Crimes Legislation Amendment Act 2013 (ACT)

Case

Crimes Legislation Amendment Act 2013

A2013-12

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Crimes Act 1900

4            Section 35A  3

5            Meaning of sexual intercourse in pt 3Section 50 (1), definition of sexual intercourse, paragraphs (a) and (b)     3

6            Section 50 (1), new paragraph (ca)  4

7           Section 50 (1) (e)  4

8            Section 50 (2), new definition of genitalia  4

9            New section 55A  4

10          New section 61A  7

11          Alternative verdicts for certain sexual offencesNew section 70 (6)  8

12          Indictment for act of indecencySection 72  9

13          Destroying or damaging propertySection 116 (3)  9

14          Summary disposal of certain casesSection 375 (1) (c)  10

15          New section 375 (4A)  10

Part 3Crimes (Child Sex Offenders) Act 2005

16          Schedule 1, part 1.1, new item 10A  11

17          Schedule 2, part 2.1, new item 4A  11

Part 4Crimes (Sentencing) Act 2005

18          Sentencing—relevant considerationsNew section 33 (1) (wa)  12

19          Sentencing—irrelevant considerationsNew section 34 (1) (fa)  12

20          Pre-sentence report mattersNew section 40A (ja)  12

21          New section 40B  13

22          Victim impact statements—use in courtNew section 52 (3) and (4)  14

Part 5Criminal Code 2002

23          New section 612A  15

24          Sections 613 and 614  15

25          New section 614A  15

26          Sections 620 and 621  16

27          Participating in a criminal group—causing harmNew section 653 (3) and (4)  17

28          Participating in a criminal group—property damageSection 654 (1), new note  17

29          Section 654 (3)  17

30          Section 654 (4), definition of threat  17

Part 6Domestic Violence and Protection Orders Act 2008

31          Schedule 1, table 1.2, new item 27A  18

32          Schedule 1, table 1.2, new item 32A  18

Part 7Evidence (Miscellaneous Provisions) Act 1991

33          Meaning of witness—div 4.2ASection 40D (1)  19

34          Section 40D (1) (a)  19

35          Meaning of witness—div 4.2BSection 40P (1) (a)  19

36          New section 43A  20

Part 8Firearms Act 1996

37          Adult firearms licences—genuine reasons to possess or use firearmsTable 61, item 2  22

38          Regulation-making powerSection 272 (2) (a)  22

Part 9Magistrates Court Act 1930

39          Appeals to which div 3.10.2 appliesNew section 208 (1) (g)  23

40          Jurisdiction of Childrens CourtNew section 288 (1) (e)  23

41          Section 289 heading  23

42          Section 289 (1) and (2)  24

Part 10     Prostitution Act 1992

43          Schedule 1, new item 14A  25

44          Schedule 1, new item 19A  25

Part 11Supreme Court Act 1933

45          Schedule 2, part 2.2, new item 12A  26

46          Schedule 2, part 2.2, new item 18A  26

Crimes Legislation Amendment Act 2013

A2013-12

An Act to amend legislation about crimes, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Crimes Legislation Amendment Act 2013.

  2. Commencement

    This Act commences on the 7th day after its notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

  3. Legislation amended

    This Act amends the following legislation:

    ·     Crimes Act 1900

    ·     Crimes (Child Sex Offenders) Act 2005

    ·     Crimes (Sentencing) Act 2005

    ·     Criminal Code 2002

    ·     Domestic Violence and Protection Orders Act 2008

    ·     Evidence (Miscellaneous Provisions) Act 1991

    ·     Firearms Act 1996

    ·     Magistrates Court Act 1930

    ·     Prostitution Act 1992

    ·     Supreme Court Act 1933.

Part 2Crimes Act 1900

  1. Section 35A

    substitute

35AAffray

(1)A person commits an offence if—

(a)the person engages in conduct; and

(b)the conduct is violence or the threat of violence; and

(c)the violence or threat is directed towards someone else; and

(d)the violence or threat would be likely to cause a reasonable person to fear for his or her safety.

