Offences against the person

Contributed by CarlyIngles and current to 1 May 2016

Introduction

This chapter deals with common offences to be found in the Criminal Code Act (CCA) and other Acts commonly used to bring criminal charges, such as the Summary Offences Act (SOA), the Trespass Act and the Firearms Act.

The Criminal Code divides crimes into three categories:

• crimes
• simple offences
• regulatory offences.

Generally, an offence is a crime if the maximum penalty is imprisonment for a period of more than two years. Crimes are often also referred to as indictable offences because they can only be prosecuted on indictment, except in circumstances set out in the Justices Act (NT).

The more serious crimes are generally dealt with in the Supreme Court while less serious crimes, simple offences and regulatory offences are generally dealt with in the Magistrates Court (see Going to Court). The Magistrates' Court in the Northern Territory is called the Court of Summary Jurisdiction.

The maximum penalty for an offence is usually set by the relevant Act. There are also mandatory minimum sentences in place in the Northern Territory, for violent offences [Sentencing Act, Part 3, Division 6A], sexual offences [Sentencing Act, Part 3, Division 6B], drug offences [Misuse of Drugs Act, s. 37] and property offences [Sentencing Act, Part 3, Division 6].

Offenders under 18 years of age are dealt with by the Youth Justice Court and are subject to different sentencing options (see Young people and crime ).

Warning

The information in this section is only a brief summary of some of the elements of these offences. Anyone who is charged with an offence should seek legal advice and assistance.

'Offences against the person' is a term which covers a large number of acts. In the Criminal Code (see Part VI of the CCA) it covers for instance:

• the failure to rescue a person in need of urgent assistance where life is endangered [CCAs.155]
• murder [CCA s.156]
• driving a motor vehicle causing death or serious harm [CCA s.174F]
• female genital mutilation [CCA s.186B]
• assault [CCA s.188]
• indecent assault [CCA s.188 (k)]
• stalking [CCA s.189]
• rape [CCA s.192]
• kidnapping [CCA s.194]
• procuring abortion (CCA s.208B).

Non-sexual violent offences

Assault

The offence of assault involves the direct or indirect application of force to a person without their consent or an attempt or threat to use such force [CCA s.187].

An assault can include threatening gestures, such as shaking a fist, and even extends to spitting on someone. Spitting on someone is considered to be a serious assault, where the starting point is often imprisonment. The penalty for the simple offence of assault is a maximum of one year's imprisonment.

A more serious assault is known as an aggravated assault. Some examples of situations where an assault may be considered aggravated are where:

• it is committed by a male on a female
• the victim is under the age of 16 years and the offender is an adult
• the attack involved a weapon (even if it was just a threat to use the weapon such as pointing of a gun or drawing a knife)
• the attack caused harm (which may be physical or mental, including just causing pain)
• it is indecent in nature (see Sexual Offences).

The penalty for aggravated assault is a maximum of five years imprisonment for offenders prosecuted in the Supreme Court and two years for offenders prosecuted in the Magistrates Court. Most often, aggravated assaults are heard by the Magistrates' Court. However, it is common that the Supreme Court will hear charges of aggravated assaults, where it is accompanied by other serious charges, in involves a child or other vulnerable victim, or the defendant has elected a trial by jury.

A person who would otherwise be guilty of assault is not liable if their action occurred:

• while they were rescuing or resuscitating a person
• while acting in self defence or defence of another
• while they were giving medical treatment or first aid reasonably needed by the person
• in the course of a normal part of a sporting activity
• in the 'common intercourse of life', such as bumping into someone while getting off a crowded bus
• when a parent or other person caring for a child is using force to discipline, manage or control a child, but not if the force is unnecessary or disproportionate to the occasion.

A person who is convicted of an assault that causes an injury that endangers a person's life or is likely to be significant and longstanding is guilty of inflicting serious harm. This is a more serious form of assault. If the injury was inflicted intentionally, the maximum penalty is life imprisonment [CCA s.177]. If the injury was inflicted unlawfully (that is, an assault is intended and is not legally authorised, justified or excused) but without intending to cause serious harm the maximum penalty is 14 years imprisonment [CCA s.181].

Stalking

Stalking is the act of intentionally harassing, threatening or intimidating a person by following them about, unwanted contact with a person including by electronic means, waiting outside their house or workplace, interfering with their property and so on. This could capture using social media or other electronic means in a way that causes a person to fear for their own, or another person's, safety. The maximum penalty for this offence is two years imprisonment, unless the offender is in breach of bail or a court order or is carrying a weapon, in which case the maximum penalty increases to five years imprisonment [CCA s.189].

Threatening violence

The offence of threatening violence [SOA s.47AB] is committed by a person who:

• with intent to intimidate or annoy another person threatens to damage a dwelling house.

This offence incurs a maximum penalty of 12 months in prison, unless it is committed at night, in which case the prison term increases to two years. This particular offence is not concerned with threats of violence against a person; that sort of behaviour is covered by assault laws (see Assault ).

Dangerous act (now repealed)

The offence of dangerous act [CCA s.154] has been repealed but can still have application to acts which occur prior to 20 December 2006.

The offence was unique to the Northern Territory and was committed when a person committed an act which in similar circumstances an ordinary person foreseeing the danger of such an act would not have proceeded with the act. The provision was able to be used when there was only potential danger or equally where the danger had become actual and a person killed or seriously injured.

