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LEGAL ISSUES AND REMEDIES

By Mary Doolan Coonabarabran High School

Creating social order through education, regulation and coercion

The aim of our legal system is to maintain social order. There are three broad aspects to this notion of social order as follows:

Education: Education about the law encourages compliance with the law. Such education can be instilled via the values that individual citizens learn from their family and teachers and also via explicit, government funded campaigns. For example, when random breath testing was introduced in NSW in 1982 to combat the problem of drink driving, the state government funded an extensive advertising campaign to educate society about the dangers of drink driving and the new processes and penalties which would apply.
Regulation: Regulation involves the state outlawing certain acts with a view to ensuring the safety of society generally. Most citizens are willing to accept such regulations, which it could be argued impose upon a citizen’s personal freedom, as there is an understanding that such laws will benefit individuals and society as a whole by making society safer. For example, traffic laws which regulate speed aim to ensure the safety of road users and pedestrians.
Coercion: Coercion involves the state imposing punishment upon citizens who break the law. In this way compliance with the law is encouraged through fear of the consequences of not complying (both state imposed and social e.g. the social stigma associated with being labelled a criminal). Students should note that fear of punishment, whilst a deterrent for some criminal offences, does not always operate to reduce criminal activity. For example, in 1995 the state government effectively doubled the penalties imposed for drink driving. Studies undertaken by the NSW Bureau of Crime Statistics and Research have indicated that the increase in penalty had a negligible impact on rates of offending. Clearly then, why people choose to obey the law or to break the law is a complex issue.

Crime Prevention

A great deal of our criminal justice system is REACTIVE in nature. As discussed above, students will recall that the priority areas of government spending on crime all relate to REACTIVE measures by the police, the courts and corrective services. Whilst it must be acknowledged that each of these entities also plays a role in crime prevention via their educative and deterrent effect, they primarily intervene in the criminal process once a crime has been committed; hence they are REACTIVE in nature. The aim of crime prevention strategies is to focus on a more PROACTIVE approach to reducing crime. The state government has, over recent years, placed an increased emphasis on the need to prioritise crime prevention strategies. In 1996 a Crime Prevention Division was established within the Attorney General’s Department.

Crime prevention strategies can be categorised into two broad types:

Situational Crime Prevention: Think about this strategy as primarily focusing on the PHYSICAL scene of the crime. Such strategies aim to either make the crime more difficult to commit (e.g. bars on windows to prevent a break enter and steal), increase the likelihood of detention (e.g. a house alarm) or to reduce the reward from the crime (e.g. engraving owner identification on valuables). In addition, specific laws are premised on a situational crime prevention approach (e.g. imposing alcohol free zones in high risk crime areas).
Social Crime Prevention: Social crime prevention aims to break the cycle of crime by targeting social factors such as poor parenting, high truancy rates, low levels of education and economic disadvantage, all of which increase the likelihood of criminal activity occurring.

Social crime prevention is not a “quick fix” solution and for this reason often receives bad press as it can be wrongly interpreted as soft on crime and therefore not worthy of government funding. Students should remember however that repeated studies have shown that strategies which aim to tackle social inequities have led to a reduction in criminal activity. For an excellent analysis of crime prevention, what works and what doesn’t, students are referred to Nicholas Cowdery’s 2006 speech entitled “Crime in the Community ”. Students should take particular note of the comments made. in the speech regarding the success of the Perry Pre-school Program which commenced in the Unites States in the 1960’s.

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

Enforcing the Law Through Punishment

The sentence that a court imposes upon an accused is informed by differing punishment objectives. The categories discussed below are not mutually exclusive in terms of the fact that in imposing a sentence upon a particular offender, a judge or magistrate may be seeking to fulfil more than one punishment objective. The objectives or purpose of punishment can be categorised as follows:

