s33 Crimes Act 1900 (NSW) (1 Viewer)

[tWiStEdD]

Does anyone understand the meaning/purpose of s33 of the Crimes Act (makes reservations for Form ones)

I came across it in my case study, i just want to know some details with regard to how it functions, and how it affects sentence.

Thanks

 

[Ziff]

CRIMES ACT 1900 - SECT 33
Wounding etc with intent to do bodily harm or resist arrest
33 Wounding etc with intent to do bodily harm or resist arrest

Whosoever:

maliciously by any means wounds or inflicts grievous bodily harm upon any person, or

maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person,

with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person, shall be liable to imprisonment for 25 years.

 

[Ziff]

I think it's pretty much self explanitory.

All legislation can be found at http://www.austlii.edu.au

 

[santaslayer]

yea thats ections all about crimes against the person (physical)

 

[adamj]

Basically, it refers to assualt and/or during resistance of arrest. Perhaps referred to as Aggravated Assault or Grevious Bodily Harm. As you can see the act explains:

Mens Rea: "intent to do bodily harm or resist arrest"

Actus Reus: "Wounding"

Sentence: "shall be liable to imprisonment for 25 years."

 

[Ziff]

Don't forget causation

Apparently in one of the years HSC people were like "woah what the?!" and missed marks for it...

 

[adamj]

Causation is something that is applied to every case. What has to be proven is that the Actus Reus has led to causation of the offence. To be free from any criminal offence, the defence need to prove Novus Actus Intervenes - and new intervening act that broke the chain of events of causation.

 

[tWiStEdD]

whoops... i didnt cite the legislation properly.
i meant the Crimes (Sentencing Proceedure) Act 1999
it is, however, s33.
sorry guys.
i feel pretty stupid

 

[Ziff]

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 33
Outstanding charges may be taken into account
33 Outstanding charges may be taken into account

(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.

(2) The court may take a further offence into account in dealing with the offender for the principal offence:

(a) if the offender:

(i) admits guilt to the further offence, and

(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b) if, in all of the circumstances, the court considers it appropriate to do so.

(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

(4) A court may not take a further offence into account:

(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or

(b) if the offence is an indictable offence that is punishable with imprisonment for life.

(5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.

(6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.

 

[christ_ine]

Nearly as bad as having to memorise and recite the s352 of the Crimes Act 1900 for uni exams

 

[Ziff]

Don't you wish your mind were wired to www.austlii.edu.au?

 

[tWiStEdD]

no no no... i use austlii all the time, but i fail to comprehend what s33 is talking about.
does it mitigate? or is it a pointless proceedure for making things neater?

 

[Ziff]

What did it do in your particular case? Add to or take away from? What would the original penalty have been?

 

[tWiStEdD]

i cant be sure as to the effect of the form one on the case.
i talked to some of the barristers involved, and they said that it was most definately aggravating. perhaps it is just a method to keep things in nice bundles.

i cant be sure... it's due tomorrow.... damn....

 

[Ziff]

This is from a book I picked up whilst I was on work experience: 'A Practitioners Guide to Criminal Law Second Edition' by NSW Young Lawyers.

"Taking other offences into account on a Form 1:

Sometimes defendants who have several charges can have some of the charges dealt with on a Form 1. The charges on the Form 1 (which is a form prepared by the police officer in charge of the matter, with the consent of the prosecution) are taken into account at the time of sentencing for the other offences. S. 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows this to take place.

In the Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 NSWCCA 518 the CCA said that the proper approach to be taken when offences are dealt with on a Form 1 is to focus on sentencing for the principal offence on the indictment, and would increase the sentence for the principal offence by reason of the Form 1 offences."

 

[Ziff]

It seems to be concerned mostly with summary offences...

 

[Ziff]

I think you should look at the entire Division 3 of the act...
S. 31 through to S.35, you'll understand it better that way...

 

[tWiStEdD]

thanks ziff.
my understanding so far is that it aggrevates the primary offence (in my case, aggravated sexual assault) while mitigating the would-be sanction for those offences included on the form one.

the case i have researched is R v AEM (Snr), R v KEM, R v MM.

all the defendants were charged with two counts of aggravated sexual assault and each had a form one. the form ones consisted of FOUR counts of aggravated sexual assault each.

that's a hefty form one... perhaps they deserved more than the 10, 12 and 12 (respectively) they recieved.

once again, you've been most helpful.

 

[Ziff]

Yeah, you're right:

R v. Ponfield [1999] NSWCCA 435 listed the following factors as enhancing the seriousness of the offences of break and enter:

* - The multiplicity of the offence (reflected either in the charges or matters taken into account on a Form 1 persuant to s. 21 C(SP)Act1999

 

[tWiStEdD]

w000t!!!! now i could make last minute changes... but i think i've already gone overboard with my case study. nevertheless, i have learnt alot even if it counts not much towards my mark.