Recklessness: Report
9. Analysis of examples
Overview
• In this chapter we summarise and discuss three hypothetical scenarios and several other examples provided by Victoria Police and the Office of Public Prosecutions (OPP).
• While we have endeavoured to consider the examples fairly, each case turns on its facts and there can be a wide range of opinion about the ‘appropriate’ or ‘desirable’ outcome in a particular case. There are a myriad of variables in the criminal law process that may affect the outcome of a case.
• Overall, the examples provided do not make a strong case for changing the recklessness test.
The Office of Public Prosecutions’ examples
9.1 To support changing the definition of recklessness, the OPP provided three hypothetical scenarios and other examples said to illustrate problems with the recklessness test. We published the scenarios in our issues paper and some people referred to them in submissions and during consultations. We summarise and analyse the examples in this chapter.
Hypothetical one: a punch
9.2 The first scenario involved a punch causing a traumatic brain injury. The OPP said it would be very difficult to prove recklessly causing serious injury as the person delivering the punch might only have been aware their punch would probably cause an injury, not a serious injury.
9.3 But the Criminal Bar Association (CBA) told us that in its experience, cases with similar facts to this scenario do lead to convictions for recklessly causing serious injury.[1] The Court of Appeal has accepted that ‘a forceful punch to the head is highly dangerous’, and ordinarily, anyone delivering such a punch will foresee there is a high probability of serious injury.[2]
9.4 There are many recent examples of unprovoked attacks that have caused traumatic injury and have resulted in convictions for recklessly causing serious injury, both at trial[3] and by guilty plea.[4]
Hypothetical two: a kick
9.5 The second scenario suggested the act of kicking can have serious consequences (like breaking a rib or puncturing a lung or organ) that a person may foresee as possible but not necessarily probable.[5]
9.6 Several stakeholders responded by suggesting that the accused would be found guilty of recklessly causing serious injury if there was sufficient evidence. Even if the evidence did not support a conviction for a serious injury offence, the accused could be found guilty of intentionally causing injury, which carries a maximum penalty of 10 years imprisonment.[6]
9.7 A judge of the Supreme Court told us that if a person kicks someone lying on the ground in the head and causes a serious injury, ‘a jury should be able to be satisfied that the accused foresaw the probability that that would cause serious injury’.[7]
Hypothetical three: a police siege
9.8 The third scenario described a police siege.[8] The person under siege fired bullets in the opposite direction from where he could see police congregating. The bullets came close to striking two police officers who had moved in that direction. The OPP said it would be difficult to secure convictions for the reckless endangerment offences. But the CBA’s analysis concluded otherwise:
a person who has seen police approaching the front of [their] house, who has demonstrated themselves to be determined to avoid capture, and who fires a weapon out the back of the house, will inevitably be found to have fired out the back of the house precisely because of their awareness of the likely presence of police at the back. The problem of proof postulated in this scenario does not reflect the real-world analysis of the type engaged in by juries.[9]
9.9 Dr Greg Byrne said it would be ‘implausible’ for a person who had barricaded themselves in not to realise that the police might move about, and a jury would be entitled to reject a different version of events.[10]
The OPP’s further examples
9.10 The OPP provided additional examples which it said demonstrate practical problems with the recklessness test.[11]
Example one: Wilson
9.11 Example one was R v Wilson[12] (also a Victoria Police example, discussed below at [9.31]). The OPP said this case ‘demonstrates the difficulties in relying on responses given in records of interview to prove foresight of probable consequences’.[13]
Example two: a country road at night
9.12 Example two was a hypothetical scenario where person A is driving a car with a front seat passenger (person B) on a country road at night in the wet. A is driving at a speed of 80 kilometres per hour in a 60 zone and with only one working headlight.[14] A fails to give way to another vehicle, driven by person C, and causes a collision. C and B suffer minor injuries.
9.13 To prove charges of reckless conduct endangering persons,[15] the prosecution would need to prove that A was aware their conduct would probably place B and C at risk of serious injury. The OPP said this would be difficult because any risk of serious injury to passenger B would involve A exposing themself to a comparable risk, and ‘Juries find it hard to grapple with that.’[16]
9.14 While alternative offences would be available, the OPP said these may not reflect A’s moral culpability.[17] But A’s driving was not necessarily an egregious display of indifference to the safety of others.[18] The alternative offence of dangerous driving is not insignificant and carries serious penalties.[19]
Example three: crashing into police
9.15 Example three was a hypothetical scenario where person A drives a stolen car into a petrol station, followed by a police car with flashing lights and sirens on. When a second police car moves in to block A’s exit, A accelerates to flee but misjudges the scene and collides with the driver-side of the second police car.
9.16 The Crimes Act 1958 (Vic) includes an offence of recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving,[20] and an aggravated version of the offence.[21] The OPP suggested it could be difficult to prove that A was aware of the probability they would expose police to a risk to safety.
9.17 This would depend on what inferences could be drawn from the available evidence of the surrounding circumstances, including the position of the vehicles, their speed and direction, and the visibility of the scene. Evidence could include CCTV footage, body-worn camera footage and witness accounts.
9.18 Even if the prosecution could not prove A’s recklessness as to police safety, other serious offences would be available, including damaging an emergency service vehicle, which carries a maximum penalty of five years imprisonment,[22] or dangerous or negligent driving while pursued by police, which carries a maximum penalty of three years imprisonment.[23]
Example four: workplace endangerment (Hooper)
9.19 Example four was DPP v Hooper,[24] a judge-alone trial involving the offence of recklessly endangering persons at a workplace.[25] The OPP told us the workplace endangerment offence ‘demonstrate[s] how far the Nuri/Campbell error has spread into Victorian law’.[26] The OPP said the offence is rarely prosecuted ‘because of the difficulty of proving foresight of probability of risk’.[27]
9.20 DPP v Hooper involved the death of a man following a fault with a breathing mask in a hyperbaric oxygen chamber. The company and its director were acquitted of workplace reckless endangerment as the judge could not be satisfied of the objective endangerment element or the subjective recklessness element of the offence.[28] The two accused were convicted of other offences under the Occupational Health and Safety Act 2004 (Vic) and fined $550,000 and $176,750 respectively.[29]
9.21 The OPP also suggested that this offence can be harder to prove than workplace manslaughter.[30] This is unsurprising given workplace manslaughter applies criminal negligence as its fault element.[31]
Example five: stabbing
9.22 Example five was a case study from the OPP’s file review.[32] From the front seat of a car, person A lashed out and stabbed person B (who was in the back seat) in the leg at least four times. B sustained an arterial injury requiring surgery. A told police he swung the knife to scare B and thought he had stabbed the seat.
