Ailsa Schreurs

HSC 2016

Legal Studies
CRIME

Syllabus Dot Points

-
Study Notes

1. The Nature of Crime

2. The Criminal Investigation Process
3. Criminal Trial Process
4. Sentencing and Punishment
5. Young Offenders
6. International Crime
1. The Nature of Crime
The meaning of crime
● An act or omission which can result in harm to society at large and is punishable by
the state (governments), including the court system and state or Commonwealth
bodies.
● Characterised by nature and seriousness of offence
● The state acts on behalf of society in a case
● Found in both statute and common law
● Beyond a reasonable doubt
- Indictable (serious - supreme, district courts)
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- Summary (less serious - local court)

● Crimes Act 1900 (NSW)

The elements of crime (Actus Reus & Mens Rea)

● Actus Reus (guilty act) - carrying out/conduct
- Voluntary commission of an act or the voluntary omission of a duty that
breaks the law
- Features:
- That the act of omission actually took place
- That it was done by the accused person
- That it was voluntary.
- Actus reus must be voluntary, but can include omission and failure to act,
particularly in cases of criminal negligence where the accused failed to take a
course of action that would have prevented the criminal act from occurring
● Mens Rea (guilty mind) - mental state
- Carried out the criminal act and intended to do so
- Includes:
- Intention: clear, malicious or wilful desire to commit or omit
- Recklessness: foresee the probability of harm, but acted anyway
- Negligence: failed to exercise the degree of care, skill or foresight of a
reasonable person
Causation
- The act or omission committed must have caused the specific injury complained of.
(link between the act and the crime)
- R v Munter 2009

Strict liability offences

- An offence where no mens rea needs to be proved
Eg. minor traffic offences: Police do not have to prove that a driver was
intending to break the speed limit, only that they did so.

Categories of crime
1. Offences against the person
- Acts or omission which intend to harm other people
- Homicide: unlawful killing of another person, deliberate or accidental. The
judge must determine the causal relationship - whether the actions of the
accused caused the death of the victim
- Murder: deliberate. Intended to harm with reckless indifference to
human life
- Manslaughter: Not intentional. Unlawful killing that has resulted in
human death.
- Involuntary: accused acted in in reckless/negligent way, no
intention to harm.
- Voluntary: Intent, but mitigating circumstances reduce
culpability (eg. provocation)
- Constructive: killing of a person while the accused was
committing another crime (eg. killing someone while robbing a
bank)
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- Infanticide: the death of a baby under 12mths occurs at the hands of

its mother. Mothers mental state must be taken into account.
- Death by reckless driving: when a person drives in a reckless or
unsafe way and in doing so causes the death of another human.

- Assault:
- Common assault: the offence of causing physical harm to another
person and threatening to cause harm to another person. A direct act
that causes force to be applied to the victim’s body unlawfully and
without consent
- Aggravated assault: when the assailant assaults a person using an
object rather than their own body, or if accused attacks police when
they’re carrying out duties.

- Sexual Offences
- Sexual assault: forced into a seual act against their will and without
their consent
- Indecent assault: accused commits an assault and ‘act of indecency’
on or in the presence of another person without their consent
- Aggravated sexual assault: Excessive violence used, victim under 16
or victim has serious physical or intellectual disability.
- Aggravated sexual assault in company: Elements of sexual assault,
but performed with another person or people present together with
depriving the victim of their liberty or the threatening/infliction of bodily
harm. Most serious, life imprisonment.

2. Economic Offences
- Acts or omissions against people’s property or finances
- May result in person/s losing sums of money.
- Crimes against property: damage or remove another person’s property
Eg. larceny, break and enter, damaging property
- White collar crime: against property carried out in business world related to
money.
Eg. fraud, insider trading, computer hacking
- Computer crimes: related to hacking and unauthorised access or modification
of data.