Rehabilitation (reform):
The aim of rehabilitation is to change the behaviour of the offender so that they will not re-offend. Accordingly, rehabilitation is primarily aimed at tackling the problem of recidivism (repeat offenders). In accordance with the provisions of the Young Offenders Act 1997 NSW, rehabilitation must be the primary focus of any punishment imposed upon a child (0 – 15 years) or young person (16 – 18 years). Examples of punishments which are informed by a reform objective include:
- Community Service Orders
- The imposition of bonds which require, as a condition of the bond, that the offender participate in some form of counselling e.g. drug, alcohol or anger management.
The concept of “therapeutic justice” is a partnership between the criminal justice system and health authorities that acknowledges that a reform objective can be more readily facilitated (for example with addiction based crimes) if these bodies work together to support the offender whose behaviour needs to be changed. The Drug Court and the Youth Drug and Alcohol Court are examples of therapeutic justice in action in NSW, as is the MERIT program (Magistrates Early Referral Into Treatment). The “stick” of the criminal justice system remains as offenders are sanctioned for failure to fulfil the rehabilitation program that has been imposed upon them by the court.
Deterrence:
The objective of deterrence is to discourage people from offending in the future. There are two types of deterrence:
1. Specific: aims to deter an individual offender from re-offending e.g. a short custodial sentence could be said to have a specific deterrent effect by giving the offender a “taste” of the prison system in the hope that this will discourage further criminal activity.
2. General: aims to “send a message” to the community that criminal behaviour is unacceptable and will be punished e.g. the imposition of a custodial sentence for a particular crime, whether of short or long duration, could be argued to have a general deterrent effect. This objective hopes that by making an example of a particular offender, the community will take note and be more willing to comply with the law.
Deterrence as a means of tackling the problem of recidivism (repeat offenders) is problematic. It may work for some offenders, particularly of a more minor nature (e.g. fear of being caught by police may stop people speeding) but as the severity of the crime increases and therefore the punishment, the achievement of a deterrent effect is more difficult. Students may care to consider the failure of the ultimate deterrent (the death penalty) to deter the Bali Nine from involvement in drug trafficking, particularly given the huge amount of media previously given to Schapelle Corby.

Students should also be aware of the fact that many offenders suffer a mental illness which brings into doubt the ability of punishment which has deterrence as its primary objective, to impact positively on the mental state of the offender and dissuade them from committing a criminal act.
Retribution:
Retribution encompasses the idea that the punishment should fit the crime. In this respect the judge or magistrate will consider (as is always the case with respect to sentencing), the impact of the crime upon the victim, their family and the community. Lengthy custodial sentences are an example of a punishment aimed at retribution.
Incapacitation:
Incapacitation aims to protect society by removing the offender from society. This is a relevant objective if the crime is of a particularly heinous nature and/or the offender, based on their criminal history, has shown themselves to be incapable of rehabilitation. The offender, if at large, could pose a risk to society. Again, lengthy custodial sentences satisfy this objective.
Reintegrative Shaming:
Reintegrative shaming aims to get the offender to take responsibility for their crime through the process of direct interaction with the victim via a conference. This objective facilitates the victim being given a voice and hearing the offender expressing remorse and apologising for their actions. It is often referred to as RESTORATIVE JUSTICE, which implies the notion of the offender making amends to the victim. Examples of sentencing process which embody the notion of Reintegrative Shaming are:
- Youth Justice Conferencing
- Adult Conferencing: (applies to young adults aged 18 – 24 years) following a successful pilot program being staged for two years from 2005 in various jurisdictions the program continues to operate at Liverpool and on the Tweed Heads circuit and is now being implemented state wide. Expansion to all NSW Local Courts is planned over five years commencing in the 2008/9 financial year.
- Circle Sentencing (of indigenous offenders).

The Sentencing Process

The Hearing

Evidence:
The evidence to be considered by the judge or magistrate in passing sentence is not limited to the matters established from the evidence presented at the trial or hearing. The judge or magistrate may also take account of the accused’s criminal history (prior conviction), character references (either tendered in written form or given orally via a character witness) and also a victim’s impact statement (discussed below). Further, the judge or magistrate may call for a pre-sentence report (prepared by the NSW Probation Service) or Juvenile Justice Report on the accused or young person. This report details the offender’s background, attitude to the crime and any changes they have made to their life subsequent to the offence e.g. entering a rehabilitation program.
Role of Prosecutor:
The role of the prosecutor in the sentencing stage is to present to the judge or magistrate (by way of submissions) relevant matters from the trial or hearing together with a transcript of the accused’s prior criminal history. Except in rare cases where there are striking similarities in the evidence between a case which resulted in a prior conviction, and the current case being tried, details of the accused’s prior convictions are, inadmissible at trial as their prejudicial (potential to bias) value far outweighs their informative value. Accordingly, it is only at the sentencing stage that the judge or magistrate receives from the prosecution, details of the accused’s criminal history. The prosecution may also address the judge or magistrate on any matters in the pre-sentence report or juvenile justice report (for example if the report disclosed that the accused demonstrated no remorse when being interviewed in preparation for the report) and on any relevant sentencing legislation or precedent.
Role of the Defence:
The role of the defence counsel or solicitor is to present to the judge or magistrate (by way of submission) relevant matters from the trial or hearing (objective factors) together with information pertaining to the accused (subjective factors). The defence aim is to ensure that the accused receives a just sentence. Character evidence may also be tendered (by way of written references) or called by way of character witnesses. The defence may also address the judge or magistrate on any matters of assistance to the accused in the pre-sentence report or juvenile justice report and further on any relevant sentencing legislation or precedent.
Role of the Victim:
Since 1996 in NSW victims are permitted to give a VICTIM’S IMPACT STATEMENT to the Court. This legislative change has been a positive development as the statement gives victims a voice in the judicial process. It is a matter of judicial discretion as to what weight (if any) the judge will give the victim’s impact statement.

