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Crimes Legislation Amendment (Protection of Emergency Workers and Others) Bill 2017

    Crimes Legislation Amendment
 (Protection of Emergency Workers and
            Others) Bill 2017

                            Introduction Print
  Note: replacement Explanatory Memorandum lodged with 2 corrections to Clause Note 23
   on page 10--the reference to "Road Safety Amendment Bill 2017" has been changed to
 "Transport Legislation Amendment (Road Safety, Rail and Other Matters) Bill 2017" and the
  default commencement date referred to in the note has been changed to 1 November 2018.


                 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 insert new offences
                        relating to the creation of risk to emergency workers
                        on duty, and certain other persons, and damaging
                        emergency service vehicles, by driving; and
               •         to amend the Sentencing Act 1991 to make provision
                        in relation to sentencing for the offences; and
               •         to amend the Bail Act 1977 to make provision in
                        relation to the granting of bail for the offences; and
               •         to amend the Road Safety Act 1986 to provide for the
                        impoundment, immobilisation and forfeiture of vehicles
                        used in the commission of the offences.

Clause 2     sets out when the provisions in the Bill come into operation.
             Subclause (1) provides that, subject to subsection (2), this Act
             comes into operation on a day or days to be proclaimed.




581471                                      1       BILL LA INTRODUCTION 6/11/2017

 


 

Subclause (2) provides that, if a provision of this Act does not come into operation before 31 October 2018, it comes into operation on that day. Part 2--Offences related to emergency workers and other persons Division 1--Crimes Act 1958 Subdivision 1--Offences Clause 3 inserts new Division 8A into the Crimes Act 1958. New Division 8A inserts new sections 317AB, 317AC, 317AD, 317AE, 317AF and 317AG into the Crimes Act 1958 which provide for driving offences connected with emergency workers and custodial officers on duty, and emergency service vehicles. New section 317AB of the Crimes Act 1958 provides instruction for how terms in the division are to be interpreted. It cross references the Sentencing Act 1991 in order to define custodial officer and emergency worker and to provide the meaning of being "on duty" with respect to each of these roles. New section 317AC of the Crimes Act 1958 creates the offence of intentionally exposing an emergency worker or a custodial officer to risk by driving. New section 317AC(1) provides that a person who drives a motor vehicle in the vicinity of another person who is an emergency worker on duty or a custodial officer on duty and knows that, or is reckless as to whether the other person is an emergency worker or a custodial officer and without lawful excuse, drives the motor vehicle and intends to expose the other person to a risk to safety is guilty of an offence. This section provides that the penalty for this offence is level 3 imprisonment (20 years maximum). New section 317AC(2) provides for situations where a person can be taken to know that the other person is an emergency worker or a custodial officer. The purpose of this section is to provide for specific situations where it is reasonable to infer that a person recognises that the other person is an emergency worker or a custodial officer. 2

 


 

New section 317AC(3) provides that a person may be found guilty of an offence under section 317AC(1) regardless of whether the other person was injured by the conduct. The purpose of this section is to clarify that it is sufficient for the emergency worker or a custodial officer to merely be endangered by the conduct in order to satisfy the elements of the offence. The notes to section 317AC cross reference the Sentencing Act 1991 to indicate that the court must impose a minimum non-parole period where the victim is injured unless special reasons exist, and that a presumption in favour of cumulation applies to terms of imprisonment imposed for an offence against section 317AC. New section 317AD of the Crimes Act 1958 creates the aggravated offence of intentionally exposing an emergency worker or a custodial officer to risk by driving. New section 317AD(1) provides that a person will be guilty of this offence if they commit the new offence against section 317AC of the Crimes Act 1958 in circumstances where the motor vehicle driven in the commission of the offence against section 317AC is stolen, or where the offence is committed in connection with an offence against section 317AG (damaging an emergency service vehicle) or committed in connection with another indictable offence punishable by 10 years imprisonment or more. New section 317AD(2) provides for when the offences are connected. The connection relates to time, place or, for offences committed in connection with another indictable offence, for the purpose of avoiding apprehension for the other indictable offence. This section provides that the penalty for this offence is level 3 imprisonment (20 years maximum). The notes to section 317AD cross reference the Sentencing Act 1991 to indicate that the offence is a category 2 offence for the purposes of section 5(2H) of the Sentencing Act 1991 which requires a court, unless it is satisfied that certain circumstances exist, to impose a custodial order; and that where the other person was injured by the conduct the court must impose a minimum 2 year non-parole period unless special reasons exist. The notes also state that a presumption in favour of cumulation applies to 3

