Crimes Amendment (Identity Crime) Act 2009

i Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENT OF THE CRIMES ACT 1958 3 3 New Division 2AA of Part I inserted 3 Division 2AA—Identity crime 3 192A Definitions 3 192B Making, using or supplying identification information 4 192C Possession of identification information 5 192D Possession of equipment used to make etc. identification documentation 6 192E Not an offence to attempt to commit an identity crime offence 6 4 New section 426 inserted 7 426 Alternative verdict for identity crime offences 7 PART 3—AMENDMENT OF THE SENTENCING ACT 1991 8 5 Sentence discount for guilty plea 8 6 New Part 4A inserted 8 PART 4A—IDENTITY CRIME CERTIFICATES 8 89E Definitions 8 89F Court may issue certificate to victim of identity crime 9 89G Contents of certificate 9 89H Process for dealing with application 9 7 New section 137 inserted 10 137 Transitional provision—Crimes Amendment (Identity Crime) Act 2009 10 -- 1 of 15 -- Section Page ii PART 4—AMENDMENT OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005 11 8 Sentence discount for guilty plea 11 9 New section 608 inserted 11 608 Transitional provision—Crimes Amendment (Identity Crime) Act 2009 11 PART 5—REPEAL OF AMENDING ACT 12 10 Repeal of amending Act 12 ═══════════════ ENDNOTES 13 -- 2 of 15 -- 1 Crimes Amendment (Identity Crime) Act 2009 † No. 22 of 2009 [Assented to 17 June 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to amend the Crimes Act 1958 to create offences in relation to identity crime; and (b) to amend the Sentencing Act 1991 to provide for the issue of certificates to victims of identity crime, certifying that they have been the victims of identity crime; and Victoria -- 3 of 15 -- Part 1—Preliminary Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 2 (c) to amend the Children, Youth and Families Act 2005 and the Sentencing Act 1991 to make technical amendments as to sentencing procedure. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 October 2009, it comes into operation on that day. __________________ s. 2 -- 4 of 15 -- Part 2—Amendment of the Crimes Act 1958 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 3 PART 2—AMENDMENT OF THE CRIMES ACT 1958 3 New Division 2AA of Part I inserted After Division 2 of Part I of the Crimes Act 1958 insert— "Division 2AA—Identity crime 192A Definitions In this Division— identification documentation means a document or other thing that— (a) contains or incorporates identification information; and (b) is capable of being used by a person for the purpose of pretending to be, or passing themself off as, another person (whether living or dead, or real or fictitious); identification information means information relating to a person (whether living or dead, or real or fictitious) that is capable of being used (whether alone or in conjunction with other information) to identify, or purportedly identify, the person, being information such as— (a) a name, address, date of birth or place of birth; (b) information as to the person's marital status; s. 3 See: Act No. 6231. Reprint No. 20 as at 1 July 2008 and amending Act Nos 16/2004, 9/2008, 24/2008, 34/2008, 46/2008, 52/2008, 58/2008, 68/2008, 78/2008, 1/2009 and 4/2009. LawToday: www. legislation. vic.gov.au. -- 5 of 15 -- Part 2—Amendment of the Crimes Act 1958 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 4 (c) information that identifies another person as a relative of the person; (d) a driver licence or driver licence number; (e) a passport or passport number; (f) biometric data; (g) a voice print; (h) a credit or debit card, its number or data stored or encrypted on it; (i) a financial account number, user name or password; (j) a digital signature; (k) a series of numbers or letters (or both) intended for use as a means of personal identification; (l) an Australian Business Number within the meaning of the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth. 192B Making, using or supplying identification information (1) A person, who makes, uses or supplies identification information (that is not identification information that relates to that person), and— (a) who is aware that, or aware that there is a substantial risk that, the information is identification information; and s. 3 -- 6 of 15 -- Part 2—Amendment of the Crimes Act 1958 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 5 (b) who intends to use or supply the information to commit an indictable offence, or to facilitate the commission of an indictable offence— is guilty of an offence and liable to level 6 imprisonment (5 years maximum). Note See section 426 for an alternative verdict for this offence. (2) A person may be found guilty of an offence against this section even if the commission of the indictable offence is impossible. (3) It is not a defence to a charge for an offence against this section that the person to whom the identification information relates consented to the making, use or supply of the identification information. 192C Possession of identification information (1) A person, who possesses identification information (that is not identification information that relates to the person), and— (a) who is aware that, or aware that there is a substantial risk that, the information is identification information; and (b) who intends to use the information to commit an indictable offence, or to facilitate the commission of an indictable offence— is guilty of an offence and liable to imprisonment for a term not exceeding 3 years. (2) A person may be found guilty of an offence against this section even if the commission of the indictable offence is impossible. s. 3 -- 7 of 15 -- Part 2—Amendment of the Crimes Act 1958 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 6 (3) It is not a defence to a charge for an offence against this section that the person to whom the identification information relates consented to the possession of the identification information. 192D Possession of equipment used to make etc. identification documentation (1) A person, who possesses equipment that is capable of being used to make, use, supply or retain identification documentation, and— (a) who intends to use, or who intends that another person will use, the equipment to make, use, supply or retain identification documentation; and (b) who intends to use any such identification documentation to commit an indictable offence or to facilitate the commission of an indictable offence— is guilty of an offence and liable to imprisonment for a term not exceeding 3 years. (2) A person may be found guilty of an offence against this section even if the commission of the indictable offence is impossible. 