Common offences

Contributed by MichaelCrowley and current to 27 July 2018

Assault

An assault under the Criminal Code is any act that applies or threatens to apply force to another person or persons. The Criminal Code defines force as ‘strikes, touches, or moves, or otherwise applies force’ (s 222 Criminal Code). This force can be a mere touch, be direct or indirect, applied via third parties or by use of objects or devices. The words used in s 222 include ‘heat, light, electrical fault, gas, odour, or any other substance or thing whatever’. The key is to link the force to ‘injury, or personal discomfort’. Under the Criminal Code,words alone are not enough. However, the use of threatening words can ground an assault if accompanied by a bodily movement or gesture that adds meaning to the words thereby meeting the requirements of s 222. (see, for example: Hall v Fonceca [1983] WAR 309).

There is an increasing severity of assaults beyond common assault starting with assault occasioning bodily harm (s317 Criminal Code). The definition of ‘bodily harm’ and ‘grievous bodily harm’ includes diseases as well as injuries (see ss 294 and 297 Criminal Code and Houghton v R [2004] WASCA 20; (2004) 28 WAR 399 and R v Reid [2006] QCA 202; [2007] 1 Qd R 64).

It is possible to consent to the application of force in sport, for example, so long as the applied force is consistent with the rules of the game. For reasonable and honest belief in the existence of consent see s 24 Criminal Code and Lergesner v Carroll [1991] 1 Qd R 2016. When travelling on public transport, people give implied consent to certain applications of force consistent with the necessities of travel, like bumping and touching. However, deliberate inappropriate touching or grabbing or groping would likely constitute an assault. The defence of accident or duty is a question of fact that can provide a defence to an allegation of assault.

Sexual offences

Over time, the law on sexual assaults has undergone significant change. One constant feature is the distinction between offences that involve penetration and those that do not. Two examples of these changes are the offences of compelling a person to provide a ‘sexual service’ (s 331B Criminal Code) and the use of the internet to involve children in sexual activities (s 204B Criminal Code).

Penetration is a question of fact and can be of any orifice to any extent. There is an exception for proper medical purposes.

The lowest level of sexual assault is indecent assault (s 323 Criminal Code). Indecent assault has been held to require acting in a ‘base or shameful manner’ or ‘lewdness’ (Drago v R[1992] WASC 489; (1992) 8 WAR 488).

Proof of sexual offences requires proving a lack of consent. Although consent may be implied or expressed, there are limits. For example, whereas historically a husband could not be found guilty of the sexual assault of his wife; this is no longer the case (PGA v R [2012] HCA 21; (2012) 245 CLR 355). Furthermore, the Criminal Code provides a statutory definition: ‘consent freely and voluntarily given’ (s 319(2)(a)). But, this same consent has limits. For example, consent is not consent if it is obtained by force, threat, intimidation, deceit or any fraudulent means. A mere failure to offer resistance is not by itself evidence of consent (s 319(2)(b) Criminal Code). Furthermore, sexual offences against children imply a lack of consent. While the Criminal Code distinguishes between children of different ages the main impact of this distinction is that the maximum sentences are imposed for offences against the youngest children.

The defence of mistake must be reasonable and honest (s 24 Criminal Code).

Homicide

Homicide is concerned with the killing of one person by another.

Killings can be divided into lawful and unlawful categories. Lawful killings are those ‘authorised or justified or excused by law’ (s 268 Criminal Code). An example of an excuse to a killing could be killing somebody in self-defence. Not all homicides result in criminal charges being laid as some laws require certain types of deaths to be investigated. See, for example, s 17 Coroners Act 1996 (WA).

The key provisions for unlawful killings in WA are those sections concerned with murder (s 279 Criminal Code), manslaughter (s 280 Criminal Code) and the recent addition of unlawful assault causing death (s 281 Criminal Code). This latter provision is commonly referred to as the ‘one punch law’. The key distinction between murder and manslaughter is ‘intent’.

In WA, death is defined as the ‘irreversible cessation of all function of the person’s brain or irreversible circulation of blood in the person’s body’ (s13C Interpretation Act 1984 (WA), for brain death see s 24(2) Human Tissue and Transplant Act 1982 (WA)). The Criminal Code is concerned with the death of a person (s 270 Criminal Code). A foetus becomes a person when it is ‘has completely proceeded in a living state from its mother, whether it has breathed or not...’ (s.269 Criminal Code). However, a person can be charged with the killing of an unborn child (s. 290 Criminal Code and see R v Martin (No 2) (1996) 86 A Crim R 133 for the equivalent section under Queensland’s law. Note, however, that this type of killing is not an unlawful homicide because it does not involve the killing of a human person.

