Crimes Act 1900

Crimes Act 1900 As at 6 July 2012 Does not include amendments by: Sec 310L of this Act (sec 310L repeals Part 6B on 13.9.2013) See also: Crimes Amendment (Possession or Discharge of Firearms in Commission of Offences) Bill 2012 [Non-government Bill: Hon Robert Borsak, MLC] Reprint history (since 1972): Reprint No 1 16 July 1975 Reprint No 2 20 October 1976 Reprint No 3 4 August 1978 Reprint No 4 11 February 1981 Reprint No 5 23 September 1982 Reprint No 6 3 March 1986 Reprint No 7 1 December 1987 Reprint No 8 1 March 1990 Reprint No 9 25 March 1991 Reprint No 10 1 June 1992 Reprint No 11 30 March 1993 Reprint No 12 11 February 1994 Reprint No 13 2 March 1995 Reprint No 14 7 March 1996 Reprint No 15 8 May 1997 Reprint No 16 19 May 1998 Reprint No 17 1 June 1999 Reprint No 18 11 May 2000 Reprint No 19 23 April 2002 Reprint No 20 30 March 2004 Reprint No 21 4 April 2006 Reprint No 22 9 September 2008 Long Title An Act to consolidate the Statutes relating to Criminal Law. Part 1 – Preliminary and interpretation 1 Name of Act This Act is the Crimes Act 1900. 2 (Repealed) 3 Application of certain provisions of Act The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried. 3A, 3B (Repealed) 4 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires:”Aircraft” includes any machine that can derive support in the atmosphere from the reactions of the air.”Armed”, in relation to a weapon, or instrument, or an offensive weapon, or instrument, that is a dangerous weapon, includes bearing or having the immediate physical possession of the weapon, or instrument.”Authorised officer” has the same meaning as it has in the Criminal Procedure Act 1986.”Banker” includes every director or manager of any banking company, whether incorporated or not, or of any branch thereof, and every person carrying on the business of a banker.”Cattle” includes any horse, mare, gelding, colt, foal, filly, ass, mule, bull, cow, ox, steer, heifer, calf, ram, ewe, sheep, lamb, pig, goat, deer, alpaca, llama, vicuna, camel, or dromedary, and every hybrid or cross thereof.”Court” and “Judge” respectively shall be equally taken to mean the Court in which or the Judge before whom the trial or proceeding is had in respect of which either word is used.”Dangerous weapon” means: (a) a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or (c) a spear gun. “Document of title to goods” includes every bill of lading, India warrant, dock warrant, warehousekeeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and every bought and sold note or document used in the ordinary course of business as proof of the possession or control of goods, or purporting to authorise by indorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to.”Document of title to land” includes every deed, certificate of title, map, paper, or parchment, written or printed, or partly written and partly printed, being or containing evidence of the title, or part of the title, to any real estate or to any interest in or out of real estate.”Dwelling-house” includes: (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which any person resides, and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house. “Governor” means, except in respect of the exercise of the pardoning power, the Governor with the advice of the Executive Council.”Grievous bodily harm” includes: (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). “Indictment” includes any information presented or filed as provided by law for the prosecution of offences.”Intoxicating substance” includes alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding.”Judge” –see “Court”.”Loaded arms” means any gun, pistol, or other arms, loaded in the barrel or chamber or magazine with gunpowder or other explosive substance, and with ball, shot, slug, or other destructive material, although the attempt to discharge may fail from want of proper priming, or from any other cause; and every gun, pistol, or other arms, unlawfully presented at any person, shall be deemed to be loaded unless the contrary is shown.”Member of the crew” in relation to an aircraft means a person having functions or duties on board the aircraft.”Minor indictable offence” means an indictable offence that is not a serious indictable offence.”Money” includes all coined money, whether current within New South Wales or not, and all bank notes or instruments ordinarily so called, if current as such, and payable to the bearer.”Night” means the period of time commencing at nine of the clock in the evening of each day and concluding at six of the clock in the morning of the next succeeding day.”Offensive weapon or instrument” means: (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. “Officer”, in relation to a body corporate or public company, includes a person who has been appointed, or acts, as an auditor of the body corporate or public company.”Person”, “Master”, and “Employer” severally include any society, company, or corporation.”Place of Divine worship” includes any building or structure ordinarily used for Divine worship.”Property” includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.”Property belonging to a vessel” includes every portion of its cargo, and property belonging to any of the officers, crew, or passengers thereof.”Public disorder” means a riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations.”Railway” includes a tramway, and also includes all stations, buildings, structures and equipment belonging to or associated with a railway or tramway.”Serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.”Trustee” means a trustee on some express trust howsoever created, and includes the heir or personal representative of such trustee, and every other person upon whom the duty of such trust shall have devolved, and also any official manager, assignee, liquidator, or other like officer, acting under any Act relating to joint stock companies or to bankruptcy or insolvency and also an executor or administrator.”Valuable security” includes every order or other security whatsoever entitling or evidencing the title of any person to any share or interest in any public stock or fund, whether of any part of the British dominions or of any Foreign State, or in any fund of any body corporate, company, or society, whether within or without the British dominions, or to any deposit in any bank; and every debenture, deed, bond, bill, note, cheque, warrant, order, or security whatsoever for money, or for payment of money, whether current in any part of the British dominions or in any Foreign State, and every document of title to land or goods, as herein defined. (2) A dwelling-house does not cease to be a dwelling-house by reason only of being temporarily unoccupied. (3) (Repealed) (4) In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to an offence mentioned in a specified provision of this Act that has been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal. (5), (6) (Repealed) (7) A reference in any offence under this Act to causing any poison, intoxicating substance or other destructive or noxious thing to be administered to or taken by any person includes a reference to causing any person to inhale, take or be exposed to the poison, intoxicating substance or thing by its release into the person’s environment. (8) Notes included in this Act do not form part of this Act. 4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. 4B Dishonesty (1) In this Act:”dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. (2) In a prosecution for an offence, dishonesty is a matter for the trier of fact. 5, 6 (Repealed) 7 “Possession” when criminal Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who: (a) has any such property in his or her custody, or (b) knowingly has any such property in the custody of another person, or (c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another. 8 “Public place” etc Where, by this or any other Act, or by any rule, regulation, ordinance or by-law, duly made under or by virtue of the provisions of any Act, any offence, conduct, or language, in a public place, or open and public place, or place of public resort, is made punishable, or a person guilty thereof is made liable to apprehension, the place shall be deemed public for the purposes of the enactment or taken to be otherwise within the meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise. 9, 10 (Repealed) Part 1A – Geographical jurisdiction 10A Application and effect of Part (1) This Part applies to all offences. (2) This Part extends, beyond the territorial limits of the State, the application of a law of the State that creates an offence if there is the nexus required by this Part between the State and the offence. (3) If the law that creates an offence makes provision with respect to any geographical consideration concerning the offence, that provision prevails over any inconsistent provision of this Part. (4) This Part is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. 10B Interpretation (1) For the purposes of this Part, the necessary geographical nexus is the geographical nexus required by section 10C. (2) For the purposes of this Part, the place in which an offence is committed is the place in which the physical elements of the offence occur. (3) For the purposes of this Part, the place in which an offence has an effect includes: (a) any place whose peace, order or good government is threatened by the offence, and (b) any place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out. (4) A reference in this Part to the State includes a reference to the coastal waters of the State in which the criminal law of the State applies (including in any part of the adjacent area of the State in which the substantive criminal law of the State applies by force of the law of the State or of the Commonwealth in accordance with the Crimes at Sea Act 1998). 10C Extension of offences if there is a geographical nexus (1) If: (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if: (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State. 10D Provisions relating to double criminality (1) This Part applies to an offence that is committed partly in the State and partly in another place outside the State, irrespective of whether it is also an offence in that other place. (2) This Part applies to an offence that is committed wholly in a place outside the State only if: (a) it is also an offence in that place, or (b) it is not also an offence in that place, but the trier of fact is satisfied that the offence constitutes such a threat to the peace, order or good government of the State that the offence warrants criminal punishment in the State. 10E Procedural and other provisions (1) The existence of the necessary geographical nexus for an offence is to be presumed and the presumption is conclusive unless rebutted under subsection (2). (2) If a person charged with an offence disputes the existence of the necessary geographical nexus, the court is to proceed with the trial of the offence in the usual way. If, at the conclusion of the trial, the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus does not exist, it must (subject to subsection (3)) make or return a finding to that effect and the charge is to be dismissed. (3) If the trier of fact would, disregarding any geographical considerations, find the person not guilty of the offence, it must make or return a finding of not guilty. The trier of fact must make or return a finding of not guilty on the grounds of mental illness in any such case if they were the only grounds on which the trier of fact would have found the person not guilty of the offence. (4) This section also applies to any alternative verdict available by law to the trier of fact in respect of another offence with which the person was not charged. A finding of guilt may be made or returned in any such case, unless the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus for that other offence does not exist. (5) The issue of whether the necessary geographical nexus exists must, if raised before the trial, be reserved for consideration at the trial. (6) A power or authority exercisable on reasonable suspicion or belief that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds or believes that the elements necessary to constitute the offence exist (whether or not the person suspects or believes or has any ground to suspect or believe that the necessary geographical nexus with the State exists). 10F Special provisions with respect to geographical jurisdiction (1) This section applies for the purposes of, but without limiting, this Part. (2) The necessary geographical nexus exists between the State and any of the following offences if the offence is committed by a public official (within the meaning of the Independent Commission Against Corruption Act 1988) and involves public money of the State or property held by the public official for or on behalf of the State: (a) larceny or any offence that includes larceny, (b) fraud or any other offence under Part 4AA. Part 2 – Offences against the Sovereign 11 Provisions of 36 Geo III, c 7, and 57 Geo III, c 6, repealed except as to offences against the person of the Sovereign The provisions of the Act of the Parliament of Great Britain, thirty-sixth George the Third chapter seven, made perpetual by the Act of the Parliament of Great Britain and Ireland fifty-seventh George the Third chapter six, and all the provisions of the last mentioned Act in relation thereto, save such of the same respectively as relate to the compassing, imagining, inventing, devising, or intending death or destruction, or any bodily harm tending to death or destruction, maim, or wounding, imprisonment, or restraint of the person of the heirs and successors of His said Majesty King George the Third, and the expressing, uttering, or declaring of such compassings, imaginations, inventions, devices, or intentions, or any of them, shall be and the same are hereby repealed. 12 Compassing etc deposition of the Sovereign–overawing Parliament etc Whosoever, within New South Wales or without, compasses, imagines, invents, devises, or intends to deprive or depose Our Most Gracious Lady the Queen, her heirs or successors, from the style, honour, or Royal name of the Imperial Crown of the United Kingdom, or of any other of Her Majesty’s dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, or any other of Her Majesty’s dominions, in order, by force or constraint, to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom, or the Parliament of New South Wales, or to move or stir any foreigner or stranger with force to invade the United Kingdom, or any other of Her Majesty’s dominions, or countries under the obeisance of Her Majesty, her heirs or successors, and expresses, utters, or declares such compassings, imaginations, inventions, devices, or intentions, or any of them, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be liable to imprisonment for 25 years. 13-15 (Repealed) 16 Nothing herein to affect 25 Ed III, c 2 Nothing contained in this Part shall lessen the force of, or in any matter affect, anything enacted by the Statute passed in the twenty-fifth year of King Edward the Third “A declaration which offences shall be adjudged Treason”. 16A (Repealed) Part 3 – Offences against the person Division 1 – Homicide 17 (Repealed) 17A Date of death (1) The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated. (2) This section does not apply in respect of an injury received before the commencement of this section. 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. 19 (Repealed) 19A Punishment for murder (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy. 19B Mandatory life sentences for murder of police officers (1) A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed: (a) while the police officer was executing his or her duty, or (b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty, and if the person convicted of the murder: (c) knew or ought reasonably to have known that the person killed was a police officer, and (d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers. (2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person’s natural life. (3) This section does not apply to a person convicted of murder: (a) if the person was under the age of 18 years at the time the murder was committed, or (b) if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment). (4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. (5) Nothing in this section affects the obligation of a court to impose a sentence of imprisonment for life on a person convicted of murder in accordance with section 61 of the Crimes (Sentencing Procedure) Act 1999. (6) Nothing in this section affects the prerogative of mercy. (7) This section applies to offences committed after the commencement of this section. 20 Child murder–when child deemed born alive On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not. 21 Child murder by mother–verdict of contributing to death etc Whosoever, being a woman delivered of a child is indicted for its murder, shall, if the jury acquit her of the murder, and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body, be liable to imprisonment for ten years. 22 Trial for child murder–verdict of concealment of birth Where, on the trial of a person for the murder or manslaughter of a child, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 85, they may acquit the person of the offence charged and find the person guilty of an offence under the said section, and the person shall be liable to punishment accordingly. 22A Infanticide (1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child. (3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth. 23 Trial for murder–provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder. 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section:”underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 24 Manslaughter–punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal. 25 (Repealed) Division 2 – Conspiracy to murder 26 Conspiring to commit murder Whosoever: conspires and agrees to murder any person, whether a subject of Her Majesty or not, and whether within the Queen’s dominions or not, or solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder, shall be liable to imprisonment for 25 years. Division 3 – Attempts to murder 27 Acts done to the person with intent to murder Whosoever: administers to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 28 Acts done to property with intent to murder Whosoever: sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or casts away or destroys any vessel, or by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or places, or throws, any matter or thing upon or across a railway, or removes, or displaces any sleeper, or other thing belonging to a railway, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 29 Certain other attempts to murder Whosoever: attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years. 30 Attempts to murder by other means Whosoever, by any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to imprisonment for 25 years. Division 4 – Documents containing threats 31 Documents containing threats (1) A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years. (2) It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances). Division 5 – Suicide 31A Suicide and attempt to commit suicide The rule of law that it is a crime for a person to commit, or to attempt to commit, suicide is abrogated. 31B Survivor of suicide pact (1) The survivor of a suicide pact shall not be guilty of murder or manslaughter but may be guilty of an offence under section 31C. (2) In this section, “suicide pact” means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his or her own life, but nothing done by a person who enters into a suicide pact shall be treated as being done by the person in pursuance of the pact unless it is done while the person has the settled intention of dying in pursuance of the pact. (3) The onus of proving the existence of a suicide pact shall lie with the accused person on the balance of probabilities. 31C Aiding etc suicide (1) A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years. (2) Where: (a) a person incites or counsels another person to commit suicide, and (b) that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel, the firstmentioned person shall be liable to imprisonment for 5 years. Division 6 – Acts causing danger to life or bodily harm 32 Impeding endeavours to escape shipwreck Whosoever: intentionally or recklessly prevents or impedes any person on board of, or having quitted, any ship or vessel in distress, or wrecked, stranded, or cast on shore, in his or her endeavour to save his or her life, or intentionally or recklessly prevents or impedes any person in his or her endeavour to save the life of such first-mentioned person, shall be liable to imprisonment for 25 years. 32A-32C (Repealed) 33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly. 33A Discharging firearm etc with intent (1) Intent to cause grievous bodily harm A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to cause grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest etc A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 33B Use or possession of weapon to resist arrest etc (1) Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 15 years. 34 (Repealed) 35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm–in company A person who, in the company of another person or persons: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) Reckless wounding–in company A person who, in the company of another person or persons: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) Reckless wounding A person who: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly. 35A Causing dog to inflict grievous bodily harm or actual bodily harm (1) Cause dog to inflict grievous bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict grievous bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) Cause dog to inflict actual bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict actual bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (3) Alternative finding If, on the trial of a person for an offence under subsection (1), it appears that grievous bodily harm was not inflicted on the other person but that actual bodily harm was inflicted, the person may be found not guilty of the offence charged but guilty of an offence under subsection (2) and be liable to punishment accordingly. (4) Doing an act includes omitting to do the act In this section, a reference to the doing of an act includes a reference to omitting to do the act. 36 (Repealed) 37 Attempts to choke etc (garrotting) Whosoever: by any means attempts to choke suffocate or strangle any person, or by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance, with intent in any such case to enable himself or herself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence, shall be liable to imprisonment for 25 years. 38 Using intoxicating substance to commit an indictable offence A person who: (a) administers an intoxicating substance to another person, or (b) causes another person to take an intoxicating substance, with intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 38A Spiking drink or food (1) In this section:”harm” includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances.”impair” includes further impair. (2) A person: (a) who causes another person to be given or to consume drink or food: (i) containing an intoxicating substance that the other person is not aware it contains, or (ii) containing more of an intoxicating substance than the other person would reasonably expect it to contain, and (b) who intends a person to be harmed by the consumption of the drink or food, is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 100 penalty units, or both. (3) For the purposes of this section, giving a person drink or food includes preparing the drink or food for the person or making it available for consumption by the person. (4) A person does not commit an offence against this section if the person has reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food. (5) A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit an offence against this section. (6) An offence against this section is a summary offence. 39 Using poison etc to endanger life or inflict grievous bodily harm (1) A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the poison, intoxicating substance or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and (c) the person intends to injure, or is reckless about injuring, the other person. Maximum penalty: Imprisonment for 10 years. (2) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 41 or 41A, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 41 or 41A. The person is liable to punishment accordingly. 40 (Repealed) 41 Using poison etc to injure or to cause distress or pain A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the person intends to injure, or to cause distress or pain to, the other person. Maximum penalty: Imprisonment for 5 years. 41A Poisoning etc of water supply A person is guilty of an offence if: (a) the person introduces any poison or other destructive or noxious thing into a supply of water, and (b) the person intends to injure any person or persons. Maximum penalty: Imprisonment for 5 years. 42 Injuries to child at time of birth Whosoever, during or after the delivery of a child, intentionally or recklessly inflicts on such child, whether then wholly born or not, any grievous bodily harm, shall be liable to imprisonment for fourteen years. 43 Abandoning or exposing a child under 7 years A person who, without reasonable excuse, intentionally abandons or exposes a child under 7 years of age is guilty of an offence if it causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. 43A Failure of persons with parental responsibility to care for child (1) In this section:”child” means a child under 16 years of age.”parental responsibility” means the duties, powers, responsibilities and authority in respect of a child that, by law, parents have in relation to their children. (2) A person: (a) who has parental responsibility for a child, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life, is guilty of an offence if the failure causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. 44 Failure of persons to provide necessities of life (1) A person: (a) who is under a legal duty to provide another person with the necessities of life, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life, is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person. Maximum penalty: Imprisonment for 5 years. (2) A person cannot be found guilty of both an offence against section 43A and an offence against this section in respect of the same act or omission. 45 Prohibition of female genital mutilation (1) A person who: (a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or (b) aids, abets, counsels or procures a person to perform any of those acts on another person, is liable to imprisonment for 7 years. (2) An offence is committed against this section even if one or more of the acts constituting the offence occurred outside New South Wales if the person mutilated by or because of the acts is ordinarily resident in the State. (3) It is not an offence against this section to perform a surgical operation if that operation: (a) is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or (b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or (c) is a sexual reassignment procedure and is performed by a medical practitioner. (4) In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account. (5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts. (6) This section applies only to acts occurring after the commencement of the section. (7) In this section:”authorised professional” means: (a) a registered midwife, or (b) a midwifery student, or (c) in relation to an operation performed in a place outside Australia–a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or (d) a medical student. “medical practitioner”, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.”medical student” means: (a) a person registered as a student in the medical profession under the Health Practitioner Regulation National Law, or (b) in relation to an operation performed in a place outside Australia–a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place. “midwifery student” means: (a) a person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, or (b) in relation to an operation performed in a place outside Australia–a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place. “sexual reassignment procedure” means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person. 46 Causing bodily injury by gunpowder etc Whosoever intentionally or recklessly by the explosion of gunpowder or other substance, or the use of any corrosive fluid, or destructive matter, burns maims disfigures disables, or does grievous bodily harm to, any person, shall be liable to imprisonment for 25 years. 47 Using etc explosive substance or corrosive fluid etc Whosoever: causes any gunpowder or other explosive substance to explode, or sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance, with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person, shall, whether bodily injury is effected or not, be liable to imprisonment for 25 years. 48 Causing explosives to be placed in or near building, conveyance or public place (1) A person who causes an explosive to be placed in or near: (a) a building, or (b) a vehicle, vessel, train or other conveyance, or (c) a public place, with the intention of causing bodily harm to any person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) A person commits an offence under this section whether or not: (a) any explosion occurs, or (b) any bodily harm is caused. 49 Setting trap etc (1) Any person who: (a) places or sets, or causes to be placed or set, any trap, device or thing (whether its nature be electronic, electric, mechanical, chemical or otherwise) capable of destroying human life or inflicting grievous bodily harm on any person, or (b) knowingly permits any such trap, device or thing to continue to be placed or set, with intent to inflict grievous bodily harm shall be liable to imprisonment for five years. (2) Nothing in subsection (1) shall extend to any gin or trap, placed with the intention of destroying vermin, or to any trap, device or thing placed in a dwelling-house for the protection thereof. 49A Throwing rocks and other objects at vehicles and vessels (1) A person is guilty of an offence if: (a) the person intentionally throws an object at, or drops an object on or towards, a vehicle or vessel that is on any road, railway or navigable waters, and (b) there is a person in the vehicle or vessel, and (c) the conduct risks the safety of any person. Maximum penalty: Imprisonment for 5 years. (2) This section extends to a vehicle or vessel that is stationary at the time that the object is thrown or dropped. (3) In the prosecution of an offence under this section, it is not necessary to prove: (a) that the accused was aware that his or her conduct risked the safety of any person, or (b) that the object made contact with the vehicle or vessel. (4) In this section:”road” means a road or road related area within the meaning of the Road Transport (General) Act 2005.”throw” includes propel.”vehicle” includes: (a) a motor vehicle, and (b) a train or tram, and (c) a bicycle, and (d) a vehicle drawn by an animal or an animal ridden by a person. 50, 51 (Repealed) 51A Predatory driving (1) The driver of a vehicle who, while in pursuit of or travelling near another vehicle: (a) engages in a course of conduct that causes or threatens an impact involving the other vehicle, and (b) intends by that course of conduct to cause a person in the other vehicle actual bodily harm, is guilty of an offence and liable to imprisonment for 5 years. (2) This section does not take away the liability of any person to be prosecuted for or found guilty of an offence under this Act or of any other offence, or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under this section cannot be prosecuted for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of any other offence under this Act cannot be prosecuted for an offence under this section on the same, or substantially the same, facts. (3) In this section:”impact” involving a vehicle includes: (a) an impact with any other vehicle or with a person or object, or (b) the vehicle overturning or leaving a road. “vehicle” has the same meaning it has in section 52A. 51B Police pursuits (1) The driver of a vehicle: (a) who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and (b) who does not stop the vehicle, and (c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others, is guilty of an offence. Maximum penalty: (a) in the case of a first offence–imprisonment for 3 years, or (b) in the case of an offence on a second or subsequent occasion–imprisonment for 5 years. (2) In this section, “vehicle” has the same meaning as it has in section 52A. 52 (Repealed) 52A Dangerous driving: substantive matters (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vehicle is involved in impact–generally For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise), (h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise). (6) When vehicle is involved in causing other impacts For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if: (a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and (b) the prosecution proves that the vehicle caused the impact. (7) Circumstances of aggravation In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vehicle was driven, or (c) to the manner in which the vehicle was driven. (9) Definitions In this section:”drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.”object” includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree.”prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood.”road” means: (a) a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act), or (b) any other place. “vehicle” means: (a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or (b) a horse-drawn vehicle, whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway. 52AA Dangerous driving: procedural matters (1) Presumption as to intoxication For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication–alcohol For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood analysis carried out in accordance with Division 4 or 4A of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol. (3A) Evidence of intoxication–drugs For the purposes of section 52A, evidence may be given of the concentration of a drug (other than alcohol) present in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood or urine analysis carried out in accordance with Division 4 or 4A of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. (3B) Time of intoxication A concentration of a drug (other than alcohol) determined by the means referred to in subsection (3A) is taken to be the concentration of the drug in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm: (a) if the blood or urine sample that was analysed was taken within 4 hours after the impact, and (b) unless the accused proves that there was no such drug in the accused’s blood or urine at the time of the impact. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52A (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52A (1) or (3), it may find that the accused is guilty of the offence under section 52A (1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts. (7) Definitions In this section:”prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood. 52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm (1) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 10 years. (2) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning grievous bodily harm to another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 7 years. (3) The provisions of section 52A (5) and (6) (which prescribe circumstances in which a vehicle is taken to be involved in an impact) apply for the purposes of this section in the same way as they apply for the purposes of section 52A. (4) In this section, “vehicle” has the same meaning as it has in section 52A. 52B Dangerous navigation: substantive matters (1) Dangerous navigation occasioning death A person is guilty of the offence of dangerous navigation occasioning death if the vessel navigated by the person is involved in an impact occasioning the death of another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous navigation occasioning death A person is guilty of the offence of aggravated dangerous navigation occasioning death if the person commits the offence of dangerous navigation occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous navigation causing grievous bodily harm A person is guilty of the offence of dangerous navigation causing grievous bodily harm if the vessel navigated by the person is involved in an impact occasioning grievous bodily harm to another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous navigation occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous navigation occasioning grievous bodily harm if the person commits the offence of dangerous navigation occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vessel is involved in impact–generally For the purposes of this section, the circumstances in which a vessel is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vessel overturning or running aground while the person is being conveyed in or on the vessel (whether as a passenger or otherwise), (b) an impact between any object and the vessel while the person is being conveyed in or on that vessel (whether as a passenger or otherwise), (c) an impact between the person and the vessel, (d) the impact of the vessel with another vessel or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vessel, (f) an impact with anything that was in motion through falling from the vessel, (g) the person falling from the vessel, or being thrown or ejected from the vessel, while being conveyed in or on the vessel (whether as a passenger or otherwise), (h) an impact between any object (including the water and the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vessel, while the person is being conveyed in or on the vessel (whether as a passenger or otherwise). (6) When vessel is involved in causing other impacts For the purposes of this section, a vessel is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if the death or harm is occasioned through the vessel causing an impact between other vessels or between another vessel and any object or person or causing another vessel to overturn or run aground. (7) Circumstances of aggravation In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was navigating the vessel at a speed that exceeds the speed limit (if any) applicable to the person navigating the vessel, or to the navigable waters, on which the vessel was navigated at the time of the impact, or (c) the accused was navigating the vessel in an attempt to escape pursuit by a police officer, or (d) the accused’s ability to navigate was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vessel was navigated, or (c) to the manner in which the vessel was navigated. (9) Definitions In this section:”drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.”object” includes a pier, wharf, jetty, pontoon, buoy, breakwater, bridge, support, mooring post or platform, navigation aid, retaining wall, marina, boatshed, slipway or swimming enclosure.”prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 52BA Dangerous navigation: procedural matters (1) Presumption as to intoxication For the purposes of section 52B, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication For the purposes of section 52B, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Schedule 1 to the Marine Safety Act 1998. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at that time was less than the prescribed concentration of alcohol. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 54 the jury is satisfied that the person is guilty of an offence under section 52B, it may find the accused guilty of the offence under section 52B, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52B (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52B (1) or (3), it may find that the accused is guilty of the offence under section 52B (1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52B cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52B on the same, or substantially the same, facts. (7) Definition In this section:”prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. 53 Injuries by furious driving etc Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years. 54 Causing grievous bodily harm Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years. Division 7 – Possessing or making explosive etc with intent to injure the person 55 Possessing or making explosives or other things with intent to injure Whosoever knowingly has in his or her possession, or makes, or manufactures, any gunpowder, explosive substance, or dangerous or noxious thing, or any machine, engine, instrument, or thing: (a) with intent by means thereof to injure, or otherwise commit a serious indictable offence against the person of any one, or (b) for the purpose of enabling another person to injure, or otherwise commit a serious indictable offence against the person of any one, shall be liable to imprisonment for 10 years. Division 8 – Assaults 56 Obstructing member of the clergy in discharge of his or her duties Whosoever: by threats or force prevents, or endeavours to prevent, any member of the clergy, or other person duly authorised in that behalf, from officiating in a place of divine worship, or from the performance of his or her duty in the lawful burial of the dead in a burial-place, or strikes, or offers any violence to, any member of the clergy, or minister engaged in, or to the knowledge of the offender about to engage in, any of the duties aforesaid, or going to perform the same, shall be liable to imprisonment for two years. 57 Assault on persons preserving wreck Whosoever wounds, strikes, or assaults, any person while in the execution of his or her duty concerning the preservation of a vessel in distress, or any vessel or effects, stranded, or cast on shore, or lying under water, with intent to obstruct him or her, or thereby in fact obstructing him or her in the execution of such duty, shall be liable to imprisonment for seven years. 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. 59A Assault during public disorder (1) A person who assaults any person during a large-scale public disorder, although not occasioning actual bodily harm, is liable to imprisonment for 5 years. (2) A person who assaults any person during a large-scale public disorder, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3), (4) (Repealed) Division 8A – Assaults and other actions against police and other law enforcement officers 60AA Meaning of “law enforcement officer” In this Division: “law enforcement officer” means: (a) a police officer, or (b) the Commissioner for the Independent Commission Against Corruption or an Assistant Commissioner for that Commission, or (c) an officer of the Independent Commission Against Corruption, within the meaning of the Independent Commission Against Corruption Act 1988, who performs investigation functions, or (d) the Commissioner for the Police Integrity Commission or an Assistant Commissioner for that Commission, or (e) an officer of the Police Integrity Commission, within the meaning of the Police Integrity Commission Act 1996, who performs investigation or confiscation functions, or (f) the Commissioner for the New South Wales Crime Commission or an Assistant Commissioner for that Commission, or (g) a member of staff of the New South Wales Crime Commission, within the meaning of the New South Wales Crime Commission Act 1985, who performs investigation or confiscation functions, or (h) the Commissioner of Corrective Services, or (i) governors of correctional centres, correctional officers and probation and parole officers, within the meaning of the Crimes (Administration of Sentences) Act 1999, or (j) an officer of the Department of Juvenile Justice who works with children who have, or are alleged to have, committed offences and who is employed at or works from a community centre or children’s detention centre, or (k) an officer of the Department of Juvenile Justice who is involved in the conduct of youth justice conferences, or (l) a Crown Prosecutor or an Acting Crown Prosecutor, or (m) an Australian legal practitioner who is employed as a member of staff of the Director of Public Prosecutions, or (n) a sheriff’s officer. 60 Assault and other actions against police officers (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years. (2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (2A) A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (3A) A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or (b) because the officer is a police officer. 60A Assault and other actions against law enforcement officers (other than police officers) (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (2) A person who assaults a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. 60B Actions against third parties connected with law enforcement officers (1) A person who assaults, stalks, harasses or intimidates any person with whom a law enforcement officer has a domestic relationship, with the intention of causing the law enforcement officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (2) A person who obtains personal information about a person with whom a law enforcement officer has a domestic relationship, with the intention of using or permitting the use of the information to cause the officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (3) For the purposes of this section, causing a law enforcement officer to fear physical or mental harm includes causing the officer to fear physical or mental harm to another person with whom he or she has a domestic relationship. (4) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (5) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been assaulted, stalked, harassed or intimidated, or the law enforcement officer, actually feared physical or mental harm. (6) In this section, “domestic relationship” has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. 60C Obtaining of personal information about law enforcement officers A person who obtains personal information about a law enforcement officer, with the intention of using or permitting the use of the information for the purpose of assaulting, stalking, harassing, intimidating, or otherwise harming, the officer: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer, is liable to imprisonment for 5 years. Division 8B – Assaults etc at schools 60D Definitions (1) In this Division:”member of staff” of a school includes a person who performs voluntary work for the school.”school” means: (a) an infants school, primary school or secondary school (however described), and (b) a child care facility for children under school age. “school premises” includes parks and other community premises that are used by a school (but only while they are being used for the purposes of the school).”school student” includes a child attending a child care facility. (2) For the purposes of this Division, a school student or member of staff of a school is taken to be attending a school: (a) while the student or member of staff is on school premises for the purposes of school work or duty (even if not engaged in school work or duty at the time), or (b) while the student or member of staff is on school premises for the purposes of before school or after school child care, or (c) while entering or leaving school premises in connection with school work or duty or before school or after school care. 60E Assaults etc at schools (1) A person who assaults, stalks, harasses or intimidates any school student or member of staff of a school while the student or member of staff is attending a school, although no actual bodily harm is occasioned, is liable to imprisonment for 5 years. (2) A person who assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a school student or member of staff of a school while the student or member of staff is attending a school, and (b) is reckless as to causing actual bodily harm to that student or member of staff or any other person, is liable to imprisonment for 12 years. (4) A person who enters school premises with intent to commit an offence under another provision of this section is liable to imprisonment for 5 years. (5) Nothing in subsection (1) applies to any reasonable disciplinary action taken by a member of staff of a school against a school student. Division 9 – Common assaults 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Division 9A – Defence of lawful correction 61AA Defence of lawful correction (1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period. (3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable. (4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction). (5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment. (6) In this section:”child” means a person under 18 years of age.”parent” of a child means a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children.”person acting for a parent” of a child means a person: (a) who: (i) is a step-parent of the child, a de facto partner of a parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and (ii) is authorised by a parent of the child to use physical force to punish the child, or (b) who, in the case of a child who is an Aboriginal or Torres Strait Islander (within the meaning of the Children and Young Persons (Care and Protection) Act 1998), is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child. “De facto partner” is defined in section 21C of the Interpretation Act 1987. (7) This section does not apply to proceedings arising out of an application of physical force to a child if the application of that force occurred before the commencement of this section. (8) The Attorney General is to review this section to determine whether its provisions continue to be appropriate for securing the policy objectives of the section. The review is to be undertaken as soon as possible after the period of 3 years from the commencement of this section. A report on the outcome of the review is to be tabled in each House of Parliament within 6 months after the end of the period of 3 years. Division 10 – Offences in the nature of rape, offences relating to other acts of sexual assault etc 61A-61G (Repealed) 61H Definition of “sexual intercourse” and other terms (1) For the purposes of this Division, “sexual intercourse” means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). (1A) For the purposes of this Division, a person has a “cognitive impairment” if the person has: (a) an intellectual disability, or (b) a developmental disorder (including an autistic spectrum disorder), or (c) a neurological disorder, or (d) dementia, or (e) a severe mental illness, or (f) a brain injury, that results in the person requiring supervision or social habilitation in connection with daily life activities. (2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. (3) For the purposes of this Act, a person who incites another person to an act of indecency, as referred to in section 61N or 61O, is taken to commit an offence on the other person. 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. (2) Meaning of consent A person “consents” to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. 61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. (3) In this section, “building” has the same meaning as it does in Division 4 of Part 4. 61JA Aggravated sexual assault in company (1) A person: (a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and (b) who is in the company of another person or persons, and (c) who: (i) at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) Nothing in this section affects the prerogative of mercy. 61K Assault with intent to have sexual intercourse Any person who, with intent to have sexual intercourse with another person: (a) intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or (b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument, is liable to imprisonment for 20 years. 61L Indecent assault Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years. 61M Aggravated indecent assault (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. (3) In this section, “circumstances of aggravation” means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) (Repealed) (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 61N Act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. (2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months. 61O Aggravated act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years. (1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years. (2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years. (2A) A person: (a) who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and (b) who knows that the act of indecency is being filmed for the purposes of the production of child abuse material, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) For the purposes subsections (1) and (1A), “circumstances of aggravation” means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment. (4) For the purposes of subsection (2A): (a) “child abuse material” has the meaning given by Division 15A, and (b) an act of indecency is being “filmed” if one or more images (whether still or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person (whether during the filming or later). 61P Attempt to commit offence under sections 61I-61O Any person who attempts to commit an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N or 61O is liable to the penalty provided for the commission of the offence. 61Q Alternative verdicts (1) Question of aggravation If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (1A) Question of aggravation in company If on the trial of a person for an offence under section 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I or 61J, it may find the person not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Question of consent regarding alleged victim under 16 If on the trial of a person for an offence under section 61I the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66C (3) or 66C (4), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Question of consent or authority regarding alleged victim under 16 If on the trial of a person for an offence under section 61J or 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66A or 66C, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (4) Question of consent regarding incest If on the trial of a person for an offence under section 61I or 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 78A or 78B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (5) Question of consent regarding cognitive impairment If on the trial of a person for an offence under section 61I, 61J or 61JA, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66F, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (6) Question of whether offence committed for purposes of production of child abuse material If on the trial of a person for an offence under section 61O (2A) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61O (2) or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 61R (Repealed) 61S Offenders who are minors (1) For the purposes of any offence, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person. (2) Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence. 61T Offender married to victim The fact that a person is married to a person: (a) upon whom an offence under section 61I, 61J, 61JA or 61K is alleged to have been committed is no bar to the firstmentioned person being convicted of the offence, or (b) upon whom an offence under any of those sections is alleged to have been attempted is no bar to the firstmentioned person being convicted of the attempt. 61U Circumstances of certain sexual offences to be considered in passing sentence Where a person is convicted of: (a) both an offence under section 61I and an offence under section 61K, or (b) both an offence under section 61J and an offence under section 61K, or (c) both an offence under section 61JA and an offence under section 61K, whether at the same time or at different times, the Judge passing sentence on the person in respect of the two convictions or the later of the two convictions is required, if it appears that the two offences arose substantially out of the one set of circumstances, to take that fact into account in passing sentence. 62 (Repealed) 63 Common law offences of rape and attempted rape abolished (1) The common law offences of rape and attempted rape are abolished. (2) Parts 1A, 1 and 19 of Schedule 11 make provision with respect to rape and other former sexual offences. 64 (Renumbered) (Renumbered as clause 51 of Schedule 11) 65-66 (Repealed) 66A Sexual intercourse–child under 10 (1) Child under 10 Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence. Maximum penalty: imprisonment for 25 years. (2) Child under 10–aggravated offence Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence. Maximum penalty: imprisonment for life. (3) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. (4) A person sentenced to imprisonment for life for an offence under subsection (2) is to serve that sentence for the term of the person’s natural life. (5) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (6) Nothing in this section affects the prerogative of mercy. (7) If on the trial of a person charged with another offence against this Act the person is instead found guilty of an offence against this section (as provided by section 61Q), the maximum penalty that may be imposed on the person for the offence against this section is the penalty for the offence charged. 66B Attempting, or assaulting with intent, to have sexual intercourse with child under 10 Any person who attempts to have sexual intercourse with another person who is under the age of 10 years, or assaults any such person with intent to have sexual intercourse, shall be liable to imprisonment for 25 years. 66C Sexual intercourse–child between 10 and 16 (1) Child between 10 and 14 Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years. (2) Child between 10 and 14–aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years. (3) Child between 14 and 16 Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years. (4) Child between 14 and 16–aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years. (5) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. 66D Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 Any person who attempts to commit an offence under section 66C upon another person who is of or above the age of 10 years, and under the age of 16 years, or assaults any such person with intent to commit such an offence, shall be liable to the penalty provided for the commission of the offence. 66E Alternative verdicts (1) If on the trial of a person for an offence under section 66A (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D. The accused is liable to punishment accordingly. (2) If on the trial of a person for an offence under section 66A (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66A (1), it may find the accused not guilty of the offence charged but guilty of an offence under section 66A (1). The accused is liable to punishment accordingly. (3) If on the trial of a person for an offence under section 66C (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (1) or (3), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (1) or (3). The accused is liable to punishment accordingly. (4) If on the trial of a person for an offence under section 66C (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (3) or (4), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (3) or (4). The accused is liable to punishment accordingly. (5) If on the trial of a person for an offence under section 66C the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66D. The accused is liable to punishment accordingly. 66EA Persistent sexual abuse of a child (1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years. (2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion. (3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales. (4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred. (5) A charge of an offence against this section: (a) must specify with reasonable particularity the period during which the offence against this section occurred, and (b) must describe the nature of the separate offences alleged to have been committed by the accused during that period. (6) In order for the accused to be convicted of an offence against this section: (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and (b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and (c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and (d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section. (7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6). (8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10). (9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence. (10) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly. (11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions. (12) In this section:”child” means a person under the age of 18 years.”sexual offence” means any of the following: (a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A, (b) an offence of attempting to commit an offence referred to in paragraph (a), (c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b). 66EB Procuring or grooming child under 16 for unlawful sexual activity (1) Definitions In this section:”adult person” means a person who is of or over the age of 18 years.”child” means a person who is under the age of 16 years.”conduct” includes: (a) communicating in person or by telephone, the internet or other means, or (b) providing any computer image, video or publication. “unlawful sexual activity” means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State). (2) Procuring children An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 15 years, or (b) in any other case–imprisonment for 12 years. (2A) Meeting child following grooming An adult person: (a) who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and (b) who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 15 years, or (b) in any other case–imprisonment for 12 years. (2B) For the purposes of subsection (2A), a child has been “groomed for sexual purposes” by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material. (3) Grooming children An adult person: (a) who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance, and (b) who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 12 years, or (b) in any other case–imprisonment for 10 years. (4) Unlawful sexual activity need not be particularised In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity. (5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section: (a) to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and (b) to the age of the child is a reference to the age that the accused believed the person to be. (6) Charge for aggravated offence The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. (7) Defence It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child. (8) Alternative verdict If on the trial of a person charged with an offence against subsection (2) or (2A) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (3), the jury may acquit the person of the offence charged and find the person guilty of an offence against subsection (3). The person is liable to punishment accordingly. 66F Sexual offences–cognitive impairment (1) Meaning of “person responsible for care” For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person: (a) at a facility at which persons with a cognitive impairment are detained, reside or attend, or (b) at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment. The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision. (2) Sexual intercourse: person responsible for care A person: (a) who has sexual intercourse with a person who has a cognitive impairment, and (b) who is responsible for the care of that person (whether generally or at the time of the sexual intercourse), is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Sexual intercourse: taking advantage of impairment A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence. Maximum penalty: imprisonment for 8 years. (4) Attempts A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence. (5) Consent not a defence for sexual intercourse The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2)-(4). (6) Consent not a defence for indecent assault or act of indecency The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P in connection with such an offence) if: (a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or (b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment. (7) Defences It is a defence to a charge for an offence under subsection (2)-(4) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection: (a) if, at the time of the conduct constituting the offence: (i) the accused did not know the person to whom the charge relates had a cognitive impairment, or (ii) the accused was married to the person to whom the charge relates or was an established de facto partner of that person, or (b) if the act constituting the offence was carried out for any proper medical or hygienic purpose. (8) Approval of Attorney General for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General: (a) an offence under subsection (2)-(4), (b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection. 67, 68 (Repealed) 69 (Renumbered) (Renumbered as clause 52 of Schedule 11) 70 (Renumbered) (Renumbered as clause 53 of Schedule 11) 71-72A (Repealed) 73 Sexual intercourse with child between 16 and 18 under special care (1) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 16 years and under the age of 17 years, is liable to imprisonment for 8 years. (2) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. (3) For the purposes of this section, a person (“the victim”) is under the special care of another person (“the offender”) if, and only if: (a) the offender is the step-parent, guardian or foster parent of the victim, or (b) the offender is a school teacher and the victim is a pupil of the offender, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or (e) the offender is a health professional and the victim is a patient of the health professional. (4) Any person who attempts to commit an offence under subsection (1) or (2) is liable to the penalty provided for the commission of the offence. (5) A person does not commit an offence under this section if the person and the other person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other. 74-76A (Repealed) 77 Consent no defence in certain cases (1) The consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E (1A), (2) or (2A), 61M (2), 61N (1), 61O (1), (2) or (2A), 66A (1) or (2), 66B, 66C, 66D, 66EA, 66EB, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76. (2) (Repealed) 77A, 78 (Repealed) 78A Incest (1) Any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years. (2) For the purposes of this section, a “close family member” is a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth. 78B Incest attempts Any person who attempts to commit an offence under section 78A is liable to imprisonment for two years. 78C Defences (1) It shall be a sufficient defence to a charge under section 78A or section 78B that the person charged did not know that the person with whom the offence is alleged to have been committed was related to him or her, as alleged. (2) It shall be no defence to a charge under section 78A or section 78B that the person with whom the offence is alleged to have been committed consented thereto. 78D (Repealed) 78E (Renumbered) (Renumbered as clause 54 of Schedule 11) 78F Sanction of Attorney-General (1) No prosecution for an offence under sections 78A or 78B shall be commenced without the sanction of the Attorney-General. (2) (Repealed) 78G-78S (Repealed) 78T (Renumbered) (Renumbered as clause 55 of Schedule 11) 79 Bestiality Any person who commits an act of bestiality with any animal shall be liable to imprisonment for fourteen years. 80 Attempt to commit bestiality Any person who attempts to commit an act of bestiality with any animal shall be liable to imprisonment for five years. 80A Sexual assault by forced self-manipulation (1) In this section:”circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment. “self-manipulation” means the penetration of the vagina (including a surgically constructed vagina) or anus of any person by an object manipulated by the person, except where the penetration is carried out for proper medical or other proper purposes.”threat” means: (a) a threat of physical force, or (b) intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force. (2) Any person who compels another person to engage in self-manipulation, by means of a threat that the other person could not reasonably be expected to resist, is liable to imprisonment for 14 years. (2A) Any person who compels another person to engage in self-manipulation: (a) by means of a threat that the other person could not reasonably be expected to resist, and (b) in circumstances of aggravation, is liable to imprisonment for 20 years. (3) A person does not commit an offence under this section unless the person knows that the other person engages in the self-manipulation as a result of the threat. 80AA Referral to child protection agency On conviction of a person for an offence under this Division, the court may refer the matter to an appropriate child protection agency if the person against whom or with whom the offence was committed is under the authority of the offender. Division 10A – Sexual servitude 80B Meaning of “sexual servitude” (1) For the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats: (a) is not free to cease providing sexual services, or (b) is not free to leave the place or area where the person provides sexual services. (2) In this section:”sexual service” means the commercial use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others.”threat” means: (a) a threat of force, or (b) a threat to cause a person’s deportation, or (c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person. 80C Meaning of “circumstances of aggravation” In this Division, “circumstances of aggravation” means circumstances involving either or both of the following: (a) the alleged victim is under the age of 18 years, (b) the alleged victim has a cognitive impairment (within the meaning of Division 10). 80D Causing sexual servitude (1) A person: (a) who causes another person to enter into or remain in sexual servitude, and (b) who intends to cause, or is reckless as to causing, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person is guilty of an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 20 years. 80E Conduct of business involving sexual servitude (1) A person: (a) who conducts any business that involves the sexual servitude of other persons, and (b) who knows about, or is reckless as to, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person commits an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 19 years. (3) For the purposes of this section, “conducting a business” includes: (a) taking any part in the management of the business, or (b) exercising control or direction over the business, or (c) providing finance for the business. 80F Alternative verdicts If on the trial of a person for an offence under section 80D (2) or 80E (2) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under section 80D (1) or 80E (1), respectively, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. Division 10B – Incitement to commit sexual offence 80G Incitement to commit sexual offence (1) A person who incites the commission of an offence under Division 10, 10A or 15A is guilty of an offence and is liable to the penalty provided for the commission of the offence. (2) For the person to be guilty, the person must intend that the offence incited be committed. (3) A person may be found guilty even if committing the offence incited is impossible. (4) Any defences, procedures, limitations or qualifying provisions that apply to the offence incited also apply to an offence under this section. (5) It is not an offence to incite the commission of the following offences: (a) an offence against section 61N or 61O that is constituted by inciting another person to an act of indecency, (b) an offence against section 61P, 66B, 66D, 66EB, 66F (4), 73 (4), 78B or 80. 81-81B (Repealed) Division 11 – Misconduct with regard to corpses 81C Misconduct with regard to corpses Any person who: (a) indecently interferes with any dead human body, or (b) improperly interferes with, or offers any indignity to, any dead human body or human remains (whether buried or not), shall be liable to imprisonment for two years. Division 12 – Attempts to procure abortion 82 Administering drugs etc to herself by woman with child Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. 83 Administering drugs etc to woman with intent Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. 84 Procuring drugs etc Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years. Division 13 – Concealing birth of a child 85 Concealment of birth (1) Whosoever by any disposition of the dead body of a child, whether the child died before or after or during its birth, wilfully conceals or attempts to conceal the birth of the child, shall be liable to imprisonment for two years. (2) It shall be a sufficient defence to any charge under this section if the accused person shall satisfy the court or jury that the dead body in respect of which the disposition took place had issued from the body of its mother before the expiration of the twenty-eighth week of pregnancy. Division 13A – (Renumbered) (Renumbered as Part 3 Division 14) 85A (Renumbered as sec 86) Division 14 – Kidnapping 86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person’s consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly. (5) A person who takes or detains a child is to be treated as acting without the consent of the child. (6) A person who takes or detains a child does not commit an offence under this section if: (a) the person is the parent of the child or is acting with the consent of a parent of the child, and (b) the person is not acting in contravention of any order of a court relating to the child. (7) In this section:”child” means a child under the age of 16 years.”detaining” a person includes causing the person to remain where he or she is.”parent” of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children.”taking” a person includes causing the person to accompany a person and causing the person to be taken. 87 Child abduction (1) A person who takes or detains a child with the intention of removing or keeping the child from the lawful control of any person having parental responsibility for the child, without the consent of that person, is liable to imprisonment for 10 years. (2) A person who takes or detains a child with the intention of stealing from the child is liable to imprisonment for 10 years. (3) In this section:”child” means a child under the age of 12 years.”detaining a child” includes causing the child to remain where he or she is.”taking a child” includes causing the child to accompany a person and causing the child to be taken. (4) In this section, a reference to a person who has parental responsibility for a child is a reference to: (a) a person who has, in relation to a child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children, or (b) a person authorised to be the carer of the child under an Act relating to the care and protection of children. 88-91 (Repealed) Division 14A – Procuring for prostitution 91A Procuring etc Whosoever procures, entices or leads away any person (not being a prostitute), whether with that person’s consent or not for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for seven years. 91B Procuring person by drugs etc Whosoever by means of any fraud, violence, threat, or abuse of authority, or by the use of any drug or intoxicating liquor, procures, entices, or leads away any person for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for ten years. Division 15 – Child prostitution 91C Definitions For the purposes of this Division: “act of child prostitution” means any sexual service, whether or not involving an indecent act: (a) that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person), and (b) that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child, and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in section 61H) for payment or masturbation committed by one person on another for payment, engaged in by a child. “child” means a person who is under the age of 18 years. 91D Promoting or engaging in acts of child prostitution (1) Any person who: (a) by any means, causes or induces a child to participate in an act of child prostitution, or (b) participates as a client with a child in an act of child prostitution, is liable to imprisonment for 10 years or, if the child is under the age of 14 years, to imprisonment for 14 years. (2) (Repealed) (3) The consent of a child is not a defence to a charge relating to an offence under this section. 91E Obtaining benefit from child prostitution (1) Any person who receives money or any other material benefit knowing that it is derived directly or indirectly from an act of child prostitution is liable to imprisonment for 10 years or, if the act of child prostitution involves a child under the age of 14 years, to imprisonment for 14 years. (2) A person is not guilty of an offence under this section if the person satisfies the court that the money or other material benefit concerned: (a) was received by the person for the lawful provision of goods or services, or (b) was paid or provided in accordance with a judgment or an order of a court or a legislative requirement, whether or not under New South Wales law. (3) The higher maximum penalty under this section in the case of an offence involving a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. 91F Premises not to be used for child prostitution (1) Any person who is capable of exercising lawful control over premises at which a child participates in an act of child prostitution is liable to imprisonment for 7 years. (2) For the purposes of this section, each person: (a) who is an owner, lessee, licensee or occupier of premises, (b) who is concerned in the management of premises or in controlling the entry of persons to, or their movement within, premises, is to be considered as capable of exercising lawful control over the premises, whether or not any other person is capable of exercising lawful control over the premises. (3) A person is not guilty of an offence under this section relating to an act of child prostitution if the person satisfies the court: (a) that the person did not know about the act, or (b) that the person did not know that a child was participating in the act or, for any other reason, did not know that the act was an act of child prostitution, or (c) that the person used all due diligence to prevent the child from participating in the act. Division 15A – Child abuse material 91FA Definitions For the purposes of this Division: “child” means a person who is under the age of 16 years. “child abuse material” –see section 91FB. “data” includes: (a) information in any form, or (b) any program (or part of a program). “material” includes any film, printed matter, data or any other thing of any kind (including any computer image or other depiction). 