Crimes Amendment Act 2007 (NSW)

An Act to amend the Crimes Act 1900 to increase penalties for the reckless infliction of grievous bodily harm, to replace malicious as a fault element of offences, to modernise blackmail offences and to make other reforms of the criminal law.

1Name of Act

This Act is the Crimes Amendment Act 2007.

2Commencement(1)

Sections 1–6, Schedule 1 [7], Schedule 2 and Schedule 3.1 (except item [2]) commence on the date of assent to this Act.

(2)

This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (1).

3Amendment of Crimes Act 1900 No 40

The Crimes Act 1900 is amended as set out in Schedules 1 and 2.

4Consequential amendments to other Acts

The Acts specified in Schedule 3 are amended as set out in that Schedule.

5Explanatory notes

The matter appearing under the heading “Explanatory note” in any of the Schedules does not form part of this Act.

6Repeal of Act(1)

This Act is repealed on the day following the day on which all of the provisions of this Act have commenced.

(2)

The repeal of this Act does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendment made by this Act.

Schedule 1Principal amendments to Crimes Act 1900

(Section 3)

[1]Section 4 Definitions

Insert at the end of the definition of Grievous bodily harm in section 4 (1):

•

, and

(c)

any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

Explanatory note

The amendment extends the definition to make it clear that causing harm to a person includes causing a person to contract a disease. As a consequence, item [9] omits the separate offence under section 36.

[2]Section 5 Maliciously

Omit the section.

Explanatory note

This section (which defines “malicious” for the purposes of offences under the Act) is being repealed as a result of the replacement of that term in offences under the Act with the modern fault element of “intention” or “recklessness”.

[3]Section 31 Documents containing threats, section 32 Impeding endeavours to escape shipwreck, section 42 Injuries to child at time of birth, section 46 Causing bodily injury by gunpowder etc, section 61J Aggravated sexual assault, section 61JA Aggravated sexual assault in company, section 61K Assault with intent to have sexual intercourse, section 66C Sexual intercourse—child between 10 and 16, section 80A Sexual assault by forced self-manipulation, section 95 Same in circumstances of aggravation, section 105A Definitions, section 138 Stealing, destroying etc records etc of any court or public office, section 154C Taking motor vehicle or vessel with assault or with occupant on board, section 195 Destroying or damaging property, section 201 Interfering with a mine, section 202 Causing damage etc to sea, river, canal and other works, section 210 Destroying, damaging etc an aid to navigation

Omit “maliciously” wherever occurring.

Insert instead “intentionally or recklessly”.

Explanatory note

This item makes consequential amendments on the omission of the concept of “malicious” by item [2].

[4]Section 33

Omit the section. Insert instead:

33Wounding or grievous bodily harm with intent(1)

A person who:

• (a)

  wounds any person, or

• (b)

  causes grievous bodily harm to any person,

with intent to cause grievous bodily harm to that or any other person is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

(2)

A person who:

• (a)

  wounds any person, or

• (b)

  causes grievous bodily harm to any person,

with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

(3)

If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly.

Explanatory note

The amendment recasts the offences under section 33 as a consequence of the omission of the concept of “malicious” by item [2] and separates the offence relating to intention to cause grievous bodily harm from the offence relating to resisting or preventing arrest or detention. The offence relating to discharging firearms is to be transferred to the related offences in section 33A.

[5]Section 33A

Omit the section. Insert instead:

33ADischarging firearm etc with intent(1)

A person who:

• (a)

  discharges any firearm or other loaded arms, or

• (b)

  attempts to discharge any firearm or other loaded arms,

with intent to cause grievous bodily harm to any person is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

(2)

A person who:

• (a)

  discharges any firearm or other loaded arms, or

• (b)

  attempts to discharge any firearm or other loaded arms,

with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

Explanatory note

The amendment recasts the offences under section 33A as a consequence of the omission of the concept of “malicious” by item [2] and separates the offence relating to intention to cause grievous bodily harm from the offence relating to resisting or preventing arrest or detention. The revised section also covers offences transferred from section 33 dealing with related offences concerning firearms. The offences currently in section 33A that carry a lesser penalty than the virtually identical offences in section 33 have not been carried forward.

[6]Section 34 Feloniously wounding—verdict of minor offence

Omit the section.

Explanatory note

The section is omitted as a consequence of the transfer of the alternative verdict provision to section 33 (3).

