Criminal Law In New South Wales

1. In NSW, the law shifted its language from the use of ‘rape’ to ‘sexual assault’.

a. Discuss Pros and Cons of the change in language from 'rape' to 'sexual assault'. 

In answering this question, you must:

Identify the relevant legislative amendments introducing this change in language in NSW

Discuss the arguments made in relevant parliamentary debates
At least one other authoritative source (eg scholarly debate, case law, law reform enquiries, etc

b. Draw a conclusion as to whether the change in language was a positive decision.

c. Locate, cite and briefly summarise (what was changed, why and how) two further reforms relating to sexual assault within the Crimes Act 1900 (NSW)

2. Let's take a closer look at how Intoxication relates to Criminal Responsibility in NSW.

a) Identify one example under NSW criminal law where intoxication serves to reduce, limit or mitigate a person’s criminal liability.

b) Identify one example under NSW criminal law where intoxication serves to expand or aggravate a person’s criminal liability.

c)  Discuss the relationship of intoxication to the issue of consent in sexual assault cases in relation to:

i. Intoxication of the accused

ii. Intoxication of the alleged victim

d) Find the Criminal Trial Courts Bench Book, produced by the Judicial Commission of New South Wales, and explain, in your own words, how:
(i) intoxication can be taken into consideration by Courts when considering both physical and fault elements of offences; and
(ii) how consideration of intoxication, as an issue, needs to be communicated to juries.

Professor Andrew Ashworth, an English expert on criminal justice, has argued that imprisonment should be abolished for property offences, such as theft and fraud. His opinions can be found here: http://howardleague.org/wp-content/uploads/2016/03/What-if-imprisonment-were-abolished-web.pdf

a) In NSW what are the penalties for the core offences of theft and fraud?

b) NSW also has a number of very specific offences depending on the property stolen. What are the potential penalties if the following are stolen (remember to cite the relevant provision):
i. Cattle

ii. Dogs

iii. A library book
iv. A rock
v. A plane

c) Do you agree with Prof Ashworth’s arguments, why or why not? Use relevant sources in support of your argument (eg statistics, other academic opinions, legislation, case law)

d) If a homeless, starving person steals food to survive, can they successfully argue any defences? Apply relevant case law in support of your answer.

Sexual assault

Prior to the amendments of 1981, the Crimes Act 1900 embodies the common law definition of rape which restricted itself to penial penetration. There have been various debates as to whether substituting the term rape for sexual assault is beneficial; whether it would lead to more convictions. The Crimes (Sexual Assault) Amendment Act 1981 aimed to rectify the defects in law and protect victims by broadening the definition. As such the terms rape and attempted rape were abolished and substituted with sexual assault. The previous definition was gendered in that men were the only ones considered as perpetrators and females the only victims. In order to better protect other victims, the government saw it best to assume a more gender-neutral definition. As such, the removal of stigma as well as ensuring all possible victims are protected are the arguments in support of changing the language to sexual assault from rape.

However, the reforms were not met wholeheartedly, opponents to the change in language believe that substituting rape with sexual assault devalues the offence and as such fails to recognise the unique nature it encompasses. Scholars have argued that instead of a change of language, it would be better to consider changes in the burden of proof, consent requirements or adopting provisions to cover new issues in sexual offences such as date rape. The basis of their argument is that, in as much as rape has some social stigma attached to it, the word in itself is important as it expressed the gravity of the offence. As such, the disadvantage with the change in language is that it dims down the gravity of the offence.

