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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 99
As restored in the Legislative Council on 15 September 2004
South Australia
Statutes
Amendment and Repeal (Aggravated Offences) Bill 2003
A Bill For
An
Act to amend the Criminal Law Consolidation Act 1935 , the Criminal
Law (Sentencing) Act 1988, the Juries Act 1927, the Summary
Offences Act 1953 and the Summary Procedure
Act 1921; and to repeal the Kidnapping Act 1960.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Criminal
Law Consolidation Act 1935
4 Amendment of section 5—Interpretation
5 Insertion of section 5AA
5AA Aggravated offences
6 Amendment of section 19—Unlawful
threats
7 Amendment of section 19AA—Unlawful
stalking
8 Amendment of section 19A—Death and
injury arising from reckless driving etc
9 Substitution of heading to Part 3
Division 7
10 Substitution of sections 20 to 27
20 Assault
Division 7A—Causing physical
or mental harm
21 Harm
22 Conduct falling outside the ambit
of this Division
23 Causing serious harm
24 Causing harm
25 Alternative verdicts
11 Amendment of section 29—Acts
endangering life or creating risk of serious harm
12 Amendment of section 31—Possession of
object with intent to kill or cause serious harm
13 Substitution of Part 3 Division 9
Division 9—Kidnapping
39 Kidnapping
14 Repeal of Part 3 Division 10
15 Amendment of section 49—Unlawful
sexual intercourse
16 Substitution of section 56
56 Indecent assault
17 Amendment of section 59—Abduction of
male or female person
18 Amendment of section 64—Procuring
sexual intercourse
19 Amendment of section 137—Robbery
20 Amendment of section 139—Deception
21 Amendment of section 140—Dishonest dealings with documents
22 Amendment of section 169—Serious
criminal trespass—non-residential buildings
23 Amendment of section 170—Serious criminal trespass—places of residence
24 Amendment of section 170A—Criminal
trespass—places of residence
Part 3—Amendment of Criminal
Law (Sentencing) Act 1988
25 Amendment of section 20A—Interpretation
Part 4—Amendment of Juries
Act 1927
26 Amendment of section 7—Trial without
jury
Part 5—Repeal of Kidnapping
Act 1960
27 Repeal
Part 6—Amendment of Summary
Offences Act 1953
28 Substitution of section 7A
7A Obstructing or disturbing religious
services etc
Part 7—Amendment of Summary
Procedure Act 1921
29 Amendment of section 4—Interpretation
30 Amendment of
section 5—Classification of offences
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Statutes Amendment and Repeal
(Aggravated Offences) Act 2003.
This Act will come into operation on a day to be fixed by proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Criminal Law Consolidation Act 1935
4—Amendment of section 5—Interpretation
Section 5(1)—delete the definition of cattle
and substitute:
aggravated offence—where a provision differentiates between the penalty for
an aggravated offence and the penalty for a basic offence, the reference to an
aggravated offence is a reference to the offence in its aggravated form (see
section 5AA);
basic offence—where a provision differentiates between the penalty for an
aggravated offence and the penalty for a basic offence, the reference to a
basic offence is a reference to the offence in its non-aggravated form (see
section 5AA);
After section 5 insert:
5AA—Aggravated
offences
(1) An aggravated offence is an offence
committed in the following circumstances:
(a) the offender committed the offence in the course of
deliberately and systematically inflicting severe pain on the victim;
(b) the offender used, or threatened to use, an offensive weapon
to commit, or when committing, the offence;
(c) the offender committed the offence against a police officer,
prison officer or other law enforcement officer—
(i) knowing the victim
to be acting in the course of his or her official duty; or
(ii) in retribution for something the offender knows or believes
to have been done by the victim in the course of his or her official duty;
(d) the offender committed the offence—
(i) intending to
prevent or dissuade the victim from taking legal proceedings or from pursuing a
particular course in legal proceedings; or
(ii) in connection with the victim's conduct or future conduct
(as party, witness or in any other capacity) in legal proceedings; or
(iii) in retribution against the victim for taking legal
proceedings or for the victim's conduct (as party, witness or in any other
capacity) in legal proceedings;
(e) the offender committed the offence knowing that the victim
of the offence was, at the time of the offence, under the age of 12 years;
(f) the offender committed the offence knowing that the victim
of the offence was, at the time of the offence, over the age of 60 years;
(g) the offender committed the offence knowing that the victim
of the offence was—
(i) a spouse or former
spouse of the offender; or
(ii) a child of whom the offender, or a spouse or former spouse
