Crim Notes Semester 2

8/13/2019 Crim Notes Semester 2

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Criminal Law Semester 2 Notes

Week 1 ATTEMPTS

A person who does not fulfil an intention to commit any offence, under certaincircumstances, will still be charged with an attempt to commit the offence.

The scheme of the code in relation to attempts is to establish a general attemptoffence, and to supplement that with some specific attempt offence.

- Sec535 of the code makes it an offence to attempt to commit an indictableoffence, punishment for which is determined under sec536, 537, 53. !naddition to these general pro"isions, there are also a number of specificpro"ision #eg s3$6 attempted murder%. &ther statutes may also makepro"ision for attempts, eg, '(A)

- Sec* of the code defines attempts. There are four elements+- !ntention to commit offence)

- egins to e-ecute intention by means adapted to its fulfillment)- (anifests intention by o"ert act)- 'oes not fulfil intention so as to commit the offence #unnecessary to pro"e

does not fulfil intention%.

- The onus is on the rown for the first three elements / note it is notnecessary to pro"e that the offence was not committed) intention to commitan offence is essential, e"en where the offence itself does not include anelement of intent #eg rape%. 0owe"er, proof of intention alone is not sufficientto pro"e attempt. The second element of an attempt is that the accused mustbegin to e-ecute the intention by 1means adapted to its fulfillment2.

ELEMENT 1:!ntention to commit offence #offence see sec 1punishable act oromission%) the offence that was attempted doe not ha"e to ha"e a specific intentelement)

ELEMENT 2:accused must begin to e-ecute the intention by 1means adaptedto its fulfillment2. (ust get past preparation 4 at what point does mere preparationend and the conduct mature into an attempt arious approaches ha"e beensuggested 4 one is the last act test, which reuires consideration of whether theaccused has done the last act in his8her power towards committing the offence#Eagleton%. This has been re9ected on the basis that in many cases it lea"es littlepractical scope for the law of attempt because the last act may result in thecommission of the offence itself #Williams, Chellingworth, Edwards%. :g, on strictapplication there would be no con"iction of attempted murder, by shooting,unless the trigger was pulled #White%. Another approach was to reuire that theact of the accused form part of a series of acts which would constitute its actualommission if not interrupted #AG Reference no1%. This test has also beencriticised because it falls short of defining the e-act point the series of acts canbe said to begin+ Campbell!n Williams,another approach was adopted 4 the

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uneui"ocally test, whereby the physical act necessary to constitute an attempt isregarded as complete if the accused does an act which is a step towards thecommission of the specific crime and that act cannot reasonably be regarded asha"ing any other purpose than the commission of that specific crime #see alsoNicholson, Caitlin, White%.

See Williams where it says that it is unlikely that a definite test will e"er beadopted because then people could work out how to escape their act being anoffence and thereby get away with crimes.

So there is no single test, and it is thus a uestion of fact as to whether theconduct of the accused is sufficiently pro-imate to the commission of the offence.#pro-imity test%

ELEMENT 3:accused must manifest his8her intention by some o"ert act, thatis, an act capable of being obser"ed by someone else 4 mere intention then, is

insufficient to amount to an attempt.

IMPOSSIBILITY

The definition of attempt in sec* contains four pro"isos 4 it is immaterial, e-ceptfor the purposes of punishment+

- whether the offender does all that is necessary for completing thecommission of the offence)

- fulfilment is pre"ented by circumstances independent of will)- the offender desists of their own motion)- impossibility.

!t is immaterial that by reason of circumstances not known to the accused it isimpossible to commit the offence 4 this pro"ision ser"ed to make the accusedresponsible for an attempt where he8she failed to complete it because ofineptitiude, inefficiency or the adoption of insufficient means 4 for e-ample+

- the pick/pocket who dips into an empty pocket)- the murderer who uses a non/lethal dose of poison !Collingridge"#- the burglar who employs an insufficiently strong 9emmy)- the thief who enters a room to steal a particular diamond that is not

there because the owner has remo"ed it !White"#- the accused who attempts to recei"e stolen goods which, it turns out,

are not stolen !Shi$p%ri"#

- the accused who attempts to import a prohibited substance where,unbeknowns to him, the substance is not prohibited !&ai and 'ran"#

!n these situations, the intended crime was not committed because of fatualimpossibility due to circumstances not known to the accused 4 ne"ertheless, hewill be guilty of an attempt pro"ided the offence attempted was a recognised


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offence, the pro-imity test is satisfied, and there was an intention to do it !Lee#(ritten $ Alpog%t"#

1means adapted2+ the accused must ha"e means adapted to the fulfilling ofhis 8 her intention 4 this is debated 4 but it is safe to assume it means+ it is

sufficient for the accused to ha"e begun to put his8her intention into e-ecution bydoing an act that is more than merely preparatory to the commission of theoffence.


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An illustration of the operation of s;7+?erson charged with murder and manslaughter, and is either acuitted orcon"icted) s;7 pro"ides a complete defence to a subseuent charge of murderarising out of the same set of facts) also pro"ides a defence if the accused is

subseuently charged with manslaughter 4 this is because the accused, at firsttrial, was in 9eopardy for manslaughter as well as murder because it is analternati"e "erdict during the first trial #s576%. Thus at the subseuent trial formanslaughter, the accused is in 9eopardy for the second time for that crime ands;7 may be raised y the accused. The ob"erse is also co"ered by the pro"ision 4eg, say the accused were charged with manslaughter at the first trial and eitheracuitted or con"icted 4 if he is later charged with murder for a second trial, he isagain in 9eopardy for manslaughter because manslaughter is an alternti"e "erdictfor murder at the second trial #s576%.

Ra$%$&' %1"

The accused who wishes to raise the plea under s;7 will do so by #instead ofpleading not guilty or guilty% stating that he8she has been lawfully con"icted oracuitted of the offence for which he8she is in 9eopardy on that second occasion,and in doing so, it is sufficient for the offence to be referred to in terms by which itis commonly known #see ss5>#3%/#5%, 6$% 4 because it is a defence, the onus ison the accused 4 must be discharged on the balance of probabilities !Co%ghlan $.o%ng"

Su((e%%)ull! Ra$%$&' %1"To successfully raise s;7, the earlier proceedings must ha"e reached finality inthe sense that the accused was con"icted or acuitted. @here in the first trilathere was a nolle prose-%i, this is not enough, or if the 9ury failed to find a "erdict,this is not enough. Also where a new trial is ordered by an appeal court afteruashing a con"iction, the plea will not succeed !Nicholas%.

Sec;7 is not limited to indictable offences, and potentially will ha"e application inany ourt for any type of offence 4 in practice, it is most likely to arise for anindictable offence.


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under rule ; because might ha"e been con"icted of it in ;>>7 if it was analternati"e "erdict.

. !f in the past trial in ;>>7 you were tried and acuitted upon an indictment,look at alternati"e "erdicts ) in ;>>> present trial, if you are charged with anoffence, if it was an alternati"e in the ;>>7 trial, this will be a complete

offence)3. !f you had already been acuitted on indictment of an offence of which mightbe con"icted on the present indictment 4 raise this defence if you are nowcharged for an offence which was an alternati"e "erdict on the first trial)

*. !f you had already been con"icted of an offence of which might be con"ictedon the present indictment or complaint 4 look at pre"ious alternati"es and ifso, use this defence.

5th rule 4 additional rule+ when summary offences are dismissed+/ s7$$ 4 may issue a certificate of dismissal which is a bar to further prosecutionfor the same cause) only a"ailable after hearing on the merits 4 +a e/ parte

0atane4 ie, after trial and the matter being thoroughly gone into) applies to bothsimple offences and indictable offences being dealt with summarily.

