review of maximum penalties for preparatory …...review of mamimum penalties for preparatory...

Review of Maximum Penalties

for Preparatory Offences

Report

December 2006

Sentencing Advisory Council

ii Review of Mamimum Penalties for Preparatory Offences Report

Published by the Sentencing Advisory Council

Melbourne Victoria Australia.

© Copyright State of Victoria, Sentencing Advisory Council, December 2006. This publication is protected by the laws of

copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968

(Cth).

ISBN-10: 1-921100-08-7

ISBN-13: 978-1-921100-08-6

Also published on www.sentencingcouncil.vic.gov.au

Authorised by the Sentencing Advisory Council, 4/436 Lonsdale Street, Melbourne.

Printed by Bigprint, 50 Lonsdale Street, Melbourne.

Review of Mamimum Penalties for Preparatory Offences Report iii

Contents

1. Introduction 1

2. Role of the Statutory Maximum Penalty 3 2.1 Introduction 3 2.2 Principle of Legality 3 2.3 Offence Seriousness 4 2.4 Deterrence 6

3. The Nature of Preparatory Offences 7 3.1 Introduction 7 3.2 Being armed with criminal intent 8 3.3 Loitering with intent to commit an indictable offence 9 3.4 Being disguised with unlawful intent 10 3.5 Possessing housebreaking implements 10 3.6 Going equipped to steal 11

4. When do preparatory offences occur? 13 4.1 Introduction 13 4.2 Inchoate Offences 13 4.3 Preparatory Offences 16

5. Comparable Offences in other Australian jurisdictions 17 5.1 Introduction 17 5.2 How do the maximum penalties for preparatory offences in Victoria compare to those around Australia? 17 5.3 Western Australia 18 5.4 Australian Capital Territory 20 5.5 South Australia 21 5.6 Northern Territory 23 5.7 Queensland 24 5.8 New South Wales 26 5.9 Tasmania 28

6. Sentencing Outcomes 29 6.1 Introduction 29 6.2 Magistrates’ Court 29 6.3 Higher Courts 34 6.4 Sentence comparison 34

7. Are the Maximum Penalties Sufficient? 37 7.1 Introduction 37 7.2 Principle of Legality 37 7.3 Offence Seriousness 37 7.4 Deterrence 38 7.5 Conclusion 38

Recommendations 41

Bibliography 43

Appendix 1 47

Appendix 2 51

Appendix 3 53

iv Review of Mamimum Penalties for Preparatory Offences Report

Contributors

Review of Mamimum Penalties for Preparatory Offences Report v

Authors Andrea DavidFelicity Stewart

Statistical Analyst Nick Turner

Sentencing Advisory Council

Chair Professor Arie Freiberg

Deputy-Chair Thérèse McCarthy

Council Members Carmel ArthurCarmel Benjamin AMNoel Butland Bernie Geary OAMDavid Grace QCJenny MorganSimon Overland Jeremy Rapke QCBarbara Rozenes

Chief Executive Officer Jo Metcalf

The Council thanks the following people for their assistance in the preparation of this report:

Ms Victoria Moore, Ms Alana Hodgins, Ms Jenni Coady, Ms Shelley Goldwasser, Ms Julie Bransden, Ms Prue Boughey, Ms Sarah Walker, Mr Peter Byrne, Ms Tonye Lee Segbedzi, Mr John Bentley, Mr William Crawford, Ms Anna Radonic, Mr Tom Danos, Ms Alison Brooks, Ms Veronica Ford, Inspector Richard Koo, Detective Senior Sergeant Mark Chrystie and Senior Sergeant David Byrt.

Contributors

vi Review of Mamimum Penalties for Preparatory Offences Report

Introduction

Review of Mamimum Penalties for Preparatory Offences Report 1

On 6 June 2006, the Attorney- General wrote to the Sentencing Advisory Council (the Council) seeking the Council’s view on the appropriate level of maximum penalty for the five existing Victorian preparatory offences, namely:

being armed with criminal intent;

loitering with intent to commit an indictable offence;

being disguised with unlawful intent;

possessing house-breaking implements;

going equipped to steal.1

The Attorney-General requested that, in conducting its analysis, the Council consider the maximum penalty for comparable offences in other Australian jurisdictions, including section 114 of the Crimes Act 1900 (NSW).

The Attorney- General also requested the Council consider whether there is merit in:

creating a higher maximum penalty for repeat offenders; or

increasing the maximum penalty for these offences to enable sentencers to impose a higher penalty in the case of repeat offenders by examining the approach taken in other Australian jurisdictions, including section 115 of the Crimes Act 1900 (NSW).

The offences that the Council has been asked to review can all be described as ‘preparatory’ offences. These offences are intended to be used in circumstances where an offender has engaged in conduct which is preparatory to offences such as theft, robbery or burglary but which is insufficient to satisfy the elements of the completed offence or an ‘attempt’ (for example an attempted armed robbery).

The current maximum penalty for being armed with criminal intent is five years’ imprisonment.2 The current maximum penalty for the remaining offences is two years’ imprisonment.3

This inquiry arose out of criticism from Victoria Police that the maximum penalties for preparatory offences fail to adequately reflect the seriousness of the offences that offenders may be preparing to commit. This is said to undermine the capacity of the police to be pro-active in the prevention of serious crimes, such as armed robbery.4

For example, an offender could be outside a bank, wearing a balaclava and armed with a firearm. The best outcome for the police would be to ‘physically prevent the offence from occurring prior to the commission of the offence.’5 However the narrow way that the law of attempt is framed may mean that an accused in that position may not be guilty of attempted armed robbery. The accused may be required to actually get out of the car and move towards the bank before he is, in the eyes of the law, attempting to commit the armed robbery.6 From a safety perspective, the preferable situation would be to intercept this offender whilst he is still in the vehicle, therefore avoiding an armed conflict.

1 These offences are contained in s 31B of the Crimes Act 1958 (Vic), s 49B, 49C and 49D of the Summary Offences Act 1966 (Vic) and s 91 of the Crimes Act 1958 (Vic). They are discussed in detail in Section 2 of this report.

2 Crimes Act 1958 (Vic) s 31B.3 Summary Offences Act 1966 (Vic) s 49B, 49C & 49D; Crimes Act 1958 (Vic) s 91.4 Victoria Police, (Armed Offenders Squad), Preparatory Offences Legislation, Briefing Paper (2005) 4.5 Ibid.6 See Bortoli (Unreported, County Court of Victoria, White J, 14 July 2005); R v Susak [1999] NTSC 61

(Unreported, Riley J, 9 June 1999).

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1. Introduction

Introduction

2 Review of Mamimum Penalties for Preparatory Offences Report

However, it is argued that the disparity in penalty between what the offender is liable to while sitting in the car (armed with criminal intent) compared to once he has left the vehicle (attempted armed robbery) is too great.7 The concern about current maximum penalties for preparatory offences is that ‘there is little consideration…that were it not for successful police intervention, a serious crime may have been committed.’8

Paul Mullet, Secretary of the Police Association has described preparatory offences as ‘preventative measures’9 as they allow the police to intervene at an early stage in order to prevent more serious crimes from being committed. However, there is also a concern that apprehension for a preparatory offence may merely result in the displacement rather than the prevention of more serious offences. It is argued that offenders may not be deterred by the intervention of the police, considering the relatively low penalties for these offences, and the more serious offence will still occur, perhaps at a later time and place. Apprehension and conviction for these offences may only provide short term protection to the community from the offender involved.10

However, the perceived disparity between the maximum penalties available for preparatory offences and the much more significant penalties for attempted armed robberies and aggravated burglaries needs to be viewed in the context of the relative gravity of preparatory offences and the types of attempts described above.

The Council has reviewed the maximum term of imprisonment available for the relevant offences and has come to the view that the current maximum penalty for all the preparatory offences is sufficient and should not be increased.

The Council is also of the view that as a general rule, the maximum penalty for an offence should not differentiate between first time and repeat offenders. In some cases there may be particular circumstances which warrant a graduated penalty scheme, however the Council does not consider that this type of offending has any special characteristics that would justify the imposition of such a scheme.

7 Victoria Police (Armed Offenders Squad), above n 4, 6. The maximum penalty for attempted armed robbery is 20 years’ imprisonment. See s 321P of the Crimes Act 1958 (Vic).

8 Victoria Police (Armed Offenders Squad), above n 4, 4.9 ABC Television, ‘More police needed to stop gangland killings’, Stateline Victoria, 2 February 2004, <http://

www.abc.net.au/stateline/vic/content/2003/s1080114.htm> at 27July 2006. 10 Victoria Police (Armed Offenders Squad), above n 4, 4.

Role of the S

tatutory Maxim

um P

enalty


2.1 Introduction

In setting or reviewing a statutory maximum penalty it is necessary to take into account the functions that a maximum penalty should serve, including:11

Placing a legally defined ‘ceiling’ on the lawful action permitted by the State against an individual who commits an offence. This ceiling should be sufficiently low to provide meaningful guidance to sentencers as to the relative gravity of the offence and yet sufficiently high to provide for the worst examples of the crime that the sentencer may face;

Reflecting the perceptions of the community about the gravity of the offence and providing an indication to sentencers as to how to weigh up the seriousness of the offence; and

Serving as a general deterrent to potential offenders by declaring the highest punishment that they will face if they commit the offence.

As part of the exercise of setting the maximum penalty it is also appropriate to consider current sentencing practices and, where possible, informed public opinion about where the offence sits in the scale of relative offence severity.

2.2 Principle of Legality

The maximum penalty provides a finite upper boundary on a sentencer’s power and discretion to punish and/or rehabilitate offenders.12 As well as setting the upper limit of judicial discretion when sentencing offenders, it represents symbolic recognition that the State’s power to deal with offenders must be subject to lawful restraint.

A maximum penalty should provide an indication of the relative gravity of the offence and penalty as compared with other offences and yet be broad enough to allow the sentencer sufficient scope to accommodate the worst examples of the offence that are likely to be encountered.13

When determining an offender’s sentence, the sentencer must have regard to the statutory maximum penalty, current sentencing practices and a range of other factors, including the nature and gravity of the offence, the offender’s degree of responsibility for the offence, the previous character of the offender (including prior offences) and any aggravating or mitigating circumstances.14

The Victorian Court of Appeal recently discussed the function of the maximum penalty as follows:

There is no gainsaying the importance of the maximum penalty prescribed by Parliament for an offence. It provides authoritative guidance by the legislature as to the relative seriousness of the offence, in the abstract, by comparison with other crimes in the calendar…

It must always be remembered, however, that a maximum penalty is prescribed for the worst class, or one of a number of worst classes, of the offence in question. On some occasions, when Parliament increases the maximum penalty, that suggests that more severe penalties should be imposed not just for offences falling within the worst class but over a range (not necessarily the whole range) of cases… On other occasions, an increase in the maximum penalty means only that Parliament has thought of a worst class of case for which the previous maximum was inadequate…

11 Arie Freiberg, Pathways to Justice: Sentencing Review 2002 (2002) 55; Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 236; Sentencing Task Force, Victoria, Review of Statutory Maximum Penalties in Victoria: Report to the Attorney-General (1989) (written for the Task Force by Richard Fox and Arie Freiberg) 22.

12 Sentencing Task Force (1989), above n 11, 23. 13 Freiberg (2002), above n 11, 56.14 Sentencing Act 1991 (Vic) s 5(2).

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2. Role of the Statutory Maximum Penalty

Role of the S

tatutory Maxim

um P

enalty


It is because the maximum penalty is important that s.5(2)(a) of the Sentencing Act lists it first among the matters to which a court sentencing an offender must have regard and, if the judge mistakes the maximum, that re-opens the discretion unless the Court of Appeal is satisfied that the mistake could not have materially affected the sentence…

It is sometimes said that a judge, in obedience to s.5(2)(a), ‘steers by the maximum’. It is a helpful metaphor, but two things should be said of it. One is that there is a difference between steering by the maximum and aiming at the maximum. The penalty prescribed for the worst class of case is like a lighthouse or a beacon. The ship is not sailed towards it, but rather it is used as a navigational aid. The other is that steering by the maximum may decrease the sentence that might otherwise be imposed as well as increase it... 15

2.3 Offence Seriousness

The maximum penalty should serve as an expression of the gravity with which the community views the offence and should provide guidance to the judiciary about the seriousness of the offence relative to other offences.16

The function of a statutory maximum penalty as a benchmark of offence seriousness stems from the theory of ‘just deserts’.17 Von Hirsch discusses this theory:

The fundamental principle of desert in punishing convicted persons is that the severity of the punishment should be commensurate with the seriousness of the offender’s criminal conduct. The focus of the commensurate-deserts principle is on the gravity of past conduct, not on the likelihood of future behaviour; this retrospective orientation distinguishes desert from the crime-control goals of deterrence, incapacitation, and rehabilitation. The criterion for judging whether a penalty is deserved is whether it fairly reflects the gravity of the criminal conduct of which the defendant has been convicted, rather than its effectiveness in preventing future crimes by the defendant or other potential offenders.18

The task of deciding where to place an offence along the scale of maximum penalties requires an examination of the intrinsic nature of the offence but also involves looking at where the offence ties in with other criminal behaviour.19 In the case of preparatory offences, a determination of where these offences should be placed on the scale of seriousness requires an examination of the offences themselves, but also an examination of their relationship with relevant attempts and completed offences.

15 DPP v Aydin & Kirsch [2005] VSCA 86 [8]–[12] per Callaway JA. (citations omitted)16 Freiberg (2002), above n 11, 55.17 Sentencing Task Force (1989), above n 11, 24; Andrew von Hirsch, ‘Commensurability and Crime Prevention:

Evaluating Formal Sentencing Structures and Their Rationale’ (1983) 74 Journal of Criminal Law and Criminology 209, 211.

18 Von Hirsch (1983), above n 17, 211.19 Fox and Freiberg (1989) above n 11, 59.

Role of the S

tatutory Maxim

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As the report of the Sentencing Task Force recognised there are a number of difficulties in ranking the relative seriousness of criminal conduct.