91FB Child abuse material–meaning (1) In this Division:”child abuse material” means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The “private parts” of a person are: (a) a person’s genital area or anal area, or (b) the breasts of a female person. 91G Children not to be used for production of child abuse material (1) Any person who: (a) uses a child who is under the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 14 years. (2) Any person who: (a) uses a child who is of or above the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) (Repealed) (4) For the purposes of this section, a person may have the care of a child without necessarily being entitled by law to have the custody of the child. (5) Where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 91H Production, dissemination or possession of child abuse material (1) In this section:”disseminate” child abuse material, includes: (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. “possess” child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).”produce” child abuse material includes: (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty: imprisonment for 10 years. 91HA Defences (1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material. (2) It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it. (3) Public benefit It is a defence in proceedings for an offence against section 91H that the conduct engaged in by the defendant: (a) was of public benefit, and (b) did not extend beyond what was of public benefit. (4) Conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in: (a) enforcing or administering a law of the State, or of another State, a Territory or the Commonwealth, or (b) monitoring compliance with, or investigating a contravention of, a law of the State, or of another State, a Territory or the Commonwealth, or (c) the administration of justice. (5) The question of whether a person’s conduct is of public benefit is a question of fact and the person’s motives for engaging in the conduct are irrelevant. (6) Law enforcement officers It is a defence in proceedings for an offence against section 91H that: (a) the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or her duties, and (b) the conduct of the defendant was reasonable in the circumstances for the purpose of performing that duty. (7) Classified material It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC). (8) Approved research It is a defence in proceedings for an offence against section 91G or 91H that the conduct engaged in by the defendant: (a) was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and (b) did not contravene any conditions of that approval. Division 15B – Voyeurism and related offences 91I Definitions (1) In this Division:”building” includes a vehicle, vessel, tent or temporary structure.”private parts” means a person’s genital area or anal area, whether bare or covered by underwear. (2) For the purposes of this Division, a person is “engaged in a private act” if: (a) the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and (b) the circumstances are such that a reasonable person would reasonably expect to be afforded privacy. (3) For the purposes of this Division, a person “films” another person, or another person’s private parts, if the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later). 91J Voyeurism (1) General offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act: (a) without the consent of the person being observed to being observed for that purpose, and (b) knowing that the person being observed does not consent to being observed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act: (a) without the consent of the person being observed to being observed for that purpose, and (b) knowing that the person being observed does not consent to being observed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender observed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. 91K Filming a person engaged in private act (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender filmed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. 91L Filming a person’s private parts (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would expect that his or her private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender filmed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. (7) Double jeopardy A person cannot be convicted of both an offence against this section and an offence against section 91K in respect of conduct occurring on the same occasion. 91M Installing device to facilitate observation or filming (1) Offence A person who, with the intention of enabling that person or any other person to commit an offence against section 91J, 91K or 91L, installs any device, or constructs or adapts the fabric of any building, for the purpose of facilitating the observation or filming of another person, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against this section is a summary offence. (3) Alternative verdict If on the trial of a person charged with an offence against section 91J, 91K or 91L the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against this section, the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against this section. The person is liable to punishment accordingly. Division 16 – Bigamy 92 Bigamy Whosoever, being married, marries another person during the life of the former husband or wife, shall be liable to imprisonment for seven years: Provided that no person shall be convicted under this section whose husband or wife has at the time of such second marriage been continually absent from such person for the space of seven years, or, if domiciled in New South Wales at the time of the first marriage, has been continually absent from New South Wales for the space of five years then last past, and was, on reasonable grounds, believed by the accused at the time of the second marriage not to be living, of which facts the proof shall lie on the accused. See Marriage Act 1961 (Commonwealth), section 94. 93 Participator in bigamy Whosoever, whether married or unmarried, marries the husband or wife of any person not continually so absent, as in the proviso to section 92 mentioned, knowing him or her to be married, and the former wife or husband to be alive, shall be liable to imprisonment for five years. See Marriage Act 1961 (Commonwealth), section 94. Part 3A – Offences relating to public order Division 1 – Riot and affray 93A Definition In this Division: “violence” means any violent conduct, so that: (a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and (b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short). 93B Riot (1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years. (2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously. (3) The common purpose may be inferred from conduct. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Riot may be committed in private as well as in public places. 93C Affray (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) For the purposes of this section, a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as in public places. 93D Mental element under sections 93B and 93C (1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent. (2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence. (3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence. 93E (Repealed) Division 2 – Explosives and firearms offences 93F Interpretation (1) In this Division:”firearm”, “imitation firearm”, “pistol” and “prohibited firearm” have the same meanings as in the Firearms Act 1996.”unregistered firearm” means a firearm that is not registered under the Firearms Act 1996, but does not include any such firearm that is not required to be registered under that Act. (2) For the purposes of this Division, a person who is in a vehicle or vessel in a public place is taken to be in that place. (3) In subsection (2), “vehicle” includes a caravan or anything else constructed to be drawn by a vehicle or animal. 93FA Possession, supply or making of explosives (1) A person who possesses an explosive in a public place is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) A person who possesses, supplies or makes an explosive, under circumstances that give rise to a reasonable suspicion that the person did not possess, supply or make the explosive for a lawful purpose, is guilty of an offence. Maximum penalty: Imprisonment for 3 years or 50 penalty units, or both. (3) (Repealed) (4) A person is not guilty of an offence against subsection (1) or (2) for possessing or making an explosive if the person satisfies the court that he or she had a reasonable excuse for doing so or did so for a lawful purpose. 93FB Possession of dangerous articles other than firearms (1) A person who, in a public place, possesses: (a) anything (not being a firearm within the meaning of the Firearms Act 1996) capable of discharging by any means: (i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or (ii) any substance capable of causing bodily harm, or (b) a fuse capable of use with an explosive or a detonator, or (c) a detonator, is liable, on conviction before the Local Court, to imprisonment for 2 years, or a fine of 50 penalty units, or both. (2) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose. (3) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) (a) if the person satisfies the court that he or she possessed it for the purpose of self-defence and that it was reasonable in the circumstances to possess it for that purpose. (4) In considering a defence under subsection (3), the court must have regard to its reasonableness in all the circumstances of the case, including: (a) the immediacy of the perceived threat to the person charged, and (b) the circumstances, such as the time and location, in which the thing was possessed, and (c) the type of thing possessed, and (d) the age, characteristics and experiences of the person charged. 93G Causing danger with firearm or spear gun (1) Any person who: (a) possesses a loaded firearm or loaded spear gun: (i) in a public place, or (ii) in any other place so as to endanger the life of any other person, or (b) fires a firearm or spear gun in or near a public place, or (c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person, is liable to imprisonment for 10 years. (2) For the purposes of this section: (a) a firearm is to be regarded as being loaded if there is ammunition: (i) in its chamber or barrel, or (ii) in any magazine or other device which is in such a position that the ammunition can be fitted into its chamber or barrel by operation of some other part of the firearm, and (b) a spear gun is to be regarded as being loaded if a spear, or an instrument or thing similar to a spear, is fitted to it. (3) A person is not guilty of an offence under this section for possessing or doing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or doing it or possessed it or did it for a lawful purpose. 93GA Firing at dwelling-houses or buildings (1) A person who fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 14 years. (1A) A person who, during a public disorder, fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. (1B) A person who, in the course of an organised criminal activity, fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. (2) In the prosecution of an offence under this section, it is not necessary to prove that a person was actually placed in danger by the firing of the firearm. (3) If, on the trial of a person for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 93G or 93H, it may find the person not guilty of the offence charged but guilty of an offence under section 93G or 93H, and the accused is liable to punishment accordingly. (4) If, on the trial of a person for an offence under subsection (1A) or (1B), the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), it may find the person not guilty of the offence charged but guilty of an offence under subsection (1), and the accused is liable to punishment accordingly. 93H Trespassing with or dangerous use of firearm or spear gun (1) A person who, possessing a firearm, imitation firearm, spear gun or imitation spear gun, enters any building or land (other than a road), unless the person: (a) is the owner or occupier of the building or land or has the permission of the owner or occupier, or (b) does so with a reasonable excuse, or (c) does so for a lawful purpose, is liable to imprisonment for 5 years. (2) A person who fires a firearm or spear gun in or into any building or on or on to any land, unless the person: (a) is the owner or occupier of the building or land or has the permission of the owner or occupier, or (b) does so with a reasonable excuse, or (c) does so for a lawful purpose, is liable to imprisonment for 10 years. (3) The onus of proving the matters referred to in subsection (1) (a), (b) and (c) and subsection (2) (a), (b) and (c) lies with the defendant. 93I Possession of unregistered firearm in public place (1) A person who: (a) possesses an unregistered firearm in a public place, and (b) is not authorised under the Firearms Act 1996 to possess the firearm, is liable to imprisonment for 10 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) For the purposes of subsection (2), an offence under subsection (1) is committed in “circumstances of aggravation” if the offence involves the possession: (a) of more than one unregistered firearm, or (b) of an unregistered firearm that is a pistol, or (c) of an unregistered firearm that is a prohibited firearm. Division 3 – Contamination of goods 93J Definitions of “contaminate” and “goods” (1) In this Division:”contaminate” goods includes: (a) interfere with the goods, or (b) making it appear that the goods have been contaminated or interfered with. “goods” includes any substance or article: (a) whether or not for human consumption, and (b) whether natural or manufactured, and (c) whether or not incorporated or mixed with other goods. (2) In this Division, a reference to economic loss caused through public awareness of the contamination of goods includes a reference to economic loss caused through: (a) members of the public not purchasing or using those goods or similar goods, or (b) steps taken to avoid public alarm or anxiety about those goods or similar goods. 93K Contaminating goods with intent to cause public alarm or economic loss A person who contaminates goods with the intention of: (a) causing public alarm or anxiety, or (b) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. 93L Threatening to contaminate goods with intent to cause public alarm or economic loss (1) A person who makes a threat that goods will be contaminated with the intention of: (a) causing public alarm or anxiety, or (b) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. (2) For the purposes of this section, a threat may be made by any act, and may be explicit or implicit and conditional or unconditional. 93M Making false statements concerning contamination of goods with intent to cause public alarm or economic loss (1) A person who makes a statement that the person believes to be false: (a) with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated, and (b) with the intention of thereby: (i) causing public alarm or anxiety, or (ii) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. (2) For the purposes of this section, making a statement includes conveying information by any means. 93N Aggravated circumstances–unwarranted demand (1) A person is guilty of an offence against this section if the person commits an offence under section 93K, 93L or 93M in connection with an unwarranted demand by the person. An unwarranted demand is a demand that the person believes he or she does not have any reasonable grounds for making. (2) A person convicted of an offence against this section is liable to imprisonment for 14 years. (3) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 93K, 93L or 93M, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 93O Aggravated circumstances–death or grievous bodily harm (1) A person is guilty of an offence against this section if the person commits an offence against section 93K or 93L and: (a) the contamination of the goods causes the death of any person or grievous bodily harm to any person, or (b) the person intends by that contamination to cause such death or harm. (2) A person convicted of an offence against this section is liable to imprisonment for 25 years. (3) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 93K or 93L, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 93P Special provisions relating to geographical application of this Division (1) A person commits an offence against a provision of this Division if: (a) the person does an act outside the State that constitutes the offence, and (b) (apart from this section) the act would have constituted the offence had it been done within this State, and (c) the offence involves intending to cause public alarm or anxiety, or economic loss, within the State. (2) A person who commits an offence by the operation of this section may be dealt with, and is liable to the same punishment, as if the person had committed the offence within the State. (3) If an offence against a provision of this Division involves intending to cause public alarm or anxiety, or economic loss, within the State, a geographical nexus between the State and any other element of the offence is not required. (4) The other provisions of this Act, the provisions of other Acts and the common law, in so far as these are applicable, apply to an offence to which this section applies as if it had been committed within the State (for example, section 344A and the rules of law relating to attempts to commit offences apply to such an offence). (5) This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. Division 4 – Bomb and other hoaxes 93Q Conveying false information that a person or property is in danger (1) A person who conveys information: (a) that the person knows to be false or misleading, and (b) that is likely to make the person to whom the information is conveyed fear for the safety of a person or of property, or both, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) This section extends to conveying information by any means including making a statement, sending a document, or transmitting an electronic or other message. (3) In this section, a reference to the safety of a person includes the safety of the person who conveys the information and the person to whom it is conveyed. 93R Leaving or sending an article with intent to cause alarm (1) A person: (a) who leaves in any place, or sends by any means, a substance or article, and (b) who intends to induce a false belief that the substance or article is likely to be a danger to the safety of a person or of property, or both, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) For the purposes of this section, a false belief that a substance or article is likely to be a danger includes a false belief that the substance or article is likely to explode, ignite, or contain, consist of or discharge a dangerous matter. Division 5 – Criminal groups 93S Definitions (1) In this Division:”criminal group” means a group of 3 or more people who have as their objective or one of their objectives: (a) obtaining material benefits from conduct that constitutes a serious indictable offence, or (b) obtaining material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence, or (c) committing serious violence offences, or (d) engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence. “law enforcement officer” has the same meaning as it has in Division 8A of Part 3.”serious violence offence” means an offence punishable by imprisonment for life or for a term of 10 years or more, where the conduct constituting the offence involves: (a) loss of a person’s life or serious risk of loss of a person’s life, or (b) serious injury to a person or serious risk of serious injury to a person, or (c) serious damage to property in circumstances endangering the safety of any person, or (d) perverting the course of justice (within the meaning of Part 7) in relation to any conduct that, if proved, would constitute a serious violence offence as referred to in paragraph (a), (b) or (c). (2) A group of people is capable of being a criminal group for the purposes of this Division whether or not: (a) any of them are subordinates or employees of others, or (b) only some of the people involved in the group are involved in planning, organising or carrying out any particular activity, or (c) its membership changes from time to time. 93T Participation in criminal groups (1) A person who participates in a criminal group is guilty of an offence if the person: (a) knows, or ought reasonably to know, that it is a criminal group, and (b) knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 5 years. (1A) A person who participates in a criminal group by directing any of the activities of the group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 10 years. (2) A person who assaults another person, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) A person who destroys or damages property belonging to another person, or threatens to destroy or damage property belonging to another person, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) A person who assaults a law enforcement officer while in the execution of the officer’s duty, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (4A) A person who participates in a criminal group whose activities are organised and on-going by directing any of the activities of the group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 15 years. (5) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the law enforcement officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. 93TA Receiving material benefit derived from criminal activities of criminal groups (1) A person who receives from a criminal group a material benefit that is derived from the criminal activities of the criminal group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, the benefit is derived from criminal activities of the criminal group. Maximum penalty: Imprisonment for 5 years. (2) In this section, a material benefit “derived” from the criminal activities of a criminal group is a material benefit derived or realised, or substantially derived or realised, directly or indirectly, from the criminal activities of a group. 93U Alternative verdicts (1) If, on the trial of a person for an offence under section 93T (1A), (2), (3), (4) or (4A), the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under section 93T (1), it may find the accused not guilty of the offence charged but guilty of an offence under section 93T (1), and the accused is liable to punishment accordingly. (2) If, on the trial of a person for an offence under section 93T (1), (1A) or (4A), the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under section 93TA, it may find the accused not guilty of the offence charged but guilty of an offence under section 93TA, and the accused is liable to punishment accordingly. Division 6 – Unlawful gambling 93V Offence of conducting unlawful gambling operation (1) A person who conducts an unlawful gambling operation is guilty of an offence. Maximum penalty: 1,000 penalty units or imprisonment for 7 years (or both). (2) For the purposes of subsection (1), “an unlawful gambling operation” means an operation involving at least 2 of the following elements (one of which must be paragraph (d)): (a) the keeping of at least 2 premises (whether or not either or both are gambling premises) that are used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998, (b) substantial planning and organisation in relation to matters connected with any such form of prohibited gambling (as evidenced by matters such as the number of persons, and the amount of money and gambling turnover, involved in the operation), (c) the use of sophisticated methods and technology (for example, telephone diverters, telecommunication devices, surveillance cameras and encrypted software programs) in connection with any such form of prohibited gambling or in avoiding detection of that gambling, (d) a substantial loss of potential revenue to the State that would be derived from lawful forms of gambling. (3) In any proceedings for an offence under this section, evidence that persons have been in regular attendance at premises suspected of being used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998 is relevant to the matters referred to in subsection (2) (a) or (b). (4) In this section:”conduct” includes organise or manage.”gambling premises” has the same meaning as in the Unlawful Gambling Act 1998. Division 7 – Consorting 93W Definitions In this Division: “consort” means consort in person or by any other means, including by electronic or other form of communication. “convicted offender” means a person who has been convicted of an indictable offence (disregarding any offence under section 93X). 93X Consorting (1) A person who: (a) habitually consorts with convicted offenders, and (b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence. Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both. (2) A person does not “habitually consort” with convicted offenders unless: (a) the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and (b) the person consorts with each convicted offender on at least 2 occasions. (3) An “official warning” is a warning given by a police officer (orally or in writing) that: (a) a convicted offender is a convicted offender, and (b) consorting with a convicted offender is an offence. 93Y Defence The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances: (a) consorting with family members, (b) consorting that occurs in the course of lawful employment or the lawful operation of a business, (c) consorting that occurs in the course of training or education, (d) consorting that occurs in the course of the provision of a health service, (e) consorting that occurs in the course of the provision of legal advice, (f) consorting that occurs in lawful custody or in the course of complying with a court order. Part 4 – Stealing and similar offences Division 1 – General 94AA Property previously stolen Where on the trial of a person for any offence which includes the stealing of any property it appears that the property was, at the time when it was taken by the accused, already out of the possession of the owner by reason of its having been previously stolen, the accused may be convicted of the offence charged notwithstanding that it is not proved that the taking by him or her amounted to an interference with the right to possession of, or a trespass against, the owner. Division 2 – Robbery 94 Robbery or stealing from the person Whosoever: robs or assaults with intent to rob any person, or steals any chattel, money, or valuable security from the person of another, shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years. 95 Same in circumstances of aggravation (1) Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years. (2) In this section, “circumstances of aggravation” means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following: (a) the alleged offender uses corporal violence on any person, (b) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (c) the alleged offender deprives any person of his or her liberty. 96 Same (robbery) with wounding Whosoever commits any offence under section 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to imprisonment for 25 years. 97 Robbery etc or stopping a mail, being armed or in company (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (3) Alternative verdict If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 98 Robbery with arms etc and wounding Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years. Division 3 – Demanding property with intent to steal 99 Demanding property with intent to steal (1) Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to imprisonment for ten years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) It is immaterial whether any such menace is of violence or injury by the offender or by any other person. 100-105 (Repealed) Division 4 – Sacrilege and housebreaking 105A Definitions (1) In sections 106-115A:”building” includes any place of Divine worship.”circumstances of aggravation” means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. “circumstances of special aggravation” means circumstances involving any or all of the following: (a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person, (b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person, (c) the alleged offender is armed with a dangerous weapon. (2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of “circumstances of aggravation”, or (b) paragraph (a) or (b) of the definition of “circumstances of special aggravation”, can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred. (2A) For the purposes of paragraph (f) of the definition of “circumstances of aggravation”, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place. (3) The definitions in subsection (1) are not mutually exclusive. 106-108 (Repealed) 109 Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence (1) Whosoever: enters the dwelling-house of another, with intent to commit a serious indictable offence therein, or, being in such dwelling-house commits any serious indictable offence therein, and in either case breaks out of the said dwelling-house shall be liable to imprisonment for fourteen years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 110 Breaking, entering and assaulting with intent to murder etc Whosoever breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 25 years. 111 Entering dwelling-house (1) Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. 112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 113 Breaking etc into any house etc with intent to commit serious indictable offence (1) A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence and liable to imprisonment for 10 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. 114 Being armed with intent to commit indictable offence (1) Any person who: (a) is armed with any weapon, or instrument, with intent to commit an indictable offence, (b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance, (c) has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence, (d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building, shall be liable to imprisonment for seven years. (2) For the purposes of subsection (1) (b) “conveyance” means any cab, carriage, motor car, caravan, trailer, motor lorry, omnibus, motor or other bicycle, or any ship, or vessel, used in or intended for navigation, and “drive” shall be construed accordingly. 115 Being convicted offender armed with intent to commit indictable offence Whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years. 115A Alternative verdicts (1) Aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. This subsection does not apply to an offence if the jury proceeds under subsection (2) in relation to it. Division 5 – Larceny 116 All larcenies to be of same nature Every larceny, whatever the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the passing of the Act seventh and eighth George the Fourth, chapter twenty-nine. 117 Punishment for larceny Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. 118 Intent to return property no defence Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal. 119 Verdict where several takings proved Where, on the trial of a person for larceny, it appears that the property alleged in any count to have been stolen at one time, was taken at different times, the prosecutor shall not be required to elect upon which taking the prosecutor will proceed, unless the Judge so orders: Provided always that evidence shall not in any such case be given of any taking which occurred more than six months in point of time from any other of such takings. 120 Trial for larceny–verdict of embezzlement etc Where, on the trial of a person for larceny, it appears that the person took the property in such manner as to amount in law to the offence of embezzlement or fraudulent misappropriation, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, or of obtaining property by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, the jury may acquit the person of the larceny charged, and find the person guilty of such other offence, and the person shall be liable to punishment accordingly. 121 Verdict of “larceny or receiving” Where, on the trial of a person charged with larceny, or any offence which includes larceny, and, also, with having unlawfully received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that the person either stole, or unlawfully received, such property, and that they are unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the unlawful receiving, whichever of the two offences is subject to the lesser punishment. 122 Verdict where persons indicted for joint larceny or receiving On the trial of any two, or more, persons charged with larceny, and also with having unlawfully received property, the jury may find all, or any, of such persons guilty, either of stealing, or unlawfully receiving, the property, or part or parts thereof, or may find one, or more, of the said persons guilty of stealing, and the other, or others, of them guilty of unlawfully receiving the property, or part or parts thereof. 123 Verdict of minor indictable offence Where, on the trial of a person for larceny, it appears that the property in question was taken, appropriated, or retained, under circumstances amounting to a minor indictable offence, the jury may acquit the person of the offence charged and find the person guilty of the minor indictable offence, and the person shall be liable to punishment accordingly. 124 Fraudulent appropriation Where, upon the trial of a person for larceny, it appears: (a) that the person had fraudulently appropriated to his or her own use or that of another, the property in respect of which the person is indicted, although the person had not originally taken the property with any fraudulent intent, or (b) that the person had fraudulently retained the property in order to secure a reward for its restoration, the jury may return a verdict accordingly, and thereupon the person shall be liable to imprisonment for two years, or to a fine of 20 penalty units, or both. 125 Larceny by bailee Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part thereof, or any property into or for which it has been converted, or exchanged, to his or her own use, or the use of any person other than the owner thereof, although he or she does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indi

Crimes Act 1900

Crimes Act 1900 As at 6 July 2012 Does not include amendments by: Sec 310L of this Act (sec 310L repeals Part 6B on 13.9.2013) See also: Crimes Amendment (Possession or Discharge of Firearms in Commission of Offences) Bill 2012 [Non-government Bill: Hon Robert Borsak, MLC] Reprint history (since 1972): Reprint No 1 16 July 1975 Reprint No 2 20 October 1976 Reprint No 3 4 August 1978 Reprint No 4 11 February 1981 Reprint No 5 23 September 1982 Reprint No 6 3 March 1986 Reprint No 7 1 December 1987 Reprint No 8 1 March 1990 Reprint No 9 25 March 1991 Reprint No 10 1 June 1992 Reprint No 11 30 March 1993 Reprint No 12 11 February 1994 Reprint No 13 2 March 1995 Reprint No 14 7 March 1996 Reprint No 15 8 May 1997 Reprint No 16 19 May 1998 Reprint No 17 1 June 1999 Reprint No 18 11 May 2000 Reprint No 19 23 April 2002 Reprint No 20 30 March 2004 Reprint No 21 4 April 2006 Reprint No 22 9 September 2008 Long Title An Act to consolidate the Statutes relating to Criminal Law. Part 1 – Preliminary and interpretation 1 Name of Act This Act is the Crimes Act 1900. 2 (Repealed) 3 Application of certain provisions of Act The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried. 3A, 3B (Repealed) 4 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires:”Aircraft” includes any machine that can derive support in the atmosphere from the reactions of the air.”Armed”, in relation to a weapon, or instrument, or an offensive weapon, or instrument, that is a dangerous weapon, includes bearing or having the immediate physical possession of the weapon, or instrument.”Authorised officer” has the same meaning as it has in the Criminal Procedure Act 1986.”Banker” includes every director or manager of any banking company, whether incorporated or not, or of any branch thereof, and every person carrying on the business of a banker.”Cattle” includes any horse, mare, gelding, colt, foal, filly, ass, mule, bull, cow, ox, steer, heifer, calf, ram, ewe, sheep, lamb, pig, goat, deer, alpaca, llama, vicuna, camel, or dromedary, and every hybrid or cross thereof.”Court” and “Judge” respectively shall be equally taken to mean the Court in which or the Judge before whom the trial or proceeding is had in respect of which either word is used.”Dangerous weapon” means: (a) a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or (c) a spear gun. “Document of title to goods” includes every bill of lading, India warrant, dock warrant, warehousekeeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and every bought and sold note or document used in the ordinary course of business as proof of the possession or control of goods, or purporting to authorise by indorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to.”Document of title to land” includes every deed, certificate of title, map, paper, or parchment, written or printed, or partly written and partly printed, being or containing evidence of the title, or part of the title, to any real estate or to any interest in or out of real estate.”Dwelling-house” includes: (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which any person resides, and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house. “Governor” means, except in respect of the exercise of the pardoning power, the Governor with the advice of the Executive Council.”Grievous bodily harm” includes: (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). “Indictment” includes any information presented or filed as provided by law for the prosecution of offences.”Intoxicating substance” includes alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding.”Judge” –see “Court”.”Loaded arms” means any gun, pistol, or other arms, loaded in the barrel or chamber or magazine with gunpowder or other explosive substance, and with ball, shot, slug, or other destructive material, although the attempt to discharge may fail from want of proper priming, or from any other cause; and every gun, pistol, or other arms, unlawfully presented at any person, shall be deemed to be loaded unless the contrary is shown.”Member of the crew” in relation to an aircraft means a person having functions or duties on board the aircraft.”Minor indictable offence” means an indictable offence that is not a serious indictable offence.”Money” includes all coined money, whether current within New South Wales or not, and all bank notes or instruments ordinarily so called, if current as such, and payable to the bearer.”Night” means the period of time commencing at nine of the clock in the evening of each day and concluding at six of the clock in the morning of the next succeeding day.”Offensive weapon or instrument” means: (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. “Officer”, in relation to a body corporate or public company, includes a person who has been appointed, or acts, as an auditor of the body corporate or public company.”Person”, “Master”, and “Employer” severally include any society, company, or corporation.”Place of Divine worship” includes any building or structure ordinarily used for Divine worship.”Property” includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.”Property belonging to a vessel” includes every portion of its cargo, and property belonging to any of the officers, crew, or passengers thereof.”Public disorder” means a riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations.”Railway” includes a tramway, and also includes all stations, buildings, structures and equipment belonging to or associated with a railway or tramway.”Serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.”Trustee” means a trustee on some express trust howsoever created, and includes the heir or personal representative of such trustee, and every other person upon whom the duty of such trust shall have devolved, and also any official manager, assignee, liquidator, or other like officer, acting under any Act relating to joint stock companies or to bankruptcy or insolvency and also an executor or administrator.”Valuable security” includes every order or other security whatsoever entitling or evidencing the title of any person to any share or interest in any public stock or fund, whether of any part of the British dominions or of any Foreign State, or in any fund of any body corporate, company, or society, whether within or without the British dominions, or to any deposit in any bank; and every debenture, deed, bond, bill, note, cheque, warrant, order, or security whatsoever for money, or for payment of money, whether current in any part of the British dominions or in any Foreign State, and every document of title to land or goods, as herein defined. (2) A dwelling-house does not cease to be a dwelling-house by reason only of being temporarily unoccupied. (3) (Repealed) (4) In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to an offence mentioned in a specified provision of this Act that has been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal. (5), (6) (Repealed) (7) A reference in any offence under this Act to causing any poison, intoxicating substance or other destructive or noxious thing to be administered to or taken by any person includes a reference to causing any person to inhale, take or be exposed to the poison, intoxicating substance or thing by its release into the person’s environment. (8) Notes included in this Act do not form part of this Act. 4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. 4B Dishonesty (1) In this Act:”dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. (2) In a prosecution for an offence, dishonesty is a matter for the trier of fact. 5, 6 (Repealed) 7 “Possession” when criminal Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who: (a) has any such property in his or her custody, or (b) knowingly has any such property in the custody of another person, or (c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another. 8 “Public place” etc Where, by this or any other Act, or by any rule, regulation, ordinance or by-law, duly made under or by virtue of the provisions of any Act, any offence, conduct, or language, in a public place, or open and public place, or place of public resort, is made punishable, or a person guilty thereof is made liable to apprehension, the place shall be deemed public for the purposes of the enactment or taken to be otherwise within the meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise. 9, 10 (Repealed) Part 1A – Geographical jurisdiction 10A Application and effect of Part (1) This Part applies to all offences. (2) This Part extends, beyond the territorial limits of the State, the application of a law of the State that creates an offence if there is the nexus required by this Part between the State and the offence. (3) If the law that creates an offence makes provision with respect to any geographical consideration concerning the offence, that provision prevails over any inconsistent provision of this Part. (4) This Part is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. 10B Interpretation (1) For the purposes of this Part, the necessary geographical nexus is the geographical nexus required by section 10C. (2) For the purposes of this Part, the place in which an offence is committed is the place in which the physical elements of the offence occur. (3) For the purposes of this Part, the place in which an offence has an effect includes: (a) any place whose peace, order or good government is threatened by the offence, and (b) any place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out. (4) A reference in this Part to the State includes a reference to the coastal waters of the State in which the criminal law of the State applies (including in any part of the adjacent area of the State in which the substantive criminal law of the State applies by force of the law of the State or of the Commonwealth in accordance with the Crimes at Sea Act 1998). 10C Extension of offences if there is a geographical nexus (1) If: (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if: (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State. 10D Provisions relating to double criminality (1) This Part applies to an offence that is committed partly in the State and partly in another place outside the State, irrespective of whether it is also an offence in that other place. (2) This Part applies to an offence that is committed wholly in a place outside the State only if: (a) it is also an offence in that place, or (b) it is not also an offence in that place, but the trier of fact is satisfied that the offence constitutes such a threat to the peace, order or good government of the State that the offence warrants criminal punishment in the State. 10E Procedural and other provisions (1) The existence of the necessary geographical nexus for an offence is to be presumed and the presumption is conclusive unless rebutted under subsection (2). (2) If a person charged with an offence disputes the existence of the necessary geographical nexus, the court is to proceed with the trial of the offence in the usual way. If, at the conclusion of the trial, the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus does not exist, it must (subject to subsection (3)) make or return a finding to that effect and the charge is to be dismissed. (3) If the trier of fact would, disregarding any geographical considerations, find the person not guilty of the offence, it must make or return a finding of not guilty. The trier of fact must make or return a finding of not guilty on the grounds of mental illness in any such case if they were the only grounds on which the trier of fact would have found the person not guilty of the offence. (4) This section also applies to any alternative verdict available by law to the trier of fact in respect of another offence with which the person was not charged. A finding of guilt may be made or returned in any such case, unless the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus for that other offence does not exist. (5) The issue of whether the necessary geographical nexus exists must, if raised before the trial, be reserved for consideration at the trial. (6) A power or authority exercisable on reasonable suspicion or belief that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds or believes that the elements necessary to constitute the offence exist (whether or not the person suspects or believes or has any ground to suspect or believe that the necessary geographical nexus with the State exists). 10F Special provisions with respect to geographical jurisdiction (1) This section applies for the purposes of, but without limiting, this Part. (2) The necessary geographical nexus exists between the State and any of the following offences if the offence is committed by a public official (within the meaning of the Independent Commission Against Corruption Act 1988) and involves public money of the State or property held by the public official for or on behalf of the State: (a) larceny or any offence that includes larceny, (b) fraud or any other offence under Part 4AA. Part 2 – Offences against the Sovereign 11 Provisions of 36 Geo III, c 7, and 57 Geo III, c 6, repealed except as to offences against the person of the Sovereign The provisions of the Act of the Parliament of Great Britain, thirty-sixth George the Third chapter seven, made perpetual by the Act of the Parliament of Great Britain and Ireland fifty-seventh George the Third chapter six, and all the provisions of the last mentioned Act in relation thereto, save such of the same respectively as relate to the compassing, imagining, inventing, devising, or intending death or destruction, or any bodily harm tending to death or destruction, maim, or wounding, imprisonment, or restraint of the person of the heirs and successors of His said Majesty King George the Third, and the expressing, uttering, or declaring of such compassings, imaginations, inventions, devices, or intentions, or any of them, shall be and the same are hereby repealed. 12 Compassing etc deposition of the Sovereign–overawing Parliament etc Whosoever, within New South Wales or without, compasses, imagines, invents, devises, or intends to deprive or depose Our Most Gracious Lady the Queen, her heirs or successors, from the style, honour, or Royal name of the Imperial Crown of the United Kingdom, or of any other of Her Majesty’s dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, or any other of Her Majesty’s dominions, in order, by force or constraint, to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom, or the Parliament of New South Wales, or to move or stir any foreigner or stranger with force to invade the United Kingdom, or any other of Her Majesty’s dominions, or countries under the obeisance of Her Majesty, her heirs or successors, and expresses, utters, or declares such compassings, imaginations, inventions, devices, or intentions, or any of them, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be liable to imprisonment for 25 years. 13-15 (Repealed) 16 Nothing herein to affect 25 Ed III, c 2 Nothing contained in this Part shall lessen the force of, or in any matter affect, anything enacted by the Statute passed in the twenty-fifth year of King Edward the Third “A declaration which offences shall be adjudged Treason”. 16A (Repealed) Part 3 – Offences against the person Division 1 – Homicide 17 (Repealed) 17A Date of death (1) The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated. (2) This section does not apply in respect of an injury received before the commencement of this section. 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. 19 (Repealed) 19A Punishment for murder (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy. 19B Mandatory life sentences for murder of police officers (1) A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed: (a) while the police officer was executing his or her duty, or (b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty, and if the person convicted of the murder: (c) knew or ought reasonably to have known that the person killed was a police officer, and (d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers. (2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person’s natural life. (3) This section does not apply to a person convicted of murder: (a) if the person was under the age of 18 years at the time the murder was committed, or (b) if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment). (4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. (5) Nothing in this section affects the obligation of a court to impose a sentence of imprisonment for life on a person convicted of murder in accordance with section 61 of the Crimes (Sentencing Procedure) Act 1999. (6) Nothing in this section affects the prerogative of mercy. (7) This section applies to offences committed after the commencement of this section. 20 Child murder–when child deemed born alive On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not. 21 Child murder by mother–verdict of contributing to death etc Whosoever, being a woman delivered of a child is indicted for its murder, shall, if the jury acquit her of the murder, and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body, be liable to imprisonment for ten years. 22 Trial for child murder–verdict of concealment of birth Where, on the trial of a person for the murder or manslaughter of a child, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 85, they may acquit the person of the offence charged and find the person guilty of an offence under the said section, and the person shall be liable to punishment accordingly. 22A Infanticide (1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child. (3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth. 23 Trial for murder–provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder. 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section:”underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 24 Manslaughter–punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal. 25 (Repealed) Division 2 – Conspiracy to murder 26 Conspiring to commit murder Whosoever: conspires and agrees to murder any person, whether a subject of Her Majesty or not, and whether within the Queen’s dominions or not, or solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder, shall be liable to imprisonment for 25 years. Division 3 – Attempts to murder 27 Acts done to the person with intent to murder Whosoever: administers to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 28 Acts done to property with intent to murder Whosoever: sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or casts away or destroys any vessel, or by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or places, or throws, any matter or thing upon or across a railway, or removes, or displaces any sleeper, or other thing belonging to a railway, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 29 Certain other attempts to murder Whosoever: attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years. 30 Attempts to murder by other means Whosoever, by any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to imprisonment for 25 years. Division 4 – Documents containing threats 31 Documents containing threats (1) A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years. (2) It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances). Division 5 – Suicide 31A Suicide and attempt to commit suicide The rule of law that it is a crime for a person to commit, or to attempt to commit, suicide is abrogated. 31B Survivor of suicide pact (1) The survivor of a suicide pact shall not be guilty of murder or manslaughter but may be guilty of an offence under section 31C. (2) In this section, “suicide pact” means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his or her own life, but nothing done by a person who enters into a suicide pact shall be treated as being done by the person in pursuance of the pact unless it is done while the person has the settled intention of dying in pursuance of the pact. (3) The onus of proving the existence of a suicide pact shall lie with the accused person on the balance of probabilities. 31C Aiding etc suicide (1) A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years. (2) Where: (a) a person incites or counsels another person to commit suicide, and (b) that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel, the firstmentioned person shall be liable to imprisonment for 5 years. Division 6 – Acts causing danger to life or bodily harm 32 Impeding endeavours to escape shipwreck Whosoever: intentionally or recklessly prevents or impedes any person on board of, or having quitted, any ship or vessel in distress, or wrecked, stranded, or cast on shore, in his or her endeavour to save his or her life, or intentionally or recklessly prevents or impedes any person in his or her endeavour to save the life of such first-mentioned person, shall be liable to imprisonment for 25 years. 32A-32C (Repealed) 33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly. 33A Discharging firearm etc with intent (1) Intent to cause grievous bodily harm A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to cause grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest etc A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 33B Use or possession of weapon to resist arrest etc (1) Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 15 years. 34 (Repealed) 35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm–in company A person who, in the company of another person or persons: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) Reckless wounding–in company A person who, in the company of another person or persons: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) Reckless wounding A person who: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly. 35A Causing dog to inflict grievous bodily harm or actual bodily harm (1) Cause dog to inflict grievous bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict grievous bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) Cause dog to inflict actual bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict actual bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (3) Alternative finding If, on the trial of a person for an offence under subsection (1), it appears that grievous bodily harm was not inflicted on the other person but that actual bodily harm was inflicted, the person may be found not guilty of the offence charged but guilty of an offence under subsection (2) and be liable to punishment accordingly. (4) Doing an act includes omitting to do the act In this section, a reference to the doing of an act includes a reference to omitting to do the act. 36 (Repealed) 37 Attempts to choke etc (garrotting) Whosoever: by any means attempts to choke suffocate or strangle any person, or by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance, with intent in any such case to enable himself or herself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence, shall be liable to imprisonment for 25 years. 38 Using intoxicating substance to commit an indictable offence A person who: (a) administers an intoxicating substance to another person, or (b) causes another person to take an intoxicating substance, with intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 38A Spiking drink or food (1) In this section:”harm” includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances.”impair” includes further impair. (2) A person: (a) who causes another person to be given or to consume drink or food: (i) containing an intoxicating substance that the other person is not aware it contains, or (ii) containing more of an intoxicating substance than the other person would reasonably expect it to contain, and (b) who intends a person to be harmed by the consumption of the drink or food, is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 100 penalty units, or both. (3) For the purposes of this section, giving a person drink or food includes preparing the drink or food for the person or making it available for consumption by the person. (4) A person does not commit an offence against this section if the person has reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food. (5) A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit an offence against this section. (6) An offence against this section is a summary offence. 39 Using poison etc to endanger life or inflict grievous bodily harm (1) A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the poison, intoxicating substance or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and (c) the person intends to injure, or is reckless about injuring, the other person. Maximum penalty: Imprisonment for 10 years. (2) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 41 or 41A, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 41 or 41A. The person is liable to punishment accordingly. 40 (Repealed) 41 Using poison etc to injure or to cause distress or pain A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the person intends to injure, or to cause distress or pain to, the other person. Maximum penalty: Imprisonment for 5 years. 41A Poisoning etc of water supply A person is guilty of an offence if: (a) the person introduces any poison or other destructive or noxious thing into a supply of water, and (b) the person intends to injure any person or persons. Maximum penalty: Imprisonment for 5 years. 42 Injuries to child at time of birth Whosoever, during or after the delivery of a child, intentionally or recklessly inflicts on such child, whether then wholly born or not, any grievous bodily harm, shall be liable to imprisonment for fourteen years. 43 Abandoning or exposing a child under 7 years A person who, without reasonable excuse, intentionally abandons or exposes a child under 7 years of age is guilty of an offence if it causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. 43A Failure of persons with parental responsibility to care for child (1) In this section:”child” means a child under 16 years of age.”parental responsibility” means the duties, powers, responsibilities and authority in respect of a child that, by law, parents have in relation to their children. (2) A person: (a) who has parental responsibility for a child, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life, is guilty of an offence if the failure causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. 44 Failure of persons to provide necessities of life (1) A person: (a) who is under a legal duty to provide another person with the necessities of life, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life, is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person. Maximum penalty: Imprisonment for 5 years. (2) A person cannot be found guilty of both an offence against section 43A and an offence against this section in respect of the same act or omission. 45 Prohibition of female genital mutilation (1) A person who: (a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or (b) aids, abets, counsels or procures a person to perform any of those acts on another person, is liable to imprisonment for 7 years. (2) An offence is committed against this section even if one or more of the acts constituting the offence occurred outside New South Wales if the person mutilated by or because of the acts is ordinarily resident in the State. (3) It is not an offence against this section to perform a surgical operation if that operation: (a) is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or (b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or (c) is a sexual reassignment procedure and is performed by a medical practitioner. (4) In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account. (5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts. (6) This section applies only to acts occurring after the commencement of the section. (7) In this section:”authorised professional” means: (a) a registered midwife, or (b) a midwifery student, or (c) in relation to an operation performed in a place outside Australia–a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or (d) a medical student. “medical practitioner”, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.”medical student” means: (a) a person registered as a student in the medical profession under the Health Practitioner Regulation National Law, or (b) in relation to an operation performed in a place outside Australia–a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place. “midwifery student” means: (a) a person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, or (b) in relation to an operation performed in a place outside Australia–a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place. “sexual reassignment procedure” means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person. 46 Causing bodily injury by gunpowder etc Whosoever intentionally or recklessly by the explosion of gunpowder or other substance, or the use of any corrosive fluid, or destructive matter, burns maims disfigures disables, or does grievous bodily harm to, any person, shall be liable to imprisonment for 25 years. 47 Using etc explosive substance or corrosive fluid etc Whosoever: causes any gunpowder or other explosive substance to explode, or sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance, with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person, shall, whether bodily injury is effected or not, be liable to imprisonment for 25 years. 48 Causing explosives to be placed in or near building, conveyance or public place (1) A person who causes an explosive to be placed in or near: (a) a building, or (b) a vehicle, vessel, train or other conveyance, or (c) a public place, with the intention of causing bodily harm to any person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) A person commits an offence under this section whether or not: (a) any explosion occurs, or (b) any bodily harm is caused. 49 Setting trap etc (1) Any person who: (a) places or sets, or causes to be placed or set, any trap, device or thing (whether its nature be electronic, electric, mechanical, chemical or otherwise) capable of destroying human life or inflicting grievous bodily harm on any person, or (b) knowingly permits any such trap, device or thing to continue to be placed or set, with intent to inflict grievous bodily harm shall be liable to imprisonment for five years. (2) Nothing in subsection (1) shall extend to any gin or trap, placed with the intention of destroying vermin, or to any trap, device or thing placed in a dwelling-house for the protection thereof. 49A Throwing rocks and other objects at vehicles and vessels (1) A person is guilty of an offence if: (a) the person intentionally throws an object at, or drops an object on or towards, a vehicle or vessel that is on any road, railway or navigable waters, and (b) there is a person in the vehicle or vessel, and (c) the conduct risks the safety of any person. Maximum penalty: Imprisonment for 5 years. (2) This section extends to a vehicle or vessel that is stationary at the time that the object is thrown or dropped. (3) In the prosecution of an offence under this section, it is not necessary to prove: (a) that the accused was aware that his or her conduct risked the safety of any person, or (b) that the object made contact with the vehicle or vessel. (4) In this section:”road” means a road or road related area within the meaning of the Road Transport (General) Act 2005.”throw” includes propel.”vehicle” includes: (a) a motor vehicle, and (b) a train or tram, and (c) a bicycle, and (d) a vehicle drawn by an animal or an animal ridden by a person. 50, 51 (Repealed) 51A Predatory driving (1) The driver of a vehicle who, while in pursuit of or travelling near another vehicle: (a) engages in a course of conduct that causes or threatens an impact involving the other vehicle, and (b) intends by that course of conduct to cause a person in the other vehicle actual bodily harm, is guilty of an offence and liable to imprisonment for 5 years. (2) This section does not take away the liability of any person to be prosecuted for or found guilty of an offence under this Act or of any other offence, or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under this section cannot be prosecuted for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of any other offence under this Act cannot be prosecuted for an offence under this section on the same, or substantially the same, facts. (3) In this section:”impact” involving a vehicle includes: (a) an impact with any other vehicle or with a person or object, or (b) the vehicle overturning or leaving a road. “vehicle” has the same meaning it has in section 52A. 51B Police pursuits (1) The driver of a vehicle: (a) who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and (b) who does not stop the vehicle, and (c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others, is guilty of an offence. Maximum penalty: (a) in the case of a first offence–imprisonment for 3 years, or (b) in the case of an offence on a second or subsequent occasion–imprisonment for 5 years. (2) In this section, “vehicle” has the same meaning as it has in section 52A. 52 (Repealed) 52A Dangerous driving: substantive matters (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vehicle is involved in impact–generally For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise), (h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise). (6) When vehicle is involved in causing other impacts For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if: (a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and (b) the prosecution proves that the vehicle caused the impact. (7) Circumstances of aggravation In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vehicle was driven, or (c) to the manner in which the vehicle was driven. (9) Definitions In this section:”drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.”object” includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree.”prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood.”road” means: (a) a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act), or (b) any other place. “vehicle” means: (a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or (b) a horse-drawn vehicle, whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway. 52AA Dangerous driving: procedural matters (1) Presumption as to intoxication For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication–alcohol For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood analysis carried out in accordance with Division 4 or 4A of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol. (3A) Evidence of intoxication–drugs For the purposes of section 52A, evidence may be given of the concentration of a drug (other than alcohol) present in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood or urine analysis carried out in accordance with Division 4 or 4A of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. (3B) Time of intoxication A concentration of a drug (other than alcohol) determined by the means referred to in subsection (3A) is taken to be the concentration of the drug in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm: (a) if the blood or urine sample that was analysed was taken within 4 hours after the impact, and (b) unless the accused proves that there was no such drug in the accused’s blood or urine at the time of the impact. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52A (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52A (1) or (3), it may find that the accused is guilty of the offence under section 52A (1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts. (7) Definitions In this section:”prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood. 52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm (1) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 10 years. (2) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning grievous bodily harm to another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 7 years. (3) The provisions of section 52A (5) and (6) (which prescribe circumstances in which a vehicle is taken to be involved in an impact) apply for the purposes of this section in the same way as they apply for the purposes of section 52A. (4) In this section, “vehicle” has the same meaning as it has in section 52A. 52B Dangerous navigation: substantive matters (1) Dangerous navigation occasioning death A person is guilty of the offence of dangerous navigation occasioning death if the vessel navigated by the person is involved in an impact occasioning the death of another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous navigation occasioning death A person is guilty of the offence of aggravated dangerous navigation occasioning death if the person commits the offence of dangerous navigation occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous navigation causing grievous bodily harm A person is guilty of the offence of dangerous navigation causing grievous bodily harm if the vessel navigated by the person is involved in an impact occasioning grievous bodily harm to another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous navigation occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous navigation occasioning grievous bodily harm if the person commits the offence of dangerous navigation occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vessel is involved in impact–generally For the purposes of this section, the circumstances in which a vessel is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vessel overturning or running aground while the person is being conveyed in or on the vessel (whether as a passenger or otherwise), (b) an impact between any object and the vessel while the person is being conveyed in or on that vessel (whether as a passenger or otherwise), (c) an impact between the person and the vessel, (d) the impact of the vessel with another vessel or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vessel, (f) an impact with anything that was in motion through falling from the vessel, (g) the person falling from the vessel, or being thrown or ejected from the vessel, while being conveyed in or on the vessel (whether as a passenger or otherwise), (h) an impact between any object (including the water and the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vessel, while the person is being conveyed in or on the vessel (whether as a passenger or otherwise). (6) When vessel is involved in causing other impacts For the purposes of this section, a vessel is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if the death or harm is occasioned through the vessel causing an impact between other vessels or between another vessel and any object or person or causing another vessel to overturn or run aground. (7) Circumstances of aggravation In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was navigating the vessel at a speed that exceeds the speed limit (if any) applicable to the person navigating the vessel, or to the navigable waters, on which the vessel was navigated at the time of the impact, or (c) the accused was navigating the vessel in an attempt to escape pursuit by a police officer, or (d) the accused’s ability to navigate was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vessel was navigated, or (c) to the manner in which the vessel was navigated. (9) Definitions In this section:”drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.”object” includes a pier, wharf, jetty, pontoon, buoy, breakwater, bridge, support, mooring post or platform, navigation aid, retaining wall, marina, boatshed, slipway or swimming enclosure.”prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 52BA Dangerous navigation: procedural matters (1) Presumption as to intoxication For the purposes of section 52B, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication For the purposes of section 52B, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Schedule 1 to the Marine Safety Act 1998. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at that time was less than the prescribed concentration of alcohol. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 54 the jury is satisfied that the person is guilty of an offence under section 52B, it may find the accused guilty of the offence under section 52B, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52B (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52B (1) or (3), it may find that the accused is guilty of the offence under section 52B (1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52B cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52B on the same, or substantially the same, facts. (7) Definition In this section:”prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. 53 Injuries by furious driving etc Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years. 54 Causing grievous bodily harm Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years. Division 7 – Possessing or making explosive etc with intent to injure the person 55 Possessing or making explosives or other things with intent to injure Whosoever knowingly has in his or her possession, or makes, or manufactures, any gunpowder, explosive substance, or dangerous or noxious thing, or any machine, engine, instrument, or thing: (a) with intent by means thereof to injure, or otherwise commit a serious indictable offence against the person of any one, or (b) for the purpose of enabling another person to injure, or otherwise commit a serious indictable offence against the person of any one, shall be liable to imprisonment for 10 years. Division 8 – Assaults 56 Obstructing member of the clergy in discharge of his or her duties Whosoever: by threats or force prevents, or endeavours to prevent, any member of the clergy, or other person duly authorised in that behalf, from officiating in a place of divine worship, or from the performance of his or her duty in the lawful burial of the dead in a burial-place, or strikes, or offers any violence to, any member of the clergy, or minister engaged in, or to the knowledge of the offender about to engage in, any of the duties aforesaid, or going to perform the same, shall be liable to imprisonment for two years. 57 Assault on persons preserving wreck Whosoever wounds, strikes, or assaults, any person while in the execution of his or her duty concerning the preservation of a vessel in distress, or any vessel or effects, stranded, or cast on shore, or lying under water, with intent to obstruct him or her, or thereby in fact obstructing him or her in the execution of such duty, shall be liable to imprisonment for seven years. 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. 59A Assault during public disorder (1) A person who assaults any person during a large-scale public disorder, although not occasioning actual bodily harm, is liable to imprisonment for 5 years. (2) A person who assaults any person during a large-scale public disorder, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3), (4) (Repealed) Division 8A – Assaults and other actions against police and other law enforcement officers 60AA Meaning of “law enforcement officer” In this Division: “law enforcement officer” means: (a) a police officer, or (b) the Commissioner for the Independent Commission Against Corruption or an Assistant Commissioner for that Commission, or (c) an officer of the Independent Commission Against Corruption, within the meaning of the Independent Commission Against Corruption Act 1988, who performs investigation functions, or (d) the Commissioner for the Police Integrity Commission or an Assistant Commissioner for that Commission, or (e) an officer of the Police Integrity Commission, within the meaning of the Police Integrity Commission Act 1996, who performs investigation or confiscation functions, or (f) the Commissioner for the New South Wales Crime Commission or an Assistant Commissioner for that Commission, or (g) a member of staff of the New South Wales Crime Commission, within the meaning of the New South Wales Crime Commission Act 1985, who performs investigation or confiscation functions, or (h) the Commissioner of Corrective Services, or (i) governors of correctional centres, correctional officers and probation and parole officers, within the meaning of the Crimes (Administration of Sentences) Act 1999, or (j) an officer of the Department of Juvenile Justice who works with children who have, or are alleged to have, committed offences and who is employed at or works from a community centre or children’s detention centre, or (k) an officer of the Department of Juvenile Justice who is involved in the conduct of youth justice conferences, or (l) a Crown Prosecutor or an Acting Crown Prosecutor, or (m) an Australian legal practitioner who is employed as a member of staff of the Director of Public Prosecutions, or (n) a sheriff’s officer. 