,o- o !ou )$& ./e Al.er&a.$0e er$(.% sources+

;. alternati"es actually 9oined on the indictment #s567 C 56 code%). alternati"es a"ailable in hapter 6; of the ode 4 eg, s575

circumstances of aggra"ation) s3;7 doing D0 with intent)s576murder C mansalughter #note e-tends in the case of motor "ehicles todangerous dri"ing "ide 3) s57 offences of a se-ual nature) s5;offences of dishonesty) s53 attempts to commit always an alternati"e.

e&eral er$(.% 0$% a 0$% Par.$al er$(.%:)*+alloran $ )*(rne+ eg indictment charging count of rape 4 "erdict of 1notguilty2 is a general "erdict) eg indictment charging a count of rape and a count ofindecent assault with intent to rape and a count of indecent assault 4 say there isa "erdict of guilty on the third count, but can2t agree on counts ; C , T0!S !S


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The application of sec;6 depends on the interpretation of the word 1act 8omission2. !n the ma9ority of cases where sec;6 has been tried, it has been heldto ha"e no application. Se"eral cases relate to the dri"ing of a motor "ehiclewhere the accused has been charged with two offences arising out of the oneincident. These ha"e included dri"ing under the influence of alcohol and

dangerous dri"ing+ Gordon, e/ parte# 'ricleban.

!n Gordon, the accused, under the influence of alcohol, was dri"ing on the wrongside of a di"ided highway and collided with a motor cyclist 4 he was con"ictedand punished in a magistrate2s ourt of being in charge of a motor "ehicle whileunder the influence. Subseuently, he was con"icted of dangerous dri"ingcausing grie"ous bodily harm but no penalty was imposed in respect of thatoffence on the basis that he had pre"iously been punished for the same act 4appeal held 4 that s;6 had no application because the punishable act in eachoffence was different. @illiams E pointed out that the punishable act in respect ofthe drink dri"ing offences was the act of dri"ing in a particular condition 4 the

manner of dri"ing was not rele"ant. &n the other hand the punishable act inrespect of the dangerous dri"ing charge was the act of dri"ing in a particularmanner 4 he condition of the dri"er not rele"ant + 1it seems to me the proper testis whether the same wrongful act or ommission which pre"iously resulted incon"iction and punishment is the central theme, the focal point and the basic actor omission in the later offence charged.

This broad approach of the word act was also adopted in 0hilip Carbone#no%4 there the accused had dri"en a motor "ehicle into a stationery "ehicle in whichtwo people were in9ured. 0e was con"icted and punished on one count ofdangerous dri"ing causing bodily harm, but although con"icted of such a secondcount, no punishment was imposed due to s;6. Appeal 4 held according todefinition of 1offence2 in s code, the act which makes the accused liable forpunishment was the result of his dri"ing 4 and that was not limited to the mans bywhich that was brought about. ?idgeon AE described the gra$amanof theoffence as causing bodily harm to a person by dri"ing a "ehicle in the specifiedmanner. ecause bodily harm was caused to separate "ictims, there wereseparate punishable acts and s;6 had no application. This interpretation will gi"elimited scope to the pro"ision.

3iripatea+ s;6 held to apply.

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Week% 253: PARTIES

omplicity pro"isions apply to all offences in Fld 4 see sec riminal ode Act;>>.

@here more than one person is in"ol"ed in the commission of any offence,criminal responsibility may be determined in accordance with ss7, and >, theparty pro"isions of the code. A person who is party to an offence is deemed toha"e committed the offence and may be charged with ha"ing committed it. Gnders 7, the following categories of parties are gi"en+

#a% e"ery person who actually does the act that constitutes the offence)#b% e"ery person who does an act to enable or aid anyone to commit the

offence)#c% e"ery person who aids in committing the offence) any person who

counsels or procures anyone to commit the offence.

!n their operation , the categories ha"e been held to reflect the common law+Wles e/ parte# 4ohns# Webb e/ parteThe scope of s7 is e-tended through s C >.

"6a7 O))e&(e Jo$&.l! #o88$..ewhere an offence is 9ointly committed #for e-ample, where persons combine toperform the acts which constitute the offence%, the liability of both arises unders7#a%. @here two people open a window in order to break another2s premises

with the intention of stealing property within, each of them is deemed to ha"ecommitted the offence of housebreaking or burglary as a principle offender unders7#a%. Also, where one person steals property from the "ictim, while the otherperforms "iolence on the "ictim, both will ha"e committed robbery. These partieswho actually do the offence are called 1principles in first degree2 at common law.This pro"ision e-tends to those who make an omission.

"6b7 A$$&' 9 E&abl$&'"6(7A$$&'"67 (ou&%ell$&' a& pro(ur$&'These sections operate to make the aider or counsellor liable in a deri"ati"e

manner 4 that it, liable for the offence actually perpetrated by another 4 thus, inthe burglary e-ample abo"e, of only one had entered the premises, a person whostayed outside to keep watch would be liable under 7#b% or #c%.- sec7#b% co"ers the enabler 4 the person who makes the crime possible by

enabling it or aiding it. 7#b% parties are known as 1accessories before the fact2at common law)

- 7#c% co"ers the person who aids in committing the offence also)

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- Similarly, under s7#d%, a person who counselled or procured the thief tocommit the offence would also be liable for burglary.


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- To Ascertain the ommon ?lan + measured by knowledge of foresight of theparticipants #4er$is%)things necessarily in the contemplation #4ohns%) includesthings foreseen though not agreed to #&cA%liffe%) must know the essentialfacts that constitute the offence.

Although the accessory must knowingly aid procure of counsel, it is notnecessary that the accessory desired or intended that the crime of theperpetrator be committed and guilt may arise e"en where the accessory isindifferent to the commission of the offence+ Lnch $ 500 for Northern 6sland4where the accessory was held to ha"e aided a murder by dri"ing the murderer tothe scene, e"en though there may ha"e been e"idence that the accessoryregretted the crime or was horrified to see it+ National Coal (oard $ Gamble.

!t is not necessary the accessory know the precise crime for which the aid,counselling, or procuring is gi"en+Anc%ta. :g, where the accessory dro"e aterrorist to a hotel, knowing he was either going to deposit a bomb or shoot

people, accessory held liable for murder caused by the conseuential bombblast+ 500 northern 6sland $ &a/well

!n many cases where the party pro"isions apply, there is some consensusbetween the accessory and the perpetrator. This will usually occur when aidingor counselling are in"ol"ed and it will be less likely in the case of procuring.0owe"er, there will be situations where there is no formal agreement betweenthe parties and where the perpetrator is unaware of the in"ol"ement of theaccessory+ Rannath &ohan

!t thus becomes a uestion of whether the accused has done an act for thepurpose of aiding, counselled, or procuring the perpetrator in the commission ofthe offence 4 ob"iously there will be some o"erlap between 7#b% and #c%. 7#b%also appears to include the person who intended to aid, did an act which wascalculated to aid, but who did not in fact aid in the commission of the offence 4perhaps because of an act or ommission, through no fault of the person, actuallytended to hinder the successful commission of the offence.

Gnder 7#c%, aiding may arise in circumstances where the accessory does notpro"ide physical assistance to the perpetrator in the carrying out of the offence.There must be some positi"e encouragement on the part of the accessory, egsee Cone


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sec7#d%, the person can be either charged with the offence, or with counselling orprocuring its commission. The common theme is that the procurer plans thecommission of the offence, and therefore carries the primary responsibility forcausing it to occur. !n such instances where the person who was encouraged todo the offence #called 1the principle2% may ha"e a defence, but the law of

causation will often be used to pro"ide them with liability anyway.

A combination of s7#;%#d% and s> will find a counsellor guilty if+- offence committed was counselled, but no way of committing was

counselled #s7#;%#d%)- the offence committed was committed and was committed in the way

counselled #s7#;%#d%%)- different offence committed to that counselled but facts constituting the

offence actually committed are a probable conseuence of thecounselling #s7#;%#d% and s>%)

- the offence committed was counselled but was committed in a way not

counselled and the facts constituting the offence actually committedare a probable conseuence of carrying out he counsel #s7#;%#d%, ands>% 4 eg Stuart, counselled to commit arson but commited murder.

#see section below for s>%.

ecause s7 is determined sub9ecti"ely, the accessory will not be criminallyresponsible for any further offence which falls completely outside the scope ofthe accesory2s contemplation.