9.23 A was charged with intentionally and recklessly causing serious injury, but the prosecution accepted a guilty plea to intentionally causing injury. The OPP said it would be difficult to prove A was aware his conduct would probably cause serious injury, and it was arguable that the arterial injury was not serious.
9.24 Given the matter resolved to an intentional charge, ‘serious injury’ may have been the critical element rather than the threshold for recklessness. As noted earlier, intentionally causing injury is a serious offence, with a maximum penalty of 10 years imprisonment.
Example six: a punch in the face
9.25 Example six was a case study from the OPP’s file review.[33] Person A stole liquor from a bottle shop. Police pursued A. A began yelling at police aggressively. The situation escalated. Police officer B used capsicum spray in A’s face. A struck B in the face. B used the spray again. Police officer C struck A. A then punched C in the face, breaking his jaw in three places.
9.26 A was charged with recklessly causing serious injury to C, but the prosecution accepted a plea of guilty to recklessly causing injury. The OPP said it faced difficulty proving if A was aware his punch would probably result in serious injury in circumstances where A:
• was apparently affected by drugs or alcohol
• had been sprayed with capsicum spray
• suffered from mental health issues
• was deemed unfit to be interviewed by police.[34]
9.27 We were grateful to have the opportunity to speak with the Victoria Police member who was victim C in this matter. He told us:
I’m surprised [the offender] wasn’t charged with intentional for what he did … I couldn’t understand why it wasn’t intentional, an intentionally cause injury … It was a deliberate act, that was my opinion.[35]
9.28 Victim C also expressed disappointment with the resolution process.
9.29 It is not clear on the details provided why a charge of intentionally cause injury was not pursued.
Victoria Police’s examples
9.30 Victoria Police referred to three cases (R v Wilson,[36] R v Abdul-Rasool,[37] and DPP v Saurini)[38] as examples of how the current definition of recklessness may lead to undesirable outcomes.[39] In our view these cases do not demonstrate problems with the recklessness test that require reform.
R v Wilson
9.31 Wilson and Carman entered a restaurant in balaclavas, carrying a cut-down rifle and a pistol. People were slow to respond to their command to get on the floor, so the men said it was not a joke and the guns were not toys. They discharged several bullets from the rifle, which had a silencer. A kitchen worker thought Carman might have been a staff member joking around, so he tried to wave the pistol (which appeared not to be working) away. Wilson emphasised ‘This is serious’, and discharged two bullets from his rifle into the kitchen between the two workers. One bullet hit a stack of plates. The kitchen staff dropped to the floor. Wilson and Carman took around $4,000 from the registers and fled.
9.32 Both men were convicted at trial of multiple offences including reckless endangerment (see Chapter 4 for the elements of the endangerment offences). But the endangerment convictions were quashed on appeal. The court found there was insufficient evidence for the jury to infer that Wilson had foreseen that an appreciable risk of serious injury was a probable consequence of discharging his rifle.[40] As Wilson had not been asked nor said anything about his foresight in his record of interview, the prosecution had failed to exclude all other inferences consistent with innocence.[41] Circumstantial evidence can only prove a fact beyond reasonable doubt if all other reasonable hypotheses are excluded.[42]
9.33 Wilson and Carman did not escape criminal liability. They were convicted of armed robbery and theft and were each sentenced to significant terms of imprisonment.[43] The discharge of the rifle was treated as seriously aggravating the armed robbery.[44]
R v Abdul-Rasool
9.34 Abdul-Rasool’s (AR) daughter was placed in a refuge. Not knowing her daughter’s whereabouts, AR went to her daughter’s school and met with the deputy principal and an interpreter, demanding to know where her daughter was. AR became distressed. She pulled a can of petrol out of a bag she was carrying and poured petrol over herself. AR also placed a cigarette lighter on top of her handbag next to her. AR was heard to say, ‘I am going to burn the school, I am going to burn you’ and ‘I’ll kill myself and you and burn the school down.’
9.35 When arrested and interviewed by police, AR said she had only considered the harm to herself and did not consider the risk of harm to which she was exposing others. At trial, a jury convicted AR of reckless conduct endangering life, but the Court of Appeal overturned the conviction, finding that criminal liability cannot arise from future conduct that has not yet been performed. AR would have created a risk if she had attempted to ignite the petrol, but the incident lasted about an hour and over that time AR made no attempt to ignite the fuel. The facts did not fit the elements of the reckless endangerment charge.
9.36 On appeal it was also noted that an appropriate charge was overlooked, as AR’s contemporaneous statements ‘plainly constituted a threat to kill … for which she could have been tried’.[45]
DPP v Saurini
9.37 Saurini was smoking cannabis in a parked Holden Commodore. The Commodore’s headlights were off. There was no street lighting. Close to midnight, a police van on patrol stopped in front of the Commodore. The police van’s high beams, the LED light mounted on its bumper bar, and its ‘takedown’ lights were all turned on, directed at the front of the Commodore. The police lights and siren were not activated. As the two police officers were getting out of their vehicle, Saurini, then aged 19 and substance-affected, started driving. His vision was impaired by condensation inside the Commodore and the police van’s lights. The Commodore collided with part of the police van and one of the police officers, who sustained serious leg injuries.
