Homicide

Homicide is the unlawful killing of another person. This includes both intentional and unintentional acts of killing with varying levels of mens rea. Causation must be established in all homicide cases. There are four main categories of homicide in NSW:

I.      Murder

II.     Manslaughter

III.   Infanticide

IV.     Dangerous driving resulting in death

I.                    Murder

Murder is the most serious homicide offence and is punishable with up to life imprisonment. For the prosecution to prove in court that a killing was murder, they must show the at least one of the following exists:

·         The accused intended to deliberately kill the victim

·         The accused set out to inflict serious bodily harm, which resulted in death.

·         The act was done with reckless indifference to another human life; that is, the accused did not care that the act might end a human being’s life

·         The act was done while committing or attempting to commit another serious crime punishable by life or 25 years’ imprisonment.

II.                  Manslaughter

Manslaughter is different to murder because of the intent behind the accused persons actions. There are three main types of manslaughter:

i.                    Voluntary Manslaughter

ii.                  Involuntary Manslaughter

iii.                Constructive Manslaughter

i.                    Voluntary manslaughter

Occurs when a person kills with intent, but there are mitigating circumstances (such as the defence of provocation) which reduce their culpability. For the crime to be classed as voluntary manslaughter, not murder, there must be mitigating circumstances.

ii.                   Involuntary Manslaughter

The killing of a person where the death occurred because of the accused acted in a reckless or negligent way, but without intention to kill the person.

iii.                Constructive Manslaughter

the killing of a person while the accused was carrying out another dangerous or unlawful act. The manslaughter is ‘constructed’ from the other unlawful act.

III.               Infanticide

Infanticide is a category of manslaughter that is applied to the death of a baby under the age of 12 months at the hands of its mother. The Crimes Act 1900 (NSW) requires that the court take into account the state of mind of the mother at the time she committed the crime. Many women suffer from a condition known as post-natal depression after the birth of a child. If the accused is found to have been suffering from this condition when she killed her baby it can be seen as a mitigating circumstance.

IV.               Dangerous Driving Resulting in Death

Dangerous driving causing death occurs when a person drives in an unsafe and reckless way, such as under the influence of alcohol or a drug, or at excessive speed, and in doing so causes the death of another human being. A conviction for this crime carries a maximum penalty of 10 years in prison. However, if the offence is aggravated by certain circumstances the penalty can be as much as 14 years’ imprisonment.

Assault

Assault is the most common form of crime against the person. Assault includes the offence of causing physical harm to another person and of threatening to cause physical harm to another person. Physical assault is a direct act in which force is applied to another person’s body unlawfully and without their consent and is punishable by up to five years’ imprisonment. A threat to cause physical harm can also be a form of assault where it causes the victim to fear immediate and unlawful violence; threatening phone calls, text messages or emails might constitute such a form of assault. There are different types of assault each with differing levels of seriousness:

I.                    Assault not occasioning actual bodily harm

II.                  Assault occasioning bodily harm

III.                Grievous bodily harm

Sexual assault is one of the least reported crimes and has a low conviction rate due to the difficulty of proving consent. There are 6 different types of sexual offences.

I.                  Obscene Exposure

II.                 Act of Decency

III.               Indecent Assault

IV.               Sexual Assault

V.                 Aggravated Sexual Assault

VI.               Aggravated Sexual Assault in Company

I.                    Obscene Exposure

deliberate exposure in public or in view of the general public by a person of a portion or portions of their body, in circumstances where the exposure is contrary to local moral or other standards of appropriate behaviour.

II.                 Acts of indecency

An indecent act is one which right minded persons would consider to be contrary to community standards of decency. Pretending to perform a sexual act on another person.

III.              Indecent Assault

is a type of sexual offence, where the accused commits an assault and ‘act of indecency’ on or in the presence of another person without their consent. ‘Indecent act’ is not defined in the Crimes Act 1900 (NSW), but it includes assaults with a sexual element. This offence covers many sexual acts that are not included under the offence of sexual assault, such as touching the genitals or other parts of the body in a sexual manner without the person’s consent.

IV.              Sexual Assault

is a type of assault where someone is forced into sexual intercourse against their will and without their consent. It was formerly known in common law as ‘rape’. The definition of sexual assault includes where consent is withdrawn during the act of sexual intercourse.

V.                Aggravated Sexual Assault

will be applicable where there are aggravating circumstances, such as where violence is used, the victim is under 16 years old or the victim has a serious physical or intellectual disability. It must be noted that a child under the age of 16 is not legally able to give consent.

VI.               Aggravated Sexual Assault in Company

Punishable by the highest criminal sanction – life imprisonment, the offence is viewed by the law as equivalent in seriousness to murder. The offence includes elements of sexual assault but is performed with another person or people present together with either depriving the victim of their liberty or the infliction or threatened infliction of bodily harm. The offence of aggravated sexual assault in company was introduced in NSW in 2001 following a series of so-called ‘gang rapes’ across Sydney’s inner west that led to a public outcry for reform of the law.

Offences Against the Sovereign

– Acts/omissions which aim to disrupt or harm the governing bodies of the country

I.                    Treason

Is considered any attempt or intention to levy war against the state or assist an enemy. In other words, it is betrayal to your home country. Treason includes espionage and spying.

II.                  Sedition

Sedition refers to actions that promote discontent, hatred or contempt against a government or leader of the state through slanderous use of language and offences urging force or violence against the government.

III.               Terrorism

Terrorism is the unlawful use of force with a political aim. Terrorism is particularly sinister because terrorists often target civilians and ‘soft targets’ rather than government forces.

Economic Offences

–          Involves people using property or sums of money

–          Largest area of criminal law

i. Crimes Against Property: taking another person’s property without consent

–          Larceny (theft): stealing someone’s property

–          e.g: car theft, includes shoplifting

–          Robbery: more serious offence than larceny, use of force

–          Mugging, bank robbery

–          Armed Robbery: use of force is present when stealing goods (with weapon- gun, knife, syringe)

–          Break and Enter: unlawfully enters a room or building with intention of committing an offence

                ii. White Collar Crime: non-violent crimes associated with business people or professionals

–          Embezzlement: stealing from your own company, usually small amounts at a time

–          Tax Evasion: fraudulent tax returns/hide income or assets

–          Inside Trading: buying and selling company shares- using confidential information for personal benefit

iii. Computer Offences: includes cyberstalking, identity theft, virus, hacking, unauthorised access, modification of data, downloading music

Drug Offences

These offences include possession of illegal drugs, trafficking, cultivation, manufacture and importation of illegal drugs.

Possession- of an illegal drug means to have enough drugs for personal use only.

Trafficking- means having a trafficable quantity of drugs, which is an amount deemed greater than that which a person could use for himself or herself. This is a far more serious crime than possession.

Driving or Traffic Offences

–          Strict liability- mens rea not required

–          If under 18 and a driver related offence- Local Court not Children’s Court

Public Order Offences

–          Acts that are inappropriate/offensive and disturbs the public peace/morals/safety

Preliminary Crimes

Offences occurring prior to the actual crime being committed.

Conspiracy– this occurs where two or more people agree to do an unlawful act or to do a lawful act by unlawful means.

Attempt – if a crime is attempted but not necessarily committed, then the crime of attempt applies.