish between casual interaction
and criminal activity.
 o Cameras do not necessarily prevent ‘spur-of-the-moment’
crimes which occur without premeditation or consideration
of whereabouts, particularly drunken fights etc.
o CCTV does not tackle the social causes of crime, and is
merely a situational consideration. It also does not prevent
crimes occurring in areas where there may not be as high a
concentration of cameras.
 iii) Write 2 quotes that you would use if you were writing a
paragraph evaluating the effectiveness of CCTV cameras as a crime
prevention tool.
o “A recent report from the London Metropolitan Police said
that only one crime a year was solved for every thousand
cameras in operation.” – Criminologist James Martin
o “When offenders are uncaring of the consequences, CCTV
has no deterrent value. This helps explain why, despite the
much-heralded installation of Melbourne's Safe City CCTV
system in the mid-1990s, late-night violence still occurs.” –
James Martin
o “The City of Sydney Street Safe Program has helped police
affect dozens of arrests… we look forward to continuing our
work with council to prevent crime and maintain safety
across the Sydney CBD.” – Sydney Local Area Commander
Greg Jewiss
 iv) Overall what is your judgement as to whether these crime
prevention tools are effective?
o Although CCTV cameras are effective in preventing certain
types of crimes, the majority of crimes that the public are
genuinely worried about are spur-of-the-moment of
generally unaffected by the presence of cameras.
o Social Crime Prevention:
 Trying to influence the underlying social an economic causes of crime, as
well as offender motivation. These factors may include:
 Poor home environment and parenting
 Social and economic disadvantage
 Poor school attendance
 Early contact with the police and other authorities.
 Can be slower in achieving compliance, but more effective.
 Social crime prevention programs are not available everywhere
 Case Study: Maranguka Driving Licensing Initiative
 1 in 4 prisoners in NSW prisons were ATSI (2011)
 Rise in convictions was often due to minor offences, eg. driving
o Aboriginal people make up almost a third of all the people
jailed in Australia for driving offences
 o Most kids, their parents don't have cars or their family
members don't have cars. So without us a lot of people
would miss out on getting their licence and having lessons.”
– Peter Mackay, driving teacher in Bourke (Four Corners)
o Number of people jailed in Bourke for driving offences was
the lowest it had been in 10 years post-implementation.
 “A recent study by Deloitte Access Economics found that $111,000
can be saved per year per offender by diverting non-violent
Indigenous offenders with drug problems into treatment instead of
prison.”

The Criminal Investigation Process

 Police Powers
o Police powers are regulated under:
 The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
 The Crimes (Forensic Procedures) Act 2000 (NSW)
 NSW Police Policies, Procedures and Legislation
o NSW Police are responsible for investigating criminal acts and are able to gather
evidence during the criminal investigation process.
o Powers include:
 the ability to collect DNA evidence;
 use surveillance devices;
 search individuals and their property;
 apply for warrants;
 arrest;
 detain, interrogate and charge;
 decide on police bail.
o All evidence must be lawfully collected under the rules of evidence contained in the
Evidence Act 1995 (NSW).
 If evidence is obtained illegally then it may not be admissible at trial.
 Police investigating crimes may collect witness accounts, documents,
fingerprints, photographs, DNA samples, physical evidence such as weapons
or objects, video surveillance footage, electronic information including
metadata.
o The community expects that police have the tools to effectively enforce the law.
o Law reform has occurred regularly to enhance police ability to investigate crime,
occurring when societal values change and when existing law is seen to have failed.
o Police officers have discretion as to the implementation of their powers, which can
impact upon justice.
o Police powers are often controversial due to their ability to be seen as interfering
with civil liberties, resulting in tension between the interests in the criminal justice
 system. Accused people are civilians who have the right to be considered innocent
until proven guilty in a court of law.

