JUSTICE LEGISLATION AMENDMENT (GROUP CRIMINAL ACTIVITIES) BILL 2006 Explanatory Statement

Northern Territory Explanatory Statements

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JUSTICE LEGISLATION AMENDMENT (GROUP CRIMINAL ACTIVITIES) BILL 2006

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.

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