CLCA PENALTY STRUCTURE: OFFENCES AGAINST THE PERSON

Transcription

1 Non-Fatal Offences Against the Person CLCA PENALTY STRUCTURE: OFFENCES AGAINST THE PERSON Sections Offence Category Penalty (Basic) Penalty (Aggrav) 20 Assault that does not cause harm 2 yrs - ss(3) Aggravated 3yrs 20 ss(4) Aggravated by use of weapon Assault that causes harm Aggravated Aggravated by use of weapon 4 yrs 3 yrs - 4 yrs 5yrs 19AA Stalking 3 yrs 5 yrs 31 Possess object with intent to harm 5 yrs - 29 Recklessly endanger (harm) 5 yrs 7yrs 19 Threaten harm 5yrs 7yrs 24 Causing harm (recklessly) 5yrs 7 yrs 31 Possess object with intent to kill &c 10yrs - 29 Recklessly endanger (serious harm) 10 yrs 12yrs 19 Threaten to kill 10yrs 12yrs 24 Causing harm (intentionally) 10 yrs 13yrs 29 Recklessly endanger (life) 15 yrs 18 yrs 23 Causing serious harm (recklessly) 15yrs 19yrs 23 Causing serious harm (intentionally) 20 yrs 25 yrs or more 1 Aggravating Circumstances Section 5AA CLCA defines aggravating circumstances to include: Deliberately and systematically inflicted severe pain: (1)(a) Used, or threatened to use, a weapon: (1)(b) Against a law enforcement officer knowing occupation (c)(i) or for retribution (c)(ii) To prevent or dissuade victim from taking legal action (d)(i) or in connection with victimʼs conduct or future conduct (as party, witness or in any other capacity) (d)(ii) or in retribution for taking legal proceedings or conduct at proceedings (d)(iii) Knowing the child was under 14 for Child Pornography charges (e)(i) or in any other case, 12 years old (e)(ii) Knowing the victim is over 60 years old (f) Relationship (legal and non-legal) with the victim/offender See Section 5AA(g) Abused a position of authority or trust (i) Offender knew that the victim was vulnerable because of a physical or mental disability (j) Employment See Section 5AA(k) Contravened injunction or other order of the court (l) For Section 19A (Causing death or harm by dangerous use of a vehicle) See Section 5AA(la) For Section 19AC (Dangerous driving to escape police pursuit) See Section 5AA(lb) 1 Provision is made in s23(2) for a penalty exceeding the maximum, on application by the DPP, if ʻthe victim suffers such serious harm that a penalty exceeding the maximum is warrantedʼ. Cf Chambers, Harrison & Fisher (2002) 136 A Crim R 89 (QCA): Penalty appropriate for ʻvirtual murderʼ where the victim is reduced to a permanent vegetative state. 1

2 Assault (Section 20) Actual use of non-consensual force/contact Physical Elements: Act: (use of force) Circumstance: (without the consent of V) Fault elements: Intent o o Fagan: an intention to effect unlawful conduct or to create an apprehension of unlawful conduct is the fault element for assault. MacPherson: recklessness will suffice. Statute s20(1): P commits assault if P, without the consent of V: (a) Intentionally applies force (directly or indirectly) to V; or (b) Intentionally makes physical contact (directly or indirectly) with V, knowing that the V may reasonably object to the contact in the circumstances (whether or not the V was at the time aware of the contact NOTE: knowing = knowing of possibility that it is true [s5aa(2)] (d) Does an act of which the intended purpose is to apply force (directly or indirectly) to the victim Consent Consent obtained by force or threats = NO CONSENT o BUT: must take into account balance of power between parties AND weight up acceptable pressure as opposed to threats. Consent obtained by fraud? = NO CONSENT o Rape: if D conceals sexually transmitted disease from V and has sex with V = NO CONSENT. Clarence (1888) QBD D had sex with his wife without telling her he had gonorrhoea P argued that the suppression of the information amounted to fraud, which negatived consent. Suppression of information did NOT negative consent. Fraud can only apply to: o Nature of act; OR o Identity of the person (Papdimitropolous v R (1957) CLR) Dica [2004] EWCA D engaged in unprotected sex with two Vs knowing he was HIV positive Court decided AGAINST Clarence Court found that Vs were defrauded as to risk of infection they would NOT have 2

