In essence criminal law theory is based on the notion of personal responsibility; people are punished for their crimes because they could have chosen not to commit them. The choice to commit a crime is known as mens rea or the subjective mental states, which accompany the actus reus, that is, the act itself. For a detailed analysis of criminal law theory, see Boldt RC, ‘The Construction of Responsibility in the Criminal Law’ (1992) 140 University of Pennsylvania LR 2245.
The Committee which drafted the Model Criminal Code for Australia, in its final report on General Principles, identified four possible fault elements for criminal offences: intention, knowledge, recklessness and negligence. The Committee stated that the fault elements are set out in descending order of culpability. So intention is the most serious fault element and negligence is the least serious. This is now contained in the Criminal Code Act 1995 (Cth), s 5.4.
This hierarchy of fault for crimes reflects the traditional model of criminal culpability. The general position in the common law is that serious offences require proof of mens rea: intention, knowledge or recklessness. Exceptionally, negligence may suffice for culpability. However, it does not follow that all serious crimes must have mens rea. Some crimes which satisfy the condition of negligence can be very serious: manslaughter is the prime example. In the criminal law objective fault standards, like negligence, are considered controversial because they depart from norm of mens rea.
Criminal negligence can be contrasted with the three mens rea states. Unlike intention, knowledge or recklessness, criminal negligence is not concerned with the defendant’s actual state of mind. Rather culpability is determined objectively, by referring to what the reasonable person in the position of the defendant would have done and known. So the magistrate or the jury will be judging the defendant’s conduct according to the standards of the hypothetical reasonable person.
Leaving aside the legal mumbo-jumbo, the point is that we all have to take responsibility for our actions. This being said, the level of responsibility we are required to accept at law, may be mitigated in light of personal details and circumstances at the time the offence was committed. It should be noted that, mitigated does not equal exonerated.
The principle of mitigation is summed up succinctly by Brennan J in Neal v The Queen (1982) 149 CLR 305 at 326:
The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice.
The negative exception to this principle, in Australia, naturally applies to Indigenous Australians. Section 91 of the Northern Territory National Emergency Response Act (Cth) provides that a court in determining sentence “must not take into account any form of customary law or cultural practice as a reason for … lessening the seriousness of the criminal behaviour to which the offence relates”. This conflicts with the principle of mitigation.
The point of this commentary is not to discuss the racially discriminatory nature of Australia’s legal system but, to look at a new defence to criminal conduct that has been articulated in the ACT this week. The defence is that of: Public Servant!
In 2007 the Australian Public Service Commission released its APS Values the prologue to which reads:
The APS Values provide the real basis and integrating element of the Service, its professionalism, its integrity and its impartial and responsive service to the government of the day.
In fact, dot point four of the values reads, “has the highest ethical standards”; nothing less than you would expect from a professional bureaucracy in a democratic country such as Australia.
Indeed the Public Service Act 1999 contains the following elements which I think are of particular relevance to this commentary:
–PS Reg 13(1) –Honesty and Integrity
–PS Reg 13(2) –Act with care and diligence
–PS Reg 13(3) –Treat everyone with respect and courtesy, and without harassment
–PS Reg 13(4) –Comply with Australian Laws
Compliance with Australian laws
PS Reg 13(4) –Comply with Australian Laws
I would interpret PS Reg 13(4) rather broadly, to include complying with Australian laws in one’s personal as well as one’s work life. Indeed are we not all required to comply with Australia’s laws in both our personal and professional lives? Well, if you happen to be a Public Servant who has committed a crime in the ACT, you are relieved by the courts from the necessity to comply with any laws. That is unless you happen to be an Indigenous Australian.
The Canberra Times reported on 16 June, 2011 under the banner DFAT executive pleads guilty to DUI that:
A top public servant at the Department of Foreign Affairs and Trade has pleaded guilty to high-range drink-driving but may avoid a conviction.
Jon Nicolson Merrill, 43, of Barton, recorded an alcohol reading of 0.15, at the lower end of the top drink-driving bracket, when he was pulled over by police in April.
In the ACT Magistrates Court yesterday he was given a five-month adjournment to take a sober-driving course.
Magistrate Peter Dingwall further noted that, “… people in Merrill’s area of work might find it difficult later in their careers if they had a criminal conviction.”
