COURSE OF CONDUCT
Author:
Olivia Trumble
Date:
21 October, 2015
© Copyright 2015
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COURSE OF CONDUCT OFFENCES
OLIVIA TRUMBLE
1. On 1 July 2015 further provisions of the Crimes Amendment (Sexual Offences
and Other Matters) Act 2014 commenced their operation.
A significant
change to the way in which sexual offences are prosecuted in this State was
made with the introduction of the new ‘course of conduct’ charge.
This
means that police and prosecutors can bring charges alleging that an accused
committed an offence as a “course of conduct”.
2. A course of conduct charge is available for any charge sheet or indictment
filed on or after 1 July 2015 regardless of when the offence was allegedly
committed1. For matters already before the courts the prosecution would be
entitled to file a new indictment containing a course of conduct charge.
3. The definition of a course of conduct charge is contained in Schedule 1,
Clause 4A, of the Criminal Procedure Act 2009 (CPA):
Course of conduct charge is a charge for a relevant offence that
involves more than one incident of the offence
4. The new course of conduct charge was developed in response to the failure of
the previous law to provide an effective way of prosecuting cases involving
repeated and systematic sexual abuse particularly of children.
1
Criminal Procedure Act 2009, s445 Olivia Trumble, Foley’s List, Coldrey Chambers, 21 October 2015 Whilst the
offence was introduced to deal with the common problems associated with
specificity and particularisation it is available to prosecuting authorities for a
wide range of State offences including2:
a. Property offences such as theft, handle stolen goods, obtain property
by deception, obtaining financial advantage by deception, false
accounting, blackmail and secret commission offences;
b. Identity crimes
c. Money laundering
d. Cheating at gambling
e. Computer offences
5. The offence of Persistent Sexual Abuse of a Child (s47A) was inserted into the
Crimes Act in 1991 in an attempt to address the problems associated with
repeat sexual offending. However, problems remain with this section as it still
requires a high degree of specificity about each offence/incident alleged.
s47A was primarily used for guilty pleas rather than trials.
When can a Course of Conduct charge be utilised?
6. A course of conduct charge involving more than one incident of an offence,
can be used where:
a. Each incident constitutes an offence under the same provision; and
b. Each incident relates to the same complainant (ie. in a sexual offence
case); and
c. The incidents take place on more than one occasion over a specified
period; and
2
Criminal Procedure Act 2009, sch 1, clause 4A(1) – definition of relevant offence Olivia Trumble, Foley’s List, Coldrey Chambers, 21 October 2015 d. The incidents, taken together, amount to a course of conduct, having
regard to their time, place or purpose of commission and any other
relevant matter
7. The charge is not restricted to one type of conduct – ie. the charge could
allege acts of digital penetration, acts of oral penetration and acts of vaginal
penetration.
What needs to be proved for a Course of Conduct charge?
8. A number of the provisions contained in Schedule 1, Clause 4A are dedicated
to what the prosecution does not need to prove for a COC charge3.
9. So what do they need to prove then? Schedule 1, Clause 4A(8) CPA provides
that:
The prosecution must prove beyond reasonable doubt that the
incidents of an offence committed by the accused, taken together,
amount to a course of conduct having regard to their time, place or
purpose of commission and any other relevant matter.
10. The prosecution does not need to prove any particular number of incidents,
nor do they have to prove dates, times, places or even actual occasions4.
They do not need to prove any distinctive features differentiating the
occasions and nor do they need to prove the general circumstances of any
3
4
Criminal Procedure Act 2009, Sch 1, clause 4A(9),(10) and (11) Criminal Procedure Act 2009, Sch 1, clause 4A(10)(a) Olivia Trumble, Foley’s List, Coldrey Chambers, 21 October 2015 particular incident5.
A course of conduct is understood as consisting of a
number of incidents, but no particular number of specific incidents need to be
proved.
11. Arguably a course of conduct may be more likely to be proved in cases
involving systematic and repeated acts of abuse.
Where there are multiple
incidents, the complainant is less likely to be able to remember the specifics
of individual instances.
