Chapter 6
Conclusion: anomalies in the maximum penalty structure

Maxima that do not reflect the appropriate balance between consequence and culpability

6.25A few offences seem to place undue weight upon the serious consequence arising from the offence, and fail adequately to take into account the reduced culpability inherent in the definition of the offence.

6.26Perhaps the most glaring example is manslaughter, which currently carries a maximum penalty of life imprisonment. Since the repeal in 2009 of the partial defence of provocation under s 169 of the Crimes Act, the offence of manslaughter never involves an intent to kill. Given the extended definition of murder in s 167(b)–(d), it also excludes cases where the offender means to cause bodily injury, or does any act with an unlawful object that is known to be likely to cause death and is reckless whether death ensues or not. Accordingly, it ought not to carry the same maximum penalty as murder. Our methodology placed it in Category C, alongside offences such as attempted murder, aggravated wounding and wounding with intent to cause grievous bodily harm.

6.27In contrast, some other offences seem to place too much emphasis upon the culpability inherent in the offence, and give insufficient recognition to the fact that little or no harm actually materialises. An example can be found in s 131B of the Crimes Act (meeting a young person under the age of 16 years following sexual grooming with the intent of committing a sexual offence), which carries a maximum penalty of seven years’ imprisonment. The offender does not get to the stage of an attempt, and the harm score is derived solely from the risk that he or she presents. The resulting ranking placed the offence in Category K, alongside offences that, while varying widely, are mostly in the three to five year range.

6.28A second example of this undue emphasis on culpability appears in s 198A of the Crimes Act. Subsection (1) comprises an offence of using a firearm against a police officer or prison officer, acting in the course of his or her duty, knowing that the person is a police officer or traffic officer; it carries a maximum penalty of 14 years’ imprisonment. Subsection (2) comprises an offence of using a firearm with intent to resist lawful arrest or detention; it carries a maximum penalty of 10 years’ imprisonment. In both cases, the worst class of case must assume that no injury, or at least no serious injury, results, since that should more appropriately be charged as wounding with intent to injure or cause grievous bodily harm. The harm caused by the s 198A offences, while serious, should therefore be based primarily on risk. On this basis, the maximum penalties are, relatively speaking, much too high. We placed them in Category H, alongside offences with current maxima primarily in the five to seven year range.

6.29In some instances, the comparative weight placed on consequence and culpability between one offence and another is anomalous. For example, the offence of wounding with intent to injure under s 188(2) of the Crimes Act carries a maximum penalty of seven years’ imprisonment, while the offence of injuring with intent to cause grievous bodily harm under s 189(1) carries a maximum penalty of 10 years’ imprisonment. The reduced culpability inherent in the former offence has therefore been given greater weight than the reduced consequence inherent in the latter offence. In the worst class of case, we think that the marginal effect of a reduction in consequence and culpability should be the same. The difference in maximum penalties between the two offences therefore does not seem intuitively right.

6.30We note, however, it is often difficult on the evidence to draw a clear dividing line between "intent to cause grievous bodily harm" and "intent to injure". It is for that reason, following judicial feedback, the Law Commission recommended in Review of Part 8 of the Crimes Act 1961: Crimes Against the Person,30 the level of intended injury should be treated as a sentencing factor, rather than as a substantive element of the offences. If that were done, there would be two offences: wounding (or, as we would prefer to term it, causing serious injury) with intent to injure; and injuring with intent to injure. We support the Law Commission recommendation.
30Law Commission , above n 25.