Work health and safety and the criminal law in Australia

This paper analyses recent Australian debates about the use of the criminal law in work health and safety regulation. It argues that these debates have to be seen in the context of the historical development of work health and safety regulation in the United Kingdom and Australia. The first part of the paper shows that, since the late 19th century, contraventions against the Australian work health and safety statutes have not been regarded as 'really criminal', and have largely been addressed by informal measures and, since the 1980s, by administrative sanctions. When prosecutions have taken place, work health and safety issues have been individualised and decontextualised, so that defendants have been able to reduce their culpability in the eyes of the court. Significant legal barriers have undermined the use of the crime of gross negligence manslaughter against corporations and individuals. The second part of the paper analyses recent debates about restructuring gross negligence manslaughter and bolstering the 'criminality' of offences under the work health and safety statutes. It argues that the latter debate has been constrained by the historical forces examined in the first part of the paper, and that the current position, embodied in the recently harmonised Work Health and Safety Acts, favours attempting to recriminalise the work health and safety legislation. The debate about reforming gross negligence manslaughter has stalled.

Profiling high-range speeding offenders : investigating criminal history, personal characteristics, traffic offences, and crash history

This paper reports profiling information for speeding offenders and is part of a larger project that assessed the deterrent effects of increased speeding penalties in Queensland, Australia, using a total of 84,456 speeding offences. The speeding offenders were classified into three groups based on the extent and severity of an index offence: once-only low-rang offenders; repeat high-range offenders; and other offenders. The three groups were then compared in terms of personal characteristics, traffic offences, crash history and criminal history. Results revealed a number of significant differences between repeat high-range offenders and those in the other two offender groups. Repeat high-range speeding offenders were more likely to be male, younger, hold a provisional and a motorcycle licence, to have committed a range of previous traffic offences, to have a significantly greater likelihood of crash involvement, and to have been involved in multiple-vehicle crashes than drivers in the other two offender types. Additionally, when a subset of offenders’ criminal histories were examined, results revealed that repeat high-range speeding offenders were also more likely to have committed a previous criminal offence compared to once only low-range and other offenders and that 55.2% of the repeat high-range offenders had a criminal history. They were also significantly more likely to have committed drug offences and offences against order than the once only low-range speeding offenders, and significantly more likely to have committed regulation offences than those in the other offenders group. Overall, the results indicate that speeding offenders are not an homogeneous group and that, therefore, more tailored and innovative sanctions should be considered and evaluated for high-range recidivist speeders because they are a high-risk road user group.

Modes of criminal justice, indigenous youth and social democracy

The political question of how the will of a community is to be democratically formed and adhered to, the question of social democracy, is normatively tied to the mode of criminal justice employed within that democratic public sphere. Liberal, republican, procedural and communitarian forms of democratic will-formation respectively reflect retributive,restorative, procedural and co-operative modes of criminal justice. After first elaborating these links through the critical response of republican and procedural theories of democracy to the liberal practice of democratic will-formation and its retributive mode of justice, our discussion considers the recent practice of restorative and procedural justice with respect to Indigenous youth; and this in the context of a severely diminished role for Indigenous justice agencies in the public sphere. In light of certain shortcomings in both the restorative and procedural modes of justice, and so too with republican and procedural understandings of the democratic public sphere, we turn to a discussion of procedural communitarianism, anchored as it is in Dewey’s notion of social co-operation. From here we attempt a brief formulation of what a socially co-operative mode of justice might consist of; a mode of justice where historically racial and economically coercive injustices are sufficiently recognised.

Criminal Justice Ethics : Cultivating the Moral Imagination

It is essential for those employed within the justice system to be able to competently and confidently work at the borders between ethics and the law. Criminal Justice Ethics offers a fresh new approach to considering ethical issues in a criminal justice context. Rather than simply offering a range of ethical dilemmas specific to various justice professionals, it provides extensive discussion of how individuals develop their 'moral imaginations' using ethical perspectives and practices, both as citizens of the world and as practitioners of justice. Starting from a consideration of the major ethical theories, this book sets the framework for an expansive discussion of ethics by moving from theory to consider the just society and the role of the justice professional within it. Each chapter provides detailed analysis of relevant ethical issues, and activities to engage students with the content, as well as review questions, which can be used for revision or examination. This book will help students to: • understand the various theoretical approaches to ethics, • apply these understandings to issues in society and the justice process, • assist in developing the ability to investigate, discuss, and analyse current ethical issues in criminal justice, • appreciate the diverse nature of ethical systems across cultures, • outline strategies for detecting and resolving ethical dilemmas. Rich with examples and ethical dilemmas from a broad range of contexts, this book's multicultural approach will appeal not only to criminal justice educators, but also to academics, students and practitioners approaching criminal justice from sociological, psychological or philosophical perspectives.