60 Assault and other actions against police officers (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years. (2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (2A) A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (3A) A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or (b) because the officer is a police officer. 60A Assault and other actions against law enforcement officers (other than police officers) (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (2) A person who assaults a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. 60B Actions against third parties connected with law enforcement officers (1) A person who assaults, stalks, harasses or intimidates any person with whom a law enforcement officer has a domestic relationship, with the intention of causing the law enforcement officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (2) A person who obtains personal information about a person with whom a law enforcement officer has a domestic relationship, with the intention of using or permitting the use of the information to cause the officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (3) For the purposes of this section, causing a law enforcement officer to fear physical or mental harm includes causing the officer to fear physical or mental harm to another person with whom he or she has a domestic relationship. (4) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (5) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been assaulted, stalked, harassed or intimidated, or the law enforcement officer, actually feared physical or mental harm. (6) In this section, “domestic relationship” has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. 60C Obtaining of personal information about law enforcement officers A person who obtains personal information about a law enforcement officer, with the intention of using or permitting the use of the information for the purpose of assaulting, stalking, harassing, intimidating, or otherwise harming, the officer: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer, is liable to imprisonment for 5 years. Division 8B – Assaults etc at schools 60D Definitions (1) In this Division:”member of staff” of a school includes a person who performs voluntary work for the school.”school” means: (a) an infants school, primary school or secondary school (however described), and (b) a child care facility for children under school age. “school premises” includes parks and other community premises that are used by a school (but only while they are being used for the purposes of the school).”school student” includes a child attending a child care facility. (2) For the purposes of this Division, a school student or member of staff of a school is taken to be attending a school: (a) while the student or member of staff is on school premises for the purposes of school work or duty (even if not engaged in school work or duty at the time), or (b) while the student or member of staff is on school premises for the purposes of before school or after school child care, or (c) while entering or leaving school premises in connection with school work or duty or before school or after school care. 60E Assaults etc at schools (1) A person who assaults, stalks, harasses or intimidates any school student or member of staff of a school while the student or member of staff is attending a school, although no actual bodily harm is occasioned, is liable to imprisonment for 5 years. (2) A person who assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a school student or member of staff of a school while the student or member of staff is attending a school, and (b) is reckless as to causing actual bodily harm to that student or member of staff or any other person, is liable to imprisonment for 12 years. (4) A person who enters school premises with intent to commit an offence under another provision of this section is liable to imprisonment for 5 years. (5) Nothing in subsection (1) applies to any reasonable disciplinary action taken by a member of staff of a school against a school student. Division 9 – Common assaults 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Division 9A – Defence of lawful correction 61AA Defence of lawful correction (1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period. (3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable. (4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction). (5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment. (6) In this section:”child” means a person under 18 years of age.”parent” of a child means a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children.”person acting for a parent” of a child means a person: (a) who: (i) is a step-parent of the child, a de facto partner of a parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and (ii) is authorised by a parent of the child to use physical force to punish the child, or (b) who, in the case of a child who is an Aboriginal or Torres Strait Islander (within the meaning of the Children and Young Persons (Care and Protection) Act 1998), is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child. “De facto partner” is defined in section 21C of the Interpretation Act 1987. (7) This section does not apply to proceedings arising out of an application of physical force to a child if the application of that force occurred before the commencement of this section. (8) The Attorney General is to review this section to determine whether its provisions continue to be appropriate for securing the policy objectives of the section. The review is to be undertaken as soon as possible after the period of 3 years from the commencement of this section. A report on the outcome of the review is to be tabled in each House of Parliament within 6 months after the end of the period of 3 years. Division 10 – Offences in the nature of rape, offences relating to other acts of sexual assault etc 61A-61G (Repealed) 61H Definition of “sexual intercourse” and other terms (1) For the purposes of this Division, “sexual intercourse” means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). (1A) For the purposes of this Division, a person has a “cognitive impairment” if the person has: (a) an intellectual disability, or (b) a developmental disorder (including an autistic spectrum disorder), or (c) a neurological disorder, or (d) dementia, or (e) a severe mental illness, or (f) a brain injury, that results in the person requiring supervision or social habilitation in connection with daily life activities. (2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. (3) For the purposes of this Act, a person who incites another person to an act of indecency, as referred to in section 61N or 61O, is taken to commit an offence on the other person. 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. (2) Meaning of consent A person “consents” to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. 61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. (3) In this section, “building” has the same meaning as it does in Division 4 of Part 4. 61JA Aggravated sexual assault in company (1) A person: (a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and (b) who is in the company of another person or persons, and (c) who: (i) at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) Nothing in this section affects the prerogative of mercy. 61K Assault with intent to have sexual intercourse Any person who, with intent to have sexual intercourse with another person: (a) intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or (b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument, is liable to imprisonment for 20 years. 61L Indecent assault Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years. 61M Aggravated indecent assault (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. (3) In this section, “circumstances of aggravation” means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) (Repealed) (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 61N Act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. (2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months. 61O Aggravated act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years. (1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years. (2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years. (2A) A person: (a) who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and (b) who knows that the act of indecency is being filmed for the purposes of the production of child abuse material, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) For the purposes subsections (1) and (1A), “circumstances of aggravation” means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment. (4) For the purposes of subsection (2A): (a) “child abuse material” has the meaning given by Division 15A, and (b) an act of indecency is being “filmed” if one or more images (whether still or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person (whether during the filming or later). 61P Attempt to commit offence under sections 61I-61O Any person who attempts to commit an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N or 61O is liable to the penalty provided for the commission of the offence. 61Q Alternative verdicts (1) Question of aggravation If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (1A) Question of aggravation in company If on the trial of a person for an offence under section 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I or 61J, it may find the person not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Question of consent regarding alleged victim under 16 If on the trial of a person for an offence under section 61I the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66C (3) or 66C (4), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Question of consent or authority regarding alleged victim under 16 If on the trial of a person for an offence under section 61J or 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66A or 66C, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (4) Question of consent regarding incest If on the trial of a person for an offence under section 61I or 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 78A or 78B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (5) Question of consent regarding cognitive impairment If on the trial of a person for an offence under section 61I, 61J or 61JA, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66F, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (6) Question of whether offence committed for purposes of production of child abuse material If on the trial of a person for an offence under section 61O (2A) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61O (2) or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 61R (Repealed) 61S Offenders who are minors (1) For the purposes of any offence, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person. (2) Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence. 61T Offender married to victim The fact that a person is married to a person: (a) upon whom an offence under section 61I, 61J, 61JA or 61K is alleged to have been committed is no bar to the firstmentioned person being convicted of the offence, or (b) upon whom an offence under any of those sections is alleged to have been attempted is no bar to the firstmentioned person being convicted of the attempt. 61U Circumstances of certain sexual offences to be considered in passing sentence Where a person is convicted of: (a) both an offence under section 61I and an offence under section 61K, or (b) both an offence under section 61J and an offence under section 61K, or (c) both an offence under section 61JA and an offence under section 61K, whether at the same time or at different times, the Judge passing sentence on the person in respect of the two convictions or the later of the two convictions is required, if it appears that the two offences arose substantially out of the one set of circumstances, to take that fact into account in passing sentence. 62 (Repealed) 63 Common law offences of rape and attempted rape abolished (1) The common law offences of rape and attempted rape are abolished. (2) Parts 1A, 1 and 19 of Schedule 11 make provision with respect to rape and other former sexual offences. 64 (Renumbered) (Renumbered as clause 51 of Schedule 11) 65-66 (Repealed) 66A Sexual intercourse–child under 10 (1) Child under 10 Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence. Maximum penalty: imprisonment for 25 years. (2) Child under 10–aggravated offence Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence. Maximum penalty: imprisonment for life. (3) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. (4) A person sentenced to imprisonment for life for an offence under subsection (2) is to serve that sentence for the term of the person’s natural life. (5) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (6) Nothing in this section affects the prerogative of mercy. (7) If on the trial of a person charged with another offence against this Act the person is instead found guilty of an offence against this section (as provided by section 61Q), the maximum penalty that may be imposed on the person for the offence against this section is the penalty for the offence charged. 66B Attempting, or assaulting with intent, to have sexual intercourse with child under 10 Any person who attempts to have sexual intercourse with another person who is under the age of 10 years, or assaults any such person with intent to have sexual intercourse, shall be liable to imprisonment for 25 years. 66C Sexual intercourse–child between 10 and 16 (1) Child between 10 and 14 Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years. (2) Child between 10 and 14–aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years. (3) Child between 14 and 16 Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years. (4) Child between 14 and 16–aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years. (5) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. 66D Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 Any person who attempts to commit an offence under section 66C upon another person who is of or above the age of 10 years, and under the age of 16 years, or assaults any such person with intent to commit such an offence, shall be liable to the penalty provided for the commission of the offence. 66E Alternative verdicts (1) If on the trial of a person for an offence under section 66A (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D. The accused is liable to punishment accordingly. (2) If on the trial of a person for an offence under section 66A (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66A (1), it may find the accused not guilty of the offence charged but guilty of an offence under section 66A (1). The accused is liable to punishment accordingly. (3) If on the trial of a person for an offence under section 66C (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (1) or (3), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (1) or (3). The accused is liable to punishment accordingly. (4) If on the trial of a person for an offence under section 66C (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (3) or (4), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (3) or (4). The accused is liable to punishment accordingly. (5) If on the trial of a person for an offence under section 66C the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66D. The accused is liable to punishment accordingly. 66EA Persistent sexual abuse of a child (1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years. (2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion. (3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales. (4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred. (5) A charge of an offence against this section: (a) must specify with reasonable particularity the period during which the offence against this section occurred, and (b) must describe the nature of the separate offences alleged to have been committed by the accused during that period. (6) In order for the accused to be convicted of an offence against this section: (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and (b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and (c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and (d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section. (7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6). (8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10). (9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence. (10) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly. (11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions. (12) In this section:”child” means a person under the age of 18 years.”sexual offence” means any of the following: (a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A, (b) an offence of attempting to commit an offence referred to in paragraph (a), (c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b). 66EB Procuring or grooming child under 16 for unlawful sexual activity (1) Definitions In this section:”adult person” means a person who is of or over the age of 18 years.”child” means a person who is under the age of 16 years.”conduct” includes: (a) communicating in person or by telephone, the internet or other means, or (b) providing any computer image, video or publication. “unlawful sexual activity” means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State). (2) Procuring children An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 15 years, or (b) in any other case–imprisonment for 12 years. (2A) Meeting child following grooming An adult person: (a) who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and (b) who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 15 years, or (b) in any other case–imprisonment for 12 years. (2B) For the purposes of subsection (2A), a child has been “groomed for sexual purposes” by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material. (3) Grooming children An adult person: (a) who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance, and (b) who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 12 years, or (b) in any other case–imprisonment for 10 years. (4) Unlawful sexual activity need not be particularised In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity. (5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section: (a) to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and (b) to the age of the child is a reference to the age that the accused believed the person to be. (6) Charge for aggravated offence The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. (7) Defence It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child. (8) Alternative verdict If on the trial of a person charged with an offence against subsection (2) or (2A) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (3), the jury may acquit the person of the offence charged and find the person guilty of an offence against subsection (3). The person is liable to punishment accordingly. 66F Sexual offences–cognitive impairment (1) Meaning of “person responsible for care” For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person: (a) at a facility at which persons with a cognitive impairment are detained, reside or attend, or (b) at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment. The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision. (2) Sexual intercourse: person responsible for care A person: (a) who has sexual intercourse with a person who has a cognitive impairment, and (b) who is responsible for the care of that person (whether generally or at the time of the sexual intercourse), is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Sexual intercourse: taking advantage of impairment A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence. Maximum penalty: imprisonment for 8 years. (4) Attempts A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence. (5) Consent not a defence for sexual intercourse The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2)-(4). (6) Consent not a defence for indecent assault or act of indecency The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P in connection with such an offence) if: (a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or (b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment. (7) Defences It is a defence to a charge for an offence under subsection (2)-(4) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection: (a) if, at the time of the conduct constituting the offence: (i) the accused did not know the person to whom the charge relates had a cognitive impairment, or (ii) the accused was married to the person to whom the charge relates or was an established de facto partner of that person, or (b) if the act constituting the offence was carried out for any proper medical or hygienic purpose. (8) Approval of Attorney General for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General: (a) an offence under subsection (2)-(4), (b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection. 67, 68 (Repealed) 69 (Renumbered) (Renumbered as clause 52 of Schedule 11) 70 (Renumbered) (Renumbered as clause 53 of Schedule 11) 71-72A (Repealed) 73 Sexual intercourse with child between 16 and 18 under special care (1) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 16 years and under the age of 17 years, is liable to imprisonment for 8 years. (2) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. (3) For the purposes of this section, a person (“the victim”) is under the special care of another person (“the offender”) if, and only if: (a) the offender is the step-parent, guardian or foster parent of the victim, or (b) the offender is a school teacher and the victim is a pupil of the offender, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or (e) the offender is a health professional and the victim is a patient of the health professional. (4) Any person who attempts to commit an offence under subsection (1) or (2) is liable to the penalty provided for the commission of the offence. (5) A person does not commit an offence under this section if the person and the other person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other. 74-76A (Repealed) 77 Consent no defence in certain cases (1) The consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E (1A), (2) or (2A), 61M (2), 61N (1), 61O (1), (2) or (2A), 66A (1) or (2), 66B, 66C, 66D, 66EA, 66EB, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76. (2) (Repealed) 77A, 78 (Repealed) 78A Incest (1) Any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years. (2) For the purposes of this section, a “close family member” is a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth. 78B Incest attempts Any person who attempts to commit an offence under section 78A is liable to imprisonment for two years. 78C Defences (1) It shall be a sufficient defence to a charge under section 78A or section 78B that the person charged did not know that the person with whom the offence is alleged to have been committed was related to him or her, as alleged. (2) It shall be no defence to a charge under section 78A or section 78B that the person with whom the offence is alleged to have been committed consented thereto. 78D (Repealed) 78E (Renumbered) (Renumbered as clause 54 of Schedule 11) 78F Sanction of Attorney-General (1) No prosecution for an offence under sections 78A or 78B shall be commenced without the sanction of the Attorney-General. (2) (Repealed) 78G-78S (Repealed) 78T (Renumbered) (Renumbered as clause 55 of Schedule 11) 79 Bestiality Any person who commits an act of bestiality with any animal shall be liable to imprisonment for fourteen years. 80 Attempt to commit bestiality Any person who attempts to commit an act of bestiality with any animal shall be liable to imprisonment for five years. 80A Sexual assault by forced self-manipulation (1) In this section:”circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment. “self-manipulation” means the penetration of the vagina (including a surgically constructed vagina) or anus of any person by an object manipulated by the person, except where the penetration is carried out for proper medical or other proper purposes.”threat” means: (a) a threat of physical force, or (b) intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force. (2) Any person who compels another person to engage in self-manipulation, by means of a threat that the other person could not reasonably be expected to resist, is liable to imprisonment for 14 years. (2A) Any person who compels another person to engage in self-manipulation: (a) by means of a threat that the other person could not reasonably be expected to resist, and (b) in circumstances of aggravation, is liable to imprisonment for 20 years. (3) A person does not commit an offence under this section unless the person knows that the other person engages in the self-manipulation as a result of the threat. 80AA Referral to child protection agency On conviction of a person for an offence under this Division, the court may refer the matter to an appropriate child protection agency if the person against whom or with whom the offence was committed is under the authority of the offender. Division 10A – Sexual servitude 80B Meaning of “sexual servitude” (1) For the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats: (a) is not free to cease providing sexual services, or (b) is not free to leave the place or area where the person provides sexual services. (2) In this section:”sexual service” means the commercial use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others.”threat” means: (a) a threat of force, or (b) a threat to cause a person’s deportation, or (c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person. 80C Meaning of “circumstances of aggravation” In this Division, “circumstances of aggravation” means circumstances involving either or both of the following: (a) the alleged victim is under the age of 18 years, (b) the alleged victim has a cognitive impairment (within the meaning of Division 10). 80D Causing sexual servitude (1) A person: (a) who causes another person to enter into or remain in sexual servitude, and (b) who intends to cause, or is reckless as to causing, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person is guilty of an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 20 years. 80E Conduct of business involving sexual servitude (1) A person: (a) who conducts any business that involves the sexual servitude of other persons, and (b) who knows about, or is reckless as to, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person commits an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 19 years. (3) For the purposes of this section, “conducting a business” includes: (a) taking any part in the management of the business, or (b) exercising control or direction over the business, or (c) providing finance for the business. 80F Alternative verdicts If on the trial of a person for an offence under section 80D (2) or 80E (2) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under section 80D (1) or 80E (1), respectively, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. Division 10B – Incitement to commit sexual offence 80G Incitement to commit sexual offence (1) A person who incites the commission of an offence under Division 10, 10A or 15A is guilty of an offence and is liable to the penalty provided for the commission of the offence. (2) For the person to be guilty, the person must intend that the offence incited be committed. (3) A person may be found guilty even if committing the offence incited is impossible. (4) Any defences, procedures, limitations or qualifying provisions that apply to the offence incited also apply to an offence under this section. (5) It is not an offence to incite the commission of the following offences: (a) an offence against section 61N or 61O that is constituted by inciting another person to an act of indecency, (b) an offence against section 61P, 66B, 66D, 66EB, 66F (4), 73 (4), 78B or 80. 81-81B (Repealed) Division 11 – Misconduct with regard to corpses 81C Misconduct with regard to corpses Any person who: (a) indecently interferes with any dead human body, or (b) improperly interferes with, or offers any indignity to, any dead human body or human remains (whether buried or not), shall be liable to imprisonment for two years. Division 12 – Attempts to procure abortion 82 Administering drugs etc to herself by woman with child Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. 83 Administering drugs etc to woman with intent Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. 84 Procuring drugs etc Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years. Division 13 – Concealing birth of a child 85 Concealment of birth (1) Whosoever by any disposition of the dead body of a child, whether the child died before or after or during its birth, wilfully conceals or attempts to conceal the birth of the child, shall be liable to imprisonment for two years. (2) It shall be a sufficient defence to any charge under this section if the accused person shall satisfy the court or jury that the dead body in respect of which the disposition took place had issued from the body of its mother before the expiration of the twenty-eighth week of pregnancy. Division 13A – (Renumbered) (Renumbered as Part 3 Division 14) 85A (Renumbered as sec 86) Division 14 – Kidnapping 86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person’s consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly. (5) A person who takes or detains a child is to be treated as acting without the consent of the child. (6) A person who takes or detains a child does not commit an offence under this section if: (a) the person is the parent of the child or is acting with the consent of a parent of the child, and (b) the person is not acting in contravention of any order of a court relating to the child. (7) In this section:”child” means a child under the age of 16 years.”detaining” a person includes causing the person to remain where he or she is.”parent” of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children.”taking” a person includes causing the person to accompany a person and causing the person to be taken. 87 Child abduction (1) A person who takes or detains a child with the intention of removing or keeping the child from the lawful control of any person having parental responsibility for the child, without the consent of that person, is liable to imprisonment for 10 years. (2) A person who takes or detains a child with the intention of stealing from the child is liable to imprisonment for 10 years. (3) In this section:”child” means a child under the age of 12 years.”detaining a child” includes causing the child to remain where he or she is.”taking a child” includes causing the child to accompany a person and causing the child to be taken. (4) In this section, a reference to a person who has parental responsibility for a child is a reference to: (a) a person who has, in relation to a child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children, or (b) a person authorised to be the carer of the child under an Act relating to the care and protection of children. 88-91 (Repealed) Division 14A – Procuring for prostitution 91A Procuring etc Whosoever procures, entices or leads away any person (not being a prostitute), whether with that person’s consent or not for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for seven years. 91B Procuring person by drugs etc Whosoever by means of any fraud, violence, threat, or abuse of authority, or by the use of any drug or intoxicating liquor, procures, entices, or leads away any person for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for ten years. Division 15 – Child prostitution 91C Definitions For the purposes of this Division: “act of child prostitution” means any sexual service, whether or not involving an indecent act: (a) that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person), and (b) that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child, and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in section 61H) for payment or masturbation committed by one person on another for payment, engaged in by a child. “child” means a person who is under the age of 18 years. 91D Promoting or engaging in acts of child prostitution (1) Any person who: (a) by any means, causes or induces a child to participate in an act of child prostitution, or (b) participates as a client with a child in an act of child prostitution, is liable to imprisonment for 10 years or, if the child is under the age of 14 years, to imprisonment for 14 years. (2) (Repealed) (3) The consent of a child is not a defence to a charge relating to an offence under this section. 91E Obtaining benefit from child prostitution (1) Any person who receives money or any other material benefit knowing that it is derived directly or indirectly from an act of child prostitution is liable to imprisonment for 10 years or, if the act of child prostitution involves a child under the age of 14 years, to imprisonment for 14 years. (2) A person is not guilty of an offence under this section if the person satisfies the court that the money or other material benefit concerned: (a) was received by the person for the lawful provision of goods or services, or (b) was paid or provided in accordance with a judgment or an order of a court or a legislative requirement, whether or not under New South Wales law. (3) The higher maximum penalty under this section in the case of an offence involving a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. 91F Premises not to be used for child prostitution (1) Any person who is capable of exercising lawful control over premises at which a child participates in an act of child prostitution is liable to imprisonment for 7 years. (2) For the purposes of this section, each person: (a) who is an owner, lessee, licensee or occupier of premises, (b) who is concerned in the management of premises or in controlling the entry of persons to, or their movement within, premises, is to be considered as capable of exercising lawful control over the premises, whether or not any other person is capable of exercising lawful control over the premises. (3) A person is not guilty of an offence under this section relating to an act of child prostitution if the person satisfies the court: (a) that the person did not know about the act, or (b) that the person did not know that a child was participating in the act or, for any other reason, did not know that the act was an act of child prostitution, or (c) that the person used all due diligence to prevent the child from participating in the act. Division 15A – Child abuse material 91FA Definitions For the purposes of this Division: “child” means a person who is under the age of 16 years. “child abuse material” –see section 91FB. “data” includes: (a) information in any form, or (b) any program (or part of a program). “material” includes any film, printed matter, data or any other thing of any kind (including any computer image or other depiction). 91FB Child abuse material–meaning (1) In this Division:”child abuse material” means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The “private parts” of a person are: (a) a person’s genital area or anal area, or (b) the breasts of a female person. 91G Children not to be used for production of child abuse material (1) Any person who: (a) uses a child who is under the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 14 years. (2) Any person who: (a) uses a child who is of or above the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) (Repealed) (4) For the purposes of this section, a person may have the care of a child without necessarily being entitled by law to have the custody of the child. (5) Where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 91H Production, dissemination or possession of child abuse material (1) In this section:”disseminate” child abuse material, includes: (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. “possess” child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).”produce” child abuse material includes: (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty: imprisonment for 10 years. 91HA Defences (1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material. (2) It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it. (3) Public benefit It is a defence in proceedings for an offence against section 91H that the conduct engaged in by the defendant: (a) was of public benefit, and (b) did not extend beyond what was of public benefit. (4) Conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in: (a) enforcing or administering a law of the State, or of another State, a Territory or the Commonwealth, or (b) monitoring compliance with, or investigating a contravention of, a law of the State, or of another State, a Territory or the Commonwealth, or (c) the administration of justice. (5) The question of whether a person’s conduct is of public benefit is a question of fact and the person’s motives for engaging in the conduct are irrelevant. (6) Law enforcement officers It is a defence in proceedings for an offence against section 91H that: (a) the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or her duties, and (b) the conduct of the defendant was reasonable in the circumstances for the purpose of performing that duty. (7) Classified material It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC). (8) Approved research It is a defence in proceedings for an offence against section 91G or 91H that the conduct engaged in by the defendant: (a) was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and (b) did not contravene any conditions of that approval. Division 15B – Voyeurism and related offences 91I Definitions (1) In this Division:”building” includes a vehicle, vessel, tent or temporary structure.”private parts” means a person’s genital area or anal area, whether bare or covered by underwear. (2) For the purposes of this Division, a person is “engaged in a private act” if: (a) the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and (b) the circumstances are such that a reasonable person would reasonably expect to be afforded privacy. (3) For the purposes of this Division, a person “films” another person, or another person’s private parts, if the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later). 91J Voyeurism (1) General offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act: (a) without the consent of the person being observed to being observed for that purpose, and (b) knowing that the person being observed does not consent to being observed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act: (a) without the consent of the person being observed to being observed for that purpose, and (b) knowing that the person being observed does not consent to being observed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender observed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. 91K Filming a person engaged in private act (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender filmed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. 91L Filming a person’s private parts (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would expect that his or her private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender filmed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. (7) Double jeopardy A person cannot be convicted of both an offence against this section and an offence against section 91K in respect of conduct occurring on the same occasion. 91M Installing device to facilitate observation or filming (1) Offence A person who, with the intention of enabling that person or any other person to commit an offence against section 91J, 91K or 91L, installs any device, or constructs or adapts the fabric of any building, for the purpose of facilitating the observation or filming of another person, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against this section is a summary offence. (3) Alternative verdict If on the trial of a person charged with an offence against section 91J, 91K or 91L the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against this section, the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against this section. The person is liable to punishment accordingly. Division 16 – Bigamy 92 Bigamy Whosoever, being married, marries another person during the life of the former husband or wife, shall be liable to imprisonment for seven years: Provided that no person shall be convicted under this section whose husband or wife has at the time of such second marriage been continually absent from such person for the space of seven years, or, if domiciled in New South Wales at the time of the first marriage, has been continually absent from New South Wales for the space of five years then last past, and was, on reasonable grounds, believed by the accused at the time of the second marriage not to be living, of which facts the proof shall lie on the accused. See Marriage Act 1961 (Commonwealth), section 94. 93 Participator in bigamy Whosoever, whether married or unmarried, marries the husband or wife of any person not continually so absent, as in the proviso to section 92 mentioned, knowing him or her to be married, and the former wife or husband to be alive, shall be liable to imprisonment for five years. See Marriage Act 1961 (Commonwealth), section 94. Part 3A – Offences relating to public order Division 1 – Riot and affray 93A Definition In this Division: “violence” means any violent conduct, so that: (a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and (b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short). 93B Riot (1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years. (2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously. (3) The common purpose may be inferred from conduct. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Riot may be committed in private as well as in public places. 93C Affray (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) For the purposes of this section, a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as in public places. 93D Mental element under sections 93B and 93C (1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent. (2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence. (3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence. 93E (Repealed) Division 2 – Explosives and firearms offences 93F Interpretation (1) In this Division:”firearm”, “imitation firearm”, “pistol” and “prohibited firearm” have the same meanings as in the Firearms Act 1996.”unregistered firearm” means a firearm that is not registered under the Firearms Act 1996, but does not include any such firearm that is not required to be registered under that Act. (2) For the purposes of this Division, a person who is in a vehicle or vessel in a public place is taken to be in that place. (3) In subsection (2), “vehicle” includes a caravan or anything else constructed to be drawn by a vehicle or animal. 93FA Possession, supply or making of explosives (1) A person who possesses an explosive in a public place is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) A person who possesses, supplies or makes an explosive, under circumstances that give rise to a reasonable suspicion that the person did not possess, supply or make the explosive for a lawful purpose, is guilty of an offence. Maximum penalty: Imprisonment for 3 years or 50 penalty units, or both. (3) (Repealed) (4) A person is not guilty of an offence against subsection (1) or (2) for possessing or making an explosive if the person satisfies the court that he or she had a reasonable excuse for doing so or did so for a lawful purpose. 93FB Possession of dangerous articles other than firearms (1) A person who, in a public place, possesses: (a) anything (not being a firearm within the meaning of the Firearms Act 1996) capable of discharging by any means: (i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or (ii) any substance capable of causing bodily harm, or (b) a fuse capable of use with an explosive or a detonator, or (c) a detonator, is liable, on conviction before the Local Court, to imprisonment for 2 years, or a fine of 50 penalty units, or both. (2) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose. (3) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) (a) if the person satisfies the court that he or she possessed it for the purpose of self-defence and that it was reasonable in the circumstances to possess it for that purpose. (4) In considering a defence under subsection (3), the court must have regard to its reasonableness in all the circumstances of the case, including: (a) the immediacy of the perceived threat to the person charged, and (b) the circumstances, such as the time and location, in which the thing was possessed, and (c) the type of thing possessed, and (d) the age, characteristics and experiences of the person charged. 93G Causing danger with firearm or spear gun (1) Any person who: (a) possesses a loaded firearm or loaded spear gun: (i) in a public place, or (ii) in any other place so as to endanger the life of any other person, or (b) fires a firearm or spear gun in or near a public place, or (c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person, is liable to imprisonment for 10 years. (2) For the purposes of this section: (a) a firearm is to be regarded as being loaded if there is ammunition: (i) in its chamber or barrel, or (ii) in any magazine or other device which is in such a position that the ammunition can be fitted into its chamber or barrel by operation of some other part of the firearm, and (b) a spear gun is to be regarded as being loaded if a spear, or an instrument or thing similar to a spear, is fitted to it. (3) A person is not guilty of an offence under this section for possessing or doing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or doing it or possessed it or did it for a lawful purpose. 93GA Firing at dwelling-houses or buildings (1) A person who fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 14 years. (1A) A person who, during a public disorder, fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. (1B) A person who, in the course of an organised criminal activity, fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. (2) In the prosecution of an offence under this section, it is not necessary to prove that a person was actually placed in danger by the firing of the firearm. (3) If, on the trial of a person for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 93G or 93H, it may find the person not guilty of the offence charged but guilty of an offence under section 93G or 93H, and the accused is liable to punishment accordingly. (4) If, on the trial of a person for an offence under subsection (1A) or (1B), the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), it may find the person not guilty of the offence charged but guilty of an offence under subsection (1), and the accused is liable to punishment accordingly. 93H Trespassing with or dangerous use of firearm or spear gun (1) A person who, possessing a firearm, imitation firearm, spear gun or imitation spear gun, enters any building or land (other than a road), unless the person: (a) is the owner or occupier of the building or land or has the permission of the owner or occupier, or (b) does so with a reasonable excuse, or (c) does so for a lawful purpose, is liable to imprisonment for 5 years. (2) A person who fires a firearm or spear gun in or into any building or on or on to any land, unless the person: (a) is the owner or occupier of the building or land or has the permission of the owner or occupier, or (b) does so with a reasonable excuse, or (c) does so for a lawful purpose, is liable to imprisonment for 10 years. (3) The onus of proving the matters referred to in subsection (1) (a), (b) and (c) and subsection (2) (a), (b) and (c) lies with the defendant. 93I Possession of unregistered firearm in public place (1) A person who: (a) possesses an unregistered firearm in a public place, and (b) is not authorised under the Firearms Act 1996 to possess the firearm, is liable to imprisonment for 10 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) For the purposes of subsection (2), an offence under subsection (1) is committed in “circumstances of aggravation” if the offence involves the possession: (a) of more than one unregistered firearm, or (b) of an unregistered firearm that is a pistol, or (c) of an unregistered firearm that is a prohibited firearm. Division 3 – Contamination of goods 93J Definitions of “contaminate” and “goods” (1) In this Division:”contaminate” goods includes: (a) interfere with the goods, or (b) making it appear that the goods have been contaminated or interfered with. “goods” includes any substance or article: (a) whether or not for human consumption, and (b) whether natural or manufactured, and (c) whether or not incorporated or mixed with other goods. (2) In this Division, a reference to economic loss caused through public awareness of the contamination of goods includes a reference to economic loss caused through: (a) members of the public not purchasing or using those goods or similar goods, or (b) steps taken to avoid public alarm or anxiety about those goods or similar goods. 93K Contaminating goods with intent to cause public alarm or economic loss A person who contaminates goods with the intention of: (a) causing public alarm or anxiety, or (b) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. 93L Threatening to contaminate goods with intent to cause public alarm or economic loss (1) A person who makes a threat that goods will be contaminated with the intention of: (a) causing public alarm or anxiety, or (b) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. (2) For the purposes of this section, a threat may be made by any act, and may be explicit or implicit and conditional or unconditional. 93M Making false statements concerning contamination of goods with intent to cause public alarm or economic loss (1) A person who makes a statement that the person believes to be false: (a) with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated, and (b) with the intention of thereby: (i) causing public alarm or anxiety, or (ii) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. (2) For the purposes of this section, making a statement includes conveying information by any means. 93N Aggravated circumstances–unwarranted demand (1) A person is guilty of an offence against this section if the person commits an offence under section 93K, 93L or 93M in connection with an unwarranted demand by the person. An unwarranted demand is a demand that the person believes he or she does not have any reasonable grounds for making. (2) A person convicted of an offence against this section is liable to imprisonment for 14 years. (3) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 93K, 93L or 93M, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 93O Aggravated circumstances–death or grievous bodily harm (1) A person is guilty of an offence against this section if the person commits an offence against section 93K or 93L and: (a) the contamination of the goods causes the death of any person or grievous bodily harm to any person, or (b) the person intends by that contamination to cause such death or harm. (2) A person convicted of an offence against this section is liable to imprisonment for 25 years. (3) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 93K or 93L, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 93P Special provisions relating to geographical application of this Division (1) A person commits an offence against a provision of this Division if: (a) the person does an act outside the State that constitutes the offence, and (b) (apart from this section) the act would have constituted the offence had it been done within this State, and (c) the offence involves intending to cause public alarm or anxiety, or economic loss, within the State. (2) A person who commits an offence by the operation of this section may be dealt with, and is liable to the same punishment, as if the person had committed the offence within the State. (3) If an offence against a provision of this Division involves intending to cause public alarm or anxiety, or economic loss, within the State, a geographical nexus between the State and any other element of the offence is not required. (4) The other provisions of this Act, the provisions of other Acts and the common law, in so far as these are applicable, apply to an offence to which this section applies as if it had been committed within the State (for example, section 344A and the rules of law relating to attempts to commit offences apply to such an offence). (5) This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. Division 4 – Bomb and other hoaxes 93Q Conveying false information that a person or property is in danger (1) A person who conveys information: (a) that the person knows to be false or misleading, and (b) that is likely to make the person to whom the information is conveyed fear for the safety of a person or of property, or both, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) This section extends to conveying information by any means including making a statement, sending a document, or transmitting an electronic or other message. (3) In this section, a reference to the safety of a person includes the safety of the person who conveys the information and the person to whom it is conveyed. 93R Leaving or sending an article with intent to cause alarm (1) A person: (a) who leaves in any place, or sends by any means, a substance or article, and (b) who intends to induce a false belief that the substance or article is likely to be a danger to the safety of a person or of property, or both, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) For the purposes of this section, a false belief that a substance or article is likely to be a danger includes a false belief that the substance or article is likely to explode, ignite, or contain, consist of or discharge a dangerous matter. Division 5 – Criminal groups 93S Definitions (1) In this Division:”criminal group” means a group of 3 or more people who have as their objective or one of their objectives: (a) obtaining material benefits from conduct that constitutes a serious indictable offence, or (b) obtaining material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence, or (c) committing serious violence offences, or (d) engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence. “law enforcement officer” has the same meaning as it has in Division 8A of Part 3.”serious violence offence” means an offence punishable by imprisonment for life or for a term of 10 years or more, where the conduct constituting the offence involves: (a) loss of a person’s life or serious risk of loss of a person’s life, or (b) serious injury to a person or serious risk of serious injury to a person, or (c) serious damage to property in circumstances endangering the safety of any person, or (d) perverting the course of justice (within the meaning of Part 7) in relation to any conduct that, if proved, would constitute a serious violence offence as referred to in paragraph (a), (b) or (c). (2) A group of people is capable of being a criminal group for the purposes of this Division whether or not: (a) any of them are subordinates or employees of others, or (b) only some of the people involved in the group are involved in planning, organising or carrying out any particular activity, or (c) its membership changes from time to time. 93T Participation in criminal groups (1) A person who participates in a criminal group is guilty of an offence if the person: (a) knows, or ought reasonably to know, that it is a criminal group, and (b) knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 5 years. (1A) A person who participates in a criminal group by directing any of the activities of the group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 10 years. (2) A person who assaults another person, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) A person who destroys or damages property belonging to another person, or threatens to destroy or damage property belonging to another person, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) A person who assaults a law enforcement officer while in the execution of the officer’s duty, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (4A) A person who participates in a criminal group whose activities are organised and on-going by directing any of the activities of the group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 15 years. (5) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the law enforcement officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. 93TA Receiving material benefit derived from criminal activities of criminal groups (1) A person who receives from a criminal group a material benefit that is derived from the criminal activities of the criminal group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, the benefit is derived from criminal activities of the criminal group. Maximum penalty: Imprisonment for 5 years. (2) In this section, a material benefit “derived” from the criminal activities of a criminal group is a material benefit derived or realised, or substantially derived or realised, directly or indirectly, from the criminal activities of a group. 93U Alternative verdicts (1) If, on the trial of a person for an offence under section 93T (1A), (2), (3), (4) or (4A), the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under section 93T (1), it may find the accused not guilty of the offence charged but guilty of an offence under section 93T (1), and the accused is liable to punishment accordingly. (2) If, on the trial of a person for an offence under section 93T (1), (1A) or (4A), the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under section 93TA, it may find the accused not guilty of the offence charged but guilty of an offence under section 93TA, and the accused is liable to punishment accordingly. Division 6 – Unlawful gambling 93V Offence of conducting unlawful gambling operation (1) A person who conducts an unlawful gambling operation is guilty of an offence. Maximum penalty: 1,000 penalty units or imprisonment for 7 years (or both). (2) For the purposes of subsection (1), “an unlawful gambling operation” means an operation involving at least 2 of the following elements (one of which must be paragraph (d)): (a) the keeping of at least 2 premises (whether or not either or both are gambling premises) that are used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998, (b) substantial planning and organisation in relation to matters connected with any such form of prohibited gambling (as evidenced by matters such as the number of persons, and the amount of money and gambling turnover, involved in the operation), (c) the use of sophisticated methods and technology (for example, telephone diverters, telecommunication devices, surveillance cameras and encrypted software programs) in connection with any such form of prohibited gambling or in avoiding detection of that gambling, (d) a substantial loss of potential revenue to the State that would be derived from lawful forms of gambling. (3) In any proceedings for an offence under this section, evidence that persons have been in regular attendance at premises suspected of being used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998 is relevant to the matters referred to in subsection (2) (a) or (b). (4) In this section:”conduct” includes organise or manage.”gambling premises” has the same meaning as in the Unlawful Gambling Act 1998. Division 7 – Consorting 93W Definitions In this Division: “consort” means consort in person or by any other means, including by electronic or other form of communication. “convicted offender” means a person who has been convicted of an indictable offence (disregarding any offence under section 93X). 93X Consorting (1) A person who: (a) habitually consorts with convicted offenders, and (b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence. Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both. (2) A person does not “habitually consort” with convicted offenders unless: (a) the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and (b) the person consorts with each convicted offender on at least 2 occasions. (3) An “official warning” is a warning given by a police officer (orally or in writing) that: (a) a convicted offender is a convicted offender, and (b) consorting with a convicted offender is an offence. 93Y Defence The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances: (a) consorting with family members, (b) consorting that occurs in the course of lawful employment or the lawful operation of a business, (c) consorting that occurs in the course of training or education, (d) consorting that occurs in the course of the provision of a health service, (e) consorting that occurs in the course of the provision of legal advice, (f) consorting that occurs in lawful custody or in the course of complying with a court order. Part 4 – Stealing and similar offences Division 1 – General 94AA Property previously stolen Where on the trial of a person for any offence which includes the stealing of any property it appears that the property was, at the time when it was taken by the accused, already out of the possession of the owner by reason of its having been previously stolen, the accused may be convicted of the offence charged notwithstanding that it is not proved that the taking by him or her amounted to an interference with the right to possession of, or a trespass against, the owner. Division 2 – Robbery 94 Robbery or stealing from the person Whosoever: robs or assaults with intent to rob any person, or steals any chattel, money, or valuable security from the person of another, shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years. 95 Same in circumstances of aggravation (1) Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years. (2) In this section, “circumstances of aggravation” means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following: (a) the alleged offender uses corporal violence on any person, (b) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (c) the alleged offender deprives any person of his or her liberty. 96 Same (robbery) with wounding Whosoever commits any offence under section 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to imprisonment for 25 years. 97 Robbery etc or stopping a mail, being armed or in company (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (3) Alternative verdict If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 98 Robbery with arms etc and wounding Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years. Division 3 – Demanding property with intent to steal 99 Demanding property with intent to steal (1) Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to imprisonment for ten years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) It is immaterial whether any such menace is of violence or injury by the offender or by any other person. 100-105 (Repealed) Division 4 – Sacrilege and housebreaking 105A Definitions (1) In sections 106-115A:”building” includes any place of Divine worship.”circumstances of aggravation” means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. “circumstances of special aggravation” means circumstances involving any or all of the following: (a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person, (b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person, (c) the alleged offender is armed with a dangerous weapon. (2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of “circumstances of aggravation”, or (b) paragraph (a) or (b) of the definition of “circumstances of special aggravation”, can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred. (2A) For the purposes of paragraph (f) of the definition of “circumstances of aggravation”, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place. (3) The definitions in subsection (1) are not mutually exclusive. 106-108 (Repealed) 109 Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence (1) Whosoever: enters the dwelling-house of another, with intent to commit a serious indictable offence therein, or, being in such dwelling-house commits any serious indictable offence therein, and in either case breaks out of the said dwelling-house shall be liable to imprisonment for fourteen years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 110 Breaking, entering and assaulting with intent to murder etc Whosoever breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 25 years. 111 Entering dwelling-house (1) Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. 112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 113 Breaking etc into any house etc with intent to commit serious indictable offence (1) A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence and liable to imprisonment for 10 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. 114 Being armed with intent to commit indictable offence (1) Any person who: (a) is armed with any weapon, or instrument, with intent to commit an indictable offence, (b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance, (c) has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence, (d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building, shall be liable to imprisonment for seven years. (2) For the purposes of subsection (1) (b) “conveyance” means any cab, carriage, motor car, caravan, trailer, motor lorry, omnibus, motor or other bicycle, or any ship, or vessel, used in or intended for navigation, and “drive” shall be construed accordingly. 115 Being convicted offender armed with intent to commit indictable offence Whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years. 115A Alternative verdicts (1) Aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. This subsection does not apply to an offence if the jury proceeds under subsection (2) in relation to it. Division 5 – Larceny 116 All larcenies to be of same nature Every larceny, whatever the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the passing of the Act seventh and eighth George the Fourth, chapter twenty-nine. 117 Punishment for larceny Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. 118 Intent to return property no defence Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal. 119 Verdict where several takings proved Where, on the trial of a person for larceny, it appears that the property alleged in any count to have been stolen at one time, was taken at different times, the prosecutor shall not be required to elect upon which taking the prosecutor will proceed, unless the Judge so orders: Provided always that evidence shall not in any such case be given of any taking which occurred more than six months in point of time from any other of such takings. 120 Trial for larceny–verdict of embezzlement etc Where, on the trial of a person for larceny, it appears that the person took the property in such manner as to amount in law to the offence of embezzlement or fraudulent misappropriation, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, or of obtaining property by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, the jury may acquit the person of the larceny charged, and find the person guilty of such other offence, and the person shall be liable to punishment accordingly. 121 Verdict of “larceny or receiving” Where, on the trial of a person charged with larceny, or any offence which includes larceny, and, also, with having unlawfully received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that the person either stole, or unlawfully received, such property, and that they are unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the unlawful receiving, whichever of the two offences is subject to the lesser punishment. 122 Verdict where persons indicted for joint larceny or receiving On the trial of any two, or more, persons charged with larceny, and also with having unlawfully received property, the jury may find all, or any, of such persons guilty, either of stealing, or unlawfully receiving, the property, or part or parts thereof, or may find one, or more, of the said persons guilty of stealing, and the other, or others, of them guilty of unlawfully receiving the property, or part or parts thereof. 123 Verdict of minor indictable offence Where, on the trial of a person for larceny, it appears that the property in question was taken, appropriated, or retained, under circumstances amounting to a minor indictable offence, the jury may acquit the person of the offence charged and find the person guilty of the minor indictable offence, and the person shall be liable to punishment accordingly. 124 Fraudulent appropriation Where, upon the trial of a person for larceny, it appears: (a) that the person had fraudulently appropriated to his or her own use or that of another, the property in respect of which the person is indicted, although the person had not originally taken the property with any fraudulent intent, or (b) that the person had fraudulently retained the property in order to secure a reward for its restoration, the jury may return a verdict accordingly, and thereupon the person shall be liable to imprisonment for two years, or to a fine of 20 penalty units, or both. 125 Larceny by bailee Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part thereof, or any property into or for which it has been converted, or exchanged, to his or her own use, or the use of any person other than the owner thereof, although he or she does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indicted for that offence. The accused shall be taken to be a bailee within the meaning of this section, although he or she may not have contracted to restore, or deliver, the specific property received by him or her, or may only have contracted to restore, or deliver, the property specifically. 126 Stealing cattle or killing with intent to steal Whosoever: steals any cattle, or wilfully kills any cattle with intent to steal the carcass, or skin, or other part, of the cattle so killed, shall be liable to imprisonment for fourteen years. 127 Stealing or killing cattle–uncertainty as to sex or age not to entitle to acquittal Where, on the trial of a person for an offence under section 126 it appears that the person stole, or killed, an animal of the species described in the indictment, but it is uncertain on the evidence what was its sex, or age, such person shall not be entitled to acquittal by reason only of such uncertainty. 128 Trial for stealing cattle–verdict of stealing skins Where, on the trial of a person for stealing cattle, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of stealing the carcass, or skin, or part, of such cattle, or of killing the said cattle within section 126, they may acquit the person of the offence charged, and find the person guilty of such last-mentioned stealing, or killing, and the person shall be liable to punishment accordingly. 129 Trial for killing cattle–verdict of stealing Where, on the trial of a person for the offence of killing cattle within the meaning of section 126, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of stealing such cattle, they may acquit the person of the offence charged, and find the person guilty of such stealing, and the person shall be liable to punishment accordingly. 130 Trial for stealing cattle–verdict of misdemeanour Where, on the trial of a person for stealing cattle, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 131, they may acquit the person of the offence charged, and find the person guilty of an offence under the said last mentioned section, and the person shall be liable to punishment accordingly. 131 Unlawfully using etc another person’s cattle Whosoever: takes and works, or otherwise uses, or takes for the purpose of working, or using, any cattle the property of another person without the consent of the owner, or person in lawful possession thereof, or takes any such cattle for the purpose of secreting the same, or obtaining a reward for the restoration or pretended finding thereof, or for any other fraudulent purpose, or fraudulently brands, or ear-marks, or defaces, or alters, the brands or ear-marks of any cattle the property of another person, shall be liable to imprisonment for three years. 132 Stealing dogs Whosoever, having been summarily convicted under this or any former Act, of any such offence as is hereinafter in this section mentioned, afterwards, steals any dog, or has unlawfully in his or her possession any stolen dog, or the skin of any stolen dog, knowing such dog to have been stolen, shall be liable to imprisonment for one year. 133 Taking money to restore dogs Whosoever corruptly takes any money or reward, directly or indirectly, under pretence, or upon account, of aiding any person to recover any dog which has been stolen, or which is in the possession of any person other than its owner, shall be liable to imprisonment for one year. 134 Stealing, destroying etc valuable security Whosoever steals, embezzles, or for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any valuable security, shall be liable, as if he or she had stolen a chattel, to be punished as for larceny. 135 Stealing, destroying etc wills or codicils Whosoever steals, or, for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any will, codicil, or other testamentary instrument, either during the life of the testator, or after the testator’s death, or whether the same relates to real, or personal estate, or to both, shall be liable to imprisonment for seven years. 136 Proviso to sections 134 and 135 No person shall be convicted under section 134 or section 135 in respect of any act done by the person, if, before being charged with the offence, the person first disclosed such act on oath, under compulsory process, in a proceeding instituted in good faith by a party aggrieved, or under compulsory examination in some matter in bankruptcy, or insolvency, or under compulsory examination in some matter in the liquidation of a corporation. 137 Civil remedies not affected by conviction (1) Nothing in section 134 or in section 135, nor any proceeding, conviction, or judgment thereupon, shall affect any remedy at law, or in equity, which any party aggrieved would have had if this Act had not been passed. (2) No evidence of the conviction of any person under either of the said sections shall be admissible in any action, or suit, against the person. 138 Stealing, destroying etc records etc of any court or public office Whosoever steals, or for any fraudulent purpose, takes from its place of deposit, for the time being, or from any person having the lawful custody thereof, or unlawfully and intentionally or recklessly cancels, obliterates, injures, or destroys, the whole or any part, of any record, document, or writing, of, or belonging to, any Court, or relating to any matter or cause, civil or criminal, pending, or terminated, in any Court, or relating to the business of any office or employment under Her Majesty, and being in any public office, shall be liable to imprisonment for seven years. 139 Stealing etc metal, glass, wood etc fixed to house or land Whosoever steals, or rips, cuts, severs, or breaks with intent to steal, any glass, or woodwork, belonging to any building, or any metal, or any utensil, or fixture, whether made of metal or other material, or of both respectively, fixed in, or to, any building, or anything made of metal, fixed in any land being private property, or used as a fence to any dwelling-house, garden, or area, or being in any square, or street, or in, or on, any place dedicated to public use or ornament, or in any burial-ground, shall be liable to be punished as for larceny. 140 Stealing etc trees etc in pleasure-grounds etc Whosoever: steals, or destroys or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood, growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground belonging to any dwelling-house, where the value of the article stolen, or the amount of injury done, exceeds two dollars, or steals, or destroys or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood respectively growing elsewhere than in any situation beforementioned, where the value of the article stolen, or the amount of injury done, exceeds ten dollars, shall be liable to be punished as for larceny. 141-147 (Repealed) 148 Stealing property in a dwelling-house Whosoever steals in a dwelling-house any property shall be liable to imprisonment for seven years. 149 The same with menaces Whosoever steals any property in a dwelling-house, and uses thereafter any menace or threat to any person therein, shall be liable to imprisonment for fourteen years. 150 Stealing goods in process of manufacture Whosoever steals, to the value of one dollar, any goods, article, or material, while anywhere placed, or exposed, during the process or progress of manufacture, shall be liable to imprisonment for a term not exceeding three years. 151 Selling etc materials to be manufactured Whosoever, being, for the purpose of manufacture, or any special purpose connected with manufacture, employed to make, prepare, or work up, any goods, article, or material, or being for any such purpose entrusted with any such goods, article, or material, or with any tools, or apparatus, sells, pawns, purloins, secretes, embezzles, exchanges, or otherwise fraudulently disposes of the same, or any part thereof, shall be liable to imprisonment for four years. 152 Stealing from ship in port or on wharfs etc Whosoever: steals any property in any vessel, barge, or boat, while in any haven, or port, or upon any navigable river, or canal, or in any creek, or basin, belonging to, or communicating with, any such haven, port, river, or canal, or steals any property from any dock, wharf, or quay, shall be liable to imprisonment for seven years. 153 Stealing from ship in distress or wrecked Whosoever steals, or plunders, any part of any vessel in distress, or wrecked, stranded, or cast on shore, or any property of any kind to the value of two dollars belonging to such vessel, shall be liable to imprisonment for ten years. 