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Crime Essay TableCRIMINAL INVESTIGATION: POLICE POWERSWARRANTSLEGISLATION: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Outlines the legal powers held by the police. Procedures for police to follow when conducting a personal or strip search and protects the person’s rights, privacy and dignity. Circumstances under which a warrant can be used and outlines guidelines to follow. Outlines the conditions under which police can arrest and charge an individual. Outlines the conditions and guidelines police have to follow when interrogating a suspect.CASE: Inquiry into the death of David John Gundy (1991) Police, who had obtained warrants to arrest another man, smashed Gundy’s door down without announcement, assaulted and falsely imprisoned the occupants of the home, and failed to comply with the warrant.STATISTIC: Sydney Morning Herald 2012AUSTRALIAN law enforcement and government agencies have sharply increased their access without warrant to vast quantities of private telephone and internet data, prompting new calls for tighter controls on surveillance ernment agencies accessed private telecommunications data and internet logs more than 300,000 times during criminal and revenue investigations in 2011-12, a 20 per cent increase on the level of surveillance activity in the year before.INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: SMH 2012 “Access to private net, phone use up by 20% - without warrants”IMPACT:YOUNG OFFENDERSLEGISLATION: Evidence Act 1995 (NSW) Outlines that evidence must be obtained through the means of correct procedures. Includes that individuals are adequately informed of their rights and reasons of arrest. Adult or guardian must be present at interview of juveniles or else evidence may be inadmissible.CASE: R v Cortez 2002 (NSW) Supreme CourtChildren, criminal, young offenders aged 17 years at the time of arrest and interview, murder and admissibility of certain statements. Application for evidence to be excluded under s?90?Evidence Act?1995. Police gave no indication that the young offenders were under arrest or suspected of murder. Whether each offender could be deemed to have been arrested. Whether the accepted support person attending the interview with each offender was appropriate. Whether each offender was made aware of his entitlements or properly advised as to the seriousness of his position. Failure to be told of the right to obtain free legal advice. The offenders were not afforded the protection the legislature intended. Evidence tendered was inadmissible by virtue of s?90 and in breach of s?138?Evidence Act?as evidence improperly obtained.STATISTIC:INTERNATIONAL INSTRUMENT: Convention on the Rights of the ChildArticle 40 P2 (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence.NON-LEGAL RESPONSE: Youth Action Keep Young People Out of Prison NSW“Young people should not come into contact with the youth justice system, but when they do, they should only be detained as a last resort, and detention should be safe for them.More can be done to address the root causes of contact with the justice system in NSW, to intervene early, and to utilise diversion to its full extent. A review of the youth justice system has found the health and wellbeing of young people has been put at risk. This must change.NSW has the largest number of young people in detention compared with other states and territories. In 2016–2017, 1,500 young people were being supervised either in the community or in a youth detention centre.”IMPACT:CRIMINAL INVESTIGATION: INVESTIGATING CRIME: GATHERING EVIDENCE, USE OF TECHNOLOGY, SEARCH AND SEIZURE, USE OF WARRANTS POLICE SEARCH POWERSLEGISLATION: Code of Practice for CRIME (Custody, Rights, Investigation, Management, and Evidence) NSW 1998- 2012 UpdatePowers of arrest, including young offenders, reasonable grounds of suspicion and cautioning. Custody including release and conditions of detention. Questioning of a suspect, including young offenders and admissibility of evidence. Entering and searching the premise and the seizure of property. Stop, search and detain. Identification. Forensic procedures. Crime scenes.CASE: Darby v Director of Public Prosecutions (2004) NSWCAA sniffer dog pointed his nose at Darby’s pocket outside of a night club. Police searched Darby and find amounts of cannabis and methyl amphetamine who was charged and tried in the Local Court. The magistrate in the LC ruled that the actions of the dog in sniffing so closely and making contact with Darby constituted an unlawful search. Consequently, the evidence was admissible. The case was appealed to the Supreme Court which ruled that the magistrate had erred in law. Darby then appealed to the Court of appeal and two out of three justices deemed that the dogs actions did not constitute a search.STATISTIC: NSW PoliceThrough questions in Parliament we have gotten the real statistics from police on the effectiveness of drug sniffer dogs in NSW. According to the figures sniffer dogs falsely indicate the presence of drugs 64-72% of the time and a whopping 80% of the time on and around public transport. Despite this, police use sniffer dog indications to conduct intrusive public searches.INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementNo one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.NON-LEGAL RESPONSE: RMIT ABC FACT CHECK 2018 Are drug sniffer dogs incorrect 75 per cent of the time?IMPACT:WARRANTSLEGISLATION: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Outlines the legal powers held by the police. Procedures for police to follow when conducting a personal or strip search and protects the person’s rights, privacy and dignity. Circumstances under which a warrant can be used and outlines guidelines to follow. Outlines the conditions under which police can arrest and charge an individual. Outlines the conditions and guidelines police have to follow when interrogating a suspect.CASE: Inquiry into the death of David John Gundy (1991) Police, who had obtained warrants to arrest another man, smashed Gundy’s door down without announcement, assaulted and falsely imprisoned the occupants of the home, and failed to comply with the warrant.STATISTIC: Sydney Morning Herald 2012AUSTRALIAN law enforcement and government agencies have sharply increased their access without warrant to vast quantities of private telephone and internet data, prompting new calls for tighter controls on surveillance ernment agencies accessed private telecommunications data and internet logs more than 300,000 times during criminal and revenue investigations in 2011-12, a 20 per cent increase on the level of surveillance activity in the year before.INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: SMH 2012 “Access to private net, phone use up by 20% - without warrants”IMPACT:CRIMINAL INVESTIGATION: ARREST AND CHARGE, SUMMONS, WARRANTARRESTLEGISLATION: Australia Federal Police Act 1979 (Cth)Outlines police powers that all states must comply with.14A Powers of arrest: A protective service officer may, without a warrant, arrest a person for a protective service offence if the protective service officer believes on reasonable grounds that: (a) the person has just committed, or is committing, the offence; and (b) the arrest of the person is necessary for the purpose of i) ensuring the appearance of the person before a court of competent jurisdiction for the offence; or (ii) preventing the continuation of, or a repetition of, the offence or the commission of a further protective service offence.CASE: SU v Commonwealth of Australia and anor; BS v Commonwealth of Australia and anor [2016] NSWSC 8 (3 February 2016)On 26 Feb 2011, members of the Australian Customs and Border Protection Service boarded a ‘suspected illegal entry vessel 231’ and took into detention a number of people including the two Indonesian plaintiffs. They were conveyed to Christmas Island Detention Centre on 6 March 2011 for immigration processing and investigation. The plaintiffs were detained for an overall period of 9 months and 25 days (26 Feb 2011- 21 Dec 2011).The two plaintiffs were in the custody of the second defendant Stephen Michael Vasquez a member of the Australian Federal Police. However, the Commonwealth of Australia (first defendant) is liable for torts (civil wrong) committed by members of the Australian Federal Police.Prior to 30 June 2011, the plaintiffs had been transferred to the Northern Immigration Detention Centre for children in Darwin.On 30 June 2011, the plaintiffs were transferred from Darwin to Sydney Police Centre where they were subsequently charged with ‘people smuggling’ under s233C(1) of the Migration Act 1958. They were arrested at Sydney Police Centre and charged a short time later. The plaintiffs were taken before a magistrate at Central Local Court where bail was refused.The two plaintiffs remained in custody in a New South Wales adult prison on the 8th and 11th December respectively, until the charges were discontinued and returned to an Immigration Detention Centre. The plaintiffs were then returned to Indonesia on 21 December 2011. The plaintiffs submit that their arrest was unlawful and that they were wrongfully imprisoned as a result of their unlawful arrest.STATISTIC: BOSCAR 2018New figures released today by the NSW Bureau of Crime Statistics and Research (BOCSAR) show that the NSW prison population grew by 4.2 per cent in the last 12 months. That is an increase of 539 prisoners. As of March this year, the prison population stood at 13,494.Most of the growth came from an increase in the number of defendants remanded in custody, which increased by 338 in the last 12 months. The number of sentenced prisoners increased by 201 (2.4%); from 8,486 to 8,687.INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementNo one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.NON-LEGAL RESPONSE: ‘No Bail Go directly to Jail’ SMH 2010IMPACT:WARRANTLEGISLATION: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Outlines the legal powers held by the police. Procedures for police to follow when conducting a personal or strip search and protects the person’s rights, privacy and dignity. Circumstances under which a warrant can be used and outlines guidelines to follow. Outlines the conditions under which police can arrest and charge an individual. Outlines the conditions and guidelines police have to follow when interrogating a suspect.CASE: Inquiry into the death of David John Gundy (1991) Police, who had obtained warrants to arrest another man, smashed Gundy’s door down without announcement, assaulted and falsely imprisoned the occupants of the home, and failed to comply with the warrant.STATISTIC: Sydney Morning Herald 2012AUSTRALIAN law enforcement and government agencies have sharply increased their access without warrant to vast quantities of private telephone and internet data, prompting new calls for tighter controls on surveillance ernment agencies accessed private telecommunications data and internet logs more than 300,000 times during criminal and revenue investigations in 2011-12, a 20 per cent increase on the level of surveillance activity in the year before.INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: SMH 2012 “Access to private net, phone use up by 20% - without warrants”IMPACT:CRIMINAL INVESTIGATION: BAIL OR REMANDBAILLEGISLATION: BAIL AMENDMENT ACT 2018 (VIC)Victoria’s bail legislation has been amended