Crim Notes Semester 2

Criminal Law Semester 2 Notes
Week 1 ATTEMPTS A person who does not fulfil an intention to commit any offence, under certain circumstances, 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 attempt offence, and to supplement that with some specific attempt offence. Sec535 of the code makes it an offence to attempt to commit an indictable offence, punishment for which is determined under sec536, 537, 53 . !n addition to these general pro"isions, there are also a number of specific pro"ision #eg s3$6 attempted murder%. &ther statutes may also make pro"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 not necessary to pro"e that the offence was not committed) intention to commit an offence is essential, e"en where the offence itself does not include an element of intent #eg rape%. 0owe"er, proof of intention alone is not sufficient to pro"e attempt. The second element of an attempt is that the accused must begin to e-ecute the intention by 1means adapted to its fulfillment2.
ELEMENT 1: !ntention to commit offence #offence see sec3 1punishable act or omission%) the offence that was attempted doe not ha"e to ha"e a specific intent element) ELEMENT 2: accused must begin to e-ecute the intention by 1means adapted to its fulfillment2. (ust get past preparation 4 at what point does mere preparation end and the conduct mature into an attempt5 6arious approaches ha"e been suggested 4 one is the last act test, which re7uires consideration of whether the accused 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 little practical scope for the law of attempt because the last act may result in the commission of the offence itself #Williams, Chellingworth, Edwards%. :g, on strict application there would be no con"iction of attempted murder, by shooting, unless the trigger was pulled #White%. Another approach was to re7uire that the act of the accused form part of a series of acts which would constitute its actual ommission if not interrupted #AG Reference no1%. This test has also been criticised because it falls short of defining the e-act point the series of acts can be said to begin+ Campbell !n Williams, another approach was adopted 4 the
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une7ui"ocally test, whereby the physical act necessary to constitute an attempt is regarded as complete if the accused does an act which is a step towards the commission of the specific crime and that act cannot reasonably be regarded as ha"ing any other purpose than the commission of that specific crime #see also Nicholson, Caitlin, White%. See Williams where it says that it is unlikely that a definite test will e"er be adopted because then people could work out how to escape their act being an offence and thereby get away with crimes. So there is no single test, and it is thus a 7uestion of fact as to whether the conduct 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, that is, 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-cept for the purposes of punishment+ - whether the offender does all that is necessary for completing the commission 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 is impossible to commit the offence 4 this pro"ision ser"ed to make the accused responsible for an attempt where he8she failed to complete it because of ineptitiude, 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 fatual impossibility due to circumstances not known to the accused 4 ne"ertheless, he will be guilty of an attempt pro"ided the offence attempted was a recognised
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 of his 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 by doing an act that is more than merely preparatory to the commission of the offence. <&T: sec 5 3 of the code makes an attempt an alternati"e "erdict to the principle offence #eg makes attempted murder an alternati"e "erdict to murder%. DOUBLE JEOPARDY The code makes pro"ision for special pleas in the e"ent that persons are charged with an offence for which they ha"e already been tried and ac7uitted8con"icted, or punished #double 9eopardy and double punishment%. The burden to establish either plea rests with the accused on a balance of probabilities. These special pleas are conceptually difficult. Their purpose is to ensure fairness by pre"enting a person being placed in 9eopardy more than once or being punished more than once for an act or omission. Double Jeopar !: S1" #o e: 1it is a defence to a charge of any offence that the accused person has already been tried, and con"icted or ac7uitted upon an indictment =etc2 !f any of the four rules in sec;7 are a"ailable, then it is a defence to any offence+ )*+alloran $ (,rne former con"iction+ a%trefois ac-%it) former ac7uittal+ a%trefois con$ict <ote 4 it does not afford protection following the dismissal of a complaint in summary proceedings. <ote 4 s;7 also pro"ides a defence to a charge of an offence where the accused could ha"e been con"icted of that offence, as an alternati"e, on an earlier occasion. !n that way, the section operates in con9unction with those pro"isions of the code which enable a person to be con"icted, in the alternati"e, of an offence other than that which is named in the indictment 4 those pro"isions are s575/5 >. So, if a person could ha"e been con"icted of manslaughter at the time of the trial as an alternati"e to murder, then this pro"ides a defence if they try to con"ict him of manslaughter later.
An illustration of the operation of s;7+ ?erson charged with murder and manslaughter, and is either ac7uitted or con"icted) s;7 pro"ides a complete defence to a subse7uent charge of murder arising out of the same set of facts) also pro"ides a defence if the accused is subse7uently charged with manslaughter 4 this is because the accused, at first trial, was in 9eopardy for manslaughter as well as murder because it is an alternati"e "erdict during the first trial #s576%. Thus at the subse7uent trial for manslaughter, the accused is in 9eopardy for the second time for that crime and s;7 may be raised y the accused. The ob"erse is also co"ered by the pro"ision 4 eg, say the accused were charged with manslaughter at the first trial and either ac7uitted or con"icted 4 if he is later charged with murder for a second trial, he is again in 9eopardy for manslaughter because manslaughter is an alternti"e "erdict for murder at the second trial #s576%. Ra$%$&' %1" The accused who wishes to raise the plea under s;7 will do so by #instead of pleading not guilty or guilty% stating that he8she has been lawfully con"icted or ac7uitted 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 it is commonly known #see ss5> #3%/#5%, 6$3% 4 because it is a defence, the onus is on 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 in the sense that the accused was con"icted or ac7uitted. @here in the first trila there 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 after 7uashing a con"iction, the plea will not succeed !Nicholas%. Sec;7 is not limited to indictable offences, and potentially will ha"e application in any .ourt for any type of offence 4 in practice, it is most likely to arise for an indictable offence. <ote 4 one limitation 4 it is a defence if you are tried twice for an in9ury to the same person, but you can still be tried at a later date for in9ury to a second person arising out of the same incident. * rule% )or ouble +eopar !: ;. if you were tried and con"icted upon an indictment in ;>>7 4 what were the alternati"e "erdicts open on this indictment5 Aou are then charged with an offence in ;>>> / @as the ;>>> charge amongst them5 Baise the defence
under rule ; because might ha"e been con"icted of it in ;>>7 if it was an alternati"e "erdict. 3. !f in the past trial in ;>>7 you were tried and ac7uitted upon an indictment, look at alternati"e "erdicts ) in ;>>> present trial, if you are charged with an offence, if it was an alternati"e in the ;>>7 trial, this will be a complete offence) 3. !f you had already been ac7uitted on indictment of an offence of which might be con"icted on the present indictment 4 raise this defence if you are now charged 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"icted on the present indictment or complaint 4 look at pre"ious alternati"es and if so, 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 prosecution for the same cause) only a"ailable after hearing on the merits 4 +a, e/ parte 0atane 4 ie, after trial and the matter being thoroughly gone into) applies to both simple offences and indictable offences being dealt with summarily. ,o- o !ou )$& ./e Al.er&a.$0e 1er $(.%2 3 sources+ ;. alternati"es actually 9oined on the indictment #s567 C 56 code%) 3. alternati"es a"ailable in .hapter 6; of the .ode 4 eg, s575 circumstances of aggra"ation) s3;7 doing D,0 with intent)s576 murder C mansalughter #note e-tends in the case of motor "ehicles to dangerous dri"ing "ide 33 ,) s57 offences of a se-ual nature) s5 ; offences of dishonesty) s5 3 attempts to commit always an alternati"e. 3e&eral 1er $(.% 0$% a 0$% Par.$al 1er $(.%: )*+alloran $ )*(,rne+ eg indictment charging count of rape 4 "erdict of 1not guilty2 is a general "erdict) eg indictment charging a count of rape and a count of indecent assault with intent to rape and a count of indecent assault 4 say there is a "erdict of guilty on the third count, but can2t agree on counts ; C 3, T0!S !S <&T a general "erdict 4 it is a partial "erdict 4 R $ Simpson. DOUBLE PUNIS,MENT: S14 #o e: A person may not be punished twice for the same offence. Sec;6 of the code pro"ides an accused with protection against being punished twice for the same act or omission. This section operates where a number of offences are 9oined in the sale proceedings or where there are successi"e trials. @hat is the same act or ommision5 'epends on unity of time and place 4 +%ll# same punishable act 4 Gordon.
The application of sec;6 depends on the interpretation of the word 1act 8 omission2. !n the ma9ority of cases where sec;6 has been tried, it has been held to ha"e no application. Se"eral cases relate to the dri"ing of a motor "ehicle where the accused has been charged with two offences arising out of the one incident. These ha"e included dri"ing under the influence of alcohol and dangerous dri"ing+ Gordon, e/ parte# 'ric1leban1. !n Gordon, the accused, under the influence of alcohol, was dri"ing on the wrong side of a di"ided highway and collided with a motor cyclist 4 he was con"icted and punished in a magistrate2s .ourt of being in charge of a motor "ehicle while under the influence. Subse7uently, he was con"icted of dangerous dri"ing causing grie"ous bodily harm but no penalty was imposed in respect of that offence on the basis that he had pre"iously been punished for the same act 4 appeal held 4 that s;6 had no application because the punishable act in each offence was different. @illiams E pointed out that the punishable act in respect of the 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 in respect of the dangerous dri"ing charge was the act of dri"ing in a particular manner 4 he condition of the dri"er not rele"ant + 1it seems to me the proper test is whether the same wrongful act or ommission which pre"iously resulted in con"iction and punishment is the central theme, the focal point and the basic act or omission in the later offence charged. This broad approach of the word act was also adopted in 0hilip 2 Carbone #no3% 4 there the accused had dri"en a motor "ehicle into a stationery "ehicle in which two people were in9ured. 0e was con"icted and punished on one count of dangerous dri"ing causing bodily harm, but although con"icted of such a second count, no punishment was imposed due to s;6. Appeal 4 held according to definition of 1offence2 in s3 code, the act which makes the accused liable for punishment was the result of his dri"ing 4 and that was not limited to the mans by which that was brought about. ?idgeon A.E described the gra$aman of the offence as causing bodily harm to a person by dri"ing a "ehicle in the specified manner. ,ecause bodily harm was caused to separate "ictims, there were separate punishable acts and s;6 had no application. This interpretation will gi"e limited scope to the pro"ision. 3iripatea+ s;6 held to apply.
