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Homebuyer’s Guide to Conveyancing
Buying your first home can be a confusing process, particularly when it comes to conveyancing. Taking your first step on to the property ladder can be an exciting time. But for those who have never been involved in a property purchase, the conveyancing process can often seem hard to understand. What i...
CRIMINAL LAW OFFENCES
In general term, personal violence offences may be differentiated according to the degree of harm inflicted upon the victim and the intention of the offender, ranging from common assault to those offences where the offender has the intention to inflict a particular type of harm.
The different types of personal violence include:
- Common assault
- Assault occasioning actual bodily harm
- Reckless grievous bodily harm or wounding
- Use or possess weapon to resists arrest
- Attempt to choke
- Administer intoxicating substance
- Assault causing death
Offences of personal violence cover a wide spectrum of behaviour and consequences. Such offences are viewed very seriously by the courts.
Common aggravating factors
Certain objective aggravating factors frequently arise in the context of personal violence offences.
- Actual or threatened use of a weapon
- Actual or threatened use of a knife
- Actual or threatened use of a firearm
- Use of syringes
- Use of glass, broken bottles
- Degree of premeditation or planning
- Offence committed in company
- Offence was unprovoked
- Violence on a vulnerable victim (based on his/her age, disability, occupation etc.)
- Offence committed in victim’s home
- Gratuitous cruelty
- Offence caused substantial injury, emotional harm, loss or damage to victim
An assault may be established by proof of either physical contact (battery) or an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence.
As a charge of common assault does not involve actual bodily harm, an offence is not mitigated in account of there being minimal violence.
Maximum penalty: 2 years imprisonment
ASSAULT OCCASIONING ACTUAL BODILY HARM
Actual bodily harm will have been occasioned where a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind.
The degree of violence involved is a material consideration in sentencing.
Maximum penalty: 5 years imprisonment
RECKLESS GRIEVOUS BODILY HARM OR WOUNDING
Both of these offences are considered extremely serious criminal offences.
They will occur when a person, alone or in the company of others, recklessly causes grievous bodily harm to any person or reckless wounds any person.
The injury inflicted is not the only factor in determining the seriousness of the offence, the nature of the attack and surrounding circumstances are also highly relevant.
‘Grievous bodily harm’ includes any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease.
‘Wounding’ is often described as the breaking of the skin. The consequences of wounding can vary widely, may be quite minor and does not need to involve the use of a weapon.
Maximum penalty: 10 years imprisonment
Maximum penalty: 14 years imprisonment if the offence was committed in company.
ATTEMPT TO CHOKE
It is an offence to attempt to choke, suffocate or strangle a person with intent to commit an indictable offence.
Maximum penalty: 25 years imprisonment
ADMINISTER INTOXICATING SUBSTANCE
It is an offence to administer an intoxicating substance with intent to commit an indictable offence.
‘Intoxicating substance’ includes alcohol, a narcotic drug, or any other substance that affects a person’s senses or understanding.
Maximum penalty: 25 years imprisonment
ASSAULT CAUSING DEATH
A person is guilty of such an offence if the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and the assault is not authorised or excused by law and the assault causes the death of another person.
Maximum penalty: 20 years imprisonment
For more information about personal violence offences, please refer to the NSW Judicial Commission’s ‘Assault, wounding and related offences’ section.
MURDER AND MANSLAUGHTER
According to the Crimes Act 1900 (NSW), murder is the unlawful killing, with malice aforethought, of another human.
A premeditated state of mind distinguishes murder from other forms of unlawful homicide.
The states of mind recognised as constituting ‘malice’ include:
- Intent to kill
- Intent to inflict grievous bodily harm short of death
- Reckless indifference to an unjustifiably high risk to human life
- Commission of a crime punishable by life imprisonment or imprisonment for 25 years
Maximum penalty: life imprisonment with a standard non-parole period of 20 years, or 25 years for the murder of a child under the age of 18, and a mandatory sentence of life imprisonment without the possibility of parole if the victim is a police officer or public official.