over 6 times since 2010. This demonstrates the inefficacy of Victorian bail legislation and how consequently, statutory authorities are unable to create an agreeable and effective piece of legislation. Following media outcry of the Luke Batty case, bail laws were amended in 2016, however, they have been amended twice since demonstrating how legislation continues to be ineffective.CASE: LUKE BATTYIn January 2013, Greg Anderson was arrested for threatening to murder Rosie Batty and for breaching an IVO. He was later released on bail Melbourne County Court. Since release form bail, he was facing 11 criminal charges and was the subject of four arrest warrants due to breach of bail conditions and failure to attend court. In February of 2014, Anderson arrived at Luke Batty’s, Rosie’s son, cricket game. There, Anderson murdered Batty with a knife and when paramedics arrived refused to let them provide treatment whilst holding a knife, he was killed on the scene.STATISTIC:2018 Crime Statistics agency- 14,806 criminal offences reported alongside bail breaches during that 12-month period, and of those the most common by far was contravening a family violence IVO.INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: ‘No Bail Go directly to Jail’ SMH 2010In 2014, Rosie Batty established the Luke Batty Foundation to assist women and children affected by domestic violence. Batty's story was instrumental in the establishment in 2015 of the?Royal Commission?into Family Violence in her home state of Victoria.?It was?tabled in Parliament?on 30 March 2016. The report is a culmination of a 13-month inquiry into how to effectively prevent family violence, improve early intervention, support victims, make perpetrators accountable, better coordinate community and government response, and evaluate and measure strategies, frameworks, policies, programs and services.?The report includes eight volumes, and is founded on 227 recommendations made by the Commission to improve, guide and oversee a long-term reform program that deals with family violence. This includes the establishment of the Family Violence Protection Act, which provides a detailed definition of family violence, the relationships in which it can arise, and a reinforcement of the sound objectives and principles of the Act.IMPACT:The ineffectiveness of both Bail legislation and A/IVO’s in Victoria is exhibited. This consequently prevents adequate protection of victims, offenders and society and fails to reflect changing attitudes toward domestic violence. As Bail legislation in Victoria continues to be amended even after non-legal and legal pressures, it is evident that the legislation is ineffective and unable to satisfy the changing standards of society.REMANDLEGISLATION: The Bail Amendment Act 2014 (NSW)Only one bail application allowed as of 2007. People cannot make more than one bail application, meaning more people are held on remand. This is especially harsh on juvenile offenders and Indigenous offenders. Presumption for or against bail existed: Less serious offences= presumption in favour, more serious offences= presumption against bail. This leads to an influx of people being held on remand and further disregards the doctrine of 'innocent until proven guilty'. 2014 amendment of the 'show cause' test enhanced those held on remand as an additional 10 per cent of people who applied for bail got rejected.CASE: 2017 Held on Remand but innocentA Sydney man is seeking more than half a million dollars in damages from the NSW Government for maliciously prosecuting a false rape claim made against him by his North Shore paediatrician wife. A jury acquitted the man, who cannot be identified for legal reasons, of rape, domestic violence, assault and other charges in 2017 after Sydney District Court Judge Mark Williams issued a rare Prasad direction. A Prasad direction allows a jury to find a defendant not guilty any time after the close of the Crown in cases where there is insufficient evidence to justify a conviction. On legal advice, the man had pleaded guilty to two counts of domestic violence — relating to an email and damage to his then-wife’s mobile phone (after discovering explicit text messages between her and another man) but the judge dismissed those charges without recording a conviction. The man spent 32 days in jail on remand, an “extraordinarily difficult” experience given he had no criminal record and one that continues to haunt him to this day.STATISTIC: Sydney Morning Herald 2019The number of people refused bail and then later found innocent has risen by 30 per cent since 2014, with more than 200 people, including 21 children, forced to wait in prison for sometimes more than a year before being acquitted.INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementEveryone is to be presumed innocent until proven guilty in a fair trial.NON-LEGAL RESPONSE: Refused bail and held in prison for months, then found not guilty SMH 2019IMPACT:CRIMINAL INVESTIGATION: DETENTION AND INTERROGATION, RIGHTS OF SUSPECTSYOUNG OFFENDERSLEGISLATION: EVIDENCE ACT 1995 (NSW)Outlines that evidence must be obtained through the means of correct procedures. Includes that individuals are adequately informed of their rights and reasons of arrest. Adult or guardian must be present at interview of juveniles or else evidence may be inadmissible.CASE: R V CKT 1999 (NSW)In r v CKT 1999 (NSW), the police conducted an interview with a murder suspect without the presence of a supporting adult, believing he was over 16 years of age, only to find out later this was not the case. Therefore, evidence gained during the questioning could not be admissible into court.STATISTIC:INTERNATIONAL INSTRUMENT: CROCArticle 3 CROC, the treatment of children within the criminal justice system.NON-LEGAL RESPONSE: Youth Action Keep Young People Out of Prison NSW“Young people should not come into contact with the youth justice system, but when they do, they should only be detained as a last resort, and detention should be safe for them.More can be done to address the root causes of contact with the justice system in NSW, to intervene early, and to utilise diversion to its full extent. A review of the youth justice system has found the health and wellbeing of young people has been put at risk. This must change.NSW has the largest number of young people in detention compared with other states and territories. In 2016–2017, 1,500 young people were being supervised either in the community or in a youth detention centre.”IMPACT:Questioning rights of children adequately protected.DETENTIONLEGISLATION: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)Police can only detain a suspect for four hours; eight hours of the individual is drunk and disorderly. Exception to this is the Terrorism (Police Powers) Act 2002 (NSW) which, if the police makes a successful application to the Supreme Court, a suspected intending terrorist can be held for 14 days without charge.CASE: Andrew Jones v NSW Police 2008Police officers arrested Andrew Jones for public disturbance, believing he was drunk and disorderly. However, Jones was not under the influence of alcohol or other illicit substances and was detained for 5 hours, beyond the maximum hours of sentencing. He took the matter to court and received compensation.STATISTIC:INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementAnyone who is arrested has the right to trial within a reasonable time, or to release.NON-LEGAL RESPONSE:IMPACT:CRIMINAL TRIAL PROCESS: PLEAS, CHARGE NEGOTIATIONRIGHTS OF THE VICTIMLEGISLATION: Victims’ Rights and Support Act 2013 NSWPlea bargaining is considered to disregard the rights of the victim. Reduction of charges is viewed to be a lack of consideration for the victim and their rights under the Act. Plea bargaining can override victim’s rights under Victims’ Rights and Support Act (NSW), which includes a “Charter of Victims’ Rights”.CASE: Karl Koch 2009Initially, Koch was charged with attempted murder. Police gathered an extensive brief of evidence testifying to his obsession with her, his cyber-stalking, his violence, his repeated breaches of an apprehended violence order and, ultimately, the premeditation of his near-fatal assault. Unjust nature of plea bargaining was highlighted when Karl Koch was charged w/ attempted murder of former girlfriend but achieved a deal with NSW DPP and pleaded to a lesser offence of “malicious injury with intent” overlooking obvious evidence indicating he planned to murder.STATISTIC: SMH 2009Our legal system runs on guilty pleas, occurring in about 62 per cent of charges in higher courts, up from 50 per cent a decade ago.INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementVictims shall be allowed to present their views and feelings on all matters where their personal interests are affected.NON-LEGAL RESPONSE: SMH 2009 Forced to take on the system IMPACT:REWARDS COOPERATIONLEGISLATION: Crimes (Sentencing Procedure) Act 1999 NSWCrimes (Sentencing Procedure) Act (NSW) states guilty plea must be considered but criminal justice system has failed Kelly’s family through plea-bargaining.CASE: R v Sydney 2004Pleaded guilty of aggravated armed assault and robbery and had breached his good behaviour bond. Despite this, he provided assistance to the police, and also had a drug problem. Sentence was reduced due to his guilty plea.STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE:IMPACT:CRIMINAL TRIAL PROCESS: LEGAL PERSONNEL: LEGAL REPRESENTATION, INCLUDING LEGAL AIDLEGAL AID/RIGHT TO A FAIR TRIALLEGISLATION: Legal Aid Commission Act 1979 (NSW) Outlines the role, function and management of the Legal Aid Commission. Outlines circumstances in which legal aid can be granted on the basis of means, merit and matter.CASE: Dietrich v The Queen 1992Dietrich had been charged with drug offences and was denied legal aid after he refused to plead guilty. Legal Aid perceived that the evidence against Dietrich was so overwhelming that his case had no merit- it was pointless for him to plead not guilty. Dietrich represented himself and was convicted. He appealed his conviction to the High Court arguing he didn’t get a fair trial as he had no legal representation. High Court agreed it was likely Dietrich didn’t get a fair trial but noted there was no automatic right to legal representation. High Court ruling meant those who aren’t eligible for legal aid and cannot afford their own lawyer may not have legal representation during court proceedings.STATISTIC: ASN Law Council 16?May?2016According to the analysis, over a five-year period (2009/10–13/14) at least 45,000 Australians faced the?courts?nationally without?legal aid?as a direct result of a lack of funding.INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementEveryone is to be presumed innocent until proven guilty in a fair trial.NON-LEGAL RESPONSE:IMPACT:CRIMINAL TRIAL PROCESS: BURDEN AND STANDARD OF PROOFSTANDARD OF PROOFLEGISLATION: Evidence Act 1995Outlines that evidence must be obtained through the means of correct procedures. Includes that individuals are adequately informed of their rights and reasons of arrest. Adult or guardian must be present at interview of juveniles or else evidence may be inadmissible. 