Serious injury and gross violence in Victoria

Stephen Gray
Victoria

The Baillieu/Napthine Liberal government has followed through on its promise to introduce statutory minimum (that is, mandatory) sentences for offences of ‘gross violence’. According to Attorney-General Robert Clark’s Second Reading Speech of December 2012, the legislation is designed to send a clear message that ‘adult offenders who inflict gross violence will go to jail and stay in jail for at least four years, unless the court decides that a genuinely special reason applies’.

Under the Crimes Amendment (Gross Violence Offences) Act 2013 (Vic), two significant new offences are introduced into the Crimes Act 1958 (Vic). Under a new s 15A Crimes Act, an offence is created of causing serious injury intentionally in circumstances of gross violence. The new s 15B Crimes Act creates a similar new offence of causing serious injury recklessly in circumstances of gross violence.

‘Gross violence’ is defined, in essence, to require planning in advance to cause the injury; or being in company with two or more persons when the injury was caused; or causing the injury pursuant to a joint criminal enterprise with two or more persons; or planning in advance to have or to use a weapon, and in fact using that weapon; or continuing to assault the victim after they were incapacitated.

The maximum penalty for an offence under s 15A is 20 years (level 3 imprisonment); and that for an offence under s 15B is 15 years (level 4 imprisonment). While the different maximum penalties reflect the different levels of culpability for the two offences, the statutory minimum penalty does not. The same minimum penalty (4 years) is fixed whether the offence is one of intention or of recklessness. This applies unless the Court finds that a special reason exists under s 10A Sentencing Act 1991 (Vic).

Thus, the Act introduces a species of mandatory sentencing. It substantially reflects what the courts are already doing (that is, imposing substantial custodial sentences for these offences) but removes discretion from the courts. Moreover, while it does not apply to minors, it does apply to young offenders aged 18–20, except where they can show they had a ‘particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his or her behaviour’. This is a difficult thing to prove.

The Act comes into force on a day to be proclaimed, or on 30 January 2014.

STEPHEN GRAY teaches law at Monash University.

(2013) 38(2) AltLJ 132
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