At common law, it has been held that the accessory is liable for punishment forthe secondary or incidental offence so long as it was contemplated as a possible

incident of the originally planned "enture+ 4ohns# &iller# Chan Wing:S%Although the test may seem far reaching, it is limited by the reuirement that itmust ha"e been contemplated by the accessory 4 albeit as a possibility, and,thus the test is still sub9ecti"e. At common law this is referred to as the doctrine ofcommon purpose and the changing nature of the test for accessorial liability atcommon law can be seen in &cA%liffe

#See sec below%

I&&o(e&. A'e&.:The last sentence of the section pro"ides that where the accused procuresanother to do an act that would ha"e been an offence if the accused had done it,the accused is not guilty of the offence. :g, if the accused had intentions of killingsomeone by poisoning their food, and the third party innocently ser"ed thepoisoned food to them, the final sentence of s7 makes the accused liable for thekilling and the 3rdparty is not guilty of an offence+ White $ Ridle# Cogan.

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#offences committed in prosecution of common purpose% ha"e been interpretedin a way which pre"ents the perpetrator and accessory from being con"icted ofdifferent offences8(arlow+ three perpetrators were con"icted of the murder of "ictim who wasbeaten to death in prison 4 arlow did not take part in the killing, he was

acuitted of murder but con"icted of manslaughter on the basis of his accessorialin"ol"ement, as he reuested the "ictim to go to the gymnasium #where theykilled him%, and he spoke with the perpetrators afterwards. Trial 9udge2s directionwas that different "erdicts could be returned 4 9ury followed this and this was inaccordance with pre"ious pro"isions in Fld+ see for e-ample, 4er$is. Appeal court

4 held murder and manslaughter were separate crimes, and arlow could onlybe con"icted of murder along with the perpetrators, or be con"icted 4 so hiscon"iction was uashed. ourt followed +ind and +arwood. on"iction uashedbecause lack of e"idence of accessorial in"ol"ement. The decision relatesspecifically to s 4 howe"er, s7 is also e-pressed in terms that the accessory isdeemed to ha"e committed the offence committed by the perpetrator and it would

seem that reasoning in those cases has eual application to s7.

Sec #offences committed in prosecution of unlawful purpose% operatesindependently to establish a separate basis of liability beyond 7#b% and #c%.Iiability under s reuires proof+

#a% of a common intention to prosecute an unlawful purpose #consider thescope of the intention 4 what was the unlawful purpose agreed to bythe parties &iller%)

#b% that an offence was committed in the prosecution of the commonunlawful purpose #0hilips $ Lawrence# +ind and +ardwood%) and

#c% that the offence committed was of such a nature that its commissionwas the probable conseuence of the prosecution of the commonunlawful purpose+ #this imports a remoteness test and does so in termswhich e-tend accessorial liability beyond that which is found in s7, see0hilips and Lawrence 1?robable conseuence2 has been held to bewhen a person of a"erage competence and knowledge might bee-pected to foresee as likely to follow upon the particular act) though itmay be that the particular conseuence is not intended of foreseen bythe actor 4 from St%art, per Dibbs E".

So, sec e-tends the scope of secondary liability of sec7 in cases 1where two ormore persons form a common intention to prosecute an unlawful purpose2. Thecommon plan8purpose could be for them to be 9oint principles in committing theoffence) or for one to be the principle and one to be the secondary party. Allparticipants are then liable for any offence committed by any one of them in theprosecution of the unlawful purpose, as long as the offence was a probableconseuence of prosecuting it. :g when a murder is committed in the course ofan armed robbery, s may operate to make all the robbers liable for the murder,e"en though it was unplanned. The 1common purpose2 includes any reasonableinferences drawn from circumstances #4ohns%. &n the surface, s would appear

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to encompass the offence which is the sub9ect of the common purpose as well asan additional offence. There would howe"er, be liability for the planned offenceunder the law of 9oint participation or aiding. !t has therefore been said that sapplies only to offences falling outside the common purpose #4er$is"

The condition for e-tending the scope of secondary liability is that the additionaloffence should be a probable conseuence of carrying out the common purpose.This test is ob9ecti"e not sub9ecti"e. !t is not reuired that the conseuenceactually be foreseen by the secondary party #St%artt"- 1&ffence committed of such a nature that its commission was a probable

conseuence2)- use the forseeability of a"erage person #(rennan%)- 1apparent to ordinary person in accused2s position2 #St%art,Eacobs E%)- 1a substantial or real chance2 #+inds and +arwood, per ?incus E%.- The eui"alent rule at common law reuires actual foresight of the further

offence but only as a possibility #4ohns%.

A probable conseuence has been held to mean no more than one which is areal or substantial possibility #+ind and +arwood%. (oreo"er, it has beensuggested that where a plan contemplates contingencies, the issue is simplywhether the offence was a probable conseuence of carrying out the contingentplan. The likelihood of the contingency e"entuating can be discounted #+ind and+arwood"

So 4 for offences beyond the scope of the common plan #those notcontemplated, forseen by accused, or merely incidents% these can still beco"ered by s 4 may still e-tend criminal responsibility.

#o&%$er ./e L$ab$l$.! o) ./e Per%o&% I&0ol0e:- The assisting party is known as the 1secondary2 party)- These may be con"icted of the offence for which they ha"e pro"ided

assistance 9ust as if they were principles)- the secondary party can be con"icted e"en though the primary party is not)- s can make both parties 9ointly liable for any offences committed by them)- s> can make any person who pro"ides counsel also guilty of the offence)- mere presence does not constitute secondary participation, as opposed to

encouragement etc)- can be con"icted of differing offences + eg, the secondary party can ha"e

greater culpability and commit a more serious offence 4 in this case, thesecondary can get charged with a more serious offence #eg aggra"ated%, andthe principle can commit a lesser offence)

- or if the secondary offender is deemed to ha"e done the act of the principle,the secondary offender will not be liable to same e-tent as principle offender)secondary offender deemed only to the e-tent that act done)

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- if howe"er, there is a common purpose, secondary offender considered toha"e done that act of the principle offender in so far as the act is co"ered by acommon intention.

W$./ra-al )ro8 ./e pla&: #&enniti"@ithdrawal from the plan can be a defence. !n &enniti,appeal court took the

"iew that certain common law principles respecting withdrawal could beconsidered in interpreting the scope of all forms of secondary liability. Thecommon law has accepted this defence but sub9ect to the reuirement that thecontribution must be cancelled out, or according to some looser "ersions, that atleast the secondary party has done e"erything that can be reasonably e-pectedto neutralise his contribution and matters must not ha"e progressed so far thatthe withdrawal action was incapable of being effecti"e.

'ual tests of White $ Ridle+- acts of withdrawal must be capable of being effecti"e ?IGS accompanied by

such reasonable action as can take to undo pre"ious participation #Thomas

E%)- necessary to actually cancel pre"ious participation such that if offence

committed is by inter"ention of new cause #Stephen E%.

S= (oe: 8oe o) e>e(u.$o& $88a.er$al:!s a person counsels or procures another to commit offence A, and the personcommits offence instead, in what circumstances will the counsellor8procurer beguilty of offence see s> code. !t is immaterial that the wrong offence iscommitted 4 pro"ided that in either case that the facts constituting the offenceactually committed are a probable conseuence of carrying out the counsel. !neither case, the person who ga"e the counsel is deemed to ha"e counselled the

other person to commit the offence committed by him #uoted from the codesection>%. !n s>, it must be shown that+#a% the accessory counselled the perpetrator to commit an offence)#b% an offence was committed by the perpetrator after such counsel

#St%art%) and#c% the facts which constituted the offence actually committed were

a probable conseuence of carrying out the counsel.

so if these reuirements met, the accessory is deemed to ha"e committed theoffence and it is immaterial whether the offence actually committed is the sameas that cunselled or a different one, or whether the offence is committed in theway counselled, or in a different way.

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Week ? Se(.$o& 23 #oe @ INTENTION AND MOTIE

?ursuant to sec 3 of the code, a person is not criminally responsible for an actwhich occurs independently of the e-ercise of will, or for an e"ent which occursby accident.

3#% !ntention !mmaterial unless 1e-pressly declared to be an element of theoffence2 4 so, unless the intention to cause a particular result is declared to be anelement, or unless a person2s moti"e is otherwise e-pressly declared to be anelement, the result intended to be caused by a person and the moti"es whichinduce the person to do the act, are immaterial so far as criminal responsibility isconcerned. 0owe"er, there are many sections of the code which make e-pressreferences to intention. Widgee Shire Co%ncil4 moti"e is immaterial.

3#;% ontains e-cuses. A person is not criminally responsible for+#a% an act or omission that occurs independently of the e-ercise of the person2s

will, or for)#b% an e"ent which occurs by accident.


