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Crimes Amendment (Gross Violence
Offences) Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
Introduction
The Crimes Amendment (Gross Violence Offences) Bill 2012 (the Bill)
introduces new offences under the Crimes Act 1958 for persons who
intentionally or recklessly cause serious injury in circumstances of gross
violence. A statutory minimum sentence under the Sentencing Act 1991
applies to adult offenders who commit a gross violence offence unless a
special reason exists.
The Bill ensures that adult offenders who commit a gross violence offence
will receive a sentence of imprisonment with a minimum non-parole period
of at least four years, unless one of the prescribed special reasons applies.
If special reasons are found to exist, the court has full discretion to impose
any other available sentence.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are--
to amend the Crimes Act 1958--
to substitute definitions of injury and serious
injury;
to insert new offences of causing serious injury
intentionally or recklessly in circumstances of
gross violence; and
571224 1 BILL LA INTRODUCTION 11/12/2012
to amend the Sentencing Act 1991 to provide for
sentences with a minimum non-parole period for
adult offenders found guilty of those offences.
Clause 2 states that the Act will commence by proclamation. The default
commencement date is 30 January 2014.
PART 2--AMENDMENT OF THE CRIMES ACT 1958
Clause 3 amends section 15 of the Crimes Act 1958 to replace the current
definitions of injury and serious injury with new definitions.
Clause 3 also inserts a number of new definitions in section 15.
The new definitions of harm to mental health and physical
injury are related to the definition of injury. The new definitions
of firearm, imitation firearm and offensive weapon are related to
the new offences of causing serious injury in circumstances of
gross violence introduced by clause 4 of the Bill.
The new definitions of injury and serious injury apply to
offences in Subdivision (4) of Division 1 of Part I of the
Crimes Act 1958 dealing with non-fatal offences against the
person, and any other offences that refer to the definitions of
injury or serious injury in Subdivision (4), such as dangerous
driving causing injury in section 319 of the Crimes Act 1958.
These new definitions also apply to the new offences of causing
serious injury in circumstances of gross violence.
The new definition of injury is that injury means "physical
injury" or "harm to mental health", whether temporary or
permanent. Both of these expressions are further defined.
Physical injury includes unconsciousness, disfigurement,
substantial pain, infection with a disease and an impairment of
bodily function. This new definition clarifies the existing
definition of injury by specifying that disfigurement and
infection with a disease may constitute injuries for the purposes
of non-fatal offences against the person in the Crimes Act 1958.
The other changes from the current definition of injury are that
an impairment of bodily function need not be "substantial" to
constitute an injury, and that pain must be "substantial" to qualify
as an injury.
The new definition of harm to mental health replaces the
current outdated reference to "hysteria" in the definition of
injury. Harm to mental health includes psychological harm but
does not include an emotional reaction such as distress, grief, fear
2
or anger unless it results in psychological harm. "Psychological
harm" includes psychological disorders such as post-traumatic
stress disorder or depression. This reflects the current position
under the Crimes Act 1958.
The new definition of serious injury is an injury (including the
cumulative effect of more than one injury) that endangers life
or is substantial and protracted. This replaces the current
reference to a serious injury including "a combination of
injuries". The new definition raises the threshold for "serious
injury". Under the new definition, an injury need not be
permanent to be considered "serious". A broken jaw or a broken
leg may constitute a "serious injury" under this definition.
A very short-term life-endangering injury would also constitute a
"serious injury". However the new definition requires more than
the combination of two relatively minor injuries, such as minor
abrasions or bruising. The combination of injuries in the cases of
R v Welsh & Flynn [1987] VicSC 451 (cuts, a swollen inner lip,
bruising of both eyes, bruising to the left forearm and a broken
tooth) and R v Ferrari [2002] VSCA 186 (two black eyes with
grazes around the top of the head and face) would not constitute a
"serious injury" under the new definition.
The new definition of serious injury inserted by clause 3 of the
Bill also includes the destruction of the foetus of a pregnant
woman, other than in the course of a medical procedure in
accordance with the Abortion Law Reform Act 2008.
