South Australian Current Acts South Australian Current Acts (1) Subject to this
section, an aggravated offence is an offence committed in 1 or more of the
following circumstances:
(a) the
offender committed the offence in the course of deliberately and
systematically inflicting severe pain on the victim;
(b) the
offender used, or threatened to use, an offensive weapon to commit, or when
committing, the offence;
(c) the
offender committed the offence against a police officer, prison officer,
employee in a training centre (within the meaning of the
Youth Justice Administration Act 2016 ) or other law enforcement
officer—
(i)
knowing the victim to be acting in the course of his or
her official duty; or
(ii)
in retribution for something the offender knows or
believes to have been done by the victim in the course of his or her official
duty;
(ca) the
offender committed the offence against a community corrections officer (within
the meaning of the Correctional Services Act 1982 ) or community youth
justice officer (within the meaning of the Youth Justice Administration
Act 2016 ) knowing the victim to be acting in the course of their
official duties;
(d) the
offender committed the offence—
(i)
intending to prevent or dissuade the victim from taking
legal proceedings or from pursuing a particular course in legal proceedings;
or
(ii)
in connection with the victim's conduct or future conduct
(as party, witness or in any other capacity) in legal proceedings; or
(iii)
in retribution against the victim for taking legal
proceedings or for the victim's conduct (as party, witness or in any other
capacity) in legal proceedings;
(e) the
offender committed the offence—
(i)
in the case of an offence against
section 63B(3)—believing that the victim of the offence was, at the
time of the offence, under the age of 14 years; or
(ii)
in the case of an offence against Part 3 Division 8A or
section 63B(1)—knowing that the victim of the offence was, at the
time of the offence, under the age of 14 years; or
(iii)
in any other case—knowing that the victim of the
offence was, at the time of the offence, under the age of 12 years;
(f) the
offender committed the offence knowing that the victim of the offence was, at
the time of the offence, over the age of 60 years;
(g) the
offender committed the offence knowing that the victim of the offence was a
person with whom the offender was, or was formerly, in a relationship;
(i)
the offender committed the offence for the benefit of a
criminal organisation, or 2 or more members of a criminal organisation, or at
the direction of, or in association with, a criminal organisation; or
(ii)
in the course of, or in connection with, the offence the
offender identified himself or herself in some way as belonging to, or
otherwise being associated with, a criminal organisation (whether or not the
offender did in fact belong to, or was in fact associated with, the
organisation);
(h)
except in the case of an offence against Part 3A, the offender committed the
offence in company with 1 or more other persons (including persons who are
children);
(ha) in
the case of an offence against Division 2 or 3 of Part 5, or Part
6A—the offender committed the offence in a place in relation to which,
at the time of the offence—
(i)
there was in force a declaration under Part 4 of the
Emergency Management Act 2004 ; or
(A) residents and others in the place, or
in the vicinity of the place, had been advised (by radio broadcast) by the CFS
that, as a result of a severe, extreme or catastrophic fire danger rating in
respect of the place, they should activate their bushfire survival plan; and
(B) that advice had not been withdrawn or
ceased to apply; or
(iii)
residents and others had not been able to return to the
place after leaving in response to a declaration referred to in
subparagraph (i) or the provision of advice referred to in
subparagraph (ii),
and the offender knew, ought reasonably to have known, or was reckless with
respect to, that fact;
(i)
the offender abused a position of authority, or a
position of trust, in committing the offence;
(ia) in
the case of an offence constituted under Part 7B where the principal offence
is an aggravated offence—the principal offender was, to the knowledge of
the offender under that Part, a child;
(j) the
offender committed the offence knowing that the victim was, at the time of the
offence, in a position of particular vulnerability because of physical
disability or cognitive impairment;
(k) in
the case of an offence against the person—
(i)
the victim was, to the knowledge of the offender, in a
position of particular vulnerability at the time of the offence because of the
nature of his or her occupation or employment;
(ka) in
the case of an offence against the person—the victim was, at the time of
the offence, engaged in a prescribed occupation or employment (whether on a
paid or volunteer basis) and the offender committed the offence knowing the
victim to be acting in the course of the victim's official duties;
(l) the
offender was, at the time of the offence, acting in contravention of an
injunction or other order of a court (made in the exercise of either state or
federal jurisdiction) and the offence lay within the range of conduct that the
injunction or order was designed to prevent.