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which constitutes an assault #3aprorono$si%. The pro"ision may also apply tocertain property offences, eg wilful damage to property #Hissier%.1A person is not criminally responsible for an e"ent which occurs by accident2 R $

A%ldTest for accident 4 from 3aporono$si81it must now be regarded as settled that

an e"ent occurs by accident within the meaning of the rule if it was aconseuence which was not in fact intended or foreseenby the accused andwo%ld not reasonabl ha$e been foreseen b an ordinar person.

!n 3aporono$si, men arguing in bar 4 accused insulted by "ictim, and struckhim a blow with glass that was in the "ictim2s hand 4 caused D0 4 was this anaccidental e"ent 3 elements must be established to be an accident+;. e"ent must be intended by accused #sub9ecti"e test%). not foreseen by accused #sub9ecti"e%3. not reasonably foreseen by an ordinary person #ob9ecti"e%

R 'aitersrestated this test. 1rown is obliged to establish that the accusedintended that the e"ent in uestion should occur, or foresaw it as a possibleoutcome. &B that an ordinary person in the position of the accused wouldreasonably foresee the e"ent as a possible outcome.2

- note, knowledge peculiar to the accused is rele"ant #Hitto E in allance and?hilip E in 3n%tsen%.

- note, e"ent must be so unlikely that an ordinary person would not ha"e takenit into account 4 allance $ 'he ;%een.

- The e-act nature of an e"ent need not be foreseen, 9ust likely or probable#3n%tsen / the woman left on side of road and was then run o"er%)

-

Notan accident if certain or more probable than not or substantial likelihood.

S&, an AT J ::


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?ro"ides that a person is not criminally responsible for an AT or &(!SS!&.er&al .e%.+ Hing E in Radford $ 'he ;%een+ 1temporarydisorder or disturbance of an otherwise healthy mind #ob9ecti"e test% caused bye-ternal factors that cannot properly be regarded as a disease of the mind2.- internal 4 mind problem eg insanity-

e-ternal 4 eg in Radford, not a mind problem like insanity, reaction of ahealthy mind to e-ternal stresses

!n Radford,he was a ietnam "eteran, he was under stress, and his wife had lefthim for another woman. 0e went to the home of the other woman where the wifewas also li"ing, and he had an (;6 with him. 0e walked up the path and thegirlfriend came out with a baseball bat) ended up killing her) he said it wasanother guy who did it 4 disassociated himself from the situation 4 claimed it wasdue to the stress, an e-ternal stimuli caused an act independent of his will, butclaimed he was not insane. laimed it was a temporary disorder of an otherwisehealthy mind. Eury on retrial said no, so was guilty of murder.

I&.er&al9E>.er&al Te%.:1essential notion is that in order to constit%te insanit there m%st be an %nderling

pathological infirmit of the mind, be it of long or short d%ration and be itpermanent or temporar, which can be properl termed mental illness, as distinctfrom the reaction of a health mind to e/traordinar stim%li* #


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remember it. 0er counsel sought to rely on in"oluntary act #sane automatism%.:"idence of dissociation by psychiatrists) trial 9udge e-cluded the pyschiatrice"idence and refused to direct the 9ury) she was con"icted of murder andappealed) con"iction was o"erturned. Appealed again to the 0igh ourt, and heldthat the pyschiatric e"idence was wrongly e-cluded.

Week 4 INSANITY

Se( 24 #oe: presumption of sanity+ e"ery person is presumed to be of soundmind, and to ha"e been of sound mind t any time which comes into uestion,until the contrary is pro"ed.

Se( 2" #oe: !nsanity+ a person is not criminally responsible for an act oromission if at the time of doing the act or making the omission he is in such astate of mental disease or natural mental infirmity as to depri"e him of capacity tounderstand what he is doing, or of capacity to control his actions, or of capacityto know that he ought not to do the act or make the omission. #continues%

Br$'e. @ ./$% %e(.$o& (a&&o. be 8ae a&! (learer u&)or.u&a.el! @ +u%.)ollo- ./e bol /ea$&'%

The common law defence of insanity is based upon rules in &*Naghten wherebythe accused must pro"e that they were labouring under such a defect ofreason, from disease of the mind, as not to know the nature and uality ofthe act they were doing, or if they did know it, that they did not know it waswrong. The (2


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W/o /a% ./e bure& o) proo)Gsually the accused raises the issue, howe"er, not only the defence can raisethe issue. The party who raises the issue bears the onus of proof in respect of it#


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NAbnormal mental state no matter how caused or how transientO. @anstall E Nanyform of physical or material change or deterioration of the brain or anyrecognisable disorder or derangement of the understandingO.

This application was narrowed in Cooper $ &c3enna. Stable E and (atthews E

said a lapse of consciousness by reason of accident, s. 3

See also R $ &%rsicwhere onnolly E applied


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GT (:


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he had problems, but differed on what sort, and all agreed that there was nodepri"ation.

note generally on medical e"idence+ where it is not in contradiction, 9ury isbound to accept it) failure to do so, will pro"ide grounds for appeal) howe"er,

where the e"idence is in contradiction, 9ury to decide.Me&.al I&(apa($.! a& I&.e&.$o&!s e"idence of insanity, falling short of the scope of the defence itself, stillrele"ant on the issue of intentionR $


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A% a& $llu%.ra.$o& (o&%$er:

3ing $ 0orter+ what is the cause and characterisation of ?orter2s condition #thehusband who killed the baby case%.

?re"iously, we would ha"e used B " Moy+ 1an abnormal mental state, no matterhow caused or transient2 or 1any form of physical or material change ordeterioration of he brain or any recognisable disorder or derangement of theunderstanding2

probably too wide an interpretation.

Gsing today2s test, we would use the internal8e-ternal test from Radford+!S !T !


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Week Se0e&S2< INTOI#ATION ;

SS3*A DIMINIS,ED RESPONSIBILITY

S3$*A '!(!


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- inherent causes #natural mental infirmity, or)- induced by disease or in9ury.

(ansfield E+ 1state of mind so different from that of ordinary human beings that areasonable man would term it abnormal2

0angar E+ 1abnormality of the mind 4 goes beyond the "aried types of people metday to day2.

R $ Whitworth+ Accused murdered fifteen year old son 4 relied on combinede"idence of brain damage and psychological stress in order to argue diminishedresponsibility. (edical e"idence said the accused had brain damage 4 0owe"er

4 none of the factors were linked to any abnormality of the mind, and the 9udgedirected the 9ury on brain damage only 4 con"icted of murder 4 appealed as

9udge didn2t direct for diminished responsibility. (edical e"idence must link toelements of the section. (ansfield E+ 1a uestion of degree 4 more than some

impairment2.

W/a. $% %ub%.a&.$al $8pa$r8e&.R $ (eiss, per 0art E+ 1substantial does not mean total 4 the mental responsibilityneed not be totally impaired, destroyed altogether. Substantial does not meantri"ial or minimal 4 it is something in between, and is left to 9uries to say on thee"idence. @as the mental responsibility impaired, and if so, was it substantiallyimpaired

so it is for the 9ury to determine.

R $ &illo8on"icted of murders 4 shootings at petrol station. Stress 4 breakdown ofrelationship and o"erdue car payment. Minancial pressures, so little money forpetrol. 0e said an army figure in his mind lead him to commit the robbery and theshootings 4 1it didn2t seem real2. 0e was diagnosed with an ad9ustment disorderand 8 or depression 4 said he was partially impaired 8 distorted 8 diminished abilityto control his actions and to know that he ought not shoot people 4 but is thisenough to constitute substantial impairment :ssentially, he was upset o"er abroken relationship. At trial, diminished responsibility put to the 9ury, but re9ected,

Appeal 4 dismissed. Also held s3 not applicable. Thomas E+ 1psychologicalfactors do not appear as a particularly promising case for sane automatism2.

,o- oe% ./e e)e&(e o) $8$&$%/e re%po&%$b$l$.! $))er )ro8 ./e e)e&(eo) $&%a&$.!3 main ways+- s3$*A applies only to murder, while s7 applies to all offences)- the rele"ant state of mind is described in different terms+ s7 reuires mental

disease or natural mental infirmity) while s3$*A reuires a state ofabnormality which is caused by the reasons listed in 3$*A#;%)

5


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- s7 reuires proof that the accused does not ha"e one of the nominatedcategories of capacity, it is sufficient under 3$*A if one of these capacities issubstantially impaired #Rolph# &iers%.