154 Tenants etc stealing articles let to hire Whosoever, being the tenant, or occupier, of any house, building, or lodging, steals any chattel, or fixture let to be used therewith, whether the contract was entered into by the accused, or by any person on his or her behalf, shall be liable to be punished as for larceny. 154A Taking a conveyance without consent of owner (1) Any person who: (a) without having the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose, or (b) knowing that any conveyance has been taken without such consent, drives it or allows himself or herself to be carried in or on it, shall be deemed to be guilty of larceny and liable to be indicted for that offence. (2) For the purposes of this section “conveyance” means any cart, wagon, cab, carriage, motor car, caravan, trailer, motor lorry, tractor, earth moving equipment, omnibus, motor or other bicycle, tank or other military vehicle, or any ship, or vessel, used or intended for navigation, and “drive” shall be construed accordingly. 154AA (Repealed) 154B Stealing aircraft and unlawfully taking or exercising control of aircraft (1) Whosoever steals any aircraft shall be liable to imprisonment for ten years. (2) Whosoever without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for seven years. (3) Whosoever without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft while another person, not being an accomplice of the first-mentioned person, is on board the aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for fourteen years. (4) Whosoever without lawful excuse, by force or violence or threat of force or violence, or by any trick or false pretence, takes or exercises control, whether direct or through another person, of an aircraft while another person, not being an accomplice of the first-mentioned person, is on board the aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for twenty years. 154C Taking motor vehicle or vessel with assault or with occupant on board (1) A person who: (a) assaults another person with intent to take a motor vehicle or vessel and, without having the consent of the owner or person in lawful possession of it, takes and drives it, or takes it for the purpose of driving it, or (b) without having the consent of the owner or person in lawful possession of a motor vehicle or vessel, takes and drives it, or takes it for the purpose of driving it, when a person is in or on it, is liable to imprisonment for 10 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) In this section:”circumstances of aggravation” means circumstances involving any one or more of the following: (a) the alleged offender is in the company of another person or persons, (b) the alleged offender is armed with an offensive weapon or instrument, (c) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person. “drive” includes operate.”motor vehicle” means a motor vehicle within the meaning of the Road Transport (General) Act 2005.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 154D Stealing firearms (1) A person who steals a firearm is liable to imprisonment for 14 years. (2) In this section:”firearm” has the same meaning as in the Firearms Act 1996, and includes an imitation firearm within the meaning of that Act. Division 5A – Offences relating to theft of motor vehicles and vessels 154E Definitions (1) In this Division:”interfere” with a thing includes alter, deface, remove, obliterate, conceal or add anything to the thing.”motor vehicle” means: (a) a motor vehicle within the meaning of the Road Transport (General) Act 2005 (whether or not the vehicle contains the motor intended to form part of it), or (b) a motor intended to form part of, or capable of forming part of, any such motor vehicle, or (c) any part of any such motor vehicle containing, or consisting of, an identification plate for a vehicle under the Motor Vehicle Standards Act 1989 of the Commonwealth. “unique identifier” means any numbers, letters, symbols or other identification information: (a) marked on or attached to a motor vehicle or vessel, or a part of a motor vehicle or vessel, or (b) marked on a thing that is designed to be attached to a motor vehicle or vessel, or a part of the motor vehicle or vessel, or (c) stored in electronic form in a part of a motor vehicle or vessel, for the primary purpose of: (d) enabling a particular motor vehicle, vessel or part to be distinguished from all other motor vehicles, vessels or parts (including by enabling a part to be identified as a part of a particular motor vehicle or vessel), or (e) identifying different motor vehicle or vessel production batches (including by enabling a part to be identified as a part of a motor vehicle or vessel of a particular production batch). “vessel” means a vessel within the meaning of the Marine Safety Act 1998. (2) For the purposes of this Division, a “part” of a motor vehicle or vessel includes a thing (such as a key) manufactured in connection with the motor vehicle or vessel that enables the operation of the motor vehicle or vessel or prevents the unauthorised operation of the motor vehicle or vessel. 154F Stealing motor vehicle or vessel A person who steals a motor vehicle or vessel is guilty of an offence. Maximum penalty: imprisonment for 10 years. 154G Facilitating organised car or boat rebirthing activities (1) A person who facilitates a car or boat rebirthing activity that is carried out on an organised basis knowing that: (a) it is a car or boat rebirthing activity, and (b) it is carried out on an organised basis, is guilty of an offence. Maximum penalty: imprisonment for 14 years. (2) For the purposes of this section, a “car or boat rebirthing activity” is an activity involving one or more of the following: (a) the stealing of a motor vehicle or vessel or the receiving of a stolen motor vehicle or stolen vessel, (b) the interference with a motor vehicle or vessel, or a part of a motor vehicle or vessel, or a unique identifier, for the purpose of concealing the fact that a motor vehicle or vessel, or any part of a motor vehicle or vessel, is stolen, (c) the affixing of stolen parts to a motor vehicle or vessel, (d) the interference with a unique identifier, being a unique identifier that wholly or partly identifies a motor vehicle or vessel for registration under a law of any jurisdiction, for the purpose of disguising or misrepresenting the identity of a motor vehicle or vessel, (e) the registration, in this or any other jurisdiction, of a stolen motor vehicle or stolen vessel, or of a motor vehicle or vessel that has had stolen parts affixed to it, (f) the supply of, or offering to supply, a stolen motor vehicle or stolen vessel. (3) A person “facilitates” a car or boat rebirthing activity if the person: (a) takes, or participates in, any step, or causes any step to be taken, that is part of the activity, or (b) provides or arranges finance for any step that is part of the activity, or (c) provides the premises in which any step that is part of the activity is taken, or allows any step that is part of the activity to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management. (4) A car or boat rebirthing activity is carried out on an “organised basis” if: (a) it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant, and (b) it is carried out for profit or gain. (5) In proceedings for an offence against this section, for the purpose of proving that an activity was carried out on an organised basis, or that the accused knew it was carried out on an organised basis, it is not necessary to prove: (a) that the accused knew any of the participants in the activity or that any of the participants knew each other, or (b) that the activity was planned, organised, structured or otherwise carried out under the direction of any particular person or persons or in any hierarchical manner, or (c) that the same participants were involved on each occasion on which the activity was carried out. 154H Making, using and interfering with unique identifiers (1) A person who: (a) dishonestly interferes with, or copies, a unique identifier, or (b) possesses a motor vehicle or vessel, or a part of a motor vehicle or vessel, with the intention of dishonestly interfering with, or copying, a unique identifier, or (c) dishonestly makes a unique identifier, or a purported unique identifier, or (d) knowingly induces another person to accept any information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier for the motor vehicle, vessel or part, when the information is not in fact a genuine unique identifier for that motor vehicle, vessel or part, is guilty of an offence. Maximum penalty: imprisonment for 7 years. (2) For the purposes of this section, information is “attached” to a motor vehicle, vessel or a part of a motor vehicle or vessel if it is: (a) marked on or attached to the motor vehicle, vessel or part, or (b) marked on a thing attached to the motor vehicle, vessel or part, or (c) stored in electronic form in a part of the motor vehicle or vessel. (3) In proceedings for an offence against this section, if it is necessary to allege a person knowingly induced another person to accept information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier for the motor vehicle, vessel or part, it is not necessary to allege that the accused knowingly induced a particular person to accept the information as a genuine unique identifier. (4) In this section, a reference to inducing a person to accept information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier includes a reference to causing a computer to respond to the information attached to the motor vehicle, vessel or part as if it were a genuine unique identifier. (5) In this section:”information” includes numbers, letters or symbols. 154I Possession of motor vehicle or vessel where unique identifier has been interfered with (1) A person who dishonestly has possession of a motor vehicle or vessel, or a part of a motor vehicle or vessel, a unique identifier of which has been interfered with, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (2) For the purposes of this section, a person “dishonestly” has possession of a thing if: (a) the person obtained or received the thing dishonestly, or (b) the person intends to register, supply or use the thing dishonestly. 154J Possession of vehicle identification plate not attached to motor vehicle (1) A person is guilty of an offence if the person, without reasonable excuse, knowingly has possession of a vehicle identification plate not attached to the motor vehicle to which it relates. Maximum penalty: imprisonment for 5 years. (2) The onus of proof of reasonable excuse in proceedings for an offence against this section lies on the accused. (3) In this section:”motor vehicle” means a motor vehicle within the meaning of the Road Transport (General) Act 2005 (whether or not the vehicle contains the motor intended to form part of it).”vehicle identification number” means a vehicle identification number allocated to a vehicle in accordance with the national standards under the Motor Vehicle Standards Act 1989 of the Commonwealth.”vehicle identification plate” means a plate, label or other thing that has a vehicle identification number on it, is designed to be attached to a motor vehicle and which: (a) enables the motor vehicle to be identified for the purposes of registration under a law of any jurisdiction, or (b) includes information relating to the manufacture of the motor vehicle or compliance with the national standards under the Motor Vehicle Standards Act 1989 of the Commonwealth. Division 6 – Embezzlement or larceny 155 Definition of clerk or servant Every person employed for any purpose, as, or in the capacity of, a clerk, or servant, or as a collector of moneys, although temporarily only, or employed also by other persons, or employed to pay as well as receive moneys, or although the person had no authority from his or her employer to receive money, or other property, on his or her account, shall be deemed a clerk, or servant. 156 Larceny by clerks or servants Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his or her master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years. 157 Embezzlement by clerks or servants Whosoever, being a clerk, or servant, fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her, for, or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant, and shall be liable to imprisonment for ten years. 158 (Repealed) 159 Larceny by persons in Public Service Whosoever, being employed in the Public Service, steals any property, or any part thereof, intrusted to him or her, or taken into his or her possession, or being in his or her custody, or under his or her control, by virtue or colour of such employment, shall be liable to imprisonment for ten years. 160 Embezzlement etc by persons in the Public Service Whosoever, being employed in the Public Service, fraudulently embezzles any property, or any part thereof, so intrusted to him or her, or taken into his or her possession, or being in his or her custody, or under his or her control, or fraudulently secretes, removes, or in any manner fraudulently applies, or disposes of, the same, or any part thereof, shall be deemed to have stolen the same, and shall be liable to imprisonment for ten years. 161 Proof of general deficiency in accounts On the prosecution of a person for larceny, or embezzlement as a clerk, or servant, or as a person employed in the Public Service, where the charge is in respect of money, it shall not be necessary to prove the larceny, or embezzlement, by the accused of any specific sum of money, if there is proof of a general deficiency on the examination of the books of account, or entries kept, or made by him or her, or otherwise, and the jury are satisfied that he or she stole, or fraudulently embezzled the deficient money, or any part thereof. 162 Larceny etc by joint owners Whosoever, being a member of any copartnership, or being one of two, or more, joint owners, steals, or embezzles, any property of, or belonging to, such copartnership, or joint owners, may be convicted of, and punished for, the offence as if he or she was not a member of the copartnership, or one of such joint owners. “Copartnership” shall, for the purposes of this section, include all corporations and societies whatsoever. 163 Trial for embezzlement–verdict of larceny Where, on the trial of any person for embezzlement, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, it appears that the person obtained the property in such manner as to amount in law to larceny, the jury may acquit the person of the offence charged, and find the person guilty of larceny, or of larceny as such clerk, servant, or person, as the case may be, and the person shall be liable to punishment accordingly. 164-186 (Repealed) Division 16 – Receivers 187 Term “stealing” in sections 188 and 189 For the purposes of sections 188 and 189: “Stealing” includes the taking, extorting, obtaining, embezzling, or otherwise disposing of the property in question. 188 Receiving stolen property where stealing a serious indictable offence (1) Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof amounts to a serious indictable offence, knowing the same to have been stolen, shall be guilty of a serious indictable offence, and may be indicted, either as an accessory after the fact, or for a substantive offence, and in the latter case whether the principal offender has been previously tried or not, or is amenable to justice or not, and in either case is liable: (a) if the property is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 12 years, or (b) in the case of any other property, to imprisonment for 10 years. (2) In this section:”motor vehicle” has the same meaning as it has in Division 5A.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 189 Receiving etc where principal guilty of minor indictable offence Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof is a minor indictable offence, knowing the same to have been stolen, shall be guilty of a minor indictable offence, and whether the person guilty of the principal offence has been previously tried or not, or is amenable to justice or not, shall be liable to imprisonment for three years. 189A Receiving etc goods stolen out of New South Wales (1) Whosoever, without lawful excuse, receives or disposes of, or attempts to dispose of, or has in his or her possession, any property stolen outside the State of New South Wales, knowing the same to have been stolen, and whether or not he or she took part in the stealing of the property, shall be liable to imprisonment for ten years. (2) For the purposes of this section property shall be deemed to have been stolen if it has been taken, extorted, obtained, embezzled, converted, or disposed of under such circumstances that if the act had been committed in the State of New South Wales the person committing it would have been guilty of an indictable offence according to the law for the time being of the State of New South Wales. (3) No person shall be liable to conviction under this section if the taking, extorting, obtaining, embezzling, converting, or disposing is not a criminal offence in the country in which the act is committed. 189B Prosecution under section 188 or 189 where property stolen in course of transmission (1) Where in the trial of a person for the offence under section 188 or 189 of receiving, or disposing of, or attempting to dispose of, any property knowing it to have been stolen, it is proved that the property was stolen in the course of transmission between New South Wales and any other jurisdiction or between any other jurisdiction and New South Wales: (a) the person shall be liable to be convicted of the offence without proof that the stealing took place in New South Wales, and (b) for the purpose of determining whether or not the stealing amounts to a serious indictable offence or a minor indictable offence, the stealing shall be deemed to have taken place in New South Wales. (2) For the purposes of subsection (1) “other jurisdiction” means a State (other than New South Wales) or Territory of the Commonwealth. 190 Receiving etc cattle unlawfully killed, or carcass etc Whosoever: receives any animal, unlawfully killed, with intent to steal the carcass, or skin, or other part thereof, knowing the same to have been so killed, or receives, or disposes of, or attempts to dispose of, any part of an animal so killed, or of an animal unlawfully stolen, knowing it to have been so killed or so stolen, shall be guilty of a serious indictable offence, and may be indicted and punished as if the animal had been stolen, and the accused had unlawfully received the same. 191 Uncertainty as to sex or age not to entitle to acquittal Where, on the trial of a person for an offence under section 190, it appears that the animal was of the species mentioned in the indictment, but it is uncertain on the evidence what was its sex or age, such person shall not be entitled to acquittal by reason only of such uncertainty. 192 Receiving material or tools intrusted for manufacture Whosoever receives any goods, article, or material or any tools, or apparatus for manufacturing, or working up, the same, knowing the same to have been purloined, embezzled, or secreted, within the meaning of section 151, or that the person offering the same is fraudulently disposing thereof, shall be liable to imprisonment for four years. 192A Verdict where several persons are indicted for jointly receiving Where, on the trial of two or more persons for jointly receiving property, it appears that one, or more, separately received such property, or any part thereof, the jury may convict such one or more of the said persons as is, or are, proved to have so received the same. Part 4AA – Fraud Division 1 – Preliminary 192B Deception (1) In this Part, “deception” means any deception, by words or other conduct, as to fact or as to law, including: (a) a deception as to the intentions of the person using the deception or any other person, or (b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make. (2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless. 192C Obtaining property belonging to another (1) For the purposes of this Part, a person “obtains property” if: (a) the person obtains ownership, possession or control of the property for himself or herself or for another person, or (b) the person enables ownership, possession or control of the property to be retained by himself or herself or by another person, or (c) the person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession or control of the property. (2) A person does not commit an offence under this Part by obtaining or intending to obtain property belonging to another unless the person intends to permanently deprive the other of the property. (3) For the purposes of this Part, “property belongs” to a person if: (a) the person has possession or control of the property, or (b) the person has a proprietary right or interest in the property (not being an equitable interest arising only from an agreement to transfer or grant an interest or from a constructive trust). If property is subject to a trust, the persons to whom it belongs include any person having a right to enforce the trust. (4) A person obtaining property belonging to another without meaning the other permanently to lose the thing itself has, nevertheless, the intention of permanently depriving the other of it if the person’s intention is to treat the thing as his or her own to dispose of regardless of the other’s rights. A borrowing or lending of the property may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (5) Without limiting the generality of subsection (4), if: (a) a person has possession or control (lawfully or not) of property belonging to another, and (b) the person parts with the property under a condition as to its return that the person may not be able to perform, and (c) the parting is done for the purposes of his or her own and without the other’s authority, the parting amounts to treating the property as his or her own to dispose of regardless of the other’s rights. 192D Obtaining financial advantage or causing financial disadvantage (1) In this Part, “obtain” a financial advantage includes: (a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary. (2) In this Part, “cause” a financial disadvantage means: (a) cause a financial disadvantage to another person, or (b) induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary. Division 2 – Fraud and related offences 192E Fraud (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. (3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time. (4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud. 192F Intention to defraud by destroying or concealing accounting records (1) A person who dishonestly destroys or conceals any accounting record with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) In this section, “destroy” includes obliterate. 192G Intention to defraud by false or misleading statement A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. 192H Intention to deceive members or creditors by false or misleading statement of officer of organisation (1) An officer of an organisation who, with the intention of deceiving members or creditors of the organisation about its affairs, dishonestly makes or publishes, or concurs in making or publishing, a statement (whether or not in writing) that to his or her knowledge is or may be false or misleading in a material particular is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) In this section:”creditor” of an organisation includes a person who has entered into a security for the benefit of the organisation.”officer” of an organisation includes any member of the organisation who is concerned in its management and any person purporting to act as an officer of the organisation.”organisation” means any body corporate or unincorporated association. Part 4AB – Identity offences 192I Definitions In this Part: “deal” in identification information includes make, supply or use any such information. “identification information” means information relating to a person (whether living or dead, real or fictitious, or an individual or body corporate) that is capable of being used (whether alone or in conjunction with other information) to identify or purportedly identify the person, and includes the following: (a) a name or address, (b) a date or place of birth, marital status, relative’s identity or similar information, (c) a driver licence or driver licence number, (d) a passport or passport number, (e) biometric data, (f) a voice print, (g) a credit or debit card, its number or data stored or encrypted on it, (h) a financial account number, user name or password, (i) a digital signature, (j) a series of numbers or letters (or both) intended for use as a means of personal identification, (k) an ABN. 192J Dealing with identification information A person who deals in identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 10 years. 192K Possession of identification information A person who possesses identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 7 years. 192L Possession of equipment etc to make identification documents or things A person who: (a) possesses any equipment, material or other thing that is capable of being used to make a document or other thing containing identification information, and (b) intends that the document or other thing made will be used to commit, or to facilitate the commission of, an indictable offence, is guilty of an offence. Maximum penalty: Imprisonment for 3 years. 192M Miscellaneous provisions (1) This Part does not apply to dealing in a person’s own identification information. (2) It is not an offence to attempt to commit an offence against this Part. (3) This Part applies to a person who intends to commit an indictable offence even if committing the offence concerned is impossible or the offence concerned is to be committed at a later time. (4) Section 309A of the Criminal Procedure Act 1986 enables a victim of an offence against this Part to obtain a certificate from a court that such an offence has been committed to assist with problems the offence has caused in relation to the victim’s personal or business affairs. 193 (Renumbered) (Renumbered as section 192A) Part 4AC – Money laundering 193A Definitions In this Part: “deal with” includes: (a) receive, possess, conceal or dispose of, or (b) bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or (c) engage directly or indirectly in a transaction, including receiving or making a gift. “instrument of crime” means property that is used in the commission of, or to facilitate the commission of, a serious offence. “proceeds of crime” means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence. “serious offence” means: (a) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment, or (b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of the Poisons and Therapeutic Goods Act 1966 that arises under section 18A (1) of that Act, or (c) an offence committed outside New South Wales (including outside Australia) that would be an offence referred to in paragraph (a) or (b) if it had been committed in New South Wales. 193B Money laundering (1) A person who deals with proceeds of crime: (a) knowing that it is proceeds of crime, and (b) intending to conceal that it is proceeds of crime, is guilty of an offence. Maximum penalty: imprisonment for 20 years. (2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence. Maximum penalty: imprisonment for 15 years. (3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence. Maximum penalty: imprisonment for 10 years. (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory. 193C Dealing with property suspected of being proceeds of crime (1) A person who deals with property that is property that there are reasonable grounds to suspect is proceeds of crime is guilty of a summary offence. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both. (2) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country. 193D Dealing with property that subsequently becomes an instrument of crime (1) If: (a) a person deals with property intending that the property will become an instrument of crime, and (b) the property subsequently becomes an instrument of crime, the person is guilty of an offence. Maximum penalty: imprisonment for 15 years. (2) If: (a) a person deals with property being reckless as to whether the property will become an instrument of crime, and (b) the property subsequently becomes an instrument of crime, the person is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Proceedings for an offence under this section must not be commenced without the consent of the Director of Public Prosecutions. (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory. (5) In this section:”property” means money or other valuables. 193E Alternative verdicts (1) If on the trial of a person for an offence under section 193B (1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B (2) or (3), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. (2) If on the trial of a person for an offence under section 193B (2), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B (3), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. (3) If on the trial of a person for an offence under section 193D (1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193D (2), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. 193F Proof of other offences not required (1) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Part that property is proceeds of crime, to establish that: (a) a particular offence was committed in relation to the property, or (b) a particular person committed an offence in relation to the property. (2) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Part that property will be an instrument of crime, to establish: (a) an intention or risk that a particular offence will be committed in relation to the property, or (b) an intention or risk that a particular person will commit an offence in relation to the property. 193G Transitional provision This Part applies to or in respect of acts or omissions in relation to proceeds of crime arising from serious offences committed before or after the commencement of this Part. Part 4AD – Criminal destruction and damage Division 1 – Interpretation 194 Interpretation (1) In this Part, a reference to property does not include a reference to property that is not of a tangible nature. (2) In this Part, a reference to property includes a reference to wild creatures that have been tamed or are ordinarily kept in captivity and also includes any other wild creatures or their carcasses but only if they: (a) have been reduced into possession that has not been lost or abandoned, or (b) are in the course of being reduced into possession. (3) For the purposes of this Part, an act done by a person under a reasonable belief that the person had a right to do the act does not constitute an element of any offence under this Part. (4) For the purposes of this Part, damaging property includes removing, obliterating, defacing or altering the unique identifier of the property. The unique identifier is any numbers, letters or symbols that are marked on or attached to the property as a permanent record so as to enable the property to be distinguished from similar property. Division 2 – Crimes against property generally 195 Destroying or damaging property (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 5 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years. (1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 6 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years. (2) A person who, during a public disorder, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years. 196 Destroying or damaging property with intent to injure a 

Crimes Act 1900

Crimes Act 1900 As at 6 July 2012 Does not include amendments by: Sec 310L of this Act (sec 310L repeals Part 6B on 13.9.2013) See also: Crimes Amendment (Possession or Discharge of Firearms in Commission of Offences) Bill 2012 [Non-government Bill: Hon Robert Borsak, MLC] Reprint history (since 1972): Reprint No 1 16 July 1975 Reprint No 2 20 October 1976 Reprint No 3 4 August 1978 Reprint No 4 11 February 1981 Reprint No 5 23 September 1982 Reprint No 6 3 March 1986 Reprint No 7 1 December 1987 Reprint No 8 1 March 1990 Reprint No 9 25 March 1991 Reprint No 10 1 June 1992 Reprint No 11 30 March 1993 Reprint No 12 11 February 1994 Reprint No 13 2 March 1995 Reprint No 14 7 March 1996 Reprint No 15 8 May 1997 Reprint No 16 19 May 1998 Reprint No 17 1 June 1999 Reprint No 18 11 May 2000 Reprint No 19 23 April 2002 Reprint No 20 30 March 2004 Reprint No 21 4 April 2006 Reprint No 22 9 September 2008 Long Title An Act to consolidate the Statutes relating to Criminal Law. Part 1 – Preliminary and interpretation 1 Name of Act This Act is the Crimes Act 1900. 2 (Repealed) 3 Application of certain provisions of Act The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried. 3A, 3B (Repealed) 4 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires:”Aircraft” includes any machine that can derive support in the atmosphere from the reactions of the air.”Armed”, in relation to a weapon, or instrument, or an offensive weapon, or instrument, that is a dangerous weapon, includes bearing or having the immediate physical possession of the weapon, or instrument.”Authorised officer” has the same meaning as it has in the Criminal Procedure Act 1986.”Banker” includes every director or manager of any banking company, whether incorporated or not, or of any branch thereof, and every person carrying on the business of a banker.”Cattle” includes any horse, mare, gelding, colt, foal, filly, ass, mule, bull, cow, ox, steer, heifer, calf, ram, ewe, sheep, lamb, pig, goat, deer, alpaca, llama, vicuna, camel, or dromedary, and every hybrid or cross thereof.”Court” and “Judge” respectively shall be equally taken to mean the Court in which or the Judge before whom the trial or proceeding is had in respect of which either word is used.”Dangerous weapon” means: (a) a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or (c) a spear gun. “Document of title to goods” includes every bill of lading, India warrant, dock warrant, warehousekeeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and every bought and sold note or document used in the ordinary course of business as proof of the possession or control of goods, or purporting to authorise by indorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to.”Document of title to land” includes every deed, certificate of title, map, paper, or parchment, written or printed, or partly written and partly printed, being or containing evidence of the title, or part of the title, to any real estate or to any interest in or out of real estate.”Dwelling-house” includes: (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which any person resides, and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house. “Governor” means, except in respect of the exercise of the pardoning power, the Governor with the advice of the Executive Council.”Grievous bodily harm” includes: (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). “Indictment” includes any information presented or filed as provided by law for the prosecution of offences.”Intoxicating substance” includes alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding.”Judge” –see “Court”.”Loaded arms” means any gun, pistol, or other arms, loaded in the barrel or chamber or magazine with gunpowder or other explosive substance, and with ball, shot, slug, or other destructive material, although the attempt to discharge may fail from want of proper priming, or from any other cause; and every gun, pistol, or other arms, unlawfully presented at any person, shall be deemed to be loaded unless the contrary is shown.”Member of the crew” in relation to an aircraft means a person having functions or duties on board the aircraft.”Minor indictable offence” means an indictable offence that is not a serious indictable offence.”Money” includes all coined money, whether current within New South Wales or not, and all bank notes or instruments ordinarily so called, if current as such, and payable to the bearer.”Night” means the period of time commencing at nine of the clock in the evening of each day and concluding at six of the clock in the morning of the next succeeding day.”Offensive weapon or instrument” means: (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. “Officer”, in relation to a body corporate or public company, includes a person who has been appointed, or acts, as an auditor of the body corporate or public company.”Person”, “Master”, and “Employer” severally include any society, company, or corporation.”Place of Divine worship” includes any building or structure ordinarily used for Divine worship.”Property” includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.”Property belonging to a vessel” includes every portion of its cargo, and property belonging to any of the officers, crew, or passengers thereof.”Public disorder” means a riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations.”Railway” includes a tramway, and also includes all stations, buildings, structures and equipment belonging to or associated with a railway or tramway.”Serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.”Trustee” means a trustee on some express trust howsoever created, and includes the heir or personal representative of such trustee, and every other person upon whom the duty of such trust shall have devolved, and also any official manager, assignee, liquidator, or other like officer, acting under any Act relating to joint stock companies or to bankruptcy or insolvency and also an executor or administrator.”Valuable security” includes every order or other security whatsoever entitling or evidencing the title of any person to any share or interest in any public stock or fund, whether of any part of the British dominions or of any Foreign State, or in any fund of any body corporate, company, or society, whether within or without the British dominions, or to any deposit in any bank; and every debenture, deed, bond, bill, note, cheque, warrant, order, or security whatsoever for money, or for payment of money, whether current in any part of the British dominions or in any Foreign State, and every document of title to land or goods, as herein defined. (2) A dwelling-house does not cease to be a dwelling-house by reason only of being temporarily unoccupied. (3) (Repealed) (4) In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to an offence mentioned in a specified provision of this Act that has been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal. (5), (6) (Repealed) (7) A reference in any offence under this Act to causing any poison, intoxicating substance or other destructive or noxious thing to be administered to or taken by any person includes a reference to causing any person to inhale, take or be exposed to the poison, intoxicating substance or thing by its release into the person’s environment. (8) Notes included in this Act do not form part of this Act. 4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. 4B Dishonesty (1) In this Act:”dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. (2) In a prosecution for an offence, dishonesty is a matter for the trier of fact. 5, 6 (Repealed) 7 “Possession” when criminal Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who: (a) has any such property in his or her custody, or (b) knowingly has any such property in the custody of another person, or (c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another. 8 “Public place” etc Where, by this or any other Act, or by any rule, regulation, ordinance or by-law, duly made under or by virtue of the provisions of any Act, any offence, conduct, or language, in a public place, or open and public place, or place of public resort, is made punishable, or a person guilty thereof is made liable to apprehension, the place shall be deemed public for the purposes of the enactment or taken to be otherwise within the meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise. 9, 10 (Repealed) Part 1A – Geographical jurisdiction 10A Application and effect of Part (1) This Part applies to all offences. (2) This Part extends, beyond the territorial limits of the State, the application of a law of the State that creates an offence if there is the nexus required by this Part between the State and the offence. (3) If the law that creates an offence makes provision with respect to any geographical consideration concerning the offence, that provision prevails over any inconsistent provision of this Part. (4) This Part is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. 10B Interpretation (1) For the purposes of this Part, the necessary geographical nexus is the geographical nexus required by section 10C. (2) For the purposes of this Part, the place in which an offence is committed is the place in which the physical elements of the offence occur. (3) For the purposes of this Part, the place in which an offence has an effect includes: (a) any place whose peace, order or good government is threatened by the offence, and (b) any place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out. (4) A reference in this Part to the State includes a reference to the coastal waters of the State in which the criminal law of the State applies (including in any part of the adjacent area of the State in which the substantive criminal law of the State applies by force of the law of the State or of the Commonwealth in accordance with the Crimes at Sea Act 1998). 10C Extension of offences if there is a geographical nexus (1) If: (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if: (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State. 10D Provisions relating to double criminality (1) This Part applies to an offence that is committed partly in the State and partly in another place outside the State, irrespective of whether it is also an offence in that other place. (2) This Part applies to an offence that is committed wholly in a place outside the State only if: (a) it is also an offence in that place, or (b) it is not also an offence in that place, but the trier of fact is satisfied that the offence constitutes such a threat to the peace, order or good government of the State that the offence warrants criminal punishment in the State. 10E Procedural and other provisions (1) The existence of the necessary geographical nexus for an offence is to be presumed and the presumption is conclusive unless rebutted under subsection (2). (2) If a person charged with an offence disputes the existence of the necessary geographical nexus, the court is to proceed with the trial of the offence in the usual way. If, at the conclusion of the trial, the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus does not exist, it must (subject to subsection (3)) make or return a finding to that effect and the charge is to be dismissed. (3) If the trier of fact would, disregarding any geographical considerations, find the person not guilty of the offence, it must make or return a finding of not guilty. The trier of fact must make or return a finding of not guilty on the grounds of mental illness in any such case if they were the only grounds on which the trier of fact would have found the person not guilty of the offence. (4) This section also applies to any alternative verdict available by law to the trier of fact in respect of another offence with which the person was not charged. A finding of guilt may be made or returned in any such case, unless the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus for that other offence does not exist. (5) The issue of whether the necessary geographical nexus exists must, if raised before the trial, be reserved for consideration at the trial. (6) A power or authority exercisable on reasonable suspicion or belief that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds or believes that the elements necessary to constitute the offence exist (whether or not the person suspects or believes or has any ground to suspect or believe that the necessary geographical nexus with the State exists). 10F Special provisions with respect to geographical jurisdiction (1) This section applies for the purposes of, but without limiting, this Part. (2) The necessary geographical nexus exists between the State and any of the following offences if the offence is committed by a public official (within the meaning of the Independent Commission Against Corruption Act 1988) and involves public money of the State or property held by the public official for or on behalf of the State: (a) larceny or any offence that includes larceny, (b) fraud or any other offence under Part 4AA. Part 2 – Offences against the Sovereign 11 Provisions of 36 Geo III, c 7, and 57 Geo III, c 6, repealed except as to offences against the person of the Sovereign The provisions of the Act of the Parliament of Great Britain, thirty-sixth George the Third chapter seven, made perpetual by the Act of the Parliament of Great Britain and Ireland fifty-seventh George the Third chapter six, and all the provisions of the last mentioned Act in relation thereto, save such of the same respectively as relate to the compassing, imagining, inventing, devising, or intending death or destruction, or any bodily harm tending to death or destruction, maim, or wounding, imprisonment, or restraint of the person of the heirs and successors of His said Majesty King George the Third, and the expressing, uttering, or declaring of such compassings, imaginations, inventions, devices, or intentions, or any of them, shall be and the same are hereby repealed. 12 Compassing etc deposition of the Sovereign–overawing Parliament etc Whosoever, within New South Wales or without, compasses, imagines, invents, devises, or intends to deprive or depose Our Most Gracious Lady the Queen, her heirs or successors, from the style, honour, or Royal name of the Imperial Crown of the United Kingdom, or of any other of Her Majesty’s dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, or any other of Her Majesty’s dominions, in order, by force or constraint, to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom, or the Parliament of New South Wales, or to move or stir any foreigner or stranger with force to invade the United Kingdom, or any other of Her Majesty’s dominions, or countries under the obeisance of Her Majesty, her heirs or successors, and expresses, utters, or declares such compassings, imaginations, inventions, devices, or intentions, or any of them, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be liable to imprisonment for 25 years. 13-15 (Repealed) 16 Nothing herein to affect 25 Ed III, c 2 Nothing contained in this Part shall lessen the force of, or in any matter affect, anything enacted by the Statute passed in the twenty-fifth year of King Edward the Third “A declaration which offences shall be adjudged Treason”. 16A (Repealed) Part 3 – Offences against the person Division 1 – Homicide 17 (Repealed) 17A Date of death (1) The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated. (2) This section does not apply in respect of an injury received before the commencement of this section. 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. 19 (Repealed) 19A Punishment for murder (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy. 19B Mandatory life sentences for murder of police officers (1) A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed: (a) while the police officer was executing his or her duty, or (b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty, and if the person convicted of the murder: (c) knew or ought reasonably to have known that the person killed was a police officer, and (d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers. (2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person’s natural life. (3) This section does not apply to a person convicted of murder: (a) if the person was under the age of 18 years at the time the murder was committed, or (b) if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment). (4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. (5) Nothing in this section affects the obligation of a court to impose a sentence of imprisonment for life on a person convicted of murder in accordance with section 61 of the Crimes (Sentencing Procedure) Act 1999. (6) Nothing in this section affects the prerogative of mercy. (7) This section applies to offences committed after the commencement of this section. 20 Child murder–when child deemed born alive On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not. 21 Child murder by mother–verdict of contributing to death etc Whosoever, being a woman delivered of a child is indicted for its murder, shall, if the jury acquit her of the murder, and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body, be liable to imprisonment for ten years. 22 Trial for child murder–verdict of concealment of birth Where, on the trial of a person for the murder or manslaughter of a child, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 85, they may acquit the person of the offence charged and find the person guilty of an offence under the said section, and the person shall be liable to punishment accordingly. 22A Infanticide (1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child. (3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth. 23 Trial for murder–provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder. 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section:”underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 24 Manslaughter–punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal. 25 (Repealed) Division 2 – Conspiracy to murder 26 Conspiring to commit murder Whosoever: conspires and agrees to murder any person, whether a subject of Her Majesty or not, and whether within the Queen’s dominions or not, or solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder, shall be liable to imprisonment for 25 years. Division 3 – Attempts to murder 27 Acts done to the person with intent to murder Whosoever: administers to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 28 Acts done to property with intent to murder Whosoever: sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or casts away or destroys any vessel, or by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or places, or throws, any matter or thing upon or across a railway, or removes, or displaces any sleeper, or other thing belonging to a railway, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 29 Certain other attempts to murder Whosoever: attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years. 30 Attempts to murder by other means Whosoever, by any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to imprisonment for 25 years. Division 4 – Documents containing threats 31 Documents containing threats (1) A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years. (2) It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances). Division 5 – Suicide 31A Suicide and attempt to commit suicide The rule of law that it is a crime for a person to commit, or to attempt to commit, suicide is abrogated. 31B Survivor of suicide pact (1) The survivor of a suicide pact shall not be guilty of murder or manslaughter but may be guilty of an offence under section 31C. (2) In this section, “suicide pact” means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his or her own life, but nothing done by a person who enters into a suicide pact shall be treated as being done by the person in pursuance of the pact unless it is done while the person has the settled intention of dying in pursuance of the pact. (3) The onus of proving the existence of a suicide pact shall lie with the accused person on the balance of probabilities. 31C Aiding etc suicide (1) A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years. (2) Where: (a) a person incites or counsels another person to commit suicide, and (b) that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel, the firstmentioned person shall be liable to imprisonment for 5 years. Division 6 – Acts causing danger to life or bodily harm 32 Impeding endeavours to escape shipwreck Whosoever: intentionally or recklessly prevents or impedes any person on board of, or having quitted, any ship or vessel in distress, or wrecked, stranded, or cast on shore, in his or her endeavour to save his or her life, or intentionally or recklessly prevents or impedes any person in his or her endeavour to save the life of such first-mentioned person, shall be liable to imprisonment for 25 years. 32A-32C (Repealed) 33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly. 33A Discharging firearm etc with intent (1) Intent to cause grievous bodily harm A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to cause grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest etc A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 33B Use or possession of weapon to resist arrest etc (1) Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 15 years. 34 (Repealed) 35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm–in company A person who, in the company of another person or persons: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) Reckless wounding–in company A person who, in the company of another person or persons: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) Reckless wounding A person who: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly. 35A Causing dog to inflict grievous bodily harm or actual bodily harm (1) Cause dog to inflict grievous bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict grievous bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) Cause dog to inflict actual bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict actual bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (3) Alternative finding If, on the trial of a person for an offence under subsection (1), it appears that grievous bodily harm was not inflicted on the other person but that actual bodily harm was inflicted, the person may be found not guilty of the offence charged but guilty of an offence under subsection (2) and be liable to punishment accordingly. (4) Doing an act includes omitting to do the act In this section, a reference to the doing of an act includes a reference to omitting to do the act. 36 (Repealed) 37 Attempts to choke etc (garrotting) Whosoever: by any means attempts to choke suffocate or strangle any person, or by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance, with intent in any such case to enable himself or herself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence, shall be liable to imprisonment for 25 years. 38 Using intoxicating substance to commit an indictable offence A person who: (a) administers an intoxicating substance to another person, or (b) causes another person to take an intoxicating substance, with intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 38A Spiking drink or food (1) In this section:”harm” includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances.”impair” includes further impair. (2) A person: (a) who causes another person to be given or to consume drink or food: (i) containing an intoxicating substance that the other person is not aware it contains, or (ii) containing more of an intoxicating substance than the other person would reasonably expect it to contain, and (b) who intends a person to be harmed by the consumption of the drink or food, is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 100 penalty units, or both. (3) For the purposes of this section, giving a person drink or food includes preparing the drink or food for the person or making it available for consumption by the person. (4) A person does not commit an offence against this section if the person has reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food. (5) A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit an offence against this section. (6) An offence against this section is a summary offence. 39 Using poison etc to endanger life or inflict grievous bodily harm (1) A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the poison, intoxicating substance or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and (c) the person intends to injure, or is reckless about injuring, the other person. Maximum penalty: Imprisonment for 10 years. (2) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 41 or 41A, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 41 or 41A. The person is liable to punishment accordingly. 40 (Repealed) 41 Using poison etc to injure or to cause distress or pain A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the person intends to injure, or to cause distress or pain to, the other person. Maximum penalty: Imprisonment for 5 years. 41A Poisoning etc of water supply A person is guilty of an offence if: (a) the person introduces any poison or other destructive or noxious thing into a supply of water, and (b) the person intends to injure any person or persons. Maximum penalty: Imprisonment for 5 years. 42 Injuries to child at time of birth Whosoever, during or after the delivery of a child, intentionally or recklessly inflicts on such child, whether then wholly born or not, any grievous bodily harm, shall be liable to imprisonment for fourteen years. 43 Abandoning or exposing a child under 7 years A person who, without reasonable excuse, intentionally abandons or exposes a child under 7 years of age is guilty of an offence if it causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. 43A Failure of persons with parental responsibility to care for child (1) In this section:”child” means a child under 16 years of age.”parental responsibility” means the duties, powers, responsibilities and authority in respect of a child that, by law, parents have in relation to their children. (2) A person: (a) who has parental responsibility for a child, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life, is guilty of an offence if the failure causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. 44 Failure of persons to provide necessities of life (1) A person: (a) who is under a legal duty to provide another person with the necessities of life, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life, is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person. Maximum penalty: Imprisonment for 5 years. (2) A person cannot be found guilty of both an offence against section 43A and an offence against this section in respect of the same act or omission. 45 Prohibition of female genital mutilation (1) A person who: (a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or (b) aids, abets, counsels or procures a person to perform any of those acts on another person, is liable to imprisonment for 7 years. (2) An offence is committed against this section even if one or more of the acts constituting the offence occurred outside New South Wales if the person mutilated by or because of the acts is ordinarily resident in the State. (3) It is not an offence against this section to perform a surgical operation if that operation: (a) is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or (b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or (c) is a sexual reassignment procedure and is performed by a medical practitioner. (4) In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account. (5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts. (6) This section applies only to acts occurring after the commencement of the section. (7) In this section:”authorised professional” means: (a) a registered midwife, or (b) a midwifery student, or (c) in relation to an operation performed in a place outside Australia–a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or (d) a medical student. “medical practitioner”, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.”medical student” means: (a) a person registered as a student in the medical profession under the Health Practitioner Regulation National Law, or (b) in relation to an operation performed in a place outside Australia–a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place. “midwifery student” means: (a) a person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, or (b) in relation to an operation performed in a place outside Australia–a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place. “sexual reassignment procedure” means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person. 46 Causing bodily injury by gunpowder etc Whosoever intentionally or recklessly by the explosion of gunpowder or other substance, or the use of any corrosive fluid, or destructive matter, burns maims disfigures disables, or does grievous bodily harm to, any person, shall be liable to imprisonment for 25 years. 47 Using etc explosive substance or corrosive fluid etc Whosoever: causes any gunpowder or other explosive substance to explode, or sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance, with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person, shall, whether bodily injury is effected or not, be liable to imprisonment for 25 years. 48 Causing explosives to be placed in or near building, conveyance or public place (1) A person who causes an explosive to be placed in or near: (a) a building, or (b) a vehicle, vessel, train or other conveyance, or (c) a public place, with the intention of causing bodily harm to any person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) A person commits an offence under this section whether or not: (a) any explosion occurs, or (b) any bodily harm is caused. 49 Setting trap etc (1) Any person who: (a) places or sets, or causes to be placed or set, any trap, device or thing (whether its nature be electronic, electric, mechanical, chemical or otherwise) capable of destroying human life or inflicting grievous bodily harm on any person, or (b) knowingly permits any such trap, device or thing to continue to be placed or set, with intent to inflict grievous bodily harm shall be liable to imprisonment for five years. (2) Nothing in subsection (1) shall extend to any gin or trap, placed with the intention of destroying vermin, or to any trap, device or thing placed in a dwelling-house for the protection thereof. 49A Throwing rocks and other objects at vehicles and vessels (1) A person is guilty of an offence if: (a) the person intentionally throws an object at, or drops an object on or towards, a vehicle or vessel that is on any road, railway or navigable waters, and (b) there is a person in the vehicle or vessel, and (c) the conduct risks the safety of any person. Maximum penalty: Imprisonment for 5 years. (2) This section extends to a vehicle or vessel that is stationary at the time that the object is thrown or dropped. (3) In the prosecution of an offence under this section, it is not necessary to prove: (a) that the accused was aware that his or her conduct risked the safety of any person, or (b) that the object made contact with the vehicle or vessel. (4) In this section:”road” means a road or road related area within the meaning of the Road Transport (General) Act 2005.”throw” includes propel.”vehicle” includes: (a) a motor vehicle, and (b) a train or tram, and (c) a bicycle, and (d) a vehicle drawn by an animal or an animal ridden by a person. 50, 51 (Repealed) 51A Predatory driving (1) The driver of a vehicle who, while in pursuit of or travelling near another vehicle: (a) engages in a course of conduct that causes or threatens an impact involving the other vehicle, and (b) intends by that course of conduct to cause a person in the other vehicle actual bodily harm, is guilty of an offence and liable to imprisonment for 5 years. (2) This section does not take away the liability of any person to be prosecuted for or found guilty of an offence under this Act or of any other offence, or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under this section cannot be prosecuted for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of any other offence under this Act cannot be prosecuted for an offence under this section on the same, or substantially the same, facts. (3) In this section:”impact” involving a vehicle includes: (a) an impact with any other vehicle or with a person or object, or (b) the vehicle overturning or leaving a road. “vehicle” has the same meaning it has in section 52A. 51B Police pursuits (1) The driver of a vehicle: (a) who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and (b) who does not stop the vehicle, and (c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others, is guilty of an offence. Maximum penalty: (a) in the case of a first offence–imprisonment for 3 years, or (b) in the case of an offence on a second or subsequent occasion–imprisonment for 5 years. (2) In this section, “vehicle” has the same meaning as it has in section 52A. 52 (Repealed) 52A Dangerous driving: substantive matters (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vehicle is involved in impact–generally For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise), (h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise). (6) When vehicle is involved in causing other impacts For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if: (a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and (b) the prosecution proves that the vehicle caused the impact. (7) Circumstances of aggravation In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vehicle was driven, or (c) to the manner in which the vehicle was driven. (9) Definitions In this section:”drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.”object” includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree.”prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood.”road” means: (a) a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act), or (b) any other place. “vehicle” means: (a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or (b) a horse-drawn vehicle, whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway. 52AA Dangerous driving: procedural matters (1) Presumption as to intoxication For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication–alcohol For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood analysis carried out in accordance with Division 4 or 4A of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol. (3A) Evidence of intoxication–drugs For the purposes of section 52A, evidence may be given of the concentration of a drug (other than alcohol) present in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood or urine analysis carried out in accordance with Division 4 or 4A of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. (3B) Time of intoxication A concentration of a drug (other than alcohol) determined by the means referred to in subsection (3A) is taken to be the concentration of the drug in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm: (a) if the blood or urine sample that was analysed was taken within 4 hours after the impact, and (b) unless the accused proves that there was no such drug in the accused’s blood or urine at the time of the impact. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52A (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52A (1) or (3), it may find that the accused is guilty of the offence under section 52A (1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts. (7) Definitions In this section:”prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood. 52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm (1) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 10 years. (2) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning grievous bodily harm to another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 7 years. (3) The provisions of section 52A (5) and (6) (which prescribe circumstances in which a vehicle is taken to be involved in an impact) apply for the purposes of this section in the same way as they apply for the purposes of section 52A. (4) In this section, “vehicle” has the same meaning as it has in section 52A. 52B Dangerous navigation: substantive matters (1) Dangerous navigation occasioning death A person is guilty of the offence of dangerous navigation occasioning death if the vessel navigated by the person is involved in an impact occasioning the death of another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous navigation occasioning death A person is guilty of the offence of aggravated dangerous navigation occasioning death if the person commits the offence of dangerous navigation occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous navigation causing grievous bodily harm A person is guilty of the offence of dangerous navigation causing grievous bodily harm if the vessel navigated by the person is involved in an impact occasioning grievous bodily harm to another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous navigation occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous navigation occasioning grievous bodily harm if the person commits the offence of dangerous navigation occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vessel is involved in impact–generally For the purposes of this section, the circumstances in which a vessel is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vessel overturning or running aground while the person is being conveyed in or on the vessel (whether as a passenger or otherwise), (b) an impact between any object and the vessel while the person is being conveyed in or on that vessel (whether as a passenger or otherwise), (c) an impact between the person and the vessel, (d) the impact of the vessel with another vessel or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vessel, (f) an impact with anything that was in motion through falling from the vessel, (g) the person falling from the vessel, or being thrown or ejected from the vessel, while being conveyed in or on the vessel (whether as a passenger or otherwise), (h) an impact between any object (including the water and the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vessel, while the person is being conveyed in or on the vessel (whether as a passenger or otherwise). (6) When vessel is involved in causing other impacts For the purposes of this section, a vessel is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if the death or harm is occasioned through the vessel causing an impact between other vessels or between another vessel and any object or person or causing another vessel to overturn or run aground. (7) Circumstances of aggravation In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was navigating the vessel at a speed that exceeds the speed limit (if any) applicable to the person navigating the vessel, or to the navigable waters, on which the vessel was navigated at the time of the impact, or (c) the accused was navigating the vessel in an attempt to escape pursuit by a police officer, or (d) the accused’s ability to navigate was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vessel was navigated, or (c) to the manner in which the vessel was navigated. (9) Definitions In this section:”drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.”object” includes a pier, wharf, jetty, pontoon, buoy, breakwater, bridge, support, mooring post or platform, navigation aid, retaining wall, marina, boatshed, slipway or swimming enclosure.”prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 52BA Dangerous navigation: procedural matters (1) Presumption as to intoxication For the purposes of section 52B, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication For the purposes of section 52B, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Schedule 1 to the Marine Safety Act 1998. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at that time was less than the prescribed concentration of alcohol. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 54 the jury is satisfied that the person is guilty of an offence under section 52B, it may find the accused guilty of the offence under section 52B, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52B (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52B (1) or (3), it may find that the accused is guilty of the offence under section 52B (1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52B cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52B on the same, or substantially the same, facts. (7) Definition In this section:”prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. 53 Injuries by furious driving etc Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years. 54 Causing grievous bodily harm Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years. Division 7 – Possessing or making explosive etc with intent to injure the person 55 Possessing or making explosives or other things with intent to injure Whosoever knowingly has in his or her possession, or makes, or manufactures, any gunpowder, explosive substance, or dangerous or noxious thing, or any machine, engine, instrument, or thing: (a) with intent by means thereof to injure, or otherwise commit a serious indictable offence against the person of any one, or (b) for the purpose of enabling another person to injure, or otherwise commit a serious indictable offence against the person of any one, shall be liable to imprisonment for 10 years. Division 8 – Assaults 56 Obstructing member of the clergy in discharge of his or her duties Whosoever: by threats or force prevents, or endeavours to prevent, any member of the clergy, or other person duly authorised in that behalf, from officiating in a place of divine worship, or from the performance of his or her duty in the lawful burial of the dead in a burial-place, or strikes, or offers any violence to, any member of the clergy, or minister engaged in, or to the knowledge of the offender about to engage in, any of the duties aforesaid, or going to perform the same, shall be liable to imprisonment for two years. 57 Assault on persons preserving wreck Whosoever wounds, strikes, or assaults, any person while in the execution of his or her duty concerning the preservation of a vessel in distress, or any vessel or effects, stranded, or cast on shore, or lying under water, with intent to obstruct him or her, or thereby in fact obstructing him or her in the execution of such duty, shall be liable to imprisonment for seven years. 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. 59A Assault during public disorder (1) A person who assaults any person during a large-scale public disorder, although not occasioning actual bodily harm, is liable to imprisonment for 5 years. (2) A person who assaults any person during a large-scale public disorder, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3), (4) (Repealed) Division 8A – Assaults and other actions against police and other law enforcement officers 60AA Meaning of “law enforcement officer” In this Division: “law enforcement officer” means: (a) a police officer, or (b) the Commissioner for the Independent Commission Against Corruption or an Assistant Commissioner for that Commission, or (c) an officer of the Independent Commission Against Corruption, within the meaning of the Independent Commission Against Corruption Act 1988, who performs investigation functions, or (d) the Commissioner for the Police Integrity Commission or an Assistant Commissioner for that Commission, or (e) an officer of the Police Integrity Commission, within the meaning of the Police Integrity Commission Act 1996, who performs investigation or confiscation functions, or (f) the Commissioner for the New South Wales Crime Commission or an Assistant Commissioner for that Commission, or (g) a member of staff of the New South Wales Crime Commission, within the meaning of the New South Wales Crime Commission Act 1985, who performs investigation or confiscation functions, or (h) the Commissioner of Corrective Services, or (i) governors of correctional centres, correctional officers and probation and parole officers, within the meaning of the Crimes (Administration of Sentences) Act 1999, or (j) an officer of the Department of Juvenile Justice who works with children who have, or are alleged to have, committed offences and who is employed at or works from a community centre or children’s detention centre, or (k) an officer of the Department of Juvenile Justice who is involved in the conduct of youth justice conferences, or (l) a Crown Prosecutor or an Acting Crown Prosecutor, or (m) an Australian legal practitioner who is employed as a member of staff of the Director of Public Prosecutions, or (n) a sheriff’s officer. 60 Assault and other actions against police officers (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years. (2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (2A) A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (3A) A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or (b) because the officer is a police officer. 60A Assault and other actions against law enforcement officers (other than police officers) (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (2) A person who assaults a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. 60B Actions against third parties connected with law enforcement officers (1) A person who assaults, stalks, harasses or intimidates any person with whom a law enforcement officer has a domestic relationship, with the intention of causing the law enforcement officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (2) A person who obtains personal information about a person with whom a law enforcement officer has a domestic relationship, with the intention of using or permitting the use of the information to cause the officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (3) For the purposes of this section, causing a law enforcement officer to fear physical or mental harm includes causing the officer to fear physical or mental harm to another person with whom he or she has a domestic relationship. (4) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (5) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been assaulted, stalked, harassed or intimidated, or the law enforcement officer, actually feared physical or mental harm. (6) In this section, “domestic relationship” has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. 