[7]Section 35

Omit the section. Insert instead:

35Reckless grievous bodily harm or wounding(1)

A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence.

Maximum penalty: Imprisonment for 14 years.

(2)

A person who recklessly causes grievous bodily harm to any person is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(3)

A person who, in the company of another person or persons, recklessly wounds any person is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(4)

A person who recklessly wounds any person is guilty of an offence.

Maximum penalty: Imprisonment for 7 years.

(5)

If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly.

Explanatory note

The amendment recasts the offences under section 35 as a consequence of the omission of the concept of “malicious” by item [2]. In addition, the maximum penalty for reckless causing of grievous bodily harm is increased from 7 years to 10 years (and from 10 years to 14 years in the case of an offence committed in company).

[8]Section 35A Causing dog to inflict grievous bodily harm or actual bodily harm

Omit section 35A (1) and (2). Insert instead:

(1)

A person who:

• (a)

  has control of a dog, and

• (b)

  does any act that causes the dog to inflict grievous bodily harm on another person, and

• (c)

  is reckless as to the injury that may be caused to a person by the act,

is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(2)

A person who:

• (a)

  has control of a dog, and

• (b)

  does any act that causes the dog to inflict actual bodily harm on another person, and

• (c)

  is reckless as to the injury that may be caused to a person by the act,

is guilty of an offence.

Maximum penalty: Imprisonment for 5 years.

Explanatory note

The amendment recasts the offences under section 35A as a consequence of the omission of the concept of “malicious” by item [2]. In addition, the maximum penalty for recklessness in causing a dog to inflict grievous bodily harm is increased from 7 years to 10 years (consistently with the proposed increase for the general offence of reckless infliction of grievous bodily harm by item [10]).

[9]Section 36 Causing a grievous bodily disease

Omit the section.

Explanatory note

This item omits the offence as a result of the extension of the meaning of “grievous bodily harm” by item [1] to cover diseases and the consequent extension of the offence under section 33 of inflicting grievous bodily harm.

[10]Sections 39, 40, 41 and 41A

Omit the sections. Insert instead:

39Using poison etc to endanger life or inflict grievous bodily harm(1)

A person is guilty of an offence if:

• (a)

  the person administers to another person, or causes another person to take, any poison or other destructive or noxious thing, and

• (b)

  the poison or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and

• (c)

  the person intends to injure, or is reckless about injuring, the other person.

Maximum penalty: Imprisonment for 10 years.

(2)

If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 41 or 41A, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 41 or 41A. The person is liable to punishment accordingly.

41Administering poison etc to injure or to cause distress or pain

A person is guilty of an offence if:

• (a)

  the person administers to another person, or causes another person to take, any poison or other destructive or noxious thing, and

• (b)

  the person intends to injure, or to cause distress or pain to, the other person.

Maximum penalty: Imprisonment for 5 years.

41APoisoning etc of water supply

A person is guilty of an offence if:

• (a)

  the person introduces any poison or other destructive or noxious thing into a supply of water, and

• (b)

  the person intends to injure any person or persons.

Maximum penalty: Imprisonment for 5 years.

Explanatory note

The amendment recasts the offences under sections 39, 41 and 41A relating to poisoning etc as a consequence of the omission of the concept of “malicious” by item [2]. The alternative verdict provision of section 40 is transferred to section 39 (2) and applied to the offence under section 41A in addition to the offence under section 41.

[11]Section 44 Not providing wife or servant with food etc

Omit “or maliciously does, or causes to be done, any bodily harm to any wife, apprentice or servant, or to any insane person”.

Explanatory note

The amendment omits the second limb to this offence as a result of the omission of the concept of “malicious” by item [2]. The matter is covered by the general assault offences under the Act.

[12]Section 47 Using etc explosive substance or corrosive fluid etc, section 196 Destroying or damaging property with intent to injure a person, section 198 Destroying or damaging property with intention of endangering life, section 200 Possession etc of explosive or other article with intent to destroy or damage property, section 211 Criminal acts relating to railways

Omit “maliciously” wherever occurring.

Explanatory note

This item makes a consequential amendment on the omission of the concept of “malicious” by item [2].

[13]Section 60 Assault and other actions against police officers, section 60A Assault and other actions against law enforcement officers (other than police officers), section 60E Assaults etc at schools

Omit “maliciously” wherever occurring. Insert instead “recklessly”.