Social problems do not lend themselves to simple or elegant mathematical solutions. There is ‘no strict denominator of social problems and no scale for comparing different problems’.20 Despite an individual’s confidence in the merits of his or her intuitive sense of offence seriousness, the concept does convey different things to different people. Offences vary widely in the way they are carried out and in the harm they cause or the interests they infringe. Yet despite the difficulties, ‘the seriousness of criminal acts represents a conceptual dimension of criminality that is indispensable in common everyday discourse, in legal theory and practice, and in sociological work’.21

The seriousness of criminal conduct can be assessed according to the degree of harm caused or risked and the culpability of the offender.22

Harm can be described as the ‘degree of injury done or risked by the act’.23 Harm inflicted or risked may affect the interests of individuals and the state.24 The most serious harm is generally considered to be that which affects individual personal integrity, such as murder, offences in relation to causing injury and sexual offences. Offences which involve the use of a weapon are also considered to either inflict or risk serious harm. Lower on the scale are offences which have an impact only on economic well-being, such as theft.

It may be argued that preparatory offences involve a high degree of risk as the conduct is engaged in by offenders in order to facilitate more serious offences, such as armed robbery. However, where an offender’s conduct moves beyond being merely preparatory, there are other offences such as attempted armed robbery or armed robbery which apply at this point.

An assessment of culpability, or blameworthiness, involves gauging the extent to which an offender should be held accountable for his or her actions by assessing the offender’s awareness, motivation and intention in committing the crime.

Current judicial sentencing practices are also significant in assessing the seriousness of criminal conduct.25

It has been suggested that prior criminality should have some effect in altering the relative seriousness of an offence. For previous convictions to affect the seriousness of offending, they would have to impact upon one of the two factors taken into consideration when determining the seriousness of a crime - harm or culpability.

In the case of ‘harm’, whether or not an offender has prior convictions does not affect the harm that is caused by his or her offending behaviour. For example, in a case where property is stolen, the value of the goods taken unlawfully is not at all impacted upon by the prior behaviour of the offender.

20 Sentencing Task Force (1989), above n 11, 57; citing B Warner and R Taylor, ‘Conflict and Consensus about Criminal Justice in Maryland’ in N Walker and M Hough (eds), Public Attitudes to Sentencing: Surveys from Five Countries (1988) 20.

21 Sentencing Task Force (1989), above n 11, 57; citing Peter Rossi et al, ‘The Seriousness of Crimes: Normative Structure and Individual Differences’ (1974) 39 American Sociological Review 224, 225.

22 Sentencing Task Force (1989), above n 11, 59; Andrew von Hirsch, Censure and Sanctions (1993) 29.23 Von Hirsch (1983), above n 17, 214.24 Sentencing Task Force (1989), above n 11, 59: Von Hirsch (1983), above n 17, 214.25 Sentencing Task Force (1989), above n 11, 61; Freiberg (2002), above n 11, 55.

Role of the S

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Von Hirsch has suggested that, in relation to culpability, if two offenders have committed the same crime and have the same awareness, motivation and intention in committing that crime, there is no rational argument for why the repeat offender is more culpable than the first time offender.26

This is not to say that prior criminality should not affect the sentence imposed on an offender for a particular offence by a sentencing court. In Victoria, courts are required to look at an offender’s ‘previous character’ in determining their sentence.27 The inference of ‘good character’ can be rebutted by the existence of prior convictions.28

The weight that a court gives to prior convictions will depend on what rationale for sentencing is assumed. The just deserts model discusses the theory of ‘progressive loss of mitigation’. This theory recognises the concept of ‘good character’ as a factor in mitigation which may ‘discount’ the sentence that would otherwise have been imposed. This discount is progressively lost each time an offender subsequently appears before the court. Once the offender has used up their mitigation ‘credit’, the offender will get the full measure of punishment appropriate for the offence committed. He or she should not, however, receive a higher sentence for subsequent offending. If the penalty was to increase each time an offender came before a sentencing court, the situation may arise where an offender receives a disproportionately severe sentence for what is a relatively minor crime.29

An increase in the statutory maximum penalty for repeat offenders cannot be justified on the grounds that an offence committed by a recidivist offender is more serious than an offence committed by a first time offender, if it is established that the offence is neither more harmful nor the offender more culpable in the case of a repeat offender. There must be some other justification for an increase.

There may be certain circumstances due to the social context in which an offence occurs, which would justify the creation of a higher maximum penalty in relation to repeat offenders. For example, in relation to certain repeat drink driving offences, the Council recommended a graduated penalty scheme, where the maximum penalty is dependant upon the offender’s blood alcohol level and the number of prior convictions.30

2.4 Deterrence

The statutory maximum penalty is also intended to function as a general deterrent by warning potential offenders of the maximum punishment they are liable to receive if they commit an offence.31

However, it is difficult to quantify whether or not the maximum penalty for an offence has any deterrent effect. There is no evidence as to how many potential offenders are aware of the maximum penalties for particular offences or whether or not they are in a position to draw a distinction between those maximum penalties and the level of penalties being imposed by the courts. 32

26 Andrew Von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles, (2005), 149.27 Sentencing Act 1991 (Vic) s 5(2)(f).28 Veen v R (No. 2) (1988) 164 CLR 465, 477. See also R v Ryan (2001) 206 CLR 267.29 Von Hirsch and Ashworth, above n 26, 155. See also Fox and Freiberg (1999) above n 11, 269; Sentencing

Advisory Panel (UK), Consultation Paper on Theft from Shop (2006) 25–6; Julian V. Roberts, ‘Reducing the Use of Incarceration: Recent International experiences’ (Paper presented at the Association of Law Reform Agencies of Eastern and Southern Africa, Capetown, March 16 2005) 12.

30 Sentencing Advisory Council, Maximum Penalties for Repeat Drink Driving, (2005).31 Freiberg (2002), above n 11, 55. 32 Sentencing Task Force (1989), above n 11, 25.

The N

ature of Preparatory O

ffences


3.1 Introduction

‘Preparatory offences’ criminalise conduct which is intended to facilitate the future commission of an offence such as theft, robbery and burglary and the aggravated forms of these offences. The following section sets out the elements of preparatory offences in Victoria under review and provides a brief description of their history. It is necessary to understand the nature of the activity that is criminalised in order to assess where the offence should sit in the hierarchy of offence seriousness, relative to other forms of offending.

Of the five offences under review, the following four offences were previously located in the Vagrancy Act 1966 (Vic) (the Vagrancy Act):

being armed with criminal intent,

loitering with intent to commit an indictable offence,

being disguised with unlawful intent; and

possessing house-breaking implements.

The Vagrancy Act was reviewed in 2002 by the Scrutiny of Acts and Regulations Committee. The purpose of the review was to consider the content and relevance of the Act and consider whether it contained provisions which were unclear, redundant or ambiguous.33 The Scrutiny of Acts and Regulations Committee ultimately came to the view that the Vagrancy Act should be repealed.34 However, the committee also considered that there were a number of offences in the Act that should be retained and enacted in other existing legislation.

In September 2005, Parliament re-enacted the following three preparatory offences in the Summary Offences Act 1966 (Vic):

loitering with intent to commit an indictable offence,

being disguised with unlawful intent; and

possessing house-breaking implements.

The new provisions are largely similar to the previous sections, with one main exception. In the Vagrancy Act, these offences had a maximum penalty of two years’ imprisonment. Where the offender had a previous conviction for an offence under the same section, the maximum penalty increased to three years. When Parliament re-enacted these offences, the maximum penalty of two years’ imprisonment was retained, but the provision increasing the maximum penalty for repeat offenders was not duplicated.

Parliament also re-enacted the offence of ‘being armed with criminal intent’. This offence was inserted into the Crimes Act 1958 (Vic), making it an indictable offence which reflects the serious nature of this offending behaviour.35

33 Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of Vagrancy Act 1966: Final Report (2002) 7.

34 Ibid 10.35 Victoria, Parliamentary Debates, Legislative Assembly, 17 August 2005, 426-7 (Anthony Lupton).

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3. The Nature of Preparatory Offences

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Of the offences under review, ‘being armed with criminal intent’ and ‘going equipped to steal’ are indictable offences.36 The remaining three offences are summary offences.37

3.2 Being armed with criminal intent

A person who is armed with a weapon and intends to commit an offence is guilty of the offence of ‘being armed with criminal intent’.38 For the purposes of this section, a weapon can be a controlled or prohibited weapon,39 a firearm40 or an imitation firearm.41 This is the most serious of the offences under review.In order for an offender to satisfy the requirement of being ‘armed’ with a weapon, the weapon must be ‘immediately ready for use’.42

For example, where a person had a knife in the boot of his car, the knife was insufficiently proximate to the person at the time to say that he was armed with it.43 This does not mean that the person is required to have the weapon in his or her hand. In Miller v Hrvojevic,44 the accused was held to have been ‘armed’ with a knuckle-duster which was in his pocket and ‘could easily and rapidly be slipped on his hand’.45

This offence was previously located in the Vagrancy Act in substantially similar terms.46 The Scrutiny of Acts and Regulations Committee initially recommended its repeal, considering that the criminality this offence was intended to address was already covered by existing legislation.47 However, in its final report, the Committee took a different view and recommended that the provision be re-enacted in the Crimes Act 1958 (Vic) on the basis that the existing legislation does not deal with situations where a person is armed with a particular category of weapon with unspecified intent.48

36 Offences in Victoria are divided into indictable and summary offences. Indictable offences are offences which are prosecuted on presentment before a judge and jury in the higher courts. They are generally the more serious offences and attract higher maximum penalties. All offences in the Crimes Act 1958 (Vic) are indictable offences unless otherwise stated; see s. 2B of the Crimes Act 1958 (Vic). See also s. 112 of the Sentencing Act 1991 (Vic). Some indictable offences are triable summarily See s.53(1) of the Magistrates’ Court Act 1989 (Vic). The statutory maximum penalty for offences triable summarily is 2 years. See s 113(1) of the Sentencing Act 1991 (Vic).

37 Summary offences are less serious and are dealt with in the Magistrates’ Court. Offences which are punishable by less than 2 years’ imprisonment are summary offences. See s 112 of the Sentencing Act 1991 (Vic).

38 Crimes Act 1958 (Vic) s 31B.39 Section 3 of the Control of Weapons Act 1990 (Vic) defines a controlled weapon as a knife and anything

prescribed by the regulations and a prohibited weapon as an article described by the regulations to be prohibited.

40 Section 3 of the Firearms Act 1996 (Vic) defines ‘firearms’ as any device, whether or not assembled or in parts and whether or not operable or complete or temporarily or permanently inoperable or incomplete which is designed or adapted to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means or which has the appearance of such a device. The section also provides for a number of weapons which are excluded from meaning of firearm.

41 Section 29 of the Crimes Act 1958 (Vic) is ‘Using a firearm to resist arrest.’ Section 29(3)(b) defines an ‘imitation firearm’ as anything which has the appearance of being a firearm whether or not it is capable of discharging any shot or other missile.

42 Rowe v Conti [1958] VR 547, 548. 43 Ibid.44 [1972] VR 305, 306. 45 Ibid.46 Vagrancy Act 1966 (Vic) s 8(a).47 See Control of Weapons Act 1990 (Vic) and the Firearms Act 1996 (Vic). Scrutiny of Acts and Regulations

Committee, Parliament of Victoria, Review of Vagrancy Act 1966: Discussion Paper (2002), 20. See also Victorian Law Reform Commission, Summary Offences Act 1966 and Vagrancy Act 1966; A Review, Discussion Paper No. 26 (1992), 84.

48 Scrutiny of Acts and Regulations Committee, Final Report (2002), above n 33, 31.

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3.3 Loitering with intent to commit an indictable offence

A person who is found loitering in a public place and is either a ‘known or reputed’ thief or drug offender is guilty of the offence of ‘loitering with intent to commit an indictable offence’.49 To be found guilty of this offence, a person must have intended to commit an indictable offence and should have engaged in some conduct in furtherance of the intended offence.

In Wynne v Lockyer,50 the court held that ‘loitering’ should be taken to mean, as in its ordinary sense, ‘lingering idly or hanging about idly’.51 However, it was also held that this definition is subject to the qualification that conduct which may not otherwise be considered loitering, may fall within the ambit of the definition where the conduct is accompanied by some unlawful purpose. Therefore the intention of the defendant becomes highly relevant.

This was illustrated in Milne v Mutch,52 in which the court held that passengers on a tram for the lawful purpose of travelling could not be considered to be loitering, whereas the defendant, on the same tram, for the purpose of stealing from the other passengers could be found to be loitering.

Historically, a finding of guilt under this section has not required the identification of a particular offence for which the defendant is found to be loitering. It has been held to be sufficient that the defendant intended to commit any of a number of offences.53

The offence of ‘loitering with intent to commit an indictable offence’ includes a procedural provision as to what constitutes evidence of being a ‘known or reputed’ thief or drug offender.54 ‘Known or reputed thief’ has been defined as someone who would, in the opinion of those known to him or her, steal if the opportunity arose.55 A previous conviction was not required to establish this reputation. In Canino v Samuels,56 it was held that the evidence of a police officer that the defendant was a reputed thief was considered sufficient evidence of that fact.

This offence, previously located in the Vagrancy Act,57 was limited to ‘known or reputed thieves’ and did not require any acts in furtherance of the intended offence. The Scrutiny of Acts and Regulations Committee made some recommendations in relation to the previous section which were reflected in the new provisions.58 As the Attorney–General highlighted to the Legislative Assembly in the Second Reading speech of this bill, the offence ‘now targets drug dealers as well as thieves and cheats. However the perpetrator must do something in furtherance of an indictable offence to be guilty of loitering with intent.’59 This codifies a position which previously existed to some extent in the common law.60

49 Summary Offences Act 1966 (Vic) s 49B.50 [1978] VR 279. See also Samuels v Stokes (1973) 130 CLR 503.51 Wynne v Lockyer [1978] VR 279, 286. This case was specifically in reference to s 7(1)(f) of the Vagrancy Act

1966 (Vic).52 [1927] VLR 190.53 Harrison v Hegarty [1975] VR 362, 366-7. 54 Crimes Act 1958 s 49B(2). 55 Ex parte King; Re Blackley (1938) 38 SR (NSW) 483. See also Olholm v Eagles [1914] VLR 379.56 [1968] SASR 303.57 Vagrancy Act 1966 (Vic) s 7(1)(f).58 Scrutiny of Acts and Regulations Committee, Final Report (2002), above n 33, 29.59 Victoria, Parliamentary Debates, Legislative Assembly, 21 July 2005, 2003 (Robert Hulls, Attorney-General)

2003.60 Scrutiny of Acts and Regulations Committee, Final Report (2002), above n 33, 29.

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3.4 Being disguised with unlawful intent

A person who is found either disguised (including having a ‘blackened’ face) or has any article of disguise on them is guilty of ‘being disguised with unlawful intent’.61 The person would also need to have an intention which is unlawful.

