Page 2862 - Week 08 - Wednesday, 16 August 2017

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(b) the person—

(i) intends the other person to fear that the threat would be carried out; or

(ii) is reckless about whether the other person would fear that the threat would be carried out.

Maximum penalty: 300 penalty units, imprisonment for 3 years or both.

(2) In a prosecution for an offence against this section—

(a) a threat may be made by any conduct whether explicit, implicit, conditional, or unconditional; and

(b) it is not necessary to prove that the other person actually feared that the threat would be carried out; and

(c) a person may be found guilty even if carrying out the threat is impossible.

Examples—par (c)

• the image does not exist

• technical limitations prevent the person from capturing or distributing the image

Note  An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) In this section:

capture intimate image—a person captures an intimate image of another person if the person captures an image of the other person, with a camera or by any other means, in such a way that—

(a) a recording is made of the image; or

(b) the image is capable of being transmitted in real time, with or without retention or storage, in a physical or electronic form; or

(c) the image is otherwise capable of being distributed.

16

Clause 5

Proposed new section 72EA

Page 7, line 5—

insert

72EA Consent—pt 3A 

(1) For this part, and without limiting the grounds on which it may be established that consent is negated, a person does not consent to the distribution of an intimate image of the person by another person (the offender) if the consent is caused by a circumstance set out in section 67 (1) (a) to (j).

(2) Also, a person does not consent to the distribution of an intimate image of the person by the offender only because the person—

(a) consented to the offender distributing the image or another intimate image on another occasion; or

(b) consented to someone else distributing the image or another intimate image; or

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