60C Obtaining of personal information about law enforcement officers A person who obtains personal information about a law enforcement officer, with the intention of using or permitting the use of the information for the purpose of assaulting, stalking, harassing, intimidating, or otherwise harming, the officer: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer, is liable to imprisonment for 5 years. Division 8B – Assaults etc at schools 60D Definitions (1) In this Division:”member of staff” of a school includes a person who performs voluntary work for the school.”school” means: (a) an infants school, primary school or secondary school (however described), and (b) a child care facility for children under school age. “school premises” includes parks and other community premises that are used by a school (but only while they are being used for the purposes of the school).”school student” includes a child attending a child care facility. (2) For the purposes of this Division, a school student or member of staff of a school is taken to be attending a school: (a) while the student or member of staff is on school premises for the purposes of school work or duty (even if not engaged in school work or duty at the time), or (b) while the student or member of staff is on school premises for the purposes of before school or after school child care, or (c) while entering or leaving school premises in connection with school work or duty or before school or after school care. 60E Assaults etc at schools (1) A person who assaults, stalks, harasses or intimidates any school student or member of staff of a school while the student or member of staff is attending a school, although no actual bodily harm is occasioned, is liable to imprisonment for 5 years. (2) A person who assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a school student or member of staff of a school while the student or member of staff is attending a school, and (b) is reckless as to causing actual bodily harm to that student or member of staff or any other person, is liable to imprisonment for 12 years. (4) A person who enters school premises with intent to commit an offence under another provision of this section is liable to imprisonment for 5 years. (5) Nothing in subsection (1) applies to any reasonable disciplinary action taken by a member of staff of a school against a school student. Division 9 – Common assaults 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Division 9A – Defence of lawful correction 61AA Defence of lawful correction (1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period. (3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable. (4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction). (5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment. (6) In this section:”child” means a person under 18 years of age.”parent” of a child means a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children.”person acting for a parent” of a child means a person: (a) who: (i) is a step-parent of the child, a de facto partner of a parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and (ii) is authorised by a parent of the child to use physical force to punish the child, or (b) who, in the case of a child who is an Aboriginal or Torres Strait Islander (within the meaning of the Children and Young Persons (Care and Protection) Act 1998), is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child. “De facto partner” is defined in section 21C of the Interpretation Act 1987. (7) This section does not apply to proceedings arising out of an application of physical force to a child if the application of that force occurred before the commencement of this section. (8) The Attorney General is to review this section to determine whether its provisions continue to be appropriate for securing the policy objectives of the section. The review is to be undertaken as soon as possible after the period of 3 years from the commencement of this section. A report on the outcome of the review is to be tabled in each House of Parliament within 6 months after the end of the period of 3 years. Division 10 – Offences in the nature of rape, offences relating to other acts of sexual assault etc 61A-61G (Repealed) 61H Definition of “sexual intercourse” and other terms (1) For the purposes of this Division, “sexual intercourse” means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). (1A) For the purposes of this Division, a person has a “cognitive impairment” if the person has: (a) an intellectual disability, or (b) a developmental disorder (including an autistic spectrum disorder), or (c) a neurological disorder, or (d) dementia, or (e) a severe mental illness, or (f) a brain injury, that results in the person requiring supervision or social habilitation in connection with daily life activities. (2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. (3) For the purposes of this Act, a person who incites another person to an act of indecency, as referred to in section 61N or 61O, is taken to commit an offence on the other person. 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. (2) Meaning of consent A person “consents” to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. 61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. (3) In this section, “building” has the same meaning as it does in Division 4 of Part 4. 61JA Aggravated sexual assault in company (1) A person: (a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and (b) who is in the company of another person or persons, and (c) who: (i) at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) Nothing in this section affects the prerogative of mercy. 61K Assault with intent to have sexual intercourse Any person who, with intent to have sexual intercourse with another person: (a) intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or (b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument, is liable to imprisonment for 20 years. 61L Indecent assault Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years. 61M Aggravated indecent assault (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. (3) In this section, “circumstances of aggravation” means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) (Repealed) (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 61N Act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. (2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months. 61O Aggravated act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years. (1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years. (2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years. (2A) A person: (a) who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and (b) who knows that the act of indecency is being filmed for the purposes of the production of child abuse material, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) For the purposes subsections (1) and (1A), “circumstances of aggravation” means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment. (4) For the purposes of subsection (2A): (a) “child abuse material” has the meaning given by Division 15A, and (b) an act of indecency is being “filmed” if one or more images (whether still or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person (whether during the filming or later). 61P Attempt to commit offence under sections 61I-61O Any person who attempts to commit an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N or 61O is liable to the penalty provided for the commission of the offence. 61Q Alternative verdicts (1) Question of aggravation If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (1A) Question of aggravation in company If on the trial of a person for an offence under section 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I or 61J, it may find the person not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Question of consent regarding alleged victim under 16 If on the trial of a person for an offence under section 61I the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66C (3) or 66C (4), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Question of consent or authority regarding alleged victim under 16 If on the trial of a person for an offence under section 61J or 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66A or 66C, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (4) Question of consent regarding incest If on the trial of a person for an offence under section 61I or 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 78A or 78B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (5) Question of consent regarding cognitive impairment If on the trial of a person for an offence under section 61I, 61J or 61JA, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66F, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (6) Question of whether offence committed for purposes of production of child abuse material If on the trial of a person for an offence under section 61O (2A) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61O (2) or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 61R (Repealed) 61S Offenders who are minors (1) For the purposes of any offence, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person. (2) Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence. 61T Offender married to victim The fact that a person is married to a person: (a) upon whom an offence under section 61I, 61J, 61JA or 61K is alleged to have been committed is no bar to the firstmentioned person being convicted of the offence, or (b) upon whom an offence under any of those sections is alleged to have been attempted is no bar to the firstmentioned person being convicted of the attempt. 61U Circumstances of certain sexual offences to be considered in passing sentence Where a person is convicted of: (a) both an offence under section 61I and an offence under section 61K, or (b) both an offence under section 61J and an offence under section 61K, or (c) both an offence under section 61JA and an offence under section 61K, whether at the same time or at different times, the Judge passing sentence on the person in respect of the two convictions or the later of the two convictions is required, if it appears that the two offences arose substantially out of the one set of circumstances, to take that fact into account in passing sentence. 62 (Repealed) 63 Common law offences of rape and attempted rape abolished (1) The common law offences of rape and attempted rape are abolished. (2) Parts 1A, 1 and 19 of Schedule 11 make provision with respect to rape and other former sexual offences. 64 (Renumbered) (Renumbered as clause 51 of Schedule 11) 65-66 (Repealed) 66A Sexual intercourse–child under 10 (1) Child under 10 Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence. Maximum penalty: imprisonment for 25 years. (2) Child under 10–aggravated offence Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence. Maximum penalty: imprisonment for life. (3) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. (4) A person sentenced to imprisonment for life for an offence under subsection (2) is to serve that sentence for the term of the person’s natural life. (5) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (6) Nothing in this section affects the prerogative of mercy. (7) If on the trial of a person charged with another offence against this Act the person is instead found guilty of an offence against this section (as provided by section 61Q), the maximum penalty that may be imposed on the person for the offence against this section is the penalty for the offence charged. 66B Attempting, or assaulting with intent, to have sexual intercourse with child under 10 Any person who attempts to have sexual intercourse with another person who is under the age of 10 years, or assaults any such person with intent to have sexual intercourse, shall be liable to imprisonment for 25 years. 66C Sexual intercourse–child between 10 and 16 (1) Child between 10 and 14 Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years. (2) Child between 10 and 14–aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years. (3) Child between 14 and 16 Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years. (4) Child between 14 and 16–aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years. (5) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. 66D Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 Any person who attempts to commit an offence under section 66C upon another person who is of or above the age of 10 years, and under the age of 16 years, or assaults any such person with intent to commit such an offence, shall be liable to the penalty provided for the commission of the offence. 66E Alternative verdicts (1) If on the trial of a person for an offence under section 66A (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D. The accused is liable to punishment accordingly. (2) If on the trial of a person for an offence under section 66A (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66A (1), it may find the accused not guilty of the offence charged but guilty of an offence under section 66A (1). The accused is liable to punishment accordingly. (3) If on the trial of a person for an offence under section 66C (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (1) or (3), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (1) or (3). The accused is liable to punishment accordingly. (4) If on the trial of a person for an offence under section 66C (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (3) or (4), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (3) or (4). The accused is liable to punishment accordingly. (5) If on the trial of a person for an offence under section 66C the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66D. The accused is liable to punishment accordingly. 66EA Persistent sexual abuse of a child (1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years. (2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion. (3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales. (4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred. (5) A charge of an offence against this section: (a) must specify with reasonable particularity the period during which the offence against this section occurred, and (b) must describe the nature of the separate offences alleged to have been committed by the accused during that period. (6) In order for the accused to be convicted of an offence against this section: (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and (b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and (c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and (d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section. (7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6). (8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10). (9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence. (10) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly. (11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions. (12) In this section:”child” means a person under the age of 18 years.”sexual offence” means any of the following: (a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A, (b) an offence of attempting to commit an offence referred to in paragraph (a), (c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b). 66EB Procuring or grooming child under 16 for unlawful sexual activity (1) Definitions In this section:”adult person” means a person who is of or over the age of 18 years.”child” means a person who is under the age of 16 years.”conduct” includes: (a) communicating in person or by telephone, the internet or other means, or (b) providing any computer image, video or publication. “unlawful sexual activity” means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State). (2) Procuring children An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 15 years, or (b) in any other case–imprisonment for 12 years. (2A) Meeting child following grooming An adult person: (a) who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and (b) who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 15 years, or (b) in any other case–imprisonment for 12 years. (2B) For the purposes of subsection (2A), a child has been “groomed for sexual purposes” by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material. (3) Grooming children An adult person: (a) who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance, and (b) who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 12 years, or (b) in any other case–imprisonment for 10 years. (4) Unlawful sexual activity need not be particularised In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity. (5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section: (a) to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and (b) to the age of the child is a reference to the age that the accused believed the person to be. (6) Charge for aggravated offence The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. (7) Defence It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child. (8) Alternative verdict If on the trial of a person charged with an offence against subsection (2) or (2A) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (3), the jury may acquit the person of the offence charged and find the person guilty of an offence against subsection (3). The person is liable to punishment accordingly. 66F Sexual offences–cognitive impairment (1) Meaning of “person responsible for care” For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person: (a) at a facility at which persons with a cognitive impairment are detained, reside or attend, or (b) at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment. The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision. (2) Sexual intercourse: person responsible for care A person: (a) who has sexual intercourse with a person who has a cognitive impairment, and (b) who is responsible for the care of that person (whether generally or at the time of the sexual intercourse), is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Sexual intercourse: taking advantage of impairment A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence. Maximum penalty: imprisonment for 8 years. (4) Attempts A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence. (5) Consent not a defence for sexual intercourse The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2)-(4). (6) Consent not a defence for indecent assault or act of indecency The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P in connection with such an offence) if: (a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or (b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment. (7) Defences It is a defence to a charge for an offence under subsection (2)-(4) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection: (a) if, at the time of the conduct constituting the offence: (i) the accused did not know the person to whom the charge relates had a cognitive impairment, or (ii) the accused was married to the person to whom the charge relates or was an established de facto partner of that person, or (b) if the act constituting the offence was carried out for any proper medical or hygienic purpose. (8) Approval of Attorney General for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General: (a) an offence under subsection (2)-(4), (b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection. 67, 68 (Repealed) 69 (Renumbered) (Renumbered as clause 52 of Schedule 11) 70 (Renumbered) (Renumbered as clause 53 of Schedule 11) 71-72A (Repealed) 73 Sexual intercourse with child between 16 and 18 under special care (1) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 16 years and under the age of 17 years, is liable to imprisonment for 8 years. (2) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. (3) For the purposes of this section, a person (“the victim”) is under the special care of another person (“the offender”) if, and only if: (a) the offender is the step-parent, guardian or foster parent of the victim, or (b) the offender is a school teacher and the victim is a pupil of the offender, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or (e) the offender is a health professional and the victim is a patient of the health professional. (4) Any person who attempts to commit an offence under subsection (1) or (2) is liable to the penalty provided for the commission of the offence. (5) A person does not commit an offence under this section if the person and the other person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other. 74-76A (Repealed) 77 Consent no defence in certain cases (1) The consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E (1A), (2) or (2A), 61M (2), 61N (1), 61O (1), (2) or (2A), 66A (1) or (2), 66B, 66C, 66D, 66EA, 66EB, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76. (2) (Repealed) 77A, 78 (Repealed) 78A Incest (1) Any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years. (2) For the purposes of this section, a “close family member” is a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth. 78B Incest attempts Any person who attempts to commit an offence under section 78A is liable to imprisonment for two years. 78C Defences (1) It shall be a sufficient defence to a charge under section 78A or section 78B that the person charged did not know that the person with whom the offence is alleged to have been committed was related to him or her, as alleged. (2) It shall be no defence to a charge under section 78A or section 78B that the person with whom the offence is alleged to have been committed consented thereto. 78D (Repealed) 78E (Renumbered) (Renumbered as clause 54 of Schedule 11) 78F Sanction of Attorney-General (1) No prosecution for an offence under sections 78A or 78B shall be commenced without the sanction of the Attorney-General. (2) (Repealed) 78G-78S (Repealed) 78T (Renumbered) (Renumbered as clause 55 of Schedule 11) 79 Bestiality Any person who commits an act of bestiality with any animal shall be liable to imprisonment for fourteen years. 80 Attempt to commit bestiality Any person who attempts to commit an act of bestiality with any animal shall be liable to imprisonment for five years. 80A Sexual assault by forced self-manipulation (1) In this section:”circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment. “self-manipulation” means the penetration of the vagina (including a surgically constructed vagina) or anus of any person by an object manipulated by the person, except where the penetration is carried out for proper medical or other proper purposes.”threat” means: (a) a threat of physical force, or (b) intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force. (2) Any person who compels another person to engage in self-manipulation, by means of a threat that the other person could not reasonably be expected to resist, is liable to imprisonment for 14 years. (2A) Any person who compels another person to engage in self-manipulation: (a) by means of a threat that the other person could not reasonably be expected to resist, and (b) in circumstances of aggravation, is liable to imprisonment for 20 years. (3) A person does not commit an offence under this section unless the person knows that the other person engages in the self-manipulation as a result of the threat. 80AA Referral to child protection agency On conviction of a person for an offence under this Division, the court may refer the matter to an appropriate child protection agency if the person against whom or with whom the offence was committed is under the authority of the offender. Division 10A – Sexual servitude 80B Meaning of “sexual servitude” (1) For the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats: (a) is not free to cease providing sexual services, or (b) is not free to leave the place or area where the person provides sexual services. (2) In this section:”sexual service” means the commercial use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others.”threat” means: (a) a threat of force, or (b) a threat to cause a person’s deportation, or (c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person. 80C Meaning of “circumstances of aggravation” In this Division, “circumstances of aggravation” means circumstances involving either or both of the following: (a) the alleged victim is under the age of 18 years, (b) the alleged victim has a cognitive impairment (within the meaning of Division 10). 80D Causing sexual servitude (1) A person: (a) who causes another person to enter into or remain in sexual servitude, and (b) who intends to cause, or is reckless as to causing, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person is guilty of an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 20 years. 80E Conduct of business involving sexual servitude (1) A person: (a) who conducts any business that involves the sexual servitude of other persons, and (b) who knows about, or is reckless as to, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person commits an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 19 years. (3) For the purposes of this section, “conducting a business” includes: (a) taking any part in the management of the business, or (b) exercising control or direction over the business, or (c) providing finance for the business. 80F Alternative verdicts If on the trial of a person for an offence under section 80D (2) or 80E (2) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under section 80D (1) or 80E (1), respectively, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. Division 10B – Incitement to commit sexual offence 80G Incitement to commit sexual offence (1) A person who incites the commission of an offence under Division 10, 10A or 15A is guilty of an offence and is liable to the penalty provided for the commission of the offence. (2) For the person to be guilty, the person must intend that the offence incited be committed. (3) A person may be found guilty even if committing the offence incited is impossible. (4) Any defences, procedures, limitations or qualifying provisions that apply to the offence incited also apply to an offence under this section. (5) It is not an offence to incite the commission of the following offences: (a) an offence against section 61N or 61O that is constituted by inciting another person to an act of indecency, (b) an offence against section 61P, 66B, 66D, 66EB, 66F (4), 73 (4), 78B or 80. 81-81B (Repealed) Division 11 – Misconduct with regard to corpses 81C Misconduct with regard to corpses Any person who: (a) indecently interferes with any dead human body, or (b) improperly interferes with, or offers any indignity to, any dead human body or human remains (whether buried or not), shall be liable to imprisonment for two years. Division 12 – Attempts to procure abortion 82 Administering drugs etc to herself by woman with child Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. 83 Administering drugs etc to woman with intent Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. 84 Procuring drugs etc Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years. Division 13 – Concealing birth of a child 85 Concealment of birth (1) Whosoever by any disposition of the dead body of a child, whether the child died before or after or during its birth, wilfully conceals or attempts to conceal the birth of the child, shall be liable to imprisonment for two years. (2) It shall be a sufficient defence to any charge under this section if the accused person shall satisfy the court or jury that the dead body in respect of which the disposition took place had issued from the body of its mother before the expiration of the twenty-eighth week of pregnancy. Division 13A – (Renumbered) (Renumbered as Part 3 Division 14) 85A (Renumbered as sec 86) Division 14 – Kidnapping 86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person’s consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly. (5) A person who takes or detains a child is to be treated as acting without the consent of the child. (6) A person who takes or detains a child does not commit an offence under this section if: (a) the person is the parent of the child or is acting with the consent of a parent of the child, and (b) the person is not acting in contravention of any order of a court relating to the child. (7) In this section:”child” means a child under the age of 16 years.”detaining” a person includes causing the person to remain where he or she is.”parent” of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children.”taking” a person includes causing the person to accompany a person and causing the person to be taken. 87 Child abduction (1) A person who takes or detains a child with the intention of removing or keeping the child from the lawful control of any person having parental responsibility for the child, without the consent of that person, is liable to imprisonment for 10 years. (2) A person who takes or detains a child with the intention of stealing from the child is liable to imprisonment for 10 years. (3) In this section:”child” means a child under the age of 12 years.”detaining a child” includes causing the child to remain where he or she is.”taking a child” includes causing the child to accompany a person and causing the child to be taken. (4) In this section, a reference to a person who has parental responsibility for a child is a reference to: (a) a person who has, in relation to a child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children, or (b) a person authorised to be the carer of the child under an Act relating to the care and protection of children. 88-91 (Repealed) Division 14A – Procuring for prostitution 91A Procuring etc Whosoever procures, entices or leads away any person (not being a prostitute), whether with that person’s consent or not for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for seven years. 91B Procuring person by drugs etc Whosoever by means of any fraud, violence, threat, or abuse of authority, or by the use of any drug or intoxicating liquor, procures, entices, or leads away any person for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for ten years. Division 15 – Child prostitution 91C Definitions For the purposes of this Division: “act of child prostitution” means any sexual service, whether or not involving an indecent act: (a) that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person), and (b) that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child, and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in section 61H) for payment or masturbation committed by one person on another for payment, engaged in by a child. “child” means a person who is under the age of 18 years. 91D Promoting or engaging in acts of child prostitution (1) Any person who: (a) by any means, causes or induces a child to participate in an act of child prostitution, or (b) participates as a client with a child in an act of child prostitution, is liable to imprisonment for 10 years or, if the child is under the age of 14 years, to imprisonment for 14 years. (2) (Repealed) (3) The consent of a child is not a defence to a charge relating to an offence under this section. 91E Obtaining benefit from child prostitution (1) Any person who receives money or any other material benefit knowing that it is derived directly or indirectly from an act of child prostitution is liable to imprisonment for 10 years or, if the act of child prostitution involves a child under the age of 14 years, to imprisonment for 14 years. (2) A person is not guilty of an offence under this section if the person satisfies the court that the money or other material benefit concerned: (a) was received by the person for the lawful provision of goods or services, or (b) was paid or provided in accordance with a judgment or an order of a court or a legislative requirement, whether or not under New South Wales law. (3) The higher maximum penalty under this section in the case of an offence involving a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. 91F Premises not to be used for child prostitution (1) Any person who is capable of exercising lawful control over premises at which a child participates in an act of child prostitution is liable to imprisonment for 7 years. (2) For the purposes of this section, each person: (a) who is an owner, lessee, licensee or occupier of premises, (b) who is concerned in the management of premises or in controlling the entry of persons to, or their movement within, premises, is to be considered as capable of exercising lawful control over the premises, whether or not any other person is capable of exercising lawful control over the premises. (3) A person is not guilty of an offence under this section relating to an act of child prostitution if the person satisfies the court: (a) that the person did not know about the act, or (b) that the person did not know that a child was participating in the act or, for any other reason, did not know that the act was an act of child prostitution, or (c) that the person used all due diligence to prevent the child from participating in the act. Division 15A – Child abuse material 91FA Definitions For the purposes of this Division: “child” means a person who is under the age of 16 years. “child abuse material” –see section 91FB. “data” includes: (a) information in any form, or (b) any program (or part of a program). “material” includes any film, printed matter, data or any other thing of any kind (including any computer image or other depiction). 91FB Child abuse material–meaning (1) In this Division:”child abuse material” means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The “private parts” of a person are: (a) a person’s genital area or anal area, or (b) the breasts of a female person. 91G Children not to be used for production of child abuse material (1) Any person who: (a) uses a child who is under the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 14 years. (2) Any person who: (a) uses a child who is of or above the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) (Repealed) (4) For the purposes of this section, a person may have the care of a child without necessarily being entitled by law to have the custody of the child. (5) Where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 91H Production, dissemination or possession of child abuse material (1) In this section:”disseminate” child abuse material, includes: (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. “possess” child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).”produce” child abuse material includes: (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty: imprisonment for 10 years. 91HA Defences (1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material. (2) It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it. (3) Public benefit It is a defence in proceedings for an offence against section 91H that the conduct engaged in by the defendant: (a) was of public benefit, and (b) did not extend beyond what was of public benefit. (4) Conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in: (a) enforcing or administering a law of the State, or of another State, a Territory or the Commonwealth, or (b) monitoring compliance with, or investigating a contravention of, a law of the State, or of another State, a Territory or the Commonwealth, or (c) the administration of justice. (5) The question of whether a person’s conduct is of public benefit is a question of fact and the person’s motives for engaging in the conduct are irrelevant. (6) Law enforcement officers It is a defence in proceedings for an offence against section 91H that: (a) the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or her duties, and (b) the conduct of the defendant was reasonable in the circumstances for the purpose of performing that duty. (7) Classified material It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC). (8) Approved research It is a defence in proceedings for an offence against section 91G or 91H that the conduct engaged in by the defendant: (a) was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and (b) did not contravene any conditions of that approval. Division 15B – Voyeurism and related offences 91I Definitions (1) In this Division:”building” includes a vehicle, vessel, tent or temporary structure.”private parts” means a person’s genital area or anal area, whether bare or covered by underwear. (2) For the purposes of this Division, a person is “engaged in a private act” if: (a) the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and (b) the circumstances are such that a reasonable person would reasonably expect to be afforded privacy. (3) For the purposes of this Division, a person “films” another person, or another person’s private parts, if the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later). 91J Voyeurism (1) General offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act: (a) without the consent of the person being observed to being observed for that purpose, and (b) knowing that the person being observed does not consent to being observed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act: (a) without the consent of the person being observed to being observed for that purpose, and (b) knowing that the person being observed does not consent to being observed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender observed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. 91K Filming a person engaged in private act (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender filmed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. 91L Filming a person’s private parts (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would expect that his or her private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, “circumstances of aggravation” means circumstances in which: (a) the person whom the offender filmed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. (7) Double jeopardy A person cannot be convicted of both an offence against this section and an offence against section 91K in respect of conduct occurring on the same occasion. 91M Installing device to facilitate observation or filming (1) Offence A person who, with the intention of enabling that person or any other person to commit an offence against section 91J, 91K or 91L, installs any device, or constructs or adapts the fabric of any building, for the purpose of facilitating the observation or filming of another person, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against this section is a summary offence. (3) Alternative verdict If on the trial of a person charged with an offence against section 91J, 91K or 91L the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against this section, the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against this section. The person is liable to punishment accordingly. Division 16 – Bigamy 92 Bigamy Whosoever, being married, marries another person during the life of the former husband or wife, shall be liable to imprisonment for seven years: Provided that no person shall be convicted under this section whose husband or wife has at the time of such second marriage been continually absent from such person for the space of seven years, or, if domiciled in New South Wales at the time of the first marriage, has been continually absent from New South Wales for the space of five years then last past, and was, on reasonable grounds, believed by the accused at the time of the second marriage not to be living, of which facts the proof shall lie on the accused. See Marriage Act 1961 (Commonwealth), section 94. 93 Participator in bigamy Whosoever, whether married or unmarried, marries the husband or wife of any person not continually so absent, as in the proviso to section 92 mentioned, knowing him or her to be married, and the former wife or husband to be alive, shall be liable to imprisonment for five years. See Marriage Act 1961 (Commonwealth), section 94. Part 3A – Offences relating to public order Division 1 – Riot and affray 93A Definition In this Division: “violence” means any violent conduct, so that: (a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and (b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short). 93B Riot (1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years. (2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously. (3) The common purpose may be inferred from conduct. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Riot may be committed in private as well as in public places. 93C Affray (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) For the purposes of this section, a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as in public places. 93D Mental element under sections 93B and 93C (1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent. (2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence. (3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence. 93E (Repealed) Division 2 – Explosives and firearms offences 93F Interpretation (1) In this Division:”firearm”, “imitation firearm”, “pistol” and “prohibited firearm” have the same meanings as in the Firearms Act 1996.”unregistered firearm” means a firearm that is not registered under the Firearms Act 1996, but does not include any such firearm that is not required to be registered under that Act. (2) For the purposes of this Division, a person who is in a vehicle or vessel in a public place is taken to be in that place. (3) In subsection (2), “vehicle” includes a caravan or anything else constructed to be drawn by a vehicle or animal. 93FA Possession, supply or making of explosives (1) A person who possesses an explosive in a public place is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) A person who possesses, supplies or makes an explosive, under circumstances that give rise to a reasonable suspicion that the person did not possess, supply or make the explosive for a lawful purpose, is guilty of an offence. Maximum penalty: Imprisonment for 3 years or 50 penalty units, or both. (3) (Repealed) (4) A person is not guilty of an offence against subsection (1) or (2) for possessing or making an explosive if the person satisfies the court that he or she had a reasonable excuse for doing so or did so for a lawful purpose. 93FB Possession of dangerous articles other than firearms (1) A person who, in a public place, possesses: (a) anything (not being a firearm within the meaning of the Firearms Act 1996) capable of discharging by any means: (i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or (ii) any substance capable of causing bodily harm, or (b) a fuse capable of use with an explosive or a detonator, or (c) a detonator, is liable, on conviction before the Local Court, to imprisonment for 2 years, or a fine of 50 penalty units, or both. (2) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose. (3) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) (a) if the person satisfies the court that he or she possessed it for the purpose of self-defence and that it was reasonable in the circumstances to possess it for that purpose. (4) In considering a defence under subsection (3), the court must have regard to its reasonableness in all the circumstances of the case, including: (a) the immediacy of the perceived threat to the person charged, and (b) the circumstances, such as the time and location, in which the thing was possessed, and (c) the type of thing possessed, and (d) the age, characteristics and experiences of the person charged. 93G Causing danger with firearm or spear gun (1) Any person who: (a) possesses a loaded firearm or loaded spear gun: (i) in a public place, or (ii) in any other place so as to endanger the life of any other person, or (b) fires a firearm or spear gun in or near a public place, or (c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person, is liable to imprisonment for 10 years. (2) For the purposes of this section: (a) a firearm is to be regarded as being loaded if there is ammunition: (i) in its chamber or barrel, or (ii) in any magazine or other device which is in such a position that the ammunition can be fitted into its chamber or barrel by operation of some other part of the firearm, and (b) a spear gun is to be regarded as being loaded if a spear, or an instrument or thing similar to a spear, is fitted to it. (3) A person is not guilty of an offence under this section for possessing or doing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or doing it or possessed it or did it for a lawful purpose. 93GA Firing at dwelling-houses or buildings (1) A person who fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 14 years. (1A) A person who, during a public disorder, fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. (1B) A person who, in the course of an organised criminal activity, fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. (2) In the prosecution of an offence under this section, it is not necessary to prove that a person was actually placed in danger by the firing of the firearm. (3) If, on the trial of a person for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 93G or 93H, it may find the person not guilty of the offence charged but guilty of an offence under section 93G or 93H, and the accused is liable to punishment accordingly. (4) If, on the trial of a person for an offence under subsection (1A) or (1B), the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), it may find the person not guilty of the offence charged but guilty of an offence under subsection (1), and the accused is liable to punishment accordingly. 93H Trespassing with or dangerous use of firearm or spear gun (1) A person who, possessing a firearm, imitation firearm, spear gun or imitation spear gun, enters any building or land (other than a road), unless the person: (a) is the owner or occupier of the building or land or has the permission of the owner or occupier, or (b) does so with a reasonable excuse, or (c) does so for a lawful purpose, is liable to imprisonment for 5 years. (2) A person who fires a firearm or spear gun in or into any building or on or on to any land, unless the person: (a) is the owner or occupier of the building or land or has the permission of the owner or occupier, or (b) does so with a reasonable excuse, or (c) does so for a lawful purpose, is liable to imprisonment for 10 years. (3) The onus of proving the matters referred to in subsection (1) (a), (b) and (c) and subsection (2) (a), (b) and (c) lies with the defendant. 93I Possession of unregistered firearm in public place (1) A person who: (a) possesses an unregistered firearm in a public place, and (b) is not authorised under the Firearms Act 1996 to possess the firearm, is liable to imprisonment for 10 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) For the purposes of subsection (2), an offence under subsection (1) is committed in “circumstances of aggravation” if the offence involves the possession: (a) of more than one unregistered firearm, or (b) of an unregistered firearm that is a pistol, or (c) of an unregistered firearm that is a prohibited firearm. Division 3 – Contamination of goods 93J Definitions of “contaminate” and “goods” (1) In this Division:”contaminate” goods includes: (a) interfere with the goods, or (b) making it appear that the goods have been contaminated or interfered with. “goods” includes any substance or article: (a) whether or not for human consumption, and (b) whether natural or manufactured, and (c) whether or not incorporated or mixed with other goods. (2) In this Division, a reference to economic loss caused through public awareness of the contamination of goods includes a reference to economic loss caused through: (a) members of the public not purchasing or using those goods or similar goods, or (b) steps taken to avoid public alarm or anxiety about those goods or similar goods. 93K Contaminating goods with intent to cause public alarm or economic loss A person who contaminates goods with the intention of: (a) causing public alarm or anxiety, or (b) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. 93L Threatening to contaminate goods with intent to cause public alarm or economic loss (1) A person who makes a threat that goods will be contaminated with the intention of: (a) causing public alarm or anxiety, or (b) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. (2) For the purposes of this section, a threat may be made by any act, and may be explicit or implicit and conditional or unconditional. 93M Making false statements concerning contamination of goods with intent to cause public alarm or economic loss (1) A person who makes a statement that the person believes to be false: (a) with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated, and (b) with the intention of thereby: (i) causing public alarm or anxiety, or (ii) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. (2) For the purposes of this section, making a statement includes conveying information by any means. 93N Aggravated circumstances–unwarranted demand (1) A person is guilty of an offence against this section if the person commits an offence under section 93K, 93L or 93M in connection with an unwarranted demand by the person. An unwarranted demand is a demand that the person believes he or she does not have any reasonable grounds for making. (2) A person convicted of an offence against this section is liable to imprisonment for 14 years. (3) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 93K, 93L or 93M, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 93O Aggravated circumstances–death or grievous bodily harm (1) A person is guilty of an offence against this section if the person commits an offence against section 93K or 93L and: (a) the contamination of the goods causes the death of any person or grievous bodily harm to any person, or (b) the person intends by that contamination to cause such death or harm. (2) A person convicted of an offence against this section is liable to imprisonment for 25 years. (3) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 93K or 93L, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 93P Special provisions relating to geographical application of this Division (1) A person commits an offence against a provision of this Division if: (a) the person does an act outside the State that constitutes the offence, and (b) (apart from this section) the act would have constituted the offence had it been done within this State, and (c) the offence involves intending to cause public alarm or anxiety, or economic loss, within the State. (2) A person who commits an offence by the operation of this section may be dealt with, and is liable to the same punishment, as if the person had committed the offence within the State. (3) If an offence against a provision of this Division involves intending to cause public alarm or anxiety, or economic loss, within the State, a geographical nexus between the State and any other element of the offence is not required. (4) The other provisions of this Act, the provisions of other Acts and the common law, in so far as these are applicable, apply to an offence to which this section applies as if it had been committed within the State (for example, section 344A and the rules of law relating to attempts to commit offences apply to such an offence). (5) This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. Division 4 – Bomb and other hoaxes 93Q Conveying false information that a person or property is in danger (1) A person who conveys information: (a) that the person knows to be false or misleading, and (b) that is likely to make the person to whom the information is conveyed fear for the safety of a person or of property, or both, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) This section extends to conveying information by any means including making a statement, sending a document, or transmitting an electronic or other message. (3) In this section, a reference to the safety of a person includes the safety of the person who conveys the information and the person to whom it is conveyed. 93R Leaving or sending an article with intent to cause alarm (1) A person: (a) who leaves in any place, or sends by any means, a substance or article, and (b) who intends to induce a false belief that the substance or article is likely to be a danger to the safety of a person or of property, or both, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) For the purposes of this section, a false belief that a substance or article is likely to be a danger includes a false belief that the substance or article is likely to explode, ignite, or contain, consist of or discharge a dangerous matter. Division 5 – Criminal groups 93S Definitions (1) In this Division:”criminal group” means a group of 3 or more people who have as their objective or one of their objectives: (a) obtaining material benefits from conduct that constitutes a serious indictable offence, or (b) obtaining material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence, or (c) committing serious violence offences, or (d) engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence. “law enforcement officer” has the same meaning as it has in Division 8A of Part 3.”serious violence offence” means an offence punishable by imprisonment for life or for a term of 10 years or more, where the conduct constituting the offence involves: (a) loss of a person’s life or serious risk of loss of a person’s life, or (b) serious injury to a person or serious risk of serious injury to a person, or (c) serious damage to property in circumstances endangering the safety of any person, or (d) perverting the course of justice (within the meaning of Part 7) in relation to any conduct that, if proved, would constitute a serious violence offence as referred to in paragraph (a), (b) or (c). (2) A group of people is capable of being a criminal group for the purposes of this Division whether or not: (a) any of them are subordinates or employees of others, or (b) only some of the people involved in the group are involved in planning, organising or carrying out any particular activity, or (c) its membership changes from time to time. 93T Participation in criminal groups (1) A person who participates in a criminal group is guilty of an offence if the person: (a) knows, or ought reasonably to know, that it is a criminal group, and (b) knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 5 years. (1A) A person who participates in a criminal group by directing any of the activities of the group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 10 years. (2) A person who assaults another person, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) A person who destroys or damages property belonging to another person, or threatens to destroy or damage property belonging to another person, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) A person who assaults a law enforcement officer while in the execution of the officer’s duty, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (4A) A person who participates in a criminal group whose activities are organised and on-going by directing any of the activities of the group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 15 years. (5) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the law enforcement officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. 93TA Receiving material benefit derived from criminal activities of criminal groups (1) A person who receives from a criminal group a material benefit that is derived from the criminal activities of the criminal group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, the benefit is derived from criminal activities of the criminal group. Maximum penalty: Imprisonment for 5 years. (2) In this section, a material benefit “derived” from the criminal activities of a criminal group is a material benefit derived or realised, or substantially derived or realised, directly or indirectly, from the criminal activities of a group. 93U Alternative verdicts (1) If, on the trial of a person for an offence under section 93T (1A), (2), (3), (4) or (4A), the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under section 93T (1), it may find the accused not guilty of the offence charged but guilty of an offence under section 93T (1), and the accused is liable to punishment accordingly. (2) If, on the trial of a person for an offence under section 93T (1), (1A) or (4A), the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under section 93TA, it may find the accused not guilty of the offence charged but guilty of an offence under section 93TA, and the accused is liable to punishment accordingly. Division 6 – Unlawful gambling 93V Offence of conducting unlawful gambling operation (1) A person who conducts an unlawful gambling operation is guilty of an offence. Maximum penalty: 1,000 penalty units or imprisonment for 7 years (or both). (2) For the purposes of subsection (1), “an unlawful gambling operation” means an operation involving at least 2 of the following elements (one of which must be paragraph (d)): (a) the keeping of at least 2 premises (whether or not either or both are gambling premises) that are used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998, (b) substantial planning and organisation in relation to matters connected with any such form of prohibited gambling (as evidenced by matters such as the number of persons, and the amount of money and gambling turnover, involved in the operation), (c) the use of sophisticated methods and technology (for example, telephone diverters, telecommunication devices, surveillance cameras and encrypted software programs) in connection with any such form of prohibited gambling or in avoiding detection of that gambling, (d) a substantial loss of potential revenue to the State that would be derived from lawful forms of gambling. (3) In any proceedings for an offence under this section, evidence that persons have been in regular attendance at premises suspected of being used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998 is relevant to the matters referred to in subsection (2) (a) or (b). (4) In this section:”conduct” includes organise or manage.”gambling premises” has the same meaning as in the Unlawful Gambling Act 1998. Division 7 – Consorting 93W Definitions In this Division: “consort” means consort in person or by any other means, including by electronic or other form of communication. “convicted offender” means a person who has been convicted of an indictable offence (disregarding any offence under section 93X). 93X Consorting (1) A person who: (a) habitually consorts with convicted offenders, and (b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence. Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both. (2) A person does not “habitually consort” with convicted offenders unless: (a) the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and (b) the person consorts with each convicted offender on at least 2 occasions. (3) An “official warning” is a warning given by a police officer (orally or in writing) that: (a) a convicted offender is a convicted offender, and (b) consorting with a convicted offender is an offence. 93Y Defence The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances: (a) consorting with family members, (b) consorting that occurs in the course of lawful employment or the lawful operation of a business, (c) consorting that occurs in the course of training or education, (d) consorting that occurs in the course of the provision of a health service, (e) consorting that occurs in the course of the provision of legal advice, (f) consorting that occurs in lawful custody or in the course of complying with a court order. Part 4 – Stealing and similar offences Division 1 – General 94AA Property previously stolen Where on the trial of a person for any offence which includes the stealing of any property it appears that the property was, at the time when it was taken by the accused, already out of the possession of the owner by reason of its having been previously stolen, the accused may be convicted of the offence charged notwithstanding that it is not proved that the taking by him or her amounted to an interference with the right to possession of, or a trespass against, the owner. Division 2 – Robbery 94 Robbery or stealing from the person Whosoever: robs or assaults with intent to rob any person, or steals any chattel, money, or valuable security from the person of another, shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years. 95 Same in circumstances of aggravation (1) Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years. (2) In this section, “circumstances of aggravation” means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following: (a) the alleged offender uses corporal violence on any person, (b) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (c) the alleged offender deprives any person of his or her liberty. 96 Same (robbery) with wounding Whosoever commits any offence under section 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to imprisonment for 25 years. 97 Robbery etc or stopping a mail, being armed or in company (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (3) Alternative verdict If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 98 Robbery with arms etc and wounding Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years. Division 3 – Demanding property with intent to steal 99 Demanding property with intent to steal (1) Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to imprisonment for ten years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) It is immaterial whether any such menace is of violence or injury by the offender or by any other person. 100-105 (Repealed) Division 4 – Sacrilege and housebreaking 105A Definitions (1) In sections 106-115A:”building” includes any place of Divine worship.”circumstances of aggravation” means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. “circumstances of special aggravation” means circumstances involving any or all of the following: (a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person, (b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person, (c) the alleged offender is armed with a dangerous weapon. (2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of “circumstances of aggravation”, or (b) paragraph (a) or (b) of the definition of “circumstances of special aggravation”, can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred. (2A) For the purposes of paragraph (f) of the definition of “circumstances of aggravation”, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place. (3) The definitions in subsection (1) are not mutually exclusive. 106-108 (Repealed) 109 Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence (1) Whosoever: enters the dwelling-house of another, with intent to commit a serious indictable offence therein, or, being in such dwelling-house commits any serious indictable offence therein, and in either case breaks out of the said dwelling-house shall be liable to imprisonment for fourteen years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 110 Breaking, entering and assaulting with intent to murder etc Whosoever breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 25 years. 111 Entering dwelling-house (1) Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. 112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 113 Breaking etc into any house etc with intent to commit serious indictable offence (1) A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence and liable to imprisonment for 10 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. 114 Being armed with intent to commit indictable offence (1) Any person who: (a) is armed with any weapon, or instrument, with intent to commit an indictable offence, (b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance, (c) has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence, (d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building, shall be liable to imprisonment for seven years. (2) For the purposes of subsection (1) (b) “conveyance” means any cab, carriage, motor car, caravan, trailer, motor lorry, omnibus, motor or other bicycle, or any ship, or vessel, used in or intended for navigation, and “drive” shall be construed accordingly. 115 Being convicted offender armed with intent to commit indictable offence Whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years. 115A Alternative verdicts (1) Aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. This subsection does not apply to an offence if the jury proceeds under subsection (2) in relation to it. Division 5 – Larceny 116 All larcenies to be of same nature Every larceny, whatever the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the passing of the Act seventh and eighth George the Fourth, chapter twenty-nine. 117 Punishment for larceny Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. 118 Intent to return property no defence Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal. 119 Verdict where several takings proved Where, on the trial of a person for larceny, it appears that the property alleged in any count to have been stolen at one time, was taken at different times, the prosecutor shall not be required to elect upon which taking the prosecutor will proceed, unless the Judge so orders: Provided always that evidence shall not in any such case be given of any taking which occurred more than six months in point of time from any other of such takings. 120 Trial for larceny–verdict of embezzlement etc Where, on the trial of a person for larceny, it appears that the person took the property in such manner as to amount in law to the offence of embezzlement or fraudulent misappropriation, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, or of obtaining property by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, the jury may acquit the person of the larceny charged, and find the person guilty of such other offence, and the person shall be liable to punishment accordingly. 121 Verdict of “larceny or receiving” Where, on the trial of a person charged with larceny, or any offence which includes larceny, and, also, with having unlawfully received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that the person either stole, or unlawfully received, such property, and that they are unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the unlawful receiving, whichever of the two offences is subject to the lesser punishment. 122 Verdict where persons indicted for joint larceny or receiving On the trial of any two, or more, persons charged with larceny, and also with having unlawfully received property, the jury may find all, or any, of such persons guilty, either of stealing, or unlawfully receiving, the property, or part or parts thereof, or may find one, or more, of the said persons guilty of stealing, and the other, or others, of them guilty of unlawfully receiving the property, or part or parts thereof. 123 Verdict of minor indictable offence Where, on the trial of a person for larceny, it appears that the property in question was taken, appropriated, or retained, under circumstances amounting to a minor indictable offence, the jury may acquit the person of the offence charged and find the person guilty of the minor indictable offence, and the person shall be liable to punishment accordingly. 124 Fraudulent appropriation Where, upon the trial of a person for larceny, it appears: (a) that the person had fraudulently appropriated to his or her own use or that of another, the property in respect of which the person is indicted, although the person had not originally taken the property with any fraudulent intent, or (b) that the person had fraudulently retained the property in order to secure a reward for its restoration, the jury may return a verdict accordingly, and thereupon the person shall be liable to imprisonment for two years, or to a fine of 20 penalty units, or both. 125 Larceny by bailee Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part thereof, or any property into or for which it has been converted, or exchanged, to his or her own use, or the use of any person other than the owner thereof, although he or she does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indicted for that offence. The accused shall be taken to be a bailee within the meaning of this section, although he or she may not have contracted to restore, or deliver, the specific property received by him or her, or may only have contracted to restore, or deliver, the property specifically. 126 Stealing cattle or killing with intent to steal Whosoever: steals any cattle, or wilfully kills any cattle with intent to steal the carcass, or skin, or other part, of the cattle so killed, shall be liable to imprisonment for fourteen years. 127 Stealing or killing cattle–uncertainty as to sex or age not to entitle to acquittal Where, on the trial of a person for an offence under section 126 it appears that the person stole, or killed, an animal of the species described in the indictment, but it is uncertain on the evidence what was its sex, or age, such person shall not be entitled to acquittal by reason only of such uncertainty. 128 Trial for stealing cattle–verdict of stealing skins Where, on the trial of a person for stealing cattle, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of stealing the carcass, or skin, or part, of such cattle, or of killing the said cattle within section 126, they may acquit the person of the offence charged, and find the person guilty of such last-mentioned stealing, or killing, and the person shall be liable to punishment accordingly. 129 Trial for killing cattle–verdict of stealing Where, on the trial of a person for the offence of killing cattle within the meaning of section 126, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of stealing such cattle, they may acquit the person of the offence charged, and find the person guilty of such stealing, and the person shall be liable to punishment accordingly. 130 Trial for stealing cattle–verdict of misdemeanour Where, on the trial of a person for stealing cattle, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 131, they may acquit the person of the offence charged, and find the person guilty of an offence under the said last mentioned section, and the person shall be liable to punishment accordingly. 131 Unlawfully using etc another person’s cattle Whosoever: takes and works, or otherwise uses, or takes for the purpose of working, or using, any cattle the property of another person without the consent of the owner, or person in lawful possession thereof, or takes any such cattle for the purpose of secreting the same, or obtaining a reward for the restoration or pretended finding thereof, or for any other fraudulent purpose, or fraudulently brands, or ear-marks, or defaces, or alters, the brands or ear-marks of any cattle the property of another person, shall be liable to imprisonment for three years. 132 Stealing dogs Whosoever, having been summarily convicted under this or any former Act, of any such offence as is hereinafter in this section mentioned, afterwards, steals any dog, or has unlawfully in his or her possession any stolen dog, or the skin of any stolen dog, knowing such dog to have been stolen, shall be liable to imprisonment for one year. 133 Taking money to restore dogs Whosoever corruptly takes any money or reward, directly or indirectly, under pretence, or upon account, of aiding any person to recover any dog which has been stolen, or which is in the possession of any person other than its owner, shall be liable to imprisonment for one year. 134 Stealing, destroying etc valuable security Whosoever steals, embezzles, or for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any valuable security, shall be liable, as if he or she had stolen a chattel, to be punished as for larceny. 135 Stealing, destroying etc wills or codicils Whosoever steals, or, for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any will, codicil, or other testamentary instrument, either during the life of the testator, or after the testator’s death, or whether the same relates to real, or personal estate, or to both, shall be liable to imprisonment for seven years. 136 Proviso to sections 134 and 135 No person shall be convicted under section 134 or section 135 in respect of any act done by the person, if, before being charged with the offence, the person first disclosed such act on oath, under compulsory process, in a proceeding instituted in good faith by a party aggrieved, or under compulsory examination in some matter in bankruptcy, or insolvency, or under compulsory examination in some matter in the liquidation of a corporation. 137 Civil remedies not affected by conviction (1) Nothing in section 134 or in section 135, nor any proceeding, conviction, or judgment thereupon, shall affect any remedy at law, or in equity, which any party aggrieved would have had if this Act had not been passed. (2) No evidence of the conviction of any person under either of the said sections shall be admissible in any action, or suit, against the person. 138 Stealing, destroying etc records etc of any court or public office Whosoever steals, or for any fraudulent purpose, takes from its place of deposit, for the time being, or from any person having the lawful custody thereof, or unlawfully and intentionally or recklessly cancels, obliterates, injures, or destroys, the whole or any part, of any record, document, or writing, of, or belonging to, any Court, or relating to any matter or cause, civil or criminal, pending, or terminated, in any Court, or relating to the business of any office or employment under Her Majesty, and being in any public office, shall be liable to imprisonment for seven years. 139 Stealing etc metal, glass, wood etc fixed to house or land Whosoever steals, or rips, cuts, severs, or breaks with intent to steal, any glass, or woodwork, belonging to any building, or any metal, or any utensil, or fixture, whether made of metal or other material, or of both respectively, fixed in, or to, any building, or anything made of metal, fixed in any land being private property, or used as a fence to any dwelling-house, garden, or area, or being in any square, or street, or in, or on, any place dedicated to public use or ornament, or in any burial-ground, shall be liable to be punished as for larceny. 140 Stealing etc trees etc in pleasure-grounds etc Whosoever: steals, or destroys or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood, growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground belonging to any dwelling-house, where the value of the article stolen, or the amount of injury done, exceeds two dollars, or steals, or destroys or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood respectively growing elsewhere than in any situation beforementioned, where the value of the article stolen, or the amount of injury done, exceeds ten dollars, shall be liable to be punished as for larceny. 141-147 (Repealed) 148 Stealing property in a dwelling-house Whosoever steals in a dwelling-house any property shall be liable to imprisonment for seven years. 149 The same with menaces Whosoever steals any property in a dwelling-house, and uses thereafter any menace or threat to any person therein, shall be liable to imprisonment for fourteen years. 150 Stealing goods in process of manufacture Whosoever steals, to the value of one dollar, any goods, article, or material, while anywhere placed, or exposed, during the process or progress of manufacture, shall be liable to imprisonment for a term not exceeding three years. 151 Selling etc materials to be manufactured Whosoever, being, for the purpose of manufacture, or any special purpose connected with manufacture, employed to make, prepare, or work up, any goods, article, or material, or being for any such purpose entrusted with any such goods, article, or material, or with any tools, or apparatus, sells, pawns, purloins, secretes, embezzles, exchanges, or otherwise fraudulently disposes of the same, or any part thereof, shall be liable to imprisonment for four years. 152 Stealing from ship in port or on wharfs etc Whosoever: steals any property in any vessel, barge, or boat, while in any haven, or port, or upon any navigable river, or canal, or in any creek, or basin, belonging to, or communicating with, any such haven, port, river, or canal, or steals any property from any dock, wharf, or quay, shall be liable to imprisonment for seven years. 153 Stealing from ship in distress or wrecked Whosoever steals, or plunders, any part of any vessel in distress, or wrecked, stranded, or cast on shore, or any property of any kind to the value of two dollars belonging to such vessel, shall be liable to imprisonment for ten years. 154 Tenants etc stealing articles let to hire Whosoever, being the tenant, or occupier, of any house, building, or lodging, steals any chattel, or fixture let to be used therewith, whether the contract was entered into by the accused, or by any person on his or her behalf, shall be liable to be punished as for larceny. 154A Taking a conveyance without consent of owner (1) Any person who: (a) without having the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose, or (b) knowing that any conveyance has been taken without such consent, drives it or allows himself or herself to be carried in or on it, shall be deemed to be guilty of larceny and liable to be indicted for that offence. (2) For the purposes of this section “conveyance” means any cart, wagon, cab, carriage, motor car, caravan, trailer, motor lorry, tractor, earth moving equipment, omnibus, motor or other bicycle, tank or other military vehicle, or any ship, or vessel, used or intended for navigation, and “drive” shall be construed accordingly. 154AA (Repealed) 154B Stealing aircraft and unlawfully taking or exercising control of aircraft (1) Whosoever steals any aircraft shall be liable to imprisonment for ten years. (2) Whosoever without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for seven years. (3) Whosoever without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft while another person, not being an accomplice of the first-mentioned person, is on board the aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for fourteen years. (4) Whosoever without lawful excuse, by force or violence or threat of force or violence, or by any trick or false pretence, takes or exercises control, whether direct or through another person, of an aircraft while another person, not being an accomplice of the first-mentioned person, is on board the aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for twenty years. 154C Taking motor vehicle or vessel with assault or with occupant on board (1) A person who: (a) assaults another person with intent to take a motor vehicle or vessel and, without having the consent of the owner or person in lawful possession of it, takes and drives it, or takes it for the purpose of driving it, or (b) without having the consent of the owner or person in lawful possession of a motor vehicle or vessel, takes and drives it, or takes it for the purpose of driving it, when a person is in or on it, is liable to imprisonment for 10 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) In this section:”circumstances of aggravation” means circumstances involving any one or more of the following: (a) the alleged offender is in the company of another person or persons, (b) the alleged offender is armed with an offensive weapon or instrument, (c) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person. “drive” includes operate.”motor vehicle” means a motor vehicle within the meaning of the Road Transport (General) Act 2005.