BUTLERS

Section 333 states that any person who unlawfully detains another person is guilty of a crime.

A person ‘detains’ another if they take or entice another person away, or if they confine or detain another person in any place.

The Police must prove that the offender detained another person; that the other person did not consent to being detained; and that the detention was unlawful, that means it was not authorised, justified or excused by law.

The maximum penalty for Deprivation of Liberty is 10 years imprisonment and the matter would be heard in the District Court.

Under WA Law, the possible defences for Deprivation of LIberty include:

1. duress;
2. emergency;
3. insanity;
4. lawful authority;
5. consent; and
6. the person was not detained and was free to leave.

Criminal Damage is a complication area of law and is not to be taken lightly.

Section 444 states that any person who willfully or unlawfully destroys or damages any property is guilty of a crime.

“Unlawful” is defined in the Criminal Code as an act which causes injury to the property of another, and which is done without the other’s consent, is unlawful unless it is authorised, justified or excused by law.

“Wilfully destroy or damage” means where a person does an act or omits to do an act intending to destroy or damage property, or knowing or believing that the act is likely to destroy or damage property. If the act or omission results in the damage or destruction of property, the person is regarded to have wilfully destroyed or damaged the property.

The police must prove that the accused destroyed or damaged property; that the damage or destruction was unlawful; and that the damage or destruction was intended and wilful.

Criminal damage is an ‘either-way’ offence. Therefore, the offence is most often dealt with in the Magistrate’s Court. However, if the damage is particularly serious, or if the offender is also facing other charges which are dealt with in the District Court, then the Prosecution can make an application for the damage charge to be committed to the District Court.

If the matter is heard in the District Court, the maximum penalty is 10 years. If the destruction is by fire, the maximum penalty is 14 years. If the destruction occurs in circumstances of racial aggravation, the penalty is also 14 years. In circumstances where the destruction is by fire and in circumstances of racial aggravation, the maximum penalty is 20 years.

If the destruction of property is not by fire and the damage to the property is less than $25,000 in value, the matter can be dealt with in the Magistrates Court and the maximum penalty is 3 years imprisonment and a $36,000 fine.

Yes, the possible defence under WA Laws are:

1. insanity;
2. duress;
3. emergency;
4. accident;
5. lack of intention to wilfully do damage or destruction; and
6. identification (ie. the accused is not the person who damaged the property).

Section 143 states that any person who attempts to obstruct, prevent, pervert, or defeat the course of justice, is guilty of a crime.

This law is often applied where people unlawfully attempt to affect the outcome of a trial or investigation, whether through threats, bribes or undue pressure.

This charge is heard in the District Court.  The maximum penalty is 7 years imprisonment and police must prove that the person attempted to obstruct, prevent, pervert or defeat the course of justice; and that the person’s attempt had the intention of obstructing, preventing, perverting or defeating the course of justice. 

The Police do not have to prove that the course of justice was actually affected, nor that the actual intention of the party was to do so. The intention of the party must have been to do an act which would have the effect of defeating the course of justice.

There are several possible defences for Obstruction of Justice, including:

1. identification (ie. the accused was not the person);
2. there was no intention to pervert the course of justice; and
3. duress.

It is not a defence that the attempt could not have actually affected the course of justice if the intention was there.

Section 332 states that any person who detains another with intent to –

(a) Gain a benefit, pecuniary or otherwise for any person;
(b) Cause a detriment, pecuniary or otherwise to any person;
(c) Prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or
(d) Compel the doing of an act by a person who is lawfully entitled to abstain from doing that act,
by threat, or by demand, or by threat and by demand, is guilty of a crime.

A person ‘detains’ another if they take or entice another person away or if they confine or detain another person in any place.

A “threat” means a threat to kill, injure, endanger or cause harm or detriment to any person.

The maximum penalty is 20 years imprisonment and the matter would be heard in the District Court.

The Police must prove that the person detained another person; that the offender intended to detain another for any of the above reasons; and that there was a reasonable belief that a threat or demand had been made.

Importantly, the Police do not have to prove that a threat was actually made, as the threat can be inferred

The potential Defences under WA Law includes:

1. duress;
2. insanity;
3. emergency;
4. identification (ie. the accused is not the person who kidnapped the victim); and
5. consent.