 Reporting Crime
o First step in criminal investigation process
o Victims choose whether to report or not. Discretion: authority to make choices about
how the law is applied. If a crime is not reported, it cannot be investigated + acted
upon.
o Reasons for non-reporting: trivial, pressure from families/communities, thinking the
police would be unwilling, putting oneself in danger
o ABS 2019-20:
 87% of households with stolen cars reported
 53% of households that experiences theft from a motor vehicle reported it
 52% of physical assaults were reported
 Investigating Crime
o Gathering Evidence
o Use of Technology
 DNA Evidence:
 Genetic material used to link a suspect to a crime scene or exclude a
person from an investigation.
 Crimes (Forensic Procedures) Act 2000 (NSW) outlines the rules for
carrying out forensic procedures.
 Jurors are highly persuaded by DNA evidence – 23x more likely to
vote guilty in homicide cases; 33x more likely in sexual assault cases
 Two types of forensic procedure:
o Non-intimate: police can ask an offender to provide a mouth
swab, hair sample, nail clippings and can observe the body
without looking at private parts. Adults may give consent,
but if they refuse a senior police officer can order that the
samples be taken. If a person is aged 10-18 years, a
Magistrate must give authorisation.
o Intimate: can only occur when investigating indictable
offences. Includes blood samples, pubic hair, examination of
private parts, dental impressions. Adults can consent but if
they do not, then a Magistrate’s order is needed. If a person
is aged 10-18 years, they can only undergo these procedures
with a court order.
 Police must have reasonable grounds to suspect that the taking of
the sample will produce evidence/the person is a suspect
 Police must inform the suspect to consent in an informed manner
 The suspect must:
o Be afforded reasonable privacy
o Not be questioned during the taking of the sample
 o Be cautioned that they do not need to say anything, but if
they do, it can be used against them
 Forensic samples will be destroyed if:
o A conviction is quashed
o 12 months have passed and proceedings against the suspect
have not been instituted or have been discontinued
o The material was given voluntarily
o No conviction is recorded
o The person is acquitted
 If a person is convicted, their evidence will not be destroyed. The
National Criminal Investigation DNA Database (NCIDD) provides
police with access to these samples.
o 837 000 DNA profiles on the database – allows for interstate
apprehension
o 2015, NSW Parliaments amended the Crimes (Forensic
Procedures) Act 2000 (NSW) to allow police to take samples
from offenders who had not previously had a sample taken.
 NSW Police say that the database will help solve
past and future crimes, focusing on past offenders
who had a ‘fair chance’ of becoming repeat
offenders.
 Program is secretive without oversight by the
Ombudsman; sometimes focusing on people who
have only spent days in prison; assumption of guilt
for other crimes
o Search and Seizure
 The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)
gives police the power to search an individual and their property. They are
able to seize evidence that is relevant to the investigation.
 With warrant:
 A search warrant is a legal document issued by a magistrate or judge
authorising a police officer to perform a certain act, such as an
arrest, or conduct a search, seize property or use a phone tap.
 In order to obtain a warrant, police must show substantial reasons
to justify the search.
 A valid search warrant must:
o Specify the property to be searched
o Specify what is being searched for
o Specify the crime that the search is related to
 When executing a warrant, police must:
o Perform the search within 3 days
o Provide a report back to the justice within 10 days of the
search
 o State that they have a search warrant and are there to
search property, as well as identify the reason for the search
and what is being searched for.
o Give a copy of the warrant to the occupier.
o They may also videotape the search.
 Property/premises must have a warrant to be searched
o However, pubs and clubs, as well as public transport at
certain events, do not require a warrant to be searched by
sniffer dogs for drugs.
 Without warrant:
 Can carry out searches on a person or property if they have
reasonable grounds to suspect that you are carrying items such as
the following. They may stop, detain, and search you.
o stolen goods
o a prohibited substance including a plant
o an item in a public place which is potentially dangerous to
the public
o an item intended to be used to commit a crime
 Reasonable suspicion is more than just possible – police need a well-
founded suspicion
 Can ask you to remove outside clothing eg. jacket or hat; shake out
hair; open mouth etc.
 Can arrest you for refusal to comply with the search
 Do not need a warrant to use sniffer dogs in public places
o Undermines presumption of innocence
 Police can only use a strip search if the urgency of the situation
requires it (LEPRA)
 Parent or guardian must be present for children
under 18
 Key issues with strip searches + misuse of power by
police conducting them:
https://docs.google.com/document/d/1L5Ds7aYjyYl
UPo5koOZc50y_xQr8521IEHMswBLQVh0/edit
 The ability to search without a warrant is important in preventing
imminent danger – we can deal with a serious criminal issue now
rather than take up court time etc. with more trivial matters.
 Provisions in LEPRA allow police to apply standards to everybody,
protecting the right to not be searched arbitrarily and the
presumption of innocence (reasonable grounds to suspect).
 Arrest and Charge, Summons
o Arrest and Detention of Suspects
 Arrest is the action of seizing a person by lawful authority to take them into
custody. Should be used as a last resort.
  Regulated by Law Enforcement (Powers and Responsibilities) Act 2002.
Important that this is followed because:
 Suspects are citizens who have not yet been convicted by a court of
law and have a presumption of innocence
 Arrest in a public space can be humiliating and demeaning
 Arrest may involve the use of force
 Citizens have a right to retain their liberty and only be detained with
good reason
 The International Covenant of Civil and Political Rights (1966)
provides freedom from arbitrary detention as a civil right. Australia
has signed and ratified this treaty.
 Grounds for arrest include:
 Police apprehend an offender while they are committing the
offence.
 Police have reasonable grounds to believe that the person has
committed an offence.
 Police have reasonable grounds to believe a person is about to
commit an offence.
 There is an arrest warrant, or they believe that you have breached
bail conditions
 Police must clearly identify themselves as a police officer by stating their
name and police station and tell the suspect that they are under arrest. They
must also inform the suspect of which offence they are being arrested for,
and inform them of their right to silence.
 Police may use force to arrest a person, but they cannot go beyond what is
reasonable and proportionate, otherwise they may face criminal charges for
their actions.
 Police cannot hold you for more than 6 hours at a police station unless they
have an extension granted by a court for a further 6 hours – total maximum
is 12.
 Under 18; responsible adult must be present when you speak to police.
 Police do not have the power to stop or detain you just to ask questions.
o Court Attendance Notices
 Once a person is charged with a criminal offence they will be issued a Court
Attendance Notice. This notice will tell the accused which court to attend,
what date and time, the name of the police officer charging you and the
offence you are accused of. The accused will also receive a police statement
of facts.
 Court Attendance Notices can be issued on the spot alleviating the need to
convey the accused to the police station.
 Bail and Remand
o If you have been charged, police will make a decision as to whether you should wait
in the community or continue detention.
o Bail: release into community on conditions while awaiting trial
 Protects presumption of innocence, aids in preparing your defence
 Conditions:
 Sometimes includes conditions, such as the lodgement of a specified
sum of money as a guarantee they will show up at court when
required, or the property will be forfeited. This can also take the
form of surety, which is when someone does this on the accused’s
behalf.
 May be use of wrist and ankle monitoring devices, and diversionary
programs such as rehab. Accused may be required to report to a
police station to prove they have not moved out of the restricted
area.
 Bail Act 2013 (NSW) – reformed from 1978:
 Bail will be refused if the accused is deemed to be an ‘unacceptable
risk’
 Decisionmakers must consider the views of victims and consider risk
factors such as whether the accused has criminal associations or a
history of non-compliance with court orders
 A previous bail decision cannot be reviewed purely on the basis of
the new Act.
 Effectiveness:
o Not as effective. Innocent people are being kept on remand,
offenders are being incarcerated longer than needed
 Tests for granting bail under Bail Act 2013:
 Automatic right to release (Section 21)
o For minor offences: fine-only, offences under Summary
Offences Act 1988 (except knife and violence-related
offences), and offences being dealt with under Part 5 of the
Young Offenders Act 1997.
o Bail Authority must either: release without bail, dispense
with bail, grant bail (with or without bail conditions)
 Show Cause (Section 16A)
o Person charged must show why their detention is not
justified (must be charged with a Section 16B offence;
usually serious indictable)
o Act does not limit relevant factors
o Standard of proof is on balance of probabilities
 Unacceptable Risk (Section 17 + 18)
o Accused person who demonstrates risk in any of these while
on bail will be refused bail:
 Failing to appear at court proceedings
 Committing a serious offence
 Endangering the safety of victims, individuals,
community
 Interfering with witnesses or evidence
 o Bail authority also considers matter such as criminal history,
nature of offence, past compliance, Indigenous status etc.
 Aboriginal defendants; male; aged between 35-44
years, more likely to be refused bail
 BOCSAR study finds wide variability in bail decisions
across police areas and courts – breach of rule of
law
o Remand: keeping in custody while awaiting trial
 On remand: 25% of adults and 45% of young people are Aboriginal
o Conflicting interests; difficult to balance accused’s interests with community interest
in justice being achieved.
 80 law reforms as a result
 Detention and Interrogation
o Once arrested, police may choose to take the accused into custody at the police
station while an investigation period is underway. LEPRA 2002 (NSW):-
 Police can detain a person for 6 hours without a warrant.
 This 6 hours can be extended through an application to the court for a
detention warrant.
 The total maximum length of detention is 12 hours.
o Some events do not count in the detention period. This includes:-
 Time spent waiting for a lawyer or medical attention
 Meal breaks and periods of sleep
 Time spent waiting for the effect of alcohol or drugs to wear off
o Suspects have rights which are protected including:-
 The right to silence
 The right to make contact with a friend, relative or solicitor before
questioning
 The right to have all questioning electronically recorded
o In 2016, the NSW Parliament amended police powers to allow police to arrest and
detain a suspect for ‘investigative detention’.
 Any person aged over 14 years can be detained and questioned for up to 4
days if there are reasonable grounds to suspect they have committed a
terrorist act in the last 28 days or they are planning one to occur in the next
14 days.
 Police do not need to know the target of the attack, the place it will occur or
the exact timing.
 Police do not have to present the suspect to a court and have discretion as
to whether to allow a lawyer or contact with family
 Self-authorising – a senior police officer of Superintendent or above reviews
the detention every 12 hours.
 At the conclusion of the four day detention, police must then apply to the
Supreme Court for a detention warrant. The total length that a terrorism
suspect can be held without charge is 14 days.
 “These powers give our police the ability to properly investigate terrorist
plots” - Premier Mike Baird, 2016.
  “ The terrorist threat has become very fast moving and unpredictable and
we need to have the powers to respond quickly and effectively” - Premier
Mike Baird, 2016.
 Law reform tries to avoid worse crimes from being committed as a result of
radicalisation – custody and isolation means that the rest of the terrorist cell
etc. isn’t informed and motivated to carry out the attack
 No check and balance; longer detention; lot of discretion
 NSW Council of Civil Liberties:
 “The NSW Council for Civil Liberties (CCL) notes with concern that
the recommendations make little attempt to substantively change
the laws, or to otherwise restore civil liberties. There is little attempt
to reign in police powers in any meaningful way, which is why CCL
opposed these laws in the first place.”
 “The changes amount to tinkering, without addressing our
substantive concerns about protecting fundamental principles like
due process and natural justice. For example, if a 15 year old
possesses an item police reasonably but wrongly suspect is
connected with a terrorist attack, that teenager can be detained
under investigative detention, and questioned for 16 hours every
day for four days without any form of judicial review. CCL is
disappointed that once again the NSW government has failed to
provide any meaningful safeguards against the possibility of these
kinds of powers being abused.”
 Right to Legal Representation
o Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) - police must wait 2
hours for legal representation to arrive but can begin questioning as soon as the 2
hours expires.
o Dietrich v The Queen (1992) CLR - the Constitution does not provide a guarantee or
right to legal representation in jury trials.
o Children and indigenous Australians are entitled to Legal Aid.

Criminal Trial Process

 Court Jurisdiction
o Original jurisdiction:
 Court where a criminal matter is heard for the first time.
 Every court except CCA and High Court
o Appellate jurisdiction:
 A superior court in which appeals are heard.
 Every court except Local and Supreme (usually)
o Court roles:
 Local
 Minor criminal and summary offences
 Committal hearings
 Magistrate decides guilt + sentencing, no jury
  Only original jurisdiction; cases move fast + no time for appeals,
which go to the District Court
 District
 Jurisdiction over indictable offences except murder and other very
serious crimes.
 Heard by judge and jury; jury decides guilt
 Appellate jurisdiction over cases from the Local Court
 Supreme
 Hears indictable offences such as murder, complex drug cases and
arson.
 Judge and jury
 Place for the CCA
 NSW CCA (Court of Criminal Appeal)
 Hears appeals from:
o Local Court on questions of law
o District Court
o Single-judge Supreme Court decisions
 Panel of 3 or 5 judges
 Appellant must show that the judge or magistrate in the lower court
wrongly used or misinterpreted the law
 High
 Hears appeals from Federal Court and NSW CCA
 Must pass through an application process
 Judges must decide whether it is a matter of national importance
 Legal Personnel

Personnel Role

Magistrate Presides over Local Court hearings and cases

triable summarily where defendant has agreed
to case being heard by a magistrate.
Decides guilt + sentence.
Specialised magistrates hear Children’s Court
cases.

Judge Preside over cases in intermediate + superior

courts (District + Supreme).
Oversee proceedings + maintain order in the
courtroom.
Make decisions about points of law; instruct
juries
Hand down sentences – unless judge-only trial,
in which case decides verdict as well
Police Prosecutor Generally prosecutes summary offences in the
Local Court.
Is a police officer who is trained in legal
representation.

Director of Public Prosecutions Prosecutes indictable offences (and some

summary).
Barristers or solicitors with years of legal
experience.
Does not investigate crime; reviews cases
proposed by the police to determine if there is
enough evidence to prosecute.
The decision to prosecute will depend on many
factors, including:
• whether the evidence is sufficient to establish
the elements of the offence
• whether the evidence is sufficient to gain a
conviction by a reasonable jury
• certain discretionary factors that relate
to the public interest. These include the
seriousness of the offence, the special
circumstances of the offence, accused
or victim, the need to maintain public
confidence, the likely length and expense
of the trial, and the likely outcome and
consequences of a conviction
• whether it is in the public interest to do so.