Factors affecting the sentencing decision

Sentencing is a complex legal process which is affected by a number of factors. Sentencing is determined by the Judge or magistrate although as discussed above, the prosecution, defence and victim also play a role. In June 2006 the NSW Law Reform Commission issued a discussion paper on the issue of juries playing a role in the sentencing process. Much of the debate raised by this discussion paper has centred upon the difficulty of people without legal training (juries) having input into such a complex area of the law. Others have argued that this reform would give ordinary citizens more direct involvement in an area of the criminal justice system which has such a widespread impact upon society as a whole. Students should think about the possible positive and negative consequences which would result if such a proposal was implemented.
Students would be aware that sentencing is often a controversial area of the law. For further reading students are referred to the numerous speeches which Nicholas Cowdery has given about the sentencing process during his time as Director of Public Prosecutions in NSW .
The various factors which affect the sentencing decision are discussed below:
1. Purpose of the Punishment:
  Refer to the discussion of purposes of punishment above e.g. if sentencing a child or young person, the judge or magistrate must have rehabilitation as their primary objective.
2. Circumstances of the Offence:
  Objective features: These are most important. Clearly the nature of the crime and how serious it is will play a large role in informing the final decision on punishment e.g. was the crime of a violent or non-violent nature?
  
  Subjective Features: These also are important e.g. the offender’s criminal history or whether or not they have taken any steps since the commission of the crime to change their lives (e.g. entered a rehabilitation program). In NSW, a judge or magistrate is legislatively bound to impose a lesser sentence if the offender pleads guilty (as compared to a finding of guilt being made at the conclusion of a trial or hearing).
3. Aggravating and Mitigating Factors:
  Aggravating factors are those which increase the offender’s criminal culpability and therefore are likely to result in the offender receiving a more severe punishment e.g. Was the crime committed in company (with others)? Was there gratuitous violence? Was the victim a child? Was that child under the care of the offender?
  
  Mitigating factors are factors which reduce the offender’s criminal culpability and therefore are likely to result in the offender receiving a less severe punishment e.g. Whether the defendant’s actions were in some way provoked by the victim? Whether the defendant is unlikely to re-offend?
  A comprehensive list of aggravating and mitigating factors is included in the sentencing information package jointly produced by the Victims of Crime Bureau and Criminal Law Review Division.

Judicial Discretion and Limits on Discretion

The judge or magistrate will consider the factors discussed above and must then reach a decision. Judges do not have unlimited discretion to determine punishment. The limits on judicial discretion are:

Judicial Guidelines: guideline judgements from superior courts aim to promote uniformity in the sentencing process.

Mandatory Sentencing: removes judicial discretion e.g. Northern Territory and West Australian mandatory sentencing laws mandate goal terms in certain circumstances.

Maximum Penalties: are imposed by legislation e.g. The Crimes Act 1900 NSW mandates a maximum penalty of two years imprisonment for the crime of common assault. Maximum penalties are intended to be given when the case is considered to be in the ‘worst category’ of the offence. The magistrate of judge still has to consider sentencing legislation, case law and the general sentencing pattern of criminal courts for the offence.

Judges must also aim to achieve PARITY in sentence between co-offenders, subject to due weight being given to the extent of each offenders involvement in the crime and to relevant subjective matters (e.g. perhaps both offenders were equally involved in the commission of the crime, however if one offender has a lengthy criminal history and for the other it is a first offence, the first time offender will likely receive a lesser sentence.

Judges are also bound by any other relevant legislation which impacts upon the sentencing process such as the Crimes (Sentencing Procedure) Act, 1999 (NSW) the Children (Criminal Proceedings Act 1987 (NSW) and the Young Offenders Act 1997 (NSW).

