Crimes Amendment Bill 2007

As noted earlier, this bill contains important provisions to increase penalties for recklessly inflicting grievous bodily harm.

New South Wales already has a range of offences that cover the criminal activity of rock throwing with maximum penalties ranging from 5 years to 25 years imprisonment. People who throw rocks at cars and cause injury are typically charged with this offence under section 35 of the Crimes Act.

Rock throwing is dangerous and stupid, and the people who throw them are not just cowards but criminals who should face tough jail terms.

Item [7] of Schedule 1 recasts the offence in light of the deletion of 'maliciously' but also increases the maximum penalties available for this offence; from seven years to ten years and from ten years to fourteen years when the offence is committed in company.
The maximum penalty for recklessly wounding a person remains at seven years. It will of course remain open to the prosecution in any case to argue that a wounding amounts to GBH as a matter of fact and therefore charge a person with the more serious GBH offence.
This increase also creates a more consistent set of offences where GBH is inflicted either recklessly or intentionally. Some members of the judiciary and legal profession have previously commented that the maximum penalty applicable to the offence under section 33 of the Crimes Act (maliciously inflict GBH with intent to do GBH) and the maximum penalty applicable to the offence under section 35 of the Act (maliciously (or recklessly) inflict GBH) are too disparate. Section 33 currently carries a maximum penalty of 25 years imprisonment, whereas section 35 carries a maximum penalty of 7 years imprisonment.
For example, his Honour Judge Ducker of the New South Wales District Court has indicated that he considers the disparity in sentence and the low level of maximum sentence in relation to the section 35 GBH offence as "irrational, unsustainable and in need of urgent reform" (judgment in R v TRR of 6 August 2003).
A comparison with other Australian jurisdictions that have a similar offence to maliciously inflict GBH, indicates that a maximum penalty of 7 years is at the low end of the range of maximum penalties imposed.
Section 35A Causing dog to inflict grievous bodily harm or actual bodily harm
Item [8] of Schedule 1 recasts the offence contained in section 35A of causing a dog to inflict grievous bodily harm or actual bodily harm using the new mental fault element of recklessly. The maximum penalty for recklessly inflicting GBH is also increased from seven years to ten years in line with the amendments made to section 35 for the equivalent offence.
Inflicting a Grievous Bodily Disease
Intentionally or recklessly infecting someone else with a serious disease is a horrifying breach of trust that many people in the community would find abhorrent.
In some cases, this can mean giving someone a lifelong illness or disability as well as helping to spread these terrible diseases.
It's important to help protect the community from these crimes through punishing those offenders with the prospect of staying behind bars for a long time.
This area of the law has been somewhat uncertain since the United Kingdom case of R v Clarence (1888) 22 QBD 23 . The majority of the Court in Clarence held that that infecting another person with a sexually transmissible disease could not amount to inflicting GBH.
The authority of Clarence has been substantially eroded by a long line of critical or contrary decisions in the UK, Canada and Western Australia. However, it is at least arguable that it remains good law in New South Wales.
As a result of this uncertainty in 1990 the New South Wales Parliament enacted section 36 of the Crimes Act, causing a grievous bodily disease, and in doing so it is arguable that Parliament conceded that serious diseases did not amount to GBH.
The section 36 offence essentially re-enacted the relevant part of section 33 offence of intentionally inflicting GBH, with the words "grievous bodily disease" substituted for "grievous bodily harm".
During the 1990 Parliamentary debate the then Labor Opposition noted that the requirement of specific intent in the second limb of the offence, made the reference to maliciousness in the first part of the offence redundant and further that the offence did not cover the situation where a person was reckless as to the infection of another.
The practical result is that section 36 is a rarely prosecuted offence. In most situations where an offender passes on a serious disease to a victim, the offender does not specifically intend that the victim contract the disease; the offender is simply reckless as to the possibility, that is to say that he or she does not care whether the disease is passed on.
Item [9] of the Schedule 1 repeals the seldom used offence in section 36. Item [1] of Schedule 1 then inserts the following into the general definition of grievous bodily harm contained in section 4 of the Act:

(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).
This extended definition will ensure that the infliction of a grievous bodily disease can be dealt with under all general GBH offences in the Crimes Act and consequently specific offences such as section 36 are not required.
Sections 39, 40, 41 and 41A – Poisoning Offences

Item [10] of Schedule 1 recasts the poisoning offences under section 39, 41 and 41A.

