Legal Studies 5th Ed, Cambridge 2020 PDF

Part I Crime 30% of course time Principal focus Through the use of a range of contemporary examples, you will investigate criminal law, processes and institutions and the tension between community interests and individual rights and freedoms. Themes and challenges The themes and challenges covered...

Part I Crime 30% of course time Principal focus Through the use of a range of contemporary examples, you will investigate criminal law, processes and institutions and the tension between community interests and individual rights and freedoms. Themes and challenges The themes and challenges covered in Part I include: the role of discretion in the criminal justice system issues of compliance and non-compliance in regard to criminal law the extent to which law reflects moral and ethical and moral standards the role of law reform in the criminal justice system the extent to which the law balances the rights of victims, offenders and society the effectiveness of legal and non-legal measures in achieving justice. HSC external examination information The HSC examination will be a written paper worth a total of 100 marks. The paper will consist of three sections. Questions relating to Part I of the syllabus – ‘Crime’ – will appear in sections I and II of the examination. Section I: Core 20 marks total (15 of the possible 20 marks will be based on ‘Crime’) Section I will consist of objective response (that is, multiple-choice) questions. Questions to the value of 15 marks will be drawn from ‘Crime’. Some of these questions may be based on, or refer to, stimulus materials. Section II: Core 30 marks total (15 of the possible 30 marks will be based on ‘Crime’) Section II will be divided into two parts: Part A and Part B. Only Part B will relate to ‘Crime’. There will be one extended response question to the value of 15 marks. The question may refer to stimulus material. The expected length of the response is around 600 words (approximately four examination writing booklet pages). Chapters in this part Chapter 1 The nature of crime 2 Chapter 2 The criminal investigation process 34 Chapter 3 The criminal trial process 52 Chapter 4 Sentencing and punishment 76 Chapter 5 Young offenders 104 Chapter 6 International crime 134 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 1 Photocopying is restricted under law and this material must not be transferred to another party.  Chapter 1 The nature of crime Chapter objectives In this chapter, you will: identify the meaning and nature of crime describe and recognise the different categories of crime define and discuss summary and indictable offences explore a range of factors that may lead to criminal behaviour discuss a range of social and situational crime-prevention techniques discuss the effectiveness of the law in punishing offenders. Relevant law IMPORTANT LEGISLATION Crimes Act 1900 (NSW) Customs Act 1901 (Cth) Crimes Act 1914 (Cth) Copyright Act 1968 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Summary Offences Act 1988 (NSW) Criminal Code Act 1995 (Cth) Crimes Amendment (Computer Offences) Act 2001 (NSW) Anti-Terrorism Act (No 2) 2005 (Cth) Copyright Amendment Act 2006 (Cth) National Security Legislation Amendment Act 2010 (Cth) Road Transport Act 2013 (NSW) Copyright Amendment (Online Infringement) Act 2015 (Cth) Crimes Amendment (Intimate Images) Act 2017 (NSW) SIGNIFICANT CASES R v Whybrow (1951) 35 CAR 141 DPP v Newbury and Jones AC 500 Boughey v The Queen (1986) 161 CLR 10 R v AEM (Snr); R v KEM; R v MM NSWCCA 58 Wallace v Kam HCA 19 2 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party. Legal oddity In most societies, crimes are a reflection of the public morality of the time. Many punishments attempt to balance the rights of the community and those of individuals. At times, some crimes and their punishments can seem odd or unusual as they outlaw activities that are unique to a particular community or jurisdiction. The Sentencing Advisory Council of Victoria has listed a number of these oddities from Australia and around the world. A few of these include: it is illegal to name a pig Napoleon in France in San Salvador, drunk drivers can be sentenced to death in Thailand, it is illegal to leave your house without your underwear on. Such ‘odd’ offences need to be viewed in the context of the community within which they sit to understand the meaning and nature of the crimes. ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 3 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 1.1 The meaning of crime society (as represented by the state, for example the Director of Public Prosecution), as well as any victim The word ‘crime’ is a broad term used to describe of the act. The criminal act is seen as an attack on many unlawful activities, from the extreme, such as the ethical and moral standards of society, so it is the murder, to more minor offences, such as speeding. responsibility of all to punish those found guilty. This A crime includes any act or omission that results is why the state (acting on behalf of society) brings in harm to society at large and is punishable by criminal cases, even though it is also attempting to the state, including the court system and state or redress an injustice committed against a specific Commonwealth bodies. victim or victims. Crime is a constantly evolving area of the law. For crime an act or omission against the community at large that is example, for centuries the practice of witchcraft was punishable by the state considered a serious offence punishable by death state throughout the British Empire. As society’s attitudes a government and the people it governs; a country evolved, the position was eventually reversed in Great Britain with the introduction of the Witchcraft A more detailed definition includes ‘any conduct Act 1735, 9 Geo II, c 5, which removed the offence of which violates the rights of the community at large, witchcraft and instead made it a crime to pretend to punishable by a recognised criminal sanction upon practise acts of witchcraft. In Australia today, such proof of guilt in a criminal proceeding initiated and acts would be governed by consumer protection presented by officers of the crown or its agencies’ regulations that protect against fraudulent activity. (S. Marantelli and C. Tikotin, The Australian Legal Similarly, new crimes are often created where Dictionary). none existed before. For example, the Crimes But there is no definition that tells the community Amendment (Computer Offences) Act 2001 (NSW) what actually constitutes criminal behaviour introduced a new part titled ‘Computer Offences’ and activity. If a person wanted to know if certain to the Crimes Act 1900 (NSW). The Commonwealth behaviour was a violation of the law, they would be Copyright Amendment Act 2006 (Cth) also introduced none the wiser by the definitions provided. This a number of new offences aimed at dealing with the is because a crime is any act that law-makers in a growing problem of internet piracy and copyright particular society have deemed to be criminal, which infringement. The Copyright Amendment (Online in itself may cause injustice. Infringement) Act 2015 (Cth), which commenced in Many countries and societies have different June 2015, is a further amendment to the Copyright views about what kinds of acts society needs to be Act 1968 (Cth). It introduces new laws to give rights protected from and which acts should be considered holders who discover infringing material online a criminal. Culture, history, legal traditions, social way of requiring carriage service providers to take attitudes, religious beliefs and political systems are reasonable steps to block access to the content, via factors in every society that combine to determine an injunction from the Federal Court. how crime is defined and punished. In other words, Digital harassment and the non-consensual what one society deems a crime, another may not; distribution of images has become problematic for this often results in frustration for the legal system. many Australians, leading to the introduction of the For example, the act of murder is considered a crime Crimes Amendment (Intimate Images) Act 2017 (NSW). throughout the world, though with varying definitions The government, courts and other statutory and qualifications. However, other acts, which bodies are constantly reviewing legislation to ensure are entirely legal in Australia, such as sex