Recklessness: Report

1. Introduction

A note on content

1.1 This report relates to offences against the person, which often involve violence and traumatic consequences. Our report examines case studies and uses examples that may be confronting or distressing.

A note on language

1.2 Due to the technical focus of this reference, this report uses a lot of legal terminology. For definitions of legal words used in this report, see the Glossary on page x.

1.3 Unless otherwise noted, references to the Magistrates’ Court, the County Court, the Supreme Court and the Court of Appeal refer to the Victorian courts, and references to the High Court refer to the High Court of Australia.

1.4 We use the term ‘victim’ to refer to a person involved in a criminal proceeding who has suffered harm. We acknowledge that some people might prefer the term ‘victim survivor’ and/or ‘survivor’.

1.5 We use the term ‘accused’ to refer to a person who has been charged with a criminal offence, and ‘offender’ to refer to a person who has been found guilty of a criminal offence.

1.6 Although we use terms such as ‘victim’ and ‘offender’, we acknowledge that people do not necessarily just belong to one group or another. For example, some people who commit a crime have previously been a victim of crime.

1.7 We use the term First Peoples to include all Traditional Owners of a place in the state of Victoria, as well as Aboriginal and/or Torres Strait Islander people who are living or have lived in Victoria. When citing other sources, we use the same words that were in the original source.

1.8 We understand that the best terms to use can change and people often disagree about the right terms to use.

Our terms of reference

1.9 The Victorian Law Reform Commission was asked to review the use of ‘recklessness’ in offences against the person in Part I, Division 1(4) of the Crimes Act 1958 (Vic) (the Crimes Act).^[1]

1.10 We were guided by the terms of reference (see page viii) given to us by the Attorney-General, the Hon. Jaclyn Symes MP, on 25 October 2022.

1.11 We were asked to consider what definition of recklessness should apply to offences against the person, and whether a definition should be legislated. We were also asked to develop a set of guiding principles to review the use of recklessness in other categories of Crimes Act offences.

1.12 The Attorney-General asked us to consider:

• the meaning of recklessness in other jurisdictions.

• the approach and reasons for using ‘probably’ to express the fault element of recklessness in reforms to sexual offences in Part I, Division 1(8A)–(8F) of the Crimes Act.

• the operation of legislated statutory minimum terms of imprisonment.

• the potential impacts of any recommended changes on all parts of the criminal justice system, including whether maximum penalties would need to be adjusted.

1.13 Sexual offences and stalking were largely excluded from our inquiry, although they are offences against the person, because they have recently been reviewed.^[2]

The Commission’s purpose

1.14 The Commission’s purpose is to make a significant contribution to a just, inclusive and accessible legal system for all Victorians.

1.15 Our main task is to examine laws, prepare reports and make recommendations to serve the needs of the Victorian community.

Our approach

Our leadership

1.16 The Hon. Anthony North KC was the Commission’s Chair during this inquiry.

1.17 The Chair established a Division to guide and make decisions about the inquiry. All Commissioners were Division members. Their names are listed on the inside front cover.

What we published

1.18 On 17 January 2023 we published an issues paper to explain the current law and call for submissions. We invited submissions by 3 March 2023.

Our submissions and consultations

1.19 As this is an inquiry into a technical area of law, our community engagement was relatively limited.

1.20 We received 21 written submissions (see Appendix A). We published the public submissions on our website.

1.21 We held 15 consultations with stakeholders across the criminal justice system, including members of the legal profession, police, judicial officers and representatives of the courts (see Appendix B).

1.22 We engaged with specialist legal services, receiving a submission from Youthlaw and consulting with the Victorian Aboriginal Legal Service.

1.23 We were grateful to receive a submission from the Victims of Crime Commissioner’s office and to consult with members of the Victim Survivors’ Advisory Council. The Victims of Crime Consultative Committee was unable to participate in a consultation due to the technical nature of the reference and a period of change with its representatives.

Data we used

1.24 We received data from:

• the Sentencing Advisory Council

• the Crime Statistics Agency

• the Supreme Court of Victoria

• the County Court of Victoria

• the Magistrates’ Court of Victoria

• the Office of Public Prosecutions (OPP)

• New South Wales Bureau of Crime Statistics and Research.

1.25 We are grateful to the OPP for providing us with data collated from a review of over 300 of its files.

Our report to the Attorney-General

1.26 This report is due for delivery to the Attorney-General by 29 February 2024. Within 14 sitting days of receiving our report the Attorney-General must table it in the Victorian Parliament. It will then be published on our website.

1. Sections 15A (Causing serious injury intentionally in circumstances of gross violence), 15B (Causing serious injury recklessly in circumstances of gross violence), 17 (Causing serious injury recklessly), 18 (Causing injury intentionally or recklessly), 19 (Offence to administer certain substances), 20 (Threats to kill), 21 (Threats to inflict serious injury), 22 (Conduct endangering life), 23 (Conduct endangering persons), 25 (Setting traps etc. to kill), 26 (Setting traps etc. to cause serious injury), 31 (Assaults) and 31C (Discharging a firearm reckless to safety of a police officer or a protective services officer): Crimes Act 1958 (Vic).

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2. Victorian Law Reform Commission, Stalking (Final Report No 45, June 2022); Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021). Although sexual offences were largely excluded from the scope of our inquiry, we discuss sexual offences in Chapter 5 to respond to our terms of reference about the approach and reasons for using ‘probably’ to express recklessness in sexual offences.

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