192E Not an offence to attempt to commit an identity crime offence It is not an offence to attempt to commit an offence against section 192B, 192C or 192D.". s. 3 -- 8 of 15 -- Part 2—Amendment of the Crimes Act 1958 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 7 4 New section 426 inserted After section 425 of the Crimes Act 1958 insert— "426 Alternative verdict for identity crime offences If, on the trial of a person charged with an offence against section 192B, the jury are not satisfied that the person charged is guilty of the offence charged but are satisfied that the person charged is guilty of an offence against section 192C, the jury may acquit the person charged of the offence charged and find the person charged guilty of an offence against section 192C and the person charged is liable to punishment accordingly.". __________________ s. 4 -- 9 of 15 -- Part 3—Amendment of the Sentencing Act 1991 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 8 PART 3—AMENDMENT OF THE SENTENCING ACT 1991 5 Sentence discount for guilty plea In section 6AAA(4) of the Sentencing Act 1991, for "cause to be noted in the records of the court," substitute "record or cause to be recorded (whether in writing or in another form)". 6 New Part 4A inserted After Part 4 of the Sentencing Act 1991 insert— "PART 4A—IDENTITY CRIME CERTIFICATES 89E Definitions In this Part— identification information has the same meaning as in section 192A of the Crimes Act 1958; identity crime offence means an offence a necessary element of which consists of the use of identification information (that is not identification information that relates to the offender); victim, in relation to an identity crime offence, means a person whose identification information has been used, without that person's consent, in connection with the commission of the offence. s. 5 See: Act No. 49/1991. Reprint No. 11 as at 15 January 2009 and amending Act No. 46/2008. LawToday: www. legislation. vic.gov.au -- 10 of 15 -- Part 3—Amendment of the Sentencing Act 1991 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 9 89F Court may issue certificate to victim of identity crime (1) If a court finds a person guilty of an identity crime offence the court may issue a certificate to a person who is a victim of the offence setting out that the person is a victim of the offence. (2) The court may issue a certificate under subsection (1) on its own motion or on application— (a) by the victim; or (b) on the victim's behalf, by any person other than the offender, if the victim is a child or is incapable of making the application by reason of injury, disease, senility, illness or physical or mental impairment; or (c) by the person who prosecuted the identity crime offence, or another person on that person's behalf. 89G Contents of certificate A certificate issued under section 89F— (a) must set out— (i) the identity crime offence to which the certificate relates; and (ii) the name of the victim; and (b) may set out any other matter the court considers relevant. 89H Process for dealing with application (1) In any proceeding dealing with an application for a certificate under this Part, the court— s. 6 -- 11 of 15 -- Part 3—Amendment of the Sentencing Act 1991 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 10 (a) is not required to have regard to the rules of evidence; and (b) may inform itself in any way that it thinks fit. (2) In any proceeding dealing with an application for a certificate under this Part, the court may direct that notice be given to the person who prosecuted the identity crime offence to appear at the hearing of the application to provide assistance to the court in relation to the application. (3) A person to whom notice is given under subsection (2) may appoint another person to appear on that person's behalf at the hearing. __________________". 7 New section 137 inserted After section 136 of the Sentencing Act 1991 insert— "137 Transitional provision—Crimes Amendment (Identity Crime) Act 2009 (1) Section 6AAA, as amended by section 5 of the Crimes Amendment (Identity Crime) Act 2009, applies to a sentence imposed on or after the commencement of section 5 of that Act irrespective of when the sentencing hearing commenced. (2) An application may be made under section 89F in relation to an identity crime offence (within the meaning of section 89E) committed before the commencement of section 6 of the Crimes Amendment (Identity Crime) Act 2009.". __________________ s. 7 -- 12 of 15 -- Part 4—Amendment of the Children, Youth and Families Act 2005 Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 11 PART 4—AMENDMENT OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005 8 Sentence discount for guilty plea In section 362A(3) of the Children, Youth and Families Act 2005, for "cause to be noted in the records of the Court," substitute "record or cause to be recorded (whether in writing or in another form)". 9 New section 608 inserted After section 607 of the Children, Youth and Families Act 2005 insert— "608 Transitional provision—Crimes Amendment (Identity Crime) Act 2009 Section 362A, as amended by section 8 of the Crimes Amendment (Identity Crime) Act 2009, applies to a sentence imposed on or after the commencement of section 8 of that Act irrespective of when the sentencing hearing commenced.". __________________ s. 8 See: Act No. 96/2005. Reprint No. 1 as at 23 April 2007 and amending Act Nos 97/2005, 23/2006, 24/2006, 51/2006, 81/2006, 24/2007, 28/2007, 56/2007, 7/2008, 8/2008, 9/2008, 12/2008, 52/2008, 68/2008, 77/2008 and 4/2009. LawToday: www. legislation. vic.gov.au -- 13 of 15 -- Part 5—Repeal of Amending Act Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 12 PART 5—REPEAL OF AMENDING ACT 10 Repeal of amending Act This Act is repealed on 1 July 2010. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 10 -- 14 of 15 -- Crimes Amendment (Identity Crime) Act 2009 No. 22 of 2009 13 ENDNOTES † Minister's second reading speech— Legislative Assembly: 12 March 2009 Legislative Council: 7 May 2009 The long title for the Bill for this Act was "A Bill for an Act to amend the Crimes Act 1958 to create offences in respect of identity crimes, the Sentencing Act 1991 to provide for the issue of certificates to victims of identity crimes and as to sentencing procedure, to amend the Children, Youth and Families Act 2005 as to sentencing procedure and for other purposes." Endnotes -- 15 of 15 --