Criminal Law Amendment Act 1994 (WA)
WESTERN AUSTRALIA
CRIMINAL LAW AMENDMENT
ACT 1994
No. 82 of 1994
AN ACT to amend The Criminal Code and the Offenders Community Corrections Act 1963 and to make consequential amendments to the —
| • | Bail Act 1982; |
| • | Child Welfare Act 1947; |
| • | Evidence Act 1906; |
| • | Justices Act 1902; and |
| • | Young Offenders Act 1994. |
[Assented to 23 December 1994.]
The Parliament of Western Australia enacts as follows:
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PART 1— PRELIMINARY
Short title
1. This Act may be cited as the Criminal Law Amendment
Act 1994.
Commencement
2. (1) Subject to this section, this Act comes into operation on
the day on which it receives the Royal Assent.
Subject to subsection (3), Parts 2, 3, 4 and 6 come into
operation on the 28th day after the day on which this Act
receives the Royal Assent.
(2)
Section 13 (6) has no effect unless the Young Offenders Act 1994 is enacted, and, if that Act receives the Royal Assent after the commencement day referred to in subsection (2), section 13 (6) comes into operation on the day on which that Act receives the Royal Assent.
(3)
Part 5 has no effect unless the Young Offenders Act 1994 is enacted, and, if that Act has not come into operation before this Act receives the Royal Assent, Part 5 comes into operation on the day on which that Act comes into operation.
(4)
The Code
3. In this Act "the Code" means The Criminal Code*.
[* Reprinted as at 17 December 1993 as the Schedule to the Criminal Code Act 1913 appearing in Appendix B to the Criminal Code Compilation Act 1913 and amended by Act No. 32 of 1994.]
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PART 2 — AMENDMENTS ABOUT SENTENCING
Sections 17A to 171) inserted
4. Chapter IV of the Code is amended by inserting before
section 18 the following sections —
U
Principles of sentencing
17A. (1) A sentence imposed on an offender shall
be commensurate with the seriousness of the offence.
(2) The seriousness of an offence shall be determined by taking into account —
| (a) | the statutory penalty for the offence; |
| (b) | the circumstances of the commission of the offence; |
| (c) | any aggravating factors; and |
| (d) | any mitigating factors. |
(3) Subsection (1) does not prevent the reduction of a sentence because of
| (a) | any mitigating factors; or |
| (b) | any rule of law as to the totality of sentences. |
(4) A court shall not impose a sentence of imprisonment on an offender unless it is of the opinion that
| (a) | the seriousness of the offence is such that only imprisonment can be justified; or |
| (b) | the protection of the community requires it. |
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A court sentencing an offender shall take into
account any relevant guidelines in a guideline
judgment given under section 17D.
(5)
In subsection (1), "sentence" includes any form of punishment or disposition available to a court instead of or in addition to the punishments referred to in section 18 (1).
(6)
For the purposes of subsection (4), an order
under section 19 (5) sentencing a person to be
imprisoned is not a sentence of imprisonment.
(7)
Aggravating factors
1713. (1) Aggravating factors are factors which, in
the court's opinion, increase the culpability of the
offender.
(2) An offence is not aggravated by the fact
that —
| (a) | the offender pleaded not guilty to it; |
| (b) | the offender has a criminal record; or |
| (c) | a previous sentence has not achieved the purpose for which it was imposed. |
Mitigating factors
17C. (1) Mitigating factors are factors which, in
the court's opinion, decrease the culpability of the
offender.
(2) The fact that property derived or realized, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of
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the commission of the offence is forfeited to the Crown
under a written law is not a mitigating factor.
Guideline judgments
17D. (1) The Full Court of the Supreme Court or
the Court of Criminal Appeal may give a guideline judgment containing guidelines to be taken into account by courts sentencing offenders.
(2)
A guideline judgment may be given in any proceeding considered appropriate by the court giving it, and whether or not it is necessary for the purpose of determining the proceeding.