Maximum penalty: imprisonment for 2 years.

(2)For subsection (1) (b), the violence, or the threat of violence, must involve more than words.

(3)In this section:

engage in conduct—see the Criminal Code, section 13.

  1. Meaning of sexual intercourse in pt 3
    Section 50 (1), definition of sexual intercourse, paragraphs (a) and (b)

    omit

    vagina

    substitute

    genitalia

  2. Section 50 (1), new paragraph (ca)

    insert

    (ca)fellatio; or

  3. Section 50 (1) (e)

    after

    (c)

    insert

    , (ca)

  4. Section 50 (2), new definition of genitalia

    insert

    genitalia includes surgically constructed or altered genitalia.

  5. New section 55A

    insert

55ASexual intercourse with young person under special care

(1)A person commits an offence if—

(a)the person engages in sexual intercourse with a young person; and

(b)the young person is under the person’s special care.

Maximum penalty: imprisonment for 10 years.

NoteA reference to an offence includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).

(2)Without limiting subsection (1), a young person is under a person’s special care if—

(a)the person is a teacher at a school, or a person with responsibility for students at a school, and the young person is a student at the school; or

(b)the person is a step-parent, foster carer or legal guardian of the young person; or

(c)the person provides religious instruction to the young person; or

(d)the person is the young person’s employer; or

(e)the person is the young person’s sports coach; or

(f)the person provides professional counselling to the young person; or

(g)the person is a health professional and the young person is the person’s patient; or

(h)the person is a custodial officer and the young person is a young detainee in the officer’s care, custody or control.

(3)Subsection (1) does not apply to a person if the person—

(a)was married to the young person at the time of the alleged offence; or

(b)is not more than 2 years older than the young person.

NoteThe defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58).

(4)It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant believed on reasonable grounds that the young person was at least 18 years old.

NoteThe defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code, s 59).

(5)In this section:

custodial officer means—

(a)a police officer; or

(b)a corrections officer; or

(c)a youth detention officer under the Children and Young People Act 2008, section 96; or

(d)a transfer escort under the Children and Young People Act 2008, section 114; or

(e)a prison officer under the Crimes (Sentence Administration) Act 2005, section 217.

employer, of a young person, includes someone authorised to—

(a)decide or vary the terms of the young person’s employment; or

(b)end the young person’s employment.

health professional includes—

(a)a health practitioner; and

(b)a registered health professional under the Health Professionals Act 2004; and

(c)someone providing a health service.

health service—see the Human Rights Commission Act 2005, section 7.

young detainee—see the Children and Young People Act 2008, section 95.

young person means a person who is at least 16 years old, but not yet an adult.

NoteAdult—see the Legislation Act, dictionary, pt 1.

  1. New section 61A

    insert

61AAct of indecency with young person under special care

(1)A person commits an offence if—

(a)the person commits an act of indecency on, or in the presence of, a young person; and

(b)the young person is under the person’s special care.

Maximum penalty: imprisonment for 7 years.

NoteA reference to an offence includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).

(2)Without limiting subsection (1), a young person is under a person’s special care if—

(a)the person is a teacher at a school, or a person with responsibility for students at a school, and the young person is a student at the school; or

(b)the person is a parent, grandparent, step-parent, foster carer or legal guardian of the young person; or

(c)the person provides religious instruction to the young person; or

(d)the person is the young person’s employer; or

(e)the person is the young person’s sports coach; or

(f)the person provides professional counselling to the young person; or

(g)the person is a health professional and the young person is the person’s patient; or

(h)the person is a custodial officer and the young person is a young detainee in the officer’s care, custody or control.

(3)Subsection (1) does not apply to a person if the person—

(a)was married to the young person at the time of the alleged offence; or

(b)is not more than 2 years older than the young person.

NoteThe defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58).

