Matthew Mangiapane

HSC Legal Notes: Crime

1. The nature of crime
a) The meaning of crime
Meaning of crime:

 Crime: Act which results in harm to society; punishable by state; lawmakers in a

society deem an act to be criminal
 Definitions can oversimplify complexities of law; don’t tell us behaviours behind
crime
 Factors that influence lawmakers:
o Culture
o History
o Legal traditions
o Social attitudes
o Religious beliefs
o Political systems
 Crimes are moral and ethical judgements on people’s behaviour
o Constantly changing as new crimes are created and old crimes become
irrelevant (from witchcraft in medieval times to laws relating to modern
technology)
 Legislation reviewed by statutory bodies (government, courts)
 Controversial; affects rights and freedoms of all society (from sexual assault in
marriage to smoking in a restaurant)

b) The elements of crime

Actus reus:

 Latin for ‘guilty act’, refers to physical act of committing crime; must be proved by
prosecution

Mens rea:

 Latin for ‘guilty mind’, refers to mental state of accused and intention to commit the
crime/awareness of crime being committed
 3 main levels: Intention, recklessness, criminal negligence (R v Thomas Sam 2009)

c) Strict liability offences

 Offence where mens rea does not have to be proven, only actus reus.
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 Lessens the rights of the accused, and applied due to administrative advantages
 Only used for minor offences (eg. speeding, selling cigarettes/alcohol to people
under 18)

d) Causation

 Link between behaviour of accused and result

 Prosecution must prove that the act of the accused must be at least the substantial
cause of the crime
 (R v Blaue 1975) (UK)
o Stab victim refused blood transfusion, died
o Causation still proven, as manslaughter still caused the wound which caused
the death, appeal failed
 (R v Munter 2009)
o The accused, Todd Munter, was charged with manslaughter after he punched 66-
year-old Ken Proctor over a dispute regarding water restrictions. Mr Proctor fell to
the ground after the punch and Mr Munter kicked him in the midsection with
moderate force. Shortly afterwards, Mr Proctor died from a heart attack that
occurred as a result of the blows inflicted upon him by Mr Munter. Although Mr
Munter had no apparent intention to murder Mr Proctor, the courts deemed that
Mr Proctor’s death was caused by Mr Munter’s unlawful assault. Mr Munter was
convicted of manslaughter and jailed for three years and three months.
o Todd Munter jailed over 'water rage' attack on Sydney Grandad Ken Proctor –
news.com.au, 2009

e) Categories of crime

 Offences against the person

o Homicide
o Assault
o Sexual assault/aggravated sexual assault
 Offences against the sovereign
o Treason
o Sedition
 Economic offences
o Property offences
o White-collar crime
o Computer offences
 Drug offences
o Trafficking
o Possession
o Use
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o Cultivating
 Driving offences
o Speeding
o Drink driving
o Negligent driving
 Public order offences
o Offensive conduct
o Obstructing traffic
o Affray
o Bomb hoaxes
 Preliminary offences
o Attempts
o Conspiracy
 Regulatory offences
o Breach of water restrictions, fire restrictions or public transport rules

f) Summary and indictable offences

Summary offences:

 Less serious, lesser penalties

 Tried in local court; judgement and punishment determined by magistrate
 Charged by a police or government officer
 Can incur good behaviour bond, fine, community service, maximum 2 years jail (5 if
more than one offence)

Indictable offences:

 More serious offences with greater penalties

 Tried in district court (or supreme); judgement determined by jury, punishment
determined by judge
 Charge brought by public prosecutor working for the state
 Can incur imprisonment or hefty fine

 Accused can have indictable heard as summary

o Time and cost effective, administrative advantages due to only one person
needing to be convinced of guilt instead of an entire jury

g) Parties to a crime

 Principal in the first degree – perpetrator, actually commits the crime

 Principal in the second degree – present at crime and assisted principal
 Accessory before the fact – helped principal before the crime (plan, carry out, etc.)
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 Accessory after the fact – helped principal after the crime

h) Factors affecting criminal behaviour

 Psychological factors – influenced by mental illnesses or after effects of drugs

 Social factors - Family, who you associate with
 Economic factors – Disadvantaged, low socioeconomic background
o 1/3 of men and 1/2 of women criminals are on welfare
 Genetic theories – More recent investigations to determine common genes, etc.
between criminals
 Political factors – Dislike for government, can lead to riots, public disorder and
terrorism
 Self-interest – Drug taking/cultivating; theft, white collar crimes driven by greed;
revenge

i) Crime prevention: situational and social

Situational

 Makes committing crimes more difficult by increasing associated risks/difficulties and

reducing rewards
o Eg. Colour tags
 Includes planning and architectural designs
o Eg. CCTV, alarms,bars
 Also includes a focused, situational approach that rests in rational choice theory, that
makes the potential offender second guess themselves, weigh the gains and risks
and costs, etc.
o Eg. Avoiding hotspots for crime like dark alleyways, non-smoking/drinking
zones with fines

Social

 Education for people, especially for those deemed likely to commit crimes
 Attempts to address underlying social factors that lead to criminal behaviour
o Poor home environment/parenting; addressed by disadvantaged parenting
workshops
o Social and economic disadvantage
o Poor school attendance; addressed by school/TAFE programs to give better
opportunities
o Early contact with police and other authorities
 Don Weatherburn, BOSCAR: What Causes Crime? 2001 Paper
o “…complex…risk and depth of criminal involvement is strongly influenced by
the quality of parenting”
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2. The criminal investigation process

a) Police powers
Role of police:

 Investigate crimes
 Make arrests
 Interrogate suspects
 Gather evidence

 Main issue: Balance the extent of power police have, and the rights of citizens

o Terror laws involve giving police more power (changing minimum age of
arrest from 16 to 14 for terror-related crimes)
 Counter-Terrorism Legislation Amendment Bill 2015 – Lapsed in
prorogation in April 2016, effectiveness yet to be seen, but media
scrutiny has raised concerns
o SMH: Terror-related evidence could be kept from ‘control-order suspects)
o ABC 2015: Anti-terror laws: Control order plan takes us closer to a police state
 NSW Police Force given powers under the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW), the main powers include:
o Detain and question suspects
o Search and seize property
o Use reasonable force
o Use technologies to assist (phone taps, DNA)
o Arrest and interrogate suspects
o Recommend whether bail should be granted
 Occasionally given extra powers in specific area for specific threats
 Also overseen by NSW Ombudsman and the Police Integrity Commission
 Complaint procedures available to citizens and suspects