3. Offences against the Sovereign

- Acts or omissions which aim to disrupt or harm the governing bodies of a country.
- Treason
- Attempt or manifest intention to levy war against the state, assist the
enemy or cause harm to or death of a head of state
- Sedition
- Promoting discontent, hatred or contempt against the Government or
leader of a state through slanderous use of language
- Incl. offences of urging force or violence against govt.
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4. Drug Offences
- Acts involving prohibited or restricted drugs (eg. Cocaine, Cannabis, Heroin)
- Possession
- Trafficking
- Cultivation
- Manufacture
- Supply
- Trade/Import/Export
- Drugs Misuse and Trafficking Act 1985 (NSW)

5. Driving (Traffic) Offences

- Road Transport (Safety and Traffic Management) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Mostly dealt with by police on the spot through fines
- Most are summary or regulatory offences
- Speeding, no seatbelt
- More serious are dealt with in court
- Negligent driving causing death or serious bodily harm

6. Public Order Offences

- Acts that society deems as inappropriate conduct or offensive behaviour in a public
place
Eg. nudity, offensive language, drunk and disorderly, soliciting prostitutes

7. Preliminary crimes
- Attempt: crime has not been carried out because that person has been caught in the
planning stage, or attempts have been thwarted.
- Conspiracy: occurs when two or more people jointly conspire to commit a crime
together.

8. Regulatory offences
- Breaches of laws that are imposed on society which seek to protect the best interests
of the community for a specific time period, or due to changing circumstances
eg . water restrictions in times of drought

9. Victimless Crimes
- No victim, though there usually is in the long run.
Eg. public nudity or illegal gambling

Summary and Indictable Offences

- Summary offences are those heard and decided by a magistrate sitting without a jury
in a Local Court. Relatively minor. Eg speeding
- Indictable offences are serious criminal offences and may be heard by a judge and a
jury. Eg. murder

Parties to a crime
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- Principal in the first degree:

- actual perpetrator of the crime
- Principal in the second degree:
- present at the crime and assisted or encouraged
- Accessory before the fact:
- helped plan but were not there when it occurred
- Accessory after the fact:
- assisted principals after the crime

Factors affecting criminal behaviour

- Psychological: mental illness
- Social: relationships and associations (ie. family and peers)
- Economic: disadvantaged background, unemployed/unskilled
- Genetic: theory that genetic markers can influence and predict criminal behaviour
- Political: moral conviction, ‘civil disobedience’, offences against state and sovereign
- Self interest: greed, money, power, revenge

Crime prevention: situational and social

● Situational (Stop crime before it’s committed)
1. Planning and architectural design: influence of physical environment on crime
eg. Jellybean Park in Nowra
2. Focused (situational) approaches: rational choice theory, that criminal will
weigh means, ends and consequences
- Examples incl. CCTV, lighting in dark areas, playing classical music to deter
young groups from congregating, coloured dye tags on clothes

● Social (alleviate social factors underlying reasons for crime through programs)
- Educational
- Parenting workshops
- Dispute resolution workshops for youth
*Creating social order through education, regulation and coercion

2. Criminal Investigation Process

Police powers
- Investigate crimes
- Arrest
- Interrogate
- Gather evidence
- Detain and question suspects
- Search property and seize evidence
- Use reasonable force
- Use tech such as phone taps
● Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
● Sometimes a warrant will be needed to authorise police to perform a particular task

Reporting crime
- First step in criminal investigation process
- Most crimes are reported by private citizens who are either witnesses or victims
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- Crimes are sometimes unreported due to

- Feelings of fear, loyalty or protection, humiliation or shame
- Bringing their own acts of omissions to police attention
- Domestic violence and sexual assault often go unreported

Investigating crime
- Police are main investigators
- Others include social security officers, tax officials, health and safety inspectors
- Once police receive info, they’ll make a decision about whether to investigate
- Police will try to ascertain:
- Severity of offence
- Likelihood of success
- Available resources and priorities
● Gathering evidence
- Role of police to gather evidence to further investigation and support a charge
- Charge: A formal accusation of a person committing a criminal offence
- Evidence is documented in situ and will be preserve where possible
- Inadmissible evidence: compromised or contaminated
- Evidence Act 1995 (NSW)
- Types of evidence include
- Oral testimony
- Fingerprints
- DNA samplings
- Video surveillance
● Use of Technology
- Needs to be extremely reliable
- Databases such as the fingerprint and DNA ones make it easier for police to
share information across states and internationally. - eg. Interpol & Pumpkin
Girl case
- Cybercrime units are able to locate criminals through internet activity (eg swirl
face man)
● Search and Seizure
- Police are given powers to search people and detain things in certain
circumstances under part 4 of the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW)
- Rights of ordinary citizens are safeguarded by the limits placed on police
when conducting searches
● Use of Warrants
- Issued by magistrate or judge, they authorise police to perform certain acts -
eg, make an arrest, conduct search, use phone tap
- Rights of citizens are protected by restrictions on Police
- Part 5 sets out circumstances where they can be used