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 154D Stealing firearms (1) A person who steals a firearm is liable to imprisonment for 14 years. (2) In this section:”firearm” has the same meaning as in the Firearms Act 1996, and includes an imitation firearm within the meaning of that Act. Division 5A – Offences relating to theft of motor vehicles and vessels 154E Definitions (1) In this Division:”interfere” with a thing includes alter, deface, remove, obliterate, conceal or add anything to the thing.”motor vehicle” means: (a) a motor vehicle within the meaning of the Road Transport (General) Act 2005 (whether or not the vehicle contains the motor intended to form part of it), or (b) a motor intended to form part of, or capable of forming part of, any such motor vehicle, or (c) any part of any such motor vehicle containing, or consisting of, an identification plate for a vehicle under the Motor Vehicle Standards Act 1989 of the Commonwealth. “unique identifier” means any numbers, letters, symbols or other identification information: (a) marked on or attached to a motor vehicle or vessel, or a part of a motor vehicle or vessel, or (b) marked on a thing that is designed to be attached to a motor vehicle or vessel, or a part of the motor vehicle or vessel, or (c) stored in electronic form in a part of a motor vehicle or vessel, for the primary purpose of: (d) enabling a particular motor vehicle, vessel or part to be distinguished from all other motor vehicles, vessels or parts (including by enabling a part to be identified as a part of a particular motor vehicle or vessel), or (e) identifying different motor vehicle or vessel production batches (including by enabling a part to be identified as a part of a motor vehicle or vessel of a particular production batch). “vessel” means a vessel within the meaning of the Marine Safety Act 1998. (2) For the purposes of this Division, a “part” of a motor vehicle or vessel includes a thing (such as a key) manufactured in connection with the motor vehicle or vessel that enables the operation of the motor vehicle or vessel or prevents the unauthorised operation of the motor vehicle or vessel. 154F Stealing motor vehicle or vessel A person who steals a motor vehicle or vessel is guilty of an offence. Maximum penalty: imprisonment for 10 years. 154G Facilitating organised car or boat rebirthing activities (1) A person who facilitates a car or boat rebirthing activity that is carried out on an organised basis knowing that: (a) it is a car or boat rebirthing activity, and (b) it is carried out on an organised basis, is guilty of an offence. Maximum penalty: imprisonment for 14 years. (2) For the purposes of this section, a “car or boat rebirthing activity” is an activity involving one or more of the following: (a) the stealing of a motor vehicle or vessel or the receiving of a stolen motor vehicle or stolen vessel, (b) the interference with a motor vehicle or vessel, or a part of a motor vehicle or vessel, or a unique identifier, for the purpose of concealing the fact that a motor vehicle or vessel, or any part of a motor vehicle or vessel, is stolen, (c) the affixing of stolen parts to a motor vehicle or vessel, (d) the interference with a unique identifier, being a unique identifier that wholly or partly identifies a motor vehicle or vessel for registration under a law of any jurisdiction, for the purpose of disguising or misrepresenting the identity of a motor vehicle or vessel, (e) the registration, in this or any other jurisdiction, of a stolen motor vehicle or stolen vessel, or of a motor vehicle or vessel that has had stolen parts affixed to it, (f) the supply of, or offering to supply, a stolen motor vehicle or stolen vessel. (3) A person “facilitates” a car or boat rebirthing activity if the person: (a) takes, or participates in, any step, or causes any step to be taken, that is part of the activity, or (b) provides or arranges finance for any step that is part of the activity, or (c) provides the premises in which any step that is part of the activity is taken, or allows any step that is part of the activity to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management. (4) A car or boat rebirthing activity is carried out on an “organised basis” if: (a) it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant, and (b) it is carried out for profit or gain. (5) In proceedings for an offence against this section, for the purpose of proving that an activity was carried out on an organised basis, or that the accused knew it was carried out on an organised basis, it is not necessary to prove: (a) that the accused knew any of the participants in the activity or that any of the participants knew each other, or (b) that the activity was planned, organised, structured or otherwise carried out under the direction of any particular person or persons or in any hierarchical manner, or (c) that the same participants were involved on each occasion on which the activity was carried out. 154H Making, using and interfering with unique identifiers (1) A person who: (a) dishonestly interferes with, or copies, a unique identifier, or (b) possesses a motor vehicle or vessel, or a part of a motor vehicle or vessel, with the intention of dishonestly interfering with, or copying, a unique identifier, or (c) dishonestly makes a unique identifier, or a purported unique identifier, or (d) knowingly induces another person to accept any information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier for the motor vehicle, vessel or part, when the information is not in fact a genuine unique identifier for that motor vehicle, vessel or part, is guilty of an offence. Maximum penalty: imprisonment for 7 years. (2) For the purposes of this section, information is “attached” to a motor vehicle, vessel or a part of a motor vehicle or vessel if it is: (a) marked on or attached to the motor vehicle, vessel or part, or (b) marked on a thing attached to the motor vehicle, vessel or part, or (c) stored in electronic form in a part of the motor vehicle or vessel. (3) In proceedings for an offence against this section, if it is necessary to allege a person knowingly induced another person to accept information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier for the motor vehicle, vessel or part, it is not necessary to allege that the accused knowingly induced a particular person to accept the information as a genuine unique identifier. (4) In this section, a reference to inducing a person to accept information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier includes a reference to causing a computer to respond to the information attached to the motor vehicle, vessel or part as if it were a genuine unique identifier. (5) In this section:”information” includes numbers, letters or symbols. 154I Possession of motor vehicle or vessel where unique identifier has been interfered with (1) A person who dishonestly has possession of a motor vehicle or vessel, or a part of a motor vehicle or vessel, a unique identifier of which has been interfered with, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (2) For the purposes of this section, a person “dishonestly” has possession of a thing if: (a) the person obtained or received the thing dishonestly, or (b) the person intends to register, supply or use the thing dishonestly. 154J Possession of vehicle identification plate not attached to motor vehicle (1) A person is guilty of an offence if the person, without reasonable excuse, knowingly has possession of a vehicle identification plate not attached to the motor vehicle to which it relates. Maximum penalty: imprisonment for 5 years. (2) The onus of proof of reasonable excuse in proceedings for an offence against this section lies on the accused. (3) In this section:”motor vehicle” means a motor vehicle within the meaning of the Road Transport (General) Act 2005 (whether or not the vehicle contains the motor intended to form part of it).”vehicle identification number” means a vehicle identification number allocated to a vehicle in accordance with the national standards under the Motor Vehicle Standards Act 1989 of the Commonwealth.”vehicle identification plate” means a plate, label or other thing that has a vehicle identification number on it, is designed to be attached to a motor vehicle and which: (a) enables the motor vehicle to be identified for the purposes of registration under a law of any jurisdiction, or (b) includes information relating to the manufacture of the motor vehicle or compliance with the national standards under the Motor Vehicle Standards Act 1989 of the Commonwealth. Division 6 – Embezzlement or larceny 155 Definition of clerk or servant Every person employed for any purpose, as, or in the capacity of, a clerk, or servant, or as a collector of moneys, although temporarily only, or employed also by other persons, or employed to pay as well as receive moneys, or although the person had no authority from his or her employer to receive money, or other property, on his or her account, shall be deemed a clerk, or servant. 156 Larceny by clerks or servants Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his or her master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years. 157 Embezzlement by clerks or servants Whosoever, being a clerk, or servant, fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her, for, or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant, and shall be liable to imprisonment for ten years. 158 (Repealed) 159 Larceny by persons in Public Service Whosoever, being employed in the Public Service, steals any property, or any part thereof, intrusted to him or her, or taken into his or her possession, or being in his or her custody, or under his or her control, by virtue or colour of such employment, shall be liable to imprisonment for ten years. 160 Embezzlement etc by persons in the Public Service Whosoever, being employed in the Public Service, fraudulently embezzles any property, or any part thereof, so intrusted to him or her, or taken into his or her possession, or being in his or her custody, or under his or her control, or fraudulently secretes, removes, or in any manner fraudulently applies, or disposes of, the same, or any part thereof, shall be deemed to have stolen the same, and shall be liable to imprisonment for ten years. 161 Proof of general deficiency in accounts On the prosecution of a person for larceny, or embezzlement as a clerk, or servant, or as a person employed in the Public Service, where the charge is in respect of money, it shall not be necessary to prove the larceny, or embezzlement, by the accused of any specific sum of money, if there is proof of a general deficiency on the examination of the books of account, or entries kept, or made by him or her, or otherwise, and the jury are satisfied that he or she stole, or fraudulently embezzled the deficient money, or any part thereof. 162 Larceny etc by joint owners Whosoever, being a member of any copartnership, or being one of two, or more, joint owners, steals, or embezzles, any property of, or belonging to, such copartnership, or joint owners, may be convicted of, and punished for, the offence as if he or she was not a member of the copartnership, or one of such joint owners. “Copartnership” shall, for the purposes of this section, include all corporations and societies whatsoever. 163 Trial for embezzlement–verdict of larceny Where, on the trial of any person for embezzlement, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, it appears that the person obtained the property in such manner as to amount in law to larceny, the jury may acquit the person of the offence charged, and find the person guilty of larceny, or of larceny as such clerk, servant, or person, as the case may be, and the person shall be liable to punishment accordingly. 164-186 (Repealed) Division 16 – Receivers 187 Term “stealing” in sections 188 and 189 For the purposes of sections 188 and 189: “Stealing” includes the taking, extorting, obtaining, embezzling, or otherwise disposing of the property in question. 188 Receiving stolen property where stealing a serious indictable offence (1) Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof amounts to a serious indictable offence, knowing the same to have been stolen, shall be guilty of a serious indictable offence, and may be indicted, either as an accessory after the fact, or for a substantive offence, and in the latter case whether the principal offender has been previously tried or not, or is amenable to justice or not, and in either case is liable: (a) if the property is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 12 years, or (b) in the case of any other property, to imprisonment for 10 years. (2) In this section:”motor vehicle” has the same meaning as it has in Division 5A.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 189 Receiving etc where principal guilty of minor indictable offence Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof is a minor indictable offence, knowing the same to have been stolen, shall be guilty of a minor indictable offence, and whether the person guilty of the principal offence has been previously tried or not, or is amenable to justice or not, shall be liable to imprisonment for three years. 189A Receiving etc goods stolen out of New South Wales (1) Whosoever, without lawful excuse, receives or disposes of, or attempts to dispose of, or has in his or her possession, any property stolen outside the State of New South Wales, knowing the same to have been stolen, and whether or not he or she took part in the stealing of the property, shall be liable to imprisonment for ten years. (2) For the purposes of this section property shall be deemed to have been stolen if it has been taken, extorted, obtained, embezzled, converted, or disposed of under such circumstances that if the act had been committed in the State of New South Wales the person committing it would have been guilty of an indictable offence according to the law for the time being of the State of New South Wales. (3) No person shall be liable to conviction under this section if the taking, extorting, obtaining, embezzling, converting, or disposing is not a criminal offence in the country in which the act is committed. 189B Prosecution under section 188 or 189 where property stolen in course of transmission (1) Where in the trial of a person for the offence under section 188 or 189 of receiving, or disposing of, or attempting to dispose of, any property knowing it to have been stolen, it is proved that the property was stolen in the course of transmission between New South Wales and any other jurisdiction or between any other jurisdiction and New South Wales: (a) the person shall be liable to be convicted of the offence without proof that the stealing took place in New South Wales, and (b) for the purpose of determining whether or not the stealing amounts to a serious indictable offence or a minor indictable offence, the stealing shall be deemed to have taken place in New South Wales. (2) For the purposes of subsection (1) “other jurisdiction” means a State (other than New South Wales) or Territory of the Commonwealth. 190 Receiving etc cattle unlawfully killed, or carcass etc Whosoever: receives any animal, unlawfully killed, with intent to steal the carcass, or skin, or other part thereof, knowing the same to have been so killed, or receives, or disposes of, or attempts to dispose of, any part of an animal so killed, or of an animal unlawfully stolen, knowing it to have been so killed or so stolen, shall be guilty of a serious indictable offence, and may be indicted and punished as if the animal had been stolen, and the accused had unlawfully received the same. 191 Uncertainty as to sex or age not to entitle to acquittal Where, on the trial of a person for an offence under section 190, it appears that the animal was of the species mentioned in the indictment, but it is uncertain on the evidence what was its sex or age, such person shall not be entitled to acquittal by reason only of such uncertainty. 192 Receiving material or tools intrusted for manufacture Whosoever receives any goods, article, or material or any tools, or apparatus for manufacturing, or working up, the same, knowing the same to have been purloined, embezzled, or secreted, within the meaning of section 151, or that the person offering the same is fraudulently disposing thereof, shall be liable to imprisonment for four years. 192A Verdict where several persons are indicted for jointly receiving Where, on the trial of two or more persons for jointly receiving property, it appears that one, or more, separately received such property, or any part thereof, the jury may convict such one or more of the said persons as is, or are, proved to have so received the same. Part 4AA – Fraud Division 1 – Preliminary 192B Deception (1) In this Part, “deception” means any deception, by words or other conduct, as to fact or as to law, including: (a) a deception as to the intentions of the person using the deception or any other person, or (b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make. (2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless. 192C Obtaining property belonging to another (1) For the purposes of this Part, a person “obtains property” if: (a) the person obtains ownership, possession or control of the property for himself or herself or for another person, or (b) the person enables ownership, possession or control of the property to be retained by himself or herself or by another person, or (c) the person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession or control of the property. (2) A person does not commit an offence under this Part by obtaining or intending to obtain property belonging to another unless the person intends to permanently deprive the other of the property. (3) For the purposes of this Part, “property belongs” to a person if: (a) the person has possession or control of the property, or (b) the person has a proprietary right or interest in the property (not being an equitable interest arising only from an agreement to transfer or grant an interest or from a constructive trust). If property is subject to a trust, the persons to whom it belongs include any person having a right to enforce the trust. (4) A person obtaining property belonging to another without meaning the other permanently to lose the thing itself has, nevertheless, the intention of permanently depriving the other of it if the person’s intention is to treat the thing as his or her own to dispose of regardless of the other’s rights. A borrowing or lending of the property may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (5) Without limiting the generality of subsection (4), if: (a) a person has possession or control (lawfully or not) of property belonging to another, and (b) the person parts with the property under a condition as to its return that the person may not be able to perform, and (c) the parting is done for the purposes of his or her own and without the other’s authority, the parting amounts to treating the property as his or her own to dispose of regardless of the other’s rights. 192D Obtaining financial advantage or causing financial disadvantage (1) In this Part, “obtain” a financial advantage includes: (a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary. (2) In this Part, “cause” a financial disadvantage means: (a) cause a financial disadvantage to another person, or (b) induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary. Division 2 – Fraud and related offences 192E Fraud (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. (3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time. (4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud. 192F Intention to defraud by destroying or concealing accounting records (1) A person who dishonestly destroys or conceals any accounting record with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) In this section, “destroy” includes obliterate. 192G Intention to defraud by false or misleading statement A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. 192H Intention to deceive members or creditors by false or misleading statement of officer of organisation (1) An officer of an organisation who, with the intention of deceiving members or creditors of the organisation about its affairs, dishonestly makes or publishes, or concurs in making or publishing, a statement (whether or not in writing) that to his or her knowledge is or may be false or misleading in a material particular is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) In this section:”creditor” of an organisation includes a person who has entered into a security for the benefit of the organisation.”officer” of an organisation includes any member of the organisation who is concerned in its management and any person purporting to act as an officer of the organisation.”organisation” means any body corporate or unincorporated association. Part 4AB – Identity offences 192I Definitions In this Part: “deal” in identification information includes make, supply or use any such information. “identification information” means information relating to a person (whether living or dead, real or fictitious, or an individual or body corporate) that is capable of being used (whether alone or in conjunction with other information) to identify or purportedly identify the person, and includes the following: (a) a name or address, (b) a date or place of birth, marital status, relative’s identity or similar information, (c) a driver licence or driver licence number, (d) a passport or passport number, (e) biometric data, (f) a voice print, (g) a credit or debit card, its number or data stored or encrypted on it, (h) a financial account number, user name or password, (i) a digital signature, (j) a series of numbers or letters (or both) intended for use as a means of personal identification, (k) an ABN. 192J Dealing with identification information A person who deals in identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 10 years. 192K Possession of identification information A person who possesses identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 7 years. 192L Possession of equipment etc to make identification documents or things A person who: (a) possesses any equipment, material or other thing that is capable of being used to make a document or other thing containing identification information, and (b) intends that the document or other thing made will be used to commit, or to facilitate the commission of, an indictable offence, is guilty of an offence. Maximum penalty: Imprisonment for 3 years. 192M Miscellaneous provisions (1) This Part does not apply to dealing in a person’s own identification information. (2) It is not an offence to attempt to commit an offence against this Part. (3) This Part applies to a person who intends to commit an indictable offence even if committing the offence concerned is impossible or the offence concerned is to be committed at a later time. (4) Section 309A of the Criminal Procedure Act 1986 enables a victim of an offence against this Part to obtain a certificate from a court that such an offence has been committed to assist with problems the offence has caused in relation to the victim’s personal or business affairs. 193 (Renumbered) (Renumbered as section 192A) Part 4AC – Money laundering 193A Definitions In this Part: “deal with” includes: (a) receive, possess, conceal or dispose of, or (b) bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or (c) engage directly or indirectly in a transaction, including receiving or making a gift. “instrument of crime” means property that is used in the commission of, or to facilitate the commission of, a serious offence. “proceeds of crime” means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence. “serious offence” means: (a) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment, or (b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of the Poisons and Therapeutic Goods Act 1966 that arises under section 18A (1) of that Act, or (c) an offence committed outside New South Wales (including outside Australia) that would be an offence referred to in paragraph (a) or (b) if it had been committed in New South Wales. 193B Money laundering (1) A person who deals with proceeds of crime: (a) knowing that it is proceeds of crime, and (b) intending to conceal that it is proceeds of crime, is guilty of an offence. Maximum penalty: imprisonment for 20 years. (2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence. Maximum penalty: imprisonment for 15 years. (3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence. Maximum penalty: imprisonment for 10 years. (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory. 193C Dealing with property suspected of being proceeds of crime (1) A person who deals with property that is property that there are reasonable grounds to suspect is proceeds of crime is guilty of a summary offence. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both. (2) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country. 193D Dealing with property that subsequently becomes an instrument of crime (1) If: (a) a person deals with property intending that the property will become an instrument of crime, and (b) the property subsequently becomes an instrument of crime, the person is guilty of an offence. Maximum penalty: imprisonment for 15 years. (2) If: (a) a person deals with property being reckless as to whether the property will become an instrument of crime, and (b) the property subsequently becomes an instrument of crime, the person is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Proceedings for an offence under this section must not be commenced without the consent of the Director of Public Prosecutions. (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory. (5) In this section:”property” means money or other valuables. 193E Alternative verdicts (1) If on the trial of a person for an offence under section 193B (1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B (2) or (3), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. (2) If on the trial of a person for an offence under section 193B (2), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B (3), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. (3) If on the trial of a person for an offence under section 193D (1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193D (2), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. 193F Proof of other offences not required (1) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Part that property is proceeds of crime, to establish that: (a) a particular offence was committed in relation to the property, or (b) a particular person committed an offence in relation to the property. (2) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Part that property will be an instrument of crime, to establish: (a) an intention or risk that a particular offence will be committed in relation to the property, or (b) an intention or risk that a particular person will commit an offence in relation to the property. 193G Transitional provision This Part applies to or in respect of acts or omissions in relation to proceeds of crime arising from serious offences committed before or after the commencement of this Part. Part 4AD – Criminal destruction and damage Division 1 – Interpretation 194 Interpretation (1) In this Part, a reference to property does not include a reference to property that is not of a tangible nature. (2) In this Part, a reference to property includes a reference to wild creatures that have been tamed or are ordinarily kept in captivity and also includes any other wild creatures or their carcasses but only if they: (a) have been reduced into possession that has not been lost or abandoned, or (b) are in the course of being reduced into possession. (3) For the purposes of this Part, an act done by a person under a reasonable belief that the person had a right to do the act does not constitute an element of any offence under this Part. (4) For the purposes of this Part, damaging property includes removing, obliterating, defacing or altering the unique identifier of the property. The unique identifier is any numbers, letters or symbols that are marked on or attached to the property as a permanent record so as to enable the property to be distinguished from similar property. Division 2 – Crimes against property generally 195 Destroying or damaging property (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 5 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years. (1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 6 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years. (2) A person who, during a public disorder, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years. 196 Destroying or damaging property with intent to injure a person (1) A person who destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years. (2) A person who, during a public disorder, destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable: (a) to imprisonment for 9 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years. 197 Dishonestly destroying or damaging property (1) A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years. (2) A person who, during a public disorder, dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable: (a) to imprisonment for 9 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years. 198 Destroying or damaging property with intention of endangering life A person who destroys or damages property, intending by the destruction or damage to endanger the life of another, is liable to imprisonment for 25 years. 199 Threatening to destroy or damage property (1) A person who, without lawful excuse, makes a threat to another, with the intention of causing that other to fear that the threat would be carried out: (a) to destroy or damage property belonging to that other or to a third person, or (b) to destroy or damage the first-mentioned person’s own property in a way which that person knows will or is likely to endanger the life of, or to cause bodily injury to, that other or a third person, is liable to imprisonment for 5 years. (2) A person who, during a public disorder and without lawful excuse, makes a threat to another, with the intention of causing that other to fear that the threat would be carried out: (a) to destroy or damage property belonging to that other or to a third person, or (b) to destroy or damage the first-mentioned person’s own property in a way which that person knows will or is likely to endanger the life of, or to cause bodily injury to, that other or a third person, is liable to imprisonment for 7 years. 200 Possession etc of explosive or other article with intent to destroy or damage property (1) A person who has possession, custody or control of an article with the intention that it should be used to destroy or damage property belonging to: (a) some other person, or (b) the first-mentioned person or the user, or both of them, and some other person, is liable (if the article is an explosive) to imprisonment for 7 years or (if the article is not an explosive) to imprisonment for 3 years. (2) A person who, during a public disorder, has possession, custody or control of an article with the intention that it should be used to destroy or damage property belonging to: (a) some other person, or (b) the first-mentioned person or the user, or both of them, and some other person, is liable (if the article is an explosive) to imprisonment for 9 years or (if the article is not an explosive) to imprisonment for 5 years. Division 3 – Crimes relating to particular kinds of property 201 Interfering with a mine A person who intentionally or recklessly: (a) causes water to run into a mine or any subterranean channel connected to it, (b) destroys, damages or obstructs any shaft, passage, pit, airway, waterway or drain of, or associated with, a mine, (c) destroys, damages or renders useless any equipment, building, road or bridge belonging to a mine, or (d) hinders the working of equipment belonging to a mine, is liable to imprisonment for 7 years. 202 Causing damage etc to sea, river, canal and other works A person who: (a) intentionally or recklessly destroys, damages, removes or interferes with piles or other materials that form part of, or have been fixed or placed in position in order to secure: (i) a sea wall or other structure designed to prevent erosion by the sea, (ii) the bank or bed of, or a dam, weir or lock located on, a river or canal, (iii) a drain, aqueduct, marsh or reservoir, or (iv) a dock, quay, wharf, jetty or other harbour installation, (b) intentionally or recklessly opens a floodgate or sluice that is located at or on a dam, weir, reservoir or watercourse, or (c) with the intention of obstructing or hindering the navigation of vessels or boats on a navigable river or canal: (i) interferes with or obstructs the flow of the river or canal, (ii) damages or interferes with the bank or bed of the river or canal, or (d) destroys, damages or interferes with any structure or equipment constructed or installed in connection with the use of the river or canal for the purposes of navigation, is liable to imprisonment for 7 years. 203 (Repealed) Division 4 – Sabotage 203A Definitions In this Division: “economic loss” includes the disruption of government functions or the disruption of the use of public facilities. “public facility” means any of the following (whether publicly or privately owned): (a) a government facility, including premises used by government employees in connection with official duties, (b) a public infrastructure facility, including a facility providing water, sewerage, energy or other services to the public, (c) a public transport facility, including a conveyance used to transport people or goods, (d) a public place, including any premises, land or water open to the public, (e) a public computer system, including a computer system used for the operation of a public facility, for the provision of banking services or for other services to the public. 203B Sabotage A person: (a) whose conduct causes damage to a public facility, and (b) who intended to cause that damage, and (c) who intended by that conduct to cause: (i) extensive destruction of property, or (ii) major economic loss, is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 203C Threaten sabotage (1) A person who: (a) makes to another person a threat to damage a public facility, and (b) intends that person to fear that the threat will be carried out and will cause: (i) extensive destruction of property, or (ii) major economic loss, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) In the prosecution of an offence under this section it is not necessary to prove that the person threatened actually feared that the threat would be carried out. (3) For the purposes of this section: (a) a threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional, and (b) a threat to a person includes a threat to a group of persons, and (c) fear that a threat will be carried out includes apprehension that it will be carried out. Division 5 – Bushfires 203D Definitions In this Division: “causing a fire” includes: (a) lighting a fire, or (b) maintaining a fire, or (c) failing to contain a fire, except where the fire was lit by another person or the fire is beyond the control of the person who lit the fire. “firefighter” means a member of a fire brigade under the Rural Fires Act 1997 or the Fire Brigades Act 1989 or of any other official firefighting unit (including a unit from outside the State). “spread” of a fire means spread of a fire beyond the capacity of the person who causes the fire to extinguish it. 203E Offence (1) A person: (a) who intentionally causes a fire, and (b) who is reckless as to the spread of the fire to vegetation on any public land or on land belonging to another, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) For the purposes of this section, recklessness may also be established by proof of intention. (3) A person is not criminally responsible for an offence against this section if: (a) the person is a firefighter or acting under the direction of a firefighter, and (b) the person caused the fire in the course of bushfire fighting or hazard reduction operations. (4) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence against section 100 (1) of the Rural Fires Act 1997, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. Part 4AE – Offences relating to transport services Division 1 – Offences relating to aircraft, vessels etc 204 Destruction of, or damage to, an aircraft or vessel with intent or reckless indifference Any person who: (a) with intent to cause the death of a person, or (b) with reckless indifference for the safety of the life of a person, destroys or damages an aircraft or vessel is liable to imprisonment for 25 years. 205 Prejudicing the safe operation of an aircraft or vessel A person who, whether on board the aircraft or vessel or not, does anything with the intention of prejudicing the safety of an aircraft or vessel is liable to imprisonment for 14 years. 206 Assault etc on member of crew of aircraft or vessel A person who, while on board an aircraft or vessel, assaults or threatens with violence a member of the crew of the aircraft or vessel: (a) so as to interfere with the functions or duties performed by the crew member in connection with the safe operation of the aircraft or vessel, or (b) so as to diminish the ability of the crew member to perform those functions or duties, is liable to imprisonment for 14 years. 207 Placing etc dangerous articles on board an aircraft or vessel (1) In this section:”dangerous article” means: (a) a firearm, ammunition for a firearm, a weapon or an explosive, or (b) a substance or thing that, because of its nature or condition, could endanger the safety of an aircraft or vessel or persons on board an aircraft or vessel. (2) A person who: (a) places or carries on board an aircraft or vessel an article knowing that it is a dangerous article, (b) knowing that an article is a dangerous article, delivers the article to a person for the purpose of having the article placed or carried on board an aircraft or vessel, or (c) has possession of an article while on board an aircraft or vessel knowing that the article is a dangerous article, is liable to imprisonment for 7 years. (3) Subsection (2): (a) does not apply to or in relation to anything done with an article in relation to an aircraft or vessel with the consent of the owner or operator of the aircraft or vessel where that consent is given with a knowledge of the nature or condition of the article, and (b) does not apply to or in relation to the carrying or placing of a firearm or ammunition for a firearm on board an aircraft or vessel with permission given in accordance with regulations in force under the Air Navigation Act 1920 of the Commonwealth. (4) A reference in this section to a firearm includes a reference to an imitation firearm within the meaning of the Firearms Act 1996. 208 Threatening to destroy etc an aircraft, vessel or vehicle (1) In this section:”threat” includes: (a) an expression of intention, or (b) the making of a statement from which an expression of intention could reasonably be inferred. “transport vehicle” means: (a) a mechanically or electrically driven vehicle that is used or designed to be used for the purpose of conveying passengers or goods, or passengers and goods, or for the purpose of drawing a vehicle or vehicles of the kind referred to in paragraph (b), or (b) a vehicle not so driven that is directly or indirectly connected to and drawn by, or designed to be connected to and drawn by, a vehicle of the kind first referred to in paragraph (a), but does not include an aircraft or vessel. (2) A person who makes a demand of another person with a threat: (a) to destroy or damage, or endanger the safety of, an aircraft, vessel or transport vehicle, or (b) to kill, or inflict bodily injury on, persons who are in or on an aircraft, vessel or transport vehicle, is liable to imprisonment for 14 years. (3) A person who makes a demand of another person together with a threat to do any of the things mentioned in subsection (2) (a) or (b) and, while that threat still has effect: (a) discharges a firearm, (b) causes an explosion, or (c) inflicts grievous bodily harm on, or wounds, a person, is liable to imprisonment for 25 years. (4) A person who makes a threat: (a) to destroy or damage, or endanger the safety of, an aircraft, vessel or transport vehicle, or (b) to kill, or inflict bodily injury on, persons who are in or on an aircraft, vessel or transport vehicle, is liable to imprisonment for 5 years. 209 False information as to plan etc to prejudice the safety of an aircraft or vessel or persons on board an aircraft or vessel A person who makes a statement or conveys information, knowing it to be false, to the effect, or from which it could reasonably be inferred, that there has been, is or is to be a plan, proposal, attempt, conspiracy or threat to: (a) take, or exercise control of, an aircraft or vessel by force, (b) destroy or damage, or endanger the safety of, an aircraft or vessel, or (c) kill, or inflict bodily injury on, persons in or on an aircraft or vessel, is liable to imprisonment for 2 years. 210 Destroying, damaging etc an aid to navigation A person who: (a) intentionally or recklessly destroys, damages, removes, conceals or interferes with a mark, device or equipment used or designed to be used to assist the navigation of aircraft or vessels, or (b) does any act with the intention of causing any such destruction, damage, concealment or interference, is liable to imprisonment for 7 years. Division 2 – Offences relating to railways etc 211 Criminal acts relating to railways (1) A person who: (a) does any act on or in connection with the operation of a railway, or (b) omits to do any act on or in connection with a railway that it is the person’s duty to do, with the intention of causing the death of, inflicting bodily injury on or endangering the safety of any person who is on the railway, or who is in or on any locomotive or other rolling stock on the railway, is liable to imprisonment for 25 years. (2) A person who: (a) does any act on or in connection with the operation of a railway, or (b) omits to do any act on or in connection with the operation of a railway that it is the person’s duty to do, with the intention of causing any locomotive or other rolling stock on the railway to be derailed, destroyed or damaged, is liable to imprisonment for 14 years. 212 Endangering passengers etc on railway A person who, by an unlawful act or a negligent omission, endangers the safety of any person who is on, or who is being conveyed on, a railway is liable to imprisonment for 3 years. 213 Obstructing a railway A person who: (a) intentionally and without lawful excuse, does an act, or omits to do an act, which causes the passage or operation of a locomotive or other rolling stock on a railway to be obstructed, or (b) assists a person to do or omit to do such an act, with the knowledge that the person’s intention to do or omit to do that act is without lawful excuse, is liable to imprisonment for 2 years. 214 Obstructing a railway–verdict of misdemeanour (1) If, on the trial of a person for an offence under section 211, the jury is not satisfied that the person is guilty of the offence, but is satisfied that the person is guilty of an offence under section 212 or 213, it may acquit the person of the offence charged and instead find the person guilty of an offence under section 212 or 213. (2) If, in accordance with subsection (1), a jury finds a person guilty of an offence under section 212 or 213, the person is liable to be punished as provided by that section. 215-249 (Repealed) Part 4A – Corruptly receiving commissions and other corrupt practices 249A Definitions In this Part: “agent” includes: (a) any person employed by, or acting for or on behalf of, any other person (who in this case is referred to in this Part as the person’s principal) in any capacity, (b) any person purporting to be, or intending to become, an agent of any other person (who in this case is referred to in this Part as the person’s principal), and (c) any person serving under the Crown (which in this case is referred to in this Part as the person’s principal), and (d) a police officer (and in this case a reference in this Part to the agent’s principal is a reference to the Crown), and (e) a councillor within the meaning of the Local Government Act 1993 (and in this case a reference in this Part to the agent’s principal is a reference to the local council of which the person is a councillor), and (f) a councillor within the meaning of the Aboriginal Land Rights Act 1983 (and in this case a reference in this Part to the agent’s principal is a reference to the New South Wales Aboriginal Land Council), and (g) a Board member of a Local Aboriginal Land Council within the meaning of the Aboriginal Land Rights Act 1983 (and in this case a reference in this Part to the agent’s principal is a reference to the Local Aboriginal Land Council). “benefit” includes money and any contingent benefit. 249B Corrupt commissions or rewards (1) If any agent corruptly receives or solicits (or corruptly agrees to receive or solicit) from another person for the agent or for anyone else any benefit: (a) as an inducement or reward for or otherwise on account of: (i) doing or not doing something, or having done or not having done something, or (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent’s principal, or (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal, the agent is liable to imprisonment for 7 years. (2) If any person corruptly gives or offers to give to any agent, or to any other person with the consent or at the request of any agent, any benefit: (a) as an inducement or reward for or otherwise on account of the agent’s: (i) doing or not doing something, or having done or not having done something, or (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent’s principal, or (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal, the firstmentioned person is liable to imprisonment for 7 years. (3) For the purposes of subsection (1), where a benefit is received or solicited by anyone with the consent or at the request of an agent, the agent shall be deemed to have received or solicited the benefit. 249C Misleading documents or statements used or made by agents (1) Any agent who uses, or gives to the agent’s principal, a document which contains anything that is false or misleading in any material respect, with intent to defraud the agent’s principal, is liable to imprisonment for 7 years. (2) Any agent who makes a statement to the agent’s principal which is false or misleading in any material respect, with intent to defraud the principal, is liable to imprisonment for 7 years. 249D Corrupt inducements for advice (1) If a person corruptly gives a benefit to another person for giving advice to a third person, being advice which the person giving the benefit intends will influence the third person: (a) to enter into a contract with the person who gives the benefit, or (b) to appoint the person who gives the benefit to any office, and, at the time the benefit is given, the person who gives the benefit intends the giving of the benefit not be made known to the person advised, the person who gives the benefit is liable to imprisonment for 7 years. (2) If a person corruptly receives a benefit for giving advice to another person, being advice which is likely to influence the other person: (a) to enter into a contract with the person who gave the benefit, or (b) to appoint the person who gave the benefit to any office, and, at the time the benefit is received, the person who receives the benefit intends the giving of the benefit not be made known to the person to be advised, the person who receives the benefit is liable to imprisonment for 7 years. (3) For the purposes of subsections (1) and (2), where a benefit is given or received by anyone with the consent or at the request of another person, the other person shall be deemed to have given or received the benefit. (4) If any person corruptly offers or solicits a benefit for the giving of advice by one person to another: (a) intending that the advice will influence the person advised: (i) to enter into a contract with anyone, or (ii) to appoint anyone to any office, and (b) intending that the giving or receipt of the benefit not be made known to the person advised, the firstmentioned person is liable to imprisonment for 7 years. (5) In this section: (a) a reference to the giving of advice includes a reference to the providing of information orally or in writing, (b) a reference to entering into a contract includes a reference to offering to enter into a contract, and (c) a reference to the appointment of a person includes a reference to: (i) joining in the appointment of the person, and (ii) voting for or assisting in the election or appointment of the person. 249E Corrupt benefits for trustees and others (1) In this section, a reference to a person entrusted with property is a reference to: (a) a trustee of the property, (b) an executor or administrator appointed for the purpose of dealing with the property, (c) a person who, because of a power of attorney or a power of appointment, has authority over the property, and (d) a person managing or administering the property (or appointed or employed to manage or administer the property) under the NSW Trustee and Guardian Act 2009. (2) Any person who offers or gives a benefit to a person entrusted with property, and any person entrusted with property who receives or solicits a benefit for anyone, without the consent: (a) of each person beneficially entitled to the property, or (b) of the Supreme Court, as an inducement or reward for the appointment of any person to be a person entrusted with the property, are each liable to imprisonment for 7 years. (3) In this section, a reference to the appointment of a person includes a reference to: (a) joining in the appointment of the person, and (b) assisting in the appointment of the person. (4) Proceedings for an offence under this section shall not be commenced without the consent of the Attorney General. (5) A consent to commence any such proceedings purporting to have been signed by the Attorney General is evidence of that consent without proof of the signature of the Attorney General. 249F Aiding, abetting etc (1) A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Part is guilty of an offence and is liable to imprisonment for 7 years. (2) A person who, in New South Wales, aids, abets, counsels or procures the commission of an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this Part, is guilty of an offence and is liable to imprisonment for 7 years. 249G Repayment of value of gift etc (1) If a person is convicted of an offence under this Part, the court may (as well as imposing a penalty for the offence) order the person to pay to such other person as the court directs the whole or part of the amount or the value, assessed by the court, of any benefit received or given by the person. (2) Any money payable to a person under this section may be recovered in a court of competent jurisdiction as a debt due to the person. 249H Disqualification for office If a person is convicted of an offence under this Part, the person is disqualified from holding civic office for the purposes of the Local Government Act 1993, for the period of 7 years from the conviction or such lesser period as the court may order. 249I Dismissal of trivial case If, in any proceedings for an offence under this Part, it appears to the court that the offence is of a trivial or merely technical nature, the court may in its discretion dismiss the case. 249J Custom not a defence In any proceedings for an offence under this Part, it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling. Part 4B – Blackmail 249K Blackmail offence (1) A person who makes any unwarranted demand with menaces: (a) with the intention of obtaining a gain or of causing a loss, or (b) with the intention of influencing the exercise of a public duty, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) by an accusation, or a threatened accusation, that a person has committed a serious indictable offence. Maximum penalty: Imprisonment for 14 years. 249L Unwarranted demands–meaning (1) For the purposes of this Part, a demand with menaces is “unwarranted” unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand. (2) The demand need not be a demand for money or other property. 249M Menaces–meaning (1) For the purposes of this Part, “menaces” includes: (a) an express or implied threat of any action detrimental or unpleasant to another person, and (b) a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office. (2) A threat against an individual does not constitute a menace unless: (a) the threat would cause an individual of normal stability and courage to act unwillingly in response to the threat, or (b) the threat would cause the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat. (3) A threat against a Government or body corporate does not constitute a menace unless: (a) the threat would ordinarily cause an unwilling response, or (b) the threat would cause an unwilling response because of a particular vulnerability of which the person making the threat is aware. (4) It is immaterial whether the menaces relate to action to be taken by the person making the demand. 249N Obtaining gain or causing loss–meaning For the purposes of this Part: (a) a “gain” means gain in money or other property, whether temporary or permanent, and includes keeping what one has, and “obtaining” a gain means obtaining a gain for oneself or for another, and (b) a “loss” means loss in money or other property, whether temporary or permanent, and includes not getting what one might get, and “causing” a loss means causing a loss to another. 249O Public duty–meaning For the purposes of this Part, a “public duty” means a power, authority, duty or function: (a) that is conferred on a person as the holder of a public office, or (b) that a person holds himself or herself out as having as the holder of a public office. Part 5 – Forgery Division 1 – Preliminary 250 False document–meaning (1) For the purposes of this Part, a document is “false” if, and only if, the document (or any part of the document) purports: (a) to have been made in the form in which it is made by a person who did not in fact make it in that form, or (b) to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form, or (c) to have been made in the terms in which it is made by a person who did not in fact make it in those terms, or (d) to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms, or (e) to have been altered in any respect by a person who did not in fact alter it in that respect, or (f) to have been altered in any respect on the authority of a person who did not in fact authorise its alteration in that respect, or (g) to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered, or (h) to have been made or altered by, or on the authority of, a person who did not in fact exist. (2) For the purposes of this Part, a person is to be treated as “making a false document” if the person alters a document so as to make it false within the meaning of this section (whether or not it is false in some other respect apart from that alteration). (3) For the purpose of the application of this section, a document that purports to be a true copy of another document is to be treated as if it were the original document. 251 Inducing acceptance of false document (1) In this Part, a reference to inducing a person to accept a false document as genuine includes a reference to causing a machine to respond to the document as if it were a genuine document. (2) If it is necessary for the purposes of this Part to prove an intent to induce some person to accept a false document as genuine, it is not necessary to prove that the accused intended so to induce a particular person. 252 Interpretative provisions relating to obtaining property, financial advantage and financial disadvantage The following provisions of Part 4AA (Fraud) also apply to this Part: (a) section 192C (Obtaining property belonging to another), (b) section 192D (Obtaining financial advantage or causing financial disadvantage). Division 2 – Forgery 253 Forgery–making false document A person who makes a false document with the intention that the person or another will use it: (a) to induce some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) to obtain any property belonging to another, or (ii) to obtain any financial advantage or cause any financial disadvantage, or (iii) to influence the exercise of a public duty, is guilty of the offence of forgery. Maximum penalty: Imprisonment for 10 years. Division 3 – Offences related to forgery 254 Using false document A person who uses a false document, knowing that it is false, with the intention of: (a) inducing some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) obtaining any property belonging to another, or (ii) obtaining any financial advantage or causing any financial disadvantage, or (iii) influencing the exercise of a public duty, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. 255 Possession of false document A person who has in his or her possession a false document, knowing that it is false, with the intention that the person or another will use it: (a) to induce some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) to obtain any property belonging to another, or (ii) to obtain any financial advantage or cause any financial disadvantage, or (iii) to influence the exercise of a public duty, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. 256 Making or possession of equipment etc for making false documents (1) A person who makes, or has in his or her possession, any equipment, material or other thing designed or adapted for the making of a false document: (a) knowing that it is so designed or adapted, and (b) with the intention that the person or another person will use the equipment, material or other thing to commit the offence of forgery, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A person who, without reasonable excuse, makes or has in his or her possession any equipment, material or other thing designed or adapted for the making of a false document, knowing that it is so designed or adapted, is guilty of an offence. Maximum penalty: Imprisonment for 3 years. (3) A person who possesses any equipment, material or other thing that is capable of being used to make a false document, with the intention that the person or another person will use the equipment, material or other thing to commit the offence of forgery, is guilty of an offence. Maximum penalty: Imprisonment for 3 years. (4) This section applies in respect of any equipment, material or other thing that is designed or adapted for the purpose of making a false document whether or not it is also designed or adapted for another purpose. (5) This section applies to a person who intends to commit an offence even if committing the offence concerned is impossible or the offence concerned is to be committed at a later time. (6) It is not an offence to attempt to commit an offence against this section. 257-307 (Repealed) Part 5A – False and misleading information 307A False or misleading applications (1) A person is guilty of an offence if: (a) the person makes a statement (whether orally, in a document or in any other way), and (b) the person does so knowing that, or reckless as to whether, the statement: (i) is false or misleading, or (ii) omits any matter or thing without which the statement is misleading, and (c) the statement is made in connection with an application for an authority or benefit, and (d) any of the following subparagraphs apply: (i) the statement is made to a public authority, (ii) the statement is made to a person who is exercising or performing any power, authority, duty or function under, or in connection with, a law of the State, (iii) the statement is made in compliance or purported compliance with a law of the State. Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both. (2) Subsection (1) does not apply as a result of subsection (1) (b) (i) if the statement is not false or misleading in a material particular. (3) Subsection (1) does not apply as a result of subsection (1) (b) (ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular. (4) The burden of establishing a matter referred to in subsection (2) or (3) lies on the accused person. (5) In this section:”application” includes any claim, request or other form of application and also includes, in the case of an application for an authority, any application for the issue, grant, amendment, transfer, renewal, restoration or replacement of the authority and any other application in connection with the authority.”authority” includes any licence, permit, consent, approval, registration or other form of authority.”benefit” includes any advantage and is not limited to property. 307B False or misleading information (1) A person is guilty of an offence if: (a) the person gives information to another person, and (b) the person does so knowing that the information: (i) is false or misleading, or (ii) omits any matter or thing without which the information is misleading, and (c) any of the following subparagraphs apply: (i) the information is given to a public authority, (ii) the information is given to a person who is exercising or performing any power, authority, duty or function under, or in connection with, a law of the State, (iii) the information is given in compliance or purported compliance with a law of the State. Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both. (2) Subsection (1) does not apply as a result of subsection (1) (b) (i) if the information is not false or misleading in a material particular. (3) Subsection (1) does not apply as a result of subsection (1) (b) (ii) if the information did not omit any matter or thing without which the information is misleading in a material particular. (4) Subsection (1) does not apply as a result of subsection (1) (c) (i) if, before the information was given by a person to the public authority, the public authority did not take reasonable steps to inform the person of the existence of the offence against subsection (1). (5) Subsection (1) does not apply as a result of subsection (1) (c) (ii) if, before the information was given by a person (the “first person”) to the person mentioned in that subparagraph (the “second person”), the second person did not take reasonable steps to inform the first person of the existence of the offence against subsection (1). (6) The burden of establishing a matter referred to in subsection (2), (3), (4) or (5) lies on the accused person. (7) For the purposes of subsections (4) and (5), it is sufficient if the following form of words is used: “Giving false or misleading information is a serious offence.” 307C False or misleading documents (1) A person is guilty of an offence if: (a) the person produces a document to another person, and (b) the person does so knowing that the document is false or misleading, and (c) the document is produced in compliance or purported compliance with a law of the State. Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both. (2) Subsection (1) does not apply if the document is not false or misleading in a material particular. (3) Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate: (a) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular, and (b) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading. (4) The burden of establishing a matter referred to in subsection (2) or (3) lies on the accused person. Part 6 – Computer offences 308 General definitions In this Part: “data” includes: (a) information in any form, or (b) any program (or part of a program). “data held in a computer” includes: (a) data entered or copied into the computer, or (b) data held in any removable data storage device for the time being in the computer, or (c) data held in a data storage device on a computer network of which the computer forms part. “data storage device” means any thing (for example a disk or file server) containing or designed to contain data for use by a computer. “electronic communication” means a communication of information in any form by means of guided or unguided electromagnetic energy. “serious computer offence” means: (a) an offence against section 308C, 308D or 308E, or (b) conduct in another jurisdiction that is an offence in that jurisdiction and that would constitute an offence against section 308C, 308D or 308E if the conduct occurred in this jurisdiction. 308A Meaning of access to data, modification of data and impairment of electronic communication (1) In this Part, “access” to data held in a computer means: (a) the display of the data by the computer or any other output of the data from the computer, or (b) the copying or moving of the data to any other place in the computer or to a data storage device, or (c) in the case of a program–the execution of the program. (2) In this Part, “modification” of data held in a computer means: (a) the alteration or removal of the data, or (b) an addition to the data. (3) In this Part, “impairment” of electronic communication to or from a computer includes: (a) the prevention of any such communication, or (b) the impairment of any such communication on an electronic link or network used by the computer, but does not include a mere interception of any such communication. (4) A reference in this Part to any such access, modification or impairment is limited to access, modification or impairment caused (whether directly or indirectly) by the execution of a function of a computer. 308B Meaning of unauthorised access, modification or impairment (1) For the purposes of this Part, access to or modification of data, or impairment of electronic communication, by a person is “unauthorised” if the person is not entitled to cause that access, modification or impairment. (2) Any such access, modification or impairment is not unauthorised merely because the person has an ulterior purpose for that action. (3) For the purposes of an offence under this Part, a person causes any such unauthorised access, modification or impairment if the person’s conduct substantially contributes to the unauthorised access, modification or impairment. 308C Unauthorised access, modification or impairment with intent to commit serious indictable offence (1) A person who causes any unauthorised computer function: (a) knowing it is unauthorised, and (b) with the intention of committing a serious indictable offence, or facilitating the commission of a serious indictable offence (whether by the person or by another person), is guilty of an offence. Maximum penalty: The maximum penalty applicable if the person had committed, or facilitated the commission of, the serious indictable offence in this jurisdiction. (2) For the purposes of this section, an “unauthorised computer function” is: (a) any unauthorised access to data held in any computer, or (b) any unauthorised modification of data held in any computer, or (c) any unauthorised impairment of electronic communication to or from any computer. (3) For the purposes of this section, a “serious indictable offence” includes an offence in any other jurisdiction that would be a serious indictable offence if committed in this jurisdiction. (4) A person may be found guilty of an offence against this section: (a) even if committing the serious indictable offence concerned is impossible, or (b) whether the serious indictable offence is to be committed at the time of the unauthorised conduct or at a later time. (5) It is not an offence to attempt to commit an offence against this section. 308D Unauthorised modification of data with intent to cause impairment (1) A person who: (a) causes any unauthorised modification of data held in a computer, and (b) knows that the modification is unauthorised, and (c) intends by the modification to impair access to, or to impair the reliability, security or operation of, any data held in a computer, or who is reckless as to any such impairment, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A conviction for an offence against this section is an alternative verdict to a charge for: (a) an offence against section 195 (Destroying or damaging property), or (b) an offence against section 308E (Unauthorised impairment of electronic communication). 308E Unauthorised impairment of electronic communication (1) A person who: (a) causes any unauthorised impairment of electronic communication to or from a computer, and (b) knows that the impairment is unauthorised, and (c) intends to impair electronic communication to or from the computer, or who is reckless as to any such impairment, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A conviction for an offence against this section is an alternative verdict to a charge for: (a) an offence against section 195 (Destroying or damaging property), or (b) an offence against section 308D (Unauthorised modification of data with intent to cause impairment). 308F Possession of data with intent to commit serious computer offence (1) A person who is in possession or control of data: (a) with the intention of committing a serious computer offence, or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person), is guilty of an offence. Maximum penalty: Imprisonment for 3 years. (2) For the purposes of this section, “possession or control of data” includes: (a) possession of a computer or data storage device holding or containing the data or of a document in which the data is recorded, and (b) control of data held in a computer that is in the possession of another person (whether the computer is in this jurisdiction or outside this jurisdiction). (3) A person may be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible. (4) It is not an offence to attempt to commit an offence against this section. 308G Producing, supplying or obtaining data with intent to commit serious computer offence (1) A person who produces, supplies or obtains data: (a) with the intention of committing a serious computer offence, or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person), is guilty of an offence. Maximum penalty: Imprisonment for 3 years. (2) For the purposes of this section, “produce”, “supply or obtain data” includes: (a) produce, supply or obtain data held or contained in a computer or data storage device, or (b) produce, supply or obtain a document in which the data is recorded. (3) A person may be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible. (4) It is not an offence to attempt to commit an offence against this section. 308H Unauthorised access to or modification of restricted data held in computer (summary offence) (1) A person: (a) who causes any unauthorised access to or modification of restricted data held in a computer, and (b) who knows that the access or modification is unauthorised, and (c) who intends to cause that access or modification, is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (2) An offence against this section is a summary offence. (3) In this section:”restricted data” means data held in a computer, being data to which access is restricted by an access control system associated with a function of the computer. 308I Unauthorised impairment of data held in computer disk, credit card or other device (summary offence) (1) A person: (a) who causes any unauthorised impairment of the reliability, security or operation of any data held on a computer disk, credit card or other device used to store data by electronic means, and (b) who knows that the impairment is unauthorised, and (c) who intends to cause that impairment, is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (2) An offence against this section is a summary offence. (3) For the purposes of this section, impairment of the reliability, security or operation of data is “unauthorised” if the person is not entitled to cause that impairment. 309, 310 (Repealed) Part 6A – Offences relating to escape from lawful custody 310A Definitions In this Part: “correctional centre” means a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999, and includes a correctional complex within the meaning of that Act. “inmate” has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. 310B Rescuing inmate from lawful custody Any person who, by force, rescues or attempts to rescue an inmate from lawful custody is guilty of an offence. Maximum penalty: imprisonment for 14 years. 310C Aiding escape Any person: (a) who aids an inmate in escaping or attempting to escape from lawful custody, or (b) who conveys anything or causes anything to be conveyed into a correctional centre or to an inmate with intent to facilitate the escape of an inmate, is guilty of an offence. Maximum penalty: imprisonment for 7 years. 310D Escaping Any inmate: (a) who escapes or attempts to escape from lawful custody, or (b) who, having been temporarily released from lawful custody, fails to return to lawful custody at the end of the time for which the inmate has been released, is guilty of an offence. Maximum penalty: imprisonment for 10 years. 310E Tunnels to facilitate escape (1) A person who constructs, or takes part in the construction of, a tunnel that could reasonably be thought likely to be intended for use in facilitating an inmate’s escape from lawful custody is guilty of an offence. Maximum penalty: imprisonment for 10 years. (2) It is not necessary for the prosecution to prove that the tunnel was actually intended for use in facilitating an escape, but it is a defence for the accused person to establish that he or she did not intend it to be so used. (3) In this section:”tunnel” includes any partially completed tunnel and any excavation. 310F Permitting escape (1) Any person who, being an officer of a correctional centre or a police officer, has actual custody of an inmate for the time being is guilty of an offence if he or she wilfully permits the inmate to escape from custody. Maximum penalty: imprisonment for 7 years. (2) Any person who, being an officer of a correctional centre or a police officer, has actual custody of an inmate for the time being is guilty of an indictable offence if he or she negligently permits the inmate to escape from custody. Maximum penalty: imprisonment for 2 years. (3) Any person who is employed by the management company of a managed correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999) as a custodian of inmates at, or travelling to or from, the correctional centre is, for the purposes of this section, an officer of a correctional centre. 310G Harbouring escapee (1) Any person who knowingly harbours, maintains or employs an escaped inmate is guilty of an offence. Maximum penalty: imprisonment for 3 years. (2) In this section:”escaped inmate” includes a prisoner who has escaped from lawful custody in another State or Territory. 310H Application of Part This Part does not apply to or in respect of: (a) an inmate who is in lawful custody for the purpose of serving a sentence of imprisonment the subject of an intensive correction order or home detention order under the Crimes (Sentencing Procedure) Act 1999, or (b) a detention centre or a detainee within the meaning of the Children (Detention Centres) Act 1987. Part 6B – Terrorism 310I Definitions In this Part: “Commonwealth Criminal Code” means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. “terrorist organisation” and “member of a terrorist organisation” have the meaning they are given by section 102.1 of the Commonwealth Criminal Code. 310J Membership of terrorist organisation (1) A person commits an offence if: (a) the person intentionally is a member of a terrorist organisation, and (b) the organisation is a terrorist organisation, and (c) the person knows the organisation is a terrorist organisation. Maximum penalty: Imprisonment for 10 years. (2) Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation. 310K Multiplicity of offences If: (a) an act or omission is an offence against both this Part and the Commonwealth Criminal Code, and (b) the offender has been punished for that offence under the Commonwealth Criminal Code, the offender is not liable to be punished for the offence under this Part. 310L Repeal of Part This Part is repealed on 13 September 2013. Part 7 – Public justice offences Division 1 – Definitions 311 Definitions (1) In this Part:”benefit” means any benefit or advantage whether or not in money or money’s worth.”judicial officer” means a person who is, or who alone or with others constitutes, a judicial tribunal and includes a coroner.”judicial proceeding” means a proceeding in or before a judicial tribunal in which evidence may be taken on oath.”judicial tribunal” means a person (including a coroner and an arbitrator), court or body authorised by law, or by consent of parties, to conduct a hearing for the purpose of the determination of any matter or thing and includes a person, court or body authorised to conduct a committal proceeding.”public justice official” means a person who is a public officer employed in any capacity (other than as a judicial officer) for the investigation, detection or prosecution of offenders. (2) In this Part, a reference to the making of a statement on oath includes a reference to the verification of a statement on oath. 312 Meaning of “pervert the course of justice” A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law. 313 Knowledge that offence is a serious indictable offence is unnecessary If it is an element of an offence under this Part that an offence is a serious indictable offence, it is not necessary for the prosecution to establish that the accused knew that the offence was a serious indictable offence. Division 2 – Interference with the administration of justice 314 False accusations etc A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years. 315 Hindering investigation etc (1) A person who does anything intending in any way to hinder: (a) the investigation of a serious indictable offence committed by another person, or (b) the discovery of evidence concerning a serious indictable offence committed by another person, or (c) the apprehension of another person who has committed a serious indictable offence, is liable to imprisonment for 7 years. (2) For the purposes of subsection (1), a person is to be considered to have committed a serious indictable offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence. (3) It is not an offence against this section merely to refuse or fail to divulge information or produce evidence. 315A Threatening or intimidating victims or witnesses (1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any other person intending to influence any person not to bring material information about an indictable offence to the attention of a police officer or other appropriate authority is liable to imprisonment for 7 years. (2) In this section:”material information” means information that a person has that might be of material assistance in securing the apprehension of a person who has committed an indictable offence, or the prosecution or conviction of any such person. 316 Concealing serious indictable offence (1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years. (2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years. (3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury. (4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection. (5) The regulations may prescribe a profession, calling or vocation as referred to in subsection (4). 317 Tampering etc with evidence A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or (b) fabricates false evidence (other than by perjury or suborning perjury), or (c) knowingly makes use of fabricated false evidence, is liable to imprisonment for 10 years. 