This replicates paragraph (b) of the current definition of serious
injury.
Clause 4 amends the Crimes Act 1958 to introduce two new indictable
offences of causing serious injury against another person
committed in circumstances of gross violence.
The clause inserts the new indictable offences of intentionally
causing serious injury in circumstances of gross violence and
recklessly causing serious injury in circumstances of gross
violence in new sections 15A and 15B of the Crimes Act 1958,
respectively (gross violence offences).
These offences cannot be heard and determined summarily under
Part 3.1 of Chapter 3 of the Criminal Procedure Act 2009.
With respect to child offenders, a gross violence offence is an
indictable offence which can be heard and determined summarily
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in accordance with sections 356 and 516 of the Children, Youth
and Families Act 2005.
New section 15A introduces the new offence of causing serious
injury intentionally in circumstances of gross violence, without
lawful excuse. The maximum penalty for the offence is level 3
imprisonment (20 years maximum). The new offence has the
same maximum penalty as the offence of causing serious injury
intentionally (section 16 of the Crimes Act 1958).
New section 15B introduces the new offence of causing serious
injury recklessly in circumstances of gross violence, without
lawful excuse. The maximum penalty for the offence is level 4
imprisonment (15 years maximum). The new offence has the
same maximum penalty as the offence of causing serious injury
recklessly (section 17 of the Crimes Act 1958).
The new gross violence offences are intended to be a subset of
the serious injury offences category under Subdivision (4) of
Division 1 of Part I of the Crimes Act 1958. The new offences
identify circumstances of offending that involve a particularly
high level of harm and culpability. Adult offenders who are
found guilty of one of the new gross violence offences are liable
to be sentenced to a statutory minimum sentence of a term of
imprisonment with a non-parole period of at least four years.
There may be serious injury cases that involve a high level of
harm and culpability but do not occur in the prescribed
circumstances of gross violence. These cases will continue to be
dealt with under the existing causing serious injury offences.
Elements of the new gross violence offences
Under new section 15A, at the time the serious injury was
caused, the offender must have intended to cause a serious injury.
Under new section 15B, at the time the serious injury was caused,
the offender must have been reckless as to whether his or her
conduct would cause a serious injury. The new offences use the
elements of the existing offences of causing serious injury
intentionally or recklessly under sections 16 and 17 of the
Crimes Act 1958. The additional element under the new
offences in new section 15A and 15B of that Act is that the
serious injury was caused in circumstances of gross violence.
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New sections 15A(2) and 15B(2) of the Crimes Act 1958 each
set out six circumstances of gross violence. Only one
circumstance must be proven.
Planned conduct
The first circumstance of gross violence under new
sections 15A(2)(a) and 15B(2)(a) of the Crimes Act 1958 is
conduct that was planned in advance. This can be distinguished
from intent formed moments in advance of the offending
behaviour.
The prosecution must prove the offender planned in advance to
engage in conduct, and at the time of planning--
the offender intended that the planned conduct would
cause a serious injury; or
the offender was reckless as to whether or not the
planned conduct would cause a serious injury; or
a reasonable person would have foreseen that the
planned conduct would be likely to result in a serious
injury.
The prosecution must prove that the offender had a particular
state of mind at the time of planning to engage in the conduct and
had a particular state of mind at the time of engaging in the
conduct. The two states of mind occur at different points in time
and do not need to be the same. For example, the offence in new
section 15A (causing serious injury intentionally in
circumstances of gross violence) may be satisfied if--
the offender planned in advance to engage in conduct
and at that time was reckless as to whether or not the
planned conduct would cause a serious injury; and
at the time the serious injury was caused, the offender
intended to cause a serious injury.
Group offending
The second and third circumstances of gross violence under new
sections 15A(2)(b) and (c) and 15B(2)(b) and (c) of the Crimes
Act 1958 target group behaviour.
New sections 15A(2)(b) and 15B(2)(b) state that where an
offender causes serious injury in company with two or more
other persons, it will be a circumstance of gross violence.