141 Criminal proceedings: standard of proof(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.CASE: R v Higgins 2013Was convicted of assault. At his appeal, the judge noticed that the conviction had been made in spite of the absence of key evidence. He was acquitted on the basis that the evidence didn’t prove beyond reasonable doubt.STATISTIC:INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementNON-LEGAL RESPONSE:IMPACT:CRIMINAL TRIAL PROCESS: USE OF EVIDENCE, INCLUDING WITNESSESDNA/TECHNOLOGYLEGISLATION: Crimes (Forensic Procedures) Act 2000 (NSW) Outlines how police are allowed to take forensic samples, such as blood or mouth swabs, to match DNA evidence found.CASE: R v White 2005Court ruled on the admissibility of forensic evidence, namely DNA found on a cigarette butt, despite it being given to the suspect while he was held in custody on an unrelated charge.STATISTIC:INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementNON-LEGAL RESPONSE: 2017 Jstor DailyHow Forensic DNA Evidence Can Lead to Wrongful ConvictionsIMPACT:WITNESSESLEGISLATION: Evidence Act 1995 (NSW)Part 2 of the Act addresses Witnesses. Aspects include witness competence, oaths, evidence rules, examination and cross-examination.CASE: Wood v R (2012) NSWCCAGordon Wood was convicted of the 1995 murder of his then girlfriend Caroline Byrne. At the trial and expert witness provided a testimony to suggest that Wood could have caused the death by throwing his girlfriend’s body off of the Gap at Sydney’s Watsons Bay. This was overturned in the Court of Criminal Appeal and it was agreed that the testimony was flawed and there was reasonable doubt about his scientific proof relating to Ms Byrne’s death.STATISTIC:INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementNON-LEGAL RESPONSE:IMPACT:CRIMINAL TRIAL PROCESS: DEFENCE TO CRIMINAL CHARGES: COMPLETE DEFENCES AND PARTIAL DEFENCES TO MURDERPARTIALLEGISLATION: Crimes Act 1900 NSWOrganizes common law crimes in NSW e.g. murder, infanticide, manslaughter, conspiracy, poisoning, assault, sexual assaults, abduction etc.23 Trial for murder--partial defence of extreme provocation. If on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.CASE: R v Singh 2012Got 6 years for killing his wife, stating a provocation defence. But last month, Singh was found guilty of manslaughter rather than murder after a jury accepted his claim that he had been provoked by a stream of verbal abuse from Ms Kaur including an alleged threat that she would have him deported.STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: Sydney Criminal Lawyers 2017Abolishing the Partial Defence of Provocation: An Interview with Dr Kate Fitz-GibbonIMPACT:COMPLETELEGISLATION: Criminal Code 1995 (Cth)Duress is available as a defence to all Commonwealth offences under Section 10 of the Criminal Code 1995 (Cth). The act provides that an accused is not guilty if they can establish that: A threat had been made that resulted in their will being overborne; A person of ordinary firmness and of the same age and sex as the accused would have yielded to the threat in similar circumstances; The accused had no reasonable way to avoid the threat.CASE: R v Williamson 1972 NSWLRUnder the defence of duress, the accused must be able to prove that they committed a crime against their own free will. In this case, the defendant disposed of a body whilst under the threat of death and this threat was held to constitute duress. STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE:IMPACT:CRIMINAL TRIAL PROCESS: THE ROLE OF JURIES, INCLUDING VERDICTSINEFFECTIVELEGISLATION: Jury Act 1977 (NSW) Outlines the role of juries and how juries are to be selected.CASE: R v Skaf 2004Jury members did their own investigating, resulting in a mistrial citing gross violations of natural justice. A gang rape victim faces a new ordeal after two jurors who disobeyed the judge's directions caused the gang rape convictions of Bilal and Mohammed Skaf to be overturned and a retrial ordered. The NSW Court of Criminal Appeal overturned the convictions of Bilal and Mohammed Skaf in the gang rape of a then 16-year-old girl at Greenacre's Gosling Park on August 12, 2000. Retrials have been ordered for both men. The elder of the two brothers, Bilal, is serving 55 years in jail for a string of gang rapes in Sydney's west in 2000. Mohammed Skaf is serving a maximum of 32 years behind bars. As a result of today's decision, the brothers will have their sentences for the Gosling Park rape removed from their overall sentences.STATISTIC: 2008 BOSCARAround half (55.4%) of the jurors surveyed by the Bureau believed that the phrase 'beyond reasonable doubt' means 'sure [that] the person is guilty'; 22.9 per cent believed that the phrase means 'almost sure' the person is guilty; 11.6 per cent believed that it means 'very likely' the person is guilty; and 10.1 per cent believed it means 'pretty likely' the person is guilty.INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: 'Disobedient' jurors cause gang rape retrial SMH 2004IMPACT:NOT FINALLEGISLATION: Crimes (Appeal and Review) Act 2001?‘Double Jeopardy Laws’ Section 100?of the Act empowers the NSWCCA to ‘order an acquitted person to be retried for a life sentence offence if satisfied that: there is fresh and compelling evidence against the acquitted person in relation to the offence, and in all the circumstances it is in the interests of justice for the order to be made’.CASE: R v Leung (2009, 2011 and 2013)Charged with the manslaughter of his long-term partner. Defendant was found guilty twice by different juries but in both situations, the judge gave a ‘directed verdict’ of not guilty.At his original trial in 2009, Mr Leung was acquitted of murder when a judge directed the jury to find him not guilty - on the basis that there was insufficient evidence. But the Crown used NSW's controversial double jeopardy laws, introduced in 2006, to have the verdict quashed. Mr Leung then faced court on a manslaughter charge but in an unexpected twist, became the first person in Australian legal history to be twice acquitted by a judge's directed verdict. Wiping tears from his face, he told Fairfax Media that day he was "finally free" to move on. However, the Crown had other ideas. In March 2012, the NSW Court of Criminal Appeal upheld a second appeal and ordered that Mr Leung once again be tried for manslaughter. In November that same year, he became the first man in NSW history to stand trial three times over the same death.?STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: SMH Three trials, three acquittals: meet Philip Leung - the man they couldn't convict 2014IMPACT:SENTENCING AND PUNISHMENT: SATUTORY AND JUDICIAL GUIDELINESSTATUTORYLEGISLATION: Crimes (Sentencing Procedure) Act 1999 (NSW) Is the source of sentencing laws in NSW + provides general guidelines for the courts to use in sentencing offenders, including maximum penalties and mandatory minimums.CASE: R v. Loveridge (2013) Loveridge attacked Kelly with a fatal punch to the head. After his sentence, the NSW Parliament passed a mandatory eight-year sentence for fatal one-punch attacks. Loveridge’s sentence was revised and increased. ‘One Punch Laws’.STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE:IMPACT:SENTENCING AND PUNISHMENT: THE PURPOSES OF PUNISHMENT: DETERRENCE (SPECIFIC AND GENERAL), RETRIBUTION, REHABILITATION, INCAPACITATION YOUNG OFFENDERS/ SPECIFIC DETERENCE LEGISLATION: YOUNG OFFENDERS ACT 1997 (NSW)Young Offenders Act 1997 (NSW)- Introduced diversionary programs that can be applied to summary offences and indictable offences that can be tried summarily.Warnings- An official notice given to a young offender without conditions attached. Relatively informal, must be informed of the purpose, nature and effect of the warning.Cautions- Cautions are formal and recorded. Young offender admits to the offence and consents to receiving a formal caution and sign a caution notice.Youth justice conferences- Used when an offender admit to the offence. Purpose is to allow offender to take responsibility for their actions, promote a better understanding of the issue and provide offender with appropriate support.CASE: JUVENILE JUSTICE NSW ANTI-SEMITISM 2014A teenager involved in an anti-Semitic attack on a bus full of young Jewish students will visit the Sydney Jewish Museum as part of an agreed settlement with NSW police and the Jewish community. The teenager attended a youth justice conference on Waverley Council Library on Tuesday, where he faced one of his victims and her family. As well as touring the Sydney Jewish Museum, the youth will also enrol in a school harmony project run by the NSW Jewish Board of Deputies. It was also recommended that he attend a family Shabbat dinner and read books from Holocaust survivors, including Primo Levi's?If This Is A Man?and Elie Wiesel's?Night. In the August 6 attack, a group of teenagers boarded a school bus travelling between Randwick and Bondi Junction and hurled abuse at the young passengers, all aged between five and 12 years old. It is alleged the offenders were drunk, yelled anti-Semitic insults such as "kill the Jews" and "Heil Hitler", and made physical threats of violence towards the children. The justice conference was attended by a police youth liaison officer, a social worker, the parents of the offender, a convener, and Vic Alhadeff, chief executive of the NSW Jewish Board of Deputies. The conference is a Juvenile Justice NSW service which allows participants to discuss the crime and its impact on the victims and their community. Five other juveniles given caution. STATISTIC: NSW Bureau of Crime StatisticsNSW Bureau of Crime Statistics found that the risk of receiving a custodial order dropped significantly- at 17.6% for Indigenous and 16.3% for non-Indigenous.INTERNATIONAL INSTRUMENT: CROCArticle 3 CROC, the treatment of children within the criminal justice system.NON-LEGAL RESPONSE: SMH “RACIST ATTACK ON BUS: YOUTH JUSTIC CONFERENCE”IMPACT:REHABILITATIONLEGISLATION: Drug Court 1998 NSWDrug Court Act?1998 No 150 -?NSW Legislation. An?Act?to provide for the establishment of the?Drug Court?of New South Wales, for the referral of?drug?offenders to the?Drug Court, and for the supervision of?drug?programs by the?Drug Court; and for other purposes.?CASE: Dee 2015Dee*, 35, sits in the dock in prison greens listening intently as the crown prosecutor reads out the charges against her. She has been in prison for 22 days, picked up on driving and shoplifting charges. Her criminal record stretches across three states, including armed robbery, and begins when she was 13 – the same year she started using heroin. In 2015 she was sentenced to two years of drug rehabilitation.STATISTIC: BOSCAR 2008When the Drug Court and comparison group were compared on an?intention-to-treat?basis?1?, offenders accepted onto the Drug Court program were found to be 17 per cent less likely to be reconvicted for any offence, 30 per cent less likely to be reconvicted for a violent offence and 38 per cent less likely to be reconvicted for a drug offence at any point during the follow-up period (which averaged 35 months).INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: The Guardian Justice done differently: how the NSW drug court transforms livesIMPACT:SENTENCING AND PUNISHMENT: FACTORS AFFECTING A SENTENCING DECISION: AGGRAVATING AND MITIGATING CIRCUMSTANCES AGGRAVATINGLEGISLATION: CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 21AAggravating, mitigating and other factors in sentencing21A Aggravating, mitigating and other factors in sentencing(1) General In determining the appropriate?sentence?for an offence, the?court?is to take