For example, in Doan,62 balaclavas and gloves found in the offender’s vehicle were considered to be ‘articles of disguise’ for the purposes of this offence.

This offence merges two offences that were previously located in the Vagrancy Act.63 The previous provisions were largely similar, with the exception that one of the previous offences included a reverse onus, whereby the defendant was required to prove that he or she had a lawful excuse for the possession of an ‘article of disguise’. The offences were merged and the reverse onus removed following recommendations by the Scrutiny of Acts and Regulations Committee.64

The Committee had initially proposed that this offence should be repealed on the basis that conduct of this type was adequately covered by the law of attempt.65 However, the Committee’s ultimate recommendation was to keep the offence because it concluded that the law of attempt does not, at the present time, entirely cover the use of disguises for criminal purpose.66

3.5 Possessing housebreaking implements

A person who, without lawful excuse, has an implement of housebreaking in his or her possession is guilty of an offence. The onus is on the person to prove the lawful excuse for having the implement in his or her possession.67

An ‘implement of housebreaking’ is not clearly defined. The relevant factor in determining whether or not an implement can be classified as an implement of housebreaking is not the nature of the implement itself, but rather the purpose for which it is intended to be used.68

This offence replaced an earlier offence under the Vagrancy Act, which was substantially the same. However, the previous provision provided examples of housebreaking implements, where the current legislation does not.69

The Scrutiny of Acts and Regulations Committee initially recommended this offence should be repealed on the basis that it was under-utilised and that the behaviour that it was intended to criminalise was already covered by the offence of ‘going equipped to steal’.70 However, the Committee ultimately decided that the offence should be retained.

61 Summary Offences Act 1966 (Vic) s 49C.62 (Unreported, County Court of Victoria, Wodak J, 7 May 2003)63 Vagrancy Act 1966 (Vic) s 6(1)(f) and 7(1)(h).64 Scrutiny of Acts and Regulations Committee, Final Report (2002), above n 33, 29.65 Scrutiny of Acts and Regulations Committee, Discussion Report (2002), above n 47, 18. See also Victorian

Law Reform Commission, above n 47, 13 & 83.66 Scrutiny of Acts and Regulations Committee, Final Report (2002), above n 33, 29.67 Summary Offences Act 1966 (Vic) s 49D .68 R v Oldham (1852) 169 ER 587. There are limits to what the courts will accept comes into the relevant

section. In R v Stewart (1932) 96 JP Jo 137, it was doubted as to whether or not an electric torch could be considered an implement of housebreaking.

69 Vagrancy Act 1966 (Vic) s 7(1)(g).70 Scrutiny of Acts and Regulations Committee, Discussion Paper (2002), above n 47, 18. See section 91 of

the Crimes Act 1958 (Vic).

The N


ffences


Unlike the offence of ‘being disguised with intent’, the current offence retains the reverse onus of proof that applied under the previous provision. In this case, the Committee was of the view that the provision was not unduly detrimental to the rights of defendants. The relevant standard of proof in these circumstances is the balance of probabilities.71

3.6 Going equipped to steal

A person who has with him or her any article which is to be used in order to commit a burglary, theft or cheat is guilty of the offence of ‘going equipped to steal’.72

Where a person is charged with an offence under this section, the fact that the person had with him or her any article which was ‘made or adapted’ for use in committing a burglary, theft or cheat is evidence that he or she had the article with them for that purpose.73

Proof of intention to commit a specific offence is not required for the prosecution of this offence. It is sufficient that the defendant generally intended to use the implements for a burglary, theft or cheat.74

‘Any article’ covers a wider range of objects than ‘housebreaking implements’. Therefore this offence appears to criminalise a broader range of conduct than the offence of ‘possessing housebreaking implements’. For example, in the matter of Beary,75 a black handbag was considered an ‘article’ for the purposes of this section, as the offender attended a number of retail establishments and placed items she wished to steal in her handbag as a means of hiding them so she could remove them from the shop.

The distinction between any article ‘made’ or ‘adapted’ for use was discussed in Milne v O’Neill.76 The court was of the view that ‘made’ refers to an article that was created for the purpose of being used in the commission of the offence, as opposed to ‘adapted’, which may refer to an article that was not created but has been modified of changed for such a use. ‘Adapted’ may refer to an article, which has not been created or altered as described, but that is intended to be put to a particular use.

71 Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Alert Digest, (No. 9 of 2005).72 Crimes Act 1958 (Vic) s 91. The only exception is where the person is at his or her place of residence while

in possession of the article. 73 Crimes Act 1958 (Vic) s 91(3).74 For the purposes of this section, burglary and theft refer to the offences as contained in the Crimes Act

1958 (Vic) at sections 76 and 74 respectively. ‘Cheat’ refers to ‘obtaining property by deception’, pursuant to section 81 of the Crimes Act 1958 (Vic).

75 (Unreported, County Court of Victoria, Davey J, 23 May 2003)76 (Unreported, Supreme Court of Victoria, Court of Appeal, Tadgell, Ormiston and Phillips JA, 12 September

1996), 9.

When do preparatory offences occur?


4.1 Introduction

Preparatory offences are intended to criminalise conduct where the offender has taken some steps towards the commission of the completed offence. The law in relation to attempts and conspiracy is also directed at criminalising conduct engaged in prior to the commission of completed offences. This section describes the offences of conspiracy and attempt in order to compare them to preparatory offences and rank these offences based on their relative seriousness.

Figure 1: The maximum penalties for preparatory offences, attempts and completed offences in Victoria

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As Figure 1 shows, even taking into account the higher penalty for ‘being armed with criminal intent’, preparatory offences in Victoria have lower maximum penalties compared to the penalties for attempts and completed offences. The difference in maximum penalties needs to be considered in the context of the relative gravity of preparatory offences, attempts and completed offences. In the case of attempts, an accused is required to be much closer to his or her ultimate goal of the completed offence than for preparatory offences. This is reflected in higher maximum penalties for attempts, which are closer to the maximum penalties for the completed offences.

4.2 Inchoate Offences

The offences of conspiracy and attempt can be described as ‘inchoate’ offences. These offences can be committed even where the substantive offence that the offender intended to commit has not been completed. The rationale for these offences is that they, like preparatory offences, allow police to take a pro-active role in preventing the commission of serious crimes.77

77 Simon Bronitt & Bernadette McSherry, Principles of Criminal Law, (2nd ed, 2005) 400.

4. When do preparatory offences occur?



The crime of conspiracy is less proximate to the commission of a completed offence than attempts or preparatory offences, as it is committed when a person enters an agreement with one or more other people to engage in a course of conduct which includes the commission of an offence by one or more of the parties to the agreement.78

A person is guilty of conspiring to commit a particular offence if he or she and at least one other party to the agreement intend that the offence which is the subject of the agreement be committed. The person must also intend or believe that any facts, which make up an element of the offence, will exist when conduct constituting the offence is to take place.79

The offence of conspiracy is completed once an agreement is made.80 The courts draw a distinction between cases where the parties have actually agreed to do something and where the parties have been merely engaged in discussion or negotiation. Only participants in the former case are liable for criminal prosecution.81 The agreement must be in relation to the commission of a particular offence, as opposed to an agreement to commit some unspecified unlawful acts.82 Evidence of direct communication between the parties is not required in order to establish that there was an agreement. The existence of an agreement may be inferred from the actions of the relevant parties.83

The offence of conspiracy requires that there is a common intention to carry out the agreement as formed between the parties.84 Recklessness as to the probable consequences is insufficient to satisfy the element of intention.85

A person may be guilty of the offence of conspiracy despite the existence of facts that would make the commission of the offence by the agreed course of conduct impossible.86

Conspiracy cannot be alleged on a presentment for trial in the County or Supreme Court without the approval of the Director of Public Prosecutions.87 The penalty for conspiracy is the same as the penalty for the completed offence.88

Attempts fall between preparatory offences and completed offences. A person who attempts to commit an indictable offence is guilty of the offence of attempting to commit that offence. For example, a person who attempts to commit armed robbery, is guilty of the offence of attempted armed robbery.89

78 Crimes Act 1958 (Vic) s 321. Section 321F of the Crimes Act 1958 (Vic) abolished the offence of conspiracy at common law, and replaced it with a more limited statutory provision. However, the common law offences of conspiracy to cheat and defraud and conspiracy to defraud survive the enactment of section 321F, as noted in section 321F (2).

79 Crimes Act 1958 (Vic) s 321(2).80 Simon Bronitt & Bernadette McSherry, above n 77, 416.81 Ibid.82 R v McCaul and Palmer [1983] 2 VR 419, 424.83 R v Orton [1922] VLR 469, 474.84 Crimes Act 1958 (Vic) s 321(2)(a).85 Giorgianni v R (1985) 156 CLR 473 per Wilson, Deane and Dawson JJ ; See also R v Moran and Mokbel

[1999] 2 VR 87, 95.86 Crimes Act 1958 (Vic) s 321(3). This is intended to cover the common law offences of conspiracy which exist

alongside the statutory regime.87 Crimes Act 1958 (Vic) s 321(4).88 Crimes Act 1958 (Vic) s 321C. Where the penalty for the completed offence is not fixed by law, the maximum

penalty for conspiring to commit that offence is 15 years’ imprisonment.89 Crimes Act 1958 (Vic) s 321M. The offence of attempt at common law was abolished under section 321S of

the Crimes Act 1958 (Vic).



A person is not guilty of attempting to commit an offence unless he or she intends to commit the offence. If the person is merely reckless as to the probable consequences of his or her actions, the mental element of the offence of attempt will not be established.90 For example, in Knight v The Queen, Justices Mason, Dawson and Toohey of the High Court described the mental element required for attempted murder:

an intention to cause grievous bodily harm may constitute the malice aforethought required for murder where death ensues, but for there to be an attempted murder there must be an intention to cause the death which is an essential element of the completed crime of murder.91

For the offence of attempt, some act or acts must be undertaken by the accused in furtherance of the commission of the crime. The act or acts must be ‘more than merely preparatory to the commission of the offence’.92 Case law draws a distinction between acts merely preparatory to the commission of the offence and acts which are ‘sufficiently proximate’.93 The act or acts in question must also be ‘immediately and not remotely connected with the commission of the offence.’94

The question then arises as to what constitutes more than mere preparation. In R v Gullefer,95 it was held that a person who jumped on a race track in order to distract greyhounds while they are racing in the hope that ‘no race’ would be declared so he could recover money that he had bet on the race, was not guilty of an attempt to steal. The court was of the view that his actions were no more than mere preparation and that there were a significant number of further steps that would be required before the offence of theft was completed.

In R v Jones,96 the action of pointing a loaded gun at the intended victim was considered to be ‘more than mere preparatory’ to murder, despite the fact that the offence could not be completed until the offender committed at least three further acts, namely removing the safety catch on the firearm, putting his finger on the trigger and pulling the trigger itself.

It is not fatal to a prosecution for the offence of attempt that it would be, in fact, impossible for the offender to ‘complete’ the offence.97 This issue was discussed by Justice Murphy in Britten v Alpogut, where His Honour stated that:

A man who intends to kill V and who picks up a gun believing it to be loaded, and who points it at V and pulls the trigger is guilty of an attempt to murder V, even if it transpired that the gun was not loaded… The criminality comes from the conduct intended to be done. That conduct intended must amount to an actual and not an imagined crime, but if it does, then it matters not that the gun is in fact unloaded, or the police intervene, or the victim is too far away, or the girl is in fact over 16, or the pocket is empty, or the safe is too strong, or the goods are not cannabis.98

90 Giorgianni v The Queen (1985) 156 CLR 473, 506.91 Knight v The Queen (1992) 175 CLR 495, 501.92 Crimes Act 1958 (Vic) s 321N. 93 Britten v Alpogut [1987] VR 929 at 938 per Murphy J ‘…he [or she] did acts that (which in the appropriate

circumstances would include omissions) which are seem to be sufficiently proximate to the commission of the said crime and not seen to be merely preparatory to it.’

94 Crimes Act 1958 (Vic) s 321N(1)(b).95 [1990] 1 WLR 1063, 1065.96 [1990] 1 WLR 1057.97 Crimes Act 1958 (Vic) s 321N(3).98 Britten v Alpogut [1987] VR 929, 935.



The maximum penalty faced by a person convicted of attempting to commit an offence is tied to the maximum penalty for the intended offence as it is one penalty level lower than the penalty for the completed offence.99

4.3 Preparatory Offences

Preparatory offences are considered necessary because of the narrow way in which the law of conspiracy and attempts has been defined.

The law in relation to both conspiracy100 and attempts101 requires that the accused planned to commit a particular offence. In contrast, for preparatory offences, all that is required is a general intention to commit a non-specific theft, burglary or related relevant offence.102

The acts required for a person to be guilty of a preparatory offences are more proximate to the completed offence than those required for conspiracy, in that some overt act needs to have taken place. For example, an accused person would need to actually be located in the vicinity of where the intended offence is to take place or have armed him or herself with an implement, whether it be a ‘housebreaking’ implement, a ‘tool’ to facilitate a theft, or a weapon, depending on the particular preparatory offence charged.

While conspiracy does not require the offender to have engaged in any acts, a successful prosecution would usually require that some acts in furtherance of the conspiracy had taken place in order to prove the existence of the agreement and the intention to carry it out. It would be difficult for the prosecution to prove what occurred in a private meeting between offenders.103 The offence of conspiracy also has the limitation that it cannot be charged in relation to an offender acting alone.

Preparatory offences, by their nature, cover acts which are ‘merely preparatory’, in contrast to attempts. They cover a much wider range of conduct than the law of attempt, which has evolved to require the accused to have engaged in conduct that is beyond mere preparation in the furtherance of the ultimate completed offence.