5
New sections 15A(2)(c) and 15B(2)(c) capture offenders who
caused serious injury pursuant to a joint criminal enterprise with
two or more other persons. The Bill follows the recent decision
in Likiardopoulos v The Queen [2012] HCA 37 (14 September
2012) that acting in concert and joint criminal enterprise are the
same form of criminal liability.
Planned conduct involving a weapon
The fourth circumstance under new sections 15A(2)(d)
and 15B(2)(d) of the Crimes Act 1958 targets offenders who
have planned in advance to have and use a weapon, and then in
fact use that weapon to cause serious injury to a victim.
Consistent with new sections 15A(2)(a) and 15B(2)(a), the phrase
"planned in advance" in this circumstance is intended to capture
pre-planning to have and use the weapon. The offender's plan to
have and use a weapon does not need to involve planning to
cause a serious injury.
Clause 3 of the Bill applies the existing definitions in the Crimes
Act 1958 of firearm, imitation firearm and offensive weapon to
this gross violence circumstance. These terms are intended to
have the same meaning as existing offences under the Crimes
Act 1958.
Incapacitated victims
The fifth and sixth circumstances of gross violence in new
sections 15A(2)(e) and (f) and 15B(2)(e) and (f) of the Crimes
Act 1958 address situations where the victim is incapacitated.
The Bill does not define the term "incapacitation". Rather the
term bears its ordinary and natural meaning and is intended to be
interpreted on a case by case basis. On its ordinary and natural
meaning, incapacitation may be interpreted to encompass a range
of states from a person being conscious but unable to defend
themselves through to unconsciousness.
The fifth circumstance of gross violence situation is where the
offender has continued to cause injury after the victim is
incapacitated. For example, the offender may have attacked the
victim who has fallen to the ground unconscious, and then
continued to kick the victim. The sixth circumstance of gross
violence is a situation where the offender caused serious injury to
a person while the person is incapacitated. For example, by
attacking a person in a wheelchair.
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Whilst the infliction of a serious injury is an element of the
offence, the timing of the serious injury is not relevant.
The offender may have caused a serious injury before the victim
was incapacitated, and then after the victim was incapacitated
continued to cause injury (of any degree). Alternatively, the
offender may have incapacitated the victim, and then caused a
serious injury.
The prosecution is not required to prove that the offender knew
the victim was incapacitated, which means this element of the
offence is one of strict liability. It is sufficient that the offender
caused injury after the victim was incapacitated. However, the
offender may argue the common law defence of honest and
reasonable mistake of fact.
Application of statutory minimum sentence
For each new gross violence offence, the Bill includes notes
referring to the statutory minimum sentence for adult offenders
under new section 10 of the Crimes Act 1958 and the exception
to that statutory minimum sentence if a finding that a special
reason exists is made under new section 10A of the Crimes Act
1958. These amendments are set out in clause 9 of the Bill.
Alternative verdicts
A note refers to the availability under section 422 of the Crimes
Act 1958 of alternative verdicts for the new gross violence
offences. At trial, if the jury is not satisfied that the offence is
one of gross violence, it may instead find the accused person
guilty of intentionally or recklessly causing serious injury under
section 16 or 17 of the Crimes Act 1958. Persons found guilty
of the existing causing serious injury offences will not be liable
to the statutory minimum sentence created in clause 9 of the Bill.
Section 422 of the Crimes Act 1958 is inserted by clause 5 of the
Bill.
Prosecution of co-offenders
New section 15C provides that a person may be found guilty of
committing a gross violence offence whether or not any other
person is prosecuted for or found guilty of the offence.
The Bill does not affect the operation of common law principles
with respect to inconsistent verdicts.
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Clause 5 inserts new section 422 in the Crimes Act 1958.
The offence of causing serious injury intentionally under
section 16 of the Crimes Act 1958 will be an alternative verdict
to the offence of causing serious injury intentionally in
circumstances of gross violence. The alternative verdict is
available if the jury is satisfied that the person charged is guilty
of the offence of causing serious injury intentionally but is not
satisfied that there were circumstances of gross violence.