 


 

terms of imprisonment imposed for an offence against section 317AD. New section 317AE of Crimes Act 1958 creates the offence of recklessly exposing an emergency worker or a custodial officer to risk by driving. New section 317AE(1) provides that a person who drives a motor vehicle in the vicinity of another person who is an emergency worker on duty or a custodial officer on duty and knows that, or is reckless as to whether the other person is an emergency worker or a custodial officer and without lawful excuse, drives the motor vehicle and recklessly exposes the other person to a risk to safety is guilty of an offence. This section provides that the penalty for this offence is level 5 imprisonment (10 years maximum). New section 317AE(2) provides for situations where a person can be taken to know that the other person is an emergency worker or a custodial officer. The purpose of this section is to provide for specific situations where it is reasonable to infer that a person recognises that the other person is an emergency worker or a custodial officer. New section 317AE(3) provides that a person may be found guilty of an offence under section 317AE(1) regardless of whether the other person was injured by the conduct. The purpose of this section is to clarify that it is sufficient for the emergency worker or a custodial officer to merely be endangered by the conduct in order to satisfy the elements of the offence. The note to section 317AE cross references the Sentencing Act 1991 to indicate that a presumption in favour of cumulation applies to terms of imprisonment imposed for an offence against section 317AE. New section 317AF of the Crimes Act 1958 creates the aggravated offence of recklessly exposing an emergency worker or a custodial officer to risk by driving. New section 317AF(1) provides that a person will be guilty of this offence if they commit the new offence against section 317AE of the Crimes Act 1958 in circumstances where the motor vehicle driven in the commission of the offence against section 317AE is stolen, or where the offence is committed in 4

 


 

connection with an offence against section 317AG (damaging an emergency service vehicle) or committed in connection with another indictable offence punishable by 10 years imprisonment or more. New section 317AF(2) provides for when the offences are connected. The connection relates to time, place or, for offences committed in connection with another indictable offence, for the purpose of avoiding apprehension for the other indictable offence. This section provides that the penalty for this offence is level 5 imprisonment (10 years maximum). The notes to section 317AF cross reference the Sentencing Act 1991 to indicate that the offence is a category 2 offence for the purposes of section 5(2H) of the Sentencing Act 1991 which requires a court, unless it is satisfied that certain circumstances exist, to impose a custodial order, and that a presumption in favour of cumulation applies to terms of imprisonment imposed for an offence against section 317AF. New section 317AG of Crimes Act 1958 creates the offence of damaging an emergency service vehicle. New section 317AG(1) provides that a person must not, without lawful excuse, recklessly drive a motor vehicle so that damage is caused to an emergency service vehicle. This section provides that the penalty for this offence is level 6 imprisonment (5 years maximum). Section 317AG(2) clarifies that to be guilty of this offence, the person must either know, or be reckless as to whether the vehicle is an emergency service vehicle and section 317AG(3) provides for situations where it is reasonable to infer that a person recognises the vehicle as an emergency service vehicle. Section 317AG(4) provides for the meaning of emergency service vehicle. This section clarifies that it is irrelevant whether the vehicle is occupied at the particular time. The note following section 317AG cross references the Sentencing Act 1991 to indicate that a presumption in favour of cumulation applies to terms of imprisonment imposed for an offence against section 317AG. 5

 


 