(4)It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant believed on reasonable grounds that the young person was at least 18 years old.

NoteThe defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code, s 59).

(5)In this section:

custodial officer—see section 55A (5).

employer, of a young person—see section 55A (5).

health professional—see section 55A (5).

young detainee—see the Children and Young People Act 2008, section 95.

young person—see section 55A (5).

  1. Alternative verdicts for certain sexual offences
    New section 70 (6)

    insert

    (6)If, on the trial of a person for an offence against section 55A (1), the jury is not satisfied that the accused is guilty of the offence but is satisfied that the accused is guilty of an offence against section 61A (1), the jury may find the accused not guilty of the offence charged but guilty of an offence against section 61A (1).

  2. Indictment for act of indecency
    Section 72

    omit

    section 60 or 61

    substitute

    section 60, 61 or 61A

  3. Destroying or damaging property
    Section 116 (3)

    substitute

    (3)A person commits an offence if—

    (a)the person destroys or causes damage to property, other than by fire or explosive; and

    (b)the property belongs to—

    (i)someone else; or

    (ii)the person and someone else; and

    (c)the person intends to destroy or cause damage, or is reckless about destroying or causing damage, to the property; and

    (d)the damage to the property does not exceed $5 000.

    Maximum penalty: 50 penalty units, imprisonment for 2 years or both.

    NoteThe defence of lawful authority applies in relation to the offence under s (3) (see Criminal Code, s 43).

  4. Summary disposal of certain cases
    Section 375 (1) (c)

    substitute

    (c)an offence against the Criminal Code, section 310 (Aggravated robbery), section 311 (1) (b) (Burglary) or section 312 (Aggravated burglary).

    NoteUnder the Criminal Code, s 311 (1) (b), a person commits an offence if the person enters or remains in a building as a trespasser with intent to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building.

  5. New section 375 (4A)

    insert

    (4A)To remove any doubt, for subsection (4) (b), property does not include real property or any building at which the offence charged was allegedly committed.

Part 3Crimes (Child Sex Offenders) Act 2005

  1. Schedule 1, part 1.1, new item 10A

    insert

10A Crimes Act 1900, section 55A (1) sexual intercourse with young person under special care

  1. Schedule 2, part 2.1, new item 4A

    insert

4A Crimes Act 1900, section 61A (1) act of indecency with young person under special care

Part 4Crimes (Sentencing) Act 2005

  1. Sentencing—relevant considerations
    New section 33 (1) (wa)

    insert

    (wa)if the offender has complied with an order for assessment, treatment, referral or monitoring by the court alcohol and drug assessment service under section 40B (2)—that fact;

  2. Sentencing—irrelevant considerations
    New section 34 (1) (fa)

    insert

    (fa)that the offender did not comply with an order for assessment, treatment, referral or monitoring by the court alcohol and drug assessment service under section 40B (2);

  3. Pre-sentence report matters
    New section 40A (ja)

    insert

    (ja)whether the offender—

    (i)is addicted to, or misuses, alcohol or a controlled drug; and

    (ii)has been assessed, treated or monitored by the court alcohol and drug assessment service under section 40B;

  4. New section 40B

    insert

40BPre-sentence report matters—court alcohol and drug assessment service

(1)This section applies if the offender is addicted to, or misuses, alcohol or a controlled drug.

(2)Before sentencing the offender, a court may order that the offender—

(a)be assessed by the court alcohol and drug assessment service (CADAS); and

(b)comply with any treatment, referral to treatment or monitoring by CADAS as a result of the assessment.

(3)A court must not make an order under subsection (2) without the offender’s consent.

(4)In making an order under subsection (2), the court may also order that the offender comply with any reasonable direction given by the director-general of the administrative unit responsible for the administration of the Corrections Management Act 2007 in relation to the assessment, treatment, referral or monitoring.

(5)If the court makes an order under subsection (2), the court may make an order requiring a clinician from CADAS to appear before the court at the time and place stated in the order for the sentencing of the offender.