(1a) For the purposes
of section 19A, an aggravated offence is an offence committed in 1 or
more of the following circumstances:
(a) the
offender committed the offence in the course of attempting to escape pursuit
by a police officer;
(ab) the
offender was, at the time of the offence, driving a motor vehicle in a
street race;
(b) the
offender was, at the time of the offence, driving a vehicle knowing that he or
she was disqualified, under the law of this State or another State or
Territory of the Commonwealth, from holding or obtaining a driver's licence or
that his or her licence was suspended by notice given under the
Road Traffic Act 1961 ;
(c) the
offender committed the offence as part of a prolonged, persistent and
deliberate course of very bad driving or vessel operation;
(d) the
offender committed the offence while there was present in his or her blood a
concentration of .08 grams or more of alcohol in 100 millilitres of blood;
(e) the
offender was, at the time of the offence, driving a vehicle in contravention
of section 45A, 47 or 47BA of the Road Traffic Act 1961 or operating a
vessel in contravention of section 70(1) of the
Harbors and Navigation Act 1993 .
(1ab) For the purposes
of section 19ABA(1) or (2), an aggravated offence is an offence committed
in 1 or more of the following circumstances:
(a) the
offender was, at the time of the offence, driving a motor vehicle knowing that
they were disqualified, under the law of this State or another State or
Territory of the Commonwealth, from holding or obtaining a driver's licence or
that their licence was suspended by notice given under the Road Traffic
Act 1961 ;
(b) the
offender committed the offence while there was present in the offender's blood
a concentration of .08 grams or more of alcohol in 100 millilitres
of blood;
(c) the
offender was, at the time of the offence, driving a motor vehicle in
contravention of section 44C, 47 or 47BA of the Road Traffic
Act 1961 ;
(d) the
offender was, at the time of the offence, driving or using a motor vehicle
knowing that it had a material defect and that material defect contributed to
the commission of the offence.
(1b) For the purposes
of section 19AC, an aggravated offence is an offence committed in 1 or
more of the following circumstances:
(a) the
offender was, at the time of the offence, driving or using a motor vehicle
that—
(i)
was stolen; or
(ii)
was being driven or used without the consent of the owner
of the vehicle,
and the offender knew, or was reckless with respect to, that fact;
(b) the
offender was, at the time of the offence, driving a motor vehicle knowing that
he or she was disqualified, under the law of this State or another State or
Territory of the Commonwealth, from holding or obtaining a driver's licence or
that his or her licence was suspended by notice given under the
Road Traffic Act 1961 ;
(c) the
offender committed the offence while there was present in his or her blood a
concentration of .08 grams or more of alcohol in 100 millilitres of blood;
(d) the
offender was, at the time of the offence, driving a motor vehicle in
contravention of section 47 or 47BA of the Road Traffic Act 1961 .
(1c) For the purposes
of section 19AD, an aggravated offence is an offence committed by the
driver of a motor vehicle in 1 or more of the following circumstances:
(a) the
offender knew that, at the time of the offence, he or she was driving the
motor vehicle in circumstances of heightened risk;
(b) the
offender committed the offence knowing that there were 1 or more passengers in
or on the motor vehicle;
(c) the
offender knew, or ought reasonably to have known, that, at the time of the
offence, he or she was driving a motor vehicle that had a major defect.
(1d) For the purposes
of section 19ADA, an aggravated offence is—
(a) an
offence that caused harm to a person; or
(b) an
offence committed by the driver of a motor vehicle in 1 or more of the
following circumstances:
(i)
the offender was, at the time of the offence, driving or
using a motor vehicle that—
(A) was stolen; or
(B) was being driven or used without the
consent of the owner of the vehicle,
and the offender knew, or was reckless with respect to, that fact;
(ii)
the offender committed the offence in the course of
attempting to escape pursuit by a police officer;
(iii)
the offender committed the offence knowing that there
were 1 or more passengers in or on the motor vehicle;
(iv)
the offender committed the offence while the offender was
the holder of—
(A) a provisional licence; or
(B) a probationary licence; or
(C) a learner's permit; or
(D) an interstate provisional licence; or
(E) an interstate learner's permit,
(as defined in the Motor Vehicles Act 1959 ) authorising the holder to
drive a motor vehicle of the class driven by the offender at the time of the
offence;
(v)
the offender was not, at the time of the offence, the
holder of—
(A) a driver's licence; or
(B) a learner's permit; or
(C) an interstate licence; or
(D) an interstate learner's permit; or
(E) a foreign licence,
(as defined in the Motor Vehicles Act 1959 ) authorising the holder to
drive a motor vehicle of the class driven by the offender at the time of the
offence;
(vi)
the offender was, at the time of the offence, driving a
motor vehicle knowing that they were disqualified, under the law of this State
or another State or Territory of the Commonwealth, from holding or obtaining a
driver's licence or that their licence was suspended by notice given under the
Road Traffic Act 1961 ;
(vii)
the offender committed the offence while there was
present in the offender's blood a concentration of .08 grams or more of
alcohol in 100 millilitres of blood;
(viii)
the offender was, at the time of the offence, driving a
motor vehicle in contravention of section 47 or 47BA of the
Road Traffic Act 1961 .