Week% 253: PARTIES .omplicity pro"isions apply to all offences in Fld 4 see sec 3 .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 >, the party pro"isions of the code. A person who is party to an offence is deemed to ha"e committed the offence and may be charged with ha"ing committed it. Gnder s 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+ W,les e/ parte# 4ohns# Webb e/ parte The scope of s7 is e-tended through s C >. "6a7 O))e&(e Jo$&.l! #o88$..e where an offence is 9ointly committed #for e-ample, where 3 persons combine to perform the acts which constitute the offence%, the liability of both arises under s7#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"e committed the offence of housebreaking or burglary as a principle offender under s7#a%. Also, where one person steals property from the "ictim, while the other performs "iolence on the "ictim, both will ha"e committed robbery. These parties who 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(7:A$ $&' "6 7 (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, in the burglary e-ample abo"e, of only one had entered the premises, a person who stayed 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 fact2 at common law) - 7#c% co"ers the person who aids in committing the offence also)
Similarly, under s7#d%, a person who counselled or procured the thief to commit the offence would also be liable for burglary. <e"ertheless, acessorial liability is not entirely deri"ati"e in nature because, in some situations, the accessory has been found guilty of a crime different from that of the perpetrator.
S 7 is applicable in circumstances where an offence is comitted 4 a strict interpretation of these words would mean that the aider or counsellor could not be liable if the perpetrator was ac7uitted or not brought to trial at all+ (iller. This rule has now been swept away, and one conspirator can now be guilty regardless of the guilt of his co/conspirator. So pro"ided there has been the commission of an offence by someone, there can be liability for aiding counselling+ Cain $ 5o,le# L%n# Remilland. Beliance on the definition in sec3 of 1offence2 leads to the same conclusion 4 persons encompassed by 7#a%#b%#c%#d% are liable when a punishable act has been done+ (org# Sa%nders# W,les e/ parte# Warren and 6sland Lop%s7,ns1i8 1suppose the charge is one of rape 4 the complainant may not be able to identify the alleged man who raped her 4 and there might be insufficient e"idence to succeed 4 but if his alleged accessory made a full confession, which confirms there was a rape, and identifies the person who committed it, and contains admissions he aided that person in committing it, ! cannot see why the alleged accessory cannot be con"icted2 Gnder s7, the aider or enabler can only be con"icted of the same offence #or alternati"e% as the person who does the act or ommission #see sec;$A#;%.% The 'egree of Hnowledge of the &ffence+ (ust the person who enables the commission of the offence know that they are doing so5 There is ob"iously a chance of o"erlap here between s7#b% and #c%. - s7#b% says the the person who does an act to aid or enable another to commit the offence) 7#b% says the accessory must ha"e done the act for the p%rpose of enabling or aiding the perpetrator to commit the offence. (ust know what the offence is or might be #4er$is%. Thus, must ascertain ob9ecti"ely the common plan or enterprise. - 7#c% says the person who aids anyone in commiting the offence. According to sec7#c%, the accessory must 91nowingl,* aid the perpetrator 4 thus will not be criminally responsible if unwittingly aided eg dri"er who innocently dro"e the accused to the scene of the crime+ see (ec1# Carden. (ust know what the offence is or might be #4er$is, appro"ing Solomon%) intentional participation and knowledge of the essential facts that constitute the offence # Giorgianni%)
To Ascertain the .ommon ?lan+ measured by knowledge of foresight of the participants #4er$is%)things necessarily in the contemplation #4ohns%) includes things foreseen though not agreed to #&cA%liffe%) must know the essential facts that constitute the offence.
Although the accessory must knowingly aid procure of counsel, it is not necessary that the accessory desired or intended that the crime of the perpetrator be committed and guilt may arise e"en where the accessory is indifferent to the commission of the offence+ L,nch $ 500 for Northern 6sland 4 where the accessory was held to ha"e aided a murder by dri"ing the murderer to the scene, e"en though there may ha"e been e"idence that the accessory regretted 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 a terrorist to a hotel, knowing he was either going to deposit a bomb or shoot people, accessory held liable for murder caused by the conse7uential bomb blast+ 500 northern 6sland $ &a/well !n many cases where the party pro"isions apply, there is some consensus between the accessory and the perpetrator. This will usually occur when aiding or 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 between the parties and where the perpetrator is unaware of the in"ol"ement of the accessory+ Rannath &ohan !t thus becomes a 7uestion of whether the accused has done an act for the purpose of aiding, counselled, or procuring the perpetrator in the commission of the 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 was calculated to aid, but who did not in fact aid in the commission of the offence 4 perhaps because of an act or ommission, through no fault of the person, actually tended to hinder the successful commission of the offence. Gnder 7#c%, aiding may arise in circumstances where the accessory does not pro"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, eg see Cone, <ote the aid gi"en by an accessory can be by an omission 4 see chapter 37 code. "6 7 the person who counsels or procures anyone to commit the offence 4 procure is defined to mean+ 1cause or bring about2. So you can ad"ise, urge, encourage, solicit the commission of the offence or conspire with another for its commission #St%art# )berbillig%. Additionally, the accessory may ha"e procured, in the sense of 1produced by endea"our2 the commission of the offence+ Solomon. Gnder
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sec7#d%, the person can be either charged with the offence, or with counselling or procuring its commission. The common theme is that the procurer plans the commission of the offence, and therefore carries the primary responsibility for causing it to occur. !n such instances where the person who was encouraged to do 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 conse7uence of the counselling #s7#;%#d% and s>%) - the offence committed was counselled but was committed in a way not counselled and the facts constituting the offence actually committed are a probable conse7uence of carrying out he counsel #s7#;%#d%, and s>% 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 criminally responsible for any further offence which falls completely outside the scope of the accesory2s contemplation. At common law, it has been held that the accessory is liable for punishment for the 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 re7uirement that it must 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 of common purpose and the changing nature of the test for accessorial liability at common 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 procures another 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 killing someone by poisoning their food, and the third party innocently ser"ed the poisoned food to them, the final sentence of s7 makes the accused liable for the killing and the 3rd party is not guilty of an offence+ White $ Ridle,# Cogan. S" ; <: T/e (o88o& purpo%e rule: Gnder s7 C , the accessory is deemed to ha"e committed the offence committed by the perpetrator 4 in Fld, these words as they appear in sec
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#offences committed in prosecution of common purpose% ha"e been interpreted in a way which pre"ents the perpetrator and accessory from being con"icted of different offences8 (arlow+ three perpetrators were con"icted of the murder of "ictim who was beaten to death in prison 4 ,arlow did not take part in the killing, he was ac7uitted of murder but con"icted of manslaughter on the basis of his accessorial in"ol"ement, as he re7uested the "ictim to go to the gymnasium #where they killed him%, and he spoke with the perpetrators afterwards. Trial 9udge2s direction was that different "erdicts could be returned 4 9ury followed this and this was in accordance 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 only be con"icted of murder along with the perpetrators, or be con"icted 4 so his con"iction was 7uashed. .ourt followed +ind and +arwood. .on"iction 7uashed because lack of e"idence of accessorial in"ol"ement. The decision relates specifically to s 4 howe"er, s7 is also e-pressed in terms that the accessory is deemed to ha"e committed the offence committed by the perpetrator and it would seem that reasoning in those cases has e7ual application to s7. Sec #offences committed in prosecution of unlawful purpose% operates independently to establish a separate basis of liability beyond 7#b% and #c%. Iiability under s re7uires proof+ #a% of a common intention to prosecute an unlawful purpose #consider the scope of the intention 4 what was the unlawful purpose agreed to by the parties5 &iller%) #b% that an offence was committed in the prosecution of the common unlawful purpose #0hilips $ Lawrence# +ind and +ardwood%) and #c% that the offence committed was of such a nature that its commission was the probable conse7uence of the prosecution of the common unlawful purpose+ #this imports a remoteness test and does so in terms which e-tend accessorial liability beyond that which is found in s7, see 0hilips and Lawrence 1?robable conse7uence2 has been held to be when a person of a"erage competence and knowledge might be e-pected to foresee as likely to follow upon the particular act) though it may be that the particular conse7uence is not intended of foreseen by the actor 4 from St%art, per Dibbs E". So, sec e-tends the scope of secondary liability of sec7 in cases 1where two or more persons form a common intention to prosecute an unlawful purpose2. The common plan8purpose could be for them to be 9oint principles in committing the offence) or for one to be the principle and one to be the secondary party. All participants are then liable for any offence committed by any one of them in the prosecution of the unlawful purpose, as long as the offence was a probable conse7uence of prosecuting it. :g when a murder is committed in the course of an 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 reasonable inferences 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 as an additional offence. There would howe"er, be liability for the planned offence under the law of 9oint participation or aiding. !t has therefore been said that s applies only to offences falling outside the common purpose # 4er$is" The condition for e-tending the scope of secondary liability is that the additional offence should be a probable conse7uence of carrying out the common purpose. This test is ob9ecti"e not sub9ecti"e. !t is not re7uired that the conse7uence actually be foreseen by the secondary party #St%artt" - 1&ffence committed of such a nature that its commission was a probable conse7uence2) - 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 e7ui"alent rule at common law re7uires actual foresight of the further offence but only as a possibility #4ohns%. A probable conse7uence has been held to mean no more than one which is a real or substantial possibility #+ind and +arwood%. (oreo"er, it has been suggested that where a plan contemplates contingencies, the issue is simply whether the offence was a probable conse7uence of carrying out the contingent plan. 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 not contemplated, forseen by accused, or merely incidents% these can still be co"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, the secondary can get charged with a more serious offence #eg aggra"ated%, and the 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 to ha"e done that act of the principle offender in so far as the act is co"ered by a common 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 be considered in interpreting the scope of all forms of secondary liability. The common law has accepted this defence but sub9ect to the re7uirement that the contribution must be cancelled out, or according to some looser "ersions, that at least the secondary party has done e"erything that can be reasonably e-pected to neutralise his contribution and matters must not ha"e progressed so far that the 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= (o e: 8o e o) e>e(u.$o& $88a.er$al: !s a person counsels or procures another to commit offence A, and the person commits offence , instead, in what circumstances will the counsellor8procurer be guilty of offence ,5 see s> code. !t is immaterial that the wrong offence is committed 4 pro"ided that in either case that the facts constituting the offence actually committed are a probable conse7uence of carrying out the counsel. !n either case, the person who ga"e the counsel is deemed to ha"e counselled the other person to commit the offence committed by him #7uoted from the code section>%. !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 conse7uence of carrying out the counsel. so if these re7uirements met, the accessory is deemed to ha"e committed the offence and it is immaterial whether the offence actually committed is the same as that cunselled or a different one, or whether the offence is committed in the way counselled, or in a different way.