  1. Victim impact statements—use in court
    New section 52 (3) and (4)

    insert

    (3)The court must allow the statement to be read out in court if the maker of the statement wishes the statement to be given to the court in that way.

    (4)If the maker of the statement wishes, a statement may be read out by audiovisual link if the maker of the statement was eligible to give evidence in the proceeding to which the statement relates by audiovisual link under the Evidence (Miscellaneous Provisions) Act 1991—

    (a)part 2 (Evidence of children); or

    (b)part 4 (Evidence in sexual and violent offence proceedings).

Part 5Criminal Code 2002

  1. New section 612A

    insert

612APossessing offence—presumption if controlled precursor possessed to manufacture controlled drug

(1)This section applies if, in a prosecution for an offence against section 612 (5) (Possessing controlled precursor), it is proved that the defendant possessed a controlled precursor with the intention of using any of it to manufacture a controlled drug.

(2)It is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.

NoteThe defendant has a legal burden in relation to the matters mentioned in s (2) (see s 59).

  1. Sections 613 and 614

    omit

    containing instructions

    substitute

    containing instructions,

  2. New section 614A

    in part 6.3, insert

614APossessing tablet press

(1)A person commits an offence if—

(a)the person possesses a thing; and

(b)the thing is a tablet press; and

(c)the person is reckless about whether the thing is a tablet press.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2)Subsection (1) does not apply to a person if the person has a reasonable excuse for possessing the tablet press.

Examples—reasonable excuse

1     to manufacture a regulated substance in accordance with authorisation under the Medicines, Poisons and Therapeutic Goods Act 2008

2     to supply a regulated therapeutic good in accordance with authorisation under the Medicines, Poisons and Therapeutic Goods Act 2008

3     to give the tablet press to a person authorised under the Medicines, Poisons and Therapeutic Goods Act 2008 to manufacture a regulated substance or to supply a regulated therapeutic good

Note 1The defendant has an evidential burden in relation to the matters mentioned in s (2) (see s 58).

Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3)In this section:

tablet press means an instrument or machine that may be used to manufacture a controlled drug in tablet form.

  1. Sections 620 and 621

    omit

    containing instructions

    substitute

    containing instructions,

  2. Participating in a criminal group—causing harm
    New section 653 (3) and (4)

    insert

    (3)In the prosecution of an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

    (4)In this section:

    threat includes the meaning given by section 402.

    NoteFor further definition of threat, see the dictionary.

  3. Participating in a criminal group—property damage
    Section 654 (1), new note

    insert

    NoteThe fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20 (4)).

  4. Section 654 (3)

    after

    carried

    insert

    out

  5. Section 654 (4), definition of threat

    substitute

    threat includes the meaning given by section 402.

    NoteFor further definition of threat, see the dictionary.

Part 6Domestic Violence and Protection Orders Act 2008

  1. Schedule 1, table 1.2, new item 27A

    insert

27A Crimes Act 55A sexual intercourse with young person under special care

  1. Schedule 1, table 1.2, new item 32A

    insert

32A Crimes Act 61A act of indecency with young person under special care

Part 7Evidence (Miscellaneous Provisions) Act 1991

  1. Meaning of witness—div 4.2A
    Section 40D (1)

    omit

    the complainant

    substitute

    a witness

  2. Section 40D (1) (a)

    after

    child

    insert

    on the day an audiovisual recording is made

  3. Meaning of witness—div 4.2B
    Section 40P (1) (a)

    after

    child

    insert

    on the day the proceeding started in the Magistrates Court

  4. New section 43A

    insert

43ARecording evidence given by audiovisual link in sexual offence proceedings

(1)This section applies if—

(a)a complainant or similar act witness gives evidence in a proceeding by audiovisual link under section 43; and

(b)the proceeding is a sexual offence proceeding.

(2)The complainant’s or similar act witness’s evidence given by audiovisual link must be recorded as an audiovisual recording.

