1
2010

LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

CRIMINAL CODE AMENDMENT (CRIMINAL DAMAGE) BILL 2010

SERIAL No. 141

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends Part VII Division 6 of the Criminal Code. 

The primary purposes of the Bill are to:
·	repeal some of the discrete criminal damage type offences that deal with specific types of property, such as the offences of casting away ships or damaging signals, and replace them with a single offence of causing damage to property, with the definition of ‘property’ encompassing a broad range of types of property; 
·	introduce a modern crime of sabotage; and
·	modernise those offences which will be retained under 
Part VII Division 6 of the Criminal Code, including arson, bushfires, endangering the operation of an aircraft, obstructing runways and leaving of explosives at a place. 

The new provisions closely follow most of Chapter 4 of the 
Model Criminal Code prepared by the Model Criminal Code Officers Committee under the auspices of the Standing Committee of Attorneys-General. 

NOTES ON CLAUSES

Part 1	Preliminary matters

Clause 1. Short Title

This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Criminal Code Amendment (Criminal Damage) Act 2010.

Clause 2. Commencement 

The Act will commence on the day fixed by the Administrator by notice in the Gazette.

Part 2	Amendment of Criminal Code 

Clause 3. Act amended

The Act amends parts of the Criminal Code.

Clause 4. Section 1 Amended

This clause inserts references in section 1 of the Criminal Code to definitions in Part VII, Division 6 relating to criminal damage offences. 

Clause 5. Part VII, Division 6 replaced

This clause repeals Part VII Division 6 of the Criminal Code and inserts a new Part VII Division 6 that is entitled ‘Criminal Damage’. 

Subdivision 1 	Interpretation

238.  Definitions

New section 238 provides for the definitions of ‘belongs’, ‘causes’ ‘damage’, ‘property,’ and ‘property damage offence’.  The definitions for ‘belongs’ and ‘causes’ reference their new section numbers.

The definition of ‘damage’ includes a wide range of conduct, including causing the physical loss of the property through interference such as abandoning the property or removing any restraint over the property.  ‘Damage’ also includes causing loss of a use or function of the property by interfering with it, defacing property, harming or killing animals, obliterating or rendering a document illegible, and severing plants or other objects from the land. 

The new definition of ‘property’ is confined to tangible property, and includes wild animals that have been tamed, and parts of the human body.

‘Property damage offence’ is relevant to the crime of sabotage in section 242, and is an offence against sections 241, 243, 244, 245, 246 and 247, but does not include the crime of sabotage itself.  It also includes conduct in a state or another territory of the Commonwealth that is an offence against that state or territory which would constitute an offence against Subdivision 2 if the conduct had occurred in the Territory.

239.  Person to whom property belongs

New section 239 defines the concept of property belonging to a person.  Property belongs to a person if the person has possession or control of it, or has a proprietary right or interest in it, other than an equitable interest arising only from an agreement to transfer or grant an interest in it, or from a constructive trust.  

This section also clarifies the situation where property is owned by two or more persons.  If property is owned by two or more persons it is taken to belong to all of the owners.  Property is also capable of belonging to another person where the offender is also an owner of that property.

240.	Causing damage or other result

New subsection 240 provides that for the purposes of Division 6, a person has caused damage or any other result if the person's conduct substantially contributed to the damage or other result.

Subdivision 2 	Offences

241. 	Damage to property 

New subsection 241(1) provides for the crime of causing damage to property.  The new provision is intended to replace a number of specific property damage type offences that currently exist in Part VII Division 6 of the Criminal Code.  This subsection provides that a person commits a crime if that person intentionally or recklessly causes damage to property of another.  The crime also incorporates the principle of transferred malice: it matters not whether the person intended to cause or was reckless as to causing damage to a property of one person or the property of another person.

The maximum penalty for this crime is 14 years imprisonment. 

New subsection 241(2) provides that it is a crime for a person to make a threat to another person to cause damage to property, being reckless as to whether the person would fear that the threat will be carried out and will cause death or serious harm to someone. The maximum penalty for this crime is seven years imprisonment. 