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!n Corbett, Driffith E directed a 9ury that something approaching in"oluntariness isalso reuired by s to show that the into-ication is unintentional+ (attle# +%bert.The defence was open only in circumstances where the accused 1 could not fairlybe held responsible2 for the into-ication #Corbett%. The accused might ha"e been

mistaken by the nature of what he was drinking, or the accused could be trickedinto drinking something 4 then the formula in Corbett would be satisfied. &n theother hand, where someone is drinking, but did not intend to become into-icated,he cannot rely on the first rule of s #3ingston%. According to the first rule in s,the state of into-ication reuired must be such as to depri"e the accused of oneof the three capacities in s7 4 that is, to understand what he is doing, to controlhis actions, or to know that he ought not do the thing.

O&u%:is on the accused for the first rule, to pro"e that he was without acapacity.

I) o&e %u((e%%)ull! rel$e% o& ./e )$r%. rule $& %2


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Haminski+ 1e"idence sufficiently cogent to be considered by the 9ury2.'earnley + 1e"idence 4 as may cause a reasonable man to at least ha"e adoubt as to the e-istence of the intent2. 0olbrook+ independent e"idencereuired.So, after e"idence is put forward of some into-ication, the onus of proof

remains on the rown to pro"e the intention of the offence was present 49ury must be satisfied beyond reasonable doubt whether or not the specificstate of mind e-isted and whether or not the accused had the capacity toform a specific state of mind+ Cameron# +%bert# Cr%mp

!f one successfully relies on this second rule, it only ser"es to remo"e the intentelement, so can be a total acuittal, or the accused will be guilty of any offencewhich is committed but where the intention to cause a specific element is not anintention. :g+ if the accused in Corbetthad been charged with murder, andsuccessfully relied on this second rule, this would result in an acuittal formurder, but he would ha"e been guilty of manslaughter because the killing is still

unlawful, but manslaughter does not ha"e intent as a specific element.


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Le(.ure Week = SEL DEEN#E

Se(.$o&% 2"1 a& 2"2

W/a. $% ./e re%ul. o) %u((e%%)ull! ra$%$&' ./e e)e&(e!f the defence of self defence is successfully raised, it results in a completeacuittal 4 to act in self defence is to act lawfully.

O&u% o) proo):The onus is on the crown to negati"e the self defence beyond reasonable doubt

after the accused has adduced some e"idence making issue a li"e one.

3 %epara.e $%%ue $& %2"152:;. s7;#;% minor unpro"oked assaults). s7;#% ma9or unpro"oked assaults)3. s7 4 pro"oked assaults

%2"1 @ M$&or U&pro0oke A%%aul.%

:lements of s7;#;% from B " ?row+;. "ictim unlawfully assaulted the accused)

. accused did not pro"oke the assault)3. accused used such force as was reasonably necessary to make effectualdefence against "ictim2s assault)

*. force used by accused was not intended and was not likely to cause death orD0)

MUST ASG a& $&$.$al $&Fu$r! re'ar$&' pro0o(a.$o&:- ould the "ictim of self defence ha"e relied on pro"ocation #in terms of s6

pro"ocation% to e-cuse their assault on the accused- !f "ictim was pro"oked to attack accused it is a 1pro"oked attack2 #sec7%)- !f "ictim was not pro"oked to attack the accused it is an 1unpro"oked attack2

#sec7;%)

&%rato$ic+ accused may ha"e pro"oked 1an2 assault 4 but not 1the2 assault + hasT0: assault actually made by the "ictim been pro"oked So,sec7; is whenthere is no pro"ocation at all, or no pro"ocation for the assault actually made.

Hor(e a% per ele8e&. 3:

>


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@ece$ic+ no offence is committed if force, e"en deadly force, was used inreasonable belief that it was necessary to a"ert the threatened harm.R $ Ellem+ the 1force2 referred to in sec7; could be constituted by anuninterrupted series of blows and in that case it was the series of blows ratherthan any single one of them that must be determined to be 1reasonably

necessary2 or not. !n Ellem,the accused2s response to the claimed unpro"okedassault was a series of blows 4 0:I' it is the series of the blows that constitutesthe force which must be 9udged against the sec7; criteria was a series of blowsreasonably necessary/ &nus is on the rown to pro"e beyond reasonable doubt that the force usedwas not reasonable necessary.

S2"1627 8a+or u&pro0oke a%%aul.:This para related to when deadly force has been used. :lements of s7;#%+;. an unlawful unpro"oked assault by the "ictim on the accused). the nature of the assault is such as to cause a reasonable apprehension of

death of D0 in the accused #ob9ecti"e test%)3. the accused belie"es #sub9ecti"e% on reasonable grounds #ob9ecti"e% thathe8she cannot otherwise preser"e themsel"es from death or D0)

*. such force which is reasonably necessary is lawful e"en though it may causedeath or D0.


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Rea%o&abl! &e(e%%ar! )or(e:The force used must be reasonably necessary to be lawful 4 it seems that oncethe other elements are satisfied, the issue does not arise+ &arwe4 ie, if the

belief was that the force was reasonably necessary, then this element is usuallysatisfied.

Gra8assuming there is an unlawful and unpro"oked assault, only two conditionsneeded+- nature of assault 1such as to cause B apprehension of death of D02- person using force by way of defence belie"es on r. grounds that she cannot

otherwise preser"e herself from death of D0- !n substance, therefore, a person is by "irtue of s7;#% 9ustified in killing or

doing D0 to an assailant if he reasonably belie"es that doing so is the onlyway to sa"e himself or someone else from an unpro"oked and life threatening

assault.

W/a. $% ./e Pr$&($ple D$%.$&(.$o& Be.-ee& %2"1617 a& %2"1627

R $ (oo$ic+ identified the broad stream of cases in which one or other of both ofdefences may be appropriate. Speaking "ery generally, in homicide cases+- s 7;#;% best suited for cases where the deceased2s initial "iolence was not

life threatening and where the reaction of the accused has not beenparticularly gross, but has resulted in a death that was not intended or likely 4ie where you can argue the unlikely happened when death resulted.

- S 7;#% best suited to cases where more serious bodily harm or life

threatening "iolence has been faced by the accused, in which case the le"elof his8her response is not sub9ected to the same strictures as are necessaryunder s7;#;%)

- Sometimes it is appropriate to lea"e both libs to the 9ury 4 but only cases inthe 1grey area2 4 ie where circumstances are arguable but not clear as towhether a r. apprehension of D0 was caused on the part of the accused

Se(2"1627 a& %2* M$%.ake

S * pro"ides in effect that a person is not liable to greater criminal responsibilitywhere he8she had an honest and reasonable, but mistaken belief in a state ofthings. !s it a mistake about the amount of force reuired, or a mistake about theapprehension of the threat.

&%rato$icwas o"erruled by &arwe, which said+ state of things in s* will e-tendto mistake as to threat posed by assault, but not to mistaken 9udgement aboutamount of force necessary.

3;


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Lawrie8mistaken honest and reasonable belief that he was holding a real gunwhen it was only a pistol

S 2"2 Sel) e)e&(e a'a$&%. a Pro0oke A%%aul.:This section only applies when the "ictim retaliates against the accused2s

pro"ocation or assault with a murderous assault, that is, an assault whichob9ecti"ely would could cause apprehension in the accused of death or D0.