The penalties were of course higher when a person was killed. If a person was drunk at the time they committed the act, rather than providing any measure of excuse, the fact of drunkenness attracted a higher penalty.

Maximum penalties for dangerous act offences range from five to 14 years.

Murder and manslaughter

The Criminal Code provisions relating to murder and manslaughter have changed as of 20 December 2006.

A person is guilty of murder if they engage in conduct that causes the death of another person and they intend to cause death or serious harm to that person or any other person by that conduct [see CCA s.156].

The penalty for murder is a mandatory life sentence; however, a sentencing court must fix a non-parole period except in limited circumstances [Sentencing Act s.53(A)].

The standard non-parole period for murder is 20 years. If any of the aggravating circumstances set out in section 53A(3) of the Sentencing Act apply, such as the victim was a police officer, the killing was committed in the course of the commission of a sexual offence or there are two or more killings, the minimum non-parole period is 25 years.

Murder may be reduced to manslaughter if the conduct of the deceased provoked the killing. The provocation generally needs to be of a kind to have actually caused the accused to lose self control but also be of a kind that could have induced an ordinary person to have so far lost self control as to have formed an intent to kill or cause serious harm to the deceased [CCA s.158].

Murder may also be reduced to manslaughter when the killing was intentional if the mental capacity of the accused was substantially impaired at the time of the killing [CCA s.159].

Otherwise, a person is guilty of manslaughter when their conduct causes the death of another person but the person is reckless or negligent as to causing the death as opposed to intentionally causing the death [CCA s.160].

The maximum penalty for manslaughter is life imprisonment but this is not a mandatory sentence. The period of imprisonment actually imposed depends on such factors as an offender's age, prior convictions, character and of the circumstances of the offence.

Violent act causing death (one-punch homicide)

In 2012, a new crime of violent act causing death was introduced into the Criminal Code Act (NT). It is designed to cover the situation of deaths as a result of one-punch or strike. If a person engages in conduct involving a violent act to another person, and that conduct causes the death of that or another person, the person is guilty of the crime, and can be imprisoned for up to 16 years [CCA, s.161A].

A person is guilty of this crime even in situations where death was not intended, their conduct was not reckless or negligent, and the person was consenting to the violent act (for example, the persons are engaged in a consensual physical fight). It excludes conduct that is done for the benefit of the deceased person, or as part of a socially acceptable function or activity (like sport) but only if the conduct was reasonable.

Offences against the person without violence

There are a number of offences against persons which do not necessarily include violence. All persons, in particular circumstances, owe duties for the preservation of human life [CCA, ss.149 to 153]. For example, a person with the care of a child under the age of 16, or a person who cannot care for him or herself, must provide the necessaries of life, and use reasonable care and reasonable precautions to prevent injury and to rescue the person from any danger [CCA s.149]. Failure to meet these duties in particular circumstances may result in criminal liability. Some examples that can lead to being charged with a crime include a person's failure to provide a child in their care with appropriate and timely health care, or leaving a child in a car unattended in a hot car for a long period of time. It is an offence to assist or encourage suicide [CCA s.162].

Reckless or negligent conduct including when driving

Driving dangerously and causing death or serious harm to a person is a crime [CCA s.174F], and a person failing to stop at the scene of a motor vehicle accident caused, where a person dies or suffers serious harm, is a crime [CCA s.174FA]. If a person suffers, or is at risk of, death or serious harm due to another person's reckless or negligent conduct, that person can be charged with a crime [CCA s.174C to 174E]. Sometimes such crimes involve violence, but sometimes they do not (for example, obstructing a roadway with obstacles which cause someone to have an accident and suffer serious harm). These crimes largely replace the repealed crime of Dangerous Act (referred to above).

Drink spiking

Spiking someone's drink or food, throwing rocks or other items or pointing lasers at a motor vehicle or train, interfering with road, rail, aircraft or boat signals or thoroughfares where it endangers the safety of people are all crimes that can lead to prison sentences [CCA s.176A, ss.179 to 180A].

Deprivation of liberty and parental discipline

Deprivation of liberty is a charge that can arise if a person is confined or detained against their will. A parent or school teacher can confine or detain a child if they are correcting the child's behaviour, but only if it is reasonable in all the circumstances [CCA s.196].

Social media and electronic communications

It is of increasing relevance in today's society whether or not persons can be charged for acts or publications on social media (like trolling, or 'revenge porn') or harassing, intimidating or threatening other people through electronic communication. There a number of offences and crimes in the Northern Territory that may be charged against people who engage in such conduct, although the Criminal Code Act and Summary Offences Act have not been specifically reviewed to introduce specific crimes for such conduct.

Criminal defamation is a crime [CCA, Part VI, Division 7]. This crime is not commonly charged, however, may become more common with the increase in social media use, and electronic publications.

It is an offence to unreasonably cause substantial annoyance to another person, and to unreasonably disrupt the privacy of another person [SOA s.47], which could capture a person's actions on social media, or through other electronic medial formats.

Threatening, harassing or intimidating conduct on social media or electronic communications may form the basis of a stalking charge (see above).

If it occurs in the context of a domestic or family relationship, such conduct may lead to a domestic violence order being made, or a breach of any existing domestic violence orders. The Domestic and Family Violence Act has been updated to broaden definitions of domestic and family violence to include such conduct (see other information on Domestic Violence).