The numbers next to each

‘subheading’ indicate what possible

essay questions it can be used for as
in the crime plans document.

Crime: Paragraphs for All 12 Possible Essays

Investigating crime: 7
The criminal investigation process through investigating crime has failed to reflect
current morals regarding the treatment of Indigenous Australians.
Police, under the Crimes (Forensic Procedures) Act 2000 (NSW) are provided with
powers to collect DNA evidence from where a crime has occurred, for use in a criminal
trial. As detailed in a Four Corners report ‘Little Boy Lost’, however, it was reported that
crucial evidence, including DNA traces found on an Aboriginal boy’s body were not
presented in a coronial inquest, as they were ‘carelessly’ destroyed, and as such, a trial
could not go ahead. The outcomes provided here are a significant departure from those
provided in the case of Anglo-Saxon Daniel Morcombe, as detailed in ABC 14/3/14,
whose death was followed by a 10 year investigation using sophisticated video
recording technology to retrieve a testimony from the alleged killer. As such, the
unequal treatment of Indigenous Australians can be seen as to not reflect moral
standards.

Reporting Crime: 1, 7
The reporting of crime in the criminal investigation process has had limited
effectiveness in achieving justice for all parties to the criminal justice process.
Police, under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), are
required to provide a charge in ‘lawfully detaining’ an offender.
An opinion piece SMH 10/11/13 written by former Director of Public Prosecutions
(DPP) Nicholas Cowdery, however, condemned the police issuing a charge of murder in
the case of Thomas Kelly, which was later perpetuated by the media. This largely
created a false community expectation for the offender, Loveridge, to receive a sentence
subsequent to the seriousness of murder, when in actual fact the case of DPP v
Loveridge was one of involuntary manslaughter. Cowdery commented that
manslaughter was a ‘protean’ offence and that the resulting sentence of 4 years was
appropriate when mens rea could not be proven, and, as such, the community outrage to
the case was unjustified. The creation of false community expectations by incorrect
charges is deconstructive to the achievement of justice for parties involved.

Mandatory sentencing: 1, 3, 4, 5, 9, 10
Sentencing law reform in regards to mandatory sentencing has compromised the
achievement of just outcomes for offenders. Whilst judges are traditionally expected to
use their judicial discretion to determine the length of a sentence, the Crimes and Other
Legislation Amendment (Assault and Intoxication) Bill 2014 provides a minimum
sentence of 8 years in cases of involuntary manslaughter where the offender in question
is over a blood alcohol content of .15. This reform largely came as a result of community
outrage to the case of DPP v Loveridge, who perceivably received a short sentence for
the manslaughter of Thomas Kelly, in an effort to achieve justice for society. Such
measures for collective justice, however, have been criticised in The Guardian 21/1/14
for ‘removing’ the fundamental concept of judicial discretion. A lack of discretion in
these cases has been recognised to be harsher on the offender, as in the case of DPP v
Garth 2014, who was denied bail based on that he was an ‘unacceptable risk’ of
absconding (SMH 16/9/14). Thus, a lack of discretion provided by mandatory
sentencing fails to reflect the rights of the offender.

Charge Negotiation: 1, 3, 8
The process of charge negotiation has been controversial in its reflection of moral and
ethical standards. Many have argued that the allowance of diluted penalties does not
reflect moral standards of the rule of law, largely due to the fact that its provisions are
not held in any statute and are left to the discretion of the Director of Public
Prosecutions (DPP). For instance, in SMH 1/9/2011, Supreme Court Justice Hulme had
condemned the DPP’s covert negotiation of charges in the case of Milutinovic, who had
detained and threatened his former partner. There have been arguments, however, in
favour of charge negotiation as a legitimate facet of the criminal trial process in
achieving resource efficiency and prosecution of highly organised criminals, as in The
Conversation 26/7/2012, wherein former investigator Charlie Bezzina hailed charge
negotiations ‘an essential tool in saving court time and cost’. As such, whilst charge
negotiation may not fully reflect moral standards, its role in providing for resource
efficiency has made it a critical facet of the criminal trial process.

