S123 LWZ114 Criminal Law Assessment Answer

Part A

Introduction

The offence of recklessly aggravated assault is described and made a punishable offence under s 187 and 188 of the Northern Territory Criminal Code.^[1] The offence of recklessly endangering life is made an offence under sections 174C and 174D of the code.^[2] This alleged offence is committed in Jape Homemaker Village in Darwin therefore, the North Territory Criminal Code (NTCC) is the appropriate governing legislation to determine the criminal liability of Tommy. Section 187 of NTCC describes assault as applying force to some person without his consent either through direct means or indirect means. For example, touching or beating or even striking someone is considered assault. According to the facts of the scenario, Tommy has the full potential to be held criminally liable by the police as in Australia, if any person is engaged in any sort of scuffle and used abusive language to threaten another person then, the person is said to commit assault for example, if any person while any arguments, any person shouted at another person he will shove him off then, also he has been said to commit assault. ^[3]The two most serious charges that the police officer can impose on him are aggravated assault and recklessly endangering life. 

Elements of Aggravated Assault (Section 188 of the Criminal Code)

According to section 188 of the criminal code, the elements of the offence of aggravated assault are

1. The accused had intentionally applied force on another person;
2. The force was done during an act of recklessness and has resulted in harming another person.
3. The accused was carrying any armed weapon or was occupied by some group of people.

Therefore, after the interpretation of the bare language, it can be ascertained that the physical elements involved in the act of assault are the application of direct or indirect force on the person^[4], threatening or an attempt to threaten without consent. However, an act of assault will be proven to be an act of aggravated assault if due to the act of the offender, the person suffers any harm.^[5] Therefore, when the act of assault is established, the act of aggravated assault is directly proven.^[6] In the case of R v Colbung, 2006^[7] the defendant was held liable for his action of pushing the victim off from his bike. Here the defendant applied intentional force to the plaintiff, therefore, was held liable for aggravated assault because his intentional action could have caused harm to the victim. 

Application to the Facts

In the scenario, Tommy was accompanied by a group of friends when he was crossing the village in Darwin and then, he shouted at Alvin (a boy in a wheelchair) for his loud sneezing that he will shove him off and his wheelchair. After some time, Tommy gives a heavy jolt to his wheelchair of Alvin and then, he pushes the wheelchair so hard, that he rolls over 10 metres in the middle of the parking. Here, Tommy has committed assault as he used abusive language against Alvin and then used his force to jolt the wheelchair and pushed the wheelchair over 10 metres which could have resulted in causing injuries to Alvin. Therefore, the physical element is present in the scenario i.e., force and the factual element is also present i.e., the intention to harm. Therefore, he can be held liable for the charge of aggravated assault.

Recklessly endangering life

Recklessly endangering life is an offence which causes serious harm to a person. It is an offence under section 174 of the criminal code of the Northern Territory^[8]. It is contained in Schedule 1 Part IIAA of the code.

Elements to Constitute offence

The elements to constitute the offence of recklessly endangering life are the accused conduct was reckless and the conduct can cause substantial risk to another person. The factual element present in the committal of the offence is awareness of the potential risk of the conduct of the offender. In the case of R v O’Dwyer, 2016 the defendant was held guilty of the act of recklessly driving the car on high speed as his action could have resulted in serious injuries to police officers.^[9] 

Application to the facts

In the given scenario, Tommy pushed the wheelchair so hard that it roll over 10 metres and left him in the middle of the parking which could have resulted in injuries to Alvin. This shows that the conduct was reckless and the fact that the person was in a wheelchair and pushing the chair so hard could have resulted in serious injuries to the person.

Conclusion

Based on the facts of the scenario and the law applied it can be concluded that the police officer can charge Tommy with the offence of aggravated assault and recklessly endangering life. Hence, he can be awarded a maximum of 5 years imprisonment^[10] and imprisonment for 10 years or 14 years^[11] for the act of aggravated assault or recklessly endangering life respectively. These are the two most serious charges that can put Tommy beside the bar for a maximum of 14 years.