Police required to:

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 Seek warrants for particular powers

 Follow code of conduct for investigation: Code of Practice for CRIME (custody, rights,
investigation, management and evidence)
 Treat all equally regardless of age, sex, religion, background or crime

b) Reporting crime

 Citizens play role of reporting crime

 Community programs encourage public to report information about criminal activity
o Crimestoppers allows people to remain anonymous when reporting
information for unknown crimes and suspicious activity
 People may be hesitant to report crimes due to:
o Reluctance to become involved
o Fear of consequences of reporting
o Inability to report
o Dispute has been settled with offender, eg. Through a brawl/theft by known
person
o Perceived time or administrative burden of reporting crime

c) Investigating crime

 When police receive crime information, they decide if it’s worth pursuing
o May not investigate due to not enough time, resources, etc.
 Must first determine whether a crime occurred or not
 Not all crimes are fully investigated
 Process is long: Involves establishing whether crime occurred, finding the offender,
gathering evidence, etc.
 Gathering evidence, use of technology, search and seizure, use of warrants
 Use of Technology
o LEPRA 02
o Evidence Act 1995 (NSW)
o Surveillance Devices Act 2007 (NSW)
 R v Silva (2015) – surveillance found excessive self defence,
manslaughter instead of murder
o Crimes (Forensic Procedures) Act 2000 (NSW)
 ABC Lateline ‘CSI Effect questions forensic evidence’ May 2012: – Expert
evidence or junk science? That's the question being asked after a series of
high profile appeals in recent months. They've raised alarming doubts about
the use of untested evidence that can put innocent people behind bars. –
It's called the CSI
 R v Gillham (2009) and (2012) – Appealed wrongful murder conviction in
1993; acquitted in 2012 by Court of Criminal Appeal
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d) Arrest and charge, summons, warrants

Arrests/warrants

 Police cannot detain without good reason, reasonable suspicion

 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) includes:
o Catching a suspect committing an offence
o Believing on reasonable grounds that a suspect has committed or is about to
commit an offence
o Where that person has committed a serious indictable offence for which they
have not been tried
o Possessing a warrant for that person’s arrest
 Court warrant can be issued to police to arrest someone for the crime that they are
investigating and bring that person before the court
o These court warrants provide judicial safeguard for ordinary citizens against
misuse of police power (eg. Arresting too early in the process, excessive
force)
 Police must state to person that they’re under arrest and why, and can use the force
that’s necessary to arrest a person, like shooting (police must state that they have a
weapon and are willing to use it)

Summons:

 Summons: A court document calling someone to appear in court at a certain date

 Subpoena: A court document calling someone to present evidence or testify in
court

e) Bail or remand

 Bail: Temporary release of accused person awaiting trial, sometimes on particular

conditions (lodgement, sum of money as guarantee)
 Remand: Period spent in custody awaiting trial
 Subject of controversy and law reform
o Bail Act 2013 and its revisions
o Cases showing downfalls of Bail Act
 Sydney Siege
 R v Fesus
 Father of 12-year-old daughter bride granted bail
 Alleged Sydney airport killer Mahmoud Hawi granted bail
 Edmodo pictures

f) Detention and interrogation, rights of suspects

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 Law Enforcement (Powers and Responsibilities) Act 2002 sets lawful conditions for
suspect’s detainment
o Police can only detain for 4 hours, excluding rest breaks (8 with warrant)
before either charging or unconditionally releasing the suspect
 As soon as suspect is in custody, interrogating may commence and a caution must be
issued orally and in writing to inform suspect of rights
o eg. Maximum detention period, don’t have to say or do anything but
anything you say or do can be used in evidence
o Suspects <18 have right to a responsible parent/guardian, however if the
person lies that they’re >18, their evidence is admissible in court
 Interview recorded on video and two audiotapes, for police records and for
defendant
 If charged at the end of the detention period, police must either release or bring
them before a magistrate or authorised officer. Those kept in custody will be
brought before the court for a bail hearing
o Exception is Terrorism (Police Powers) Act 2002 (NSW), police can make
application to Supreme Court to detain for 14 days if there is a terrorism
threat

3. Criminal trial process

 Nicholas Cowdery (former NSW DPP): SMH 2013 ‘Thomas Kelly: This was never a
case of murder’
o “Sentencing requires judgement…balancing considerations that point in
different directions…we seek to ensure that the best people for the job are
appointed as judges…if they get it wrong, the Court of Criminal Appeal may
correct them…the person in the best position to know if the sentence
imposed upon Loveridge is the right sentence is the sentencing judge. He has
read all the relevant material. He knows the law.”

a) Court jurisdiction

 Appropriate court depends on:

o Seriousness/nature of offence
o First hearing/appeal
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o Age of accused
o Type of hearing
o Whether offence under state or federal law
 Offence under NSW law = NSW court
 Commonwealth law case prosecuted by Cth DPP in courts of state where offence
occurred
 Judiciary Act 1903 (Cth) gives states power to hear federal cases
 Original jurisdiction: Authority for a court to hear a matter for the first time
 Appellate jurisdiction: Authority for a court to review matters from another court
 Higher court can review case in lower court, but not vice versa
o Anything can be appealed all the way to the High Court
 R v Tang (2008) appealed to High by DPP following retrial
 Court hierarchy:
o High court > Federal Court > Court of Criminal Appeal > Supreme Court >
District Court > Local/Children’s/Coroners’ Court

b) The adversary system

 Two-sided structure - opposing sides present their position to impartial judge + jury
that determine truth
 Another system is inquisitorial: judges play a role in investigating (used in Australia
for coronial inquests)
o Some believe adversary is fairer than inquisitorial as it allows both sides to
present their argument and is less prone to bias by those that determine the
case (judge less influential on case/jury, acts as referee)
 On the contrary, some say opposing sides are not equal in resources, skills or
knowledge
o Eg. in criminal cases, state (prosecutor) can have advantage over a lone
defendant who may only be able to afford a lower-tier lawyer; rich defendant
can spend what they like, state runs on budget
 Jury system criticised as some say technical cases can be misunderstood due to lack
of understanding

