The Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (the Act) commenced on assent on 31 January 2014. (Schedule 5 of the Act, which relates only to the Summary Offences Act 1988 and the Criminal Procedure Regulation 2010, is uncommenced.)
Schedule 1 of the Act inserts new ss 25A and 25B into the Crimes Act 1900. Section 25A creates a basic and aggravated form of the offence of assault causing death. Section 25A(1) sets out the basic form of the offence. It provides a person is guilty of an offence if:
the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and
the assault is not authorised or excused by law, and
the assault causes the death of the other person.
The maximum penalty for the offence is 20 years imprisonment. No standard non-parole period has been assigned for the offence under s 25A(1).
Section 25A(3) provides that an assault (for the purposes of the basic or aggravated offence) causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault. Section 25A(4) further provides it is not necessary for the Crown to prove that the death was reasonably foreseeable.
Section 25A(2) sets out the aggravated form of the s 25A(1) offence. A person aged 18 or above who commits an offence under s 25A(1) whilst he or she is intoxicated commits an offence under s 25A(2).
The maximum penalty for an offence under s 25A(2) is 25 years imprisonment. No standard non-parole period has been assigned for the offence under s 25A(2). Section 25B(1) sets a mandatory minimum for the offence. It provides that a court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under s 25A(2). Section 25A(2) further provides that any non-parole period for the sentence is also required to be not less than 8 years. Section 25B(2) provides “nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period)”.
Schedule 6.2 of the Act amends s 76(a) Crimes (Sentencing Procedure) Act to provide that home detention is not available for either of the offences under s 25A.
Section 25A(5) makes provision for defences to a charge under s 25A(2) but not s 25A(1). It is a defence for an offence under s 25A(2) if the intoxication of the accused was not self-induced (within the meaning of Part 11A Crimes Act), or if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed. Cognitive impairment is defined in s 25A(10) to include an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury.
Schedule 1 of the Act amends s 428E Crimes Act to provide that where evidence of intoxication results in the accused being acquitted of murder, self-induced intoxication cannot be taken into account in determining whether the person has the requisite mens rea for an offence under s 25A. Schedule 1 of the Act also inserts a new s 428E(2) to provide that offences under ss 25A(1) and 25A(2) are not offences of specific intent for the purposes of intoxication under Pt 11A Crimes Act.
Section 25A(6)(a) provides evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused’s breath, blood or urine at the time of the alleged offence as determined by an analysis carried out under Pt 10 Div 4 Law Enforcement (Powers and Responsibilities) Act 2002 (as explained below). Section 25A(6)(b) provides an accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.
Schedule 2 of the Act inserts Pt 10 Div 4 into the Law Enforcement (Powers and Responsibilities) Act 2002. Division 4 creates special police powers for testing accused persons for intoxication for an offence alleged under s 25A(2) or if a police officer believes that a person would be liable to be charged with an offence under s 25A(2).
Division 4 makes provision for breath testing and breath analysis for the presence of alcohol and the provision by an accused of a blood or urine sample. Section 138F(3) provides a breath test or breath analysis may only be required to be undertaken within 2 hours after the commission of the alleged offence. Section 138G(3) provides a blood or urine sample may only be required to be provided within 4 hours after the commission of the alleged offence.
Section 25A(7) provides that in trials for murder or manslaughter the jury can return an alternative verdict for offences under ss 25A(1) or 25A(2). Section 25A(8) provides that where an accused is tried for an offence under s 25A(2) the jury can return an alternative verdict of guilty to an offence under s 25A(1).
Schedule 3 of the Act amends s 21A Crimes (Sentencing Procedure) Act 1999 by creating a special sentencing rule for self-induced intoxication in s 21A(5AA). It provides:
21A(5AA) In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.
Schedule 3 amends s 21A(6) to provide that self-induced intoxication has the same meaning as it has in Pt 11A Crimes Act.
Schedule 3 sets out the transitional provisions. Section 21A(5AA) applies to the determination of a sentence for an offence whenever committed unless, before the commencement date (ie 31 January 2014), the court has convicted the person being sentenced of the offence, or a court has accepted a plea of guilty and the plea has not been withdrawn.
Before the introduction of s 21A(5AA) an offender’s intoxication, whether by alcohol or drugs, could explain an offence but ordinarily did not mitigate the penalty: Bourke v R (2010) 199 A Crim R 38 at . The NSWCCA have endorsed (in GWM v R  NSWCCA 240 at  and ZZ v R  NSWCCA 83 at ) the statement in Hasan v The Queen  VSCA 352 at  that: “… courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s culpability. An ‘out of character’ exception is acknowledged to exist, but it has almost never been applied”.
(See the Sentencing Bench Book at [10-480].)
The new s 21A(5AA) abolishes the out of character exception. It also abolishes that part of R v Fernando (1992) 76 A Crim R 58 that the High Court approved in Bugmy v The Queen  HCA 37 at , . French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said at :
The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender’s conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. … [Footnotes excluded.]
Schedule 4 of the Act inserts a list of new steroid type drugs, including anabolic steroids, in Sch 1 Drug Misuse and Trafficking Act 1985. For all these new drugs, the traffickable quantity is 500g, a small quantity is 50g, an indictable quantity is 750g and a commercial quantity is 5kg. For the purposes of an offence under s 25A(2), a drug includes a drug under the Drug Misuse and Trafficking Act and a poison, restricted substance or drug of addiction in the Poisons and Therapeutic Goods Act 1966.
Schedule 5 of the Act is uncommenced. It amends the Criminal Procedure Regulation 2010 to increase Criminal Infringement Notice amounts for offences under the Summary Offences Act 1988 as follows:
offensive language from $150 to $500,
offensive behavior from $200 to $500, and
continuation of intoxicated and disorderly behavior following move on direction from $200 to $1100.
The relevant parts of the Sentencing Bench Book will be amended to reflect this Special Bulletin.