Provocation: 3, 4, 5, 8
The provisions for partial defences in the criminal trial process have arguably been
limited in reflecting moral and ethical standards. The partial defence of provocation
provides that in cases where the offender lost control of their actions as a direct result of
the victim’s own, the offence and subsequent sentence can be reduced. This has proved
controversial in the recent case of Singh, who was considered to have been provoked by
his wife’s recount of an affair and threats to have him deported, resulting to reform in
the Crimes Amendment (Provocation) Bill 2014. In an opinion piece SMH 21/10/13, it
was stated that provocation was an “archaic” offence that “no longer reflected
community values”. The same article, however, also outlined the possibility for such
changes to devalue the concept of ‘battered woman’s syndrome’, as the proposed
changes would only apply to ‘extreme’ provocation, and not an extended history of
arguably less-serious abuse. As such, an unequal balance of consideration for the
offender and victim can be seen as limited in reflecting moral and legal standards of
equality under the law.

Youth Justice Conferences: 2, 6, 9, 10, 11

Law reform in regards to punishment of young offenders has played a significant role in
achieving just outcomes. Law reform has provided significant improvements in
consideration of age in sentencing, as in the Children’s (Criminal Proceedings) Act 1987
S6, which aims to provide just outcomes by the ‘reintegration of the victim’ and
consideration for the effect on the victim. Such measures are largely due to the nature of
younger offenders, who as stated in the NOETIC Review 2010, were less intellectually
developed, and had motivations of self-interest. In achievement of this, the Young
Offenders Act 1997 was amended to provide an alternative method of punishment
through youth justice conferences (YJCs), which apply a principle of restorative justice
to reduce recidivism, through facing the offender with the effect of their offence on the
victim. Such reform has played a quintessential role in achieving just outcomes for all
parties involved in sentencing, as a 2013 BOCSAR report that at least 96.4% of
participants found YJCs fair for both the victim and the offender.

Victim Impact Statements: 4, 5, 6, 10

Law reform to sentencing in sexual assault cases has played a significant role in
achieving just outcomes. The Sentencing Procedure Act 1999 (NSW) provides that all
victims of crimes that result in the ‘actual bodily harm’ of a person are enshrined to give
a victim impact statement (VIS) in the sentencing process, though the legal weight of
these has varied. The judgment of R v Slack 2004 had provided case law reform to these
measures, questioning the ‘substansial weight’ given to a victim’s recount of bodily harm
in sexual assault cases, which would act as an aggravating factor. As such, the practice of
allowing a VIS was disused, as such an extension from a statement not proved beyond
reasonable doubt to the offender’s sentence would be arbitrary. The ruling of R v Aguirre
2010, however, overturned such proceedings, stating that these provisions would not
achieve justice for the victim, in that harm caused to the victim may simply be an
ingredient of the crime admitted by a guilty plea, and not necessarily an aggravating
factor. As such, contemporary case law reform in regards to victim impact statements
has played a significant role in providing just outcomes for both the victim and the
offender.

Juries: 8
The extent to which juries reflect moral and ethical standards can be seen as
contentious. Whilst by their nature juries are a reflection of the rights of society for
protection from arbitrary powers of the judiciary, as juries are a random selection of the
population, they may not necessarily understand the legal system and are open to
influence from the media. This can thus lead to unequal outcomes for the victim and the
offender. For example, in DPP v Gittany, Mr. Gittany chose to have his case heard by a
judge only for fear that public opinion would be skewed due to media influence in his
trial. Furthermore, a NSW Bureau of Crime Statistics Report from 2008 found that only
roughly 22% jury members were able to correctly define ‘beyond reasonable doubt’.
Moreover, Former DPP Nicholas Cowdery in SMH 23/11/13 stated that judge only trials
were in fact more effective in cases that involved ‘technical’ legal issues. Conversely, in
the same article it was also reported that 55.4% of these judge only trials led to an
acquittal, compared to 29% in trials involving a jury. This could possibly indicate a bias
towards the offender, as the judge may fear an appeal. Such outcomes could prove
unequal and thus not reflect moral standards of equality under the law.