c) Legal personnel

 Judges: Oversee proceedings, maintain order, ensure correct procedures are

followed, instruct and help jury understand, hand down rulings and sentences
 Magistrates: Preside over Local Court (or a specialised magistrate in Children’s
Court), hear cases in Local Court and decide verdict/sentence
 Police prosecutors: Investigate case, give testimony at trial for prosecution’s case,
especially in summary cases in Local/Children’s Court
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 Public Prosecutors: DPP conducts some committal hearings for indictable offences,
prosecutes serious offences on behalf of NSW Govt. using evidence gathered by
police
 Solicitors: Gives accused legal advice on case, usually specialise in law type, may
represent accused in court or employ/engage a barrister to do so perhaps in higher
court
 Public defenders: Public barristers independent of government, for legal aid

d) Pleas, charge negotiation

 Accused before trial required to enter into plea to judge; formal statement of guilt
o No plea = not guilty
 Guilty plea dealt with quickly, sentencing immediately and without witness
testimony
 Not guilty plea results in case being defended in court, date will be set, before which
accused is either on bail or remand
o If found guilty, may affect sentence
 Charge negotiation: Agreement between DPP and accused to plead guilty to a lesser
charge in exchange for other higher charges being withdrawn
 Plea negotiation: Accused pleads guilty in exchange for a lesser sentence, faster and
cheaper process
o Is not a guarantee, as a judge determines whether or not it gets taken into
account
 Top judge outraged by plea bargain deals – SMH (2011)

 Advantages:
o Efficient, quick, inexpensive
o Can save participants/community from unnecessary pain/expense
o Protect witnessed from cross-examination, ordeal of giving evidence
o Increases rate of criminal convictions
o Conviction on lesser charge better than no conviction
 Disadvantages:
o Pressure on accused to plead guilty, even if they are innocent
o May get lighter sentence than deserved, or go unpunished altogether
o Doesn’t demonstrate idea of justice
o May lead to bullying of manipulation of accused to forfeit their right to a trial
o Prosecutors may threaten more serious charges to intimidate accused into
pleading guilty to the lesser charge

e) Legal representation, including legal aid

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 If there is no adequate legal representation, there cannot be a fair trial

 High Court ruling ‘Dietrich v The Queen (1992)’ made for the first time the right to
representation was limited
 Access crucial for fair, equal legal system
 Most defendants able to afford barrister/solicitor to advise, some not, but quality
varies
 Self-representation is not advised, especially in criminal matters, as people may not
understand legal complexities
 Not everyone can afford
o NSW Govt. created Legal Aid Commission in 1979 for
disadvantaged/marginalised to have equal access to the law
 Subject to means test to determine ability to pay for legal rep.
 Not able to cover all matters, representation not free despite free
legal advice sessions, may be unable to access assistance due to
limited funding

f) Burden and standard of proof

 Central concept of legal system: ‘innocent until proven guilty’

 Burden of proof belongs to prosecution
 Prosecution/plaintiff must also meet standard of proof
o Criminal: Beyond reasonable doubt (‘101%’)
o Civil: Balance of probabilities (‘51%’)
 Consequences of criminal case higher than civil, hence higher standard
 DPP will not bring a case to the courts unless they feel a jury will be convinced by
evidence
o Trials cost time, money etc. so case must be winnable

g) Use of evidence, including witnesses

 Bound by Evidence Act 1995 (NSW)

 Evidence inadmissible if obtained illegally, irrelevant, or indirect evidence
 Can take form of real (physical) evidence, documentary evidence and witness
testimony
 Witness with knowledge of crime may be subpoenaed or face charge of contempt of
court
 Witnessed take oath to tell truth (or else face perjury), and be asked series of
questions usually by both prosecution and defence
 Expert witnesses have studied some element of evidence (eg. DNA, blood spatter,
handwriting, psychiatrist or anyone that’s assessed defendant) as an independent
expert during investigation, and give testimony based on specialised knowledge and
present opinion/interpretation of evidence)
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 R v Wood (2012):
o Shows potential shortcomings in expert testimonies
o Convicted of 1995 murder of girlfriend
o Expert witness testified Wood could have caused death by throwing body off
The Gap at Watson Bay
o Conviction overturned by Court of Criminal Appeal, as testimony was flawed
and there was reasonable doubt about scientific proof leading to death

h) Defences to criminal charges: Complete defences, partial defences to

murder

 Defendant must have legal defences

 Most defences involve some denial, justification or excuse of the act
 Majority revolve around mens rea of offence
 These help achieve justice to enforce rights of offender to defend themselves; allows
court to consider circumstances that might justify accused’s act or reduce culpability
 In some circumstances, they permit reduced liability (eg. mental illness)
 Complete defences – result in complete acquittal
o Mental illness/insanity (R v Ayoub 1984(?))
 Mental Health (Criminal Procedure) Act 1990
o Involuntary behaviour/automatism (R v Falconer 1990) (battered wife killed
husband apparently blankly, involuntary due to unsound mind affected by
external psychological factors)
 SMH 2006: I’m glad it’s over: Robber’s killer freed
 Mental Health (Criminal Procedure) Act 1990
o Mistake/lack of intention
o Self-defence/necessity (R v Zecevic 1987)
o Duress (R v Williamson 1972)
o Consent (R v Lloyd 1989, R v Aitken and others 1992 (UK), R v Hemsley 1988,
R v Donovan 1934)
 Partial defences – result in reduced culpability/sentence
o Provocation (R v Camplin 1978)
o Diminished responsibility – homicides, prove suffering from mental
abnormality that does not include being under the influence (Viro v The
Queen)
o Infanticide – mother killing baby under 12 months; post-natal depression
(The Age (VIC) – “Mother who killed baby daughter walks free”)

