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LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
MINISTER FOR JUSTICE AND ATTORNEY-GENERAL
JUSTICE LEGISLATION AMENDMENT (GROUP CRIMINAL ACTIVITIES) BILL
2006
SERIAL NO. 65
EXPLANATORY STATEMENT
GENERAL OUTLINE
This Bill provides for the amendment of the Sentencing Act, Bail Act, Criminal Code and the
Summary Offences Act. The main purpose of the Bill is to improve the capacity of the legal
system, from Northern Territory Police, Fire and Emergency Services (Police) through to the
Courts, to deal with group and gang related criminal activities and potential group based
criminal activities.
More specifically, the Bill:
·
amends the Sentencing Act so that the courts, in imposing sentences:
(1)
have further guidance as to the various matters that are commonly part of group crime
that may be considered as aggravating factors and to add a new guideline of harm done to the
broader community; and
(2)
may impose orders designed to ensure that members of criminal groups stay away from
one another and from named places and do not communicate with one another;
·
amends the Bail Act so that a Court or Police Officer, in setting bail conditions, may
impose conditions designed to ensure that members of criminal groups stay away from one
another and from named places and do not communicate with one another;
·
amends the Criminal Code by reforming and simplifying the law relating to riotous
assemblies;
·
amends the Summary Offences Act by -
(1)
reforming the law relating to affray, by providing for a new offence of Violent Disorder;
(2)
reforming the law relating to loitering by giving Police powers to issue notices that
prohibit loitering in specified places for up to 72 hours; and
(3)
creating a new offence dealing with consorting between known criminals.
NOTES ON CLAUSES
PART 1 – PRELIMINARY MATTERS
Clause
1.
Short Title
This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Justice Legislation Amendment (Group Criminal
Activities) Act 2006.
2.
Commencement
This clause provides that the Bill will commence on a date fixed by the Administrator by notice
in the Gazette.
PART 2 – AMENDMENT OF SENTENCING ACT
3.
Act amended
Part 2 amends the Sentencing Act.
4.
Amendment of section 3 (Interpretation)
This clause provides for the inclusion in section 3(1) of the Sentencing Act the following
definitions:
·
·
non-association order
place restriction order.
5.
Amendment of section 5 (Sentencing guidelines)
This clause amends section 5 of the Sentencing Act so that a Court, in sentencing an offender,
must have regard to any harm done to the broader community as a result of the offence
committed by the offender.
6.
New section 6A
This clause inserts into the Sentencing Act a new section 6A.
6A. Aggravating factors
Currently, section 5(2)(f) provides that a Court, in sentencing an offender, must have regard to
aggravating or mitigating factors.
New section 6A provides a non-exhaustive list of circumstances that may be regarded by the
Court as being an aggravating factor for the purposes of section 5. These include
circumstances where such offences were committed as part of a group or where the offence was
committed during a public disturbance or where the offender was armed or where there was
violence or hatred of another group of persons or where there is a high degree of planning.
The Court cannot however have regard to a circumstance as an
“aggravating factor” if the circumstance makes up one of the elements of the offence. For
example, if “violence” is one of the facts that must be proven in order to prove an offence then
it will not also be an aggravating factor.
The section will not interfere with the principles of Di Simoni.
7.
New Part 5, Division 1A
This clause inserts new Division 1A into Part 5 of the Sentencing Act.
Division 1A – Non-association and place restriction orders
97A. When court may make order
This clause provides for additional orders that a Court may make in sentencing a person for an
offence that is punishable by imprisonment for 12 or more months. These orders are orders
that may prohibit the offender being in the company of or in communication with specified
other persons or from being in specified places either at all times or at times that are set out by
the Court.
The period of time prescribed in the order can be a period that is longer than a sentence of
imprisonment that is also imposed, but the order itself cannot exceed 12 months.
Such orders can only be imposed if a conviction is recorded and are in addition to other orders
and conditions that the Court can impose.
97B. Explanation of order
This clause imposes on the Court the duty to explain to offenders the effect of an order made
under clause 97A. Any failure of the Court to comply with this clause does not invalidate the
order.
97C. Commencement of order
This clause provides that an order under clause 97A commences on the day it is made by the
Court or any other date specified by the Court.
97D. Contravention of order
This clause provides that an offender commits an offence if he or she contravenes an order
made under clause 97A, providing the contravention was not done in compliance with a court
order.