Explanatory note

This item makes a consequential amendment on the omission of the concept of “malicious” by item [2].

[14]Part 4 Offences relating to property, Division 1 Stealing and like offences, Subdivision 3 Extortion etc by menace or threat

Omit the heading to the Subdivision. Insert instead:

Explanatory note

The amendment is consequential on the enactment of a general blackmail offence in item [22].

[15]Section 99 Demanding property with intent to steal

Insert at the end of the section:

(3)

It is immaterial whether any such menace is of violence or injury by the offender or by any other person.

Explanatory note

The amendment is consequential on the repeal of section 105 by item [16].

[16]Section 100 Letter demanding money etc with menaces, section 100A Blackmail by threat to publish etc, section 101 Threatening letters, section 102 Accusing or threatening to accuse of crime to extort money etc, section 103 Causing a person by violence or threats to execute deeds etc, section 104 Term “infamous crime” defined, section 105 Menace may be of violence or accusation etc

Omit the sections.

Explanatory note

The amendment is consequential on the enactment of a general blackmail offence in item [22].

[17]Section 105A Definitions

Insert in alphabetical order in section 105A (1):

building includes any place of Divine worship.

Explanatory note

The amendment is consequential on the proposed repeal of sections 106 and 107.

[18]Section 106 Breaking and entering place of Divine worship and committing serious indictable offence, section 107 The like with intent to commit a serious indictable offence

Omit the sections.

Explanatory note

This item omits offences that will be covered by the proposed extension of the offences in sections 112 and 113.

[19]Section 112 Breaking etc into any house etc and committing serious indictable offence

Omit section 112 (1). Insert instead:

(1)

A person who:

• (a)

  breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or

• (b)

  being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building,

is guilty of an offence and liable to imprisonment for 14 years.

Explanatory note

The amendment extends the offence to all dwelling-houses and other buildings. At present the offence applies to dwelling-houses, buildings within the curtilage of a dwelling-house, school house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory or workshop, or any building belonging to Her Majesty or to any Government department, or to any municipal or other public authority.

[20]Section 113 Breaking etc into any house etc with intent to commit serious indictable offence

Omit section 113 (1). Insert instead:

(1)

A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence and liable to imprisonment for 10 years.

Explanatory note

The amendment extends the offence to all dwelling-houses and other buildings. At present the offence applies to dwelling-houses, buildings within the curtilage of a dwelling-house, school house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory or workshop, or any building belonging to Her Majesty or to any Government department, or to any municipal or other public authority.

[21]Section 194 Interpretation

Omit “shall be taken not to have been done maliciously” from section 194 (3).

Insert instead “does not constitute an element of any offence under this Division”.

Explanatory note

The amendment makes a consequential change as a result of the omission of the concept of “malicious” by item [2] and the amendments to sections 195–198.

[22]Part 4B

Insert before Part 5:

Part 4BBlackmail249KBlackmail offence(1)

A person who makes any unwarranted demand with menaces:

• (a)

  with the intention of obtaining a gain or of causing a loss, or

• (b)

  with the intention of influencing the exercise of a public duty,

is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(2)

A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) by an accusation, or a threatened accusation, that a person has committed a serious indictable offence.

Maximum penalty: Imprisonment for 14 years.

249LUnwarranted demands—meaning(1)

For the purposes of this Part, a demand with menaces is unwarranted unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand.

(2)

The demand need not be a demand for money or other property.

249MMenaces—meaning(1)

For the purposes of this Part, menaces includes:

• (a)

  an express or implied threat of any action detrimental or unpleasant to another person, and

• (b)

  a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.

(2)

A threat against an individual does not constitute a menace unless:

• (a)

  the threat would cause an individual of normal stability and courage to act unwillingly in response to the threat, or

• (b)

  the threat would cause the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat.

(3)

A threat against a Government or body corporate does not constitute a menace unless:

• (a)

  the threat would ordinarily cause an unwilling response, or

• (b)

  the threat would cause an unwilling response because of a particular vulnerability of which the person making the threat is aware.

(4)

It is immaterial whether the menaces relate to action to be taken by the person making the demand.

