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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-02-05 Daily Xml
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STATUTES AMENDMENT (PROPERTY OFFENCES) BILL

Introduction and First Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (15:53): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and the Summary Procedure Act 1921. Read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (15:53): I move:

That this bill be now read a second time.

The general criminal damage offences (including arson) are to be found in sections 84 and 85 of the Criminal Law Consolidation Act 1935. These provisions were enacted by the Criminal Law Consolidation Act Amendment Act, No. 90 of 1986. Those amendments replaced specific property damage offences, inherited originally from a host of old English statutes collected in the Malicious Damage Act 1861 (Imperial) with a general regime of offences. The old English system created specific offences for damaging (for example) a house, tent, stable, coach-house, outhouse, warehouse, office, shop, mill, malt house, hop-oast, barn, granary, hovel, shed or fold, not to mention crops of hay, corn, grain, pulse or cultivated vegetable, wood, coppice, furze or fern, and so on. There were pages of this, in all, 43 different sections, containing hundreds and hundreds of offences.

That was not sensible. The new part 4 inserted in 1986 has just three sections covering the same field and containing a structured series of offences sorted by, first, whether or not the damage was by fire or explosives; secondly, whether or not the offence was an attempt or complete; and, thirdly, the value of the property damaged or attempted to be damaged.

In the first instance, the value dividing line was set at $2,000, but it is now more complicated, with penalty divisions at $2,500 and $30,000. The current offence and penalty structure, although better than that which it replaced, is still not optimal. Graduating offences by reference to the value of the property concerned is not sensible, as it turns out. It has been criticised, notably by the member for Fisher many times in his regular conversations with Leon Byner on radio FIVEaa. The bill proposes sensible reform of these offences.

I seek leave to have the balance of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The desirable form of this set of offences, and criticism of existing South Australia law, was dealt with in detail by the Model Criminal Code Officers Committee (MCCOC) in its Report on Criminal Damage. It said of the South Australian legislation:

South Australia is exceptional among Australian jurisdictions in providing three levels of penalty for property damage, calibrated by reference to the financial cost of the damage done to the property. Australian Capital Territory legislation limits the penalty for criminal damage to 6  months imprisonment if the property was worth less than $1,000. The South Australian scheme, which makes the cost of the damage determinative, suggests an additional conceptual issue. What principle determines whether penalties are graduated by reference to the value of the property damaged, as the Law Commission contemplated, or by the South Australian practice of counting the cost of the damage sustained by the property?

Apart from the likelihood of bracket creep and other considerations to which the UK Law Commission drew attention, damage to valuable property may be trivial in extent. If South Australian practice is followed, however, making the cost of repair or replacement determinative, this sum may bear no relationship to the loss imposed as a consequence of the damage or destruction. Sabotage of machinery resulting in loss of a day’s production can impose losses which far exceed the cost of a minor but essential repair to restore the machinery to working order. It is preferable to rely on exercise of the sentencing discretion in particular cases than attempt to discover legislative formulae which will dissolve these complexities.

MCCOC based its recommendations on the conceptual scheme embraced by the UK Law Commission:

The UK Law Commission discussed and rejected proposals to divide the offence of criminal damage into a basic and an aggravated offence by reference to the value of the property involved:

'The test of the value of the property damaged has obvious disadvantages consequent upon the changing value of money. In addition, we doubt whether a valuation of the property damaged is necessarily co-extensive with the real seriousness of the offence. A man may, for example, set fire to a nearly valueless tree, knowing that there is a risk that a whole forest may be destroyed. On the other hand, a man may destroy two paintings, one valueless and the other priceless, thinking them both to be of little value.'

The Law Commission proposed instead a distinction between aggravated and basic offences which depend on whether criminal damage involved fire or endangering life. The Committee has followed the first of these proposals, retaining arson as an aggravated offence of property damage. There is, however, no offence of endangering people by destroying property. That would involve an unnecessary duplication of offences found elsewhere in the Code.’

MCCOC recommended the enactment of a general criminal damage offence with a maximum penalty of imprisonment for 10 years (thus matching the current general theft maximum penalty). That, of course, does not mean that all offences should be dealt with as major indictable offences. As with theft, the Summary Procedure Act 1921 should classify offences as summary, minor indictable and major indictable for the purposes of court jurisdiction, and the only sensible way of doing that is by value - as is the case with theft.

MCCOC recommended restricting arson as an offence to setting fire to structures or conveyances. That was its historical and general limit before expansion to the general destruction or damage to a wide and varied range of, for example, a variety of crops—and beyond—in the middle of the nineteenth century. Setting fire, say, to brush fences should not be regarded as arson and punished with a maximum of life imprisonment. Destruction of buildings and conveyances is quite another, much more serious, matter. MCCOC took the view that there was no sense in the provisions about monetary limits and separate penalties for attempts.

South Australia has enacted the other components of the MCCOC recommendations in respect of sabotage, computer damage and bushfires. It is now proposed to complete the task.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 19—Unlawful threats

Currently, this section makes unlawful a threat by a person to cause harm to another person, or to the property of another person. It is proposed that new section 85 (see clause 6) will make provision for threats against property. Hence, section 19 will be amended as a consequence so that it is restricted to threats to cause harm to a person.

5—Amendment of section 84—Preliminary

It is proposed to insert a definition of building for the purposes of Part 4 of the Act (Offences with respect to property).

6—Substitution of section 85

It is proposed that current section 85 will be repealed and a new section substituted.

85—Arson and other property damage

Proposed subsection (1) of the new section provides that a person will be guilty of arson if the person, without lawful excuse, by fire or explosives, damages property that is a building (defined in section 84) or a motor vehicle (defined in section 5), intending to damage the property, or being recklessly indifferent as to whether his or her conduct damages the property. Such unlawful behaviour will constitute arson whether the building or motor vehicle so damaged belongs to the offender or another person. The penalty for arson is imprisonment for life.

Proposed subsection (2) provides that a person will be guilty of an offence if the person, without lawful excuse, damages (other than by fire or explosives) the property of another that is a building or motor vehicle, intending to damage the property, or being recklessly indifferent as to whether his or her conduct damages the property. The penalty for such an offence is imprisonment for 10 years.

Proposed subsection (3) provides that a person will be guilty of an offence if the person, without lawful excuse, damages the property of another (other than a building or motor vehicle), intending to damage the property, or being recklessly indifferent as to whether his or her conduct damages the property. The penalty for such an offence is imprisonment for 10 years.

Proposed subsection (4) provides that a person will be guilty of an offence if the person, without lawful excuse, threatens to damage the property of another—

(a) intending to arouse a fear that the threat will be, or is likely to be, carried out; or

(b) being recklessly indifferent as to whether such a fear is aroused.

The penalty for an offence against subsection (4) is as follows:

(a) for a basic offence—imprisonment for 5 years;

(b) for an aggravated offence (other than an offence to which paragraph (c) applies)—imprisonment for 7 years;

(c) for an offence aggravated by a threat to commit arson—imprisonment for 15 years.

A threat may be directly or indirectly communicated by words and/or conduct.

Part 3—Amendment of Summary Procedure Act 1921

7—Amendment of section 5—Classification of offences

This proposed amendment is related to the substitution of new section 85 in the Criminal Law Consolidation Act 1935 and includes provision that an offence against Part 4 of that Act involving $2,500 or less that is not an offence that is listed below is a summary offence. The offences excluded from being classified as summary are—

an offence of arson or causing a bushfire; or

an offence of violence; or

an offence that is 1 of a series of offences of the same or a similar character involving more than $2 500 in aggregate.

Debate adjourned on motion of Ms Chapman.

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