Tuesday, 15 August 2017

High Court under the microscope - The Eddie Mabo Case

Mabo v Queensland
This was a 1992 Australian High Court decision that was the first time in Australian history when the native title for the Australian Aboriginal People was recognized. Eddie Mabo brought the case to the high court on behalf of the Meriam People who are from the Mer Islands. This is in the Torres Strait area. The proceedings commenced in in 1982 after the Queensland Amendment Act was initiated.
The act worked to establish a system of land grants by trust for aboriginals and Torres strait islands. However, this system was inept and the mer islanders were unhappy.
The high court eventually received the case and was asked to consider whether indigenous Australians had a just and legal claim to their lands which could overturn the notion of terra nullius. Further the request to the court asserted that it was time for the common law to be ‘put to rights’
The success of the case was difficult to determine and it was largely regarded by the legal field as a mere test. Testing the court is very common as there are multiple complexities that run through the fabric of legal decisions. Issues such as;
·        Political values
·        Social concern
·        Financial constraints
·        Corporation concerns
 The High Court held that the doctrine of terra nullius was void. This doctrine had worked to import all English laws into the Australian country at the time of English colonization. This was done because the indigenous people were originally thought to be ‘uncivilized’ which gave the colonizers the right to claim the land as belonging to the British people.
The court held that the rules of reception that applied were not those that were originally called for but that the existing customary laws which were present at the time of settlement took priority over the imported English law. However, land rights could be extinguished by crown title. Any native title claims which were inconsistent with native title would be extinguished and the crown land would survive.
The decision was made by seven judges in five judgements of the high court;
Ø  Justice Brennan
Ø  Justice Deane
Ø  Justice Gaudron
Ø  Justice Toohey
Ø  Justice Dawson
Ø  Chief Justice Mason
Ø  Justice McHugh
There were several common threads of agreement between the five judgements. The basis of these threads of agreement is that the native title existed due to the nature of the indigenous use and connection to the land and that determined the nature and content of native title. It also rejected the concept of terra nullius and attempted to provide repudiation to those grounds that had lost the benefit of their lands.
The consequences of this decision are most commonly felt by corporations and land developers as they see the most of the native title claims. There is a difficultly in negotiating with many aboriginal groups who claim native title over key development areas. This difficulty is generally solved with skilled negotiators but can take some time.


Tuesday, 8 August 2017

Making and taking risks at university


University is an awesome time to learn and study but it is also the first time that many of us are striking out on our own and becoming used to being independent. Some students revert into their shells and choose to stick within the expected guidelines of university life. That can work to your advantage as you won’t find much challenge and will get high grades. We all know that academic achievement is a major positive for anyone in a university situation – however it won’t impress employers if you’ve never tried anything challenging. Additionally, university is one of the few times when you’re encouraged to take different learning opportunities.

These opportunities don’t have to be as big as taking a difference course or going overseas, in fact sometimes it’s better if they aren’t. These are all anticipated and expected opportunities. Below are some ideas for was you can introduce yourself to minor risks and get used to the idea that things can go wrong – and you are more than capable of dealing with them!   
Even just a book club can be
a great place to start!


1.      Go to a new activity group

Many freshmen sign up to lots of different clubs at the beginning of first year – but as the year carries on and the stress level increases we drop out. That’s because learning new things is hard and the criticism that comes on along with that can discourage anyone from continuing the struggle of learning something new.

However, in second year when you’re a bit more used to the challenges of university life try to take up a new group. Don’t’ worry if it’s not particularly strenuous -- one of the best groups I ever joined was a university brunch group! All it took was a Sunday morning in a restaurant enjoying some delicious breakfast group.

It can be a risk because too much time spent in groups can take away from your studies. Moreover, it can alter your schedule and leave you open to mismanaging your time. However, if managed well they can make a great talking point for future employment interviews and potentially create unique networking opportunities.

2.      Take up a new hobby

Like a social group hobbies are very popular in the new year and begin to wane as the realities of life and stress get in the way. Realistically, hobbies can represent a bit of a risk to a university student – they are highly enjoyable and can really take away from your studies. Additionally, those with perfectionist tendencies will probably struggle to take up something new.