i) The role of juries, including verdicts

 Juries reflect historic right of accused to be judged impartially by peers using

evidence
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 NSW: Juries used for most indictable offences where ‘not guilty’ plea is entered
(District/Supreme)
 12 people (for criminal) selected at random from electoral roll 18 and over, sworn in
o Difficult to gain exemption unless generally 65+, pregnant or full time child
carer
o Ineligible: Non-English speakers, emergency service workers, disabled people,
convicted criminals, members of legal profession
 Jury Act 1977 (NSW)
 Challenging jurors: Prosecution and defence have right to challenge either panel or
individual jurors
o Pre-emptory challenges: Legal team rejects juror without needing to provide
reason
o Challenges for cause: Legal team rejects juror because they believe juror will
be prejudiced
 Must listen to evidence (be attentive, take notes if desired), apply law as directed by
judge and decide verdict
o Can ask for clarification from judge
 Can only talk to fellow jurors
 Jury elects foreperson who speaks on jury’s behalf
 Must be impartial and unbiased, make judgement based solely on evidence, not
influenced by media or personal beliefs
 SMH article: “‘Beyond Reasonable Doubt’ Baffles Jurors”, which outlines a 2008 study
conducted by the NSW Bureau of Statistics on jurors’ understanding of the trial process.
While 94.9% of jurors said they understood all or most of a judge's instructions, only
55.4% understood the true meaning of ‘beyond reasonable doubt’.
 Misunderstanding can lead to jury misconduct, as seen in the case R v Bilal Skaf,
Mohammed Skaf (2004), where a serious aggravated sexual assault case was appealed
and re-trialled, wasting resources and placing those involved under more strain; all due
to two jury members investigating the lighting at the scene of the crime. As their
decisions could have been influenced by evidence not brought into and examined in
trial, a re-trial was scheduled.
 Verdicts: Must reach verdict of not guilty (acquitted) or guilty (judge passes sentence)
o Can deliberate for days; hung jury can occur, retrial occurs
 Increases time, money, strain on all parties
o May be complications in reaching a unanimous verdict due to misunderstanding,
rogue or unreasonable jurors. In response to this issue, the Jury Amendment
(Verdicts) Act 2006 (NSW) was legislated to allow juries to arrive at majority
decisions (11-1 or 10-1) instead of being forced to arrive at a unanimous decision
(except for Commonwealth offences).
 This change decreased the amount of hung juries, which usually result in
a re-trial. Also keeps large majority
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 However, there is technically still some reasonable doubt that can be

ignored; can be seen as violating central concept of legal system
 ABC: ‘Simon Gittany and the case for judge-only trials’

4. Sentencing and punishment

a) Statutory and judicial guidelines

 Crimes (Sentencing Procedure) Act 1999 (NSW) sets out purpose for which a
sentence may be imposed, types of penalties that can be imposed when they can be
used, as well as other factors/guidelines
 Max penalty for offence decided by Parliament and listed in legislation; differ
according to seriousness of crime (eg. murder = life, sexual assault = 14 years)
 Lesser penalties available to judges; judicial discretion used
o Eg. Prison can only be imposed unless no other sentence us appropriate
 Judges can be guided by former judgements in cases
o May also be cited by prosecution or defendant
 Law allows for NSW Attorney-General to apply for guideline judgements on
sentencing

 Mandatory minimum sentencing: Parliament sets minimum sentence for crime

o Eg. NSW Govt. recently trying to introduce MM sentencing for murder of
police officer – some argued unnecessary as there was already a max non-
parole period of 25 years
 Mandatory minimum sentences are a legal and judicial muddle – The
Age, 2014
o R v McNeil (2015) – case regarding one punch laws, death of Daniel Christie
o Mandatory sentencing: a king hit for courts – ABC 2014
o Overrides judicial discretion at cost of attempting to create consistency,
harsh deterrent for repeat offenders
 Doesn’t take into account mitigating circumstances: not equitable,
doesn’t protect rights of the accused
 Violation of separation of powers
o Sparsely effective

b) The purposes of punishment

 Deterrence:
o Specific: Prevent convicted person from reoffending
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o General: Discourage people to commit particular offences (make penalties

aware)
 Retribution:
o Offender given just penalty so that there is no benefit from crime
o Can be considered ‘revenge’ to victim, public
 Rehabilitation:
o Type of punishment chosen to help reduce/eliminate criminal behaviour of
offender, help in integrating back into society
 Incapacitation:
o Offender prevented from reoffending through imprisonment
o Protects society from harm, protects accused from self-harm
 Crimes (Sentencing procedure) Act 1999 (NSW):
o Lays down allowable purposes of sentencing
o Sets general guidelines for courts to use in sentencing

c) Factors affecting a sentencing decision

 As per C(SP)A 1999 (NSW):

 Aggravating factors
o If victim is police officer
o Affected by drugs
o Abuse of trust/authority/vulnerability
o Actual/threatened use of weapon/violence
o Committed in company
 Mitigating factors
o Under duress
o Provoked
o Not planned/part of organised crime
o If harm/loss/damage is not substantial
o If offender shows remorse/good rehabilitation concepts
o Pled guilty/complied with police

d) The role of the victim in sentencing

 Victim Rights Act 1996 (NSW)

 Victim Impact Statement – written statement by victim/family about crime’s impact
o Equity in process – parallel to mitigating circumstances helping offender’s
case
o Can still have impact – detracts on objective facts, victim is heard
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 R v Stanford (2016), mother’s impact statement a factor that led to

life without parole, made rounds on Daily Tele, etc., Sky News
Australia “Stephanie Scott killer jailed for life”
 Challenge in balancing offender and victim: SMH 2013 Nicholas Cowdery in ‘Thomas
Kelly: This was never a case of murder’
o “the courts are not there to translate their grief and pain into an unjust
sentence. They must act according to the law…”
 Crimes (Sentencing Procedure) Amendment (Family Victim Impact Statement) Act
2014 amended Crimes (Sentencing Procedure) Act 1999; judges can now take
account of family’s victim impact statements when sentencing, ensures no
inferences can be made that in absence of one, the crime had little impact on the
family

e) Appeals

 Appeals can be made by appellant/applicant: person convicted or by the Crown/DPP

if they believe sentence is too lenient
 Two types:
o Appeal against conviction
o Appellant argues they didn’t commit the offence (usually involves argument
in error of handling of case)
 Sentence appeals
o Appeals against severity/leniency of sentence
 Crimes (Appeal and Review) Act 2001 (NSW)
 Can appeal for legal error in Court of Criminal Appeal
o R v AEM (Snr); KEM; MM (2001) District Court and (2002) NSWCCA
 Teenage gang rape – sentenced to 6 years; led to public outcry and
DPP appeal; increased to maximum of 13 years, younger two serving
in an adult prison once they turn 19 and 20 respectively (before that,
in a Juvenile Justice Centre)
 Reform: Led to NSW Government amending the Crimes Act 1900
(NSW) with the Crimes Amendment (Aggravated Sexual Assault in
Company) Act 2001 (NSW). This amendment inserted a new section
(61JA), so that judges could impose longer sentences (increase from
20 year maximum, to liable to imprisonment for life)
 When only silence can be justified – SMH, 2002
 Critical of DPPs and Cowdery speaking out against media and
political denouncers of judges and DPP, but not this time, due
to public pressure