99 The maximum penalties are contained in table form in section 321P of the Crimes Act 1958 (Vic).100 R v McCaul and Palmer [1983] 2 VR 419.101 Giorgianni v The Queen (1985) 156 CLR 473, 506.102 Bronitt and McSherry, above n 77, 694. 103 Ibid 416. Co-conspirator’s rule of evidence was developed to assist in this situation – statements of one

conspirator are admissible against another where there is reasonable participation of the latter. See Ahern v The Queen (1988) 165 CLR 87 94-5.

Com

parable offences in other Australian jurisdictions


5.1 Introduction

Each Australian jurisdiction has some preparatory offences. Generally, each jurisdiction has one or two offences that cover a similar ambit as the five distinct preparatory offences in Victoria, however, some conduct is not covered by offences in all jurisdictions. For example, the Australian Capital Territory, the Northern Territory and South Australia do not have specific offences in relation to offenders who disguise themselves with intent to commit a crime.

5.2 How do the maximum penalties for preparatory offences in Victoria compare to those around Australia?

Figure 2: Comparison of the maximum penalties for preparatory offences across Australian jurisdictions104

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Figure 2 shows a wide variation in the maximum penalties applicable to broadly similar offences across all Australian jurisdictions. This can be explained in some part by the disparity in the types of conduct covered by the offences in each state or territory. It should be noted that Tasmania is not included in this graph because the maximum penalty for all indictable offences in that jurisdiction is 21 years’ imprisonment.

104 The penalty for ‘going equipped for the commission of an offence of dishonesty or offence against property’ is five years where the penalty for the intended offence is 10 years; the penalty increases to seven years where the penalty for the intended offence is greater than 14 years; Criminal Law Consolidation Act 1935 (SA) s 270C. The penalty for ‘possession of things used in connection with unlawful entry’ is three years; where the offender has a prior conviction for an offence relating to property, the penalty increases to seven years: Criminal Code Act 1899 (Qld) s 425.

5. Comparable Offences in other Australian jurisdictions

Com



While Figure 2 shows that the maximum penalties for preparatory offences in Victoria are among the lowest in the country, the maximum penalty for ‘being armed with criminal intent’ is higher than the penalties for preparatory offences in Western Australia and Queensland (for a first offence). This reflects that offences which involve the use of weapons are seen to be higher on the scale of offending behaviour. This is also the situation in the Australian Capital Territory, where the offence of ‘going equipped with offensive weapon or theft etc’ attracts a higher maximum penalty than the other preparatory offence in that jurisdiction.

South Australia is the only jurisdiction to tie the penalty for its preparatory offence to the maximum penalty for the intended offence. If the intended offence is burglary, robbery or the aggravated forms of these offences, then the maximum penalties are similar to the penalties for the preparatory offences in the Northern Territory and New South Wales.

The penalties in South Australia, Northern Territory, Western Australia, Australian Capital Territory and Victoria apply to both first time and repeat offenders. Queensland and New South Wales apply a different penalty regime for repeat offenders. In New South Wales, the penalty for a first time offender is the same as the penalty for a repeat offender in Queensland. An offender in New South Wales, who has a previous conviction for an indictable offence and who commits the offence of ‘being armed with intent to commit an indictable offence’ can be charged with ‘being a convicted offender armed with intent to commit indictable offence’ which has a higher maximum penalty of ten years’ imprisonment.

A consistent pattern across the states and territories of Australia is that the maximum penalties for preparatory offences are generally lower than the penalties for attempt.105 This is a reflection that in order to be convicted of an attempt, an accused must have undertaken considerable effort towards the completed offence, while for the preparatory offences, a wide range of conduct is covered, some of which is quite distant from the actual commission of a completed offence.

5.3 Western Australia

In Western Australia, the offence of ‘being found with intent to commit a crime’ is found in section 407 of the Criminal Code 1913 (WA). Pursuant to that section, any person who is found in any of the following circumstances is guilty of an offence:

armed with any dangerous or offensive weapon or instrument with the intention of entering a place to commit an offence therein;

having in his or her possession at night any instrument of housebreaking, where the person cannot provide a lawful excuse for the possession of the instrument;

having in his or her possession during the day any instrument of housebreaking with the intention to commit an indictable offence; or

having his or her face masked, blackened or otherwise disguised with the intention to commit an indictable offence.

105 With the exception of Tasmania (where the maximum penalty is 21 years for all indictable offences) and the Northern Territory (where the maximum penalty for ‘ ‘being armed with intent to unlawfully enter buildings’ incurs the same maximum penalty as attempted armed robbery).

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The maximum penalty for this offence is three years’ imprisonment.

The Western Australian legislation provides for alternative factual scenarios which result in the commission of the same offence. If the offence was committed at night, the Crown must prove only that the accused was in possession of an instrument of housebreaking. The onus of proof is then reversed and the accused must prove that he or she had a lawful excuse for the possession of such an instrument to avoid conviction. Where the offence is committed during the day, the Crown has to prove that the accused was in possession of the instrument and had the requisite intent to commit an offence.

Figure 3: The maximum penalties for preparatory offences, attempts and completed offences in Western Australia

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Figure 3 shows that the maximum penalty for the relevant offence in Western Australia is quite low compared to the maximum penalties for attempts and completed offences in that state.

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5.4 Australian Capital Territory

The relevant preparatory offence in the Australian Capital Territory is ‘going equipped for theft etc.’106 A person who has with them an article with an intention to use the article in relation to a theft or related offence is guilty of this offence.107

Related offences for the purposes of this section are robbery, aggravated robbery, burglary, aggravated burglary, taking etc of a motor vehicle without consent and obtaining property by deception. The maximum penalty for ‘going equipped for theft etc.’ is 300 penalty units,108 three years’ imprisonment or both.

There is also an offence of ‘going equipped with offensive weapon for theft etc.’ A person must be armed with an offensive weapon109 for use in relation to a theft or related offence to be found guilty of this offence. Related offences for the purposes of this section are robbery, aggravated robbery, burglary and aggravated burglary. The maximum penalty for ‘going equipped with offensive weapon for theft etc.’ is 500 penalty units,110 five years’ imprisonment or both.

Figure 4: The maximum penalties for preparatory offences, attempts and completed offences Australian Capital Territory

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Figure 4 illustrates that unlike in Victoria, in the Australian Capital Territory, the penalty for an attempt is the same as the penalty for a completed offence.111

106 Criminal Code 2002 (ACT) s 315.107 The only exception to this provision is where the person is in their own home.108 A penalty unit for the purposes of the Criminal Code 2002 (ACT) is $100.00.109 Section 3 of the ACT Criminal Code provides a list (not exhaustive) of what can be considered an ‘offensive

weapon’.110 A penalty unit for the purposes of the Criminal Code 2002 (ACT) is $100.00.111 Criminal Code 2002 (ACT) s 44(9).

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5.5 South Australia

In South Australia, the Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 reformed and updated offences including theft, robbery and burglary. The 2002 Act repealed section 171 (which had set out preparatory offences such as being armed with intent) and inserted a new division in the Criminal Law Consolidation Act 1935 (SA), specifically dealing with preparatory conduct and in particular, the offence of ‘going equipped for commission of offence of dishonesty or offence against property’.112

This offence provides that a person, in suspicious circumstances, and who has in her or her possession113 an article with the intention of using it to commit one of the offences as listed below, is guilty of an offence.

The relevant offences for this section are;

theft (or receiving) or an offence of which theft is an element;

serious criminal trespass;

unlawfully driving, using or interfering with a motor vehicle;

an offence relating to dishonest dealings with documents;

an offence relating to dishonest manipulation of documents;

an offence involving interference with damage or destruction of property punishable by imprisonment for three years or more.

‘Suspicious circumstances’ are established where it can be reasonably inferred that the person is either proceeding to the scene of a proposed offence, is keeping the scene of a proposed offence under surveillance or is in or near the scene of a proposed offence, waiting for an opportunity to commit the intended offence.114

The maximum penalty for this offence is linked to the maximum penalty for the intended offence.115

The repealed section 171 was more specific in relation to the conduct that it sought to criminalise. It also previously had a different maximum penalty depending on whether or not the offender was a first time or repeat offender. This has been replaced with a provision which ties the penalty to the offence that the accused was intending to commit, in the same way that the penalty for attempt is tied to the completed offence.

112 Criminal Law Consolidation Act 1935 (SA) s 270C.113 ‘Possession’ for the purposes of this section extends beyond immediate physical custody. It includes a

situation where the article is under the control of the accused and readily accessible so that it can be used with only minimum and immaterial delay. See R v Wilson & Flanders [1969] SASR 218.

114 Criminal Law Consolidation Act 1935 (SA), s 270C(3)115 If the maximum penalty for the intended offence is life imprisonment or imprisonment for more than 14

years, the penalty for an offence under s 270C is seven years’ imprisonment. If the maximum penalty for the intended offence is less than 14 years, the maximum penalty for an offence under s 270C is half the maximum penalty for the intended offence.

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Figure 5: The maximum penalties for preparatory offences, attempts and completed offences in South Australia116

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ngeq

uipp

edfo

rth

eco

mm

issi

onof

anof

fenc

eof

dish

ones

tor

offe

nce

agai

nstp

rope

rty

(s27

0C(1

))

Atte

mpt

edT

heft

(s27

0A(3

)(c)

)

Atte

mpt

edB

urgl

ary

(s27

0A(3

)(c)

)

Atte

mpt

edR

obbe

ry(s

270A

(3)(

c))

Atte

mpt

edA

ggra

vate

dB

urgl

ary

(s27

0A(3

)(b)

&(c

))

Atte

mpt

edA

ggra

vate

dR

obbe

ry(s

270A

(3)(

b))

The

ft(s

134)

Bur

glar

y(s

169(

1)/1

70(1

))

Rob

bery

(s13

7)

Agg

rava

ted

Bur

glar

y(s

169(

2)/1

70(2

))

Agg

rava

ted

robb

ery

(s13

7)

Preparatory

Figure 5 shows the penalty for ‘going equipped for commission of offence of dishonesty or offence against property’, where the intended offence was either burglary or aggravated burglary. The penalties are graduated depending on the seriousness of the intended offence and proportionately lower than the penalties for attempts and completed offences.

116 The penalty for ‘going equipped for the commission of an offence of dishonesty or offence against property’ is five years where the penalty for the intended offence is 10 years; the penalty increases to seven years where the penalty for the intended offence is greater than 14 years; s 270C. For the offence of attempted burglary and attempted aggravated burglary, there are difference penalties depending on what type of burglary was committed by the offender. For the offence of burglary, the penalty is 10 years where the building entered is non-residential; the penalty increases to 15 years where the building is a dwelling house; ss 169 & 170. For the offence of aggravated burglary, the penalty is 20 years if the building entered is a non-residential building; the penalty increases to Life where the building is a residential building. s 169 & 170.

Com



5.6 Northern Territory

The Criminal Code 1983 (NT) contains the offence of ‘being found armed with intent to unlawfully enter buildings’.117 This section provides that any person who is found armed with either a firearm or any other dangerous or offensive weapon, with the intention of unlawfully entering a building, is guilty of an offence. 118 The maximum penalty for this offence is seven years’ imprisonment.

Figure 6: The maximum penalties for preparatory offences, attempts and completed offences in the Northern Territory119

7

3.5

7 7 7 7

14

Life Life

205

10

10.5

1.5

3.5

12

35

2.5

7

Life

0

5

10

15

20

PreparatoryOffences

Attempts Completed Offences

Sta

tuto

rym

axim

umpe

nalty

(impr

ison

men

tlen

gth

inye

ars)

Per

sons

foun

dar

med

with

inte

ntto

unla

wfu

llyen

ter

build

ings

(s21

5)

Atte

mpt

edT

heft

(s27

8(2)

)

Atte

mpt

edB

urgl

ary

(s27

8(2)

)

Atte

mpt

edR

obbe

ry(s

278(

1))

Atte

mpt

edA

ggra

vate

dB

urgl

ary

(s27

8(1)

)

Atte

mpt

edA

rmed

Rob

bery

(s27

8(1)

)

The

ft(s

210)

Bur

glar

y(s

213)

Rob

bery

(s21

1(1)

)

Agg

rava

ted

Bur

glar

y(s

213(

6))

Arm

edR

obbe

ry(s

211(

2))

The offence as contained in the Northern Territory legislation is largely only relevant as a preparatory offence to aggravated burglary as it criminalises behaviour in relation to the intent to unlawfully enter a building with a weapon. Figure 6 illustrates that the penalty for ‘being found armed with intent to unlawfully enter buildings’ is the same as the penalty for attempted aggravated burglary. The legislature has not drawn any distinction between the maximum penalties for these offences, despite the different intention which would be required to prove each offence. In relation to the completed offence of aggravated burglary, the penalty for ‘being found armed with intent to unlawfully enter buildings’ is approximately one third of the penalty for that offence.120

117 Criminal Code 1983 (NT) s 215.118 “offensive weapon” means any article made or adapted to cause injury or fear of injury to the person or by which

the person having it intends to cause injury or fear of injury to the person. 119 The penalty for the offence of attempted burglary is dependant on the type of burglary which the offender

has attempted to commit. If the penalty for the completed offence is less than 14 years, the penalty is half the maximum penalty for the completed offence: s 278(2). The types of burglaries are set out in s 213. If offender enters with intent to commit a simple offence, the penalty is 1 year; if the building is a dwelling house, the penalty is 2 years: s 213(2). If offender enters with intent to commit a crime which is punishable < 3 years’ imprisonment, the penalty is 3 years; if the building is a dwelling house, the penalty is 5 years; if premises occupied at the time, penalty is 7 years: s 213(3). If the offender enters the building with intent to commit any other offence, the penalty is 7 years; if the building is a dwelling house, the penalty is 10 years: s 213(4). The penalty In relation to Aggravated Burglary, the penalty is 20 years where the building entered is non-residential; where the building entered is a dwelling house, the penalty is Life; s 213(6).

