NSW OFFENCES FOR PUBLIC DISORDER
Public order offences are dealt with in accordance with the Crimes Act 1900 (NSW) under the following provisions:
- Part 3A Division 1: Riot and Affray
- 93B Riot
- 93C Affray
- Part 3A Division 2: Explosives and Firearms Offences
- 93FA Possession, supply or making of explosives
- 93FB Possession of dangerous articles other than firearms
- 93G Causing danger with firearm or spear gun
- 93GA Firing at dwelling-houses or buildings
- 93H Trespassing with or dangerous use of firearm or spear gun
- 93I Possession of unregistered firearm in public place
- Part 3A Division 3: Contamination of Goods
- 93K Contaminating goods with intent to cause public alarm or economic loss
- 93L Threatening to contaminate goods with intent to cause pubic alarm or economic loss
- 93M Making false statements concerning contamination of goods with intent to cause public alarm or economic loss
- 93N Aggravated circumstances – unwarranted demand
- 93O Aggravated circumstances – death or grievous bodily harm
- Part 3A Division 4: Bomb and Other Hoaxes
- 93Q Conveying false information that a person or property is in danger
- 93R Leaving or sending an article with intent to cause alarm
- Part 3A Division 5: Criminal Groups
- 93T Participation in criminal groups
- 93TA Receiving material benefit derived from criminal activities of criminal groups
- Part 3A Division 6: Unlawful Gambling
- 93V Offence of conducting unlawful gambling operation
- Part 3A Division 7: Consorting
- 93X Consorting
- Part 3A Division 8: Public Threats or Incitement of Violence on Grounds of Race, Religion, Sexual Orientation, Gender Identity or Intersex, or HIV/AIDS Status
- 93Z Offence of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or HIV/AIDS status
Part 3A Division 1 – Riot and Affray
Section 93B concerns criminal offences relating to rioting, which occurs where 12 or more people in a group use or threaten unlawful violence for a common purpose, and their actions when taken together would cause a person of reasonable firmness, if they were to actually be present at the scene, to fear for their personal safety.
The actions of the group do not have to be performed simultaneously and the common purpose can be inferred from their conduct. Whether the riot is committed in private or public is irrelevant, and if convicted, each person is liable for the maximum penalty of fifteen (15) years imprisonment before a high-level court and limited to two (2) years if dealt with at the Local Court.
Section 93C concerns the criminal offence of ‘affray’, which occurs where conduct was used or unlawful violence was threatened towards another person, and accordingly, would cause a person of reasonable firmness to fear for their personal safety – no actual person needs to be proven to actually be, or likely to be, present and words alone cannot amount to a threat, there must be some form of physical violence involved.
In circumstances where two or more people are involved, it is the conduct taken together that is considered. Whether or not affray is committed in public or private, it is an indictable offence and carries a maximum penalty of two (2) years if heard before the Local Court, which is increased to ten (10) years if heard at a higher-level court.
Part 3A Division 2 – Explosives and Firearms Offences
Section 93FA concerns possessing, supplying or creating explosives. If satisfied beyond reasonable doubt that a person possessed an explosive in a public place, they may be liable to imprisonment for a maximum five (5) years. If it is demonstrated that there is possession, supply or creation of an explosive for not a lawful purpose, they may receive three (3) years imprisonment, 50 penalty units, or both. If there is no election made by the prosecutor for the matter to be held before a higher-level court, then the maximum penalty will be two (2) years imprisonment at the Local Court.
Section 93FB concerns possession of dangerous items which are not firearms. This offence is committed when a person, without a reasonable excuse, in a public place possesses anything which is capable of discharging any of the following:
- Any irritant matter in liquid, gas or chemical form or any dense smoke; or
- Any substance capable of causing bodily harm; or
- Fuse capable of use with an explosive or a detonator; or
- Detonator; or
- Distress flare, or distress signal that operates by emitting a bright light.
The charge is to be dealt with before the Local Court, and the maximum penalty for imprisonment is two (2) years or fine of 50 penalty units, or both.
A defence is available should the court be satisfied that the item was for self-defence purposes and that it was reasonable to possess it for that purpose in the circumstances, which is considered by having regard to the:
- Immediacy of the perceived threat to the person charged; and
- Circumstances, such as time and location, in which the item was possessed; and
- Type of thing item possessed; and
- Age, characteristics, and experiences of the defendant.
Section 93G concerns a person causing danger with a firearm or spear gun. There are two forms of committing this offence. Firstly, possessing a loaded firearm or spear gun in a public place, or any other setting which may endanger the life of another person. A firearm is considered ‘loaded’ if there is ammunition in its chamber or barrel, in a device which can be fitted into its chamber or barrel. Secondly, carrying or firing a firearm or spear gun in a manner likely to injure, or endanger, the safety of themselves, other person, property, or with disregard for the safety of themselves or other people. If there is no reasonable excuse, then the person will be found guilty and face a maximum penalty of imprisonment for ten (10) years, or two (2) years in the Local Court.