Arrest and charge, summons, warrants

● Arrest
- Police may lawfully arrest a person if
- Catch a suspect committing, has committed or is about to commit an
offence
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- To arrest someone for a crime they’re investigating, Police need a warrant to

apprehend the offender and bring them before the court
- Suspicion must be justified
- Reasonable force, must state to offender why they are under arrest
● Charge or release
- Can only be held for specified period of detention (- after this time they must
be released or charged)
● Summons
- legal document that states when and where a person must appear in court,
and if they are the accused, the charge to which they must answer.
- Failure to attend may lead to arrest and charges
● Warrants (as above)

Bail or Remand
● Bail (Bail Act 1978 [NSW] )
- Temporary release of an accused person awaiting trial.
- Sometimes a lodgement of money is used as a guarantee of attendance
- Eg. Lindt Cafe siege - criminal was on bail @ time. Bail does not always
guarantee safety for community
- Bail takes place in many forms
- Upfront monetary payment, recognisance or surety
- Other components
- Ankle monitoring, surrender of passport, report to police station
● Remand
- What happens to the accused when bail is refused. The defendant is
remanded in custody (kept in police custody or remand centre until date of
court hearing)

Detention and Interrogation, rights of suspects

● Detention
- Police can only detain for period of 4 hours, however they may apply to a
magistrate to extend to 8 hours.
- Can have rest periods which include transport, communication with
friend/lawyer, refreshments, recovery from drugs
● Interrogation
- Questioned in custody
- Right to silence
- Interview is recorded
- Under 18 can have adult present
● Rights of Suspects
- Privacy (no searches unless warrant)
- Communication (contact friend, solicitor etc)
- Lawyer (can be present when questioned)

3. Criminal Trial Process

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Court jurisdiction
● Original Jurisdiction: power to hear case for the first time
● Appellate: power to review previous court decisions of lower courts
● Local Court (Lower)
- Summary offences
- Magistrate, no jury
- Committal proceedings for indictable offences
● District Court (Intermediate)
- Indictable offences: manslaughter, armed robbery (offences against the
person)
- Appeals from Local Court
- Judge jury
● Supreme Court (Superior)
- Serious indictable offences: murder, arson
- Judge jury
● High Court (Superior)
- Appeals from the Fed Court and NSW Court of Criminal Appeal
● Other include: NSW Court of Criminal Appeal, Children’s Court, Coroner’s Court
(death and fire), Drug Court of NSW, Federal Court of Australia

The adversary system

● The two sides of the case try to present and prove their version of the facts and
disprove the other side’s version.
● Impartial judge determines sentence, jury determines guilt and innocence
● Prosecution and defendant
● Criticism: Not everyone can afford a proper legal representative. Rich people can
afford better ones who are more likely to win. However it is the most fair system to
achieve justice

Legal personnel: magistrate, judge, police prosecutor, Director of Public Prosecution, Public
Defenders
● Magistrate
- Jurisdiction of summary offences
● Judge
- Decides punishment
● Police Prosecutor
- Specially trained officer who prosecute case in Local Court (summary).
- Presents on behalf of the state
● Director of Public Prosecutions
- Independent authority that prosecutes all serious offences on behalf of the
NSW government, when it in the public interest to do so
- Doesn’t investigate- prosecutes once sufficient evidence has been
established
● Public Defenders
- Where the accused is unable to afford legal representation, they may be
granted access to a public defender
- Appears in serious criminal matters for an accused who has been granted
legal aid
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Pleas and Charge negotiation

- Once charged, the accused enters a plea of either guilty or not guilty
● Guilty plea
- Dealt with quietly, no criminal hearing
- Doesn’t require witnesses
● Not Guilty plea
- The case will be defended in court
- Bail or remand granted
- If pleads not guilt and found guilty > possible impact on punishment
● Plea bargaining/case conferencing/ charge negotiation
- Accused agrees with prosecution to plead guilty to particular charges
- Usually pleads guilty to lesser charge in exchange for higher charge to be
withdrawn, or a lesser sentence