A guideline judgment may be reviewed, varied or revoked in a subsequent guideline judgment.
(3)
Section 19A amended
5. Section 19A of the Code is amended —
| (a) | by repealing subsection (1); and |
| (b) | in subsection (2) by deleting "(1) or". |
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PART 8 — GENERAL AMENDMENTS
Section 301 amended
6. Section 301 of the Code is amended by deleting "3 years."
and substituting the following
"
5 years.
Summary conviction penalty: Imprisonment for 2 years or a fine of $8 000.
Section 317A inserted
7. After section 317 of the Code the following section is
inserted
"
Assaults with intent
317A. Any person who —
| (a) | assaults another with intent to commit or facilitate the commission of a crime; |
| (b) | assaults another with intent to do grievous bodily harm to any person; or |
| (c) | assaults another with intent to resist or prevent the lawful arrest or detention of any person, |
is guilty of a crime, and is liable to imprisonment for
5 years.
Summary conviction penalty: Imprisonment for 2 years or a fine of $8 000.
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Section 318 amended
8. Section 318 (1) of the Code is amended —
| (a) | by deleting paragraphs (a), (b) and (c); |
| (b) | by deleting "5 years." and substituting the following — |
| 10 years. | "; and |
| (c) | by deleting "2 years or a fine of $7 500." and substituting the following — | |
|
Chapter EDIIIIB inserted and sections 550 and
551 repealed
0. (1) After section 338C of the Code the following chapter is
inserted —
CHAPTER SEXIER — INTIMIDATION
Unlawful stalking
338D. (1) Any person who stalks another person
with intent to —
| (a) | prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; |
| (b) | compel the doing of an act by a person who is lawfully entitled to abstain from doing that act; or |
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| (c) | cause physical or mental harm to a person or apprehension or fear in a person, |
is guilty of a crime and is liable
| (d) | where the offence is committed in circumstances of aggravation, to imprisonment for 8 years; and |
| (e) | in any other case, to imprisonment for 3 years. |
Summary conviction penalty:
In a case to which paragraph (d) applies: Imprisonment for 2 years or a fine of $8 000.
In a case to which paragraph (e) applies: Imprisonment for 18 months or a fine of $6 000.
(2) It is a defence to a charge under this section to prove that the accused person acted with lawful authority or a reasonable excuse.
Meaning of terms in section 338D
338E. (1) For the purposes of section 338D a
person stalks another person by —
| (a) | persistently following or telephoning that person; |
| (b) | depriving that person of possession of any property or hindering that person in the use of any property; or |
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(c) watching or besetting —
| (i) | that person's dwelling-house, or the approaches to it; |
(ii) that person's place of employment or business, or the approaches to it; or
(iii) a place where that person happens to be, or the approaches to it.
(2)
Attendance in order merely to receive or
communicate information is not watching or besetting
within the meaning of subsection (1) (c).
(3)
Sending unsolicited gifts to a place or leaving
unsolicited gifts at a place is besetting within the
meaning of subsection (1) (c).
(4)
In section 338D "circumstances of aggravation" means circumstances in which —
(a) at or immediately before or immediately after the commission of the offence, the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed;
(b) the conduct of the offender in committing the offence constituted a breach of —
(i) an order made under Part VII of the Justices Act 1902 or registered under Part VIIA of that Act; or
(ii) a condition on which bail had been granted to the offender.
(2) Sections 550 and 551 of the Code are repealed.
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Section 632A inserted
10. After section 632 of the Code the following section is
inserted —
Plea of guilty after jury have been sworn
632A. At any time after the jury have been sworn
and before they have given their verdict, the accused person may plead that he is guilty of the offence charged in the indictment, or, with the consent of the Crown, of another offence of which he might be convicted on the indictment.
If such a plea is pleaded the court shall discharge the jury.