318 Making or using false official instrument to pervert the course of justice (1) In this section:”official instrument” means an instrument of a kind that is made or issued by a person in his or her capacity as a public officer or by a judicial tribunal. (2) A person who makes a false official instrument, or who makes a copy of an instrument which the person knows to be a false official instrument, with the intention that: (a) he or she or another person will use it to induce another person to accept the instrument as genuine or to accept the copy as a copy of a genuine official instrument, and (b) that acceptance will pervert the course of justice, is liable to imprisonment for 14 years. (3) A person who uses an instrument which the person knows to be a false official instrument, or who uses a copy of an instrument which the person knows to be a false official instrument, with the intention: (a) of inducing another person to accept the instrument as genuine or to accept the copy as a copy of a genuine official instrument, and (b) of thereby perverting the course of justice, is liable to imprisonment for 14 years. (4) Section 250 applies to the interpretation of this section. 319 General offence of perverting the course of justice A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years. Division 3 – Interference with judicial officers, witnesses, jurors etc 320 Extended meaning of “giving evidence” In this Division, a reference to the giving of evidence includes a reference to the production of anything to be used as evidence. 321 Corruption of witnesses and jurors (1) A person who confers or procures or offers to confer or procure or attempt to procure any benefit on or for any person: (a) intending to influence any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or (b) intending to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding or to not attend as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not, and intending to pervert the course of justice, is liable to imprisonment for 10 years. (2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person: (a) in consideration for any agreement or undertaking that any person will as a witness in any judicial proceeding give false evidence or withhold true evidence or not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or (b) on account of anything to be done or omitted to be done by him or her or another person as a juror in any judicial proceeding, or on account of his or her or another person’s not attending as a juror in any judicial proceeding, intending to pervert the course of justice, is liable to imprisonment for 10 years. 322 Threatening or intimidating judges, witnesses, jurors etc A person who threatens to do or cause, or who does or causes, any injury or detriment to any person: (a) intending to influence a person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or (b) intending to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding or to not attend as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not, or (c) intending to influence any person in the person’s conduct as a judicial officer, or (d) intending to influence any person in the person’s conduct as a public justice official in or in connection with any judicial proceeding, is liable to imprisonment for 10 years. 323 Influencing witnesses and jurors A person who does any act: (a) intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce any thing in evidence pursuant to a summons or subpoena, or (b) intending, other than by the production of evidence and argument in open court, to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not, is liable to imprisonment for 7 years. 324 Increased penalty if serious indictable offence involved A person who commits an offence against section 321, 322 or 323 (offences concerning interference with witnesses, jurors, judicial officers and public justice officials) intending to procure the conviction or acquittal of any person of any serious indictable offence is liable to imprisonment for 14 years. 325 Preventing, obstructing or dissuading witness or juror from attending etc (1) A person who without lawful excuse wilfully prevents, obstructs or dissuades a person called as a witness in any judicial proceeding from attending as a witness or from producing anything in evidence pursuant to a summons or subpoena is liable to imprisonment for 5 years. (1A) A person who without lawful excuse wilfully prevents, obstructs or dissuades another person who the person believes may be called as a witness in any judicial proceeding from attending the proceeding is liable to imprisonment for 5 years. (2) A person who without lawful excuse wilfully prevents, obstructs or dissuades a person summoned as a juror in any judicial proceeding from attending as a juror is liable to imprisonment for 5 years. 326 Reprisals against judges, witnesses, jurors etc (1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any person on account of anything lawfully done by a person: (a) as a witness or juror in any judicial proceeding, or (b) as a judicial officer, or (c) as a public justice official in or in connection with any judicial proceeding, is liable to imprisonment for 10 years. (2) A person who threatens to do or cause, or who does or causes, any injury or detriment to another person because the person believes the other person will or may be or may have been called as a witness, or will or may serve or may have served as a juror, in any judicial proceeding is liable to imprisonment for 10 years. (3) For the purposes of this section, it is immaterial whether the accused acted wholly or partly for a reason specified in subsection (1) or (2). Division 4 – Perjury, false statements etc 327 Offence of perjury (1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years. (2) A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it. (3) The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement. (4) The question of whether any matter is material to a proceeding is a question of law. 328 Perjury with intent to procure conviction or acquittal Any person who commits perjury intending to procure the conviction or acquittal of any person of any serious indictable offence is liable to imprisonment for 14 years. 329 Conviction for false swearing on indictment for perjury If on the trial of a person for perjury the jury is not satisfied that the accused is guilty of perjury but is satisfied on the evidence that the accused is guilty of an offence under section 330 (False statement on oath not amounting to perjury) it may find the accused not guilty of the offence charged but guilty of the latter offence and the accused is liable to punishment accordingly. 330 False statement on oath not amounting to perjury A person who makes on oath any false statement knowing the statement to be false or not believing it to be true, if it is not perjury, is liable to imprisonment for 5 years. 331 Contradictory statements on oath If on the trial of a person for perjury or for an offence under section 330 (False statement on oath not amounting to perjury): (a) the trier of fact is satisfied that the accused has made 2 statements on oath and one is irreconcilably in conflict with the other, and (b) the trier of fact is satisfied that one of the statements was made by the accused knowing it was false or not believing it was true but the trier of fact cannot say which statement was so made, the trier of fact may make a special finding to that effect and find the accused guilty of perjury or of an offence under section 330, as appropriate, and the accused is liable to punishment accordingly. 332 Certain technical defects provided for If on the trial of a person for perjury or for an offence under section 330 (False statement on oath not amounting to perjury): (a) any affidavit, deposition, examination or declaration offered in evidence is wrongly entitled or otherwise informal or defective, or (b) the jurat to any such instrument is informal or defective, the accused is not entitled to an acquittal because of the omission, defect or informality but the instrument (if otherwise admissible) may be given in evidence and used for all purposes of the trial. 333 Subornation of perjury (1) A person who procures, persuades, induces or otherwise causes a person to give false testimony the giving of which is perjury is guilty of subornation of perjury and liable to imprisonment for 7 years. (2) A person who commits subornation of perjury intending to procure the conviction or acquittal of any person of any serious indictable offence is liable to imprisonment for 14 years. 334 General provisions applicable to perjury and false statement offences It is immaterial for the purposes of this Division: (a) whether a statement on oath is given orally or in writing, or (b) which forms and ceremonies are used in administering the oath (or otherwise binding the person giving the testimony to speak the truth) so long as the person assents to the forms and ceremonies actually used, or (c) whether (in the case of a statement made in a judicial proceeding) the judicial tribunal concerned is properly constituted or held in the proper place or not, so long as it actually acts as a judicial tribunal in the proceeding in which the statement is made, or (d) whether the person who makes the statement is a competent witness or not, or whether the statement is admissible in the proceeding or not, or (e) in the case of judicial proceedings in an arbitration, whether the law governing the arbitration agreement or the proceedings, or any other relevant law, is or is not the law of New South Wales. 335 False statements in evidence on commission If a person, in giving any testimony (either orally or in writing) otherwise than on oath, when required to do so by an order under section 33 (Power of the Supreme Court to give effect to application for assistance) of the Evidence on Commission Act 1995, makes any statement that is false in a material particular, knowing the statement to be false or not believing it to be true, is liable to imprisonment for 5 years. 336 False entry on public register (1) A person who for an improper purpose makes a statement for the making of an entry in any register kept by a public officer for a public purpose, knowing the statement to be false or misleading in a material particular, is liable to imprisonment for 5 years. (2) A person who for an improper purpose makes an entry in any register kept by a public officer for a public purpose, knowing the entry to be false or misleading in a material particular, is liable to imprisonment for 5 years. 337 False instruments issued by public officers A public officer who, being authorised or required to issue an instrument whereby any person may be prejudicially affected, issues the instrument for an improper purpose knowing it to be false in a material particular is liable to imprisonment for 5 years. 338 Restrictions on prosecutions for perjury (1) A person is not to be prosecuted for perjury except: (a) by the Director of Public Prosecutions, or (b) at the direction of the Attorney General, or (c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed. (2) If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1) (c), the prosecution may be instituted with leave of the Supreme Court. (3) A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions. 339 Application of Division to perjury under other Acts Any false oath declared by any Act to be perjury or made punishable as perjury by any Act is to be considered to be perjury for the purposes of this Act. Division 5 – Miscellaneous 340 Extent of abolition of offences The offences at common law abolished by this Division are abolished for all purposes not relating to offences committed before the commencement of this Part (as substituted by the Crimes (Public Justice) Amendment Act 1990). 341 Certain common law offences abolished The following offences at common law are abolished: • the offence of perverting the course of justice, • the offence of attempting or conspiring to pervert the course of justice, • the offence of falsely accusing a person of a crime or of procuring a person to falsely accuse a person of a crime, • the offence of concealing evidence so that a person is falsely accused of a crime, • the offence of attempting to pervert the course of justice by assisting a person to avoid arrest, • the offence of persuading a person to make a false statement to police to mislead them in their investigation, • the offence of procuring a person to make a false accusation, • the offence of misprision of felony, • the offence of compounding a felony, • the offence of dissuading, intimidating or preventing, or attempting to dissuade, intimidate or prevent, a person who is bound to give evidence in a criminal matter from doing so, • the offence of using threats or persuasion to witnesses to induce them not to appear or give evidence in courts of justice, • the offence of perjury, • the offence of embracery (attempting to corrupt, influence or instruct a jury or to induce a jury to favour one side more than the other), • personating a juror. 342 Certain conspiracy offences not affected The abolition of the common law offence of conspiring to pervert the course of justice does not prevent a prosecution for an offence of conspiring to commit an offence against this Part. 343 Certain common law offences not abolished To remove any doubt, it is declared that the following offences at common law are not abolished by this Division: (a) the offence of escaping from lawful custody, (b) the offence of assisting a person to escape from lawful custody, (c) the offence of refusing to assist a peace officer in the execution of his or her duty in preventing a breach of the peace. 343A Saving of other punishments Nothing in this Part prevents or affects any other punishment, or any forfeiture, provided under any Act. Part 8 – (Repealed) Part 8A – Attempts 344A Attempts (1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty. (2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence. Part 9 – Abettors and accessories 345 Principals in the second degree–how tried and punished Every principal in the second degree in any serious indictable offence shall be liable to the same punishment to which the person would have been liable had the person been the principal in the first degree. 346 Accessories before the fact–how tried and punished Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not. 347 Accessories after the fact–how tried and punished Every accessory after the fact to a serious indictable offence may be indicted, convicted, and sentenced as such accessory, either before, or together with, or after the trial of the principal offender, whether the principal offender has been previously tried or not, or is amenable to justice or not. 347A Wife may be accessory after fact to husband’s felony (1) The common law rule granting immunity to a wife against prosecution as an accessory after the fact to a felony committed by her husband is abolished. (2) This section does not apply in respect of any act of, or omission by, a wife if the act or omission occurred before the commencement of this section. 348 Punishment of accessories after the fact to certain treason-related offences Every accessory after the fact to an offence under section 12 shall be liable to imprisonment for two years. 349 Punishment of accessories after the fact to murder etc (1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years. (2) Every accessory after the fact to the crime of robbery with arms or in company with one or more person or persons, or the crime of kidnapping referred to in section 86, shall be liable to imprisonment for fourteen years. 350 Punishment of accessories after the fact to other serious indictable offences An accessory after the fact to any other serious indictable offence is liable to imprisonment for 5 years, except where otherwise specifically enacted. 351 Trial and punishment of abettors of minor indictable offences Any person who aids, abets, counsels, or procures, the commission of a minor indictable offence, whether the same is an offence at Common Law or by any statute, may be proceeded against and convicted together with or before or after the conviction of the principal offender and may be indicted, convicted, and punished as a principal offender. 351A Recruiting persons to engage in criminal activity (1) A person (not being a child) who recruits another person to carry out or assist in carrying out a criminal activity is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) A person (not being a child) who recruits a child to carry out or assist in carrying out a criminal activity is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) In this section:”child” means a person under the age of 18 years.”criminal activity” means conduct that constitutes a serious indictable offence.”recruit” means counsel, procure, solicit, incite or induce. 351B Aiders and abettors punishable as principals (1) Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender. (2) On conviction any such person is liable to the penalty and punishment to which the person would have been liable had the person been the principal offender. (3) This section applies to offences committed before or after the commencement of this section. (4) This section applies to an indictable offence that is being dealt with summarily. Part 10 – (Repealed) Parts 10A, 10B – (Repealed) Part 11 – Criminal responsibility–defences Division 1 – (Repealed) Division 2 – Lawful authority or excuse 417 Proof of lawful authority or excuse Wherever, by this Act, doing a particular act or having a specified article or thing in possession without lawful authority or excuse, is made or expressed to be an offence, the proof of such authority or excuse shall lie on the accused. 417A Proof of exceptions (1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings. (2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person. (3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it. Division 3 – Self-defence 418 Self-defence–when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 419 Self-defence–onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. 420 Self-defence–not available if death inflicted to protect property or trespass to property This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass. 421 Self-defence–excessive force that inflicts death (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter. 422 Self-defence–response to lawful conduct This Division is not excluded merely because: (a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it. 423 Offences to which Division applies (1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section. (2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division. 424-428 (Repealed) Part 11A – Intoxication 428A Definitions In this Part: “drug” includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985 and a poison, restricted substance or drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966. “intoxication” means intoxication because of the influence of alcohol, a drug or any other substance. “offence” includes an attempt to commit the offence. “offence of specific intent” is defined in section 428B. “relevant conduct” means an act or omission necessary to constitute the actus reus of an offence. “self-induced intoxication” means any intoxication except intoxication that: (a) is involuntary, or (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a registered nurse whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a nurse practitioner, a registered midwife whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions. 428B Offences of specific intent to which Part applies (1) An “offence of specific intent” is an offence of which an intention to cause a specific result is an element. (2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent. Table (a) an offence under the following provisions of this Act: 19A Murder 27 Acts done to the person with intent to murder 28 Acts done to property with intent to murder 29 Certain other attempts to murder 30 Attempts to murder by other means 33 Wounding or grievous bodily harm with intent 33A Discharging firearm etc with intent 33B Use of weapon to resist arrest etc 37 Attempts to choke etc (garrotting) 38 Using chloroform etc to commit an offence 41 Administering poison etc to injure or to cause distress or pain 41A Poisoning etc of water supply 47 Using etc explosive substance or corrosive fluid etc 48 Placing gunpowder near a building etc 49 Setting trap etc 55 Possessing etc gunpowder etc with intent to injure the person 61K Assault with intent to have sexual intercourse 82 Administering drugs etc to herself by woman with child 83 Administering drugs etc to woman with intent 86 Kidnapping 87 Child abduction 99 Demanding property with intent to steal 110 Breaking, entering and assaulting with intent to murder etc 111 Entering dwelling-house 113 Breaking etc into any house etc with intent to commit serious indictable offence 114 (a) (c) (d) Being armed etc with intent to commit offence 158 Destruction, falsification of accounts etc by clerk or servant 172 Trustees fraudulently disposing of property 174 Directors etc omitting certain entries 175 Director etc wilfully destroying etc books of company etc 176 Director or officer publishing fraudulent statements 178BB Obtaining money etc by false or misleading statements 179 False pretences etc 180 Causing payment etc by false pretences etc 181 False pretence of title 184 Fraudulent personation 185 Inducing persons by fraud to execute instruments 190 Receiving etc cattle unlawfully killed, or carcass etc 196 Destroying or damaging property with intent to injure a person 198 Destroying or damaging property with intention of endangering life 199 Threatening to destroy or damage property 200 Possession etc of explosive or other article with intent to destroy or damage property 202 (c) Interfering or damaging etc bed or bank of river with intent of obstructing etc navigation 205 Prejudicing the safe operation of an aircraft or vessel 210 (b) Acting with intention of destroying etc aids to navigation 211 Criminal acts relating to railways 249C Misleading documents or statements used or made by agents 249D Corrupt inducements for advice 298 Demanding property on forged instruments 300 Making or using false instruments 301 Making or using copies of false instruments 302 Custody of false instruments etc 302A Making or possession of implements for making false instruments 314 False accusations etc 315 Hindering investigation etc 317 Tampering etc with evidence 318 Making or using false official instrument to pervert the course of justice 319 General offence of perverting the course of justice 321 (1) Corruption of witnesses and jurors 322 Threatening or intimidating judges, witnesses, jurors etc 323 Influencing witnesses and jurors 328 Perjury with intent to procure conviction or acquittal 333 (2) Subornation of perjury (b) an offence under the following provisions of this Act to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence: 57 (assault on persons preserving wreck) 58 (assault with intent to commit serious indictable offence on certain officers) 66B (assaulting with intent to have sexual intercourse with child under 10) 66D (assaulting with intent to have sexual intercourse with child between 10 and 16) 78I (assault with intent to have homosexual intercourse with male under 10) 78L (assault with intent to have homosexual intercourse with male between 10 and 18) 78O (assault with intent to have homosexual intercourse with pupil etc) 91 (taking child with intent to steal) 94 (assault with intent to rob person) 95 (assault with intent to rob in circumstances of aggravation) 96 (assault with intent to rob with wounding) 97 (assault with intent to rob with arms) 98 (assault with intent to rob) 109 (entering with intent, or stealing etc in dwelling-house and breaking out) 126 (killing with intent to steal) 139 (destroys, damages, breaks with intent to steal) 140 (destroys, damages, breaks with intent to steal) 197 (dishonestly destroying or damaging property with a view to gain) 204 (destruction of, or damage to, an aircraft or vessel with intent) (c) any other offence by or under any law (including the common law) prescribed by the regulations. 428C Intoxication in relation to offences of specific intent (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. (2) However, such evidence cannot be taken into account if the person: (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct. 428D Intoxication in relation to other offences In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced–cannot be taken into account, or (b) if the intoxication was not self-induced–may be taken into account. 428E Intoxication in relation to murder and manslaughter If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder: (a) in the case of intoxication that was self-induced–evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter, or (b) in the case of intoxication that was not self-induced–evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea for manslaughter. 428F Intoxication in relation to the reasonable person test If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated. 428G Intoxication and the actus reus of an offence (1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary. (2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. 428H Abolition of common law relating to self-induced intoxication The common law relating to the effect of intoxication on criminal liability is abolished. 428I Application of Part This Part applies to any offence (whether under this Act or otherwise) committed after the commencement of this Part. 428J-428YB (Repealed) Part 11B – (Repealed) Part 12 – Sentences 429, 430 (Repealed) 431 Convicted persons not to be liable to death penalty (1) This section applies to offences under: (a) an Act, (b) an Imperial Act so far as it applies in New South Wales, or (c) a rule of law, whether committed before or after the commencement of the Crimes (Death Penalty Abolition) Amendment Act 1985. (2) A person is not liable to the punishment of death for an offence to which this section applies. (3) Where, but for this subsection, no penalty would be provided for an offence to which this section applies that was formerly punishable by death, that offence shall be punishable by imprisonment for 25 years. 431A Life sentences (1) This section applies to offences under: (a) an Act, or (b) an Imperial Act so far as it applies in New South Wales, or (c) a rule of law. (2) A person is not liable to the punishment of imprisonment for life for any offence to which this section applies except for the offence of murder, for an offence under section 61JA, for an offence under section 66A (2) or for an offence carrying that punishment under the Drug Misuse and Trafficking Act 1985. (3) Where, but for this subsection, no penalty would be provided for an offence to which this section applies that was formerly punishable by imprisonment for life, that offence is punishable by imprisonment for 25 years. (4) This section applies to offences committed before or after the commencement of this section. However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the offence were instituted against the convicted person before the commencement of this section. (5) Any amendment made by the Crimes (Life Sentences) Amendment Act 1989 altering the penalty for an offence under this Act from imprisonment for life to imprisonment for 25 years applies to an offence committed before or after the commencement of the amendment. However, the amendment does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the offence were instituted against the convicted person before the commencement of the amendment. (6) (Repealed) 431B-447B (Repealed) Parts 13, 13A – (Repealed) Part 13B – Offences punishable by the Supreme Court in its summary jurisdiction 475A Offences punishable summarily (1) Subject to subsection (2) and section 475B but notwithstanding any other law, proceedings for any offence mentioned in Schedule 10 may, pursuant to Part 5 of Chapter 4 of the Criminal Procedure Act 1986 by the Attorney-General or the Director of Public Prosecutions, be taken before the Supreme Court in its summary jurisdiction. (2) Proceedings for an offence mentioned in paragraph (f) of Schedule 10 may not be taken under subsection (1) unless, in the application made under section 246 of the Criminal Procedure Act 1986 in respect of the offence, the person against whom the offence is charged is also charged with an offence mentioned in paragraph (a), (b), (c), (d), (d1) or (e) of that Schedule. (3) A person may be convicted of an offence mentioned in paragraph (f) of Schedule 10 notwithstanding that the person is not convicted of the offence mentioned in paragraph (a), (b), (c), (d), (d1) or (e) of that Schedule that was also charged in the application made under section 246 of the Criminal Procedure Act 1986 in respect of the offence mentioned in paragraph (e) of that Schedule. (4) The penalty that may be imposed by the Supreme Court in its summary jurisdiction on a person convicted of an offence mentioned in Schedule 10 is the penalty provided by law (other than this subsection), except that any fine imposed shall not exceed 100 penalty units and any term of imprisonment imposed shall not exceed 10 years, whether the penalty imposed is either a fine or a term of imprisonment. (5) Subsection (1) does not prevent proceedings for any offence referred to in that subsection from being taken otherwise than before the Supreme Court in its summary jurisdiction. (6) The reference in subsection (1) to the Attorney-General or the Director of Public Prosecutions includes, in relation to any proceedings, a reference to any person who is authorised in writing by the Attorney-General or Director to act, for the purposes of that subsection, on behalf of the Attorney-General or Director in relation to those proceedings as in relation to proceedings for all offences mentioned in Schedule 10. (7) A document purporting to be signed: (a) by the Attorney-General or the Director of Public Prosecutions and to authorise a person specified in the document to act as referred to in subsection (6) is, in any proceedings referred to in subsection (1), admissible in evidence as prima facie evidence that the person is authorised so to act, or (b) by the Attorney-General or the Director of Public Prosecutions for the purpose of any proceedings referred to in subsection (1) is admissible in evidence as prima facie evidence that the Attorney-General or the Director of Public Prosecutions signed the document. 475B Election for summary trial (1) Section 475A (1) applies only if, upon the completion of the pre-trial procedures in any proceedings in respect of an offence to which an application under section 246 of the Criminal Procedure Act 1986 relates, being procedures prescribed by rules made under that Act, the defendant makes an election to be tried for that offence in the Supreme Court in its summary jurisdiction. (2) Notwithstanding subsection (1) where the defendant in any proceedings is the subject of an application (not being an application referred to in subsection (3)), under section 246 of the Criminal Procedure Act 1986 relating to 2 or more offences, he or she is not entitled to make an election under subsection (1) unless he or she makes it in respect of every offence to which the application relates. (3) Where 2 or more defendants are the subject of an application under section 246 of the Criminal Procedure Act 1986, an election under subsection (1) made by one of the defendants in respect of any offence to which the application relates and alleged to have been committed by him or her has no effect for the purposes of this section unless such an election is made by that defendant in respect of every other offence to which the application relates and which is alleged to have been committed by him or her and by each of the other defendants in respect of every offence to which the application relates and which is alleged to have been committed by each of them. (4) A reference in subsection (1), (2) or (3) to an offence to which an application under section 246 of the Criminal Procedure Act 1986 relates does not include a reference to such an offence to which the person charged with the offence has, upon such an application, pleaded guilty. (5) Where the defendant does not make an election under subsection (1): (a) the Supreme Court shall order that the proceedings for the offence to which the election relates shall be tried in the Supreme Court otherwise than in its summary jurisdiction, and (b) the provisions of section 475A (1) shall cease to apply to or in respect of the proceedings for that offence. (6) A person tried pursuant to an order under subsection (5) (a) shall for all purposes, be deemed to be tried on indictment and if convicted to have been convicted on indictment. (7) A reference in this section to a plea of guilty does not include a reference to such a plea if the plea has been withdrawn or has not been accepted. Part 14 – (Repealed) Part 14A – Miscellaneous offences Division 1 – Larceny and similar summary offences 501 (Renumbered) (Renumbered as sec 496) 502 Possession of skin etc of stolen cattle Whosoever, in whose possession there has been found the skin or carcass of any stolen cattle, or of any cattle reasonably suspected to have been stolen, or any part of any such skin or carcass, may be brought before or may be summoned to appear before the Local Court to show in what manner he or she became possessed of the same, and if there is reasonable cause to believe that he or she has dishonestly come by the same, and if he or she fails to satisfy the Court before whom the case is heard that he or she obtained the same without any knowledge or reasonable ground to suspect that the same was the skin or carcass, or part of the skin or carcass, of any stolen cattle, he or she shall be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. 503 Stealing dogs Whosoever steals any dog shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. 504 Possessing stolen dog or skin Whosoever has unlawfully in his or her possession any stolen dog, or the skin of any such dog, knowing the dog to have been stolen, shall, on conviction by the Local Court, be liable to pay a fine of 5 penalty units. 505 Stealing animals etc ordinarily kept in confinement Whosoever: steals any animal or bird ordinarily kept in a state of confinement, or for any domestic purpose, but not being the subject of larceny at Common Law, or kills any such animal or bird with intent to steal the same, or any part thereof, shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. 506 Stealing animals etc ordinarily kept in confinement–second offence Whosoever, having been convicted under this or any former Act of any such offence as is mentioned in section 505, afterwards commits any offence in the said section mentioned shall, on conviction by the Local Court, be liable to imprisonment for one year. 507 Possession of stolen animals etc Whosoever in whose possession there has been found any such animal or bird as in section 505 mentioned, or the skin thereof, respectively, which to his or her knowledge has been stolen, or is the skin of a stolen animal or bird, shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. 508 Possession of stolen animals etc–second offence Whosoever, having been convicted, under this or any former Act, of any such offence as is mentioned in section 507, afterwards commits any offence in the said section mentioned, shall, on conviction by the Local Court, be liable to imprisonment for one year. 509 Restoration of such stolen animals etc Any such animal or bird as is mentioned in section 505, or the skin thereof, which has been found in the possession of any person may be restored to the owner thereof by the order of the Local Court. 510 Setting engine for deer etc Whosoever: unlawfully and wilfully sets, or uses, any snare, or engine, for the purpose of taking or killing deer upon any inclosed land in the occupation of the owner of such deer, or unlawfully and wilfully destroys any part of the fence of any land where deer are then kept shall, on conviction by the Local Court, be liable to pay a fine of 5 penalty units. 511 (Repealed) 512 Taking fish in waters on private property Whosoever unlawfully and wilfully takes, or destroys, any fish in any water being private property, shall, on conviction by the Local Court, be liable to pay the value of the fish taken or destroyed, in addition to a fine of 0.1 penalty unit. 513 Stealing shrubs etc Whosoever steals, or destroys, or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. 514 (Repealed) 515 Stealing etc live or dead fence etc Whosoever steals, or cuts, breaks, or throws down with intent to steal, any part of any live or dead fence, or any material set up, or used, as a fence, or any stile, or gate, or any part thereof, respectively, shall, on conviction by the Local Court, be liable to pay the value of the property stolen, or the amount of injury done, in addition to a fine of 1 penalty unit. 516 (Repealed) 517 Unlawful possession of trees, fences etc Whosoever, in whose possession the whole or any part of any tree, sapling, or shrub, or any underwood, or any part of any live or dead fence, or any post, pale, wire, rail, stile, or gate, or any part thereof has been found, on being taken or summoned before the Local Court fails to satisfy the Court that he or she came lawfully by the same, shall on conviction be liable to pay the value of the property found, in addition to a fine of 1 penalty unit. 518 Stealing dead wood Whosoever steals, or destroys, or damages with intent to steal, any dead wood, lying on land in the occupation of another person shall, on conviction by the Local Court, be liable to pay the value of the wood, in addition to a fine of 1 penalty unit. 519 (Repealed) 520 Stealing plants etc in gardens Whosoever steals, or destroys, or damages with intent to steal, any plant, root, fruit, or vegetable produce, growing in any garden, orchard, pleasure-ground, nursery-ground, hothouse, greenhouse, or conservatory, shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. 521 Stealing plants etc not growing in gardens Whosoever steals, or destroys, or damages with intent to steal, any cultivated root, or plant, used for the food of man or beast, or for medicine, or for distilling, or dyeing, or for any manufacture, and growing in any inclosed land, not being a garden, orchard, pleasure-ground, or nursery-ground, shall, on conviction by the Local Court be liable to pay a fine of 2 penalty units. 521A Stealing of rock, stone etc Whosoever steals: (a) any rock or rocks, (b) any stone or stones, or (c) any gravel, soil, sand or clay, that is or are in, on or under, or forms or form part of any land shall, on conviction by the Local Court, be liable to imprisonment for 6 months, or to pay a fine of 5 penalty units, or both. 522 Possession of shipwrecked goods Whosoever in whose possession any article belonging to a vessel in distress, or wrecked, stranded, or cast on shore, has been found, on being summoned before the Local Court, fails to satisfy them that he or she came lawfully by the same, shall be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both: And such article shall, by the order of the Local Court, be delivered to or for the use of the owner. 523 Offering shipwrecked goods for sale Whosoever offers for sale any article unlawfully taken, or reasonably suspected to have been so taken, from any vessel in distress, or wrecked, stranded, or cast on shore, and who, on being summoned before the Local Court, fails to satisfy them that he or she came lawfully by such article, or received the same without knowing or having cause to suspect that it had been so taken as aforesaid, shall be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. And such article shall, by the order of the Local Court, be delivered to or for the use of the owner upon payment of a reasonable reward, to be ascertained by them, to the person who seized the same. 524 Seizure of such goods Any person, to whom any article mentioned in section 523 is offered, or any officer of customs or police, may seize the same, and shall carry it to, or give notice of such seizure to, a Magistrate or an authorised officer. 525 Stealing or damaging books and other things in public library and other places Whosoever steals, or removes, secretes, or damages with intent to steal, any book, print, manuscript, or other article, or any part thereof, kept for the purposes of reference, or exhibition, or of art, science, or literature, in any public library, or in any building belonging to the Queen, or to any university or college, or a council (within the meaning of the Local Government Act 1993), shall, on conviction by the Local Court, be liable to imprisonment for one year, and to pay a fine of 10 penalty units in addition to a fine equal to four times the value of the article stolen, or intended to have been stolen. 526 Term “Public Library” Every collection of books, prints, manuscripts, or similar articles, kept in any school-of-arts, or mechanics-institute, or in any building, or room, occupied or habitually used by the members of any association, or the residents of any area (within the meaning of the Local Government Act 1993), as a reading-room, or library, shall be deemed a public library within the meaning of section 525. 526A-527B (Repealed) 527C Persons unlawfully in possession of property (1) Any person who: (a) has any thing in his or her custody, (b) has any thing in the custody of another person, (c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or (d) gives custody of any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court: (a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or (b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both. (1A) A prosecution for an offence under subsection (1) involving the giving of custody of a motor vehicle to a person who is not lawfully entitled to possession of the motor vehicle may be commenced at any time within 2 years after the date of commission of the offence. (2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained. (3) In this section:”motor vehicle” has the same meaning as it has in Division 5A of Part 4.”premises” includes any structure, building, vehicle, vessel or place, whether built on or not, and any part of any such structure, building, vehicle, vessel or place.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 528 (Repealed) Division 2 – Other offences 529 Criminal defamation (1) Common law misdemeanour of criminal libel abolished The common law misdemeanour of criminal libel remains abolished. (2) Blasphemous, seditious or obscene libel not affected Subsection (1) does not affect the law relating to blasphemous, seditious or obscene libel. (3) Offence of criminal defamation A person who, without lawful excuse, publishes matter defamatory of another living person (the “victim”): (a) knowing the matter to be false, and (b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused, is guilty of an offence. Maximum penalty: 3 years imprisonment. (4) Lawful excuse A defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the victim if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant. (5) Prosecution to negative lawful excuse The prosecution bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the defendant. (6) Functions of jury On a trial before a jury for an offence under this section: (a) the question of whether the matter complained of is capable of bearing a defamatory meaning is a question for determination by the judicial officer presiding, and (b) the question of whether the matter complained of does bear a defamatory meaning is a question for the jury, and (c) the jury may give a general verdict of guilty or not guilty on the issues as a whole. (7) DPP to consent to proceedings Proceedings in a court for an offence under this section cannot be instituted without the written consent of the Director of Public Prosecutions. (8) Evidence of consent of DPP In those proceedings, a consent purporting to have been signed by the Director of Public Prosecutions is, without proof of the signature, evidence of that consent. (9) Proceedings for an offence do not bar civil proceedings The commencement of criminal proceedings for an offence under this section does not prevent: (a) the commencement of civil proceedings for defamation against the defendant in the criminal proceedings, or (b) the determination of the civil proceedings pending the determination of the criminal proceedings. (10) Proof of convictions for offences If the question whether or not a person committed an offence (other than offence under this section) arises in proceedings for an offence under this section, section 42 of the Defamation Act 2005 applies to the proof of the commission of that offence in the same way as it applies to such proof in civil proceedings for defamation. (11) Interpretation In this section, “publish” and “defamatory” have the meanings that they have in the law of tort (as modified by the Defamation Act 2005) relating to defamation. 530 Serious animal cruelty (1) A person who, with the intention of inflicting severe pain: (a) tortures, beats or commits any other serious act of cruelty on an animal, and (b) kills or seriously injures or causes prolonged suffering to the animal, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) A person is not criminally responsible for an offence against this section if: (a) the conduct occurred in accordance with an authority conferred by or under the Animal Research Act 1985 or any other Act or law, or (b) the conduct occurred in the course of or for the purposes of routine agricultural or animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice. (3) In this section:”animal” means a mammal (other than a human being), a bird or a reptile. 531 Killing or seriously injuring animals used for law enforcement (1) A person who intentionally kills or seriously injures an animal: (a) knowing that the animal is being used by a law enforcement officer in the execution of the officer’s duty, or (b) as a consequence of, or in retaliation for, the use of the animal by a law enforcement officer while in the execution of the officer’s duty, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) In this section:”animal” means a dog, horse or other mammal (other than a human being).”law enforcement officer” means: (a) a police officer (including a member of the police force of the Commonwealth or another State or Territory), or (b) any other official of this State, the Commonwealth or another State or Territory who is authorised to use an animal in connection with the detention of persons or the enforcement of the laws of this State, the Commonwealth or another State or Territory. 532-545AB (Repealed) 545B Intimidation or annoyance by violence or otherwise (1) Whosoever: (a) with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, or (b) in consequence of such other person having done any act which he had a legal right to do, or of his having abstained from doing any act which he had a legal right to abstain from doing, wrongfully and without legal authority: (i) uses violence or intimidation to or toward such other person or his wife, child, or dependant, or does any injury to him or to his wife, child, or dependant, or (ii) follows such other person about from place to place, or (iii) hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof, or (iv) (Repealed) (v) follows such other person with two or more other persons in a disorderly manner in or through any street, road, or public place, is liable, on conviction before the Local Court, to imprisonment for 2 years, or to a fine of 50 penalty units, or both. (2) In this section:”Intimidation” means the causing of a reasonable apprehension of injury to a person or to any member of his family or to any of his dependants, or of violence or damage to any person or property, and “intimidate” has a corresponding meaning.”Injury” includes any injury to a person in respect of his property, business, occupation, employment, or other source of income, and also includes any actionable wrong of any nature. 545C Knowingly joining or continuing in etc an unlawful assembly (1) Whosoever knowingly joins an unlawful assembly or continues in it shall be taken to be a member of that assembly, and shall, on conviction before the Local Court, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding 5 penalty units, or both. (2) Whosoever being armed with any weapon or loaded arms, or with anything which used as a weapon of offence is likely to cause death or grievous bodily harm, is a member of an unlawful assembly, shall be liable, on conviction before the Local Court, to imprisonment for a term not exceeding twelve months or to a fine not exceeding 10 penalty units, or both. (3) Any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do, shall be deemed to be an unlawful assembly. 545D (Repealed) 545E (Renumbered) (Renumbered as section 93FB) 546 Abetting or procuring Whosoever, where any offence is by this Act punishable on summary conviction, aids, abets, counsels, or procures the commission of such offence, shall, on conviction by the Local Court, be guilty in the same degree, and liable to the same forfeiture, and punishment, as the principal offender. 546A (Repealed) 546B Convicted persons found with intent to commit offence (1) Any person who, having been convicted of an indictable offence, is found in or near any premises or public place with intent to commit an indictable offence shall be liable on conviction before the Local Court to imprisonment for 6 months, or to a fine of 4 penalty units. (2) In this section, “premises” includes any structure, building, vehicle, vessel or place, whether built upon or not, and any part thereof. 546C Resisting etc police Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both. 546D Impersonation of police officers (1) General offence A person who impersonates a police officer is guilty of an offence. Maximum penalty: Imprisonment for 2 years, or a fine of 100 penalty units, or both. (2) Aggravated offence A person who, with intent to deceive: (a) impersonates a police officer, and (b) purports to exercise a power or function as a police officer, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (3) An offence against subsection (1) is a summary offence. (4) In this section:”impersonation” does not include conduct engaged in solely for satirical purposes. 547-547A (Repealed) 547B Public mischief (1) Any person who, by any means, knowingly makes to a police officer any false representation that an act has been, or will be, done or that any event has occurred, or will occur, which act or event as so represented is such as calls for an investigation by a police officer, shall be liable on conviction before the Local Court to imprisonment for 12 months, or to a fine of 50 penalty units, or both. (2) For the purposes of subsection (1), a person shall be deemed to make a representation to a police officer if the person makes the representation to any other person and the nature of the representation reasonably requires that other person to communicate it to a police officer and that person does so communicate it. 547C Peeping or prying Any person who is in, on or near a building without reasonable cause with intent to peep or pry upon another person shall be liable on conviction before the Local Court to imprisonment for 3 months, or to a fine of 2 penalty units. 547D Person apprehended carrying razor etc Where a person is in lawful custody upon a charge of committing any crime or offence and is found to have been carrying at the time or immediately before the person was apprehended any razor, razor blade or other cutting weapon, the person shall, unless the court is satisfied that the person was carrying the same for a lawful purpose the proof of which shall lie upon the accused, be liable to imprisonment for a term not exceeding six months, or to a fine of 5 penalty units, or both. Division 3 – General 548-555 (Repealed) 556 Summary conviction a bar to further proceedings (1) Where any person, summarily convicted under this Act, pays the sum or sums adjudged to be paid, together with costs, or receives a remission thereof from the Crown, or suffers the imprisonment provided for non-payment thereof, or the imprisonment adjudged in the first instance, he or she shall not be liable: (a) to any other criminal proceedings for the same cause, (b) to any civil proceedings for the same cause at the suit of the person laying the information upon which he or she was summarily convicted under this Act. (2) Any person against whom civil proceedings have been taken in respect of any act or thing done or omitted to be done by him or her which is an offence of which he or she might have been convicted summarily without consent under this Act shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken. Parts 15, 15A – (Repealed) Part 16 – Miscellaneous enactments 563-573 (Repealed) 574 Prosecutions for blasphemy No person shall be liable to prosecution in respect of any publication by him or her orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace. 574A (Repealed) 574B Prevention of suicide It shall be lawful for a person to use such force as may reasonably be necessary to prevent the suicide of another person or any act which the person believes on reasonable grounds would, if committed, result in that suicide. 575-578 (Repealed) 578A Prohibition of publication identifying victims of certain sexual offences (1) In this section:”complainant” has the same meaning as in Division 1 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.”matter” includes a picture.”prescribed sexual offence” has the same meaning as in the Criminal Procedure Act 1986.”publish” includes: (a) broadcast by radio or television, or (b) disseminate by any other electronic means such as the internet. (2) A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. Penalty: In the case of an individual–50 penalty units or imprisonment for 6 months, or both; in the case of a corporation–500 penalty units. (3) This section applies even though the prescribed sexual offence proceedings have been finally disposed of. (4) This section does not apply to: (a) a publication authorised by the Judge or Justice presiding in the proceedings concerned, (b) a publication made with the consent of the complainant (being a complainant who is of or over the age of 14 years at the time of publication), (c) a publication authorised by the court concerned under section 11 of the Children (Criminal Proceedings) Act 1987 in respect of a complainant who is under the age of 16 years at the time of publication, (d) an official law report of the prescribed sexual offence proceedings or any official publication in the course of, and for the purposes of, those proceedings, (e) the supply of transcripts of the prescribed sexual offence proceedings to persons with a genuine interest in those proceedings or for genuine research purposes, or (f) a publication made after the complainant’s death. (5) A Judge or Justice shall not authorise a publication under subsection (4) (a) unless the Judge or Justice: (a) has sought and considered any views of the complainant, and (b) is satisfied that the publication is in the public interest. (6) The prohibition contained in this section applies in addition to any other prohibition or restriction imposed by law on the publication of any matter relating to prescribed sexual offence proceedings. (7) Proceedings for an offence against this section shall be dealt with summarily before: (a) the Local Court, or (b) the Supreme Court in its summary jurisdiction. (8) If proceedings for an offence against this Act are brought before the Local Court, the maximum penalty that the Local Court may impose on a corporation is 50 penalty units. 578B (Repealed) 578C Publishing indecent articles (1) In this section:”article” includes any thing: (a) that contains or embodies matter to be read or looked at, or (b) that is to be looked at, or (c) that is a record, or (d) that can be used, either alone or as one of a set, for the production or manufacture of any thing referred to in paragraphs (a), (b) or (c), but it does not include: (e) any film that is classified (other than as RC or X 18+) under the Commonwealth Act, or (f) any publication that is classified Unrestricted, Category 1 restricted or Category 2 restricted under the Commonwealth Act, or (g) any computer game that is classified (other than as RC) under the Commonwealth Act, or (h) any film, publication or computer game that is the subject of an exemption under Division 3 of Part 6 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995. “Commonwealth Act” means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth.”computer game”, “film” and “publication” each have the same meanings, respectively, as in the Commonwealth Act.”publish” includes: (a) distribute, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire, or (b) have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a), or (c) print, photograph or make in any other manner (whether of the same or of a different kind or nature) for the purpose of doing such an act. “record” means a gramophone record or a wire or tape, or a film, and any other thing of the same or of a different kind or nature, on which is recorded a sound or picture and from which, with the aid of a suitable apparatus, the sound or picture can be produced (whether or not it is in a distorted or altered form). (2) A person who publishes an indecent article is guilty of an offence. Maximum penalty: in the case of an individual–100 penalty units or imprisonment for 12 months (or both), and in the case of a corporation–200 penalty units. (2A)-(2C) (Repealed) (3) Nothing in this section makes it an offence for: (a) a person to publish an indecent article for the purposes of an application for classification under the Commonwealth Act, (b) for any member or officer of a law enforcement agency (within the meaning of the Criminal Records Act 1991) to publish an indecent article in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under any Act or law. (3A) A person cannot be convicted of an offence against this section and section 91H in respect of the same matter. (4) For the purposes of this section, an article may be indecent even though part of it is not indecent. (5) Proceedings for an offence under subsection (2) are to be dealt with summarily before the Local Court. (5A) (Repealed) (6) In any proceedings for an offence under this section in which indecency is in issue, the opinion of an expert as to whether or not an article has any merit in the field of literature, art, medicine or science (and if so, the nature and extent of that merit) is admissible as evidence. (7) If a corporation contravenes, whether by act or omission, another provision of this section, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the provision if the person knowingly authorised or permitted the contravention. (8) A person may be proceeded against and convicted under a provision pursuant to subsection (7) whether or not the corporation has been proceeded against or been convicted under that provision. (9) Nothing in subsection (7) or (8) affects any liability imposed on a corporation for an offence committed by the corporation under a provision of this section. 578D (Repealed) 578E Offences relating to advertising or displaying products associated with sexual behaviour (1) This section applies to products (such as articles, compounds, preparations or devices, but not printed matter) that are primarily concerned with, or intended to be used in connection with, sexual behaviour. (2) Any person who carries on, or who is engaged in, the business of selling or disposing of products to which this section applies must not: (a) advertise, or cause another person to advertise, in any manner the nature of that business, or (b) exhibit or display any such products: (i) to a person who has not consented to or requested the exhibition or display, or (ii) in a manner so that they can be seen from outside the premises of the business by members of the public. Maximum penalty: in the case of an individual–100 penalty units or imprisonment for 12 months (or both), and in the case of a corporation–200 penalty units. (3) Nothing in this section makes it an offence for a person who carries on (or who is engaged in) the business of selling or disposing of products to which this section applies to advertise the nature of that business to a person who carries on (or who is engaged in) a business or profession that ordinarily involves selling or disposing of, or advising on or prescribing the use of, such products. (4) This section does not apply: (a) to any person who carries on (or who is engaged in) a business that sells or disposes of contraceptive devices or compounds (but not any other type of product to which this section applies), or (b) to such persons, or classes of persons, as the Minister may, by notice published in the Gazette, specify for the purposes of this section. (5) A person can rely on the exemption provided by subsection (4) (a) only if the contraceptive devices or compounds are not displayed or exhibited to public view in any window or entrance to the premises of the business. (6) Proceedings for an offence under this section are to be dealt with summarily before the Local Court. 579 Evidence of proceedings dealt with by way of recognizance after 15 years (1) Where, following the conviction of any person for an offence or a finding that a charge of an offence has been proved against any person, whether the conviction or finding was before or after the commencement of the Crimes (Amendment) Act 1961: (a) sentence in respect of the conviction was suspended or deferred upon the person entering into a recognizance or, in substitution for sentence in respect of the conviction, the person was required to enter into a recognizance, or no conviction in respect of the finding was made and the person was discharged conditionally on his or her entering into a recognizance, and (b) a period of fifteen years has elapsed since the recognizance was entered into: (i) without the recognizance having been forfeited during that period or a court having found during that period that the person failed to observe any condition of the recognizance, and (ii) without the person having, during that period, been convicted of an indictable offence on indictment or otherwise or of any other offence punishable by imprisonment or without a finding during that period that a charge of such an indictable or other offence has been proved against the person, the conviction or finding shall, where that period expired before the commencement of the Crimes (Amendment) Act 1961, as on and from that commencement, or, where that period expires or has expired after that commencement, as on and from the expiration of that period: (c) be disregarded for all purposes whatsoever, and (d) without prejudice to the generality of paragraph (c), be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect. Without prejudice to the generality of the foregoing provisions of this section, any question asked of or concerning that person in or in relation to any criminal, civil or other legal proceedings otherwise than by his or her Australian legal practitioner, his or her agent or other person acting on his or her behalf may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into. (2) Notwithstanding the provisions of subsection (1), where in any criminal, civil or other legal proceedings the person first referred to in that subsection, by himself or herself, his or her Australian legal practitioner, his or her agent or other person acting on his or her behalf, otherwise than in answer to a question that can, in accordance with the last paragraph of that subsection, be answered in the negative, makes an assertion that denies the fact that the conviction or finding took place or that the recognizance was entered into, then the conviction, finding or recognizance is admissible: (a) in those proceedings, as to the character, credit or reputation of the person so referred to, (b) in any prosecution for perjury or false swearing founded on the assertion. The non-disclosure of the conviction, finding or recognizance in the making or giving of a statement or evidence as to the good character, credit or reputation of the person so referred to shall not of itself be taken, for the purposes of this subsection, to mean that the statement or evidence contains such an assertion. (3) In this section “legal proceedings” includes any application for a licence, registration, authority, permit or the like under any statute. (4) This section does not affect the operation of section 529 (10), or the operation of section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995, for the purposes of section 529 (10). 580 Certain charges not to be brought at common law A person may not be charged with any common law offence in respect of any act committed upon or in relation to another person, being an act which could, but for the amendment of sections 79 and 80 and the repeal of sections 81, 81A and 81B by the Crimes (Amendment) Act 1984, have been the subject of a charge for an offence under any of those sections. 580A Abolition of offence of being a common nightwalker (1) The common law offence of being a common nightwalker is abolished. (2) This section does not apply to an offence committed before the date of assent to the Crimes (Common Nightwalkers) Amendment Act 1993. 580B Abolition of offences of eavesdropping and being a common scold The common law offences of eavesdropping and being a common scold are abolished. 580C Abolition of common law offences relating to brothels (1) The common law offence of keeping a common bawdy house or brothel is abolished. (2) A person cannot be convicted after the commencement of this section of an offence referred to in subsection (1) whether committed before or after that commencement. (3) A person cannot be convicted after the commencement of this section of the common law offence of keeping a common, ill-governed and disorderly house, whether committed before or after that commencement, solely because: (a) the relevant premises were used for the purposes of prostitution, or (b) the person had control of or managed, or took part or assisted in the control or management of, premises used for the purposes of prostitution. 580D Abolition of rule that husband and wife cannot be guilty of conspiracy Any common law rule that a husband and wife cannot be found guilty of conspiracy together is abolished. 580E Abolition of distinction between felony and misdemeanour (1) All distinctions between felony and misdemeanour are abolished. (2) In all matters in which a distinction has previously been made between felony and misdemeanour, the law and practice in regard to indictable offences is to be the law and practice applicable, immediately before the commencement of this section, to misdemeanours. (3) Any proceedings for an offence that were commenced before the commencement of this section (being proceedings for an offence that was previously a felony or misdemeanour) are to continue to be dealt with, and to be disposed of, as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted. (4) Subject to the regulations, in any Act or instrument: (a) a reference to a felony is taken to be a reference to a serious indictable offence, and (b) a reference to a misdemeanour is taken to be a reference to a minor indictable offence. (5) This section does not affect the operation of any Act or instrument that restricts the commencement of proceedings against any person in respect of any offence. 580F Abolition of penal servitude (1) The punishment of penal servitude is abolished. (2) Any sentence of penal servitude that was in force, immediately before the commencement of this section, is to be taken to be a sentence of imprisonment and is to continue in force as such for the remainder of the term for which the sentence of penal servitude would, but for this section, have continued in force. (3) Subject to the regulations, in any Act or instrument, a reference to penal servitude is taken to be a reference to imprisonment. 580G Abolition of imprisonment with light or hard labour (1) The punishments of imprisonment with light labour and imprisonment with hard labour are abolished. (2) Any sentence of imprisonment with light labour or imprisonment with hard labour that was in force, immediately before the commencement of this section, is to be taken to be a sentence of imprisonment only and is to continue to have effect as such for the remainder of the term for which the sentence of imprisonment with light labour or imprisonment with hard labour would, but for this section, have had effect. 580H Abolition of common law offences and rules Schedule 3 has effect. 581 Savings and transitional provisions Schedule 11 has effect. 582 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. First Schedule (Repealed) Schedule 2 Application of Act (Section 3) Part 1. Part 1A. Sections 23, 34, 40, 61AA, 62 and 77 (in Part 3). Sections 116, 118-124, 128-130, 163, 183, 191, 193 and 194 (in Part 4). Sections 250 and 251 (in Part 5). Section 310B (in Part 6A). Sections 345-347 and 351 (in Part 9). Parts 10, 10A, 10B, 11 and 12. Part 16. Schedule 3 Abolished common law offences and rules (Section 580H) 1 Arson (1) The common law offence of arson is abolished. (2) This clause does not apply to an offence committed before the commencement of section 3 of the Crimes (Criminal Destruction and Damage) Amendment Act 1987. 2 Forgery (1) The common law offence of forgery is abolished. (2) This clause does not apply to an offence committed before 16 July 1989 (the date of commencement of the Crimes (Computers and Forgery) Amendment Act 1989). 3 Riot, rout and affray (1) The common law offences of riot, rout and affray are abolished. (2) This clause does not apply to an offence committed before 19 February 1989 (the date of commencement of the Crimes (Amendment) Act 1988). 4 Coercion of wife by husband (1) Any presumption of law that an offence committed by a wife in the presence of her husband is committed under coercion of the husband is abolished. (2) This clause does not apply to an offence committed before 1 October 1924 (the date of commencement of the Crimes (Amendment) Act 1924). 5 Maintenance (including champerty) (1) The common law offence of maintenance (including champerty) is abolished. (2) Subclause (1) re-enacts section 3 of the Maintenance, Champerty and Barratry Abolition Act 1993 and is a transferred provision to which section 30A of the Interpretation Act 1987 applies. The tort of maintenance (including champerty) is also abolished. See clause 2 of Schedule 2 to the Civil Liability Act 2002. 6 Common barrator (1) The common law offence of being a common barrator is abolished. (2) Subclause (1) re-enacts section 4A of the Maintenance, Champerty and Barratry Abolition Act 1993 and is a transferred provision to which section 30A of the Interpretation Act 1987 applies. Fourth-Ninth Schedules (Repealed) Schedule 10 (Section 475A) 1 Offences punishable by the Supreme Court in its summary jurisdiction (a) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 173, 174, 175, 176, 176A or 179 of this Act; any offence arising under section 185A (1) or (2) of this Act; the common law offence of attempting to commit any offence arising under section 185A (1) of this Act. (b) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 124, 374A (1) or (3), 374B, 374C (2), 374G, 375 (2), 375A or 376 (2) of the Companies Act 1961. (c) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 14 (1), 27, 59 (7), 109 (1) or (2), 110, 111, 112 (1), (2), (3), (4), (5) or (6) or 121 (1) of the Securities Industry Act 1975. (d) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 70, 71 (1) or (3), 72 (1) or 73 of the Securities Industry Act 1970. (d1) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under: (i) section 37 (1), 73 (7), 124 (1) or (2), 125, 126, 128 (1), (2), (3), (4), (5) or (6) or 137 of the Securities Industry (New South Wales) Code, or (ii) section 16 (1) of the National Companies and Securities Commission (State Provisions) Act 1981. (e) The common law offence of conspiracy to cheat and defraud. (f) Subject to section 475A (2) of this Act, any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under: (i) section 165, 166, 168, 169, 170, 172, 178A, 178BA, 178BB, 178C, 184A, 185, 327, 330 or 335 of this Act, (ii) section 47 (1), 51 (3), 64 (10), 86 (1), 163 (1) (being an offence committed as referred to in section 163 (3)), 179A (1), 180J (1) or (1A), 180W or 374F (1) or (2) of the Companies Act 1961, (iii) section 12 (6), 25 (1), 54 (1) or 58 (1), (2), (3) or (4) of the Securities Industry Act 1975, (iv) section 14 (6), 34 (1), 68 (1) or 72 (1), (2), (3) or (4) of the Securities Industry (New South Wales) Code, (v) section 44 or 53 of the Companies (Acquisition of Shares) (New South Wales) Code, or (vi) section 108 (1), 123 (11), 174 (1), 276 (1) (being an offence committed as referred to in section 276 (1) (b)), 310 (1), 559 or 560 of the Companies (New South Wales) Code. A reference in this Schedule to a provision of this Act is a reference to the provision as in force immediately before the commencement of the Crimes Amendment Act 2007. Schedule 11 Savings and transitional provisions (Section 581) Part 1A – Crimes (Sexual Assault) Amendment Act 1981 1A Application of section 30 of Interpretation Act 1987 Section 30 of the Interpretation Act 1987 applies to and in respect of the abolition by section 63 of the common law offences of rape and attempted rape in the same way as it applies to and in respect of the repeal of an Act or statutory rule. 1B Construction of certain references In any other Act or instrument made under an Act: (a) a reference to rape, the crime of rape, the offence of rape or an offence under section 63 is to be read and construed as a reference to an offence under section 61B, 61C or 61D, and (b) a reference to attempted rape, attempting to commit rape, attempting to commit the crime of rape, attempting to commit the offence of rape or an offence under section 65 is to be read and construed as a reference to the offence of attempting to commit an offence under section 61B, 61C or 61D, but a reference to a crime or misdemeanour which was punishable by death immediately before the commencement of the Crimes (Amendment) Act 1955 is to be read and construed as not including a reference to an offence under section 61B, 61C or 61D. 1C Statement for purposes of section 30A of Interpretation Act 1987 (1) Clauses 1A and 1B re-enact (with modifications) section 4 of the Crimes (Sexual Assault) Amendment Act 1981. (2) Clauses 1A and 1B are transferred provisions to which section 30A of the Interpretation Act 1987 applies. (3) Clauses 1A and 1B are taken to have commenced on the commencement of the Crimes (Sexual Assault) Amendment Act 1981. Part 1 – Crimes (Amendment) Act 1989 1 References in legislation (1) In any other Act, in any instrument made under any Act or in any document of any kind: (a) a reference (however expressed) to sexual intercourse within the meaning of section 61A is to be taken to be a reference to sexual intercourse within the meaning of section 61H, and (b) a reference to an offence under section 61B or 61C is to be taken to include a reference to an offence under section 61K, and (c) a reference to an offence under section 61D is to be taken to include a reference to an offence under section 61I or 61J, and (d) a reference to an offence under section 61E is to be taken to include a reference to an offence under section 61L, 61M, 61N or 61O, and (e) a reference to an attempt referred to in section 61F is to be taken to include a reference to an attempt referred to in section 61P. (2) Subclause (1) does not apply in relation to offences committed or alleged to have been committed before the commencement of Schedule 1 (2) to the Crimes (Amendment) Act 1989. 2 Omitted provisions Sections 61A-61G as in force before their repeal by the Crimes (Amendment) Act 1989 continue to apply to offences committed or alleged to have been committed before the repeal. Part 2 – Criminal Legislation (Amendment) Act 1992 3 Sexual intercourse It is declared that, from 14 July 1981 (being the date of commencement of the amendments made by the Crimes (Sexual Assault) Amendment Act 1981) until the commencement of the amendment made by the Criminal Legislation (Amendment) Act 1992 to section 61H, an act has been an act of sexual intercourse within the meaning of this Act at the relevant time if the act has comprised sexual intercourse within the meaning of section 61H, as amended by the Criminal Legislation (Amendment) Act 1992. 4 Consent to sexual intercourse The amendments to section 61R made by the Criminal Legislation (Amendment) Act 1992 apply only in respect of offences committed after the commencement of the amendments. 5 Application of amendment to section 409 The amendment made by the Criminal Legislation (Amendment) Act 1992 to section 409, to the extent to which it applies to a written statement the whole or a part of which was tendered as evidence on a plea of guilty under section 51A of the Justices Act 1902, applies to such a statement tendered after the commencement of the amendment. 6 Operation of amendments relating to taking of vehicles without consent and other indictable offences (1) The amendments to sections 476 and 496A made by the Criminal Legislation (Amendment) Act 1992 apply only in respect of proceedings for offences committed after the commencement of the amendments. (2) This Act applies in respect of proceedings for offences committed before the commencement of any such amendments as if the amendments had not been made. (3) Section 526A continues to apply to offences committed before that section was repealed as if the section is still in force. 7 Reduction of sentences for assistance to authorities Section 442B of this Act and section 5DA of the Criminal Appeal Act 1912, as inserted by the Criminal Legislation (Amendment) Act 1992, apply only to a sentence imposed after the commencement of the section concerned, but so apply whether the offence in relation to which the sentence is imposed was committed before or after that commencement. Part 3 – Crimes (Registration of Interstate Restraint Orders) Amendment Act 1993 8 Interstate restraint orders Part 15A, as amended by the Crimes (Registration of Interstate Restraint Orders) Amendment Act 1993, extends to an interstate restraint order (within the meaning of that Part) made before the commencement of that Act. Part 4 – Crimes Legislation (Review of Convictions) Amendment Act 1993 9 Definition In this Part, “appointed day” means the day appointed under section 2 of the Crimes Legislation (Review of Convictions) Amendment Act 1993. 10 Matters arising under section 475 (1) Any matter that was pending, immediately before the appointed day, under section 475 (as in force before the appointed day) is to be finally disposed of in accordance with that section as if that section were still in force. (2) However, section 474H (2) (which enables a prescribed person to refer matters to the Court of Criminal Appeal) extends to a prescribed person conducting an inquiry under section 475. (3) Despite subclause (1), subsections (2), (3) and (4) of section 474G (which confer certain powers on a person conducting an inquiry under Division 4 of Part 13A) extend to a prescribed person conducting an inquiry under section 475 and to any witness summoned by or before the prescribed person. 11 Matters arising under section 26 of Criminal Appeal Act 1912 Any matter that was pending, immediately before the appointed day, under section 26 of the Criminal Appeal Act 1912 (as in force before the appointed day) is to be finally disposed of in accordance with that section as if that section were still in force. 12 Application of Part 13A to past convictions (1) Part 13A extends to convictions recorded before the appointed day. (2) Section 474J extends to free pardons granted before the appointed day and to free pardons granted on or after the appointed day as a consequence of an inquiry that is disposed of under section 475, as referred to in clause 10. 12A Application of further amendments made by Crimes Amendment (Review of Convictions and Sentences) Act 1996 Part 13A, as amended by the Crimes Amendment (Review of Convictions and Sentences) Act 1996, extends to convictions recorded and sentences imposed before the commencement of that Act. Part 5 – Crimes Legislation (Unsworn Evidence) Amendment Act 1994 13 Application of abolition of accused person’s right to give unsworn evidence or to make unsworn statement Section 404A, and the amendments to sections 405, 405A and 409C made by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994, apply to the trial of a person charged with an offence on or after the commencement of that section and those amendments. Part 6 – Crimes (Home Invasion) Amendment Act 1994 14 Section 476 (indictable offences punishable summarily with consent of accused) A reference in section 476 (6) (ea), (f) or (g) to an offence mentioned in section 109 (1), 111 (1), 112 (1) or 113 (1) of the kind described in the paragraph concerned is taken to include a reference to an offence mentioned in section 109, 111, 112 or 113 (as in force before the commencement of the amendment made to that paragraph by the Crimes (Home Invasion) Amendment Act 1994) of that kind and committed before that commencement. Part 7 – Criminal Legislation Amendment Act 1995 15 Forensic samples Section 353A, as amended by the Criminal Legislation Amendment Act 1995, extends to a person in lawful custody on the commencement of the amendment to section 353A made by that Act. 16 Apprehended violence orders–s 562G Section 562G, as amended by the Criminal Legislation Amendment Act 1995, extends to orders made by Local Courts before the commencement of the amendment to section 562G made by that Act. 17 Summons for appearance or arrest of defendant–s 562K Section 562K, as amended by the Criminal Legislation Amendment Act 1995, extends to warrants issued before the commencement of the amendment to section 562K made by that Act. 18 Registration of interstate restraint orders–s 562U Section 562U, as amended by the Criminal Legislation Amendment Act 1995, extends to orders registered before the 