If you can let go of this fear and explore something different you can totally open yourself up to a whole new variety of talents and advantages. In your future workplace, you may be surprised how miscellaneous knowledge can help add that extra sparkle to your output. While you’re in university it’s worth thinking how a hobby can work into your five-year plan to make sure that you have a competitive edge in the market.

3.      Try a different social group

Social groups or cliques are often satirized in the media as bitchy groups of people. This much is sort of true, exclusivity is the hallmark of any group friendship group – otherwise it’s just a mob. However, cross social groups can provide an extra boost to your widening perspective. Try
socializing with people from diverse cultures, age groups and disciplinary studies.

Additionally, the information that you gain from these new perspectives can be translated into your academic career. Providing extra information or criticism, when done properly, can boost your grade up a percentile.

4.      Work experience in a different industry area


Similar to learning new perspectives through others learning the practices of another industry can provide you with an advantage both in your academic pursuits and to a future employer. For example, a law student working in a retail area or an accounting area can have a broader and applicable knowledge when working in tax law or corporate law. The advantages to broader perspectives and knowledge are many. While they may take time from your studies or be an imperfect venture into something unknown the payoff is far greater than the risk!

Tuesday, 25 July 2017

THE COURT UNDER THE MICROSCOPE; BM V R [2017] NSWCCA 133

THE COURT UNDER THE MICROSCOPE
On 15 Feb 2016 the DPP presented to the court an indictment against the charged on four counts.
1.      Indecent assault
2.      Multiple counts of indecency
3.      Sexual intercourse (with an underaged person)
The victim was aged between 6 and 9 years, and was referred to throughout the case as MY. Often in cases of sexual assault against minors, or where the information may negatively impact one or more of the persons involved names are changed to conceal their identity. This is done for public policy purposes, and serves no other purpose.
The accused was the partner of the victim’s aunt. In this case his name was also concealed because if the accused was identified it may reveal the identity of the victim. In other circumstances only the victim’s name would be hidden.
On the charges of indecency there was no dispute that the conduct occurred and that it resulted in the relevant offence.  These acts occurred just between the accused and the victim often in a secluded area. The key issue is that while there was little contestation there was little corroborating evidence. Part from some ‘brief and uncontroversial evidence’ delivered by a police officer at trial there were only three people in total who gave evidence at the trial.
That was the complainant, applicant and the aunt. The aunt reported seeing her niece appear ‘mortified’ at one stage but denied awareness that anything sinister was occurring. At the original trial the evidence was over within two weeks and the jury convicted on all four counts.
The appeal was filed on three grounds on the 25th of January 2017. The first two grounds of appeal were based on the condition that the jury was misdirected during the original judge’s summary. However these grounds require that the defence has leave to appeal. This is because under rule four of the Criminal Appeal Rules (NSW) unless the counsel takes issue as the directions are giving they must be done to appeal on these grounds. The leave was not given on the condition that the complainant could not show that the verdicts were unreasonable and could not be supported with regard to the evidence. They also were not based on a question of law alone, which prevented the complainant from appealing the decision on those grounds alone.  
The misdirection was based on a misstatement by the judge that was easily clarified by reference to prior statements and a hand out that they were provided with prior to the misstatement. It was determined by the judges of this case that the reading of the whole of the summing up would leave the jury in no doubt as to the burden of proof borne by the prosecution.
The second alleged misdirection was given by the judge in regards to the evidence from the aunt. He said;
“Members of the jury, as you heard in the submissions from counsel for the parties, the complainant has given evidence of what she said the accused did to her at certain times. The accused has testified that he did not do so. The only evidence that he did those things comes from the complainant. Where the prosecution has to prove a case beyond reasonable doubt and the only evidence on that topic comes from the complainant, then obviously you will examine her evidence very carefully and decide whether you can be satisfied of its reliability beyond reasonable doubt on the essential elements of one or all of the charges as you consider them separately. So if the proof has to be beyond reasonable doubt, and there is only [the complainant’s] evidence about a particular event occurring, as a matter of logic you have to be satisfied beyond reasonable doubt that her evidence is reliable when she is giving testimony about the essential elements of the charges.”
This evidence is a fairly standard warning, there are many similar situations like this that also arise in a court. Therefore, the complainant alleges that it should have either been repeated or had it pointed out that it should be directed specifically to count for as that was the only place where the aunt’s evidence applied.
This complaint became further irrelevant in paragraph 25 of the case where the judges indicate that the judge had also give a ‘Markuleski direction.’ This direction reminds the jury that that charges are to be considered separately. It also reminds the jury the conclusion of unreliability of one witness does not discount the possibility of a guilty conclusion on other counts.

