Recklessness: Report

11. The consequences of changing the recklessness test

Overview

• We heard limited support for changing the recklessness test other than from Victoria Police and the Office of Public Prosecutions (OPP).

• On its own, a possibility test for recklessness would be too broad and would capture behaviour that should not be criminalised.

• Introducing an objective limb, ‘reasonableness’, to limit the scope of a possibility test could increase unfairness in its application. Changing the test for offences against the person would increase inconsistency in the Crimes Act 1958 (Vic), and make the task for magistrates, juries and judges more complex than at present. Added complexity is more likely to lead to error when directing juries.

• Changing the test would result in the loss of case law and create uncertainty.

• Changing the test would require reconsideration of penalties and other offences with a recklessness element.

• Lowering the threshold for the recklessness test could have a disproportionate impact on young people and people who face disadvantage.

• There is not a compelling case to support reform of the recklessness test. The current common law definition of recklessness should be retained.

Little support for changing the test

11.1 This chapter examines the potential impacts of re-defining recklessness. While we heard overwhelming support for Victoria’s current recklessness test (see Chapter 10), only a small number of stakeholders favoured changing the test (see Chapter 7).

A ‘possibility’ test alone would be too broad

11.2 The OPP and Victoria Police told us the test for recklessness should be based on whether the accused was aware of a ‘possible’ rather than ‘probable’ risk.

11.3 A ‘possible’ threshold for recklessness would be too broad on its own. In the DPP Reference case in the Court of Appeal, Justice Kaye stated:

foreseeability of a mere possibility would, without any qualification, impose criminal liability on ordinary everyday actions performed with the foresight of the possibility—no matter how slight or remote—of a particular consequence.^[1]

11.4 The scope of ‘reckless’ offences would cover ‘a vast area of moral culpability’^[2] and have an ‘oppressively wide reach.’^[3] Legal practitioners told us that a possibility test on its own would ‘invariably capture situations where on any sensible view it is unjust to criminalise the behaviour’,^[4] with outcomes that would be ‘entirely disproportionate with … moral culpability’.^[5]

11.5 A ‘possibility’ test could be limited by requiring that the accused’s actions were also ‘unreasonable’ in the circumstances. Adding a reasonableness element is intended to avoid ‘over-criminalisation of acts which are socially acceptable but inherently risky’.^[6] In the DPP Reference case in the High Court, Justice Edelman said ‘the difference between foresight of possibility and foresight of probability can be much reduced by the additional element of unreasonableness’.^[7] However, even if reasonableness reduced the gap, the scope of a ‘possibility’ test would still be broader than the current test. Everyone who contributed to our inquiry proceeded on this basis.

11.6 The Court of Appeal said that a change from a ‘probability’ to a ‘possibility’ test, as proposed by the Director of Public Prosecutions (DPP), would expand the potential scope of criminal liability. This was also acknowledged in the DPP Reference case by the DPP’s senior counsel.^[8] Stakeholders also said that a lower threshold would significantly expand the scope of criminal liability for recklessness offences.

11.7 New South Wales has a ‘possibility’ threshold for recklessness for offences against the person other than murder, with a ‘reasonableness’ part to constrain its scope (see Chapter 6). We provide data on the number of charges where people were found guilty of some ‘recklessness’ offences in New South Wales in Appendix F. On their face, the numbers of finalised ‘recklessness’ cases do not indicate a vast difference between the two jurisdictions.

11.8 However, it is very difficult to draw a meaningful comparison between Victoria and New South Wales. There are differences in population size, the range of offences, the way the elements of the offences are constructed, and the definitions that apply to them (such as various versions of ‘harm’ and ‘injury’). Further, charging practices and prosecutorial discretion may be exercised differently in each state.

Risks of adding an objective limb

11.9 Victoria Police and the OPP accepted that a ‘possibility’ test on its own would be too broad. They proposed that a ‘possibility’ test should be limited by requiring that the accused’s actions were also ‘unreasonable’. This would add an objective limb to recklessness. We heard from stakeholders that adding an objective limb to the recklessness test could lead to unfairness, greater complexity, and inconsistent application.

Unfairness

11.10 Fairness requires that for serious crimes, responsibility is linked to a person’s state of mind at the time of their conduct. There is a presumption that serious criminal offences involve a subjective fault element.^[9] The Court of Appeal has cautioned:

given that criminal responsibility ordinarily rests on what an accused person actually knew or intended or foresaw … the introduction of an objective test is always a matter requiring careful consideration.^[10]

11.11 The Criminal Bar Association (CBA) and the Law Institute of Victoria (LIV) told us that the recklessness test should focus on someone’s actual state of mind.^[11] Introducing the concept of reasonableness is problematic because:

you are not aligning [someone’s criminal] liability to their own culpability, but to a community standard …

for serious offences, it’s hard to justify saying someone who didn’t actually foresee the outcome should be convicted because someone else would have appreciated what the accused did not.^[12]

11.12 A member of the Victim Survivors’ Advisory Council (VSAC) noted the importance of considering a person’s individual circumstances to properly understand their conduct. Another VSAC member highlighted that someone’s age, upbringing, and possible mental health or substance abuse issues at the time of the offending will affect their assessment of risk and consequences.^[13]