120 Where the building entered is not a dwelling house. See section 213(6) of the Criminal Code 1983 (NT).

Com



5.7 Queensland

In Queensland, Criminal Code Act 1899 (Qld) provides for the offence of ‘possession of things used in connection with unlawful entry’.121 Any person who is found engaging in the following conduct is guilty of this offence:

armed122 with any dangerous or offensive weapon, instrument or noxious substance and being armed with the intention to break into and/or enter into any premises and commit an indictable offence

having in his or her possession anything which is intended for use in relation to the offences of burglary or entering/being on premises and committing an indictable offence

having in his or her possession at night any instrument of housebreaking, where the person cannot provide a lawful excuse for the possession of the instrument

having in his or her possession during the day any instrument of housebreaking with the intention to commit an indictable offence

having his or her face masked, blackened or otherwise disguised with the intention to commit an indictable offence.

The maximum penalty for this offence is three years’ imprisonment.

The Queensland legislation differentiates between first time offenders and repeat offenders. If the offender has been previously convicted of a crime related to property, the maximum penalty is increased to seven years.123

The Criminal Code Act 1899 (Qld) has similar provisions to the Western Australian legislation in relation to when the offence was committed. If the offence was committed at night,124 the Crown must prove only that the accused was in possession of an instrument of housebreaking.125 It is then for the accused to establish, on the balance of probabilities, that he or she had a lawful excuse for the possession of the instrument. If the offence is committed during the day, the Crown has to prove, not only that the accused was in possession of an instrument of housebreaking, but also that this was accompanied by the relevant intent, that is, the intent to commit an indictable offence.

Another offence in the Queensland legislation can be described as a preparatory offence. Section 421 of the Criminal Code Act 1899 (Qld) includes the offence of ‘being on premises with intent to commit an indictable offence’. This offence is analogous to the Victorian offence of ‘loitering with intent’. The relevant section provides that any person who enters or is in any premises with the intention to commit an indictable offence in those premises is guilty of a crime.126 The maximum penalty for this offence is 10 years’ imprisonment. It should be noted that the 10 year maximum penalty is also intended to cover the offence of ‘entering premises with intent to commit an indictable offence’, thus explaining why the maximum is so high for a preparatory offence.

121 Criminal Code Act 1899 (Qld) s 425.122 The definition of “armed” for the purposes of this section requires that the accused person have the weapon

immediately ready for use. See Rowe v Conti [1958] VR547; Miller v Hrvojevic [1972] VR 305.123 Criminal Code Act 1899 (Qld) s 425(2).124 Between 9pm and 6am. Criminal Code 1899 Act (Qld), s 1.125 A house breaking implement has been described in the relevant cases as anything which is capable of

assisting a housebreaker to effect his or her criminal intentions, whether that is to assist in the entry of a building, the escape after the crime has been committed or to assist in disguising themselves. See R v Allingham and Bandy [1954] NZLR 1223, 1226.

126 Being in any premises is the relevant wording in relation to this discussion, as opposed to entering, which would be burglary.

•

•

•

•

•

Com



Figure 7: The maximum penalties for preparatory offences, attempts and completed offences in Queensland127

7

10

7 7 7

14

5

14

Life Life Life

3

14

2.5

Life

0

2

4

6

8

10

12

14


Sta

tuto

rym

axim

umpe

nalty

(impr

ison

men

tlen

gth

inye

ars)

Pos

sess

ion

ofth

ings

used

inco

nnec

tion

with

unla

wfu

lent

ry(s

425)

Bei

ngon

prem

ises

with

inte

ntto

com

mit

anin

dict

able

offe

nce

(s42

1)

Atte

mpt

edT

heft

(s53

6(2)

)

Atte

mpt

edB

urgl

ary

(s53

6(1)

)

Atte

mpt

edR

obbe

ry(s

412)

Atte

mpt

edA

ggra

vate

dB

urgl

ary

(s53

6(1)

)

Atte

mpt

edA

rmed

Rob

bery

(s41

2(2)

)

The

ft(s

398)

Rob

bery

(s41

1(1)

)

Bur

glar

y(s

419

(1))

Arm

edR

obbe

ry(s

411(

2))

Agg

rava

ted

Bur

glar

y(s

419

(3))

127 The penalty for ‘possession of things used in connection with unlawful entry’ is three years; where the offender has a prior conviction for an offence relating to property, the penalty increases to seven years: s 425. In relation to burglary, the penalty is 14 years; where the offender enters the premises by means of any break, the penalty increases to Life; s 419.

Com



5.8 New South Wales

In New South Wales, a person is guilty of ‘being armed with intent to commit an indictable offence’128 if he or she:

is armed129 with a weapon or instrument and intends to commit an indictable offence;

has in his or her possession any ‘housebreaking or safebreaking implement’ or ‘any implement capable of being used to enter or drive a conveyance’130 and has no lawful excuse for having such an implement on his or her person;

has his or her face disguised or blackened or has in their possession anything which could be used to disguise themselves and intends to commit an indictable offence, or;

enters or remains in any building or land connected to a building and intends to commit an indictable offence in or on the building.

The maximum penalty for an offence against this section is seven years’ imprisonment.

Under New South Wales law, there is a separate offence of ‘being a convicted offender armed with intent to commit indictable offence’.131 The defendant’s prior conviction is an element of this offence. The maximum penalty for an offence under this section is 10 years’ imprisonment.

A person cannot be charged with an offence under this provision until a conviction has already been recorded for the subsequent offence under section 114.132 In order to secure a conviction under this section, the prosecution is obliged to prove both the offence under section 114 and the previous conviction (though not the commission of the previous offence itself).133

Offences under sections 114 and 115 of the Crimes Act 1900 (NSW) are indictable offences which are to be tried summarily unless an election is made for trial.134 The maximum penalty available in the Local Court for an offence under section 114(a),(c),(d) and section 115 is two years’ imprisonment.135 The maximum penalty available in the Local Court for an offence under s 114(1)(b) is one years’ imprisonment.136

The New South Wales Law Reform Commission recommended that section 115 be repealed.137 The Commission was concerned that providing for an additional sentence may result in a situation where an offender may receive a sentence which is disproportionate to the offence for which he or she is being sentenced. The Commission also pointed out that section 115 was not being used with any great frequency by prosecuting authorities.138

128 Crimes Act 1900 (NSW) s 114.129 Section 4(1) defines ‘armed’ as follows: ‘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’. ‘Possession’ must be actual and not constructive possession: R v Yates (1963) 80 WN (NSW) 744; R v Farrar (1983) 78 FLR 10.

130 Crimes Act 1900, s 114(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, whether decked or undecked, used in or intended for navigation, and “drive” shall be construed accordingly.

131 Crimes Act 1900 (NSW) s 115.132 Crimes Act 1900 (NSW) s 392.133 R v Tillott (1991) 53 A Crim R 46.134 In relation to s 114(a), (c), (d) & s 115, the election can be made by the defendant or the prosecutor (Table

2 offences). See Criminal Procedure Act 1986 (NSW) s 260(1). In relation to s 114(b), the election can only be made by the prosecutor. (Table 1 offences) See Criminal Procedure Act 1986 (NSW) s 260(2).

135 Criminal Procedure Act 1986 (NSW) s 267(2).136 Criminal Procedure Act 1986 (NSW) s 268(2)(c). 137 New South Wales Law Reform Commission, Sentencing, Report No 79 (1996) [10.13] – [10.19]. See also

New South Wales Law Reform Commission, Sentencing, Discussion Paper No 33 (1996) [4.112] – [4.119].138 Ibid.

•

•

•

•

Com



Figure 8: The maximum penalties for preparatory offences, attempts and completed offences in New South Wales139

7

10 10

14 14

25 25

10

14 14

25 25

20 20 20 20

0

5

10

15

20

25

30

Bei

ngar

med

with

inte

ntto

com

mit

anin

dict

able

offe

nce

(s11

4)

Bei

ngco

nvic

ted

offe

nder

arm

edw

ithin

tent

toco

mm

itan

indi

ctab

leof

fenc

e(s

115)

Atte

mpt

edT

heft

(s34

4A)

Atte

mpt

edB

urgl

ary

(s34

4A)

Atte

mpt

edR

obbe

ry(s

344A

)

Atte

mpt

edA

ggra

vate

dB

urgl

ary

(s34

4A)

Atte

mpt

edA

ggra

vate

dR

obbe

ry(s

344A

)

The

ft(s

308)

Bur

glar

y(s

109)

Rob

bery

(s94

)

Agg

rava

ted

Bur

glar

y(s

109)

Agg

rava

ted

Rob

bery

(s97

)


Sta

tuto

rym

axim

umpe

nalty

(impr

ison

men

tle

ngth

inye

ars)

Figure 8 shows that, as in the Australian Capital Territory, the maximum penalty for an attempt in New South Wales is the same as the penalty for the completed offence.140

139 The penalty for attempted aggravated burglary, attempted aggravated robbery, aggravated burglary and aggravated robbery are 20 years where the offender is armed with an ‘offensive weapon’ and 25 years where the offender is armed with a ‘dangerous weapon’.

140 Crimes Act 1900 (NSW) s 344.

Com



5.9 Tasmania

The Criminal Code 1924 (Tas) includes the offence of ‘being found prepared for the commission of a crime’.141 This section provides that any person who is found in any of the following circumstances is guilty of an offence;

armed with any dangerous or offensive weapon or instrument with the intention of committing an offence;

having in his or her possession, without a lawful excuse, any instrument for use to enter premises;142

having his or her face masked, blackened or otherwise disguised with the intention of committing an offence; and

being in any place143 with the intention of committing an offence.

The maximum penalty for this offence is 21 years’ imprisonment, which is the general maximum penalty for offences in Tasmania.144 Therefore this preparatory offence, attempts and completed offences have the same maximum penalty.

141 Criminal Code 1924 (Tas) s 248.142 See Chapter 24 of the Criminal Code 1924 (Tas).143 See Chapter 24 of the Criminal Code 1924 (Tas).144 Criminal Code 1924 (Tas) s 389(3).

•

•

•

•

Sentencing O

utcomes


6.1 Introduction

The Council examined sentences for the offences under review in the higher courts and in the Magistrates’ Court for the period between 2001-01 and 2004-05. A total of 8636 charges of preparatory offences were dealt with during this period. The data collected refers to the preparatory offences as they existed prior to September 2005.145

6.2 Magistrates’ Court146

The data collection method employed to obtain sentence lengths from the Magistrates’ Court does not distinguish between aggregate and non-aggregate sentences.147 This may mean that the sentencing range represented will be slightly higher than if only sentences imposed on a single offence were included. For example, all sentences imposed which are greater than two years are likely to be aggregate sentences.

The jurisdictional limit in the Magistrates’ Court is two years’ imprisonment in relation to a single offence.148 If a defendant is charged with more than one offence committed at the same time, the court can order cumulation of the sentences imposed in relation to those charges up to a maximum of five years.149 A Magistrate can also impose an aggregate sentence of up to five years imprisonment.150

The jurisdictional limit is not the same as the maximum penalty imposed by statute. The statutory maximum penalty is reserved for the ‘worst cases of that sort’, while the jurisdictional limit acts as a limitation on the sentencing powers of the court. It follows, therefore, that a Magistrate is not constrained to reserve a sentence of two years for a charge of ‘armed with criminal intent’ for the worst case of that offence. The statutory maximum to be considered for that offence is still five years’ imprisonment.151

145 The offence data referred to here is in relation to the preparatory offences as they existed prior to September 2005. See the repealed Vagrancy Act 1966 (Vic) s 7(1)(f), ‘loitering with intent to commit an indictable offence’, s 7(1)(g) ‘being in possession of implements of housebreaking’, s 7(1)(h) ‘being disguised with unlawful intent’, s 6(1)(f) ‘possession of an article of disguise’ (these have been amalgamated) and s 8(a) ‘armed with criminal intent’. All four of these offences were summary offences. Section 91 of the Crimes Act 1958 (Vic), ‘going equipped to steal’ has remained unchanged.

146 See Appendix 2 for all preparatory offences dealt with in the Magistrates’ Court during the period 2000-01 to 2004-5.

147 If an offender is convicted by a court of two or more offences which are founded on the same facts or are part of a series of offences, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect each of them. The term of an aggregate sentence of imprisonment imposed must not exceed the total effective period of imprisonment that could have been imposed in respect of these offences if the Magistrates’ Court had imposed a separate sentence of imprisonment on each of them. See section 9 of the Sentencing Act 1991 (Vic).

148 Sentencing Act 1991 (Vic) s 113-113A.149 Sentencing Act 1991 (Vic) s 113B.150 Sentencing Act 1991 (Vic) s 9(2).151 Hansford v His Honour Judge Neesham [1995] 2 VR 233, 236-7. See also discussion in Fox and Frieberg,

above n 11, 239-40.

6. Sentencing Outcomes

Sentencing O

utcomes


Figure 9: The number of sentences imposed against selected charges by court jurisdiction, 2000-01 to 2004-05

776 35 66 7,6806

14 56 12 0

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Loitering with intent Being disguisedwith unlawful intent

Possess HouseBreaking implements

Going equipped tosteal

Armed withcrim. intent

Per

cent

age

Magistrates' Court Higher court

Figure 9 illustrates that the majority of preparatory offences dealt with between 2000-01 and 2004-05 were heard in the Magistrates’ Court. A total of 8563 charges for preparatory offences were dealt with in the Magistrate’s Court during the relevant period. As Figure 9 shows, the most common offence charged was ‘going equipped to steal’.

Table 1: The number of offenders dealt with in relation to preparatory offences by the total number of charges in each case, Magistrates’ Court, 2000-01 to 2004-05.

Number of charges Loiter with

intent

Being disguised

with unlawful

intent

Possess house

breaking

implements

Going equipped

to steal

Armed with

criminal intent

1 5 0 1 41 0

2 69 0 2 662 0

3 68 2 3 793 0

4 47 7 2 606 0

5 47 5 4 465 1

6-10 155 9 15 1,364 3

11-20 162 6 18 1,040 1

21-50 91 4 18 540 1

51-100 16 0 2 82 0

100+ 1 1 1 19 0

Number of persons 661 34 66 5,612 6

Table 1 shows that the majority of offenders charged with preparatory offences in the Magistrates’ Court were also charged with a number of other offences at the same time. These offences were not limited to other preparatory offences. Preparatory offences are most commonly charged alongside burglaries and thefts. Anecdotal evidence suggests that these offences are often drug related.152

152 See Appendix 3 for breakdown of offenders charged with preparatory offences in the Magistrates’ Court by age and gender.