9.38 Saurini faced trial on several charges,[46] including recklessly exposing an emergency worker to risk by driving (one charge for each police officer)[47] and alternative charges of negligently causing serious injury[48] and dangerous driving causing serious injury.[49]
9.39 Saurini’s defence was that when he drove off, he did not know and was not reckless as to the probability that there was a police vehicle and police officers behind the bright lights. The jury acquitted Saurini of the reckless exposure charge. The court concluded this was ‘an unsurprising verdict … there was evidence in the trial that Victoria Police’s own accident reconstruction unit had declined to even attempt a reconstruction of the collision, in part at least because of the brightness of the lights that shone upon the Commodore’.[50]
9.40 The jury found Saurini guilty of negligently causing serious injury. He was sentenced to a community correction order, a disposition the prosecution agreed with. The sentence took into account the fact that almost two years before his trial, Saurini had offered to plead guilty to the charge for which the jury ultimately convicted him, but that offer was rejected by the prosecution.[51]
Ignatova v The Queen
9.41 Victoria Police also referred us to the case of Ignatova v The Queen (‘Ignatova’),[52] saying it illustrates ‘how the evidence required to prove a recklessly causing serious injury charge is close to or could be the same evidence required to prove an intentionally causing serious injury charge’.[53] But the LIV pointed us to Ignatova as an example of inappropriate charging.[54]
9.42 When Ignatova met her former husband for the weekly handover of their four-year-old daughter, she gave him a note saying the child had a rash on her bottom and had received medical attention. The child appeared to be in pain, so her father took her to a doctor. A forensic paediatrician found burns on the child’s left side, genital area, and inner thighs, caused by scalding with hot liquid. Police were alerted. Ignatova was interviewed by police and denied scalding her daughter. She said the child had soiled herself, so she had put her in the bath to clean her. She tested the water first then used the shower hose to wash the child’s bottom with lukewarm water.
9.43 Ignatova faced trial on a charge of intentionally causing serious injury. But after the prosecutor conceded the evidence did not support that charge, the jury were left to consider recklessly causing serious injury as the alternative. Ms Ignatova was convicted, but successfully appealed.
9.44 The jury could only convict Ignatova of recklessly causing serious injury if they were satisfied that she had tested the temperature of the water and foresaw the probability that it was so hot that the child would be burnt. But if Ignatova had tested the water and knew it was too hot, the charge of intentionally causing serious injury should have been left to the jury.[55] It would have ‘required impermissible mental agility’ for the jury to conclude that Ignatova had tested the water and found it sufficiently hot that she was reckless as to her daughter suffering serious injury, but not so hot to have intended to cause serious injury.[56]
9.45 Several inferences about Ignatova’s state of mind were open. Ignatova might have:
• Failed to test the temperature of the water.
• Tested the water and mistakenly considered that the temperature was not hot enough to burn the child.
• Tested the water but not foreseen the risk that a change in water pressure would increase its temperature so that the child would probably be burnt.
9.46 Any of these factual findings would have supported a conviction for negligently causing serious injury, but that charge was not included on the trial indictment.[57]
9.47 Ignatova illustrates the importance of exercising prosecutorial discretion rigorously, with a full appreciation of the hierarchy of charges available, to ensure charges are supported by clear and cogent evidence.
Victoria Police’s family violence examples
9.48 In its submission, Victoria Police said that the probability threshold is particularly problematic for family violence where:
• an action results in serious harm but the accused did not foresee that serious harm would be the outcome (for example, where a person seriously harms an infant by shaking), or
• serious injury is inflicted but is not physically obvious (for example, non-fatal strangulation cases).[58]
Seriously harming an infant by shaking
9.49 Victoria Police described a situation where a person shakes a baby ‘to manage or stop the baby from crying’ or as ‘an act of frustration’ and causes serious harm.[59] It said that people responsible for seriously harming infants are ‘under-penalis[ed]’.[60]
9.50 Cases that involve baby shaking are complex and involve a high incidence of death. It can be difficult to establish the cause of injury and the level of force used.[61] The chosen charge needs to fit the facts of the case and be supported by evidence.
9.51 DPP v QPX[62] illustrates the complexity of these cases. A mother pleaded guilty to infanticide of one of her newborn twin daughters (M) and recklessly causing serious injury to her other daughter (N). She had shaken the babies but was adamant she never intended harm or acted in anger; her only desire was to settle the babies, who had colic symptoms. In this context, the sentencing judge questioned the appropriateness of the charges filed and prosecuted:
The police … laid charges of murder (in respect of M) and alternative charges of attempted murder and intentionally causing serious injury (in respect of N) … after committal she was indicted by the [DPP] on one charge of infanticide in respect of M and one charge of recklessly causing serious injury in respect of N … there was no evidence sufficient to support the charges brought by the police. The mental elements of those charges could never have been legally established. …On the facts of this case it must be seriously doubted as to whether [the recklessly causing serious injury] charge was, in the circumstances, supported by the evidence. However, having regard to the fact that QPX pleaded guilty … [the] charges are established …
[the injuries] were inflicted by a loving mother suffering from significant emotional and psychological compromise. Her moral culpability … is either non-existent or of such a low degree as to be negligible. [63]
9.52 If the prosecution cannot prove that a person intended to cause serious harm or foresaw that their actions were likely to cause serious harm, the person should not be found guilty of either intentionally or recklessly causing serious injury. Negligently causing serious injury might be an appropriate alternative.[64]
9.53 Where there is sufficient evidence, a conviction for recklessly causing serious injury can be achieved.[65]
Choking, suffocation and non-fatal strangulation[66]
9.54 Victoria Police told us that physical harm may not be evident where someone uses their body weight, a pillow or other instrument to apply pressure to another person’s neck, so proving recklessness is challenging.[67] It also said:
The person most likely to have the injuries in that scenario is the perpetrator with defensive wounds, and there’ll be nothing on the woman, and so it’s not getting as far as charges even being laid.[68]
9.55 We were concerned to hear that instances of choking, suffocation or strangulation are being left uncharged by police because an injury is not visible. Within the context of family violence, these acts represent ‘a chilling exploitation of physical power or dominance.’[69] The Court of Appeal has acknowledged that ‘choking is a particularly serious form of violence. Strangulation to the point of unconsciousness has potentially life-threatening consequences.’[70]
9.56 It is ‘generally recognised that the absence of visible injuries to the neck doesn’t mean that … strangulation [has not] occur[red]’.[71] The definition of injury in the Crimes Act includes unconsciousness and harm to mental health. Serious injury includes an injury that endangers life.[72]
9.57 In practice, injury offences can be used to capture instances of choking, suffocation and non-fatal strangulation where there is sufficient evidence.[73] Where injury cannot be proved, an endangerment charge might be available, and at the very least, an assault charge would ensure such behaviour is captured by the criminal law.