into account the following matters--(a) the aggravating factors referred to in subsection (2) that are relevant and known to the?court,(b) the mitigating factors referred to in subsection (3) that are relevant and known to the?court.CASE: McCartney v R 2009Offender was a 22y/o male who met victim at hotel and later at restaurant. Offender invited victim home for drinks and victim had repeatedly declared she would not have sex with him. Both were intoxicated and offender sexually assaulted her when she went to sleep. Offender was found guilty and sentenced 2 years 6 months imprisonment. Offender appealed against sentence saying it was too severe and didn’t properly balance sentencing factors. When sentencing offender judge referred to GENERAL DETERRENCE as a purpose of punishment, stating it was important to send a message to the community that sexual assault is unacceptable. Aggravating circumstances involved nature and seriousness of offence particularly Victim Impact Statement (VIS). Mitigating factors included young age of offender lack of criminal history and unlikeliness of him reoffending. Offender also argued intoxication had distorted his judgment and contributed to the offence. Judge considered this but stated firmly intoxication was not a mitigating factor and didn’t excuse his behaviour- it was drawn upon that the offender managed to drive back to his house.STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE:IMPACT:MITIGATINGLEGISLATION: CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 21AAggravating, mitigating and other factors in sentencing21A Aggravating, mitigating and other factors in sentencing(1) General In determining the appropriate?sentence?for an offence, the?court?is to take into account the following matters--(a) the aggravating factors referred to in subsection (2) that are relevant and known to the?court,(b) the mitigating factors referred to in subsection (3) that are relevant and known to the?court.CASE: R v MF 2014MF attacked a woman by setting her on fire. The defence presented a number of mitigating factors and the judge took this into account. His sentence was reduced. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. It was deemed that the child grew up in an unstable environment and likely learnt behaviour from peers. Age as a young offender also was considered to be a mitigating circumstance.STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE:IMPACT:SENTENCING AND PUNISHMENT: THE ROLE OF THE VICTIM IN SENTENCINGVICTIM IMPACT STATEMENTLEGISLATION: Victims’ Rights and Support Act 2013 NSWVictims’ Rights and Support Act (NSW), which includes a “Charter of Victims’ Rights”. The right of the victim to provide a victim impact statement, which is largely taken into consideration during the process of sentencing. Statement can only be given in regard to sentencing, verdict must have taken place.CASE: McCartney v R 2009Offender was a 22y/o male who met victim at hotel and later at restaurant. Offender invited victim home for drinks and victim had repeatedly declared she would not have sex with him. Both were intoxicated and offender sexually assaulted her when she went to sleep. Offender was found guilty and sentenced 2 years 6 months imprisonment. Offender appealed against sentence saying it was too severe and didn’t properly balance sentencing factors. When sentencing offender judge referred to GENERAL DETERRENCE as a purpose of punishment, stating it was important to send a message to the community that sexual assault is unacceptable. Aggravating circumstances involved nature and seriousness of offence particularly Victim Impact Statement (VIS). Mitigating factors included young age of offender lack of criminal history and unlikeliness of him reoffending. Offender also argued intoxication had distorted his judgment and contributed to the offence. Judge considered this but stated firmly intoxication was not a mitigating factor and didn’t excuse his behaviour- it was drawn upon that the offender managed to drive back to his house.STATISTIC:INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementVictims shall be allowed to present their views and feelings on all matters where their personal interests are affected.NON-LEGAL RESPONSE:IMPACT:DOMESTIC VIOLENCELEGISLATION: Criminal Procedure Amendment (Domestic Violence Complainants Act) 2015 Domestic Violence victims can deliver evidence via CCTV. Protecting victim.CASE: Paul Turner Joondalup 2019Killed his former partner Sarah Thomas. CCTV cameras saw Paul waiting for Sarah prior to her death and furthermore, captured him following her death this was used as conclusive evidence within the case.STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE:IMPACT:SENTENCING AND PUNISHMENT: APPEALSPOLICE POWERSLEGISLATION: Code of Practice for CRIME (Custody, Rights, Investigation, Management, and Evidence) NSW 1998- 2012 UpdatePowers of arrest, including young offenders, reasonable grounds of suspicion and cautioning. Custody including release and conditions of detention. Questioning of a suspect, including young offenders and admissibility of evidence. Entering and searching the premise and the seizure of property. Stop, search and detain. Identification. Forensic procedures. Crime scenes.CASE: Darby v Director of Public Prosecutions (2004) NSWCAA sniffer dog pointed his nose at Darby’s pocket outside of a night club. Police searched Darby and find amounts of cannabis and methyl amphetamine who was charged and tried in the Local Court. The magistrate in the LC ruled that the actions of the dog in sniffing so closely and making contact with Darby constituted an unlawful search. Consequently, the evidence was admissible. The case was appealed to the Supreme Court which ruled that the magistrate had erred in law. Darby then appealed to the Court of appeal and two out of three justices deemed that the dogs actions did not constitute a search.STATISTIC: NSW PoliceThrough questions in Parliament we have gotten the real statistics from police on the effectiveness of drug sniffer dogs in NSW. According to the figures sniffer dogs falsely indicate the presence of drugs 64-72% of the time and a whopping 80% of the time on and around public transport. Despite this, police use sniffer dog indications to conduct intrusive public searches.INTERNATIONAL INSTRUMENT: UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS International Human Rights Standards for Law EnforcementNo one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.NON-LEGAL RESPONSE: RMIT ABC FACT CHECK 2018 Are drug sniffer dogs incorrect 75 per cent of the time?IMPACT:JURIESLEGISLATION: Crimes (Appeal and Review) Act 2001?‘Double Jeopardy Laws’ Section 100?of the Act empowers the NSWCCA to ‘order an acquitted person to be retried for a life sentence offence if satisfied that: there is fresh and compelling evidence against the acquitted person in relation to the offence, and in all the circumstances it is in the interests of justice for the order to be made’.CASE: R v Leung (2009, 2011 and 2013)Charged with the manslaughter of his long-term partner. Defendant was found guilty twice by different juries but in both situations, the judge gave a ‘directed verdict’ of not guilty.At his original trial in 2009, Mr Leung was acquitted of murder when a judge directed the jury to find him not guilty - on the basis that there was insufficient evidence. But the Crown used NSW's controversial double jeopardy laws, introduced in 2006, to have the verdict quashed. Mr Leung then faced court on a manslaughter charge but in an unexpected twist, became the first person in Australian legal history to be twice acquitted by a judge's directed verdict. Wiping tears from his face, he told Fairfax Media that day he was "finally free" to move on. However, the Crown had other ideas. In March 2012, the NSW Court of Criminal Appeal upheld a second appeal and ordered that Mr Leung once again be tried for manslaughter. In November that same year, he became the first man in NSW history to stand trial three times over the same death.?STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: SMH Three trials, three acquittals: meet Philip Leung - the man they couldn't convict 2014IMPACT:SENTENCING AND PUNISHMENT: TYPES OF PENALTIES INCLUDING: NO CONVICTION RECORDED, CAUTION, FINE, BOND, SUSPENDED SENTENCE, PROBATION, CRIMINAL INFRINGEMENT NOTICE, PENALTY UNITS, COMMUNITY SERVICE ORDER, HOME DETENTION, PERIODIC DETENTION, FORFEITURE OF ASSETS, IMPRISONMENT, DIVERSIONARY PROGRAMS YOUNG OFFENDERSLEGISLATION: YOUNG OFFENDERS ACT 1997 (NSW)Young Offenders Act 1997 (NSW)- Introduced diversionary programs that can be applied to summary offences and indictable offences that can be tried summarily.Warnings- An official notice given to a young offender without conditions attached. Relatively informal, must be informed of the purpose, nature and effect of the warning.Cautions- Cautions are formal and recorded. Young offender admits to the offence and consents to receiving a formal caution and sign a caution notice.Youth justice conferences- Used when an offender admit to the offence. Purpose is to allow offender to take responsibility for their actions, promote a better understanding of the issue and provide offender with appropriate support.CASE: JUVENILE JUSTICE NSW ANTI-SEMITISM 2014A teenager involved in an anti-Semitic attack on a bus full of young Jewish students will visit the Sydney Jewish Museum as part of an agreed settlement with NSW police and the Jewish community. The teenager attended a youth justice conference on Waverley Council Library on Tuesday, where he faced one of his victims and her family. As well as touring the Sydney Jewish Museum, the youth will also enrol in a school harmony project run by the NSW Jewish Board of Deputies. It was also recommended that he attend a family Shabbat dinner and read books from Holocaust survivors, including Primo Levi's?If This Is A Man?and Elie Wiesel's?Night. In the August 6 attack, a group of teenagers boarded a school bus travelling between Randwick and Bondi Junction and hurled abuse at the young passengers, all aged between five and 12 years old. It is alleged the offenders were drunk, yelled anti-Semitic insults such as "kill the Jews" and "Heil Hitler", and made physical threats of violence towards the children. The justice conference was attended by a police youth liaison officer, a social worker, the parents of the offender, a convener, and Vic Alhadeff, chief executive of the NSW Jewish Board of Deputies. The conference is a Juvenile Justice NSW service which allows participants to discuss the crime and its impact on the victims and their community. Five other juveniles given caution. STATISTIC: NSW Bureau of Crime StatisticsNSW Bureau of Crime Statistics found that the risk of receiving a custodial order dropped significantly- at 17.6% for Indigenous and 16.3% for non-Indigenous.INTERNATIONAL INSTRUMENT: CROCArticle 3 CROC, the treatment of children within the criminal justice system.NON-LEGAL RESPONSE: SMH “RACIST ATTACK ON BUS: YOUTH JUSTIC CONFERENCE”IMPACT:DRUGSLEGISLATION: Drug Court 1998 NSWDrug Court Act?1998 No 150 -?NSW Legislation. An?Act?to provide for the establishment of the?Drug Court?of New South Wales, for the referral of?drug?offenders to the?Drug Court, and for the supervision of?drug?programs by the?Drug Court; and for other purposes.?CASE: Dee 2015Dee*, 35, sits in the dock in prison greens listening