Sentencing O

utcomes


Table 2: The number of preparatory offences where a sentence was imposed in the Magistrates’ Court of Victoria by offence type and sentence type, 2000-01 to 2004-05

Loiter with

intent

Being

disguised with

unlawful intent

Possess house

breaking

implements

Going

equipped to

steal

Armed with

criminal intent

Total

Sentence type No. % No. % No. % No. % No. % No. %

Imprisonment 285 36.7 10 28.6 30 45.5 2,298 29.9 1 16.7 2,624 30.6

Partially

suspended

sentence

32 4.1 1 2.9 3 4.5 260 3.4 0 - 296 3.5

Combined

custody

treatment

order

31 4.0 1 2.9 2 3.0 152 2.0 0 - 186 2.2

Intensive

correction

order

47 6.1 4 11.4 4 6.1 431 5.6 0 - 486 5.7

Wholly

suspended

sentence

93 12.0 3 8.6 7 10.6 958 12.5 0 - 1,061 12.4

Youth training

centre order

38 4.9 1 2.9 1 1.5 316 4.1 0 - 356 4.2

Adjournment

subject to an

undertaking

28 3.6 3 8.6 2 3.0 551 7.2 0 - 584 6.8

Community

based order

138 17.8 7 20.0 15 22.7 1,779 23.2 5 83.3 1,944 22.7

Fined (with

or without

conviction)

67 8.6 4 11.4 2 3.0 875 11.4 0 - 948 11.1

Drug treatment

order

10 1.3 1 2.9 0 - 41 0.5 0 - 52 0.6

Convicted and

discharged

7 0.9 0 - 0 - 19 0.2 0 - 26 0.3

Total 776 100.0 35 100.0 66 100.0 7,680 100.0 6 100.0 8,563 100.0

There were 2,624 (30.6%) charges dealt with in the Magistrates’ Court that received a term of immediate imprisonment.

The most common disposition for each of the preparatory offences dealt with in the Magistrates’ Court was imprisonment, with the exception of ‘being armed with criminal intent’. 29.9% of the charges of ‘going equipped to steal’, 36.7% of the charges of ‘loitering with intent to commit an indictable offence’, 28.6% of the charges of ‘being disguised with unlawful intent’ and 45.5% of the charges of ‘possessing housebreaking implements’ attracted a sentence of imprisonment.

The majority of the charges (83.3%) of ‘being armed with criminal intent’ recevied a Community Based Order. The one charge in relation to this offence that attracted a term of imprisonment in the Magistrates’ Court received a sentence of imprisonment for a period of one year.

Sentencing O

utcomes


Figure 10: The number of charges that received a period of imprisonment for going equipped to steal by length of imprisonment term, Magistrates Court, 2000-01 to 2004-05.

179

325

183

315

175

45

255

21 3045

222

443

9057 59 51

1 00

50

100

150

200

250

300

350

400

450

500

<1 1 2 3 4 5 6 7 8 9 10 11 12-17

18-23

24-29

30-35

36-41

42-47

48+

Imprisonment length (months)

Num

ber

The maximum penalty for ‘going equipped to steal’ is two years’ imprisonment. As Figure 10 shows, of the 2,298 charges in relation to this offence dealt with in the Magistrates’ Court and attracting a sentence of imprisonment, a term of imprisonment of three months or less was imposed on 43.6% of the charges. A term of between three months and six months was imposed in relation to a further 20.7% of the charges.

Figure 11: The number of charges that received a period of imprisonment for ‘loitering with intent to commit an indictable offence’ by length of imprisonment term, Magistrates Court, 2000-01 to 2004-05

36

58

32

41

21

3

30

0 13

0 0

37

12

6

0

5

0 00

10

20

30

40

50

60

70

<1 1 2 3 4 5 6 7 8 9 10 11 12-17

18-23

24-29

30-35

36-41

42-47

48+


Num

ber

The maximum penalty for ‘loitering with intent to commit a criminal offence’ is two years’ imprisonment. Figure 11 shows that, of the 285 charges that attracted sentences of imprisonment, 58.6% of these involved sentences of imprisonment of three months or less. A further 18.9% attracted a term of imprisonment of between three and six months.

Sentencing O

utcomes


Figure 12: The number of charges that received a period of imprisonment for being disguised with unlawful intent by length of imprisonment term, Magistrates Court, 2000-01 to 2004-05

1

2

1

0

2

0

2

0 0 0 0 0 0

2

0 0 0 0 00

1

1

2

2

3

<1 1 2 3 4 5 6 7 8 9 10 11 12-17

18-23

24-29

30-35

36-41

42-47

48+


Num

ber

The maximum penalty for ‘being disguised with unlawful intent’ is two years’ imprisonment. Figure 12 shows that 80% of those charges that resulted in a sentence of imprisonment were gaol terms of six months or less.

Figure 13: The number of charges that received a period of imprisonment for ‘possess house breaking implements’ by length of imprisonment term, Magistrates Court, 2000-01 to 2004-05

1

2

3 3

2

0

4

0 0

1 1

0

9

2

1

0

1

0 00

1

2

3

4

5

6

7

8

9

10

<1 1 2 3 4 5 6 7 8 9 10 11 12-17

18-23

24-29

30-35

36-41

42-47

48+


Num

ber

The maximum penalty for ‘possess housebreaking implements’ is two years’ imprisonment. Figure 13 illustrates that of the 30 charges that attracted sentences of imprisonment, 30% involved sentences of three months or less. A further 20% received a term of imprisonment for between three and six months.

Figures 10 to 13 all illustrate that the sentences of imprisonment imposed in relation to these offences are generally significantly less than the maximum penalties available for those offences. This would suggest that the current penalties are sufficient to deal with the offences currently coming before the Magistrates’ Court.

Sentencing O

utcomes


6.3 Higher Courts153

The Victorian higher courts heard a total of 73 charges for preparatory offences during the period 2000-01 to 2004-05. There were 56 counts of ‘going equipped to steal’, 14 charges of ‘loitering with intent to commit an indictable offence’, two charges of ‘being disguised with unlawful intent’ and one charge of ‘armed with criminal intent’.

A sentence of imprisonment was imposed on 48% of the counts of ‘going equipped to steal’ with 82.8% of these being for a term of three months or less. 12 of the 14 charges for ‘loitering with intent’ received a sentence of imprisonment, all of these being a term of imprisonment of four months or less. One of the two charges of ‘being disguised with unlawful intent’ attracted a sentence of six months imprisonment.

Most of the preparatory offences which were dealt with in the County Court during the period 2000-01 to 2004-05 were determined at the same time as more serious offences such as thefts, robberies, burglaries and the aggravated forms of these offences. For example, in the matter of Morson,154 the offender was sentenced for a number of burglaries and thefts (amongst other related offences) and two charges of loitering with intent to commit an indictable offence. He had broken into a number of houses in the same area on one day. In relation to two houses, the offender approached the front of the premises and knocked on the front door. When the occupants of these houses turned on exterior lights, the offender left the premises. This conduct was the basis of the two charges of loitering with intent to commit an indictable offence.155

6.4 Sentence comparison

Preparatory offences criminalise conduct which is designed to facilitate the commission of further, more serious offending, such as armed robbery. The maximum penalty for armed robbery is 25 years’ imprisonment.156 The average sentence imposed for armed robbery in the higher courts ranged from two years and six months in 2003-04 to three years in 2002-03 and 2004-05.157

153 See Appendix 2 for all preparatory offences dealt with in the Higher Courts during the period 2000-01 to 2004-5.

154 (Unreported, County Court of Victoria, Shelton J, 29 January 2003)155 Summary offences can be dealt with in the higher courts if the accused indicates a willingness to plead guilty

to the offences. See s 359AA of the Crimes Act 1958 (Vic).156 Crimes Act 1958 (Vic) s 75A.157 Sentencing Advisory Council, Sentencing Snapshot – Sentencing trends for armed robbery in the higher

courts of Victoria, No. 9 (2006) 4.

Sentencing O

utcomes


Figure 14: The range of imprisonment lengths imposed for selected charges, Magistrates’ Court and higher courts, 2000-01 to 2004-05

Maximum statutory penalty for other

preparatory offences

Maximum statutory penalty for armed w ith criminal intent

0

2

4

6

8

10

12

M C(n = 285)

HC(n = 12)

M C(n = 30)

HC(n = 0)

M C(n =

2,298)

HC(n = 35)

M C(n = 1)

HC(n = 0)

M C(n = 0)

HC(n = 360)

M C(n = 0)

HC(n =

1,759)

lo iter with intent possess housebreaking

implements

go equipped tosteal

armed withcriminal intent

attempted armedrobbery

armed robbery

preparatoryoffences

attemptedoffences

completedoffences

Yea

rs

minimum

25th percentile

50th percentile (median)

average

75th percentile

maximum

Legend

Figure 14 shows that the average sentences for armed robbery and attempted armed robbery fall well below the maximum penalty for ‘armed with criminal intent’, the most serious of the preparatory offences.158

158 The offence of ‘being disguised with criminal intent’ was not included in this graph.

Are the M

aximum

Penalties S

ufficient?


7.1 Introduction

The maximum penalty places a known and legally defined limit on judicial discretion in imposing punishment for an offence. This should be high enough to enable a sentencer to deal adequately with the worst type of case falling within the prohibition, but not so high as to provide no guidance at all to the sentencer as to its relative seriousness.159

7.2 Principle of Legality

Current sentencing practices show that the majority of preparatory offences are dealt with in the Magistrates’ Court. A total of 8636 charges were heard over the period 2000-01 to 2004-05. Of these, 99.1% of charges were heard in the Magistrates’ Court. Sentences of imprisonment were imposed on 30.6% of these charges. Of those charges that resulted in a term of imprisonment, 20.5% were sentences of between three and six months and 45.1% were prison terms of less than three months.

Only 73 preparatory offences were heard in the higher courts. Fifty of these attracted sentences of imprisonment, all of which were for a period of less than six months. The majority of sentences were for a period of less than three months.

Having considered the length of sentences currently being handed down for these offences, it would appear that the current maximum penalties are sufficient to deal adequately with the range of cases coming before the courts. Furthermore, as the majority of these cases are determined in the Magistrates’ Court, it would be artificial to increase the maximum penalty beyond that court’s jurisdictional limit, particularly in relation to summary offences.

7.3 Offence Seriousness

Preparatory offences cover a wide range of offending behaviour, from the relatively minor to the significantly more serious. The offence of ‘being armed with intent’ is the most serious of the preparatory offences and thus attracts the highest maximum penalty. However, even the more serious examples of ‘being armed with criminal intent’ involve behaviour that remains merely preparatory and therefore at some distance from the commission of the completed offence. All the preparatory offences also only require a generalised intention to engage in criminal behaviour rather than the specific intent which must be established for offences such as conspiracy, attempt and the completed offences.

As preparatory offences are much lower on the scale of offending behaviour relative to the offences of conspiracy, attempt and the relevant completed offences it is appropriate that their maximum penalties are significantly lower. This approach has been generally followed in jurisdictions around Australia.

Furthermore, when current sentencing practices for offences higher on the scale of offending are considered, it becomes apparent that there is little justification for increasing the maximum penalties for preparatory offences.

The Council is of the view that the current maximum penalties for preparatory offences are at a level commensurate to their seriousness relative to other offending behaviour.

159 Freiberg (2002), above n 11, 55.

7. Are the Maximum Penalties Sufficient?

Are the M

aximum

Penalties S

ufficient?


The Council also considers that, as a general rule, maximum penalties should not differentiate between first time and repeat offenders. There may be certain offences which are considered an exception that rule, but the Council does not consider that there is anything unusual in relation to this type of offending that warrants the imposition of a graduated penalty scheme. The Council is persuaded that the current maximum penalties for preparatory offences allow the courts to deal adequately with all relevant offenders, including recidivists.

The New South Wales model of a further offence for repeat offenders was considered by the Council. The offence of ‘being [a] convicted offender armed with intent to commit indictable offence’ is rarely used in New South Wales and is accompanied by particular procedural difficulties. The Council has concluded that there is no justification for the introduction of such an offence in Victoria.

7.4 Deterrence

The ability of a statutory maximum to achieve deterrence is limited to the extent that it is

not known how many potential offenders are accurately aware of the statutory maximum, or are in a position to draw a distinction between it and the level of penalties being imposed by the courts, but in publicity given by government to the consequences of non compliance with the law the maximum statutory penalty is always given prominence as the deterrent.160

It has been argued that some offenders who engage in behaviour which is criminalised by preparatory offences do so with the intention of committing a more serious offence, such as armed robbery. This may indeed be the case. It is then argued that a maximum penalty at or close to the level provided for armed robbery is necessary to deter such offenders. However, as these offenders are arguably undeterred by the maximum penalty of 25 years imprisonment that already applies to armed robbery this line of reasoning would appear to be flawed.

Furthermore, there is no evidence that increasing the maximum penalty for repeat offenders of this type would have any effect on reducing recidivism.161

7.5 Conclusion

The Council believes that the current maximum penalties for preparatory offences adequately serve their intended functions. They provide sufficient scope for sentencing courts to accommodate the worst types of cases falling within their ambit and provide an accurate guide as to where these offences fall in the hierarchy of offending. To the limited extent that a maximum penalty functions as a deterrent, the current maximums are sufficient to constitute a realistic deterrent.

The Council acknowledges that particular problems have been experienced by Victoria Police in relation to a small group of offenders who engage in behaviour preparatory to high-level serious armed robberies. Their conduct is well planned and involves the use of firearms. The Council supports the efforts of Victoria Police to police pro-actively and safely. However, it does not agree that increasing the maximum penalties for existing offences is the solution, if there is perceived to be a ‘gap’ in the criminal offences which may apply. If there is thought to be a ‘gap’, then it may be that the law in relation to inchoate offences should be examined. This task is beyond the Council’s terms of reference.

160 Freiberg (2002), above n 11, 55.161 Ibid 124.

Are the M

aximum

Penalties S

ufficient?


