The nature of crime

1. The nature of crime

• the meaning of crime
• the elements of crime
• strict liability offences
• causation
• categories of crime
• summary and indictable offences
• parties to a crime
• factors affecting criminal behaviour
• crime prevention

The meaning of crime

A crime can be defined as any act or omission of duty that results in harm to society and which is punishable by the state. You should take particular note of the fact that a crime, by definition, harms society as a whole. For this reason, while not undermining the impact that crimes have on particular victims, crimes are prosecuted by the state, i.e. it is not the role of the victim to prosecute the person(s) committing the crime. Accordingly, criminal cases in Australia are reported as R v Jones….with the R standing for Regina (Latin for Queen, representing the Crown and therefore the state) and Jones being the accused.

The elements of crime: actus reus, mens rea

• For the prosecution to obtain a conviction, they must prove the existence of all elements of a crime to the requisite criminal standard of proof, being beyond a reasonable doubt. See below under the Criminal Trial process for more details.
  
  
• With the exception of strict liability offences (see below) for a criminal offence to have occurred, the accused must have committed both elements of the crime:
  • Actus reus: refers to the actions (or in rare cases the failure to act/the omission) of the accused; that is that the accused actually did the act
  • Mens rea: refers to the mental state of the accused; i.e. that the accused intended the actions.
    
    
• While defences to criminal charges will be discussed in more detail (refer to the Criminal Trial process below) it is a good idea at this early stage for you to make the connection between the elements of a crime and defences. If you think about the essential elements of a crime, you will note that specific defences, if proven, operate to remove one of those elements thus precluding the prosecution from proving their case beyond a reasonable doubt. For example, the defence of self defence removes the mens rea element as, if proven, clearly the accused’s intention was to defend themselves or a third party and not commit the crime.

Strict liability offences

• Strict liability offences are minor in nature, e.g. speeding. For these offences it is not necessary for the prosecution to prove mens rea; proof of the act alone is sufficient to constitute a crime.
• Strict liability offences can only be successfully defended if the accused can prove that the actual act did not occur as mens rea is irrelevant to this category of offences.

Causation

• To prove a criminal charge, the prosecution must show that there is a link between the act and the crime. That is, that it is an act by which an effect is produced. For example, if someone was stabbed and they died on the operating table, then it is the act of the stabbing that caused the person to die, rather than the fault of the doctor. This link is called causation. The prosecution needs to prove that the act was the substantial and operative cause of the crime. A good case to examine on causation is Blaue v R (1975) 1 WLR 1411.

Categories of crime

Including offences against the person, offences against the sovereign, economic offences (property/white collar/computer), drug offences, driving offences, public order offences, preliminary crimes (attempts and conspiracy)
You should take care not to get confused between categories of crime and examples of specific offences. Understanding the wording in the syllabus is crucial. For example, ‘offences against persons’ is a category crime, whereas ‘manslaughter’ and ‘sexual assault’ are examples of specific crimes that come under the type of crime ‘offences against persons’.
You should aim to understand what each category of crime is and be able to correctly categorise specific offences appropriately. An example is always an excellent way to support a definition of a concept and you should aim to do this in Legal Studies.
Creating a mnemonic can be an effective way for you to remember the categories of crimes as in Pink Snails Eat …
The seven categories of crime referred to in the syllabus are:

1. Offences against persons: involve the intended causing of injury to a person e.g. assault, manslaughter.
   
   
2. Offences Australian against the sovereign: involve criminal acts against the government, e.g.
   1. Treason involves the commission of acts aimed at bringing down the government or head of state.
   2. Sedition involves the incitement of hatred and/or violence in Australia against the government or head of state. The Federal Government’s anti-terrorism laws contain sedition provisions. These provisions have attracted quite a deal of debate about the need to balance protection of society against freedom of speech in this post 9/11 world.
      
      
3. Economic offences: involve the infliction of economic loss upon the victim, e.g.
   1. Loss or damage to the victim’s property e.g. robbery, larceny
   2. White collar crime, so called because it is committed by office workers working in a business environment e.g. embezzlement, the taking of money by an employee from a business, or tax evasion.
   3. Computer crime, e.g. identity theft, unlawful downloading of material which is subject to copyright such as films, songs, images.
      
      
4. Drug offences: involve the use, supply and possession of prohibited drugs. Most offences are covered in the Drug Misuse & Trafficking Act 1985 (NSW). For example, possessing or supply prohibited drug, noting the quantity of the drug will, in part, determine the severity of the offence.
   
   
5. Driving offences: involve breaches of traffic laws. Many traffic offences are strict liability offences such as speeding. Other, non-strict liability offences include dangerous driving occasioning death and driving in a manner dangerous to the public.
   
   
6. Public Order offences: involve acts, which the reasonable person would deem unacceptable behaviour. Such offences aim to achieve a measure of social control and cohesion through regulation, e.g. offensive conduct, offensive language.
   
   
7. Preliminary Offences: involve attempting to or planning to commit a crime, both of which are themselves criminal acts e.g.
   1. Attempt, e.g. attempted break, enter and steal, loitering with intent.
   2. Conspiracy involving two or more people agreeing to commit a crime, e.g. planning to rob a bank.