9.58 We note the introduction of the Crimes Amendment (Non-fatal Strangulation) Bill 2023 to create two new Crimes Act offences:
• New section 34AD will create the offence of ‘Non-fatal strangulation intentionally causing injury’, with a maximum penalty of 10 years imprisonment.[74] This offence will cover a person who intentionally chokes, strangles or suffocates a family member, intending to cause an injury and resulting in an injury.
• New section 34AE will create the offence of ‘Non-fatal strangulation’, with a maximum penalty of five years imprisonment.[75] This offence will cover a person who intentionally chokes, strangles or suffocates a family member. It will not require proof of injury.
Contravening a Family Violence Intervention Order
9.59 Although this matter is outside our terms of reference, Victoria Police also told us that there is ‘a gap in [the] police response to hold perpetrators accountable for family violence’ because of the judgment in DPP v Cormick (‘Cormick’).[76]
9.60 Before Cormick, Victoria Police interpreted the summary offence of contravening a Family Violence Intervention Order[77] as a strict liability offence.[78] But intention is a fault element of this offence.[79] Victoria Police said that because of the challenge of proving intention, ‘the definition of “recklessness” will become critical in family violence contravention cases.’[80] But requiring the prosecution to prove intention is not ‘unduly burdensome’:
Consistent with most crimes, intent will be proved inferentially … having regard to the context and nature of the acts [of the accused in breaching the order] including their content and frequency, it will often present little difficulty for the prosecution to prove purpose and intent. [81]
Conclusion
9.61 Criminal cases have many variables, and there can be different views about the ‘appropriate’ or ‘desirable’ outcome in a particular case.
9.62 Overall, the offered examples do not indicate a problem with the recklessness test that requires reform. Rather, the examples highlight that:
• charges must be supported by clear and cogent evidence
• charging decisions must be made with a full appreciation of the hierarchy of offences available
• a charge cannot result in a finding of guilt unless there is sufficient evidence to prove all its elements, including fault elements, to the criminal standard.
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Submission 6 (Criminal Bar Association) (emphasis in original).
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DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150, [44]. See also DPP v Lindsay [2021] VCC 636, [81].
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See Kennedy v The King [2023] VSCA 86; DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150.
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McLean v The King [2023] VSCA 6; Mazzonetto v The Queen [2022] VSCA 153; DPP v Lindsay [2021] VCC 636; DPP v Dow [2020] VCC 1605; Al Wahame v The Queen [2018] VSCA 4; R v Wyley [2009] VSCA 17.
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Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023). The scenario involved kicking a prone victim in the torso.
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Submission 6 (Criminal Bar Association). Consultation 9 (Dr Greg Byrne PSM); See also Consultation 2 (Liberty Victoria): ‘kicking assault – ‘intentionally causing injury’ – can be a significant offence with significant penalties. It is taken seriously in the Magistrates’ Court and has significant opprobrium connected to it.’
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Consultation 8 (Supreme Court of Victoria).
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Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023). The OPP’s police siege scenario may have found inspiration from the case of DPP v Le [2019] VSCA 258, where at least 14 members of the Clandestine Laboratory Squad of Victoria Police attempted to force entry of a house owned by Mr Le, who was inside at the time. Soon after the first attempt by police to gain entry, Mr Le took up a loaded revolver and fired two shots towards the front door and at least another three shots towards the window of the front room. There were police officers behind both the front door and the window. Mr Le pleaded guilty to 14 charges of conduct endangering life (Crimes Act 1958 (Vic) s 22) and a firearm offence (Firearms Act 1996 (Vic) s 5(1)). He was sentenced to a term of five years and three months imprisonment, with a non-parole period of four years. The DPP appealed against sentence. One of the grounds of appeal argued that an alternative state of knowledge based on recklessness (that the offender ought to have known that the people attempting to enter the house were police) was an aggravating factor of the charges of conduct endangering life. The Court dismissed the appeal but left open the question of the extent to which recklessness as to whether victims are police officers, acting in the course of their duty, is an aggravating factor for an offence of violence.
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Submission 6 (Criminal Bar Association).
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Consultation 9 (Dr Greg Byrne PSM).
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Examples 1-4 were included in Submission 10 (Office of Public Prosecutions) dated 3 March 2023. Examples 5 and 6 were included in the OPP’s file review dated 14 July 2023: Supplementary Submission 20 (Office of Public Prosecutions).
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R v Wilson & Carman [2005] VSCA 78.
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Submission 10 (Office of Public Prosecutions).
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A similar hypothetical was raised by Justice Edelman in Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [88]; (2021) 274 CLR 177, 214 [88] (Edelman J). In Justice Edelman’s example, a driver, driving at high speed without headlights on, strikes a pedestrian. If the driving occurred on a quiet country road at midnight, Justice Edelman suggested ‘it would not have been foreseen as probable that any person would be on the road’, so the accused might successfully defend a charge of causing serious injury recklessly, which would be a ‘surprising outcome’ of the application of the Victorian recklessness test. Melbourne University Law School students responded to Justice Edelman’s example by suggesting a driver in those circumstances should not be considered ‘highly morally culpable’, and a guilty finding for an alternative offence would be open: Submission 5 (McGavin, Jenkins-Smales, NcNaughton, Allen (students at the University of Melbourne)).
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Crimes Act 1958 (Vic) s 23.
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Consultation 7 (Office of Public Prosecutions).
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Submission 10 (Office of Public Prosecutions).
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Compare the circumstances in DPP v Reid [2020] VSCA 247. The offender, who was a P-plate driver, had consumed methylamphetamine and alcohol, cheated an alcohol-interlock device, used a mobile phone while driving at various speeds between 140 and 200 kilometres per hour, and crossed double white centre lines. The offender pleaded guilty to two s 22 reckless endangerment offences and a culpable driving causing death.