f) Types of penalties
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 Caution
 Criminal infringement notice
 Fines
 Forfeiture of assets
 Bond
 Probation
 Suspended sentence
 Community service orders
 Imprisonment
 Home detention
 Intensive correction order
 Diversionary programs

g) Alternative methods of sentencing

 Circle sentencing – relatively effective

o Directly involves Indigenous offenders, more likely to be trusted, reduce
recidivism
o Understanding between Indigenous communities and courts
o More improvements needed in areas of participation and support services
 Restorative justice – reasonably effective in tandem with existing processes, not
replacing
o Voluntary conference between offender and victim of crime, to reduce
reconviction and increase equality, fairness and access while being efficient
o Although their effectiveness is unclear, Australian studies based on youth
conferencing initiatives have shown a 15-20% reduction in re-offending is
possible
o Limited scope hampers expansion – usually only for minor or youth crime

h) Post sentencing considerations

 Security classification:
o Maximum, medium and minimum classification of security/freedom
o Offenders classified according to seriousness of crime, prospects of
rehabilitation and whether or not they displayed good behaviour during
previous sentences
 Protective custody:
o Provided to offenders vulnerable to attack from other prisoners
o Purpose of sentencing to isolate from community to incapacitate, etc., not to
subject them to physical harm and inhumane conditions
 Parole:
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o Conditional release of a prisoner from custody after minimum term of

sentence
o Incentive for rehabilitation, increase likelihood for offender reform/better
discipline
o Released offender placed under direct supervision of parole officer, who
offender reports to and is seen to comply with their parole conditions
 Preventative and continued detention:
o Imprisonment for potential harm to community
o Post-sentence preventive detention: person serves under sentence
o Preventative detention without charge: any time, can infringe on rights of
individuals, esp. legal right to due process
o Kable v DPP (1996)
 After release and election campaign of law and order, law was passed
naming him explicitly, requiring him serve preventative detention for
six months
 The Community Protection Act 1994 was an invalid law because it
vested the Supreme Court of New South Wales with powers
incompatible with its role in the federal judicial structure
o Crimes (Sex Offender) Act 2006 (NSW); continued detention for serious
sexual offenders if application by Governor-General is accepted
o Purpose: safety of community, facilitate rehabilitation
 Sexual offenders’ registration
o State/federal databases of offenders of certain sexual offences
o Established under Child Protection (Offenders Registration) Act 2000 (NSW)
o Required to register whichever is later out of when person is sentenced; or
when person ceases to be in government custody in relation to offence
o Adults – minimum of 8 years, juvenile – 4 years
o Can protect community; however, can target certain offenders long after
sentence, which denies rehabilitation, however severity of original crime +
risk of reoffending outweighs burden that the registry requirements impose
on the offender
 Deportation
o Migrant Act 1958 (Cth) – non-citizen migrant can be deported if convicted of
criminal offence (sentence of 12 or more months within 10 years of
residence)
o Highly publicised due to severity
o Controversial – appear to treat a person as a problem solved by moving it
elsewhere, but with no follow-up or support
 No support in rehabilitation, as they can be moved to a country they
know nothing about
Matthew Mangiapane

o If offender constitutes a threat to Australian security or convicted of a serious

offence as well as deported, they may be prohibited from returning to
Australia
o Robert Jovicic: The stateless man
 Migrated to Australia at 2 years old, never became full citizen like
many permanent residents
 Addiction to heroin led to being charged with crimes
 Migration Act 1958 (Cth) led to his residency being cancelled,
deported to Serbia
 Knew nothing of language and no working visa = stateless
 Became homeless and ill, garnered media attention
 Eventually given special purpose visa and then permanent residency
visa to come back after much conjecture

5. Young offenders
a) Age of criminal responsibility

 Law treats children differently, however are subject to same laws

 <10 – too young to form mens rea, therefore doli incapax applies
o As per the Children (Criminal Proceedings) Act 1987 (NSW)
o Generally also don’t give evidence, however there is no restriction
 10-14: Conditional/rebuttable presumption of doli incapax, that child can’t form
criminal intent; prosecution can rebut about existence of criminal intent/mens rea
 >14: Criminally responsible for any offence, can commit actus reus and mens rea;
however no conviction can be recorded unless offence is serious
 >18: Fully responsible, no longer has cases heard in Children’s Court

The age of criminal responsibility in NSW

Age (inclusive) Criminal responsibility
0 – 9 years old Cannot be charged with a criminal offence. Children under 10 are not seen
as mature enough to commit criminal offences
10 – 13 years old Rebuttable presumption of doli incapax. Presumed not capable of
committing an offence, but prosecution may show the child knew what they
did was ‘seriously wrong’ and not just ‘naughty’.
14 – 15 years old Criminally responsible for any offence committed, but no conviction can be
Matthew Mangiapane

recorded unless it is a serious offence

16 – 17 years old Criminally responsible for any offence committed and a conviction may be
recorded, but the case will still be heard in the Children’s Court
18 years or older Full adult criminal responsibility, with case to be heard in adult courts. If the
offence was committed before the accused’s 18th birthday, it can still be
heard in the Children’s Court until the accused turns 21.
 Case: R v LMW (1999)
o 10y/o charged with manslaughter
o Dropped 6y/o in river with knowledge he couldn’t swim
o Not guilty of manslaughter, jury ruled it as an act of bullying gone wrong
o Raised issue of doli incapax, any child 10-14 incapable of mens rea unless
proven otherwise
 Article: Austlii 2003 Thomas Crofts: Doli Incapax: Why Children Deserve its
Protection
o “A child of 12 in Australia has access to television, radio and the Internet, and
has a far greater understanding of the world than a 12-year-old in rural
Britain in 1769.”
o “It cannot be denied that children today make much greater use of modern
technology than in earlier years. However, this does not simply equate with a
better ability to understand the wrongfulness of actions.”
 SMH 2012: Age of criminal consent: 16 or 8
o BOCSAR: “In 2010, more than 450 children under 14 were charged with
criminal offences in NSW”
o Daryl (Wentworth home owner): “Jail is not the answer, but allowing these
kids back on the streets to reoffend is not either. How many chances to
rehabilitate do these kids get?”
o Thomas Croft: “bringing a 10-year-old before the court would do ''more harm
than good''
o Mayor of Wentworth: “Eight and below”
o UN High Commissioner of HR: 12 should be “absolute minimum”

b) The rights of children when questioned or arrested

 Recognised need for children and young people to have special protections with
regards to the law that are not afforded to adults
o In line with UN’s Conventions on the Rights of the Child
 ARLC enquiry in 1997: Seen and Heard: Young People and the Legal Process
o Standardising minimum age of criminal responsibility (achieved in 2000)
o Standardising national standards through legislation or policy for juvenile
justice covering investigation and arrest, bail conditions, sentencing and
detention
Matthew Mangiapane

o Survey: 78% of young people surveyed stated that police rarely treat young
people with sufficient respect – room for improvement in relationship
 Police powers, and those regarding children, are governed by the Law Enforcement
(Powers and Responsibilities) Act 2002 (NSW)