Section 93GA is concerned with firing a firearm at a ‘dwelling-house’ or building with reckless disregard for the safety of any person. Therefore, there is no requirement to prove that a person was actually in danger. A ‘dwelling-house’ is any structure, including boats and vehicles, that is capable of being occupied.
The maximum penalty here is imprisonment for fourteen (14) years. However, if it is a committed during a public disorder or in the course of organised criminal activity, then the penalty is increased to sixteen (16) years.
There is a possibility for the defendant to found guilty under an alternative offence, 93G-H, if the ‘trier of fact’ is satisfied that the accused has established an offence under those provisions.
Section 93H concerns trespassing with or dangerous use of a firearm or spear gun.
Firstly, a person possessing a firearm, imitation firearm, spear gun, or imitation spear gun entering any building or land without a reasonable excuse or lawful purpose is liable to imprisonment for five (5) years, unless heard in the Local Court where the penalty is two (2) years. A defence is available where the accused is the owner or occupier of the building or land, or if permission has been granted by the owner or occupier.
Secondly, a person firing a firearm or spear gun into any building, or on, or onto any land is liable for ten (10) years imprisonment, or two (2) if dealt with in the Local Court, if there is no reasonable excuse or lawful purpose. Again, a defence is available where the accused is the owner or occupier of the building or land, or if permission has been granted by the owner or occupier.
Section 93I is an offence carrying maximum sentence of ten (10) years if elected to be heard in higher-level court, or maximum term of two (2) years in the Local Court. It is committed where a person possesses an unregistered firearm in a public place. If guilty under ‘circumstances of aggravation’, then the maximum gaol term liable for is increased to fourteen (14) years. ‘Circumstances of aggravation’ is a situation in which possession involves more than one unregistered firearm, or the unregistered firearm is a pistol, or it is a prohibited firearm.
Part 3A Division 3 – Contamination of Goods
Section 93K is criminal offence where a person has ‘contaminated’ ‘goods’ with the intention of causing public alarm, anxiety, or ‘economic loss through public awareness’ of the contamination.
Contaminating goods is where goods have been interfered with or are made to appear as if they have been contaminated or interfered with.
Goods include any substance that is either natural or manufactured and does not matter whether it is for human consumption.
Economic loss is a reference to the public not purchasing or using those goods, or similar, or steps taken to avoid public alarm or anxiety about those goods or similar goods.
This offence carries a penalty of two (2) years in the Local Court, and if elected, ten (10) years in a higher-level court.
Section 93L is an offence committed when a person makes a threat, explicitly or implicitly, that ‘goods’ will be ‘contaminated’, conditionally or unconditionally, with the intention of causing public alarm, anxiety, or ‘economic loss’ through public awareness of the contamination. This offence carries a penalty of two (2) years in the Local Court, and if elected, ten (10) years in a higher-level court.
Section 93M is an offence of making a false statement leading people to believe that ‘goods’ have been ‘contaminated’ with the intention of causing public alarm, anxiety, or ‘economic loss’ through public awareness of the contamination. This offence carries a penalty of two (2) years in the Local Court, and if elected, ten (10) years in a higher-level court.
Section 93N is an extension to sections 93K, 93L and 93M where the conduct is connected to an unwarranted demand – a demand the person believes they do not have any reasonable grounds for making. If convicted under this section, the penalty is increased to fourteen (14) years imprisonment.
Section 93O is an extension to sections 93K and 93L where contamination of the good has caused death or grievous bodily harm to another person, and that there was an intention for this outcome to eventuate. If convicted under this section, the penalty is increased to twenty-five (25) years imprisonment.
Part 3A Division 4 – Bomb and Other Hoaxes
Section 93Q concerns conveying information that the person knows to be false or misleading and is likely to make the receiver of the information fear for the safety of themselves, another person, property, or all. Conveying information is set out in the legislation as any means including a statement, document, or transmission of an electronic or other message. Penalty of two (2) years imprisonment if heard before the Local Court, however it carries a five (5) year gaol sentence if elected to be heard at a higher-level court.
Section 93R is a criminal offence where a person leaves or sends a substance or article with the intention of inducing a false belief that it is likely to be a danger to the safety of a person, property, or both. It is a belief that the item will likely explode, ignite, or consist of or discharge a dangerous matter. Penalty of two (2) years imprisonment if heard before the Local Court, however it carries a five (5) year gaol sentence if elected to be heard at a higher-level court.
Part 3A Division 5 – Criminal Groups
Section 93T concerns participation in criminal groups, defined as a group of three or more people who:
- Obtain material benefits from conduct that constitutes a serious indictable offence; or
- Obtain material benefits from conduct engaged in outside NSW (including outside Australia), that if occurred in NSW would constitute a serious indictable offence; or
- Commit serious violence offences; or
- Engage in conduct outside NSW (including outside Australia) that, would constitute a serious violence offence if it occurred in NSW.
