Attempted Offences (Vic)
Under Section 321M of the Crimes Act 1958, a person in Victoria can be charged with attempting to commit an indictable offence. Attempted offences are inchoate offences, meaning offences that are incomplete. Other inchoate offences are conspiracy to commit an offence and incitement to commit an offence.
Attempted offences carry lesser penalties than completed offences.
What is an attempted offence?
An attempted offence has two elements.
- The accused intended to commit an offence; and
- The accused attempted to commit an offence.
The accused person must have intended to commit an indictable offence, meaning that they must have intended to carry out the physical elements of the offence. It is not enough for them to have been reckless or negligent about the commission of the offence.
To be found guilty of an attempt, an accused person must have believed in the existence of all facts and circumstances that are elements of the offence.
The accused must have made an attempt to commit the offence. Their conduct must have been more than an act preparatory to the commission of the offence. It must not be remote in its connection to the commission of the offence.
Whether an act amounts to an attempt or whether it is merely preparation will depend on the facts of the individual case. There are two tests that can be used for determining whether a person has moved beyond preparation and into an attempt. The first is the ‘last act’ test, which requires the accused to have done all the acts needed in order to complete the commission of the offence. The second test is the ‘unequivocal last act’ test, which requires the accused’s actions to unequivocally demonstrate an intention to complete the commission of the offence.
Impossibility of the attempted offence
A person can be guilty of attempting an offence even if facts or circumstances existed that meant that the successful commission of the offence was impossible.
A person cannot be found guilty of an attempt if they wrongly believed that the acts being attempted amounted to an offence. The attempted offence must be an actual indictable offence under the Victorian criminal law.
A person can be found guilty of an attempted offence as an accessory. This occurs when two or more people agree to carry out a criminal offence, but the offence is only attempted and not completed.
Penalties for attempted offences
Section 321P of the Crimes Act contains the penalties for attempted offences. The maximum penalty for an attempted offence is usually a level below the maximum for a completed offence.
For example, a person who is found guilty of attempted murder or attempted treason can be sentenced to level 2 imprisonment (25 years) whereas a person found guilty of completed murder or completed treason is liable to level 1 imprisonment (life imprisonment).
Conspiracy and incitement
Conspiracy occurs where two or more parties agree to pursue a course of conduct that involves committing an offence. Conspiracy is an offence under Section 321 of the Crimes Act. For an accused to be found guilty of conspiracy, they and at least one other person must have intended the offence to be committed and intended or believed that the circumstances and facts which are elements of the offence would exist when the conduct occurs.
Under Section 321G of the Crimes Act, incitement to commit an offence is an offence. Incitement occurs when a person incites another person to pursue a course of conduct involving a criminal offence by one or both parties. A person can be found guilty of incitement only if the person they incited actually went on to commit the offence.
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