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