HSC Legal Studies: News Watch - Crime

The Justice Maze

Tue, 17 Nov 2009 15:08:12 +1100

The Justice Maze is a ten minute YouTube clip produced by the CRC (Community Restorative Centre) which explains the NSW court and prison system in a way that avoids jargon and complicated legal language. It is directed at those people who are unfamiliar with the processes involved with arrest, trial and imprisonment.

CRC is a NSW community organisation dedicated to supporting people affected by the criminal justice system, particularly prisoners, ex-prisoners, their families and friends. Teachers might find it a useful teaching aid while doing Crime in providing students with an overview of the criminal justice system from the perspective of the family of the offender.

Going to Court - two online resources

Mon, 16 Nov 2009 12:49:17 +1100

You can now read about going to court, the process from arrest and questioning, bail, dealing with lawyers, court procedure, how to plead, hearings and trials, preparation, evidence, proof, examination in court, sentencing, and appeals online using this excellent resource Defend Yourself: Facing a charge in court by Tim Anderson. If you are doing the Crime componenent of Legal Studies, this online guide will help you immensely.

A second online book Guilty your honour: representing yourself when facing a drink driving charge in New South Wales Courts by Helen Walsh is also available. Both books are available from the Find Legal Answers website.

Use these resources in conjunction with the Legal Studies Research Guide - Crime and the LIAC Crime Library. You will be well equipped to answer any question concerning a criminal case going to court.

Double jeopardy revisited

Thu, 12 Nov 2009 15:57:24 +1100

I have revisited my earlier posting on double Jeopardy as it was not as clear as it should have been and have rewritten it significantly. Thus, it is appearing as a new post.

The Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 makes further changes to the double jeopardy laws in New South Wales. The Act has now received assent and commenced operation on 24 September 2009. The Act inserted a new section 68A into the Crimes (Appeal and Review) Act 2001 (NSW).

The new section 68A:

68A Double jeopardy not to be taken into account in prosecution appeals against sentence

(1) An appeal court must not:

(a): dismiss a prosecution appeal against sentence, or
(b): impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again.

Before the commencement of this new section, there was a danger, if the crown made an appeal against a sentence imposed in a lower court, for the Appeal court to still impose a lesser sentence than one that ought to have been imposed.

This is what happened in the matter of R v King [2009] NSWCCA 117. The case concerned the sexual assault on a girl under ten years of age. The District Court Judge could have imposed a maximum sentence of 25 years, with a non parole period of 15 years. However, the Judge sentenced King to imprisonment for two years and suspended the sentence as he had already been in custody for 15 months. he was also given a bond for two years.

There was such a public outcry at this sentence, that the Crown appealed against the leniency of this sentence saying that it was manifestly inadequate. The Judges in the Appeal decision said "the term of imprisonment that ought to have been passed upon the respondent by the Judge after a 25 per cent discount should have been in the vicinity of 9 years. As there were no special circumstances warranting a reduction in the minimum period of custody, the non-parole period should have been six years and nine months. Such a sentence would have shown due regard to the standard non-parole period notwithstanding that it was a sentence imposed after a plea. (pg 15, paragraph 70.)

The Court of Criminal Appeal did increase the sentence to a term of imprisonment comprising a non-parole period of four years six months and a balance of term of two years six months. However, if this case had been heard after this new legislation, the Court might well have imposed a higher sentence again.

Michael Pelly discusses the implications of this new legislation in a piece in The Australian "Power for NSW judges to act on 'lenient' sentences".

The Office of Public Prosecution have Prosecution Guidelines that provide directions for Appeals against sentence. (see page 53.) One factor they need to consider is "the element of double jeopardy involved in a prosecution/Crown appeal and its likely effect on the outcome (the probable imposition of a lesser sentence than was appropriate at first instance". However, this new legislation will over ride this guideline rule.

Impact of imprisonment versus suspended sentences

Thu, 12 Nov 2009 15:43:52 +1100

Being sent to prison is no more effective in reducing the risk of future re-offending than being threatened with prison, according to research conducted by the NSW Bureau of Crime Statistics and Research. "The recidivism of offenders given suspended sentences: a comparison with full-time imprisonment" by Rohan Lulham, Don Weatherburn and Lorana Bartels compares a group of offenders given a suspended sentence of imprisonment with a group of offenders given a sentence of full-time imprisonment.

In cases where the offender had no previous experience of imprisonment, the Bureau found no significant difference in the likelihood of re-conviction between those who received a full-time sentence of imprisonment and those who were given a suspended sentence of imprisonment. In cases where the offender had been previously sent to prison, the Bureau found offenders sent to prison were significantly more likely to re-offend than matched offenders given a suspended sentence of imprisonment.

For additional information about sentencing, and the use of suspended sentences, LIAC's Hot Topics 55: Sentencing (2005) provides a useful overview.