Penalties

Types of penalty:
The type of penalty imposed will depend upon the judge or magistrate considering the matters discussed above. The Law Reform Commission’s Report 79 (1996) into sentencing looked at the range of penalties and included a summary of recommendations.

Currently in NSW the types of penalty are as follows:
1. No Conviction Recorded:
  whilst the offence is found proved, no conviction is recorded by the Court and hence the offender does not receive a criminal record. Usually only used in the case of first time offenders for summary offences. Authorised by section 10 of the Crimes (Sentencing Procedure Act) 1999 NSW
2. Fine:
  Is a monetary penalty imposed by the court. Fines are the most frequently used sentencing options in Australia. The revenue raised goes to the State. is the most extensively imposed penalty
  - is inherently biased against people with a low income
  - must be paid within 28 days of the court’s order although the defendant can apply through the Registrar of the Court for time to pay the fine. The Registrar will consider the offender’s assets and liabilities to determine the rate at which they are able to pay
  - non payment of fines can in the worst case, lead to the offender being imprisoned to “cut-out” the fine
3. Bond:
  (Also know as recognisances). A court imposed bond places limits upon an offender’s behaviour for a specified period of time. The bonds usually require that the offender be of good behaviour and may require that the offender do other things such as attend drug and alcohol counselling. If an offender re-offends during the term of the bond he or she will be brought back before the court and run the risk of having the bond revoked and a more serious penalty imposed for the original offence. They would also receive a sentence in relation to the new offence.
  
  Further, a judge or magistrate has the discretion to defer a custodial sentence, conditional upon the offender entering into a bond in accordance with the provisions of section 12 of the Crimes (Sentencing Procedure) Act (NSW) 1999. This is sometimes referred to as a suspended sentence. If the offender re-offends during the term of a Section 12 bond, the bond will be revoked and the offender will serve the prison term.
4. Probation Order:
  Places the offender under the supervision and guidance of the NSW Probation Service. This enables the court to “keep an eye” on the offender during the period of the order via regular meetings with their probation officer whilst at the same time giving the offender the freedom to get on with their lives and hopefully, rehabilitate themselves to become law abiding citizens. If the offender abides by the conditions of the bond the court will not impose a conviction for the offence. If however the offender re-offends they could receive a custodial sentence. These orders are usually for twelve months duration.
5. Community Service Orders (CSO):
  Involve the offender being ordered to perform work in the community. Their aim is to rehabilitate the offender by giving them an opportunity to ‘repay’ society for their crime. Offenders must consent to a CSO AND must be assessed as suitable by the NSW Probation Service (via a Pre Sentence Report, tendered to the judge or magistrate on sentence). No more than 500 hours of CSO can be ordered by the c9ourt at any one time. If the work is not performed the offender can be fined or imprisoned. CSO’s apply to less serious offences and matters where the offender has defaulted on payment of their fine or is unable to pay a fine.
6. Home Detention:
  A court can impose a sentence for a period of up to 18 months which requires that the offender stay at home. They are monitored via an electronic device worn on their leg. They are banned from any drug or alcohol use and random tests are conducted. The relevant legislation is the Home Detention Act 1996 (NSW). Offenders are required to work from home or undergo an educational program. The benefit of such a system is that offenders are kept out of the violent prison system, plus in terms of resource efficiency, it is a much less costly sentence for the State to impose compared to a prison term. In essence this sentence allows the offender to focus on rehabilitation without suffering the alienation from their family and society, which a prison term can lead to. If an offender breaches the requirements of home detention they can be detained and their bond revoked.
7. Periodic Detention:
  (Also known as weekend detention) This sentence allows an offender to serve their sentence over weekends (from Friday evening until Sunday afternoon). During that time prisoners perform community service. The benefit of this sentence is that offenders can maintain their link with family, employment and society and in this way it is hoped that they will be able to be rehabilitated into law abiding citizens. It is also a more economical sentence from the point of view of state funds. If an offender fails to appear for weekend detention they face having to serve the rest of their sentence on a full time basis.
8. Imprisonment:
  Sentencing an offender to a full time period of imprisonment is the harshest penalty which a court can impose. Whilst the Crimes Act 1900 (NSW) sets maximum penalties for offences, it is a matter for the judge or magistrate to determine the actual length of a sentence.
  