of the offender, is the parent or guardian; or
(iii) a child who normally or regularly resides with the offender
or a spouse or former spouse of the offender;
(h) the offender committed the offence in company with one or
more other persons;
(i) the offender
abused a position of authority, or a position of trust, in committing the
offence;
(j) the offender committed the offence knowing that the victim
was, at the time of the offence, in a position of particular vulnerability
because of physical or mental disability;
(k) in the case of an offence against the person—
(i) the victim was, to
the knowledge of the offender, in a position of particular vulnerability at the
time of the offence because of the nature of his or her occupation or
employment; or
(ii) the
victim was, at the time of the offence, engaged in a prescribed occupation or
employment and the offender committed the offence knowing that the victim was
then engaged in an occupation or employment and knowing the nature of the
occupation or employment;
(l) the offender was, at the time of the offence, acting in
contravention of an injunction or other order of a court (made in the exercise
of either state or federal jurisdiction) and the offence lay within the range
of conduct that the injunction or order was designed to prevent.
(2) A
person is taken to know a particular fact if the person, knowing of the
possibility that it is true, is reckless as to whether it is true or not.
(3) If
a person is charged with an aggravated offence, the circumstances alleged to
aggravate the offence must be stated in the instrument of charge.
(4) If
a jury finds a person guilty of an aggravated offence, and two or more
aggravating factors are alleged in the instrument of charge, the jury must
state which of the aggravating factors it finds to have been established.
(5) In this section—
child means a person under 18 years of age;
spouse includes a de facto spouse.
(6) This
section does not prevent a court from taking into account, in the usual way,
the circumstances of and surrounding the commission of an offence for the
purpose of determining sentence.
Example—
6—Amendment of section 19—Unlawful threats
Section 19(1) and (2)—delete subsections
(1) and (2) and substitute:
(1) A person who—
(a) threatens, without lawful excuse, to kill or endanger the
life of another; and
(b) intends to arouse a fear that the threat will be, or is
likely to be, carried out, or is recklessly indifferent as to whether such a
fear is aroused,
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 12 years.
(2) A person who—
(a) threatens, without lawful excuse, to cause harm to the
person or property of another; and
(b) intends to arouse a fear that the threat will be, or is
likely to be, carried out, or is recklessly indifferent as to whether such a
fear is aroused,
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 5 years;
(b) for an aggravated offence—imprisonment for 7 years.
7—Amendment of section 19AA—Unlawful stalking
Section 19AA(2),
penalty provision—delete the penalty provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 3 years;
(b) for an aggravated offence—imprisonment for 5 years.
8—Amendment of section 19A—Death and injury arising from reckless driving etc
(1) Section 19A(4)(a)—delete
"grievous bodily" and substitute:
serious
(2) Section 19A(4)(b)—delete
"grievous bodily" and substitute:
serious
(3) Section 19A(4)(b)(i)—delete "4" and substitute:
5
(4) Section 19A(4)(b)(ii)—delete
"6" and substitute:
7
(5) Section 19A(4)(c)—delete
"2" and substitute:
5
(6) Section 19A(5)—delete
"grievous bodily" and substitute:
serious
(7) Section
19A(7)—delete "bodily"
(8) Section 19A(10)—after
the definition of consumption insert:
harm and serious harm have the
same meanings as in section 21;
9—Substitution of heading to Part 3 Division 7
Heading to Part 3 Division 7—delete the
heading and substitute:
Division 7—Assault
10—Substitution of sections 20 to 27
Sections 20 to 27—delete the sections and
substitute:
20—Assault
(1) A person commits an assault if the person,
without the consent of another person (the victim)—
(a) intentionally applies force (directly or indirectly) to the
victim; or
(b) intentionally makes physical contact (directly or
indirectly) with the victim, knowing that the victim might reasonably object to
the contact in the circumstances (whether or not the victim was at the time
aware of the contact); or
(c) threatens (by words or conduct) to apply force (directly or
indirectly) to the victim and there are reasonable grounds for the victim to
believe that—
(i) the person who
makes the threat is in a position to carry out the threat and intends to do so;
or
(ii) there is a real possibility that the person will carry out
the threat; or
(d) does an act of which the intended purpose is to apply force
(directly or indirectly) to the victim; or
(e) accosts or impedes another in a threatening manner.