11.13 The Victorian Aboriginal Legal Service (VALS) was concerned that a shift away from the current subjective definition would disproportionately impact Aboriginal and/or Torres Strait Islander people:

The current subjective definition allows you to provide the context and history of the alleged offending, which for Aboriginal and Torres Strait Islander people is very significant. Any move to a more objective test would have the effect of … increasing the criminalisation of Aboriginal and Torres Strait Islander people.^[14]

11.14 The LIV told us that overlaying a possibility test with an objective assessment does not adequately consider the accused’s state of mind and could unjustly criminalise children and people with a cognitive impairment or mental illness.^[15]

Adding complexity

11.15 We heard that lowering the threshold for recklessness and adding an objective limb would make the test more complex than at present.^[16]

11.16 The OPP suggested that for many offences against the person ‘the unreasonableness of the actions will not be in issue’ and ‘may not always require an explicit direction’ to a jury.^[17] But there will be some cases where it will be necessary to explain the reasonableness limitation to a jury. And in the Supreme Court’s experience:

multi-factorial tests, while not uncommon, pose greater challenges for judges instructing juries and for juries in understanding and applying those instructions.^[18]

11.17 A judge of the County Court noted:

A subjective/objective test is harder to explain, it adds another layer of complexity. We have a simple direction now; if it changes then we would have to explain ‘possible’ with an objective component.^[19]

11.18 Dr Greg Byrne said, ‘whatever you do to make something more complex, that will push juror comprehension levels down.’^[20] Dr Byrne referred to research demonstrating that jurors found recklessness one of the more difficult definitions in the United States Model Penal Code.^[21] He said that ‘tests that involved two elements or involved different concepts were generally more difficult for people to understand.’^[22]

11.19 The endangerment offences are complex, as we discussed in Chapter 8. Dermot Dann KC and Felix Ralph submitted that the proposed changes to the recklessness test ‘would invariably expand criminal liability for [a reckless endangerment offence] that already poses really difficult problems in its current application.’^[23] Adding an objective limb to the recklessness element could create further confusion as there would be two separate objective components to consider for the endangerment offences.^[24]

11.20 Juries are often asked to deal with matters of considerable complexity. The LIV said that it would ‘get … very complicated’ to introduce a possibility test and then attempt ‘to carve out behaviour that was reasonable’.^[25] While it is hard to say whether this would make the task of the jury too difficult, the LIV said there is no need to complicate a jury’s task further.^[26]

Inconsistent application

11.21 The CBA said an objective component for recklessness could ‘give rise … to idiosyncratic views’ among jurors and create ‘room for juries to come to different views about the same conduct.’^[27]

11.22 As much as possible, the criminal law should be consistently applied. The same conduct in the same circumstances should be treated as the same offence. But the CBA warned that:

the more you give juries tests that involve qualitative judgments rather than a straightforward test as we have now, the more room for divergences in opinion.^[28]

11.23 The risk of having a divergence of views and inconsistent application is that juries may arrive at different verdicts for essentially identical cases. This compromises the fundamental principle of fairness.

Risks of changing the recklessness test

Inconsistency between offences

11.24 Recklessness is an element of many Crimes Act and other offences. We heard that changing the recklessness test for offences against the person would lead to inconsistency with other groups of offences and be ‘a recipe for juror confusion.’^[29] The Judicial College of Victoria (JCV) explained:

If you have different recklessness standards, both might need to be used in a case involving common assault, threats, and obtaining property by deception, for example.

The jury might need to be told, ‘the accused needs to have been aware that their conduct would probably result in the application of force to the complainant’s body, in the first instance, of the possibility that the threat would be believed in the second instance, and the accused must have known that their claim was probably false in the third instance’.^[30]

11.25 Victoria Legal Aid (VLA) told us that juries already have to consider different fault elements on the same indictment in some cases.^[31] Dr Byrne said that where there is:

potential for alternatives on an indictment then the desire for consistency is at its highest to improve comprehension for jurors.^[32]

11.26 The Supreme Court said, ‘complexity can lead to error when directing juries, and make it difficult for juries to grasp the law to be applied.’^[33] A judge of the Supreme Court said the complexity of a possibility test with an objective limb would be ‘magnified’ for:

• already complex indictments

• indictments including a charge of reckless murder, where the test for recklessness would be different.^[34]

11.27 In Chapter 9 we considered a hypothetical scenario provided by the OPP involving a police siege. Dr Byrne extended this scenario to illustrate the complexity of lowering the recklessness definition for offences against the person:

imagine if the two shots had hit police officers, killing one of them and causing serious injury to the other. On the DPP proposal, the relevant fault element would be common law recklessness (probability) for the police officer who died and possibility for the police officer who lived … the judge would need to instruct the jury about two different definitions of recklessness for murder and recklessly causing serious injury. That is a recipe for juror confusion and increases the chance of error in the judge’s charge. It may also seem very strange to a jury that they should be applying two different tests for the same type of conduct where the only difference is one shot was fatal and the other was not.^[35]