Public Defenders Where an accused cannot afford to pay for a

barrister or solicitor, they may be granted access
to a public defender.
Barristers who appear in serious criminal
matters for someone granted legal aid.

Barristers and Solicitors A person charged with a criminal offence will

usually contact a solicitor, who gives advice.
Solicitor usually prepares a brief for barrister to
present in court.
Solicitor is also capable of representing accused
in court (but more common in Local since
barristers are more specialised)
 Pleas and Case Conferencing
o Pleas:
 Once an accused person is charged with an indictable offence, the law
requires them to enter a plea to the charge. They can either enter a plea of
guilty or not guilty.
 If an accused enters a plea of guilty there will be no criminal trial. The
matter will move straight to sentencing.
 If an accused enters a plea of not guilty then the criminal case will be
remitted for trial. This is a much lengthier and expensive process. Witnesses
including victims will have to testify, a jury must be empanelled and the
accused may wait on remand for the trial to commence.
o Encouraging Appropriate Early Guilty Pleas
 Extensive court delays – average time between arrest + sentencing is 690
days (NSW Attorney-General Mark Speakman)
 In order to reduce delays, gov. introduced a system of Mandatory Case
Conferencing – Early Appropriate Guilty Plea reform
 23% of guilty pleas not entered until first day of trial; expensive + resource
wasting
 Case Conferencing in practice:
 Police provide a simplified brief of evidence
 Senior prosecutor certifies charge early
 Discussion about the case during conferencing; defendant available
where possible
 Discount on sentence: 25% before Local Court committal; 10% up to
14 days before first day of trial in District or Supreme courts, 5% in
any other circumstances
 Case Conferencing Opinions:
 “The Bar Association says the changes will not reduce the backlog in
the District Court, which is handling more that 2,000 trials and has
almost 1,200 sentencing matters pending, on the latest figures.”
 Benefits for victim: don’t have to be re-traumatised; assured
punishment/retributions
 Benefits for community: resource efficient, reduce backlogs, meets
community values (justice should happen quickly/efficiently)
 Benefits for accused: start rehabilitation etc. earlier
 Charter of Victim Rights provided for better adherence
o Charge negotiation:
 Older system – more about changing/dropping charges rather than reducing
sentence. This meant that some facts were not involved in the charge sheet
(Nanette May case, 2009)
 In contrast to case conferencing, victims not as involved.
 Legal Representation
o There is no absolute right to legal representation in Australia. In Dietrich v The
Queen (1992) CLR the High Court held that an accused person was unlikely to get a
 fair trial without legal representation. They did, however, find that there was no
guaranteed right to legal representation in the Constitution.
o Some defendants do find themselves without legal representation in criminal trials.
This might be because they:
 May have been refused Legal Aid or do not apply
 Have been found not to be eligible for Legal Aid but cannot afford legal
representation
 Believe that they are capable of representing themselves
o Defendants who represent themselves contribute to longer delays in the criminal
courts. Magistrates and Judges also find themselves having to intervene more
regularly and as a consequence it is difficult to remain neutral.
o Legal Aid assists those who may not be able to afford their own representation:
 Established under the Legal Aid Commission Act 1979 (NSW)
 Provides legal assistance and representation for socio-economically
disadvantaged defendants
 Indigenous defendants and children are entitled to Legal Aid representation
 Other applicants must apply and meet the means and merit tests.
 Means test = an assessment of the accused’s income and assets to
determine whether they can fund their own defence
 Merit test = only applies in appeals matters – a measure of the
likelihood of success
 Since 2013, NSW Legal Aid has not provided representation for accused
people facing trial in the Local Court unless there was a real chance of them
being sentenced to imprisonment. This is due to significant reductions in the
budget for Legal Aid.
 There is a financial cap on the amount that will be spent on each Legal Aid
case.
 Defendants may be asked to contribute some funds to their own defence.
 Legal Aid clients (as of 2019/2020):
 18.3% ATSI
 9.9% born in non-English speaking countries
 33.3% female
 47% on Commonwealth benefits
 58.2% rural + regional
 Legal Aid is underfunded, leaving private solicitors/barristers underpaid and
thus vulnerable people at risk
 $88 million in funding was given to the Legal Aid Association in 2019,
with hopes of increasing hourly lawyer pay rates – this will not take
effect until 2023-4, and is only about a third of the originally
requested amount ($236.8m, which would have helped to decrease
wait times in the District Court)
 Use of Evidence
o Prohibited evidence:
 Hearsay
  Opinion
o DNA evidence – easy to sway juries
 Defences to Criminal Charges
o Under Crimes Act 1900 (NSW): legislation defines the defence, sets out the
circumstances under which it can be proven, establishes who must prove the
defence
o Where a person admits to a criminal act, but claims to have a legal justification or
excuse for their actions.
 Defences uphold a societal value that we don’t want to hold people liable
for criminal actions where their do not have the necessary intent, could not
control their actions, or had a justification that is acceptable to the
community.
 Defences uphold procedural fairness – ie. the right to answer the allegations
made against you.
o Some defences are complete and some are partial.
 Complete: if proven, acquittal but the jury – no legal responsibility
 Partial: if proven, reduction of criminal liability eg. drops an offence from
murder to manslaughter
o Up to the jury to determine whether defence is accepted
o Defences:
 Mental illness/insanity
 Complete defence
 Accused must prove that they were mentally incapacitated at the
time of the offence
 Operates on the mens rea – mental illness means they could not
form the intent and could not comprehend the consequences of
their actions. M’Naughten Rules – very difficult to prove
o Aligns with community values; we expect this to be hard to
prove
 If acquitted due to this defence, person is ordered into a psychiatric
facility
 R v Waterlow (2011) NSW SC
o Untreated schizophrenic, did not fully comprehend that he
had killed his father and sister until his medication took
effect
o Acquitted and referred to Long Bay Prison Hospital
 Automatism
 Complete defence
 Accused claims to have not been in control of their actions – the act
was not voluntary
 Rarely used in Australia
 Onus is on prosecution to prove that the act was voluntary beyond
reasonable doubt
 Examples – sleepwalking, epilepsy
  R v Karen Brown (2006) NSW SC
o Security guard attacked with knuckledusters, then shoots
the attacker afterwards once danger is no longer imminent.
She could not remember the attack and was found to have a
brain injury + emotional trauma - aquitted
 Mistake
 Complete defence
 Only applies in strict liability offences
 Burden is on the accused to prove
o Accused argues that their conduct was due to an honest and
reasonable mistake
 Self Defence
 Complete OR partial defence
 Defendant admits to offence but claims their action was necessary
to protect themselves or someone else
 Onus is on prosecution to prove that accused’s actions were not
self-defence or that the defence was excessive
 R v Zecevic (1987) CLR
o High court said that force used must be reasonable and
proportionate. NSW law provides for excessive self-defence
– if a person uses excessive self defence but at the time
thought it was necessary to defend themselves or someone
else, then self defence drops to a partial defence – drops
murder to manslaughter.
 Duress
 Complete defence
 Accused committed the offence against own free will; pressure
exerted on them which led to the offence – pressure must be fear
for their life or someone else’s
 Prosecution must show beyond reasonable doubt that the accused
did not act under duress
 Not available for use in murder cases
 Consent
 Complete defence
 Accused argues that victim consented to the act. Consent must be
voluntary and Prosecution must prove that there was no consent
beyond reasonable doubt once the defence is raised.
 Nov 23rd 2021, NSW State Parliament passes laws requiring
‘affirmative consent’, where accused is required to do or say
something to ensure that the other party actually consents
 Provocation
 Singh Case: Defence of provocation used by husband who believed
that his wife was having an affair. Charged with manslaughter, not
murder.
 o Media have highlighted the mismatch between the way law
is drafted vs the way it is applied in court
 2014 Law Reform: “Now a person accused of murder can no longer
use their partner’s wish to end the relationship or a belief they have
been unfaithful as an excuse in court.” Words can no longer be used
to form a provocation defence
 Extreme provocation still available as a partial defence in certain
cases eg. when a woman has been subjected to prolonged abuse +
domestic violence. Provoking action must be a serious indictable
offence
 Substantial impairment
 Partial defence
 Accused suffering an abnormality of the mind
 Accused must prove the defence
 Reduces murder to manslaughter if proved
 Self-induced intoxication cannot be used to show substantial
impairment in homicide cases
 The Role of Juries
o Key features of a jury:
 Key act: Jury Act 1977 (NSW)
 12 people selected at random from the electoral roll
 Determines guilt or innocence of the accused based on evidence presented
at trial (No other evidence may be used to make the decision)
 Used in either District or Supreme Court in most indictable offences with a
plea of not guilty – never Local Court; lacks jurisdiction
o Both prosecution and defence have the right to challenge jurors
 Peremptory challenges based on nothing but name, age and appearance –
neither side is required to give a reason for the challenge
 Challenge for cause when a person is deemed unfit to be on a jury eg. they
are affiliated with people in the case or were a victim of a similar crime
o Exemptions/Ineligibility:
 Exemptions difficult to obtain but can be granted, especially when one is
over 65, cares for children full-time or is pregnant
 People who are not eligible to sit on juries include those who cannot speak
English, emergency service workers, people with a disability, convicted
criminals and people in the legal profession
 Exemptions can mean a smaller cross-section of the community sits on
juries, particularly older people who don’t work full time
 In 2010 the Jury Act 1997 (NSW) was amended to make more
people eligible for jury duty
o Abolished automatic exemption for people over 70 years
o Former police officers can do jury duty several years after
resignation
o Increased rate of pay to $242 per day for trials over 10 days
 o Introduced fines for employers who required employees to
use holiday leave if called for jury duty
o NSW Attorney General stated that the reforms were aimed
at increasing the diversity of jurors: “We want to encourage
as many members of the community who are able and
willing to give jury service to do so.”
o Process:
 Jurors are sworn in before the case begins
 Their role is to listen to the evidence presented, apply the law as directed by
the judge and come to a verdict as to the accused’s guilt or innocence
 Permitted to make notes
 Not permitted to speak to anyone about the case outside fellow jurors, and
only when they are all together
 May ask for clarification from the judge
 Must be unbiased and impartial – should not be swayed by media etc.
 No time limit on deliberation
o Verdict:
 Jury must reach a verdict of guilty or not guilty
 Where not all jurors can agree, a ‘hung jury’ is called. Hung juries cause the
case to be dismissed and the trial to begin again, which wastes time and is
not cost-effective. Also affects remand + anguish for victims and witnesses
 In 2006, NSW Parliament amended the Jury Act 1977 (NSW) with the Jury
Amendment (Verdicts) Act 2006 (NSW)
 Prompted by cases such as R v Burrell – Sydney mother Kerry
Whelan went missing in 1997, trial in 2005 resulted in a hung jury.
Burrell was finally imprisoned for life in 2006.
 Now allows majority verdicts where reasonable time for
deliberation has passed (not less than 8 hours) and the court is
satisfied that a unanimous verdict will not be reached
 Majority counts as:
o A verdict agreed to by 11 jurors where the jury consists of
12 persons
o A verdict agreed to by 10 jurors where the jury consists of
11 persons
 Majority verdicts remove the possibility for ‘rogue jurors’ where a
juror will purposefully dissent
 However, removes possibility for a ‘reasonable doubt’ decision as
clearly there is some reasonable doubt
o Juror Misconduct:
 Sudoku during trial
 Accused was on trial for production of amphetamines. Once the co-
accused took the stand, he was able to see that at least 4 or 5 of the
jurors were playing sudoku rather than taking notes. Trial was
 aborted as jurors had lost interest in the trial and had not focused
on the evidence presented.
o Justice system: lost hundreds of thousands of dollars in
costs for proceedings + remand
o Accused: spent more time in remand than should have (was
eventually found not guilty as well)
o Victim: not a victim in this case, but would have had to
repeat the whole trial – especially since it was very lengthy
 Research on repressed memories
 Sexual abuse case that relied on evidence regarding repressed
memories and post-traumatic disorders. One juror came into the
deliberation room with printed-off notes regarding these issues. The
case was aborted and retried, as it was determined that the 3 or 4
jurors who had been in the room when the research was brought in
had seen enough to make the trial unfair
o Justice system: lost $750,000 to $1 million of taxpayers'
money
o Accused: had to go through it all again; might have bee not
guilty
o Victim: had to go through it all again – and a sexual abuse
case would have been more traumatic
 Jury Act 1997 (NSW) amended:
 Offence for a jury to make inquiries to obtain information about a
case while sitting as a juror on that case
o Includes researching on the internet, asking people
questions, conducting experiments, viewing or inspecting a
place or object
o Punishable by up to 2 years’ imprisonment (50 penalty
units)