The Council notes that the offence of ‘being armed with criminal intent’ has not been used frequently over the last five years, possibly because it was previously a summary offence. Since September 2005, it has become an indictable offence, so it may now offer a more attractive alternative to a charge of attempt. Further there may be other offences which prosecuting authorities could consider for the particular group of high-level offenders identified as a problem by Victoria Police. For example, offences under the Firearms Act 1996 (Vic) criminalise conduct in relation to the possession, carriage or use of registered and unregistered firearms. If an offender is in possession of a registered firearm, depending on the type of firearm used, the offender is liable for a maximum penalty of between two and seven years.162

If the offender is a ‘prohibited person’ under the Firearms Act 1996 (Vic), the offender is liable to a penalty of either 10 to 15 years depending on whether or not the firearm is registered or unregistered.163 ‘Prohibited person’ has a wide definition and includes anyone who was convicted of an indictable offence, an assault or an offence under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and:

has served a term of imprisonment of more than 5 years in the last 15 years; or

has served a term of imprisonment of less than 5 years in the last 5 years.164

These offences provide for maximum penalties which are higher than preparatory offences, but lower than the maximum penalty for attempted armed robbery. It may be that greater use could be made of these offences to address offending which is preparatory to high-level serious armed robberies or aggravated burglaries, where firearms are involved.

162 Firearms Act 1996 s 6.163 Firearms Act 1996 s 5. 164 Firearms Act 1996 s 3. ‘Prohibited person’ also includes a person who is subject to an intervention order

under section 4 of the Crimes (Family Violence) Act 1987 or an order of a corresponding nature made in another State or Territory; or a Community Based Order which includes a condition referred to in section 38(1)(b) of the Sentencing Act 1991 (Vic); or a supervision order under section 26 of the Crimes (Mental Impairment and Unfitness to be tried) Act 1997 or, a person, in relation to whom, not more than five years have expired since the person was subject to that order; or a person, in relation to whom, not more than 12 months have expired since that person was found guilty by a court of an offence against this Act, in which it was open to the court to impose a term of imprisonment; or an offence against any other Act, involving the possession or use of firearms and in relation to which it was open to the court to impose a term of imprisonment.

•

•

Recom

mendations


1. The Council recommends that the current maximum penalties for existing preparatory offences in Victoria, namely

being armed with criminal intent;

loitering with intent to commit an indictable offence;

being disguised with unlawful intent;

possessing house-breaking implements;

going equipped to steal

are the appropriate maximum penalties for these offences.

2. The Council recommends against creating a higher maximum penalty for repeat offenders charged with the existing preparatory offences.

3. After examining the approach taken in other Australian jurisdictions, including section 115 of the Crimes Act 1900 (NSW), the Council recommends against increasing the maximum penalty so as to allow a higher penalty to be imposed in the case of repeat offenders.

•

•

•

•

•

Recommendations

Bibliography


1. Articles/Books/Reports

ABC Television, ‘More police needed to stop gangland killings’, Stateline Victoria, 2 February 2004, http://wwwabc.net.au/stateline/vic/content/2003/s1080114.htm at 27 July 2006.

Bronitt, Simon and McSherry, Bernadette, Principles of Criminal Law (2nd ed, 2005)

Fox, Richard and Freiberg, Arie, Sentencing; State and Federal Law in Victoria (2nd ed, 1999)

Freiberg, Arie, Pathways to Justice: Sentencing Review 2002 (2002)

New South Wales Law Reform Commission, Sentencing, Discussion Paper No. 33 (1996)

New South Wales Law Reform Commission, Sentencing, Report No. 79 (1996)

Roberts, Julian, ‘Reducing the Use of Incarceration: Recent International Experiences’ (Paper presented at the Association of Law Reform Agencies of Eastern and Southern Africa, Capetown, March 16 2005)

Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of Vagrancy Act 1966: Discussion Paper (2002)

Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of Vagrancy Act 1966: Final Report (2002)

Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Alert Digest, No.9 (2005)

Sentencing Advisory Council, Maximum Penalties for Repeat Drink Driving (2005)

Sentencing Advisory Council, Sentencing Snapshot – Sentencing Trends for Armed Robbery in the higher courts of Victoria, No. 9 (2006)

Sentencing Advisory Panel (UK), Consultation Paper on Theft from Shop (2006)

Sentencing Task Force, Victoria, Review of Statutory Maximum Penalties in Victoria: Report to the Attorney-General (written by Richard Fox and Arie Freiberg for the Sentencing Task Force, Victoria) (1989)

Victoria Police (Armed Offenders Squad), Preparatory Offences Legislation, Briefing Paper (2005)

Victorian Law Reform Commission, Summary Offences Act 1966 and Vagrancy Act 1966: A Review, Discussion Paper No. 26 (1992)

Von Hirsch, Andrew, ‘Commensurability and Crime Prevention: Evaluating Formal Sentencing Structures and Their Rationale’ (1983) Journal of Criminal Law and Criminology 209.

Von Hirsch, Andrew, Censure and Sanctions (1993)

Von Hirsch, Andrew and Ashworth, Andrew, Proportionate Sentencing: Exploring the Principles (2005)

Bibliography

http://www.abc.net.au/stateline/vic/content/2003/s1080114.htm

Bibliography


2. Case Law

Ahern v The Queen (1988) 165 CLR 87

Britten v Alpogut [1987] VR 929

Canino v Samuels [1968] SASR 303

Ex parte King; Re Blackley (1938) 38 SR (NSW) 483

Giorgianni v R (1985) 156 CLR 473

Hansford v His Honour Judge Neesham [1995] 2 VR 233

Harrison v Hegarty [1975] VR 362, 366-7

Knight v The Queen Knight v The Queen (1992) 175 CLR 495

Miller v Hrvojevic [1972] VR 305

Milne v Mutch [1927] VLR 190

Milne v O’Neill (Unreported, Supreme Court of Victoria, Court of Appeal, Tadgell, Ormiston and Phillips

JA, 12 September 1996)

R v Allingham and Bandy [1954] NZLR 1223

R v Beary (Unreported, County Court of Victoria, Davey J, 23 May 2003)

R v Bortoli (Unreported, County Court of Victoria, White J, 14 July 2005)

R v Doan (Unreported, County Court of Victoria, Wodak J, 7 May 2003)

R v Farrar (1983) 78 FLR 10

R v Gullefer [1990] 1 WLR 1063

R v Jones [1990] 1 WLR 1057

R v McCaul and Palmer [1983] 2 VR 419

R v Moran and Mokbel [1999] 2 VR 87

R v Morson, (Unreported, County Court of Victoria, Shelton J, 29 January 2003)

R v Oldham (1852) 169 ER 587

R v Orton [1922] VLR 469

R v Ryan (2001) 206 CLR 267

R v Stewart (1932) 96 JP Jo 137

R v Susak [1999] NTSC 61 (Unreported, Riley J, 9 June 1999)

R v Tillott (1991) 53 A Crim R 46

R v Wilson & Flanders [1969] SASR 218

R v Yates (1963) 80 WN (NSW) 744

Rowe v Conti [1958] VR 547

Olholm v Eagles [1914] VLR 379.

Samuels v Stokes (1973) 130 CLR 503

Veen v R (No. 2) (1988) 164 CLR 465, 477.

Wynne v Lockyer [1978] VR 279

Bibliography


3. Legislation

Control of Weapons Act 1990 (Vic)

Crimes Act 1900 (NSW)

Crimes Act 1958 (Vic)

Criminal Code Act 1899 (Qld)

Criminal Code 2002 (ACT)

Criminal Code 1983 (NT)

Criminal Code 1913 (WA)

Criminal Code 1924 (Tas)

Criminal Law Consolidation Act 1935 (SA)

Criminal Procedure Act 1986 (NSW)

Firearms Act 1996 (Vic)

Magistrates’ Court Act 1989 (Vic)

Sentencing Act 1991 (Vic)

Summary Offences Act 1966 (Vic)

Vagrancy Act 1966 (Vic) (repealed)

Appendix 1

Preparatory Offences Report 47

Loitering

with intent

Being

disguised

with

unlawful

intent

Possess

house

breaking

implem

ents

Going

equipped

to steal

Arm

ed with

criminal

Intent

Attem

pted

Theft

Attem

pted

Burglary

Attem

pted

Robbery

Attem

pted

Aggravated

Burglary

Attem

pted

Arm

ed

Robbery

Theft

Burglary

Robbery

Aggravated

Burglary

Arm

ed

Robbery

AC

T3 years,

300 penalty

units or

both1

5 years,

500 penalty

units or

both2

10 years,

1000

penalty

units or

both3

14 years,

1400

penalty

units or

both3

14 years,

1400

penalty

units or

both3

20 years,

2000

penalty

units or

both3

25 years,

2500

penalty

units or

both3

10 years,

1000

penalty

units or

both4

14 years,

1400

penalty

units or

both5

14 years,

1400

penalty

units or

both6

20 years

, 2000

penalty

units or

both7

25 years,

2500

penalty

units or

both8

NS

W7 years

9 or

10 years10

7 years9 or

10 years10

7 years9 or

10 years10

7 years9 or

10 years10

7 years9 or

10 years10

10 years11

14 years11

14 years11

20 years11

or 25

years11

20 years11

or 25

years11

10 years12

14 years13

14 years14

20 years15

or 25

years16

20 years17

or 25

years18

NT

7 years19

3.5 years20

0.5 – 5

years20

7 years21

7 years21

7 years21

7 years22

1-10

years23

14 years24

20 years25

or Life26

Life27

QL

D10 years 28

3 years29 or

7 years 30

3 years29 or

7 years30

3 years29 or

7 years30

2.5 years31

7 years32

7 years32

7 years32

14 years33

5 years34

Life, 35 14

years36

14 years37

Life38

Life39

SA

7 years40

or half

maxim

um

penalty for

intended

offence41

7 years40

or half

maxim

um

penalty for

intended

offence41

7 years40

or half

maxim

um

penalty for

intended

offence41

7 years40

or half

maxim

um

penalty for

intended

offence41

Two-thirds

of the max.

penalty for

intended

offence42

Two-thirds

of the max.

penalty for

intended

offence42

Two-thirds

of the max.

penalty for

intended

offence42

12 years43

of the

two-thirds

of max.

penalty for

intended

offence42

12 years43

10 years44

10 years45

or 15

years46

15 years47

20 years48

or Life49

Life50

TAS

21 years51

21 years51

21 years51

21 years51

21 years51

21 years51

21 years52

21 years52

21 years52

21 years52

21 years53

21 years54

21 years55

21 years56

21 years57

VIC

2 years58

2 years59

2 years60

2 years61

5 years62

5 years63

5 years63

10 years63

20 years63

20 years63

10 years64

10 years65

15 years66

25 years67

25 years68

WA

3 years69

3 years69

3 years69

3 years69

3.5 years70

7 years70

7 years70

10 years70

14 years71

7 years72

14 years73

14 years74

20 years75

Life76

Appendix 1 – Maximum Penalties for preparatory offences, attempts and completed offences around Australia.

48 Preparatory Offences Report

Appendix 1

1 Criminal Code 2002 (ACT) s 315(1). The offence title is ‘Going equipped for theft’.2 Criminal Code 2002 (ACT) s 316(1). The offence title is ‘Going equipped with offensive

weapon for theft’.3 Criminal Code 2002 (ACT) s 44(9). The offence of attempting to commit an offence is the

same as the penalty for the completed offence.4 Criminal Code 2002 (ACT) s 308.5 Criminal Code 2002 (ACT) s 311(1).6 Criminal Code 2002 (ACT) s 309.7 Criminal Code 2002 (ACT) s 312.8 Criminal Code 2002 (ACT) s 310. The offence title is ‘Aggravated Robbery’. 9 Crimes Act 1900 (NSW) s 114. The offence title is ‘Being armed with intent to commit an

indictable offence’.10 Crimes Act 1900 (NSW) s 115. Offenders previously convicted of an indictable offence are

liable to a maximum penalty of 10 years imprisonment if they commit an offence under s 114.11 Crimes Act 1900 (NSW) s 344A. The offence of attempting to commit an offence is the same

as the penalty for the completed offence.12 Crimes Act 1900 (NSW) s 117. The offence title is ‘Larceny’.13 Crimes Act 1900 (NSW) s 109.14 Crimes Act 1900 (NSW) s 97.15 Crimes Act 1900 (NSW) s 109. The offence title is ‘Breaking out of a dwelling-house after

committing, or entering with intent to commit an indictable offence’. Where the offender is armed with an ‘offensive weapon’, the penalty is 20 years. See Crimes Act 1900 (NSW) s 4 where ‘offensive weapon’ is defined as any thing made or adapted for offensive purposes or anything 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 capable of causing harm.

16 Crimes Act 1900 (NSW) s 109. Where the weapon is a ‘dangerous weapon’, penalty is 25 years. Where the weapon is a ‘dangerous weapon’, penalty is 25 years. See Crimes Act 1900 (NSW) s 4 where ‘dangerous weapon’ is defined as a firearm (with reference to the Firearms Act 1996 (NSW)), a prohibited weapon (with reference to the Weapons Prohibition Act 1998 (NSW)) or a spear gun.

17 Crimes Act 1900 (NSW) s 97. Where the offender is armed with an ‘offensive weapon’, penalty is 20 years. See Crimes Act 1900 (NSW) s 4 where ‘offensive weapon’ is defined as any thing made or adapted for offensive purposes or anything 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 capable of causing harm.

18 Crimes Act 1900 (NSW) s 97. Where the weapon is a ‘dangerous weapon’, penalty is 25 years. See Crimes Act 1900 (NSW) s 4 where ‘dangerous weapon’ is defined as a firearm (with reference to the Firearms Act 1996 (NSW)), a prohibited weapon (with reference to the Weapons Prohibition Act 1998 (NSW)) or a spear gun.

19 Criminal Code 1983 (NT) s 215. The offence title is ‘Persons found armed with intent to unlawfully enter buildings.’

20 Criminal Code 1983 (NT) s 278(2) If the maximum penalty for the completed offence is < 14 years, penalty is equal to one-half of the greatest punishment for the completed offence.

21 Criminal Code 1983 (NT) s 278(1) If the maximum penalty for the completed offence is life imprisonment or >14 years imprisonment, the penalty for an attempt is 7 years.

22 Criminal Code 1983 (NT) s 210. Penalty for theft is 7 years, however there are certain circumstances in which a theft may be committed which will increase the maximum penalty to 14 years.