intently as the crown prosecutor reads out the charges against her. She has been in prison for 22 days, picked up on driving and shoplifting charges. Her criminal record stretches across three states, including armed robbery, and begins when she was 13 – the same year she started using heroin. In 2015 she was sentenced to two years of drug rehabilitation.STATISTIC: BOSCAR 2008When the Drug Court and comparison group were compared on an?intention-to-treat?basis?1?, offenders accepted onto the Drug Court program were found to be 17 per cent less likely to be reconvicted for any offence, 30 per cent less likely to be reconvicted for a violent offence and 38 per cent less likely to be reconvicted for a drug offence at any point during the follow-up period (which averaged 35 months).INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: The Guardian Justice done differently: how the NSW drug court transforms livesIMPACT:SENTENCING AND PUNISHMENT: ALTERNATIVE METHODS OF SENTENCING INCLUDING CIRCLE SENTENCING, RESTORATIVE JUSTICE CIRCLE SENTENCINGLEGISLATION: Criminal Procedure Regulation 2017Part 7- Cricle Sentencing Intervention Program. For the purposes of section 347 (1) of the Act, the program of measures described in this Part for dealing with offenders is declared to be an intervention program for the purposes of Part 4 of Chapter 7 of the Act. Aboriginal Community Justice Group?for a declared place means the Aboriginal Community Justice Group established for that place under Division 4.CASE: Robert Bolt 2002Pleaded guilty to assault, malicious damage to property, and failure to comply with bail conditions. Participated in the first ever circle sentencing court.STATISTIC: BOSCAR 2008Most (53 of 68 or 78%) of the circle sentencing group had fewer proven offences in the 15 months following the circle than in the 15 months prior to the circle. Thirteen per cent offended more in the 15 months following the circle. A small proportion (9%) had the same number of offences before and after the circle sentence. INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: ABC 2019Does circle sentencing reduce recidivism and keep Indigenous offenders out of jail? A study will find outIMPACT:RESTORATIVE JUSTICELEGISLATION: YOUNG OFFENDERS ACT 1997 (NSW)Young Offenders Act 1997 (NSW)- Introduced diversionary programs that can be applied to summary offences and indictable offences that can be tried summarily.Warnings- An official notice given to a young offender without conditions attached. Relatively informal, must be informed of the purpose, nature and effect of the warning.Cautions- Cautions are formal and recorded. Young offender admits to the offence and consents to receiving a formal caution and sign a caution notice.Youth justice conferences- Used when an offender admit to the offence. Purpose is to allow offender to take responsibility for their actions, promote a better understanding of the issue and provide offender with appropriate support.CASE: JUVENILE JUSTICE NSW ANTI-SEMITISM 2014A teenager involved in an anti-Semitic attack on a bus full of young Jewish students will visit the Sydney Jewish Museum as part of an agreed settlement with NSW police and the Jewish community. The teenager attended a youth justice conference on Waverley Council Library on Tuesday, where he faced one of his victims and her family. As well as touring the Sydney Jewish Museum, the youth will also enrol in a school harmony project run by the NSW Jewish Board of Deputies. It was also recommended that he attend a family Shabbat dinner and read books from Holocaust survivors, including Primo Levi's?If This Is A Man?and Elie Wiesel's?Night. In the August 6 attack, a group of teenagers boarded a school bus travelling between Randwick and Bondi Junction and hurled abuse at the young passengers, all aged between five and 12 years old. It is alleged the offenders were drunk, yelled anti-Semitic insults such as "kill the Jews" and "Heil Hitler", and made physical threats of violence towards the children. The justice conference was attended by a police youth liaison officer, a social worker, the parents of the offender, a convener, and Vic Alhadeff, chief executive of the NSW Jewish Board of Deputies. The conference is a Juvenile Justice NSW service which allows participants to discuss the crime and its impact on the victims and their community. Five other juveniles given caution. STATISTIC: NSW Bureau of Crime StatisticsNSW Bureau of Crime Statistics found that the risk of receiving a custodial order dropped significantly- at 17.6% for Indigenous and 16.3% for non-Indigenous.INTERNATIONAL INSTRUMENT: CROCArticle 3 CROC, the treatment of children within the criminal justice system.NON-LEGAL RESPONSE: SMH “RACIST ATTACK ON BUS: YOUTH JUSTIC CONFERENCE”IMPACT:SENTENCING AND PUNISHMENT: POST-SENTENCING CONSIDERATIONS, INCLUDING SECURITY CLASSIFICATION, PROTECTIVE CUSTODY, PAROLE, PREVENTATIVE DETENTION, CONTINUED DETENTION, SEXUAL OFFENDERS REGISTRATION, DEPORTATION CONTINUED DETENTIONLEGISLATION: Crimes (Serious Sex Offenders) Act 2006 NSWAllows for the ongoing detention of an individual after they have served their sentence.CASE: Mohammed Skaf 2019 AppealEighteen years ago, Mohammed Skaf, now 36, was imprisoned for his role in the brutal gang rapes of teenage girls that horrified Sydney in the lead-up to the 2000 Olympic Games. Mohammed, then 17, his brother Bilal and at least 14 other men raped at least six schoolgirls over several weeks. They lured girls from locations such as shopping centres and train stations and then repeatedly forced them to perform sex acts on the men.Mohammed Skaf was originally jailed for 31 years but his sentence was reduced on appeal to 22 years with a non-parole period of 18 years. The non-parole period expired last year, but the parole authority rejected his plea for release. As Skaf continues to blame the victims for his crimes, he is considered to show no remorse or rehabilitation and thus a threat to society. He is said to have been troublesome and at times violent in detention.STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: Gang rapist Mohammed Skaf: His life behind bars. SMH 2019IMPACT:DEPORTATIONLEGISLATION: Migration Act 1058 (Cth)A migrant living in Australia who is not a citizen may be deported if they are tried and convicted of a criminal offence + Non-citizens who are sentenced to imprisonment of 12 months or more and have been a resident for less than 10 years automatically fails the character test.CASE: Robert JovicicAfter being charged with more than 100 criminal offences, he was deported to Serbia, but was then declared stateless. Due to societal + media pressure, he was given a special purpose visa and allowed to return.Robert Jovicic says he was dumped in Serbia, a country he had never even been before, in June 2004 despite having lived in Australia for all but two of his 38 years. Serbia has refused to recognise him as a citizen, leaving him stateless with no right to work or welfare in Belgrade.STATISTIC: SBS 2018Over 4,000 serious offenders stripped of Australian visas since 2014INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE: SBS 2013 ‘Former Melbourne Man Deported’IMPACT:YOUNG OFFENDERS: AGE OF CRIMINAL RESPONSIBILITYLEGSILATION: CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987 (NSW)Lays out the minimum age of criminal responsibility. Section 5 of the Act reveals that “it shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence. Once a child turns 10, however, they are still presumed incapable of committing a criminal offence, with rebuttable presumption applying.CASE: R V LMW (1999) NSW SUPREME COURT COREY DAVISA 10-year-old boy, LMW, was charged with the manslaughter of six-year-old Corey Davis, who drowned on 2 March 1998. ?The defendant had dropped Corey into the Georges River, knowing that Corey was unable to swim. The defendant was found not guilty of manslaughter, as the jury supported the defence case that the drowning of Corey had been ‘an act of bullying that went wrong’. This case raised the issue of?doli incapax, which presumes any child aged 10-14 is incapable of criminal intent unless proven otherwise. The decision of the Supreme Court mirrored that of Senior Children’s Court magistrate Stephen Scarlett, who had dismissed the manslaughter charge against the boy at a committal hearing during April 1999. The jury decision was handed down in early December 1999 and is not publicly available. However, there are several decisions of Studdert J who presided over this trial on various applications dealing with evidence, stay of proceedings and acquittal.CASE 2: BRONSON BLESSINGTONOn 8 September 1988 Janine Balding was abducted from the car park at Sutherland railway station by a group of street kids. She was forced into her car at knifepoint and driven to a dam in Minchinbury. After being repeatedly sexually assaulted Janine Balding was tied up and drowned in the dam. Her attackers were a group of street kids: Bronson Blessington (ages 14), Matthew Elliott (aged 16) and Stephen Jamieson (aged 22). Two others were also in the car. Blessington, Elliott and Jamieson were convicted of murder, abduction, sexual assault, robbery and other charges. All three were sentenced to life imprisonment. An appeal against the life sentences was dismissed in 1992. In 1997 Blessington applied for a redetermination of his sentence. Legislation amending the?Crimes Sentencing Procedure Act?1999 (NSW)?was passed to extend the period before review to 30 years, but Blessington’s application had not been finalised. An amendment was made to the Act to extend it to cover Blessington. There has been some controversy over this legislation, particularly as Blessington and Elliott were juveniles at the time of the crime. Were tried as adults, but the Children (Criminal Proceedings) Act 1987(NSW), applicable to the conduct of criminal proceedings against children, was complied with and consideration was given to their age. The trial judge found, as a matter of fact, that the rapes were carried out by Mr. Blessington and the third offender. The judge also found that Mr. Elliott did not directly perpetrate rape. However, he was charged and found guilty of rape by virtue of the common purpose of the offenders. It is enshrined in Human Rights Law (such as CROC, signed, ratified and partially enacted), that children are not to be locked up without the prospect of never being released.STATISTIC:Australian Institute of Health and Welfare- Youth detention population in Australia from June 2014 to June 2018. Among the 980 young people in detention on an average night in the June quarter 2018, most were male (90%), aged 10–17 (84%), unsentenced (60%), and Aboriginal or Torres Strait Islander (54%). Over the 4-year period, the number of young people in detention rose, though rates fluctuated across quarters.INTERNATIONAL INSTRUMENT:United Nations- Conventions of the Rights of the Child, article 40 encourages the establishment of a minimum age of criminal responsibility. ARTICLE 37- NO CHILD SHOULD BE IN FOR LIFE OR UNKNOWN DURATION. In 2010, the International Covenant on Civil and Political Rights wrote a report criticising Australia for the continued detention of Blessington and the lack of consideration of rehabilitation, mitigating circumstances and the facts that Blessington committed the crime as a juvenile barely over the age of criminal responsibility. Imprisoned for 30 