New subsection 241(3) provides that it is a summary offence for a person to intentionally make a threat to another person to cause damage to property, intending the person fear that the threat will be carried out.  The maximum penalty for this offence is two years imprisonment. 

New subsection 241(4) provides that, for the purposes of subsections (2) and (3), it is not necessary to prove the person who is threatened actually feared that the threat would be carried out, and that a threat can be made by conduct, need not be explicit or may be conditional.  This section also clarifies that a reference to a ‘person’ includes a group of persons, and that a fear that a threat will be carried out includes an apprehension that it will be carried out.

New subsection 241(5) provides that a person is guilty of a summary offence if the person possesses a thing, intending that the person or another person will use the thing to cause damage to any person.  The maximum penalty for this crime is two years imprisonment.

242. 	Sabotage

New subsection 242(1) introduces a crime of sabotage.  This subsection provides that it is a crime if a person commits a property damage offence and causes damage to a public facility, with the intention of causing the following results:
·	major disruption to government functions;
·	major disruption to the use of services by the public; or
·	major economic loss.
It is not necessary to prove that any of those results were actually caused.

‘Property damage offence’ is defined in new section 238.

The maximum penalty for sabotage is life imprisonment, and new subsection 242(2) provides that the maximum penalty for attempted sabotage is 14 years imprisonment.

New subsection 242(3) provides that is a crime to make a threat to damage a public facility intending to cause the person threatened to fear that the threat will be carried out and will cause:
·	major disruption to government functions;
·	major disruption to the use of services by the public; or
·	major economic loss.
The maximum penalty for threatened sabotage is 15 years imprisonment.

New subsection 242(4) provides that, for the purposes of subsection (3), it is not necessary to prove the person who is threatened actually feared that the threat would be carried out, and that a threat can be made by conduct, need not be explicit and may be conditional.  This subsection also clarifies that a reference to a ‘person’ includes a group of persons, and that a fear that a threat will be carried out includes an apprehension that it will be carried out.
 
New subsection 242(5) clarifies that the definition of damage to a public facility includes damage to a part of the facility or includes causing disruption to the use or operation of the facility.  
Section 240, which clarifies that ‘causing damage’ means substantially contributing to the damage, also operates to extend the application of this provision.

New subsection 242(5) also provides for the definition of ‘public facility’ as applied in section 242.  It includes both privately and publicly owned facilities, such as a government facility, a public infrastructure facility for the provision of water, sewerage, energy, fuel, communication or other services, public information systems, public transport facilities including facilities used to transport people or goods, or a public place including any premises, land or water open to the public. 

243. Arson

New subsection 243(1) provides for a revised crime of arson. Previously arson was made out if a person unlawfully set fire to a building, ship, stack of cultivated vegetable produce, a mine or an aircraft, but did not include setting fire to a motor vehicle.  The new crime of arson provides that a person is guilty of a crime if a person uses fire or explosives to damage a building or a conveyance.  The maximum penalty for arson remains as life imprisonment.

Subsection 243(2) maintains the current maximum penalty for the crime of attempted arson of 14 years imprisonment.

Subsection 243(3) establishes that it is a crime for a person to make a threat to another person to use fire or explosives to cause damage to a building or conveyance, intending to cause, or reckless as to causing the person to fear that the threat will be carried out.  The maximum penalty for this crime is seven years imprisonment. 

New subsection 243(4) provides that, for the purposes of 
subsection (3), it is not necessary to prove the person who is threatened actually feared that the threat would be carried out, and that a threat can be made by conduct, need not be explicit or may be conditional.  This section also clarifies that a reference to a ‘person’ includes a group of persons, and that a fear that a threat will be carried out includes an apprehension that it will be carried out.

For the purposes of this section ‘building’ is defined in 
subsection 243(5) to include part of a building, or any thing or structure or part of a thing or structure that is used, designed or adapted for residential purposes, such as a caravan.  ‘Conveyance’ is defined as an aircraft, vessel, train, motor vehicle, or trailer attached to a motor vehicle.  

