Page 4672 - Week 13 - Tuesday, 31 October 2017
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10 years imprisonment. However, even proving that someone knowingly shot into a suburban home may not necessarily be enough to convict an offender of this crime. There may have been no-one inside the home, in which case there was no way to cause another person to fear for their safety.
These cases can be further complicated if the victim is a member of an outlaw motorcycle gang or other criminal organisation; they may not be willing to provide police with any information at all that enables this offence to be charged and prosecuted. While the existing legislation comes with a penalty that recognises how serious the behaviour is, in its current form it can be difficult to apply. At the other end of the spectrum, there are offences under the Firearms Act 1996 for discharging a firearm in a public place, but these are punishable by a maximum of 12 months imprisonment. These laws are aimed at regulating the use of firearms, not at serious crime.
The new offence in this bill will capture people shooting at any building or vehicle where other people might be, including homes or businesses, whether from a car or otherwise. This legislation has been drafted based on similar provisions in New South Wales. A particular person does not need to have been the target of the shooting, and a person does not need to have been injured for the offence to apply. Unlike the offence of an act endangering life, the new offence does not rely on a victim being in fear or apprehension for their safety.
The new offence recognises that shooting into a place where people could be is inherently a serious violent crime. It is an action intended to intimidate or terrorise people, and one that has occurred in furtherance of organised crime. For that reason, the new offence in this bill comes with a maximum penalty of 10 years imprisonment, the same as for the offence of acts endangering life.
The second area covered by this bill relates to investigating crimes. As the legislation currently stands, police have no express power to establish and control a crime scene in a public place or private premises. While there are a number of common law powers to secure crime scenes, these powers are limited in scope. For example, a police officer has the power to enter premises without a warrant where the officer is pursuing an offender who enters the premises. The inability to secure a crime scene adequately means police have limited power to exclude or remove people who may be either deliberately or inadvertently interfering with evidence. The ability to preserve evidence has real-world, practical consequences for law enforcement.
For example, in February 2016 police received information from a source that a drive-by shooting had occurred at an OMCG member’s property. Police attended the home and spoke with the victim, who denied that a shooting had taken place. The occupant of the home declined to give police consent to search. Police observed damage from what appeared to be shotgun pellets to several surfaces at the front of the home. Tradespeople were already on site in the process of removing and replacing the damage. Police considered applying for a search warrant. However, it was apparent that any evidence would be destroyed by the time the warrant was issued.
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