Legal representation, including legal aid

● Qualifying for legal aid
- Means test (income is less than specified amount)
- Merit test (chance of winning)
- Jurisdictional test (crime and family cases only)
● Legal Aid
- Provision of free or cheap legal services to people on limited incomes
- Aims to help redress inequalities of access to the legal system by providing
assistance to those who do not have the economic power

Burden and Standard of proof

● Presumption of innocence
● Burden of proof: who has the responsibility to prove (prosecution/plaintiff)
● Standard of proof: how much proof? (Beyond a reasonable doubt/balance of
probabilities)

Use of evidence, including witnesses

● Evidence Act 1995 (NSW)
● For evidence to be admissible in court it needs to be
- Relevant to the case
- Obtained legally by investigating police
● Subpoena: formal letter requesting a person’s attendance in court to give evidence
● Expert witness: may be called in to give their expert advice on a topic (eg. luna park
physics for spear throwing gf off cliff)

Defences to criminal charges

- Used to justify a person’s actions
- Legal defences help to achieve justice by allowing the court to consider
circumstances that might justify the accused’s acts or reduce their culpability
- Fall into 3 categories
- Denial of action (innocence) or voluntariness of the action (eg. insanity)
- An excuse for the action (eg. provocation)
- Justification for the action (eg. self defence)
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- Considered either complete of partial

Complete defences
- Clear the person of the crime
● Mental Illness (couldn’t have formed appropriate mens rea - M’naghten rule)
● Automatism (involuntary behaviour - eg. sleepwalking or epileptic)
● Mistake or accident
● Self defence
● Necessity (to avert serious danger)
● Consent
● Duress (genuine threat of intimidation)
● Intoxication (not a defence for crime in NSW)

Partial defences to murder

● Provocation
● Diminished responsibility (substantial impairment by abnormality of the mind)
- Eg. Low IQ or mental retardation

The role of juries, including verdicts

● Jury decides the facts and evidence in private
● innocence or guilt, and who wins the case

4. Sentencing and Punishment

Statutory and Judicial guidelines

- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Purposes for which a sentence may be imposed
- Types of penalties that can be imposed and when they can be used
- Factors and guidelines for sentencing generally
- A prison sentence is the last resort (ie. no other penalty appropriate in given
circumstances)
- Sentence is decided by judge/magistrate
● Mandatory sentencing
- automatic sentence set by parliament that must be imposed by judicial officer
for particular offences
- Came in after Daniel Christie case: intended as harsh deterrent
- Restricts judicial officer from their powers

The purposes of punishment: deterrence (specific and general), retribution, rehabilitation,

incapacitation
● Crimes (Sentencing Procedure) Act 1999 (NSW)
- Prevent crime
- Protect the community
- Denounce the conduct of the offender
● Deterrence
- Discourages/intended to discourage someone from doing something
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- Specific: dissuading the offender from committing a similar crime in

the future because of fear of punishment
- General: punishment attempting to make an example of an offender in
order to send a message to the rest of community
- Little evidence to suggest it as effective in individual sentencing
● Retribution
- Punishment aims to be equivalent to the crime committed > eye for an eye
- Proportionate, but not violent or physically harmful
● Rehabilitation
- Important purposes of punishment
- Aims to prevent recidivism (repeat offence)
- Programs include drug counselling and rehab programs/courses
- Effective : success with less serious offenders> drugs and alcohol
abuse
- Ineffective : Jill Meahre case > parolee assaulted her, Daniel Christie>
killer undeterred by previous king hit cases
● Incapacitation
- Isolate the offender to protect community
- Different penalties include home detention, community work and prison
- Eg. Justified for serial killers

Factors affecting a sentencing decision: aggravating and mitigating circumstances

● Aggravating circumstances
- Make the offence more serious and can lead to increased sentence
- Relates to the way an offence was committed, characteristics of victim, facts
relating to offender (incl violence, vulnerability, abuse of trust)
● Mitigating factors
- Circumstances which make the offence less severe and can lead to reduced
sentence
- Eg. Offender has no prior conviction, youthful/inexperienced, remorseful