However, with only two or three incidents, the
complainant is unlikely to have a problem in specifically identifying each
incident. It may be that a course of conduct is capable of being proved by
evidence of what would typically or routinely occur without the need for
evidence which distinguishes separate occasions.
12. If there is a large gap in time between alleged incidents, it may be more
difficult to conclude that there was a course of conduct. In many cases there
may be a regular place where the offending occurs, ie. bedroom, bathroom,
someone’s house. The fact that the incidents occur in different locations will
not necessarily preclude there being a course of conduct but one might
expect a higher degree of frequency to establish the course of conduct.
13. Schedule 1, Clause 4A(8) of the CPA also makes reference to “any other
relevant matter”.
This allows flexibility in what material may be relevant to
establishing a ‘course of conduct’ so that it may include, for example,
evidence of similarity in the method employed in the offending or evidence of
attempts to stop the complainant from complaining, for example the use of
threats, bribes or other forms of pressure or manipulation.
5
Criminal Procedure Act 2009, Sch 1, clause 4A(10)(b) and (c) Olivia Trumble, Foley’s List, Coldrey Chambers, 21 October 2015 14. The concept of a ‘course of conduct’ is already known to the criminal law –
for example stalking under s21A of the Crimes Act. It could also be compared
to the kind of multiple-instance drug trafficking discussed in Giretti v The
Queen (1986) 24 A Crim R 11.
Sentencing of course of conduct charges
15. Given that a course of conduct charge is in essence a mode of charging a
substantive offence the maximum penalty for the charge is the same
maximum penalty for the substantive offence6.
For instance if the base
offence of a course of conduct charge is punishable by a maximum of 10
years imprisonment this would remain the maximum penalty for the multiple
offences charge (compared with s47A which carries a maximum of 25 years
irrespective of the three offences alleged).
16. The court when sentencing an offender for a course of conduct charge must
impose a sentence that reflects the totality of the offending that constitutes
the course of conduct7. It is for the sentencing judge to determine, after a
guilty verdict, the course of conduct in which the person engaged.
17. As with s47A charges a finding of guilt for a course of conduct offence will
suffice to render the accused a serious sexual offender for the purposes of s6
of the Sentencing Act 19918.
Other matters to note
6
Sentencing Act 1991 s5(2F)(b) 7
8
Sentencing Act 1991 s5(2F)(a) Sentencing Act 1991 s6B(2)(ac) Olivia Trumble, Foley’s List, Coldrey Chambers, 21 October 2015 18. Joinder – The provisions allow for an indictment to contain a course of
conduct charge with, in the alternative, specific counts for alleged incidents
already covered by the course of conduct charge and alleged to have been
committed within the period to which the course of conduct charge relates9.
An acquittal on the course of conduct charge doesn’t constitute an acquittal
in relation to the other charge – the other charge is an alternative and would
need to be given separate consideration by a jury.
19. Consent of the director – A charge sheet that contains a course of conduct
charge for a sexual offence must not be filed or signed without the consent of
the Director of Public Prosecutions10. The consent is not required for course
of conduct charges relating to non-sexual offences.
20. No s47A on same indictment – The prosecution cannot bring a course of
conduct charge and a s47A charge in the same proceeding11. It is one or the
other.
21. A course of conduct charge is an exception to the rules against duplicity and
uncertainty.12
22. No application for severance can be made in relation to any one of the
occasions alleged in a course of conduct charge because it is taken to be one
single offence
9
Criminal Procedure Act 2009, Sch 1, Clause 5(3) Criminal Procedure Act 2009, Sch 1, Clause 4(13) 11
Criminal Procedure Act 2009, Sch 1, Clause 5(5) 12
Criminal Procedure Act 2009, Sch 1, Clause 4A(12) 10
Olivia Trumble, Foley’s List, Coldrey Chambers, 21 October 2015 A recent example of the use of Course of Conduct charges
DPP v Garcia (pseudonym) [2015] VSCA 275
Olivia Trumble
Foley’s List
Coldrey Chambers
21 October 2015
Olivia Trumble, Foley’s List, Coldrey Chambers, 21 October 2015