Criminal profiling

One of the more widely recognized and practiced subspecialities within forensic criminology is that of criminal profiling. It has a long history, as detailed in Turvey (2008a). It also boasts a small library of distinct literature, with different methods and subspecialities all its own. Criminal profiling is a practice that has seen increasing popular and media attention over the past several decades. It has been depicted in popular fiction such as films like Silence of the Lambs (1991) and television programs like Criminal Minds (2005– present). It has also been applied in a number of high profile cases, including the “Washington Snipers” (see Turvey and McGrath, 2005, for an extended discussion of profiling and the media in the D.C. Sniper case). As a result, students of criminology commonly express an interest in studying criminal profiling with a view to becoming profilers themselves.

Criminal profiling : behavioural consistency, the homology assumption and case linkage

Criminal profiling is an investigative tool used around the world to infer the personality and behavioural characteristics of an offender based on their crime. Case linkage, the process of determining discreet connections between crimes of the same offender, is a practice that falls under the general banner of criminal profiling and has been widely criticized. Two theories, behavioural consistency and the homology assumption, are examined and their impact on profiling in general and case linkage specifically is discussed...

Reducing recidivism by first time drink driving offenders

This research provides a detailed description of first time drink driving offenders at the time of their court appearance and at follow-up to examine the factors leading to subsequent drink driving. To develop models for behavioural change a novel theoretical application of the Health Action Process Approach was used to determine what enables some offenders to avoid future drink driving. Utilising self-report and official offence records in the follow-up of offenders enabled an in depth exploration of first offender characteristics and drink driving behaviour. The research demonstrates that first offenders are not a homogenous group in terms of their characteristics or the circumstances of the offence and will be used to develop tailored countermeasures for first offenders including online intervention programs.

‘Not a criminal in the classic sense': @DrRimmer on the sentencing of Jono Moylan #leardblockade #standwithjono

On July 25, 2014, Justice David Davies sentenced Jonathan Moylan at the Supreme Court of New South Wales for a breach of section 1041E (1) of the Corporations Act 2001 (Cth). The ruling is a careful and deliberate decision, showing equipoise. Justice Davies has a reputation for being a thoughtful and philosophical adjudicator. The judge convicted and sentenced Moylan to imprisonment for 1 year and 8 months. The judge ordered that Moylan be “immediately released upon giving security by way of recognisance in the sum of $1000 to be of good behaviour for a period of 2 years commencing today”.

Assessing specific deterrence effects of increased speeding penalties using four measures of recidivism

Traffic law enforcement sanctions can impact on road user behaviour through general and specific deterrence mechanisms. The manner in which specific deterrence can influence recidivist behaviour can be conceptualised in different ways. While any reduction in speeding will have road safety benefits, the ways in which a ‘reduction’ is determined deserves greater methodological attention and has implications for countermeasure evaluation more generally. The primary aim of this research was to assess the specific deterrent impact of penalty increases for speeding offences in Queensland, Australia, in 2003 on two cohorts of drivers detected for speeding prior to and after the penalty changes were investigated. Since the literature is relatively silent on how to assess recidivism in the speeding context, the secondary research aim was to contribute to the literature regarding ways to conceptualise and measure specific deterrence in the speeding context. We propose a novel way of operationalising four measures which reflect different ways in which a specific deterrence effect could be conceptualised: (1) the proportion of offenders who re-offended in the follow up period; (2) the overall frequency of re-offending in the follow up period; (3) the length of delay to re-offence among those who re-offended; and (4) the average number of re-offences during the follow up period among those who re-offended. Consistent with expectations, results suggested an absolute deterrent effect of penalty changes, as evidenced by significant reductions in the proportion of drivers who re-offended and the overall frequency of re-offending, although effect sizes were small. Contrary to expectations, however, there was no evidence of a marginal specific deterrent effect among those who re-offended, with a significant reduction in the length of time to re-offence and no significant change in the average number of offences committed. Additional exploratory analyses investigating potential influences of the severity of the index offence, offence history, and method of detection revealed mixed results. Access to additional data from various sources suggested that the main findings were not influenced by changes in speed enforcement activity, public awareness of penalty changes, or driving exposure during the study period. Study limitations and recommendations for future research are discussed with a view to promoting more extensive evaluations of penalty changes and better understanding of how such changes may impact on motorists’ perceptions of enforcement and sanctions, as well as on recidivist behaviour.