Sentencing and Punishment

 Statutory and Judicial Guidelines

o Legislation regulating sentencing decisions:
 Crimes Act 1900 (NSW) – sets out maximum penalty for an offence
(sometimes minimum)
 Crimes (Sentencing Procedure) Act 1990 (NSW) – tells judicial system how to
proceed with sentencing; how to consider aspects
 The Purposes of Punishment
o According to Crimes (Sentencing Procedure) Act 1990 (NSW):
 To ensure that an offender is adequately punished (retribution)
 To prevent crime via deterrence (deterrence)
 To protect the community from the offender (incapacitation)
 To promote the rehabilitation of the offender (rehabilitation)
 To make the offender accountable for their actions (retribution)
  To denounce the offender’s actions (deterrence)
 To recognise the harm done to the offender + community (retribution)
o Sway towards retribution doesn’t lower recidivism rates
o Veen v The Queen (No 2) (1988) CLR
 ‘The purposes of criminal punishment are various: protection of society,
deterrence of the offender and of others who might be tempted to offend,
retribution and reform. The purposes overlap and none of them can be
considered in isolation from the others when determining what is an
appropriate sentence in a particular case.’
 Factors Affecting a Sentencing Decision
o Aggravating factors
 Things that increase the severity of the crime and may increase the sentence
 Eg. The victim was a public service worker and the offence arose as a result
of their occupation; offence in volved actual or threatened use of violence, a
weapon or a chemical/biological agent; the offence involved the victim
being made to ingest an intoxicating substance; the offence was motivated
by hatred or prejudice for a certain group
o Mitigating factors
 Things that decrease the severity of the crime and may decrease the
sentence
 Eg. The injury, emotional harm, loss or damage caused was not substantial;
the offender was provoked by the victim; the offender was acting under
duress; the offender is unlikely to re-offend; the offender was not fully
aware of the consequences due to age or disability
o Precedent and guideline judgements
 Guideline judgements under Crimes (Sentencing Procedure) Act 1999 (NSW)
 Guideline judgements are court decisions that give guidance to judges in
relation to how they should sentence offenders – reduces inconsistency in
sentencing
 Can contain guidelines that apply generally or to specific courts, offences, or
classes of offenders
 Lower courts don’t have to follow guideline judgements directly; retain
discretion
o Judicial discretion
o Discounts and early guilty pleas
o Victim Impact Statements
o Legislation
o Mandatory sentencing
 Under Crimes Act 1900 (NSW), some crimes have mandatory sentences
 Life for police murders (in the execution of their duty)
o Applies:
 (a) while the police officer was executing his or her
duty, or
  (b) as a consequence of, or in retaliation for, actions
undertaken by that or any other police officer in the
execution of his or her duty,
 and if the person convicted of the murder—
 (c) knew or ought reasonably to have known that
the person killed was a police officer, and
 (d) intended to kill the police officer or was engaged
in criminal activity that risked serious harm to police
officers.
o Michael Jacobs was the first person to be charged with the
mandatory sentence – in 2012, he shot a police constable
during a random breath test

 Premier Barry O'Farrell says today's outcome shows

the State Government was right to act.
 "This legislation won't do a number of things. It
won't bring back David Rixon, it won't guarantee
protection from police across the state," he said.
"But it does mean that for the first time we have
legislation that guarantees that someone who
murders police on duty will go to jail for life. Police
should never be murdered as they go about their
lawful activities protecting communities. But given
history, given history in this state, we thought it was
important to introduce this legislation. Today I'm
delighted that we persevered."
 Nick Cowdery, former head of DPP: “it produces
injustice and has no effect in preventing crime”
 The shadow attorney-general, Paul Lynch: ''We think
that is likely to lead to fewer convictions…It would
also give no incentive to plead guilty and put the
families of victims through even more heartache.''
 Minimum 8 years for one punch drunken assaults in public spaces
causing death
 Minimum 2 years for one punch drunken assaults in public spaces
 Removes judicial discretion, acts as a harsh deterrent
 Role of the Victim in Sentencing
o Victim Impact Statements
 NSW Victims Charter of Rights and the Crimes (Sentencing Procedure) Act
1999 (NSW)
 Opportunity for victims of serious and/or violent crimes to tell the
sentencing judge of the harm done to them
 Important particularly where no trial was held because the offender pled
guilty
 Features:
  The statement is written and read to the court
 Victims can make a VIS and direct witnesses who have been harmed
 Family members can deliver a VIS where the victim has been killed
 A family member can also deliver the VIS where a victim is incapable
of delivering it
 It is delivered after conviction but before the judges passes the
sentence
 The statement can only contain facts that match the offence the
offender was convicted of (see Nanette May)
 VIS are voluntary and judges are not to take the fact that no VIS was
given to mean there is no impact on the victim
 The legislation does not indicate what weight the judge should give
to the VIS