years. Human Rights Law Centre- ‘Another Look needed for crimes by children in wake of Blessington’ further criticised the nation.NON-LEGAL RESPONSE:SMH article ‘Locked Up for Life’. Initial response to crime was outrage, however, retrospectively, outrage has shifted towards lack of care and protection of juveniles. IMPACT:Within the case of R v LMW, the rights of the child were adequately addressed and considered. However, the Blessington case exemplifies issues and inconsistencies. Trying of children as adults a breach of legislation.YOUNG OFFENDERS: THE RIGHTS OF CHILDREN WHEN QUESTIONED OR ARRESTED PARENTAL COMPANYLEGISLATION: YOUNG OFFENDERS ACT 1997 (NSW)If a child is under the age of sixteen, an adult must be present or, the evidence may be deemed inadmissible.CASE: R V CKT 1999 (NSW)In r v CKT 1999 (NSW), the police conducted an interview with a murder suspect without the presence of a supporting adult, believing he was over 16 years of age, only to find out later this was not the case. Therefore, evidence gained during the questioning could not be admissible into court.STATISTIC:INTERNATIONAL INSTRUMENT:Article 3 CROC, the treatment of children within the criminal justice system.NON-LEGAL RESPONSE:IMPACT:INADMISSIBLE LEGISLATION: Evidence Act 1995 (NSW) Outlines that evidence must be obtained through the means of correct procedures. Includes that individuals are adequately informed of their rights and reasons of arrest. Adult or guardian must be present at interview of juveniles or else evidence may be inadmissible.CASE: R v Cortez 2002 (NSW) Supreme CourtChildren, criminal, young offenders aged 17 years at the time of arrest and interview, murder and admissibility of certain statements. Application for evidence to be excluded under s?90?Evidence Act?1995. Police gave no indication that the young offenders were under arrest or suspected of murder. Whether each offender could be deemed to have been arrested. Whether the accepted support person attending the interview with each offender was appropriate. Whether each offender was made aware of his entitlements or properly advised as to the seriousness of his position. Failure to be told of the right to obtain free legal advice. The offenders were not afforded the protection the legislature intended. Evidence tendered was inadmissible by virtue of s?90 and in breach of s?138?Evidence Act?as evidence improperly obtained.STATISTIC:INTERNATIONAL INSTRUMENT: Convention on the Rights of the ChildArticle 40 P2 (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence.NON-LEGAL RESPONSE: Youth Action Keep Young People Out of Prison NSW“Young people should not come into contact with the youth justice system, but when they do, they should only be detained as a last resort, and detention should be safe for them.More can be done to address the root causes of contact with the justice system in NSW, to intervene early, and to utilise diversion to its full extent. A review of the youth justice system has found the health and wellbeing of young people has been put at risk. This must change.NSW has the largest number of young people in detention compared with other states and territories. In 2016–2017, 1,500 young people were being supervised either in the community or in a youth detention centre.”IMPACT:YOUNG OFFENDERS: CHILDREN’S COURT – PROCEDURES AND OPERATIONLEGISLATION: CHILDREN’S COURT ACT 1987 (NSW)Given the role of dealing with the criminal matters of children and young people under 18 years of age. Dealing with matters of care and protection of young people referred to it by the Department of Community Services.CASE: RE CB 2014 NSW CHCCatchwords: CRIMINAL LAW - particular offences - property offences - wilful or reckless damage to or destruction of property by fire or explosives (Crimes Act 1900, s 195(1)(b)) - mens rea - where accused applied flame to threads on the cover of a couch in an unoccupied house and the house was destroyed by fire - conviction on charge of recklessly destroying the house by fire - content of the mental element of recklessness - whether the required foresight was of destruction of the house or of damage to or destruction of any property.CASE: POLICE V JM (2011) NSWCHCCatchwords: CRIME - YOUNG PERSON - sentence - young person - serious and multiple offences - offences committed while on parole - young person almost 18 and a repeat offender - emphasis given to rehabilitation rather than general deterrence and retribution should be moderated - "wholly inappropriate" to deal with young person other than by imposing control order. Sent to Juvenile Justice Centre (Established under Children (Detention Centre) Act 1987 (NSW).)STATISTIC:NSW Commission for Children and Young People- 2014 83% of people proven guilty. INTERNATIONAL INSTRUMENT:CROC- Article 3, care and protection. Article 20- child not in family setting should be protected.NON-LEGAL RESPONSE:IMPACT:LEGISLATION:CASE:STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE:IMPACT:YOUNG OFFENDERS: PENALTIES FOR CHILDRENLEGISLATION: CHILDREN’S (CRIMINAL PROCEEDINGS) ACT 1987 NSWPenalty imposed on a child to be no greater than that of an adult. Children should be assisted with reintegration. Take responsibility for their actions. Impact on victim should be considered.CASE: R V GDP (1991)Offender 14 years old when he committed serious criminal damage to property with two of his friends. The damage included breaking through a window, drilling a safe, defacing cars, smashing furniture and lighting dangerous fires- led to half a million dollars in damage. He was sentenced to a 12-month custodial sentenced. This was appealed to the Court of Criminal Appeal, three judges held that the sentence was excessive, and that rehabilitation was the primary aim for children. The court revised the original sentence and replaced it with a 12-month probation order.CASE: R v Pham & Ly (1991)Involved two main offenders, with one being just under the age of 18. They broke into a house, bound and gagged their victims, stole jewellery and a number of other items. At the time, one offender was out on bail and the other on probation. Original judge sentences both offenders to 12 months on remand. Case was appealed at the Court of Criminal Appeal where the sentence was overturned and was referred for resentencing.STATISTIC:2014 Australian institute of crime- 41% recidivism rate.INTERNATIONAL INSTRUMENTArticle 3 CROC, the treatment of children within the criminal justice system.NON-LEGAL RESPONSE:IMPACT:Focus on rehabilitation for children sentencing evidentLEGISLATION:CASE:STATISTIC:INTERNATIONAL INSTRUMENT:NON-LEGAL RESPONSE:IMPACT:YOUNG OFFENDERS: ALTERNATIVES TO COURTYOUTH JUSTICE CONFERENCINGLEGISLATION: YOUNG OFFENDERS ACT 1997 (NSW)Young Offenders Act 1997 (NSW)- Introduced diversionary programs that can be applied to summary offences and indictable offences that can be tried summarily.Warnings- An official notice given to a young offender without conditions attached. Relatively informal, must be informed of the purpose, nature and effect of the warning.Cautions- Cautions are formal and recorded. Young offender admits to the offence and consents to receiving a formal caution and sign a caution notice.Youth justice conferences- Used when an offender admit to the offence. Purpose is to allow offender to take responsibility for their actions, promote a better understanding of the issue and provide offender with appropriate support.CASE: JUVENILE JUSTICE NSW ANTI-SEMITISM 2014A teenager involved in an anti-Semitic attack on a bus full of young Jewish students will visit the Sydney Jewish Museum as part of an agreed settlement with NSW police and the Jewish community. The teenager attended a youth justice conference on Waverley Council Library on Tuesday, where he faced one of his victims and her family. As well as touring the Sydney Jewish Museum, the youth will also enrol in a school harmony project run by the NSW Jewish Board of Deputies. It was also recommended that he attend a family Shabbat dinner and read books from Holocaust survivors, including Primo Levi's?If This Is A Man?and Elie Wiesel's?Night. In the August 6 attack, a group of teenagers boarded a school bus travelling between Randwick and Bondi Junction and hurled abuse at the young passengers, all aged between five and 12 years old. It is alleged the offenders were drunk, yelled anti-Semitic insults such as "kill the Jews" and "Heil Hitler", and made physical threats of violence towards the children. The justice conference was attended by a police youth liaison officer, a social worker, the parents of the offender, a convener, and Vic Alhadeff, chief executive of the NSW Jewish Board of Deputies. The conference is a Juvenile Justice NSW service which allows participants to discuss the crime and its impact on the victims and their community. Five other juveniles given caution. STATISTIC: NSW Bureau of Crime StatisticsNSW Bureau of Crime Statistics found that the risk of receiving a custodial order dropped significantly- at 17.6% for Indigenous and 16.3% for non-Indigenous.INTERNATIONAL INSTRUMENT: CROCArticle 3 CROC, the treatment of children within the criminal justice system.NON-LEGAL RESPONSE: SMH “RACIST ATTACK ON BUS: YOUTH JUSTIC CONFERENCE”IMPACT:RESTORATIVE JUSTICELEGISLATION: YOUNG OFFENDERS ACT 1997 (NSW)Young Offenders Act 1997 (NSW)- Introduced diversionary programs that can be applied to summary offences and indictable offences that can be tried summarily.Warnings- An official notice given to a young offender without conditions attached. Relatively informal, must be informed of the purpose, nature and effect of the warning.Cautions- Cautions are formal and recorded. Young offender admits to the offence and consents to receiving a formal caution and sign a caution notice.Youth justice conferences- Used when an offender admit to the offence. Purpose is to allow offender to take responsibility for their actions, promote a better understanding of the issue and provide offender with appropriate support.CASE: SYDNEY THEFT YOUTH JUSTICE CONFERENCING 2012Similarly, an 11-year-old by stole from an elderly woman’s purse at Westfield Parramatta. Due to age of criminal responsibility and attempts to divert children from the criminal justice system, a youth justice conference was alternatively organised. The boy was required to confront and apologise to the woman and further engage in community and assistive activities with her in attempt to allow the boy to realise his actions. STATISTIC:NSW Bureau of Crime Statistics found that the risk of receiving a custodial order dropped significantly- at 17.6% for Indigenous and 16.3% for non-Indigenous.INTERNATIONAL INSTURMENT:Article 3 CROC, the treatment of children within the criminal justice system.NON-LEGAL RESPONSE: PARRAMATTA SUN “COUNTERING JUVENILE THEFT”IMPACT:INTERNATIONAL CRIME: CRIMES AGAINST THE INTERNATIONAL COMMUNITYWAR CRIMESLEGISLATION: War Crimes Act 1945 (Cth)Defines war crimes as a “serious offence carried out during warlike hostilities or an occupation” + Only Australians can be prosecuted.CASE: Slobodan MilosevicInternational Criminal Tribunal for the former Yugoslavia (ICTY) (1993). Ad hoc criminal tribunal established to prosecute serious crimes that were committed during the Yugoslav Wars.Charged by the ICTY for alleged war crimes including genocide and crimes against humanity in relation to the Bosnian, Croatian, and Kosovan wars.STATISTIC:24 people wanted for war crimes by the International criminal court. 