Summary and indictable offences

It is important that you can distinguish between these. Summary offences are minor offences (e.g. driving under the influence of alcohol, shoplifting) that are dealt with usually in a Local Court. Indictable offences are more serious and complex, e.g. murder or sexual assault, and are usually tried before a Judge and jury in a District Court or higher. The latter normally go first through a committal hearing in the Local Court before a magistrate, to determine if there is enough evidence to go to trial, i.e. whether a prima facie case exists.

Parties to a crime

Including principal in the first degree, principal in the second degree, accessory before the fact, accessory after the fact
Crimes are often complex events with a range of criminal activity, undertaken by a number of different people associated with the event. All the people involved in a crime are referred to as parties to the crime. All parties can be convicted and be punished by the court. Their punishment will depend in part on the extent to which they were involved in the crime. The more involved the greater the punishment. There are four types of parties to a crime; these are:

1. Principal in the first degree: the person(s) directly responsible for the criminal act, e.g. robbed the bank.
2. Principal in the second degree: the person, who assists the offender in the first degree to commit the crime, e.g. drove the getaway car.
3. Accessory before the fact: the person(s) who helped to plan the crime e.g. stole the bank plans.
4. Accessory after the fact: the person(s) who knowingly assists the offender after the crime has been committed, e.g. helped hide the offender from police.

Factors affecting criminal behavior

You should note that this is a complex issue and that crimes are committed for a myriad of reasons, and often a number of factors influence a person’s decision to disobey the law. Some of the broad factors that influence a person’s attitude toward crime include:

1. Social: People, and in particular, their attitude to the law and the authority of the state, are shaped in part by the society they live in. Factors such as upbringing and personal networks can impact, often negatively, upon a person’s view of the law and respect, or lack of, for it.
   
   
2. Economic: People who suffer economic disadvantage can feel “disconnected” from mainstream society and its value and hence may feel less respect for the law. Further, poverty, in terms of need can also be a factor, particularly in property offences.
   
   
3. Genetic: This is a controversial theory, rooted in 19th century phrenology studies and more recently in DNA analysis that suggests there is an inherited genetic basis to some criminal behaviour, particularly behaviour that is violent. This theory has been popularised by the media. However there is no conclusive evidence to support a genetic based theory of explaining criminal behaviour.
   
   
4. Political: Individuals and organisations may oppose certain criminal laws, or even the whole notion of the state in the case of anarchists, on political grounds. They therefore believe that the law is wrong or unjust and may not feel compelled to comply with the law. Political motives cover the spectrum of criminal behaviour from public order type offences through to violent criminal behaviour.
   
   
5. Self interest: Self interest and greed can motivate people to commit crime; it can be seen as an easy road to power or wealth.

Crime prevention

Situational and social crime prevention techniques
A great deal of our criminal justice system is reactive in nature. As discussed above, you will recall that the priority areas of government spending on crime all relate to reactive measures, the police, the courts and corrective services. While it must be acknowledged that each of these entities also plays a role in crime prevention via their educative and deterrent effect, they primarily intervene in the criminal process once a crime has been committed; this means they are reactive in nature. The aim of crime prevention strategies is to focus on a more proactive approach to reducing crime. The state government has, in recent years, placed an increased emphasis on the need to prioritise crime prevention strategies. For example, in 1996 a Crime Prevention Division was established within the NSW Attorney General’s Department.
Crime prevention strategies can be categorised into two broad types:

1. Situational Crime Prevention: It may assist you to think about this strategy as primarily focusing on the physical scene of the crime. Such strategies aim to either make the crime more difficult to commit, e.g. bars on windows to prevent a break, enter and steal; increase the likelihood of detection including a house alarm; or reduce the reward from the crime such as engraving owner identification on valuables. In addition, specific laws are premised on a situational crime prevention approach, e.g. imposing alcohol free zones in high-risk crime areas.
   
   
2. Social Crime Prevention: Social crime prevention aims to break the cycle of crime by targeting social factors such as poor parenting, high truancy rates, low levels of education and economic disadvantage, all of which increase the likelihood of criminal activity occurring. Social crime prevention is not a quick fix solution and for this reason often receives bad press as it can be wrongly interpreted as being soft on crime and therefore not worthy of government funding. You should remember however that repeated studies have shown that strategies which aim to tackle social inequities have led to a reduction in criminal activity. For an excellent analysis of crime prevention, what works and what doesn’t, look at Nicholas Cowdery AM QC’s speech entitled “Crime in the Community”, delivered at the NSW Teacher’s Federation Annual Conference on 2 July 2006 www.odpp.nsw.gov.au Take particular note of the comments made in the speech regarding the success of the Perry Pre-school Program which commenced in the United States in the 1960’s.

Further examples of social crime prevention strategies include:

• Drug and alcohol education programs for young people.
• The provision for Youth Justice Conferences in the Young Offenders Act 1997 (NSW). By facilitating the process of the offender facing his or her victim there is a greater likelihood that the young person will accept responsibility for their actions and appreciate the impact that their actions have had upon the life of the victim. This may mean that the young person is less likely to re-offend in the future.