Part B

Introduction

The drugs-related acts or offences are governed by the act of the Misuse of Drugs Act 1990 and apply to the Northern Territory.^[12] The Misuse of Drugs Act 1990 commenced under an amendment to the various legislations under the criminal code.^[13] Schedule 1 deals with a broad description of the drugs that are dangerous for society. The schedule has divided the drugs based on their quantity of consumption into two categories namely, trafficable and commercial quantity.^[14] Methoxyethylenedioxyamphetamine (MMDA) and Alphacetylmethadol are categorized as dangerous drugs under Schedule 1 and 2 of the act. According to Schedule 2, 10 grams of Alphacetylmethadol is considered a trafficable quantity and 0.50 grams of MMDA is a trafficable quantity as per Schedule 1. The schedules have also ranged the commercial quantity of the drugs as 25g of MMDA and 500g of Aplhacetylmethadol. The total weight discovered from Sue is 0.6g of MMDA and 27g of Aplhacetylmethadol, which falls under the category of a trafficable quantity of dangerous drugs.

Part 1

The northern territory had made specific laws to deal with the act of supply and possession of dangerous drugs namely, the Misuse of Drugs Act, of 1990. Section 7 c of the act deals with the possession of a trafficable amount of dangerous drugs in any public place. ^[15]

Physical elements as the section 7 c of the act are

1. The intention of the person to carry or possess any drug that is dangerous in nature.
2. Possession of dangerous drugs at any public place such as a park.
3. The quantity possessed is trafficable as per schedules 1 and 2 of the act.

Faulty elements are

1. Recklessly nature of the person possessing a trafficable amount of dangerous drugs.

Application of the elements to the scenario

According to the analysis of the scenario with the section 7 c of the act, the intention to possess the trafficable amount of the drugs is missing because Sue was only carrying the bag under the impression that the bag contained $3000 in it and she just wanted to steal the money from the bag. She was unaware of the fact that the bag contains dangerous drugs. Hence, it can be said that her conduct was reckless and there is no evidence from the police to prove that he was having a guilty intention.^[16] However, the scenario fits the second condition that the dangerous drugs possessed should at a public place. This condition is satisfied as Sue was carrying the bag which contains the dangerous drugs in a public water park. Moreover, the scenario also fits into the third condition which is the possession of a trafficable amount of drugs. After the forensic testing of the substance seized from the bag which Sue was carrying it was clear that it contains 0.6 g of MMDA and 27 g of Alphacetymethadol was falls into the description of the quantity of trafficable amount of dangerous drugs. However, the conduct of Sue can be taken into consideration that she was reckless and had no intention to carry the drugs. Her motive was to steal money.

Conclusion

According to the act if any person is found in the possession of a trafficable amount of dangerous drugs and the drug falls in the category of Schedule 1 of the act then the person is liable for a maximum of 14 years of imprisonment if the substance falls under the category of schedule 2 of the act then the person can be imprisoned for a maximum period of 7 years. Certain drug offences are subject to mandatory sentencing in the region of the Northern Territory.^[17] Therefore, any person who is accused of offences related to drugs pleas guilty is subject to the term of mandatory sentencing therefore, he is subject to a minimum imprisonment of 5 years. Therefore, if Sue ever pleads guilty to carrying or possessing the trafficable amount of dangerous drugs then she will be liable for a minimum imprisonment of 5 years. However, I will advise Sue to plead not guilty because if she pleads not guilty she has the right to remain silent or to present evidence of not being guilty in court. Whereas, the decision to remain silent or to produce evidence of her innocence lies upon her. Another point of consideration while giving the advice is that she does not possess any proof to prove her innocence as the place from where she picked up the bag does not have any CCTV surveillance. Therefore, she should plead not guilty and should use her right to remain silent and then the burden lies on the prosecution to prove her guilty intention. If Sue pleads not guilty then the matter of possession of a trafficable amount of dangerous drugs will be heard before the Supreme Court of the Northern territory. This is because the local courts do not have the jurisdiction to deal with the matter of possession of trafficable amounts of substances. 