In WA, a person can be charged with either a direct or indirect killing (s 270 Criminal Code). There needs to be a link between the act or omission to act and the killing. The act can include assisting a person to die (s 273 Criminal Code) and it is no defence to claim the subsequent death could have been avoided by proper care and attention (ss 274, 275 Criminal Code).

A common defence to murder is self-defence (s 258 Criminal Code). However, diminished responsibility is not a defence in WA. Mental impairment is available in WA (see Criminal Law (Mentally Impaired Accused) Act 1996. The defence of provocation is also no longer available as a defence to murder in WA, but can provide a complete excuse to assault offences (ss 245, 246 Criminal Code ).

Industrial manslaughter

The Work Health and Safety Act 2020 has passed the Western Australian Parliament. Industrial manslaughter is found in section 30A. Penalties include imprisonment and fines. Company directors need to familiarise themselves with the aim and purpose of this legislation.

Domestic violence

Domestic violence includes physical, psychological and economic abuse of partners and other people involved in a domestic situations. It occurs most commonly between persons living in a sexual relationship or who have separated when one partner does not accept the relationship is ended. Living in fear of a partner or other people in the domestic situation is a feature of relationships that exhibit domestic violence.

There now exists a National Domestic Violence Order Scheme (NDVOS). This seeks to provide national recognition of state domestic violence orders.

Persons seeking advice on domestic violence should approach a lawyer, the Domestic Violence Legal Unit at Legal Aid WA, Women’s refuges (08 9420 7264) or if in fear of physical injury the police by ringing 000 immediately. Witnesses to domestic violence should also contact police if there is a reasonable fear that someone’s life is in danger.

The key legislation is the Restraining Orders Act 1997 (WA).

Stealing

Stealing is at its simplest when somebody’s property is taken without permission. Stealing’s essential elements comprise to ‘steal’ and ‘something capable of being stolen’ (s 378 Criminal Code). The latter element may include worthless notes or fire ash. Moving something slightly can also satisfy an element of stealing (see, Wallis v Lane [1964] VicRp 41; [1964] VR 293).

In WA, s 371 Criminal Code sets out the substantive provisions for stealing. Note that s 371A of the Criminal Code criminalises ‘joy riding’ or the taking of a vehicle without permission.

Careful consideration needs to taken when stealing and property ownership are mixed together. Although a person cannot be guilty of stealing his or her own property (Illich[1987] HCA 1; (1986) 26 A Crim R 232), he or she can be found guilty if ownership is not whole (s 376 Criminal Code) or the property is classed as ‘special property’ (s 371(2) Criminal Code). The latter includes property over which a lien (a right to keep possession of a persons property until a debt is paid) is held, for example, dry-cleaned clothes until payment has been completed.

Robbery is stealing with violence ( ss 392, 393 Criminal Code). Whether or not someone is armed is a question of fact. A person may be ‘armed’ if they pretend to be armed or have a weapon within reach or are in the company of armed co-offender (see 392(c) and also Western Australia v Majok [2005] WASC 13).

Fraud is a special type of stealing because it entails dishonestly taking or using or deceiving someone to that person’s loss (s 409). There are a series of special provisions concerned with a range of matters including fraudulent falsification of records (s 424) and unauthorised computer use (s 440A Criminal Code).

The defence of honest claim of right is available if the accused person honestly thinks they hold a legimate claim to the property and there is no intention to defraud (see, s 22 Criminal Code and the ‘bush turkey case’ Walden v Hensler ( 163 CLR 561).

Burglary

The essence of burglary is entering somebody’s place (includes property) without consent with the intent to commit an offence (s 401 Criminal Code). The element of entering requires proof that a part of a person’s body or something in possession or control of the person is in the place being entered. The definition of ‘in’ includes establishing contact with for example a screwdriver with a door jam. The concept of place includes any immovablestructure or entity (s 400 Criminal Code). While proof of the absence of consent is fundamental the fact that someone had permission to enter a property such as his or herplace of work it does not preclude a conviction for burglary if that place was entered outside of business hours without consent with an intent to take something without permission.

Alcohol and Drugs

These substances arise both in the Criminal Code and under specific laws. In the Criminal Code, intoxication, whether due to alcohol or drugs, can raise a defence (s 28 Criminal Code). For a discussion on intoxication, mistake of fact and self-induced intoxication see Aubertin v Western Australia [2006] WASCA 229; (2006) 33 WAR 87.

Alcohol laws in WA fall under two general regimes. The first involves offences that come under the Liquor Control Act 1988. This Act is concerned with the supply and consumption of alcohol and includes provisions for underage drinking on licenced premises, the sale and possession of alcohol including proof of age and drinking in public places.