It is an offence to participate in a criminal group where the person knows, or ought to have reasonably known, that it was a criminal group and that their participation contributes to the occurrence of any criminal activity. If convicted, a penalty of two (2) years imprisonment if heard before the Local Court applies, however it carries a five (5) year gaol sentence if elected to be heard at a higher-level court. In the case that the person is directing the activities of the group, the same elements must be satisfied, and the maximum penalty is increased to ten (10) years imprisonment.
If there is an assault of another person in relation to any criminal activity of a criminal group, then the maximum penalty for imprisonment is ten (10) years. The same penalty applies where there is destruction or damage of property belonging to another person, or threats to destroy or damage property belonging to another person in course of criminal activity of a criminal group.
The penalty further increases where participating in criminal activity of a criminal group where there is an assault on a law enforcement officer while in the execution of their duty – maximum penalty for imprisonment for fourteen (14) years.
Section 93TA creates an offence for receiving material benefit from a criminal group that is derived from their criminal activities. It must be established that the person is aware that it is a criminal group, as well as knew, or was reckless as to whether, the benefit was sourced from criminal activities of the group. The maximum penalty for this offence is imprisonment for five (5) years if convicted.
Part 3A Division 6 – Unlawful Gambling
Section 93V creates an offence for organising or managing an unlawful gambling operation, which is an operating that causes a substantial loss of potential revenue to the State that would be derived from lawful forms of gambling, and either:
- Kept at least two premises that are used for the any form of prohibited gambling under the Unlawful Gambling Act 1998 (NSW); or
- Involved substantial planning and organisation for matters connected to any form of prohibited gambling, for instance, records of number of people, amount of money and gambling turnover; or
- Used sophisticated methods and technology to avoid detection of prohibited gambling, for instance, telephone diverters and encrypted software programs.
The maximum penalty, if convicted, is seven (7) years imprisonment or 1,000 penalty units, or both.
Part 3A Division 7 – Consorting
Section 93X creates an offence for habitually associating with convicted offenders’ afters having been provided with an official warning in relation each convicted offender. The maximum receivable penalty for this offence is imprisonment for three (3) years or a fine of 150 penalty units, or both.
Habitual consorting with convicted offenders occurs where a person interacts with at least 2 convicted offenders, whether on the same or separate occasions, and with each convicted offender on at least 2 occasions.
An ‘official warning’ is set out in the Act as oral or written police officer warning that a certain person is a convicted offender and habitually consorting with that offender is an offence. An official warning ceases to have effect six (6) months after the warning is given to a person under the age of 18 years, and in every other circumstance, two (2) years.
Defences that may be available to the offence of consorting are:
- If the person charged is under 14 years of age; or
- The accused was consorting with family members, and if the defendant is of an Indigenous culture, it includes anyone who is or has been a part of the extended family or kin according the indigenous kinship system; or
- Consorting that occurs:
- Consorting occurred in the course of lawful employment or lawful operation of a business; or
- Consorting that occurs in the course of training or education; or
- Consorting occurring in the course of providing a health service or welfare service – ‘health service’ is essentially described in the Act as any service that relates to the maintenance, restoration, or improvement of health (including psychological), and ‘welfare service’ is any financial assistance or family support that is necessary for the promotion, protection, development and maintenance of the well-being of a person (including rehabilitation or drug and alcohol service); or
- Consorting occurring in the provision of legal advice; or
- Consorting that occurs whilst held lawful custody or in the course of complying with a court order; or
- Consorting occurring in the course of providing transitional, crisis or emergency accommodation; or
- Consorting that occurs in the course of complying with:
- An order granted by the Parole Authority; or
- A case plan, direction or recommendation by a member of staff of Corrective services NSW.
Part 3A Division 8 – Public Threats or Incitement of Violence on Grounds of Race, Religion, Sexual Orientation, Gender Identity or Intersex, or HIV/AIDS Status
Section 93Z is an offence whereby a person makes a public act to intentionally or recklessly threaten or incite violence towards another person or group on any of the following grounds:
- Religious belief or affiliation;
- Sexual orientation;
- Gender identity;
- Intersex status; and/or
- HIV or AIDS
It is irrelevant whether the accused’s belief was correct or incorrect, or whether another person had formed a state of mind to carry, or had actually carried, out any act of violence.
The maximum penalty in the case of an individual person is three (3) years imprisonment or 100 penalty units, or both. However, in the case of a corporation, the penalty is 500 penalty units.
How JB Solicitors Can Help
A public order offence contains gaol penalties and is therefore vital that you receive legal representation, especially as there may be a defence or mitigating factor that is applicable to your case.
JB Solicitors has a leading team of highly experienced criminal lawyers who can assist you with your matter. We understand the seriousness of the offence, and the difficulties you face when charged with public order offences. You will be provided with accurate and tailored advice to assist you in achieving the best possible outcome for your personal circumstance.
If you have been charged with a public order offence and need to know your options moving forward, please contact JB solicitors today on 02 9723 8080, or alternatively, visit our Canley Heights Office.