These archaically worded offences are redrafted using modernised language and the term 'maliciously' is removed. The alternative verdict provision contained in section 40 is transferred to section 39(2) and then applied to both section 41 and 41A. This allows section 40 to be repealed.
Modernising house breaking offences
The current section 112 of the Crimes Act provides that an offence is committed by any person who breaks, enters and commits a serious indictable offence in:

"any dwelling-house, or any building within the curtilage of any dwelling-house and occupied therewith but not being part thereof, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority".

Section 113 of the Crimes Act repeats the same list in relation to the offence of breaking and entering with intent to commit a serious indictable offence.
The list is lengthy, old-fashioned, and potentially contains gaps. For example, it has been held in 1970 that a building belonging to the Commonwealth is not "a building belonging to His Majesty or any Government Department". More recently, in December 2003 a District Court Judge found that a Bowling and Recreation Club did not fit within any of the described premises.
Items [19] and [20] delete this archaic list and replaces it with the term 'building' (consistent with the Model Criminal Code).
Item [17] inserts an inclusive list for the term 'building' in section 105A and its meaning is extended to places of Divine worship. This allows Item [18] to repeal the offences under section 106 and 107 that deal specifically with Places of Divine worship.
Modernising Blackmail and Extortion Offences
The current blackmail offences, sections 100 to 105 of the Crimes Act, were inserted in 1974. The terms are anomalous and out of keeping with the contemporary approach to the offence.

• Firstly, the offence as currently drafted only 'catches' threats intended to cause monetary or property gain to the offender, cause the offender to be appointed to an office, or cause monetary or personal loss to another person. In practice, many blackmail threats cannot be categorised in terms of gain or loss—for example, a demand that a prisoner be released would not be an offence under the section.

• Secondly, the offence as it currently exists only extends to making unwarranted threats to publish matters "concerning any person". In reality, blackmail can take the form of a wide array of threats to the victim—for example, by implying that associates of the offender will damage the victim's property if the threat is not complied with.

Item [16] of Schedule 1 repeals the existing blackmail provisions and Item [22] replaces it with a provision based on the Model Criminal Code offence of blackmail. The Government believes that the revised drafting will improve the offence in the following ways:

• Firstly the offence will no longer be artificially limited to threats intended to cause property gain or loss. It will also cover the situation where the blackmailer intends to influence the exercise of a public duty.

• Secondly the offence will now require that the unwarranted demand is made "with menaces", which is a well-known term at law. It is not confined to threats of harm or violence, and will be defined, non-exhaustively, in the legislation to include express or implied threats of detrimental action.

• Finally the offence will no longer be artificially limited to unwarranted threats to publish, abstain from publishing, or preventing the publication of certain material.

The maximum penalty 10 years imprisonment will remain unchanged from the current offence. An aggravated offence will be created which carries a maximum penalty of 14 years imprisonment where the threatened accusation is that a person has committed a serious indictable offence. This mirrors the existing provisions.
Other Amendments
The bill also makes a number of other miscellaneous amendments.
Item [25] repeals the archaic offence of killing pigeons under section 511 of the Act which is now dealt with under modern statues like the Prevention of Cruelty to Animals Act 1979.
Schedule 2 contains a number of amendments that update cross referenced provisions that have been altered by Schedule 1 amendments, rename Part and Division headings and renumber several offence provisions.
A new schedule is created to contain provisions that abolish common law offences that are currently spread throughout the Act.
Item [11] abolishes the second limb of the offence of not providing wife or servant with food in section 44, as this type of criminal behaviour is now covered by general assault provisions.

Conclusions

• The Iemma Government is committed to making sure that people in this State have a right to be and to feel safe as they go about their daily lives.

• A key part of delivering on this commitment is making sure that our laws are effective, up-to-date, and provide appropriate punishments for those who would seek to break them.

• By updating several offences, and introducing increased penalties for others, this bill ensures that the Crimes Act continues to be effective in deterring and punishing criminal behaviour.

I commend the bill to the House.

