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September 2014

Legislation

• Road Transport Amendment (Licence Disqualification on Conviction) Act 2013
• Crimes Amendment (Provocation) Act 2014
• Crimes Amendment (Female Genital Mutilation) Act 2014

LEGISLATION

Updated 10 September 2014

Road Transport Amendment (Licence Disqualification on Conviction) Act 2013

Amendment: Section 206A of the Road Transport Act 2013 is inserted.

As of 1 August 2014, persons convicted of certain serious driving offences and sentenced to a term of imprisonment will have their specified period of disqualification extended for the term of imprisonment. Effectively, the disqualification period will commence from the day the person is released from detention.

The term of imprisonment does not include the parole period nor suspended sentences or sentences served by way of community or home detention.

Comment: This legislation is set to fix an anomaly in the manner in which disqualifications have worked in the past. Some offenders were being imprisoned effectively for most if not all of their disqualification period thereby nullifying the effect of that order. Now the disqualification will commence on their release to parole.

Crimes Amendment (Provocation) Act 2014

Amendment: Section 23 of the Crimes Act 1900 is amended.

The partial defence of provocation has been restricted to "extreme provocation". This partial defence is only available if:

1. the accused acted in response to conduct of the deceased towards or affecting the accused; and
2. the conduct of the deceased is a serious indictable offence (punishable by 5 years imprisonment or more); and
3. the deceased's conduct caused the accused to lose self-control; and
4. the deceased's conduct could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

It is now an objective test for the loss of self-control by an "ordinary person", as opposed to the previous subjective test of "an ordinary person in the position of the accused".

Conduct that is a non-violent sexual advance to the accused or the accused incited the conduct in order to provide an excuse to use violence against the deceased is excluded from being provocative: s 23(3).

The legislation prevents evidence of self-induced intoxication from being taken into account in determining whether the accused acted in response to extreme provocation: s 23(5).

The onus of proof rests on the prosecution beyond reasonable doubt that the act causing death was not in response to extreme provocation: s 23(7).

Comment: This legislative change is substantial. Provocation as a partial defence to a charge of murder has existed in the common law and later in legislation since at least the 17th century. Provocation as a partial defence was provided for in NSW in legislation from 1883. It was later enacted in s 23 of the Crimes Act 1900. The legislation has undergone a range of changes over the years. The "defence" has also been the subject of Law Reform Commission reports (see Report 83 of 1997) which recommended the retention of the partial defence in the form immediately preceding this amendment. This amendment follows a report prepared by the Legislative Council's select committee on the Partial Defence of Provocation. It does not appear that the Law Reform Commission was asked to re-consider the issue.

As a result of the change in the legislation, it will be necessary to substantially rewrite the commentary to s 23 of the Crimes Act 1900 in the Criminal Law NSW service. That exercise is being undertaken now.

Crimes Amendment (Female Genital Mutilation) Act 2014

Amendment: Section 45 of the Crimes Act 1900 is amended. Section 45A of the Crimes Act 1900 is inserted.

The maximum penalty for the offence of female genital mutilation is increased to 21 years imprisonment (previously 7 years imprisonment).

A new offence is created for the taking or arranging for a person to be taken from NSW for the purpose of female genital mutilation. The maximum penalty is also 21 years imprisonment.

Some content sourced from FirstPoint powered by Australian Digest.

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