249NObtaining gain or causing loss—meaning

For the purposes of this Part:

• (a)

  a gain means gain in money or other property, whether temporary or permanent, and includes keeping what one has, and obtaining a gain means obtaining a gain for oneself or for another, and

• (b)

  a loss means loss in money or other property, whether temporary or permanent, and includes not getting what one might get, and causing a loss means causing a loss to another.

249OPublic duty—meaning

For the purposes of this Part, a public duty means a power, authority, duty or function:

• (a)

  that is conferred on a person as the holder of a public office, or

• (b)

  that a person holds himself or herself out as having as the holder of a public office.

Explanatory note

Proposed Part 4B replaces existing blackmail/extortion offences (sections 100–103) with an offence based on the Model Criminal Code and the Commonwealth Criminal Code. The proposed Part extends the existing offences to influencing the exercise of public duties (and not merely to obtain a gain or cause a loss) and to threats of any kind. The maximum penalty for the offence is the current penalty of imprisonment for 10 years, or imprisonment for 14 years if a person is accused or threatened to be accused of a serious indictable offence (the Model Criminal Code provides a penalty of imprisonment for 12 years in both cases).

[23]Sections 308D (2) (a) and 308E (2) (a)

Omit “Maliciously destroying” wherever occurring.

Insert instead “Destroying”.

Explanatory note

This amendment is consequential on other amendments made in this Schedule.

[24]Section 428B Offences of specific intent to which Part applies

Omit the matter relating to sections 36, 100A, 101, 102 and 103 in the Table to section 428B and revise the headings to other sections in that Table to reflect the headings inserted by other items of this Schedule.

Explanatory note

The amendment is consequential on other amendments in this Schedule.

[25]Section 511 Killing pigeons

Omit the section.

Explanatory note

The amendment repeals an outdated summary offence (carrying a maximum penalty of $220) of killing, taking or wounding house-doves or pigeons in circumstances not amounting to common law larceny. To the extent that any killing or wounding amounts to unnecessary cruelty, proceedings may be taken under the Prevention of Cruelty to Animals Act 1979.

[26]Eleventh Schedule Savings and transitional provisions

Insert at the end of the Schedule, with appropriate Part and clause numbers:

PartCrimes Amendment Act 2007

The repeal of section 5 of this Act by the Crimes Amendment Act 2007 does not affect the operation of any provision of this Act (including a repealed provision) that refers to “malicious” or “maliciously” or of any indictment or charge in which malice is by law an ingredient of the crime.

Schedule 2Statute law revision amendments to Crimes Act 1900

(Section 3)

[1]Section 2 Repeals and savings

Omit the section.

Explanatory note

This section is now spent.

[2]Section 3 Application of certain provisions of Act

Omit “The sections mentioned in the Second Schedule”.

Insert instead “The Parts and sections mentioned in Schedule 2”.

[3]Section 6 Month

Omit the section.

Explanatory note

This expression is defined in the Interpretation Act 1987.

[4]Section 63 Common law offences of rape and attempted rape abolished

Omit “the Eleventh Schedule” from section 63 (2).

Insert instead “Schedule 11”.

[5]Part 3A Offences relating to public order

Insert before section 93A:

[6]Section 93E Offences of riot, rout, affray abolished

Omit the section.

Explanatory note

This provision, relating to the abolition of common law offences, is being transferred to Schedule 3.

[7]Part 3B, heading

Omit the heading. Insert instead:

[8]Part 3C, heading

Omit the heading. Insert instead:

[9]Sections 93IA–93IG

Renumber the sections as sections 93J–93P.

[10]Part 3D, heading

Omit the heading. Insert instead:

[11]Sections 93IH and 93II

Renumber the sections as sections 93Q and 93R.

[12]Part 3E, heading

Omit the heading. Insert instead:

[13]Sections 93IJ–93IL

Renumber the sections as sections 93S–93U.

[14]Sections 93A, 93F, 93J (as renumbered), 93P (as renumbered) and 93S (as renumbered)

Omit “this Part” wherever occurring. Insert instead “this Division”.

[15]Section 93N (as renumbered)

Omit “93IB, 93IC or 93ID” wherever occurring.

Insert instead “93K, 93L or 93M”.

[16]Section 93O (as renumbered)

Omit “93IB or 93IC” wherever occurring. Insert instead “93K or 93L”.

[17]Section 93U (as renumbered)

Omit “93IK” wherever occurring. Insert instead “93T”.