Criminal histories of crash and non-crash involved Queensland speeding offenders: Evidence supporting the idea that we drive as we live

Evidence increasingly suggests that our behaviour on the road mirrors our behaviour across other aspects of our life. The idea that we drive as we live, described by Tillman and Hobbs more than 65 years ago when examining off-road behaviours of taxi drivers (1949), is the focus of the current paper. As part of a larger study examining the impact of penalty changes on a large cohort of Queensland speeding offenders, criminal (lifetime) and crash history (10 year period) data for a sub-sample of 1000 offenders were obtained. Based on the ‘drive as we live’ maxim, it was hypothesised that crash-involved speeding offenders would be more likely to have a criminal history than non-crash involved offenders. Overall, only 30% of speeding offenders had a criminal history. However, crash-involved offenders were significantly more likely to have a criminal history (49.4%) than non-crash involved offenders (28.6%), supporting the hypothesis. Furthermore, those deemed ‘most at fault’ in a crash were the group most likely to have at least one criminal offence (52.2%). When compared to the non-crash involved offenders, those deemed ‘not most at fault’ in a crash were also more likely to have had at least one criminal offence (46.5%). Therefore, when compared to non-crash involved speeding offenders, those offenders involved in a crash were more likely to have been convicted of at least one criminal offence, irrespective of whether they were deemed ‘most at fault’ in that crash. Implications for traffic offender management and policing are discussed.

Criminal intent

The High Court recently heard submissions of counsel in Zaburoni v The Queen. This case concerns an appeal against conviction for transmitting a serious disease with intent under section 317(b) and (e) of the Queensland Criminal Code. It raises important issues about the meaning of intent and how intent can be proven in Queensland criminal offences. Since intent is an element of so many of the more serious crimes, it is surprising to see that the courts, both in England and Australia, continue to grapple with how best to define it. In murder, for example, the accused is potentially going to be locked up for a very long time, so it is essential that the courts and juries are very clear on what intent actually means, so that they can be confident in correctly finding that it was present on the facts of the case.

Fear, trust and Aborigines : The historical experience of state institutions and current encounters in the health system

Troubled dynamics between residents of an Aboriginal town in Queensland and the local health system were established during colonisation and consolidated during those periods of Australian history where the policies of 'protection' (segregation), integration and then assimilation held sway. The status of Aboriginal health is, in part, related to interactions between the residents' current and historical experiences of the health and criminal justice systems as together these agencies used medical and moral policing to legitimate dispossession, marginalisation, institutionalisation and control of the residents. The punitive regulations and ethnocentric strategies used by these institutions are within the living memory of many of the residents or in the published accounts of preceding generations. This paper explores current residents' memories and experiences.

The criminalisation of medical mistakes in Canada : a review

The issue of health professionals facing criminal charges of manslaughter or criminal negligence causing death or grievous bodily harm as a result of alleged negligence in their professional practice was thrown into stark relief by the recent acquittal of four physicians accused of mismanaging Canada’s blood system in the early 1980s. Stories like these, as well as international reports detailing an increase in the numbers of physicians being charged with (and in some cases convicted of) serious criminal offences as the result of alleged negligence in their professional practice, have resulted in some anxiety about the apparent increase in the incidence of such charges and their appropriateness in the healthcare context. Whilst research has focused on the incidence, nature and appropriateness of criminal charges against health professionals, particularly physicians, for alleged negligence in their professional practice in the United Kingdom, the United States, Japan, and New Zealand, the Canadian context has yet to be examined. This article examines the Canadian context and how the criminal law is used to regulate the negligent acts or omissions of a health care professional in the course of their professional practice. It also assesses the appropriateness of such use. It is important at this point to state that the analysis in this article does not focus on those, fortunately few, cases where a health professional has intentionally killed his or her patients but rather when patients’ deaths or grievous injuries were allegedly as a result of that health professional’s negligent acts or omissions when providing health services to that patient.