These directions are often applied in sexual assault cases when the evidence is highly subjective, uncorroborated or emotional. These cases are emotionally charged and can leave many witnesses feeling uncomfortable and unsure. There are carefully designed judicial processes and direction that ensure no matter how emotionally uncomfortable the evidence is the jury will be able to objectively and fairly apply the evidence to determine guilt beyond a reasonable doubt. 

Tuesday, 4 July 2017

Studying on the run

Studying On The Run

Good god, working and being busy is the worst thing. I love to sit down, set my desk up nicely and have some relaxed study time. There’s no greater indulgence than studying at a slow pace enjoying a cup of coffee and a pastry – but we all know that’s rarely the case. Rather you’ll always find yourself stuck running between academic work, busy court dates and social outings.
so much to do!!

On tumblr I’ve seen a few quick and dirty tips to get you through on the hyper busy times – but really those aren’t very sustainable. The best way to manage studying on the run is to prepare for the siege. Some of the most important ways to prepare is to trim off what isn’t necessary.

Removing the unnecessary;

When your life is busy it’s important to grab five minutes to go over what you really have on. It’s best to do this in that little bit of R&R time you get whenever. While it may be a bummer to lose some of your relax time to work I can guarantee you’ll be getting more chill time in the future.
Firstly, write out everything you do – even the little things like grocery shopping, taking out the trash and vacuuming. These tasks all eat up your time and you need to factor them in.
Some good ways to list out what you’re doing include;
-        Making a general dot point list

-        Using a weekly schedule to map out the time spent on each item

For this you can group together larger tasks like ‘household cleaning’, ‘week preparation’ and place them approximately where you’d do it. The idea is that you can see how much time is spent where.
Also factor in travel time, and preparation time. Things like packing your bag, finding the food and driving to work will add up. For example, if you have a five minute walk to the bus, a twenty minute bus drive and then a three minute walk to the office when you get off the bus, you spend 280 minutes per working week just travelling to and from work.'

Don't forget to save yourself
some time for treats!
Another positive method to try is to use a monthly planner to figure out where your appointments are and then combine it with your weekly general planner to see where you might lose extra time. Calculate the total amount of time you spend doing each activity. Just fill out the general plan and pair it with the weekly schedule to make sure that you cover all your bases.

Now that you know how you chisel away each minute of the day run through the list and figure out where you overspend your time. Think of it like a budget, you can only spend a certain amount of time in each area of your life. This apportionment will be different for everyone depending on your job, study, family and individual needs. However, my preferred break down looks like this;

(Worked out via, portions per day in a 24 hr cycle – using double amount of estimated time to allow for preparation and travel)
Activity
Time/Portion
Administration
1.8%
Exercise and Eating
8.3%
Sleep
33%
Relaxing
16.6%
Work
20%
Study
20.8%

These are basic categories of what I need to do in a day to ensure that I’m maintaining a balanced lifestyle. Using my schedule I often find that I’m overspending time in work or study areas and cutting back on sleep. This causes greater stress – and actually means that you’re working hard but less effectively.

Use your itemized dot point list above to assess which activities you’re doing in each category. When you’re struggling for time any activity that doesn’t contribute towards a ‘specific end goal’, needs to be cut.


End goals are things like;

1.      Maintain all relevant administrative records up to workable standard
This means don’t throw anything out you’ll need later and have it to a standard so that if you need it you could use it. It doesn’t have to be perfect but useable.
2.      Achieve goal 1
3.      Achieve goal 2
4.      Maintain work required not to fall behind in other areas

These are prioritized for a reason. While it is optimal not to fall behind in other areas, when you’re still learning to manage your time you may struggle to maintain number four, but always make sure that number one is followed – otherwise you can end up in a real tangle.

Keeping yourself on task

It goes without saying that even if you schedule your day, if you fail to follow it nothing is going to be resolved. It’s important then that whatever task you’re focusing on – you follow it entirely. Don’t let go of the task until you’re complete – because lots of half-finished tasks are an absolute nightmare.