Subdivision 2--Amendments to the Crimes Act 1958 Clause 4 amends the heading to Division 8A of Part 1 of the Crimes Act 1958, to insert a reference to youth justice custodial workers. The intention of this subdivision is to include youth justice custodial workers within the provisions of new Division 8A of Part 1 of the Crimes Act 1958. The term youth justice custodial worker is defined in, and introduced by, the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, which is yet to commence and has a default commencement date of 1 June 2018. The offences and provisions created by this Bill that apply to emergency workers and custodial officers will also apply to youth justice custodial workers upon commencement of the relevant provisions in the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. Clause 5 amends new section 317AB of the Crimes Act 1958 to insert youth justice custodial workers within the interpretative provision applying to new Division 8A. This clause cross-references the Sentencing Act 1991 in order to define youth justice custodial worker and to provide the meaning of "on duty" for youth justice custodial workers. Clause 6 amends the heading to new section 317AC of the Crimes Act 1958 to insert a reference to a youth justice custodial worker. Clause 7 amends new section 317AC of the Crimes Act 1958 to insert references to youth justice custodial workers. Clause 8 amends the heading to new section 317AD of the Crimes Act 1958 to insert a reference to a youth justice custodial worker. Clause 9 amends new section 317AD of the Crimes Act 1958 to insert references to youth justice custodial workers. Clause 10 amends the heading to new section 317AE of the Crimes Act 1958 to insert a reference to a youth justice custodial worker. Clause 11 amends new section 317AE of the Crimes Act 1958 to insert references to youth justice custodial workers. Clause 12 amends the heading to new section 317AF of the Crimes Act 1958 to insert a reference to a youth justice custodial worker. 6

 


 

Clause 13 amends new section 317AF of the Crimes Act 1958 to insert references to youth justice custodial workers. Clause 14 amends new section 317AG of the Crimes Act 1958 to insert references to youth justice custodial workers. Division 2--Sentencing Act 1991 Subdivision 1--Sentencing provisions related to emergency workers and other persons offences Clause 15 inserts new paragraphs (j) and (k) into the definition of category 2 offence in section 3(1) of the Sentencing Act 1991. This will insert the new offences in section 317AD and 317AF of the Crimes Act 1958 into the definition of category 2 offence. Pursuant to section 5(2H) of the Sentencing Act 1991 this classification requires a court to impose a custodial order (other than a sentence of imprisonment imposed in addition to making a community corrections order) for these offences, unless the circumstances which are outlined in section 5(2H)(a) to (e) exist. Clause 16 inserts new section 10AE into the Sentencing Act 1991. New section 10AE(1) of the Sentencing Act 1991 provides that when sentencing an offender for an offence against section 317AC or 317AD of the Crimes Act 1958, a court must impose a term of imprisonment and fix a non-parole period of not less than 2 years if an emergency worker or a custodial officer on duty is injured. Section 10AE(2) clarifies that the statutory minimum term of imprisonment does not apply to an offender who is under the age of 18 years at the time of the offence or if the court finds under section 10A of the Sentencing Act 1991 that a special reason exists. Examples of special reasons under section 10A include where an offender has assisted or has given an undertaking to assist authorities and where an offender had impaired mental functioning at the time of the commission of the offence. 7

 


 

Clause 17 inserts new paragraphs (g), (h), (i), (j) and (k) into section 16(1A) of the Sentencing Act 1991. Section 16(1A) of the Sentencing Act 1991 provides for when the presumption that terms of imprisonment are to be served concurrently with any uncompleted sentences will not apply. Subclause (2) inserts the new offences created by Division 1 of this Bill into section 16(1A) of the Sentencing Act 1991, to provide that the presumption of concurrency provided in section 16(1) does not apply to these offences. Subclause (3) inserts new section 16(3D) into the Sentencing Act 1991, which states that terms of imprisonment imposed for these offences must, unless otherwise directed by a court, be served cumulatively on any uncompleted sentences of imprisonment. Clause 18 inserts new paragraph (ba) into section 87P of the Sentencing Act 1991. Section 87 includes a definition of serious motor vehicle offence. New subsection 87P(ba) inserts new offences in sections 317AC, 317AD, 317AE and 317AF of the Sentencing Act 1991 into the definition of serious motor vehicle offence. As a result, these new offences are subject to Part 4 of Division 3 of the Sentencing Act 1991, which provides for the suspension, cancellation and driver disqualification of drivers licenses and learner permits. Subdivision 2--Amendments to the Sentencing Act 1991 Clause 19 amends new section 10AE of the Sentencing Act 1991 to insert a reference to youth justice custodial workers. Division 3--Bail Act 1977 Subdivision 1--Bail provisions related to emergency worker and other persons offences Clause 20 inserts section 4(4)(bd) into the Bail Act 1977. Section 4(4)(bd) refers to a person charged with an offence against section 317AC, 317AD, 317AE, 317AF and 317AG of the Crimes Act 1958. 8