11.28 Liberty Victoria raised concern about potential risks if a jury had to be directed on different tests for recklessness.^[36] The CBA agreed that different definitions of the same term would create confusion and opportunities for error in jury directions.^[37]

11.29 A County Court judge told us that the need to direct a jury on two different tests of recklessness could ‘bring … the law into disrepute.’ Another judge said that having different tests creates ‘a terrible mess’.^[38]

Case law ‘out the window’

11.30 The LIV said that changing the way recklessness is defined involves changing the fundamental elements of ‘reckless’ offences.^[39] According to the CBA, a new definition would:

result in the loss of the useful guidance given by case law that is based on the current definition …^[40]

11.31 For affected offences, legal precedents and comparative sentencing data could no longer be relied on to ensure consistency in the application of the law.^[41] The CBA said sentencing practices based on the current test could not legitimately influence sentences for newly formulated offences: the settled sentencing jurisprudence would go ‘out the window’.^[42] ‘A judge of the Supreme Court agreed that ‘courts would need to start again’ in relation to sentencing jurisprudence for these offences.^[43]

11.32 In Ashdown v The Queen, Justice Redlich emphasised the importance of consistency for fairness in sentencing, and how consistency relies on existing sentencing practice:

Consistency in sentencing, fundamental to the administration of criminal justice, requires adherence to current sentencing practice unless a specific circumstance exists which warrants departure from that practice. … By this judicial method the law … diminishes the risk of arbitrary and capricious adjudication.^[44]

11.33 Several stakeholders told us that until a comparable body of law could be established:

• Sentencing outcomes would be less predictable than at present, leading to fewer guilty pleas as it would be more difficult for lawyers to advise accused persons of likely outcomes.^[45]

• The number of contested matters and potential appeals would increase because of uncertainty about the meaning and application of a new definition.^[46]

Sentencing more complicated

11.34 If the test was lowered, a magistrate, jury or judge would only need to determine whether a person had foresight of a possible result or circumstance to prove the recklessness element. A sentencing magistrate or judge would need to decide how to characterise a wider range of behaviour, including how to treat offending at the upper end of seriousness. Without the benefit of established sentencing jurisprudence, this would be a more complicated sentencing task than at present. It could lead to an increase in contested plea hearings^[47] and appeals.

A disproportionate impact

Impact on disadvantaged people

11.35 The overwhelming concern we heard from stakeholders about the potential impacts of lowering the recklessness threshold was the disproportionate impact it would have on people who face disadvantage.

11.36 The Parliamentary Inquiry into Victoria’s Criminal Justice System found that socio-economic disadvantage increases a person’s risk of engagement with the criminal justice system, especially where they experience both intergenerational and intersectional disadvantage.^[48]

11.37 If the recklessness threshold is lowered, a magistrate anticipated that:

the same cohort, the disadvantaged, that by and large we see in our courts, will be charged more.^[49]

11.38 County Court judges told us that a cohort of ‘generally vulnerable people’ would likely be ‘caught up’ in the criminal justice system if the recklessness test were lowered, because they might be:

more likely than better-resourced accused to accede to [having had foresight of a] ‘possible’ [risk] at the police interview stage.^[50]

11.39 We know that First Peoples^[51] and individuals from culturally and linguistically diverse backgrounds are overrepresented in the criminal justice system.^[52] Aboriginal and Torres Strait Islander people comprise only one per cent of the Victorian population,^[53] but comprised around nine per cent of people charged with recklessly causing serious injury over the last five years (see Appendix F). Legal practitioners told us that:

The proposal [to change the recklessness definition] would fundamentally lower the threshold for laws that are regularly charged against First Nations people, people with cognitive or mental health issues, women, people with unstable housing and employment, and children.^[54]

Impact on young people

11.40 Age determines how the criminal law in Victoria applies to young people:

• Children under the age of 10 cannot be held criminally responsible.^[55]

• Children aged over 10 and under 14 are presumed to be unable to commit an offence, unless the prosecution can prove the child was capable of forming a criminal intention.^[56]

• A ‘child’ is defined as a person aged over 10 and under 18 at the time of the alleged offence and under 19 when a proceeding for the offence is commenced in court.^[57] The Children’s Court hears most matters relating to children.^[58]

• A ‘young offender’ is defined as a person who at the time of being sentenced is under the age of 21 years.^[59] Victoria’s dual track system allows adult courts to sentence young offenders to detention in a youth justice centre instead of adult prison.^[60]

11.41 We use the term ‘young people’ for people under the age of 25.

11.42 Youthlaw and Liberty Victoria told us that young people are more susceptible to risk-taking than other demographics. Lowering the recklessness test might disproportionately criminalise young people.^[61] Around 25 per cent of people charged with gross violence offences in the last five years were aged 10–17 years, and around 30 per cent were aged 18-24 years. Almost 35 per cent of people charged with recklessly causing serious injury were aged under 25; the figure was almost 30 per cent for recklessly causing injury (see Appendix F).