This decision was followed by a report in the Canberra Times on 17 June, 2011 under the banner Public servant with de-tagging device escapes conviction.
A public servant who developed a ”crazy idea” to steal women’s clothes from Myer’s has avoided a conviction after her lawyer told a court she was battling depression and a fixation with ”sick building syndrome”.
Deborah Anne Soxsmith, 52, used a device she bought on the internet to remove security tags from five jackets and tops in a changing room at the Myer department store in Tuggeranong.
She slipped the clothes into her handbag but was caught by a security guard as she tried to leave the store.
In the ACT Magistrates Court yesterday Soxsmith pleaded guilty to one charge of attempted theft.
The court heard the Kambah woman had tried to steal cardigans, tops and a jacket worth $426.81 from the department store in January.
Soxsmith told police she bought the security tag device off the internet for $100 the week before.
In noting that Soxsmith had been a Public Servant for 34 years Magistrate Maria Doogan proceeded without conviction, dismissed the charge and placed Soxsmith on a good-behaviour order for 12 months.
What we have here is that in the space of two days two ACT based public servants have avoided receiving criminal convictions for crimes they committed against Australian Laws because criminal convictions could hinder their future career prospects.
Well isn’t that the case for anyone convicted of a criminal offence? Why should public servants be treated more favourably than other Australians in the criminal justice system, just because they are public servants?
Interesting questions, let’s take NSW as a reasonable comparison. On 8 September 2004 the NSW Court of Criminal Appeal (NSWCCA) handed down a guideline judgment for the offence of “Driving with a HRPCA”. The NSWCCA stated that an ‘ordinary case’ is one where:
- You drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
- You were detected by random breath test;
- You have prior good character;
- You have nil, or a minor, traffic record;
- Your licence was suspended on detection;
- You pleaded guilty;
- There is little or no risk of re-offending; or
- You would be significantly inconvenienced by loss of licence.
The ‘ordinary case’ is now used by sentencing Courts as a template in determining whether your matter is similar or more or less serious. The NSWCCA went on to state, that in an ‘ordinary case’, an order under section 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate (this is where the Court has found the offence proven without recording a conviction). A conviction cannot be avoided only because the offender has attended or will attend a driver’s education or awareness course. Further, the automatic disqualification period (3 years) will be appropriate unless there is a good reason to reduce the period of disqualification.
The most likely outcome in NSW for a HRPCA offence is much more onerous than the mooted outcome for a public servant in the ACT.
In the second case the defender purchased a security tag device off the internet for $100 the week before she committed the crime for which she was charged. Surely this must prove intention which is the most serious fault element under the Criminal Code Act 1995 (Cth), s 5.4. Yet, the defence of public servant warrants a slap on the wrist with no conviction recorded.
In my post Three months for a dollar, I discussed the case of an unemployed and disadvantaged Aboriginal lady who was charged by the NSW police for obtaining a financial advantage by deception, namely the proceeds of the sale of a $1.00 raffle ticket. For the princely sum of $1.00 this disadvantaged, Aboriginal lady, was sentenced to three months in prison. Yes, that’s right, three months for $1.00, while a public servant, who will undoubtedly be on a good wage, charged with stealing $426.81 worth of merchandise from Myer doesn’t even have a conviction recorded against her name. Now that’s what I call equality!
Racial discrimination within the office of the ACT Director of Public Prosecutions
While I’m not suggesting that either the police prosecutor or the ACT Department of Public Prosecutions did anything wrong or untoward in either of the cases I have mentioned above, it is worth noting the difference in attitude in the ACT criminal justice system between Indigenous Australian defenders and public servant defenders.
One of the issues I have been highlighting on Blak and Black is that of a particularly nasty and racist comment made by an ACT Department of Public Prosecutions, prosecutor about an Indigenous Australian defender:
“You don’t have to worry about your little boong mate Marky suing you for fitting him up. When I’m finished with him he’ll be in the gutter where he belongs with all his other boong mates. You will be able to piss on him as you step over him on your way to work”
Hardly meets the requirement of PS Reg 13(4). It also makes for an interesting comparison when one considers the outcomes attained by public servant defenders in the ACT criminal justice system versus those attained by Indigenous Australian defenders. Is it any wonder that the criminal justice statistics in this country are so skewed in the direction of indigenous criminality?