 


 

As a result of the insertion in section 4(4)(bd), where the accused is charged with one of these offences, the court shall refuse bail unless the accused shows why detention is custody is not justified and if the court does grant bail a statement of reasons for making the order must be recorded. Clause 21 inserts items (ea), (eb), (ec), (ed) and (ee) into Schedule 2 of the Bail Act 1977. This amendment achieves the same purpose of clause 2, as adapted to changes made to the Bail Act 1977 by the Bail Amendment (Stage One) Act 2017 which is yet to commence and has a default commencement date of 1 July 2018. This clause inserts the offences of intentionally exposing an emergency worker or a custodial officer on duty to risk by driving, recklessly exposing an emergency worker or a custodial officer on duty to risk by driving and damaging an emergency service vehicle into Schedule 2 of the Bail Act 1977 (as created by the Bail Amendment (Stage One) Act 2017). This has the consequence of requiring people charged with these offences to show compelling reasons in order to receive bail. Subdivision 2--Amendments to the Bail Act 1977 Clause 22 amends paragraphs (ea), (eb), (ec) and (ed) of item 22 of Schedule 2 to the Bail Act 1977 to insert references to youth justice custodial workers. Division 4--Road Safety Act 1986 Clause 23 amends section 84C(1)(a) and 84C(1)(b) of the Road Safety Act 1986. Section 84C(1)(a) and section 84C(1)(b) are amended to refer to an offence against section 317AC, 317AD, 317AE, 317AF and 317AG of the Crimes Act 1958. This has the consequence of including these offences in the definition of relevant offence for the purpose of Part 6A of the Road Safety Act 1986, which provides for circumstances in which a vehicle may be subject to impoundment, immobilisation and forfeiture. 9

 


 

This amendment relates to the new definition of relevant offence, as substituted by the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Bill 2017, which, if passed, has a default commencement of 1 November 2018. Part 3--Transitional provisions Clause 24 inserts transitional provisions into the Crimes Act 1958 and the Road Safety Act 1986, to provide the transitional arrangements. Subclause (1) inserts new section 634 into Part 7 of the Crimes Act 1958. New section 634(1) of the Crimes Act 1958 provides that for the purposes of sections 317AD and 317AF, a reference to an indictable offence committed in connection with an offence alleged to have been committed under section 317AC or 317AE, as the case requires, is a reference to an offence committed on or after the commencement of Division 1 of Part 2 of this Bill. New section 634(2) of the Crimes Act 1958 provides that for the purposes of section 634(1), if an offence is committed between 2 dates, one before and one after commencement of Division 1 of Part 2 of this Bill, the offence is taken to have been committed before that commencement. Subclause (2) inserts new section 103ZL into Part 8 of the Road Safety Act 1986. New section 103ZL(1) of the Road Safety Act 1986 provides that the amendment to section 84C(1) of the Road Safety Act 1986 applies only to offences alleged to have been committed on or after the commencement of clause 24 of this Bill. New section 103ZL(2) of the Road Safety Act 1986 provides that for the purposes of section 103ZL(1), if an offence is committed between 2 dates, one before and one after commencement of clause 24 of this Bill, the offence is taken to have been committed before that commencement. 10

 


 

Part 4--Repeal of amending Act Clause 25 provides that the Act is repealed on 31 October 2019. The repeal does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 11

 


 

 


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