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Dangerous driving carries a maximum penalty of two years imprisonment and/or a maximum fine of 240 penalty units: Road Safety Act 1986 (Vic) s 64. Penalty units determine the amount a person is fined. From 1 July 2023 to 30 June 2024, the value of a penalty unit is $192.31. The value of a penalty unit is set annually by the Victorian Treasurer and is updated on 1 July each year: Department of Justice and Community Safety, Penalties and Values (Web Page, 28 June 2023) <https://www.justice.vic.gov.au/justice-system/fines-and-penalties/penalties-and-values>. The offence of dangerous driving also requires mandatory cancellation of the driver’s licence or permit and disqualification from obtaining a licence or permit for at least six months, and if the vehicle was driven at a speed of 45km/h more than the speed limit, the court must disqualify the driver from obtaining a licence or permit for at least 12 months: Road Safety Act 1986 (Vic) s 64(2).
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Crimes Act 1958 (Vic) s 317AE. This offence is outside ‘offences against the person’, the focus of our terms of reference.
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Ibid s 317AF. This offence is outside ‘offences against the person’, the focus of our terms of reference.
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Ibid s 317AG(1). This offence has a recklessness element, but the recklessness attaches to ‘recklessly driv[ing] a motor vehicle so that damage is caused to an emergency service vehicle’ rather than recklessly exposing someone to a risk to safety.
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Ibid s 319AA(1).
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DPP v Hooper (County Court of Victoria, Fox J, 13 July 2021).
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Occupational Health and Safety Act 2004 (Vic) s 32. This offence is outside ‘offences against the person’, the focus of our terms of reference.
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Submission 10 (Office of Public Prosecutions).
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Consultation 7 (Office of Public Prosecutions). We note that as recently as June 2023 a diving company specialising in underwater tank inspections and repairs pleaded guilty in the County Court to recklessly engaging in conduct that placed workers in danger of serious injury and was fined $600,000: WorkSafe Victoria, Diving Company Fined $730,000 for Reckless Safety Breaches, (Web Page, 27 June 2023) <https://www.worksafe.vic.gov.au/news/2023-06/diving-company-fined-730000-reckless-safety-breaches>. In September 2023, WorkSafe charged the Victorian Building Authority under section 32 of the Occupational Health and Safety Act for recklessly engaging in conduct that placed another person at a workplace in danger of serious injury, after an inspector took their own life: WorkSafe Victoria, Building Regulator Charged Following Inspector’s Death (Web Page, 28 September 2023) <https://www.worksafe.vic.gov.au/news/2023-09/building-regulator-charged-following-inspectors-death>.
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DPP v Hooper (County Court of Victoria, Fox J, 13 July 2021).
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Office of Public Prosecutions (Vic), Annual Report 2021/22 (Report, 2022) 34.
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Submission 10 (Office of Public Prosecutions); Occupational Health and Safety Act 2004 (Vic) s 39G.
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The offence of workplace manslaughter was introduced by the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) and came into effect on 1 July 2020. It only applies to workplace deaths which occur after that date. In practice, the workplace reckless endangerment offence captures high culpability offending prior to the introduction of the workplace manslaughter offence: see, eg, Anderton (VWA) v Jackson (Latrobe Valley Magistrates’ Court, 19 December 2018) discussed in R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113, [121]. An employee had been standing in a large industrial bin raised on a forklift operated by the business owner. The owner did not have a forklift licence. The bin was being lifted with the employee inside to enable him to throw scrap metal into a larger bin. The bin, which was not secured, fell from the forklift and the employee was killed. The business owner was sentenced to six months imprisonment. See also Orbit Drilling Pty Ltd v The Queen; Smith v The Queen [2012] VSCA 82. The company pleaded guilty to a breach of section 32 of the OHS Act. An unsupervised and inexperienced driver was directed by Orbit’s site manager to drive a heavy truck down a steep off-road slope. The truck had a known brake defect. The driver lost control and the truck overturned, killing the driver. By pleading guilty, the company admitted it was aware that requiring its employee to drive the truck down the slope would probably place him in danger of serious injury, and the risk was recklessly disregarded.
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Supplementary Submission 20 (Office of Public Prosecutions).
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Ibid.
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Ibid.
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Consultation 14 (Police member who was a victim of an offence). This was the view of the victim in their personal capacity, and not attributed to Victoria Police.
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R v Wilson & Carman [2005] VSCA 78.
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R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586.
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DPP v Saurini [2022] VCC 1054.
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Submission 7 (Victoria Police).
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R v Wilson & Carman [2005] VSCA 78, [18] (Batt JA, Buchanan and Vincent JJA agreeing). On appeal, the prosecutor submitted that it was unfortunate that the conduct endangering life charges had proceeded to trial. Justice Batt observed the prosecutor did not appear to be strongly committed to maintaining the guilty verdicts on the statutory alternative endangerment charges.
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Ibid (Batt JA, Buchanan and Vincent JJA agreeing).
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Doney v The Queen [1990] HCA 51, [8]; (1990) 171 CLR 207, 211.
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Wilson was ultimately sentenced to a total effective sentence of eight years imprisonment with a non-parole period of five years and six months. Carman was ultimately sentenced to a total effective sentence of eight years imprisonment with a non-parole period of six years: R v Wilson & Carman [2005] VSCA 78, [20], [24], [27]–[28] (Batt JA)
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R v Wilson & Carman [2005] VSCA 78, [26] (Batt JA).
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R v Abdul-Rasool [2008] VSCA 13, [66] (Redlich JA); Crimes Act 1958 (Vic) s 20.
-
A conviction on any of the charges would require Mr Saurini to be disqualified from driving: Sentencing Act 1991 (Vic) ss 87P, 89.
-
Crimes Act 1958 (Vic) s 317AF(1)(b). This offence is outside ‘offences against the person’, the focus of our terms of reference.
-
Ibid s 24.
-
Ibid s 319(1A) and 422A.
-
DPP v Saurini [2022] VCC 1054, [20].
-
Ibid [29].
-
Ignatova v The Queen [2010] VSCA 263.
-
Submission 7 (Victoria Police).
-
Submission 14 (Law Institute of Victoria).
-
Ignatova v The Queen [2010] VSCA 263, [38] (Neave JA).
-
Ibid [8] (Ashley JA).