outside that it meets the expectations of the community and marriage, homosexual acts or the consumption of is as relevant as possible to our rapidly developing alcohol, are deemed crimes in other societies. and changing society. Sometimes some groups Therefore, most crimes are the result of moral within our community are unhappy with these and ethical judgements by society about an reforms and developments while others rejoice at individual’s behaviour. When a person commits a their implementation. Criminal law is a particularly crime, it is deemed to be committed against all of controversial area of the law because any changes will 4 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime Criminal actions can include crimes against a person, the state and/or property. The law provides for the state to take legal action against an accused; that is, to prosecute them in a court of law to achieve some type of punishment or sanction. accused the person or alleged offender who criminal action is being taken against prosecute when the Crown or state takes action against an accused person in a court of law The decision to prosecute the offender in court is made by the police and/or the Director of Public Prosecutions. They are known as the state or the Crown, and the offender is known as the defendant or the accused. This differs from civil law, where an action against the alleged perpetrator is brought before the courts by an individual who is affected (the plaintiff). Crown Figure 1.1 Swedish Ola Bini – who was arrested on the state party that commences a criminal action in a court of law; in New South Wales, the action is usually accusations of an alleged cyber-attack and who is close commenced by the Director of Public Prosecutions; if the to WikiLeaks founder, Julian Assange – in an interview in alleged crime is against a federal criminal law, the action Quito, Ecuador, on 22 June 2019. is usually commenced by the Commonwealth Director of Public Prosecutions usually have wide-ranging effects on the rights and freedoms of all members of society. As a result there The Crown must prove its case beyond is often tension between the rights of the community reasonable doubt. If any other reasonable and the rights of individuals in the criminal justice conclusion besides proving the criminal system. Ensuring the balance between these charges can be drawn from the evidence, there competing interests is vital in ensuring that the is reasonable doubt. If there is any doubt as to public have confidence in the criminal law and the the guilt of the defendant, a ‘not guilty’ verdict institutions that implement them. must be given. This differs from civil law, where a much lower standard of proof is required (the Criminal law balance of probabilities). Criminal law is the area of law that deals with beyond reasonable doubt crime. It has many aspects, including investigation, the standard of proof required in a criminal case for a person enforcement, prosecution, defence, criminal trial, to be found guilty sentencing and punishment. Criminal law has a number of important characteristics that distinguish The aim of criminal law is to protect the it from other areas of the law: community and to provide a sanction or Criminal law is about protecting society. punishment to an offender who is found guilty A crime is punishable by the state because it by a court of law. This differs from civil law, is an offence against society as a whole. This where the aim is to address the defendant’s differs from civil law, which relates primarily to wrong by way of a remedy or court order in rights and responsibilities between individuals. favour of the plaintiff. ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 5 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 Formative assessment: understanding. You are also encouraged to Assessment for learning address the ‘themes and challenges’ (p. 17) and The activities in this chapter are designed to the ‘learn to’ activities (pp. 17–19) in the syllabus assist you with building your understanding as you may be tested on these in your HSC exam. of the content covered. You are encouraged to You can revisit these activities a number of times complete the activities and seek feedback from to continue to build your knowledge and skills of your teacher on a regular basis to check your the ‘Crime’ topic. Review 1.1 1 Define the term ‘crime’. 2 Explain why activities are crimes in some communities but not in communities in other countries. 3 Identify the similarities and differences between criminal and civil law. Broadly speaking, the distinction between criminal and civil law depends on the legal proceedings that may follow from the act. If the act is a crime, then the offender faces investigation by the police and prosecution by the state. The case is heard in the criminal courts, and the accused may be convicted and punished. If the act is a breach of civil law, then the wrongdoer (the defendant) will be sued in a civil court by the person bringing the action (the plaintiff). The plaintiff will be trying to gain a remedy such as compensatory damages or a court order prohibiting the conduct. 1.2 Elements of crime Before a criminal act can be brought to trial, the police and prosecutors need to prove that the elements of the particular offence are present. There are two fundamental elements applicable to most offences: that the accused person actually committed the crime (actus reus) that the accused person sufficiently intended to commit the crime (mens rea). actus reus a Latin term meaning ‘guilty act’ that refers to the physical act of carrying out a crime Figure 1.2 Henri Van Breda sits in the dock at the Western Cape High Court in Cape Town, South Africa mens rea on 5 June 2018. Van Breda was accused of killing his two a Latin term meaning ‘guilty mind’, meaning that the accused intended (to some degree) to commit the crime, parents and brother, and maiming his sister with an axe knowing their actions were wrong at their luxury home in Stellenbosch on 27 January 2015. 6 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime Actus reus The degree of intention required to prove a Actus reus is a Latin term meaning ‘guilty act’ and crime can differ and will often be specified in the refers to the physical act of carrying out the crime. legislation where the crime is defined. The three The prosecution must prove that the accused did in main levels of mens rea are: fact carry out the relevant act required for the crime. intention – a clear, malicious or wilful Physical evidence and witness testimony can help intention to commit the crime. This is the the prosecution prove that it was the accused that highest and usually most difficult level of mens carried out the act. This is often the easiest element rea for the prosecution to prove. for the prosecution to prove. recklessness – an intermediate level of The actus reus must be a voluntary act but can intent, this means that the accused was aware also include an omission or failure to act, particularly that their action could lead to a crime being in cases of criminal negligence, if the accused failed committed, but chose to take that risk anyway. to take a course of action when they had a duty to Perhaps the accused wanted to show off or was do so. unable to make a sensible decision. In the case of recklessness the prosecution will attempt to Mens rea prove that the risk was obvious to a reasonable Mens rea is a Latin term meaning ‘guilty mind’ and person and although the accused knew the risk refers to the mental state of the accused. In order for they were taking, they didn’t care about the the prosecution to succeed, it must be able to prove consequences. that, to the necessary degree, the accused intended recklessness to commit the crime. when the accused was aware that their action could lead to There is no widely accepted definition for a crime being committed, but chose to take that course of action anyway mens rea. One common understanding, however, is that it is the state of mind of a defendant and criminal negligence – where the accused their knowledge of the facts that make the conduct fails to foresee the risk where they should criminal. In other words, the defendant understood have and so allows the avoidable danger to what was happening when the act was committed. occur, usually resulting in harm to or the Another view is to regard mens rea as the conscious death of another person