The maximum penalty for a contravention is 100 penalty units or six months imprisonment.
This clause also allows for defences to the offence of reasonable excuse and unintentional
association (provided that the person terminates the association immediately). “Association” is
defined for the purposes of subsection (3).
97E. Variation of order on application
This clause provides that an offender may seek leave of the Court that made the original order
to apply for a variation or revocation of the non-association or place restriction order imposed
under clause 97A.
Where leave is given, the Court must give notice to the each party to the original proceedings,
each of whom are entitled to be heard in the hearing of the application. At the conclusion of
the proceedings, the Court must vary or revoke the order as the Court sees fit or dismiss the
application.
97F. Variation of order following conviction
If an offender, who is subject to a clause 97A order, is sentenced for another offence the Court
may vary or revoke the order made under clause 97A. It does not matter that the original order
was made by another court.
97G. Order may not be extended by variation
This clause states a variation of an order under clause 97E or 97F cannot result in the extension
of any period set under clause 97A.
97H. Certain information not to be published or broadcast
This clause makes it an offence to disclose, publish or broadcast information about persons
named in a non-association order.
The maximum penalty for breach is 200 penalty units.
This clause is designed primarily to protect the rights of the individual, other than the offender,
who is named in the order.
The clause does not prevent the publication or broadcasting of a report of the court proceedings
that is authorised by a Court or the disclosure of information to specified persons.
PART 3 – AMENDMENT OF THE BAIL ACT
8.
Act amended
Part 3 amends the Bail Act.
9.
Amendment of section 3 (Interpretation)
This clause makes amendments to section 3 that are consequential to inserting the new section
27A.
10.
Amendment of section 27 (Conditions of bail)
This clause makes amendments to section 27 that are consequential to inserting the new section
27A. A condition imposed under section 27 may be in addition to a condition imposed under
the new section 27A.
11.
New section 27A
27A. Bail conditions regarding non-association and place restriction
Section 27 of the Bail Act provides for conditions that may be imposed by persons granting bail.
The new section 27A will provide that conditions may also be imposed that oblige an alleged
offender to enter into agreements about being in the company of certain persons,
communication with certain persons and being in certain places.
This clause also provides that an accused is not taken to have contravened such a condition if it
was in compliance with a court order, otherwise was a reasonable excuse or involved
unintentional association (provided that the person terminates the association immediately).
“Association” is defined for the purposes of subsection (4).
12.
Amendment of section 29 (Entry into agreement)
This clause amends section 29 consequential to inserting the new section 27A.
PART 4 – AMENDMENT OF CRIMINAL CODE
13.
Act amended
Part 4 amends the Criminal Code.
14.
Amendment of section 1 (Definitions)
This clause inserts into section 1 of the Criminal Code the following definitions:
·
·
riot; and
riotously assembled.
15.
Amendment of section 28 (Circumstances in which force causing death or grievous
harm is justified)
This clause amends section 28(d) of the Criminal Code, consequential to the new section 66, by
removing the requirement to read the “proclamation to disperse” and providing for an oral order
to be given.
16.
Repeal and substitution of sections 66 to 68
This clause repeals sections 66-68 and replaces them with a new section 66.
Current sections 66-68 deal with riots of 12 or more persons and the various offences that arise
out of such riots. The provisions are consolidated into one section, the new section 66. The
aim is to modernise the provisions by making the elements of the offences clearer, and the
duties of Police officers less prescriptive.
66. Offences relating to riots
The new section 66(1) sets out that a person who is part of a group of 12 or more persons who
are riotously assembled and who, after having been ordered to disperse by Police, fails to do so
as soon as the circumstances permit will be guilty of an offence if the person continues to be
“riotously assembled”. For this offence it is not necessary that the person continues to be one
of 12 people, only that they continue to meet the description under proceeding sections of the
Code as to riotous assembly. The maximum penalty is 14 years imprisonment.
Section 66(2) makes it an offence for a person (using conduct that involves a violent act) to
intentionally prevent a Police Officer from giving an order to disperse for the purpose of section
66(1).
The maximum penalty is 14 years imprisonment.
Section 66(3) sets out that a person is guilty of an offence if the person continues to be one of
12 people “riotously assembled” after having been part of a group in respect of which a Police
Officer has been prevented from making an oral order to disperse (in breach of
section 66(2)). To be guilty of this offence the person must know that the Police Officer was
prevented from giving the order. The maximum penalty is 14 years imprisonment.