The role of the victim in sentencing

● NSW victims of crime are recognised and guaranteed certain rights under Victims
Rights Act 1996 (NSW)
- Respect for victims dignity
- Victims compensation
- Protection from the accused
- Protection of identity
● Victim Impact Statement
- Voluntary statement written by victim which outlines the impact the crime had
on them
- Only permitted for serious violent offences and if court deems appropriate
- Includes medical reports and images
- Controversial, as they’re subjective but allow victim to express how they feel

Appeals
Appellant: Party appealing to the higher court for review
● Appeal against conviction
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- Argues that they did not commit offence for which they were found guilty
- If successful, may result in acquittal or retrial
● Sentence appeals
- Appeals by offender against severity of sentence, or prosecutor against
leniency

Types of penalties (evaluate effectiveness of)

● Conviction or no conviction recorded: When found guilty, judicial officer will decided
whether to record conviction or not (young offenders often passed)
● Caution: A formal warning for less serious offences to avoid the court system
● Fines: Common monetary penalty imposed on an offender
● Bond: compulsory condition imposed on offender for period of time, which can restrict
life and freedom
● Suspended sentence: used instead of imprisonment on the condition that the
offender enters into a good behaviour bond for same period of time
● Probation: offender is placed under supervision of a probation officer for period of
time (usually with bond)
● Criminal infringement notice: Issued by police outside of court ie. on the spot fines for
traffic offences
● Penalty units: 1= $110
● Community service order: involves compulsory supervised work in the community for
up to 500 hours
● Home detention: sentenced to 18 months or less imprisonment for a non-violent
offence may apply to serve at home with certain conditions (cost effective;
opportunity for rehab)
● Periodic detention: allows offender to serve a period of time each week or month in
prison (allows offender to live in community)
● Forfeiture of assets: a court may order for money or property to be recorded if
obtained through criminal activity - Criminal Assets Recovery Act 1990 (NSW)
● Imprisonment: most severe sentence, a last resort penalty (deprives of liberty and
removes from community)
● Diversionary programs: Court programs set up to divert certain offenders away from
the more traditional criminal processes. Established to target the causes of offending
and improve offenders future prospects by assisting individual needs

Alternative methods of sentencing

- Involve diversionary programs, as well as restorative justice programs
- Alternative methods are primarily aimed at rehabilitation so the offender can avoid
further contact with the criminal justice system
● Restorative justice: these programs aim to both address the causes of criminal
behaviour and to allow the offender to rectify the harm they have caused
○ Circle sentencing: is a restorative justice program for Aboriginal offenders.
They are brought before a circle of people involved with the offence, including
the victim, the victim's family, community elders, defence lawyer, prosecutor
and magistrate. A discussion occurs. They discuss the offence, the harm
done, ways of rectifying, and what can be done to help in the future

Post-sentencing considerations, including

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- security classification,
- protective custody,
- parole,
- preventative detention,
- continued detention,
- sexual offenders registration,
- deportation

5. Young Offenders

● Juvenile Justice: refers to the area of law and policy concerned with young people
and the criminal justice system
● Welfare and Justice Model: two types of recognised approaches that can be taken by
the law with regard to young offenders and juvenile justice.
- Welfare Model: assumes that the cause of the crime can relate to social,
psychological and economic factors.
- Justice Model: Generally promotes zero tolerance and promotes a ‘tough on
crime’ stance

Age of criminal responsibility

● The law treats children and young people differently from adults
- Reasons for this include
- Preventing children and young people from being exploited
- Protecting them from the consequences of making uninformed decisions
● Doli Incapax
- Where a child under 10 is deemed incapable of forming the intent to commit a
crime or not - presumed that children cannot be held legally responsible for
their actions
- They also cannot be found guilty of an offence
● Children under 10
- Children (Criminal Proceedings) Act 1987 (NSW)
- Cannot make decisions about right or wrong
- These children have limited life experience
● Children 10-13
- Doli incapax still applies, however the prosecution is required to prove beyond
a reasonable doubt, given that a child at this age might have the mental
capacity to commit crime
● Children 14-17
- No doli incapax
- People under 16 cannot have a criminal conviction recorded against them
unless the offence was indictable
- Under age of 18, child cannot be named
- Matters heard in Children’s Court
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* Media article:
http://www.sbs.com.au/nitv/article/2016/02/11/age-criminal-responsibility-must-rise-say-exper
ts-after-11-year-olds-murder