that the accused had and willing mind that was present in performing a a duty to protect. This is the lowest level of crime. Often, if the police or Crown cannot prove intention for mens rea, but it is still a much that the defendant acted intentionally, fraudulently, higher standard than the civil law requires maliciously, negligently, recklessly or willfully, the for negligence to be considered criminal. charge will not be proved. For example, when a An example of a case involving criminal person intentionally shoots someone, that person negligence is R v Thomas Sam, referred to in has probably intended to commit a criminal act the ‘In Court’ box on the next page. and cause harm. Whether that person intended to kill or only injure the victim is something that will need to be established. Another situation is when a criminal negligence where the accused fails to foresee the risk when they should defendant knows what will happen if they continue have and so allows the avoidable danger to occur certain behaviour, but recklessly carries on. For example, the shooter may have been reckless as After the death of Christopher Cassaniti, 18, who to whether the victim might die from the injuries died at the scene of a workplace scaffolding collapse inflicted. In all cases, except for strict liability cases in 2019, there have been calls for the introduction of (see ‘1.3 Strict liability offences’ on page 9), the an industrial manslaughter offence for workplace prosecution must prove that the accused was aware deaths where there has been a gross deviation from (at least to some degree) that their actions would a reasonable standard of care. result in the likelihood of a crime being committed. ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 7 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 Figure 1.3 Firemen wash away bloodstains after a security guard was shot dead in a drive-by shooting outside a popular Melbourne nightclub on 14 April 2019. The three components of mens rea are intention, recklessness and criminal negligence – which are all elements associated with this crime. In Court R v Thomas Sam; R v Manju Sam (No 18) NSWSC 1003 In this case, a father and mother were charged with manslaughter by criminal negligence. The case revolved around the death of the couple’s nine-month-old daughter, who suffered from eczema. The parents had repeatedly rejected conventional medical treatment, and instead relied on ineffective homeopathic treatments, despite the child constantly crying in pain and having broken skin oozing fluid. The court found that eczema was medically treatable, yet because treatment was denied the child had unnecessarily suffered and died from the condition. The court found that both parents were well educated and should have known to seek appropriate medical treatment for their daughter, which they failed to do. The court also found that the father had a higher duty of care, as he was a trained homeopath with a higher degree of medical knowledge. The judge in the case, Justice Peter Johnson, concluded that it was the ‘most serious case of manslaughter by criminal negligence’ he had ever dealt with. The parents were both found guilty of manslaughter and sentenced to imprisonment. On appeal, both sentences were increased, with the father receiving eight years’ imprisonment and the mother receiving a sentence of imprisonment of five years and four months. 8 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime 1.3 Strict liability offences Not all offences require the prosecution to prove mens rea. For some offences, only the element of actus reus will need to be shown. These offences are known as strict liability offences. strict liability offence an offence where the mens rea does not need to be proved; only the actus reus (the guilty act) needs to be proved A strict liability offence is one where the prosecution only needs to prove that the accused carried out the act, and is not required to show that the accused intended to commit the crime. Because strict liability offences dramatically lower the level of proof required to achieve a criminal conviction, and so lessen an accused’s rights in the criminal process, they are generally restricted to minor offences, such as traffic offences or breaches of regulations. For example, a speeding offence is a strict liability offence and as such the police do not need to show that a person intended to break the speed limit (that is, had mens rea); they only have to show that the person did so Figure 1.4 An example of a strict liability offence is (committed the actus reus). That is, a person only selling cigarettes to people under the age of 18. has to be caught speeding to incur a fine. Another example of strict liability offences is 1.4 Causation selling alcohol or cigarettes to people under the A further consideration that is relevant when age of 18 – it doesn’t matter whether or not the seller establishing the elements of a crime is causation – knew the buyers were underage; the only thing that proving that there is sufficient causal link between matters is that they were underage. Strict liability the actions of the accused and the result. This will is applied to offences because of its administrative often be relevant in proving the actus reus and advantages – for example, to assist the legal system requires the prosecution to prove a substantial link in coping with the daily volume of traffic violations – between the act and the crime. or to put a greater onus on society to comply with a particular law. In some cases, there can be a defence causation to strict liability: if the accused can prove the act was the link between the behaviour of the accused and the result (that is, that the behaviour of the accused actually caused an ‘honest and reasonable mistake’. the alleged criminal act) In Court Wallace v Kam HCA 19 Dr Kam was a neurosurgeon who was charged with medical negligence. During his trial, the question of causation was raised. The plaintiff, Mr Wallace, had been injured during surgery. He alleged that Dr Kam had not warned him about the risks of the surgery, and that if he had known about these risks, he would not have agreed to the surgery. Thus, he would not have been injured and negligent failure to disclose had caused his injury. In a unanimous decision, the High Court stated that there needed to be higher scrutiny of the application of causation and while the matter might establish factual causation it did not suggest that the doctor should be held liable (scope of liability). ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 9 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 Review 1.2 1 Explain the difference between actus reus and mens rea. 2 Using a specific crime as an example (for example, drink-driving, murder, robbery), describe the crime’s actus reus and mens rea. 3 Outline two main differences between strict liability offences and other offences. Give examples of some strict liability offences. 1.5 Categories of crime parties to a crime (for example, whether the accused is the principal offender of the crime There are many different crimes and they can be or assisted in some way). categorised in numerous ways. These categories will often affect the way an offence is investigated, In New South Wales, the Crimes Act 1900 (NSW) prosecuted or punished, and include: is currently divided into roughly 16 parts relating type of offence, such as offences against the to the main types of offences. These parts are person or drug offences further divided into hundreds of divisions, sections jurisdiction, including whether it is a New and subsections. Offences are also included South Wales or a Commonwealth crime in numerous other New South Wales Acts and seriousness of the offence, or whether it is a Regulations. Commonwealth offences have a summary or indictable offence similar regime. Legal Links A range of recorded criminal incidents in New South Wales can be accessed on the website of the NSW Bureau of Crime Statistics and Research. TABLE 1.1 Examples of offences Type of offences Examples Offences against the person Homicide, assault, sexual assault Offences against the sovereign Treason, sedition Economic offences Property offences, white-collar crime, computer offences Drug offences Trafficking, possession, use Driving offences Speeding, drink-driving, drug-driving, negligent driving Public order offences Offensive conduct, obstructing traffic, affray, bomb