11.43 It is understood that ‘adolescents are developmentally different from adults.’^[62] Studies indicate that the brain reaches maturity much later than the end of adolescence. Impulse control, planning and decision-making capacity do not fully develop until adulthood.^[63] Trauma can interrupt the neurological development of children and increase the likelihood of contact with the criminal justice system.^[64]

11.44 For offences involving recklessness, it is important to recognise that young people:

• are more prone than adults to ill-considered or rash decisions.^[65]

• ‘May lack the degree of insight, judgment and self-control that is possessed by an adult.’^[66]

• ‘May not fully appreciate the nature, seriousness and consequences of their criminal conduct.’^[67]

11.45 The Court of Appeal has recognised that:

• The immaturity of young offenders markedly reduces their moral culpability.

• Custody can be ‘particularly criminogenic’ (causing or likely to produce criminal behaviour) for a young person. Young people who are sent to jail may be more likely to re-offend than older people.

• The ‘process of development and maturation’ that a young person experiences provides ‘a unique opportunity for rehabilitation.’^[68]

11.46 The Parliamentary Inquiry into Victoria’s Criminal Justice System found that Aboriginal children and young people in out-of-home care ‘are typically experiencing multiple forms of compounding disadvantage and trauma’ and ‘are at high risk of entering the youth and criminal justice systems.’^[69]

11.47 Youthlaw told us that marginalised young people, including Aboriginal and/or Torres Strait Islander young people, out-of-home care leavers, victims of family violence, and culturally and linguistically diverse young people might be at even greater risk of entering the criminal justice system if the recklessness test is lowered.^[70]

Creating a need for extensive changes

11.48 We were told that changing the definition of recklessness for offences against the person would require a ‘recalibration’ of offences and associated penalties.^[71]

11.49 Several stakeholders were concerned about the interaction of ‘recklessness’ offences with provisions in the Bail Act 1977 (Vic) and the Sentencing Act 1991 (Vic).^[72] More generally, stakeholders were concerned about ‘disrupting the ecosystem of [offences] in Victoria which are … tied to the probability test’.^[73]

11.50 The CBA said the probability test is ‘so embedded in Victoria’s statutory infrastructure that change to its meaning is undesirable and indeed—absent significant revision of all of the offences against the person—unworkable.’^[74] Liberty Victoria told us that the current test for recklessness ‘is so baked into [the criminal law] in this state that disentangling it would be a nightmare.’^[75]

11.51 Liberty Victoria was concerned that:

Changing the test would be so complex in so many different ways, and not just in terms of sentencing. This is something that Parliament needs to be very cautious about because the impact on practitioners and the judiciary will be very significant.^[76]

Penalties would need review

11.52 We heard that lowering the threshold for recklessness would alter the relationship between different offences and require corresponding changes to penalties.^[77]

11.53 In his textbook on sentencing law, Arie Freiberg notes two main components that determine the seriousness of a crime:

• the harmfulness of the conduct

• the offender’s culpability.^[78]

11.54 Punishment should be proportionate to both the harm caused and the culpability:^[79]

principles of sentencing generally hold that the lower the degree of culpability … the lower the sentence should be, all other factors being equal.^[80]

11.55 Maximum penalties for offences against the person vary by fault element and culpability (see Chapters 2 and 4). They act as a guidepost for the seriousness of an offence. Penalties for offences against the person with recklessness as a fault element have been calibrated to the current definition of recklessness.

11.56 Most stakeholders said that maximum penalties should be reviewed if the threshold for recklessness is lowered.^[81] VLA said lowering the threshold would lower the moral culpability for the offence, ‘warranting a reduction in the maximum penalty’.^[82]

11.57 The LIV said that if a lower threshold was introduced:

there would be a substantial reduction in the degree of culpability necessary to constitute criminal liability in relation to the relevant offences against the person, changing the very nature of the offence. As a result, current penalties would no longer be appropriate and would have to be reconsidered.^[83]

11.58 The CBA also noted that related offences would have to be reconsidered:

The Act takes a tiered approach to offences against the person, with the result that changing the inherent criminality of, and/or the maximum penalty applicable to, any single offence may necessitate changing penalties to all other offences within the structure. Altering the definition of recklessness will have a direct impact on several offences in that structure and will have an indirect effect on all offences.^[84]

11.59 However, we were also cautioned against lowering the maximum penalties for recklessness offences as these offences will still need to capture the most culpable behaviour.^[85]

11.60 The OPP said it is likely that a lower threshold would capture offending involving less morally culpable accused:

Accordingly, one possible outcome would be a greater spread of sentences towards the lower end … Such a change would be unlikely to increase the number of sentences imposed at the higher end of the sentencing range.^[86]

Unjust application of sentencing schemes

11.61 Some stakeholders told us that a lower threshold for recklessness would have an impact on offences with mandatory or presumptive sentences.^[87] The applicable presumptive and mandatory sentencing provisions, combined with a lower threshold for recklessness, would result in disproportionate sentences.

