Through and the NSW Ombudsman. The Police Code

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Last updated: March 12, 2019

Through various pieces of legislation the criminal investigation process is highly effective at achieving justice for offenders and the broader community. Specifically, the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) grants law enforcement the powers necessary to detain and investigate suspects. This ensures that the community is protected from potentially dangerous individuals and assists in an efficient investigation process.

However it is essential that these powers are controlled and that law enforcement can be held accountable for upholding the rights of offenders and society as a whole. This is achieved through the Police Code of Behaviour- Practice for CRIME (Custody, Rights, Investigation, Management, Evidence), warrants, and the NSW Ombudsman. The Police Code of Behaviour also outlines some of the rights of an offender including right to communication with a friend or family member, right to request and seek counsel from a lawyer and ‘right to silence’.  This legislation and practice is crucial to establishing justice in the first step of the criminal system.  However the criminal investigation process does not always achieve justice for victims in Australia. There is a negative perception among the Australian people that nothing will be done about the crimes they report and thus a significant number of crimes are never reported; this is especially true of sexual assault crimes. This belief is created by the treatment of some victims who are often subjected to embarrassment and questioning of their character when they report these crimes.  The NSW Bureau of Crime Statistics and Research reported in 2006 that “90% of reported sexual assaults did not lead to conviction”.

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An article published by ABC News (3 September 2016) by an anonymous victim titled “How the justice system lets sexual assault victims down” is an insight into the way the justice system deals with victims of sexual assault. The author described the criminal investigation process as “invasive, uncomfortable and mentally draining”, claiming “the system is designed to defend the rights of the offenders with seemingly little regard for the victim”. Thus it is evident that the justice system is not always effective in providing justice for victims during the investigation process. Elements of the criminal trial process are highly effective in providing justice for offenders, victims and the broader community.

Adversarial systems have worked for common law countries for  years.  Both sides follow rules of evidence, witnesses are examined orally, the offender is given the presumption of innocence, and any past record of the accused cannot be considered during the trial. Another element of the adversarial system is the inclusion of a jury in criminal proceedings. The jury determines the guilt of the suspect with the evidence given to them creating a fair process and allowing members of the community to partake in the justice system. Furthermore the establishment of the right to legal representation in the Dietrich case (1992) extends the rights of the offender during their trial. Consequently, the NSW government has funded programs that provide legal aid to people from a low socioeconomic background, increasing access to justice. Other rules of evidence such as standard and burden of proof also ensure a fair trial is achieved.

Barristers have defences to provide the court with a range of circumstances around the alleged crime to consider when determining guilt or innocence including mental illness, self defence and consent. If the defence is successfully proved the offender can be cleared of the crime or given a reduced sentence. It is essential that these defences are considered as they may somewhat justify the defendant’s actions or provide more insight into the circumstances surrounding the crime.

All of the above are all essential components of the trial process in order to achieve justice.  The practice of charge negotiation does not always provide just results for offenders or victims thus negatively impacting the effectiveness of the criminal justice system. Charge negotiation can result in the accused getting a lighter sentence in return for them pleading guilty for a crime, potentially one they are or are not guilty of. Conversely charge negotiation can leave the victim feeling as though the offender wasn’t punished sufficiently.

This was demonstrated first hand by a woman, told in  “Forced to take on the system”, Sydney Morning Herald (Ruth Pollard. August 8 2009). Nanette May was the victim of a violent attack that almost killed her, and left lasting brain injuries. The prosecution engaged in charge negotiation without the knowledge of the victim and the offender faced charges of malicious injury with intent instead of attempted murder. These charges hold significantly different sentences: 25 year prison sentence to non-parole period of seven years. The sentencing judge was not impressed with this outcome stating: ”Had I noticed that the so-called agreed facts had been signed by the police officer in charge of the case as opposed to the Crown, I would have refused to accept a plea. I’m not at all impressed by that course of action on behalf of the crown”. Hence it is clear that charge negotiation can be   a hinderance to the achievement of just process in the criminal trial process.

