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2. 3. 3 4. 5. / - 5 6. 6 7. / ( 7 8. FB 9. 9 10. 10 11. 12. 13. Herbert L. Packer in The Limits of the Criminal Sanction 6 1. 2. 13 14. 3. 4. 14 15. 5. 6. 15 16. 16 17. common law civil law common law actus reus mens rea 17 18. civil law 19. 19 20. 20 21. 1 2 21 22. Actus reus Mens rea 22 23. Actus reus Act - commission, omission or possession Voluntariness 23 24. Mens rea Latin guilty mind Actus non facit reum nisi mens sit rea The act does not make a personal guilty unless the mind is also guilty 24 25. Mode of culpability England Direct intention Oblique intention Knowingly Recklessness Criminal negligence 25 26. USA. Purposefully Knowingly Recklessly Negligently Strict liability 26 27. 27 28. 28 29. 29 30. free will 30 31. 31 32. 32 33. ( ) 33 34. 34 35. 2 defence actus reus 35 36. Defence to liability Insanity Automatism 36 37. Intoxication Mistake of Fact Necessity 37 38. Lawful capacity of office Legal duty Self defence Duress 38 39. 39 40. 40 41. .. 2550 41 42. 42 43. 43 44. 44 45. 45 46. () 46 47. 2 47 48. 48 49. 49 50. 50 51. 51 52. ( ) 52 53. () 53 54. 54 55. 55 56. 62 56 57. 57 58. 58 59. () - ? ?? 59 60. 60 61. -. 64 61 62. 62 63. 63 64. 65. 66. 67. 68. 69. 70. ? 71. () () 71 72. ( ) - 72 73. ( ) 73 74. 3 - - 74 75. 75 76. () 76 77. 77 78. 78 79. 84 85 87 89 79 80. 80 81. 81 82. 82 83. 83 84. 7 85. 86. 86 87. 87 88. 89. sentencing process 89 90. ( community punishment) 90 91. 2 ( Retributive) ( utilitarian) 91 92. 92 93. / 93 94. 3. 4. ( victimology) 5. (Restorative justice) 94 95. 95 96. Model Penal Code 4 3 felony, misdemeanor, petty misdemeanor 4 violation 96 97. 97 98. Summary offences usually less serious offences such as traffic offences and petty crime. In NSW, summary offences have a maximum penalty of two years imprisonment 98 99. Section 80 of the Constitution provides: The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State, the trial shall be held at such place or places as the parliament prescribes 99 100. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. 100 101. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury's deliberative processes, the jury's isolation ... from external influences and the insistence upon its function of determining the particular charge according to the evidence combine ... to offer some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the 101 102. Indictable offences require a trial by judge and jury. If you are charged with an indictable offence and choose to plead not guilty, you are guaranteed the right to a trial by jury 102 103. Hybrid offences These are indictable offences that allow the accused to choose whether to have the matter dealt with summarily. That is, the accused can choose not to have a trial by jury and have the matter dealt with by a judge alone 103 104. The length of the prison term depends upon multiple factors including the severity and type of the crime, state and/or federal sentencing guidelines, the convicted's criminal record, and the personal discretion of the judge 104 105. Kentucky The U.S. Sentencing Guidelines prescribe a discount of about one-third for most defendants who accept responsibility and plead guilty; further discounts are available to some defendants through fact bargaining, substantial assistance, and so on. Federal court statistics from 2003 show that the average sentence given for offenses resolved by guilty plea was 54.7 months, while the average sentence for offenses resolved by trial was 153.7 months 105 106. a probation officer prepare a presentence investigation report to inform the court as to the defendant's characteristics, including his criminal record 106 107. the conduct associated with the offense (the offense conduct, which produces the offense level) the defendant's criminal history (the criminal history category) 43 6 107 108. There are four sentencing zones: A, B, C, and D. Zone A consists of sentencing ranges of 06 months. Zone B consists of sentencing ranges above Zone A but with a maximum penalty of no more than 12 months. Zone C consists of sentencing ranges above Zone B but whose minimum penalty is less than 12 months. Zone D consists of sentencing ranges above Zone C 108 109. Sentencing Guideline Council New Sentences: Criminal Justice Act 2003 2005 See www. Sentencing_guidelines.gov.uk 1 12 12 intermittent custody order 109 110. Secretary of State ( SG, 2.1.11-2.1.14) 110 111. SG (SG, 2.2.14) 111 112. 12 ( SG 2.2.15-2.2.20) 112 113. SG 113 114. 114 115. / 18 115 116. 10 / 5 / 3 1-10 , 1-5 / 6 -10 / 6 -5 116 117. 3 -10 / 3 -5 5 / 3 / 2 / 1 / 6 180 117 118. = + 5-360 118 119. ( 6 ) 119 120. 7 120 121. / / - 15 2 1oo,000 2,500,000 100,000 121 122. 122 123. Restorative Justice 123 124. 124 125. 125 126. 126 127. Wagga Wagga 127 128. 128 129. 129 130. 130 130 131. 131 131 132. 132 (Victim-Offender Mediation - VOM) 1970 VOM, Victim Offender Reconciliation Programmes (VORP), Conferencing Attorney-General 132 133. 133 133 134. 134 134 135. RJ 135