244. 	Bushfires

New subsection 244 retains the current crime of causing a bushfire. The only difference is that the section has been renumbered and a minor amendment to the style of expressing the fault element in (a).

245. 	Leaving explosive substance at a place

New section 245 provides that it is a summary offence to leave an explosive substance at a place and retains the current offence in section 253 of the Criminal Code.  A person is guilty of this offence if he or she leaves an explosive substance at a place, and is reckless as to the substantial risk that the explosive substance would cause damage to the property of another person.  The maximum penalty for this offence is retained and is two years imprisonment. 

246.	Endangering operation of aircraft

New subsection 246(1) retains part of and revises the current offence of damaging or endangering an aircraft.  It provides that a person is guilty of this crime if the person intentionally engages in conduct that results in a substantial risk of endangering the safe operation of an aircraft, and is reckless as to that result.  The maximum penalty for this offence is retained and is imprisonment for life. 

New subsection 246(2) provides that the maximum penalty for attempting to endanger the safe operation of an aircraft is 14 years imprisonment.

247.	Obstructing runways

New subsection 247 provides that it is a crime to obstruct a runway.  This provision retains part of the existing offence of obstructing railways and runways.  A person commits the crime if he or she obstructs an aircraft in its passage on a runway. 

The maximum penalty for this offence is retained and is five years imprisonment. 

Subdivision 3 	Circumstances in which there is no criminal responsibility

248.	Consent

New section 248 provides that a person is not criminally liable for any offence in Part VII Division 6 (except the offence of sabotage in section 242) if at the time of the conduct:
·	the person who could consent to the damage to the property concerned has consented to the damage; or
·	the defendant believed that the person he or she believed was entitled to consent to the damage to the property had consented, or would have consented if the person had known about the damage to property and its circumstances.

249.	Claim of Right

New subsection 249(1) provides that a person is not criminally liable for any offence against Part VII Division 6 (except the offence of sabotage in section 242), if at the time of the conduct constituting the offence, the person believed:
·	they had a right or interest in the property concerned; and
·	the right or interest authorised the person to engage in the conduct.

For the purposes of this section, a right or interest in property includes a right or privilege in or over land or waters, whether that right or privilege is created by a grant, licence or any other way.

Clause 6. Amendment of Schedule 1 (Provisions of Code to which Part IIAA applies)

This clause adds the new Part Vll Division 6 to Schedule 1 to the Criminal Code.  This means that Part llAA of the Criminal Code, which deals with criminal responsibility, applies to Part Vll Division 6.

Part 3	Consequential amendments

Clause 7. Justices Act amended

Clause 7 provides for the removal of references in the Justices Act to a number of offences repealed by this Bill.  The reference to the new section number for the crime of causing damage to property is inserted. 

Clause 7(3) is a transitional provision for the consequential amendment to the Justices Act and provides that the Bill does not affect the operation of section 121A in relation to offences that came within section 121A(1)(b)(ii) prior to changes made by this Bill and which are alleged to have been committed prior to the Bill’s commencement.

Clause 8. Sentencing Act amended

Clause 8 amends the definition of aggravated property offence in section 3 of the Sentencing Act so that it reflects the new section number for the crime of causing damage to property. 

Clause 8(3) is a transitional provision for the consequential amendment to the Sentencing Act and provides that the Bill does not affect the operation of the Sentencing Act in relation to offences that came within section 3 prior to changes made by this Bill and which are alleged to have been committed prior to the Bill’s commencement.

Clause 9. Youth Justice Act amended

Clause 9(2) is a transitional provision for the consequential amendment in clause 10 of this Bill which amends the Youth Justice Regulations and provides that the Bill does not affect the operation of the Youth Justice Regulations in relation to offences that came within Regulation 3 prior to changes made by this Bill and which are alleged to have been committed prior to its commencement.

Clause 10. Youth Justice Regulations amended

Clause 10 provides for the removal of references in the 
Youth Justice Regulations to a number of offences repealed by this Bill.  The reference to the new section numbers for the crimes of arson and endangering the operation of aircraft are inserted into Youth Justice Regulation 3(1).