(2) However,
conduct that lies within limits of what would be generally accepted in the
community as normal incidents of social interaction or community life cannot
amount to an assault.
(3) A person who commits an assault is guilty
of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 2 years;
(b) for an aggravated offence—imprisonment for 3 years.
(4) If
the offence is aggravated by the possession of an offensive weapon, and the
weapon was actually used to threaten the victim or in some other way as an
instrument for committing the offence, the maximum penalty is increased to 4
years.
Division 7A—Causing
physical or mental harm
21—Harm
In this Division—
cause—a person causes harm if the person's conduct is the sole
cause of the harm or substantially contributes to the harm;
If a victim suffers serious harm as a result of multiple acts of
harm and those acts occur in the course of the same incident, or together
constitute a single course of conduct, a person who commits any of the acts
causing harm is taken to cause serious harm even though the harm caused by the
act might not, if considered in isolation, amount to serious harm.
harm means physical or mental harm (whether
temporary or permanent);
lesser offence, in relation to an offence against this
Division, means—
(a) in relation to an aggravated offence—the basic offence or
some other offence against this Division for which a lesser maximum penalty is
prescribed;
(b) in any other case—some other offence against this Division
for which a lesser maximum penalty is prescribed;
mental harm means psychological harm and does not
include emotional reactions such as distress, grief, fear or anger unless they
result in psychological harm;
physical harm includes—
(a) unconsciousness;
(b) pain;
(c) disfigurement;
(d) infection with a disease;
recklessly—a person is reckless in causing harm or serious harm to
another if the person—
(a) is aware of a substantial risk that his or
her conduct could result in harm or serious harm (as the case requires); and
(b) engages in the conduct despite the risk and
without adequate justification;
serious harm means—
(a) harm that endangers, or is likely to endanger, a person's
life; or
(b) harm that consists of, or is likely to result in, loss of,
or serious and protracted impairment of, a part of the body or a physical or mental
function; or
(c) harm that consists of, or is likely to result in, serious
disfigurement.
22—Conduct falling outside the ambit of this Division
(1) This
Division does not apply to the conduct of a person who causes harm to another
if the victim lawfully consented to the act causing the harm.
(2) A
consent given on behalf of a person who is not of full age and capacity by a
parent or guardian will be taken to be the consent of the person for whom the
consent was given.
(3) A person may consent to harm (including
serious harm) if the nature of the harm and the purpose for which it is
inflicted fall within limits that are generally accepted in the community.
Examples—
(4) If
a defendant's conduct lies within the limits of what would be generally
accepted in the community as normal incidents of social interaction or
community life, this Division does not apply to the conduct unless it is
established that the defendant intended to cause harm.
(5) If the defendant's conduct caused only
mental harm, this Division does not apply to the defendant's conduct unless—
(a) the
defendant's conduct gave rise to a situation in which the victim's life or
physical safety was endangered and the mental harm arose out of that situation;
or
(b) the defendant's primary purpose was to cause such harm.
Examples—
In both the above examples, it is not sufficient for the
prosecution to prove that the defendant acted intentionally knowing that harm
would inevitably, probably or possibly result from his or her act. It would be
necessary for the prosecution to establish that the defendant wanted to cause
harm and that desire was the sole or a significant motivation for the defendant's
conduct.
23—Causing serious harm
(1) A person who causes serious harm to
another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 20 years;
(b) for an aggravated offence—imprisonment for 25 years.
(2) If,
however, the victim in a particular case suffers such serious harm that a
penalty exceeding the maximum prescribed in subsection (1) is warranted,
the court may, on application by the Director of Public Prosecutions, impose a
penalty exceeding the prescribed maximum.
(3) A person who causes serious harm to
another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 19 years.