Although the change in language may water down the ‘value’ of the offence in the perception of society, adopting a new definition allowed for more convictions and the protection of a larger number of people. This is because; both men and women could be considered as victims or offenders. Previously, the law seemed to assume that only women could be victims and only men could be offenders. This stereotypical approach led to the development of stigma attached to the offence. Additionally, various victims were locked out from justice as their experiences did not fall under the definition stipulated by law. The amendments were aimed at covering all those locked out from justice due to the existing defects in law which were propagated by the restrictive definition. As such, the change in language serves as a positive definition; various offences can be covered under the definition of sexual assault. Additionally, the current definition is not as rigid as rape; it can easily be broadened to encompass any changes in law. People can seek justice under either of the categories set under the law on sexual assault and additionally, the legal system is sensitised thus reducing the stigma that was previously attached to rape cases. It is, however, important to note that ‘rape’ is still recognised as a term, the offence has merely been redefined under law.

Intoxication

Another notable reform with regard to sexual assault under the Act 1900 was the broadening of the definition of sexual intercourse. Previously, the term was defined as “proved upon penetration”. However, the Crimes (Sexual Assault) Amendment Act 1981 made significant strides in expanding this restrictive definition. In effect, penetration of the vagina or anus by any body part or foreign object, except for medical purposes, fell under the scope of sexual intercourse and would, therefore, where consent was not established, constitute sexual assault. These amendments were brought about by the Criminal Legislation (Amendment) Act 1992 which introduced section 61H that in summary provides as aforementioned.

With the broadening of this definition came the need for the redefinition of consent which is a key and complex area in sexual assault cases. Under s 61HA (2) of the Act 1900, consent to sexual intercourse should be given freely and voluntarily. However, there are certain circumstances under which consent may be negated. Although some of these were previously provided for, the current act under section 61HA 8 provides that the grounds are not limited; such a provision ensures that victims of sexual assault are protected where circumstances negating consent, which are not expressly covered, arise. 

Part 11A of the Crimes Act 1900 (NSW) outlines the significance of intoxication as a determinant of guilt under NSW criminal law. Although not necessarily a defence, intoxication can be used to challenge the elements of the crime in question; that is whether the crime was voluntary or the person had mens rea to commit the offence. As such, the defence may rely on intoxication to argue that the accused lacked actus rea or mens rea thus mitigating their criminal responsibility. However, as illustrated in Reg v Majewki (1977) a distinction should be made between self-induced and involuntary intoxication as well as crimes of basic and specific intent. Intoxication, therefore, would only apply as a mitigating factor where firstly it is non-self-induced and serves to negate either of the elements of the offence. Self-induced intoxication will only be considered as a mitigating factor in specific intent crimes.

NSW, as with other Australian jurisdictions, has restrictions as to the extent to which a defendant can rely on intoxication to avoid criminal liability. Where the accused becomes intoxicated recklessly and carries out the offence, then this could be considered as an aggravating factor to their criminal liability. Although, as aforementioned, self-induced intoxication can be relied on as evidence in crimes of specific intent; where the offender had previously committed to going ahead with the offence then intoxication will not serve to reduce their liability. For long, intoxication has been relied on as a mitigating factor, however recent amendments have seen intoxication being included as an aggravating factor in assault cases. A person above the age of 18 who commits the offence of assault which leads to death and is intoxicated is found liable for a maximum penalty of up to 25 years. As such intoxication would be an aggravating factor where the offence in question is an assault causing death. These amendments were a response to the increasing cases of alcohol-related violence which brought about calls for reform.

Property Offences, Just Punishment

In the case of the accused, a court is guided by the provisions of the Act 1900 not to consider self-induced intoxication as a defence in sexual assault offences. As such where the issue to be determined is whether the accused knew about consent or not; they cannot rely on self-induced intoxication to say that they were unaware that consent was not given.

Under s 61HA of the Crimes Act 1900, a person who engages in sexual intercourse while intoxicated is said to have not given consent and as such the act would amount to sexual assault as free or voluntary agreement is inhibited by the alleged victim’s intoxication.