To make sure that you stay on task – use your administration time wisely. Plan out larger tasks into twenty minute chunks and take a break after every 20 minutes. An example of this break down can be found here;

Additionally, the best way to make sure that you stay on task is to minimize your distractions. Sometimes when you’re really struggling to work you actually need to change up the kind of distractions that you are allowing yourself to have. It is inevitable in this environment that you will always have to combat some distractions.

However, we can use them to our advantage; some days you will work much better in total silence and a few lights on while other ways the hustle and bustle of a café will provide you with the perfect amount of background activity to plow through a huge pile of work. Try to have an armory of different places that you can go to work and be prepared to change things up to suit your needs better.
Streamline your activities

As discussed in a previous post it’s important to have a good admin system so that you can move quickly through each task. I like to set up the routes of the day and have my bag packed to suit each of these activities.

For me, I also like to use time markers throughout the day to ensure that I have to move on. For example at nine I know that I have to be out of bed and at my desk for either study or work. Some days this means that I have that extra bit of flexibility to set up my work space and find the perfect environment, then by 12 I have to have finished up my first activity for the day.

Additionally, give yourself a clipboard or an ipad where you can work on your lap. When I’m exhausted or struggling to maintain focus it’s perfect to be able to give myself 30 minutes or so to curl up on my bed and just work at a bit of a slower pace until I feel recharged.

The most important part if you’re easily distracted is to put blocks up in place so that you can’t be distracted for longer than necessary. I am most easily distracted before appointments. Appointments often mess up my day and when I’m out of the routine I spend hours floundering about trying to figure out what exactly I should be doing. I can’t settle on one task and I’m always thinking about when I should leave. Knowing this I leave all of my small admin or progress tasks to the morning before an appointment so I don’t have to settle in and focus on one thing for too long.


Sunday, 2 July 2017

High Court Under the Microscope; Donald Trump and the Refugee Ban

HIGH COURT UNDER THE MICROSCOPE
Donald Trump v International Refugee Assistance Project
These cases are about an executive order made by the United States to alter how foreign nationals enter the country. The key elements of this were to suspend entry from six designated countries for 90 days. This was challenged on two grounds, certiorari – which is ‘a writ or order by which a high court reviews a case tried in a lower court’ – and applications to stay the preliminary injunctions. These were granted.
The executive order presented a policy against countries representing a heightened terrorist risk;
·        Iran
·        Iraq
·        Libya
·        Somalia
·        Sudan
·        Syria
·        Yemen
The officials were told that they must review how adequate it would be to restrict visas from these areas for ninety days. The court was also alerted to an alteration to the United States Refugee Admissions Program which reduced the number of refugees able to enter the country for 120 days.  
A second executive order addressed early concerns made by the Assistance project and requires that the secretary of homeland security conducts a global review to determine which foreign governments provide adequate information about nationals applying for a USA visa. Any countries found to be deficient would be given 50 days to alter their practices. These counties would be required to impose additional procedures as necessary to ensure that individuals seeking admission as refugees do not pose a threat to national security.
Finally – and perhaps most controversially- the order determined that the entry of more than 50,000 refugees in the fiscal year of 2017 would be detrimental to the interest of the USA.
There were several responses to this order but the establishment clause of the first amendment was the most successful. It claimed that this act was not motivated by concerns of national security but islamophobia. In the first instance, most of the court ruled that the primary purpose of clause 2(c) – preventing entry of certain migrants was based on religious fears. This violates the first amendment.
This was further supported by the test that a reasonable person knowing all the claims made against the migration of Muslims into America by Donald trump would conclude that this policy was religiously motivated. Therefore, the court upheld the injunction which prevented the enforcement of s2(c) against foreign nationals seeking to enter the country.
On June 12, a request for a certiorari was entered. In doing so a new issue was added to the cases which is that the courts had not altered the date at which the effect of the act would be moot because 90 days would be over. In response to that issue Donald Trump issued a memorandum determining that ‘the date on which the injunctions in these cases are lifted or stayed with respect to that provision’ – meaning that the provision would continue until otherwise extinguished [Direction of National Intelligence (June 14, 2017).
The injunctions were barred against 2(c) for any person who had no connection with the United States through a relationship or other entity. This means that any married person, child or person connected to other legal entity can still enter the country. However, this is not intended to exclusively determine the rights of the parties but merely to provide temporary equitable relief to both parties. It was done in the overall public interest [University of Tex. V Camenisch 451 U.S. 390, 395 (1981)]. This decision was based on the reason that ‘an unadmitted and nonresident alien…has no constitutional right of entry to this country’. Given that ‘the interest in preserving national security is an urgent objective of the highest order’ it would be inappropriate to prevent the government from pursuing that objective [Holdver v Humanitarian Law Project, 561 U.S. 1, 28 (2010)].
Effectively this ruling acknowledges the delicate balance that the government must walk between pleasing the morals of the public and acknowledging the dangers of the modern world. Whether the order is truly religiously motivated is difficult to infer given the context of global terrorism – and despite the claims of Donald trump against Islam it is difficult to truly draw issue given the lack of explicit mention of Islam. It does beg the question if this order is purely religiously motivated, combined with the brash nature of the current president – why not just prevent the entry of all Muslims if that was the true intention of the order?
Some claim that Trump is merely following the prior policy of President Obama who first identified the countries on the list. It is true that his predecessor did initiate the list and Obama emphasized that it was a part of a continued focus on the threat of foreign fighters. It should also be noted that the act targets countries that have been reviewed and identified as ‘troublesome travel areas’ which means that they are unsafe for American citizens to travel to. While there is some opposition to this counter argument claiming that it was merely the travel to these areas by US citizens that was worried about not the influx of migrants – if US citizens can’t travel to a dangerous country – there must be a concern about the opposite.
The issue is far more complex than some policy makers realize, growing concerns about citizen welfare and greater fear growing in European countries, it’s natural for any leader to want to recognize these concerns.