Bail and Juvenile Justice

Mon, 02 Nov 2009 16:57:22 +1100

'Bail Me Out: NSW young offenders and bail' has been produced by the Youth Justice Coalition. This research examined 145 cases before the Children's Court. It describes the links between homelessness, policing practices and community resources and the young offender's breaching of bail conditions.

'Breach of Bail and Juvenile remand and crime' and 'Trends in bail and sentencing outcomes' are earlier blog posts that will link you to other research that has been done on this issue.

If you have a reader's card for the State Library of NSW, you can find more articles in the media on Proquest ANZ Newsstand dealing with bail. These include:

'Juvenile justice: responding to Australia's children and young people in trouble with the law' by Jenny Bargen, (2008) 92 Reform (Winter) 28-32, 72, and
'Law and order 2008: a very tough new world' by Dennis Miralis, (2008) 64 (3) Law Society Journal (April) 60-63.

LIAC Crime Library - October 2009

Mon, 02 Nov 2009 10:51:27 +1100

The LIAC Crime Library has been updated. It includes the following new cases:

R v Bui - a district court decision that involved exposing children to the cultivation of cannabis,
R v Thomas & Manju Sam - the parents who were found guilty of manslaughter by criminal negligence of their baby daughter Gloria,
R v Walsh - John Walsh's conviction for the murder of his wife and two grandchildren in Cowra,
R v BW & SW - the murder and manslaughter of Ebony, the daughter of BW and SW by starvation, and
R v Barker - the stabbing attack of a teenager that was heard in the District Court.

The entries for the convictions of Bruce Burrell for the murder of Kerrie Whelan and Dorothy Davis have also been updated.

NSW Criminal Court Statistics 2008

Mon, 19 Oct 2009 14:10:56 +1100

The New South Wales Bureau of Crime Statistics and Research have published their latest statistics for 2008 for criminal matters titled NSW Criminal Court Statistics 2008 These statistics include matters heard in the Children's Court. If you are interested in how recent changes to laws are affecting young people, in particular how the changes to the Bail Act 1978 (NSW) have affected applications for bail by young offenders, these statistics will be of interest.

Key statistics demonstrate that in the Children's Court between 2007 and 2008

The number of juveniles appearing in court and convicted of one or more offences rose by 17%;
The number of juveniles refused bail rose by 48%; and
The number of juveniles receiving control orders rose by 18%.

Effectiveness of Circle Sentencing

Mon, 19 Oct 2009 14:08:37 +1100

The NSW Bureau of Crime Statistics and Research conducted research on Circle Sentencing and found that it does not reduce the risk of re-offending by Aboriginal offenders. The Bureau's report is "Does circle sentencing reduce Aboriginal offending?" by Jacqueline Fitzgerald, Crime and Justice Bulletin (2008) No 115.

Circle sentencing is an alternative method of sentencing Aboriginal offenders which has been used in different areas amongst Aboriginal communities including Nowra, Dubbo, and Kempsey.

The study examined three issues:

whether Circle Sentencing reduces the frequency of offending
whether Circle Sentencing increases the time between offences
whether Circle Sentencing reduces the seriousness of any further offending.

Despite these findings, the Director of the Bureau, Dr Don Weatherburn said Circle Sentencing should be strengthened rather than abandoned and used in conjunction with other programs such as drug and alcohol treatment and cognitive behaviour therapy.

NSW Drug Court - evaluation of its effectiveness

Mon, 19 Oct 2009 14:06:54 +1100

How effective has the Drug Court been in reducing the reoffending of those who appear before the Court?

The Drug Court was originally evaluated in 2002 by the NSW Bureau of Crime Statistics and Research in collaboration with the Centre for Health Economics Research and Evaluation in 2002. The results of that evaluation showed that the Drug Court was more cost-effective than prison but the differences in cost effectiveness were not very large.

The Drug Court has undergone significant change to improve its cost effectiveness, and a new study shows that the Drug Court is more effective than prison in reducing the rate of re-offending among offenders whose crime is drug related.

For students interested in investigating the effectiveness of this Court, this report is worth reading: The NSW Drug Court: A re-evaluation of its effectiveness by Don Weatherburn, Craig Jones, Lucy Snowball and Jiuzhao Hua, Contemporary Issues in Crime and Justice No 121, 2008.

Applause for former drug users who turn their lives around by Malcolm Knox, 7 February 2009, SMH provides an interesting insight into the Drug Court in action.

Recorded Crime - latest statistics

Mon, 07 Sep 2009 14:42:32 +1100

Recorded crime - offenders, selected States and Territories 2007-08 has been released by the Australian Bureau of Statistics. (Catalogue No 4519.0.) There is a useful overview of the criminal justice system, and methods for measuring crime. These statistics would be particularly useful if you are looking at young offenders or Indigenous offenders, especially relating to the effectiveness of the legal system in dealing with repeat offending.