-
Compare with the case of Mok v The Queen [2011] VSCA 247, where the offender was found guilty by a jury of negligently causing serious injury to his infant son by placing him in a 65 degrees Celsius bath. He was acquitted of the charges of intentionally causing serious injury and recklessly causing serious injury. Prior to the trial he had offered to plead guilty to negligently causing serious injury, but that offer was rejected by the prosecution. Justice Nettle characterised the offending as ‘negligence constituted of momentary inattention’ and placed the offender’s moral culpability ‘towards the lower end of the scale’: at [4]–[5] (Nettle J).
-
Submission 7 (Victoria Police).
-
Ibid.
-
Ibid.
-
See, eg, Vinaccia v The Queen [2022] VSCA 107; R v Hammond (Ruling No 3) [2019] VSC 195; R v Barnes [2008] VSC 66; R v Klamo [2008] VSCA 75; (2008) 18 VR 644, all cases of baby shaking in the context of homicide charges.
-
DPP v QPX [2014] VSC 189.
-
Ibid [10]-[13], [27].
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Negligently causing serious injury has a maximum penalty of 10 years imprisonment, by comparison with 15 years imprisonment for recklessly causing serious injury, or 20 years for intentionally causing serious injury. For examples, see DPP v Farrell (a pseudonym) [2019] VCC 297; DPP v Weston [2016] VSCA 243.
-
See, eg, Harvey v The King [2023] VSCA 219 where a father was found guilty by a jury of recklessly causing serious injury to his seven-week-old son by forceful shaking.
-
Submission 7 (Victoria Police).
-
Consultation 10 (Victoria Police).
-
DPP v Reynolds [2022] VSCA 263, [80] (T Forrest JA and Kidd AJA).
-
DPP v Avalos (a pseudonym) [2023] VSCA 117, [15].
-
Pompei v The King [2023] VSCA 71, [22(b)] (Beach, T Forrest and Kaye JJA).
-
Crimes Act 1958 (Vic) s 15.
-
See, eg, DPP v Avalos (a pseudonym) [2023] VSCA 117 where instances of choking were covered by both intentionally causing injury and common law assault. In Matovic v The Queen [2021] VSCA 212 choking resulting in a loss of consciousness was covered by a charge of conduct endangering person. In DPP v Shams (a pseudonym) [2023] VCC 1479 the jury convicted the offender of conduct endangering life for an instance of choking where the victim lost consciousness.
-
‘The element of intentional injury means there is a higher level of culpability attached to this offence, triggering the higher maximum sentence. It is also consistent with comparable existing offences that have 10-year penalties, such as conduct endangering life and intentionally causing injury’: Victoria, Parliamentary Debates, Legislative Assembly, 19 October 2023, 3932 (Anthony Carbines, Minister for Police, Minister for Crime Prevention, Minister for Racing).
-
Ibid 3932. The Minister notes that because non-fatal strangulation ‘often leaves no visible signs of physical injury’, historically prosecutors resorted ‘to charging offenders with common assault to get a conviction. Common assault only attracts a maximum penalty of three months…’. While the summary offence of common assault (commonly referred to as ‘unlawful assault’) carries a maximum penalty of three months imprisonment (Summary Offences Act 1966 (Vic) s 23), the indictable offence of common law assault carries a maximum penalty of five years imprisonment, the same as the proposed new s 34AE offence: Crimes Act 1958 (Vic) s 320.
-
Submission 7 (Victoria Police).
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It is an offence for a person who has been served with a Family Violence Intervention Order (FVIO) and had the FVIO explained to them to contravene the FVIO: Family Violence Protection Act 2008 (Vic) s 123.
-
This was despite the earlier decision of DPP v Cope (a pseudonym) [2021] VMC 14 where a finding was made that the prosecution is required to establish a mens rea element in any prosecution under s 123(2) of the Family Violence Protection Act 2008 (Vic).
-
As the prosecution conceded that intention is the relevant fault element of the offence, it was not necessary for the Court of Appeal to determine if recklessness would also be sufficient: DPP v Cormick [2022] VSC 786, [50]. We note that the more serious offence of contravention of order intending to cause harm or fear for safety in s 123A of the Family Violence Protection Act 2008 (Vic) has a reckless element as it applies where a person contravenes an order ‘intending to cause, or knowing that his or her conduct will probably cause’ physical or mental harm or apprehension or fear.
-
Submission 7 (Victoria Police).
-
DPP v Cormick [2022] VSC 786, [58].
Submission 6 (Criminal Bar Association) (emphasis in original).
DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150, [44]. See also DPP v Lindsay [2021] VCC 636, [81].
See Kennedy v The King [2023] VSCA 86; DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150.
McLean v The King [2023] VSCA 6; Mazzonetto v The Queen [2022] VSCA 153; DPP v Lindsay [2021] VCC 636; DPP v Dow [2020] VCC 1605; Al Wahame v The Queen [2018] VSCA 4; R v Wyley [2009] VSCA 17.
Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023). The scenario involved kicking a prone victim in the torso.
Submission 6 (Criminal Bar Association). Consultation 9 (Dr Greg Byrne PSM); See also Consultation 2 (Liberty Victoria): ‘kicking assault – ‘intentionally causing injury’ – can be a significant offence with significant penalties. It is taken seriously in the Magistrates’ Court and has significant opprobrium connected to it.’
Consultation 8 (Supreme Court of Victoria).
Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023). The OPP’s police siege scenario may have found inspiration from the case of DPP v Le [2019] VSCA 258, where at least 14 members of the Clandestine Laboratory Squad of Victoria Police attempted to force entry of a house owned by Mr Le, who was inside at the time. Soon after the first attempt by police to gain entry, Mr Le took up a loaded revolver and fired two shots towards the front door and at least another three shots towards the window of the front room. There were police officers behind both the front door and the window. Mr Le pleaded guilty to 14 charges of conduct endangering life (Crimes Act 1958 (Vic) s 22) and a firearm offence (Firearms Act 1996 (Vic) s 5(1)). He was sentenced to a term of five years and three months imprisonment, with a non-parole period of four years. The DPP appealed against sentence. One of the grounds of appeal argued that an alternative state of knowledge based on recklessness (that the offender ought to have known that the people attempting to enter the house were police) was an aggravating factor of the charges of conduct endangering life. The Court dismissed the appeal but left open the question of the extent to which recklessness as to whether victims are police officers, acting in the course of their duty, is an aggravating factor for an offence of violence.