Section 688 amended
11. Section 688 (2) (a) of the Code is amended by deleting "indictment;" and substituting the following —
indictment or staying or adjourning proceedings on an
indictment;
Various sections amended
12. Sections 54, 55, 58, 59 and 317 of the Code are amended by deleting "$7 500." and substituting, in each case, the following —
| " | $8 000. |
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Consequential amendments to other Acts
13. (1) Schedule 2 to the Bail Act 1982* is amended in the
division headed "1. The Criminal Code" —
| (a) | by deleting the items relating to section 318 and substituting the following items — |
| s. 317A (a) | Assault with intent to commit |
| or facilitate a crime | |
| s. 317A (b) | Assault with intent to do grievous bodily harm |
| a. 318 | Serious assaults |
and
| (b) | by inserting after the item relating to section 333 the following item — |
| a. 338D | Unlawful stalking |
(2) Schedule 2 to the Bail Act 1982* is amended by inserting before the division headed "3. Road Traffic Act 1974" the following division —
2a. Justices Act 1902
| a. 173 | Breach of order to keep the peace |
[* Reprinted as at 17 October 1991.
For subsequent amendments see 1993 Index to Legislation of Western Australia, Table 1, p. 16 and Gazette 4 March 1994, p. 915.]
(3) If it is still in operation when this subsection commences,
the Fourth Schedule to the Child Welfare Act 1947* is amended
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in Part I, Division B by inserting at the end the following
item —
318 Serious assaults
[* Reprinted as at 23 May 1990.
For subsequent amendments see 1993 Index to
Legislation of Western Australia, Table 1, p. 31.]
(4) The Evidence Act 1906* is amended —
| (a) | in Part 1 of the Second Schedule by inserting after the item relating to section 317 the following item — |
| B. 317A | Assaults with intent | "; and |
| (b) | in Part C of Schedule 7 by inserting after the item relating to section 317 the following item — |
| 31'7A | Assaults with intent |
[* Reprinted as at 1 August 1992.
For subsequent amendments see 1993 Index to
Legislation of Western Australia, Table 1, p. 71.]
(5) The Justices Act 1902* is amended —
| (a) | by repealing section 97 (2); and |
| (b) | in section 173, by deleting "$1 000 or 6 months imprisonment." and substituting the following — |
Imprisonment for 18 months or a fine of
$6 000.
[* Reprinted as at 1 April 1992.
For subsequent amendments see 1993 Index to
Legislation of Western Australia, Table 1, p. 111.]
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(6) The Young Offenders Act 1994 is amended —
| (a) | in Schedule 1, in the division headed "1. The Criminal Code" by inserting after the item relating to section 306 the following item — |
| a. 317A (c) | Assault with intent to resist or prevent arrest or detention |
".
and
| (b) | in Schedule 2, in the division headed "1. The Criminal Code" by deleting the items relating to section 318 and substituting the following items — |
if
| s. 317A (a) | Assault with intent to commit or facilitate a crime |
| s. 317A (b) | Assault with intent to do grievous bodily harm |
| s. 318 | Serious assaults |
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PART 4 — AMENDMENTS ABOUT TRIAL BY
JUDGE ALONE
Chapter LXIVA inserted
14. After section 651 of the Code the following chapter is
inserted —
CHAPTER LXIVA — TRIAL BY JUDGE ALONE
Trial by judge alone without a jury
651A. (1) In this section "election" means an
election under subsection (2).
Subject to this section, where an accused person committed for trial before any court for an indictable offence elects to be tried by a judge alone, the trial is to proceed without a jury.
(2)
An election is to be made in open court in accordance with rules of court.
(3)
| (4) | An election can be made — |
| (a) | before an indictment has been presented to a court against the accused person; or |
| (b) | at any stage after an indictment (including |
an a officio indictment) has been presented
to a court against the accused person but before the identity of the trial judge is known to the accused person.
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(5)
An election does not have effect unless the Crown consents to the trial proceeding without a jury.
Where 2 or more accused persons are jointly charged, an election made by one accused person does not have effect unless each other accused person also makes an election.