11.62 Several offences involving recklessness require a specified non-parole period or a minimum term of imprisonment (see Chapter 4).^[88] There are limited exceptions to the requirement to impose a minimum non-parole period, including where there are ‘substantial and compelling reasons that are exceptional and rare’.^[89] The Court of Appeal has described this as a stringent test that is ‘almost impossible to satisfy’.^[90]

11.63 Legal professionals told us the presumptive and mandatory sentencing provisions, combined with a lower threshold, would result in disproportionate sentences.^[91] Mandatory provisions would apply to a wider range of behaviour, which was not contemplated when the provisions were introduced.^[92]

11.64 This is a serious concern. Mandatory sentencing has been criticised for reducing judges’ discretion to determine sentences that are ‘just in all the circumstances’.^[93] The Court of Appeal has said that mandatory minimum sentences can require the infliction of ‘more severe punishment than a proper application of sentencing principle could justify’.^[94]

11.65 Liberty Victoria was concerned that ‘Where recklessness overlaps with presumptive and mandatory sentencing provisions, any lowering of the threshold could have deleterious effects including the unjust deprivation of liberty’.^[95]

11.66 We heard that the extended reach of mandatory and presumptive provisions would have a disproportionate impact on disadvantaged groups.

11.67 Lowering the threshold for recklessness could lead to more young offenders being convicted of Category B offences, potentially requiring them to serve sentences in adult prisons.^[96]

11.68 Some stakeholders said that if the recklessness threshold is lowered, presumptive and mandatory sentencing provisions should be repealed for these offences. The LIV said that it is:

highly likely that current Category 1 and 2 designations, mandatory sentences, and standard sentences would no longer be justifiable and would need to be reduced.^[97]

An increased burden on the criminal justice system

11.69 It is difficult to predict the specific impact on court processes of a change to the definition. But the Magistrates’ Court, the County Court, and the Supreme Court told us that a lower bar for the prosecution of ‘reckless’ offences against the person would have flow-on effects for the justice system. This could include more charges filed, more prosecutions, and potentially more appeals and subsequent re-trials.^[98]

11.70 The LIV noted that there would likely be an increase in congestion and delays in the courts. In particular, many offences are heard in the Magistrates’ Court, so an increase in people charged would increase demand on that court.^[99]

11.71 A lower recklessness test might also increase the number of applications for indictable charges to be determined in the summary jurisdiction, as more people would be charged with more serious offences, although at the lower end of the spectrum of seriousness.

11.72 There would be cost implications if more offences were determined in the higher courts, if more charges are filed for recklessness offences that are not suitable to be determined summarily. Prosecutions in the higher courts are more expensive and take longer than lower court prosecutions.^[100]

11.73 A 2020 Sentencing Advisory Council report found the overall number and proportion of people sentenced and on remand in Victorian prisons had increased in the seven financial years to 30 June 2018.^[101] The County and Supreme Courts told us that a lower bar for the prosecution of ‘reckless’ offences against the person might lead to a higher rate of accused persons being convicted.^[102] This might increase incarceration rates.^[103]

11.74 The LIV said a lower threshold for recklessness could bring a greater number of people into contact with the criminal justice system. This would increase costs and delay. It would also increase:

• the number of people in custody, sentenced and on remand. A lower threshold would indirectly affect bail laws ‘because the strength of the prosecution case is a consideration for bail’, and ‘with a lower test the prosecution would have a stronger case.’^[104]

• strains on providers of free legal assistance.^[105]

11.75 However the CBA said that higher prosecution, conviction and incarceration rates would not necessarily result, because the hierarchy of offences already provides alternative offences when the current recklessness definition is not satisfied.^[106] Lowering the threshold might ‘rebadge’ more offending under the ‘banner of “recklessness”, rather than other offences’.^[107] More people would be charged with a more serious ‘recklessness’ offence than, for example, an assault, as they are now.

11.76 While Victoria Police said conviction rates for ‘reckless’ offences would increase if the test were lowered, it also recognised that ‘There might be a transfer from one bucket [of offences] to another’ and this would depend on charging practices.^[108] VLA agreed that any increased load on the courts would depend on police charging practices.^[109]

11.77 The coronavirus (COVID-19) pandemic increased the caseload pressures on Victorian courts.^[110] We were warned that the criminal justice system is already overburdened.^[111] Changing the recklessness test would likely result in an increase on the workload of courts, demand for legal assistance, costs and delays, and higher rates of people in custody. The risks of such consequences should be avoided.

Conclusion: the recklessness test should not change

11.78 We have assessed the competing arguments in relation to whether the recklessness test should be changed. In the Commission’s view, there is not a compelling case to support reform of the recklessness test. We recommend that the current common law definition of recklessness be retained for offences against the person.

11.79 In assessing the case for reform, we developed a detailed picture of the operation of recklessness. We considered the development of recklessness in Victoria (Chapter 3) and the scope of offences involving recklessness (Chapters 4 and 5).

11.80 We considered the experience in other jurisdictions (Chapter 6) and other definitions of recklessness that were proposed to us (Chapter 7). None of the proposed definitions would achieve consistency between Victoria and other jurisdictions. We have not found another jurisdiction where the definition of recklessness is preferable to Victoria’s definition. Other jurisdictions do not provide greater clarity or have definitions of recklessness that are simpler to apply. Other jurisdictions do not use the concept of recklessness more consistently than in Victoria, or in a way that better aligns with basic principles of justice.