Saturday, 22 April 2017

How I prepare for the perfect study day


I know a lot of you are new to the studyblr community, which is absolutely exciting! It’s great to see so many new people joining and the community growing every day. When you first get started it’s hard to break of habits and remembering and learning how to make productive studying a daily habit can be a challenge. One of the easiest ways to form a habit is to make a positive association with the action.

This is why addictions to things like sugar, nicotine and fat are so easy to create. These types of chemicals form a positive rush in the brain that makes us feel good. Humans are motivated to maximize rewards and minimize consequences, so they’ll repeat behaviors that bring rewards. That means you must associate studying with a reward.

At first glance you may think that there is an automatic association with studying and rewards, however this reward can be delayed. Additionally, you have no control over that reward. While you may study hard and work hard a lot of your results are down to the performance on the day or the correct interpretation of a question. That leaves a lot of wriggle room for disappointment – as sad as that may be. What that means it that you need to provide yourself with a little reward system that will allow you to build a positive reward system surrounding your study.

Additionally, we need to minimize the exhaustion that studying brings. When you first start out your studying, begin with a habit of three hours of ‘active’ study daily. You’d be surprised just how exhaustive it first is when you begin to do this daily. Once you’ve achieved this for a week you can consider doing more than three hours, but before that limit yourself to this amount of time.

Some parameters of studying that you need to consider when reading this article;

-        Study does not refer to completion of assignments

-        Study may include homework

-        Study should not be passive

-        You know your body and mind best and this article is to be taken as a guide not a rule book

My full study day routine

I begin the night before by;

Ø  Preparing a list of the subjects I need to study
Ø  Marking the textbook chapters involved

I also pack my bag the night before so that I can grab it and go.

Backpack Checklist
1.      Stationary
·        Highlighters
·        Pens
·        Pencil
·        Ruler
·        Eraser
2.      Sticky notes
3.      Water bottle
4.      Laptop and phone charger
5.      Planner
6.      Notebooks
7.      Study guides
8.      Printables

I also like to prep a little lunch box for me to take. This is because going out to buy lunch can get expensive and if you have food allergies like me it can be very time consuming. Additionally, if you’re a bit of a grouchy riser it might be an idea to prep some tea or coffee on your bench. Just put out the coffee jar or tea bags next to your mug so that you can sleepily pull yourself together.
I like to pin up my list on my door or pinboard so that I see it first thing in the morning. This helps me to remember why I have to get up and get dressed. It is also a visual reminder of how busy you are – and stops you wasting time in the morning!

Now set your alarm for six o’clock and let’s go!

When I wake up in the morning I make sure to treat myself well. I’m not a very happy morning person, so it’s important that I get my coffee first thing! However, to make sure we have a healthy start I like to mix some apple cider vinegar in some water and have a few gulps before I start on my coffee.

