Minor offences

Exploring the figure of the ‘criminal’

Statistics on offence & incarceration rates

CRIMES ACT 1958

Offences considered sufficiently serious to warrant trial by jury and

demonstration that there is a prima facie case for the charge

•Types of indictable offences include:

•aggravated burglary
•sexual assault
•drug trafficking offences
•manslaughter
•murder

Summary Offences act 1966 (Victoria)

•Heard by a magistrate sitting alone, without a jury.
•Can be heard with accused person present at court.
•Summary offences considered to be lesser offences - road traffic
offences - for example, careless driving, drink driving and unlicensed
driving
•minor assaults
•property damage
•offensive behavior

•Why is a jury necessary, and the person required to be present in a

criminal charge under the Criminal Code but not in the case of Summary
Offences?

•Summary offences ‘a mode of punishment that hides complex penal

and social realities and effects’ ( Quilter and Hogg, 2018: 10)

•The fine as the most common penalty imposed by courts ‘of summary
jurisdiction’

Public Drunkenness
The Royal Commission into Aboriginal Deaths in Custody (1991) had
already recommended abolition of the offence of public drunkenness
because of the likelihood of deaths in custody resulting from ‘protective
orders exercised by police’.
‘The Victorian government has announced a plan to abolish the crime of
public drunkenness four days ahead of an inquest into the death in
custody of Yorta Yorta woman Tanya Day, who was arrested on the
summary charge. In its place will be a “health-based approach” that will
“promote therapeutic and culturally safe pathways to assist alcohol-
affected people in public places”, a government statement said. “Public
drunkenness requires a public health response, not a criminal justice
one, and now is the right time to take this important reform forward,”
(Attorney General, Hennessy)

‘The Northern Territory police’s excessive lock up powers are being used
unfairly and disproportionately against Aboriginal people, which in turn
increases the risk of deaths in custody, the Human Rights Law Centre
has told an expert panel undertaking a review of the Northern Territory’s
alcohol laws.
Shahleena Musk, Senior Lawyer at the Human Rights Law Centre, said
punitive approaches to public drinking, including giving police
unprecedented powers to lock people up who have not committed
offences, had added to a culture of mass imprisonment.
“The Northern Territory locks people up at a rate like no other state or
territory in Australia, and around 84 percent of those it imprisons are
Aboriginal. The Royal Commission into Aboriginal Deaths in Custody
told Governments 26 years ago that they needed to stop locking
Aboriginal people up at such high rates to reduce deaths in custody. The
NT Government should be urgently finding ways to reduce Aboriginal
peoples’ contact with the criminal justice system,” said Ms Musk.

Impacts of policing public drunkenness:

-High rates of custody amongst some populations
-High risk of death in custody

Fines
(Quilter and Hogg)
•The fine is the most common penalty imposed by criminal courts in
Australia

•It rarely attracts attention in criminological literature

•Any public interest tends to focus on imprisonment for default, although

this practice has waned in some jurisdictions

•Yet there is little attention to the use of ‘mandated punishments’ which

fail to take circumstances into account.
Fines: Summary offences
1. Infringement notice is issued (on the spot or time to pay) or a caution
2. Penalty reminder notice
3. Notice of final demand
4. Enforcement warrant (Summary Offences)
-Penalties: community service order or imprisonment or diversionary
program, or revoked through application under special circumstances.
$80 fine may increase to one that exceeds $1000.

Public vs private offences

That doesn’t mean what happens in the private sphere shouldn’t be a
public concern, although that has usually been the case within the
Liberal law.

Reasons for increasing use of fines (most common penalty used in the criminal
justice system):
-Minimises burden on the court system
-Easy to administer
-Revenue raising
-Demonstrates governing, through crime- that gov is exercising control

Impacts of fines:
-Those who are on low incomes and who are homeless are
disproportionately disadvantaged.
-Punishes those with substance abuse patterns
-Of limited if any deterrent utility, limited deterrent effect. It doesn’t
produce a lesser likelihood of fine behaviour.
-Subjected to fines for behaviour that would ordinarily be conducted in
private (Brown et al, 2018: 378)
-Others are fined for behaviours which are ‘manifestations of their
addictions’ (Brown et al, 2018: 378)
-Fines imposed for failure to pay fines (NSW, Quilter and Hogg)

Traffic offences
Rates of imprisonment and policing in the NT:
•Policing increased following the introduction of the Northern Territory
Emergency Response (NTER) commonly referred to as the Northern
Territory Intervention, 2007
•Followed the ‘Little Children are Sacred’ Report
•Failed to address report recommendations
•Instead, resulted in higher police presence, and dramatic rise in
incarceration rates in the Northern Territory
Reasoning behind rural and remote communities having high rates of
driving & fine-related offences:

•Remoteness can lead to higher rates of incarceration (Australian Law

Reform Commission, 2017: 89)
•Policing increased following the introduction of the Northern Territory
Emergency Response (NTER) commonly referred to as the Northern
Territory Intervention
•Access to licensing
•Interactions with police
•Cultural attitudes
•Road Conditions
•Pressure from Elders and community to drive (driving while disqualified)
•Limited alternative transport options

Impact:
•Exacerbates poverty
•Can lead to cumulative problems
•Indigenous Australians more likely to enter pathways into criminal
justice
•Women are consistently over-represented – a prison sentence is more
appealing than a community service order, eg
•Rural areas disadvantaged
•Skews the statistical representation of crime and ‘the criminal’ (40
percent of Aboriginal people in NSW had outstanding debts)
•Reinforces a deficit model (See Rosalie Kunoth Monks – I am not the
problem

What criminology has to say on minor offences:

Not much …
Yet the fine is the most common penalty imposed by criminal courts in
Australia

It rarely attracts attention in criminological literature

There is little attention to the use of ‘mandated punishments’ which fail to

take circumstances into account, or to the disproportionate impact
among particular groups and particular communities

This poses challenges to traditional criminological theories which focus

on the deviant figure, and on crime as a product of urbanisation.