CHAPTER 1
The nature of crime
REVIEW 1.1
1 Define the term ‘crime’.
Crime is a broad term. It refers to an act or omission committed against the
community at large that is punishable by the state. A more detailed definition
includes: ‘any conduct which violates the rights of the community at large,
punishable by a recognised criminal sanction upon proof of guilt in a criminal
proceeding initiated and presented by officers of the crown or its agencies’.
(Marantelli, S., Tikotin, C., The Australian Legal Dictionary).
2 Use one or more examples to describe a new type of crime and an act that is
no longer a crime.
Examples of new types of crime include:
 cybercrimes, such as hacking, online fraud, data theft or spam
 intellectual property crimes, for copying or distributing protected materials
 environmental crimes for breaches of environmental standards
 new white collar crimes for violations of financial or company laws
 crimes relating to violations of animal welfare standards.
Acts that are no longer considered crimes could include:
 witchcraft
 eavesdropping
 being a ‘common scold’
 some types of gambling
 homosexual acts
 adultery.
3 Describe the main ways in which criminal law differs from civil law.
Students could mention any of the following:
 crimes are punishable by the state, whereas the civil law relates to rights and
responsibilities between individuals
 the parties in a criminal case are called the prosecution (the state or the
Crown) and the accused (the defendant); in a civil case, the parties are
referred to as the plaintiff and the defendant
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the criminal standard of proof is beyond reasonable doubt; the civil standard is
on the balance of probabilities
in criminal law, the burden of proof rests with the prosecution; in civil law, it
rests with the plaintiff
the aim of criminal law is to protect the community and to provide a sanction
or punishment to the offender if he or she is found guilty in court
in civil law, the aim is to address the defendant’s wrong by way of a remedy
(e.g. monetary compensation or a court order in favour of the plaintiff)
in criminal law, the offender faces investigation by the police and prosecution,
and the case is heard in the criminal courts, which may result in conviction and
punishment of the accused
in civil law, the case will be heard in a civil court and the plaintiff must
establish the case against the defendant; if the case is proved, the court may
then award some remedy in favour of the plaintiff.
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REVIEW 1.2
1 Explain the difference between actus reus and mens rea.
Actus reus refers to the physical act of carrying out a crime, whereas mens rea
refers to the accused’s state of mind and level of intention to commit the physical
act.
2 Using a specific crime as an example (e.g. drink-driving offence, murder,
robbery), describe what you think the actus reus and mens rea of the crime
might be.
Students can select any crime providing they can distinguish the physical element
from the mental element. For example, assault would require the actus reus as the
physical act, the accused actually kicking another person, but the mens rea would
require that they did so with some degree of intention, not, for example, if the
accused had accidentally tripped up or was having some form of involuntary
convulsion at the time.
3 Describe how strict liability offences differ from usual offences and give
examples of some strict liability offences.
Strict liability offences differ from ordinary offences in that they do not require
the mens rea to be proved, only the physical actus reus. For example, it is an
offence to sell tobacco to a minor. The act of selling to a minor is all that is
required. It does matter that the offender did not know that the person was under
18 or did not intend to sell to them. Other examples include speeding offences or
other traffic violations.
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REVIEW 1.3
1 Using offences as examples, describe some of the differences between
offences against the person and economic offences. What types of crime do
they include? What are the main effects of the crimes? Why do you think these
acts are deemed ‘criminal’?
Some possible responses are included in the table below.
Category
Examples
Effects
Reasons
offences
against the
person
homicide, assault,
sexual assault
physical and emotional harm
to a victim; emotional harm
to a victim’s friends and
family; financial costs to a
victim (e.g. recovery or
hospital)
to deter crime; to prevent
the effects; to ensure the
public’s physical safety;
to provide a means to
punish the offender
economic
offences
property offences,
white-collar crime,
computer offences
depriving another person of
property; interfering with
another person’s property
rights; financial and
emotional harm to a victim;
harm to a business or
shareholders of a company
to deter crime; to prevent
the effects; to ensure
people’s property rights
are protected; to provide
a means to punish the
offender
2 A number of driving offences and regulatory offences are strict liability
offences. Using examples, describe why you think these crimes are strict
liability only. What are the advantages and disadvantages for society of such
offences being strict liability?
Some advantages of strict liability offences include:
 faster prosecution
 less costly for the state to prosecute
 administrative benefits for high-volume offences, like traffic violations
 strong deterrent against violations
 lessens risk of insincere objections or appeals
 less burden on police time and resources to pursue violations.
Some disadvantages of strict liability offences include:
 removes rights in the criminal process
 risks unfair prosecution where there was honestly no intention
 makes it very difficult to appeal
 risk of over-use or abuse by enforcers.
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3 Attempts and conspiracies often carry penalties as high as if the crime was
actually committed. Evaluate why this might be and describe some of the
possible difficulties in prosecuting an attempt or conspiracy.
Attempts or conspiracies carry penalties equally as high as the committed crime
because they are punished as seriously as if the attempt or plan had not been
foiled or prevented by police. This can act as a deterrent, but also recognises the
seriousness of the crime that was attempted, and ensures police can prosecute
without having to wait for the final act to be carried out — for example, before
the trigger is pulled.
Attempts and conspiracies can be difficult to prove because it needs to be
shown beyond reasonable doubt that the accused was prepared to commit the act
and intended to do so. It may be required to show a higher level of intent than if
the act had actually been carried out, to avoid prosecuting individuals for crimes
they would never have actually committed.
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REVIEW 1.4
1 Describe the key characteristics of a summary offence and an indictable
offence.