hoaxes Preliminary offences Attempts, conspiracy Regulatory offences Breach of water restrictions, fire restrictions or public transport rules Research 1.1 Find the Crimes Act 1900 (NSW) on the internet and look at the categories of offences listed under the Act. Identify how many of the categories and offences listed in Table 1.1 you can find in the Act. 10 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime trafficking Murder dealing or trading in something illegal, particularly drugs Murder is the most serious homicide offence and is punishable by life imprisonment. In order to prove in court that a killing was murder (that is, directly Offences against the person related to the actions of the accused), the prosecution Offences against the person involve some form of must show that at least one of the following exists: harm or injury to an individual. Because there are so the accused intended to deliberately kill many ways that someone can cause injury to another the victim person, these types of crime are divided into three the accused set out to inflict serious bodily distinct areas, each including numerous offences: harm, which resulted in death homicide, assault and sexual offences. the act was done with reckless indifference to another human life; that is the doing of an act Homicide with the foresight of the probability of death In the criminal justice system, homicide is defined as arising from that act the unlawful killing of another person. This includes the act was done while committing or both deliberate and accidental acts of killing, with attempting to commit another serious crime varying degrees of mens rea applicable. In a homicide punishable by life or 25 years’ imprisonment. case, causation must be established between the actions of the accused and the death of the victim. murder the deliberate killing of a person There are four main categories of homicide in New South Wales law: murder, manslaughter, infanticide The third of these elements is usually the hardest and dangerous driving causing death. to prove. In Boughey v The Queen (1986) 161 CLR 10, homicide a doctor strangled his wife during a sex ‘game’. the unlawful killing of a human being The court held that there was a substantial or good chance of harm, that Boughey had the knowledge and capacity to know better, and that the act constituted a ‘reckless indifference to human life’. Boughey was convicted of the murder. See also Campbell NSWCCA 102. Murder is one of the most heinous crimes possible and attracts some of the harshest penalties. As a result, murder cases often receive a great deal of media attention. Television programs such as How to Get Away with Murder, CSI and Castle have also popularised the murder genre, giving the impression that murder is a common crime. In reality, however, the opposite is true. The murder rate per 100 000 population in New South Wales from April 2018 to March 2019 was 0.9. In contrast the domestic violence-related assaults for the same period was 382.4. According to the Australian Institute of Criminology, most murder victims are killed by a family member or friend, and up to 41% of all homicides are domestic violence-related. Figure 1.5 Homicide is the unlawful killing of another person. ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 11 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 Manslaughter out another dangerous or unlawful act. The Manslaughter is the second type of homicide. It manslaughter is ‘constructed’ from the other differs from murder in the intent of the accused. unlawful act. For example, where a person Manslaughter involves a reduced level of intent and assaults another person without intention to is punishable by up to 25 years’ imprisonment. A kill or inflict serious bodily harm, but death person may be charged with manslaughter where it results, then the death may be construed as cannot be proved that they intended to kill the victim manslaughter by the accused. to the degree required for murder. voluntary manslaughter the killing of a person where the accused intended to manslaughter kill or was reckless about killing someone but there were the killing of a person in a manner that is considered to be mitigating circumstances less intentional than murder provocation the defence where the defendant claims that their actions For example, in Burns v The Queen HCA 35, the were a direct result of another person’s actions, which accused, Burns, was a participant in a methadone caused them to lose control of their own actions program conducted by a Sydney clinic. Burns had mitigating circumstances made a business of selling some of her methadone circumstances that make an offence less severe; they can lead to a reduced sentence to friends and acquaintances. On one occasion, she sold methadone to a person who died after involuntary manslaughter the killing of a person where the death occurred because taking the drug. The deceased person’s body was the accused acted in a reckless or negligent way without discovered in a toilet block behind Burns’ unit. The intending to kill deceased had died as a result of using a prescription constructive manslaughter drug combined with the methadone provided by the killing of a person while the accused was carrying out another dangerous or unlawful act Burns. Subsequently, Burns was convicted of manslaughter. There are three main types of manslaughter: Infanticide Voluntary manslaughter occurs when a person kills with intent, but there are mitigating Infanticide is a special category of manslaughter circumstances (such as the defence of that applies to the death of a baby under the age of provocation) which reduces their culpability. 12 months at the hands of its mother. The Crimes For the crime to be classed as voluntary Act 1900 (NSW) requires that the court take into manslaughter, not murder, there must be account the state of mind of the mother at the time mitigating circumstances. she committed the crime. Many women suffer from Involuntary manslaughter is the killing of a condition called post-natal depression after the a person where the death occurred because birth of a child. If the accused is found to have been the accused acted in a reckless or negligent suffering from this condition when she killed her way, but without intention to kill the person. It baby it can be seen as a mitigating circumstance. is sufficient if the prosecution shows that the infanticide act which caused the death was done by the the death of a baby under the age of 12 months at the hands accused consciously and voluntarily, without of its mother any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which Dangerous driving causing death a reasonable person would have exercised and Dangerous driving occasioning death is another which involved such a high risk that death or type of manslaughter. It occurs when a person drives grievous bodily harm would follow that the doing in an unsafe and reckless way, such as under the of the act merited criminal punishment. influence of alcohol or a drug, or at excessive speed, Constructive manslaughter is the killing and in so doing causes the death of another human of a person while the accused was carrying being. A conviction for this crime carries a maximum 12 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime Research 1.2 Go online and search for two recently closed homicide cases. Draw up a table and identify the following: the case name and court reference the charges brought against the defendant and the relevant facts of the case the actus reus and mens rea for each case. penalty of 10 years in prison. However, if the offence can occur to both men and women. Although the is aggravated by certain circumstances the penalty vast majority of such assaults are against women, it can be as much as 14 years’ imprisonment. is suggested that there are more male victims than is shown by statistics. Victims’ fear of reporting Assault the crime is a serious problem in cases of sexual Assault is the most common form of crime against assault. Sexual assault is reportedly one of the most the person. Assault includes the offence of causing under reported crimes. physical harm to another person and of threatening to cause physical harm to another person (known as sexual assault when someone is forced into sexual intercourse against common assault). their will and without their consent assault sexual intercourse a criminal offence involving the infliction of