Submission 6 (Criminal Bar Association).
Consultation 9 (Dr Greg Byrne PSM).
Examples 1-4 were included in Submission 10 (Office of Public Prosecutions) dated 3 March 2023. Examples 5 and 6 were included in the OPP’s file review dated 14 July 2023: Supplementary Submission 20 (Office of Public Prosecutions).
R v Wilson & Carman [2005] VSCA 78.
Submission 10 (Office of Public Prosecutions).
A similar hypothetical was raised by Justice Edelman in Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [88]; (2021) 274 CLR 177, 214 [88] (Edelman J). In Justice Edelman’s example, a driver, driving at high speed without headlights on, strikes a pedestrian. If the driving occurred on a quiet country road at midnight, Justice Edelman suggested ‘it would not have been foreseen as probable that any person would be on the road’, so the accused might successfully defend a charge of causing serious injury recklessly, which would be a ‘surprising outcome’ of the application of the Victorian recklessness test. Melbourne University Law School students responded to Justice Edelman’s example by suggesting a driver in those circumstances should not be considered ‘highly morally culpable’, and a guilty finding for an alternative offence would be open: Submission 5 (McGavin, Jenkins-Smales, NcNaughton, Allen (students at the University of Melbourne)).
Crimes Act 1958 (Vic) s 23.
Consultation 7 (Office of Public Prosecutions).
Submission 10 (Office of Public Prosecutions).
Compare the circumstances in DPP v Reid [2020] VSCA 247. The offender, who was a P-plate driver, had consumed methylamphetamine and alcohol, cheated an alcohol-interlock device, used a mobile phone while driving at various speeds between 140 and 200 kilometres per hour, and crossed double white centre lines. The offender pleaded guilty to two s 22 reckless endangerment offences and a culpable driving causing death.
Dangerous driving carries a maximum penalty of two years imprisonment and/or a maximum fine of 240 penalty units: Road Safety Act 1986 (Vic) s 64. Penalty units determine the amount a person is fined. From 1 July 2023 to 30 June 2024, the value of a penalty unit is $192.31. The value of a penalty unit is set annually by the Victorian Treasurer and is updated on 1 July each year: Department of Justice and Community Safety, Penalties and Values (Web Page, 28 June 2023) <https://www.justice.vic.gov.au/justice-system/fines-and-penalties/penalties-and-values>. The offence of dangerous driving also requires mandatory cancellation of the driver’s licence or permit and disqualification from obtaining a licence or permit for at least six months, and if the vehicle was driven at a speed of 45km/h more than the speed limit, the court must disqualify the driver from obtaining a licence or permit for at least 12 months: Road Safety Act 1986 (Vic) s 64(2).
Crimes Act 1958 (Vic) s 317AE. This offence is outside ‘offences against the person’, the focus of our terms of reference.
Ibid s 317AF. This offence is outside ‘offences against the person’, the focus of our terms of reference.
Ibid s 317AG(1). This offence has a recklessness element, but the recklessness attaches to ‘recklessly driv[ing] a motor vehicle so that damage is caused to an emergency service vehicle’ rather than recklessly exposing someone to a risk to safety.
Ibid s 319AA(1).
DPP v Hooper (County Court of Victoria, Fox J, 13 July 2021).
Occupational Health and Safety Act 2004 (Vic) s 32. This offence is outside ‘offences against the person’, the focus of our terms of reference.
Submission 10 (Office of Public Prosecutions).
Consultation 7 (Office of Public Prosecutions). We note that as recently as June 2023 a diving company specialising in underwater tank inspections and repairs pleaded guilty in the County Court to recklessly engaging in conduct that placed workers in danger of serious injury and was fined $600,000: WorkSafe Victoria, Diving Company Fined $730,000 for Reckless Safety Breaches, (Web Page, 27 June 2023) <https://www.worksafe.vic.gov.au/news/2023-06/diving-company-fined-730000-reckless-safety-breaches>. In September 2023, WorkSafe charged the Victorian Building Authority under section 32 of the Occupational Health and Safety Act for recklessly engaging in conduct that placed another person at a workplace in danger of serious injury, after an inspector took their own life: WorkSafe Victoria, Building Regulator Charged Following Inspector’s Death (Web Page, 28 September 2023) <https://www.worksafe.vic.gov.au/news/2023-09/building-regulator-charged-following-inspectors-death>.
DPP v Hooper (County Court of Victoria, Fox J, 13 July 2021).
Office of Public Prosecutions (Vic), Annual Report 2021/22 (Report, 2022) 34.
Submission 10 (Office of Public Prosecutions); Occupational Health and Safety Act 2004 (Vic) s 39G.
The offence of workplace manslaughter was introduced by the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) and came into effect on 1 July 2020. It only applies to workplace deaths which occur after that date. In practice, the workplace reckless endangerment offence captures high culpability offending prior to the introduction of the workplace manslaughter offence: see, eg, Anderton (VWA) v Jackson (Latrobe Valley Magistrates’ Court, 19 December 2018) discussed in R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113, [121]. An employee had been standing in a large industrial bin raised on a forklift operated by the business owner. The owner did not have a forklift licence. The bin was being lifted with the employee inside to enable him to throw scrap metal into a larger bin. The bin, which was not secured, fell from the forklift and the employee was killed. The business owner was sentenced to six months imprisonment. See also Orbit Drilling Pty Ltd v The Queen; Smith v The Queen [2012] VSCA 82. The company pleaded guilty to a breach of section 32 of the OHS Act. An unsupervised and inexperienced driver was directed by Orbit’s site manager to drive a heavy truck down a steep off-road slope. The truck had a known brake defect. The driver lost control and the truck overturned, killing the driver. By pleading guilty, the company admitted it was aware that requiring its employee to drive the truck down the slope would probably place him in danger of serious injury, and the risk was recklessly disregarded.
Supplementary Submission 20 (Office of Public Prosecutions).
Ibid.
Ibid.
Consultation 14 (Police member who was a victim of an offence). This was the view of the victim in their personal capacity, and not attributed to Victoria Police.
R v Wilson & Carman [2005] VSCA 78.
