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Saturday, October 9, 2010

HSC 2001 paper

(a)  Explain the difference between summary and indictable offences, illustrating your answer with examples from the above scenario.
Summary offences are considerably minor offences that are dealt with more quickly in comparison to indictable offences which are more serious and complex crimes requiring intensive legal scrutiny. The Summary Offences Act 1988 (NSW) outlines many summary offences e.g. violent disorder and traffic offences. In this particular case an example of a summary offence is Tom driving through two red lights, a summary offence such as this would most likely incur a fine and may be heard as a summary hearing, that is, in a
Local Court
with a magistrate alone. A summary hearing is generally quicker, less expensive and easier than a trial by jury, however summary offences can be less fair as there is more room for possible abuses of state power because the community is not involved in the justice process.  Other examples of summary offences apparent in this scenario are: the unlawful possession of a firearm by Helen and aggravated assault. 

Indictable offences are usually tried before a judge and jury in a District or Supreme Court. The District Courts have limited jurisdiction in regards to indictable offences as they cannot hear matters involving murder, attempted murder, treason, serious sexual assault and kidnapping. The Supreme Court hears all matters involving the most serious indictable offences. In this case Helen could be charged with indictable offences such as murder or manslaughter, armed robbery and supplying illegal drugs. Under the Criminal Procedures Amendment (Indictable Offences) Act 1995 (NSW) these offences would be classified as “strictly indictable offences” which would most likely be heard in the Supreme Court and incur heavy penalties such as imprisonment. The maximum penalties for these crimes are outlined in the Crimes Act 1900 (NSW).  

(b)  Define the following three elements of a crime and, with reference to the above scenario, provide an example of each element:
(i)           Mens rea; “mens rea” is a latin term which translates to “guilty mind” and refers to the accused’s intention to commit the crime, therefore the prosecution must prove that the accused was completely aware that their actions would lead to the likelihood of a crime being committed. The case of D.PP v Morgan (1975) 2 All ER 347 demonstrates the concept of mens rea. In the case presented it is apparent that Helen clearly had the “mens rea” or intention to commit the crime as it was calculated and preplanned, for example she “plans” to rob the bank with a “stolen gun,” indicating that she clearly had the intention to cause harm or commit a series of crimes.   
(ii)         Actus reus; Actus Reus, or the ‘act element’ refers to the physical commission of a criminal act or offence. It must be proven that the accused voluntarily carried out the act or omission of duty that breaks the law. In regards to this scenario, to prove ‘actus reus’ it would have to be established that Helen did indeed voluntarily rob the bank and shoot and as a result kill the guard. The ‘actus reus’ element of this crime could be verified by witnesses in the bank and Helen’s accomplice, Tom. It is important to note that it is essential that both the ‘mens rea’ and ‘actus reus’ are present to establish that a crime has been committed by the accused.
(iii)       Causation; Another element of a crime is causation also known as the “chain of causation”, that is, there is a direct link between the accused’s actions and the crime. This means that the accused’s conduct should be the substantial cause of the crime. The case of R v Blaue (1975) 3 All ER 446 highlights the need for causation; Blaue’s act was the “substantial and operative” reason for the death of his victim and not the victim’s refusal of a blood transfusion. In the given scenario causation can be established by proving that Helen shot the guard and her actions had lead to his death. Therefore, Helen would be charged with murder.  

(c) If you had to defend Helen and Tom in court, what possible defences to the charge of murder would you use for any charges faced by Tom. Justify the use of these defences.
If I was defending Helen in court there are a few possible defences, both partial and absolute, that we could use in response to the murder charge laid against her, these include mental illness, self defence, provocation and diminished responsibility.

Helen could use mental illness as an absolute defence, which would allow her to be acquitted or placed in a mental health facility on the grounds of “insanity” or “unsound mind.” For such a defence to be successful we would have to prove Helen did not have the necessary “mens rea” or intention to commit murder as demonstrated in the case of R v Porter (1936) where Mr. Porter was acquitted of the murder of his wife on the grounds of “insanity.” However this approach would not be in the best interests of the accused due to the fact that she obviously had the mental capacity to plan an elaborate armed robbery and steal a gun for that purpose, indicating that she clearly had the necessary “mens rea” to commit the crime. Therefore, the chances of acquittal would be highly unlikely. Instead, a better approach would be to use “diminished responsibility” a partial defence, which if successful could decrease the severity of the sentence by reducing the charge from murder to manslaughter. This defence exists when a person suffers from an “abnormality of mind” that impairs their mental responsibility. Helen could argue that the shock she suffered when the guard shot at her caused her to be of “abnormal mind” temporarily, which clouded her judgment and impaired her ability to act responsibly similar to the case of R v Chayna (1993) where a mother killed her two daughters and sister in law due to an “abnormality of the mind.”