Advantages Disadvantages

*Provides a useful guide to the sentencing judge as
to the impact of the crime on the victim - especially
important where there has been no trial
*Gives the victim a role in the sentencing process.
This reflects a community value
* Offenders can submit personal circumstances as
mitigating factors so it seems fair to allow victims to
give an account
*Increases community confidence in sentencing -
media often reports on VIS
* May enhance the rehabilitation prospects of the
offender
*Victims such as Nanette May are
dissatisfied with the strict requirements
around VIS
* Legislation does not specify how much
weight should be given to the VIS by the
judge in sentencing
* Concern about the impact of having no
VIS given - does this impact the severity of
sentences
* Lifts expectations in the victims as to
what the likely sentence will be
* Judges have always had to consider the
impact on the victim in determining a
sentence under common law

 Types of Penalties
o Custodial
 Where it is mandated that an offender is taken into the custody of
Corrective Services NSW
 Imprisonment
o Reflects societal value that some crimes must be met with a
severe penalty; prison sentences are the strongest penalty
available
o Crimes (Sentencing Procedure) Act 1999 Section 5 states
that “a court must not sentence an offender to
imprisonment unless it is satisfied”
 o 42.4% (2019) sentenced prisoners released from custody
reoffend within 12 months, compared to 21% sentenced to
non-prison penalties
o “NSW's recidivism rate is the worst of any state. About 48
per cent of inmates leaving prison will be back within two
years.” SMH 2016
o Chief Justice Tom Bathurst said there was no ''persuasive
evidence that it works''
o Purpose: retribution (societal consequence); incapacitation
(limitation of ability to leave);
 Intensive Correction Orders
o A fixed period of 2 years or less served in the community.
 Would-be prison; judge asks Corrective Services to
do an assessment
 Purposes: rehabilitation (increased from prison)
o ICOs have three mandatory conditions with which an
offender must comply;
 Completion of a minimum of 32 hours of work
supervised by CSNSW, up to 750 hours total
 Participation in rehabilitation programs
 Drug and alcohol testing
o Can also do:
 Electronic monitoring
 Mandatory reporting to Corrective Services
o BOCSAR found an 11%-31% reduction in the odds of re-
offending for an offender who received an ICO compared
with an offender who received a prison sentence of up to 24
months.
o For a fixed prison term of 6 months or less, odds of
reoffending are between 25 and 43% lower across all risk
categories and between 33 and 35% lower among offenders
in medium to high-risk categories
o “Dr Don Weatherburn said they showed that ICOs are a
cost-effective alternative to prison for offenders who would
otherwise be sent to prison for short periods of time.”
 Prior to 2018: Periodic detention (prison for 2 days a week or so);
home detention; suspended sentence
o Non-Custodial
 Used for offences of lower seriousness
 In 2018, significant reforms were made to non-custodial penalties. Prior to
2018 convicted offenders could be sentenced to community service orders,
good behaviour bonds and no conviction bonds. These have now been
replaced with Community Corrections Orders
  The reforms aim to reduce reoffending and reduce the size of the
prison population in NSW. It costs $292 per day to keep a person in
prison. It only costs $28 per day to manage them in the community.
The new orders are tailored to address the causes of offending
behaviour.
 Community Corrections Orders:
o Cannot last more than 3 years, during which the offender
must not reoffend and must attend court is they do
o Can include:
 Curfews of up to 12 hours in length
 Requirements/orders of abstinence from alcohol +
drugs
 Rehab programs
 Up to 500 hours of community service
 Orders not to associate with certain people or go to
certain places
 Supervision requirements
o If an order is breached:
 Court receives a ‘breach report’
 Court can require offender to attend
 Variations can be made to the conditions
 Offender can be resentenced
 Fines:
 Financial penalty for breaking the law, usually used for minor
offences
 Can be imposed by a court, a penalty (infringement) notice, or on-
the-spot by police.
 Aim to increase compliance + reduce burden on courts by providing
an easy-to-decide option
 From the Law And Justice Foundation Report 2018:
o “The standard fine will sometimes amount to a substantial
proportion of a disadvantaged person’s discretionary
income. For example, the penalty notice for travelling on a
train without a ticket or littering in NSW is $200 (Sydney
Trains 2017).10 This amount is approximately three-
quarters of the weekly income for a person receiving the
Newstart Allowance (Australian Government Department of
Human Service 2017). Standard financial penalties can
therefore have a disproportionate impact on those
experiencing financial hardship and with low incomes, and
cause greater financial hardship in terms of meeting other
basic living expenses, such as food, shelter, education and
healthcare.”
 o “The present study has demonstrated that fines problems
disproportionately affect the most disadvantaged people in
the Australian community. Disadvantaged respondents had
heightened vulnerability to experiencing fines problems,
were more likely to experience payment difficulty, and were
less likely to take appropriate action to resolve their fines
problems.”
 Police can issue a CIN (Criminal Infringement Notice)
o Provides an easier option – less time completing paperwork
o CINs are recorded in the police computer system
o One can seek a review of a CIN
o If fingerprints are taken and the CIN is paid, they will be
destroyed
 Case Study: Cannabis Cautioning System
 In place since 2000, provides for formal police cautioning of adult
offenders for minor cannabis detections.
 Developed in response to a NSW Drug Summit finding that arresting
people for minor drug offences is not always effective
 Police exercise discretion and can still fully charge someone – a
person can only be cautioned twice
 Cannot be cautioned at all if they have prior convictions
 Suppliers/dealers continue to be dealt with under the Drug Misuse
and Trafficking Act 1985
 Caution notice provides phone numbers for the Alcohol and Drug
Information Service (ADIS), which provides a dedicated, confidential
service to a cautioned offender regarding treatment, counselling
and support.
 People who receive a second caution notice are required to contact
ADIS for a mandatory education session.
 Evaluation:
o “Jonathan O'Dea, the Liberal member for Davidson, said
there was just a 2 per cent chance Madden would have
called a drug counselling helpline, based on an Auditor-
General's report.” – SMH, 2013
o Police discretion means that some people still go to court
rather than receive a caution: “But the BOCSAR research
also reveals that Police were four times more likely to issue
cautions to non-Indigenous people. In the five years to 2017,
only 11.41% of Indigenous Australians caught by police with
small amounts of cannabis were issued cautions, compared
with 40.03% of the non-Indigenous population.”
o “Police had run a limited trial last year of telephoning or
texting about 100 people who had been cautioned and had
failed to make contact with the drug helpline, which saw
 compliance rates rise from 5 per cent to 19 per cent.” –
offenders are unlikely to contact of their own accord
 Alternative Methods of Sentencing
o Drug Court
 The NSW Drug Court, established under the Drug Court Act 1998, provides a
diversionary program for drug-addicted offenders, and is effective in
reducing recidivism rates among that group of offenders, thus achieving
justice for them.
 The program is available to those who have committed an eligible offence in
the localities of Sydney, Parramatta, Toronto and most recently, Dubbo, and
through requiring regular court visits and drug tests, aims to reduce
recidivism rates in these offenders, by rehabilitating and reintegrating them
into society.
 Entry into the program is determined by eligibility criteria, but also through
a lottery system, as places in the program are limited and decided based on
available resources.
 Studies have shown that the program is not only cost-effective, but also
effective in reducing recidivism rates – in 2008, the Bureau of Crime
Statistics and Research (BOCSAR) reported a $1.758 million net saving in
running the program when compared to traditional district courts, and a
further 2020 study showed that after 13.5 years, offenders who had
completed the Drug Court program were 17% less likely to reoffend and
took 22% longer to commit a violent offence if they did so.
 BOCSAR’s director, Don Weatherburn, commented on how the Court thus
can “have a positive effect…on the lives of recidivist offenders”, backed up
by Attorney-General Mark Speakman’s comment on the program’s
expansion into Dubbo – that these responses “make a difference in the lives
on individuals, families, friends and communities affected by [illicit drug
use].”
 However, the program’s limited accessibility impacts on its effectiveness in
achieving justice for offenders who require its help – given its limited
locations and lottery system, some offenders are not able to access its
services and are thus disadvantaged. Therefore, while the NSW Drug Court is
effective in providing justice for drug-addicted offenders, it is not able to
provide this for all offenders – thus impacting its overall effectiveness.
o Circle Sentencing
 Circle sentencing, as an alternative sentencing program, achieves justice in
the long term for Aboriginal and Torres Strait Islander (ATSI) communities
through its aim of creating connection between ATSI communities and the
justice system to a moderate extent.
 The program, available in 12 Local Courts across NSW, consists of ATSI
elders, a magistrate, a consenting victim, the offender and others coming
together to decide on an appropriate sentence – emulating ATSI customary
law.
 The program succeeds in its aim of reducing ATSI prison populations – they
are disproportionate at 10 times the rate of the general population, and
circle sentencing, according to a 2020 BOCSAR report, has reduced them by
 9.3%, as well as reduced the likelihood of reoffending within 12 months by
3.9%.
 While these statistics are not significant, magistrates and coordinators of
circle sentencing programs believe that they arise a “ripple effect” – the
officer for Nowra commented that “by removing sentencing from courts…
the connection between [ATSI communities] and the justice system is
improved.”
 However, the program is limited in its accessibility, particularly in rural
communities, where it is needed the most. Thus, circle sentencing, while
effective in achieving justice for offenders – and often present victims too –
as well as for ATSI communities as a whole, in order to “make a difference”,
the program needs to be more widespread.
 Post-Sentencing Considerations

Post Sentencing Decision Description

Security Classification Whether the offender goes to a minimum (fewer

barriers to escape, more open conditions), medium
(inmates move more freely) or maximum (escape
highly dangerous) security prison. Classified according
to crime seriousness; offender prospect for
rehabilitation; incarceration behaviour history

Protective Custody Provided for inmates vulnerable to attack from other

prisoners, meets duty of care for inmates (inmates
should not be subjected to cruel and unusual
punishment, only isolation). For inmates who may be
police/politicians, or who have committed crimes other
inmates might find offensive.