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Week ? Se(.$o& 23 #o e @ INTENTION AND MOTI1E ?ursuant to sec 33 of the code, a person is not criminally responsible for an act which occurs independently of the e-ercise of will, or for an e"ent which occurs by accident. 33#3% !ntention !mmaterial unless 1e-pressly declared to be an element of the offence2 4 so, unless the intention to cause a particular result is declared to be an element, or unless a person2s moti"e is otherwise e-pressly declared to be an element, the result intended to be caused by a person and the moti"es which induce the person to do the act, are immaterial so far as criminal responsibility is concerned. 0owe"er, there are many sections of the code which make e-press references to intention. Widgee Shire Co%ncil 4 moti"e is immaterial. 33#;% .ontains 3 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. <ote 4 these e-cuses are made sub9ect to the e-press pro"isions of this code relating to negligent acts and omissions #eg ss3 C 3 >%) The effect of this 7ualification 4 see R $ .o%ng 4 accused was con"icted of manslaughter. .rown relied on s3 5, that the accused failed to pro"ide the necessaries of life for the infant, thereby accelerating the infant2s death. &n appeal, it was argued that the section #s3 5% was not an e-press pro"ision relating to negligent acts or omissions, and that thus s33 was open as an e-cuse. (a9ority re9ected this submission, so, s33 not open as an e-cuse for negligent acts) 'eliberate breach 4 s33 applies) <egligent breach 4 s33 doesn2t apply 4 eg 5abelstein / the pencil case where argues death was the result of an accident. The crown relied on criminal negligence, so therefore s33 could not apply.
2 l$8b% o) %23617: 6a7 a(.% $& epe& e&. o) -$ll 6b7 a(($ e&. S236176b7 A##IDENT <ote the distinction between willed acts and intended results. The e"ent referred to in this pro"ision is the result which is brought about by the accused2s conduct. Thus, in homicide cases, it will be the death of the "ictim # &amote:3%lang%. !n other personal in9ury cases, it will be the wound which results or the touching
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which constitutes an assault #3aprorono$s1i%. The pro"ision may also apply to certain property offences, eg wilful damage to property #Hissier%. 1A person is not criminally responsible for an e"ent which occurs by accident2 R $ A%ld Test for accident 4 from 3aporono$s1i8 1it must now be regarded as settled that an e"ent occurs by accident within the meaning of the rule if it was a conse7uence which was not in fact intended or foreseen by the accused and wo%ld not reasonabl, ha$e been foreseen b, an ordinar, person . !n 3aporono$s1i, 3 men arguing in bar 4 accused insulted by "ictim, and struck him a blow with glass that was in the "ictim2s hand 4 caused D,0 4 was this an accidental e"ent5 3 elements must be established to be an accident+ ;. e"ent must be intended by accused #sub9ecti"e test%) 3. not foreseen by accused #sub9ecti"e% 3. not reasonably foreseen by an ordinary person #ob9ecti"e% R 2 'aiters restated this test. 1.rown is obliged to establish that the accused intended that the e"ent in 7uestion should occur, or foresaw it as a possible outcome. &B that an ordinary person in the position of the accused would reasonably foresee the e"ent as a possible outcome.2 note, knowledge peculiar to the accused is rele"ant #Hitto E in 2allance and ?hilip E in 3n%tsen%. note, e"ent must be so unlikely that an ordinary person would not ha"e taken it into account 4 2allance $ '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%) Not an accident if certain or more probable than not or substantial likelihood. S&, an A.T J :6:<T K .riminal Besponsibility. #eg act of pulling trigger J e"ent of death means there is criminal responsibility%. There must ha"e been some occurrence or happening which inter"enes between the willed act of the accused and the e"ent comprising the offence charged # +odgetts and 4ac1son%. There are certain constitutional defects which contribute to the se"erity of the e"ent. An e-ample is the eggshell principle 4 historically s 33 did not operate where the accused2s criminal acts were e-acerbated by a defect in the "ictim #R $ &at,r%. Although there are cases where there has not been the need for an inter"ening cause eg 2an 5en (end !n this case, it was held that s33 does apply e"en if no inter"ening cause. Becent amendments to the code ha"e o"erruled 2an 5en (end, reinstating the earlier position. The e"idential onus is on the accused to raise the e-cuse, then shifts to the crown to negati"e beyond reasonable doubt. Se( 236176a7 A#TS INDEPENDENT OA WILL
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?ro"ides that a person is not criminally responsible for an A.T or &(!SS!&< that occurs !<':?:<':<TIA of the :L:B.!S: of the person2s @!II. / note the e"idential onus is on the accused #;%een $ <alconer%. .rown then must negati"e beyond reasonable doubt. - 2 8a$& $%%ue%: - A#T2 - INDEPENDENT OA WILL2 The focus of this e-cuse is on the accused / an accused is not guilty for the conse7uences that occur as a result of an act that occurred independently of their will. A#T: 3 9udicial "iews of the word 1act2+ wide "iew of 'i-on in 2allance) intermediate of ,arwick .E in 'imb% 3olian $ R) and narrow "iews described in 2allance, also <alconer, and 3aporono$s1i These can result in 7uite different conclusions to be drawn from the same set of facts. The current "iew on the meaning of 1act2 for the purposes of s33#;%#a% is the narrow "iew as from 2allance C other cases abo"e. Mrom <alconer+ 1bodil, mo$ement o$er which an acc%sed has control and its contemporaneo%s and ine$itable conse-%ences* ,GT <&T A.TS &M &T0:BS eg complicity. INDEPENDENT OA WILL: Malconer+ *the notion of will imports a conscio%sness in the actor of the nat%re of the act and a choice to do an act of that nat%re* ,GT <&T s3* mistake of fact and s3 into-ication or ss36837 !nsanity. There are a number of categories of acts which can occur independently of will and which fall in the scope of the section. !n (ratt, $ Attorne, General Iord 'enning grouped some of these recognised categories of acts together under the broad heading of automatism #sane, sometimes referred to as in"oluntarism%. Acts which can occur independent of will+ - R,an $ 'he ;%een 4 refle- or muscular spasm) - R $ +olmes 4 somnambulists or sleepwalkers - Cooper $ &c3enna 4 .oncussion) - R $ (aile, 4 hypoglycaemia or diabetic. <ote 4 different under s33 and s37. S 37+ it is high blood sugar due to the disease diabetes which is internal) for s33+ it is low blood sugar due to insulin to counteract which is an e-ternal factor) - 'he ;%een $ <alconer 4 dissociati"e states caused by psychological blow, stress, an-iety and8or fear. The onus of proof for these categories+ ;%een $ <alconer !nto-ication see s3 ) insanity see s37. I&.er&al9E>.er&al Te%.:
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S& 4 is it s33 #intention8accident8independent of will% or s36837 #insanity%55 Gse the $&.er&al9e>.er&al .e%.+ Hing .E in Radford $ 'he ;%een+ 1temporary disorder or disturbance of an otherwise healthy mind #ob9ecti"e test% caused by e-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 a healthy mind to e-ternal stresses !n Radford, he was a 6ietnam "eteran, he was under stress, and his wife had left him for another woman. 0e went to the home of the other woman where the wife was also li"ing, and he had an (;6 with him. 0e walked up the path and the girlfriend came out with a baseball bat) ended up killing her) he said it was another guy who did it 4 disassociated himself from the situation 4 claimed it was due to the stress, an e-ternal stimuli caused an act independent of his will, but claimed he was not insane. .laimed it was a temporary disorder of an otherwise healthy 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 %nderl,ing pathological infirmit, of the mind, be it of long or short d%ration and be it permanent or temporar,, which can be properl, termed mental illness, as distinct from the reaction of a health, mind to e/traordinar, stim%li* #<ote /1healthy mind2 uses an ob9ecti"e test%. P%!(/olo'$(al Blo-%: 'issociate states caused by psychological blow due to stress8an-iety8fear !<alconer". !n Malconer, the accused ga"e e"idence that he entered her house une-pectedly, se-ually assaulted her, and taunted here that if her daughters ga"e e"idence no one would belie"e them #there had been a long history of se-ual abuse C "iolence to her C her daughters%. She said he reached out to her with the apparent intention of grabbing her by the hair, and from that point she remembered nothing until she found herself on the floor with a shotgun in her hand and him dead on the floor. 0eld that she was guilty but said e"idence on dissociati"e acts admissable. / ,GT <&T 1dissociation caused by low stress threshold and propensity to surrender to an-iety highlighting ob9ecti"e standard2 !<alconer" / ,GT <&T weak willpower due to personality traits eg irresistible impulses !R $ (aile," <alconer also discussed normal factors such as e-citability, obtuseness, lack of self control and impulsi"eness. <alconer+ 5$ year old woman shot husband. After 3$ years of an abusi"e marriage they separated and she took out an order against her husband #a non/ molestation kind% but there were also proceedings in progress of se-ual abuse towards daughter. .ontinual fear of him, but also claimed she still lo"ed him. 0e "isited her une-pectedly, and se-ually assaulted her and taunted her with tales of se-ual abuse against a 7 year old girl 4 she shot him and said she didn2t
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remember it. 0er counsel sought to rely on in"oluntary act #sane automatism%. :"idence of dissociation by 3 psychiatrists) trial 9udge e-cluded the pyschiatric e"idence and refused to direct the 9ury) she was con"icted of murder and appealed) con"iction was o"erturned. Appealed again to the 0igh .ourt, and held that the pyschiatric e"idence was wrongly e-cluded. Week 4 INSANITY Se( 24 #o e: presumption of sanity+ e"ery person is presumed to be of sound mind, and to ha"e been of sound mind t any time which comes into 7uestion, until the contrary is pro"ed. Se( 2" #o e: !nsanity+ a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to depri"e him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission. #continues% Br$ 'e. @ ./$% %e(.$o& (a&&o. be 8a e a&! (learer u&)or.u&a.el! @ +u%. )ollo- ./e bol /ea $&'%B The common law defence of insanity is based upon rules in &*Naghten whereby the accused must pro"e that they were labouring under such a defect of reason, from disease of the mind, as not to know the nature and 7uality of the act they were doing, or if they did know it, that they did not know it was wrong. The (2<aghten rules are essentially the same as the defence of insanity under s37 of the code #<alconer%. !n &*Naghten, 'aniel (2<aghten was ac7uitted by a 9ury on the grounds of insanity for his trial for murder. 0e killed a parliamentarian and e"idence was presented that he was not of sound mind at the time of the killing and that he was acting under a morbid delusion and thus was depri"ed of capacity to know what he was doing and had no control o"er his actions. S37 is to be read in con9unction with s36 which contains a presumption of sanity e"ery person is presumed to be of sound mind until the contrary is pro"en. An accused is presumed to be sane in the absence of any e"idence to the contrary. !t is this pro"ision which makes s37 a defence #<&T A< :L.GS:%. So -/a. $% ./e $))ere&(e be.-ee& a e)e&(e a& a& e>(u%e2 - 'efence, if argued successfully, allows you to escape criminal liability) e.g., if you successfully raise the defence of self/defence for murder, you will be ac7uitted) - An e-cuse merely means you will be liable for the lesser charge, ie, instead of murder manslaughter)
W/o /a% ./e bur e& o) proo)2 Gsually the accused raises the issue, howe"er, not only the defence can raise the issue. The party who raises the issue bears the onus of proof in respect of it #<alconer# Enright%. So the onus is one the person who raises the defence to be pro"ed on a balance of probabilities, then shifts to other party to negate beyond a reasonable doubt. The trial 9udge can also direct the 9ury #R $ Schafferi%s%. !n a case where there is a choice between s33 #in"oluntary% or s37 #insanity%, trial 9udge must determine whether the e"idence of the accused2s state of mind will re7uire a direction on insanity #<alconer%. W/a. $) ./e e))e(. o) %u((e%%)ull! ra$%$&' ./e e)e&(e o) $&%a&$.! a. .r$al2 A person who is found to be insane is dealt with by the &ental +ealth Ser$ices Act 1=>? See sec 6*7 .ode which discusses ac7uittal on the grounds on insanity at the time of the offence. Se sec 6*5 .ode which discusses if the accused person is insane during trial that they are to be dealt with according to the &ental +ealth Ser$ices Act 1=>? I& or er .o %u((e%%)ull! ra$%e ./e e)e&(e o) $&%a&$.!C 8u%. %a.$%)! ./e ELEMENTS AROM %2"617: The accused in such a state of mental disease or natural mental infirmity) #This is pro"ed by the balance of probabilities%) So as to depri"e the accused of) The capacity to+ #these are the 3 capacities% Gnderstand what they are doing or .ontrol their actions or Hnow that they ought not do what they are doing (ust focus on the e-istence of mental disease or natural mental infirmity leading to complete depri"ation of ; of 3 capacities <ote the 7ualification in s. 37 #3% relating to persons who are affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of ss. #;% is criminally responsible for the act or omission to the same e-tent as if the real state of things had been such as the person was induced by the delusion to belie"e to e-ist. (ust lead to depri"ation of ; of 3 capacities. <ote also ss#6;3% 4 fitness to stand trial prior to trial Ss#6*5% 4 issues as to fitness to stand trial arise during trial There must be reasonable e"idence by e-pert medical testimony at trial, then 9udge will direct 9ury to consider insanity, this is a 7uestion of fact for the 9ury to determine. So -/a. $% 8e&.al $%ea%e2 R v Foy This case had a wide "iew of mental disease. ?hilip E N'isease of mind under (2<aghten rules and mental disease in the code ha"e same meaningO.