Another defence Helen could use is self defence. Self defence is an absolute defence, which is often reffered to as the “all or nothing defence” because the accused is either acquitted or found guilty of the crime after admitting to both the “mens rea” and “actus reus.” According to this legal principle a person is allowed to use “reasonable force” while defending themselves and their property. This is quite a controversial defence as it is solely up to the judge’s discretion to decide what constitutes “reasonable force” in individual circumstances. In Helen’s case it is fair to assume that Helen used “reasonable force” to defend herself as she was being shot at by the security guard who initiated the violence. However, Helen was committing a serious crime while defending herself and she unlawfully had possession of a firearm which the judge would consider as an ‘aggravating circumstance,’ making it unlikely for her to be acquitted on the grounds of “self defence.” Alternatively Helen could use the partial defence of provocation. If successful the defence of provocation would result in reduction of charge from murder to manslaughter. To be successful Helen would have to claim that she was aggravated by the security guard’s actions and that any ordinary person would have reacted in the same manner. She could assert that the security guard shooting at her constituted provocation.

In regards to Tom, he could use the defence of “mistake or accident.” He could also use duress but as there was no threat or danger to his safety or life, this wouldn’t be an appropriate or legitimate defence unless he truly thought there was a danger to his life.

If using the defence of mistake or accident, Tom could claim that he was unaware of Helen’s plans to rob the bank and that she had only asked him to drive the car for her without disclosing further information. He could also claim that his dependence on drugs caused him to make a temporary lapse in judgment or he suffered “abnormality of the mind.” He could try and claim diminished responsibility but considering the fact that the drugs were illegal this case has a slim chance of success although it is still possible, e.g. in the case of T v Tasmania the offender’s sentence was reduced on the grounds of “diminished responsibility”  where the offender experienced a “psychotic episode brought about by substance abuse.”  

(c)  Discuss the purpose and effectiveness of possible punishments the judge could consider before sentencing Helen and Tom.

There are many purposes for imposing punishments on offenders, the main purposes being denunciation, retribution (or revenge not only on behalf of the offender but all of society), rehabilitation (or reform) of the offender, deterrence (both specific and general) and protection of the community. In response to the effectiveness of sentencing the Director of Public Prosecutions, Nicholas Cowdery claims that “the extent to which sentences achieve any real level of satisfaction is problematic…but in humane societies it is the only mechanism we have for dealing with criminal offenders and trying to secure general compliance with the law.”

Deterrence is an important aspect of punishment as it aims to dissuade the offender from committing future crimes (specific deterrence) but it also dissuades the general public from committing similar crimes (general deterrence). The aspect of rehabilitation is also important because it involves changing the behavior of an offender to that which society deems acceptable. The third major aspect is retribution which allows the victim of the crime and the community to exact revenge on the offender through legal processes.

There are a range of punishments the courts in Australia can impose on those found guilty of committing crimes, ranging from imprisonment and periodic detention to imposing fines and community service orders (CSO). The extent of effectiveness each type of punishment achieves varies and is questionable. In this particular case the judge can explore quite a few of these punishments to impose on Helen and Tom.

The most common and severe type of punishment imposed is imprisonment with one in 600 adults in NSW incarcerated according to the Department of Corrective Services. Imprisonment involves the detention of an offender in gaol for a specified period. The effectiveness of imprisonment is debated as some argue that although it may incapacitate offenders so they cannot re-offend it may not always rehabilitate them, instead it might have a negative effect on their behavior, acting as a short term deterrent rather than a long term one. In the SMH article “Our Convict State-one in 600 behind bars” (3/1/06) the director of the NSW Institute of Criminology, Chris Cunneen said “You could argue that you’re providing community protection by putting people into custody but you are not providing any rehabilitation impact.” In the case of Helen and Tom, Helen would most likely incur a prison sentence for armed robbery and murder or manslaughter, the maximum sentence for murder in the Crimes Act 1900 (NSW) is life imprisonment. Imprisonment would be a suitable punishment for Helen as she is clearly a threat to the welfare of the community. In theory, imprisonment serves the purpose of a deterrent, however recidivism rates would indicate otherwise with 60% of Australian prisoners returning to custody within two years. It’s worthwhile to note that NSW recidivism rates are the highest in the country.  Imprisonment is also a financial burden on the community as NSW tax payers spend an average of $161. 50 a day per inmate according to the SMH article “NSW leaves nation behind in rate and cost of jailing people” (05/12/03). It is appropriate to say that imprisonment is an effective punishment for offenders who commit serious crimes and are a genuine threat to the community rather than young and first-time offenders.