Media: 6
The influence of the media in shaping society’s interests can be deconstructive to the
achievement of justice. The media in many cases has enormous powers to create
substansial public interest in a case, however this can be ineffective if such interests are
vested with legal principles and juries are influenced before a trial can begin. For
instance, media influence in the case of DPP v Gittany caused Simon Gittany to choose to
have his case heard without a jury, as he believed the opinion of the public to be skewed.
As such, media influence caused Gittany to concede the fundamental right to be judged
by peers removed the possibility for the reflection of society’s values, and meant Gittany
nor the DPP could not appeal a sentence on the basis that the judge gave misdirection.
Moreover, media influence in the case of DPP v Loveridge was criticised by former DPP
Nicholas Cowdery in SMH 10/11/13 who commented that ‘shock jock’ media had
perpetuated an incorrect police charge of murder, subsequently inciting exaggerated
expectations for Loveridge’s sentence and led to community outrage following his
sentence of 4 years. Such a response can be deconstructive to achieving justice for all
parties involved.

Drug offenders - alternatives to traditional sentencing: 2, 9

The use of alternative methods of sentencing for drug offenders has been effective in
achieving justice for all parties to criminal justice. Under the Drug Court Act 1998 NSW,
alternatives to traditional sentences are provided to offenders submitted to drug courts
to reduce recidivism. An increased need for rehabilitation is seen and thus parole
offering pharmacotherapy, counseling and education to reintegrate drug offenders into
society. The Principles, Perspectives and Possibilities Conference found that 49% of
participants who before had high rates of recidivism were able to complete the
programs using non-custodial sentences. As outlined by a 2013 BOCSAR report by
Stephanie Taplin, Drug Court Evaluation, these programs as can also ensure compliance
through its Section 6 sanctions imposed for failing to attend a weekly progress report or
a drug test analysis. The report stated that ‘nearly all team members were very positive
about the success of the Drug Court [particularly in] breaking the cycle’ of individual
recidivism. Attorney-General Greg Smith, stated in ABC 14/2/13 inter alia that drug
courts ‘reduce reoffending by 37%’ and alleviate state burdens as imprisonment costs
‘about $170 a day’. As such, it can be seen that drug programs are effective in achieving
justice for all parties to criminal justice.
Crimes Against the International Community: 12
International courts and tribunals face significant issues in prosecuting crimes against
the international community. The International Criminal Court (ICC) was established as
a permanent measure for the perpetration of ‘war crimes, genocide, ethnic cleansing
and crimes against humanity’ under the Rome Statute 1998, however the nature of such
crimes limits its effectiveness. As detailed in a University of Texas Law School report
The Limits of Global Judicialization. It was stated wherein that the nature of individual
accountability has been limited compliance from states, highlighted through the
Rainbow Warrior Case 1985. Though France was compliant with its interstate
accountability, paying reparations of $6.2m to Greenpeace, it did not follow UN opinion
in a sentence for two of its responsible government officials, deconstructive to its future
legal weight as a deterrent. . Due to its nature, the ICC is said to have only had one
successful prosecution, The Prosecution v Lubanga (2012), though its operations have
cost over $1b, as in Forbes 12/3/14. Moreover, as detailed in a UWS Steven Freeland
Report, The Effectiveness of International Criminal Justice, the prosecution of crimes
against humanity by the ICC faces serious issues due to the emergence of non-state
actors, often operating in countries insufficient to bring such criminals to courts. As
such, prosecution of crimes against the international community is severely limited by
the nature of such crimes.

Transnational Crimes: 12
Dealing with transnational crimes through extradition can be seen as limited in
achieving justice. Transnational crimes create significant issues to the achievement of
justice and persecution of international crime. This is largely due to the highly organised
and nature of such crimes, and the possibility for overseas transport. For instance, in the
case of Nicholas Leeson, the offender, who had committed embezzlement equaling
£208m, was able to avoid persecution through fleeing to Thailand, and later Germany,
before he was extradited. In such cases, there is a great need for extradition to
strengthen domestic judicial systems. As such, Australia’s Extradition Act 1988 Section
40 allows Australia, through the Attorney General, to request an offender of Australian
law to be extradited. The Recent Developments in the Law of Extradition Report
outlined limitations of extradition in that criminals could be held on detention without
opportunity for bail, undermining article 9 of the ICCPR; and that the double criminality
principle (that offences must be recognised in both states) is often diluted in Australan
jurisdiction. Such developments would prove unfair for the offender and deconstructive
to Australia’s relations with the international community. As such, extradition as a
means of persecuting transnational crimes is limited in its effectiveness.

