CRIMES AMENDMENT (CHILD HOMICIDE) BILL 2007 Explanatory Memoranda
CRIMES AMENDMENT (CHILD HOMICIDE) BILL 2007
Crimes Amendment (Child Homicide)
Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
The purpose of this Bill is to amend the Crimes Act 1958 to create a new
offence of child homicide, to increase the maximum penalty for the offence
of negligently causing serious injury and to split the offence of dangerous
driving causing death or serious injury into separate offences with different
maximum penalties.
Clause Notes
Clause 1 sets out the purposes of the Bill.
Clause 2 provides that the Bill will come into operation on the day after
the day on which it receives the Royal Assent.
Clause 3 inserts a new section 5A into the Crimes Act 1958. The new
section creates the new offence of child homicide.
The new offence incorporates the elements of the common law
offence of manslaughter but has as an additional element that the
victim is a child under 6 years of age. "Conduct" is intended to
include any acts or omissions to act that would constitute
manslaughter.
The new offence applies to conduct in circumstances that, but for
the new section 5A, would constitute manslaughter. This means
that, if the conduct and circumstances would not constitute
manslaughter for any other reason (for example, because of
sudden or extraordinary emergency under section 9AI of the
Crimes Act 1958) the person will not be guilty of child
homicide.
The new offence has the same maximum penalty as
manslaughter.
561152 1 BILL LA INTRODUCTION 4/12/2007
Clause 4 increases the penalty for negligently causing serious injury in
section 24 of the Crimes Act 1958 from level 6 imprisonment
(5 years maximum) to level 5 imprisonment (10 years
maximum).
Clause 5 amends section 319(1) of, and inserts a new section 319(1A) into,
the Crimes Act 1958.
Section 319(1) currently provides for the offence of dangerous
driving causing death or serious injury.
Clause 5(1) of the Bill removes the alternative element of serious
injury from section 319(1). The resulting offence of dangerous
driving causing death will carry an increased penalty of level 5
imprisonment (10 years maximum).
Clause 5(2) of the Bill inserts a new subsection (1A) into
section 319. The new subsection creates a separate offence of
dangerous driving causing serious injury. That offence will carry
the same penalty (level 6 imprisonment, 5 years maximum) as the
existing offence of dangerous driving causing death or serious
injury.
Clause 5(3) of the Bill makes an amendment to section 422A of
the Crimes Act 1958 consequential on the amendments made to
section 319 of that Act by this clause.
Clause 6 inserts a new section 610 into the Crimes Act 1958.
This transitional provision states that all amendments made by
the Act apply only to offences alleged to have been committed on
or after the commencement of the Act.
If an offence is alleged to have been committed between two
dates, one before and one after the commencement of the Act, the
offence is alleged to have been committed before that
commencement.
Clause 7(1) adds a reference to the new offence of child homicide in sections
356(1), (2)(a), (3) and (4), as well as section 516(1)(b), of the
Children, Youth and Families Act 2005. Those provisions deal
with various procedures that apply in certain circumstances if a
child is charged with an indictable offence other than certain
listed homicide offences (murder, attempted murder,
manslaughter, arson causing death and culpable driving causing
death). The consequential amendments add the new offence of
child homicide to that list in each of those provisions.
2
Clause 7(2) adds a reference to the new offence of child homicide in section
17(3)(a)(i) of the Coroners Act 1985. This means that, if in
relation to the investigation of a death, a coroner is satisfied that
one or more persons have been charged before a court with child
homicide of the deceased and one or more of those persons has
been found guilty of the offence or acquitted or found not guilty
of the offence the coroner may determine not to hold an inquest,
adjourn the holding of an inquest which has already commenced,
or if an inquest has been adjourned, determine not to
recommence the holding of the inquest.
Clause 7(3) amends sections 9, 10(3), 421(1), 423, 464P(2)(a), 464ZGA(2)(a)
of, and inserts a new item 3AA in Schedule 8 to, the Crimes Act
1958 to include the offence of child homicide, so that--
· if the victim is injured outside Victoria and dies in
Victoria, or if the victim is injured in Victoria but dies
outside of Victoria, the offence of child homicide may
be dealt with in Victoria in the same manner as if it had
been wholly committed in Victoria;
· if a person is tried for child homicide and the jury is
satisfied that the person is not guilty of that offence but
are satisfied that the person is guilty of the offence of
child destruction, the jury may find the person guilty of
that offence;
· if a person is tried for murder and the jury find the
person not guilty of murder, the jury may find the
person guilty of child homicide;
· if a person is tried for child homicide, guilt of the
offences of wounding or causing grievous bodily harm
is not available as an alternative verdict;
· if a person is found guilty of child homicide (or another
listed homicide offence), section 464P(1) does not apply
to fingerprints retained as a result of that finding of
guilt;
· section 464ZGA(1) does not apply if the offence in
relation to which the forensic procedure was conducted
was child homicide (or another listed homicide
offence); and
· child homicide is a forensic sample offence.
3
Clause 7(4) adds a reference to the new offence of child homicide in the
Sentencing Act 1991 by inserting paragraph (baa) in section 3(1)
(definition of serious offence) and clause 2(b) of Schedule 1, so
that--
· child homicide is a serious offence, for the purposes of
Subdivision (1A) of Division 2 of Part 3 (indefinite
sentences);
· child homicide is a violence offence for the purposes of
Schedule 1.
Clause 8 amends section 356(1), (2)(a), (3) and (4), as well as section
516(1)(b), of the Children, Youth and Families Act 2005 to
include the offence of defensive homicide.
4