4 have been acquitted. 4 are currently in trial. Only three have been sentenced.INTERNATIONAL INSTRUMENT: Rome Statute of the International Criminal CourtArticle 8War CrimesThe Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.NON-LEGAL RESPONSE: The Centre for Justice and AccountabilityThe Center for Justice and Accountability is the leading NGO that brings civil and criminal cases against individual human rights abusers in the United States and Spain for war crimes.BBC reports that “at the heart of the concept of?war crimes?is the idea that individuals can be held criminally responsible for the actions of a country or its soldiers.?War crimes?and crimes?against humanity are among the gravest crimes?in international law.”According to the International Criminal Court, “War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. CJA’s cases shed light on war crimes committed during brutal conflicts in countries like Peru, Colombia, and Somalia. Our landmark litigation rebuilds the story of the crimes from the point of view of survivors and victims, oftentimes marking the first time that these stories have been exposed in a court of law.Colin v Syria and Yousuf v SamantarIMPACT:GENOCIDELEGISLATION: Criminal Code 1995 (Cth) Considers genocide and crimes against humanity as crimes with a maximum sentence of life in prison.CASE: Nuremberg War Crimes Trials- 20th November 1945The charging of Nazi officials for crimes of genocide that occurred during WWII. Nuremberg- Of the 185?people?indicted in the subsequent?Nuremberg trials, 12 defendants received death sentences, 8 others were given life in prison and an additional 77?people?received prison terms of varying lengths.CASE: Bosnia and Herzegovina v. Serbia and Montenegro (2007) Serbia was accused of attempting to exterminate the Bosniak population of Bosnia and Herzegovina. Case was heard in the ICJ.STATISTIC: Within the ICC Omar al Bashir is the only individual wanted for genocide and is currently a fugitive.INTERNATIONAL INSTRUMENT: United Nations Convention on Genocide (1948) Parties are required to criminalise genocide and punish offenders within domestic legal systems.NON-LEGAL RESPONSE: AEGISThe Aegis Trust is an international organization working to prevent genocide. Aegis honours the memory of the victims of genocide and enables students, professionals, decision-makers and a wider public to meet survivors and learn from their experiences. Through education, we work to build long-term peace by encouraging communities to change from mindsets of mistrust and prejudice to a position of shared responsibility for peace and stability. We also help survivors in difficult circumstances to rebuild their lives.Aegis conducts and encourages research about genocide to improve the practice of prevention. We work on places where genocide is a current threat, campaigning for decision-makers to help protect those most at risk. Our advocacy involves taking the voices of those at risk to politicians, the media and the public.IMPACT:INTERNATIONAL CRIME: TRANSNATIONAL CRIMESHUMAN TRAFFICKINGLEGISLATION: Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth)Implementation of UN protocol. Refined existing slavery legislation and explicitly defined human trafficking. CASE: R v Tang?2006 High CourtR v Tang?is a?landmark?Australian?judgement of the?High Court. The?matter?related to Wei Tang, the operator of a?Melbourne?brothel,?convicted?for?slavery. The?case?was the first?criminal?conviction?for a slavery offence in Australia and was significant for establishing the modern legal definition of slavery and has been described as "the most crucial test of the effectiveness of our criminal laws against … slavery ever to come before an Australian court." Tang was convicted in 2006 of 5 counts of intentionally possessing a slave and 5 counts of intentionally exercising a power of ownership over a slave, contrary to section 270.3(1)(a) of the Commonwealth Criminal Code. She was sentenced to 10 years’ imprisonment, with a non-parole period of 6 years. Ms Tang was the first person convicted under the anti-slavery laws, introduced in 1999. The charges related to five women, all Thai nationals.STATISTIC: Australian Federal Police 2015Australian Federal Police Stats- from 2003-2015, over 600 reports of Human Trafficking. However, there have only been 15 Human Trafficking charges in the entirety of Australian history. They have received 10000 calls to their hotline, helped 300 victims and won 19 court cases- resulting in 38 traffickers sentenced.International Labour Organisation- September 2017 statistics reveal that there are approximately 24.9 million people being illegally trafficked, with this number possibly reaching up to 31 million.According to the State Department's 2017 Trafficking in Persons (TIP) report, there were globally only 14,894 trafficking prosecutions and 9,071 convictions in 2016.INTERNATIONAL INSTRUMENT: The Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and ChildrenThe Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children was adopted by the UN in 2000. It has been ratified by 166 countries and came into force in 2003.NON-LEGAL RESPONSE: A21The A21 Campaign develops global programs and initiatives to inform the general public about human trafficking, as well as encouraging the public to fight against trafficking in their own way. Their efforts are focused in and supported by teams in Greece, Ukraine, Australia, USA, Bulgaria, United Kingdom, Norway, South Africa, Thailand, and Spain, where trafficking is most active. Greece, a destination country for human trafficking, and other Eastern European countries, including Ukraine and Bulgaria, are countries of origin, and increasingly countries of destination, for victims of trafficking.?The United States of America, Great Britain, and Australia are destination countries for trafficking victims, while South Africa and Thailand are both sources and destinations for trafficking victims. A21 offers legal counsel to any victims and takes care of them during their trial or recovery process.IMPACT: DRUG TRAFFICKINGLEGISLATION: Drug Misuse and Trafficking Act 1985 (NSW) Covers most drug offences. However, specifically aims to address issues of international drug trafficking. CASE: Operation Shenzi 2019Following a lengthy 10-week trial last year in the Supreme Court of Western Australia, seven men involved in trying to smuggle 182kgs (145.6kgs pure) of methamphetamine onto a remote beach in Western Australia, were collectively jailed for over 164 years in June 2018. The men were from Hong Kong and Malaysia. The drugs were worth an estimated $91 million. Operation Shenzi was a joint Australian Federal Police, Australian Border Force, Australian Criminal Intelligence Commission and Western Australia Police Force investigation carried out in 2016, which culminated in the arrest of 14 people who were either crew members of the mother ship Mega Profit II or waiting onshore in Western Australia to collect and then distribute the drugs. Around 6pm on 1 May 2016, the AFP intercepted the 30m long, wooden-hulled commercial fishing vessel in very poor condition, around 120 nautical miles off the Western Australian coast. Eight crew were on board but only forensic traces of methamphetamine were found on the vessel. Methamphetamine had been loaded from the mother vessel onto a high-speed tender and delivered to a remote beach landing site south of Port Denison, Western Australia, on 1 May 2016 at around 5:30 am. Six people were part of the shore party with at least four of them attending at the beach landing site to receive 15 bags of drugs. They dragged 14 along the beach to three waiting cars bound for Perth, but later the same day had to race back when they realised they had left behind a bag of drugs worth a considerable amount of money. Between 21 and 23 May 2016, search warrants executed at safe houses in East Cannington and Embleton uncovered 182kg of high-grade methamphetamine.STATISTIC: Worldometers 2017It is estimated that the drug trafficking industry makes $400 billion annually. INTERNATIONAL INSTRUMENT: Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) Provides measures against drug trafficking.NON-LEGAL RESPONSE: New York NGO Committee on DrugsThe New York NGO Committee on Drugs?(NYNGOC) provides a platform for discussion of drugs and drug-related subjects and interfaces with the United Nations (UN) to collaborate on solutions to global drug issues.?It is a global committee that aims to support civil society organizations in engaging with the UN system?on international drug policy and practice, facilitating the exchange of information between civil society organizations and UN agencies, member states, and other relevant UN bodies.?The NYNGOC represents more than 90 civil society organizations from across the globe. NYNGOC collaborates with other NGO organizations, especially the Vienna NGO Committee on Drugs (VNGOC) and the Alliance of NGOs on Crime Prevention and Criminal Justice, to ensure a strong NGO voice in UN processes, recently, the 2016 UNGASS on Drugs and currently the 2019 High Level Ministerial Segment (HLMS). Set up a Civil Society Task Force on Drugs.IMPACT:INTERNATIONAL CRIME: DOMESTIC MEASURESHUMAN TRAFFICKINGLEGISLATION: Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth)Implementation of UN protocol. Refined existing slavery legislation and explicitly defined human trafficking. CASE: R v Tang?2006 High CourtR v Tang?is a?landmark?Australian?judgement of the?High Court. The?matter?related to Wei Tang, the operator of a?Melbourne?brothel,?convicted?for?slavery. The?case?was the first?criminal?conviction?for a slavery offence in Australia and was significant for establishing the modern legal definition of slavery and has been described as "the most crucial test of the effectiveness of our criminal laws against … slavery ever to come before an Australian court." Tang was convicted in 2006 of 5 counts of intentionally possessing a slave and 5 counts of intentionally exercising a power of ownership over a slave, contrary to section 270.3(1)(a) of the Commonwealth Criminal Code. She was sentenced to 10 years’ imprisonment, with a non-parole period of 6 years. Ms Tang was the first person convicted under the anti-slavery laws, introduced in 1999. The charges related to five women, all Thai nationals.STATISTIC: Australian Federal Police 2015Australian Federal Police Stats- from 2003-2015, over 600 reports of Human Trafficking. However, there have only been 15 Human Trafficking charges in the entirety of Australian history. They have received 10000 calls to their hotline, helped 300 victims and won 19 court cases- resulting in 38 traffickers sentenced.International Labour Organisation- September 2017 statistics reveal that there are approximately 24.9 million people being illegally trafficked, with this number possibly reaching up to 31 million.According to the State Department's 2017 Trafficking in Persons (TIP) report, there were globally only 14,894 trafficking prosecutions and 9,071 convictions in 2016.INTERNATIONAL INSTRUMENT: The Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and ChildrenThe Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children was adopted by the UN in 2000. It has been ratified by 166 countries and came into force in 2003.NON-LEGAL RESPONSE: A21The A21 Campaign develops global programs and initiatives