Questioning of young people

 Most powers apply equally to adults and children (eg. ask a person to ‘move on’,
approach and ask questions, most powers of search and seizure)
 Police can ask for name, address and proof of identity and vice versa
o Under the Summary Offences Act 1988 (NSW) an offence can be committed if
details are not given in the case of a person suspected by the police of being
under 18 carrying or consuming alcohol
 Police may ask questions, but person can exercise right to silence even under arrest
as what they say can be used against evidence, and often obtain independent legal
advice first
o Children (Criminal Proceedings) Act 1987 (NSW) states that any information or
statement a young person gives to police must be given with a responsible, separate
adult present, otherwise the evidence is inadmissible (unless judicial officer admits
it)
 Police cannot perform strip search on children under 10, and between 10-18 another
responsible adult must be present

Arrest and interrogation of young people

 Conditions under which a young person can be arrested are the same as those for
adults
o Police know or believe on reasonable grounds that person has committed or
is about to commit an offence
o Cannot use excessive force
 No interview can be conducted unless support person (parent, guardian, solicitor
etc.) is present
o R v Phung (2001) – upon realisation Phung was 17, detective would not speak
to him until adult present (in the form of his cousin)
 Cousin spoke in their own language, and later English at police
request
 Admissions made by accused were inadmissible
 No current requirement for legal representation during an interview, but is being
suggested. Custody manager’s duty also involves telling young person that Legal Aid
Hotline is available and can ring it
 Caution of rights applicable to both children and adults – however criticism of this
has been that children may not understand technical language and therefore cannot
Matthew Mangiapane

truly acknowledge that they understand the caution given (pertaining to right to
silence)
 Can be detained maximum of four hours, further 8 hours if warrant for extension is
granted
o Recommended that detention be no longer than 2 hours, as vulnerability is
increased with longer time periods. Presence of interview friend may help
prevent evidence being obtained under duress
 Young people 14 years and over may take fingerprints/photos for identification
purposes, but for under 14s, they must apply to the Children’s Court to do so, who
will take into consideration offence severity, cultural considerations and the best
wishes of the child.
o Cannot take DNA sample of any suspect under 18 unless court order allows it;
and if the criminal matter is not proven in court, any fingerprints/photos/DNA
samples must be destroyed on parent/guardian’s request

c) Children’s Court – procedures and operation

 Established under Children’s Court Act 1987 (NSW)

 Hears any offence other than a serious indictable offence committed by a child, and
any committal proceedings of an indictable offence when the accused is a child (can
be referred to by Department of Community Services)
 Should show regard towards:
o Children have equal rights to adults; should be involved in proceedings
affecting them
o Should be held responsible for actions, but require guidance/assistance
o Education and residence at home should not be interfered with
 NSW Commission for Children and Young People:
o In an average day, 165 children were in sentenced detention
o Male children 14x more likely to be in sentenced detention
o 15-17 year olds 13.3x more likely than 10-14s
o Aboriginal children 26.7x more likely
o Positively, out of all children appearing before criminal court, 1% resulted in
detention as principal penalty
 Differences in trial formalities with ordinary courts:
o Matter heard summarily before a single magistrate
o Closed court to protect identity, media cannot publish names of living
children without court permission
o Focus on ensuring child understands proceedings, and child’s participation in
case
o Available penalties/sentencing procedures differ from ordinary court
Matthew Mangiapane

 Need to consider main trial and sentencing principles under s 6 of the

Children’s (Criminal Proceedings) Act 1987 (NSW)
 In its jurisdiction, can decide that a child requires a clinical assessment and
submission of such to the court
o Generally performed by NSW Juvenile Justice, but more recently via clinic
o Aim to determine if there are ‘specific psychological, psycho-social or mental
health issues’ present in the child’s situation that the court needs to consider
prior to passing a sentence.
 Case: Police v JM
o Maximum penalty for control order up to 2 years applied due to repeat
offending, and his proximity to 18 years of age (“considerations relevant to…
youth diminishes the closer the offender approaches the age of maturity…
cannot expect to be treated substantially differently)
 Australia’s Children’s Courts: The findings of a ‘National Assessment’ (Monash)
o One identified limitation was the inability to capture the voices the court’s
clients
o Children’s Courts have growing, increasingly complex workloads, need for
additional Legal Aid allocations (esp. for non-city areas)
o Proposed a shift away from critical incident-based, antagonistic and
confrontational approach of common law adversarialism in dealing with child
welfare cases for more collaborative/therapeutic approach

d) Penalties for children

 Children (Criminal Proceedings) Act 1987 (NSW) outlines principles for sentencing
process:
o Penalty must not exceed an adult’s for same offence
o Children assisted reintegration into community
o Children accept responsibility and make reparations where possible
o Subject to other principles, consideration given to effect on victim
 Juvenile Justice Centres:
o Relate to control orders, most severe sentence; up to 2 years
o Managed by NSW Juvenile Justice, overseen by Children (Detention Centres)
Act 1987 (NSW)
o Provide safe, humane, secure environment for young offenders; as well as
educational recreational facilities
o Too many end up in juvenile; bad as incarceration is detrimental to
rehabilitation
 Tougher bail conditions lead to rise in juveniles on remand
 Article: ‘Smith considering bail changes to cut remand numbers’ (SMH
2012)
Matthew Mangiapane