R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586.
DPP v Saurini [2022] VCC 1054.
Submission 7 (Victoria Police).
R v Wilson & Carman [2005] VSCA 78, [18] (Batt JA, Buchanan and Vincent JJA agreeing). On appeal, the prosecutor submitted that it was unfortunate that the conduct endangering life charges had proceeded to trial. Justice Batt observed the prosecutor did not appear to be strongly committed to maintaining the guilty verdicts on the statutory alternative endangerment charges.
Ibid (Batt JA, Buchanan and Vincent JJA agreeing).
Doney v The Queen [1990] HCA 51, [8]; (1990) 171 CLR 207, 211.
Wilson was ultimately sentenced to a total effective sentence of eight years imprisonment with a non-parole period of five years and six months. Carman was ultimately sentenced to a total effective sentence of eight years imprisonment with a non-parole period of six years: R v Wilson & Carman [2005] VSCA 78, [20], [24], [27]–[28] (Batt JA)
R v Wilson & Carman [2005] VSCA 78, [26] (Batt JA).
R v Abdul-Rasool [2008] VSCA 13, [66] (Redlich JA); Crimes Act 1958 (Vic) s 20.
A conviction on any of the charges would require Mr Saurini to be disqualified from driving: Sentencing Act 1991 (Vic) ss 87P, 89.
Crimes Act 1958 (Vic) s 317AF(1)(b). This offence is outside ‘offences against the person’, the focus of our terms of reference.
Ibid s 24.
Ibid s 319(1A) and 422A.
DPP v Saurini [2022] VCC 1054, [20].
Ibid [29].
Ignatova v The Queen [2010] VSCA 263.
Submission 7 (Victoria Police).
Submission 14 (Law Institute of Victoria).
Ignatova v The Queen [2010] VSCA 263, [38] (Neave JA).
Ibid [8] (Ashley JA).
Compare with the case of Mok v The Queen [2011] VSCA 247, where the offender was found guilty by a jury of negligently causing serious injury to his infant son by placing him in a 65 degrees Celsius bath. He was acquitted of the charges of intentionally causing serious injury and recklessly causing serious injury. Prior to the trial he had offered to plead guilty to negligently causing serious injury, but that offer was rejected by the prosecution. Justice Nettle characterised the offending as ‘negligence constituted of momentary inattention’ and placed the offender’s moral culpability ‘towards the lower end of the scale’: at [4]–[5] (Nettle J).
Submission 7 (Victoria Police).
Ibid.
Ibid.
See, eg, Vinaccia v The Queen [2022] VSCA 107; R v Hammond (Ruling No 3) [2019] VSC 195; R v Barnes [2008] VSC 66; R v Klamo [2008] VSCA 75; (2008) 18 VR 644, all cases of baby shaking in the context of homicide charges.
DPP v QPX [2014] VSC 189.
Ibid [10]-[13], [27].
Negligently causing serious injury has a maximum penalty of 10 years imprisonment, by comparison with 15 years imprisonment for recklessly causing serious injury, or 20 years for intentionally causing serious injury. For examples, see DPP v Farrell (a pseudonym) [2019] VCC 297; DPP v Weston [2016] VSCA 243.
See, eg, Harvey v The King [2023] VSCA 219 where a father was found guilty by a jury of recklessly causing serious injury to his seven-week-old son by forceful shaking.
Submission 7 (Victoria Police).
Consultation 10 (Victoria Police).
DPP v Reynolds [2022] VSCA 263, [80] (T Forrest JA and Kidd AJA).
DPP v Avalos (a pseudonym) [2023] VSCA 117, [15].
Pompei v The King [2023] VSCA 71, [22(b)] (Beach, T Forrest and Kaye JJA).
Crimes Act 1958 (Vic) s 15.
See, eg, DPP v Avalos (a pseudonym) [2023] VSCA 117 where instances of choking were covered by both intentionally causing injury and common law assault. In Matovic v The Queen [2021] VSCA 212 choking resulting in a loss of consciousness was covered by a charge of conduct endangering person. In DPP v Shams (a pseudonym) [2023] VCC 1479 the jury convicted the offender of conduct endangering life for an instance of choking where the victim lost consciousness.
‘The element of intentional injury means there is a higher level of culpability attached to this offence, triggering the higher maximum sentence. It is also consistent with comparable existing offences that have 10-year penalties, such as conduct endangering life and intentionally causing injury’: Victoria, Parliamentary Debates, Legislative Assembly, 19 October 2023, 3932 (Anthony Carbines, Minister for Police, Minister for Crime Prevention, Minister for Racing).
Ibid 3932. The Minister notes that because non-fatal strangulation ‘often leaves no visible signs of physical injury’, historically prosecutors resorted ‘to charging offenders with common assault to get a conviction. Common assault only attracts a maximum penalty of three months…’. While the summary offence of common assault (commonly referred to as ‘unlawful assault’) carries a maximum penalty of three months imprisonment (Summary Offences Act 1966 (Vic) s 23), the indictable offence of common law assault carries a maximum penalty of five years imprisonment, the same as the proposed new s 34AE offence: Crimes Act 1958 (Vic) s 320.
Submission 7 (Victoria Police).
It is an offence for a person who has been served with a Family Violence Intervention Order (FVIO) and had the FVIO explained to them to contravene the FVIO: Family Violence Protection Act 2008 (Vic) s 123.
This was despite the earlier decision of DPP v Cope (a pseudonym) [2021] VMC 14 where a finding was made that the prosecution is required to establish a mens rea element in any prosecution under s 123(2) of the Family Violence Protection Act 2008 (Vic).
As the prosecution conceded that intention is the relevant fault element of the offence, it was not necessary for the Court of Appeal to determine if recklessness would also be sufficient: DPP v Cormick [2022] VSC 786, [50]. We note that the more serious offence of contravention of order intending to cause harm or fear for safety in s 123A of the Family Violence Protection Act 2008 (Vic) has a reckless element as it applies where a person contravenes an order ‘intending to cause, or knowing that his or her conduct will probably cause’ physical or mental harm or apprehension or fear.
Submission 7 (Victoria Police).
DPP v Cormick [2022] VSC 786, [58].