South Australian Numbered Acts South Australian Numbered ActsAfter section 5 insert:
5AA—Aggravated offences
(1) An aggravated
offence is an offence committed in 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 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;
(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 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—
(i)
a spouse or former spouse of the offender; or
(ii)
a child of whom the offender, or a spouse or former
spouse of the offender, is the parent or guardian; or
(iii)
a child who normally or regularly resides with the
offender or a spouse or former spouse of the offender;
(h) the
offender committed the offence in company with 1 or more other persons;
(i)
the offender abused a position of authority, or a
position of trust, in committing the offence;
(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 or
mental disability;
(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; or
(ii)
the victim was, at the time of the offence, engaged in a
prescribed occupation or employment and the offender committed the offence
knowing that the victim was then engaged in an occupation or employment and
knowing the nature of the occupation or employment;
(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.
(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.
(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.
(5) In this
section—
"child" means a person under 18 years of age;
"spouse" includes a de facto spouse.
(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.
Example—
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.