When considering intoxication, courts consider various elements. Firstly, whether the intoxication was self-induced or non-voluntary; where intoxication is non-voluntary then courts can consider it as evidence that the accused lacked intent to commit the crime. Self-induced intoxication is considered with the second element which is the type of crime. If the crime is of specific intent then self-induced intoxication can suffice as a defence, however, it would not apply to a crime of basic intent. The issue to be considered by courts is how the state of intoxication affects either the elements of mens rea or actus rea; it is important to not however that intoxication does not entirely diminish an accused’s responsibility it only mitigates it.

A judge cannot direct the jury as to whether the accused has the capacity, with regard to their intoxication; such a direction could amount to a miscarriage of justice. However the judge can direct the jury in writing to consider the accused’s intoxication in their deliberations; they can direct the jury to consider the effect of the intoxicating substance, the degree of intoxication among other elements that the court would deem relevant as guided by law. It is up to the judge to highlight the importance or lack thereof of intoxication in the given matter, they can however not directly tell the jury that the intoxication affected the capacity of the accused in any way. The trial judge should leave it up to the jury to determine. Additionally, the directions given should be clear and relevant.

In NSW, theft is referred to as stealing or larceny and is defined as fraudulently “taking and carrying away” property belonging to another with the aim of permanently denying them its use or enjoyment. The elements for proving a case of theft are that the property in question belongs to someone else, it was taken and subsequently carried away from where it belongs and that this was without the owner’s consent and that the taker had no intention of returning it thus depriving the owner of their right to enjoyment. According to s 117 of the Crimes Act 1900 (NSW) larceny attracts a penalty of 5 years imprisonment. However, various offences could attract varying punishments. Fraud, on the other hand, involves “obtaining” another’s property or gaining a financial advantage through deceit or by dishonest means. Where an accused if found guilty, the maximum penalty a court can issue is 10 years imprisonment.

Cattle theft is an offence under NSW criminal law; it is considered larceny. Under s 126 of the Act 1900, anyone who is found guilty of stealing cattle or killing them with the aim of stealing their skin, carcass or any other part is liable to 14 years imprisonment.

According to the Crimes Act 1900, an accused person who is found guilty of stealing any dog is liable to six months imprisonment or a fine of 5 penalty units. Additionally, where a person, after being previously convicted of a similar offence is found guilty of stealing a dog, or in unlawful possession of a stolen dog shall be imprisoned for a year.

A person found to have stolen or damaged with the aim of stealing, a book from a library, shall upon conviction be imprisoned for a year. Additionally, s 525 of the Crimes Act 1900 (NSW) provides that they should pay a fine of up to 10 penalty units as well as four times the value of the stolen book.

Under s 521A of the Act 1900, stealing rocks or stones that form part of any land brings forth a liability of 6months imprisonment or 5 penalty units or in some cases both.

According to s 154B of the Crimes Act 1900, stealing an aircraft brings about a penalty of 10 years imprisonment.

The European Convention on Human Rights recognises the right to liberty as a fundamental human right; however lawful arrest and detention can lead to loss of this right. According to Professor Ashworth, imprisonment for ‘pure property offences’ is an unnecessary infringement on this right; the loss of property is not proportional to the loss of an individual’s liberty. Over the years, arguments have been raised over the ineffectiveness of imprisonment as a deterrent; in essence, it has only led to overpopulated prisons that are becoming a problem in themselves.  The purpose of sentencing as set out in law is to punish, deter, protect the community and rehabilitate the offender. However as set out by Gleeson CJ in R v Engert (1995), sentencing should not be the automatic consequence of a crime, the court should have discretion in analysing the particular circumstances of each case and identifying the proper approach so as to ensure deterrence, as well as rehabilitation, are achieved. As such, imprisonment for certain property offences should be abolished, compensation, restitution and other penalties should be considered instead of the deprivation of the offender’s liberty; judges should exercise discretion and adjudge each case by its specific circumstances.

