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 Part 1 – Preliminary and interpretation 1 Name of Act This Act is the Crimes Act 1900. 2 (Repealed) 3 Application of certain provisions of Act The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with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to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried. 3A, 3B (Repealed) 4 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires:”Aircraft” includes any machine that can derive support in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