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NAbnormal mental state no matter how caused or how transientO. @anstall E Nany form of physical or material change or deterioration of the brain or any recognisable 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. 33 See also R $ &%rsic where .onnolly E applied <o, in the conte-t of epilepsy. Radford $ 'he ;%een+ Accused appealed against murder con"iction 4 appellant went to home of friend of e-/wife 4 shot her se"eral time with rifle 4 thought e-/ wife was in a lesbian relationship with her that lead to the breakdown of his marriage. Said he was under stress and acted independent of his will 4 trial 9udge didn2t allow this to go to the 9ury 4 con"icted and appealed 4 held trial 9udge2s decision was wrong. Trial 9udge refused to allow s33 to go to 9ury 4 he regarded insanity as inappropriate 4 on appeal held he was wrong. The current approach on mental disease is the !<T:B<AI 8 :LT:B<AI test. Radford+ 1disease of the mind synonomous with mental illness2. !nsanity+ the malfunctioning of the mental faculties 4 must result from an %nderl,ing pathological infirmit, of the mind 4 be it of long or short duration, permanent or temporary, which can be properly termed mental illness. So (ental 'isease+ - underlying pathological infirmity #internal cause%) - e-pert medical e"idence essential) - cause and characterisation of a condition of insanity is a 7uestion of law for the 9udge. +olmes+ charged with unlawful e-plosion. 0e did not dispute the incident, but said that it was an act independent of will, because he was suffering from premature hardening of the arteries, which is a physical disease capable of affecting mental capacity due to loss of blood to the brain. .ourt re9ected s33 argument of act independent of will, and went towards insanity 4 said internal physical disease which affects the mind is more to do with insanity. According to s37, some conditions recognised as mental disease include+ - epilepsy #R $ <o,# R $ &%risic%) - 'epression #'he ;%een $ &illo,%) - Arteriosclerosis #R $ 3emp, R $ +olmes%) - 0yperglysemia #R $ +ennes,, and R $ (r%gess%) The mental disease must lead to the depri"ation of one of the three capacities in s37#;%.
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,GT (:<TAI '!S:AS: !S <&T - act independent of will s33) - into-ication s3 , unless ss3 #;% and #3% 1mind disordered by into-ication or stupefaction caused without intention2 #as opposed to a disease of the mind caused by the condition of alcoholism in 5earnle, $ 'he 3ing%) Na.ural Me&.al I&)$r8$.! S37#;% also applied to natural mental infirmity, see R 2 Rolph. The natural mental infirmity must lead to depri"ation of one of the capacities in s37#;%. Depr$0a.$o& o) (apa($.! @hat are practical e-amples of depri"ation of these capacities5 .apacity ;+ understand what they are doing+ 'he 3ing $ 0orter+ this means knowing the physical nature of what you are doing) this is a cogniti"e capacity 4 awareness, think, reason, remember, 9udge) .apacity 3+ control their actions+ this is "oluntariness) .apacity 3+ know that they ought not do what they are doing+ 'he 3ing $ 0orter, R $ &ichea%/ 4 know right from wrong) this is a cogniti"e capacity, ie, awareness, thinking, reason, remember and 9udge. So when deciding the 7uestion of depri"ation of capacity, consider+ was the accused acting under the influence of some condition and were they depri"ed of one or more of the capacities55 This is a 7uestion of fact for the 9ury to decide. 'he 3ing $ 0orter+ accused administered strychrine to infant son who was ;; months old 4 died. 0e was e-tremely emotional as he was separated from his wife and had custody. Tried many times to reconcile but she wouldn2t. Showed symptoms of a ner"ous breakdown 4 was sleepless for three days before the incident, took a number of stimulant drugs, told wife he would poison himself and the child. There was e"idence that he was in a state of disassociation 4 9ury ac7uitted him on grounds of insanity. 0e remembered nothing of the incident. 'i-on E, on capacity #a%+ 1little capacity for understanding the nature of the life and the destruction of life, that to him is no more than breaking a twig or destroying an inanimate ob9ect. !n such a case he would not know the physical nature of what he was doing / essentially does not understand the material character of conduct.2 &n capacity #c%+ this head is of 17uite a different character 4 unable to appreciate that he was doing anything wrong 4 that is, incapable of appreciating the wrongfulness of the act at the time, that he could not think rationally 4 what is meant by wrong is wrong ha"ing regard to the e"ery day standards of reasonable people2. R $ &ichea%/+ Se-ual offences against patients 4 he argued that insanity depri"ed him of two capacities 4 to control his actions, and to know he ought not be doing this. There was conflicting medical e"idence as to his condition, but concensus that there was no depri"ation of capacity 4 Eury entitled to consider e"idence and weight it, and draw own conclusions. (edical e"idence all said that
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he had problems, but differed on what sort, and all agreed that there was no depri"ation. note generally on medical e"idence+ where it is not in contradiction, 9ury is bound 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, still rele"ant on the issue of intention5 R $ <o,+ 1an abnormal mental state 4 showing 4 absence of will or of capacity to ha"e a specific intention.2 +aw1ins $ 'he ;%een+ 1e"idence of mental disease incapable of supporting insanity 4 rele"ant 8 admissable on formation of intent2 !n this case, he was ;6 years old and shot his dad 4 on murder charge. The defence case was that the boy had confronted his father with the intent of committing suicide in his presence to make him feel guilty for years of family "iolence. At the last minute he turned the gun on his father because he realised that he was not the one at fault, his father was 4 said there was no specific intention of murder. (edical e"idence that he was suffering from adolescent personality disorder, and defence also argued he was suffering from depression. Argued his ability to think clearly and logically would be impaired 4 thus insanity could not be raised #as there must be complete depri"ation%, so they used impairment to negate the intent. Trial 9udge re9ected this 4 appealed 4 0. said trial 9udge was wrong 4 said issues can be raised to negate intent. +aw1ins was applied in Fld in R $ Wilson. T/e Rela.$o&%/$p Be.-ee& %23 a& %2"222 A(. $& epe& e&. o) -$ll or $&%a&e22 S33 #sane automatism% and s37 #insane automatism% can both be left to the 9ury in the one case #Malconer% ,GT this can be problematic. The outcome in such cases will depend on+ - the classification of the automatism as sane #s33% or insane #s37%. A disease of the mind or natural mental infirmity, or not. This is essentially a F of law for the 9udge) - the cause of the act for which the accused has become criminally accountable. .ause 4 trigger of the action 4 causation. This is essentially a F of fact for the 9ury. The fundamental distinction between s33 and s37 in such circumstances where both are left to the 9ury is found in Radford $ 'he ;%een and this was adopted in <alconer.
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A% a& $llu%.ra.$o& (o&%$ er: 3ing $ 0orter+ what is the cause and characterisation of ?orter2s condition5 #the husband who killed the baby case%. ?re"iously, we would ha"e used B " Moy+ 1an abnormal mental state, no matter how caused or transient2 or 1any form of physical or material change or deterioration of he brain or any recognisable disorder or derangement of the understanding2 probably too wide an interpretation. Gsing today2s test, we would use the internal8e-ternal test from Radford+ !S !T !<T:B<AI5+ 1underlying pathological infirmity of the mind 4 which can be properly termed mental illness2 &B !S !T :LT:B<AI+ 1from the reaction of a healthy mind to e-traordinary e-ternal stimulus2555 <ote also the application of s3 !nto-ication, in particular s3 #;%+ the pro"isions of s37 apply to the case of a person whose mind is disordered by into-ication or stupefaction caused without intention on their part by drugs or into-icating li7uor or by any other means. @hat caused #triggered% ?orter2s actions55 .onsider+ drugs, insomnia #s33, 37 or 3 5%, psychological and emotional stress #s33%, symptoms of ner"ous breakdown #s33 emotional, or s37 mental disorder5% or a drug induced state #s3 %55 @hich factor was operating at the time5 :"idence would be re7uired 4 rele"ant to 7uestion of intent.