Parole Conditional release of a prisoner from custody after the

completion of the minimum term of the sentence (non-
parole period). Incentive for better prisoner behaviour
during sentence. Offender is put under the direct
supervision of a parole officer, to whom they must
report to. Reforms in 2017 dictate that if an offender
who has committed murder or manslaughter refuses to
disclose the location of remains, parole may be
refused. Behaviour also dictates parole

Continued Detention Where serious offenders who have completed their

sentence continue to be detained.
Crimes (High Risk Offenders) Act 2006: allows for the
ongoing detention of high risk offenders serving time
 for a serious violent or sexual offence. Attorney-
General can apply to the Supreme Court for a
continuing detention order (CDO) if satisfied to a ‘high
degree of probability’ that the person will reoffend on
release. Purposes: to secure protection and safety of
community; to facilitate rehabilitation.
Crimes (High Risk Offenders) Amendment Act 2017:
threshold for making a CDO strengthened so an
offender’s risk to the community is considered; greater
number are now eligible for a CDO or Extended
Supervision Order (ESO); criminal history considered
more holistically as well as future risk.
Terrorism (High Risk Offenders) Act 2017: for high risk
offenders posing an unacceptable risk of terrorism,
allows state to apply for CDOs and ESOs.
President of The Law Society of NSW Pauline Wright:
"Imprisonment should be limited to offenders who
present only the most serious risk to society. To keep
people in jail after they have served their sentence
goes against the basic principle that we should only be
punished for things we have done, not things we
might do in the future…Punishment for potential
future acts is not an appropriate way to manage
behaviour or reduce recidivism in our already
overcrowded jails…Resources would be better spent
on programs in jails to properly equip people to fit
back into society when they finish their sentence, and
on supervision programs following release."
“The controversial deprivation of liberty resulting from
a CDO is only justifiable if informed by valid and
accurate risk assessments.” (Review of the Criminal Code
Amendment (High Risk Terrorist Offenders) Bill 2016)
Minister for Home Affairs v Benbrika [2021] HCA 4 (10
February 2021): High Court found that lack of
independent right to liberty in Australia meant CDOs can
be justified

Registration of Sex Offenders Australian National Child Offenders Register (ANCOR);

NSW Child Protection Register are web-based systems
 to assist police with registering and case management
of those who have committed sexual offences against
children.
Child Protection (Offenders Registration) Act 2000: A
person convicted of specified violent or sexual offences
against a child must register at the local police station
1) when the person is sentenced or 2) when the person
ceases to be in government custody in relation to the
offence, whichever is later.
Adult offenders must register for at least 8 years, and
youth for 4 years. Must provide an up-to-date range of
personal information, as well as travel plans.
Contentious: deny rehab, but protect community.
Severity of original crime and risk of reoffending
outweighs burden of registration.

Deportation Forcible removal from Australia (if threat to Australian

security, can also be permanent ban), requires a
specific deportation order made under section 206 of
the Migration Act 1958 (Cth). A migrant who is not a
citizen may be deported if tried and convicted of a
criminal offence. Sections 200 and 201, if a non-citizen
receives a custodial sentence for 12 months or more in
their first 10 years of residence, the responsible
minister (generally Immigration) may decide they
should be deported. In NSW 2017, 430 visas cancelled
on character grounds.
Controversial: government usually does not follow up
or support once outside jurisdiction. Also, one may be
in Australia for decades and still be able to be
deported.
Case study: Gus Kuster (40) and family moved from
PNG when he was 3. Convicted of drug and driving
offences, and deported back to PNG because he was a
permanent resident, not citizen. Given $250 and 2
weeks’ accommodation. On arrival in Port Moresby, he
was told he could not enter as the government had not
been supplied with paperwork confirming his
citizenship. Sent back to Brisbane. “The Australian
Government is saying I’m not Australian, and the
[Papua] New Guinea Government is saying that I’m not
 allowed there because I’ve lived all my life in Australia.
Doesn’t ‘permanent resident’ mean you’re
permanent?”