  A judge or magistrate may set a non-parole period. Parole is where the offender is released from prison prior to the expiration of their fixed term on the basis that they be of good behaviour and subject to the supervision of the NSW Probation and Parole Service. The Crimes (Sentencing Procedure) Act 1999 mandates that unless exceptional circumstances apply, a non parole period must be set at three quarters of the fixed term imposed. This means that the offender will not be eligible for parole until such time as they have served three quarters of their sentence. Students should note that since the passing of the Crimes (Sentencing Procedure) Act 1999, prisoners are no longer able to earn reductions in their sentence for good behaviour via the old system of remissions and licences. Further, if an offender is sentenced to life imprisonment, under the reforms enacted in 1989, the offender will die in gaol. For this reason, this act was referred to as ‘truth in sentencing’ legislation. The Crimes (Sentencing Procedure) Act 1999 implemented changes recommended in the NSW Law Reform Commission’s report on sentencing (Report 79 1996).
  
  Students should be aware that the imposition of full time imprisonment is often a controversial aspect of our criminal justice system which attracts much media scrutiny. This is because serious crimes are being dealt with and there can be a discrepancy (or perceived discrepancy) between what the public think is fair and what is actually imposed by the court in accordance with all factors which must be considered by the court when imposing a sentence (as discussed above under the heading factors affecting the sentencing decision). That is to say that there can be a tension between what the public think is fair and what is just in accordance with the law.
  
  Whilst a prison term clearly removes the offender from society and hence protects society, it is an expensive (although necessary) sentencing option. The daily cost of an inmate is $161 for open custody and $187 for high security (these figures are taken from Nicholas Cowdery’s speech, Crime in the Community). Further, rates of recidivism for inmates, once released, are high. The NSW Bureau of Crime Statistics and Research undertook a study of 2,793 parolees. Their findings, released in January 2006 revealed that within two years of release 67% of parolees had reappeared in Court, 64% were convicted and 41% were back in prison. Students should compile a list of the pros and cons of prison as a form of punishment.
Penalties no longer available:
1. Capital punishment or the death penalty has been abolished federally and within each Australian state (NSW 1955, Federally 1973). The last execution occurred in Australia in 1967 (Ronald Ryan, by hanging in Victoria’s Pentridge Gaol). The failure of capital punishment as a deterrent for serious crime can be seen in the fact that homicide rates did not increase in any state following the outlawing of this penalty. Capital punishment remains in many overseas jurisdictions, e.g. Indonesia, China and various American states such as Texas.
2. Corporal punishment: involves the infliction of pain and suffering on the offender e.g. by caning. It is outlawed in Australia, but still practised in some nations e.g. Saudi Arabia, Singapore.
Penalties that Infringe Human Rights Laws:

Article 7 of the International Covenant on Civil and Political Rights states that “No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment”. Australia is a signatory to the Convention as well as the UN Convention Against Torture. There are still nations which impose punishment which breach human rights laws through their use of capital punishment, torture and detention without trial. Examples include Indonesia, Saudi Arabia and the United States. Controversially in several states of the United States, offenders under the age of eighteen at the time of the offence have been executed. This is in breach of the U.N. Convention on the Rights of the Child.

Post Sentencing Decisions

Security classification: NSW prisons are classified according to their level of security. Offenders are given a security ranking determined largely by the severity of their crime. The NSW Department of Corrective Services is responsible for management of inmates and prisons. There are three basic security levels:

maximum Security e.g. Goulburn
medium Security e.g. Parklea
minimum Security e.g. Emu Plains

Prisoners in maximum security have less freedom. All prisoners lose the right to vote, however they do have visitation rights (including by their legal counsel) and the right to secure an adequate standard of care.

Protective Custody: refers to the need to protect prisoners vulnerable to attack from fellow inmates. Prisoners in protective custody are segregated from the mainstream prison population e.g. child sex offenders, police receiving prison terms.

Parole: Students are referred to the above discussion of parole under the heading imprisonment. A person will only be assessed as eligible for parole if they are judged as not posing a risk to society. The aim of parole is to encourage inmates to grasp opportunities for rehabilitation with the incentive of early release.

Dealing with International Crime

International crime presents particular problems. Ease of travel between nation states and technological developments have made it increasingly difficult for such crimes to be investigated. Further, enforcement is an issue due to the notion of State sovereignty which limits the jurisdiction nation states to tackle what are often cross-border crimes. An example of dealing with one aspect of international crime is the Australian federal government’s child sex tourism legislation which gives jurisdiction to Australian courts to prosecute offenders who commit child sex offences overseas.

International Criminal Court (ICC): The ICC was established by the Treaty of Rome (1998) and commenced operation in 2002. It issued its first arrest warrants for crimes against humanity and war crimes in 2005.