Crimes Act 1900

Crimes Act 1900 As at 6 July 2012 Does not include amendments by: Sec 310L of this Act (sec 310L repeals Part 6B on 13.9.2013) See also: Crimes Amendment (Possession or Discharge of Firearms in Commission of Offences) Bill 2012 [Non-government Bill: Hon Robert Borsak, MLC] Reprint history (since 1972): Reprint No 1 16 July 1975 Reprint No 2 20 October 1976 Reprint No 3 4 August 1978 Reprint No 4 11 February 1981 Reprint No 5 23 September 1982 Reprint No 6 3 March 1986 Reprint No 7 1 December 1987 Reprint No 8 1 March 1990 Reprint No 9 25 March 1991 Reprint No 10 1 June 1992 Reprint No 11 30 March 1993 Reprint No 12 11 February 1994 Reprint No 13 2 March 1995 Reprint No 14 7 March 1996 Reprint No 15 8 May 1997 Reprint No 16 19 May 1998 Reprint No 17 1 June 1999 Reprint No 18 11 May 2000 Reprint No 19 23 April 2002 Reprint No 20 30 March 2004 Reprint No 21 4 April 2006 Reprint No 22 9 September 2008 Long Title An Act to consolidate the Statutes relating to Criminal Law. Part 1 – Preliminary and interpretation 1 Name of Act This Act is the Crimes Act 1900. 2 (Repealed) 3 Application of certain provisions of Act The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried. 3A, 3B (Repealed) 4 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires:”Aircraft” includes any machine that can derive support in the atmosphere from the reactions of the air.”Armed”, in relation to a weapon, or instrument, or an offensive weapon, or instrument, that is a dangerous weapon, includes bearing or having the immediate physical possession of the weapon, or instrument.”Authorised officer” has the same meaning as it has in the Criminal Procedure Act 1986.”Banker” includes every director or manager of any banking company, whether incorporated or not, or of any branch thereof, and every person carrying on the business of a banker.”Cattle” includes any horse, mare, gelding, colt, foal, filly, ass, mule, bull, cow, ox, steer, heifer, calf, ram, ewe, sheep, lamb, pig, goat, deer, alpaca, llama, vicuna, camel, or dromedary, and every hybrid or cross thereof.”Court” and “Judge” respectively shall be equally taken to mean the Court in which or the Judge before whom the trial or proceeding is had in respect of which either word is used.”Dangerous weapon” means: (a) a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or (c) a spear gun. “Document of title to goods” includes every bill of lading, India warrant, dock warrant, warehousekeeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and every bought and sold note or document used in the ordinary course of business as proof of the possession or control of goods, or purporting to authorise by indorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to.”Document of title to land” includes every deed, certificate of title, map, paper, or parchment, written or printed, or partly written and partly printed, being or containing evidence of the title, or part of the title, to any real estate or to any interest in or out of real estate.”Dwelling-house” includes: (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which any person resides, and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house. “Governor” means, except in respect of the exercise of the pardoning power, the Governor with the advice of the Executive Council.”Grievous bodily harm” includes: (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). “Indictment” includes any information presented or filed as provided by law for the prosecution of offences.”Intoxicating substance” includes alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding.”Judge” –see “Court”.”Loaded arms” means any gun, pistol, or other arms, loaded in the barrel or chamber or magazine with gunpowder or other explosive substance, and with ball, shot, slug, or other destructive material, although the attempt to discharge may fail from want of proper priming, or from any other cause; and every gun, pistol, or other arms, unlawfully presented at any person, shall be deemed to be loaded unless the contrary is shown.”Member of the crew” in relation to an aircraft means a person having functions or duties on board the aircraft.”Minor indictable offence” means an indictable offence that is not a serious indictable offence.”Money” includes all coined money, whether current within New South Wales or not, and all bank notes or instruments ordinarily so called, if current as such, and payable to the bearer.”Night” means the period of time commencing at nine of the clock in the evening of each day and concluding at six of the clock in the morning of the next succeeding day.”Offensive weapon or instrument” means: (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. “Officer”, in relation to a body corporate or public company, includes a person who has been appointed, or acts, as an auditor of the body corporate or public company.”Person”, “Master”, and “Employer” severally include any society, company, or corporation.”Place of Divine worship” includes any building or structure ordinarily used for Divine worship.”Property” includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.”Property belonging to a vessel” includes every portion of its cargo, and property belonging to any of the officers, crew, or passengers thereof.”Public disorder” means a riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations.”Railway” includes a tramway, and also includes all stations, buildings, structures and equipment belonging to or associated with a railway or tramway.”Serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.”Trustee” means a trustee on some express trust howsoever created, and includes the heir or personal representative of such trustee, and every other person upon whom the duty of such trust shall have devolved, and also any official manager, assignee, liquidator, or other like officer, acting under any Act relating to joint stock companies or to bankruptcy or insolvency and also an executor or administrator.”Valuable security” includes every order or other security whatsoever entitling or evidencing the title of any person to any share or interest in any public stock or fund, whether of any part of the British dominions or of any Foreign State, or in any fund of any body corporate, company, or society, whether within or without the British dominions, or to any deposit in any bank; and every debenture, deed, bond, bill, note, cheque, warrant, order, or security whatsoever for money, or for payment of money, whether current in any part of the British dominions or in any Foreign State, and every document of title to land or goods, as herein defined. (2) A dwelling-house does not cease to be a dwelling-house by reason only of being temporarily unoccupied. (3) (Repealed) (4) In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to an offence mentioned in a specified provision of this Act that has been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal. (5), (6) (Repealed) (7) A reference in any offence under this Act to causing any poison, intoxicating substance or other destructive or noxious thing to be administered to or taken by any person includes a reference to causing any person to inhale, take or be exposed to the poison, intoxicating substance or thing by its release into the person’s environment. (8) Notes included in this Act do not form part of this Act. 4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. 4B Dishonesty (1) In this Act:”dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. (2) In a prosecution for an offence, dishonesty is a matter for the trier of fact. 5, 6 (Repealed) 7 “Possession” when criminal Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who: (a) has any such property in his or her custody, or (b) knowingly has any such property in the custody of another person, or (c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another. 8 “Public place” etc Where, by this or any other Act, or by any rule, regulation, ordinance or by-law, duly made under or by virtue of the provisions of any Act, any offence, conduct, or language, in a public place, or open and public place, or place of public resort, is made punishable, or a person guilty thereof is made liable to apprehension, the place shall be deemed public for the purposes of the enactment or taken to be otherwise within the meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise. 9, 10 (Repealed) Part 1A – Geographical jurisdiction 10A Application and effect of Part (1) This Part applies to all offences. (2) This Part extends, beyond the territorial limits of the State, the application of a law of the State that creates an offence if there is the nexus required by this Part between the State and the offence. (3) If the law that creates an offence makes provision with respect to any geographical consideration concerning the offence, that provision prevails over any inconsistent provision of this Part. (4) This Part is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. 10B Interpretation (1) For the purposes of this Part, the necessary geographical nexus is the geographical nexus required by section 10C. (2) For the purposes of this Part, the place in which an offence is committed is the place in which the physical elements of the offence occur. (3) For the purposes of this Part, the place in which an offence has an effect includes: (a) any place whose peace, order or good government is threatened by the offence, and (b) any place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out. (4) A reference in this Part to the State includes a reference to the coastal waters of the State in which the criminal law of the State applies (including in any part of the adjacent area of the State in which the substantive criminal law of the State applies by force of the law of the State or of the Commonwealth in accordance with the Crimes at Sea Act 1998). 10C Extension of offences if there is a geographical nexus (1) If: (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if: (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State. 10D Provisions relating to double criminality (1) This Part applies to an offence that is committed partly in the State and partly in another place outside the State, irrespective of whether it is also an offence in that other place. (2) This Part applies to an offence that is committed wholly in a place outside the State only if: (a) it is also an offence in that place, or (b) it is not also an offence in that place, but the trier of fact is satisfied that the offence constitutes such a threat to the peace, order or good government of the State that the offence warrants criminal punishment in the State. 10E Procedural and other provisions (1) The existence of the necessary geographical nexus for an offence is to be presumed and the presumption is conclusive unless rebutted under subsection (2). (2) If a person charged with an offence disputes the existence of the necessary geographical nexus, the court is to proceed with the trial of the offence in the usual way. If, at the conclusion of the trial, the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus does not exist, it must (subject to subsection (3)) make or return a finding to that effect and the charge is to be dismissed. (3) If the trier of fact would, disregarding any geographical considerations, find the person not guilty of the offence, it must make or return a finding of not guilty. The trier of fact must make or return a finding of not guilty on the grounds of mental illness in any such case if they were the only grounds on which the trier of fact would have found the person not guilty of the offence. (4) This section also applies to any alternative verdict available by law to the trier of fact in respect of another offence with which the person was not charged. A finding of guilt may be made or returned in any such case, unless the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus for that other offence does not exist. (5) The issue of whether the necessary geographical nexus exists must, if raised before the trial, be reserved for consideration at the trial. (6) A power or authority exercisable on reasonable suspicion or belief that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds or believes that the elements necessary to constitute the offence exist (whether or not the person suspects or believes or has any ground to suspect or believe that the necessary geographical nexus with the State exists). 10F Special provisions with respect to geographical jurisdiction (1) This section applies for the purposes of, but without limiting, this Part. (2) The necessary geographical nexus exists between the State and any of the following offences if the offence is committed by a public official (within the meaning of the Independent Commission Against Corruption Act 1988) and involves public money of the State or property held by the public official for or on behalf of the State: (a) larceny or any offence that includes larceny, (b) fraud or any other offence under Part 4AA. Part 2 – Offences against the Sovereign 11 Provisions of 36 Geo III, c 7, and 57 Geo III, c 6, repealed except as to offences against the person of the Sovereign The provisions of the Act of the Parliament of Great Britain, thirty-sixth George the Third chapter seven, made perpetual by the Act of the Parliament of Great Britain and Ireland fifty-seventh George the Third chapter six, and all the provisions of the last mentioned Act in relation thereto, save such of the same respectively as relate to the compassing, imagining, inventing, devising, or intending death or destruction, or any bodily harm tending to death or destruction, maim, or wounding, imprisonment, or restraint of the person of the heirs and successors of His said Majesty King George the Third, and the expressing, uttering, or declaring of such compassings, imaginations, inventions, devices, or intentions, or any of them, shall be and the same are hereby repealed. 12 Compassing etc deposition of the Sovereign–overawing Parliament etc Whosoever, within New South Wales or without, compasses, imagines, invents, devises, or intends to deprive or depose Our Most Gracious Lady the Queen, her heirs or successors, from the style, honour, or Royal name of the Imperial Crown of the United Kingdom, or of any other of Her Majesty’s dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, or any other of Her Majesty’s dominions, in order, by force or constraint, to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom, or the Parliament of New South Wales, or to move or stir any foreigner or stranger with force to invade the United Kingdom, or any other of Her Majesty’s dominions, or countries under the obeisance of Her Majesty, her heirs or successors, and expresses, utters, or declares such compassings, imaginations, inventions, devices, or intentions, or any of them, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be liable to imprisonment for 25 years. 13-15 (Repealed) 16 Nothing herein to affect 25 Ed III, c 2 Nothing contained in this Part shall lessen the force of, or in any matter affect, anything enacted by the Statute passed in the twenty-fifth year of King Edward the Third “A declaration which offences shall be adjudged Treason”. 16A (Repealed) Part 3 – Offences against the person Division 1 – Homicide 17 (Repealed) 17A Date of death (1) The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated. (2) This section does not apply in respect of an injury received before the commencement of this section. 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. 19 (Repealed) 19A Punishment for murder (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy. 19B Mandatory life sentences for murder of police officers (1) A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed: (a) while the police officer was executing his or her duty, or (b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty, and if the person convicted of the murder: (c) knew or ought reasonably to have known that the person killed was a police officer, and (d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers. (2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person’s natural life. (3) This section does not apply to a person convicted of murder: (a) if the person was under the age of 18 years at the time the murder was committed, or (b) if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment). (4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. (5) Nothing in this section affects the obligation of a court to impose a sentence of imprisonment for life on a person convicted of murder in accordance with section 61 of the Crimes (Sentencing Procedure) Act 1999. (6) Nothing in this section affects the prerogative of mercy. (7) This section applies to offences committed after the commencement of this section. 20 Child murder–when child deemed born alive On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not. 21 Child murder by mother–verdict of contributing to death etc Whosoever, being a woman delivered of a child is indicted for its murder, shall, if the jury acquit her of the murder, and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body, be liable to imprisonment for ten years. 22 Trial for child murder–verdict of concealment of birth Where, on the trial of a person for the murder or manslaughter of a child, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 85, they may acquit the person of the offence charged and find the person guilty of an offence under the said section, and the person shall be liable to punishment accordingly. 22A Infanticide (1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child. (3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth. 23 Trial for murder–provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder. 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section:”underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 24 Manslaughter–punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal. 25 (Repealed) Division 2 – Conspiracy to murder 26 Conspiring to commit murder Whosoever: conspires and agrees to murder any person, whether a subject of Her Majesty or not, and whether within the Queen’s dominions or not, or solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder, shall be liable to imprisonment for 25 years. Division 3 – Attempts to murder 27 Acts done to the person with intent to murder Whosoever: administers to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 28 Acts done to property with intent to murder Whosoever: sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or casts away or destroys any vessel, or by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or places, or throws, any matter or thing upon or across a railway, or removes, or displaces any sleeper, or other thing belonging to a railway, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 29 Certain other attempts to murder Whosoever: attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years. 30 Attempts to murder by other means Whosoever, by any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to imprisonment for 25 years. Division 4 – Documents containing threats 31 Documents containing threats (1) A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years. (2) It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances). Division 5 – Suicide 31A Suicide and attempt to commit suicide The rule of law that it is a crime for a person to commit, or to attempt to commit, suicide is abrogated. 31B Survivor of suicide pact (1) The survivor of a suicide pact shall not be guilty of murder or manslaughter but may be guilty of an offence under section 31C. (2) In this section, “suicide pact” means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his or her own life, but nothing done by a person who enters into a suicide pact shall be treated as being done by the person in pursuance of the pact unless it is done while the person has the settled intention of dying in pursuance of the pact. (3) The onus of proving the existence of a suicide pact shall lie with the accused person on the balance of probabilities. 31C Aiding etc suicide (1) A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years. (2) Where: (a) a person incites or counsels another person to commit suicide, and (b) that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel, the firstmentioned person shall be liable to imprisonment for 5 years. Division 6 – Acts causing danger to life or bodily harm 32 Impeding endeavours to escape shipwreck Whosoever: intentionally or recklessly prevents or impedes any person on board of, or having quitted, any ship or vessel in distress, or wrecked, stranded, or cast on shore, in his or her endeavour to save his or her life, or intentionally or recklessly prevents or impedes any person in his or her endeavour to save the life of such first-mentioned person, shall be liable to imprisonment for 25 years. 32A-32C (Repealed) 33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly. 33A Discharging firearm etc with intent (1) Intent to cause grievous bodily harm A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to cause grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest etc A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 33B Use or possession of weapon to resist arrest etc (1) Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 15 years. 34 (Repealed) 35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm–in company A person who, in the company of another person or persons: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) Reckless wounding–in company A person who, in the company of another person or persons: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) Reckless wounding A person who: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly. 35A Causing dog to inflict grievous bodily harm or actual bodily harm (1) Cause dog to inflict grievous bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict grievous bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) Cause dog to inflict actual bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict actual bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (3) Alternative finding If, on the trial of a person for an offence under subsection (1), it appears that grievous bodily harm was not inflicted on the other person but that actual bodily harm was inflicted, the person may be found not guilty of the offence charged but guilty of an offence under subsection (2) and be liable to punishment accordingly. (4) Doing an act includes omitting to do the act In this section, a reference to the doing of an act includes a reference to omitting to do the act. 36 (Repealed) 37 Attempts to choke etc (garrotting) Whosoever: by any means attempts to choke suffocate or strangle any person, or by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance, with intent in any such case to enable himself or herself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence, shall be liable to imprisonment for 25 years. 38 Using intoxicating substance to commit an indictable offence A person who: (a) administers an intoxicating substance to another person, or (b) causes another person to take an intoxicating substance, with intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 38A Spiking drink or food (1) In this section:”harm” includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances.”impair” includes further impair. (2) A person: (a) who causes another person to be given or to consume drink or food: (i) containing an intoxicating substance that the other person is not aware it contains, or (ii) containing more of an intoxicating substance than the other person would reasonably expect it to contain, and (b) who intends a person to be harmed by the consumption of the drink or food, is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 100 penalty units, or both. (3) For the purposes of this section, giving a person drink or food includes preparing the drink or food for the person or making it available for consumption by the person. (4) A person does not commit an offence against this section if the person has reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food. (5) A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit an offence against this section. (6) An offence against this section is a summary offence. 39 Using poison etc to endanger life or inflict grievous bodily harm (1) A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the poison, intoxicating substance or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and (c) the person intends to injure, or is reckless about injuring, the other person. Maximum penalty: Imprisonment for 10 years. (2) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 41 or 41A, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 41 or 41A. The person is liable to punishment accordingly. 40 (Repealed) 41 Using poison etc to injure or to cause distress or pain A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the person intends to injure, or to cause distress or pain to, the other person. Maximum penalty: Imprisonment for 5 years. 41A Poisoning etc of water supply A person is guilty of an offence if: (a) the person introduces any poison or other destructive or noxious thing into a supply of water, and (b) the person intends to injure any person or persons. Maximum penalty: Imprisonment for 5 years. 42 Injuries to child at time of birth Whosoever, during or after the delivery of a child, intentionally or recklessly inflicts on such child, whether then wholly born or not, any grievous bodily harm, shall be liable to imprisonment for fourteen years. 43 Abandoning or exposing a child under 7 years A person who, without reasonable excuse, intentionally abandons or exposes a child under 7 years of age is guilty of an offence if it causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. 43A Failure of persons with parental responsibility to care for child (1) In this section:”child” means a child under 16 years of age.”parental responsibility” means the duties, powers, responsibilities and authority in respect of a child that, by law, parents have in relation to their children. (2) A person: (a) who has parental responsibility for a child, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life, is guilty of an offence if the failure causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. 44 Failure of persons to provide necessities of life (1) A person: (a) who is under a legal duty to provide another person with the necessities of life, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life, is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person. Maximum penalty: Imprisonment for 5 years. (2) A person cannot be found guilty of both an offence against section 43A and an offence against this section in respect of the same act or omission. 45 Prohibition of female genital mutilation (1) A person who: (a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or (b) aids, abets, counsels or procures a person to perform any of those acts on another person, is liable to imprisonment for 7 years. (2) An offence is committed against this section even if one or more of the acts constituting the offence occurred outside New South Wales if the person mutilated by or because of the acts is ordinarily resident in the State. (3) It is not an offence against this section to perform a surgical operation if that operation: (a) is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or (b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or (c) is a sexual reassignment procedure and is performed by a medical practitioner. (4) In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account. (5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts. (6) This section applies only to acts occurring after the commencement of the section. (7) In this section:”authorised professional” means: (a) a registered midwife, or (b) a midwifery student, or (c) in relation to an operation performed in a place outside Australia–a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or (d) a medical student. “medical practitioner”, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.”medical student” means: (a) a person registered as a student in the medical profession under the Health Practitioner Regulation National Law, or (b) in relation to an operation performed in a place outside Australia–a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place. “midwifery student” means: (a) a person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, or (b) in relation to an operation performed in a place outside Australia–a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place. “sexual reassignment procedure” means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person. 46 Causing bodily injury by gunpowder etc Whosoever intentionally or recklessly by the explosion of gunpowder or other substance, or the use of any corrosive fluid, or destructive matter, burns maims disfigures disables, or does grievous bodily harm to, any person, shall be liable to imprisonment for 25 years. 47 Using etc explosive substance or corrosive fluid etc Whosoever: causes any gunpowder or other explosive substance to explode, or sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance, with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person, shall, whether bodily injury is effected or not, be liable to imprisonment for 25 years. 48 Causing explosives to be placed in or near building, conveyance or public place (1) A person who causes an explosive to be placed in or near: (a) a building, or (b) a vehicle, vessel, train or other conveyance, or (c) a public place, with the intention of causing bodily harm to any person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) A person commits an offence under this section whether or not: (a) any explosion occurs, or (b) any bodily harm is caused. 49 Setting trap etc (1) Any person who: (a) places or sets, or causes to be placed or set, any trap, device or thing (whether its nature be electronic, electric, mechanical, chemical or otherwise) capable of destroying human life or inflicting grievous bodily harm on any person, or (b) knowingly permits any such trap, device or thing to continue to be placed or set, with intent to inflict grievous bodily harm shall be liable to imprisonment for five years. (2) Nothing in subsection (1) shall extend to any gin or trap, placed with the intention of destroying vermin, or to any trap, device or thing placed in a dwelling-house for the protection thereof. 49A Throwing rocks and other objects at vehicles and vessels (1) A person is guilty of an offence if: (a) the person intentionally throws an object at, or drops an object on or towards, a vehicle or vessel that is on any road, railway or navigable waters, and (b) there is a person in the vehicle or vessel, and (c) the conduct risks the safety of any person. Maximum penalty: Imprisonment for 5 years. (2) This section extends to a vehicle or vessel that is stationary at the time that the object is thrown or dropped. (3) In the prosecution of an offence under this section, it is not necessary to prove: (a) that the accused was aware that his or her conduct risked the safety of any person, or (b) that the object made contact with the vehicle or vessel. (4) In this section:”road” means a road or road related area within the meaning of the Road Transport (General) Act 2005.”throw” includes propel.”vehicle” includes: (a) a motor vehicle, and (b) a train or tram, and (c) a bicycle, and (d) a vehicle drawn by an animal or an animal ridden by a person. 50, 51 (Repealed) 51A Predatory driving (1) The driver of a vehicle who, while in pursuit of or travelling near another vehicle: (a) engages in a course of conduct that causes or threatens an impact involving the other vehicle, and (b) intends by that course of conduct to cause a person in the other vehicle actual bodily harm, is guilty of an offence and liable to imprisonment for 5 years. (2) This section does not take away the liability of any person to be prosecuted for or found guilty of an offence under this Act or of any other offence, or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under this section cannot be prosecuted for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of any other offence under this Act cannot be prosecuted for an offence under this section on the same, or substantially the same, facts. (3) In this section:”impact” involving a vehicle includes: (a) an impact with any other vehicle or with a person or object, or (b) the vehicle overturning or leaving a road. “vehicle” has the same meaning it has in section 52A. 51B Police pursuits (1) The driver of a vehicle: (a) who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and (b) who does not stop the vehicle, and (c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others, is guilty of an offence. Maximum penalty: (a) in the case of a first offence–imprisonment for 3 years, or (b) in the case of an offence on a second or subsequent occasion–imprisonment for 5 years. (2) In this section, “vehicle” has the same meaning as it has in section 52A. 52 (Repealed) 52A Dangerous driving: substantive matters (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vehicle is involved in impact–generally For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise), (h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise). (6) When vehicle is involved in causing other impacts For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if: (a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and (b) the prosecution proves that the vehicle caused the impact. (7) Circumstances of aggravation In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vehicle was driven, or (c) to the manner in which the vehicle was driven. (9) Definitions In this section:”drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.”object” includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree.”prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood.”road” means: (a) a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act), or (b) any other place. “vehicle” means: (a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or (b) a horse-drawn vehicle, whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway. 52AA Dangerous driving: procedural matters (1) Presumption as to intoxication For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication–alcohol For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood analysis carried out in accordance with Division 4 or 4A of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol. (3A) Evidence of intoxication–drugs For the purposes of section 52A, evidence may be given of the concentration of a drug (other than alcohol) present in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of a declaration made under section 15 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood or urine analysis carried out in accordance with Division 4 or 4A of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. (3B) Time of intoxication A concentration of a drug (other than alcohol) determined by the means referred to in subsection (3A) is taken to be the concentration of the drug in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm: (a) if the blood or urine sample that was analysed was taken within 4 hours after the impact, and (b) unless the accused proves that there was no such drug in the accused’s blood or urine at the time of the impact. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52A (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52A (1) or (3), it may find that the accused is guilty of the offence under section 52A (1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts. (7) Definitions In this section:”prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood. 52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm (1) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 10 years. (2) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning grievous bodily harm to another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 7 years. (3) The provisions of section 52A (5) and (6) (which prescribe circumstances in which a vehicle is taken to be involved in an impact) apply for the purposes of this section in the same way as they apply for the purposes of section 52A. (4) In this section, “vehicle” has the same meaning as it has in section 52A. 52B Dangerous navigation: substantive matters (1) Dangerous navigation occasioning death A person is guilty of the offence of dangerous navigation occasioning death if the vessel navigated by the person is involved in an impact occasioning the death of another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous navigation occasioning death A person is guilty of the offence of aggravated dangerous navigation occasioning death if the person commits the offence of dangerous navigation occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous navigation causing grievous bodily harm A person is guilty of the offence of dangerous navigation causing grievous bodily harm if the vessel navigated by the person is involved in an impact occasioning grievous bodily harm to another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous navigation occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous navigation occasioning grievous bodily harm if the person commits the offence of dangerous navigation occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vessel is involved in impact–generally For the purposes of this section, the circumstances in which a vessel is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vessel overturning or running aground while the person is being conveyed in or on the vessel (whether as a passenger or otherwise), (b) an impact between any object and the vessel while the person is being conveyed in or on that vessel (whether as a passenger or otherwise), (c) an impact between the person and the vessel, (d) the impact of the vessel with another vessel or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vessel, (f) an impact with anything that was in motion through falling from the vessel, (g) the person falling from the vessel, or being thrown or ejected from the vessel, while being conveyed in or on the vessel (whether as a passenger or otherwise), (h) an impact between any object (including the water and the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vessel, while the person is being conveyed in or on the vessel (whether as a passenger or otherwise). (6) When vessel is involved in causing other impacts For the purposes of this section, a vessel is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if the death or harm is occasioned through the vessel causing an impact between other vessels or between another vessel and any object or person or causing another vessel to overturn or run aground. (7) Circumstances of aggravation In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was navigating the vessel at a speed that exceeds the speed limit (if any) applicable to the person navigating the vessel, or to the navigable waters, on which the vessel was navigated at the time of the impact, or (c) the accused was navigating the vessel in an attempt to escape pursuit by a police officer, or (d) the accused’s ability to navigate was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vessel was navigated, or (c) to the manner in which the vessel was navigated. (9) Definitions In this section:”drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.”object” includes a pier, wharf, jetty, pontoon, buoy, breakwater, bridge, support, mooring post or platform, navigation aid, retaining wall, marina, boatshed, slipway or swimming enclosure.”prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.”vessel” means a vessel within the meaning of the Marine Safety Act 1998. 52BA Dangerous navigation: procedural matters (1) Presumption as to intoxication For the purposes of section 52B, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication For the purposes of section 52B, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Schedule 1 to the Marine Safety Act 1998. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at that time was less than the prescribed concentration of alcohol. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 54 the jury is satisfied that the person is guilty of an offence under section 52B, it may find the accused guilty of the offence under section 52B, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52B (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52B (1) or (3), it may find that the accused is guilty of the offence under section 52B (1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52B cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52B on the same, or substantially the same, facts. (7) Definition In this section:”prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. 53 Injuries by furious driving etc Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years. 54 Causing grievous bodily harm Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years. Division 7 – Possessing or making explosive etc with intent to injure the person 55 Possessing or making explosives or other things with intent to injure Whosoever knowingly has in his or her possession, or makes, or manufactures, any gunpowder, explosive substance, or dangerous or noxious thing, or any machine, engine, instrument, or thing: (a) with intent by means thereof to injure, or otherwise commit a serious indictable offence against the person of any one, or (b) for the purpose of enabling another person to injure, or otherwise commit a serious indictable offence against the person of any one, shall be liable to imprisonment for 10 years. Division 8 – Assaults 56 Obstructing member of the clergy in discharge of his or her duties Whosoever: by threats or force prevents, or endeavours to prevent, any member of the clergy, or other person duly authorised in that behalf, from officiating in a place of divine worship, or from the performance of his or her duty in the lawful burial of the dead in a burial-place, or strikes, or offers any violence to, any member of the clergy, or minister engaged in, or to the knowledge of the offender about to engage in, any of the duties aforesaid, or going to perform the same, shall be liable to imprisonment for two years. 57 Assault on persons preserving wreck Whosoever wounds, strikes, or assaults, any person while in the execution of his or her duty concerning the preservation of a vessel in distress, or any vessel or effects, stranded, or cast on shore, or lying under water, with intent to obstruct him or her, or thereby in fact obstructing him or her in the execution of such duty, shall be liable to imprisonment for seven years. 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. 59A Assault during public disorder (1) A person who assaults any person during a large-scale public disorder, although not occasioning actual bodily harm, is liable to imprisonment for 5 years. (2) A person who assaults any person during a large-scale public disorder, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3), (4) (Repealed) Division 8A – Assaults and other actions against police and other law enforcement officers 60AA Meaning of “law enforcement officer” In this Division: “law enforcement officer” means: (a) a police officer, or (b) the Commissioner for the Independent Commission Against Corruption or an Assistant Commissioner for that Commission, or (c) an officer of the Independent Commission Against Corruption, within the meaning of the Independent Commission Against Corruption Act 1988, who performs investigation functions, or (d) the Commissioner for the Police Integrity Commission or an Assistant Commissioner for that Commission, or (e) an officer of the Police Integrity Commission, within the meaning of the Police Integrity Commission Act 1996, who performs investigation or confiscation functions, or (f) the Commissioner for the New South Wales Crime Commission or an Assistant Commissioner for that Commission, or (g) a member of staff of the New South Wales Crime Commission, within the meaning of the New South Wales Crime Commission Act 1985, who performs investigation or confiscation functions, or (h) the Commissioner of Corrective Services, or (i) governors of correctional centres, correctional officers and probation and parole officers, within the meaning of the Crimes (Administration of Sentences) Act 1999, or (j) an officer of the Department of Juvenile Justice who works with children who have, or are alleged to have, committed offences and who is employed at or works from a community centre or children’s detention centre, or (k) an officer of the Department of Juvenile Justice who is involved in the conduct of youth justice conferences, or (l) a Crown Prosecutor or an Acting Crown Prosecutor, or (m) an Australian legal practitioner who is employed as a member of staff of the Director of Public Prosecutions, or (n) a sheriff’s officer. 60 Assault and other actions against police officers (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years. (2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (2A) A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (3A) A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or (b) because the officer is a police officer. 60A Assault and other actions against law enforcement officers (other than police officers) (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (2) A person who assaults a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. 60B Actions against third parties connected with law enforcement officers (1) A person who assaults, stalks, harasses or intimidates any person with whom a law enforcement officer has a domestic relationship, with the intention of causing the law enforcement officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (2) A person who obtains personal information about a person with whom a law enforcement officer has a domestic relationship, with the intention of using or permitting the use of the information to cause the officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (3) For the purposes of this section, causing a law enforcement officer to fear physical or mental harm includes causing the officer to fear physical or mental harm to another person with whom he or she has a domestic relationship. (4) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (5) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been assaulted, stalked, harassed or intimidated, or the law enforcement officer, actually feared physical or mental harm. (6) In this section, “domestic relationship” has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. 60C Obtaining of personal information about law enforcement officers A person who obtains personal information about a law enforcement officer, with the intention of using or permitting the use of the information for the purpose of assaulting, stalking, harassing, intimidating, or otherwise harming, the officer: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer, is liable to imprisonment for 5 years. Division 8B – Assaults etc at schools 60D Definitions (1) In this Division:”member of staff” of a school includes a person who performs voluntary work for the school.”school” means: (a) an infants school, primary school or secondary school (however described), and (b) a child care facility for children under school age. “school premises” includes parks and other community premises that are used by a school (but only while they are being used for the purposes of the school).”school student” includes a child attending a child care facility. (2) For the purposes of this Division, a school student or member of staff of a school is taken to be attending a school: (a) while the student or member of staff is on school premises for the purposes of school work or duty (even if not engaged in school work or duty at the time), or (b) while the student or member of staff is on school premises for the purposes of before school or after school child care, or (c) while entering or leaving school premises in connection with school work or duty or before school or after school care. 60E Assaults etc at schools (1) A person who assaults, stalks, harasses or intimidates any school student or member of staff of a school while the student or member of staff is attending a school, although no actual bodily harm is occasioned, is liable to imprisonment for 5 years. (2) A person who assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a school student or member of staff of a school while the student or member of staff is attending a school, and (b) is reckless as to causing actual bodily harm to that student or member of staff or any other person, is liable to imprisonment for 12 years. (4) A person who enters school premises with intent to commit an offence under another provision of this section is liable to imprisonment for 5 years. (5) Nothing in subsection (1) applies to any reasonable disciplinary action taken by a member of staff of a school against a school student. Division 9 – Common assaults 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Division 9A – Defence of lawful correction 61AA Defence of lawful correction (1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period. (3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable. (4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction). (5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment. (6) In this section:”child” means a person under 18 years of age.”parent” of a child means a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children.”person acting for a parent” of a child means a person: (a) who: (i) is a step-parent of the child, a de facto partner of a parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and (ii) is authorised by a parent of the child to use physical force to punish the child, or (b) who, in the case of a child who is an Aboriginal or Torres Strait Islander (within the meaning of the Children and Young Persons (Care and Protection) Act 1998), is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child. “De facto partner” is defined in section 21C of the Interpretation Act 1987. (7) This section does not apply to proceedings arising out of an application of physical force to a child if the application of that force occurred before the commencement of this section. (8) The Attorney General is to review this section to determine whether its provisions continue to be appropriate for securing the policy objectives of the section. The review is to be undertaken as soon as possible after the period of 3 years from the commencement of this section. A report on the outcome of the review is to be tabled in each House of Parliament within 6 months after the end of the period of 3 years. Division 10 – Offences in the nature of rape, offences relating to other acts of sexual assault etc 61A-61G (Repealed) 61H Definition of “sexual intercourse” and other terms (1) For the purposes of this Division, “sexual intercourse” means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). (1A) For the purposes of this Division, a person has a “cognitive impairment” if the person has: (a) an intellectual disability, or (b) a developmental disorder (including an autistic spectrum disorder), or (c) a neurological disorder, or (d) dementia, or (e) a severe mental illness, or (f) a brain injury, that results in the person requiring supervision or social habilitation in connection with daily life activities. (2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. (3) For the purposes of this Act, a person who incites another person to an act of indecency, as referred to in section 61N or 61O, is taken to commit an offence on the other person. 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. (2) Meaning of consent A person “consents” to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. 61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. (3) In this section, “building” has the same meaning as it does in Division 4 of Part 4. 61JA Aggravated sexual assault in company (1) A person: (a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and (b) who is in the company of another person or persons, and (c) who: (i) at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) Nothing in this section affects the prerogative of mercy. 61K Assault with intent to have sexual intercourse Any person who, with intent to have sexual intercourse with another person: (a) intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or (b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument, is liable to imprisonment for 20 years. 61L Indecent assault Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years. 61M Aggravated indecent assault (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. (3) In this section, “circumstances of aggravation” means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) (Repealed) (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 61N Act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. (2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months. 61O Aggravated act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years. (1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years. (2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years. (2A) A person: (a) who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and (b) who knows that the act of indecency is being filmed for the purposes of the production of child abuse material, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) For the purposes subsections (1) and (1A), “circumstances of aggravation” means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment. (4) For the purposes of subsection (2A): (a) “child abuse material” has the meaning given by Division 15A, and (b) an act of indecency is being “filmed” if one or more images (whether still or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person (whether during the filming or later). 61P Attempt to commit offence under sections 61I-61O Any person who attempts to commit an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N or 61O is liable to the penalty provided for the commission of the offence. 61Q Alternative verdicts (1) Question of aggravation If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (1A) Question of aggravation in company If on the trial of a person for an offence under section 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I or 61J, it may find the person not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Question of consent regarding alleged victim under 16 If on the trial of a person for an offence under section 61I the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66C (3) or 66C (4), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Question of consent or authority regarding alleged victim under 16 If on the trial of a person for an offence under section 61J or 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66A or 66C, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (4) Question of consent regarding incest If on the trial of a person for an offence under section 61I or 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 78A or 78B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (5) Question of consent regarding cognitive impairment If on the trial of a person for an offence under section 61I, 61J or 61JA, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66F, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (6) Question of whether offence committed for purposes of production of child abuse material If on the trial of a person for an offence under section 61O (2A) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61O (2) or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 61R (Repealed) 61S Offenders who are minors (1) For the purposes of any offence, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person. (2) Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence. 61T Offender married to victim The fact that a person is married to a person: (a) upon whom an offence under section 61I, 61J, 61JA or 61K is alleged to have been committed is no bar to the firstmentioned person being convicted of the offence, or (b) upon whom an offence under any of those sections is alleged to have been attempted is no bar to the firstmentioned person being convicted of the attempt. 61U Circumstances of certain sexual offences to be considered in passing sentence Where a person is convicted of: (a) both an offence under section 61I and an offence under section 61K, or (b) both an offence under section 61J and an offence under section 61K, or (c) both an offence under section 61JA and an offence under section 61K, whether at the same time or at different times, the Judge passing sentence on the person in respect of the two convictions or the later of the two convictions is required, if it appears that the two offences arose substantially out of the one set of circumstances, to take that fact into account in passing sentence. 62 (Repealed) 63 Common law offences of rape and attempted rape abolished (1) The common law offences of rape and attempted rape are abolished. (2) Parts 1A, 1 and 19 of Schedule 11 make provision with respect to rape and other former sexual offences. 64 (Renumbered) (Renumbered as clause 51 of Schedule 11) 65-66 (Repealed) 66A Sexual intercourse–child under 10 (1) Child under 10 Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence. Maximum penalty: imprisonment for 25 years. (2) Child under 10–aggravated offence Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence. Maximum penalty: imprisonment for life. (3) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. (4) A person sentenced to imprisonment for life for an offence under subsection (2) is to serve that sentence for the term of the person’s natural life. (5) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (6) Nothing in this section affects the prerogative of mercy. (7) If on the trial of a person charged with another offence against this Act the person is instead found guilty of an offence against this section (as provided by section 61Q), the maximum penalty that may be imposed on the person for the offence against this section is the penalty for the offence charged. 66B Attempting, or assaulting with intent, to have sexual intercourse with child under 10 Any person who attempts to have sexual intercourse with another person who is under the age of 10 years, or assaults any such person with intent to have sexual intercourse, shall be liable to imprisonment for 25 years. 66C Sexual intercourse–child between 10 and 16 (1) Child between 10 and 14 Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years. (2) Child between 10 and 14–aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years. (3) Child between 14 and 16 Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years. (4) Child between 14 and 16–aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years. (5) In this section, “circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. 66D Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 Any person who attempts to commit an offence under section 66C upon another person who is of or above the age of 10 years, and under the age of 16 years, or assaults any such person with intent to commit such an offence, shall be liable to the penalty provided for the commission of the offence. 66E Alternative verdicts (1) If on the trial of a person for an offence under section 66A (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D. The accused is liable to punishment accordingly. (2) If on the trial of a person for an offence under section 66A (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66A (1), it may find the accused not guilty of the offence charged but guilty of an offence under section 66A (1). The accused is liable to punishment accordingly. (3) If on the trial of a person for an offence under section 66C (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (1) or (3), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (1) or (3). The accused is liable to punishment accordingly. (4) If on the trial of a person for an offence under section 66C (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (3) or (4), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (3) or (4). The accused is liable to punishment accordingly. (5) If on the trial of a person for an offence under section 66C the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66D. The accused is liable to punishment accordingly. 66EA Persistent sexual abuse of a child (1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years. (2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion. (3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales. (4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred. (5) A charge of an offence against this section: (a) must specify with reasonable particularity the period during which the offence against this section occurred, and (b) must describe the nature of the separate offences alleged to have been committed by the accused during that period. (6) In order for the accused to be convicted of an offence against this section: (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and (b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and (c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and (d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section. (7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6). (8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10). (9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence. (10) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly. (11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions. (12) In this section:”child” means a person under the age of 18 years.”sexual offence” means any of the following: (a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A, (b) an offence of attempting to commit an offence referred to in paragraph (a), (c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b). 66EB Procuring or grooming child under 16 for unlawful sexual activity (1) Definitions In this section:”adult person” means a person who is of or over the age of 18 years.”child” means a person who is under the age of 16 years.”conduct” includes: (a) communicating in person or by telephone, the internet or other means, or (b) providing any computer image, video or publication. “unlawful sexual activity” means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State). (2) Procuring children An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 15 years, or (b) in any other case–imprisonment for 12 years. (2A) Meeting child following grooming An adult person: (a) who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and (b) who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 15 years, or (b) in any other case–imprisonment for 12 years. (2B) For the purposes of subsection (2A), a child has been “groomed for sexual purposes” by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material. (3) Grooming children An adult person: (a) who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance, and (b) who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years–imprisonment for 12 years, or (b) in any other case–imprisonment for 10 years. (4) Unlawful sexual activity need not be particularised In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity. (5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section: (a) to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and (b) to the age of the child is a reference to the age that the accused believed the person to be. (6) Charge for aggravated offence The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. (7) Defence It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child. (8) Alternative verdict If on the trial of a person charged with an offence against subsection (2) or (2A) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (3), the jury may acquit the person of the offence charged and find the person guilty of an offence against subsection (3). The person is liable to punishment accordingly. 66F Sexual offences–cognitive impairment (1) Meaning of “person responsible for care” For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person: (a) at a facility at which persons with a cognitive impairment are detained, reside or attend, or (b) at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment. The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision. (2) Sexual intercourse: person responsible for care A person: (a) who has sexual intercourse with a person who has a cognitive impairment, and (b) who is responsible for the care of that person (whether generally or at the time of the sexual intercourse), is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Sexual intercourse: taking advantage of impairment A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence. Maximum penalty: imprisonment for 8 years. (4) Attempts A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence. (5) Consent not a defence for sexual intercourse The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2)-(4). (6) Consent not a defence for indecent assault or act of indecency The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P in connection with such an offence) if: (a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or (b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment. (7) Defences It is a defence to a charge for an offence under subsection (2)-(4) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection: (a) if, at the time of the conduct constituting the offence: (i) the accused did not know the person to whom the charge relates had a cognitive impairment, or (ii) the accused was married to the person to whom the charge relates or was an established de facto partner of that person, or (b) if the act constituting the offence was carried out for any proper medical or hygienic purpose. (8) Approval of Attorney General for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General: (a) an offence under subsection (2)-(4), (b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection. 67, 68 (Repealed) 69 (Renumbered) (Renumbered as clause 52 of Schedule 11) 70 (Renumbered) (Renumbered as clause 53 of Schedule 11) 71-72A (Repealed) 73 Sexual intercourse with child between 16 and 18 under special care (1) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 16 years and under the age of 17 years, is liable to imprisonment for 8 years. (2) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. (3) For the purposes of this section, a person (“the victim”) is under the special care of another person (“the offender”) if, and only if: (a) the offender is the step-parent, guardian or foster parent of the victim, or (b) the offender is a school teacher and the victim is a pupil of the offender, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or (e) the offender is a health professional and the victim is a patient of the health professional. (4) Any person who attempts to commit an offence under subsection (1) or (2) is liable to the penalty provided for the commission of the offence. (5) A person does not commit an offence under this section if the person and the other person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other. 74-76A (Repealed) 77 Consent no defence in certain cases (1) The consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E (1A), (2) or (2A), 61M (2), 61N (1), 61O (1), (2) or (2A), 66A (1) or (2), 66B, 66C, 66D, 66EA, 66EB, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76. (2) (Repealed) 77A, 78 (Repealed) 78A Incest (1) Any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years. (2) For the purposes of this section, a “close family member” is a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth. 78B Incest attempts Any person who attempts to commit an offence under section 78A is liable to imprisonment for two years. 78C Defences (1) It shall be a sufficient defence to a charge under section 78A or section 78B that the person charged did not know that the person with whom the offence is alleged to have been committed was related to him or her, as alleged. (2) It shall be no defence to a charge under section 78A or section 78B that the person with whom the offence is alleged to have been committed consented thereto. 78D (Repealed) 78E (Renumbered) (Renumbered as clause 54 of Schedule 11) 78F Sanction of Attorney-General (1) No prosecution for an offence under sections 78A or 78B shall be commenced without the sanction of the Attorney-General. (2) (Repealed) 78G-78S (Repealed) 78T (Renumbered) (Renumbered as clause 55 of Schedule 11) 79 Bestiality Any person who commits an act of bestiality with any animal shall be liable to imprisonment for fourteen years. 80 Attempt to commit bestiality Any person who attempts to commit an act of bestiality with any animal shall be liable to imprisonment for five years. 80A Sexual assault by forced self-manipulation (1) In this section:”circumstances of aggravation” means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment. “self-manipulation” means the penetration of the vagina (including a surgically constructed vagina) or anus of any person by an object manipulated by the person, except where the penetration is carried out for proper medical or other proper purposes.”threat” means: (a) a threat of physical force, or (b) intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force. (2) Any person who compels another person to engage in self-manipulation, by means of a threat that the other person could not reasonably be expected to resist, is liable to imprisonment for 14 years. (2A) Any person who compels another person to engage in self-manipulation: (a) by means of a threat that the other person could not reasonably be expected to resist, and (b) in circumstances of aggravation, is liable to imprisonment for 20 years. (3) A person does not commit an offence under this section unless the person knows that the other person engages in the self-manipulation as a result of the threat. 80AA Referral to child protection agency On conviction of a person for an offence under this Division, the court may refer the matter to an appropriate child protection agency if the person against whom or with whom the offence was committed is under the authority of the offender. Division 10A – Sexual servitude 80B Meaning of “sexual servitude” (1) For the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats: (a) is not free to cease providing sexual services, or (b) is not free to leave the place or area where the person provides sexual services. (2) In this section:”sexual service” means the commercial use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others.”threat” means: (a) a threat of force, or (b) a threat to cause a person’s deportation, or (c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person. 80C Meaning of “circumstances of aggravation” In this Division, “circumstances of aggravation” means circumstances involving either or both of the following: (a) the alleged victim is under the age of 18 years, (b) the alleged victim has a cognitive impairment (within the meaning of Division 10). 80D Causing sexual servitude (1) A person: (a) who causes another person to enter into or remain in sexual servitude, and (b) who intends to cause, or is reckless as to causing, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person is guilty of an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 20 years. 80E Conduct of business involving sexual servitude (1) A person: (a) who conducts any business that involves the sexual servitude of other persons, and (b) who knows about, or is reckless as to, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person commits an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 19 years. (3) For the purposes of this section, “conducting a business” includes: (a) taking any part in the management of the business, or (b) exercising control or direction over the business, or (c) providing finance for the business. 80F Alternative verdicts If on the trial of a person for an offence under section 80D (2) or 80E (2) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under section 80D (1) or 80E (1), respectively, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. Division 10B – Incitement to commit sexual offence 80G Incitement to commit sexual offence (1) A person who incites the commission of an offence under Division 10, 10A or 15A is guilty of an offence and is liable to the penalty provided for the commission of the offence. (2) For the person to be guilty, the person must intend that the offence incited be committed. (3) A person may be found guilty even if committing the offence incited is impossible. (4) Any defences, procedures, limitations or qualifying provisions that apply to the offence incited also apply to an offence under this section. (5) It is not an offence to incite the commission of the following offences: (a) an offence against section 61N or 61O that is constituted by inciting another person to an act of indecency, (b) an offence against section 61P, 66B, 66D, 66EB, 66F (4), 73 (4), 78B or 80. 81-81B (Repealed) Division 11 – Misconduct with regard to corpses 81C Misconduct with regard to corpses Any person who: (a) indecently interferes with any dead human body, or (b) improperly interferes with, or offers any indignity to, any dead human body or human remains (whether buried or not), shall be liable to imprisonment for two years. Division 12 – Attempts to procure abortion 82 Administering drugs etc to herself by woman with child Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. 83 Administering drugs etc to woman with intent Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. 84 Procuring drugs etc Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years. Division 13 – Concealing birth of a child 85 Concealment of birth (1) Whosoever by any disposition of the dead body of a child, whether the child died before or after or during its birth, wilfully conceals or attempts to conceal the birth of the child, shall be liable to imprisonment for two years. (2) It shall be a sufficient defence to any charge under this section if the accused person shall satisfy the court or jury that the dead body in respect of which the disposition took place had issued from the body of its mother before the expiration of the twenty-eighth week of pregnancy. Division 13A – (Renumbered) (Renumbered as Part 3 Division 14) 85A (Renumbered as sec 86) Division 14 – Kidnapping 86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person’s consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly. (5) A person who takes or detains a child is to be treated as acting without the consent of the child. (6) A person who takes or detains a child does not commit an offence under this section if: (a) the person is the parent of the child or is acting with the consent of a parent of the child, and (b) the person is not acting in contravention of any order of a court relating to the child. (7) In this section:”child” means a child under the age of 16 years.”detaining” a person includes causing the person to remain where he or she is.”parent” of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children.”taking” a person includes causing the person to accompany a person and causing the person to be taken. 87 Child abduction (1) A person who takes or detains a child with the intention of removing or keeping the child from the lawful control of any person having parental responsibility for the child, without the consent of that person, is liable to imprisonment for 10 years. (2) A person who takes or detains a child with the intention of stealing from the child is liable to imprisonment for 10 years. (3) In t