The Hon. JOHN AJAKA [5.01 p.m.]: The Crimes Amendment Bill 2007 is intended to introduce some amending provisions. The Opposition's concern with this legislation is the rushed manner in which it has been introduced. Basically the Government indicated that the purpose of the bill is to increase penalties for rock throwing incidents. Unfortunately, far too many other amending provisions have been included in the bill, the provisions of which the Opposition has not had adequate time to examine. It goes without saying as a well-accepted principle that people who throw rocks at cars and cause injury should face the full consequences of their actions according to the law. Such outrageous acts, which show no thought having been given to the safety of other people, are completely unacceptable in any society.
I indicate at the outset that the Opposition will not oppose the bill. In the view of the Opposition an increase in penalty for the offence of rock throwing from seven years to ten years imprisonment is inadequate in certain circumstances and should be reviewed. Other amending provisions in the bill are aimed at modernising and simplifying the Crimes Act to remove the element of maliciousness and to replace it with the term "recklessly and intentionally" when appropriate. I urge caution in the consideration of this legislation given the inadequate time that has been allowed for members to examine its provisions in detail. The bill also deals with offences related to inflicting a grievous bodily disease on a person.
The bill contains provisions relating to the repeal of miscellaneous provisions, and amendments and renumberings that are aimed at simplifying and modernising the Act. It provides for the replacement of the term "malicious" with "recklessly and intentionally" when appropriate. Proposed new section 33 provides for a maximum penalty of 25 years for wounding or inflicting grievous bodily harm with intent. Currently section 35 of the Act provides a penalty of seven years imprisonment for reckless wounding, and consideration should be given to increasing that penalty. The bill also aims to modernise provisions relating to housebreaking offences, blackmail and extortion. As I stated at the outset, although inadequate time has been allowed for the Opposition to give detailed consideration to its provisions the Opposition will not oppose the bill.
Reverend the Hon. FRED NILE [5.04 p.m.]: The Christian Democratic Party supports the Crimes Amendment Bill 2007. As the Minister stated in the second reading speech, the need for this legislation arose out of the increase in the incidence of rocks being thrown from bridges and overpass footpaths resulting in serious injuries being caused to passengers in motor vehicles. It is hoped that increased penalties will deter young people and adults who engage in such activities from doing so in the future.
The Christian Democratic Party supports the bill and accepts the Government's reasons for replacing the term "malicious" with "reckless". I note that although the original definition of "malicious" in the Act included the term "reckless", the provisions in the bill will simplify matters and make the legislation more effective in future prosecutions. During discussions with other honourable members, the point has been made that there is not much point increasing penalties unless there is an accompanying education campaign to inform would-be future offenders of the attitude of the Parliament to rock throwing and other malicious offences. I hope that information on the action being taken by the Parliament to deter rock throwing incidents in the future will be conveyed through public institutions such as high schools. I support the bill.
The Hon. TREVOR KHAN [5.06 p.m.]: Although the Opposition has indicated its support for the bill, it is worthwhile pointing out a number of aspects that the bill is intended to address. As honourable members are aware, the bill was introduced as a matter of urgency. In the other place, the Parliamentary Secretary indicated that the reason for introducing the bill was the throwing of rocks causing serious injury. Interestingly, the bill does not refer to the throwing of rocks at all.
It would have been possible to include amending provisions similar to section 32A of the South Australian Criminal Law Consolidation Act 1935, which deals specifically with the throwing of rocks and missiles. But the Government has chosen not to take that course. Instead it has sought to amend section 33 and section 35 of the Crimes Act. One would have thought that the educative component of the criminal law would dictate the introduction of a provision directing the minds of members of the public to the throwing of rocks, not a section that deals with reckless acts. Remembering that, as most members of the public are not members of the legal profession—fortunately, perhaps—one might find that section 33 and section 35 will not have a great educative effect upon them.
I should also point out that this bill goes well and truly beyond the issue of throwing rocks, as serious as that may be. The bill provides for quite substantial and significant amendments to the Crimes Act that deal with a wide variety of matters. In that context, the Hon. John Ajaka has referred specifically to the removal of the concept of malice. That is not a new issue arising under the Crimes Act. In the other place it was pointed out that in 1955, which was some years ago, the High Court in Mraz v Regina raised the issue of the complex definition of "malice". Apparently it has taken from 1955 till 2007 for the Government to address the issue as a matter of urgency!
At no stage during the preparation of this legislation has there been a proper opportunity for consultation with stakeholders, such as the Law Society of New South Wales and the Bar Association, or for detailed consideration of this legislation. We know that from the very fact that the legislation has been so quickly rushed into both Houses of the Parliament. In essence, if the objective of the Government is to demonstrate an involvement of the community in the preparation of legislation, particularly thoughtful and considered legislation, the exercise on this occasion has fallen far short of that objective.

The bill deals also with blackmail—another issue that could have been addressed on another occasion following proper consideration and consultation with the appropriate stakeholders. This is rushed legislation that did not receive appropriate consideration and thought.