physical force or broadly defined in the Crimes Act 1900 (NSW) to include the threat of physical force oral sex or penetration of the vagina or anus by any part of another person’s body or by an object manipulated by common assault another person assault where there is no actual physical harm to the person assaulted; it includes threatening to cause physical harm to another person Lack of consent is central to the crime of sexual assault and is defined in detail in the Crimes Act Physical assault is a direct act in which force is applied 1900 (NSW). It states that a person is not consenting to another person’s body unlawfully and without where they are: their consent and is punishable by up to five years’ substantially intoxicated by drugs and alcohol imprisonment (or seven years’ imprisonment, and therefore lack the capacity to consent depending on the location of the assault and the intimidated or coerced into the act, or identity of the victim). A threat to cause physical harm if the accused is abusing their position of trust can also be a form of assault where it causes the victim or authority over the victim. to fear immediate and unlawful violence – threatening phone calls, text messages or emails might constitute Sexual assault is one of the least reported crimes, such a form of assault. and has a low conviction rate due to the difficulty of proving consent. Sexual offences The crime of aggravated sexual assault Sexual assault is a type of assault where someone will be applicable where there are aggravating is forced into sexual intercourse against their will circumstances, such as where violence is used, and without their consent. It was formerly known the victim is under 16 years old or the victim has a in common law as ‘rape’. The definition of sexual serious physical or intellectual disability. It must be assault includes where consent is withdrawn noted that a child under the age of 16 is not legally during the act of sexual intercourse. Sexual able to give consent. intercourse is defined broadly in the Crimes Act Indecent assault is another type of sexual 1900 (NSW) to include different types of sexual acts offence, where the accused commits an assault and including oral sex and penetration. Sexual assault ‘act of indecency’ on or in the presence of another ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 13 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 person without their consent. ‘Indecent act’ is not imprisonment, the offence is viewed by the law as defined in the Crimes Act 1900 (NSW) but it includes equivalent in seriousness to murder. The offence assaults with a sexual element. This offence covers includes the elements of sexual assault, but is many sexual acts that are not included under the performed with another person or people present offence of sexual assault, such as touching the together with either depriving the victim of their liberty genitals or other parts of the body in a sexual manner or the infliction or threatened infliction of bodily harm. without the person’s consent. The offence of aggravated sexual assault in company was introduced in New South Wales in 2001 following a indecent assault an assault and ‘act of indecency’ on or in the presence of series of so-called ‘gang rapes’ across Sydney’s inner another person without their consent west that led to a public outcry for reform of the law. The most serious sexual offence in New South aggravated sexual assault in company Wales is aggravated sexual assault in company. sexual assault performed with another person or people present together with aggravating circumstances Punishable by the highest criminal sanction life TABLE 1.2 The number of reported cases of assault and sexual assault in New South Wales Offence 2015 2016 2017 March 2018 – March 2019 Assault – domestic violence-related 29 106 29 145 28 356 30 063 Assault – non-domestic violence- 30 858 31 755 32 015 31 413 related Sexual assault 4953 5208 5804 5933 Indecent assault, act of indecency and 6856 6986 7389 8116 other sexual offences Source: NSW Recorded Crime Statistics, April 2014 – March 2019. In Court R v AEM (Snr); R v KEM; R v MM NSWCCA 58 In New South Wales, the catalyst for the introduction of the law of ‘sexual assault in company’ was the case of R v AEM. The facts of the case of R v AEM are: three men (two brothers and their cousin, who were 19, 16 and 16 years old respectively at the time of the crime) lured two 16-year-old girls to the offenders’ home in Villawood. The girls were then forcibly detained and sexually assaulted over a period of several hours. The girls were threatened with knives and were verbally threatened with death. At the time, the only applicable crime was aggravated sexual assault: the highest penalty for this was 20 years’ imprisonment. The men were originally sentenced to five to six years’ imprisonment each. The abhorrent nature of these crimes led to a public outcry over the existing laws of rape, which were thought by a large segment of the public to be too lenient given the nature of the men’s crimes. Following the case, the NSW Parliament moved quickly to introduce new laws and tougher penalties, creating a new offence of ‘aggravated sexual assault in company’ in section 61JA of the Crimes Act 1900 (NSW). The new offence carries a maximum penalty of life imprisonment, equivalent to that for murder. Notably, on appeal by the Crown in 2002, the judges decided to significantly increase the offenders’ original sentences, substituting them with 13 to 14 years’ imprisonment each. 14 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime Legal Links Watch the YouTube video, ‘Aggravated Sexual Assault in Company’, from Sydney Criminal Lawyers 2014. Offences against the sovereign or the Queen of Australia. Treason was formerly a Offences against the sovereign are some of the oldest crime punishable by death. Today, it is punishable crimes, and include political offences against the by up to 25 years’ imprisonment (New South Wales) state or heads of state, such as treason and sedition, or life imprisonment (Commonwealth). which attract severe penalties. The laws are justified as protecting the structure, authority and integrity of Sedition the state and the citizens that it governs. Historically, Dating back to at least 1606, a seditious act historically such laws were more frequently used to prevent or involved any oral or written intention to bring the punish attempts to overthrow or even criticise heads sovereign into hatred or contempt, and included of state. Australia today is a stable parliamentary inciting disaffection against the government or democracy, where objections are aired through parliament. The laws were criticised as being open protest, public comment, elections or law reform, to abuse through silencing government opposition and such laws have arguably fallen out of use. and public comment and endangering freedom of speech. treason In Australia, sedition laws had fallen into an attempt or manifest intention to levy war against the state, assist the enemy, or cause harm to or the death of disuse until 2005, when the then Commonwealth a head of state Government, under Prime Minister John Howard, sedition introduced a range of controversial anti-terrorism promoting discontent, hatred or contempt against a laws in the Anti-Terrorism Act (No 2) 2005 (Cth), government or leader of the state through slanderous use of language; in Australia, sedition includes the offences of which included a revived sedition law. The urging force or violence against the government Australian laws, under section 80.2 of the Criminal Code Act 1995 (Cth), make it a crime to urge another person to use force or violence to a particular Treason end, such as overthrowing the government or Treason was a common law crime in England long the Constitution or interfering in parliamentary before it was first codified by King Edward III in the elections. The offences are punishable by up to Statute of Treasons in 1351. The offence was defined seven years’ imprisonment. as acts directed against the sovereign. At that The sedition laws received widespread public time, the sovereign was the monarch; this was later criticism as being unnecessary, against the times, widened to include heads of state such as the Prime and a danger to freedom of expression, particularly Minister and Governor-General. The crime of treason in relation to commentary and critique by the media was imported into Australian law from the UK and and the arts. later enacted in New South Wales under Part 2 of the A review of the law of sedition was undertaken Crimes Act 1900 (NSW), and in the Commonwealth by the Australian Law Reform Commission under the Crimes Act 1914 (Cth) and later under (ALRC). Among the ALRC’s recommendations section 80.1 of the Criminal Code Act 1995 (Cth). was the suggestion to remove any reference to the Under the New South Wales Crimes Act, the 1351 term ‘sedition’ from the laws and to amend various Act is expressly continued in force. Treason involves elements of the offences and available defences. any attempt or manifest intention to levy war against A majority of these recommendations were the state, assist the enemy, or cause harm to or the implemented by the National Security Legislation death of the Governor-General, the Prime Minister Amendment Act 2010 (Cth). ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 15 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 Research 1.3 The Australian Law Reform Commission’s (ALRC) report, Fighting Words: A Review of Sedition Laws in Australia, contains a history of sedition laws and various recommendations about reforming Australia’s laws. Read the report on the internet and answer the following questions: 1 Recall in what circumstances Australia’s sedition laws have been used in the past. 2 Discuss some of the dangers of our sedition laws that were identified by the ALRC. 3 Outline some of the recommendations of the ALRC’s report. 4 Find out which recommended changes to Australia’s sedition laws were implemented in the National Security Legislation Amendment Act 2010 (Cth). Economic offences break and enter commonly known as burglary, break and enter offences ‘Economic offence’ includes a wide range of crimes usually occur when a person enters a home with intent to that can result in a person or people losing property commit an offence or sums of money. It is the largest area of criminal law because it encompasses some of the most Larceny is the most common property offence and common types of crime. Economic offences fall into is more commonly known as ‘theft’ or ‘stealing’. It is three main categories: also one of the economic offences that people are most crimes against property likely to fall victim to at some time in their lives. Larceny white-collar crime occurs when one or more people intentionally take computer offences. another person’s property without their consent and without the intention of returning it. One of the most Crimes against property common forms of larceny is shoplifting. The offence of In New South Wales, there are three main types larceny is punishable by up to five years’ imprisonment, of offence against property: larceny, robbery and depending on the type of larceny involved. break and enter. Robbery is a more serious offence than larceny. Robbery occurs when the use of force is present in larceny the act of stealing goods or when property is taken when one or more people intentionally take another person’s directly from a victim. If the robbery is accompanied property without consent and without intention of returning it by the use or threatened use of a weapon, the crime robbery when property is taken directly from a victim, usually is called ‘armed robbery’ and will carry an even forcefully higher sentence. TABLE 1.3 The number of reported cases of break and enter in New South Wales Offence 2015 2016 2017 March 2018 – March 2019 Break and enter dwelling 31 627 29 713 27 776 26 045 Break and enter non-dwelling 11 905 11 708 10 564 10 091 Steal from dwelling 21 465 21 347 19 503 18 910 Steal from retail store 22 077 23 542 24 457 25 303 Source: NSW Recorded Crime Statistics April 2014 – March 2019 16 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime Break and enter is another very common economic crime, more commonly known as ‘burglary’. The term refers to a series of offences in the Crimes Act 1900 (NSW) that generally occur when a person or people enters a room or building, such as a private residence, with the intention of committing an offence. Usually the offender will be doing so with the intention to commit another property offence, such as larceny. White-collar crime White-collar crime is a general term given to various non-violent crimes associated with businesspeople or professionals. White-collar crime is often difficult to detect and can be time-consuming and expensive to investigate. Three of the most common white- collar crimes are embezzlement, tax evasion and insider trading. white-collar crime a general term for various non-violent crimes associated with professionals or businesspeople, such as embezzlement, tax evasion or insider trading Figure 1.6 Natalie McGarry was jailed for 18 months in embezzlement June 2019 by Sheriff Paul Crozier, after admitting to two when a person steals money from a business over a period of charges of embezzlement. The former Scottish politician time while they are employed at that workplace embezzled thousands of pounds from pro-independence tax evasion groups, which she spent on rent, a holiday to Spain, and an attempt to avoid paying the full amount of taxes due by, other lifestyle spending. among other things, concealing or underestimating a person’s or business’s income or assets Tax evasion insider trading Tax evasion is a common white-collar crime and when a person illegally trades on the share market to their own advantage using confidential information occurs when a person or company tries to avoid paying taxes to the government. Often it involves people fraudulently filling out tax returns stating Embezzlement that their income is lower than it actually is, or Embezzlement is when a person misappropriates organising a business or property in a way that another person’s property or money that they hides income or assets from the tax authorities. have been entrusted with. Embezzlement usually Tax evasion can incur high penalties when occurs when an employee steals money from their discovered. employer, such as by transferring sums of money to the employee’s own account or stealing money from Insider trading the cash register or petty cash tin. It might involve Insider trading is an offence related to the buying a large-scale corporate embezzlement, sometimes and selling of company shares. It occurs when a with more than one offender, or a small amount person (usually a stockbroker or company director) stolen from a local business. Money will often be obtains confidential inside information about a embezzled in small amounts at a time, sometimes company that will affect that company’s share price. with accounts or records modified in an attempt to The information will usually relate to the share price hide the conduct. Embezzled money can be difficult significantly increasing or dropping, which the to recover, even when pursued through the courts, offender will then take advantage of (for example, as it may be untraceable or the offender may be by buying or selling their own shares to reap the unable to repay the money they have stolen. benefits or avoid the losses). ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 17 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 Research 1.4 Search newspapers or go online to find two articles about white-collar crime. Make sure the articles are current and discuss different cases. Write a short annotation for each of the cases and attempt to identify the reasons for the accused committing the offence, the defence presented by the accused, and any other interesting or relevant facts of the cases. 