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- Ienore @alker described a 1battered woman2 and described a battering cycle)-


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wrong 4 they all accepted that e-pert e"idence on @S may be rele"ant to issuesuch as self defence and pro"ocation+ 9it m%st now be accepted that the (WS isa proper matter for e/pert e$idence* Hirby E+ need for caution with regard toaccepting @S 4 also said it should be in gender neutral terms 4 also said notrele"ant se-, if married, how long abuse has been going on for only rele"ant

that "ictim is suffering from the syndrome, the particular characteristics rele"antto the legal rules applicable in each case. There is a danger that if it is too closelydefined, that it will come to be too rigidly applied by the ourts. Hirby E+ @Se"idence may assist a 9ury in understanding self defensi"e conduct which on one"iew occurred where there was no actual attack underway, but rather a genuinelyapprehended threat of imminent danger sufficient to warrant conduct in thenature of the pre/empti"e strike. !t is still necessary to discriminate between a selfdefensi"e response to gra"e danger which can only be understood in the light ofhistory of abusi"e conduct) and, a response 1that simply in"ol"es a deliberatedesire to e-act re"enge for past and potential but unthreatened future conduct#Secretar%. Hirby E+ 1the significance of the perception of danger is not its

imminence 4 it is that it renders the defensi"e force used really necessary and9ustifies the defendant2s belief that 1he8she had no alternati"e but to take theattacker2s life2=purpose of @S to show how a "ictim2s action2s in taking lethalself/help against the abused was reasonable in the e-traordinary circumstancesthe "ictim faced2.

ycle of iolence+

;. build up phase . Acute battering 3. ontrite lo"ing beha"iour.1learned helplessness2+ label for psychological response to repeated"iolence 4 idea that "ictim feels unable to impro"e his8her situation orescape.

R $ (abse+ Fld ourt of Appeal case where e"idence accepted of 1batteredwomand syndrome2 which 1seeks to e-plain why people do not lea"e arelationship with a "iolent partner and which suggests a heightened sensiti"ity onthe part of the sub9ect of the "iolence on prospecti"e or threatened "iolence, wasadmissable=it was rele"ant tot he issue of intent, 1reasonable apprehension, and1belief on reasonable grounds2 raised by self defence and to the e"aluation of thedeceased2s conduct relied on as constituting pro"ocation2

So, e"idence of battered woman syndrome is rele"ant in main ways to selfdefence+

;. to establish that accused was under a 1reasonable apprehension of death ofD02)

. the magnitude of force used by accused+ was accused2s belief that he8shecould not 1otherwise preser"e herself from death or D02 based onreasonable ground

3*


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focus on reasonableness of her actions in light of her e-periences, not onstatus as a battered woman and @S.

OUTLINE O OPERATION O S2"1 ; 2"2

!T !S ?B&&H:' &B G


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- Allows for infliction of bodily harm #pre"iously could not do bodily harm%)- &thers may now lawfully assist property owner.

SENTEN#IN WG 11

Sentencing in Fld is now go"erned specifically by the ?enalties C Sentences Act;>>.- purposes of the act sec3)

W/! o -e pu&$%/See the preamble to the Act+1@hereas+

;. society is entitled to protect itself and its members from harm). the criminal law and the power of the courts to impose sentences on

offenders represents important ways in which society protects itself orother members of society

3. society may limit the liberty of its members only to pre"ent harm toitself of other members of society2

W/a. $% #r$8$&olo'!!t is a discrete disciple) informs the study of criminal law and sentencing)riminology focuses on three main areas+

-the sociology of law, which e-amines social aspects and the institutions oflaw)

- theories of crime causation)- the study of social responses to crime, which e-amines in more depth the

formal institutions of criminal 9ustice eg police, courts, corrections)

W/a. $% #r$8e- depends on society2s definition, gi"en effect by ?arliament)- factors are many, but include+

- historical perspecti"es- social and cultural differences

-religious beliefs

#r$8eC ./e Me$a a& ./e I&)or8a.$o& A'eurrent ?opular issues in tabloid 9ournalism+- law and order- increases in crime and "iolence- home in"asions- targeting of certain groups, eg old people

36


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- increase in fear- need to get tougher on criminals

W/a. are ./e (au%e% o) (r$8e- important to criminologists and thus criminal lawyers because informs the

sentencing process)- popularly attributed to+

- percei"ed tendency of today2s society to lawlessness- inability of the sentencing courts to properly deal with the situation- sentencing too lenient- bad upbringings- schools too lenient- bad parenting- lower/socio/economic status- stress8mental illness

#urre&. .re&%- decline of rehabilitation in the ;>7$s- 19ust deserts2 theory currently popular- based on classical thinking+

- only the guilty to be punished- punishment to be proportional to the gra"ity of the offence, and the

culpability of the offender)

Tra$.$o&al +u%.$)$(a.$o&% )or pu&$%/8e&.- retribution- deterrence

-

general- specific or indi"idual

- rehabilitation- protection

Purpo%e% )or Pu&$%/8e&.Sec>#;% ?SA established the only purposes for which sentences can be imposedin Fld+- to punish the offender to an e-tent or way that is 9ust in all the circumstances)

or- to pro"ide conditions in the court2s order that the court considers will help the

offender to be rehabilitated) or- to discourage the offender or other persons from committing the same or

similar offence) or- to make it clear that the community, acting through the court, denounces the

sort of conduct in which the offender was in"ol"ed) or- to protect the community from the offender) or- a combination of or more factors abo"e

37


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T/eor$e% o) pu&$%/8e&. u&erl$e ./e%e:There are 3 main theories of punishment+#a%. retribution theory)#b%. deterrence theory)#c%. rehabilitation theory.

rea ./e%e %.ra$'/. )ro8 ./e %.u! 'u$e p 4"5"2

SENTEN#IN @ WGS 12513


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APPEAL TO T,E ,I, #OURT:Special lea"e reuired to appeal to the 0. Iea"e will not be granted merelybecause the sentence is e-cessi"e 4 case must in"ol"e some uestion of law orprinciple of general importance of that there has been a gross "iolation of theprinciples which ought to go"ern discretion in imposing sentence+ Lowe $ 'he

;%een. There is a strong reluctance by the court to grant special lea"e againstsentencing decisions+ Lowe. Another matter where it is rare for the court to grantspecial lea"e is fi it is an appeal by the rown 4 there would ha"e to be 1"erye-ceptional circumstances2 + (en7

T/e Pe&al.$e% a& Se&.e&(e% A(.The purposes of this Act are contained in s3, and include the pro"ision ofsentencing principles to be applied by the courts, promoting public understandingof sentencing practices C procedures, and generally reforming the sentencinglaws of Fld.Section * contains the definitions. The definition of 1sentence2 is wide+

-

(rown4 1sentence2 includes recording of a con"iction under s;)- Corrigan4 includes an order recommending early release on parole)- R $ (riese e/ parte Attorne General ;ld4 discretion to record a

con"iction.

S=637applies to offences which in"ol"e the use of "iolence or result in physicalharm to another person 4 in sentencing a person to whom #>% applies, the courtmust ha"e regard primarily to the matters in s>#*%.

o0er&$&' Pr$&($ple% o) %=627S>#% contains a list of matters the courts must take into account in sentencing

an offender. Sentencing is a discretionary process 4 must balance the differentfactors against each other. The list in >#% is not e-hausti"e 4 >#%#p%+ the courtmay take into account other rele"ant circumstances.#%#c%+ the nature and seriousness of offence, including harm done to "ictim+the harm done to the "ictim is one of the most crucial aspects of the

3>


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sentencing process. +is an e-ample of where the harm done to the "ictim istaken into account 4 this was the case where the de facto of the mother of atwo year old inserted an ob9ect into her "agina 4 both physical and emotionalin9uries. @hile the physical damage was ob"ious, what would the emotionaleffect be long term 1Gnwise for sentencing 9udges to engage in predictions of

the unpredictable2. There could be long term ad"erse conseuences on thelittle girl, but hard to predict. 0e was gi"en a suspended sentence, no time incustody 4 because trial 9udge held no long term conseuences. &n appeal,held he couldn2t predict this 4 * years in custody.

Also consider >#*% 4 >#*%#a% considers future risk 4 also see ss#b%, #c%,#d%,#e%,#f%, #k%.