Ms LEE RHIANNON [5.10 p.m.]: The Greens welcome reforming our criminal laws to bring them into the twenty-first century. But the Crimes Amendment Bill is a grab bag of measures that, in the main, are rushed and ill thought out. Let us consider what is in the bill—even though we have had very little time to examine it thoroughly. The process that led us to this point was entirely inadequate and an insult to good lawmaking. Unfortunately, that is a hallmark of the Iemma Government. It is disappointing that the Attorney General, who has been in the job for a few months, has gone along this approach to making laws for New South Wales.
The Greens have serious reservations about three aspects of the bill. First, we believe the increased penalties for recklessly causing grievous bodily harm are unnecessary and unlikely to achieve the aim of preventing rock throwing at cars. That problem clearly must be addressed, but I do not think any member in this place will argue that this change in the law will achieve that outcome. The second aspect is the failure to include in the bill a specific defence of voluntary acceptance of risk, which could apply if one person caused another to contract a grievous bodily disease. The third aspect is the failure to include specifically the defence of "lawful excuse" in the new scheme in the Crimes Act that abolishes the word " maliciously" and replaces it with the phrase "recklessly and intentionally".
While there is some merit in some of the bill's reforms, such as modernising housebreaking offences, this is not sufficient to exonerate the Government from the offence of lawmaking on the run. Last week and early this week when my staff and I were preparing for the parliamentary sittings we were told that the House would consider private members' business and the bill relating to the extension of hotel opening hours. But then this bill was rushed in suddenly. According to the gossip in the corridors the Government is worried that it does not have the numbers on the hotel bill so it has pulled this bill out of the hat. That is an appalling way to introduce important legislation and to make laws. It certainly makes it very difficult to have a serious, considered debate.
This is a curious bill. It proposes a mix of reforms that have been called for for more than 50 years, such as changing the use of the definition of "maliciously" in the New South Wales criminal law and increasing the penalties that apply to rock throwing offences. The latter measure appears to have been drafted only in the past two months in response to two particularly high-profile incidents. The Attorney General has put his name to this grab-bag bill, which highlights the fact that the Government is quick to jump when there is a media frenzy but it is slow to remedy glaring deficiencies in our legal system that have lingered for decades but which have never reached the front page of a Sydney newspaper. What motivated the Government to introduce this bill? It obviously felt that it had to respond to the media frenzy. But did it pull all the other measures out of the hat in an attempt to appear responsible and to address some of the legislative problems that have been around for a long time? We wonder about the Government's reasoning.
The two recent rock throwing incidents that resulted in very serious injuries were obviously tragic but we know that there have been many other similar incidents. It is clear that throwing rocks at cars can cause death and terrible injury. Tragically, many of those who commit these crimes are young people. Their crimes have a lifelong effect on their families and immediate networks and on their victims and their families. The Greens believe the Government should develop a range of responses rather than rely on the vain hope that jail terms will stop these crimes. It is extremely disappointing that the Government has not offered the range of responses that are needed. In his speech in the other place the Minister for Police said:
New South Wales already has a range of offences that cover the criminal activity of rock throwing with maximum penalties ranging from five to 25 years.
There is no need to increase the penalties from 7 to 10 years and from 10 to 14 years for offences committed in company, or to go down the track of the Opposition, which wants to up the ante even more. New South Wales already has criminal laws in place that allow the police and the courts to handle rock-throwing incidents. The Government should have responded to the media attention by reminding the public that tough laws exist already and by signalling its intention to introduce a range of other measures to deal with the terrible rock throwing incidents. The Government should try to get to the bottom of this problem. It should ask questions such as "What is going on with these kids?" and "Why are these incidents happening and how do we stop them?"

