Northern Territory Second Reading Speeches

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CRIMINAL CODE AMENDMENT BILL (NO 4) 1998

Bills presented and read a first time.

Mr STONE (Chief Minister): Madam Speaker, I move that the bills be now read a second time.

The purpose of these bills is to remove the automatic penalty discount for abandoned attempts and to ensure that a person charged only with stealing property can be found guilty of receiving that property and vice versa.

Section 277 of the Criminal Code provides that it is an offence to attempt to commit an offence. Section 278 of the code provides that the penalty for attempts is half of the penalty for that completed offence. Section 279 further provides that the penalty is reduced by another half if the perpetrator abandons the attempt of his or her own volition. This means that if a person attempts to commit an offence but voluntarily abandons the attempt, he or she will effectively only be able to be sentenced for one quarter of the penalty available for the actual offence. This is the case even if the court is of the opinion that the attempted offence is serious enough to warrant a heavier penalty.

Queensland is the only other jurisdiction in Australia where a penalty discount for voluntary abandonment of an attempted offence is provided in legislation. Most jurisdictions rely on the court’s discretion to take into account any voluntary abandonment when in sentencing an offender.

The repeal of Section 279 of the Criminal Code will ensure that the courts have this discretion and it will send a message that an attempted offence that is voluntarily abandoned is not necessarily a less serious offence than the attempt would otherwise have been.

The second issue addressed by these bills relates to the interaction of the offences of stealing and receiving. It is a general principle of criminal law that a person can only be found guilty of an offence with which he or she is charged. However, in the case of some offences, similar evidence may support more than one charge. Furthermore, the appropriate offence of which to convict the offender may not become apparent until the evidence in full is presented in court. In these cases, it is common for the legislature to override the general principle. The most well-known example of this is murder and manslaughter. Although a person may be charged with murder, it may only become clear to the jury after all the evidence has been presented that the person has, in fact, committed manslaughter. The offences of stealing and receiving are similar examples.

To give the court flexibility to deal with the offences of stealing and receiving, section 323 was inserted into the Criminal Code. It currently provides that a person charged with stealing or, alternatively, receiving the same property, knowing or believing it to be stolen, may be found guilty of stealing, receiving or either stealing or receiving. In May 1997, the Supreme Court, on appeal in the matter of Kells and Pryce, found that section 323 did not give the court power to find the accused guilty of receiving stolen property when the accused had been charged only with stealing property. The court found that section 323 only applied if the accused had been charged with both offences in the alternative and, accordingly, the conviction of receiving was quashed.

The court should be given sufficient flexibility when dealing with stealing and/or receiving so as to deal with offenders appropriately. This should include the ability to find an offender guilty of stealing when he or she has been charged with receiving and vice versa. This bill overcomes the limitation confirmed in the decision of the Supreme Court and corrects the anomaly it highlighted.

The repeal and replacement of section 323 of the Criminal Code requires a consequential amendment to section 130A of the Justices Act to ensure that the new section applies to the Court of Summary Jurisdiction. As section 323 is to provide that a person can be found guilty of an offence for which they have not been charged, application of section 323 to summary trials must be expressly provided for. Currently section 130A of the Justices Act expressly applies sections 322, 324, 326 and 329 of the code. These sections all allow a person charged with a particular offence, for example stealing, to be found guilty of another offence for which the person had not been charged, for example criminal deception. The bill therefore amends section 130A of the Justices Act to include an additional reference to section 323 of the Criminal Code. I commend both bills to honourable members.

Debate adjourned.

 

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