to inform the general public about human trafficking, as well as encouraging the public to fight against trafficking in their own way. Their efforts are focused in and supported by teams in Greece, Ukraine, Australia, USA, Bulgaria, United Kingdom, Norway, South Africa, Thailand, and Spain, where trafficking is most active. Greece, a destination country for human trafficking, and other Eastern European countries, including Ukraine and Bulgaria, are countries of origin, and increasingly countries of destination, for victims of trafficking.?The United States of America, Great Britain, and Australia are destination countries for trafficking victims, while South Africa and Thailand are both sources and destinations for trafficking victims. A21 offers legal counsel to any victims and takes care of them during their trial or recovery process.IMPACT:DRUG TRAFFICKINGLEGISLATION: Drug Misuse and Trafficking Act 1985 (NSW) Covers most drug offences. However, specifically aims to address issues of international drug trafficking. CASE: Operation Shenzi 2019Following a lengthy 10-week trial last year in the Supreme Court of Western Australia, seven men involved in trying to smuggle 182kgs (145.6kgs pure) of methamphetamine onto a remote beach in Western Australia, were collectively jailed for over 164 years in June 2018. The men were from Hong Kong and Malaysia. The drugs were worth an estimated $91 million. Operation Shenzi was a joint Australian Federal Police, Australian Border Force, Australian Criminal Intelligence Commission and Western Australia Police Force investigation carried out in 2016, which culminated in the arrest of 14 people who were either crew members of the mother ship Mega Profit II or waiting onshore in Western Australia to collect and then distribute the drugs. Around 6pm on 1 May 2016, the AFP intercepted the 30m long, wooden-hulled commercial fishing vessel in very poor condition, around 120 nautical miles off the Western Australian coast. Eight crew were on board but only forensic traces of methamphetamine were found on the vessel. Methamphetamine had been loaded from the mother vessel onto a high-speed tender and delivered to a remote beach landing site south of Port Denison, Western Australia, on 1 May 2016 at around 5:30 am. Six people were part of the shore party with at least four of them attending at the beach landing site to receive 15 bags of drugs. They dragged 14 along the beach to three waiting cars bound for Perth, but later the same day had to race back when they realised they had left behind a bag of drugs worth a considerable amount of money. Between 21 and 23 May 2016, search warrants executed at safe houses in East Cannington and Embleton uncovered 182kg of high-grade methamphetamine.STATISTIC: Worldometers 2017It is estimated that the drug trafficking industry makes $400 billion annually. INTERNATIONAL INSTRUMENT: Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) Provides measures against drug trafficking.NON-LEGAL RESPONSE: New York NGO Committee on DrugsThe New York NGO Committee on Drugs?(NYNGOC) provides a platform for discussion of drugs and drug-related subjects and interfaces with the United Nations (UN) to collaborate on solutions to global drug issues.?It is a global committee that aims to support civil society organizations in engaging with the UN system?on international drug policy and practice, facilitating the exchange of information between civil society organizations and UN agencies, member states, and other relevant UN bodies.?The NYNGOC represents more than 90 civil society organizations from across the globe. NYNGOC collaborates with other NGO organizations, especially the Vienna NGO Committee on Drugs (VNGOC) and the Alliance of NGOs on Crime Prevention and Criminal Justice, to ensure a strong NGO voice in UN processes, recently, the 2016 UNGASS on Drugs and currently the 2019 High Level Ministerial Segment (HLMS). Set up a Civil Society Task Force on Drugs.IMPACT:INTERNATIONAL CRIME: INTERNATIONAL MEASURESWAR CRIMESLEGISLATION: War Crimes Act 1945 (Cth)Defines war crimes as a “serious offence carried out during warlike hostilities or an occupation” + Only Australians can be prosecuted.CASE: Slobodan MilosevicInternational Criminal Tribunal for the former Yugoslavia (ICTY) (1993). Ad hoc criminal tribunal established to prosecute serious crimes that were committed during the Yugoslav Wars.Charged by the ICTY for alleged war crimes including genocide and crimes against humanity in relation to the Bosnian, Croatian, and Kosovan wars.STATISTIC:24 people wanted for war crimes by the International criminal court. 4 have been acquitted. 4 are currently in trial. Only three have been sentenced.INTERNATIONAL INSTRUMENT: Rome Statute of the International Criminal CourtArticle 8War CrimesThe Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.NON-LEGAL RESPONSE: The Centre for Justice and AccountabilityThe Center for Justice and Accountability is the leading NGO that brings civil and criminal cases against individual human rights abusers in the United States and Spain for war crimes.BBC reports that “at the heart of the concept of?war crimes?is the idea that individuals can be held criminally responsible for the actions of a country or its soldiers.?War crimes?and crimes?against humanity are among the gravest crimes?in international law.”According to the International Criminal Court, “War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. CJA’s cases shed light on war crimes committed during brutal conflicts in countries like Peru, Colombia, and Somalia. Our landmark litigation rebuilds the story of the crimes from the point of view of survivors and victims, oftentimes marking the first time that these stories have been exposed in a court of law.Colin v Syria and Yousuf v SamantarIMPACT:GENOCIDELEGISLATION: Criminal Code 1995 (Cth) Considers genocide and crimes against humanity as crimes with a maximum sentence of life in prison.CASE: Nuremberg War Crimes Trials- 20th November 1945The charging of Nazi officials for crimes of genocide that occurred during WWII. Nuremberg- Of the 185?people?indicted in the subsequent?Nuremberg trials, 12 defendants received death sentences, 8 others were given life in prison and an additional 77?people?received prison terms of varying lengths.CASE: Bosnia and Herzegovina v. Serbia and Montenegro (2007) Serbia was accused of attempting to exterminate the Bosniak population of Bosnia and Herzegovina. Case was heard in the ICJ.STATISTIC: Within the ICC Omar al Bashir is the only individual wanted for genocide and is currently a fugitive.INTERNATIONAL INSTRUMENT: United Nations Convention on Genocide (1948) Parties are required to criminalise genocide and punish offenders within domestic legal systems.NON-LEGAL RESPONSE: AEGISThe Aegis Trust is an international organization working to prevent genocide. Aegis honours the memory of the victims of genocide and enables students, professionals, decision-makers and a wider public to meet survivors and learn from their experiences. Through education, we work to build long-term peace by encouraging communities to change from mindsets of mistrust and prejudice to a position of shared responsibility for peace and stability. We also help survivors in difficult circumstances to rebuild their lives.Aegis conducts and encourages research about genocide to improve the practice of prevention. We work on places where genocide is a current threat, campaigning for decision-makers to help protect those most at risk. Our advocacy involves taking the voices of those at risk to politicians, the media and the public.IMPACT: PAROLECRIMES (ADMINISTRATION OF SENTENCES) ACT 1999 (NSW)Whether a prisoner is admitted on Parole is determined by a Parole Board. Parole Board’s in Australia consists of 5 individuals, 2 of which are members of the public.Discretion- citizens use their personal discretionary powers. May be influenced by bias and emotion as they do not have extensive knowledge on the legal system.TERRENCE JOHN LEARYLeary was first jailed in 1990, charged with the murder and rape of a 17-year-old girl. He was jailed for up to 25 years, with a minimum non-parole period of 15 years. Leary was granted parole in 2012 at the Parramatta District Court. The Department of Corrective Services stated that Leary had complied with his parole conditions and sex-offender rehabilitation programs.In June 2013, Leary stabbed and attempted to rape a woman at a Sydney bus stop, not far from where he was living as a requirement of parole conditions. He was further charged with assaulting police.STATISTICAustralian Institute of Criminology- 2014- Within 12 months on parole 43.6% reoffend, with this being 57.7% at 2 years and 65.7% at 3 years. NON-LEGAL RESPONSEGained mass media attention. Drew attention to the ineffective nature of Parole and its failure to achieve justice for society. SMH- ‘Leary given another chance at parole after explosive attack’ Leary a danger to the community’.IMPACTNSW Parole methods are proven to be drastically ineffective in addressing crime as it is evident that people involved in the parole process are not fully knowledgeable about legal measures. Furthermore, recidivism rates whilst on parole near 50%, this proving the inefficiency of rehabilitation measures and the granting of parole.MANDATORY SENTENCINGSENTENCING ACT 1995 (NT)Outline Mandatory minimums. Prevents mitigating circumstances to be considered. Ineffective response to legal issues that does not adequately protect offenders. Includes mandatory minimums for theft and break and enter, as is outlines in Warramarrba.Discretion- is removed in this instance.JOHNNY WARRAMARRBAFebruary 2000, Johnny Warramarrba a 15-year-old orphaned, Aboriginal boy, was given a 20 days mandatory minimum sentence for breaking into stores and stealing $90 worth of school supplies. Within his first few days at Don Dale juvenile detention centre, he committed suicide. Warramarrba had lived through a tragic past as his mother had died when he was an infant and his father died in a car accident when he was 11. Despite these factors and the small amount of goods that were stolen, the Mandatory Minimum had to be applied which resulted in the loss of a life. STATISTICSAs of June 2018, according to data from the family’s department, all juveniles in prison are Aboriginal in the Northern Territory. Aboriginal’s account for 27% of NT population, yet 75% of prison population 2016.NON-LEGAL RESPONSEHuman Rights and Equal Opportunities Commission report cited the case of Robert, 15, who tried to kill himself when he was jailed for breaking a window after hearing about the suicide of a close friend. Criticised Australia’s treatment of youth. This is part of a wider pattern of deaths in custody. At least 147 indigenous prisoners have died in Australian prisons and police cells since 1980-2000. The toll has accelerated since a federal Royal Commission produced a series of whitewash reports, exonerating the police and prison authorities.IMPACTThe ineffective nature of the legal system in protecting the legal needs of individuals, specifically offenders. Eliminates judicial discretion and the consideration of mitigating circumstances, such as Warramarrba’s living environment. Exhibits the ineffective nature of Australian attempts to reflect Australian legal standards and social desires. ................
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