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Week Se0e& S2< INTODI#ATION ; SS3E*A DIMINIS,ED RESPONSIBILITYB S3$*A '!(!<!S0:' B:S?&<S!,!I!TA The defence of diminished responsibility #s3$*A% is restricted to cases where there is death as a result of murder. !f successfully raised, this defence would reduced the con"iction to manslaughter #as opposed to insanity where there is a complete ac7uittal%. ,o- $% D$8$&$%/e Re%po&%$b$l$.! $))ere&. )ro8 I&%a&$.!2 - To be insane, must be mental disease or natural mental infirmity. - Mor diminished responsibility, must be a state of abnormality #arrested or retarded de"elopment of the mind, or inherent causes or induced by disease or in9ury% - To be insane, must be total depri"ation of at least one of three capacities - Mor diminished responsibility, must be substantial impairment of one of the three capacities O&u% o) Proo): &nus rests with the accused #;%artl,%. @hether or not the accused has discharged the onus of proof is a 7uestion for the 9ury, and the appropriate standard is the balance of probabilities. Eury must ascertain whether accused was suffering from a state of mind bordering on, but not amounting to, insanity. Ele8e&.% o) ./e O))e&(e: - Accused must be in such a state of abnormality #whether arising from a condition of arrested or retarded de"elopment of the mind or inherent causes or induced by disease or in9ury% - So as to substantially impair - The capacity to - #a% understand what they are doing) - #b% control their actions) - #c% know that they ought not do what they are doing) W/a. $% a& ab&or8al$.! o) ./e 8$& 2 R $ Rolph (ust arise from one of the prescribed conditions+ - arrested or retarded de"elopment of the mind #natural mental infirmity%, or)
3*
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 a reasonable man would term it abnormal2 0angar E+ 1abnormality of the mind 4 goes beyond the "aried types of people met day to day2. R $ Whitworth+ Accused murdered fifteen year old son 4 relied on combined e"idence of brain damage and psychological stress in order to argue diminished responsibility. (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 9udge directed 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 to elements of the section. (ansfield E+ 1a 7uestion of degree 4 more than some impairment2. W/a. $% %ub%.a&.$al $8pa$r8e&.2 R $ (eiss, per 0art E+ 1substantial does not mean total 4 the mental responsibility need not be totally impaired, destroyed altogether. Substantial does not mean tri"ial or minimal 4 it is something in between, and is left to 9uries to say on the e"idence. @as the mental responsibility impaired, and if so, was it substantially impaired5 so it is for the 9ury to determine. R $ &illo,8 .on"icted of 3 murders 4 shootings at petrol station. Stress 4 breakdown of relationship and o"erdue car payment. Minancial pressures, so little money for petrol. 0e said an army figure in his mind lead him to commit the robbery and the shootings 4 1it didn2t seem real2. 0e was diagnosed with an ad9ustment disorder and 8 or depression 4 said he was partially impaired 8 distorted 8 diminished ability to control his actions and to know that he ought not shoot people 4 but is this enough to constitute substantial impairment5 :ssentially, he was upset o"er a broken relationship. At trial, diminished responsibility put to the 9ury, but re9ected, Appeal 4 dismissed. Also held s33 not applicable. Thomas E+ 1psychological factors 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&(e o) $&%a&$.!2 3 main ways+ - s3$*A applies only to murder, while s37 applies to all offences) - the rele"ant state of mind is described in different terms+ s37 re7uires mental disease or natural mental infirmity) while s3$*A re7uires a state of abnormality which is caused by the reasons listed in 3$*A#;%)
35
s37 re7uires proof that the accused does not ha"e one of the nominated categories of capacity, it is sufficient under 3$*A if one of these capacities is substantially impaired #Rolph# &iers%. <ote+ as with insanity, issues of mental health, including diminished responsibility, fall within the scope of the mental health tribunal. S$.ua.$o&% -/$(/ -$ll &o. )all -$./$& ./e %(ope o) $8$&$%/e re%po&%$b$l$.!: - the temporary effects of alcohol, as opposed to the enduring damage which into-ication may cause to the brain+ Whitworth# Gittens# <enton# 3%s%) - conduct within the normal range of human propensities or emotions such as pre9udice, anger, temper, 9ealousy, or in general, base natural emotions+ Whitworth# Rolph# (raithwaite# - particular attitudes or pre9udices deri"ed from religious, political, partisan influences+ Whitworth. Gnchallenged e-pert e"idence as to the accused2s abnormality of mind should normally be accepted by the 9ury+ &ichea%/ 0owe"er the 9ury must consider the medical e"idence in light of all the circumstances of the case including the nature of the killing, the conduct of the accused. !t is to approach the matter in a 1broad common sense way2+ Chester S2< INTODI#ATION S3 of the code makes pro"ision for modification of the rules of criminal responsibility in limited circumstances where the accused2s mind was affected by into-ication from alcohol or by stupefaction from some other form of drug. <ote 4 where the ingestion of the alcohol or other drugs brings about a true mental disease such as delirium tremens, the pro"ision relating to into-ication will ha"e no rele"ance 4 see pro"isions relating to unsoundness of the mind. W/a. $% $&.o>$(a.$o& 9 %.upe)a(.$o&2 0aggie " (eredith, per Scott E+ 1stupefy 4 stupid or torpid) depri"e of apprehension, feeling, or sensibility) denumb, deaden 4 to grow dull or insensible2. !n this case, the accused was ac7uitted due to drug induced state. T/e pro0$%$o& (o&.a$&% .-o $%.$&(. rule%: Rule O&e 4 #from s3 #;%C#3%% the state of into-ication8stupefaction must be brought about without intention on the part of the accused. :lements of rule ;+ - mind disordered by into-ication or stupefaction) - caused without intention) - by drugs or into-icating li7uor #or by any other means%) - leading to loss of one of three capacities in s37.
36
!n Corbett, Driffith E directed a 9ury that something approaching in"oluntariness is also re7uired by s3 to show that the into-ication is unintentional+ (attle# +%bert. The defence was open only in circumstances where the accused 1 could not fairly be 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 tricked into drinking something 4 then the formula in Corbett would be satisfied. &n the other hand, where someone is drinking, but did not intend to become into-icated, he cannot rely on the first rule of s3 #3ingston%. According to the first rule in s3 , the state of into-ication re7uired must be such as to depri"e the accused of one of the three capacities in s37 4 that is, to understand what he is doing, to control his 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 a capacity. I) o&e %u((e%%)ull! rel$e% o& ./e )$r%. rule $& %2<C ./ere $% a %pe($al 0er $(. $& %4*" 6a(Fu$..al o& 'rou& % o) $&%a&$.!7B Rule .-o 4 #from s3 #3%% has application whether or not the into-ication was intentional and whether or not it is partial or complete. 0owe"er, it applies only to those offences where there is intention to cause a specific result and where this is an element. :lements of rule 3+ - mind disordered by into-ication or stupefaction) - intention of into-ication8stupefaction to some e-tent) - by drugs or into-icating li7uor #or any other means%) - depri"ed of one of the three capacities in s37. !t is difficult to determine which offences this second rule applies to, due to the clear statement of elements of the offences. :gs of specific intent+ s3;7 intent to cause D,0) s3$3#;%#a% murder) s3>; stealing) s* attempt. !n 0ar1er, the full court of @A, without considering s* of the code which defines attempts, held that into-ication was irrele"ant to attempted rape. &n the other hand, (ack E in )*Regan, e-pressed the opinion that into-ication is rele"ant to all attempts including attempted incest. !t has been held that an intention to cause a specific result is not an element of rape or unlawfully using a motor "ehicle+ 3aeser# +olman# 'hompson# Snow. !n 3amins1i, robbery was held to be an offence which had an intention to cause a specific result as an element. ONUS+ for the second rule, the e"idential onus is on the accused, but does not need to raise e"idence of complete into-ication, as the section says complete or partial. Cro7ier8 1if the into-ication is complete, intent cannot be formed. ,ut if it partial only, it if for the 9ury to decide as a 7uestion of fact whether the necessary intent e-isted=if you are not satisfied beyond reasonable doubt that through into-ication the prisoner was incapable of forming an intent=.then it is your duty to ac7uit of willful murder and murder2. <ote also that sufficient e"idence of the into-ication is re7uired 4 it is not enough for the accused to admit to drinking.
37
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 a doubt as to the e-istence of the intent2. 0olbrook+ independent e"idence re7uired. 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 4 9ury must be satisfied beyond reasonable doubt whether or not the specific state of mind e-isted and whether or not the accused had the capacity to form 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 intent element, so can be a total ac7uittal, or the accused will be guilty of any offence which is committed but where the intention to cause a specific element is not an intention. :g+ if the accused in Corbett had been charged with murder, and successfully relied on this second rule, this would result in an ac7uittal for murder, 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.
Le(.ure Week = SELA DEAEN#E Se(.$o&% 2"1 a& 2"2 W/a. $% ./e re%ul. o) %u((e%%)ull! ra$%$&' ./e e)e&(e2 !f the defence of self defence is successfully raised, it results in a complete ac7uittal 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: ;. s37;#;% minor unpro"oked assaults) 3. s37;#3% ma9or unpro"oked assaults) 3. s373 4 pro"oked assaults %2"1 @ M$&or U&pro0oke A%%aul.% :lements of s37;#;% from B " ?row+ ;. "ictim unlawfully assaulted the accused) 3. accused did not pro"oke the assault) 3. accused used such force as was reasonably necessary to make effectual defence against "ictim2s assault) *. force used by accused was not intended and was not likely to cause death or D,0) 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 s36 pro"ocation% to e-cuse their assault on the accused5 - !f "ictim was pro"oked to attack accused it is a 1pro"oked attack2 #sec373%) - !f "ictim was not pro"oked to attack the accused it is an 1unpro"oked attack2 #sec37;%) &%rato$ic+ accused may ha"e pro"oked 1an2 assault 4 but not 1the2 assault + has T0: assault actually made by the "ictim been pro"oked5 So,sec37; is when there is no pro"ocation at all, or no pro"ocation for the assault actually made. HAor(eI a% per ele8e&. 3:
3>
@ece$ic+ no offence is committed if force, e"en deadly force, was used in reasonable belief that it was necessary to a"ert the threatened harm. R $ Ellem+ the 1force2 referred to in sec37; could be constituted by an uninterrupted series of blows and in that case it was the series of blows rather than any single one of them that must be determined to be 1reasonably necessary2 or not. !n Ellem, the accused2s response to the claimed unpro"oked assault was a series of blows 4 0:I' it is the series of the blows that constitutes the force which must be 9udged against the sec37; criteria was a series of blows reasonably necessary5 / &nus is on the .rown to pro"e beyond reasonable doubt that the force used was not reasonable necessary. S2"1627 8a+or u&pro0oke a%%aul.: This para related to when deadly force has been used. :lements of s37;#3%+ ;. an unlawful unpro"oked assault by the "ictim on the accused) 3. the nature of the assault is such as to cause a reasonable apprehension of death of D,0 in the accused #ob9ecti"e test%) 3. the accused belie"es #sub9ecti"e% on reasonable grounds #ob9ecti"e% that he8she cannot otherwise preser"e themsel"es from death or D,0) *. such force which is reasonably necessary is lawful e"en though it may cause death or D,0. <&T: 4 some contro"ersy due to conflicting decisions of Allwood and Gra, 4 suggested in 4%lian that Gra, be preferred o"er Allwood. Na.ure o) ./e A%%aul.: - was the assault such as to cause reasonable apprehension of death or D,05 - As well as immediate facts, prior threats and attacks by the "ictim are rele"ant+ - 3eith+ death threats not admitted as too remote) - &%rato$ic+ threats and assaults y "ictim 6 days before were admissable to show the nature of the final attack and accused2s apprehension of it) - &asters+ accused2s belief about "iolent character of "ictim and basis for it admissable Bel$e) o& rea%o&able 'rou& %: There is both a sub9ecti"e and ob9ecti"e component to this element+ : R $ &arwe,+ it is sub9ecti"e whether the accused held his belief) it is ob9ecti"e whether reasonable grounds for the belief) - 4%lian8 confirms that it is the accused2s belief that is the 1critical factor2 - prior history as to threats, assaults, "iolent reputation etc rele"ant) - 1otherwise2 see &%rato$ic# - e"idential issues + was retreat and less "iolent reaction possible5 4 but 9ury should be warned not to be 1wise after the e"ent2 !R $ 4ohnson" - battered woman e"idence5
3$
Rea%o&abl! &e(e%%ar! )or(e: The force used must be reasonably necessary to be lawful 4 it seems that once the other elements are satisfied, the issue does not arise+ &arwe, 4 ie, if the belief was that the force was reasonably necessary, then this element is usually satisfied. Gra,8 assuming there is an unlawful and unpro"oked assault, only two conditions needed+ - nature of assault 1such as to cause B apprehension of death of D,02 - person using force by way of defence belie"es on r. grounds that she cannot otherwise preser"e herself from death of D,0 - !n substance, therefore, a person is by "irtue of s37;#3% 9ustified in killing or doing D,0 to an assailant if he reasonably belie"es that doing so is the only way 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"162722 R $ (oAo$ic+ identified the broad stream of cases in which one or other of both of defences may be appropriate. Speaking "ery generally, in homicide cases+ - s 37;#;% best suited for cases where the deceased2s initial "iolence was not life threatening and where the reaction of the accused has not been particularly gross, but has resulted in a death that was not intended or likely 4 ie where you can argue the unlikely happened when death resulted. - S 37;#3% best suited to cases where more serious bodily harm or life threatening "iolence has been faced by the accused, in which case the le"el of his8her response is not sub9ected to the same strictures as are necessary under s37;#;%) - Sometimes it is appropriate to lea"e both libs to the 9ury 4 but only cases in the 1grey area2 4 ie where circumstances are arguable but not clear as to whether a r. apprehension of D,0 was caused on the part of the accused Se(2"1627 a& %2* M$%.ake S 3* pro"ides in effect that a person is not liable to greater criminal responsibility where he8she had an honest and reasonable, but mistaken belief in a state of things. !s it a mistake about the amount of force re7uired, or a mistake about the apprehension of the threat. &%rato$ic was o"erruled by &arwe,, which said+ state of things in s3* will e-tend to mistake as to threat posed by assault, but not to mistaken 9udgement about amount of force necessary.