11.81 We examined the concerns raised by the Office of Public Prosecutions and Victoria Police about the current recklessness threshold (Chapters 8 and 9). We analysed case studies, court decisions, and offences data. We were informed by what legal practitioners and judicial representatives told us based on their practical experience, and what we understood from the experiences of victims. There is no identifiable problem with the operation of the recklessness test in Victoria that demands reform.

11.82 Most stakeholders support keeping the current recklessness test, which is relatively simple to understand and easy to apply (Chapter 10). Changing the recklessness test would dispose of a definition that has operated largely unchallenged for over 25 years and that has been central to the development of Victoria’s criminal law. The argument for re-defining fundamental concepts in the criminal law might be more compelling if an entirely new Act or Code was being considered, but we are not in that position. Disrupting the status quo to change the recklessness test alone cannot be justified.

11.83 We have also assessed the potential implications of changing the current test (Chapter 11). A new definition of recklessness for offences against the person would lead to inconsistency with other offences and would create uncertainty. Changing the definition would have many flow-on effects for an already overburdened criminal justice system. It is difficult to be precise about what these effects would be, but a lower recklessness threshold than the current one would likely require reconsideration of penalties and other offences. It would result in the loss of valuable jurisprudence, and would disproportionately affect young people and people who face disadvantage. It might also increase prosecutions, the number of people in custody, and the burden on the courts.

1. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [146]; (2020) 284 A Crim R 19, [146] (Justice Kaye).

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2. Consultation 4 (Criminal Bar Association).

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3. Submission 6 (Criminal Bar Association).

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4. Consultation 3 (Law Institute of Victoria).

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5. Submission 6 (Criminal Bar Association).

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6. Submission 10 (Office of Public Prosecutions).

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7. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [75]; (2021) 274 CLR 177, [75] (Edelman J).

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8. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [45], [93].

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9. Ian Freckelton and Mirko Bagaric, Thomson Reuters, Indictable Offences in Victoria (online at 22 November 2023) [18.40]; this presumption can be displaced expressly (by the words of the statute creating the offence) or by necessary implication: He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 566 (Brennan J).

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10. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [44] (Maxwell P, McLeish and Emerton JJA).

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11. Consultations 3 (Law Institute of Victoria), 4 (Criminal Bar Association).

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12. Consultation 4 (Criminal Bar Association).

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13. Consultation 13 (Victim Survivors’ Advisory Council).

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14. Consultation 1 (Victorian Aboriginal Legal Service).

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15. Consultation 3 (Law Institute of Victoria).

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16. Consultations 1 (Victorian Aboriginal Legal Service), 3 (Law Institute of Victoria), 4 (Criminal Bar Association), 8 (Supreme Court of Victoria), 11 (County Court of Victoria). Submission 11 (Children’s Court of Victoria).

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17. Submission 10 (Office of Public Prosecutions); If an accused person claims they were acting in self-defence, this will raise the issue of whether their actions were ‘a reasonable response in the circumstances as [they] perceived them’, but that is so regardless of the definition of recklessness that applies: Crimes Act 1958 (Vic) s 322K.

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18. Submission 13 (Supreme Court of Victoria).

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19. Consultation 11 (County Court of Victoria).

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20. Consultation 9 (Dr Greg Byrne PSM).

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21. Ibid.

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22. Submission 18 (Dr Greg Byrne PSM) citing Matthew R Ginther et al, ‘The Language of Mens Rea’ (2014) 67(5) Vanderbilt Law Review 1327, 1356.

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23. Submission 12 (Dermot Dann KC and Felix Ralph), (internal quotation marks omitted).

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24. The endangerment element would require proof that a reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed, or might place, another in danger of an appreciable risk of death (Crimes Act 1958 (Vic) s 22) or serious injury (s 23). The recklessness element would require proof that the accused foresaw that placing another in danger of an appreciable risk of death (s 22) or serious injury (s 23) was a possible consequence of their conduct in the surrounding circumstances but went ahead and engaged in the conduct; and having regard to the risk of danger of death or serious injury, the accused’s actions were unreasonable in the circumstances known to them.

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25. Consultation 3 (Law Institute of Victoria).

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26. Ibid.

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27. Consultation 4 (Criminal Bar Association).

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28. Ibid.

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29. Consultation 5 (Judicial College of Victoria).

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30. Ibid.

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31. Consultation 6 (Victoria Legal Aid).

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32. Consultation 9 (Dr Greg Byrne PSM).

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33. Submission 13 (Supreme Court of Victoria).

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34. Consultation 8 (Supreme Court of Victoria).

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35. Consultation 9 (Dr Greg Byrne PSM).

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36. Consultation 2 (Liberty Victoria).

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37. Submission 6 (Criminal Bar Association).

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38. Consultation 11 (County Court of Victoria).

    ↑

39. Consultation 3 (Law Institute of Victoria).

    ↑

40. Submission 6 (Criminal Bar Association).

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41. Ibid.

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42. Consultation 4 (Criminal Bar Association).

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43. Consultation 8 (Supreme Court of Victoria).

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44. Ashdown v The Queen [2011] VSCA 408, [191]; (2011) 37 VR 341, 406, [191].