Another form of punishment is a good behavior bond where the offender agrees to be on good behavior for a specified time and may have to follow certain conditions e.g. regularly reporting to the police and staying within a certain area. This can be seen as an effective alternative to imprisonment as it does not draw the offender into the prison system and is less expensive. However, it may be difficult to supervise conditions imposed on the offender. A good behavior bond would be particularly suitable for Tom, who is apparently less culpable than Helen. In this case a good behavior bond may also help rehabilitate Tom if a condition of the bond was to attend a drug rehabilitation centre regularly for his drug problem. This form of punishment is particularly effective for young, first-time and less serious offenders and offenders with mental health issues and/or drug and alcohol problems.    
Another possible sentence is a probation order; this is similar to a good behavior bond. Once the offender agrees to good behavior for a certain time, they have to report to a probation officer regularly who will monitor them. This is a more serious punishment than a good behavior bond but it is still suitable for less serious offences and provides an opportunity for rehabilitation. Theoretically this would be a better option for Tom than a good behavior bond because he would be properly supervised by an officer which would reduce the chances of him re-offending. However, according to the Sydney Morning Herald article “Supervision fails to stop parolee crime” (22/05/08) a problem with probation orders and good behaviour bonds is that they do not act as an adequate deterrent to crime as one-third of offenders are convicted of a further crime within two years. Also the article shows that offenders on good behaviour bonds under the supervision of probation and parole officers are just as likely to commit further crimes as offenders placed on unsupervised bonds, indicating that it takes up police time that could be better spent.  Don Weatherburn, the director of the NSW Bureau of Crime Statistics and Research, said “If you want to reduce the risk of re-offending you have to address the underlying causes of crime…you cannot supervise people 24 hours a day, seven days a week," indicating that instead of using measures like probation orders the legal system would be more effective if underlying causes of crime were addressed, this includes social issues such as substance abuse, education and unemployment.  
A Community Service Order (CSO) is another means of punishment. A CSO requires the offender to perform unpaid community work in his or her leisure time. This is an inexpensive alternative to a prison sentence and is more effective in the sense that there are more chances of rehabilitation for the offender. It is also retributive as the offender is “giving back to the community.” It is also positive because it gives the offender an opportunity to gain employment and change their life around, it can be more effective as a corrective means. The judge could also consider this punishment for Tom but not for Helen as she is a more serious offender and poses a greater risk to the community than Tom.
Since Tom seems to have committed the crime due to being dependent on drugs he could be referred to the
Drug Court
, which was established in 1999 at Parramatta. This court deals specifically with drug related offences such as Tom’s. In R v Tucker (2001) Tucker was admitted to the Court’s program because most of his crimes were committed to satisfy his drug addiction. The
Drug Court
focuses on deterrence and rehabilitation as it tries to address the underlying issues of offenders.  According to the NSW Health Centre for Drug and Alcohol in 2003 87% of participants had not been sentenced for an offence committed while on the Drug Court Program.
Imposing fines as a form of punishment is also common but this would not be suitable for Helen as it would not act as a great deterrent for her, especially because she is a serious offender. Fines are usually imposed for summary or minor offences like traffic offences e.g. in the scenario Tom drives through two red lights.
There’s also periodic detention which involves detaining the offenders periodically i.e. weekends. This may be suitable for Tom because it is less costly then imprisonment. It also allows the offender to continue with education or employment although it may give him an opportunity to re-offend. 

Since Helen and Tom are both in the illicit drug trade the judge may recommend that they attend regular drug counseling sessions.


  1. Dear Mr. Michael Atteya, I am preparing for my HSC this year and found your notes really helpful. Thanks for posting them.

  2. Hey- can I just ask you whether there is a test for the element of causation? - how do the courts assess whether the action(s) of the defendant are a significant factor(s)?


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