(2) A person is taken
to know a particular fact if the person, knowing of the possibility that it is
true, is reckless as to whether it is true or not.
(2a) For the purposes
of subsection (1)(ga)(ii), a person will be taken to have identified
himself or herself as belonging to, or as being associated with, a
criminal organisation if the person displayed (whether on an article of
clothing, as a tattoo or otherwise) the insignia of the criminal organisation
unless the person proves that he or she did not display the insignia knowingly
or recklessly.
(2b)
Subsection (2a) does not limit the ways in which a person may identify
himself or herself as belonging to, or being associated with, a
criminal organisation.
(3) If a person is
charged with an aggravated offence, the circumstances alleged to aggravate the
offence must be stated in the instrument of charge.
(4) If a jury finds a
person guilty of an aggravated offence, and 2 or more aggravating factors are
alleged in the instrument of charge, the jury must state which of the
aggravating factors it finds to have been established (but a failure to comply
with this subsection does not affect the validity of the jury's verdict).
(4a) Two people will
be taken to be "in a relationship" for the purposes of subsection (1)(g)
if—
(a) they
are married to each other; or
(b) they
are domestic partners; or
(c) they
are in some other form of intimate personal relationship in which their lives
are interrelated and the actions of 1 affects the other; or
(d) 1 is
the child, stepchild or grandchild, or is under the guardianship, of the other
(regardless of age); or
(e) 1 is
a child, stepchild or grandchild, or is under the guardianship, of a person
who is or was formerly in a relationship with the other under
paragraph (a), (b) or (c) (regardless of age); or
(f) 1 is
a child and the other is a person who acts in loco parentis in relation to the
child; or
(g) 1 is
a child who normally or regularly resides or stays with the other; or
(h) they
are brothers or sisters or brother and sister; or
(i)
they are otherwise related to each other by or through
blood, marriage, a domestic partnership or adoption; or
(j) they
are related according to Aboriginal or Torres Strait Islander kinship rules or
are both members of some other culturally recognised family group; or
(k) 1 is
the carer (within the meaning of the Carers Recognition Act 2005 ) of
the other.
(5) In this
section—
"CFS" means the South Australian Country Fire Service;
"child" means a person under 18 years of age;
"circumstances of heightened risk", in relation to the driving of a
motor vehicle, means—
(a)
driving the motor vehicle between sunset on one day and sunrise on the next
day; or
(b)
driving the motor vehicle in circumstances where traction between the vehicle
and the surface being driven on is adversely affected; or
(c)
driving the motor vehicle in circumstances where visibility is adversely
affected;
"cognitive impairment" includes—
(a) a
developmental disability (including, for example, an intellectual disability,
Down syndrome, cerebral palsy or an autistic spectrum disorder);
(b) an
acquired disability as a result of illness or injury (including, for example,
dementia, a traumatic brain injury or a neurological disorder);
(c) a
mental illness;
"harm" has the same meaning as in section 21;
"major defect"—a motor vehicle has a major defect if use of the
motor vehicle constitutes a serious risk to the safety of any person;
"material defect"—a motor vehicle has a material defect if it has a
defect that could affect the safe operation of the vehicle;
"street race" has the meaning given in section 19AD.
(6) This section does
not prevent a court from taking into account, in the usual way, the
circumstances of and surrounding the commission of an offence for the purpose
of determining sentence.
Examples—
1 A person is charged with a basic offence and the
court finds that the offence was committed in circumstances that would have
justified a charge of the offence in its aggravated form. In this case, the
court may, in sentencing, take into account the circumstances of aggravation
for the purpose of determining penalty but must (of course) fix a penalty
within the limits appropriate to the basic offence.
2 A person is charged with an aggravated offence
and the court finds a number (but not all) of the circumstances alleged in the
instrument of charge to aggravate the offence have been established. In this
case, the court may, in sentencing, take into account the established
circumstances of and surrounding the aggravated offence (whether alleged in
the instrument of charge or not) but must not (of course) take account of
circumstances alleged in the instrument of charge that were not established.