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45. Submission 6 (Criminal Bar Association). Consultation 2 (Liberty Victoria).

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46. The CBA referred to an ‘increase in litigation’: Submission 6 (Criminal Bar Association); Liberty Victoria told us ‘Change creates greater complexity and uncertainty and potential for retrials until jurisprudence is set down.’ It also said that ‘with current sentencing practices gone, lawyers and the judiciary rely on that, so you would unquestionably have an upswing of people pleading not guilty because the test would be lower and because uncertainty of outcome encourages offenders to “roll the dice”’: Consultation 2 (Liberty Victoria); A judge of the Supreme Court warned there could be an increase in appeals ‘because of confusion about terminology’: Consultation 8 (Supreme Court of Victoria).

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47. Consultation 4 (Criminal Bar Association).

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48. Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s Criminal Justice System (Report, March 2022) 77. Different forms of disadvantage include poverty, homelessness/housing instability, lower education attainment, unemployment, trauma, exposure/victimisation to violence and/or sexual abuse, family member offending/incarceration, poor health and wellbeing including mental illness, disability or cognitive impairment, discrimination, racism and exclusion: at 73.

    ↑

49. Consultation 12 (Magistrates’ Court of Victoria).

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50. Consultation 11 (County Court of Victoria).

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51. Victorian Aboriginal organisations contributing to the Parliamentary Inquiry into Victoria’s Criminal Justice System highlighted ‘how a history of colonisation and systemic racism places Aboriginal people at greater risk of interaction with the criminal justice system’: Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s Criminal Justice System (Report, March 2022) 599.

    ↑

52. Ibid ch 4.

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53. Australian Bureau of Statistics, Victoria 2021 Census All Persons QuickStats (Web Page, 2021) <https://abs.gov.au/census/find-census-data/quickstats/2021/2>.

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54. Submission 12 (Dermot Dann KC and Felix Ralph).

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55. The Victorian Government has stated its intention to raise the minimum age of criminal responsibility first from 10 years old to 12 years old, and then to 14 by 2027; and to codify the existing common law presumption of doli incapax which provides that a child under 14 cannot be held criminally responsible unless they knew their actions were wrong. Jaclyn Symes (Attorney-General), ‘Keeping Young People out of the Criminal Justice System’ (Media Release, 26 April 2023).

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56. This common law rebuttable presumption is known as the principle of doli incapax meaning ‘incapable of crime’: R v ALH [2003] VSCA 129, [75]; (2003) 6 VR 276, 295 [75].

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57. Children, Youth and Families Act 2005 (Vic) s 3.

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58. The Children’s Court does not have jurisdiction to determine offences of murder, attempted murder, manslaughter, child homicide, homicide by firearm, arson causing death and culpable driving causing death; those offences must be dealt with in the Supreme Court or the County Court: Ibid s 516(1)(b)-(c).

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59. Sentencing Act 1991 (Vic) s 3.

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60. Ibid s 7(1)(d) and (da).

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61. Youthlaw is Victoria’s state-wide community legal centre for young people under 25 years of age: Submission 16 (Youthlaw). Consultation 2 (Liberty Victoria). See also Consultation 8 (Supreme Court of Victoria).

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62. Kathryn Monahan, Laurence Steinberg and Alex R Piquero, ‘Juvenile Justice Policy and Practice: A Developmental Perspective’ (2015) 44 Crime and Justice 577, 578.

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63. Sarah-Jayne Blakemore and Suparna Choudhury, ‘Development of the Adolescent Brain: Implications for Executive Function and Social Cognition’ (2006) 47(3) Journal of Child Psychology and Psychiatry 296, 297, 300; Elizabeth R Sowell et al, ‘Mapping Continued Brain Growth and Gray Matter Density Reduction in Dorsal Frontal Cortex: Inverse Relationships during Postadolescent Brain Maturation’ (2001) 21(22) Journal of Neuroscience 8819, 8826. ‘The corpus callosum, the dense mass of fibres that connects the two hemispheres of the brain, has also been found to undergo region-specific growth … up until the mid-twenties’: Blakemore and Choudhury, 298.

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64. Sentencing Advisory Council, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System, Report 3: Sentencing Children Who Have Experienced Trauma (Report, June 2020) xii.

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65. R v McGaffin [2010] SASCFC 22, [69]; (2010) 206 A Crim R 188, 210 [69] (White J).

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66. DPP v TY (No 3) [2007] VSC 489, [43]; (2007) 18 VR 241, 242 [43] (Bell J).

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67. Azzopardi v The Queen [2011] VSCA 372, [34]; (2011) 35 VR 43, 53 [34] (Redlich JA).

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68. Webster (a pseudonym) v The Queen [2016] VSCA 66, [8]; (2016) 258 A Crim R 301, 303 [8] (Maxwell P and Redlich JA).

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69. Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s Criminal Justice System (Report, March 2022) 113–23.

    ↑

70. Submission 16 (Youthlaw).

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71. Submissions 6 (Criminal Bar Association), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 17 (Victoria Legal Aid). Consultation 3 (Law Institute of Victoria).

