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Crimes Amendment (Identity Crime)
Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill which are--
· to amend the Crimes Act 1958 to create offences in
relation to identity crime; and
· to amend the Sentencing Act 1991 to provide for the
issue of certificates to victims of identity crime; and
· to amend the Children, Youth and Families Act 2005
and the Sentencing Act 1991 to make technical
amendments in relation to sentencing procedure.
Clause 2 provides that the provisions in the Bill come into operation on a
day or days to be proclaimed or, if they are not proclaimed, on
1 October 2009.
PART 2--AMENDMENT OF CRIMES ACT 1958
Clause 3 inserts a new Division 2AA into Part 1 of the Crimes Act 1958
to deal with identity crime.
New section 192A provides broad definitions of identification
documentation and identification information.
New section 192B creates a new offence of making, using or
supplying identification information. "Making" is intended to
cover original creation and manufacture, as well as reproduction
of information. The prosecution must prove that the person was
aware that, or aware of a substantial risk that, the information is
identification information, and that he or she intended to use or
supply the information to commit, or facilitate the commission
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of, an indictable offence. The offence is punishable by level 6
imprisonment (5 years maximum).
New section 192C creates a new offence of possessing
identification information. Like section 192B, it must be proven
that the person was aware that, or aware of a substantial risk that,
the information is identification information, and that he or she
intended to use the information to commit or facilitate the
commission of an indictable offence. The offence is punishable
by a maximum term of three years imprisonment.
New sections 192B and 192C do not apply where a person
makes et cetera, or possesses, their own identification
information, even if there is intention to commit an indictable
offence. Although this may constitute criminal conduct in some
circumstances, it does not come within the scope of identity
crime.
It is not a defence to charges under sections 192B or 192C that
the person to whom the identification information relates
consented to its use or possession. Therefore, if person A enables
person B to commit identity crime pretending to be person A,
person A may still be guilty of identity crime.
New section 192D creates a new offence of possessing
equipment capable of making etc identification documentation.
The prosecution must prove that the person intended to use
(or intended another person to use) the equipment to make, use,
supply or retain identification documentation, and that he or she
intended to use such documentation to commit, or facilitate the
commission of an indictable offence. "Retain" is preferable to
"possess" in this context to cover equipment used to store or
retain identification information. The offence is punishable by
a maximum term of three years imprisonment.
While a wide range of equipment could make et cetera such
documentation, including scanners, copiers and computers, the
offence is confined by the requirement for the prosecution to
prove intention to use the equipment to make et cetera
identification documentation and to use the documentation to
commit an indictable offence.
New section 192E provides that it is not an offence to attempt
to commit an offence against sections 192B to 192D. This is
because the new offences are already preparatory offences.
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Clause 4 inserts new section 426 into the Crimes Act 1958.
The new section provides that a person charged with an offence
against section 192B (making etc identification information) may
be found guilty of the lesser offence in section 192C (possession
of identification information), if appropriate.
PART 3--AMENDMENT OF THE SENTENCING ACT 1991
Clause 5 amends section 6AAA(4) of the Sentencing Act 1991.
That section currently provides that if a court reduces a sentence
because the accused pleads guilty, it must state the sentence that
would have been imposed but for the guilty plea and record that
statement in the records of the court.
Under the amended section, the court will still be required to
record the statement, but will be able to do so in whichever way
the court considers most appropriate.
Clause 6 inserts new Part 4A into the Sentencing Act 1991.
The new Part allows a court that has found a person guilty of an
identity crime offence to issue a certificate to a victim of the
offence.
New section 89E defines identification information, identity
crime offence and victim.
New section 89F provides that the court may issue a certificate to
a person who is a victim of the identity crime offence, either on
its own motion, or on application by the prosecution, the victim
or another person on the victim's behalf, in certain circumstances.
New section 89G provides that a certificate must set out the
offence to which the certificate relates and the name of the
victim, and may set out any other matters considered by the court
to be relevant.
New section 89H provides that the court is not bound by the rules
of evidence and may inform itself in any way it sees fit in a
proceeding for an identity crime certificate. The section also
provides that the court may require the person who prosecuted
the identity crime offence to which a certificate application
relates, to appear at the hearing of the certificate application to
assist the court.
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Clause 7 provides that--
· the amendment to section 6AAA(4) of the Sentencing
Act 1991 applies to a sentence imposed on or after the
amended provision commences, regardless of when the
sentencing hearing commenced; and
· an application for a certificate under new Part 4A of the
Sentencing Act 1991 can be made even if the identity
crime offence was committed before the
commencement of the Part.
PART 4--AMENDMENT OF THE CHILDREN, YOUTH AND
FAMILIES ACT 2005
Clause 8 amends section 362A(3) of the Children, Youth and Families
Act 2005, which is the equivalent provision to section 6AAA(4)
of the Sentencing Act 1991. Please refer to clause 5.
Clause 9 provides that the amendment to section 362A of the Children,
Youth and Families Act 2005 applies to a sentence imposed on
or after the amended provision commences, regardless of when
the sentencing hearing commenced.
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