Section 338E states that there are two separate offences for stalking:

1. A person who pursues another person with the intent to intimidate that person, or a third person, is guilty of a crime; and
2. A person who pursues another person in a manner that could reasonably be expected to intimidate, and that does, in fact, intimidate that person or a third party, is guilty of a simple offence.

“Intimidate” includes:

1. causing physical or mental harm to that person;
2. causing apprehension of fear in that person;
3. preventing that person from doing an act which that person is lawfully entitled to do, or to hinder that person from doing such an act; and
4. compelling a person to do an act that the person is lawfully entitled to abstain from doing.

“Pursue” includes:

1. to repeatedly communicate with that person, whether directly or indirectly and whether in words or otherwise;
2. to repeatedly follow the person;
3. to repeatedly cause the person to receive unsolicited items;
4. to watch or beset the place which the person lives or works or happens to be, or who approaches such a place; or
5. whether or not repeatedly, to do any of the above things in breach or a restraining order or bail conditions.

For the offence of intending to intimidate the Police must prove:

1. that the accused pursued the other person;
2. that the act of pursuing the other person was repeated; and
3. that the accused pursued the person with an intention to intimidate that person or a third party.

The Police do not have to prove that the person was in fact intimidated.

For the offence of stalking which could reasonably be expected to intimidate, the Police must prove:

1. that the accused pursued the other person;
2. that the act of pursuing was repeated;
3. that the act of pursuing could be expected to intimidate a reasonable person;
4. that the person being pursued was in fact intimidated.

Stalking is an ‘either-way’ offence. Therefore, the offence is most often dealt with in the Magistrate’s Court. However, if the stalking is serious, or if the offender is also facing other charges which are dealt with in the District Court, then the Prosecution can make an application for the stalking charge to be committed to the District Court.

The penalties that apply where the person is found guilty of stalking with intent to intimidate: if the matter is heard in the District Court the maximum penalty is 3 years imprisonment, or 8 years imprisonment if the act is committed in circumstances of aggravation.

If the matter is heard in the Magistrate’s Court the maximum penalty is 18 months imprisonment and a fine of $18,000, or 2 years imprisonment and a fine of $24,000 if the act is committed in circumstances of aggravation.

If the person is found guilty of stalking which could reasonably be expected to intimidate: The maximum penalty is 12 months imprisonment and a fine of $12,000.

Under WA law, there are several possible Defences for stalking, namely:

1. that the accused had a lawful right to pursue the person;
2. that the accused did not know that the person lived or worked at the place they are being accused of watching or besetting identification (ie. the person accused is not the person who was stalking the person); and
3. insanity.

If the allegation is of intent to intimidate, it is a defence that the person did not intend to communicate with that person or that he did not intend to intimidate.

If the allegation is of stalking which could reasonably be expected to intimidate, it is a defence that the other person was not in fact intimidated. This is not a defence for stalking with intent.

Section 338B states that any person who makes a threat to unlawfully –

1. kill, injure, endanger or harm any person (whether a particular person or not);
2. destroy, damage, endanger or harm any property (whether particular property or not);
3. take or exercise control of a building or structure or conveyance by use of force or violence;
4. cause a detriment of any kind to any person, whether a particular person or not, is guilty of a crime.

A threat can be through words or behaviour.

Threats are an ‘either-way’ offence. Therefore, the offence is most often dealt with in the Magistrate’s Court. However, if the threat is to kill or otherwise particularly serious or if the offender is also facing other charges which are dealt with in the District Court, then the Prosecution can make an application for the threat charge to be committed to the District Court.

Where the threat is to kill, the maximum penalty is 7 years imprisonment. If the threat is made in circumstances of racial aggravation, the maximum penalty is 14 years. If the threat is to kill, the matter cannot be dealt with in the Magistrate’s Court.

In any other case, if the matter is heard in the District Court, the maximum penalty is 3 year imprisonment or 6 years imprisonment in circumstances of racial aggravation. If the matter is dealt with in Magistrate’s Court, the maximum penalty is 18 months imprisonment and a fine of $18,000.