The offence of causing serious injury recklessly under section 17
of the Crimes Act 1958 will be an alternative verdict to the
offence of causing serious injury recklessly in circumstances of
gross violence. The alternative verdict is available if the jury is
satisfied that the person charged is guilty of the offence of
causing serious injury recklessly but is not satisfied that there
were circumstances of gross violence.
The availability of the alternative verdict is a reflection that the
new gross violence offences are intended to be an aggravated
form of the causing serious injury offences in Subdivision (4) of
Division 1 of Part I of the Crimes Act 1958.
Clause 6 amends the Crimes Act 1958 to insert a transitional provision in
new section 618.
New section 618(1) provides that the gross violence offences
apply to offences alleged to have been committed on or after
commencement of the Bill.
New section 618(2) deals with a gross violence offence alleged to
have been committed between two dates, one before and one
after the commencement date of the Bill. In these cases the
offence is taken to have been committed before the
commencement of the Bill and so cannot be charged as a gross
violence offence. This provision reflects the prospective
application of the new criminal offences. A "between dates
charge" was discussed by the Supreme Court of Victoria in
R v Giretti (1986) 24 A Crim R 112 and the Court of Appeal in
R v Komljenovic [2006] 163 A Crim R 298.
Effect of changing definitions of injury and serious injury
Following the change to the definitions of injury and serious
injury a person who commits an offence of causing serious injury
before the commencement of the Bill, and is sentenced for that
offence after the commencement date, will continue to be
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sentenced for that offence. This is despite the fact that if they
had committed the offence after the commencement date of the
Bill, the injury they inflicted would only have resulted in a
causing injury offence.
Section 114(2) of the Sentencing Act 1991 does not apply
because the change to the definition of serious injury does not
change the penalty for the offence.
It is not intended to change the usual operation of these
provisions. This issue may be addressed through submissions
during sentencing, and the court may take account of the issue in
determining the appropriate sentence. In Driver v the Queen
[2012] VSCA 242 (26 September 2012) the Court of Appeal held
that sentencing judges should have regard to a change in
Parliament's view about the seriousness of an offence,
particularly if the offence occurred close to the date of the
legislative change.
Clause 7 amends Schedule 8 to the Crimes Act 1958 to provide that the
offences of causing serious injury intentionally in circumstances
of gross violence and causing serious injury recklessly in
circumstances of gross violence are forensic sample offences.
A finding of guilt for a gross violence offence will enliven
sections 464ZF and 464ZFAAA of the Crimes Act 1958 which
set out the procedures for obtaining forensic samples, in
particular circumstances, following the commission of forensic
sample offences.
PART 3--AMENDMENT OF THE SENTENCING ACT 1991
Clause 8 amends section 3(1) of the Sentencing Act 1991 to insert the
new gross violence offences in the definition of serious offence.
The effect of the amendment is twofold.
First, by force of section 27(2B) of the Sentencing Act 1991, like
all serious offences, if a person is convicted of a gross violence
offence, a court cannot impose a suspended sentence of
imprisonment.
Secondly, by force of Subdivision (1A) of Division 2 of Part 3
of the Sentencing Act 1991, as a serious offence, if a person
(other than a young person) is convicted by the Supreme Court or
County Court of a gross violence offence, the court may impose
an indefinite term of imprisonment (indefinite sentence).
9
Clause 9 amends the Sentencing Act 1991 to insert new sections 10
and 10A.
New section 10 establishes a statutory minimum sentence for an
adult offender found guilty of a gross violence offence under new
section 15A or 15B of the Crimes Act 1958 (as inserted by
clause 4 of the Bill).
New section 10 states that in sentencing an offender for an
offence against section 15A or 15B of the Crimes Act 1958,
the court must impose a term of imprisonment and fix under
section 11 a non-parole period of not less than 4 years (statutory
minimum sentence), unless the court finds under section 10A that
a special reason exists. The statutory minimum sentence must be
applied whether after trial or on appeal.