The rights of children when questioned or arrested

- Children have the same rights as adults when arrested or questioned, except
children have extra protections. These include
- A parent/guardian must be notified if a child is taken into custody by police
- The police must tell the child about his/her rights and assist the child to
exercise those rights eg. giving them the Legal Aid Hotline number
- Cannot take bodily sample without a court order
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Changes have been made to ensure Aus Jurisdictions comply with the obligations
under the UN’s Convention on the Rights of the Child
● Questioning of young people
- Police can approach and ask questions at any time, though they have the
right to silence
- It can be illegal to not answer certain questions eg
- Required to provide details if they are suspected of being under 18
and carrying/consuming alcohol or drugs
● Right to silence
- A young person has the right to silence as anything they say can be used as
evidence against them
- Should wait until they have received independent legal advice before
answering Q’s or signing statements
● Arrest and Interrogation
- Can strip search a child over 10 only with adult present
- Police must tell young offenders that they are under arrest and why, may use
reasonable force (not excessive), try to contact parents or carers, cannot
interview a child without an ‘interview friend’ present
- In NSW, if under 18, only detained for 4 hours, or 8 if warrant is granted
- Court order is needed to police to take DNA samples for any suspect under
18

Children’s Court – procedures and operation

- Est under Children’s Court Act 1987 (NSW)
- Dual role
- Dealing with criminal matters of children and young people under 18
- Dealing with matters of care and protection of children and young people
referred to it by the DOCS
- Differences: Magistrate, no jury, closed court to protect identity of child, prohibition of
name published in media
- Children’s Court hears
- Any offence that is a serious indictable offence
- Committal proceedings of any indictable offence
- Must show regard for the following
- Children have equal rights to adults
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- Have the right to be heard and participate in proceedings affecting them

- Are responsible for actions
- Education must proceed without interruption where possible
- Should reside in their own home
- Children’s Court Clinic: makes clinical assessments of children and submits reports
to court, which can include mental health, drug use, abuse, psychological issues.
Helps make decisions which are in the best interest of the child

Penalties for children

- Children’s (Criminal Proceedings) Act 1987 (NSW)
- Rehabilitation is main focus (Convention on the Rights of the Child 1989)
- Should not receive harsher penalties than adults
- Should be assisted with reintegration into community; sustaining family/community
ties
- Specific serious indictable offences (eg homicide), ordinary sentences apply
- Some penalties listed in Act:
- Dismissal: dismiss charge without punishment, may issue caution
- Adjournment; deferred for up to 12 months for considerations
- Bond: good behaviour bond with conditions
- Fine: up to 10 penalty units
- Probation
- Community service order: up to 100-250 hours of work
- Control order: detention in juvenile justice centre, max time 2 years

Alternatives to court
● Young Offenders Act 1997 (NSW)
● Provides various diversionary measures for young offenders and police as an
alternative to traditional criminal processes and court penalties.
● Aim to encourage rehabilitation, reduce rates of recidivism
● The alternatives are available for summary offences and less serious indictable
matters
○ Warnings: a child can be given an on the spot warning by police, the name is
recorded, but does not form part of criminal history
○ Cautions: A formal warning; can only be given if the child admits to the
offence and an independent adult is present. Record of caution is kept
○ Youth justice conferences: young offender, parent, victim, supported for victim
and mediator are present and create an agreement eg. apology, reparations,
rehab or any other appropriate measures.
○ Youth Drug and Alcohol Court: similar to Drug Court but for Young Offenders.
Opportunity to participate in intensive program of rehab before being
sentenced. Successful completion means lighter sentence.
○ Intensive Program Units and mentor programs: often imposed as a condition
of probation or early release from a detention centre. Units provide specialist
counselling, and mentor programs are designed for ATSI or non-english
speaking-background children. Assist in rehab and avoid further offences.