3;
Lawrie8 mistaken honest and reasonable belief that he was holding a real gun when 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 which ob9ecti"ely would could cause apprehension in the accused of death or D,0. <ote that s373#3% confines the defence and makes it inapplicable where the accused used murderous "iolence in the first place or before it was necessary to use such "iolence. Ele8e&.% o) 2"2 )ro8 Muratovic: ;. that accused assaulted the deceased #cannot be a murderous assault% 3. that accused pro"oked an assault from the deceased #s36 not s3$* type pro"ocation% 3. that the deceased then assaulted the accused with such "iolence as to cause reasonable apprehension of death of D,0) *. that this assault induced the accused to belie"e on reasonable grounds that it was necessary for his8her preser"ation from death of D,0 to use force in self/ defence #in regarding reasonableness, can consider background info such as pre"ious threats, as abo"e%) 5. that the force actually used by him was reasonably necessary for such preser"ation) %e(2"2627 Re.rea. need to retreat+ 1in either case, unless, before such necessity arose, the person using such force declined further conflict, 7uitted it, or retreated from it as far as was practicable2 4 section does not apply if person using the force which killed could ha"e retreated from the threat as far as possible before such necessity for the "iolence arose. / practicable means feasible + Randle @ece$ic+ 1there is, howe"er, no longer any rule that the accused must ha"e retreated as far as possible before attempting to defend himself. !t is a circumstance to be considered with all others in determining whether the accused belie"ed on r. grounds that what he did was necessary in self defence2 so conflicting "iews here 4 it is definitely a rele"ant factor for 9ury # Randle%. Ba..ere Wo8a& S!& ro8e a& $.% Rele0a&(e .o Sel) De)e&(e ,attered woman syndrome is not a defence in its own right 4 but is introduced in support of other defences.
33
Ienore @alker described a 1battered woman2 and described a battering cycle) <emenclature8Terminology+ - ,attered wife8woman s,ndrome - ,attered woman realit, #Sc%tt and Rath%s% - ,attered person really5 )sland per Hirby E
1a woman manifesting the syndrome is said to be in a depression like state, becoming immobilised, passi"e, and unable to impro"e her situation or escape from her batterer. The syndrome is presented in court through clinical e-pert opinion e"idence. The .ourts ha"e taken this course on the basis that ordinary 9urors are not be themsel"es sufficiently e7uipped to appreciate the psychological state of battered woman. :g., it was feared that, without e-pert assistance, 9urors would not understand why a fre7uently battered woman continued to remain with her batterer2 #S. Teo 1Besol"ing Dender ,ias in .riminal 'efence2% La$elle #.anadian .ase% was cited with appro"al in R%nAanAic and 3ontinnen which was the first Australian case to rule on whether such e"idence was admissable. R $ Secretar,+ she shot her de facto husband while he was sleeping 4 did not accept e"idence of battered woman. !f the "ictim is asleep, what is the assault5 (ildren E+ threat has not ceased 9ust because the deceased was temporarily physically unable to carry it through 4 thus open to the 9ury to characterise it as a continuing assault which can be legitimately defended. .onsider the pre"alence of domestic "iolence and statistics on women at risk+ in ;>>*, *3P of murder "ictims were female, and 3>P of these were killed by their se-ual partner or former se-ual partner) compared with ;3P of men killed. )sland $ R+ recent high court decision considering ,@S. @oman and her son both charged with murder of Mrank 4 e"idence that there was a high degree of premeditation 4 .rown case was that they planned to murder him, had dug a gra"e for him, and mi-ed sensiti"e drugs with his dinner, son struck him which killed him in front of mother, they buried him in the 1hole2, then both acted for 3 years as if he had 9ust disappeared. They intercepted phone calls) he had physically, psychologically, se-ually abused them for ;3 years but don2t know what happened in the days leading up to the murder 4 both relied on self defence and pro"ocation 4 Son ac7uitted on basis of self defence 4 mother con"icted of murder / sentenced to *.5 years. ;st 9ury con"icted mother, couldn2t decide about son 4 3nd 9ury ac7uitted son 4 mother appealed but dismissed. 0er grounds of appeal were the inconsistent "erdicts, ade7uacy and accuracy of instructions gi"en to 9ury on self defence and pro"ocation, particularly the e"idence regarding ,@S and its rele"ance. 0. said it was a 9oint killing, but indi"idual 9ustification) all agreed that her appeal must fail but there was an inconsistency with the ac7uittal of her son 4 first time 0. has considered rele"ance of ,@S. All regarded mother2s argument that ,@S should be considered as a separate defence as
33
wrong 4 they all accepted that e-pert e"idence on ,@S may be rele"ant to issue such as self defence and pro"ocation+ 9it m%st now be accepted that the (WS is a proper matter for e/pert e$idence* Hirby E+ need for caution with regard to accepting ,@S 4 also said it should be in gender neutral terms 4 also said not rele"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"ant to the legal rules applicable in each case. There is a danger that if it is too closely defined, that it will come to be too rigidly applied by the .ourts. Hirby E+ ,@S e"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 genuinely apprehended threat of imminent danger sufficient to warrant conduct in the nature of the pre/empti"e strike. !t is still necessary to discriminate between a self defensi"e response to gra"e danger which can only be understood in the light of history of abusi"e conduct) and, a response 1that simply in"ol"es a deliberate desire 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 and 9ustifies the defendant2s belief that 1he8she had no alternati"e but to take the attacker2s life2=purpose of ,@S to show how a "ictim2s action2s in taking lethal self/help against the abused was reasonable in the e-traordinary circumstances the "ictim faced2. .ycle of 6iolence+ ;. build up phase 3. 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 or escape. R $ (abse1+ Fld .ourt of Appeal case where e"idence accepted of 1battered womand syndrome2 which 1seeks to e-plain why people do not lea"e a relationship with a "iolent partner and which suggests a heightened sensiti"ity on the part of the sub9ect of the "iolence on prospecti"e or threatened "iolence, was admissable=it was rele"ant tot he issue of intent, 1reasonable apprehension, and 1belief on reasonable grounds2 raised by self defence and to the e"aluation of the deceased2s conduct relied on as constituting pro"ocation2 So, e"idence of battered woman syndrome is rele"ant in 3 main ways to self defence+ ;. to establish that accused was under a 1reasonable apprehension of death of D,02) 3. the magnitude of force used by accused+ was accused2s belief that he8she could not 1otherwise preser"e herself from death or D,02 based on reasonable ground5
3*
focus on reasonableness of her actions in light of her e-periences, not on status as a battered woman and ,@S.
OUTLINE OA OPERATION OA S2"1 ; 2"2 !T !S ?B&6&H:' &B G<?B&6&H:'5 - if pro"oked then s373 - if unpro"oked then s37; if s37; 4 is it minor assault, or (a9or #deadly force%55 - if it is minor force, then s37;#;% 4 only reasonably necessary force) - if ma9or then s37;#3% 4 belief on reasonable grounds that force used is necessary 4 more lenient. if s373 4 the accused has pro"oked the assault, then+ - if minor assault results 4 <& self defence a"ailable) - if a ma9or #murderous8deadly% assault results, s373 only #more restricti"e than s37;#3%%.
A$ $&' $& Sel) De)e&(e: S 373 4 the section allows for any person to use force of any degree to defend another pro"ided that the defender is acting in good faith and also that the person defended would ha"e been lawfully entitled to use that same degree of force to defend him or herself. - must be acting in good faith 4 White $ Conwa,) - R $ <eit1a% 4 discusses when you ha"e a defence for aiding) - R $ 5%ff, 4 the original culpability of the person defended is irrele"ant at common law) De)e&(e o) D-ell$&' S 367 4 defence of dwelling + - test+ sub9ecti"e belief in homeowner, based on #ob9ecti"e% B grounds, the amount of force used was necessary) - co"ers all 1dwellings2, not 9ust houses) - entry of dwelling sufficient #breaking not necessary%) - use of force to pre"ent and repel an intruder from entering and remaining. S2"*52"= o./er rela.e pro0$%$o&% - &ther circumstances in which force may be used to defend other types of property)
35
Allows for infliction of bodily harm #pre"iously could not do bodily harm%) &thers may now lawfully assist property owner.