Computer offences: 2
The impact of technology poses a significant issue to achieving compliance due to the
complex and organised nature of such offences. The Crimes (Property Damage and
Computer Offences) Act 2003 NSW sets out crimes relating to computers, such as fraud
and intellectual property damage, but fails to address the potential use of internet for
transnational drug crimes under its facilitated anonymity. A report from Carnegie
Mellon University, Traveling the Silk Road, outlined the extent of the online drug trade
on website The Silk Road, which generated $1.9m USD per month from distributing
illegal narcotics, child pornography and weapons. In Forbes 6/8/12, it was stated that
The Silk Road had generated $22m in illegal sales annually. The website provided
measures for its users’ anonymity, including the use of an untraceable digital currency
‘bitcoin’, and operated transnationally until October 2nd 2013 (ABC 3/10/13). As such, it
can be seen that such crimes pose significant issues to achieving compliance, on a
transnational scale.
Young offenders bail: 4, 11
Law reform has played a significant role in achieving justice for young offenders.
Young offenders in the past were often held in institutions on remand, though later
serving a non-custodial sentence, that were detrimental to their rehabilitation.The Bail
Act 2013 provided reform to the previous Bail Act 1978, abolishing the previous
provisions to the presumption against bail and section 22A’s limit to the amount of a
times a juvenile can make a bail application. As stated in a report from former DPP
Nicholas Cowdery, Criminal Justice in NSW under the new State Government, the former
act had undertaken ad hoc reform as a reponse to unrepresentative cases of reoffending,
which increased the remand population to over 25% of the total detention population.
Moreover, the Law Reform Commission Report 133 – Bail criticised the prior ad hoc
amendments as leading to results that were ‘frequently anomalous and unjust’, as young
offenders had higher rates of recidivism than adults by 21% (BOCSAR 2012 stat). As
such, it can be seen that law reform regarding bail has proved instrumental in
recognising rehabilitation for young offenders, and thus their achievement of justice.

Australia int. crime: 12

Australia’s response to international crimes through counterterrorism has been limited
in the protection of rights. Australia has conducted several recent reforms in order to
address ‘home grown terrorism’, through reform of the Telecommunications
(Interception and Access) Act 1979 (TIA), as s172 previously did not ‘permit the
disclosure of information that is the contents… of a communication’, to allow the
contents of ‘metadata’ to be disclosed to relevant securities bodies; most notably ASIO.
SMH 20/10/14, however, reported that Senator Ludlam had stated a need for greater
reporting, as the fact that ASIO is exempt from reporting has resulted in ‘warrantless
access… more out of control than we thought’ and had not implemented principles of the
Blunn Report regarding ‘inadequate regulation of access’. A significant limitation in the
reforms is the implication on the onus of proof, which ‘disappears or at least diminishes
quite significantly’ (quote Simon Breheny, Institute of Public Affairs). Similarly, reforms
to ‘passport legislation’, as described by The Conversation 7/8/14, require those
travelling to a region in conflict to provide a ‘valid reason’, which otherwise results in
the revocation of passports. Similarly to ‘metadata’ laws, however, both effectively
undermine the presumption against innocence, which in the dilution of fundamental
legal concepts limits Australian responses to international terrorism.

Children’s Court: 11
Despite the possibilities provided by the Children’s court, its progress has been limited.
Consideration for the need of rehabilitation is provided in the Children’s Court Act 1987
(NSW), which reformed the previous court through a closed court, disallowing media
publication of offender names, to provide the ‘education of a child… without
interruption’. The University of Queensland Report Can the Children’s Court Prevent
Further Offending?, however, provided that ‘the consequences of decarceration and the
focus on child protection have not been entirely positive, due to the fact that children
are not provided an active role in the court, ‘portrayed themselves as passive
participants… talked down to and threatened’, yet children did not ‘bemoan’ this as ‘any
result dissatisfaction with the length… was far outweighed by the perceived leniency of
sentence’. Such perceptions of leniency and a lack of involvement in the court thus limit
the possibility for lower recidivism. Moreover, The Australian 16/1/13 stated that ‘the
length of sentences often depends upon where offenders live’ in metropolitan or rural
areas, undoubtedly creating perceptions of injustice in children, thus limiting the
effectiveness of the Children’s Court.