Driving under the influence of alcohol or drugs is covered by the Road Traffic Act 1974. The threshold for blood alcohol limits is generally similar across Australia. For a learner or novice driver or a person driving a taxi or bus or certain other specified vehicles, the person’s alcohol level must be zero. For everybody else, the alcohol reading should be below 0.05. For men, this could be as little as two standard drinks in the first hour whereas forwomen, it is generally less.

The Misuse of Drugs Act 1981 targets the manufacture, cultivation, possession, supply and use of illicit drugs. This Act applies to those drugs and plants set out in s 4 and includes drugs of addition. Reference should be made to the Schedules I to IX attached to the Act.

There is a Cannabis Intervention Requirement Scheme in operation in WA for persons aged 14 years or younger. Under this scheme, police can issue a Cannabis Intervention Requirement if the young person possesses 10 grams or less of cannabis (or cannabis seeds) for personal use or has a smoking implement with traces of cannabis. This scheme is covered by both the Misuse of Drugs Act 1981 (Part IIIA) and the Young Offenders Act 1994.

Trespass

The word trespass means being on someone’s property without lawful excuse. The offence of trespass is covered by s 70A Criminal Code. The offence includes entering and/or remaining without consent or lawful excuse. If the defence of lawful excuse is raised the onus is upon the accused person to prove lawful excuse. Defences to trespass can also include mistake, accident, emergency and honest claim of right. These matters are heard in the local or magistrates court because the penalties are 12 months imprisonment or a $12,000 fine.

Prohibited weapons

Prohibited weapons are covered by the Weapons Act 1999 (WA) and Weapons Regulations 1999 (WA). Offences focus on ‘prohibited weapons’ (s 6 Weapons Act) and ‘controlled weapons’ (s 7 Weapons Act). For the types of items covered by these terms of reference need to be made to Schedules 1 and 2 of the Weapons Regulations 1999 and maybe the Firearms Act 1973.

Public places - move-on and control orders

Since 2004, the police in WA have had the power to issue move-on notices (Police Act 1892 (WA)) Persons issued with these notices must leave a specified area for up to 24 hours or face 12 months imprisonment or a fine of $12,000. The issuing of these notices is discretionary and only requires a police officer to ‘reasonably suspect’ that a person is ‘just about’ to commit an offence.

Driving offences

In addition to those driving offences covered above under Alcohol and Drugs there are a number of other serious offences. For example, unlicensed driving, dangerous driving, driving at reckless speed (>155km/hr or > 45 km/hr above the speed limit), failing to stop after an accident, failing to render assistance. driving whilst under suspension and the impounding of vehicles are all covered by the Road Traffic Act 1974. Hoon driving attracts special attention because vehicles seized by police can be impounded with costs for towing and storage being paid by the car owner. Hoon driving can include exceeding the speed limit by 45 km/h or more, racing on public roads, causing the vehicle to make excessive noise and/or causing the tyres to slide causing excessive smoke. A court can order the confiscation and disposal of a vehicle siezed under these hoon laws.

In 2020 the WA Parliament passed new laws imposing heavy penalties for using a phone while driving. There are two levels of penalties; using a mobile phone to make or receive an audio call (3 demerit points and $500 fine) AND using a mobile phone to create or view a text, social media or similar (4 demerit points and $1000 fine). Drivers need to accept that these penalties can apply even if the vehicle is, for example; stopped at lights and even touching your mobile phone can incur a penalty. Drivers can pre set their phone for navigational purposes and use a mobile phone cradle to hold the phone whilst driving. Drivers can still make and receive calls but the phone should be mounted in a cradle. Drivers should not be typing in phone numbers while driving.

Intimate Images - revenge porn

Early in 2019 the West Australian Parliament passed the Criminal Law Amendment (Intimate Images) Act 2019. This legislation gives effect to the Government's election commitment to criminalise the non-consensual distribution of intimate images. The legislation makes the non-consensual distribution of intimate images a crime which attracts penalties of either 18 months or three years and/or a fine of up to $18,000. Intimate images include a person's genital area or anal area whether bare or covered, breasts and private acts... (s 221BA Terms used intimate image, of a person). There are also powers to make orders requiring removal or destruction of images (s 221BE). Defences include the distribution for scientific, medical and other specificied purposes (s 221BD(3)). On 11 June 2019 a Perth man pleaded guilty to distributing intimate images of his former girlfriend by posting them om Instagram.

Other

Noisy and out of control parties: for noise complaints, reference should be made to local council regulations and the Environmental Protection (Noise) Regulations 1997. For out of control parties the Criminal Law Amendment (Out-of-Control Gatherings) Act 2012 gives the police powers to intervene.

Homosexual convictions can now be expunged - Historical Homosexual Convictions Expungement Act 2018.

The Criminal Law (Unlawful Consorting and Prohibited Insigna) Act 2021 has passed the Parliament. This legislation targets outlaw motorcycle gangs.