The Premier and the shadow Attorney General, Greg Smith, made themselves look rather foolish last week in their haste to up the ante. The Premier proposed a 14-year jail sentence while Mr Smith proposed 25 years imprisonment for the offence of rock throwing. But they were too quick off the mark because we learned later that the kids involved in the incident in question had misled the police. Nobody ended up looking very thorough or professional. Clearly politicians must respond to events in our community, but the kneejerk responses of last week do nothing to deal effectively with or to solve this problem.
As stated earlier, the Greens support replacing reference to the word "maliciously" in the Crimes Act with the phrase "intentionally or recklessly". We understand that the Criminal Law Review Division of the New South Wales Attorney General's Department consulted on this change in 2005 and that the courts have identified for five decades the problems posed to juries by the definition of "malice". Unfortunately, the Criminal Law Review Division ignored the advice of the Law Society of New South Wales, which stated in its submission that the bill should include a specific defence of "lawful excuse". I would like to be able to congratulate the new Attorney General on dealing with an issue that has been hanging around for 50 years.
The Hon. John Hatzistergos: Please do.
Ms LEE RHIANNON: I cannot do that when a grab bag of responses have been dumped into this bill.
The Hon. John Hatzistergos: What's a lawful excuse for throwing a rock?
Ms LEE RHIANNON: I did not say there was a lawful excuse for that. The Attorney General is trying to divert attention from his mismanagement and the fact that he is cast in the same mould as the Government. He cannot manage his portfolio creatively.
In reforming the law as it applies to one person infecting another person with a disease, the Government has failed to include the important defence of voluntary acceptance of risk, which should apply to two consenting adults in a consensual relationship who may agree to take the risk of contracting a disease such as HIV-AIDS or hepatitis. Obviously a couple in a loving relationship have the right to accept risks to their health from an infectious disease. This is an important defence in a civil and humane society, where people's private lives should be shielded from unnecessary interference from police and the criminal justice system. This defence was called for by organisations such as the AIDS Council of New South Wales and People Living With HIV/AIDS but the Government has ignored their pleas. I look forward to hearing the Attorney General's reply to the debate. He should explain why he has put his name to this hodgepodge of measures and why we were not given more time to have a considered and thorough debate and produce more beneficial legislation.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Justice) [5.20 p.m.], in reply: On the issue of urgency, which has been raised by a number of members, the Government is concerned by the recent attention that this issue has gained in the media. There is a possibility that some people might be tempted as a consequence to commit copycat offences and the Government is especially concerned that this might occur during the fast-approaching school holiday period. Many families will be on the road over the next two weeks and the Government is determined to send a clear and strong message that this dangerous and idiotic activity should stop. Members should note that the provisions and the increased penalties for recklessly inflicting grievous bodily harm commence on assent and we believe that these amendments should be in place by this weekend.

A number of speakers have made comments in relation to this issue. The Hon. Trevor Khan talked about the need for a specific rock throwing offence. Last week the Premier indicated that the relevant Ministers—me, the Minister for Police and also the Minister for Roads—are considering a stand-alone offence. This proposal is under active consideration, as are further measures to ensure that as far as possible this kind of activity can be avoided in the first place outside of just the criminal law response. The space is not closed simply through these offence provisions that we are debating today.

It is true, as the Hon. Trevor Khan indicated in his contribution, that the issue we are discussing in part has been the subject of discussion in previous cases, in particular in the case of Mraz v the Crown, but that is not the only case. The cases of Regina v Coleman in 1990 and Regina v Livingstone in 2004 have also raised issues in relation to maliciousness. I should make the point that in 2005 the Criminal Law Review Division of the Attorney General's Department issued a discussion paper in relation to this issue, which raised the prospect of replacing the term "maliciousness" throughout the Crimes Act. We sought responses from a variety of stakeholders, including the Chief Magistrate of the Local Court, the Law Society of New South Wales, the Legal Aid Commission of New South Wales and the Director of Public Prosecutions.
It is not correct to say that this issue was rushed through without any consultation with relevant stakeholders; it was in fact discussed through the process that I have just indicated. I might add that there was general support amongst all of the respondents for the idea of deleting references to the word "maliciousness" in existing offences and inserting the term "recklessly" or "intentionally or recklessly", as required. It should also be stated for the record that the person who, on the part of the Director of Public Prosecutions at the time, responded to that discussion was none other than the member for Epping, the shadow Attorney General, who was then the Deputy Director of Public Prosecutions.
The suggestion that somehow this issue has been one that has caught the Opposition by surprise, at least in respect of the definition to which I have just referred, is grossly inaccurate and I am surprised that members opposite have not been properly informed about those issues. I do not know what is bugging Ms Lee Rhiannon in relation to the matter that she raised, but the extraordinary contribution that she made probably speaks for itself and does not require any detailed response from me. The suggestion that somehow you can have a voluntary acceptance of risk for people who are involved in consensual conduct when it involves an infliction of grievous bodily disease is just ludicrous. Maybe that is a reflection of the values that she would like to see the New South Wales Parliament adopt, but they are certainly not the ones that I would support. Her other suggestion that there somehow should be a lawful excuse for grievous bodily harm with an intention to cause injury or death is another ludicrous proposition that might be reflective of her social values, but they are certainly not reflective of mine.
Question—That this bill be now read a second time—put.
The House divided.