Common aggravating factors
Aggravating factors in the context of murder include:
- Contract killings
- Circumstances surrounding the offence (sexual assault, mutilation of body etc.)
- Offence caused substantial harm caused to the victim
- Future dangerousness
- Offence motivated by financial greed
- Murder of a political figure for political ends
- Murder arising from a planned extortion
- Murder taking place within sight of victim’s children
For more information, please refer to the NSW Judicial Commission’s ‘Murder’ section.
Unlawful killing that does not amount to wilful murder or murder is manslaughter. The offender is considered less morally culpable because of the absence of ‘malice aforethought’.
There are only two categories of involuntary manslaughter:
- By an unlawful and dangerous act carrying with it an appreciable risk of serious injury
- By criminal negligence with a high risk that death or grievous bodily harm will follow
Maximum penalty: 25 years imprisonment.
For more information, please refer to the NSW Judicial Commission’s ‘Manslaughter’ section.
Sexual assault includes rape, incest, child abuse and unwanted sexual behaviour.
The following sections will provide you with information regarding the different types of sexual offences recognized in New South Wales.
For more information, please refer to Legal Aid’s ‘Sexual assault’ section.
A person rapes if:
- After sexual penetration they do no withdraw after becoming aware that you are not consenting or might not be consenting
- They make you sexually penetrate them or another person. It does not matter if the person being penetrated consents to the act.
- They sexually penetrate you without your consent either
- While being aware that you are not consenting or might not be consenting
- While not giving any thought to whether you are not consenting or might not be consenting
Please note that consent means free agreement of your own free will. If you do not agree to the act, it is rape, whatever the relationship between you and the other person.
Under the law you are not freely agreeing if the penetration happens:
- Because you were physically forced to do it or you feared someone else would be forced
- Because you were scared of what might happen to you or someone else
- Because you were unlawfully detained (held).
Under the law you are also not freely agreeing if you:
- Are asleep, unconscious or so affected by alcohol or drugs that you cannot freely agree
- Are not able to understand the sexual nature of the act
- Mistake the sexual nature of the act or think the person is someone else
- Believe that the act is for medical or cleanliness purposes.
Indecent assault covers sexual acts other than sexual penetration, such as touching your breasts or bottom without your agreement.
Incest happens when an act of sexual penetration is done with a close relative, for example a father, stepfather, grandfather or brother. It is still incest if you are under 18 and the person is your parent’s de facto spouse.
If you are forced to take part in incest against your will, you have not anything against the law. Once the person who forces you has broken the law.
Sexual offences against children
Offences that are committed against young people under the age of 18 include:
- Sexual penetration of a child aged 12 or younger
- Sexual penetration of a child aged between 12 and 16
- Indecent act with a child under the age of 16
- Persistent (continued) sexual abuse of a child under the age of 16
- Sexual penetration or an indecent act with a child aged 16 or 17 by an adult who cares for, supervises or has authority over the child. May include a teacher, an employer a foster parents, sports coach etc.
- Procuring a child under 16 for sexual penetration or an indecent act by an adult
- Procuring a child aged 16 or 17 for sexual penetration or an indecent act by an adult who cares for, supervises or has authority over that child.
- Possessing and producing child pornography
Please not that it does not matter if the child consented (agreed) to the act.
A person may not have broken the law if they child consented and:
- They had reasonable grounds for believing the child was older than 16
- The accused person was no more than two years older than the child
- The accused believed they were married to the child
Sexual offences against people with cognitive impairment
Cognitive impairment includes mental illness, intellectual disability, dementia and brain injury.
A person who provides medical or health services to a person with cognitive impairment or who works or volunteers in a residential facility must not:
- Take part in an act of sexual penetration
- Take part in an indecent act with a person with cognitive impairment
Please not that both are against the law even if the person agrees to the act.