23 Criminal Code 1983 (NT) s 213. If offender enters with intent to commit a simple offence, penalty is 1 year; if the building is a dwelling house, penalty is 2 years: s 213(2). If offender enters with intent to commit a crime which is punishable < 3 years imprisonment, penalty is 3 years; if the building is a dwelling house, penalty is 5 years; if premises occupied at the time,

Appendix 1


penalty is 7 years: s 213(3). If the offender enters the building with intent to commit any other offence, penalty is 7 years; if the building is a dwelling house, penalty is 10 years: s 213(4). If any of these offences are committed at night, the penalty is doubled: s 213(5).

24 Criminal Code 1983 (NT) s 211(1).25 Criminal Code 1983 (NT) s 213(6). The offence title is ‘Unlawful entry of buildings’. If the

offender is armed with a firearm or other dangerous or offensive weapon, the penalty is 20 years.

26 Criminal Code 1983 (NT) s 213(6). The offence title is ‘Unlawful entry of buildings’. If the building entered is a dwelling house, the penalty is Life.

27 Criminal Code 1983 (NT) s 211(2).28 Criminal Code 1899 (QLD) s 421. This section is applicable where the offender is found in the

premises.29 Criminal Code Act 1899 (QLD) s 425(1). The offence title is ‘Possession of things used in

connection with unlawful entry’.30 Criminal Code Act 1899 (QLD) s 425(2). Offenders previously convicted of a crime relating to

property are liable to a maximum penalty of 7 years’ imprisonment if they commit an offence under this section.

31 Criminal Code Act 1899 (QLD) s 536(2). If the maximum penalty for the completed offence is < 14 years, the penalty for an attempt is half the penalty for the completed offence.

32 Criminal Code Act 1899 (QLD) s 536(1) If the maximum penalty for the completed offence is life imprisonment or >14 years imprisonment, the penalty for an attempt is 7 years.

33 Criminal Code Act 1899 (QLD) s 412(2).34 Criminal Code Act 1899 (QLD) s 398. Penalty for theft is 7 years, however there are certain

circumstances in which a theft may be committed which will increase the maximum penalty to 14 years.

35 Criminal Code Act 1899 (QLD) s 419(2). Where an offender enters a dwelling by means of any break, the penalty is life.

36 Criminal Code Act 1899 (QLD) s 419(1).37 Criminal Code Act 1899 (QLD) s 411(1).38 Criminal Code Act 1899 (QLD) s 419(3).39 Criminal Code Act 1899 (QLD) s 411(2).40 Criminal Law Consolidation Act 1935 (SA) 270C(1)(a). The offence title is ‘ Going equipped

for commission of dishonesty or offence against property’. If the maximum penalty for the intended offence is life imprisonment or >14 years imprisonment, the penalty is 7 years.

41 Criminal Law Consolidation Act 1935 (SA) 270C(1)(b). If the maximum penalty for the intended offence is < 14 years imprisonment, the penalty is half the penalty for the intended offence.

42 Criminal Law Consolidation Act 1935 (SA) s 270A (3)(c). If the maximum penalty for the completed offence is less than life imprisonment, the penalty for an attempt is two-thirds of the maximum penalty for the completed offence.

43 Criminal Law Consolidation Act 1935 (SA) s 270A (3)(b) If the maximum penalty for the completed offence is life imprisonment, the penalty for an attempt is 12 years.

44 Criminal Law Consolidation Act 1935 (SA) s 134(1).45 Criminal Law Consolidation Act 1935 (SA) s 169(1). The offence title is ‘Serious criminal

trespass’. This section relates to non-residential buildings.46 Criminal Law Consolidation Act 1935 (SA) s 170(1). The offence title is ‘Serious criminal

trespass’. This section relates to places of residence.47 Criminal Law Consolidation Act 1935 (SA) s 137(1)(a). 48 Criminal Law Consolidation Act 1935 (SA) s 169(2). This section relates to non-residential

buildings.49 Criminal Law Consolidation Act 1935 (SA) s 170(2). This section relates to places of

residence.


Appendix 1

50 Criminal Law Consolidation Act 1935 (SA) s 137(1)(b). The offence title is ‘Aggravated Robbery’.

51 Criminal Code 1924 (Tas) s 389. The offence of ‘Being found prepared for the commission of a crime’ is found at s 248 of the Criminal Code 1924 (Tas).

52 Criminal Code 1924 (Tas) s 389. The offence of attempt is found at s 299 of the Criminal Code 1924 (Tas).

53 Criminal Code 1924 (Tas) s 389. The offence of ‘Theft’ is found at s 234 of the Criminal Code 1924 (Tas).

54 Criminal Code 1924 (Tas) s 389. The offence of ‘Burglary’ is found at s 244 of the Criminal Code 1924 (Tas).

55 Criminal Code 1924 (Tas) s 389. The offence of ‘Robbery’ is found at s 240(1) of the Criminal Code 1924 (Tas).

56 Criminal Code 1924 (Tas) s 389. The offence of ‘Aggravated Burglary’ is found at section 245 of the Criminal Code 1924 (Tas).

57 Criminal Code 1924 (Tas) s 389. The offence of ‘Armed Robbery’ is found at s 240(3) of the Criminal Code 1924 (Tas).

58 Summary Offences Act 1966 (Vic) s 49B.59 Summary Offences Act 1966 (Vic) s49C.60 Summary Offences Act 1966 (Vic) s49D.61 Crimes Act 1958 (Vic) s 91.62 Crimes Act 1958 (Vic) s 31B.63 Crimes Act 1958 (Vic) s 321P(1)(a)64 Crimes Act 1958 (Vic) s74(1).65 Crimes Act 1958 (Vic) s76(3).66 Crimes Act 1958 (Vic) s75(2).67 Crimes Act 1958 (Vic) s 77(2).68 Crimes Act 1958 (Vic) s 75A(2).69 Criminal Code 1913 (WA) s 407. The offence title is ‘Person found armed etc with intent to

commit a crime’.70 Criminal Code 1913 (WA) s 552(2)(b) (WA). If the penalty for the completed offence is less

than life imprisonment, the penalty for an attempt is half the penalty of the completed offence.71 Criminal Code 1913 (WA) s 552(2)(a) If the penalty for the attempted offence is life, the

penalty for the attempt is 14 years.72 Criminal Code 1913 (WA) s 378. There are special cases in which the penalty may increase.73 Criminal Code 1913 (WA) s 401(1)(c)74 Criminal Code 1913 (WA) s 392(e).75 Criminal Code 1913 (WA) s 401(1)(a) 76 Criminal Code 1913 (WA) s 392(c).

Appendix 2


Tab

le 3: T

he n

um

ber o

f charg

es wh

ere a senten

ce was im

po

sed in

the M

agistrates C

ou

rt of V

ictoria b

y offen

ce type an

d sen

tence typ

e, 2000-01 to 2004-05

Offence degree

Preparatory O

ffencesA

ttempts

Com

pleted Offences

Offence description

Loitering with intent

Being disguised with

unlawful intent

Possess House Breaking

implements

Going equipped to steal

Armed with crim.intent

Att. Theft

Att. Burglary

Att. Robbery

Att. Agg. Burglary

Att. Armed Robbery

Theft

Burglary

Robbery

Agg. Burglary

Armed Robbery

LegislationV

agrancy Act (1966)

CA

*V

A*

Crim

es Act (1958)

Crim

es Act (1958)

Section

s 7 (1)(f)s 7

(1)(h)

s 7

(1)(g)s 91

s 8 (a)s 321P

(1)(a)

s 321P

(1)(a)

s 321P

(1)(a)

s 321P

(1)(a)

s 321P

(1)(a)s 74

s 76s 75

s 77s 75A

Imprisonm

ent285

1030

2,2981

243314

2016

021,017

7,029163

2960

Partially suspended sentence

321

3260

043

343

10

3,102953

2434

0

Com

bined custody treatment order

311

2152

033

211

00

1,628683

2541

0

Intensive Correction O

rder47

44

4310

3440

21

05,863

1,48842

290

Wholly suspended sentence

933

7958

0117

939

10

11,8512,427

5697

0

Youth training centre order

381

1316

078

348

30

2,989885

5076

2

Adjournm

ent subject to an undertaking28

32

5510

7827

30

09,332

70723

140

Com

munity based order

1387

151,779

5350

11829

50

23,4393,961

15797

0

Fined (w

ith or without conviction)

674

2875

0100

290

20

17,393856

2013

0

Drug treatm

ent order10

10

410

173

01

0353

1680

00

Convicted and discharged

70

019

01

20

00

25114

10

0

Total number of charges

77635

667,680

61,094

71575

300

97,21819,171

561697

2

CA

* refers to Crim

es Act (1958) and V

A* refers to V

agrancy Act (1966)

7393.7.1.F includes 7393.7.1.F.II

7393.7.1.H includes 7393.6.1.F

Appendix 2 – Sentence Outcomes in the Victorian Courts for preparatory offences, attempts and completed offences


Appendix 2

Tab

le 4: Th

e nu

mb

er of ch

arges w

here a sen

tence w

as imp

osed

in th

e hig

her co

urts o

f Victo

ria by o

ffence typ

e and

senten

ce type, 2000-01 to

2004-05

Offe

nce

degre

eP

repara

tory O

ffence

sA

ttem

pts

Com

ple

ted O

ffence

s

Offe

nce

descrip

tion

Loitering with intent

Being disguised with

unlawful intent

Possess House

Breaking implements

Going equipped to

steal

Armed with crim.intent

Att. Theft

Att. Burglary

Att. Robbery

Att. Agg. Burglary

Att. Armed Robbery

Theft

Burglary

Robbery

Agg. Burglary

Armed Robbery

Legisla

tion

Vagra

ncy A

ct (1966)

CA

*V

A*

Crim

es A

ct (1958)

Crim

es A

ct (1958)

Sectio

ns 7

(1)(f)

s 7

(1)(h

)

s 7

(1)(g

)s 9

1s 8

(a)

s 321P

(1)(a

)

s 321P

(1)(a

)

s 321P

(1)(a

)

s 321P

(1)(a

)

s 321P

(1)(a

)s 7

4s 7

6s 7

5s 7

7s 7

5A

Impriso

nm

ent

12

10

35

0107

37

36

22

360

3,9

41

1,1

98

329

519

1,7

59

Partia

lly susp

ended se

nte

nce

00

00

02

03

016

232

34

20

67

56

Com

bin

ed cu

stody a

nd tre

atm

ent o

rder

00

00

00

00

012

80

21

27

Inte

nsive

corre

ction o

rder

00

00

02

03

113

125

22

625

61

Wholly su

spended se

nte

nce

00

05

014

15

566

802

11155

250

197

Youth

train

ing ce

ntre

00

05

00

03

175

211

45

15

34

259

Com

munity b

ase

d o

rder

21

07

121

116

10

68

486

94

52

129

203

Youth

atte

ndance

ord

er

00

00

00

00

00

00

00

0

Youth

supervisio

n o

rder

00

00

00

00

00

01

00

0

Fin

e0

00

40

10

11

472

43

85

Adjo

urn

ed u

nderta

king

00

00

04

03

114

40

10

732

16

Convicte

d a

nd d

ischarg

ed

00

00

00

00

00

90

00

0

Unco

nditio

nal d

ismissa

l0

00

00

00

00

04

10

00

Hosp

ital se

curity o

rder

00

00

00

01

12

91

13

10

Custo

dia

l supervisio

n o

rder

00

00

00

00

00

21

01

1

Non cu

stodia

l supervisio

n o

rder

00

00

00

12

01

71

12

1

Oth

er

00

00

00

00

00

20

02

1

No se

nte

nce

impose

d0

00

00

00

00

05

00

00

Tota

l14

20

56

1151

40

73

42

631

5,9

55

1,5

23

491

1,0

73

2,5

96

CA

* refe

rs to C

rime

s Act (1

95

8) a

nd

VA

* refe

rs to V

ag

ran

cy Act (1

96

6)

Appendix 3


Appendix 3 – Age and gender breakdown in relation to offenders charged with preparatory offences 2000-1 to 2004-5.

Figure 15: The number of offenders charged with ‘being armed with criminal intent’ by age and gender, Magistrates’ Court, 2000-01 to 2004-05

0

1

2

3

<20 21-25 26-30 31-35 36-40 41-45 46-50 51-55 56-60 61-65 66-70 71-75 76-80

Age group

Male (n = 5) Female (n = 0)

2

1 1 1

Figure 16: The number of offenders charged with going equipped to steal by age and gender, Magistrates’ Court, 2000-01 to 2004-05

0

200

400

600

800

1000

1200

1400

1600

<20 21-25 26-30 31-35 36-40 41-45 46-50 51-55 56-60 61-65 66-70 71-75 76-80

Age group

Male (n = 4,605) Female (n = 671)

845

61

1,42

3

949

166

131

656

125

380

74

182

5496

23 41 19 14 11 9 7 1 23 3 1

Num

ber

of p

erso

ns


Appendix 3

Figure 17: The number of offenders charged with ‘loitering with intent’ by age and gender, Magistrates’ Court, 2000-01 to 2004-05

67

176

140

78

62

25

8 5 1

20

11 6 3 20

20

40

60

80

100

120

140

160

180

200

<20 21-25 26-30 31-35 36-40 41-45 46-50 51-55 56-60 61-65 66-70 71-75 76-80

Age group


Num

ber

of p

erso

ns

4

13

Figure 18: The number of offenders charged with ‘being disguised with unlawful intent’ by age and gender, Magistrates’ Court, 2000-01 to 2004-05

0

1

2

3

4

5

6

7

8

<20 21-25 26-30 31-35 36-40 41-45 46-50 51-55 56-60 61-65 66-70 71-75 76-80

Age group


5

7

3

6

3

1 11 1 1 1 1

Num

ber

of p

erso

ns

Appendix 3


Figure 19: The number of offenders charged with ‘possess house breaking implements’ by age and gender, Magistrates’ Court, 2000-01 to 2004-05.

0

2

4

6

8

10

12

14

16

18

<20 21-25 26-30 31-35 36-40 41-45 46-50 51-55 56-60 61-65 66-70 71-75 76-80

Age group


8

17

15

9

6

5

1 11

2

Num

ber

of p

erso

ns

Please note that the numbers of offenders in these figures are slightly less than the total number of offenders detailed in Table 1 of section 6 of this report. This is because some of the data collected in relation to individual offenders was incomplete and was missing a date of birth. Those offenders could not be included in these figures.

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