.
I get really dry skin during the day, especially when I’m working in the library and the air conditioner dries out your skin. While keeping hydrated is a good way to prevent any discomfort that may come from this issue, it is also a good idea to use a facial cream.

At the moment, my favorite at the moment is ottergenics daydream facial cream, it’s very easy to get on Amazon. I don’t usually stick to one brand, but I’ve really fallen in love with this cream, especially because I suffer from bad dry skin. It’s a little different to normal face creams because you get to control just how watery it is. This is because it comes in a concentrated form with 0% water which you then can mix with water to make it spreadable.  I like to mix it with lotion or foundation instead of water because I prefer that texture better.

It makes a beautiful smelling cream that helps me not to feel dried out and I get to spend the rest of the day with beautifully soft skin that doesn’t leave me feeling tired and drained. And after eight hours with my face in a law textbook – that’s pretty impressive! Better yet the product is entirely natural and isn't filled with chemicals. It's a cream that's highly versatile that I'd recommend anyone incorporates into their daily routine.

Then I try and pull my hair out of my face because no one likes to deal with hair in your eyes when you’re struggling through a textbook or a theory.

I’d recommend going on pintrest to find some sweet library outfits you can wear to go studying. I find that the usual sweatpants and shirt can get pretty monotonous. It’s always a good plan to have a few different comfortable outfits that you can wear which you really feel comfortable and pretty in.

Hitting the library

Once you’re dressed and feeling suitably luxurious you’ll be in the right mood to study. I made sure to highlight to you that you need to make sure you’re in the right headspace because if you try to study when you’re not feeling good your productivity will drop. I can guarantee then any study you do will go in one ear – out the other-  and you’ll give up on maintaining this habit.
If you’re not sure what to actually /do/ while you’re studying look at these top five study activities to get an idea for how to structure your day.

However, the real challenge will be keeping yourself motivated and productive. It’s not a simple matter of sticking your head in a book and keep going until your brain shuts down. You need to make sure that every second is used wisely. There are several ways that you can do this but I think that the best method is using a visual tracker.


To create one of these, use the articles above to plan out the tasks that need to be done. Then list them along a piece of gridded paper. It doesn’t matter what order they are in you can jump around as you need. Using the boxes that you’ve drawn as a guide write in a step by step guide for what you need to do to finish that task;

Now throughout your day, every 25 minutes you need to stop and color in just how far along you are in completing that task.

You can use a pencil to show yourself just how much you need to get done to be at an appropriate stage by the end of the day.


This is best coupled with a time indicator scale which gives you a brief overview of how you plan to spend your time. Although it should be left a little flexible – and don’t forget to schedule yourself in some 5 minute breaks every 25 minutes.


Once you’re done – STOP!
Once you start to get into the habit of studying you can struggle to stop. It’s very important that you exercise self-discipline both ways. You need to firm with yourself when you need to begin studying, and when you’re ready to stop studying, put your books away and allow your brain to rest. A well-rested brain absorbs far more than a strung out one! And don’t forget the recommended amount of sleep a night is 8 hours and 8 and a half for teenagers. 



Note Ottergenics; I received this product in exchange for review from Giveaway Service website. Regardless, I only recommend products or services I use personally and believe will be good for my readers.


Lulu Hensman

Wednesday, 19 April 2017

Australian Court Series ; R V Adams



This case is interesting as it is a case taking place in 2017 for a murder in 1983. Unlike some criminal acts murder has no statute of limitation – or expiry date, after which the prosecution can no longer prosecute. The maximum penalty for murder, all around Australia, is Life imprisonment, so that is the penalty that many heinous crimes are given. However, as this is a murder from 1983, the court had to apply the law from the time. This was that the imprisonment for life was a mandatory sentence. At [4] Justice Button acknowledge that ‘the maximum penalty as it existed in 1983…speaks for itself with regard to the gravity with which the unlawful taking of the life of a fellow human being…was and is assessed by parliament and the community that it represents.’

The case facts, as recounted, are that in 1983 the offender offered the deceased a lift home. The deceased was drunk and had believed the false representations of the man that he was a police officer. He then drove her a short distance away, and possibly during intercourse – the facts are not agreed upon – he crushed her windpipe, killing the deceased. Her body was then stored in the boot and the offender took steps to clean the evidence. There was evidence adduced at trial that the offender had a history of strangling sexual partners who refused his advances.