 The sentencing process in the criminal justice system is mostly effective in ensuring justice for offenders, individuals and wider society. Statutory and judicial guidelines are enforced to limit a judge’s discretion in order to maintain fairness and consistency. Judges are also required to consider aggravating and mitigating factors of the crime to guarantee that sentences are appropriate for each differing circumstance. The sentencing process also allows for the perspective of the victim to be considered through victim impact statements, balancing the needs of the offender and the victim.

However if the sentence is not seen as satisfactory then the sentencing appeal process can be followed. Alternative sentencing methods have become increasingly popular in order to promote understanding and rehabilitation in the sentencing process. One way that alternative sentencing achieves justice is through a program called circle sentencing. Circle sentencing gives vital support to Aboriginal offenders by helping to reduce cultural barriers in the trial and sentencing process by combining police, the courts and the Aboriginal community to enact a plan that promotes the rehabilitation of the offender whilst achieving justice for victims. The positive effects of circle sentencing are highlighted in an article published by SBS “Circle sentencing helping to keep our mob out of jail” (By Karina Marlow 01/04/16). An Indigenous elder spoke of the positive influences of circle sentencing; “it changed the way he looked at life and he didn’t commit any further offences”. The use of judicial guidelines, victim impact statements and alternative sentencing are some of the many effective tools that achieve justice in the criminal sentencing process.

 However there are some areas of the sentencing process that do not achieve justice for offenders; one of these is the introduction of mandatory sentencing. Mandatory sentencing does not allow the judge or magistrate to consider aggravating or mitigating circumstances. Recently in NSW mandatory sentencing was introduced for ‘one punch’ offences after the case R v Loveridge (2013 NSWSC 1638) which involved the death of a young man after a one punch attack. The legislation is very controversial and many legal experts believe that mandatory sentencing whilst stripping the rights of offender, does not actually prevent reoffending.

This is echoed in an article by the Sydney Morning Herald, “Ineffective one punch mandatory sentences should be scrapped, says Law Council” (Jane Lee April 15 2016) with the Law Council claiming “One punch mandatory sentences do not reduce crime or reoffending and can have unjust outcomes for offenders”. Mandatory sentencing is an area of the criminal sentencing process that prevents the achievement of justice for offenders. The justice system is very effective in protecting young offenders while achieving justice for victims and the community, through various legislation and alternative programs and initiatives.  In NSW the law has two underlying aims when it comes to young offenders; to provide the offender protection whilst still achieving justice, and to rehabilitate them. Protection is given to young people through the concept of doli incapax and the age of criminal responsibility, and throughout the criminal investigation, trial and sentencing process. The importance of doli incapax is highlighted in the case R v LMW (1999 NSWSC 1109). The defendant dropped the victim in a river, knowing the victim couldn’t swim. The defendant was found not guilty of manslaughter; the jury agreeing with the case made by the defence; the drowning of the victim had been ‘an act of bullying that went wrong’.

This case raised the issue of doli incapax, which deems any child under the age of 14 incapable of criminal intent unless proven otherwise. The emphasis of rehabilitating and educating young offenders is also evident through the various alternative sentencing and rehabilitation programs. One example is highlighted in an article by the Sydney Morning Herald “Racist attack on bus: offender’s Youth Justice Conference” (Lisa Robinson. December 14, 2014) which discusses the use and role of youth conferences in the criminal justice system. A young man attacked a group of jewish children with antisemitic slurs and threats. The offender attended youth justice conference, where the victims spoke of how the verbal abuse had impacted them. The results of the conference were the offender was encouraged to visit the Jewish museum, read novels by holocaust survivors and enrol in a school harmony program.

This shows the emphasis of education and rehabilitation in youth conferencing and by extension the justice systems dealing of young offenders.To conclude, overall the criminal justice system provides a just system  for offenders, victims and the wider society. However, there are still areas for improvement or reform to ensure a consistent, just and fair process for all victims and offenders including the treatment of sexual assault victims, charge negotiation and mandatory sentencing. 

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