The Bill requires the non-parole period to be fixed under
section 11 so that the usual principles regarding non-parole
periods apply. For example, the minimum non-parole period of
4 years must be at least 6 months less than the term of the
sentence in order to satisfy the requirement in section 11(3) of the
Sentencing Act 1991. The head sentence or total effective
sentence must be imprisonment of at least four years and six
months.
When sentencing an offender who has committed multiple
offences, s11(4) requires the court to set one non-parole period in
respect of the aggregate period of imprisonment. If one of these
offences is a gross violence offence and the statutory minimum
sentence applies, then the non-parole period in respect of all the
offences must be at least four years.
New section 10 of the Sentencing Act 1991 does not prevent the
court from imposing a term of imprisonment longer than the
statutory minimum sentence. In addition, the court may impose
an indefinite sentence of imprisonment for these new offences
(see clause 8).
Statutory minimum sentence does not apply to certain persons
New section 10(2) of the Sentencing Act 1991 provides that the
statutory minimum sentence does not apply to certain persons.
The statutory minimum sentence does not apply to a person who
is prosecuted by virtue of section 323 of the Crimes Act 1958 as
one who aids, abets, counsels or procures the commission of the
gross violence offence.
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The statutory minimum sentence only applies to adult offenders.
It does not apply to a person who is under the age of 18 years at
the time of the commission of the gross violence offence (new
section 10(2)(a)). Persons aged under 18 years may be charged
with and found guilty of a gross violence offence (with or
without recording a conviction during sentence), but are not
subject to the statutory minimum sentence under the Sentencing
Act 1991.
Special reason displaces the statutory minimum sentence
If a court finds that a special reason exists under new
section 10A(2) of the Sentencing Act 1991, the statutory
minimum sentence does not apply.
New section 10A sets out the circumstances in which a court may
make a finding that a special reason exists.
The special reasons provisions are different from the test of
"exceptional circumstances" that existed previously for courts to
consider when imposing suspended sentences for serious
offences. They are also different from the "exceptional
circumstances" test that currently exists for courts when
considering whether to restore a term of imprisonment held in
suspense due to a contravention of a suspended sentence, in
accordance with section 83AR(2) of the Sentencing Act 1991.
The special reasons in new section 10A of the Sentencing Act
1991 are limited and specific.
To displace the statutory minimum sentence, the court must
find that a special reason listed in new section 10A(2) exists.
Only one special reason is required to be found. It is open to the
court to find more than one special reason exists.
A special reason is any of the following--
Assistance to law enforcement authorities
Section 10A(2)(a) of the Sentencing Act 1991 covers cases
where the offender assisted or made an undertaking to assist the
Crown or police. If an offender fails to fulfil an undertaking to
assist, section 291 of the Criminal Procedure Act 2009 applies.
Section 291 allows the Director of Public Prosecutions to appeal
against a person's sentence if that person has failed, wholly or
partly, to fulfil the undertaking.
11
Young offenders with particular psychosocial immaturity
Section 10A(2)(b) of the Sentencing Act 1991 relates to young
adult offenders aged 18 years or more but under 21 years at the
time of the offence. A special reason will exist when a young
offender proves, on the balance of probabilities, that he or she has
a particular psychosocial immaturity that has resulted in the
offender having a substantially diminished ability to regulate his
or her behaviour in comparison with the norm for persons of that
age.
This special reason reflects the fact that some young offenders
may be particularly immature for their age and as a result be less
culpable for their offending behaviour.
The Sentencing Act 1991 gives offenders in this age range a
special status. While the special reason provision is distinct from
the criteria in section 32 of the Sentencing Act 1991, to be
consistent with section 32, the special reason focuses on
offenders aged 18 to 20. If the special reason applies, the court
will be able to apply the dual track criteria to the offender.
Offenders beyond the age of 20 should be held accountable for
their actions, although they may fall within one of the other
special reasons.
Offenders with impaired mental functioning
The two special reasons in new section 10A(2)(c) and 10A(2)(d)
of the Sentencing Act 1991 relate to the mental health of the
offender.
