The recent enactment of the Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Act 2023 brings significant changes to the legal landscape, introducing a new offence under section 52D of the Criminal Code. Additionally, the legislation creates a circumstance of aggravation to existing prescribed charges, which increases the maximum penalty and the jurisdiction that the matters can be resolved.
Understanding the Hate Crime Circumstance of Aggravation:
The most notable change introduced by the amendment is the creation of a “circumstance of aggravation” associated with existing prescribed charges. This circumstance of aggravation carries a range of implications for legal practitioners, including:
- Increased Maximum Penalties: One of the immediate consequences of this amendment is the increase in maximum penalties for affected charges. Legal professionals should be aware that these changes significantly impact sentencing considerations for their clients.
- Prohibition of Summary Disposition: The presence of a circumstance of aggravation effectively bars the summary disposition of the matter. As a result, cases under this circumstance will typically require a committal hearing with implications for case management strategies.
- Consorting Orders: Importantly, this circumstance of aggravation forms a legitimate basis for seeking consorting orders. Legal practitioners should understand the intricacies of consorting order applications in light of the new legislation and its potential impact on their clients.
Prescribed charges
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- Section 69 – Going armed so as to cause fear.
- Section 75 – Threatening violence.
- Section 207 – Disturbing religious worship. Section 335 – Common Assault.
- Section 339 – Assault occasioning Bodily Harm.
- Section359 – Threats.
- Section 359E- Unlawful Stalking, intimidation, harassment or abuse. Section 469 – Wilful Damage.
Increase to Maximum Penalties
When announcing the legislation Attorney General, Shannon Fentiman said “These reforms send a clear message that criminals who commit serious crimes motivated by serious hate and prejudice will face tougher penalties.
The maximum penalty is increased in relation to both the prescribed offences under the Criminal Code and the Summary Offences Act.
Criminal Code
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- Going armed so as to cause fear.- liable to imprisonment for 3 years.
- Threatening violence- liable to imprisonment for 3 years.
- Disturbing religious worship- liable to imprisonment for 6 months.
- Common Assault- liable to imprisonment for 4 years.
- Assault occasioning Bodily Harm- liable to imprisonment for 10 years.
- Threats – liable to imprisonment for 7 years.
- Unlawful Stalking, intimidation, harassment or abuse – liable to imprisonment for 7 years
- Willful Damage – liable to imprisonment for 7 years
Summary Offences Act 2005
The maximum penalty is increased for the following offences against the Summary Offences Act 2005.
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- Public Nuisance 25 penalty units or 6 Months imprisonment
- Trespass 40 penalty units or 12 Months imprisonment
Summary Election
Section 552A – Charges of indictable offences that must be heard and decided summarily on prosecution election has also been amended such that 552A(1)(b) now prohibits the prosecution from electing to deal with common assault allegations in the Magistrates Court where the circumstance of aggravation stated under section 335(2)(a) is alleged.
Section 552BA – Charges of indictable offences that must be heard and decided summarily has also been amended such that 552BA(4) now defines a relevant offence as:
(aa) an offence against section 335 alleged to have been committed with the circumstance of aggravation stated in section 335(2)(a); or
Police Powers and Responsibilities Act 2000
This Act is amended so that where police believe the person has committed, or is committing an offence against section 52D they may either:
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- Search the person without warrant; or
- Search the vehicle without warrant;
Consorting
The offence is included in the matters to consider when issuing a consorting notice.