In New South Wales, it is an offence to possess, use, produce or supply a drug which has been declared prohibited.
Under the Drug Misuse and Trafficking Act 1985 (NSW), it is an offence to:
- Use prohibited drugs
- Possess prohibited drugs
- Supply and traffic prohibited drugs
- Possess and cultivate prohibited plants
- Manufacture prohibited drugs
- Take part in offences involving prohibited drugs or plants
- Possess drug-use implements
The prohibited drugs are listed under Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW). They include the common street drugs such as cannabis, heroin, ecstasy, amphetamine, LSD, cocaine, methadone and many others.
Summary (minor) offences
- Possession of prohibited drugs
- Use of prohibited drugs
- Administration of prohibited drugs to others
- Permitting another to administer prohibited drugs
- Commercial supply/display of waterpipes (including bongs)
The penalty for under offence under Division 1 is a fine of 20 penalty units and/or imprisonment for 2 years. At the moment a penalty unit is $110.
Indictable (serious) offences
These are serious offences aimed at drug trafficking.
- Cultivating or knowingly taking part in cultivation of a plant
- Supplying or knowingly taking part in supply of a prohibited plant
- Possessing a prohibited plant
The penalty for these offences is 2,000 penalty units and/or imprisonment for 15 years. If the above-mentioned offences are committed for commercial purposes/quantities then there is a 3,500 penalty units and/or imprisonment for 15 years.
- Manufacture or production prohibited drugs or knowingly taking part in these activities
- Possession of precursors with the intention of using them in the manufacture or production of a prohibited drug
- Supply or knowingly taking part in the supply of a prohibited drug
- Supplying a prohibited drug on a ongoing basis (i.e. 3 or more separate occasions in 30 days).
WEAPONS AND FIREARMS
Offences relating to the use, possession, manufacture, purchase and supply of firearms are governed by the Firearms Act 1996.
Offences relating to the use, possession, manufacture, purchase and supply of weapons are governed by the Weapons Prohibition Act 1998.
Unauthorised possession or use of firearms
A person must not use or possess a firearm unless the person is authorised to do so by a license or a permit (Maximum penalty: 5 years imprisonment). In addition a person must not use or possess a prohibited firearm unless the person is authorised to do so by a license or a permit (Maximum penalty: 14 years imprisonment).
Prohibited firearms are listed in Schedule 1 of the Firearms Act.
Unauthorized manufacture of firearms
A person who manufactures a firearm is liable to a maximum term of imprisonment of 10 years but increases to up to 10 years if the person manufactures a prohibited firearm.
‘Manufacture’ is defined as” assemble a firearm from firearm parts, and encompasses the very sophisticated operation at one end of the spectrum to a relatively minor adjustment to a pre-existing firearm at the other.
Possession of three or more firearms
A person must not possess three or more firearms if the firearms are not registered and the person is not licensed to possess them. This attracts a maximum penalty of 10 years imprisonment, and if one of the three firearms is a prohibited firearms then the maximum penalty is 20 years of imprisonment.
Possession or use of a prohibited weapon
Prohibited weapons are listed in Schedule 1 of the Weapons Prohibition Act.
It is an offence to possess or use a prohibited weapon unless the person is authorized to do so by a permit. In addition a holder of a permit commits an offence if he/she possesses or use the weapon for any purpose other than the ‘genuine reason’.
‘Genuine reasons’ include:
- Recreational/sporting purposes
- Historical re-enactment purposes
- Business/employment purposes
- Film/TV/theatrical purposes
- Weapons collections
- Public museums purposes
- Animal management
- Scientific purpose
Please note that the possession or use of a prohibited weapon for personal protection or for the protection of any other person is not a genuine reason for the possession or use of the weapon.
The maximum penalty is 100 penalty units and/or 2 years imprisonment.
For more information, please refer to the NSW Judicial Commission’s ‘Firearms and prohibited weapons offences’.