The Bill recognises that some offenders suffer from impaired
mental functioning such that they should not be subject to the
statutory minimum sentence. The existence of impaired mental
functioning in itself is not enough to exempt the offender from
the statutory minimum sentence.
New section 10A(2)(c) requires the offender to prove on the
balance of probabilities that at the time of the offence he or she
had impaired mental functioning that is causally linked to the
offending and to have substantially reduced the offender's
culpability. Alternatively, the offender must prove that he or she
has impaired mental functioning that would result in the offender
being subject to significantly more than the ordinary burden or
risks of imprisonment.
12
Impaired mental functioning is defined in new section 10A(1) to
mean a mental illness within the meaning of the Mental Health
Act 1986, an intellectual disability within the meaning of the
Disability Act 2006, an acquired brain injury, an autism
spectrum disorder or a neurological impairment, such as
dementia.
These principles are drawn from the common law and are
consistent with the matters courts consider when dealing with
offenders who have impaired mental functioning.
Paragraph (d) establishes a further special reason. If a court
proposes to make and then makes a hospital security order
(section 93A of the Sentencing Act 1991) or a residential
treatment order (section 82AA of the Sentencing Act 1991),
this displaces the statutory minimum sentence under new
section 10A(2)(d).
The Bill does not affect existing laws with respect to fitness to
stand trial and the defence of mental impairment in the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
Substantial and compelling circumstances
The final special reason in new section 10A(2)(e) of the
Sentencing Act 1991 provides that a court may depart from the
statutory minimum sentence if there are substantial and
compelling circumstances that justify doing so.
When considering whether the circumstances are substantial and
compelling enough to justify departing from the statutory
minimum sentence, the court must have regard to two specific
matters.
First, the court must consider Parliament's intention that the
sentence imposed for the gross violence offence should ordinarily
be a prison sentence with a minimum non-parole period of four
years.
Secondly, the court must consider the cumulative impact of the
circumstances of the case. The cumulative impact of the
circumstances must be balanced against the presumption that the
statutory minimum sentence should ordinarily apply.
13
For example, the court may consider factors such as--
the nature and gravity of the offence;
the aggravating and mitigating circumstances of the
offending;
the personal circumstances of the offender;
the impact on the victim;
the maximum penalty for the gross violence offence;
the purposes of the statutory minimum sentence; and
the overall purposes of sentencing in section 5 of the
Sentencing Act 1991.
Recording of special reason during sentencing
New section 10A(4) requires that if a court makes a finding that a
special reason exists, the special reason be stated in writing and
be entered in the records of the court. New section 10A(5)
provides that a failure to comply with these requirements does
not invalidate any order made by the court.
Sentencing discretion for gross violence offences in absence of
the statutory minimum sentence
If a court finds a special reason exists, the statutory minimum
sentence does not apply. New section 10(1) provides that the
statutory minimum sentence applies unless the court finds that a
special reason exists. The existence of a special reason displaces
the requirement set out in new section 10.
If the statutory minimum sentence does not apply, the court has
full sentencing discretion and will sentence the offender
according to law. The court will have discretion to impose a
sentence from the full range of available sentencing dispositions.
The court cannot impose a suspended sentence of imprisonment
for a gross violence offence because it is a serious offence under
the Sentencing Act 1991 (see clause 8).
14
Clause 10 amends Schedule 1 to the Sentencing Act 1991 to insert a
reference to the offences of causing serious injury intentionally in
circumstances of gross violence and causing serious injury
recklessly in circumstances of gross violence so that each offence
is a violent offence and serious violent offence for the purposes
of Part 2A of the Sentencing Act 1991. A finding of guilt for a
gross violence offence may mean that an offender is considered a
"serious violent offender" under that Part. This will lead to a
presumption that any prison sentence for further serious violent
offences will be served cumulatively unless the court orders
otherwise.
PART 4--REPEAL OF THE AMENDING ACT
Clause 11 provides for the repeal of the Act on 30 January 2015.
The repeal of the Act will not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
15