Young Offenders

 Age of Criminal Responsibility

o Young offender = anyone under 18 who commits a criminal offence
 Factors contributing to young offending:
 Poor parental supervision
 Homelessness
 Substance abuse
 Peer groups / socialisation
 Boredom
 Lack of social skills
 Neglect and abuse
 Difficulty at school
 Unemployment
o Young offenders may mature and grow out of offending behaviour. Therefore we
want to focus on rehabilitation.
o They are particularly vulnerable when dealing with criminal law enforcement
authorities - there is a power imbalance - not well placed to uphold their own rights.
o We want to avoid negative interactions with law enforcement authorities where
possible which may stigmatise a young person and result in a cycle of offending.
 The Convention on the Rights of the Child (CROC) 1989 - Australia has signed
and ratified.
 37. Children in detention
o Children who are accused of breaking the law should not be
killed, tortured, treated cruelly, put in prison forever, or put
in prison with adults. Prison should always be the last choice
and only for the shortest possible time. Children in prison
should have legal help and be able to stay in contact with
their family.
 40. Children who break the law
o Children accused of breaking the law have the right to legal
help and fair treatment. There should be lots of solutions to
help these children become good members of their
communities. Prison should only be the last choice.
 41. Best law for children applies
o If the laws of a country protect children’s rights better than
this Convention, then those laws should be used.
 o Doli incapax: the presumption that children under a certain age are incapable of
wrong
 Reflected in Children (Criminal Proceedings) Act 1987 (NSW) where the age
of criminal responsibility is 10 years old.
 Children under 10 years of age = conclusive presumption = means these
young offenders will not be charged with an offence by police.
 Children aged between 10 years and 14 years = rebuttable presumption =
the young offender is presumed incapable of an offence, however, the
Prosecution may present evidence that the young person knew their offence
was wrong. They must show this beyond reasonable doubt to successfully
rebut the presumption of doli incapax.
 Children aged over 14 years = no presumption of doli incapax = can be
charged with an offence and face prosecution.
 R v LMW [1999] NSW SC
 2 March 1998, 6 year old Corey Davis was allegedly thrown into the
Georges River by a 10 year old boy, who yelled ‘Bad luck’ as Davis
thrashed in the water and eventually drowned, as he could not
swim. When questioned, the 10 year old said “Yeah, I pushed him in,
so what?”
 Issue: did the boy know that what he was doing was wrong, not just
naughty?
 Resolution: Defence produced witnesses + psychologists who
concluded the boy was at least 2 years mentally younger than his
actual age. Thus he was presumed incapable of forming the
necessary intent to commit manslaughter, and found not guilty.
 Justice for victim was clearly not achieved as the boy still committed
the action of throwing the boy into the river and subsequently killing
him, nor necessarily society, as no punishment was given in the end,
and without proper rehabilitation the boy may still reoffend.
o No conviction -> no order to rehabilitate, however,
Children’s Court can pick up on it and make the order
 Arguments for/against doli incapax:
 “Children are getting away with crime at the expense of community
protection – victims of serious crimes who are just as badly hurt, and
deserve there to be some sort of punishment for the perpetrator,
even if they are a child.
 Others argue that adults are acquitted from serious criminal
offences if it is found through a successfully argued defence that
they did not have the relevant mens rea, so it is inconsistent to treat
children more harshly.
 The Rights of Children When Questioned/Arrested
o Most police powers that apply to adults under the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW) also apply to young people, however, there may be
special protections which apply when police exercise these powers.
 Questioning – identity, name and address
  Summary Offences Act 1998
o Police may stop a person whom they believe to be under 18
and is carrying/consuming alcohol publicly, and require
them to provide their details. If these details are false or the
person refuses to share them, they may be fined.
 Questioning – Right to silence
 Like adult – children are not obligated to speak to the police
 Right to support of a reasonable adult
 Children (Criminal Proceedings) Act 1987, Section 13
o Any information or statement a child gives to police will be
inadmissible in court as evidence unless:
 There was a responsible adult other than a police
officer present
 The judge or magistrate decides that it should be
admitted
o Important: police must ensure the rights of the child in this
case, or they will not be able to use the evidence obtained
 Searches
 Law Enforcement (Powers and Responsibilities) Act 2002
o Police can never perform a strip search on a child under 10
o A responsible adult other than police must be present
between 10-18
o If the person is 14 or older they must agree who the adult
should be
o Strip searching at music festivals – reference
 Contention around ‘reasonable suspicion’
 Arrest and Interrogation
 Law Enforcement (Powers and Responsibilities) Act 2002
o For arrest, police must:
 Know or believe on reasonable grounds that the
person is about to commit a crime
 Have a warrant for the person’s arrest
 Other conditions must be adhered to regarding
bail
o When arresting a young person, the force used must not be
excessive, and the officer must not assault or intimidate
them. Likewise, the person must not assault the officer, use
offensive language, or resist arrest.
 Support Person + Legal Advice
 Law Enforcement (Powers and Responsibilities) Act 2002
o Police must find out as soon as possible who the child’s
parent or guardian is and contact them
o Young people must have a support person present at an
interview, and people 14 or over must agree on who it is
 o Police custody manager must assist the young person, and
in R v Cortez (2002) it was ruled by the Supreme Court that
the manager must inform the child that legal aid is available
(though it is not mandatory).
 Children’s Court
o Children (Criminal Proceedings) Act 1987
 Children have a right to be heard and a right to participate in the processes
that lead to decisions that affect them;
 Children are responsible for their actions but require guidance and
assistance because of their immaturity;
 It is desirable, wherever possible, to allow the education or employment of a
child to continue;
 It is desirable, wherever possible, to allow a child to reside in his or her own
home;
 Penalties imposed on children should be no greater than those imposed on
an adult who commits the same type of offence;
 It is desirable that children maintain family and community ties;
 It is desirable that children who commit offences accept responsibility and
make amends for their actions; and
 Appropriate consideration should be given to the impact of any crime on the
victim.
o Court process:
 Public prohibited from viewing the hearing
 No jury
 Court attendance notice filed by police at children’s court once the child has
been charged
 If a plea of not guilty is entered, matter adjourned for police to prepare and
a serve a brief of evidence, which is presented to the offender. If the young
person defends their plea of not guilty, the matter is once again adjourned
for a defended hearing.
 The media cannot publish the name of any child who is involved in the
process, unless authorised by the court or the child is deceased.
 Courts in children’s proceedings will need to consider the main trial and
sentencing principles under section 6 of the Children (Criminal Proceedings)
Act 1987 (NSW).
 The court will give the child the fullest opportunity to be heard and to
participate.
 The court must take measures to be sure that the child understands the
proceedings, and answer any questions that the child asks about the process
or decision.
 Sentencing appeals:
 Notice of intention to appeal must be lodged within 28 days of the
sentence
 Appeal against a sentence can only be successful where the appellant
shows that there was a legal error
  Opportunity for appeal and review achieves justice because
sentencing decisions can be reviewed to ensure there is consistency
of sentencing no matter where the case is heard geographically.
Adheres to rule or law + procedural fairness
 Penalties for Children
o Children (Criminal Proceedings) Act 1987
 Penalty must not be higher than for an adult for the same offence
 Children should be assisted with reintegration into the community
 Children should take responsibility for their acts and assist in reparation is
possible
 Effect of victim should be considered
 Section 33 lists penalties that can be applied to children:
 Dismissal of charge
 Conviction (only >16)
 Adjournment (for assessment of rehabilitation)
 Good behaviour bond
 Youth Justice Conference
 Fine up to 10 penalty units
 Probation
 Community service order
 Suspended control order
 Control order (detainment in a Youth Justice Centre for up to 2
years)
 Alternatives to Court
o Young Offenders Act 1997
 3 tiered system:
 Warnings
o Official notice given without any conditions attached
o Can be given in any place, but the officer must tell the
offender the nature, purpose and effect of the warning
o Cannot be given for violent, repeat or graffiti offences
 Cautions
o Formal, recorded alternative to prosecution where offender
admits to the offence and consents to receiving a formal
police caution
o Investigating official takes into account severity of offence,
level of violence used, harm caused, and how many offences
have been committed
o Caution may later be taken into account in the Children’s
Court
o It must be ensured that the offender knows the nature
consequences of the caution
 o Officer may take the matter to a specialist court officer to
decide if it should be dealt with in Youth Justice
Conferencing
 Youth Justice Conferencing
o A youth justice conference is a meeting between people
who have been directly affected by the crime you have
admitted to. At a conference you and the victim will talk
about what you need to do to make things right for the
victim and to keep this from happening again.
o Police and courts refer young people for youth justice
conferences when they have committed eligible offences
that are too serious for warnings or cautions, or they have
exceeded the maximum number of cautions available to
them.
o The person organising the conference is called the
conference convenor. The convenor will organise who will
come to the conference & the date, time & place for the
conference. The convenor will spend time with you before
the conference explaining the conference & what you will
do in the conference.
o Once you & the victim have agreed on what needs to
happen, this will be written down as an outcome plan.
o Example:
 In the August 6 attack, a group of teenagers
boarded a school bus travelling between Randwick
and Bondi Junction and hurled abuse at the young
passengers, all aged between five and 12 years
old. It is alleged the offenders were drunk, yelled
anti-Semitic insults such as "kill the Jews" and
"Heil Hitler", and made physical threats of violence
towards the children.
 Offender will visit the Sydney Jewish Museum as
part of an agreed settlement with NSW police and
the Jewish community. The youth will also enrol in
a school harmony project run by the NSW Jewish
Board of Deputies. It was also recommended that
he attend a family Shabbat dinner and read books
from Holocaust survivors, including Primo Levi's If
This Is A Man and Elie Wiesel's Night.
 "The conference provided a measure of closure to
the young girl who was present," said Mr Alhadeff.
"It gave her an opportunity to question the
offender, to hear from him and to hear him
express remorse for his actions. At the same time,
 he could hear directly from some of those affected
as to the impact of his actions."
o When asked immediately following the conference, more
than 85 per cent of offenders and victims reported being
'satisfied' or 'very satisfied' with most aspects of the
conference. High levels of satisfaction with conferencing
were also reported by victims 4 months after the
conference.
o In some instances, however, the percentage of victims who
were 'satisfied' or 'very satisfied' was not as high at the 4-
month follow-up as it was in the baseline survey.
o The aspect of conferencing that victims at the 4-month
follow-up reported the least satisfaction with was the lack of
feedback they received from conference staff about the
offender's completion of the outcome plan. Fewer than half
of the victims were 'satisfied' or 'very satisfied' with this part
of the conference.
o Commenting on the findings, the director of the Bureau, Dr
Don Weatherburn, said that past research by the Bureau
had found no evidence conferencing was any more or less
effective in reducing juvenile re-offending than court.
o A survey just published by the NSW Bureau of Crime
Statistics and Research has found that nearly nine out of 10
NSW residents (85.9%) strongly support the idea that
offenders who damage property or assault someone should
do unpaid work in the community. A similar proportion
(87.3%) say that victims of these offences should be given an
opportunity to tell offenders about the harm they have
done. The public also strongly supports the idea that victims
of property damage or assault should have a say in how the
offender can make amends for their crime, with nearly three
quarters of those surveyed (73.8%) supporting this idea.
Interestingly, although the public strongly supports
restorative justice, only 67 per cent of those surveyed
thought that making amends to victims was effective in
preventing crime and disorder, while only 65% thought that
doing unpaid work in the community was effective.
 Not eligible for graffiti – it is a strict liability offence; you will get a
fine