 NSW has the largest number of prisoners on remand in

Australia (2500 in 2009 compared to <1000 in other states)
 ''The fundamental notion of justice is that a person is innocent
until proven guilty,''
o Not the most resource efficient
 Sentencing options:
o Dismissal – charge dismissed, may issue caution
o Conviction – for >16s, only recorded conviction
o Adjournment – deferred for up to 12 months to assess rehab potential
o Bond – maximum of two years, with possible fine, court sanctioned
conditions
o Youth justice conference – release subject to compliance with YJC outcome
plan
o Fine – up to 10 penalty points ($1100) as court sees fit (regarding
circumstances)
o Probation – bond overseen by officer of NSW Juvenile Justice
o Community service order – up to 100 hours for <16s, 250 hours otherwise;
pending assessment of suitability for order
o Suspended control order – suspended for up to 2 years, pending behaviour
o Control order – Detention in juvenile detention for maximum 2 years
 Sentencing considerations:
o Social/economic factors (eg. ability to pay fine)
o Severity of offence
o How rehab is affected
o Repeat offenders/if child acts with grave adult behaviour indicated by
seriousness of offence and/or level of premeditation involved
 R v Pham + Ly (1991)
 Rehabilitation influence does not mitigate the need for
protective aspect of court, general deterrence needed for
robbery due to its prevalence in youth crimes
 Deterrence and retribution do not cease to be important,
hence 12 months in remand being ‘inadequate’

e) Alternatives to court

 Primary diversionary program provided by Young Offenders Act 1997 (NSW)

o Encourage rehabilitation, reduce rate of recidivism, reduce burden on court
system of more minor youth offences
o Principles:
 Least restrictive sanction should be applied where possible
 Children should be informed of their right to seek legal advice
Matthew Mangiapane

 Criminal proceedings not to be started if there is an appropriate

alternative for dealing with matter
 Child Protection Legislation Amendment Act 2014
o Increase parental responsibility; permanency planning; increasing the use of
Alternative Dispute Resolution to reduce the time spent in court.

 Warnings
o Official notice given to young offender by investigating officer, without
conditions
o Relatively informal; but officer must tell offender nature, purpose and effect
of warning as well as keep a record of the warning
o Cannot be given for an act of violence, repeat offence or at discretion of
investigating officer
 Cautions
o Formal, recorded caution issued to young offender to discourage further
offending
o Alternative to prosecution, offender admits to the offence and consents to
receiving formal police caution
o Given or not based on seriousness of offence, degree of violence, harm
caused and number of offences committed
o Not a conviction; however, may be taken into account in the Children’s Court
o Offender must understand nature and effect of caution, and then sign
caution notice
o Specialist court officer must make a record of caution given by officer/court.
Investigating officer may also refer to specialist court officer to decide if
matter should instead be referred to youth justice conference
 Youth Justice Conference
o Measure to divert young offenders from the court system through a
conference that addresses the offender’s behaviour in a more holistic matter
o Used when young offender admits to offence and consents to having it dealt
with by this method
o Allows offender to take responsibility of actions, promote better family
understanding of issues and to provide offender with appropriate support
services
 Empowers families and victims un decisions about child’s offence and,
where suitable, make reparation to the victim
o Increase rights of victims in criminal justice process; ultimate aim is to make
decisions that respect the offender’s rights and take into account their needs
o Consists of offender, conference convenor, conference administrator
(ensures records of conference), investigating official, member of offender’s
Matthew Mangiapane

family, offender’s legal representative, another adult chosen by offender and

specialist youth officer
 Victim can also attend, as well as any support people of victim
 Range of people provides picture of child’s life and expertise and
experience to take holistic approach to finding solutions for behaviour
 Effectiveness
o Received well; embraces welfare model of juvenile justice, focus on rehab
over traditional means of dealing with crime
o One of the criticisms however, is that it’s not being used for a wide enough
range of offences, can exclude some young offenders from benefits
 Shopfront Youth Legal Centre in response to 2003 review of
sentencing of young offenders from NSWLRC argue that youth justice
conferencing would be suitable for even very serious offences as
offender obliged to consider consequences of actions, and harm
caused to victim

6. International crime
a) Categories of crime
Crimes against the international community

Piracy

 Any illegal acts of violence or detention, or any act of depredation committed for
private ends by crew or passengers of private ship/aircraft; directed against another
ship/aircraft, perhaps outside the jurisdiction of any state
 Sanction allows any affected state to bring pirates to justice
 Breach of jus cogens – norms of customary international law

War crimes

 Serious violations of the international humanitarian law of armed conflict (incl.

Hague and Geneva Conventions of lawful war and POW treatment)
 Must be; serious infringement of international rule protecting important values and
having grave consequences, violate important principle of international law/relevant
treaty, and violation must include individual criminal responsibility
 Inhumane treatment, targeting civilians, hostages etc.
 Prosecutor v Dusko Tadic (1999)

Crimes against humanity

 Particularly heinous offences, that are an attack on human dignity or grave

humiliation of a person(s)
Matthew Mangiapane

 Systematic atrocities committed under the authority of a government or condoned

by such a government
 Eg. large scale exterminations, enslavements, torture, discriminatory persecution
 Prosecution v Tihomir Blaskic
o International Criminal Tribunal for the former Yugoslavia indicted him on war
crimes (later acquitted, reducing sentence from 45 years prison to 9) and
crimes against humanity in Croat-Bosniak War during Bosnian War

Genocide

 United Nations Convention on Genocide (1948) defines it as the persecution of

national, ethnic, racial and religious group (not clearly defined)
 Bosnia and Herzegovina v Serbia and Montenegro (2007)

Aggression and crimes against peace

 Clear difficulties with the right to self-defence

Terrorism

 Difficulty in definition – terrorism or freedom fighter of national liberation?

 Intention to compel states to do or not do certain acts by terrorising or intimidating
the state’s population
o As per International Convention for the Suppression of Acts of Nuclear
Terrorism (2005), Financing of Terrorism (1999), Terrorist Bombing (1997),
Taking of Hostages (1979)

Transnational crime

Money laundering

 UN Convention Against Transnational Organised Crime (2000) commits countries to

take measures against participation in organised criminal groups, money laundering,
corruption and obstructing justice

People smuggling

 Organising of illegal entry into a state, of people who are not permanent residents or
citizens of the state
 Convention against Transnational Crime (2000) includes Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children requires
states to punish traffickers and protect victims
 International Convention of Slavery (1926) introduced by League of Nations, and
article 35 of the Convention on the Rights of the Child (forbids trafficking of children)
 Case: R v Wei Tang – first prosecutions made under slavery provisions of CCode
Matthew Mangiapane

o Highlighted serious problems in Aus. Enforcement campaign, issue of

protection visas and deportation
 Govt proposals made to fix this, effectiveness remains to be seen
 R v Chee Mei Wong 2013 NSW – 6 years jail under Criminal Code 1995 (Cth)
o Hired Malaysian brothel workers, unfair hours and treatment, she made the
girls believe they had incurred debt

Arms trafficking

 Protocol against the Illicit Manufacturing and Trafficking in Firearms, their Parts and
Components and Ammunition (2001) facilitates cooperation among states in order
to prevent and eradicate illicit manufacture of firearms

Drug trafficking

 Conventions made in an attempt to end the trade in illicit drugs and promote state
cooperation, through providing statistics and reports to the International Narcotics
Control Board
o Specifically directed against trafficking: Convention against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (1988)

b) Dealing with international crime*work on (Edmodo?)