● Effectiveness:
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Factors which help ensure effectiveness Factors which may limit

- Age of criminal responsibility is - Age of criminal responsibility too

effective bc children do not have high and children are excused
the experience or mental from crimes for which they
capacity to truly form necessary should be found guilty
mens rea
- Children given greater protection - Some laws regarding police
because they are more enforcement may have an unfair
vulnerable and have greater impact on children
chance of rehabilitating
- Sentencing principles ensure
they aren’t treated as harshly as
adults
- Separate detention centres
protect them from the negative
impacts of hardened adult - Some sentencing alternatives
criminals are seen as soft options which
- Sentencing alternatives assist in only encourage young offenders
rehabilitating to reoffend

6. International Crime

*international crime is crime committed which has international implications in either

international law or in the enforcement of domestic criminal law*

Categories of international crime

● Crimes against the international community
- These are crimes committed by individuals and states which are seen
as wrong by the international community
- These crimes may be aimed at the whole international community or at
specific groups or members within the community.
- Incl. war crimes, crimes against peace and humanity, genocide,
terrorism, apartheid and slavery.
- Laws against these crimes are usually contained in declarations and
conventions of the UN and are linked directly to human rights and
responsibilities

● Transnational Crimes
- These crimes occur within a state's legal system but contain an
international element
- This usually means that the organisations or peoples involved in the
crime could be responsible for that crime in several countries.
- These crimes are therefore handled under both the criminal system of
a nation-state and through international criminal provisions.
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- Incl. hostage-taking, terrorism, the drug trade and pornography.

Dealing with international crime

● Domestic measures
- Crimes against the international community: most significant is
Australia signing and ratifying the Rome Statute, which means any
crime in the Statute is criminalised in Australia
- Transnational crimes: Australian Federal Police works closely with a
range of law enforcement bodies at various levels; investigated Bali
Bombings of 2002 - “ it was officially a joint investigation [with the
Indonesian Police] in less than a week.” (news.com.au Oct 2012)
- Commonwealth A-G Department: plays varied role- reports and
provides valued advice on Australia’s compliance with its
international obligations; oversees the operation of legislation
relating to transnational crime, provides advice on their
implementation
- Australian Crime Commission: investigates matters of national
concern; coordinates with other international law enforcement
agencies
- Australian Customs and Border Protection: responsible for
protection and security of Aus borders; works closely with govts
and international agencies; aims to deter and detect the unlawful
movement of goods
- Domestic criminal laws that deal with transnational crimes, such as
laws prohibiting the importation of illegal drugs and anti-terrorism laws
The Drug Misuse and Trafficking Act 1985 (NSW), Criminal Code Act 1995,
Anti-Terrorism Act 2005
- Cooperation between domestic authorities in different nation states, in
order to deal with transnational crimes and crimes outside the
jurisdiction
- Other international measures that require domestic legal action, such
as the imposition of sanctions and implementation of extradition
procedures

● International measures
- International instruments
- Formal legal document which has legal force under international
law eg treaty or convention. The Rome Statute (1998)
established the ICC
- Customary International Law
- Consists of principles and procedures that have grown up
through general usage, to the point where they have been
accepted as being fair and right by the international community
- International Tribunals
 Ailsa Schreurs
HSC 2016

- ICJ is the judicial organ of the UN, with 15 justices who each
serve a 9 year term. It can only hear cases between nations,
and does not hear cases between individuals. Therefore
concerned with PUBLIC international law.
- Several specialist tribunals have been established for specific
investigations concerning war crimes and crimes against
humanity
- Sanctions
- May coerce states into abiding by international criminal law.
They are actions taken by the international community towards a
state which is seen to be attempting to, or has broken,
recognised international law. (moral, political, economic,
financial and physical sanctions)
- Imposing sanctions on one state can harm others, making it
difficult to convince other states to agree to the sanctions
- Extradition
- When a person is handed over by one state to another state
because that person is accused of a crime in the latter state. It is
based on agreement between states
- Extradition is based upon the principle that offenders should not
be able to escape justice merely by escaping to another country
or state
- Not all offences are covered by extradition treaties
- Cooperation between nations
- Cooperation between enforcement authorities in various
countries has led to the apprehension and conviction of various
offenders whose crimes have an international element

● Limitations
- The ICC and tribunals don’t prevent crime from happening in the first
place
- The cost of investigations are enormous and need to be borne by
member states
- No international police force which can arrest and charge people
- Some states lack skills, funding, training and resources to combat
complex and organised crimes
- To be successful, states require significant cooperation, sharing of
skills, resources, funding and intelligence, all on an unprecedented
scale.
- To date there has been some success in combating these crimes,
however as the world continues to change an increased effort will be
needed to tackle issues.