The following table illustrates the differences between summary and indictable
offences.
Summary offence
Indictable offence
• a less serious offence that is tried by
a magistrate in the Local Court
• a more serious offence (such as murder,
rape or robbery) tried by a judge and jury
• the judgment and punishment are
determined by a magistrate
• the judgment is determined by a jury and
the punishment is determined by a judge
• the charge is usually laid by a police
officer or government officer
• the charge is brought by a public
prosecutor working for the state
• punishment is usually less severe,
like a fine or good behaviour bond
• the punishment will usually result in
imprisonment or a hefty fine
2 Identify some of the advantages and disadvantages for an offender of having
their case heard as a summary instead of an indictable offence.
Cases heard summarily are heard by a magistrate sitting alone in the Local Court,
unlike indictable offences, which are heard by a judge and jury in the County
Court. Summary hearings have significant administrative advantages, like an
earlier hearing date, a faster hearing, less formality and cost, and the possibility
of a lesser sentence due to Local Court restrictions on maximum sentences.
However, where a not guilty plea is entered, the District Court offers the
advantage of a jury trial. The accused may believe that a jury would be more
inclined to acquit them than a magistrate alone.
3 Describe the four possible parties to a crime.
The law recognises that there can sometimes be more than one party to a crime,
including:
 principal in the first degree — person committing the main criminal act
 principal in the second degree — person present at the scene who assists or
encourages the main offender
 accessory before the fact — person who helps plan or prepare for the crime
before the main act
 accessory after the fact — person who assists the principal after the crime has
been committed.
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4 Use a real or fictional example of a crime to illustrate different parties to an
offence.
Students could select any criminal scenario and responses will differ. One example
could be an armed bank robbery, where the following might apply:
 principal in the first degree — the person holding the gun, threatening the
teller and physically taking the money
 principal in the second degree — the person at the scene standing at the door
encouraging the principal offender and keeping a look-out for police
 accessory before the fact — the person who helped plan the hold-up and
organised, for example, the gun or getaway car
 accessory after the fact — the person who helps harbour the offenders or
dispose of evidence after the crime has been committed.
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REVIEW 1.5
1 Describe three different factors that might influence a person to commit an
offence.
Students could discuss any of the following:
 psychological factors
 social factors
 economic factors
 political factors
 self-interest.
2 Define ‘situational crime prevention’ and provide examples of how this is
achieved.
Situational crime prevention aims to make it more difficult to commit a crime or
remove the reward of temptation in specific situations, for example:
 putting up warning signs
 improving alarms or security
 changing lighting
 adding colour tags to clothing.
3 Define ‘social crime prevention’ and give some examples of how this is
achieved.
Social crime prevention aims to address the wider socio-economic factors that
contribute to criminal activity, for example
 improving the home environment
 reducing social and economic disadvantage
 running targeted youth programs.
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Chapter summary tasks
1 Define what a crime is and describe the characteristics of criminal law.
Crime refers to an act or omission committed against the community at large that
is punishable by the state. Some of the characteristics of criminal law include:
 crimes are punishable by the state
 the parties in a criminal case are called the prosecution (the state or the
Crown) and the accused (the defendant)
 the criminal standard or proof is beyond reasonable doubt
 in criminal law, the burden of proof rests with the prosecution
 the aim of criminal law is to protect the community and to provide a sanction
or punishment to the offender if he or she is found guilty in court
 in criminal law, the offender faces investigation by the police and prosecution,
and the case is heard in the criminal courts, which may result in conviction and
punishment of the accused.
2 Using examples, explain the difference between murder and manslaughter.
The crime of murder involves the deliberate killing of a person, whereas
manslaughter applies to the killing of a person in a manner that is considered to be
less intentional than murder, where the element of intention cannot be proved, or
where for some reason or defence the offender is considered less responsible for
their actions.
An example of murder would be shooting another person in the chest with a
gun (without any lawful excuse), where the intention to kill is clear, or at the very
least recklessly indifferent to the victim’s life or well-being. An example of
manslaughter might be where a person drops a rock from a tall building, thinking
there is nobody there, without specific intention to hurt or kill anybody, but the
rock hits a passerby on the head and kills them.
3 Explain the difference between summary offences and indictable offences
and list some examples of each.
The following table illustrates the differences between summary and indictable
offences.
Summary offence
Indictable offence
• a less serious offence that is tried by
a magistrate in the Local Court
• a more serious offence (such as murder,
rape or robbery) tried by a judge and jury
• the judgment and punishment are
determined by a magistrate
• the judgment is determined by a jury and
the punishment is determined by a judge
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• the charge is usually laid by a police
officer or government officer
• the charge is brought by a public
prosecutor working for the state
• punishment is usually less severe,
like a fine or good behaviour bond
• the punishment will usually result in
imprisonment or a hefty fine
Examples of summary offences include offensive conduct, obscene exposure,
obstructing traffic, or possession of liquor by minors. Some examples of indictable
offences include larceny (theft), assault, robbery or murder.
4 Describe what regulatory offences are and how they differ from other
crimes.
Regulatory offences are usually set out in delegated legislation and are considered
more minor offences, with lesser penalties. They are usually set by the
government department or agency responsible for that area of law. They are
usually strict liability offences, and are often enforced by government officers or
local law enforcement officers.
5 Explain some of the factors contributing to crime and provide examples of
some crime prevention techniques that might be used to combat them.
Students could discuss any of the factors contributing to crime, for example
psychological factors, social factors, economic factors, political factors or selfinterest. Students should then discuss examples of both situational crime
prevention and social crime prevention techniques.
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