(6)
(7)
Where an accused person is charged with 2 or
more offences, an election does not have effect unless
it is made in respect of both or all of the offences.
An accused person who elects to be tried by a
judge alone cannot subsequently elect to be tried by a
jury.
(8)
Judge's verdict and findings
651B. (1) In a trial by a judge alone under this chapter the judge may make any findings or give any verdict that could have been made or given by the jury if the trial had been held before a jury, and any finding by or verdict of the judge has, for all purposes, the same effect as a finding by or verdict of a jury.
(2) A judgment in any trial by a judge alone under this chapter is to include the principles of law applied by the judge and the findings of fact on which the judge relied, but the validity of the judgment is not affected by any failure of the judge to comply with this subsection.
Law, practice and procedure relating to jury trials to apply to trials without juries
651C. (1) A court before which an accused person has elected to be tried by judge alone under this chapter can exercise any power that it could have
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exercised if the election had not been made. The powers conferred by section 611A can be exercised to the extent provided by rules of court.
(2) In a trial by a judge alone under this chapter the judge is to apply, so far as is practicable, the same principles of law, practice and procedure as would be applied in a trial before a jury.
(3) If any written or other law —
| (a) | requires a warning, information or instruction to be given to a jury in certain circumstances; or |
| (b) | prohibits a warning from being given to a jury in certain circumstances, |
the judge in a trial by judge alone under this chapter is to take the requirement or prohibition into account if those circumstances arise in the course of the trial.
(4) The provisions of this Code or any other written law relating to trials before a jury apply to a trial by a judge alone under this chapter with any modifications that are prescribed by rules of court and any other modifications that may be necessary.
(5) Without limiting subsection (4), a reference in this Code or any other written law to a person being tried or triable by or before a jury, or to the trial of a person taking place before a jury, is, unless the context otherwise requires, to be read as including a reference to a person being tried or triable by a judge alone, or to the trial of a person taking place before a judge alone, under this chapter.
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Section 688 amended
15. Section 688 (2) of the Code is amended by inserting before
paragraph (c) the following —
(ba) against any verdict of acquittal given by a judge alone under Chapter LXIVA and any judgment founded on that verdict —
(i) on any ground of appeal which involves a question of law alone; or
(ii) with the leave of the Court of Criminal Appeal or upon the certificate of the judge that it is a fit case for appeal, on any ground of appeal which involves a question of fact alone or a question of mixed law and fact;
| Or |
Consequential amendments to other sections
16. (1) Section 574 (4) (a) of the Code is amended by deleting
"by a jury" and substituting the following —
by a judge with or without a jury
(2) Section 622 of the Code is amended by deleting "is
entitled to have them tried" and substituting the following —
| , subject to Chapter LXIVA, those issues are triable | ". |
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PART 5 — AMENDMENTS ABOUT THE DETENTION OF
YOUNG ADULTS
Principal Act
17. In this Part the Offenders Community Corrections
Act 1963* is referred to as the principal Act.
[* Reprinted as at 10 October 1991.
For subsequent amendments see 1993 Index to Legislation of Western Australia, Table 1, pp. 148-9 and Act No. 32 of 1994.]
Long title amended
18. The long title of the principal Act is amended by inserting
after "centres" the following —
, for the detention of young adults in particular
facilities
Part HE inserted
19. The principal Act is amended by inserting after section 20S
the following Part —
PART HB — DETENTION OF YOUNG ADULTS
Operation of Part
20SA. This Part does not operate unless —
(a) regulations under the Young Offenders
Act 1994 provide for detention centres of
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the kind referred to in section 119 (1) (a) of
that Act; and
(b) such a detention centre has been declared under section 13 of that Act.
Detention under Young Offenders Act 1994, s. 119
may be directed
20SB. (1) A court, on sentencing an offender to a
term of imprisonment, or an aggregate of terms of imprisonment ("the term imposed"), of at least 12 months but not more than 36 months for a prescribed offence, may direct that the offender be detained for 4 months in a detention centre of a kind referred to in section 119 (1) (a) of the Young Offenders Act 1994.
