Examples of other criminal offences

Contributed by Bill de Mars and Judith Fordham and current to 1 September 2005

By way of example this section briefly outlines some of the main types of criminal offences dealt with under State legislation.

DRUG OFFENCES

While Commonwealth legislation creates various offences relating to the importation of and trafficking in drugs, the Misuse of Drugs Act 1981 (WA) creates various offences under State law. While the list of all drugs regarded as “prohibited drugs” under the Act is very extensive, some of the most commonly found prohibited drugs are cannabis, amphetamine and methylamphetamine, heroin, cocaine and MDMA (ecstasy).

Simple possession

Simple possession of, or the personal use of, a prohibited drug is an offence dealt with by the Magistrates Court. It carries a maximum penalty of $2,000 and/or imprisonment for 2 years. Since 2004 the police have been empowered to deal with possession or cultivation of small amounts of cannabis (30 grams or less, or 1 or 2 plants) by way of an infringement notice.

Possession with intent to sell or supply

The Misuse of Drugs Act deems possession of a specified amount of a prohibited drug to be possession with intent to sell or supply. This presumption applies, for example, in relation to 100 grams or more of cannabis, and in relation to 2 grams or more of methylamphetamine, heroin or MDMA. The presumption is rebuttable if, based on all of the evidence, a Court is of the view that the person in possession of the drug did not in fact have such an intention.

The offence carries heavy penalties – a maximum fine of $100,000 and/or 25 years’ imprisonment (in the case of drugs other than cannabis) and a maximum fine of $20,000 and/or imprisonment for 10 years in the case of cannabis.

Sale, supply and manufacture

It is also an offence to sell or supply a prohibited drug to another person, to offer to do so, or to manufacture a prohibited drug. These offences carry the same heavy maximum penalties as apply in relation to possession with intent to sell or supply.

SEXUAL OFFENCES

The Criminal Code creates a number of different sexual offences of which the following are examples.

Indecent assault

It is an offence to assault another person indecently. The law does not specifically define indecency. Rather, indecency is that which offends currently accepted standards of decency. For example, the deliberate nonconsensual touching of a stranger on their genital area would constitute an indecent assault. It carries a maximum penalty of imprisonment for 5 years, or imprisonment for 2 years and a fine of $24,000 when dealt with summarily. It carries higher maximum penalties where it is committed in circumstances of aggravation. These include where the offender is in company with another, does bodily harm to the person concerned, or is armed with a dangerous or offensive weapon.

Sexual penetration without consent

This offence is akin to that previously referred to as “rape”. Sexual penetration includes penetration of the vagina, urethra or anus of any person with any part of the body of another person or an object manipulated by another person. It is also defined to include the acts of cunnilingus or fellatio. Consent means consent freely and voluntarily given and is not so given if it is obtained by force, threat, intimidation, deceit or any fraudulent means. Further, the failure to offer physical resistance cannot be said of itself to constitute consent. A child under the age of 13 years is deemed to be incapable of consenting to an act that constitutes an offence against the child.

The maximum penalty for the offence of sexual penetration without consent is 14 years’ imprisonment. When committed in circumstances of aggravation, the maximum penalty is 20 years’ imprisonment.

Offences against children (people under 16 years of age)

The act of sexual penetration of a child is an offence regardless of consent and carries a maximum penalty of 20 years’ imprisonment (in the case of children under 13 years of age), or 14 years’ imprisonment (in the case of children aged over 13 and under 16 years of age). Higher penalties may apply where the child is a lineal relative of the offender.

It is also an offence to indecently deal with a child. ‘Deal with’ is an expression that is capable of a broad range of meaning and includes any act which, if done without consent, would constitute an assault. Again, it is immaterial whether the child has consented, and a child under 13 years is in any event incapable of so doing. Higher maximum penalties apply where the offence is committed on a child under 13 years of age or where the child is under the care, supervision or authority of the offender.

There are a number of other offences specific to children including procuring, inciting or encouraging a child to engage in sexual behaviour or to do an indecent act. The possession and supply of child pornography are also criminal offences dealt with by the Censorship Act 1996 (WA).