International Crime

 Categories of International Crime

o Transnational vs Domestic
 Domestic
  Normal crime w/ ‘international element’
 ie. non-citizen commits a crime in a foreign country, is charged
based on the country’s laws
 ‘International element’ is usually nationality of offender
 Can also be a crime committed overseas but tried by the home
country
 Eg. Australia makes it illegal to engage in sexual activity with a child
under 16 years old while overseas (Criminal Code Act 1995)
 Transnational
 Involves crossing of borders in order to commit or plan the crime, or
in origin/effect
 Types include:
o human trafficking and people smuggling across borders
o international fraud and white-collar crime (for example, tax
evasion or money laundering)
o transnational internet crimes, including data theft, internet
fraud, copyright infringement and spam networks
o international terrorism, including cyberterrorism such as
disruption of infrastructure, including via electrical systems
or computer networks
o creation and trafficking of child pornography
o transnational trade in illegal substances, including via
international air, shipping and postal networks.
 Causes include:
o differences in socioeconomic conditions between countries;
for example, human trafficking or internet fraud may
originate in less advantaged countries
o the desire for prohibited goods or services where suppliers
are based in one country and consumers in another
o differences in political or ideological viewpoints (for
example, international terrorism or international hacking for
political or ideological reasons)
o hope that the transnational element will prevent detection
(for example, international money laundering or tax evasion)
o opportunistic desire for power or financial gain.
 Target country usually prosecutes
o However, for some hard-to-detect crimes, prosecution often
occurs under an agreement between two affected countries
 Dealing With International Crime
o Australian Responses to Transnational Crime
 Measures include:
 AFP
 Extradition Act (1988)
 Criminal Code Act (1995)
 Metadata Retention Scheme
  Australian Border Force
 Cooperation with Interpol
 International Treaties
 Joint Operation regional operations
 Funding and resourcing to regional partners
o Case Study: Human Trafficking
 AFP: “Human trafficking is the physical movement of people across and
within borders through deceptive means, force or coercion. The people who
commit human trafficking offences are motivated by the continuing
exploitation of their victims once they reach their destination country.”
 Criminal Code Act 1995
 The legislation states that human trafficking is an offence if one
organises the entry (or potential entry) of another person, or
receiving of another person, into Australia, and employs the use of
coercion, threat or deception to gain the compliance of another
person in respect of the entry/ receiving of another person
 The penalty is 12 years in gaol, which is very lengthy and harsh.
There is no alternative stated in the legislation and as imprisonment
is only to be used as a punishment if no other penalty is appropriate,
the seriousness of this crime is emphasised.
 The success of the legislation can be evaluated by detection rates.
However, it is difficult to effectively measure the success, as we
don’t know how much human trafficking is not detected. The
legislation aims to incapacitate and offer retribution to victims,
rather than rehabilitate. As human trafficking attracts such a high
penalty, in theory it would act as a deterrent as well.
 AIC Report (2019)
 The number of human trafficking and slavery victims in Australia in
2015-16 and 2016-17 was between 1300-1900
 Exact statistics are hard to pinpoint as many victims are never able
to come forward, making human trafficking a highly ‘hidden’ crime.
It is estimated that means that there is approx. 4 undetected victims
per every 1 detected victim
 Victims of human trafficking may not come forward to the police
due to language barriers, fear of their traffickers, or a fear of law
enforcement
 Also, due to the deceptive nature of the crime, they may be
unaware that what has happened to them is illegal
 UN Convention Against Transnational Organised Crime (2000) and Protocol
to Prevent, Suppress and Punish Trafficking in Persons.
 Australia’s obligation as a member state, after signing and ratifying
the treaty, is to then legislate it in the commonwealth criminal code
act, and implement the conditions set out in the treaty.
 Australia is obligated because:
 o Some member states might not have the resources or
measures to enforce the treaty as effectively as others can.
 Prevention measures
 Strengthen border control
 Provide extra training for law enforcement -
preventing trafficking
 Provide victims with measures to provide for the
physical, psychological and social recovery of victims
of trafficking in persons
 AFP (Australian Federal Police)
 Established under the Australian Federal Police Act 1979 (Cth)
 Enforces the Criminal Code Act 1995 (Cth)
 Employs over 6700 people and its 2019-2020 budget is over $1 800
000 000 (not all on transnational). This means it is well resourced to
address transnational crime and support and cooperate with other
nations in our region to detect and disrupt transnational crime.
 Responsible for:
o Investigating complex, transnational, serious and organized
crime;
o Protecting Australians and Australian interests from
terrorism and violent extremism;
o Representing Australian police and law enforcement
internationally;
o Intelligence exchange and collaboration with international
law enforcement partners.
 2019 media release regarding a case wherein an Indonesian woman
was forcefully employed at a residence in Eastlakes
o “…we want to assure the public – and any other people who
may be subject to similar circumstances – that the AFP is
committed to thoroughly investigating these matters and
holding people to account for their criminal actions.” –
Sydney Human Trafficking Superintendent Monica Semrad
 Mekong-Australia Program: Transnational Crime
 2019: $30 million package announced with aim of:
o Better policy analysis, evidence and a stronger information
base to assess transnational crime challenges
o Stronger national operational capacities to prevent, detect
and address transnational crime
o Enhanced regional coordination (operational, information
sharing, border security).
 The funding constitutes a form of foreign aid intended to help
resource responses in the Mekong region to transnational crimes
such as, “drug trafficking, child sexual exploitation and financial
 crimes.” The funding also, “promote[s] cross-border cooperation,”
allowing for future possible joint responses to transnational crime.
 In a way, relays a message that the Aus Gov doesn’t condone human
trafficking to discourage it from happening
 Interpol (International Criminal Police Organisation)
 World’s largest international police organisation, with 188 member
countries
 Established 1923 with the goal of improving police cooperation
around the world, HQ – Lyon
 Purpose: Investigating and providing advice to states’ law
enforcement agencies on transnational crimes
o Eg. targeting organised crime in Asia + Eurasia; international
counterfeiting and money laundering; trafficking in arms
and drugs; international terrorism
 Move to develop a ‘global police force’ to improve the skills of police
peacekeepers + share resources – benefit of improving global ability
to track criminal activity
 Human Trafficking:
o “In 2018, INTERPOL operations rescued 600 victims of
human trafficking, including nearly 100 children.” – interpol
website
o Operation Sawiyan, 2018, Sudan – 94 victims, inc. 85 minors,
rescued
o Operation Libertad, 2018, Americas – nearly 350 potential
victims rescued
o INTERPOL-coordinated operations are built to empower
national police forces with the skills and international
network required to take on human trafficking.
 Actions in the field are preceded by training
workshops to ensure that officers on the ground are
trained in a range of skills, including interview
techniques and the use of INTERPOL’s tools and
databases.
 Deployments effectively combine police action with
input from a number of different actors such as
customs and environmental officers, non-
governmental organizations, officials from the
Ministries of Health and Social Affairs, and
prosecutors.
o Extradition
 Extradition Act 1988
 Australia has extradition relationships with partner countries to
ensure the administration of criminal justice.
 o Eg. person commits offence such as murder in Aus, flees to
USA – Aus can make an arrest and extradition request to the
USA for their return back to Australia
o If a matter is urgent eg. it is believed they may try to flee, a
country may seek the provisional arrest of the fugitive
through Interpol or directly between central authorities
 Australia + NZ have their own extradition scheme: ‘backing of
warrants’ system
 Australia will not extradite an individual if it is believed that they will
face the death penalty
o Eg. Death of Tina Watson – had to get an agreement from
Alabama + the US that they would not sentence Gabe
Watson to death
o Crimes Against the International Community
 Inc. most serious crimes; genocide, torture, war crimes, aggression
 Global values have shifted and these crimes are viewed as so heinous that
the perpetrators of these crimes should be condemned and punished by the
entire international community
 Upholding rule of law; people in high status roles are held accountable for
the instruction to commit these crimes
 Example: 1994 Rwandan Genocide
 Between 800 000 and 1 000 000 Tutsi people were killed within 100
days by Hutu people
 UN did not intervene – small peacekeeping force did not have
weapons
 UN Security Council passed resolution establishing an ad hoc
tribunal – ‘The International Criminal Tribunal for Rwanda’
o Mandated to investigate and prosecute those responsible
for crimes including genocide
o Ran for 20 years and cost $2b, held in Tanzania
 No price on rule of law
o Problems with ad hoc tribunals:
 Can only be created by successful UNSC resolutions
– permanent members may veto (eg. 2015, Russia
vetoed resolution to create tribunal regarding MH17
shot down)
 The tribunal only hears cases about a certain period
of time or event - so has a limited jurisdiction.
 It can be difficult to obtain cooperation i.e – if
suspects have fled to other jurisdictions it may be
difficult to extradite them.
 International Criminal Court
 Established under the Rome Statute (1998)
 o Australian cooperation: Ratified Rome, used external affairs
to incorporate into domestic law International Criminal
Court Act 2002
 Allows Australian authorities to cooperate with the
ICC in investigations and provides for their transfer
of convicted offenders to Australian prisons to serve
their sentence
 Began operation in 2002
 First permanent global court to prosecute individuals for genocide,
war crimes and crimes against humanity
 Is a court of last resort i.e - is only to be used when domestic
measures have been exhausted or a nation state is unable or
unwilling to prosecute
 Most severe penalty is life imprisonment
 The ICC is not an organ of the United Nations BUT the UN Security
Council can refer individuals through a resolution
 Has 31 cases, 15 defendants currently at large, 4 convictions
o Also expensive: the court costs 154 855 000 euro in 2022!!
Which equates to $227,583,527 AUD. 900 staff, 19 judges,
10 convictions, 4 acquittals
 Unfair focus on African nations
 Example: Thomas Lubanga
o Former president of a Congolese political group
o Found guilty of enlisting and conscripting children under 15
(using child soldiers)
o Imprisoned for 14 years
 Example: Omar al-Bashir
o President of Sudan until 2019, currently in custody but not
yet been transferred to ICC
o Five counts of crimes against humanity: murder,
extermination, forcible transfer, torture, and rape; two
counts of war crimes: intentionally directing attacks against
a civilian population as such or against individual civilians
not taking part in hostilities, and pillaging; three counts of
genocide: by killing, by causing serious bodily or mental
harm, and by deliberately inflicting on each target group
conditions of life calculated to bring about the group's
physical destruction, allegedly committed at least between
2003 and 2008 in Darfur, Sudan
o Arrest warrants issued in 2009 and 2010 but he was not
arrested until 2019
 At large because:
 Several nations refused to enforce the
warrant
 The African Union argued that sitting Heads
of State should not be brought before the
ICC until they have left office.
 There was a lack of cooperation by African
nations in apprehending Omar al-Bashir