South Australian Consolidated Acts South Australian Consolidated Acts (1) Subject to this
section, an aggravated offence is an offence committed in 1 or more of the
following circumstances:
(a) the
offender committed the offence in the course of deliberately and
systematically inflicting severe pain on the victim;
(b) the
offender used, or threatened to use, an offensive weapon to commit, or when
committing, the offence;
(c) the
offender committed the offence against a police officer, prison officer or
other law enforcement officer—
(i)
knowing the victim to be acting in the course of his or
her official duty; or
(ii)
in retribution for something the offender knows or
believes to have been done by the victim in the course of his or her official
duty;
(d) the
offender committed the offence—
(i)
intending to prevent or dissuade the victim from taking
legal proceedings or from pursuing a particular course in legal proceedings;
or
(ii)
in connection with the victim's conduct or future conduct
(as party, witness or in any other capacity) in legal proceedings; or
(iii)
in retribution against the victim for taking legal
proceedings or for the victim's conduct (as party, witness or in any other
capacity) in legal proceedings;
(e) the
offender committed the offence knowing that the victim of the offence was, at
the time of the offence—
(i)
in the case of an offence against Part 3 Division
11A—under the age of 14 years;
(ii)
in any other case—under the age of 12 years;
(f) the
offender committed the offence knowing that the victim of the offence was, at
the time of the offence, over the age of 60 years;
(g) the
offender committed the offence knowing that the victim of the offence
was—
(i)
a spouse or former spouse of the offender; or
(ii)
a domestic partner or former domestic partner of the
offender; or
(iii)
a child of whom—
(A) the offender; or
(B) a spouse or former spouse of the
offender; or
(C) a domestic partner or former
domestic partner of the offender,
has custody as a parent or guardian; or
(iv)
a child who normally or regularly resides with—
(A) the offender; or
(B) a spouse or former spouse of the
offender; or
(C) a domestic partner or former
domestic partner of the offender;
(h)
except in the case of an offence against Part 3A, the offender committed the
offence in company with 1 or more other persons (including persons who are
children);
(ha) in
the case of an offence against Division 2 or 3 of Part 5, or Part
6A—the offender committed the offence in a place in relation to which,
at the time of the offence—
(i)
there was in force a declaration under Part 4 of the
Emergency Management Act 2004 ; or
(A) residents and others in the place, or
in the vicinity of the place, had been advised (by radio broadcast) by the CFS
that, as a result of a severe, extreme or catastrophic fire danger rating in
respect of the place, they should activate their bushfire survival plan; and
(B) that advice had not been withdrawn or
ceased to apply; or
(iii)
residents and others had not been able to return to the
place after leaving in response to a declaration referred to in
subparagraph (i) or the provision of advice referred to in
subparagraph (ii),
and the offender knew, ought reasonably to have known, or was reckless with
respect to, that fact;
(i)
the offender abused a position of authority, or a
position of trust, in committing the offence;
(ia) in
the case of an offence constituted under Part 7B where the principal offence
is an aggravated offence—the principal offender was, to the knowledge of
the offender under that Part, a child;
(j) the
offender committed the offence knowing that the victim was, at the time of the
offence, in a position of particular vulnerability because of physical or
mental disability;
(k) in
the case of an offence against the person—
(i)
the victim was, to the knowledge of the offender, in a
position of particular vulnerability at the time of the offence because of the
nature of his or her occupation or employment; or
(ii)
the victim was, at the time of the offence, engaged in a
prescribed occupation or employment and the offender committed the offence
knowing that the victim was then engaged in an occupation or employment and
knowing the nature of the occupation or employment;
(l) the
offender was, at the time of the offence, acting in contravention of an
injunction or other order of a court (made in the exercise of either state or
federal jurisdiction) and the offence lay within the range of conduct that the
injunction or order was designed to prevent.