- >#%#f%+ character, age and intellectual capacity+ !ntellectual capacitydiscussed in R $ 5%nn. The offender in this case pleaded guilty to armedrobbery, and had a psychiatric abnormality resulting from a car accident 4ourt of Appeal held #following R $ &cGlnn%, that firstly the court mustdetermine the 1ob9ecti"ely appropriate2 sentence, and then decide if it should

be diminished because of the offender2s mental condition. Applying thatprinciple, the ourt of Appeal reduced the penalty from > years 9ail to 7, withrecommendation for parole after 3. See also section ;; on character andsec>. haracter also includes pre"ious con"ictions, significant communitycontributions, other rele"ant matters. ?re"ious conditions are of particularrele"ance and how recent they were #een no 2%. !n een no 2, heldanticedence criminal history is rele"ant factor 4 but cannot be gi"en suchweight as to lead to the imposition of a penalty which is disproportionate tothe gra"ity of the offence 4 to do so would be to impose a fresh penalty forpre"ious offences. !t is rele"ant though to show whether this offence is anuncharacteristic abbhorration, or whether the offender has manifested in theircommission of the offence a continuing attitude of disobedience of the law. !tis legitimate to take it into account when it illuminates the moral culpability ofthe offender, or shows his dangerous propensity or shows a need to impose atype of conduct.


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7, taken into account by "irtue of s;> ?SA. Sentence reduced from > yearsto 6 with recommendation for parole after , the reduction being in recognitionof his plea of guilty, and co/operation with the police. 0astiglione+ drugimporter 4 charged with drug offences 4 as an informer his sentence wasreduced.

&ther rele"ant circumstances which will be taken into account in the sentencingprocess+- into-ication+ R $ Rosenberger e/ parte+ not normally a mitigating factor 4

e-ception where something e-cuses the alcohol8drug taking. :g, a painfuldisease may be a mitigating factor) +ammond+ drug addiction to e-plain hisconduct 4 his ascent into crime was after he became a drug addict 4 thedesperation to get drugs due to human weakness led to the crime 4 not aprimary choice 4 real weakness is that of a drug addict rather than a robber.

- 'isparity among co/offenders+ Lowe $ 'he ;%een+ armed robbery at ser"icestation / Smith kept watch while Iowe did it 4 Iowe pleaded guilty to armedrobbery 4 he got 6 years with recommendation for parole after . Smith

pleaded guilty to separate 9udge and he got probation and community ser"ice4 Iowe appealed due to the disparity 4 0 laid down the principle for thedisparity in the 9udgement+ T:ST+ court will interfere if the disparity is such asto gi"e rise to a 9ustifiable sense of grie"ance #to gi"e the appearance that

9ustice has not been done%)- Totality principle+ often offenders ha"e been in"ol"ed in a series of offences

o"er a period of time, and may ha"e been sentenced at different times forthese offences. The courts endea"our to take into account the length of thetotal sentence #the principle only apples to imprisonment% if all offences hadbeen dealt with at the time+ this is called the 1totality principle2. ourts will takeinto account other sentences, ie ones already being ser"ed. See also sec>#%

#k%#l%#m% of the Sentences Act. R $ &ill #ma9or authority 4 appro"ed in0ostiglione%# R $ Coss- 'elay between commission of offence and sentence+ R $ Laws e/ parte#

delay will not be a mitigating factor unless it results in unfairness to theoffender 4 eg a long period of uncertainty, significant rehabilitation has takenplace etc.

T/e Se&.e&($&' Tar$)):@hen sentencing, court often uses as a point of reference a sentencing 1tariff2.This is the range of sentences which would normally apply to that offence. :g,the tariff for housebreaking may lie between probation #for young first timeoffenders%, to imprisonment for ten years, for repeat persistent offenders chargedwith multiple offences with a property "alue. !f this were the tariff forhousebreaking, then most sentences would fall somewhere within this range 4most sentences would not fall in the higher range 4 in this e-ample, mosthousebreakers offenders would probably recei"e sentences around /3 years.@ith other types of offences, the tariff has a far narrower range 4 eg, for peoplewho kill their "iolent spouses after repeat attacks o"er a long period of time, the

*;


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sentence is likely to be 6/ years imprisonment, with a recommendation forparole after ;/* months.

Se(.$o& 1 @ (our.% rea%o&% %.a.e a& re(ore- Applies to sentences of imprisonment only 4 including suspended sentences)-

ourt2s reasons must be stated and recorded)- Mailure to do so will not in"alidate, but the failure may be considered by an

appeal court on appeal)- Beasons are important if sentence would otherwise be seen as unduly harsh

or lenient)- Sentencing 9udge has a discretion and ourt of Appeal is reluctant to

interfere, particularly is reasons are gi"en)

Se(.$o& 11 @ (/ara(.er 6re)er .o %e(=6276)77See R $ (%rrowsfor what is included in determining the character of theoffender) for use of antecedents see era no 2.

Se(.$o& 12 @ re(or$&' a (o&0$(.$o&Sec ;#;% makes recording a con"iction discretionary #with e-ceptions%Sec ;#% lists factorsSec ;#3%#a% con"iction without recording con"iction is not a con"iction for anypurpose)Sec ;#3%#b% the con"iction is not entered in any records, e-cept records of thecourt, and the offender2s criminal history for purposes of s*#b%

There is a difference between a court con"icting a person of an offence, and thecourt formally recording the con"iction. See Gradon $ 5icson+ year old uni

student had a formal con"iction recorded against him for possession of a smallamount of cannabis 4 applying sec;, the court of appeal set aside thecon"iction, stating that the magistrate had placed too much emphasis on thepre"alence of such offences in the area. year old womanpossessed cannabis 4 her con"iction was also o"erturned. Condoleon+ nocon"iction recorded for supplying cannabis to minors. 4ennings $ Carrigan+con"iction for second time offender.

Mor matters taken into account, see R $ (rown !says the list is not e-hausti"e,must balance the factors, the factors are not restricted to young offenders% ,


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4ennings $ Carrigan4 considers the second time 4 con"iction will be recorded.This general policy has been accepted that second time offenders will getcon"iction.

E))e(. o) E8plo!8e&.

;%alischefsci4 considers the nature of your employment 4 said court shouldnot discriminate on this basis, but in some cases your employment may be afactor #eg if wanting to be a lawyer%.!f a differentiation were to be made on the basis of employment though, therewould be two classes of offenders 4 those with 9obs and no con"ictions, andthose with no 9obs and con"ictions 4 if offender was hoping to rely on this though,they would ha"e to clearly show the effect on their employment.

Se(.$o& 13 Plea o) u$l.!- ourts must take the plea into account, may reduce the sentence #;3#;%%- reduction may be made ha"ing regard to time offender pleaded guilty or

informed law enforcement agency of intention #;3#%%- court must state in open court that it took plea of guilty into account #;3#3%%

R $ Corrigan+ reduction of sentence because of plea of guilty)Siganto8on appeal, the 0 held that a plea of not guilty should not get you ahigher sentence 4 you should ha"e the right to plead not guilty and try to defendyourself without an e-tra penalty 4 not an aggra"ating factors.R $ (atchelor4 reduction of sentence due to plea of guilty 4 and also co/operation with police.


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- omparati"e sentences+ court may recei"e any information, but they are notobliged to follow it+ +)

- ictim !mpact Statements+- These are optional at sentencing)- riminal &ffenders Act ;>>5 is the authority for "iolent offenders 4 s;* C

s5 define a 1"ictim2 under this act)- !n other cases, see the ?SA, s>#%#c%)- The statements are pro"ided after con"iction but before sentencing, and

they pro"ide the "ictim with an opportunity to be 1heard2 by the court)- Such statements need to conform to guidelines set down by the 'irector

of ?ublic ?rosecutions)- The statement can be by relati"e, friend, or the "ictim, etc)- an be orally read, or tendered)- The problem with them is that they can be damaging and contain

inadmissable information)

W/a. 0$e- o) ./e )a(.% %/oul ./e +u'e .ake- +aselich+ 9udge to form own "iew of facts 4 must not conflict with 9ury "erdict

#this was confirmed in (edington%)- !n the case of disputed facts, see &orrison+ where facts are disputed and the

fact is ad"erse to the offender, must be satisfied of it beyond reasonabledoubt if you are going to regard it) where it is disputed and fa"ours theoffender, must be satisfied on the balance of probabilities) Eudge is todetermine the facts material to the sentence 4 where a fact is admitted thecourt may act on this 4 but the fact must not be disputed)

- The 9udge must only sentence the person on facts before him 8 (one+ 9udgecannot take into account circumstances of aggra"ation which would ha"e

warranted a con"iction for a more serious offence #appling 5e Simoni%- This was confirmed in R $ 5)

Tak$&' $&.o a((ou&. o./er o))e&(e%See section;> of the ?SA+ court may take into account other offences if theoffender is represented, pleads guilty, and reuests that they may be taken intoaccount. The prosecution must also consent.