PERJURY AND FALSE STATEMENTS
Any person who in connection with any judicial proceedings makes an false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury.
Offences of perjury undermine the very foundation of the justice system. The need for general deterrence is the prime consideration in sentencing for offences of this kind.
Maximum penalty: 10 years imprisonment
‘One punch’ assaults
The NSW Government recently introduced a new offence for ‘one punch’ assaults, where a person unlawfully assaults another who dies as a direct or indirect result of the assault. The offence will carry a 20 year maximum sentence.
Where the offender was intoxicated in public by drugs or alcohol, a minimum mandatory sentence of 8 years and a maximum sentence of 25 years applies.
NSW Police can issue on-the-spot fines for anti-social behaviour:
- Offensive language, $500 fee
- Offensive behaviour, $500 fee
- Continuation of intoxicated and disorderly behaviour following a move on direction, $1,100 fee
Serious alcohol or drug-fuelled violence
A person will be considered intoxication if his/her speech, balance coordination or behaviour is noticeably affected as a result of taking alcohol or drugs. In addition a person will be deemed intoxicated if he/she returns a blood alcohol reading of 0.15 or higher within six hours of the offence.
- Reckless grievous bodily harm – in company, 5-16 years sentence
- Reckless grievous bodily harm, 4-12 years sentence
- Reckless wounding- in company, 4-12 years sentence
- Reckless wounding, 3-9 years sentence
- Assault police – reckless grievous bodily harm or wounding (not during a public disorder), 5-14 years sentence
- Assault police – reckless grievous bodily harm or wounding (public disorder), 5-16 years sentence
Lockout – last drinks
Pubs, bars and registered clubs within the CBD precinct are not allowed to admit patrons after 1.30 am and the service of alcohol must cease at 3am.
This excludes small bars (under 60 patrons), restaurant and tourism accommodation establishments.
For more information, please refer to the NSW Government ‘Alcohol and Drug fuelled violence initiatives’.
ROBBERY AND EXTORTION
For robbery to occur, there must be an unlawful taking and carrying away of property with the intention of permanently depriving the owner or person in possession.
Below you will find information regarding the different kinds of robberies.
Aggravated robbery (firearm)
An Aggravated robbery (firearm) is a robbery involving the possession/use of a firearm and may also involve the infliction of injury or violence on the person or be committed in company.
Aggravated robbery (other)
An Aggravated robbery (other) is a robbery involving the possession/use of a weapon other than a firearm and may also involve the infliction of injury or violence on the person or be committed in company.
Non- aggravated robbery – Extortion
A non-aggravated robbery is a robbery not involving any of the following aggravated circumstances:
- Possession/use of a weapon
- Infliction of injury or violence on the person
- Committed in company
This category of offence also includes blackmail/extortion which is defined as unlawful demand with intent to gain money, property or any other benefit from , or with intent to cause detriment to, another person accompanied by the use of coercive measure , to be carried out at some point in the future if the demand is not met. This may also include the use and/or threatened use of immediate force or violence.
Coercive measures include, but are not limited to, the threat of:
- Force or violence
- Misuse of authority
- Criminal prosecution
- Destruction of a person’s reputation or social standing
- Destruction of a person’s property
For more information, please to the Police’s ‘Criminal offences descriptions’ section.
Summary offences are offences that can be heard by a Magistrate seating alone, rather than a Judge and a jury. They are usually considered to be less serious offences and can also be heard in the absence of the defendant.
According to the Criminal Procedure Act 1986, the following offences must be dealt with summarily:
- An offender that under this or any other Act is required to be dealt with summarily
- An offence that under this or any other Act is described as a summary offence
- Generally, an offence for which the maximum penalty that may be imposed is not, and does to include, imprisonment for more than 2 years.
Examples of summary offences include:
- Road traffic offence (e.g.: careless driving etc.)
- Minor assaults
- Property damage
- Offensive behaviour
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