Aggravated Offences (SA)
In South Australia, many serious criminal offences are set out in the Criminal Law Consolidation Act 1935. These offences include assault, sexual offences, stealing and murder. Many (but not all) of these offences may be committed either in a basic form or in an aggravated form. This page deals with aggravated offences in South Australia.
Basic offences and aggravated offences
An aggravated offence is an offence that is ‘made worse’ by the presence of one or more circumstances of aggravation. If a person is charged with an offence and a circumstance of aggravation is alleged, the prosecution must prove beyond a reasonable doubt:
- That the accused committed the offence;
- That the accused committed the offence under the alleged circumstance/s of aggravation.
If the accused person is found guilty of the offence but the circumstance of aggravation that is alleged cannot be proven, the court will record a finding of guilt for the offence in its basic form.
Circumstances of aggravation
Section 5AA of the Criminal Law Consolidation Act 1935 sets out a long list of circumstances of aggravation that may be alleged in relation to any offence that has an aggravated form.
- The offence was committed in the course of deliberately and systematically inflicting severe pain on the victim;
- The offence was committed with the use, or threatened use, of an offensive weapon;
- The offence was committed against a law enforcement officer such as a police officer or prison officer in the course of their official duty or in retribution for something done in the course of their official duty;
- The offence was committed against a community corrections officer or community youth justice officer in the course of their official duties;
- The offence was committed in order to prevent or dissuade the victim from taking legal proceedings, in connection with their conduct in legal proceedings, or in retribution for taking legal proceedings;
- The offence was committed knowing or believing the victim to be below the age of 14 (for a child exploitation material offence), or below the age of 12 (for any other offence);
- The offence was committed knowing the victim was above the age of 60;
- The offence was committed knowing that the victim was a person the offender was or had been in a relationship with;
- The offence was committed in connection with a criminal organization;
- The offence was committed in company with one or more other persons;
- The offence involved the abuse of a position or authority or trust;
- The offender knew that the victim was in a position of particular vulnerability because of a physical disability or cognitive impairment.
The Acts also sets out circumstances of aggravation that can be alleged only in relation to particular offences. Some of these are set out below.
Offences against the person
An offence against the person is aggravated if:
- The victim was in a position of particular vulnerability because of the nature of their employment or occupation;
- At the time of the offence, the victim was engaged in their employment or occupation and the offender committed the offence knowing they were acting in the course of their duties;
Causing death or harm by the use of a vehicle
An offence of causing death by the use of a motor vehicle under section 19A of the Criminal Law Consolidation Act 1935 is aggravated if:
- It is committed in the course of trying to escape pursuit by the police;
- It is committed while driving in a street race;
- It is committed while the offender knows they are disqualified from driving;
- It is committed as part of a prolonged, persistent and deliberate course of very bad driving;
- It is committed with a BAC of more than 0.08;
- It is committed while driving at excessive speed, under the influence of alcohol or with a prescribed drug present in the driver’s system.
Dangerous driving to escape police pursuit
An offence of dangerous driving to escape police pursuit under section 19AA of the Criminal Law Consolidation Act 1935 is aggravated it:
- The vehicle was stolen or being used without the owner’s consent;
- The offender was driving knowing that they were disqualified from driving;
- The offender had a BAC of 0.08 or more;
- The offender was driving under the influence of alcohol
Penalties for aggravated offences
Where an offence has a basic form and an aggravated form, the Criminal Law Consolidation Act 1937 sets out a maximum penalty for the basic form and another for the aggravated form. In some cases, the Act also sets out a different maximum penalty in respect of an offence with a particular circumstance of aggravation. For example, the maximum penalties for assaults are set out in the table below.
|Offence||Basic or aggravated||Maximum penalty|
|Assault||Basic||Two years imprisonment|
|Assault||Aggravated||Three years imprisonment|
|Assault||Aggravated offence involving offensive weapon||Four years imprisonment|
|Assault||Aggravated offence where victim acting in the course of their official duties of employment or occupation||Five years imprisonment|
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