(3)The recording is admissible as the complainant’s or similar act witness’s evidence in a related proceeding unless the court in the related proceeding otherwise orders.

(4)However, the court in the related proceeding may—

(a)refuse to admit any part of the recording in evidence; and

(b)if the court refuses to admit part of the recording in evidence—order that the part that is not admitted be deleted from the recording.

(5)A party to a related proceeding may apply to the court for an order that the complainant or similar act witness attend the hearing to give further evidence.

(6)The court must not make the order unless satisfied that—

(a)the applicant has become aware of something that the applicant did not know or could not reasonably have known when the recording was made; and

(b)if the complainant or similar act witness had given evidence in person at the hearing, the complainant or similar act witness could be recalled; and

(c)it is in the interests of justice to make the order.

(7)In this section:

related proceeding, in relation to the proceeding in which the evidence given by audiovisual link was recorded, means—

(a)a re-hearing or re-trial of, or appeal from, the hearing of the proceeding; or

(b)another proceeding in the same court as the proceeding for the offence, or another offence arising from the same, or the same set of, circumstances; or

(c)a civil proceeding arising from the offence.

Part 8Firearms Act 1996

  1. Adult firearms licences—genuine reasons to possess or use firearms
    Table 61, item 2

    substitute

2 vermin control on rural land

2.1     For vermin control on rural land—the applicant has the permission of the owner or occupier of the land to shoot vermin on the land.

2.2     For vermin control on land within a reserved area under the Nature Conservation Act 1980—the applicant has the permission of an officer of the ACT Parks and Conservation Service or ACT Forests or another authority prescribed by regulation, to shoot vermin on the land.

  1. Regulation-making power
    Section 272 (2) (a)

    before

    acquisition

    insert

    manufacture,

Part 9Magistrates Court Act 1930

  1. Appeals to which div 3.10.2 applies
    New section 208 (1) (g)

    insert

    (g)an appeal from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under the Road Transport (General) Act 1999, division 4.2 (Licence suspension, disqualification and related matters), if the order is for a longer period than the minimum.

    NoteAutomatic disqualification provision—see the Road Transport (General) Act 1999, s 61A.

  2. Jurisdiction of Childrens Court
    New section 288 (1) (e)

    insert

    (e)if a child and an adult are jointly charged with an offence—the proceeding against the child and the proceeding against the adult that arise out of the charge.

  3. Section 289 heading

    substitute

  4. Procedure for proceedings where children jointly charged with adults

  5. Section 289 (1) and (2)

    substitute

    (1)If section 288 (1) (e) applies, a magistrate may, considering the nature of the alleged offence and the time and expense involved in carrying out hearings for the offence separately, order that the hearing for the offence against the child and the adult be heard together.

    NoteSection 288 (1) (e) applies if a child and an adult are jointly charged with an offence.

    (2)Subsection (1) does not affect the operation of the Court Procedures Act 2004, part 7A (Procedural provisions—proceedings involving children or young people) in relation to the child.

Part 10Prostitution Act 1992

  1. Schedule 1, new item 14A

    insert

14A 55A sexual intercourse with young person under special care

  1. Schedule 1, new item 19A

    insert

19A 61A act of indecency with young person under special care

Part 11Supreme Court Act 1933

  1. Schedule 2, part 2.2, new item 12A

    insert

12A Crimes Act 55A sexual intercourse with young person under special care

  1. Schedule 2, part 2.2, new item 18A

    insert

18A Crimes Act 61A act of indecency with young person under special care

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 29 November 2012.

  2. Notification

    Notified under the Legislation Act on 17 April 2013.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Crimes Legislation Amendment Bill 2013, which originated in the Legislative Assembly as the Crimes Legislation Amendment Bill 2012 (No 2) and was passed by the Assembly on 9 April 2013.

    Acting Clerk of the Legislative Assembly

    © Australian Capital Territory 2013

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