19-153MR Computer hacker Steven Oakes jailed for unauthorised access and insider trading Australian Securities and Investment Commission media release 25 June 2019 IT consultant Steven Oakes has today been sentenced in the County Court in Melbourne to a total effective sentence of three years’ imprisonment, and ordered that he be released after serving 18 months of the term of imprisonment, on his own recognisance to be of good behaviour for 18 months, after pleading guilty to a total of 11 charges for insider trading, unauthorised access to data with the intention to commit a serious offence (insider trading) and the alteration of electronic devices required by the Australian Securities and Investments Commission (ASIC). Between January 2012 and February 2016, Mr Oakes hacked into the private computer network of Melbourne-based financial publisher, Port Phillip Publishing (PPP). Mr Oakes attended within the vicinity of PPP’s secure Wi-Fi network and used hacking software to intercept and decrypt Wi-Fi data to obtain the network login credentials of PPP staff. He did this with the intention of using PPP’s information to engage in insider trading. The inside information was buy recommendations for shares in particular ASX-listed companies from unpublished PPP stock recommendation reports. The publication of a buy recommendation by PPP for a particular company typically caused an increase in that company’s share price. Mr Oakes used this inside information on 70 occasions to buy shares in 52 different companies, before the reports with the buy recommendations were published. He made profits from selling the shares soon after the publication of the reports. During ASIC’s investigation, ASIC enforcement officers visited Mr Oakes at his home and gave him a compulsory Notice under the ASIC Act 2001 (Cth) requiring him to immediately produce to the officers particular electronic devices. Mr Oakes failed to produce the devices at that time, instead providing them at a later date. When the devices were analysed by ASIC digital forensic analysts, they found that Mr Oakes had altered the devices to delete data relating to ASIC’s investigation. ‘Technology-enabled offending, including cyber-related market misconduct, has been a priority for ASIC’s enforcement teams. Despite the sophistication of cyber criminals, ASIC can identify and investigate suspicious market activity connected to computer hacking activities, as it did in the case against Mr Oakes. Traders should be aware that ASIC continues to focus on cyber-related offending,’ ASIC Commissioner Cathie Armour said. 18 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime (Continued) In sentencing Mr Oakes, Her Honour Judge Fox said Mr Oakes was ‘motivated by greed’, that ‘insider trading is a form of cheating; it is not a victimless crime’. Her Honour also stressed, ‘if you access a secure computer network to commit a crime, you should expect to go to jail’. The Commonwealth Director of Public Prosecutions prosecuted the matter. BACKGROUND The emergence of cyber-related offending is amongst the most significant concerns for financial markets and the economy at large. ASIC continues to pursue cyber-related market offending but also encourages all entities operating in Australia’s financial markets to improve their cyber resilience, to combat against these sophisticated crimes. Given the central role that firms operating in Australia’s financial markets play in our economy, the cyber resilience of these firms and participants in our financial markets is a key focus for ASIC. ASIC’s Report 555 provides a snapshot of the cyber resilience of firms operating in Australia’s financial markets. It identifies key trends from self-assessment surveys completed by financial markets firms and highlights existing good practices and areas for improvement. ASIC uses specialist markets surveillance technologies for its supervision of markets, involving the analysis of large volumes of trading data, and real-time surveillance. These technologies enable ASIC to detect, understand and respond to misconduct such as insider trading. Computer offences was a lot of global publicity when hackers broke into Computer offences include various crimes related to the systems of Ashley Madison, an online dating hacking and unauthorised access or modification of service for people already married who want to have data. The Crimes Act 1900 (NSW) lists a number of an affair. The hackers said that if the website was computer offences, including unauthorised access not closed down, they would make all of the private to, modification or impairment of restricted data, customer data available online. Ashley Madison and more serious crimes, such as impairment of refused, and the hackers published the customer electronic communication or unauthorised access or data in August 2015. modification of restricted data with intent to commit a serious offence. The more serious computer crimes Fraud can incur a penalty of up to 10 years’ imprisonment. Fraud is another type of economic offence that Computer crimes might occur where the can include white-collar crime, property offences offender breaks through the security firewalls and computer crime. Fraud refers to deceitful or of a company’s computer and alters or steals dishonest conduct carried out for personal gain. the company’s data. Such crime might result It is often an element of other offences, such as in private financial data (such as that related to fraudulent misappropriation, fraudulent personation people’s personal bank accounts or credit cards) or obtaining credit by fraud. being made available to people who could use it fraud unlawfully. An employee of the target company will deceitful or dishonest conduct carried out for personal gain sometimes commit computer crimes. In 2015, there ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 19 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 Legal Links The Australian Government has established a website, ‘Scamwatch’, with information about current fraudulent scams. Legal Links Examples of data breaches can be found on the Weber Insurance Services’ website. Fraudulent crimes are becoming increasingly Identity crime might involve a person using relevant with advances in technology, especially another person’s personal details to apply for credit relating to internet use and electronic facilities such cards or loans, or open bank accounts to deposit as automatic teller machines (ATMs). Common fraudulently gained funds. Identity crime is one types of fraud include identity theft, internet of the fastest-growing areas of crime in Australia. phishing (fraudulently posing as a legitimate In 2015–2016, approximately 9% of respondents to website), or requesting funds or account details by surveys by the Australian Institute of Criminology email under fraudulent pretences. Nigerian email had suffered misuse of their personal information in scams or ATM skimming devices are two of the most the preceding 12 months, with 5% having financial well-known scams. losses. The Attorney-General’s Department Commonwealth fraud $89 million Police-recorded fraud Personal fraud $1.3 TOTAL $660 billion $2.2 million billion $149 million Serious fraud Cost of identity crime as a proportion of Commonwealth fraud Cost of identity crime as a proportion of personal fraud Cost of identity crime as a proportion of serious fraud Cost of identity crime as a proportion of police-recorded fraud Figure 1.7 The estimated direct and indirect cost of identity crime in 2017. 20 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime estimated that identity crime cost Australia law-makers have deemed them unsafe for general approximately $2 billion in 2017. Identity crime, as use; they include, for example, cannabis and heroin. with many other forms of computer crime, is here Restricted drugs or controlled substances include to stay. Increased spending on better security, drugs that are available via prescription only, such as enforcement and education is required to reduce cold and flu tablets or anti-depressant medications, the incidence of these types of crimes. and drugs that are restricted to particular scientific or medical uses. Drug offences In New South Wales, the Drug Misuse and Drug offences relate to acts involving prohibited or Trafficking Act 1985 (NSW) outlines numerous restricted drugs. There are many crimes that may offences related to prohibited or restricted drugs, be associated with drug abuse or addiction, such with some additional offences included in the as larceny, robbery, break and enter, or prostitution. Summary Offences Act 1988 (NSW). The main Drug offences focus on the movement of the drugs federal legislation relating to drugs is the Customs themselves, including, for example, the growing, Act 1901 (Cth), which will most often apply where selling and use of the drug. there is an international element to the offence, People have access to many different types of such as cross-border drug trafficking. The most drugs, both legal and illegal. Legal or unrestricted common drug offences relate to prohibited drugs drugs include paracetamol or caffeine. Illegal drugs and focus on cultivation, production, supply and are drugs that have been prohibited by law because trade (trafficking), possession or use of the drug. Figure 1.8 The Registrar General’s Office in Sydney during the NSW Special Commission of Inquiry into the Drug ‘Ice’ on 7 May 2019. The inquiry investigated the nature, prevalence and impact of the drug in New South Wales. ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 21 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 Some of the main offences are: ‘The only sentence under law is death by hanging’, possession of a prohibited drug – the drug the judges found.However, after five years in jail must be in the accused’s custody or control, and 18 months on death row, she won an appeal and the accused must know about it; this to Malaysia’s highest court. Malaysia had been offence includes shared ownership of the drug considering changes to its death penalty laws or simply minding the drug for another person for certain offences. As of November 2019, Maria use of a prohibited drug – the intentional Exposto had been released and returned to Sydney. consumption of the drug by any means (this will not apply if the use occurs in a medically Driving offences supervised injecting centre) Driving or traffic offences are some of the most cultivation – applies to the growth or cultivation commonly committed offences in New South of a prohibited plant, such as cannabis Wales. Driving offences are included in both the supply of a prohibited drug – this is a Road Transport Act 2013 (NSW) and the Crimes Act broad offence including offering or agreeing 1900 (NSW). to supply, whether or not the actual drug The police enforce and process many driving or money really changed hands; it can also offences through the imposition of on-the-spot include having drugs in your possession for fines. Such fines will generally relate to strict liability the purpose of supply, and single or multiple traffic offences such as speeding. These offences instances of supply. are easier to process as they only require the police to show that the offender committed the act; they Drug offences often carry severe penalties. Users do not need to consider the individual’s intention or may often face penalties such as attending a drug state of mind. Traffic offences are regulated by New rehabilitation program or complying with a good South Wales Roads and Maritime Services (RMS), behaviour bond; some cases may be heard in which controls the demerit system through which dedicated youth or adult drug courts. Suppliers, or offenders lose points from their driver’s licences if those who make drugs, are dealt with much more they are caught committing certain traffic offences. severely, as their actions are deemed to have a The most common traffic offences are: greater impact on the community as a whole. exceeding the speed limit Drug traffickers face lengthy jail sentences in driving without a licence or while disqualified Australia, particularly for international trafficking. ignoring road signs In some countries (including Indonesia, Singapore driving above the legal blood alcohol limit of 0.05. and Malaysia), traffickers may face the death penalty. Australian citizens, Andrew Chan and Serious driving offences are punishable by Myuran Sukumaran, were drug ‘mules’ (couriers) significantly higher penalties. Such offences will be who were arrested in Indonesia with other members dealt with through the courts and may result in the of the ‘Bali Nine’ drug-trafficking operation. They imposition of large fines, suspended or cancelled were put on trial in Bali and sentenced to death on licences, or imprisonment. Serious offences include 14 February 2006. Despite calls for clemency from furious or reckless driving, negligent driving then Prime Minister Tony Abbott, Foreign Minister causing death or serious bodily harm, and failing Julie Bishop and tens of thousands of Australians, to stop and give assistance at an accident involving on 29 April 2015 Chan and Sukumaran were shot death or injury. They also include driving under the by a firing squad on the island of Nusakambangan. influence of proscribed drugs or with an excessive Malaysia also had a mandatory death penalty for blood-alcohol level. anyone found guilty of carrying more than 50 grams of an illegal drug. In 2018, Australian woman Maria Public order offences Exposto faced the death penalty for drug trafficking Public order offences relate to acts that are deemed 1.5 kilograms of methamphetamine. Initially to disturb the public order in some way, such as a acquitted of the crime in December 2017, that finding disturbance in or in sight of a public area. There was overturned on appeal by the prosecution: are a number of public order offences listed in the 22 ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 Photocopying is restricted under law and this material must not be transferred to another party.  1 Chapter 1 The nature of crime Summary Offences Act 1988 (NSW) and under Part 3A nearby could have feared for their safety, and is of the Crimes Act 1900 (NSW). Public order offences punishable by up to 10 years’ imprisonment. Riot is are often acts that society deems inappropriate or a similar public order offence but involves 12 or more offensive when conducted in public, although they people using or threatening to use unlawful violence may be perfectly legal or acceptable within the for a common purpose. Other serious public order confines of one’s own home. offences include explosives and firearms offences, Some of the most common public order bomb hoaxes or participation in criminal organisations. offences are: obscene, indecent or threatening language or affray using or threatening to use violence on another that would behaviour in public cause a reasonable person present at the scene to fear for possessing a knife in a public place without their safety reasonable excuse riot obstructing traffic or ignoring a reasonable similar to affray, but with 12 or more people using or threatening to use unlawful violence for a common purpose police direction to ‘move on’ damaging public fountains or protected places. The use of police discretion in public order offences often results in higher incidences of discrimination, These offences will usually incur a fine or other with indigenous and young people more likely to lesser penalty. be targeted. However, some public order offences are more serious crimes that will usually be heard in court and can result in significantly higher penalties. More Preliminary crimes Preliminary crimes refer to offences that precede the serious public order offences are listed in the Crimes commission of a crime or where the crime has not Act 1900 (NSW). For example, the offence of affray been completed for some reason; for example, it may involves using or threatening to use unlawful violence have been interrupted or unsuccessful. Preliminary on another that would cause a person of reasonable crimes fall into two main categories: attempt and firmness to fear for their safety. It is a charge often conspiracy. laid as a result of a public fight or brawl where people Figure 1.9 A protester throws tear gas back at police officers during a demonstration in the district of Yuen Long in Hong Kong on 27 July 2019. ISBN 978-1-108-86282-0 Milgate et al. © Cambridge University Press 2020 23 Photocopying is restricted under law and this material must not be transferred to another party.  CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 attempt lawful reason for the conduct in question or have had an offence where a principal crime was attempted but failed no real intention of completing the apparent crime. or was prevented for some reason despite the intention to For example, in R v Whybrow (1951) 35 CAR 141, complete it a husband connected electricity to the soap dish conspiracy in the family bath in order to electrocute his wife. when two or more people plot to commit a crime together His plan did not work and when his wife came into contact with the soap dish she received only a shock. Attempt The court found him guilty of attempted murder because his intention for the act to result in death An attempt to commit a crime is considered an was clear, despite the fact that it had failed. offence and will usually be punishable by the same penalty as if the crime had taken place. Section 344A of the Crimes Act 1900 (NSW) states that ‘any person Conspiracy who attempts to commit an offence for which a Conspiracy occurs when two or more people jointly penalty is provided … shall be liable to that penalty’. conspire to com