(2) A court that makes a direction under subsection (1) must nevertheless —
| (a) | make such directions under section 20 of The Criminal Code as it thinks fit; and |
| (b) | decide whether or not to make an order under section 37A (1), |
in respect of the term imposed.
(3) A direction under subsection (1) may be made only if —
(a) the offender is at least 18 but not more than 21 years old when the sentence is imposed;
(b) the court has received a pre-sentence report about the offender;
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(c) the offender —
(i) has not been previously convicted of an offence prescribed for the purposes of paragraph (b) of section 119 (2) of the Young Offenders Act 1994 by regulations under that Act; or
(ii) has not previously served all or any of a sentence of imprisonment or detention;
| and |
| (d) | the offender consents to it. |
The court that makes a direction under
subsection (1) may, on the application of the chief
executive officer, cancel the direction.
(4)
On making an application under subsection (4), the chief executive officer may transfer the offender to a prison until the application is determined.
(5)
(6)
If on an application under subsection (4), the court refuses to cancel the direction, the offender must be returned to a detention centre of the kind referred to in subsection (1) and any period the offender spent in a prison, having been transferred under subsection (5), counts as time served in such a detention centre.
| (7) | In subsection (1) "prescribed offence" |
means an offence prescribed for the purpose of section 119 (1) of the Young Offenders Act 1994 by regulations under that Act.
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Effect of direction under section 20SB
20SC. (1) If a direction is made under section 20SB (1), then, unless the direction ceases to have effect under subsection (3) —
| (a) | the offender is to be detained in a detention centre of the kind referred to for 4 months; |
| (b) | section 121 (5) and Parts 8, 9, and 10 of the Young Offenders Act 1994 (other than sections 133 (1) (c) and 147 (2) (b)) apply to the term imposed as if it were a term of detention imposed under that Act; and |
| (c) | Parts III, IIIA and IIIB do not apply to the term imposed. |
Until it is practicable to transport an offender to a detention centre of the kind referred to in section 20SB (1), the offender is to be imprisoned in a prison and any period spent in a prison as a result counts as time served in such a detention centre.
(2)
| (3) | If while an offender is detained under such a |
direction —
| (a) | the offender withdraws his or her consent to the direction; |
| (b) | the offender is sentenced to a term of imprisonment for another offence; or |
| (c) | the court cancels the direction under section 20SB (4), |
the direction ceases to have effect and the term imposed takes effect as if the direction had not been made.
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(4) If a direction ceases to have effect by virtue of subsection (3), the period for which the offender was detained before then counts as time served in respect of the term imposed.
Consequential amendment to Young Offenders Act 1994
20. Section 7 of the Young Offenders Act 1994 is amended in paragraph (i) by deleting "although" and the remainder of the paragraph and substituting the following —
4f
although —
(i) a young person who has reached the age of 16 years may be held in a prison for adults but is not to share living quarters with an adult prisoner; and
(ii) a young person who is the subject of a direction under section 119 (1) may be held in a detention centre of a kind referred to in that section with adults subject to a direction under section 20SB of the Offenders Community Corrections Act 1963;
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PART 6 — AMENDMENTS ABOUT SENTENCES FOR
MURDER AND WILFUL MURDER
Principal Act
21. In this Part the Offenders Community Corrections Act 1963* is referred to as the principal Act.
[* Reprinted as at 10 October 1991.
For subsequent amendments see 1993 Index to Legislation of Western Australia, Table 1, pp. 148-9 and Act No. 32 of 1994.]