Section 66(4) makes it an offence for a person to unlawfully damage property whilst one of 12
people riotously assembled. The maximum penalty is 14 years imprisonment.
Section 66(5) sets out the fact that an offence under this section can be committed in public or
private places.
Section 66(6) defines “conduct that involves a violent act” for the purposes of the section, and
includes threat of violence and conduct that is capable of causing injury or damage.
17.
Amendment of Schedule 1
This clause amends Schedule 1 of the Criminal Code to include the new section 66 as an
offence to which the new criminal responsibility provisions of Part IIAA will apply.
PART 5– AMENDMENT OF SUMMARY OFFENCES ACT
18.
Act amended
Part 5 amends the Summary Offences Act.
19.
Amendment of section 5 (Interpretation)
This clause inserts a definition of “loiter” into section 5 of the
Summary Offences Act.
20.
Repeal and substitution of section 47AA
This clause repeals and replaces section 47AA. Section 47AA, currently known as “affray”,
deals with fighting in public places. The new 47AA offence of Violent Disorder incorporates
conduct that would have amounted to affray under the current offence but also extends the
offence to other behaviour.
47AA. Violent disorder
The new section 47AA(1) provides that a person is guilty of an offence if they are one of two or
more persons who engage in a violent act (in public or in private places) that would result in a
person of reasonable firmness, and who is in the vicinity, fearing for his or her safety. The
person must engage in the act intending or knowing the nature of the act and that it would cause
the result of fear in the reasonably firm person. The person will also be guilty of the offence if
he or she is merely reckless as to whether the conduct involves a violent act and would have that
same result.
To prove the offence the person need not be individually engaged in the conduct as the focus in
this provision is on group conduct as a whole. The definition of “conduct that involves a
violent act” in subsection (4) is not restricted to conduct that causes injury or damage but also
conduct such as throwing a missile that is capable of harm towards a person or property without
actual injury or damage resulting. No person of reasonable firmness need to have been present
at the time of the alleged conduct.
The maximum penalty for breach is one year imprisonment (and or a fine of 100 penalty units
($11,000) imposed in accordance with section 38DA of the Interpretation Act).
Subsection (3) provides that the new offence of Violent Disorder will be an offence to which the
new criminal responsibility provisions of Part IIAA will apply.
21.
Amendment of section 47A (Loitering)
This clause changes the heading of section 47A from “Loitering” to “Loitering - general
offence” and omits the definition of “loiter” as it is now in the interpretation section.
22.
New section 47B
This clause inserts a new section 47B.
47B. Loitering – offence following notice
The new section 47B permits a Police Officer to issue a written notice to a person requiring that
person to stay away from a public place or area for a specified period. Such a notice can
operate for a period of up to 72 hours. It is an offence to breach the notice, with the maximum
penalty being 100 penalty units or six months imprisonment. There is a defence of reasonable
excuse.
Such a notice can only be issued where the Police Officer has a reasonable suspicion that the
person has committed or is about to commit an offence, or is part of a group of which one or
more members have committed or are about to commit an offence.
The requirements of the notice must be reasonable in the circumstances and the notice itself
must clearly specify the obligations under the notice and potential consequences of
non-compliance.
The issuing Police Officer must ensure that all reasonable steps are taken to explain clearly to
the person the terms of the notice, however a failure to comply, ie not properly explain the
terms, does not invalidate the notice.
23.
New section 55A
This clause inserts a new section 55A.
55A. Consorting between known offenders
The new section 55A gives the Commissioner of Police the power to issue written notices to
persons found guilty of certain prescribed offences (for which the maximum penalty is 10 or
more years imprisonment).
Such notices may prohibit such offenders from being in the company of, or communicating
with, specified persons (being persons also found guilty of a prescribed offence). The
Commissioner must give a notice to each such offender unless there are exceptional
circumstances.
A notice can only be given if the Commissioner of Police is satisfied that, by doing so, it is
likely to prevent the commission of a prescribed offence involving multiple offenders and
substantial planning and organisation.
It is an offence to contravene such a notice, with the maximum penalty being two years
imprisonment. There is a defence of reasonable excuse and unintentional association.
Appeals from the decision of the Commissioner of Police to issue the notice will be provided
for in regulations.