Se&.e&($&' D$%po%$.$o&%

- NON5#USTODIAL ORDERS:

- Gnconditional discharged and bonds + see part 3, di" ; of ?SA+ Beleases,Bestitution, ompensation, in particular s; in regard to the matters thecourt must ha"e regard to when making an order under s;>) con"ictionmust not be recorded, s;6) person must be of good beha"iour, pt 3, di" ;)

- Mines + can be in addition to, or instead of other sentence) con"iction isdiscretionary) can pay be instalments #sec5$%, or time to pay #sec5;%)

**


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imprisonment in default of payment #sec;6; 4%stices Act%) penalty units#s5#;% ?SA Q75 4 sub9ect to change%) fine option orders 4 communityser"ice #see pt *, di" %)

- ?robation + ss>$/>>?SA) con"iction discretionary) released under

super"ision of orrecti"e ser"ices ommission &fficer) must not be lessthan 6 months, not more than 3 years) can also include up to 6 monthsimprisonment) offender must report and recei"e special "isits, also specialcondition eg, psychiatric help, restitution and compensation)

- ommunity ser"ice + ss;$$/;$ ?SA) con"iction discretionary) performsunpaid community ser"ices under super"ision under super"ision ofommission officer at times specified by officer) total hours not less than*$, not more than *$) must be performed within one year of order) canorder probation plus community ser"ice) can contain special conditionsincluding restitution and compensation)

- !ntensi"e orrection &rders + part 6, ss;;;/;;> ?SA) purpose of theseorders is for the offender to ser"e the sentence of imprisonment by way ofintensi"e correction in the community and not in prison #s;;3#;%%) theoffender must, when reuired, take part in counselling, perform communityser"ice, reside in community residential facilities etc #s;;*#;%%) this type oforder can only be made if the court sentences the offender to a term ofimprisonment of less than one year #s;;%) court must record con"iction#s;;;%) recei"es "isits twice a week from commission officer.

- reach of community based orders + part 7 ?SA) order can b re"oked

#s;$%) offender can then be re/sentenced #s;;% 4 court then takes intoaccount e-tent of compliance) part 7 di" 4 offence to contra"enecommunity based order #see sec;3#;%%.

- 'isualification of 'ri"er2s Iicense + sec;7 ?SA) offence must be inconnection with, or arising out of, the dri"ing of a motor "ehicle by theoffender #s;7#;%#a%%) satisfied in the interests of 9ustice that the offenderbe disualified) see Nh% L4 where the disualification was set asidebecause not in interests of 9ustice.

- #USTODIAL ORDERS:

- &rders of suspended imprisonment + part ?SA, ss;*3/;5; 4 this allows acourt to suspend a sentence if it is less than 5 years, on condition that theoffender must not commit another offence punishable by imprisonmentduring that time stated by the court #must be less than 5 years sec;**%. !fthis order is breached, person dealt with under s;*7) These are treated assentences of imprisonment under the ?enalties C Sentences Act) the courtmust record a con"iction #s;5%) 3elleher+ it is considered a sentence ofimprisonment) s>#%#a% says that time in custody is a last resort and sec;$

*5


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says 9udge must gi"e reasons for gi"ing this sentence) may be sentencedto a lesser period than specified in the offence) ser"ed concurrently unlessordered) s;5 says if offender in custody from arrest, court may ordersentence has effect from then) s;6; says that time held in presentencecustody to be deducted) difficulties ha"e arisen in the interpretation due to

the words 1may2 and 1must2 in secs ;*6 C ;*7 4 assume that it is 1must2use one of the alternati"es in s;*7#;% #+olle%) the court must order thatthe person must ser"e the whole of the suspended sentence, unless it isdeemed un9ust to do so, taking into account s;*7#3%)

- !mprisonment+ oncurrent 8 cumulati"e sentences + sentences ofimprisonment are dealt with by part > ?SA, ss;5/;6;. Becall sec>#%#a% 4that it should only be imposed as a last resort) sec;$ 4 if court imposesimprisonment, must state reasons for doing so) court can only orderimprisonment if it records a con"iction #s;5% 4 also see sec 3 Correcti$eSer$ices Act) ma9or problems !n interpreting ss;5 C ;6; #R $ Wishart

and4enins, and R $ +olman%) Sentences are ser"ed concurrently unlessordered otherwise #s;55 ?SA%) cumulati"e #s;56 ?SA%) Clements+ applytotality principle to see the o"erall impact) usually it will be concurrentwhere they are related offences o"er a short time span) cumulati"e onlywhere clear and compelling reason for the additional penalty #see s;56A%)

- !ndefinite detention + part ;$ ?SA) do not confuse with indeterminatesentence which means life) indefinite sentences pro"ide for "iolentoffenders #s;63#;%%) it is instead of a fi-ed term) R $ Wilsondiscusses therisk of serious physical harm) for definition of 1"iolent offender2 see sec;6)court must state the nominal offence #s;63#%%) offender must be 1serious

danger to the community2 per sec ;63#3% and B " @ilson) court mustre"iew the sentence after 5$P of nominal sentence ser"ed, or ;3 years iflife was nominal sentence, then twice yearly) indefinite sentences are away of the court seeking to deal with offenders who are at risk of re/offending 4 this can create an ethical problem, because the offender is notonly being imprisoned for what they ha"e done, but also what they mightdo in the future)

- 'etention of mentally disordered prisoners + see the &ental +ealth Act;>7* #Fld%+ mentally disordered patients are detained in specialisedsecure hospitals)

-0ome 'etention + Correcti$e Ser$ices Act;> #Fld% ss6/>;.

D$%(re.$o& $& %141B637ourt should e-ercise discretion by using general principles in s>#% not sec>#*% +R $ Collins

*6


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Ser$ou% $ole&. O))e&er%?art >A ?SA) ;6;A C describe circumstances under which person can beconsidered one of these) 3 ways of declaring offender serious "iolent offence+

- on"icted of offence in schedule A #Fld% s;6/;>6also discusses parole. S;66#;%#a% 7 #b% discuss life sentences) s;66#;%#c% discussserious "iolent offenders #also part >A ?SA%.:ligibility to apply+ s;66 #;%+

-

life sentence ;5 years #or $ years for multiple murders%)- others 4 5$ P of sentence is ser"ed)- S& 4 $P ser"ed)

Becently held in &icelothat it is not possible to make a sentence ofimprisonment cumulati"e on a life sentence.@hen released on parole, under super"ision of correctional officer 4 if breach,parole may be suspended.

#r$8$&al #o8pe&%a.$o&- See the Criminal )ffence ictims Act;>>5 and ?art 3 'i"ision * ?SA ss3*/

*3 dealing with &rders for Bestitution and ompensation of ictims,immediate family members, or those suffering harm while inter"ening to helpa "ictim)

- @ho is the "ictim See ss6/;)- ompensation can be ordered e"en if no other penalty)- &ffender can be ordered to make restitution of property, or pay compensation

for loss to property or personal in9ury)

Se&.e&($&' u&er ./e Ju0e&$le A(. 1==2 6l7

*7


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Sentencing children is dealt with under the Eu"enile Eustice Act ;>> #Fld% whichbecame operational in ;>>3. 1child2 means a person who has not turned ;7. !t isalso possible under s6 for this to be changed by the Do"enor in ouncil byregulation, to a person who has not turned ;.

#r$8e% 6#o&)$%(a.$o&7 A(. 1=#%#a% and see

+#- :ffect of pre"ious con"ictions+ s>#%#f%, sec;;, see also eem no 2)- onsider the psychiatric report #s;5% disclosing drug and alcohol abuse and

ingestion of drugs and alcohol on the day of the offence 4 this may not bemitigatory, but an e-planation 4 Rosenberger !alcohol% and +ammond#drugs%)

- ?lea of guilty at a late stage+ s;3 4 still entitled to discount for sa"ings inadministration of 9ustice as no cost for the trial 4 Corrigandiscusses howsection;3 applies)

- onseuences of con"iction for S& #?art >A%, esp on parole #$P rule s;66correcti$e ser$ices actand s;57#7% ?SA, no remissions, s;6;' ?SA%.

Crim Notes Semester 2

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