Domestic measures

 Limited by jurisdiction – Australia cannot operate in foreign country

 Crimes against the international community
o Signing and ratification of Rome statute helped criminalise recognised
international crimes on top of other legislations
 Transnational Crimes
o AFP – enforcing and peacekeeping
o Commonwealth Attorney-General’s Department
o Australian Crime Commission (ACC)
o Customs and Border Protection Service
o Australian High Tech Crime Centre
 Coordinates all Australian law enforcement authorities in fighting serious types
of crimes that involve the use of technology by:
o Coordinating a national approach to serious, complex and multi-
jurisdictional crimes
o Assisting all Australian jurisdictions in their ability to deal with high-tech
crime.
Example
Matthew Mangiapane

http://www.smh.com.au/technology/technology-news/hightech-
criminals-outsmarting-the-law-20110308-1bltt.html

o State and territory bodies

 State and territory bodies have a cross-jurisdictional nature, that investigate
transnational crimes
 Share intelligence and cooperate with other national, state and territory
bodies in order to fight transnational crime

Example

<https://www.icac.nsw.gov.au/investigations/past-investigations>

The ICAC investigated allegations concerning alleged corrupt

payments related to the supply of catering and other products to the NSW
Rural Fire Service (RFS) between 2009 and 2015. The Commission examined,
amongst other matters, whether payments made by the RFS to catering
companies controlled by Scott Homsey were induced by representations
made by RFS employees (Arthur) John Hacking and Paul Springett, RFS
volunteer Darren Hacking, and Mr Homsey, which they knew to be false or
misleading, or by those persons concealing facts from the RFS that they had
a duty to disclose.

In its report on the investigation, made public on 17 December

2015, the Commission makes findings of serious corrupt conduct against
John Hacking, Scott Homsey and Gay Homsey. The Commission does not
make any findings of serious corrupt conduct in respect of Paul Springett or
Darren Hacking.

The Commission is of the opinion that consideration should be given

to obtaining the advice of the Director of Public Prosecutions with respect to
the prosecution of John Hacking, Mr Homsey and Mrs Homsey for various
offences.

The ICAC also makes four corruption prevention recommendations

to the Rural Fire Service to help prevent the recurrence of the conduct
exposed in this investigation in the future.

Mutual Assistance in Criminal Matters Act 1987 (Cwlth) regulates assistance to foreign
countries in criminal matters

o Attorney general can refuse request by foreign country for assistance if:
o Offence is political
o Purpose is discriminatory
o Request would prejudice Australian sovereignty or national security
o Offence not recognised by Australia
Matthew Mangiapane

o If conviction may result in death penalty, unless ‘special circumstances are

recognised’

Piracy

 Dealt with under Crimes Act 1914 (Cwlth), punishable by imprisonment for life
o Offence to operate a private controlled ship/aircraft and any member of
police/armed forces may seize if they believe pirates have taken over
 Crimes (Ships and Fixed Platforms) Act 1992 (Cwlth) sets out offences of seizing ships
and endangering a ship/threatening to do so
 Crimes at Sea Act 2000 (Cwlth) applies state criminal laws considerably beyond
Australia’s territorial waters (normally 22.2km from coast)

War crimes

 War Crimes Act 1945 (Cwlth) as a result of WW2

Crimes against humanity, genocide and torture

 Criminal Code 1995 (Cwlth) makes these offences

o Also Crimes (Torture) Act 1988 (Cwlth) ratifies UN Convention on Torture
(1984)
o Extends to terrorism

International measures

 Crimes against the international community

o ICC
 Established by a treaty
 First conviction in 2012 of Thomas Lubanga Dylio for war crimes, 14
years
 21st March 2016 – Jean-Pierre Bemba Gombo convicted of 3 counts of
war crimes (murder, rape, pillaging) and 2 counts of crimes against
humanity (murder and rape) – sentences yet to be delivered
o Ad hoc tribunals
 International Criminal Tribunal for Rwanda (ICTR)
 International Criminal Tribunal for the former Yugoslavia (ICTY)
 Established in 1993 by the UN Security Council to investigate
and prosecute individuals for war crimes, crimes against
humanity and genocide committed during the Yugoslav
conflict in the 1990s.
o Extradition
Matthew Mangiapane

 Generally governed by a series of bilateral agreements with other

countries. Australia currently has extradition agreements with about
130 countries.

 Transnational crimes
o International Criminal Police Organization (INTERPOL); resolve crime,
INTERPOL currently lists its six priority crime areas as:
 Drugs and criminal organisations
 Public safety and terrorism
 Financial and high-tech crime
 Trafficking in human beings
 Fugitives
 Corruption
o The United Nations Convention against Transnational Organized Crime
Regarded as the main international instrument in the fight against
transnational organised crime. It began operation in 2000 and has three
protocols that countries become a party to once they sign the convention.
These are:
 Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children
 Protocol against the Smuggling of Migrants by Land, Air and Sea
 Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, Their Parts and Components and Ammunition.
o Pacific Transnational Crime Network (PTCN)
 Formed in July 2002 as a response to increases in regional
transnational crime.
 Initiative of the AFP, who realised that strong relationships were
needed between Australia and its Pacific neighbours if they were to
combat the problem of transnational crime.
 Effectiveness:
o Dependent on cooperation of states; some states may have resources to fight
transnational crime, others may not (and are breeding grounds for such
crimes)
o Relative enforcement of PTCN, but resources are dwindling

o Ad hoc tribunals extremely resource-inefficient, eventually run their course

while other matters dealt with by ICC
o A permanent court such as the ICC is symbolically very powerful, and sends a
message that leaders or other criminals can no longer hide behind immunity
in their own state when they have committed appalling acts. Also, the threat
Matthew Mangiapane

of later prosecution may act as a deterrent, stopping rogue leaders using any
such tactics. It also offers enormous support to victims of the crimes by
attempting to bring to justice those responsible for these atrocities. The
ability of the ICC to deal with these issues is, however, questionable; as it
cannot stop atrocities before they occur, and can only punish executors