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72. Submissions 6 (Criminal Bar Association), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 14 (Law Institute of Victoria), 16 (Youthlaw), 17 (Victoria Legal Aid).

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73. Submission 6 (Criminal Bar Association).

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74. Ibid.

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75. Consultation 2 (Liberty Victoria).

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76. Ibid.

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77. Submissions 3 (Kavaleris, Shehnah, Aforozis, Vinci (students at the University of Melbourne)), 6 (Criminal Bar Association), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 14 (Law Institute of Victoria). Consultation 1 (Victorian Aboriginal Legal Service).

    ↑

78. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 240.

    ↑

79. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 21.

    ↑

80. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 281.

    ↑

81. Submissions 6 (Criminal Bar Association), 7 (Victoria Police), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 14 (Law Institute of Victoria), 15 (County Court of Victoria), 16 (Youthlaw). Consultation 1 (Victorian Aboriginal Legal Service).

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82. Submission 17 (Victoria Legal Aid).

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83. Submission 14 (Law Institute of Victoria).

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84. Submission 6 (Criminal Bar Association).

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85. Consultation 8 (Supreme Court of Victoria).

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86. Submission 10 (Office of Public Prosecutions).

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87. Submissions 6 (Criminal Bar Association), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 14 (Law Institute of Victoria), 16 (Youthlaw), 17 (Victoria Legal Aid). Consultations 1 (Victorian Aboriginal Legal Service), 8 (Supreme Court of Victoria), 11 (County Court of Victoria).

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88. In addition to the offences against the person that include recklessness that attract the mandatory or presumptive sentencing schemes (see Chapter 4), an offence to contravene a supervision or interim supervision order under s 169 of the Serious Offenders Act 2018 (Vic) also triggers the mandatory sentencing provisions. A minimum term of imprisonment of at least 12 months must be imposed in the case of a reckless contravention of a restrictive condition, unless a special reason exists: Sentencing Act 1991 (Vic) s 10AB, 10A.

    ↑

89. Sentencing Act 1991 (Vic) s 5(2H)(e), 5(2HC), 5(2I), 10A(2)(e), 10A(2B), 10A(3).

    ↑

90. Buckley v The Queen [2022] VSCA 138, [44]; DPP v Bowen [2021] VSCA 355, [11]; (2021) 65 VR 385, 388 [11]. We note that an exception where an offender aged 18–21 years had ‘a particular psychosocial immaturity that resulted in a substantially diminished ability to regulate his or her behaviour’ was repealed in 2018: Justice Legislation Miscellaneous Amendment Act 2018 (Vic) s 79(2).

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91. Submissions 6 (Criminal Bar Association), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 14 (Law Institute of Victoria), 16 (Youthlaw), 17 (Victoria Legal Aid). Consultations 1 (Victorian Aboriginal Legal Service), 8 (Supreme Court of Victoria), 11 (County Court of Victoria).

    ↑

92. Submission 12 (Dermot Dann KC and Felix Ralph).

    ↑

93. Sentencing Act 1991 (Vic) s 5(1)(a).

    ↑

94. Buckley v The Queen [2022] VSCA 138, [5].

    ↑

95. Submission 9 (Liberty Victoria).

    ↑

96. Submissions 12 (Dermot Dann KC and Felix Ralph), 16 (Youthlaw).

    ↑

97. Submission 14 (Law Institute of Victoria).

    ↑

98. Submissions 13 (Supreme Court of Victoria), 15 (County Court of Victoria). Consultation 12 (Magistrates’ Court of Victoria).

    ↑

99. Submission 14 (Law Institute of Victoria).

    ↑

100. Victorian Law Reform Commission, Committals (Report No 41, March 2020) 55 [5.27].

     ↑

101. Paul McGorrery and Zsombor Bathy, Time Served Prison Sentences in Victoria (Report, February 2020) 17–18.

     ↑

102. Submissions 13 (Supreme Court of Victoria), 15 (County Court of Victoria).

     ↑

103. Submission 15 (County Court of Victoria). VALS warned ‘If there’s any danger of an increase in rates of incarceration, then that should be fully costed … It is dangerous to make a change that increases the incarceration rate when the system is already under strain’: Consultation 1 (Victorian Aboriginal Legal Service).

     ↑

104. Consultation 3 (Law Institute of Victoria). The Parliamentary Inquiry into Victoria’s Criminal Justice System found that ‘Women, particularly Aboriginal women and women experiencing poverty, are disproportionately remanded under current bail legislation’ and ‘Aboriginal Victorians are disproportionately represented among the remand population’: Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s Criminal Justice System (Report, March 2022) 449 (Finding 37), 450.

     ↑

105. Submission 14 (Law Institute of Victoria).

     ↑

106. Submission 6 (Criminal Bar Association).

     ↑

107. Ibid.

     ↑

108. Consultation 10 (Victoria Police).

     ↑

109. Consultation 6 (Victoria Legal Aid).

     ↑

110. Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s Criminal Justice System (Report, March 2022) 491 (Finding 43).

     ↑

111. Submissions 6 (Criminal Bar Association), 12 (Dermot Dann KC and Felix Ralph). Consultation 1 (Victorian Aboriginal Legal Service).

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