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Week 1 - General Principles of Criminal Law (4 SOURCES OF CRIMINAL LAW,…
Week 1 - General Principles of Criminal Law
2 THE MORAL AND SOCIOLOGICAL CONTEXT OF THE LAW
The Parliament of a State/Territory or the Parliament of the Commonwealth decides when conduct will become a criminal offence. The Parliament does so through legislation which empowers a court of competent jurisdiction to find guilt and impose punishment.
The second is that the conduct must be seen as ‘morally wrong’.
The concept of ‘moral wrongfulness’, requires the conduct to involve moral wrongdoing. If satisfied the conduct can be classified as criminal.
The first is the ‘public perception’ of the conduct;
With regard to ‘public’ perception, an act will only be labelled as a crime if it damages the public in general. However, all private injuries can do this if they are sufficiently widespread to cause harm which is considered injurious to the public and or society.
It is ‘public’ perception in modern day Australia which is an important factor when justifying certain conduct as criminal.
3 SENTENCING
Criminal Law aims to punish an act where the act is considered criminal. This process is called sentencing.
When a defendant enters a plea of guilty to a criminal offence in a Queensland court, the defendant will be sentenced pursuant to the Penalties and Sentences Act 1992 (Qld). The Act underpins the considerations to be assessed by a sentencing judge or magistrate and include the following:
• Whether to record a conviction;
• Whether there is an early plea of guilty; and
• The defendant’s character;
• Co-operation with law enforcement.
• Sentencing guidelines;
The above considerations assist the court in deciding which penalty to impose and include the following:
• A term of imprisonment;
• A suspended term of imprisonment;
• A probation order;
• Court ordered parole;
• A fine;
• A period of imprisonment to be served in custody; and
• A good behaviour order;
• Life imprisonment.
• An order of community service;
Punishment has several purposes which are established by the governing principles of part 2 and the sentencing guidelines of section 9 of the Penalties and Sentences Act (1992) (Qld) which include:
• deter;
• rehabilitation
• punish
• denounce such conduct; and
• protect the community.
Veen v R (No.2)
(1987) 167 CLR 465 at 476
Mason CJ stated that:
“The purposes of criminal punishment are various: protection of society, deterrence of the offender, and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what an appropriate sentence is in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”
High Court held that in determining the punishment it is not permissible to embark “on a policy of preventive detention without legislative warrant” and “a sentence must relate to the offence committed, not to possible future offences.”
The High Court has somewhat shifted its position in Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519. This case involved the enactment of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 8 of the Act enabled the Attorney-General to apply to the Queensland Supreme Court to apply for the continued detention of serious sexual offenders on the basis of the protection of the community. Fardon, the convicted offender, appealed to the High Court and this was dismissed with the relevant legislation being upheld.
SENTENCING
Deterrence
Deterrence, aims to prevent crime
A court when sentencing a defendant seeks:
(2) Specific Deterrence – impose a punishment on an individual so they will be deterred from committing any further offences and, further, to send a message that a specific outcome will arise if they commit an offence, for example life imprisonment for murder or licence disqualification when found to have driven under the intoxication of liquor or a drug.
(1) General Deterrence – impose a punishment which will deter society from committing an offence; and
Reform and Rehabilitation
The rehabilitation of offenders is a forward approach and aims to prevent crime. Rehabilitation is achieved through programmes designed to teach and train a person’s behaviour
Examples of rehabilitation include: probation where a defendant participates in a programme designed specifically for their needs, for example where drug abuse and alcoholism are the cause of their offending they participate in drug and alcohol counselling, or where violence is a cause of their offending they participate in domestic violence and anger management counselling.
Incapacitation
The aim of incapacitation is to protect society by removing the offender, either temporarily or permanently from society through a sentence of imprisonment. This is relevant for those offenders for whom the other objectives of punishment are not applicable and or have been adopted previously.
The sentencing hearing
Sentencing is underpinned by the Penalties and Sentences Act 1992 (Qld) [‘PSA’] and the case law
The plea of guilty is an admission by the defendant of all of the elements that comprise the offence: see Maxwell v R [1996] HCA 46; (1996) 184 CLR 501.
SEE NOTES FOR MORE DETAILS ON SENTENCING HEARING RELATED TO
Penalties and Sentences Act 1992
(Qld)
3.6.3 The Purpose and Consistency of Sentencing
3.6.4 Proportionality in Sentencing
3.6.2 Discretion of Judiciary in Sentencing
3.6.5 Totality in Sentencing
3.6.1 Evidentiary Onus of Facts during Sentencing
3.6.6 Defendant’s Character
3.6.7 Plea of Guilty
3.6.8 Assistance to Law Enforcement Agencies
3.6.9 Sentencing Submissions
Retribution
Retribution confers with retaliation, ‘pay back’. It justifies punishment on the basis that a breach of the criminal law is deserving of some punishment even if no benefit would accrue from the punishment of the offender in question.
Revenge
Criminal law provides the victim with revenge, through a controlled environment of governing principles and sentencing guidelines, that require the prosecution to prove the guilt of the accused, ensures the rules of evidence are applied and the court determining the sentence (punishment) does so without bias and prejudice (including perceived or actual).
4 SOURCES OF CRIMINAL LAW
STATE (Qld)
The main source of criminal law in Queensland is the Criminal Code Act 1899 (Qld). This is an Act of Parliament passed by the Queensland Parliament
The Criminal Code sets out definitions of offences and describes certain aspects of offences as called “elements”, that must be established by the prosecution to prove the guilt of the accused person.
The Code contains defence provisions that the defendant may use to excuse or defend their actions and the punishment if the offence is proved.
The language of the Code is generally interpreted in accordance with its ordinary meaning and the ordinary meaning must be seen in the context of surrounding words and provisions. Queensland case law remains relevant for understanding and interpreting criminal law.
COMMON LAW
In those States, unless the statute expressly applies, the common law principles apply and common law offences continue to exist.
The common law applies in New South Wales, Victoria, and South Australia. These are known as “common law jurisdictions”.
COMMONWEALTH
Through the Australian Constitution, the Commonwealth Parliament (the two Houses of Parliament) has power to make and enforce criminal laws but these relate only to acts governed by the Commonwealth Constitution.
The Crimes Act 1914 (Cth) and Criminal Code 1995 (Cth) governs Commonwealth offences.