Part 2

Stealing is an offence according to section 210 of the criminal code of the NT and any person found guilty of the offence of stealing is liable with a minimum of 3 years imprisonment.^[18] The physical and faulty elements to prove the offence of stealing are

1. Any property should be taken away from the possession of one person and should be carried away from him.
2. The property so carried always must belong to some other person.
3. The property was carried away without the consent of its owner.
4. The property was carried away with the intention to permanently deprive the owner of his property.

Application of the elements to the scenario

 In the given scenario, Sue has the intention to carry away the bag from its owner and use the belonging lying in the bag for its own benefit. Sue carried away the bag from the possession of its owner without his consent and it was taken to some other place. However, Sue was unclear in her mind to permanently deprive the owner of his bag to take some of the money lying in the bag and put the bag back into the place from where she picked it up. 

Conclusion

After the analysis of the scenario and the law applied it can be said that the Sues is guilty of the offence of stealing as per section 210 of the Criminal Code and is liable for imprisonment of 7 to 14 years. However, the Northern Territory has the law of mandatory sentencing under which if the person pleads guilty he can be made liable to minimum mandatory sentencing depending upon the thing he has stolen and the value of the thing so stolen.^[19] According to the law, if the amount of the property stolen is more than $30,00 then he is subject to mandatory imprisonment of 3 years, and if the value of the property stolen is somewhere in between $5000 and $30, 000 then he will be liable for 18 months minimum imprisonment. Furthermore, if the value of the property stolen is less than $5000, then the minimum imprisonment as per the mandatory sentencing law is 6 months. Hence, if Sue pleads guilty, she is liable for imprisonment for a minimum of 6 months because the bag Sue steal contains $3000. However, in order to give advice, it is better for Sue to plead guilty as it will reduce her imprisonment from 10 years to a minimum of 120 days for the offence related to minor property damages. ^[20] 

Bibliography

Article/ Reports/ Websites

Government of UK, Misuse of Drugs legislation (Webpage) <https://www.health-ni.gov.uk/articles/misuse-drugs-legislations>

GTC Lawyers, Assault charges in Australia (Webpage) <https://www.gotocourt.com.au/criminal-law/assault/>

Mandatory Sentencing Laws in the Northern Territory and Western Australia, Australian Human Rights Commission <https://humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf>

Roth L, ‘Mandatory Sentencing Laws’ (2014) NSW Parliamentary Research Service.

Criminal Code Act 1983 (NT) s 187-188.

Ibid s 174C - D. 

GTC Lawyers, Assault charges in Australia (Webpage) <https://www.gotocourt.com.au/criminal-law/assault/>

Supra note 1, s 187 defines ‘assault’.

Ibid s 188(2).

O’Brien v Fraser (1990) 66 NTR 9.

R v Colbung [2006] NTSC 46.

Criminal Code Act 1983 (NT) s 174 D.

R v O’Dwyer [2016] NTSC 1.

Ibid s 188

Ibid s 174 C. 

Misuse of Drugs Act 1990.

Government of UK, Misuse of Drugs legislation (Webpage) <https://www.health-ni.gov.uk/articles/misuse-drugs-legislations>

Supra sch 1.

Supra 12, s 7c.

Rondo [2001] NSWCCA 540.

Roth L, ‘Mandatory Sentencing Laws’ (2014) NSW Parliamentary Research service.

Criminal Code Act 1983 (NT) s 210

Sentencing Act 1995.

Mandatory Sentencing Laws in the Northern Territory and Western Australia, Australian Human Rights Commission <https://humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf>        

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