Aggravated Offences (NSW)
In New South Wales, a person charged with an offence under the Crimes Act 1900 may be alleged to have committed the offence under circumstances of aggravation or under circumstances of special aggravation. If proven, this means that a higher maximum penalty applies than if the offence had been committed in its simple form. This page deals with aggravated offences in New South Wales.
Proving a circumstance of aggravation
If a person is charged with an aggravated offence, the prosecution must prove beyond a reasonable doubt that:
- The accused committed the offence; and
- The offence was committed under the circumstance/s of aggravation alleged.
If the offence is proven but the circumstance of aggravated is not proven, the court will record a finding of guilt for the offence in its simple form.
Circumstances of aggravation
In New South Wales, there are different circumstances of aggravation that can be alleged in relation to different types of offending.
Sacrilege and housebreaking
An offence under this Division is committed under circumstances of aggravation if one or more of the following applies:
- The offender was armed with an offensive weapon;
- The offender was in company with another person;
- The offender used corporal violence;
- The offender intentionally or recklessly inflicted actual bodily harm on a person;
- The offender deprived a person of their liberty;
- The offender knew there was a person present in the place where the offender was committed.
Under section 105A of the Crimes Act 1900, an offence under Division 4 is committed under circumstances of special aggravation if one or more of the following applies:
- The offender intentionally wounded or inflicted grievous bodily harm on a person;
- The offender inflicted grievous bodily harm and was reckless as to causing grievous bodily harm;
- The offender was armed with a dangerous weapon.
The offence of robbery or stealing from the person, under section 94 of the Crimes Act 1900, is aggravated if it occurs under any of the circumstances set out in section 95 of the Crimes Act 1900. These are:
- Where the offender uses corporal violence on a person;
- Where the offender intentionally of recklessly inflicts actual bodily harm on a person;
- Where the offender deprives a person of their liberty.
Separate offences of ‘robbery with wounding’ and ‘robbery in company with another person or while armed with an offensive weapon’ are also set out in sections 96 and 97 respectively.
Offences of sexual servitude under Division 10A of the Crimes Act 1900 include causing a person to enter or remain in sexual servitude and conducting a business involving sexual servitude. Under section 80C of the Crimes Act 1900, these offence are aggravated if the alleged victim is under 18 or has a cognitive impairment.
Penalties for aggravated offences
The Crimes Act 1900 sets out a maximum penalty for each offence it contains. For offences that have an aggravated form, it also sets out a higher maximum penalty for an aggravated offence. For instance, while robbery under section 94 attracts a maximum penalty of 14 years imprisonment, aggravated robbery attracts a maximum penalty of 20 years imprisonment.
The maximum penalty set out for an offence does not determine the penalty a person who is found guilty of the offence will receive. An offender’s sentence will be determined with reference to the objective seriousness of the offending and the person’s circumstances and criminal history. However, if a person is found guilty of an aggravated offence it is highly likely that the penalty they will receive will be higher than the penalty they would have received if they had been found guilty of the offence without the circumstance of aggravation.
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