Recently an Italian court found that theft of food for survival did not constitute a criminal offence. In NSW, this would constitute larceny which carries with it a penalty of 5years imprisonment. Necessity is a common law defence which would be applicable where the accused can prove that certain circumstances which would bear greater consequences than those of breaking the law forced them to engage in the criminal act. R v Loughnan (1981) established certain elements which constituted this defence; the criminal offence was committed to avoid irreparable harm against the accused or those they are bound to protect, the accused is certain they were faced with imminent harm, the proportionality between the act done and the harm being avoided. The accused has onus to prove that he is entitled to this defence.  As such, a homeless, starving person accused of theft of food can rely on the defence of necessity as described above.

Anna Carline and Patricia Easteal, Shades of Grey-Domestic and Sexual Violence Against Women: Law Reform Society (Routledge, 2014)

Benjamin & Leonardo Lawyers, Stealing (or Larceny) (2017) The Defenders https://www.thedefenders.com.au/offences/criminal-offences/stealing-or-larceny/

Damien Warburton, ‘The Rape of a Label Why it Would Be Wrong to Follow Canada in Having a Single Offence of Unlawful Sexual Assault’ (2004) Journal of Criminal Law  68(6) 209

Find Law Australia, Stealing and Theft Offences Explained  Find Law Australia https://www.findlaw.com.au/articles/4239/stealing-and-theft-offences-explained.aspx

Gareth Griffith,’Intoxication and the Criminal Law’ (E-Brief 1/08, Parliamentary Library Research Service, NSW, 2008)

Hayley Boxall, Adam M Tomison and Shann Hulme, Historical review of sexual offence and child sexual abuse legislation in Australia: 1788-2013 (Australian Institute of Criminology Special Report, 2014)

Hilde Tubex, Mandatory sentencing leads to unjust, unfair outcomes- it doesn’t make us safe (4 January 2016) The Conversation https://theconversation.com/mandatory-sentencing-leads-to-unjust-unfair-outcomes-it-doesnt-make-us-safe-52086

Ian Dobinson and Lesley Townsley, ‘Sexual assault law reform in New South Wales: Issues of consent and objective fault’ (2008) 32(3) Criminal Law Journal 152

John W Cairns and Olivia F Robinson, Critical Studies in Ancient Law, Comparative and Legal History (Hart Publishing, 2004)

Judicial Commission of New South Wales, Larceny (10 March 2005) Criminal Trial Courts Bench Book Offences https://www.judcom.nsw.gov.au/publications/benchbks/criminal/larceny.html

Judicial Commission of New South Wales, Fraud Offences (7 March 2017) Sentencing Bench Book https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/fraud_offences.html

Judicial Service Commission, Purposes of Sentencing (27 May 2014) Sentencing Bench Book https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/purposes_of_sentencing.html#p2-295

Julia Quilter, ‘One-punch Laws, Mandatory Minimums and ‘Alcohol-Fuelled’ as an Aggravating Factor: Implications for NSW Criminal Law’ (2014) 3(1) International Journal for Crime Justice and Social Democracy 81

Professor Andrew Ashworth, What if imprisonment was abolished for property offences? (2013) The Howard League for Penal Reform https://howardleague.org/wp-content/uploads/2016/03/What-if-imprisonment-were-abolished-web.pdf

Ruth Patrick, Is it really criminal to steal food when you are destitute (11 May 2016) The Conversation https://theconversation.com/is-it-really-criminal-to-steal-food-when-youre-destitute-59190

Streeton Lawyers, Intoxication https://www.streetoncriminallawyers.com.au/criminal-law/defences/intoxication/

Bellchambers v R [2008] NSWCCA 235

Reg v Majewski [1977] AC 443

R v Cairns [1999] 2 Crim App Rep 137

R v Engert (1995) 84 A Crim R 67

R v Loughnan [1981] VR 443 at [448]

R v Rogers (1996) 86 A Crim R 542

Crimes Act 1900 (NSW)

Criminal Legislation (Amendment) Act 1992

Crimes (Sexual Assault) Amendment Act 1981

European Convention on Human Rights (ECHR) 1950