EXAM SHORT NOTES
EXAM SHORT NOTES Elements of Crime Physical elements (AR) Voluntary and willed act (R v Ryan) - reflexes Presumption that all people have capacity to control actions (R v Falconer) – pros Defendant bears evidential onus of rebutting this presumption (R v Falconer) – def D is not liable if the act was not ‘willed’ or if they were in a state of ‘automatism’ Decide which is stronger Causation P must show BRD that Ds act caused the injury (R v Hallett) 3 causation tests 1. Ds act was the ‘substantial and operating cause’ (R v Hallett) most commonly used 2. Ds actions made it a ‘natural consequence’ that the V seek to escape (Royall v R) 3. The V’s death was a foreseen or ‘reasonably foreseeable consequence’ of Ds actions (Royall v R) D could argue that there is an intervening act that broke chain of causation (if causation is made out) NAI (was there a break in causation?) 1. Act of god – (R v Hallet) 2. Act of a third party – must be free, deliberate and informed (R v Pagett) – human shield (R v Evans and Gardiner) – medical treatment (R v Smith) -not palpably bad (pros) (R v Jordan) – palpably bad (defence) (Malcharek and Steel) – life support in good faith doesn’t break chain) 3. Act of the victim (Royall v R) - seeking to escape (R v Blaue) - refusing treatment Fault elements (MR) Subjective and objective tests Intention Recklessness Reasonable belief Negligence Strict liability Contemporaneity AR and MR have to coincide (Thabo Meli v R – sequence of events treated as one indivisible transaction) (Fagan v Metropolitan Police Commissioner – ‘continuing act theory’) Do not have to absolutely coincide at the same time, as long as they are part of the same sequence
Civil Law tort of battery
Positive voluntary act causing direct physical interference with the plaintiff without consent Scott v Shepherd – throwing firework at someone – D directly caused the physical interference
Threshold: beyond what is ‘socially acceptable’ or normal Rixon v Star City - Casino employee placed hand on him to make him leave – not battery - behavior must go beyond what is generally unacceptable in everyday life Relevance of fault Williams v Milotin – negligent tresspass is also possibility (person acts with less care than an ordinary person would) – far lower standard than criminal response McHale v Watson – dart thrown in eye - onus is on D to prove he never intended the battery or that he lacked negligence on the balance of probabilities Venning v Chin Chin - exception to rule: highway/road accidents – plaintiff must prove trespass and that defendents acts were intentional/negligent – by being on road, plaintiff accepts risk of damage Relevance of damage No legal requirement to bring case But usually present
LONGER NOTES Sentencing
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Once a defendant or accused person pleads guilty or is found guilty of a crime, sentencing will take place (Magistrate or Judge) Sources of sentencing law: (mixture of common law + statutes) - Statutes that create the offence - Sentencing Act 1991 (as amended) - Other statutes, e.g. Victorian Charter - Guideline judgements (Court of Appeal) – Bolton case - Case law – appeal judgements Victorian penalty scale: sets out maximum terms of imprisonment and fines
Type of Offence Indictable eg. murder Indictable eg. manslaughter Indictable Indictable Indictable triable summarily Indictable triable summarily Summary Summary Summary Summary Summary Summary
Penalty Level 1 2 3 4 5 6 7 8 9 10 11 12
Max Imprisonment Life 25 years 20 years 15 years 10 years 5 years 2 years 1 year 6 months -
Max Fine (penalty unit) 3000 2400 1800 1200 600 240 120 60 10 5 1
Penalty unit = $147.61 Sentence hearing - Occurs after guilty plea/verdict Role of parties: PROSECUTION - Assists court establish facts - Raise sentencing principles - Raise prior convictions - Challenge/test claims regarding mitigating circumstances/ defence submissions DEFENCE - Plea in mitigation (defence has right to be heard – basic principle of justice) - Clarify facts - Highlight mitigating factors - Suggest less punitive sentencing option and explain why appropriate - Eg. Talk about offender’s commitment to community/volunteer work, remorse, highlight how offender is now in different state (productive citizen) - May prepare pre-sentencing reports eg. Medical reports VICTIMS - Make victim impact statements - Eg. Emotional trauma, financial loss, physical injury - Entitled (not obliged) to make one - Introduces element of uncertainty – how much weight should it be given
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eg. Right to make victim impact statement extended to family in homicide cases – if family makes emotional pleas for harsh sentence v no statement for victim – should love felt for victim dictate offender’s punishment and if so, how much?