(4) A person who causes serious harm to
another, and is criminally negligent in doing so, is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(5) A person (the defendant)
whose conduct causes serious harm to another is criminally negligent in doing
so if—
(a) a reasonable person in the defendant's position would have
been aware of a substantial risk that the conduct could result in serious harm;
and
(b) the conduct fell so far short of the standard of care a
reasonable person in the defendant's position would have exercised that the
conduct should not be treated merely as a civil wrong but as a criminal offence
of the degree of seriousness of an offence against subsection (3).
24—Causing harm
(1) A person who causes harm to another,
intending to cause harm, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 13 years.
(2) A person who causes harm to another, and is
reckless in doing so, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 5 years;
(b) for an aggravated offence—imprisonment for 7 years.
25—Alternative
verdicts
If —
(a) a jury is not satisfied beyond reasonable doubt that a
charge of an offence against this Division has been established; but
(b) the Judge has instructed the jury that it is reasonably open
to the jury on the evidence to find the defendant guilty of a specified lesser
offence or any one of a number of specified lesser offences; and
(c) the jury is satisfied beyond reasonable doubt that the
specified lesser offence, or a particular one of the specified lesser offences,
has been established,
the jury may return a verdict that the defendant is not guilty
of the offence charged but is guilty of the lesser offence.
11—Amendment of section 29—Acts endangering life or creating risk of serious harm
(1) Section 29(1)—delete "shall be guilty
of an indictable offence and liable to be imprisoned for a term not exceeding
15 years." and substitute:
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 18 years.
(2) Section 29(2)(a)—delete
"grievous bodily" and substitute:
serious
(3) Section 29(2)—delete "shall be guilty
of an indictable offence and liable to be imprisoned for a term not exceeding
10 years." and substitute:
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 12 years.
(4) Section
29(3)(a)—delete "the person of"
(5) Section 29(3)—delete "shall be guilty
of an indictable offence and liable to be imprisoned for a term not exceeding 5
years." and substitute:
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 5 years;
(b) for an aggravated offence—imprisonment for 7 years.
12—Amendment of section 31—Possession of object with intent to kill or cause serious harm
(1) Section 31(1)(b)—delete
"grievous bodily" and substitute:
serious
(2) Section
31(2)—delete "the person of"
13—Substitution of Part 3 Division 9
Part 3 Division 9—delete Division 9 and
substitute:
Division 9—Kidnapping
39—Kidnapping
(1) A person who takes or detains another
person, without the other person's consent—
(a) with the intention of holding the other person to ransom or
as a hostage; or
(b) with the intention of committing an indictable offence
against the other person or a third person,
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 20 years;
(b) for an aggravated offence—imprisonment for 25 years.
(2) A consent to the taking or detention
is to be ignored in the following cases—
(a) if the person apparently giving the consent is a child or
mentally incapable of understanding the significance of the consent; or
(b) if the consent was obtained by duress or deception.
(3) A person who wrongfully takes or sends a
child out of the jurisdiction is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 19 years.
(4) For the purposes of subsection (3), a
person acts wrongfully if—
(a) the person acts in the knowledge that a person who has the
lawful custody of the child (either alone or jointly with someone else) does
not consent to the child being taken or sent out of the jurisdiction; and
Note—
As a general rule, the parents of a child have joint custody of
the child (see Guardianship of Infants Act 1940, section 4).
(b) there is no judicial or statutory authority for the person's
act.
(5) In this section—
child means a person under the age of 18 years;
detain—detention is not limited to forcible restraint but extends
to any means by which a person gets another to remain in a particular place or
with a particular person or persons;
take—a
person takes another if the person compels, entices or persuades the other to
accompany him or her or a third person.
14—Repeal of Part 3 Division 10
Part 3 Division 10—delete Division 10
15—Amendment of section 49—Unlawful sexual intercourse
(1) Section 49(3)—delete "shall be guilty
of an offence and liable to be imprisoned for a term not exceeding seven
years." and substitute:
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2) Section 49(5)—delete "shall be guilty
of an offence and liable to be imprisoned for a term not exceeding seven
years." and substitute:
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(3) Section
49(6)—delete "indictable"
(4) Section 49(6), penalty provision—delete the
penalty provision and substitute:
Maximum penalty: Imprisonment for 10 years.