SENTEN#IN3 WG 11 Sentencing in Fld is now go"erned specifically by the ?enalties C Sentences Act ;>>3. - purposes of the act sec3) W/! o -e pu&$%/2 See the preamble to the Act+ 1@hereas+ ;. society is entitled to protect itself and its members from harm) 3. the criminal law and the power of the courts to impose sentences on offenders represents important ways in which society protects itself or other members of society 3. society may limit the liberty of its members only to pre"ent harm to itself of other members of society2 W/a. $% #r$8$&olo'!2 !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 of law) - 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$8e2 - 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'e .urrent ?opular issues in tabloid 9ournalism+ - law and order - increases in crime and "iolence - home in"asions - targeting of certain groups, eg old people
36
increase in fear need to get tougher on criminals
W/a. are ./e (au%e% o) (r$8e2 - 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 imposed in 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 3 or more factors abo"e
37
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"2B
SENTEN#IN3 @ WGS 12513 <ote / At the end of this section, there is an answer plan for sentencing The sentencing process+ - appeals against sentence) - go"erning principles) - other principles. .ontrary to popular belief, few criminal cases go to trial 4 the ma9ority of offenders plead guilty to their charges, and thus only go through the sentencing process. APPEALS A3AINST SENTEN#ES BY OAAENDER+ - Section 66 ' of the code deals with right of appeal. ?erson con"icted can appeal to the court+ - #a% &n a 7uestion of law alone) - #b% &n a 7uestion of fact alone) - 6(7 A'a$&%. ./e %e&.e&(eB - s66 :#3% of the code sets out the powers of the .ourt in an appeal by the offender) - S1inner+ when determining an appeal against a sentence, the court must gi"e effect to the general principles which relate to the interference of an e-ercise of discretion. !t is not sufficient if the court might ha"e disposed of the matter differently. Bather, it is necessary for it to be shown that the sentencing discretion has miscarried so that the sentence appealed from is manifestly inade7uate or e-cessi"e because the 9udge or magistrate has acted on a wrong principle or o"erlooked, under"alued, o"erestimated or misunderstood some salient feature of the material) - (%c1master) - Griffith $ R. APPEALS A3AINST SENTEN#ES BY ATTORNEY 3ENERAL: See s66>A. &n appeal, the 7uestion is whether the sentences were outside the range of a proper sentencing discretion+ &elano e/ parte Attorne,:General ;ld. The court of appeal may "ary the sentence and impose a sentence the court considers appropriate.
APPEAL TO T,E ,I3, #OURT: Special lea"e re7uired to appeal to the 0.. Iea"e will not be granted merely because the sentence is e-cessi"e 4 case must in"ol"e some 7uestion of law or principle of general importance of that there has been a gross "iolation of the principles 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 against sentencing decisions+ Lowe. Another matter where it is rare for the court to grant special lea"e is fi it is an appeal by the .rown 4 there would ha"e to be 1"ery e-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 of sentencing principles to be applied by the courts, promoting public understanding of sentencing practices C procedures, and generally reforming the sentencing laws of Fld. Section * contains the definitions. The definition of 1sentence2 is wide+ - (rown 4 1sentence2 includes recording of a con"iction under s;3) - Corrigan 4 includes an order recommending early release on parole) - R $ (riese e/ parte Attorne, General ;ld 4 discretion to record a con"iction. S=637 applies to offences which in"ol"e the use of "iolence or result in physical harm to another person 4 in sentencing a person to whom #>% applies, the court must ha"e regard primarily to the matters in s>#*%. 3o0er&$&' Pr$&($ple% o) %=627 S>#3% contains a list of matters the courts must take into account in sentencing an offender. Sentencing is a discretionary process 4 must balance the different factors against each other. The list in >#3% is not e-hausti"e 4 >#3%#p%+ the court may take into account other rele"ant circumstances. <ote 4 many of the factors below are mitigating factors 4 the 1mitigatory effect2 will decrease in proportion to seriousness of the offence and pre"ious con"ictions. !t is a two step process+ ;. look at what the sentence would ordinarily be) 3. should it be reduced because of the offender2s mental state5 An e-ample of the mitigatory effect+ +ammond+ youth is a mitigatory factor because there is usually a greater chance of rehabilitation. #in opposite case can aggra"ate the sentence% - >#3%#a%+ imprisonment as a 1last resort2+ / it is preferable for the offender to stay in the community if possible. Condoleon <ote that this section is now applicable to >#3% C #*%. - >#3%#b%+ the ma-imum and any minimum penalty prescribed for the offence+ in what circumstances will the ma- penalty be gi"en5 &anson, 2een no 2, applied in Fld in Chi$ers) factors such as if criminal history can add weight. - >#3%#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
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sentencing process. + is an e-ample of where the harm done to the "ictim is taken into account 4 this was the case where the de facto of the mother of a two year old inserted an ob9ect into her "agina 4 both physical and emotional in9uries. @hile the physical damage was ob"ious, what would the emotional effect be long term5 1Gnwise for sentencing 9udges to engage in predictions of the unpredictable2. There could be long term ad"erse conse7uences on the little girl, but hard to predict. 0e was gi"en a suspended sentence, no time in custody 4 because trial 9udge held no long term conse7uences. &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%. >#3%#f%+ character, age and intellectual capacity+ !ntellectual capacity discussed in R $ 5%nn. The offender in this case pleaded guilty to armed robbery, and had a psychiatric abnormality resulting from a car accident 4 .ourt of Appeal held #following R $ &cGl,nn%, that firstly the court must determine the 1ob9ecti"ely appropriate2 sentence, and then decide if it should be diminished because of the offender2s mental condition. Applying that principle, the .ourt of Appeal reduced the penalty from > years 9ail to 7, with recommendation for parole after 3. See also section ;; on character and sec>. .haracter also includes pre"ious con"ictions, significant community contributions, other rele"ant matters. ?re"ious conditions are of particular rele"ance and how recent they were #2een no 2%. !n 2een no 2, held anticedence criminal history is rele"ant factor 4 but cannot be gi"en such weight as to lead to the imposition of a penalty which is disproportionate to the gra"ity of the offence 4 to do so would be to impose a fresh penalty for pre"ious offences. !t is rele"ant though to show whether this offence is an uncharacteristic abbhorration, or whether the offender has manifested in their commission of the offence a continuing attitude of disobedience of the law. !t is legitimate to take it into account when it illuminates the moral culpability of the offender, or shows his dangerous propensity or shows a need to impose a type of conduct. <ote the court cannot take into account other alleged offences not the sub9ect of con"ictions #(%rrows%. >#3%#g%+ aggra"ating or mitigating factors concerning the offender. R $ 0owell, e/ parte Attorne, General+the offender had a ma9or depressi"e illness and other significant personal problems. The .ourt of Appeal set aside a suspended sentence for three years and substituted 3 years 9ail with a recommendation for parole after 6 months in recognition of his personal circumstances. !n R $ Le, it was held that family responsibilities #> year old child and baby% should be taken into account, but shouldn2t o"erwhelm the other factors unless e-ceptional# Smith+ ill health will only mitigate where imprisonment is a greater burden by reason of the state of health # also R $ 0ope" >#3%#h% pre"alence of the offence+ an e-ample is +.<eed for deterrence when particular type of offence pre"alent. Iink with >#;%#c% deterrence. >#3%#i%+ assistance to law enforcement agencies+ R $ (atchelor+ the offender was charged with 3; property offences, and also pleaded guilty to a further
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73, taken into account by "irtue of s; > ?SA. Sentence reduced from > years to 6 with recommendation for parole after 3, the reduction being in recognition of his plea of guilty, and co/operation with the police. 0astiglione+ drug importer 4 charged with drug offences 4 as an informer his sentence was reduced. &ther rele"ant circumstances which will be taken into account in the sentencing process+ - into-ication+ R $ Rosenberger e/ parte+ not normally a mitigating factor 4 e-ception where something e-cuses the alcohol8drug taking. :g, a painful disease may be a mitigating factor) +ammond+ drug addiction to e-plain his conduct 4 his ascent into crime was after he became a drug addict 4 the desperation to get drugs due to human weakness led to the crime 4 not a primary 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"ice station / Smith kept watch while Iowe did it 4 Iowe pleaded guilty to armed robbery 4 he got 6 years with recommendation for parole after 3. Smith pleaded guilty to separate 9udge and he got probation and community ser"ice 4 Iowe appealed due to the disparity 4 0. laid down the principle for the disparity in the 9udgement+ T:ST+ court will interfere if the disparity is such as to 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 for these offences. The courts endea"our to take into account the length of the total sentence #the principle only apples to imprisonment% if all offences had been dealt with at the time+ this is called the 1totality principle2. .ourts will take into account other sentences, ie ones already being ser"ed. See also sec>#3% #k%#l%#m% of the Sentences Act. R $ &ill #ma9or authority 4 appro"ed in 0ostiglione%# 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 the offender 4 eg a long period of uncertainty, significant rehabilitation has taken place 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 time offenders%, to imprisonment for ten years, for repeat persistent offenders charged with multiple offences with a property "alue. !f this were the tariff for housebreaking, then most sentences would fall somewhere within this range 4 most sentences would not fall in the higher range 4 in this e-ample, most housebreakers offenders would probably recei"e sentences around 3/3 years. @ith other types of offences, the tariff has a far narrower range 4 eg, for people who 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 for parole after ;3/3* months. Se(.$o& 1E @ (our.I% rea%o&% %.a.e a& re(or e - 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)77 See R $ (%rrows for what is included in determining the character of the offender) for use of antecedents see 2era no 2. Se(.$o& 12 @ re(or $&' a (o&0$(.$o& Sec ;3#;% makes recording a con"iction discretionary #with e-ceptions% Sec ;3#3% lists factors Sec ;3#3%#a% con"iction without recording con"iction is not a con"iction for any purpose) Sec ;3#3%#b% the con"iction is not entered in any records, e-cept records of the court, 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 the court formally recording the con"iction. See Gra,don $ 5ic1son+ 33 year old uni student had a formal con"iction recorded against him for possession of a small amount of cannabis 4 applying sec;3, the court of appeal set aside the con"iction, stating that the magistrate had placed too much emphasis on the pre"alence of such offences in the area. <%llalio$e+ *> year old woman possessed cannabis 4 her con"iction was also o"erturned. Condoleon+ no con"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% , <%llalio$e, R $ (riese e/ parte Re(or $&' a (o&0$(.$o& )or ru' o))e& er% R $ Condoleon, where the offender pleaded guilty to nine counts of supplying cannabis to minors, and three counts of possession. The court did not ultimately order that a con"iction be recorded
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4ennings $ Carrigan 4 considers the second time 4 con"iction will be recorded. This general policy has been accepted that second time offenders will get con"iction. E))e(. o) E8plo!8e&. ;%alischefsc1i 4 considers the nature of your employment 4 said court should not discriminate on this basis, but in some cases your employment may be a factor #eg if wanting to be a lawyer%. !f a differentiation were to be made on the basis of employment though, there would be two classes of offenders 4 those with 9obs and no con"ictions, and those 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) 3u$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#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) Siganto8 on appeal, the 0. held that a plea of not guilty should not get you a higher sentence 4 you should ha"e the right to plead not guilty and try to defend yourself without an e-tra penalty 4 not an aggra"ating factors. R $ (atchelor 4 reduction of sentence due to plea of guilty 4 and also co/ operation with police. <ote 4 the usual principle that a plea of guilty will mitigate the sentence is due to 3 reasons+ - it shows remorse) - because the community is spared the e-pense of a trial. !f the court does not reduce the sentence e"en though there is a plea of guilty 4 must state that fact in open court and its reasons #;3#*%%. The sentence will not be higher if no plea entered # Siganto% @hat 7ualifies as a reduction in the sentence5 - recommendation for early release on parole, suspending the sentence, imposing a fine etc #Corrigan%) I&)or8a.$o& o& Se&.e&(e Section ;5 discusses what information a court can recei"e 4 says 1any information2 eg, references, reports. - psychiatric and psychologists reports+ these can2t e-cuse the ine-cusable+ +) - pre/sentence reports+ no reference should be made to other alleged offences #ie allegations% that the person has not been con"icted of+ Gilder Rose# Seres.