This case is interesting as the judge was not required to determine guilt but relative seriousness of the offence. There were two opposing facts of the case that made this determination difficult the first was that the case was more serious because the offender had invaded the woman’s sexual autonomy and the murder took place during an act that was obviously dangerous to human life given her own level of intoxication.

The second fact that goes in favor of the offender is that the murder was unintended. There is a general acceptance that premeditated, assessed and planned murder is of greater seriousness than a murder occurring in the spur of the moment.

That being said at [16] the judge determined that while I appreciate the force of what defence counsel has said about the breadth of the concept of felony murder, this offence against a young woman in the prime of her life, simply for the sexual gratification of the offender, cannot be assessed as anything other than extremely grave.’

When sentencing the judge took into account the following;

-        Plead not guilty, resulting in no utilitarian discount
-        No mitigating factors
-        Has not shown remorse
-        Has not accepted responsibility
-        Previous rapes of similar description
-        His age is now 64
-        He has not been convicted of anything since 1974

Around the world legal courts have also become live to the issue that the considerable delays between getting arraigned, trial and sentence amount to some degree in delay of justice. In Canada it was determined that that a four year delay would be sufficient to constitute a delay of justice. However, this has not yet been determined in Australia.; R v Jordan.  

In this case it was discussed from [29-31] how the delay of justice proposition may apply to the offender. While he acknowledged that there was a strong between the murder and the charges, it was not by process of the law or deliberate delay of the authorities rather, and to use his honors own words, the matter is not to be equated with a case in which the charging of a person is delayed [or] he or she exercises his or her right to silence. Instead the delay in the resolution of the matter is to a large degree, attributable to the offender. [31]. It was determined that the delay should reflect to a limited degree the sentence.

Further to the determination of sentencing, it became at issue how the mandatory sentence of life imprisonment was to be treated. While it is no longer mandatory, it has come to be accepted in the court that the law does not operate retrospectively and the law that is in place at the time of the offence is that law that must apply to the offence; R v  Magnuson. However, it was hardly a year later that the law was changed. Meaning that the mood of the times when the crime was committed was not significantly different. Moreover, his honor acknowledged that it was general practice for crimes of a similar nature to serve 11 to 10 years before being released on parole. This inferenced a standard of treatment that the offender may have appealed to.

Then a similar case, not committed by the offender, R v Fleming was raised by defence as a potential sentencing guide. It accounted for an imprisonment of 21 years with a non-parole period of 16 years.
It was also accepted that the sentence must reflect the time in custody spent prior to sentencing.

Final determination factors

There was a lack of
-        Intention to kill
-        Multiple murders
-        Prior murders
-        Not a contract killing

-        Act of heinous cruelty, indignity, torture or mutilation
This are important to note that they are not present because they are standard elements in todays courts, where the ultimate sentence is imposed. It was for that reason that his honor was not satisfied that a determinate sentence would fail to reflect the gravity of what the offender has done; s61 of the Crimes (Sentencing Procedure) Act. [54].

In Australia, because it is the adversarial system victims aren’t often invited to the stand to explain how things have impacted them personally. That being said the courts invite victim impact statements to be submitted to the judge. This is something that the court may consider when determining the sentence that is given to an offender. They are not compulsory and only discuss how the crime has impacted the

 individual;
-        Physically
-        Emotionally
-        Financially
-        Socially


His honor acknowledged that the two sisters who submitted impact statements spoke movingly of the pain that has been endured for decades as a result of the disappearance of the deceased...that pain had been made worse by not knowing precisely how she died. Many years ago, their parents went to their graves without any resolution of the mystery loss of their daughter.’

It was not made clear how exactly this added to the sentence, but it is inferenced that due to the serious impact the offender’s actions had upon the family of the deceased, his actions were deemed to be more serious than an act that had a lesser impact on the family.

Final Sentence

The offender was convicted of murder with a non-parole period of fifteen years and a parole period of 5 years, following the fifteen. This means that for fifteen years following this sentence the offender is ineligible to apply for parole. After that he is eligible to be released.

You can see that he has followed the guidance of R v Fleming and the general structure of sentences in which the non-parole period must be three quarters of the head sentence. 



Lulu Hensman