The ability of international law to prosecute individuals (as compared to nation states) for breaches of international law is a relatively recent development. Since the Nuremberg Tribunal on War Crimes (1946) which was established to prosecute Nazi war criminals, there have been various ad hoc tribunals established to hear crimes arising out of specific wars and conflicts e.g. 1994 International Criminal Tribunal for Rwanda (ICTR) was set up by the U.N Security Council in 1994 to judge those responsible for the Rwandan genocide and other violations of international law.

The significance of the ICC is that it is a PERMANENT International Criminal Court dealing with INDIVIDUALS who perpetrate international crimes e.g. war crimes, genocide and crimes against humanity. It can impose penalties ranging from fines to life imprisonment. Not all nations have become signatories to the Treaty of Rome nor do they consent to the jurisdiction of the ICC, most notably the United States. Notwithstanding this fact, the establishment of the ICC is still a giant leap forward in terms of the international community’s commitment to address the growing number of cases of human rights violations.

Sanctions

As discussed above, the enforcement of sanctions in the area of international crime is problematic, not least because of the notion of State sovereignty. Penalties which can be imposed under international law include:

ICJ:	fines
	condemnation

ICC:	fines
	confiscation of assets
	life imprisonment
	provision for victim’s compensation

The international community, via UN Resolutions can also impose sanctions on a nation as a measure of punishment against a nation state (as compared to an individual as dealt with by the ICC). For example, following the Gulf War in 1991 economic sanctions were imposed upon Iraq (at that time under the power of Saddam Hussein).

Extradition

Extradition is the process of returning to a jurisdiction, a person who has either been convicted of a crime in that jurisdiction or accused of committing a crime, and has subsequently left the jurisdiction. In Australia, extradition of offenders occurs between states and also between Australia and other nation states. The relevant act is the Extradition Act 1988 Commonwealth. To extradite an offender from overseas, Australia must have an extradition agreement with the nation state where the offender currently resides. Extraditable offences must be punishable under the laws of both nation states and must be regarded as serious offences by both nations (carrying a term of imprisonment as punishment). The prosecution in making the extradition application in the foreign court must be able to establish (in the case of an application relating to a person accused but not convicted of an offence) a prima-facie case and further that the accused will receive a fair trial. Extradition agreements can be bi or multi lateral in nature e.g. The 2006 extradition of Gordon Wood to stand trial for the alleged murder of Caroline Byrne in 1995, the Queensland government’s extradition of Dr Patel (nicknamed Doctor Death) in relation to possible manslaughter charges arising from his alleged malpractice whilst a surgeon at Bundaberg Hospital).

Assessing the efficiency and effectiveness of various legal measures in achieving justice through Researching a current Criminal Justice Issue

This part of the syllabus requires that students assess the efficiency and the effectiveness of various forms of legal measures in achieving justice through researching a CURRENT CRIMINAL JUSTICE ISSUE. Students should read past Crime questions such as the Crime question in the 2006 HSC to see how such a question could be asked. This question suggests a number of good issues for research such as majority verdicts (re juries), mandatory sentencing and the accused’s right to silence.

To satisfy this area of study students must choose an issue, research it and then FORM AN OPINION (based on their research) as to the effectiveness or otherwise, of legal measures surrounding this issue, to deliver just outcomes. An understanding of relevant legislation, cases, current media and also, if applicable, statistics (e.g. from NSW Bureau of Crime Statistics and Research) will help students to firstly understand the issue, secondly form an opinion and thirdly demonstrate their judgement.

Research in this area of coursework will also add depth to students’ understanding of other case crime content. In forming their judgement students may care to consider using the syllabus effectiveness criteria. This criteria can be remembered with help of the mnemonics PAREE & BROL:

Effectiveness of the law in achieving justice for individuals:
- Protection and recognition of individual rights
- Accessibility
- Resource efficiency
- Equality
- Enforceability
Effectiveness of the law in achieving justice for society:
- Balance of individual rights and values and community
- Resource efficiency
- Opportunities for enforcement, appeals and review
- Law as a reflection of community standards and expectations

That is, students should ask themselves, to what extent do the legal measures surrounding their chosen criminal justice issue, “measure up” against the above effectiveness criteria.

When answering a question in the HSC examination, either in the Crime question or in the extended responses, it is important to not try to use all of the criteria. Instead it is better to choose the effectiveness criteria best suited to your response and use them to give depth to your answers