Section 56—delete the section and
substitute:
56—Indecent
assault
(1) A person who indecently assaults another is
guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 8 years;
(b) for an aggravated offence—imprisonment for 10 years.
(2) If
the victim of the offence was at the time of the offence under the age of 12
years, the offence is an aggravated offence and it is unnecessary for the
prosecution to establish that the defendant knew of, or was reckless as to, the
aggravating factor.
17—Amendment of section 59—Abduction of male or female person
Section 59—delete "shall be guilty of
an offence and liable to be imprisoned for a term not exceeding fourteen
years." and substitute:
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 14 years;
(b) for an aggravated offence—imprisonment for 18 years.
18—Amendment of section 64—Procuring sexual intercourse
Section 64—delete "shall be guilty of
an offence and liable to be imprisoned for a term not exceeding seven
years." and substitute:
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 7 years;
(b) for an aggravated offence—imprisonment for 10 years.
19—Amendment of section 137—Robbery
(1) Section 137(1), penalty provision—delete
the penalty provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for life.
(2) Section
137(2)—delete the subsection
(3) Section
137(3), example—delete "expressed in subsection (2)(a)"
and substitute "that, where robbery is committed jointly, each participant
in the offence is guilty of aggravated robbery"
20—Amendment of section 139—Deception
Section 139, penalty provision—delete the
penalty provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 15 years.
21—Amendment of section 140—Dishonest dealings with documents
Section 140(4), penalty provision—delete
the penalty provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 15 years.
22—Amendment of section 169—Serious criminal trespass—non-residential buildings
(1) Section 169(1), penalty provision—delete
the penalty provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 20 years.
(2) Section
169(2)—delete the subsection
23—Amendment of section 170—Serious criminal trespass—places of residence
(1) Section 170(1), penalty provision—delete
the penalty provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for life.
(2) Section 170(2)—delete subsection (2) and
substitute:
(2) A person who commits a serious criminal
trespass in a place of residence is guilty of an aggravated offence if—
(a) any of the factors that generally give rise to aggravation
of an offence are applicable;1 or
(b) another person is lawfully present in the place of residence
when the offence is committed and the offender knows of the other's presence or
is reckless about whether anyone is in the place.
Note—
24—Amendment of section 170A—Criminal trespass—places of residence
Section 170A(1),
penalty provision—delete the penalty provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 3 years;
(b) for an aggravated offence—imprisonment for 5 years.
Part 3—Amendment of Criminal Law (Sentencing)
Act 1988
25—Amendment of section 20A—Interpretation
Section 20A(1),
definition of serious offence, (b)(ii)—delete "robbery with
violence" and substitute:
aggravated robbery
Part 4—Amendment of Juries Act 1927
26—Amendment of section 7—Trial without jury
Section 7(4)—delete subsection (4) and
substitute:
(4) If
a criminal trial proceeds without a jury under this section, the judge may make
any decision that could have been made by a jury and such a decision will, for
all purposes, have the same effect as a verdict of a jury.
Part 6—Amendment of Summary Offences Act 1953
Section 7A—delete the section and
substitute:
7A—Obstructing
or disturbing religious services etc
(1) A person who intentionally—
(a) obstructs or disturbs—
(i) a religious
service; or
(ii) a wedding or funeral (whether secular or religious); or
(b) obstructs
or disturbs persons proceeding to or from a religious service, wedding or
funeral in a way that is calculated to be offensive and is related in some way
to their attendance, or intention to attend, the religious service, wedding or
funeral,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) In this section—
religion means any philosophy or system of belief
that is generally recognised in the Australian community as being of a
religious nature;
religious service means a lawful assembly of the adherents
of any religion for the purpose of prayer or any other form of religious
observance.
Part 7—Amendment of Summary Procedure Act 1921
29—Amendment of section 4—Interpretation
Section 4(1), definition of offence
of violence, (b)—delete "injury" wherever occurring and
substitute in each case:
harm
30—Amendment of section 5—Classification of offences
Section 5(3)(a)(iii)(B)—delete
subsubparagraph (B) and substitute:
(B) an offence against section 24(2) of the Criminal Law Consolidation Act 1935 (recklessly causing harm to another);