3 consented to sexual intercourse had they known of the risk BUT: could not convict D of rape since it was not fraud as to the nature of the act OR the identity of the D Therefore, D charged with inflicting GBH since there was NO CONSENT as to the risk of infection. When victim agrees to harm o A person can NOT consent to the infliction of an unlawful degree of harm which is actual bodily harm, but this depends on context: R v Donovan [1934] KB o In SA, there is no upper limit (short of death) nor lower limit that a person can consent to. Consent to personal adornment - tattooing and piercing of the skin can be consented to: Wilson (1996) UK Surgery - doctors constantly touch their patients and penetrate their bodies with knives, and as long as the patient consents to this, it will not be assault. o Must be with patientʼs consent: Marionʼs Case o Patient must be capable of understanding treatment and have capacity to consent: Marionʼs case Correction of children - parents are allowed to use reasonable force (reasonable chastisement). Teachers may also be allowed to use corporal punishment. o R v DMC (2002): consent to moderate physical contact is implied and valid. Consent for sexual gratification: Donovan (1934) KB D beat V with cane ʻin circumstances of indecencyʼ for the purposes of sexual gratification. As a general rule, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial. D was acting to gratify his own perverted desires and thus cannot plead his corrupt motive as an excuse. Brown (1993) WLR Concerned consensual infliction of harm in context of a homosexual sadomasochistic ring D argued: willing and enthusiastic consent of Vs to acts on them prevented P from proving lack of consent. Against public interest to hold deliberate infliction of harm in course of sadomasochistic encounters to be a lawful activity Therefore, it is an unlawful activity to which consent is no answer. Legal Theorists: Supports Devlin: certain kinds of conduct ought to be prohibited and punished by the law simply because they are immoral according to the norms of society. 2 dissenting judges invoked JS Mill: private morality private activities of consenting sexual activities between adults is not the lawʼs business. 3

4 NOTE: Contrast Brown with Wilson (homosexual context v lawful marriage) Wilson (1996) English CA D branded wifeʼs buttocks with his initials, apparenty consentually. Court accepted validity of consent accepted ʻprivacy argumentʼ CONTRAST: the majority in Brown explicitly reject a privacy argument. Wilson has been criticised for NOT following Brown. o What swayed judges in Brown was that there was consensual sadomasochistic homoerotic violence. Whereas, in Wilson, sadomasochism occurred within the context of a lawful marriage. Consent to sports = PRIMA FACIE CONSENT o By playing a violent but socially approved sport (eg. football, rugby, boxing), the player is said to CONSENT to the infliction of injury by participating. A test of reasonableness is best to determine whether the conduct is within the implied consent or not. Sport Cases: R v Coney (1882) QBD (boxing match): Consent could NOT be given to blows likely to produce a breach of peace Pallante v Stadiums Pty Ltd (1976) VSC (boxing match): Look to the intention of the parties and the mode and conditions of the particular encounter. If the encounter is conducted in a spirit of anger, with the predominant intention of inflicting substantial bodily harm so as to disable or otherwise physically subdue the opponent, this may be assault. A6ʼs Reference (No 6 of 1980) [1981] QB (consenting fistfight) Not in the public interest to recognise consent to such a fight (even though there was NO public disorder) Australian Rules Re Jewell and Crimes Compensation Tribunal [1987] Victorian Decision of AAT: Suggested that even a breach of the rules of the game will NOT turn a violent and injurious sporting action into assault. Tribunal found that blow to head (a sweeping arm action with fist unclenched) was in breach of rules, but NOT a criminal assault. Watherston v Woolven: V was ʻking hitʼ causing a broken nose Convicted at trial and affirmed on appeal but showed some sympathy for the rulings of the trial magistrate noting that a great number of incidents occur every season in every football league and association which constitute technical assaults. Giumelli v Johnston (1989) SASC: D collided with V, causing a depressed cheekbone fracture. D brought his right elbow into a thrusting action into Vʼs cheekbone. 4

5 Court accepted that it was done deliberately and with intent to cause injury. Nonetheless, the Court dismissed the appeal. McAvaney v Quigley (1991) LSJS: D rushed in and struck a heavy blow to the head of the V which caused a broken jaw. Held that breach of rules was reasonable (affirming Re Jewell) EVIDENCE: use expert evidence to distinguish between breach of rules and conduct that is completely outside of rules. Objective Test: R v Barnes [2005] Crim LR (soccer match): D broke Vʼs leg with a tackle argued to be late, unnecessary, reckless and high up the legs. Court found that ʻthe threshold level above which conduct during the course of a contact sport was criminal was an objective one. It depended on: o The type of sport o The level at which it was being played o The nature of the act o The degree of force used o The extent of the risk of injury o The state of mind of the D NOTE NOT Assault under s20(2) if: Conduct lies within limits of what would generally be accepted in the community as normal incidents of social interaction or community life Conduct is justified or excused by law Threats (ss19 [Unlawful Threats] 20 [Assault]) Kill or endanger or cause harm to property or person (s19) A person who, threatens, without lawful excuse, to kill or endanger life/cause harm to person or property and intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused is guilty of an offence. Section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct. Threat of use of non-consensual force/contact under s20 (Assault) Physical Elements: Act: (threatens) Circumstance: (without the consent of V) Statute s20(1): P commits assault if P, without the consent of V: (c) Threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that (i) The person who makes the threat is in a position to carry out the threat and intends to do so; OR 5