Section 20T amended
22. Section 20T of the principal Act is amended by inserting
after the definition of "commencement date" the following
definition —
"commencement of the 1994 Act" means the day of the commencement of Part 6 of the Criminal Law Amendment Act 1994;
Section 34 amended
23. The Table to section 34 of the principal Act is amended by
deleting items 2 and 7 and inserting in the appropriate positions
the following items —
ft
| 2. A | prisoner The date of the 3 years |
undergoing a expiration of a sentence of strict period of 20 years security 1 i fe after the prisoner imprisonment wassentenced
imposed before the commencement of the 1994 Act, other than —
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| (a) | a sentence mentioned in item 1; or |
| (b) | a sentence in respect of which the prisoner was ordered not to be eligible for parole under section 40D (2a) |
| 2a. A prisoner undergoing a | The date of the 3 years |
| expiration of the |
| sentence of strict | minimum term set |
| security life | by the court under |
| imprisonment | section 40D (2c) |
| imposed on or after the commencement of the 1994 Act, other than a sentence in respect of which the prisoner was ordered not to be eligible for parole under section 40D (2a) |
| 7. A | prisoner undergoing a | The date of the 3 years |
| expiration of a | ||
| sentence of life | period of 7 years | |
| imprisonment | after the prisoner | |
| imposed on or after | was sentenced | |
| the commencement date and before the commencement of the 1994 Act, other than a sentence imposed under section 282 (a) (ii) or (c) (ii) of The Criminal Code |
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| 7a. A | prisoner | The date of the 3 years |
| undergoing a | expiration of the |
| sentence of life | minimum term set |
| imprisonment | by the court under |
| imposed on or after | section 40D (2d) |
| the commencement of the 1994 Act under section 282 (a) (ii) or (c) (ii) of The Criminal Code |
| 7b. A prisoner undergoing a | The date of the 3 years |
| expiration of the |
| sentence of life | minimum term set |
| imprisonment | by the court under |
| imposed on or after | section 40D (2e) |
| the commencement of the 1994 Act under section 282 (b) or (d) (i) of The Criminal Code |
| 7c. A | prisoner | The date of the 3 years |
| undergoing a | expiration of a |
| sentence of life | period of 7 years |
| imprisonment | after the prisoner |
| imposed on or after | was sentenced |
| the commencement of the 1994 Act, other than a sentence imposed under section 282 of The Criminal Code |
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Section 40D amended
24. (1) Section 40D (1) of the principal Act is amended by
deleting "and (2b)," and substituting the following —
, (2b) and (2g),
Section 40D (2) of the principal Act is amended by
inserting after "imprisonment" in the first place where it occurs
the following —
(2)
it<
imposed before the commencement of the 1994 Act,
Section 40D of the principal Act is amended by inserting after subsection (2b) the following subsections —
(3)
A court that sentences a person to strict security life imprisonment must, if it does not make an order under subsection (2a), set a minimum term of at least 20 and not more than 30 years that the person must serve before being eligible for release on parole.
(2c)
A court that sentences a person to life imprisonment for wilful murder must set a minimum term of at least 15 and not more than 19 years that the person must serve before being eligible for release on parole.
(2d)
A court that sentences a person to life imprisonment for murder must set a minimum term of
(2e)
at least 7 and not more than 14 years that the
offender must serve before being eligible for release on
parole.
(20 Subsections (2c) to (2e) apply in respect of a person irrespective of whether the offence concerned was committed before, on or after the commencement of the 1994 Act.
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(2g) Except where the Governor is of the opinion that special circumstances exist, an order shall not be made under subsection (1) in respect of a prisoner undergoing a sentence imposed after the commencement of the 1994 Act —
| (a) | in the case of a prisoner undergoing a sentence of strict security life imprisonment, other than a sentence in respect of which an order was made under subsection (2a) — before the prisoner has served the minimum term set by the court under subsection (2c); |
| (b) | in the case of a prisoner undergoing a sentence of life imprisonment for wilful murder — before the prisoner has served the minimum term set by the court under subsection (2d); |
| (c) | in the case of a prisoner undergoing a sentence of life imprisonment for murder — before the prisoner has served the minimum term set by the court under subsection (2e). |
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