By Sam Jackson
Accredited Specialist Criminal Law – Qld
Responding to a recent enquiry into the adequacy of sentences imposed for people charged with child deaths, Queensland Parliament has passed a number of amendments to legislation. These changes substantially increase the penalties for persons convicted of these kind of offences.
The Amendments change the legislation in a number of ways, including:-
- By introducing a new ‘Child Homicide’ Offence. The new offence applies where a person unlawfully kills a child in a way that involves violence or sexual conduct. The child homicide offence includes death caused by a breach of duty to care for a child or to provide the child with the necessaries of life. It carries mandatory life imprisonment as a punishment, with a minimum non-parole period of 15 years;
- Increases the minimum non-parole period for Murder offences where the victim was a child to 25 years;
- Requires the Courts who are sentencing a person for any offence which resulted in the death of a child under 12 to consider the child’s defencelessness and vulnerability as an aggravating factor;
- Increases the maximum penalty for the offence of Failing to Supply Necessaries to 7 years imprisonment;
- Makes the offence of Failing to Supply Necessaries a ‘serious violent offence’.
What is a child?
A child is any person under 18 years of age. The amendments are consistent with the approach taken to child homicide offences in other States and Territories including New South Wales, Victoria and the Northern Territory.
The legislation expands the definition of what constitutes Murder by introducing a new element of ‘recklessness’. Recklessness includes conduct where a person acts in a way with the knowledge or foresight that it could cause the death of another person. The acts is not limited to conduct involving a child. “Recklessness” could apply to conduct where the elderly or a person with a disability is the victim. The actual wording of the ‘new’ element is:
Section 302(1)(aa)if death is caused by an act done, or omission made, with reckless indifference to human life
The amendment to “recklessness” has the potential to make a person liable for Murder (and mandatory life imprisonment) even if they did not intend to kill another person. This has been the law in a number of other Australian jurisdictions. It reflects the moral equivalence between acting with intent to cause death, and acting with a careless indifference to the likelihood of causing death.