(1a) For the purposes
of section 19A, an aggravated offence is an offence committed in 1 or
more of the following circumstances:
(a) the
offender committed the offence in the course of attempting to escape pursuit
by a police officer;
(ab) the
offender was, at the time of the offence, driving a motor vehicle in a
street race;
(b) the
offender was, at the time of the offence, driving a vehicle knowing that he or
she was disqualified, under the law of this State or another State or
Territory of the Commonwealth, from holding or obtaining a driver's licence or
that his or her licence was suspended by notice given under the
Road Traffic Act 1961 ;
(c) the
offender committed the offence as part of a prolonged, persistent and
deliberate course of very bad driving or vessel operation;
(d) the
offender committed the offence while there was present in his or her blood a
concentration of .08 grams or more of alcohol in 100 millilitres of blood;
(e) the
offender was, at the time of the offence, driving a vehicle in contravention
of section 45A, 47 or 47BA of the Road Traffic Act 1961 or operating a
vessel in contravention of section 70(1) of the Harbors and Navigation
Act 1993 .
(1b) For the purposes
of section 19AC, an aggravated offence is an offence committed in 1 or
more of the following circumstances:
(a) the
offender was, at the time of the offence, driving or using a motor vehicle
that—
(i)
was stolen; or
(ii)
was being driven or used without the consent of the owner
of the vehicle,
and the offender knew, or was reckless with respect to, that fact;
(b) the
offender was, at the time of the offence, driving a motor vehicle knowing that
he or she was disqualified, under the law of this State or another State or
Territory of the Commonwealth, from holding or obtaining a driver's licence or
that his or her licence was suspended by notice given under the
Road Traffic Act 1961 ;
(c) the
offender committed the offence while there was present in his or her blood a
concentration of .08 grams or more of alcohol in 100 millilitres of blood;
(d) the
offender was, at the time of the offence, driving a motor vehicle in
contravention of section 47 or 47BA of the Road Traffic Act 1961 .
(1c) For the purposes
of section 19AD, an aggravated offence is an offence committed by the
driver of a motor vehicle in 1 or more of the following circumstances:
(a) the
offender knew that, at the time of the offence, he or she was driving the
motor vehicle in circumstances of heightened risk;
(b) the
offender committed the offence knowing that there were 1 or more passengers in
or on the motor vehicle;
(c) the
offender knew, or ought reasonably to have known, that, at the time of the
offence, he or she was driving a motor vehicle that had a major defect.
(2) A person is taken
to know a particular fact if the person, knowing of the possibility that it is
true, is reckless as to whether it is true or not.
(3) If a person is
charged with an aggravated offence, the circumstances alleged to aggravate the
offence must be stated in the instrument of charge.
(4) If a jury finds a
person guilty of an aggravated offence, and 2 or more aggravating factors are
alleged in the instrument of charge, the jury must state which of the
aggravating factors it finds to have been established.
(5) In this
section—
"CFS" means the South Australian Country Fire Service;
"child" means a person under 18 years of age;
"circumstances of heightened risk", in relation to the driving of a
motor vehicle, means—
(a)
driving the motor vehicle between sunset on one day and sunrise on the next
day; or
(b)
driving the motor vehicle in circumstances where traction between the vehicle
and the surface being driven on is adversely affected; or
(c)
driving the motor vehicle in circumstances where visibility is adversely
affected;
"major defect"—a motor vehicle has a major defect if use of the
motor vehicle constitutes a serious risk to the safety of any person;
"street race" has the meaning given in section 19AD.
(6) This section does
not prevent a court from taking into account, in the usual way, the
circumstances of and surrounding the commission of an offence for the purpose
of determining sentence.
Examples—
1 A person is charged with a basic offence and the
court finds that the offence was committed in circumstances that would have
justified a charge of the offence in its aggravated form. In this case, the
court may, in sentencing, take into account the circumstances of aggravation
for the purpose of determining penalty but must (of course) fix a penalty
within the limits appropriate to the basic offence.
2 A person is charged with an aggravated offence
and the court finds a number (but not all) of the circumstances alleged in the
instrument of charge to aggravate the offence have been established. In this
case, the court may, in sentencing, take into account the established
circumstances of and surrounding the aggravated offence (whether alleged in
the instrument of charge or not) but must not (of course) take account of
circumstances alleged in the instrument of charge that were not established.