AREA OF STUDY 2

The criminal lawPART 2

In this part you will learn about:

• the principles of criminal liability, crimes and defences

• the criminal investigation process and criminal sanctions

• trends in crime, sentencing and recidivism

• impacts of crime and victims’ compensation.

2.1 Principles of criminal liability

•A crime is an offence against society which is punishable by law.

•Crime is associated with immoral, offensive or injurious conduct that is detrimental to individuals and society.

• In a criminal case, a person is presumed innocent until they are proved to be guilty – this is called the presumption of innocence.

• The burden of proof rests with the prosecution (the state) to prove to a court that the accused person is guilty.

• The standard of proof in criminal matters requires the prosecution to prove their case against the accused beyond reasonable doubt.

In order for there to be a crime, there needs to be:

• an actus reus (the ‘guilty act’ that caused the offence)

• a mens rea (the ‘guilty mind’ or intention of the offender)

The only exception is crimes of strict liability, which do not require a mens rea.

• The age of criminal responsibility is 10 years old – any child under that age cannot be charged with a crime.

• For children 10 to 14 years old, there is a legal presumption that they do not have sufficient mental capacity to know what they are doing is wrong.

• That presumption can be rebutted by the prosecution if they can prove the child was mature enough to understand that what they were doing was wrong.

There can be different levels of participation in a crime, including:

• principal offender

• principal in the second degree

• accessory before the fact

• accessory after the fact.

2.2 Crimes against the person, property and related defences

Crimes against the person include:

• homicide (lawful or unlawful)

• murder or manslaughter (voluntary and involuntary)

• culpable driving

• assault, including common assault and sexual assault.

Crimes against property include:

• theft

• fraud/dishonesty

• burglary

• aggravated burglary

• robbery.

Some defences to these crimes include:

• self-defence

• necessity

• mental impairment

• accident

• automatism.

Other defences are:

• duress

• battered woman syndrome (although this is usually only used in support of other defences such as self-defence)

• family violence

• lawful use of force.

2.3 The criminal investigation process

• When dealing with police, people have legal rights and responsibilities.

• Police also have special powers and particular responsibilities.

• One of the most important rights of a suspect is the right to silence.

Some common police powers include the power to:

• demand the name and address of a person they believe has committed or is about to commit an offence, or any person in charge of a motor vehicle

• use reasonable force to take fingerprints from any suspect over 15 years old

• use capsicum spray when facing physically violent situations

• question a suspect for a ‘reasonable time’ without charge

• search any place without a warrant for the purposes of an arrest take DNA samples

• require a motorist to submit to a random breath test or saliva test

• use reasonable force when making an arrest.

• Unless a person is being arrested and in police custody, they are not obliged to accompany police to a police station or be detained against their will.

• In certain circumstances, police can make an arrest without a court warrant, for example to preserve public order, or if they suspect on reasonable grounds a person has committed an offence.

2.4 Sanctions under criminal law

The aims of criminal sanctions are:

• retribution

• deterrence

• rehabilitation and reform

• punishment

• denunciation

• protection of society.

Possible criminal sanctions available to a sentencing court include:

• Criminal Justice Diversion Program

• good behaviour bond (with or without conviction)

• fine

• community based order

• youth training centre order

• drug treatment order

• suspended sentence

• intensive corrections order

• home detention

• imprisonment.

• An offender can ask a magistrate or judge for a sentencing indication before they decide whether to plead guilty or not guilty.

• Whenever there is a finding of guilt, a judge or magistrate can decide to give a punishment with or without conviction.

• As of June 2010, there are 14 prisons in Victoria.

• When sentenced, a male offender is sent to Melbourne Assessment Prison and women to the Dame Phyllis Frost Centre for assessment.

2.5 Trends in crime, sentencing and recidivism

As the population increases, so will the number of crimes.

In Victoria, crime rates are calculated in terms of crime rate per 100 000 population to give an indication of the crime rate compared to the population.

• The majority of Victorian offenders are sentenced in the Magistrates’ Court.

• From 1997–98 to 2007–08, the number of people sentenced in Victoria reduced by 9 per cent.

• The most common sentence was a fine.

• Recidivism refers to the tendency of an offender to engage in repeated criminal behaviour.

• 35.6 per cent of Victorian prisoners released in 2005–06 returned to prison within two years.

2.7 The impact of criminal acts

• Many factors are taken into consideration by a court when sentencing.

• These are known as mitigating factors and aggravating factors.

• These are balanced against each other as they apply to an offender.

Offending has direct consequences on:

• victims

• offenders and their families

• the wider community.

2.8 Alternative avenues for seeking compensation

A victim of crime can seek compensation through:

• Victims of Crime Assistance Tribunal

• the offender

• civil court action

• other sources such as Workcover, Transport Accident Commission or private health insurance.