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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Attempted Offences Attempted Offences and Penalties in New South Wales (NSW)

    Attempted Offences and Penalties in New South Wales (NSW)

    Just because a person was unsuccessful in carrying out a crime does not mean they can walk away without facing any penalty. In most cases attempting to commit a crime has the same gravity as a person who successfully carries out the crime.

    However, proving that a person attempted to carry out a crime might be a difficult task in many proceedings. This is because the prosecution does not usually have material evidence, unlike when a crime occurred.

    This article will discuss the crime of attempt and its penalties as seen in the New South Wales Crimes Act 1900 (NSW), including the elements and possible defences to the crime.

    If an individual is convicted in a New South Wales court for an attempted offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check result in NSW.

    What the Law Says About the Crime of Attempt

    Section 344A of the Crimes Act 1900 (NSW) states that any person who attempts to commit a particular offence shall be liable to the penalty provided under that offence. Furthermore, this section explains that a person facing charges for attempting to commit a serious indictable offence in NSW shall be convicted as though they committed the crime.

    Types of Attempt

    The offence of attempt falls under inchoate crimes, otherwise known as unfinished crimes. Under inchoate crimes, the offence of attempt can come in two forms; complete attempt and incomplete attempt.

    Complete attempt refers to a situation where a person takes all the actions necessary for the commission of a crime but ends up being unsuccessful. For instance, an individual might take every step to break into a house but fail due to being unable to pick the lock.

    However, for an incomplete attempt, this has to do with the inability to take actions necessary for the commission of an offence. An example is a scenario where a person attempted to break into a house and could not even get near the house or the lock.

    An incomplete attempt makes it difficult for the court to determine if a person is guilty or not, as it sometimes comes down to just intention.

    What the Prosecution Has to Prove

    For the court to find a person guilty of an attempt, the prosecution must prove the elements of the crime. Inability to show the presence of these elements can lead to the court dismissing the case. These elements include:

    #1. Intent

    For most crimes, there is a need for the prosecution to establish that the defendant intended to carry out a crime. Sometimes the prosecution can easily prove the presence of intent by inferring from the accused's conduct. For instance, if a person is caught on camera picking a lock to enter a house, the prosecution can simply claim that they carried out this act based on their intention of breaking into the house.

    #2. Action

    In the process of proving that the defendant is guilty of an attempt, it is crucial to show the court that the accused took some actions towards committing a crime, regardless of the extent to which they went in the process.

    Possible Defences For an Accusation of Attempt

    When charged with an attempt, there are several defences that the defendant can raise. These defences can lead to the acquittal of the accused.

    Some of these defences are:

    #1. Mistake of Fact

    Raising this defence means that the defendant unintentionally committed the crime of attempt. For example, a person might mistake another person's car for theirs and try to drive the car home. However, claiming this defence requires that the defendant show the court that the mistake was genuine and any reasonable person could have committed the same error.

    #2. Involuntary Intoxication

    The defence of involuntary intoxication negates the presence of intention as the defendant was not in their right state of mind when they committed the offence. Nonetheless, claiming this defence demands the accused to prove that the intoxication was not a result of a voluntary act.

    #3. The Accused Took No Action

    If an accused did not take any action regarding committing a crime, they could claim this defence. This defence is suitable because the court can't pronounce a person guilty of an attempt solely based on intention.

    In such a situation, the court may have no other choice but to dismiss the case unless the prosecution can convince the court that the accused did take certain steps to commit a crime.

    #4. Necessity

    The defence of necessity only applies when the accused committed the crime of attempt in the process of trying to prevent something terrible from occurring. For instance, the defendant might have tried to break into a car to drive a dying person to a hospital.

    #5. Duress or Coercion

    A defendant can raise this defence if they carried out an attempt due to being under threat and not of their free will. This threat could involve the use of force or violence. However, the success of this defence depends on the accused being able to convince the court that they believed the threat to be genuine and that they had no other option but to succumb.

    #6. Voluntary Abandonment

    Voluntary abandonment refers to a scenario where the defendant decided not to carry out a crime and took necessary steps to ensure that the crime did not occur. This might involve informing the police. Nevertheless, by claiming this defence, the defendant will have to show that their actions before they abandoned the crime did not contribute to the successful commission of the crime.

    The Court that Handles Attempt Cases

    The type of crime that a person attempted to carry out determines the court that will conduct the trial. In New South Wales, there are primarily three courts that handle criminal cases. These are the Local, District, and Supreme Court.

    The Local court conducts most of the trials for civil cases and trivial offences, while the District and Supreme courts handle the majority of the criminal cases.

    Hence, if the attempted crime is a less serious offence, the Local court will conduct the trial. But, if the crime attempted is a serious offence like murder, rape, e.t.c, the Supreme court will likely handle the proceeding.

    Bottom Line

    The penalty regarding attempt serves to discourage anyone from taking a step towards committing a crime. The legislation states that the court will convict a person who attempted to commit an offence as though they committed the crime. Consequently, this makes the charge of an attempt serious. As such, no individual should take an allegation of attempt with levity but seek legal advice.

    Will an attempted offence in New South Wales (NSW) show up on a Nationally Coordinated Criminal History Check?

    If an individual is found guilty of an attempted offence in the state of New South Wales, the offence will show up as a disclosable court outcome (DCO) on the results of their police record check.

    Individuals can obtain an Australian police check via the Australian National Character Check - ANCC® website.

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