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.omparati"e sentences+ court may recei"e any information, but they are not obliged to follow it+ +) 6ictim !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>#3%#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 .ake2 - +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 reasonable doubt if you are going to regard it) where it is disputed and fa"ours the offender, must be satisfied on the balance of probabilities) Eudge is to determine the facts material to the sentence 4 where a fact is admitted the court 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,+ 9udge cannot take into account circumstances of aggra"ation which would ha"e warranted a con"iction for a more serious offence # appl,ing 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 the offender is represented, pleads guilty, and re7uests that they may be taken into account. 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 the court must ha"e regard to when making an order under s;>) con"iction must 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 is discretionary) 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 community ser"ice #see pt *, di" 3%) ?robation+ ss>$/>>?SA) con"iction discretionary) released under super"ision of .orrecti"e ser"ices .ommission &fficer) must not be less than 6 months, not more than 3 years) can also include up to 6 months imprisonment) offender must report and recei"e special "isits, also special condition eg, psychiatric help, restitution and compensation) .ommunity ser"ice+ ss;$$/;$ ?SA) con"iction discretionary) performs unpaid community ser"ices under super"ision under super"ision of .ommission officer at times specified by officer) total hours not less than *$, not more than 3*$) must be performed within one year of order) can order probation plus community ser"ice) can contain special conditions including restitution and compensation) !ntensi"e .orrection &rders+ part 6, ss;;;/;;> ?SA) purpose of these orders is for the offender to ser"e the sentence of imprisonment by way of intensi"e correction in the community and not in prison #s;;3#;%%) the offender must, when re7uired, take part in counselling, perform community ser"ice, reside in community residential facilities etc #s;;*#;%%) this type of order can only be made if the court sentences the offender to a term of imprisonment of less than one year #s;;3%) 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;3$%) offender can then be re/sentenced #s;3;% 4 court then takes into account e-tent of compliance) part 7 di" 3 4 offence to contra"ene community based order #see sec;33#;%%. 'is7ualification of 'ri"er2s Iicense+ sec; 7 ?SA) offence must be in connection with, or arising out of, the dri"ing of a motor "ehicle by the offender #s; 7#;%#a%%) satisfied in the interests of 9ustice that the offender be dis7ualified) see Nh% L, 4 where the dis7ualification was set aside because not in interests of 9ustice.
#USTODIAL ORDERS: &rders of suspended imprisonment+ part ?SA, ss;*3/;5; 4 this allows a court to suspend a sentence if it is less than 5 years, on condition that the offender must not commit another offence punishable by imprisonment during that time stated by the court #must be less than 5 years sec;**%. !f this order is breached, person dealt with under s;*7) These are treated as sentences of imprisonment under the ?enalties C Sentences Act) the court must record a con"iction #s;53%) 3elleher+ it is considered a sentence of imprisonment) s>#3%#a% says that time in custody is a last resort and sec;$
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says 9udge must gi"e reasons for gi"ing this sentence) may be sentenced to a lesser period than specified in the offence) ser"ed concurrently unless ordered) s;5 says if offender in custody from arrest, court may order sentence has effect from then) s;6; says that time held in presentence custody 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 1must2 use one of the alternati"es in s;*7#;% #+olle,%) the court must order that the person must ser"e the whole of the suspended sentence, unless it is deemed un9ust to do so, taking into account s;*7#3%) !mprisonment+ .oncurrent 8 cumulati"e sentences + sentences of imprisonment are dealt with by part > ?SA, ss;53/;6;. Becall sec>#3%#a% 4 that it should only be imposed as a last resort) sec;$ 4 if court imposes imprisonment, must state reasons for doing so) court can only order imprisonment if it records a con"iction #s;53% 4 also see sec 33 Correcti$e Ser$ices Act) ma9or problems !n interpreting ss;5 C ;6; #R $ Wishart and 4en1ins, and R $ +olman%) Sentences are ser"ed concurrently unless ordered otherwise #s;55 ?SA%) cumulati"e #s;56 ?SA%) Clements+ apply totality principle to see the o"erall impact) usually it will be concurrent where they are related offences o"er a short time span) cumulati"e only where clear and compelling reason for the additional penalty #see s;56A%) !ndefinite detention+ part ;$ ?SA) do not confuse with indeterminate sentence which means life) indefinite sentences pro"ide for "iolent offenders #s;63#;%%) it is instead of a fi-ed term) R $ Wilson discusses the risk of serious physical harm) for definition of 1"iolent offender2 see sec;63) court must state the nominal offence #s;63#3%%) offender must be 1serious danger to the community2 per sec ;63#3% and B " @ilson) court must re"iew the sentence after 5$P of nominal sentence ser"ed, or ;3 years if life was nominal sentence, then twice yearly) indefinite sentences are a way of the court seeking to deal with offenders who are at risk of re/ offending 4 this can create an ethical problem, because the offender is not only being imprisoned for what they ha"e done, but also what they might do in the future) 'etention of mentally disordered prisoners+ see the &ental +ealth Act ;>7* #Fld%+ mentally disordered patients are detained in specialised secure hospitals) 0ome 'etention+ Correcti$e Ser$ices Act ;> #Fld% ss 6/>;.
D$%(re.$o& $& %141B637 .ourt should e-ercise discretion by using general principles in s>#3% not sec>#*% + R $ Collins
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Ser$ou% 1$ole&. O))e& er% ?art >A ?SA) ;6;A C , describe circumstances under which person can be considered one of these) 3 ways of declaring offender serious "iolent offence+ - .on"icted of offence in schedule A<' sentenced to ;$ years 9ail of more #automatic% 4 s;6;A#a%) - .on"icted of offence in schedule A<' 5/;$ years 9ail #discretion% s;6;,#3%) - .on"icted of offence in"ol"ing 1serious "iolence2 or 1serious harm2 and sentenced to imprisonment #discretion% s;6;,#*%) <ote also 4 where a person who is con"icted as a serious "iolent offender is in prison, on parole or similar, #s;5;A#;%#b%%, the sentence of imprisonment must be ser"ed .G(GIAT!6:IA. R $ (ooth 4 although this may seem harsh, this was the intention of the legislature. .annot apply for parole until $P of their sentences ha"e been ser"ed or ;5 years imprisonment 4 this cannot be reduced #s;57#7% ?SA%) Parole An offender2s e"entual release on parole is not ultimately decided by the sentencing court 4 the role of the sentencing court is to recommend, if it wishes, that the offender be eligible for parole after ha"ing ser"ed a certain amount of the sentence+ s;57#3% ?SA. !t is only a recommendation. Fld .ommunity .orrections ,oard actually deals with parole. Correcti$e Ser$ices Act ;> #Fld% s;63/;>6 also discusses parole. S;66#;%#a% 7 #b% discuss life sentences) s;66#;%#c% discuss serious "iolent offenders #also part >A ?SA%. :ligibility to apply+ s;66 #;%+ - life sentence ;5 years #or 3$ years for multiple murders%) - others 4 5$ P of sentence is ser"ed) - S6& 4 $P ser"ed) Becently held in &ic1elo that it is not possible to make a sentence of imprisonment 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.$o& - See the Criminal )ffence 2ictims Act ;>>5 and ?art 3 'i"ision * ?SA ss3*/ *3 dealing with &rders for Bestitution and .ompensation of 6ictims, immediate family members, or those suffering harm while inter"ening to help a "ictim) - @ho is the "ictim5 See ss6/; ) - .ompensation can be ordered e"en if no other penalty) - &ffender can be ordered to make restitution of property, or pay compensation for loss to property or personal in9ury) Se&.e&($&' u& er ./e Ju0e&$le A(. 1==2 6Jl 7
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Sentencing children is dealt with under the Eu"enile Eustice Act ;>>3 #Fld% which became operational in ;>>3. 1child2 means a person who has not turned ;7. !t is also possible under s6 for this to be changed by the Do"enor in .ouncil by regulation, to a person who has not turned ; . #r$8e% 6#o&)$%(a.$o&7 A(. 1=<= This act pro"ides for the confiscation of the profits of crime, and has particular application to drug offences, where large amounts of money may be in"ol"ed. ,OW TO ANSWER A SENTEN#IN3 JUESTION #;% !f an appeal, discuss s66 ' #right of appeal%866 : #determination of appeal in ordinary circumstances% and establish the grounds for the appeal) #3% Do through the 7uestion by issue 4 discussing applicable ?SA pro"isions and any rele"ant cases on each point, and reach a conclusion on each point) #3% 'o <&T discuss all sentencing principles in s>#3% and 8 or s>#*%, work out which are applicable and need mentioning) #*% <ot re7uired to ha"e detailed knowledge of which sentencing options should apply, or how long a 9ail term should be 4 emphasis is on the rele"ant principles) #5% 'o not discuss other issues such as criminal compensation, parole etc unless specifically asked to) See Fuestion 3 from the ;>>7 e-am paper in the study guide 4 issues needed to be addressed in your answer are+ - ma-imum sentence s>#3%#b% principles applicable 4 see also 2eem no 2# Chi$ers# - nature and seriousness of offence is an aggra"ating feature+ s>#3%#a% and see +# - :ffect of pre"ious con"ictions+ s>#3%#f%, sec;;, see also 2eem 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 be mitigatory, 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 in administration of 9ustice as no cost for the trial 4 Corrigan discusses how section;3 applies) - .onse7uences of con"iction for S6& #?art >A%, esp on parole # $P rule s;66 correcti$e ser$ices act and s;57#7% ?SA, no remissions, s;6;' ?SA%.

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

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increase in fear need to get tougher on criminals

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