Aggravated Circumstances & Offences in South Australia

What Are Aggravated Circumstances?

Aggravated circumstances are defined in section 5AA of the Criminal Law Consolidation Act 1935 (SA) and attract harsher penalties than basic offences. If you are charged with an aggravated criminal offence or traffic offence, it is crucial to get advice as soon as possible. Book a free 30 minute consultation with today to achieve the best outcome.

Difference Between Aggravated and Basic Offences?

A basic offence is one that lacks any specially listed aggravating factors. However, if one or more aggravating factors are present, the offence becomes aggravated. Aggravation generally reflects heightened culpability, greater harm, or particularly vulnerable victims. As a result, not only are the penalties much higher but courts in South Australia are likely to impose harsher sentences.

Key Points

1. The aggravating factors must be explicitly stated in the charge (known as the “instrument of charge”).
2. If the prosecution proves one or more aggravating factors beyond a reasonable doubt, the offence is treated as aggravated.
3. Judges (or juries) will take these factors into account during sentencing, leading to more severe penalties.

Categories of Aggravated Circumstances

Under section 5AA(1), a wide variety of factors can elevate a basic offence to an aggravated one. Here is an overview of some of the most common circumstances:

Deliberate Infliction of Severe Pain

• • If the offender deliberately and systematically inflicts severe pain on the victim.
  • Reflects cruelty or torture-like conduct during the commission of the offence.

Use or Threat of an Offensive Weapon

• • Offender uses or threatens to use a weapon (e.g. firearm, knife) while committing the crime.
  • Significantly heightens the threat level to the victim and the community.

Offences Against Law Enforcement or Other Officials

• • Targeting a police officer, prison officer, or other law enforcement personnel during official duties.
  • Can also include acting in retribution for actions taken by these officials in the course of their duty.

Targeting Legal Proceedings

• • If the offence is committed to prevent someone from initiating or continuing legal proceedings, or in retaliation for participating in legal proceedings.
  • Undermines the administration of justice.

Victim’s Youth or Advanced Age

• • Knowing the victim is under the age of 12 (in most cases) or under the age of 14 (in certain offences), or
  • Knowing the victim is over 60 years old.
  • Recognises the heightened vulnerability of very young or elderly victims.

Offences in a Domestic or Personal Relationship

• • Where the offender and victim are, or were formerly, in a relationship (including marriage, domestic partnership, familial relationship, or any intimate personal relationship) and a domestic assault occurs.

Connection with Criminal Organisations

• • Committing the offence for the benefit of a criminal organisation, or
  • Identifying oneself as belonging to a criminal organisation during the offence.

Offences Committed in Company

• • The offender acts in company with one or more other persons (including minors), which can increase the sense of intimidation or planning.

Abuse of Position of Authority or Trust

• • For instance, a teacher, carer, or anyone holding a trusted position uses that role to commit the offence.

Victim’s Special Vulnerability

• If the offender knows the victim has a physical disability or cognitive impairment, making them more susceptible to harm.

Victim’s Occupation

• If the victim is engaged in certain prescribed occupations (e.g. emergency services personnel) and the offender knows the victim is acting in their official capacity.

Contravention of Court Orders

• Offences committed while violating an injunction or order of a court, where the offence falls within the scope of conduct the order was designed to prevent.

Aggravated Driving Offences

Section 5AA also identifies aggravating circumstances specific to driving offences. These include:

• Attempting to Evade Police – For instance, speeding away after an officer signals you to stop.
• Driving While Disqualified or Suspended – Knowingly or wilfully driving when you’re not legally permitted to do so.
• High Blood Alcohol Concentration (0.08 or More) – Committing a category 2 or higher drink driving (PCA) offence.
• Street Racing – Engaging in a speed or drag race on a public road.
• Material or Major Defects in the Vehicle – Driving a car you know is unsafe, thereby posing a greater risk to others.

These factors underscore the heightened risk to the public and signal that the offender is acting with clear disregard for safety or legal obligations.

Proof of Aggravated Circumstances

To establish an aggravated offence, the prosecution must:

1. Allege the Aggravating Factor – The specific factor(s) must  be stated in the instrument of charge is so an accused can defend him or herself with notice of the actual state of affairs said to aggravate the offence.
2. Prove it Beyond a Reasonable Doubt – Evidence must show the offender knew or was reckless as to the aggravating fact (e.g., victim’s vulnerability, weapon use).
3. Demonstrate Causation – The factor must be directly relevant to the offence. For example, if an offender threatens a person with a knife during the crime, this is clearly connected to the commission of the offence.

When prosecutorial discretion is exercised to allege an aggravating circumstance, intended by Parliament to increase the maximum penalty applicable on conviction, matters of aggravation must be strictly identified and proven.

If that were not the case, it would be open to a judge sitting alone to find proven an aggravating circumstance provided for by the Act which had not been alleged and that is clearly not the case (R v Goldner-Shepp [2021] SADC 144).

Sentencing of Aggravated Offences

When sentencing an aggravated offence, courts will:

• Impose a higher penalty than would apply to a basic offence of the same kind.
• Consider the nature and degree of the aggravating factor. (E.g., using a weapon that wasn’t brandished might carry a slightly different penalty than one used to cause actual physical harm.)
• Weigh the circumstances of the offence, including the offender’s criminal history, remorse, and other mitigating factors.

However, Section 5AA(6) clarifies that even if the offence is charged in its basic form but the court finds aggravating circumstances, the judge may still consider those circumstances during sentencing—although they must remain within the penalty range for the basic offence.

Examples of Aggravated Circumstances

Aggravated Assault on a Police Officer

• • An offender who physically attacks a police officer on duty can face a higher penalty than if the victim were not a law enforcement official.

Domestic Violence in Breach of a Court Order

• • If an assault occurs while a intervention order is in place, it’s likely an aggravated offence.

Robbery of an Elderly Person

• • Knowing the victim is 70 years old can make the robbery aggravated, reflecting the victim’s elevated vulnerability.

Arson During a Declared Emergency

• • Setting fire to property when a bushfire emergency has been declared intensifies the crime’s seriousness.

Driving Offence with High BAC and Disqualification

• • A driver who already lost their licence for prior offences but continues to drive with a blood alcohol level of 0.08 or higher commits an aggravated driving offence.

Example Where Aggravation Was Was Not Established

• In R v Helps [2018] SADC 63 the accused was charged with indecent assault alleged to be aggravated because he committed the offences knowing the victim, his de-facto partner’s daughter, was at the time of the offence, a child of whom he had custody as a parent or guardian.
• The accused was not the victim’s biological parent and the trial Judge was not satisfied he was the victim’s guardian.
• David DCJ noted that there was no definition of guardian in the Act. David DCJ referred to the common law categories of guardian and found that none of them were applicable.
• David DCJ held that the aggravating feature had not been proved.

Need More Advice? Contact Talon Legal

Facing an aggravated offence charge can be daunting, especially when complex factors under Section 5AA come into play. At Talon Legal, we have extensive experience handling cases involving serious criminal offences and regularly appear in all South Australian Courts. If you have questions or need representation:

1. Book a free 30 minute consultation – We offer confidential consultations to discuss your matter.
2. Case Assessment –  Our team examines the evidence and alleged aggravating factors.
3. Strategic Defence – We craft a defence strategy aimed at reducing or removing charges or achieving the best possible outcome.

Contact Talon Legal today for dedicated and expert legal advice tailored to your unique situation.