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Criminal Responsibility (NT)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Under the Northern Territory Criminal Code Act 1983, there are a number of ways that a person can be found guilty of an offence even when they did not commit the physical acts that make up the offence. A person has criminal responsibility for criminal acts that they assisted, prepared for, attempted to commit, or based on a common purpose. The various forms of extended criminal responsibility that exist under NT law are summarised below.

Attempt

Criminal responsibility attaches to attempts to commit criminal offences even where the offence is not completed. A person can be found guilty of attempting to commit an offence under Section 43BF of the Criminal Code. In order to be found guilty of an attempted offence, the accused must have done more than just preparatory acts.

The penalty for an attempted offence is the same as the penalty that applies to a completed offence. Any defences that apply to an offence also apply to attempts to commit the offence.

Complicity and common purpose

Under Section 43BG a person can be found guilty of aiding, abetting, counselling or procuring the commission of an offence. To be found guilty of aiding, abetting, counselling or procuring, the accused must have intended that:

  • Their conduct would aid, abet, counsel or procure an offence of the type committed;
  • Their conduct would aid, abet, counsel or procure an offence or have been reckless about the type of offence that would be committed.

The criminal responsibility that arises under this provision extends to those who perform acts like driving getaway cars or standing lookout while the offence is being committed. A person can be found guilty under this section even if the principal offender has not been prosecuted or has not been found guilty.

A person cannot be found guilty under this section if, before the offence was committed, they terminated their involvement and took all reasonable steps to prevent the offence from being committed.

Innocent agency

Another form of criminal responsibility is innocent agency. Innocent agency refers to the use of something or someone who cannot be found guilty of an offence, in order to commit an offence. Under section 43BH, a person has criminal responsibility if they procure another person to commit some or all of the physical elements of the offence, while the accused has the requisite mental state. Examples of this are using a trained animal or a child who is below the age of criminal liability to carry out a burglary.

Incitement

A person who urges the commission of an offence, intending it to occur, is guilty of incitement under Section 43BI. A person can be found guilty of incitement even if the offence being incited is impossible.

The applicable penalty for incitement depends on the offence incited. If the offence is punishable by life imprisonment, incitement in punishable by imprisonment for 10 years. If the offence is punishable by 14 years or more (but not life), incitement is punishable by imprisonment for 7 years. If the offence is punishable by imprisonment for more than 10 years but less than 14 years, incitement is punishable by imprisonment for five years. If the offence is punishable by imprisonment for a term of less than 10 years, imprisonment for three years (or the maximum applicable to the offence, whichever is less). If the offence is not punishable by imprisonment, the penalty for incitement is a fine.

Conspiracy

A conspiracy exists when two or more people agree to commit a crime. It continues for as long as the parties continue to intend to carry out the criminal act. In the NT, conspiracy is governed by Section 43JB of the Criminal Code. Under that provision, a person has criminal responsibility on the basis of conspiracy if:

  • They have entered into an agreement with one or more others;
  • They and at least one other party to the agreement intended that an offence would be committed;
  • They and at least one other party to the agreement committed an overt act pursuant to the agreement.

A person can be found guilty of conspiracy even if:

  • Committing the offence was impossible;
  • The only other party to the conspiracy is a body corporate;
  • The other parties to the agreement are not criminally responsible
  • The other parties have been acquitted of conspiracy.

However, if the person withdrew from the agreement and took all reasonable step to prevent the offence from being committed before the overt act was committed, they are not guilty of conspiracy.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.

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