[18]Part 3A, Division 6, heading

Insert before Part 4:

[19]Section 93V

Omit section 344 and insert the section (renumbered as section 93V) in Division 6 of Part 3A.

Explanatory note

The existing offence relating to unlawful gambling is being transferred to the Part of the Act containing public order offences.

[20]Section 93J Property previously stolen

Renumber as section 94AA.

[21]Section 307 Abolition of common law offence

Omit the section.

Explanatory note

This provision relating to the abolition of a common law offence of forgery is being transferred to Schedule 3.

[22]Section 310G Harbouring escapee

Insert at the end of the section:

(2)

In this section:

escaped inmate includes a prisoner who has escaped from lawful custody in another State or Territory.

Explanatory note

This amendment incorporates the separate offence in section 358C which is being omitted by this Schedule.

[23]Part 8, heading

Omit the heading.

[24]Part 10B Harbouring escapees

Omit the Part.

Explanatory note

The Part only contains an offence relating to harbouring interstate escapees, which is being transferred to the general offence in section 310G.

[25]Part 11, Division 1, heading

Omit the heading.

[26]Section 407A Abolition of presumption of coercion of wife by husband

Omit the section.

Explanatory note

This provision relating to the abolition of a common law presumption is being transferred to Schedule 3.

[27]Section 475A Offences punishable summarily

Omit “the Tenth Schedule” wherever occurring. Insert instead “Schedule 10”.

[28]Part 14 Former provisions relating to offences punishable by Justices and procedure before Justices generally

Omit the Part.

Explanatory note

This Part is now spent.

[29]Section 580H

Insert before section 581:

580HAbolition of common law offences and rules

Schedule 3 has effect.

[30]Section 581 Savings and transitional provisions

Omit “The Eleventh Schedule”. Insert instead “Schedule 11”.

[31]Second Schedule

Omit the heading to the Schedule. Insert instead:

[32]Second Schedule

Omit “Sections 547A–547C (in Part 14).”.

[33]Schedule 3

Insert after the Second Schedule:

Schedule 3Abolished common law offences and rules

(Section 580H)

1Arson(1)

The common law offence of arson is abolished.

(2)

This clause does not apply to an offence committed before the commencement of section 3 of the Crimes (Criminal Destruction and Damage) Amendment Act 1987.

2Forgery(1)

The common law offence of forgery is abolished.

(2)

This clause does not apply to an offence committed before 16 July 1989 (the date of commencement of the Crimes (Computers and Forgery) Amendment Act 1989).

3Riot, rout and affray(1)

The common law offences of riot, rout and affray are abolished.

(2)

This clause does not apply to an offence committed before 19 February 1989 (the date of commencement of the Crimes (Amendment) Act 1988).

4Coercion of wife by husband(1)

Any presumption of law that an offence committed by a wife in the presence of her husband is committed under coercion of the husband is abolished.

(2)

This clause does not apply to an offence committed before 1 October 1924 (the date of commencement of the Crimes (Amendment) Act 1924).

[34]Tenth Schedule

Rename the Schedule as Schedule 10.

[35]Tenth Schedule

Insert at the end of the Schedule:

A reference in this Schedule to a provision of this Act is a reference to the provision as in force immediately before the commencement of the Crimes Amendment Act 2007.

[36]Eleventh Schedule Savings and transitional provisions

Omit the heading to the Schedule. Insert instead:

Schedule 3Consequential amendments to other Acts

(Section 4)

Criminal Procedure Act 1986 No 209[1]Section 272 Application of Chapter

Omit section 272 (2) and (3).

[2]Schedule 1 Indictable offences triable summarily

Insert after item 12 in Part 3 of Table 1:

12ABlackmail

An offence under section 249K of the Crimes Act 1900.

[3]Schedule 1, Table 1

Insert “(or section 93K, 93L or 93M)” after “93ID”.

[4]Schedule 1, Table 1

Insert “(or section 93Q or 93R)” after “93II”.

[5]Schedule 1, Table 1

Insert “(or section 93T (2) or (3))” after “93IK (2) or (3)”.

[6]Schedule 1, Table 2

Insert “(or section 93T (1))” after “section 93IK (1)”.

Fire Brigades Act 1989 No 192

Omit “maliciously”.

Insert instead “intentionally or recklessly”.

Pipelines Act 1967 No 90

Omit “maliciously”. Insert instead “intentionally”.