JUDGE - Give sentence that appropriately reflects the nature of the offence and the circumstances of the offender - Difficult when people’s lives are so chaotic that they eg. Can’t pay fine or can’t abide by conditions of Community corrections order – forced to impose harsher sentences-prison Sentencing principles s. 5(1) Sentencing Act: Sentencing guidelines • The only purposes for which sentences may be imposed are: a) ‘Just’ punishment b) Deterrence • Specific (offender) • General (public) – sending message c) Rehabilitation d) Denunciation – public condemnation e) Protection of the community f) Combination of the above Sentencing factors - s. 5(2) Sentencing Act • Court must consider: - Statutory maximum penalty - Current sentencing practices - Nature and gravity of the offence - Culpability of the offender - Whether offence is a hate crime - Impact on and personal circumstances of the victim - Injury, loss or damage from the offence - Early entry of a guilty plea (discount for guilty plea, bigger if plea is early) - Offender’s previous character - Aggravating factors (eg. Planning, use of weapons) - Mitigating factors (eg. Remorse, health, socio-economic status) Offender’s character - s. 6 Sentencing Act - Court may consider: - the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender - the general reputation of the offender - any significant contributions made by the offender to the community. Other Principles Proportionality (sentence must be proportionate to crime) Parsimony (do no more than you have to – make do with lesser sentence if appropriate) Parity (like cases should be treated alike, and disparity between offenders must be recognized eg. Multiple offenders in one crime) Concurrency (presumption that multiple imprisonment sentences should be served concurrently eg. 3 years +2 years = serve 3 years) more practical eg. If someone committed 5 drug offences, if not served concurrently, they could serve as much time as a murderer Totality
Civil Law tort of battery
Positive voluntary act causing direct physical interference with the plaintiff without consent Scott v Shepherd – throwing firework at someone – D directly caused the physical interference
Threshold: beyond what is ‘socially acceptable’ or normal Rixon v Star City - Casino employee placed hand on him to make him leave – not battery - behavior must go beyond what is generally unacceptable in everyday life Relevance of fault Williams v Milotin – negligent tresspass is also possibility (person acts with less care than an ordinary person would) – far lower standard than criminal response McHale v Watson – dart thrown in eye - onus is on D to prove he never intended the battery or that he lacked negligence on the balance of probabilities Venning v Chin Chin - exception to rule: highway/road accidents – plaintiff must prove trespass and that defendents acts were intentional/negligent – by being on road, plaintiff accepts risk of damage Relevance of damage No legal requirement to bring case But usually present
LONGER NOTES Sentencing
-
Once a defendant or accused person pleads guilty or is found guilty of a crime, sentencing will take place (Magistrate or Judge) Sources of sentencing law: (mixture of common law + statutes) - Statutes that create the offence - Sentencing Act 1991 (as amended) - Other statutes, e.g. Victorian Charter - Guideline judgements (Court of Appeal) – Bolton case - Case law – appeal judgements Victorian penalty scale: sets out maximum terms of imprisonment and fines
Type of Offence Indictable eg. murder Indictable eg. manslaughter Indictable Indictable Indictable triable summarily Indictable triable summarily Summary Summary Summary Summary Summary Summary
Penalty Level 1 2 3 4 5 6 7 8 9 10 11 12
Max Imprisonment Life 25 years 20 years 15 years 10 years 5 years 2 years 1 year 6 months -
Max Fine (penalty unit) 3000 2400 1800 1200 600 240 120 60 10 5 1
Penalty unit = $147.61 Sentence hearing - Occurs after guilty plea/verdict Role of parties: PROSECUTION - Assists court establish facts - Raise sentencing principles - Raise prior convictions - Challenge/test claims regarding mitigating circumstances/ defence submissions DEFENCE - Plea in mitigation (defence has right to be heard – basic principle of justice) - Clarify facts - Highlight mitigating factors - Suggest less punitive sentencing option and explain why appropriate - Eg. Talk about offender’s commitment to community/volunteer work, remorse, highlight how offender is now in different state (productive citizen) - May prepare pre-sentencing reports eg. Medical reports VICTIMS - Make victim impact statements - Eg. Emotional trauma, financial loss, physical injury - Entitled (not obliged) to make one - Introduces element of uncertainty – how much weight should it be given
-
eg. Right to make victim impact statement extended to family in homicide cases – if family makes emotional pleas for harsh sentence v no statement for victim – should love felt for victim dictate offender’s punishment and if so, how much?
JUDGE - Give sentence that appropriately reflects the nature of the offence and the circumstances of the offender - Difficult when people’s lives are so chaotic that they eg. Can’t pay fine or can’t abide by conditions of Community corrections order – forced to impose harsher sentences-prison Sentencing principles s. 5(1) Sentencing Act: Sentencing guidelines • The only purposes for which sentences may be imposed are: a) ‘Just’ punishment b) Deterrence • Specific (offender) • General (public) – sending message c) Rehabilitation d) Denunciation – public condemnation e) Protection of the community f) Combination of the above Sentencing factors - s. 5(2) Sentencing Act • Court must consider: - Statutory maximum penalty - Current sentencing practices - Nature and gravity of the offence - Culpability of the offender - Whether offence is a hate crime - Impact on and personal circumstances of the victim - Injury, loss or damage from the offence - Early entry of a guilty plea (discount for guilty plea, bigger if plea is early) - Offender’s previous character - Aggravating factors (eg. Planning, use of weapons) - Mitigating factors (eg. Remorse, health, socio-economic status) Offender’s character - s. 6 Sentencing Act - Court may consider: - the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender - the general reputation of the offender - any significant contributions made by the offender to the community. Other Principles Proportionality (sentence must be proportionate to crime) Parsimony (do no more than you have to – make do with lesser sentence if appropriate) Parity (like cases should be treated alike, and disparity between offenders must be recognized eg. Multiple offenders in one crime) Concurrency (presumption that multiple imprisonment sentences should be served concurrently eg. 3 years +2 years = serve 3 years) more practical eg. If someone committed 5 drug offences, if not served concurrently, they could serve as much time as a murderer Totality
