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What Is Criminal Law in NSW?

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Criminal law is a complex area of law which is designed to protect society above all else. Criminal offences create danger to the community and criminal procedure exists to punish offenders and prevent re-offending.

At the outset, legal advice should be sought if you have been accused of committing an offence under the legislation or act specific to your state. You need to be aware of how to plead, what process to follow and what consequences or sentence you may receive.

Jameson law can assist with all of the above and have a team of experts waiting to help you at any time.

Criminal Justice System

The criminal justice system is an important aspect of society and community protection. Criminal conduct is subject to strict criminal procedure within the court system, specifically, Magistrate’s Court deals with summary offences, Supreme Court deals with indictable offences.

It is important that strict evidence and processing procedures are followed to ensure a smooth process. At a minimum the process cannot succeed without evidence and this is a core component of the criminal justice process. When offences relating to criminal law are brought before either the district or supreme court the burden of proof falls to public prosecutions. It is their responsibility to prove beyond a reasonable doubt that the defendant is guilty.

This is achieved primarily through the presentation of evidence and its link to key criminal law principles relevant to the criminal offence or offences that have been accused. Following this there needs to be a consideration of all the evidence and external factors before a determination is made.

Why Is Reasonable Doubt An Important Concept?

Reasonable doubt is the benchmark upon which all criminal offences are measured against and ultimately affects whether the offender is determined guilty or not guilty. It is the responsibility of the prosecution to prove that the defendant is guilty beyond a reasonable doubt.

The threshold for this test is that of what an ordinary non-legally trained person would consider reasonable. In a jury situation, those making the decision of guilty versus non guilty are ordinary citizens of society who have no legal training or background.

This is so that the verdict is overall fair and equitable. A legally trained person could easily sway the other jurors to a decision with their training and it has the ability to bias the decision.

All decision must be based on fact and evidence presented at the trial and nothing else. The judge will then decide whether the defendant transfers to custody or not when he makes a decision about sentencing.

Common Law

Common law is an important concept which s relevant to each aspect of law whether it be criminal, civil, contract, etc. You may understand common law to be either case law or statute law and it is prevalent in criminal law through its general principles and practices.

Common law has influenced legislation, precedent and sentencing as it provides a firm basis based on cases that have previously established legal principles. Criminal law could not exist without common law.

Children's Court

There is a universal understanding that children, in most instances, cannot be held to the same standard as adults and therefore, children’s court or youth justice court as it is known in some states, is different.

Children’s court for one is a closed court that the general public cannot sit in on as children are one of the most vulnerable classes within society. All child defendants will be provided with public defenders to assist them legally.

The punishment for children is different to that of adults as they cannot be sent to an adult prison. The severe punishment, which is not awarded lightly is that of a youth detention center which in principle is focused more on rehabilitation than punishment.

Children, to a point, are not as aware of their actions as adults so instead of being punished, they need to be nurtured and taught about the consequences of their actions. The sentences imposed are designed to teach rather than ingrain criminal behaviour.

Other penalties that can be provided are community service, mandatory therapy, and other rehabilitative programs that can be completed outside a detention center.

What Sentences Are Common For Criminal Offending?

There are a number of sentences which you can receive if found guilty of a criminal offence. Sentencing is deemed to serve a few different purposes however they are all interlinked with a general deterrence factor.

Sentencing is meant to not only deter individuals from committing further offences but is meant to act as a community deterrence as well. The legislation incorporates maximum and minimum sentences to try and encourage good behaviour. It accepts that there can be mistakes made and that some leniency should be given in those circumstances.

Alternatively, it is understood that serious and often habitual offending must be punished as well and that serious punishments have a greater chance of deterrence. It is essentially a legislative and judgement call to make.

Below is a list of sentences you could receive;

  1. Suspended sentence;
  2. Community corrections order;
  3. Term of imprisonment;
  4. Monetary penalty;
  5. Loss of licence;
  6. etc.

It is possible to receive a combination of penalties depending on your level of offending, for example, a 3 year term of imprisonment with 2 years wholly suspended.

What Factors Need to Be Considered When Sentencing?

Appropriate sentencing is not an easy task and there are many factors that need to be taken into account. Judges consider both the evidence and the personal factors of the individual when considering what punishment to order. Personal factors relate to mitigating circumstances at the time of the offence as well as factors such as mental health, family considerations or intoxication.

Mental health for example is a particularly prevalent factor which features prominently within the courts. Mental health refers to a diagnosed or supported health condition which may affect a persons mental capacity and behaviour. It is particularly difficult to prove mental incapacity because it is a high threshold.

In many cases, mental incapacity may make a period of incarceration a challenge for a person because there is evidence to suggest that they would not mentally cope with that environment. In that regard, a period of time in an institution or medical ward may be warranted.

Family factors are another factor that can be taken into account but they need to be such that a punishment such as a term of incarceration would greatly affect the lives of another. This may be children for example who will have no choice but to enter the foster system if a term of imprisonment was ordered. The sentence imposed however still needs to be punitive and the court needs to decide what balance to give.


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